Re: Public hearing to consider the issuance of a proposed decision and findings regarding the Airport Land Use Commission's Find

Lydia Miller, President
San Joaquin Raptor Rescue Center
P.O. Box 778
Merced, CA 95341
(209) 723-9283, ph. & fax
raptorctr@bigvalley.net

Steve Burke
Protect Our Water (POW)
3105 Yorkshire Lane
Modesto, CA 95350
(209) 523-1391, ph. & fax

Merced County Board of Supervisors October 23, 2006
2222 M Street
Merced, California 95340
Fax: (209) 726-7977
Ph: (209) 385-7366

Via facsimile and Email

Re: Public hearing to consider the issuance of a proposed decision and findings regarding the Airport Land Use Commission's Finding as to consistency between the Airport Land Use Plan and the Riverside Motorsports Park Project- PH #2-10:00am

On Tuesday, Oct. 24, the Merced County Board of Supervisors will hold a public hearing on the above-mentioned item.

The board is being asked to override a decision by the Castle Airport Land Use Commission that the RMP project is inconsistent with state Department of Transportation guidelines on projects near airports.

Under the California Environmental Quality Act, this “decision” is in fact a project. As presently proposed, it is an unanalyzed and unmitigated segment of the RMP environmental impact report.

On Wednesday, Oct. 25, the Merced County Planning Commission will hear the final EIR on the RMP project.

The RMP final EIR staff report states:

“The RMP Master Plan EIR is intended to serve as a comprehensive document that evaluates the full range of impacts anticipated with project implementation.” – Staff Report, Merced County, Oct. 25, GPA03-005 and ZC03-007, p. 9.

Here is a major impact requiring the board to override the ALUC’s decision and findings, which is not included in the racetrack EIR, yet, without the board’s decision to override the commission’s decision and findings, the racetrack project is obstructed. Therefore, at a bare minimum, the board should realize that the racetrack is impacting the Castle Airport Land Use Plan. Once grasping this, the board should reach the deeper insight the two are part of one project, all parts of which are subject to review by the California Environmental Quality Act.

The board's decision and the commission's decisions are mutually reliant. If the board doesn't override the ALUC findings, it is a serious obstacle to approval of the FEIR for the racetrack. They are part of the same project.

We believe the two decisions are mutually reliant and that the County is segmenting a project without adequate environmental review. We assert that the board decision on the ALUC is part of the RMP project, that it is subject to CEQA, and therefore, the RMP FEIR should be recirculated, providing sufficient public notice and adequate environmental information on impacts to the public from a decision to override the ALUC findings, based on state Department of Transportation guidelines for airports.

There are public health and safety issues involved but not considered: the cumulative impacts of noise from both the racetrack and the airport could, under some circumstances, produce a decibel level of noise dangerous to human health. The argument advanced by County staff that because it will already be incredibly noisy at the racetrack, the additional noise of aircraft landing nearby won't bother them lacks any analysis.

This project also changes the impacts discussed in the RMP draft EIR in sections 4.6-5, 4.6-6, 4.6-7, and 4.7. Therefore, the mitigation measures in the RMP final EIR are inaccurate.

The cumulative impacts of aircraft and racetrack noise to the nearby federal prison, located at the end of the drag track, featuring the noisiest events on the track, are not analyzed.

There is no environmental analysis of the impacts of this proposed board decision, yet, if the board does not agree to override the airport commission's findings, a serious obstacle to the RMP project remains.

We also assert that the proposed board decision, if taken, negates an important feature of the Castle airport plan, intended to protect public health and safety.

Beyond the excessively narrow focus of the proposed decision before the board lie the environmental impacts to the base from an anticipated increase in air traffic to the Castle airport, which will generate yet more traffic congestion and further deteriorate air quality. This additional air and ground traffic will come both as a direct result of the racetrack project and as an indirect result of inclusion of the off-base land on which the racetrack is proposed, into the Castle SUDP, which in turn will open the door to the Foreign/Free Trade Zone.

The public was not provided enough information on this proposed decision. At the very least in this public hearing, the public should have been provided: the sections in the draft and final EIRs on the RMP project that address this issue; the minutes of the 2003 ALUC meeting, which could have showed its reasoning and authorities for deciding RMP was incompatible with the Castle airport land use plan; the language in the state Public Utilities Code upon which the County is relying; and the sections of the state Department of Transportation’s California Airport Land Use Planning Handbook upon which the County is relying.

Nor does the public see evidence that the applicant has submitted his FAA form 7460-1, Notice of Proposed Construction or Alteration, etc.

The staff report references an “analysis gap” in the airport commission’s decision. We suggest this staff report is an analysis gap from beginning to end because it fails to analyze the proposed decision’s compatibility with the county’s outdated General Plan, the Castle Master Plan, the Castle SUDP, the federal penitentiary’s land use concerns, the proposed Master Plan for Riverside Motorsports Park, the county Transportation Plan, or the Foreign/Free Trade Zone.

In our scanning of the code and the handbook, we find no sections that condone the situation in this proposed decision. State law, like the Merced public, did not contemplate the local land use planning by constant, ever larger amendment of a dysfunctional, outdated general plan. But, at a bare minimum not achieved by this proposal, the county’s outdated General Plan must be amended as part of the board’s consideration of an override of the ALUC decision and findings. [PUC Section 21676.5 (b)]

This project and the RMP final EIR are mutually reliant, parts of the same project. The strongest evidence for this is Impact 4.6-4 on pages 4.6-21-22 in the RMP draft EIR. Because they are part of one project, the RMP, which is subject to CEQA review, the board cannot decide on this proposal in isolation from the final EIR of the RMP project. The decision to override the decision and findings of the ALUC and to change its plan are in integral part of the RMP project. This is segmenting and piecemealing a project under CEQA.

As further evidence that this issue was raised in both the draft and final EIRs, we attach: the Jan 6, 2006 letter from John Fowler in the RMP final EIR; the Letter 10 Response to Mr. Fowler’s letter, also in the RMP final EIR; sections 4.6-4, 4.6-5, 4.6-6, 4.6-7, and 4.7 in the RMP draft EIR – all of which discuss the very action before the board today.

The public found it unacceptable that Mitigation Measure 4.6-4 in the RMP draft EIR calls for the applicant to request that the ALUC update its policies. Once again, a developer is driving the Merced County planning process. Table 2 in the final EIR, Summary of Impacts and Mitigation Measures, 4.6-4 through 4.7 has not even considered environmental impacts that will arise if the board decides to override the ALUC decision and findings today. The environmental consultants determined in the RMP final EIR that even with the “mitigation” of the decision before the board today, there remain “significant and unavoidable impacts” (see attached).

As the board well knows, the RMP Master Plan is void and inapplicable because the majority of the racetrack lies in a zone that requires the override of the ALUC decision and findings to make it “safe.” Nothing could more emphatically underscore the fact that the decision the county Planning Commission will take tomorrow on the RMP final EIR is totally dependent on the decision the board will take today, without any environmental analysis.

Finally, given the significant quantity of birds in Merced County and the fact that the leading cause of catastrophic aircraft accidents results from bird/aircraft collisions, is it really conscionable to locate the vast concentrations of race spectators adjacent to an airport that will draw increasing air traffic due to the racing events? Is the difference between 6,000 and 10,000 feet a real margin of safety?

We are attaching letters that deal with this specific issue: from the RMP draft EIR, Volume 2 – Appendices, a letter from US Department of Transportation addressing the hazards of wildlife to aircraft in populated areas; a letter from John Fowler, April 1, 2005, concerning building height limitations and human density issues; an April 14, 2005 letter from the state Department of Transportation addressing the problems aircraft, birds and high concentrations of people; an April 26, 2003 letter from the Castle airport manager expressing concern about the high concentration of spectators at the proposed racetrack; and an Aug. 27, 2003 letter from the federal Department of Transportation asking for specific compliance measures from the applicant.

We request the board not to take action on this item and direct the staff to recirculate the RMP EIR to include important, unresolved concerns. This decision must be included in the project as a whole. By segmenting the project before you from the RMP Master Plan, draft and final EIRs, RMP is obscuring its own consultants’ description of the impacts of the decision before you today as “significant and unavoidable.” The public would add, “dangerous to public health and safety.”

Sections in the CEQA Guidelines that appear to bear on this situation include:

15154. Projects Near Airports

(a) When a lead agency prepares an EIR for a project within the boundaries of a comprehensive airport land use plan or, if a comprehensive airport land use plan has not been adopted for a project within two nautical miles of a public airport or public use airport, the agency shall utilize the Airport Land Use Planning Handbook published by Caltrans' Division of Aeronautics to assist in the preparation of the EIR relative to potential airport-related safety hazards and noise problems.

(b) A lead agency shall not adopt a negative declaration or mitigated negative declaration for a project described in subdivision (a) unless the lead agency considers whether the project will result in a safety hazard or noise problem for persons using the airport or for persons residing or working in the project area.

15146. Degree of Specificity

While CEQA requirements cannot be avoided by chopping the proposed project into pieces to render its impacts insignificant the EIR need not engage in a speculative analysis of environmental consequences for future and unspecified development. (Atherton v. Board of Supervisors of Orange County, (1983) 146 Cal. 3d 346.)

15021. Duty to Minimize Environmental Damage and Balance Competing Public Objectives

Discussion: Section 15021 brings together the many separate elements that apply to the duty to minimize environmental damage. These duties appear in the policy sections of CEQA, in the findings requirement in Section 21081, and in a number of court decisions that have built up a body of case law that is not immediately reflected in the statutory language. This section is also necessary to provide one place to explain how the ultimate balancing of the merits of the project relates to the search for feasible alternatives or mitigation measures to avoid or reduce the environmental damage.

(b) A lead agency shall not adopt a negative declaration or mitigated negative declaration for a project described in subdivision (a) unless the lead agency considers whether the project will result in a safety hazard or noise problem for persons using the airport or for persons residing or working in the project area.

h) The lead agency must consider the whole of an action, not simply its constituent parts, when determining whether it will have a significant environmental effect. (Citizens Assoc. For Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151)

15147. Technical Detail

The information contained in an EIR shall include summarized technical data, maps, plot plans, diagrams, and similar relevant information sufficient to permit full assessment of significant environmental impacts by reviewing agencies and members of the public. Placement of highly technical and specialized analysis and data in the body of an EIR should be avoided through inclusion of supporting information and analyses as appendices to the main body of the EIR. Appendices to the EIR may be prepared in volumes separate from the basic EIR document, but shall be readily available for public examination and shall be submitted to all clearinghouses which assist in public review.

15201. Public Participation

Public participation is an essential part of the CEQA process. Each public agency should include provisions in its CEQA procedures for wide public involvement, formal and informal, consistent with its existing activities and procedures, in order to receive and evaluate public reactions to environmental issues related to the agency's activities. Such procedures should include, whenever possible, making environmental information available in electronic format on the Internet, on a web site maintained or utilized by the public agency.

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21000, 21082, 21108, and 21152, Public Resources Code; Environmental Defense Fund v. Coastside County Water District, (1972) 27 Cal. App. 3d 695; People v. County of Kern, (1974) 39 Cal. App. 3d 830; County of Inyo v. City of Los Angeles, (1977) 71 Cal. App. 3d 185.

Discussion: This section declares the importance of public participation as an element of the CEQA process. This section encourages agencies to provide notice on the internet when possible. Internet posting offers the public yet another means of being informed about a project.

In Concerned Citizens of Costa Mesa, Inc. v. 32nd District Agricultural, Assoc. (1986) 42 Cal. 3d 929, the court emphasized that the public holds a "privileged position" in the CEQA process "based on a belief that citizens can make important contributions to environmental protection and on notions of democratic decision making."

15202. Public Hearings

(a) CEQA does not require formal hearings at any stage of the environmental review process. Public comments may be restricted to written communication.

(b) If an agency provides a public hearing on its decision to carry out or approve a project, the agency should include environmental review as one of the subjects for the hearing.

(c) A public hearing on the environmental impact of a project should usually be held when the Lead Agency determines it would facilitate the purposes and goals of CEQA to do so. The hearing may be held in conjunction with and as a part of normal planning activities.

(d) A draft EIR or Negative Declaration should be used as a basis for discussion at a public hearing. The hearing may be held at a place where public hearings are regularly conducted by the Lead Agency or at another location expected to be convenient to the public.

(e) Notice of all public hearings shall be given in a timely manner. This notice may be given in the same form and time as notice for other regularly conducted public hearings of the public agency. To the extent that the public agency maintains an Internet web site, notice of all public hearings should be made available in electronic format on that site.

(f) A public agency may include, in its implementing procedures, procedures for the conducting of public hearings pursuant to this section. The procedures may adopt existing notice and hearing requirements of the public agency for regularly conducted legislative, planning, and other activities.

(g) There is no requirement for a public agency to conduct a public hearing in connection with its review of an EIR prepared by another public agency.

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21000, 21082, 21108, and 21152, Public Resources Code; Concerned Citizens of Palm Desert, Inc. v. Board of Supervisors, (1974) 38 Cal. App. 3d 272.

Discussion: The section encourages agencies to include environmental issues in the agenda when the agency provides a public hearing on the project itself. The section also provides that the draft EIR or Negative Declaration should be used as a basis for discussion of environmental issues at a hearing if one is held. In an effort to simplify procedures, the section allows agencies to conduct hearings on environmental issues according to the same rules that the agency applies to its other hearings. This section also acknowledges that there is no requirement for a public agency to conduct a public hearing concerning its review of an EIR.

Subsection (e) encourage agencies to provide public hearing notice on the internet when possible. Internet posting offers the public another means of being informed about a project.

15203. Adequate Time for Review and Comment

The Lead Agency shall provide adequate time for other public agencies and members of the public to review and comment on a draft EIR or Negative Declaration that it has prepared.

Public agencies may establish time periods for review in their implementing procedures and shall notify the public and reviewing agencies of the time for receipt of comments on EIRs. These time periods shall be consistent with applicable statutes, the State CEQA Guidelines, and applicable Clearinghouse review periods.

Thank you for your prompt attention to this urgent matter.

Lydia Miller Steve Burke

Cc: Interested parties

BadlandsJournal