Comments on the Inadequacy of the Draft Environmental Impact Report (DEIR) for "Congregation Beth El Synagogue and School, 1301 Oxford Street, Berkeley"

submitted on August 30, 2000 by the Live Oak Codornices Creek Neighborhood Association (c/o Juliet Lamont, 2249 Glen Ave., Berkeley, CA 94709)

The DEIR released in July 2000, for the "Congregation Beth El Synagogue and School, 1301 Oxford Street, Berkeley" is inadequate. The DEIR fails to adequately identify, analyze, and mitigate for significant impacts, or to explore a reasonable range of alternatives to the project as required by law. The Draft presents inaccurate data, omits key information, draws unsupported conclusions, recommends unrealistic and unenforceable mitigation measures, and summarily dismisses feasible alternatives Ð all of which serve to minimize or obscure the true ecological and community impacts of the proposed development.

The developer, Congregation Beth El (CBE), proposes to build a massive, 35,000 square foot structure on the south side of the property (including over the landmark Byrne gardens and Byrne mansion site). In addition the plan includes 13,000 square feet of roadway and parking lot alongside and directly over the culverted portion of Codornices Creek on the northeast section of the property, adjacent to Berryman Path.

The project overwhelms one of Berkeley's most significant historical landmarks by its sheer scale and projected level of activity, destroys a vital link along the unique Codornices Creek greenbelt corridor, permanently seals off a daylightable section of Codornices Creek, imperils steelhead trout habitat, both downstream and through the removal of any possibility for future upstream migration, and finally, dumps the bulk of its traffic, parking, and noise impacts on the surrounding neighborhood. The proposed project is detrimental to the neighborhood, and to the larger community.

It is not sufficient for the developer to address only one or two of these impacts and dismiss the rest; this site is significant, unique, and irreplaceable across a range of areas, all of which are equally important. CEQA law (and, we might add, responsible community planning), requires that all significant impacts be identified and mitigated, either through specific mitigation measures, or project alternatives (including project relocation altogether). If it is not possible to mitigate for significant environmental impacts, the project should not be approved.

Moreover, zoning is one of the key mechanisms through which we try to achieve our goals of planning for livable places, for communities, and for our environment. This plan is inappropriate for this site and neighborhood, and will require substantial modification if it is to address its many ecological, historical, and community impacts. The Draft EIR, which needs to inform future discussions and decisions, is inadequate, and requires substantial revision.

We are formally requesting that all issues we have identified as being flawed in this DEIR - presented in the following pages of this document - be fully addressed (as required by law), and that relevant new data be developed or presented in the Final EIR (as required by law), to correct the Draft's many inaccuracies and weaknesses.

Summary of DEIR Inadequacies

1. The Alternatives discussion does not meet several basic CEQA requirements, including the requirement that the DEIR describe a "reasonable range of feasible alternatives to the project or the project location" (CEQA Deskbook, Bass et al, Solano Press Books, 1999, p.107), and that "the discussion of alternatives must focus on those alternatives that are capable of avoiding or substantially lessening the significant environmental effects of a project, even if the alternative could impede to some degree the attainment of all the project objectives or would be more costly." (CEQA Deskbook, p. 108; CEQA Guidelines sec. 15126.6-b)
   • a. Feasible alternatives are summarily dismissed ("not reviewed further") without proper justification through data or information presented, even when these alternatives would clearly reduce significant impacts of the project. Two clear examples of the unsupported dismissal of alternatives in this DEIR are those of the "Split Site" Alternative, and the "Creek Daylighting" Alternative, both of which would significantly reduce major impacts of the project (e.g. building scale, preservation of landmark areas on-site, paving over of the creek corridor, and traffic/parking).
     
     The DEIR claims that the Split Site alternative "could not be feasibly implemented due to the loss of funds which would otherwise be received Éthrough the sale of the existing facility." (DEIR, p. 6.0-23) The DEIR does not present the financial data to back that claim (which, by CEQA law, it must do if that is the basis or test for an alternatives dismissal). Nor does the DEIR discuss the obvious contradiction in this statement, in that a split site (with a smaller building - e.g. just a sanctuary or just classrooms) would require much less costly development at the new site, since this new development would be half the size (or less) of the proposed project. Therefore, the split site alternative would presumably require only half the funds (or less) of the currently proposed project. Given that approximately half (or less) of the new site's costs are being covered by the sale of the old site (according to CBE figures which are not presented in the DEIR), the developer would be no worse off financially with the split site alternative than under the original proposal - and, in fact, may end up in a better financial position, depending upon the size/cost of the smaller alternative. Finally, as previously noted, increased cost of an alternative is not sufficient reason to dismiss the alternative, if that alternative mitigates for significant environmental impacts (CEQA Guidelines sec. 15126.6(b) ).

     The "Creek Daylighting" Alternative, while being acknowledged as providing "maximum environmental benefits for the creek and...this channel configuration would also be suitable for fish passage" (DEIR, p. 6.0-25), is dismissed because the alternative "would meet some, but not all, of the proponent's objectives for the proposed project." (DEIR, p. 6.0-27). As noted above, it is not necessary that an alternative meet all of the project proponent's objectives to be described or adopted, and thus this is insufficient reason, on its own, to dismiss this alternative. Moreover, the DEIR's assumptions in reaching the conclusion of the non-attainment of proponent objectives are noticeably inflexible, even when other options clearly exist (p. 6.0-26). For example, the DEIR assumes that the "synagogue and school building would remain essentially the same." There is no need to assume this; the alternative could explore a scaled-back building facility as part of this alternative; and/or it could link this alternative with the Split Site alternative mentioned above, or for that matter, with the "Underground Parking " alternative (which is dismissed for unsupported reasons as well, as discussed later in this document). The other assumptions are equally biased against consideration of this alternative; an access road through the site certainly could be constructed, although the overall building and site design would have to change. Site design/plan changes are a standard aspect of alternatives discussions (and again, required by law if they are part of a "reasonable range" of alternatives), even if some of the proponent's objectives are not met, or the cost of the change is higher than the original proposal. There is absolutely no good reason, either under CEQA or under common sense guidelines, why site design changes cannot be considered or presented for this project.

   • b. Several feasible, and appropriate, alternatives are not presented or discussed at all, namely:
     
     • a reduced-scale project (this is a standard Alternatives analysis, included in most DEIRs); and
       
     • a "full parking" alternative, which includes underground parking (where parking levels actually meet more comparable standards for this project, of 100-plus on-site spaces, as discussed later in this document)
       Again, this defies the "reasonable range" analysis requirement of CEQA; both of these alternatives comprise logical, reasonable, and feasible alternatives to the project, and reduce significant impacts of the project. Therefore, they should be considered and fully analyzed in the DEIR.
       
     
     
   • c. The DEIR fails to describe a reasonable analysis of an alternative site for the project, which includes looking at other cities. The statement made by the City of Berkeley, and Pacific Municipal Consultants, at the Zoning Adjustments Board hearing on August 10, 2000, claiming that under CEQA, the City cannot require looking at other cities for alternative site locations (and in fact is not allowed to look at these), shows a distinct lack of knowledge of CEQA law. This statement is inaccurate. In fact, in one of the landmark cases defining CEQA law (Citizens of Goleta Valley v. Board of Supervisors, 1990), the Supreme Court "Énoted that the existence of alternative sites outside the Lead Agency's jurisdiction does not necessarily preclude them from consideration in an EIR" (CEQA Deskbook, p. 116). If alternative sites outside the jurisdiction of the Lead Agency (which, for the DEIR under review, is the City of Berkeley) offer the potential to significantly lessen the impacts of a project, then it is reasonable to consider these sites, and in some cases, necessary (CEQA Deskbook, p.111). In the case of the 1301 Oxford Street project, since a large percentage of the congregation members actually live in other cities and jurisdictions (noticeably Albany and Kensington), it is perfectly reasonable to consider sites in those cities, particularly given the highly constrained nature of the 1301 Oxford site, and the extent of the impacts on this site as presented by the proposed project. Finally, the other criteria used by the DEIR to define alternative site locations - the criteria that the sites could not be "in areas which were already served by other Reform Synagogues" (DEIR pp. 6.0-29 and 6.0-30) - is artificially and overtly constraining alternative site selection. There are other Reform congregations in the neighborhood where Beth El currently operates; there is no reason this should be a constraining factor in searching for alternative project sites.
     
     
   • d. The DEIR rejects the environmentally-superior "Underground Parking" Alternative, based on unsupported conclusions regarding financial constraints of the project proponent, and inaccurate and/or unsupported statements regarding the cost and nature of underground parking development. (These issues are discussed in more detail later in this document). Again, under CEQA law, if financial constraints are used as the test of the rejection of an alternative which would substantially lessen impacts of the project (which this alternative does), a full financial analysis must be presented, and the financial data and objectives must be included as part of the "Project Objective" itself. The DEIR fails to present any of this information. Equally importantly, increased cost of an alternative is not sufficient reason to dismiss the alternative, if that alternative mitigates for significant environmental impacts (CEQA Guidelines sec. 15126.6b). Again, since this alternative does mitigate for several significant environmental impacts, under CEQA law it cannot be rejected for the reasons the DEIR states.
     
     The flawed alternatives section is particularly relevant to this project, because alternatives are almost certainly going to be a major focus of upcoming discussions and decisions. Yet this Draft EIR completely fails as a document which will allow for informed discussion of key environmental impacts and their potential solutions.

2. The Landmarks section of the DEIR fails to identify the 1301 Oxford Street site as a historic resource ("historically significant"), and to subsequently identify and analyze "substantial adverse changes" to this resource caused by the project, and finally, to mitigate for the significant impacts created by the project. Moreover, the DEIR fails to present and analyze project alternatives that would mitigate for these significant environmental impacts.
   • a. The DEIR incorrectly concludes, as its key historical resources finding, that the 1301 Oxford Street site is not a historical resource, due to its removal from the Federal Registry. This conclusion is reached in contradiction to findings and decisions of the Berkeley Landmarks Preservation Commission, and despite the site's continued listing as a State and local landmark. The DEIR assumes that the Federal listing is the only one that is relevant in terms of the site's definition as a historical resource, which is in direct contradiction to CEQA's guidelines, which explicitly includes both state and local listings as defining the "historical significance" of a resource (CEQA Deskbook, 1999, pp. 103-4; CEQA Guidelines sec. 15064.5(a) ). Moreover, CEQA specifically states that even a resource that is "eligible" for listing is to be considered historically significant (CEQA Deskbook, p.103). In sum, the 1301 Oxford site meets all of CEQA's guidelines for the definition of a "historical resource," yet the DEIR fails to identify it as such. A number of other references in the DEIR in sections other than the "Historic Resources" sections are incorrect as a result of this fundamental flaw.

     The DEIR is also inadequate on a number of other counts related to Landmarks issues, including:

   • b. Remnants of the Byrne presence on the property should be preserved. A full archeological excavation (UCB Urban Archeology Dept) should be implemented, prior to any further development or approval of any further development on-site, to identify and preserve artifacts on the site. This information should be presented in the Final EIR, to inform any further discussions and decisions about this site.

   • c. The DEIR is inadequate because it does not include a variety items such as: better investigation of the site's archaeological potential, design of the project building/structures as they relate to the site's historical context, impact of walls on the value of this historical site, including Berryman path, and absence of Landmarks application documents. This information, and accompanying full analysis, should be added to the Final EIR.

   • d. The DEIR does not include the Landmarks Preservation Commission decision in 1992 reaffirming the landmark designation of the site, and its statement that the whole northern part of the 1301 Oxford Street property should be preserved. We are reminded of Susan Wengraf's leadership at that time, to protect and restore the historic Byrne property and to limit the Chinese Alliance Church to a very modest expansion in 1993. The 1993 Zoning Adjustments Board decision about this expansion specifically prohibited any development (specifically, a parking lot) on the north section of the property, including the area where Congregation Beth El now plans to put its parking lot and roadway. A recommendation memo to the ZAB from the "Current Planning Staff" dated 10/26/92 said:
     "The LPC is concerned about the creek, large trees, the actual site of the former Byrne Mansion, and areas of natural vegetation which have not been built upon in recent history and are a reminder of the early farm days in Berkeley." It goes on to say, "Recognition of the historical importance of the site should be provided in the form of a plaque at the exact location of the former mansion. Finally, the applicant should be required to submit a master plan for the site prior to submission of further development proposals to be reviewed by ZAB. The plan should include replanting of trees to replace major trees, particularly elms which were removed because of disease, and protection of the creek." (italics added)

   • e. The DEIR fails to discuss inequity in land use decisions related to this site. For the city to effectively handle its diversity it must treat groups in an equitable fashion. There is no justification for treating the current CBE application less restrictively than the Chinese Alliance Church in 1993, particularly since traffic and parking problems have only worsened since that time, while concern over creek daylighting, and our rapidly disappearing history, has heightened.

   • f. The DEIR fails to acknowledge the historic significance of the entire 1301 Oxford Street site--i.e. the land--as opposed to just the Byrne house. The property is landmarked as a whole because of its reflection of an important era in Berkeley's history, and its significance as one of the first settlements in this area. Codornices Creek was surely a key feature in determining both the siting of the Byrne mansion, and of the farm as a whole.

     In 1993, the City of Berkeley issued a Use Permit to the East Bay Chinese Alliance Church, for a small expansion of their facility. Key issues brought up by the Landmarks Preservation Commission (LPC) at that time centered on concerns over the proposed expansion's impact on the site's historical significance, and in particular, on the landmark Byrne gardens, on the area which had been the location of the Byrne mansion, on historical artifacts, and on the "preservation of the natural areas of the site." (October 26, 1992 quote from the Zoning Adjustment Board's statement about LPC's concerns)

     The "solution" to these concerns was to require (and subsequently approve) a building design and site plan that: 1) respected what were thought to be the landmark garden boundaries and setback; 2) that incorporated architectural features in the new classroom building that reflected features of the original Byrne mansion; and 3) ensured the full protection of the northern portion of the property.

     The fact that such great care and attention was placed on preserving and protecting these significant historical features of the site should guide decisions about the property today. The precedent for how to address these issues was certainly set in 1993. We feel that the LPC today should respect that precedent, and should build on those earlier concerns and recommendations to give the site its true historical due.

     The proposed development at 1301 Oxford project respects none of those historical concerns, other than a passing nod at the site's significance in its proposal to put in a plaque. In fact, the Draft EIR aggressively dismisses any notion of the site as possessing any true landmark significance. This is simply inaccurate, and in complete contradiction to the rich history contained in the site's land and location.

     One of the key tasks required now is describing in better detail, and with richer context, the site's historical layout and featuresÐ for example, defining the exact boundaries of the Byrne gardens, and checking for additional archaeological artifacts on-site. Moreover, large portions of the site's history have been downplayed, or simply ignored (for example, its relation to the Berryman era, and the site's significance as the first home of a racially integrated family in Berkeley). Any development proposed, and considered for approval should absolutely reflect the many historical values embedded in this site, as the LPC so rigorously required earlier this decade.

3. The Geology and Soils/Hydrology and Water Quality Sections of the DEIR, as well as the Biological Resources section, fail to identify and mitigate for significant impacts to Codornices Creek, to steelhead trout habitat (both existing and potential), to water quality in general, to creek bank stability, to the loss of open space and dissection of a rare greenbelt, and to the relation of the project's impacts to the City of Berkeley's regulations.
   • a. The Draft EIR is inadequate because it fails to accurately discuss and identify significant environmental impacts associated with the project, as it relates to the Berkeley Creek Ordinance. Congregation Beth El plans to put a parking lot and driveway over the culverted section of Codornices Creek, which is flagrantly defiant of the spirit of the Berkeley Creek Ordinance, which states:
     
     "it is in the interest of the City of Berkeley to encourage the removal of culverts and channels, prevent channel riprapping, and to restore natural watercourses whenever safely possible." (17.08.020.H.)

     While the DEIR acknowledges this directive, (6.0-25), the DEIR findings, like the CBE application, completely ignore the clear intent of this section of the Berkeley Creek Ordinance, which is to protect creeks from further development, and to restore them whenever possible. In the Waterways Restoration Institute (WRI) creek study, commissioned by the developer and included in the Technical Appendices, Ann Riley of WRI clearly states that:

     "Codornices Creek is the city's most Ôopen' or natural creek system and has been the focus of five coordinated restoration projects in its upper and lower reaches."

     She goes on to state that the full daylighting option at this site (Option #4):

     "Éwould provide maximum environmental benefits for the creek and would allow for a more consistent and stable channel grade to be established between Oxford and Spruce Streets. This channel would also be suitable for fish passage."

     If the opportunity to remove the culvert and restore the creek (as described in the Berkeley Creek Ordinance) is not seriously considered, or required, at this site, which is confirmed by experts to present one of the best daylighting opportunities available, as well as being one of the last, easily daylightable green spaces in the City, then what is the purpose of the Creek Ordinance at all?

     The DEIR must thoroughly investigate this alternative. The fact that it dismisses this alternative as being irrelevant is a serious flaw, in that it fails to address a key zoning issue that is applicable to this site, and subsequently fails to identify significant environmental impacts.

   • b. The DEIR is inadequate because it neglects to thoroughly investigate the issue of the existing culvert which was improperly, and quite possibly illegally installed. The person responsible for the culvert installation did so without permission of the owners at the time. Judging from the shape of the western opening which matches the opening of the Oxford Street culvert, the intent was to run the culvert all the way through the property right up to Oxford Street. The work was stopped when it became known that the owners did not approve of it. Codornices Creek was 100% not culverted until after 1951 according to Sanford maps in the DEIR (pp. 4.7-3, 4, and 5). The consultants' discussion of how and when the culverting occurred at this site is based on a single personal communication, which conveys "anecdotal" information about this issue (Questa Engineering Report, pp. 2-3). If this is the test of evidence, then certainly at least as much "anecdotal" evidence exists stating that the culvert was installed illegally. The fact that this is not even mentioned in the Draft EIR is a serious omission. This latter viewpoint would suggest that the creek should never have been culverted and that the current developer, CBE, should not be permitted to put a parking lot and driveway over Codornices Creek. Moreover, it suggests that the proper remedy would be to restore the creek to its pre-culverted, natural state.

   • c. The DEIR is inadequate because it fails to discuss the immense value that a restored and daylighted creek would bring both to the community and to Congregation Beth El, and fails to present alternatives that could achieve this. Other architects have suggested a number of innovative ways to accomplish this through a more sensitive site plan, as have creek experts such as Ann Riley (again, in her report to CBE), all of which suggests that there are a much wider, and more appropriate, range of "environmentally superior" alternatives than the DEIR presents, or claims are even feasible.

   • d. The DEIR is inadequate because it fails to fully identify or discuss significant impacts on the federally listed threatened species, Steelhead trout. There is documented evidence that spawning and rearing population levels of steelhead trout are present in Codornices Creek. Impact 4.6-8 (p. 2.0-25) states that increased rate of stormwater runoff would be detrimental to fish downstream due to pollutants and increased sediment in the creek. The DEIR is misleading and misdirected by stating in the "Proposed Mitigation Measures" for this impact that there is beneficial impact in trout habitat and reduced erosion from the paltry restoration proposed by the developer for a small section of the creek. This leaves the downstream impact unmitigated.

   • e. There is an ambiguity in "Impact 4.5-6" which states that the proposed project would increase the amount of suburban non-point pollutants, thus affecting the quality of water in the creek and San Francisco Bay. It states that this is a "less than significant" impact and then goes on to detail some major and costly mitigations that would imply that the impact is significant. Even if the mitigation measure MM 4.5-5 is implemented to reduce non-point source pollutants, Table 4.5-F shows that 20% of total petroleum hydrocarbons and 50% of oil and grease will still runoff or percolate into Codornices Creek (DEIR pp. 4.5-23,24), suggesting that the mitigation is inadequate. Moreover, the DEIR states that for this mitigation to work, "The applicant shall provide for long-term maintenance and replacement of any filters according to the manufacturer's specifications and standards." This unlikely to be enforced and therefore is an unacceptable mitigation.

   • f. The DEIR fails to present water quality impact mitigations that are clearly measurable and enforceable. Numerous of the mitigations presented for water quality issues contain the wording "where possible," "if possible," etc. Under CEQA, mitigations presented must be feasible and enforceable; the Draft EIR does not adequately present water quality impact mitigations that meet these criteria.

   • g. The Draft EIR fails to actually delineate, in the main text (or in the Technical Appendices) the proposed design for the bank stabilization of the open section of Codornices Creek. Not only does this throw into question any of the impacts identified, and the adequacy of associated mitigation measures (since the reader cannot actually ascertain what the true impacts will be), but the reader is required to pore through technical appendices just to find a general "concept plan" for the creek stabilization. CEQA requires that project elements be presented clearly and accessibly; potential water quality impacts are a very significant component of the evaluation of this project; the DEIR is inadequate in failing to make that evaluation possible.

   • h. The DEIR is contradictory with regard to fish migration in Codornices Creek. First it states that barriers to upstream migration include a 500 foot culvert, a 6 foot waterfall, and a metal mesh fencing. It goes on to say that "..under some circumstances, trout may make the journey through a long dark culvert," which would imply that, in fact, fish can cross this "barrier," and hence travel to existing upstream spawning habitat in Codornices Creek. The other two barriers could be relatively easily removed at very little cost.

   • i. The DEIR ignored options 3 and 4 of the Waterways Restoration Institute Creek report, and failed to present or analyze any alternative which includes those options. CBE chose a minimal restoration option, which Ann Riley said did the LEAST for the overall health of the creek.

     The DEIR fails to present creek restoration alternatives other than the Waterways Restoration Institute's. For example, it is possible that the creek bed could be raised and or cascaded, possibly even leaving the culvert in place to handle excessive water flow in storms.

4. The Parking and Traffic analyses in the DEIR are significantly flawed, presenting understated and underestimated parking demand and availability data, choosing completely inappropriate comparison sites for determining on-site parking requirements, choosing questionable "significance criteria" and thresholds, recommending completely unrealistic and/or unenforceable mitigation measures, and failing to adequately describe and analyze project alternatives that would fully address these impacts.
   • a. The parking study is flawed.
     
     • Parking was checked at 9:30 AM, but not at 10:30 AM when JCC is functioning.
       
     • Parking was studied Friday and Saturday mornings, but did not mention Saturday night parties.
       
     • There was nothing about the relationship between parking and noise.

   • b. The key premise of Congregation Beth El's parking plan is to satisfy the bulk of its parking needs by having members park in front of neighbors' homes, and to take up all available parking on surrounding streets, yet this is not identified as a significant impact. In fact, the DEIR admits that "ÉThe proposed project would intensify the land use activities on the project site, and could cause INCONVENIENCES, such as a shortage of available parking for residential during peak uses of the synagogue/religious school." (p. 4.1-14). The only instances it elucidates are during "high holidays" (DEIR p. 4.1-16), and Camp Kee Tov (pp.4.1-14, 15). The DEIR is inadequate in overlooking events such as bar and bas mitzvahs which are typically for 150-200 people and would happen nearly every weekend.

     Other high-use activities not treated in the DEIR are: daily religious school (over 200 people on several days per week from September through May), Midrasha (over 200 teens on Sundays 9:30 to noon, 35-40 weeks per year), Chanukah Bazaar (about 300 people in second or 3rd week of Dec), and Purim/Simchas Torah event (about 250 people in March or April). Add these to the High Holidays and Camp Keetov high-use times and one sees a pattern that will definitely be "detrimental to the immediate neighborhood."

     The conclusion that saturating the neighborhood's available parking with a single private development's parking needs is "less than significant" is patently wrong, and is not supported by any regulatory data or premises. The significance criteria used by the consultants to draw this conclusion are inappropriate, and simply do not take long-term community planning issues into account.

   • c. The DEIR is completely inadequate in its choice of comparison projects for on-site parking requirements. It refers to four comparison projects (Virginia and Milvia; the JCC, which uses 30 spaces; St. Paul's, which has 6 parking spaces, but is not in a residential area; and Temple Beth Israel, an Orthodox Temple at Bancroft and Jefferson, which uses 10-15 parking spaces on the street). These are completely inadequate and inappropriate comparison sites, both because of the sizes of the respective congregations/memberships, and because of the program levels. The DEIR should include comparisons with institutions that are of a similar size and activity level to CBE's proposed programs. Obvious comparisons in the area that should be included and analyzed in Final EIR are:
     
     • St. Mary's Magdalen (roughly 100 on-site spaces, with on-site weekday school programs and weekend services);
       
     • Unitarian Universalist Church of Berkeley at 1 Lawson Road, Kensington. This is a good example of a Berkeley church that grew too big and had to move elsewhere. It used to be near the University of California. There are 600 members. This church has extensive on-site parking spaces which are already used to the limit; and
       
     • Other recent, large institutional developments such as UC Berkeley facilities, which the City of Berkeley regularly criticizes for not providing adequate parking.

     Analyses of comparison projects should include comparisons of membership size (using the same units, families, that the project proponent does), number of on-site parking spaces, level of programs and activities during the weekdays, weeknights, and weekends, the location of the institutions' members (i.e. where they live. Also relevant would be other facilities or institutions nearby that demand high parking, as does the Jewish Community Center near the 1301 site, or Live Oak Park, adjacent to the 1301 site, or the future occupant of the congregation's current Vine/Arch site.

   • d. The Draft EIR fails to present or analyze minimum parking guidelines set by nearby cities, as a potential basis for setting minimum parking guidelines for the CBE site. Example guidelines have minimum parking allotments related to number of seats in the sanctuary, e.g. one space for every 3-4 seats.

   • e. The Draft EIR fails to present or analyze the City of Berkeley's commercial zoning requirements, as a potential basis for minimum parking guidelines at the CBE site.

   • f. The Draft EIR fails to present, analyze, or use one of the most reasonable points of comparison: the standard set for the 1301 Oxford site by the City of Berkeley's Zoning Adjustments Board in 1992 when the City set parking restrictions for approval of the previous site owner's modest expansion plans. November 2, 1992, the City staff sent a memo to LPC noting the design concerns identified in the ZAB staff report, which are the following:

     "

     1. Development should be confined to the area shown on the plan. Further development, including the "future parking" area, should be the subject of another application.
        
     2. Landscaping of the parking area should provide screening of cars and provide continuity with the surrounding natural landscape.
        
     3. All specimen trees should be preserved and protected.
        
     4. The creek should be protected in the hope that it may someday be restored."

     As mentioned earlier, the City Staff wrote a memo to ZAB on October 26, 1992 stating that the LPC was on record as being "concerned about the creek, large trees, the actual site of the Byrne Mansion, and areas of natural vegetation which have not been built upon in recent history and are a reminder of the early farm days in Berkeley." The LPC also recommended that: "Exposed sections of the creek should be restored in keeping with Berkeley's Creek Restoration Ordinance and consideration be given to restoration of the section of the creek which has been covered over." In addition the Chinese Church had a notation for "future parking" on the northeast quadrant of the site" which coincidentally where Beth El plans its parking lot and road. The City Staff recommended that the "future parking" not be included in the approval of their plan.

     The Chinese Church had plans for total building structures of 8,000 square feet including a modest classroom building with features of the Byrne Mansion. It was to be used only on Friday evenings and weekends. Although the Chinese Church had a congregation about one-tenth the size of Temple Beth El, parking for 26 cars were to be on the site and the northern half of the property was to remain untouched. By this standard, CBE should provide at least 100 on-site parking spaces and leave the northern half of the property untouched. The concerns about development on this site were valid then and are even more valid today. Eight years later, Berkeley is more dense and crowded with more traffic and congestion, which would suggest even more stringent on-site parking requirements for the current development plan. There are more concerns now than ever for preservation of open space and greenbelt, creek preservation and restoration, and remembering Berkeley's heritage.
     In summary, the following precedents were established in the 1990's:
     

     1. 1301 Oxford is an historic landmark site.
        
     2. All specimen trees should be preserved and protected.
        
     3. The entire creek should be protected in the hope that it may someday be restored.
        
     4. "Future parking" on the northeast quadrant of the site should not be included in approval of the permit.
        
     5. 26 parking spaces were required for permit approval for a smaller congregation (one tenth the size of the current applicant) with less activity and smaller building.

   • g. The DEIR ignores cumulative effects on traffic and parking demand when JCC, Live Oak Park, Berkeley Arts Center, and other nearby churches and Temple Beth El activities occur at the same time. It appears that none of these institutions were contacted for input or data relevant to the proposed project.

   • h. The DEIR overlooks the fact that the parking study did not take into account the effect of the project's added red curbing in reducing number of parking spaces for the project and for neighbors.

   • i. The DEIR inadequately analyzed, and subsequently dismissed, the "Project Alternative: Underground Parking" (p. 6.0-17). It in effect discounts this alternative based on the fact that "the applicant reports that cost of providing this type of parking is approximately $30,000 per space." This assertion is unsupported. Underground parking has been added to other projects in Berkeley for much less than 30,000 dollars per space. If this rather high cost is to be claimed in the DEIR, it must be documented in the DEIR.

     The DEIR also failed to present financial information that would support the claim that the Underground Parking Alternative does not meet the financial objectives of the developer (CBE). Under CEQA law, if financial criteria are used as a test to discuss an alternative's feasibility, full financial records of the developer must be presented in the DEIR itself, to support that claim. Moreover, under CEQA, the cost of an alternative that mitigates environmental impacts cannot be used as the basis for dismissing that alternative, even if the cost of the alternative is higher than the cost of the proposed project (CEQA Guidelines sec. 15126.6(b)

     The draft EIR states that "trips in and out of the [parking] structure would be concentrated in one driveway on Oxford Street," but this assumption is unjustified. Underground parking could be designed with a flow from Oxford to Spruce Street as in the current project, as in a plan created by Berkeley Design Advocates.

     The draft EIR claims that the supposed million dollar cost of 35 underground parking spaces would increase the project's total cost by about 25 percent. The stated 4 million dollar project cost is unsupported: there is no information on the cost of the project anywhere in the DEIR. Not only is 4 million dollar cost unsupported, it is also untrue: the projected cost of the development is far greater. Based on previous statements by the developer, we believe that the cost is more like 8 to 10 million dollars, so 1 million dollars for parking would be a manageable 10 to 12 percent increase. But -- and this is the point -- the draft EIR does not present data that allows that to be determined.

     The DEIR concludes that the underground parking alternative would not allow "a project which is within the financial means of the congregation." This conclusion is unsupported: there is no documentation on the financial means of the congregation. But it's virtually impossible that a roughly 10% increase in the project's cost would put the project out of reach of the congregation.

     So, the alternatives analysis contains unjustified assumptions, unsupported assertions, and false information, leading to the incorrect conclusion that underground parking would place the project outside the financial means of the congregation.

     The DEIR also fails to present a comparison with the cost of the proposed parking which is covering the Codornices Creek corridor.

     The DEIR does not adequately explore possibilities for less expensive alternatives that have been suggested, which accomplish the same environmental benefits (leaving creek corridor unpaved) as underground parking. The major benefits stated for this alternative (reduction of stormwater runoff, total elimination of entry of pollutants into Codornices Creek, and biological resources) warrant more in-depth consideration of this alternative.

   • j. The DEIR's suggestions for mitigating traffic impacts are entirely unrealistic and unenforceable. Mitigations such as those asking congregants to arrive in a certain order are not acceptable because they are simply not enforceable by the City of Berkeley. If someone decides to drop off little Timmy 10 minutes before school instead of 30, what will be done to prevent that? The DEIR admits that without mitigation, school and camp traffic will be detrimental, but does not suggest any legitimate mitigation for that.

   • k. The DEIR ignores recurrent and persistent problems at CBE's current site at Arch and Vine, which overwhelm the neighborhood in terms of traffic and parking.

   • l. The DEIR is inadequate in its treatment of Camp Kee Tov conditions. The DEIR states that "the levels of activity, noise, and traffic would exceed those which would reasonably be expected to occur on a summer weekday at a synagogue or nursery school, resulting in potential annoyance of inconvenience to persons in the neighborhood." Yet the DEIR fails to present any mitigations for this impact, or to fully discuss the significance of the impact itself.

   • m. The DEIR lists "Conditions of Approval" (CoA) which are contrary to stated synagogue program goals, and are therefore unrealistic, infeasible, and unenforceable. At CBE's current site, 6 large school buses currently operate to serve camp Kee Tov. All are parked simultaneously for pickup, and this need will not likely be reduced, despite the DEIR recommended Condition of Approval to limiting operations of 4 buses.

   • n. Use of a remote site staging area and timing of dropoffs cannot be routinely monitored by the City of Berkeley. Congregation Beth El's history of non-compliance with use permits is well-known to the neighborhood, as is its intransigence in dealing with traffic, noise, and parking impacts at its current site. Therefore, it is completely unrealistic and inappropriate to suggest that CBE will be its own monitor or enforcer in these issues.

   • o. There is a discrepancy in the DEIR. On page 4.2-5, the conclusion is that "the Fehr and Peers report can be considered as a reasonable approximation to actual conditions." This is in contradiction to the evidence of "construction activity in the area at the time of the 1999 counts, which diverted traffic from the Oxford/Eunice intersection and to the Oxford Rose intersection." The error is compounded, since it ignores the fact that there was diversion at Los Angeles and Oxford which diverted traffic from the area altogether.

5. The DEIR fails to adequately analyze the impacts of the project's building scale on the surrounding neighborhood, both in terms of its detriment to the neighborhood community through aesthetics and scale, and in terms of reasonable, foreseeable uses of a building of that scale. The DEIR fails to include relevant data about the level of activity and programs that will be, and could be, conducted at the site, even though CEQA's "rule of reason" clearly mandates that the "requirement for forecastingÉ[is] that which could reasonably be expected under the circumstances," (CEQA Guidelines sec. 15144, and that "an agency must use its best efforts to find out and disclose all that it reasonably can" (CEQA Guidelines sec. 15144).
   • a. The figures the DEIR presents for projected numbers of attendees, activity, and program levels on-site are not consistent with the new facility's capacities and with past growth of the project proponent's membership. The DEIR takes the figures presented by the project proponent for projected programs and activity levels, as well as membership size, as being entirely accurate and unquestionable, and proceeds to base its entire analysis of necessary on-site parking, traffic mitigations, noise impacts, etc., on these figures.

     The proposed schedule of activities listed in the DEIR (pp.3.0-37 to 3.0-38) indicates that on weekdays, total activity on-site will include: nursery school (3 classrooms) from 9 am -3 pm; religious school (using some/all of 11 classrooms) from 4-6 pm; two evening meetings per week, from 7:30-9:30; Friday evening service from 7:30 pm - 9:30 pm; and the Saturday religious services, school, and worship activities, running from 9:30 am - 1 pm. While this may already seem busy, it is also notable for the lack of use of many facilities during many days. In other words, the project proponent is stating that it will build 14 classrooms (to the tune of several million dollars), eleven of which will only be used regularly for about 3 hours per day.

     A reasonable analysis of foreseeable uses of this facility must include studying the impacts of a much higher level of use, which can be fully expected at this site, when one considers:

     1. the congregation's growth patterns in the past (membership doubling every fourteen years or so); and
     2. the availability of space (35,000 square-foot facility) in which to grow into at the new site. To meet the CEQA requirement of forecasting "what could reasonably be expectedÉ" the DEIR must include analysis of higher levels of membership than the project proponent has presented, and levels of activity that match, or come close to, the actual capacity of the new facility. This is a standard type of analysis when looking at facility size and use projections; there is absolutely no justification for excluding this project from such an analysis.

     If, indeed, the figures are as the project proponent has presented (and we know for a fact they are not - see item below), then there would be no need for a 35,000 square foot facility, with numerous classrooms going unused for most of the day. In this case, a reduced-scale project alternative would not only reduce significant environmental impacts on-site, but it would also meet all of the project proponent's objectives, and would therefore be a vastly preferable alternative to the current plan.

     Finally, membership growth can never be guaranteed to be contained at the new site, since monitoring or enforcing limits to membership growth for a religious institution are simply unenforceable, both by the city and by the project proponent itself. It is absolutely untenable to suggest that a religious institution will turn prospective members away from its doors, because it is "already too big," or that the City of Berkeley will require the congregation to do so. Therefore, a reasonable analysis of future uses and impacts on the site must include a full evaluation of growth well beyond the projected 750 families.

   • b. The figures the DEIR presents for projected activity levels and programs are vastly understated, and do not include extensive programs, social gatherings, and activities which are known to be planned, or which can reasonably be foreseen to occur at the new site.

     The DEIR does not mention current activities including large gatherings such as the Hanukkah bazaar, Tashlich, and the Purim Carnival; memorial services, which Beth El lately began announcing to members via email; and late night activities, such as late-night Torah study and kids' overnights

     The DEIR seriously understates the size of some programs. For example, the Sunday Midrasha program for teens is listed as having attendance of 110. But Midrasha enrollment has grown 37% in two years, to more than 260 in fall 1999. Most of those enrolled attend.

     The Draft EIR does not take into account likely future activities. These include:
     

     • rentals to other groups, which Beth El welcomed as long as it had space in its old building.
       
     • rentals to congregants for private events, which congregants have expressed desire for.
       
     • large events drawing together several congregations (e.g. Simchat Torah). Beth El's new facility will make it a logical place for such gatherings.
       
     • evening bar- and bat-mitzvah parties (large Saturday and Sunday evening dance parties with disc jockeys for 13 years olds and often for their parents and parents' adult friends). Congregation leaders have said they plan to have such parties, and about 80% of parents polled said they would gladly hold these parties at the new facility.
       
     • adult evening social activities (such as dancing), which congregants have expressed a desire for.
       
     • weddings, another use planners and congregants have expressed desire for.
       
     • after-school care, vacation day care, and other expanded youth activities, which the Synagogue said in its newsletter that it planned at the new site (see report in the Beth El Builder on the Feb. 2, 1999 Board meeting).
       
     • a retail gift shop, which the synagogue operated until space needs forced it into a few boxes.

   • c. The City's Zoning Ordinance states that one of the purposes of the R-1 district are to "permit the construction of community facilities such as places for religious assembly... which are designed to serve the local population when such will not be detrimental to the immediate neighborhood." The DEIR is flawed because it does not acknowledge that the proposed synagogue is serving a population located far beyond the local population's boundaries. About 10% of Beth El's congregation live in the zip code of 1301 Oxford. About 40% of the Temple members live outside Berkeley. This is the main reason why the scale of the project must be so large -- TOO large to serve just the local population, and the impact is most assuredly detrimental to the immediate neighborhood.

   • d. On page 4.1-5, the DEIR says "Large-scale developments of the recent past have led to concern in the community that the city's needs are being compromised to meet institutional needs." This is contradictory to other findings of the DEIR which basically say the project is a reasonable one if the mitigations are implemented. The proposed project is a large-scale development which compromises the neighborhood's and city's needs to retain open space, restore its creeks, and have adequate street parking available for this neighborhood. The DEIR fails to acknowledge that fact anywhere in its text or descriptions.

   • e. The DEIR's statement that "The proposed project is not a major project within the context of other development proposals within the community" (DEIR, p. 4.1.6) is unsupported, and simply incorrect. The DEIR gives absolutely no basis for the "context" with which they are comparing this project, and certainly there is simply no other project of this scale being proposed in this neighborhood, so the statement is simply false.

   • f. Under "Effects Found Not to Be Significant" page 5-4, the DEIR states that:
     "While the use proposed by the applicant would intensify activity on the project site, the activities conducted would be the same type as previously occurred on the site, and would not substantially increase the demand for police or fire." This statement grossly understates the sheer size of the development and magnitude of increase in programs from the Chinese Alliance Church's small congregation of 60 families meeting for services every Sunday, mornings only, to the project proponent's congregation of 750-plus families with daily activities (including weekends), at times extending into evening hours.

6. The DEIR fails to adequately analyze Noise and Aesthetic Impacts
   • a. Mitigations to reduce noise are inadequate, and add aesthetic impacts. "Noise Impact 4.3-2" says that onsite parking and circulation noise levels will exceed City of Berkeley Noise Ordinance daytime noise level at nearest residences to the north. The proposed mitigation is a 7-foot high wall on the site's north property line. Later, in connection with the "institutional appearance" impact 4.8-2 (page 4.8-9), it is recommended that the 7 foot high stucco wall be built on city property at northern property line of Berryman Path, right next to the residences on the north. Since all the first floor windows of residences to the north are above 7 feet, the proposed mitigation would be ineffective. There might a small, but still largely ineffective mitigation effect if the wall is put on the developers property, but then that does not mitigate "Impact 4.8-2" (institution appearance inconsistent with the character of the surrounding neighborhood). For that matter, such a wall on the north side of Berryman path would give the neighboring residences an institutional appearance instead!

   • b. The DEIR understates the impact of parking on noise impacts. The planned 34 parking spaces would, according to the DEIR, create enough noise from "conversations, engines starting and stopping, etc." (or some wording like that) to create a detrimental impact if not mitigated. But what about the impact from those same activities, from people going to their cars that are parked on the street? DEIR has ignored this impact from the developers plan to rely on street parking to meet much of its parking needs. If the developer proposed to build a second parking lot somewhere to handle all of the synagogues parking needs, the noise impact would have been evaluated and judged detrimental, unless "institutional-looking" sound barrier walls were to be constructed. In effect they are using the neighborhood streets as their second parking lot. The noise impact from that should be evaluated.

   • c. The noise measurements used as a basis for evaluating impacts of the project are noticeably questionable. According to the DEIR, decibel levels (L50 and L90 measurements, in particular ) are higher at the middle of Berryman Path (Site 3, DEIR, Table 4.3-C - i.e. 100 feet away from both Spruce Street and Oxford Street), than when closer to Oxford Street (Site 2 - DEIR, Table 4.3-C). This set of measurements seems extremely suspect, unless the higher "noise" levels being measured at the center of Berryman Path include the sound of Codornices Creek and birdsong or tree leaf rustling. If these elements are, in fact, the reason for the higher "noise" levels, this seems an obvious and flagrant misrepresentation of the noise data, and should be highlighted in the discussion of noise levels. (Creek burbling, while registering on a decibel scale, is hardly comparable to the noise of car doors, diesel bus engines, etc.) If these are not the basis for the higher readings, then the DEIR should either re-survey that area, or explain the reason for this anomaly.

   • d. Noise impacts are understated, due to understatement of parking, traffic, and activity levels (noted in sections above).

   • e. The DEIR ignores the project proponent's plans for outdoor gatherings and parties, and thus does not include these activities at all in the analysis of noise impacts.

     In the Draft EIR, Beth El lists among the principal objectives for this project "outdoor spaces for Ésocial gatherings" and a social hall use for, among other things, "congregant celebrations and meetings." The Draft EIR nowhere deals with these gatherings and celebrations or their potential effects on traffic and noise.

     These outdoor gatherings may take place in the "social hall garden," which is partly shielded by buildings. However, if music or speech are amplified, or the buildings reflect noise, the effect may nevertheless be significant. The noise study does not mention these gatherings, their effects, or possible mitigations (such as a ban on amplified sound, or gatherings at night or before, say, 10 am). This leaves the neighborhood unprotected when they do occur.

     Except for the school-bell buzzers and evening parties, these may be desirable activities. However, they should be considered in the EIR, and their potential must be dealt with in the use permit. It is not acceptable for the city to take at face value an applicant's self-serving projections, and then leave neighbors with no protection when foreseeable reality turns out otherwise.

     The effects that should be considered include the following:
     

     • Noise, including noise of outdoor events, outdoor play by school-age children, especially nighttime noise including kids going outside during parties (which they do) and people talking, slamming car doors, and starting engines to go home after parties at night.
       
     • Much more frequent use of on-street parking than is implied by the Draft EIR, affecting particularly immediate neighbors, especially those with no driveways.

     Appropriate mitigations include limiting activities after, say, 9:30 pm to strictly religious events; a ban on evening parties; giving neighbors one quiet evening by closing the synagogue on Sunday after 6:30 pm (except for Jewish holidays); limiting outdoor gatherings to specified parts of the site (e.g. children may play only in the designated play area); reasonable limits on outdoor play times (e.g. not after 6 pm, or before 10 am weekends); a ban on amplified music and outdoor performances; and wording like the following, from the use permit for the Julia Morgan Center (which is not even on a residential street):
     
     • Parties: The property shall at no time be used for parties. The property may be used for receptions honoring persons or groups consistent with the general program and for semi-social gatherings.
       
     • All activities shall be conducted so as to minimize any nuisance to the residential neighborhood from noise, traffic lights, or late hour operation [followed by specifics like keeping the windows closed and having a liaison to handle neighborhood complaints].
       
     • Amplified music: Use of the property shall at no time involve the use of directly amplified popular musical instruments such as electric guitars and electric pianos. Acoustic instruments amplified with a microphone may be used in the main auditorium or in sound-proofed rooms. Every reasonable effort shall be made to insure that such amplification will not pose a nuisance to the neighborhood. [This would have to be updated to cover recorded music played by DJ's].

7. The DEIR fails to adequately analyze the project's impacts on Berryman Path. Overall, the DEIR has not addressed the concerns expressed in several of the letters (e.g. those of Nancy Levin and Marian Craig) that the roadway and parking facilities would negatively affect the environment and the quality of the experience of people walking along Berryman Path.
   • a. In 4.1.3, Significance Criteria the DEIR says "...this project's impacts on land use are also considered significant if they will result in any of the following: 1) Physically divide an established community."

     The DEIR neglects to take into account the fact that neighbors for many decades have chosen NOT to change Berryman Path into a roadway, when such proposals have been made, because it would divide this section of land and cause detriment to the character of the neighborhood. The proposed plan, putting a roadway and parking facility next to Berryman Path, is unacceptable in this neighborhood for the same reasons that it has always been unacceptable.

   • b. The DEIR draws incomplete conclusions after it quotes city "Policy 2.35 (Local Streets): On local streets give priority to ease of access, pedestrian movement, neighborhood amenity and resident parking." And concludes that "Pedestrian movement would not be impeded, as access to Berryman Path has not been affected." This is wrong because although pedestrian movement would still be possible, Berryman Path's value as a "neighborhood amenity" would be degraded because the environment would be converted from open space greenbelt to a roadway and parking lot.

   • c. The DEIR is unclear and ambiguous as to what the options are for the fence on the northern side of the property. In 3.6.1, the DEIR says "Along the northern property boundary, the chain link fence paralleling Berryman Path would be repaired and relocated to follow the property line, which is located a few feet south of the existing fence line." This seems to be contradictory to other parts of the DEIR in which it states that a 7 foot high stucco wall is planned for the northern boundary. Which is it, repaired and relocated chain link fence, or 7-foot high stucco wall? Or both? The repaired and relocated chain link fence, ugly as it is, would be preferable to a 7-foot high stucco wall that would invite graffiti and completely block the view from Berryman Path.

   • d. The mitigation measure (MM 4.8-2) which moves the sound wall from one side of Berryman Path to the other side would be inadequate, since the "institutional appearance" would be simply moved to the other side of Berryman Path, still to the chagrin of neighbors on the north side of the property and Berryman Path users (see letter from Berkeley Pathwanders). In the Executive Summary Table 2-1, the DEIR states "Impact 4.8-2: The 7-foot high stucco walls proposed to built at the northern property line would eliminate desirable views into the site from Berryman Path, creating an institutional appearance inconsistent with the character of the surrounding neighborhood. " The mitigation measure would be at least as bad as the impact itself: "MM 4.8-2: The wall required to be built at the northern property line to mitigate noise impacts on adjacent residences shall be moved to the northern property line of Berryman Path, either adjacent to or replacing the existing wooden property line fences. This will require permission from the City of Berkeley to construct the wall on City property, and may require the cooperation of adjacent property owners if removal of the existing wooden fences is proposed. ..."

     The 7-foot high stucco wall would be just as ugly on the north side of Berryman Path as it would be on the South side of Berryman Path. The existing wooden fences would be FAR preferable. A 7-foot high stucco wall on city property would give a closed in feeling to the path on the North side instead of the south. There should be NO wall put on city property. Moreover, the neighbors on the north side of Berryman Path are unwilling to replace existing fences with a 7 foot high stucco wall.

   • e. The DEIR fails to take into account the effect of this noise on users of Berryman Path. In Impact 4.3-2 (Parking Lot Activities) the DEIR refers only to impacts on residences when it states "The Church will have on-site parking and circulation noise levels which will exceed the City of Berkeley Noise Ordinance daytime noise level standard of 50 dB L50, at the nearest residences to the north. This impact is considered significant. Note: This impact can be mitigated to an acceptable level" ... "Parking lot noise typically includes periods of conversation, doors slamming, engines starting and stopping and vehicle passages ..."

     "Currently the project site has on-site parking for approximately 35 vehicles located along the north side of the project site, and a drop-off/pick-up area. There are residences located immediately adjacent to the north of the Berryman Path which may potentially be affected by the parking lot noise levels. "

     For people walking on Berryman Path, the mitigation measure (MM4.3-2) would have no effect, and is in stark conflict with Impact 4.8-2, since it drastically degrades the aesthetics of Berryman Path.

   • f. Mitigation Measure MM4.3-2 in the DEIR, which is supposed to provide mitigation for sound, is useless since the residences on the north side of the property have 1st story windows that are above 7 feet. It states: " Using a barrier performance methodology, a property line barrier 7-feet in height shall be installed to reduce hourly parking lot noise levels to less than 50 dB L50. The barrier shall be constructed along the project site's northern property line." The DEIR ignores the fact that the residences on the north side of the property have 1st story windows that are above 7 feet .

   • g. The DEIR comes to the astonishing and unreasonable conclusion that "While the view of the project site from Berryman Path would change, the impact, for purposes of evaluating visual resources, would be less than significant." By this reasoning, we should be covering the city of Berkeley as much as possible with roadways and parking lots, since their visual aesthetic impact would be less than significant. This is not a good stance for an EIR.

   • h. The DEIR in 4.8.5 makes the false assertion that "Project improvements to the banks of Codornices Creek would be visible from Berryman Path." The banks of Codornices Creek are NOT visible from Berryman Path, nor would they likely be unless the project plan called for raising the creek bed by about 20 feet, which it does not.

     The DEIR goes on to say, "Other project improvements, including the structure itself, roadways and parking areas, would be at least partially visible from the path." This is highly misleading, if not incorrect. If a solid stucco wall is not put on the south side of the path, those features would fully visible from the path. Those features, roadway and parking area, are far less aesthetically appropriate to this area than the current open space and green belt.

   • i. The DEIR makes no mention of the illegally placed fence currently on the north side of the property. Berryman Path, though a path, is supposed to equal the boundaries of a road 20 feet wide. The northern boundary of the site is therefore approximately 20 feet south of the present fence along its northern border. What does this mean for the present proposal?

8. Additional Inadequacies in the DEIR.
   • a. The DEIR does not note that Temple Beth El has had a history of poor compliance with use permits. In fact they have not updated permits for their current activities. We should not assume that their mode of operation in this regard will change. Moreover, to enforce many the many mitigations proposed would require nearly a full time City of Berkeley staff person. The DEIR is flawed since many of the mitigations or conditions of approval will not/cannot be enforced.

   • b. The DEIR does not adequately explore the question of what is considered to be adequate parking.

     c

   • c. The DEIR omits any discussion that the addition of this huge project, combined with existing CBE site use by a new congregation/institution, dramatically increases the overall density of the neighborhood. This is detrimental to the neighborhood.

   • f. The purchase of a conservation easement for the northern 1/3 of the property should be kept as a possibility.

   • g. The DEIR did not consider other reasonable alternatives suggested by neighbors and other interested parties, such as Berkeley Design Associates.
     

Juliet Lamont Alan Gould