CC 04-07-20 #9 De Anza Hotel_Written Communications1
Cyrah Caburian
From:Paige Fennie <paige@lozeaudrury.com>
Sent:Tuesday, April 7, 2020 4:53 PM
To:City Council
Cc:Michael Lozeau; Hannah Hughes
Subject:Comment on 4/7/2020 City Council Agenda Item #9
Attachments:2020.04.07 De Anza Hotel CC Comment.pdf
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Hello,
Please find attached a comment on Agenda Item #9, the De Anza Hotel Project, for tonight's City Council meeting. We
also plan on making an oral public comment during the teleconference portion of the meeting.
Thank you,
‐‐
Paige Fennie
Legal Fellow
Lozeau | Drury LLP
1939 Harrison Street, Suite 150
Oakland, California 94612
(510) 836‐4200
(510) 836‐4205 (fax)
paige@lozeaudrury.com
CC 4/7/2020Item #9
Good evening Mayor Scharf and Honorable Members of the City Council,
I am writing on behalf of the Laborers International Union of North America Local
Union No. 270, also known as LIUNA, concerning the Petition for Reconsideration of the City
Council’s decision of March 3, 2020 to adopt Resolution No. 20-005 adopting the Mitigated
Negative Declaration, mitigation measures, and a Mitigation Monitoring and Reporting Project
for the De Anza Hotel project. As stated in our Petition for Reconsideration, we believe the City
Council has abused its discretion by not proceeding in a manner required by law. We therefore
respectfully request that the City Council reconsider its decision to adopt Resolution No. 20-005
adopting the MND, and instead require the City to prepare an EIR for the project.
If an EIR has not been prepared for a nonexempt project, but substantial evidence in the
record supports a fair argument that the project may result in significant adverse impacts, an EIR
must be prepared. Substantial environmental effect is defined very broadly as a substantial or
potentially substantial adverse change in the environment. Agencies can issue a negative
declaration and avoid preparing an EIR in limited circumstances – only if there is not even a fair
argument that the project will have a significant environmental effect. Under this “fair argument”
standard, an EIR is required if any substantial evidence in the record indicates that a project may
have an adverse environmental effect. This standard creates a low threshold favoring
environmental review through an EIR. As evident from our past comments, there is substantial
evidence of a fair argument that the Project will have significant adverse impacts, and the
threshold for environmental review through an EIR is therefore met.
By using the average noise level as the construction noise standard, the MND analysis
enables construction to generate very high maximum noise levels that are not disclosed. In fact,
they are only ascertainable by a noise expert who has facility with noise level calculations. We
retained such as expert, Derek Watry, and using the data and methodology in the MND noise
study, he calculated the maximum noise levels for the various phases of the Project. See Exhibit
A. Not only are the maximum noise levels not disclosed in the MND, they are obscured by
calculations sheets in Appendix C that are poorly formatted and use a non-sensical distance for
calculating maximum noise levels. As reported in the MND, the property line of the Cupertino
Hotel is 34 feet from the edge of the construction site, not 200 feet as the MND uses as the
distance for measuring the Project’s construction noise levels. The City’s construction noise
ordinance applies at the property line 34 feet from the construction site, not in the middle of the
Project’s construction site as the MND used.
The “Typical Noise Levels” table in Appendix C of the MND indicates that a noise level
of 85 dBA is like a food blender at 3 feet away, and a level of 95 dBA is like a lawn mower.
These are high noise levels, and while they are not impact noises like a pile driver would be, they
can fluctuate quickly as engines are revved to generate requisite power. The MND states, “Heavy
equipment . . . can have maximum, short-duration noise level of up to 85 dBA at 50 feet.” Using
Mr. Watry’s attenuation rate of 34 feet based on the Cupertino Hotel property line, this is
equivalent to 93 dBA at 34 feet. These noise levels are very loud and may be significant noise
impacts.
And these noise levels will occur frequently on the adjacent property. In order to achieve
even an average of 80 dbA at the closest approach distance of 34 feet to the adjacent property,
grading and other loud construction activities could only occur 3 minutes in an hour to comply
with the ordinance applied as an average. In other words, if a noise level of 93 dBA persists for
just 3 minutes in an hour and the equipment is shut off for the rest of the hour, the hourly average
will be 80 dBA. Because there is no suggestion to limit grading at the southern end of the
project site to 3 minutes per hour, the actual noise levels to be generated by the projects, even
applied as an average, will still exceed the ordinance on many days.
As the court in Communities for a Better Environment v. California Resources Agency
stated, the application of an established regulatory standard cannot be applied in a way that
forecloses the consideration of any other substantial evidence showing there may be a significant
effect. Communities for a Better Environment v. California Resources Agency (2002) 103
Cal.App.4th 98, 114. The court in Keep Our Mountains Quiet v. County of Santa Clara also held
that an EIR is required if substantial evidence supports a fair argument that the project may have
significant unmitigated noise impacts, even if other evidence shows that the project will not
generate noise in excess of a noise ordinance. See Keep Out Mountains Quiet v. County of Santa
Clara (2015) 236 Cal.App.4th 714, 732. In its response to Mr. Watry’s comments, the City
rejected his analysis because it treats the noise limit in Municipal Code section 10.48.053 as an
average, whereas Mr. Watry argued it should be treated as a maximum, foreclosing the
consideration of Mr. Watry’s substantial evidence showing there may be a significant noise
impact during the five stages of the project’s construction. Irrespective of whether the
construction noise complies with the Municipal Code’s construction noise limit, Mr. Watry’s
expert analysis of the project’s construction noise impacts is substantial evidence supporting a
fair argument that the project will have significant noise impacts, meeting the threshold for
environmental review under an EIR.
By failing to require an EIR for the Project, the Council has abused its discretion. We
therefore respectfully request that the Council not adopt Resolution No. 20-034 denying the
petition, and instead require City staff to prepare an EIR for the Project.
Thank you,
Paige Fennie
Lozeau Drury LLP
([KLELW$
7 April 2020
Michael Lozeau, Esq.
Lozeau Drury LLP
1939 Harrison Street, Suite 150
Oakland, CA 94612
Subject: The De Anza Hotel Project Public Review Draft Initial Study
Additional Comments on Noise Analysis
Dear Mr. Lozeau,
This letter supplements comments I made previously on the The De Anza Hotel Project Public Review
Draft Initial Study (July 2, 2019) in a letter to you in January of this year.
The IS/MND noise analysis interprets the City of Cupertino noise ordinance limits on construction
noise (§ 10.48.053 of the Municipal Code) to be applicable to the average noise level. I disagree with
that interpretation as the Code is written – I believe it is intended to limit the maximum noise levels
– but I understand that the City intends to stick with staff’s interpretation unless directed otherwise
by the courts.
By using the average noise level as the standard, the IS/MND analysis enables construction to
generate very high maximum noise levels that are not disclosed. In fact, they are only ascertainable
by a noise expert such as myself who has facility with noise level calculations. Using the data and
methodology in the IS/MND noise study, I have calculated the maximum noise levels for the various
phases of the project. The table below indicates the information as presented in Appendix C: Noise
Data of the IS/MND and then the maximum noise levels when construction is near the property line
of the Cupertino Hotel:
Phase Appendix C Cupertino Hotel PL
Max Noise Level at 200 ft Max Noise Level at 34 ft
Demolition 77.5 dBA 92.9 dBA
Site Prep 73.0 dBA 88.4 dBA
Grading 77.5 dBA 92.9 dBA
Construction 72.0 dBA 87.4 dBA
Paving 72.0 dBA 87.4 dBA
The De Anza Hotel Project
Additional Comments on Noise Analysis
2
Not only are the maximum noise levels not disclosed in the IS/MND, they are obscured by calculations
sheets in Appendix C that are poorly formatted and use a non-sensical distance for the calculation of
maximum noise levels. As reported in the IS/MND, the property line of the Cupertino Hotel is 34 ft
from the edge of the construction site, not 200 ft. Only a noise expert who is able to replicate the
information shown in Appendix C would be able to ascertain the maximum noise levels on the
Cupertino Hotel property. The IS/MND simply failed to disclose these high noise levels.
Having done the calculations of maximum noise levels, the next question is: Might they cause a
significant impact? The “Typical Noise Levels” table in Appendix C indicates that a noise level of
85 dBA is like a food blender at 3 ft. A level of 95 dBA is like a lawn mower. These are high levels,
and while they are not impact noises like a pile driver would be, they can fluctuate quickly as engines
are revved to generate requisite power. The IS/MND states, “Heavy equipment . . . can have
maximum, short-duration noise level of up to 85 dBA at 50 feet.” Using the attenuation rate used in
the noise study, this is equivalent to 93 dBA at 34 feet, as indicated in the table above. As such, these
noise levels may startle and/or scare people, and, therefore, potentially cause significant noise
impacts.
* * * * *
Please contact me if you have any questions about my additional comments on the De Anza Hotel
Project Draft Initial Study noise analysis.
Very truly yours,
WILSON IHRIG
Derek L. Watry
Principal
2020-04-07 deanza-hotel ismnd noise comments wilson-ihrig.docx