2 Alexander Appeal – City Council CEQA Applies; Violation of the Public Trust Doctrine; Unsupported Findings; and Incomplete Application.

Initial Study Required “Where there is reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” The following information is included as part of the administrative record to support the above determination. Audubon Society Letters Appellant photos 2015 SF Bay & Delta, “State of the Estuary” Report 2014 National Marin Fisheries Service’s CA Eelgrass Mitigation Policy 2012 GG Ferry IS/MND 2010 San Francisco Bay Subtidal Habitat Goals Report 2008 Merkel & Associates Baseline Eelgrass Study 2004 NOAA Baywide Eelgrass Inventory – SF Bay

Eelgrass in Project Area

Cannot Mitigate Around CEQA If a project may have a significant effect on the environment, CEQA review must occur and only then are mitigation measures relevant. Mitigation measures may support a negative declaration but not a categorical exemption. Practical effect: Prepare an initial study List the potential impacts Identify techniques to mitigate impacts to less than significant Prepare a mitigation measures plan as part of any future application

Cannot Mitigate Around CEQA (cont.) “The determination of whether a project may impact a designated environmental resource must be made without reference or reliance upon any proposed mitigation measures. ( Azusa, supra, 52 Cal.App.4th at pp. 1199–1200.) Reliance upon mitigation measures (whether included in the application or later adopted) involves an evaluative process of assessing those mitigation measures and weighing them against potential environmental impacts, and that process must be conducted under established CEQA standards and procedures for EIRs or negative declarations.” (Salmon Protection & Watershed Network v. County of Marin (2005) 125 Cal.App.4th 1098)

Illegally Proposed Mitigation Pilings will be installed with an impact hammer with certified cushion (i.e. vibratory hammer). (Army Corp) Construction during June 15 through October 15 – “to avoid migrating salmon” and Pacific Herring. (Army Corp) Two eelgrass surveys are required during the same season as construction of the “dock” by a qualified biologist. (Army Corp) Eelgrass may not be cut or disturbed (CCR Title 14 §30.10). (DFG) Silt curtains be implemented to contain suspended sediments. (DFG) Employ light-transmitting decking material. (BCDC/FWS) Reduce pier width to not more than 5 feet or demonstrate that a larger width is the minimum necessary. (BCDC)

BCDC Subtidal Areas Policy #2 Subtidal areas that are scarce in the Bay or have an abundance and diversity of fish, other aquatic organisms and wildlife (e.g. eelgrass beds, sandy deep water or underwater pinnacles) should be conserved. Filling, changes in use, and dredging projects in these areas should therefore be allowed only if: (1) there is no feasible alternative; and (b) the project provides substantial public benefit. A feasible alternative is a shorter pier that accommodates water access during certain tidal ranges. Providing emergency access only to the private pier on public land is not a “substantial public benefit”

Public Trust The public trust has long been settled in California that the fact a private landowner has title to tidewaters does not establish such ownership is free of the interest of the public. In fact, the Fotch title report specifically includes a reservation for public trust in the lane that was granted from the City to the predecessor in interest. Public trust easements are traditionally defined in terms of navigation, commerce, and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the state, and to use the bottom of the navigable waters for anchoring, standing, or other purposes. The public has the same rights in and to tidelands. (Marks v. Whitney (1971) 6 Cal.3d 251, 256.) Should the City later determine that the Fotsch pier is inconsistent with the reasonable needs of the “trust” then law requires the City to compensate Fotsch for its removal

Public Trust In CA Supreme Court case Marks v. Whitney (1971) 6 Cal.3d 251, 259-260, Justice McComb made the following comment for a unanimous court regarding the public uses of tidelands: "There is a growing public recognition that one of the most important public uses of the tidelands -- a use encompassed within the tidelands trust -- is a preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area."

New Design  New Problems New landing artificially creates privacy issue New landing disrupts existing privacy screening New siting and setbacks pushes the pier closes to appellants’ home

Privacy Issue Walk directly down stairs towards water, but required to turn 90 degrees to face appellants’ home and windows. This is a fundamentally flawed design that violates the privacy considerations under the design review findings.

Privacy Issue Cont. The unnecessary landing that direct users to turn and approach the appellants’ home directly results in the loss of a pittosporum tree.

Pittosporum

View From Beach

Primary Living Area

Application Checklist Failure