REPORT TO CITY COUNCIL
SUBJECT
Title
Proposed Project: Appeal by Laborers International Union of North America, Local Union No. 270 (LIUNA) of the Planning Commission decision approving related applications on a 5.82-acre site:
SPECIAL DEVELOPMENT PERMIT: to demolish an existing surface parking lot at the rear of two existing office/R&D buildings and construct 225 apartment units at a density of 112.5 dwelling units per acre in an eight-story building inclusive of three levels of above-ground parking.
TENTATIVE PARCEL MAP: to relocate the existing lot line between the two office/R&D building lots, resulting in a 3.82-acre lot for the office/R&D buildings and a two-acre lot for the apartment development.
Location: 1150-1170 Kifer Road (APNs: 205-50-034 and 205-50-035)
File #: 2022-7168
Zoning: MXD-I (Flexible Mixed-Use I)
Applicant / Owner: Prometheus Real Estate Group (applicant) / 1150 Kifer LP (owner)
Appellant: Lozeau Drury LLP on behalf of Laborers International Union of North America, Local Union No. 270 (LIUNA)
Environmental Review: No additional review required as per CEQA Guidelines 15162 and 15168(c)(2) and (4) - environmental impacts of the project are addressed in the 2016 Lawrence Station Area Plan Environmental Impact Report (EIR - State Clearinghouse No. 2013082030) and 2021 Lawrence Station Area Plan Update/Intuitive Surgical Corporate Campus Project Subsequent Environmental Impact Report (SEIR - State Clearinghouse No. 2019012022)
Project Planner: George Schroeder, (408) 730-7443, gschroeder@sunnyvale.ca.gov
Report
BACKGROUND
The Special Development Permit and Tentative Parcel Map for the project were considered by the Planning Commission on October 9, 2023 (see Report to Planning Commission in Attachment 11). Minutes of the Planning Commission public hearing can be found in Attachment 12. The Planning Commission approved the project on a 7-0 vote with the revisions to the Recommended Conditions of Approval as outlined in Attachment 9. The updated Recommended Conditions of Approval as approved by the Planning Commission are in Attachment 4.
APPEAL
The appellant, on behalf of the Laborers International Union of North America, Local Union No. 270 (LIUNA), appealed the Planning Commission’s decision on October 17, 2023. The appellant’s letter of appeal with their consultant’s associated indoor air analysis is included as Attachment 13 and includes their following bases for the appeal:
1. The City did not evaluate indoor air emissions of formaldehyde in the project California Environmental Quality Act (CEQA) checklist nor in the 2016 LSAP EIR and 2021 LSAP Update SEIR. The appellant’s consultant determined the project’s emissions of formaldehyde to indoor air in the proposed building would result in cancer risks well above the applicable threshold adopted by the California Air Resources Board.
2. The presence of high levels of formaldehyde from composite wood materials is new information of substantial importance that was not previously disclosed, and a subsequent EIR must be prepared for the project pursuant to CEQA Guidelines Section 15162.
3. The City must consider and adopt a statement of overriding considerations for the formaldehyde emissions prior to project approval.
The appellant submitted a letter on the day of the Planning Commission hearing with similar claims along with their consultant’s indoor air analysis (Attachment 10).
Pursuant to Sunnyvale Municipal Code Section 19.98.070(f)(2) and (3), the City Council hearing is a de novo hearing and the City Council is not bound by the decision that has been appealed or limited to the issues raised in the appeal by the appellant. After the hearing, City Council can either affirm, modify, or reverse the Planning Commission’s decision based on the evidence and findings.
STAFF COMMENTS ON APPEAL
The appeal letter includes an analysis from a consultant that has technical experience in indoor air quality. The project CEQA Checklist, 2016 LSAP EIR, and 2021 LSAP Update SEIR were all prepared by the City’s technical experts that have between five and over 25 years of experience in all areas of CEQA. Disagreement amongst experts is not a sufficient reason to require an environmental document to be updated and recirculated pursuant to CEQA Guidelines Section 15151. Under established CEQA precedent, the City is allowed to reject the opinions and beliefs of commenter’s experts and instead rely on its own experts and their opinions and analysis regarding the project and its environmental impacts.
The City’s consultant, Ascent Environmental, prepared a response to the issues raised in the appeal letter (Attachment 14). The project would comply with mandatory and applicable regulatory requirements that reduce public exposure to formaldehyde, many of which were not in place when the studies referenced in the appellant’s consultant’s analysis were conducted. Moreover, the claim that the project would result in significant impacts is based on speculation and associated assumptions about the project construction details. CEQA does not support speculation of future environmental consequences.
Additionally, CEQA reviews the impacts of a project on the environment rather than the effects of the environment on the residents of a project. A project would only need to evaluate the environment’s impact on a project if the project itself would exacerbate an existing adverse condition. The appellant claims that the project environmental document should have evaluated the health impacts of fine particulate matter (PM2.5) to the residents of the project site. Because project emissions would not exceed Bay Area Air Quality Management District (BAAQMD) thresholds, no further analysis is required regarding the effects of the environment to residents.
Public Contact
Public contact was made by posting the Council meeting agenda on the City's official-notice bulletin board at City Hall. In addition, the agenda and this report are available at the NOVA Workforce Services reception desk located on the first floor of City Hall at 456 W. Olive Avenue (during normal business hours), and on the City's website.
The City sent 1,526 notices to surrounding property owners and residents within 2,000 feet of the project site in addition to standard noticing practices, including advertisement in the Sunnyvale Sun Newspaper and on-site posting. An email from a member of the public that was received after the Planning Commission hearing is included in Attachment 15.
ALTERNATIVES
1. Deny the appeal and affirm the Planning Commission’s decision to approve the CEQA determination that the project is consistent with the 2016 Lawrence Station Area Plan Environmental Impact Report and 2021 Lawrence Station Area Plan Update/Intuitive Surgical Corporate Campus Project Subsequent Environmental Impact Report and no additional environmental review is required pursuant to CEQA Section 15162 and 15168(c)(2); and, affirm the Planning Commission’s decision to approve the Special Development Permit and Tentative Parcel Map with the Recommended Findings in Attachment 3 and Recommended Conditions of Approval in Attachment 4 to the report.
2. Deny the appeal and affirm the Planning Commission’s decision to approve the CEQA determination that the project is consistent with the 2016 Lawrence Station Area Plan Environmental Impact Report and 2021 Lawrence Station Area Plan Update/Intuitive Surgical Corporate Campus Project Subsequent Environmental Impact Report and no additional environmental review is required pursuant to CEQA Section 15162 and 15168(c)(2); and, affirm the Planning Commission’s decision to approve the Special Development Permit and Tentative Parcel Map with the Recommended Findings in Attachment 3 to the report, subject to modified Conditions of Approval.
3. Grant the appeal and direct staff where changes should be made.
STAFF RECOMMENDATION
Recommendation
Alternative 1: Deny the appeal and affirm the Planning Commission’s decision to approve the CEQA determination that the project is consistent with the 2016 Lawrence Station Area Plan Environmental Impact Report and 2021 Lawrence Station Area Plan Update/Intuitive Surgical Corporate Campus Project Subsequent Environmental Impact Report and no additional environmental review is required pursuant to CEQA Section 15162 and 15168(c)(2); and, affirm the Planning Commission’s decision to approve the Special Development Permit and Tentative Parcel Map with the Recommended Findings in Attachment 3 and Recommended Conditions of Approval in Attachment 4 to the report.
JUSTIFICATION FOR RECOMMENDATION
The project is infill development with high-density housing, including affordable rental units, within walking distance to a major rail transit station. It is consistent with the vision of the General Plan, LSAP, and the City’s sustainability goals. Staff does not find new significant information raised by the appellant that would identify a new significant impact or a substantial increase in severity of an identified impact that would warrant additional environmental review.
The proposed project furthers the goals and objectives of the General Plan and LSAP by providing high density residential housing with a significant number of affordable units within close proximity of the Lawrence Caltrain Station. The site is located in the Transit Core West subarea of the LSAP intended for increased development to more transit-oriented uses. The project includes community benefits to enhance area connectivity, sustainability, and wayfinding in accordance with the LSAP Development Incentives Program. No new significant environmental impacts would occur with implementation of the project and all approved mitigation in the 2016 LSAP EIR and 2021 LSAP Update SEIR would continue to be implemented.
Staff
Prepared by: George Schroeder, Principal Planner
Reviewed by: Shaunn Mendrin, Planning Officer
Reviewed by: Trudi Ryan, Director, Community Development
Reviewed by: Connie Verceles, Deputy City Manager
Approved by: Kent Steffens, City Manager
ATTACHMENTS
Attachments from Report to Planning Commission
1. Noticing and Vicinity Map
2. Project Data Table
3. Recommended Findings (updated to reflect City Council as decision maker)
4. Recommended Conditions of Approval (updated with Planning Commission modifications and to reflect City Council as decision maker)
5. CEQA Checklist
6. Site and Architectural Plans
7. Applicant’s Project Description and California Density Bonus Letter
8. Preliminary Parking Management Plan and Shared Parking Analysis
9. 23-0932 Added Attachment 9 (posted 20231009) - Modifications to Recommended Conditions of Approval
10. Public Comments Received After Staff Report Published
Additional Attachments for Report to Council
11. Report to Planning Commission [23-0932, October 9, 2023] (without attachments)
12. Excerpt of Final Minutes of the Planning Commission Meeting of October 9, 2023
13. LIUNA Appeal Letter
14. City’s Environmental Consultant Response to Appeal
15. Additional Public Comments since Planning Commission hearing of October 9, 2023