MEMO
To:
Tod Herman
NEVADA COUNTY COMMUNITY DEVELOPMENT AGENCY
From:
Patrick Angell, AICP
Cc:
Date:
August 5, 2009
Re:
Additional Comments on Higgins Final EIR
At the meeting of July 7, 2009, the County received additional comments from Keith Wagner of the law
firm Lippe Gaffney Wagner LLP on behalf of the South County Citizens for Smart Growth (SCCSG) regarding the Higgins Marketplace EIR. (see Attachment A) While many of the comments raised in the
Wagner letter were addressed in the technical memo of December 30, 2008, this memo addresses the
additional comments made by Mr. Wagner. This memo also addresses additional comments received by
the County from Caltrans regarding the project.1 (see Attachment E)
The Letter Claims That The Project Has Changed Substantially And The EIR Must Be Revised And Recirculated
The Wagner letter contends that the project as originally described in the draft EIR is no longer being
pursued, and that the proposal before the board constitutes a ‘new project’ that must be analyzed in the
EIR and re-circulated for public review and comment. CEQA provides for the ability of a project to be
modified, and in fact encourages changes to a project in order to avoid or reduce environmental impacts.2 In this instance the project proponent has refined the project in order to reduce the impact, and
therefore the proposed mitigation, associated with the proposal. The modifications also reflect more
certainty in how sewer service will be provided. Whether the modifications to the project originates
from the County to reduce environmental impact, or from the applicant in order to reduce the cost of
the mitigation for the project, is immaterial. The point is that CEQA allows the project to be refined to
reduce or eliminate environmental impacts.
As shown in Table 1, with one exception, all of the components of the project became smaller as a result of the refinements. Less retail space equals fewer trips, which in turn reduces the impact on roadways and intersections, air quality and noise. With the project modifications in Table 1, the analysis in
the proposed EIR is more conservative than it would have been had the project revisions been made
before the EIR was prepared, in the sense that the EIR likely overstates impacts because it analyzed a
larger project. Of course, the full extent of the project’s impacts weren’t known until the EIR was prepared, so the timing of the refinements in reaction to the analysis is appropriate. The location and objectives of the project remain consistent with that analyzed in the EIR. The fact that some of the buildings
have become smaller, and that the overall size of the project has been reduced by the applicant, does
not invalidate the EIR. In fact, many projects are subsequently reduced in size between the initial consid2729 Prospect Park Drive, Suite 220 • Rancho Cordova, CA 95670 • P: (916) 361-8384 • F: (916) 361-1574
Tod Herman
August 5, 2009
Page 2
eration and final approval. It would also not be unusual for the building permits for the project to reflect
building sizes smaller than the 75,710 shown in Table 1. The modifications to the project do not result
in any new significant environmental impacts not previously disclosed in the EIR. As noted, the EIR likely
overstates project impacts because it assumed a larger-scale development than the project as modified.
Table 1
Higgins Marketplace Project Modifications
Draft EIR
As Considered
Site size
20.07 Acres
20.07 Acres
Number of Parcels
10
7
Area Proposed for Immediate 10.58 Acres
9.68 Acres
Development
59,800 sq.ft. retail
50,060 sq.ft. retail
13,200 sq.ft. retail
11,400
6,500 sq.ft. retail
8,250
3,500 fast food restaurant
6,000
3,500 fast food restaurant
Total Square Feet
86,500
75,710
Biological set aside
3.26 acres
4.23 acres
Mitigation Measures
Since the EIR was drafted, the alignment of the sewer lines has been determined. The lines would connect the project to the previously approved lift station for Saddle Ridge Estates subdivision. The alignment of the pipeline, along Higgins Road and Combie Road eliminates the potential for biological impacts
associated with construction. (see Figure 1. Preliminary Utility Plan for Higgins Marketplace, Revised
July 23, 2009) Construction within an existing road prism results in very few environmental impacts, all
of which can be addressed through the mitigation measures contained in the EIR; namely dust control
and erosion. Encroachment permit requirements that regulate traffic control, access and construction
standards, will also address construction impacts.3
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August 5, 2009
Page 3
(Figure
1.
Preliminary
Utility
Plan
for
Higgins
Marketplace,
Revised
July
23,
2009)
Tod Herman
August 5, 2009
Page 4
It is important to note that development projects are required to comply with more than just the mitigation measures. For example, grading activity must be conducted under a permit issued by the regional
water quality control board, in order to ensure that erosion from loosened soil cannot impact local waterways. Each contractor develops a stormwater pollution prevention plan (SWPPP) specific to the grading and construction proposed. The SWPPP has items like straw bales, wattles, silt fences and watering
requirements, often referred to as best management practices (BMP), designed to keep erosion to a
minimum. It is also common for projects to be modified from the original submittal to avoid or lessen
impacts and therefore reduce the extent of mitigation. Such is case for this project as a smaller project,
and connection to a public sewer system, reduce or eliminate the need for mitigation.
PROPOSED EDITS TO MITIGATION MEASURES
In addition to the sewer line placement, the County has reviewed the proposed mitigation measures,
and makes the following revisions:
MM 4.4.1d
Access at the intersection of SR 49 and Woodridge Court shall be limited to rightin/right-out turn movements.
Access to and from northbound SR 49 at Woodridge Court shall be limited to rightin/right-out turn movements. Left turns from Woodridge Court to southbound SR 49
shall not be allowed. Left turns onto Woodridge Court from southbound SR 49 shall be
allowed.
Staff has agreed that the analysis provided by Neal Liddicoat supports this modification. As with all modifications to the state highway system, the final design of the improvement must be approved by Caltrans.
Note that in its recent letter of July 31, 2009, Caltrans states that a center median and modifications to
the street markings will be needed as part of this mitigation measure. The final design of the intersection
improvements will be subject to the requirements of a Caltrans encroachment permit and may include
an island or other barrier to traffic. Because the barrier will be within the existing developed road prism,
there are no environmental impacts.
MM 4.4.3a
The following improvements shall be constructed or funded by the project applicant at
the SR 49/Combie Road intersection and shall be completed prior to issuance of a certificate of occupancy. At the developer’s request, the County will facilitate an agreement
whereby other benefitting property owners will reimburse the developer for the extra
capacity created.

Provide two southbound left turn lanes that are each at least 325 feet in length
at the intersection of SR 49 and Combie Road. The second SR 49 at Combie
Road southbound left turn lane has been included in the Regional Transportation Mitigation Fee Program (RTMF). Mitigation Fee Credit or reimbursement
from future mitigation fees collected is possible for this improvement. The
RTMF Program is a regional program between the County, Grass Valley and
Nevada City, administered by the Nevada County Transportation Commission
(NCTC). The NCTC currently has the project being funded in approximately
2020.
Tod Herman
August 5, 2009
Page 5
The EIR traffic engineer KD Anderson, has concurred with the analysis provided by Neil Liddicoat supporting this modification. As a result of the project modifications (removing the two fast-food restaurants) and the reduction in the overall project square footage (including the square footage limits placed
on Parcels 6 and 7), this mitigation measure is no longer required. Note that Caltrans disagrees with this
determination and has requested that the requirement for the two left turn lanes remain as project mitigation. (See page 2 of Attachment E) As noted in the EIR, the second turn lane remains part of the
RTMF and will be constructed as warranted in the RTMF program. This amendment reflects the fact that
the traffic generated by the project does not warrant the improvement now. The project will be required to pay fees within the RTMF program.
MM 4.5.3a
Two Three options are available to mitigate impacts of on-site noise sources on nearby
residential uses for parcels 2, 3, and 4and 3:

An 8-foot tall sound wall shall be constructed along the north property line of
parcels 2, 3 and 4 and 3and shall be in place prior to issuance of occupancy
permits. The wall shall be landscaped to provide visual screening from residents
located north of the project site. When parcels to the north of the project site
are developed with non-residential uses, the wall shall be removed to accommodate shared circulation; or

As an alternative to a sound wall, truck deliveries should be restricted to the
front or south sides of the commercial uses located along Parcels 2, 3 and 4
and/or the front or east side of the commercial uses along Parcel 2. If this option is implemented, it shall be implemented as a condition of project approval;
or

No sound wall or restriction on delivery hours shall be required if the legal
property owner of the northern parcel, zoned C2-Community Commercial and
containing the two non-conforming residences, consents in writing their waiver
of the sound wall and delivery hour restrictions. Said written waiver, if available,
shall be provided to the Planning Department and a copy kept in the project file.
The third option was added to reflect the fact that although there are residential buildings on the adjacent parcel, the parcel is designated as commercial. Edits were made to the mitigation measure to reflect the re-numbering of the parcels.
MM 4.5.3b
Two options are available to mitigate impacts of on-site noise sources on nearby residential uses for parcels 7, 8 and 96:

An 8-foot tall sound wall shall be constructed along the south property line of
parcels 7, 8 and 96 and shall be in place prior to issuance of occupancy permits.
The wall shall be landscaped to provide visual screening from residents located
north of the project site; or

As an alternative to a sound wall, truck deliveries should be restricted to the
front or north sides of the light industrial uses located along parcels 7, 8, and
96. If this option is implemented, it shall be implemented as a condition of project approval.
The parcel numbers in the mitigation measures have been revised to reflect the new numbering.
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August 5, 2009
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MM 4.7.4
The project applicant shall prepare a detailed drainage report consistent with County standards for submittal with the improvements plans. The drainage report shall
include the following:

An accurate calculation of the existing runoff coefficient conditions and anticipated flow conditions as a result of buildout of the Ragsdale Creek drainage basin.

A detailed analysis of the effects that the project will have on peak flow conditions at the State Route 49 culvert and other downstream facilities. No net increase to 100-year storm event peak year discharged may be realized within the
State’s highway right of way and/or Caltrans drainage facilities as a result of the
project. The analysis associated with the State Route 49 culvert shall be submitted to Caltrans for their review and concurrence.

If increased drainage flows of the project are anticipated to contribute to drainage capacity deficiencies for downstream facilities during peak flow conditions,
the project shall include onsite detention facilities adequate to mitigate project
increases to peak flow conditions.

Proof that the drainage report was prepared by a registered Civil Engineer.
The mitigation measure was revised to reflect Caltran’s standard for review of grading and storm drainage plans. (see Attachment E, page 4)
The Wagner letter requests that the EIR be re-circulated to allow the public an opportunity to comment on the project as summarized in Table 1. We suggest that the comment period has afforded the
public ample time to comment on the Higgin’s Marketplace proposal, and that the modifications to the
project do not render the project a new project. Nor, in our opinion, does the information provided in
the letter of July 7, 2008, constitute a change that “deprives the public of a meaningful opportunity to
comment upon a substantial adverse environmental effect of the project”. The Higgin’s Marketplace was
originally proposed as a retail shopping center with restaurant pad sites and remains as a retail shopping
center. The fact that the restaurant potential has shifted from fast food to sit-down does not warrant
recirculation. As shown below, §15088.5 of the CEQA Guidelines is quite specific about what factors
lead can lead to a decision to recirculate:
(1) A new significant environmental impact would result from the project or from a new mitigation measure proposed to be implemented.
No new environmental impacts would be associated with the modifications to the project or to the
proposed mitigation measures. The Wagner reiterates issues raised during the comment period and
criticizes the approach and conclusions of some of the technical studies. None of the issues raised in the
letter introduces a new impact, but rather elaborate on impacts already present, discussed and mitigated
in the EIR for the project.
(2) A substantial increase in the severity of an environmental impact would result unless mitigation measures are
adopted that reduce the impact to a level of insignificance.
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August 5, 2009
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The Wagner letter suggests that errors in the preparation of the technical studies resulted in understating the impacts associated with the project. Discussions included in this technical memo from the preparers of the EIR disagree with the commenter’s assertions. The reduction in size of the overall project
reduces impacts on roads, air quality, water and sewer. The project also increases the area set aside for
wetlands protection.
(3) A feasible project alternative or mitigation measure considerably different from others previously analyzed
would clearly lessen the significant environmental impacts of the project, but the project's proponents decline to
adopt it.
Two new mitigation measures are proposed in the Wagner letter to help ‘off-set’ impacts to Holiday
Market as a result of the proposed project. These mitigation measures are based on the assertion by the
commenter that the proposed project will lead to blight and urban decay. This assertion is based on a
series of assumptions intended to reach a specific conclusion. Viewed objectively, and with input from
owners, brokers and other professionals familiar with the business climate in the vicinity of the project,
there is nothing to suggest that the proposed project will lead to urban decay.
Further, requiring one shopping center to pay for maintenance at another retail center based on occupancy over which only the owner has control, or eliminating the drug store as an allowable use within
the project, is not mitigation for an environmental impact, but rather market manipulation. CEQA allows
mitigation for physical, not fiscal, changes in the environment.
We do not hold with the assumption asserted by the commenter that vacant buildings equals urban
blight. This assumption is not valid as it also assumes that the property owner of a vacant building is unwilling or unable to maintain the structure, and that the County will not conduct nuisance abatement for
buildings that fall into decay. On the contrary, even in robust economic environments there must be
some vacancy to allow for commerce to expand, and contract. In our opinion, the comments raised in
the Wagner letter are not about urban decay but rather about market share and tenant retention.
CEQA does not permit public agencies to treat social and economic impacts as environmental impacts. 4
Rather, CEQA permits an agency to trace a chain of cause and effect from a proposed decision on a
project through anticipated economic or social changes resulting from the project to physical changes
caused in turn by the economic and social changes. As noted in this EIR, while there may be vacancies,
there is nothing in the studies, or the record, to suggest that these vacancies will result in blight or urban decay.
(4) The draft EIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public
review and comment were precluded.
The Wagner letter includes several other letters from other experts regarding the technical analysis
contained in the EIR. These letters largely reflect responses to previous comments provided in the December 30, 2008 technical memo. Regardless, all of the factors from the Wagner letter were reviewed,
and a detailed response is provided in appendices to this technical memorandum. As noted in this memorandum, the commenter provides alternative conclusions, based on alternative assumptions. While the
commenter asserts that the assumptions made by his consulting team are more accurate than the assumptions made in the EIR, and therefore it is not simply a ‘disagreement of experts’, we respectfully
disagree. The EIR, the technical appendices, and the technical memorandums, clearly describe the approach used to evaluate the proposed project. The assumptions were based on documented research
and the professional expertise of the consulting team. That an opposing consulting team, advocating a
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August 5, 2009
Page 8
specific position for a competing business found that a separate set of assumptions led to differing conclusions, is neither unusual nor grounds to consider the EIR inadequate. In fact, including both discussions in the record enables the decision makers to have a variety of perspectives in review of the project.
(b) Recirculation is not required where the new information added to the EIR merely clarifies or amplifies or
makes insignificant modifications in an adequate EIR.
This technical memo and the memo dated December 30, 2009, responds to additional comments made
on the project after the public review period was completed. The memos are supported by analysis
from the preparers of the technical studies, and by additional information from the applicant. The changes brought about by the comments, and refinements to the project, are typical modifications for this
type of project. The information provided in the technical memos in response to late comments on the
EIR, clarify rather than change the analysis in the EIR.
Biological Resources
As noted in the December 30th, Technical Memo, the Habitat Plan is a requirement of the Nevada
County regulations. The draft plan was prepared by Susan Sanders Biological Consulting in 2004 and
used to prepare the design for the proposed project. The plan was subsequently updated in March of
2009 to reflect a larger setback for wetland areas. MM4.9.2a of the Draft EIR requires that the plan be
updated by qualified biologists. The refinements in the plan implement County Policy regarding protection of resources.
At the time the Draft EIR was published, the setback distance to the habitat areas was under discussion.
Since the publication of the EIR, the Addendum to the 2004 Habitat Management Plan for the Higgins Marketplace, notes that the project has been modified to avoid impacts to wetlands and waters of the U.S.
and that no wetlands will be created on site. The project modifications included increased setback as
well as the reduction of the total number of parcels and total square feet of building on the project site.
Further, as the design of future development is unknown, mitigation measure 4.9.2 ensures that future
development in the vicinity of the preserve specifically evaluates impacts to the preserve. Since it is likely
that future projects, like the proposed project, can avoid impacts to the preserve, this mitigation measure is appropriate.
Modification of the project to reduce the size and impact does not result in an environmental impact. As
noted in the EIR, because of the removal of Woodbridge Court, the project will result in impacts to
0.08 acres of jurisdictional wetlands, for which mitigation credits, or participation in an approved in-lieu
fee program is required.5 The EIR requires that the proposed project comply with no-net-loss of wetlands, and with the modification of the project to avoid, and the purchase of credits to off-set the removal of Woodbridge Court, the modified project remains compliant with the mitigation measures discussed in the EIR.6
The location of the Blue Oak woodlands corresponds to the preservation area and the current proposal
will not affect any of the oak habitat.7 Mitigation measures included in the Draft EIR ensure that the oaks
remain protected during construction.8 Subsequent development will be required to ensure that it will
not affect the preserve area. While construction will remove foraging area, and reduce the amount of
open space in the area as a whole, the area is small and is surrounded by developed parcels.
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Sewer Line
Mitigation Measure 4.22.5.1 in the Draft EIR requires that the project connect to the Lake of the Pines
wastewater treatment facility. This connection involves construction of sewer lines and a sewer lift station which was discussed in Impact 4.11.4.2 of the Draft EIR. Impacts typically associated with excavation
include dust, noise, traffic control, and erosion. Mitigation measures contained in the EIR that address all
construction will apply to construction within the roadways. Further, as Nevada County must issue an
encroachment permit for construction within its right of way, all county standards must also be met.
County construction standards address traffic control, access, dust and erosion. The proposed sewer
line will connect to the approved Saddle Ridge Estates sewer system which was evaluated through a
separate CEQA document and approved by the County. Construction of the wastewater conveyance
system as shown in Figure 1 will not result in any biological impacts. As the conveyance system is within
a developed roadway, and there are mitigation measures in the EIR that address construction and
stormwater runoff, there will be no impacts on waters of the US.
Urban Decay
The Wagner letter contends that the economic analysis was not adequate to determine that urban decay will not occur. Bay Area Economics (BAE) provides a detailed response to the issues raised in the
Wagner letter. (see Attachment D) As explained in the BAE letter, the Wagner comment relies on a
series of assumptions to arrive at different conclusions than those in the EIR, but does not raise any new
environmental impacts. As noted above, and in the BAE letter, there is nothing in the record that suggests urban decay will occur as a result of the proposed project.
Traffic
Trip Generation
The Wagner letter criticizes the trip generation factors used to assess the project in the EIR, and claims
that the trip generation is understated. In fact, the commenter’s traffic engineer misstates the ITE manual, as well as the factor of increase assumed for the difference between Specialty Retail and Shopping
Center uses.9 Further, the commenting letter does not show that the total trips were reduced as a result of modifications to the project. As noted in Attachment C, the application of the commenter’s trip
generation rate would result in a 20 trip increase from that assumed in the EIR. Using the pass-by and
trip distribution assumptions, the resulting incremental change is too small to have any effect on the intersection levels of service. As noted in Attachment B, the assumptions for the trip generation factors
were reviewed by Caltrans who concurred with the rates used in the analysis.
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Re-designation of a Portion of Combie Road to Minor Arterial
The Wagner letter asserts that the change in designation is infeasible because of the existing driveway
accesses along the route, and that the change in designation will not result in an increase in capacity. As
noted in Response E-2 to Letter E in the Final EIR, this section of Combie Road is planned to be expanded to five lanes in 2011, and is funded through the RTMF. As the project is funded, and scheduled
for completion in 2011, widening of the road was also assumed in cumulative conditions. As noted in
response E-2, the County is considering requiring widening of the roadway to be complete prior to occupancy as a condition of approval. The Caltrans letter asserts that the widening of the roadway is essential to the operation of the new signal at Combie/Higgins Road. This assertion is not supported in the
EIR which shows the intersection operating acceptably in the near term, and that the additional lanes are
needed only in the cumulative condition.
Queuing Assumptions For West-Bound Combie Road are Unrealistic
The Wagner letter claims that the assumptions on queuing length are unrealistic and fail to take into
account actual driver behavior. The design queues for westbound Combie Road were obtained using
SimTraffic, a micro-simulation program. The queues on westbound Combie Road are representative of
what may occur in the future at the intersection. Motorists may not use the two left turn lanes in a
manner proportionate to the effective use of the available storage of each lane. The SimTraffic analysis
included the projected queue lengths for the westbound through and right-turn movements that may be
blocked by left turning vehicles. There is adequate storage available along the approach and there may
be times where through and right turning traffic may experience more delays due to blocking; however
the queue lengths are not considered excessive along the approach. Additional signage can be provided
along the approach to provide information to motorists of the approaching lane configuration. 10
Wolf Road Improvements
The April 17, 2009, analysis by KDA did not call for the Wolf Road approach to the intersection at SR
49 to be widened to provide a third eastbound lane as three lanes already exist on that approach. The
KDA analysis suggested lengthening the existing right-turn lane, and converting the existing lane to a
shared through and right turn lane.11 The KDA analysis determined that levels of service at this intersection would be acceptable without the suggested modifications.
Hydrology
Caltrans has requested that any grading and drainage plans be submitted to them for review. (see Attachment E) This is required as part of MM 4.7.4.12 Caltrans also states that the standard is for there to
be no net increase to 100 –year storm event peak year discharge within their right of way. This standard
has been added to the mitigation measure in this Technical Memo as information for the applicant.
Caltrans has also requested that an overall preliminary improvement plan be prepared for review by
public works and Caltrans. This type of improvement plan is a normal part of the development process
and additional mitigation is unnecessary. All work done within the Caltrans right of way must be in accordance with Caltrans standards and requires an encroachment permit prior to construction.
Attachments:
A.
B.
Lippe, Gaffney, Wagner, LLP, Keith Wagner, July 7, 2009.
K.D. Anderson & Associates, Jonathan Flecker, P.E., July 16, 2009.
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August 5, 2009
Page 11
C.
D.
E.
F.
1
MRO Comments, Neal K. Liddicoat, July 17, 2009.
BAE, Matt Kowta, July 30, 2009.
Caltrans, William A. Davis, July 31, 2009.
MRO Comments, Neal K. Liddicoat, July 31, 2009.
Caltrans commented on the Draft EIR; see Letter E in the FEIR
§15002(h)(1) of the CEQA Guidelines
3
Chapter 5.5 of Division 2 of the Streets and Highways Code and Nevada County Ordinance No. 727
4
§15131(a) of the CEQA Guidelines
5
Addendum to the 2004 Habitat Management Plan for the Higgins Marketplace, March 3, 2009, page 6.
6
Impact 4.9.3, DEIR, page 4.9-63.
7
DEIR, page 4.9-13.
8
Impact 4.9.4, Mitigation Measure 4.9.4a, DEIR, page 4.9-65.
9
Attachment C, Table 1, page 2.
10
Attachment B, page 2
11
KDA, Higgins Marketplace – Revised Site Plan Analysis, Nevada County, April 17, 2009, page 12.
12
Impact 4.7.4, DEIR, page 4.7-14.
2