75A - PH - EIR 1584 E SANTA CLARA AVE

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Monday; July 29, 2013 Daily Appellate Report 9793 E. Roadway Mitigation (1) Record The plan is for aggregate mined in the Project to he removed from the site by trucks travelling on Kunzler Ranch Road to North State Street There appears to be no dispute that Kunzler Ranch Road is the only point of ingress and egress to the Project site:' The Draft estimated that the mining could involve up to 176 truck trips per day each hauling 25 ton loads. According to the Draft, "[Vocal roadways, such as Kunzler Ranch Road and North State Street .. are generally not designed to accommodate heavy vehicles, and truck travel on these roads would have the potential to adversely affect the Pavement condition. Roadway damage can include conditions such as loose asphalt and potholes that have the potential to make driving conditions less safe. Roadways significantly impacted from project truck traffic would have to be upgraded to support vehicle weights up to 25 tons. IT] ... [9[] , , . [Tlhe project would have a significant impact on Kunzler Ranch Road and a less than significant impact on North State Street. IT ... Vj[I The project applicant has recently prepared an assessment of Kunzler Ranch Road, Kunzler Ranch Road .Pavement Evaluation and Rehabilitation Strategies, April 28, 2009. This report was submitted to the County and provides a detailed assessment of current roadway conditions and a comprehensive plan to rehabilitate and maintain the roadway over a 30 Year period. The report identified Kunzler Ranch Road as being in serious condition and identifies various alternatives for addressing the condition of the road. "d To mitigate this significant impact, the Draft' "recommended that Kunzler Ranch Road be improved as needed (e.g., overlays or reconstruction) per the April 28, 2009 Kunzler Ranch Road study and die Caitrans Design Manual standards. The project applicant would Pay the full cost of road improvements, including design and construction. [y[] Prior to operations the project applicant shall enter into -a Roadway Maintenance Agreement with Mendocino County providing their proportionate share of the responsibility to maintain the proposed haul roads." (Italics ornhtedJ When it commented on the Draft, the County Department of Transportation (MDOT) clarified that "Kunzler Ranch Road is not -a County maintained road and that MDOT has no involvement in its operation, maintenance, or upkeep.... [91] ... [9[1 ... Therefore there is no need for the applicant to enter into a Road Maintenance Agreement with the County for maintenance of Kunzler Ranch "Road." The MDOT further stated: "Arriving at a. cost sharing arrangement is the responsibility of the applicant, the road's owner(s) and those property owners having rights to its use. [q1. , . [7[1. • . Ideally, all the users of Kunzler Ranch Road wouldvoluntarily forma Road Maintenance Organization for the improvement and maintenance of the road. [However,) no party can unilaterally make this happen ...." The MDOT proposed an alternative means to mitigate the significant impact to Kunzler Ranch Road, and it was adopted nearly verbatim in the EIR The EIR states: 'Traffic- related repairs on Kunzler Ranch Road shall be initiated when the owners of the road and users of the easement reach a decision that such repairs are necessary. Granite's fair share shall be calculated based on the proportion of applicant's heavy truck trips to the total number-of heavy truck trips on the road that year. Consistent with Civil Code Section 845, in the absence of a road maintenance agreement, applicant shall be required to pay its fair share of the cost and expense incurred for traffic- related repairs of Kunzler Ranch Road."a (2) Review Masonite argues that the mitigation measures for the Project's impact on Kunzler Ranch Road are inadequate for several reasons. The measures provide for "repairs" rather than "improvements" to the road, The measures are unenforceable and impermissibly deferred. And the provisions for fair share payments by Granite are ineffectual because they are not "part of a reasonable Plan of actual mitigation that the [County has] commit[tedl itself to implementing." (Anderson First Coalition u City of Anderson (2005) 130 Cal.AppAth 1173, 1188 [discussing fee -based mitigation programs for cumulative 'traffic .impacts]:) Most of Masonite's' arguments are unconvincing. "[Mleasures to mitigate or avoid significant effects on the environment [must be] fully enforceable through permit conditions, agreements, or othermeasures." (Pub. Resources Code, § 21081.6, solid. (b).) The mitigation measures for the road'are enforceable because they were included among the conditions for approval of the Project, allowing the County to withdraw that approval if Granite • faits to make the required payments, (See Gray v, County Of Madera (2008) 167 Cal.AppAth 1099, 1116 they were incorporated as part of the approval" of the use permits].) The p "repairs" is most reasonably construes 'improvements' to the road to accommodate the increased truck traffic, There is no reason to doubt the County's commitment to enforce the mitigation measures. But Masonite makes a valid point when it says the roadway mitigation measures have been unjustifiably deferred. - The mitigation measures do not specify when the fair share payments will be made or what improvements must be fimded. The EIR states that the payments are to be made when the interested private parties decide they are necessary or, in the absence of an agreement, "[clonsistent with Civil Code section 845." These provisions leave the timing of the payments uncertain. (Compare City of Long Beach a Los Angeles Unified School Dist. (2009).>176, Cal.App.4th ',889, 916 `[mitigations that were "specific and ¢ontaia[ed]-identifiable timeline's' %' were not "impermissibly delayed "].)' Moreover, no standards are set to ensure that the 75A -72