Judge Hears Arguments for PAMF EIR Lawsuit, Decision in One Week

Superior Court Judge Elfving heard arguments from Petitioner Attorney, Alexander T. Henson, and Respondent PAMF Attorney Sacramento-Based John D. Fairbrook this morning at 9:00am.

Both Petitioners as well as Sunnyvale Heritage District Neighbors & Supporters were present during the hearing.

Notably absent from the hearing were the preparers of the Palo Alto Medical Foundation Environmental Impact Report PAMF EIR in dispute~ Lead Agency (Planners Gerri Caruso, Trudi Ryan, Steve Lynch), Community Director Hanson Hom, City Manager Gary Luebers, Traffic Jack Whittus  & Heba El-Guendy, Fehr & Peers, David J. Powers & Associates, PAMF Public Relations Cythnia Greaves, nor any of the 6 Councilmembers who voted to approve the PAMF EIR on June 23, 2009.    

Surprisingly, few attendees representing the respondent side attended~Palo Alto Medical Foundation Project Manager, David Jury, and Sunnyvale City Attorneys Kathy Berry and David Kahn.

Petitioner Attorney, Zan Henson, began the arguments, stating that converting the three Kenny Court Residences to Palo Alto Medical Foundation PAMF storage and waste area should have been amended in the City of Sunnyvale’s General Plan and that property owners had a right to expect the intrusion of non-residential uses into their neighborhood.

Henson added that the consistency of a City’s General Plan is the linch pin of California’s land use and development laws. It is the principle which infuses the concept of planned growth with the force of law. The PAMF EIR was required to discuss the apparent General Plan inconsistency and failed to do so.

Respondent PAMF Attorney John Fairbrook stated that the Kenny Court residential homes were compatible with Sunnyvale Zoning.

Secondly, Zan Henson argued that the Palo Alto Medical Foundation PAMF EIR is legally inadequate because of the failure to constitute a traffic baseline at the time of the project approval. “The discussion of the project’s impacts on traffic in the neighborhood is gibberish. One searches the Draft EIR in vain for a statement of expected trips from the proposed project.”

The PAMF DEIR states, “Traffic volumes for background conditions include volumes from existing traffic counts plus traffic generated by other approved, but not yet constructed, developments in the vicinity.” Henson adds ” So, if background includes existing plus approved but not yet existing traffic, where does one look in the EIR to find a comparison of the project traffic impacts on existing conditions only? There is none. Instead of using the existing physical conditions as the baseline, the EIR used something it made up called background conditions to which it compared the project impacts.”

John Fairbrook stated that the PAMF EIR traffic analysis was adequate. According to my notes Fairbrook stated “there was no legal required baseline.”

Thirdly, Zan Henson argued that there is no analysis in the PAMF DEIR nor the FEIR of the efficacy of the proposed mitigation measures nor project alternatives that would reduce the construction noise impact to less than significant. “Notable was the dialogue between the City Councilman David Whittum and the noise consultant Michael Thill at the June 23, 2009 hearing wherein the noise contours were addressed. It was suggested that retrofitting homes was the only way to secure compliance with the city’s noise standards. Yet, this mitigation measure was never discussed.”

Before the neighbors are told, “tough luck, there are overriding considerations as to why you must expect over 2 years of construction noise exceeding City noise standards, CEQA requires there be a thorough analysis of alternative that could reduce this significant adverse unavoidable environmental impact to a less than significant level. Absent such an analysis, the EIR is legally deficient.”

Fairbrook stated that the PAMF EIR identified the construction impacts as “Significant and Unavoidable” and that was adequate.

Judge Elfving concluded stating “this is a very interesting and complex case, I will have my ruling in one week.”

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