By Carolyn Schuk

 

One more hurdle has been cleared on the path to developing the 17-acre former UC agricultural station on Winchester Blvd., BAREC.

 

On July 18, Santa Clara Superior Court Judge Leslie C. Nichols ruled that the City of Santa Clara's Environmental Impact Report (EIR) for the Santa Clara Gardens development project complied with the California’s Environmental Quality Act (CEQA), saying that, "the decisions made in preparing the EIR are supported by substantial evidence in the record."

 

In his ruling, Nichols rejected a 2007 lawsuit filed by SaveBAREC -- the group spearheading opposition to the development – claiming that the city had "acted in violation of applicable provisions of CEQA" and "its approval of the project was a prejudicial abuse of discretion and/or arbitrary and capricious in that the City did not proceed in the manner required by law and its decisions and findings are not supported by substantial evidence."

 

The 17-acre former UC agricultural research station site at 90 Winchester Blvd. is owned by the state and has been shuttered since 2002. Opened in 1920, among other research, the station tested insecticides and has high concentrations of arsenic and dieldren. Since its closing, BAREC has been a flashpoint of local controversy.

 

Last June the City Council passed zoning and other resolutions, allowing development to go forward for the Santa Gardens residential development: 165 "affordable" senior units and three acres of gardens (built by Charities Housing and the Santa Clara Methodist Retirement Foundation), 110 single-family market-rate units (built by Summerhill Homes), and a one-acre public park. Summerhill will also develop the public park, and the site's entire infrastructure.

 

It will also carry out the California Department of Toxic Substances Control's (DTSC) site clean-up plan. Among other things, SaveBAREC contends that the DTSC's toxics studies and clean-up plans are insufficient.

 

Nichols ruled that the question was not whether the EIR's conclusions were scientifically correct, but whether the document satisfied CEQA mandates. "When reviewing an EIR for adequacy, a court does not pass upon the correctness of the EIR's environmental conclusions, but only upon its sufficiency as an informative document,” the judge wrote.

 

"The question of whether an EIR is sufficient as an informative document depends on the agency's compliance with CEQA's requirements for the contents of an EIR." These include reasonable, good faith effort to disclose and evaluate environmental impacts, identifying and describing mitigation measures and alternatives, "reasonable" responses to comments raising significant environmental issues, and compliance with procedural requirements.

 

"…The petitioners objections can be more fairly described as objections to the scope of the EIR and the methodologies used," wrote Nichols. "The existence of differing opinions arising from the same pool of information is not a basis for finding the EIR to be inadequate…the question for the court is whether the agency's reasons for studying the impact as it did are supported by substantial evidence."

  

One of SaveBAREC's principal objections was that the EIR didn't include a specific document, a Human Health Risks Assessment (HHRA) -- a point to which SaveBAREC's attorney Mark Wolfe returned repeatedly in his argument.

 

Nichols dismissed this objection, writing, "There is simply no requirement under CEQA that a specific type of document like an HHRA must be prepared. An EIR need not follow any particular format as long as it contains the information required by CEQA and the Guidelines."

 

Finally, regarding SaveBAREC's claims that toxicology studies were inadequate, Nichols wrote that their toxicology expert, Mehrdad Javaherian, "cannot be considered a qualified expert."

 

Javaherian, a principal in ETIC Engineering, the company hired by Attorney Wolfe to analyze the EIR, "is apparently not a "Dr." of any kind or an "expert toxicologist" nor does he hold advanced degrees from the University of California, Berkeley or Stanford University, as claimed on his CV located in the administrative record.

 

"…Here the Court has taken judicial notice of evidence sufficient to call into question whether Mr. Javaherian is qualified to opine on toxicology or on any impacts the project may have on human health or the environment. While the Court intends no comment on the credibility of the Petitioner or its counsel, to allow references…describing Mr. Javaherian's opinions as those of a toxicology expert… would be absurd."

 

Editor's note: In the responses to the Santa Clara Gardens Draft EIR, page 4-77, Javaherian claims a 1991 M.S. in Toxicology from UC Berkeley, and a 1995 Ph.D. in Mathematical Modeling. However, as of July 20, 2008 the website, Environmental Public Health Today tells a different story: "Mr. Javaherian holds a BS degree in civil (environmental) engineering from the California Polytechnic University and is currently working toward his MPH and PhD in epidemiology at Walden University." environmentalhealthtoday.wordpress.com/about/#mjavaherian

 

You can find the Santa Clara Gardens Environmental Impact Report online at www.ci.santa-clara.ca.us/city_gov/city_gov_90nwinchester_barec_feir.html or at the City library. You can get information about the case at the Superior Court's public access portal: www.sccaseinfo.org, Case No.1-07-CV-091854.