September 3, 2024
To: Cindy McCormick, Planning Manager
City of Gilroy
Cindy.McCormick@cityofgilroy.org
Re: Ren Fu Villa Residential Project IS/MND
Dear Ms. McCormick,
The Santa Clara Valley Bird Alliance and the Sierra Club Loma Prieta Chapter are environmental organizations that work to protect natural resources and promote the enjoyment of nature. We appreciate the opportunity to comment on the Mitigated Negative Declaration (MND) for the Ren Fu Villa Residential Project and its associated Initial Study (IS).
Project description
The project proposes a Zoning Map amendment (Z 22-03) to rezone the property to RH (Residential Hillside), consistent with the 2040 General Plan Hillside Residential land use designation, and a Tentative Map (TM 22-02) to subdivide the site into 54 lots. Future applications would be submitted to construct a single-family residence on each lot. The project would also include a private club house that would be located on the western side of the site. The project would construct new streets, utility lines, and parking for the proposed residences. The existing creek and pond located in the central portion of the site would be preserved in place.
Our concerns focus on bird collision with windows, as well as lighting, setbacks from the creek and the pond, and the absence of specific requirements for pre-construction surveys for nesting birds.
- Nesting birds
The IS and MND do not discuss nor mitigate the potential impacts of the project on nesting migratory birds. Avoiding harm to nesting birds is required by the Migratory Bird Treaty Act and California Fish and Wildlife. It is also a policy of the Gilroy 2040 General Plan Natural and Cultural Resources Element to avoid or reduce potentially significant impacts to special-status species and nesting birds (NCR 1.8 Native Nesting Bird Protection). The Final EIR for the Gilroy 2040 General Plan includes no mitigation for impacts or ‘take’ of nesting migratory birds that are not special-status species. Therefore, this project should provide mitigation that abides by federal and state laws, and implements General plan policy NCR 1.8 Native Nesting Bird Protection. The potential impact to nesting birds applies to all areas and phases of the project, and is especially concerning when project construction imposes temporary or permanent impacts near the creek or within the creek setback.
Mitigation should require pre-construction surveys of all vegetation and land areas within or adjacent to the project footprint and within a week of ground disturbance on any of the project components, including the club house, project infrastructure, and homes.
- Bird collisions with glass
Bird collision with glass and other elements of the built environment is one of the primary drivers of the decline in bird populations in North America1. This is a potentially cumulative impact and we are pleased to see that the IS includes a discussion of bird collisions.
The IS lists hazardous architectural elements to avoid, including extensive areas of highly reflective or transparent modern-style wall-to-wall glazing on the facades of the proposed residences or club house, freestanding glass handrails, transparent glass building corners, or planted atria. We ask you to include additional see-through situations, such as parallel glass surfaces that allow a line of sight (or a line of flight) through the club house, or through architectural elements of a home.
- Crotch’s Bumble Bee
The IS states that construction and operation of the project would permanently impact 17.66 acres of land cover types that have some potential to be used by Crotch’s bumble bees for foraging and/or nesting. We recognize that the Habitat Agency does not currently list the Crotch’s Bumble Bee as one of its covered species, but is expected to do so in an upcoming update. The project should negotiate adequate compensation for the impact to 17.66 acres of land cover or commit to implementing any future preconstruction survey requirements and fees that will be imposed on similar developments in the future.
- Lighting
The Gilroy 2040 General Plan and the project’s Standards Conditions of Approval aims to reduce the visual impacts of light and glare and to conserve energy, but does not consider the full adverse impacts of artificial outdoor lighting on biological resources and human health. Studies show that artificial light at night attracts birds to areas where they are more likely to collide with glass . Artificial light at night also has a pervasive impact on biological systems, from the cellular2 and organismal level to population level. The impact of artificial light at night is so pervasive that3 it impacts all living beings, including humans, degrading health and inducing disease. The reason for this is that light at night interferes with hormonal controls and biological synchronization, decoupling physiological, behavioral and ecological processes.
We appreciate the requirements of Policy NCR 1.10 which encourages (but does not require) measures to limit light pollution from outdoor sources such as directing outdoor lighting downward and away from wildlife habitat areas. We strongly believe that additional mitigation is required to address the duration, intensity, and correlated color temperature of outdoor light at night.
The disruption to biological systems is higher when the blue light component of the spectrum is pronounced. Today, lighting fixtures are widely available with a Correlated Color Temperature (CCT) of 2700 Kelvin or less. The project should therefore require all outdoor lighting to be of 2700 Kelvin or less. In addition, outdoor lighting should be extinguished after 10PM, allowing only motion sensing technology for security purposes.
- Stream, pond, and riparian ecosystems
Our foremost concern regarding the project impacts are related to the riparian ecosystem and the pond at the center of the project site. The projects:
5.1 The project allows encroachment within the setback. MM BIO-2 proposes to compensate for Direct, Permanent Encroachment into the Riparian Setback by the preparation of a mitigation plan, but there is scant information about this future plan. With no details on the location of “existing riparian corridor elsewhere on the project site” to be enhanced as mitigation, it is impossible to know whether the impact to the riparian ecosystem will be mitigated to a less than significant level. It seems that the riparian vegetation on the project site is already robust and of adequate structure and function, so the additional compensation will have no added value and therefore will not mitigate the permanent impacts. We believe that there is a fair argument to be made that the MND does not mitigate this impact to a less than significant level.
In addition, the MND requires only 3 years of monitoring stating, “The plan shall include at least three years of monitoring to ensure mitigation success”. Due to climate change, extreme weather conditions and fluctuations are impacting long term survival of riparian ecosystems. We ask for 10-year monitoring efforts to ensure that mitigation criteria are sustained.
5.2 the project delineate a 35-ft setback, which is an inadequate protection for the creek and the pond
While not yet mapped as a Santa Clara Valley Habitat Plan (SCVHP) Category 1 stream, the upper Babbs Creek and pond function as Category 1 rather than as Category 2 and are worthy of heightened protections. The known presence of a Habitat Plan covered species, the Western Pond Turtle, and the sufficient water flows to support them and the riparian forest, connected to the mountain watershed and large open habitat of the Santa Cruz Mountains, are qualities of Category 1 rather than Category 2. The SCVHP plan description of the categories is as follows:
“Stream Community Stream communities are grouped into two simplified categories for the purposes of this condition. These categories are based on broad definitions of the biological characteristics of those communities and correspond to the level of habitat quality for covered species and sensitive riparian communities within the study area. Categories for the stream setback requirement are provided below.”
“Category 1. This stream type has sufficient flow to support covered species and riparian habitat. These streams include perennial streams and some intermittent streams. These streams are typically larger than ephemeral drainages and support movement of covered species along the length of the stream. The ability of these streams to also support healthy riparian habitats bolsters the ecological value of the stream. This category also includes all in-channel ponds downstream of reservoirs. These streams are shown in Figure 6-216“
“Category 2. This stream type may not have sufficient flow to support covered species and riparian habitat. These streams include all ephemeral streams and some intermittent stream reaches. These reaches provide minimum support of water-quality functions and primary breeding habitat for covered species. Category 2 streams are not specifically mapped as part of the Habitat Plan. They include both identified streams (named creeks and USGS blueline creeks) that are not classified as Category 1 streams (as shown in Figure 6-2) and other unmapped streams that meet the “Criteria to Verify or Identify a Watercourse as a Stream” as defined below.”
The environmental report states that SCVHP Conditions 1, 3, and 12 will be met for the pond. We believe that this should include adequate protection for the Western Pond Turtle. SCVHP Appendix D, Table 3. Movement Distances for Western Pond Turtle Type Distance/Area Location of Study Citation Home range (aquatic) shows a minimum of 100m from watercourse to upland habitat, up to 400m for nesting sites, and movement to overwintering sites from home range of about 167m.
Overall, the proposed setback of 35 feet will not provide adequate mitigation for impacts to the species that depend on the creek and the pond (including the Western pond turtle) or the Riparian and Stream Function that are needed for these species (Habitat Plan Table 6-6).
- Connectivity for wildlife
The IS page 75 states, “The project site ... lacks direct connectivity (both terrestrial and hydrological) to larger, more diverse riparian corridors in the region. Based on these factors, it does not currently function as a biologically significant movement corridor”. We do not believe this to be accurate. The site continues to provide watercourse and riparian forest connectivity to the larger, more diverse riparian corridors of the Santa Cruz Mountains, with no clear impediment to animal movement across the landscape.
We thank you for the opportunity to comment on the project,
Shani Kleinhaus, Environmental Advocate
Santa Clara Valley Bird Alliance
Mike Ferrera, Chapter Chair
Sierra Club Loma Prieta Chapter
1 https://www.fws.gov/story/threats-birds-collisions-buildings-glass
2 https://www.pnas.org/doi/full/10.1073/pnas.2101666118
3 https://darksky.org/news/artificial-light-at-night-state-of-the-science-2023-report/ and
https://darksky.org/news/artificial-light-at-night-state-of-the-science-2024/ and multiple references regarding animal and human health in this database
https://www.zotero.org/groups/2913367/alan_db/library