With 2 vehicles per household, 1,930-homes would bring almost 4,000 cars during peak hours onto the neighborhood roads.

Will NASA be widening the Highway 101 to ten lanes or do NASA Ames geniuses envision using manned ballistic rockets for transportation?

@Citizen84
[Portion removed due to disrespectful comment or offensive language]
No, there's a housing crunch, rents are ridiculous and families are being forced out. We need more housing and it's going to get built. Support better mass transit and early investment in infrastructure rather than moan about the results of your poor planning.

A+++++ YIMBY.

It's as if [Portion removed due to disrespectful comment or offensive language]
have some big plan to populate Portland with Bay Area transplants, pricing out their own children and forcing them to leave the place where they grew up.

No, we need density. To make driving less necessary, build grocery stores and restaurants on the bottom floor. Run bus routes in a circle to San Antonio, Caltrain and Castro. Raise taxes and run VTA and BART up the 101.

@YIMBY
[Portion removed due to disrespectful comment or offensive language]
?

"We guys" have nothing to do with BART, Caltrain or, for that matter, Prop 13. And yes, "We guys" do not like sitting in traffic because the very same politicians who ignore BART, Caltrain or even potholes on our roads, invite unrestricted building and immigration into the area.

Don't like housing crunch or rest prices? Tough. I can recommend a few neighborhoods in Huston that are much more affordable.

@Citizen84

No, you don't get to detach yourself from the voting body that got us into this in the first place. This isn't the fault of politicians, it's the fault of voters and housing groups who lobbied against long-term investments in infrastructure and taxes to maintain them.

No, we're going to build more housing in the Bay Area and you get to deal with the traffic now. Don't like sitting in gridlock on 101? Then go support more funding for mass transit.

We have supported mass transit with the highest tax burden in the US. The dollars were spent on light rail and BART to San Jose. There hasn't been hardly any investment in roads for a few decades- except for reworking on/off ramps. Can the bullies stop blaming those that have spent hard earned money on improvements for decades? We didn't get a choice in how the money was spent. If you don't like the results, blame those that made the decisions.

Many of the people who will benefit from the new housing are already working at NASA Ames - and they are on the roads commuting right now. The ability for employees to live close to where they work will actually REDUCE the amount of traffic on the roads. This is especially true for early career employees (the majority of new hires) that often commute from longer distances in order to find affordable housing. The bay area needs more live/work communities. Kudos to NASA for actually complying with the EIS they did several years ago when they started development of the NASA Research Park. I also agree we need more mass transit options. It's hard to attract people to mass transit when it takes longer and costs more than the commute.

Thanks Mark and the Voice editorial/production staff for providing a worthwhile "e" version of this story. It shows the 'digital document' smarts of this organization. I can actually hyper-text hyper-link to the recent related stories in the Voice. For instance, I had forgotten about the late '16 Shenandoah Square story, which is a similar situation (both federal property maybe into local residential use).

thank Voice!

I wouldn't get to excited about this project until they complete the soil testing out there. This was a military base for over 50 years with one of the worst polluters running an air base.
Also, as mentioned above problems, they need to complete an environmental impact report in one of the most contentious areas in the liberal state of California.
If it is approved, you won't see but a third of the housing units their stating in this article at an enormous cost.

"Many of the people who will benefit from the new housing are already working at NASA Ames - and they are on the roads commuting right now. The ability for employees to live close to where they work will actually REDUCE the amount of traffic on the roads."

Yes and no. It's certainly (extremely) desirable for people to live close to work and avoid the losses across the board from people wasting way too many hours of their lives commuting. Unfortunately, though, it doesn't work that way. We only have to look at other cities. The reason we're so crushed in the Bay Area is not that there's not enough housing, but very simply that there are too many people. Adding more housing only enables yet more people being brought into the already way overcrowded region. A little while back, YIMBY posted a link to a list of "the best livable cities". One city on that list was Toronto. Toronto has already implemented Citizen84's suggestion of 10 lane highways (except Toronto's are actually 16 lanes), as well as built a well-functioning, efficient subway system and a clumsy and slow bus system. The result? Freeway traffic jams that make ours look like light traffic, standing room only on the subway, don't even think of trying to drive on city streets.

In short, if we don't want to live in a sardine can, we need to get smarter about evening out the distribution of jobs. Doing that will even out the population crush and the housing crisis and all the other problems that come from overcrowding.

NASA is proposing to build the housing and neighborhood commercial buildings on 46 acres near 101 between the Wescoat Military Housing Area and the Ellis Street entrance.

The shallow groundwater there is contaminated with TCE, so the buildings would have to be built with active vapor mitigation systems, according to EPA’s Vapor Intrusion Record of Decision. Such systems prevent vapor from rising into buildings. No one in the area drinks water from contaminated aquifers.

Conceivably EPA could require additional subsurface cleanup before construction, but I believe the TCE concentrations in shallow groundwater are below the levels that EPA is requiring for housing construction on the other side of 101.

VTA should soon be releasing a study of a transit connection between the NASA/Bayshore Light Rail Station and North Bayshore. It would likely serve the new housing. It will be up to us all to 1) make sure the transit is designed properly, 2) find financing for it, and 3) get something built by the time the housing is occupied.

Lenny

Having lived in this area since 1958 I've grown old waiting for an efficient mass transportation system. Yet my family paid a great deal of taxes which were mostly wasted by the various political kings and kingmakers. Some of them are still around in high publicly paid positions. It is enough to make a skunk throw up.

My question is how is this project going to tackle the TCE pollution on that area?

How much clean up is going to be attempted if any?

From what information I have, the entire city of Mountain View lives with TCE in our air we breath. Because commercial building like Google, attempt to maintain high pressure inside them to prevent the TCE vapors from coming in from the outside. However, in most homes and other non-commercial buildings, this does not happen.

It makes me wonder the wisdom of this idea

I bought 2 new houses at the Hamilton fields redevelopment in Novato back in 2008 for rentals.
That was a military base like Moffett Field.

We have warning notices in the garage about digging because of off gassing of dangerous chemicals that will exist for years in the soils. There called disclaimers by lawyers.
I'm sure this will be the case out at Moffett Field for any housing built to pass liability to the homeowner.

Sure, NASA claims it wants the new rental housing for employees. But I have seen all of the MEN IN BLACK movies and I have my suspicions. Just saying.

The Mountain View Voice is a liberal agenda, delete honest comment based media.

I have posted on other comment discussions only to be removed for disrespectful comments without disrespecting anyone.

The truth here is that we're trying to discuss real issues only to be regulated by the liberal judgement of the Mountain View Voice, causing an imbalance to true democracy.

If the moderators want to better the community, then let both sides talk. That's how real issues are resolved.

No violence or no threats. Real discussion to resolve real issues!

Is this possible or will I be deleted again?

Why is it that conservatives are the most precious snowflakes, getting triggered so easily? Bob, do you need a safe space?

Due to repeated violations of our Terms of Use, comments from this poster are automatically removed. Why?

Those who are concerned about the traffic to be caused by this development should keep in mind the Mountain View free shuttle (just renewed for another year, according to another MVVoice article) and the VTA 81 bus (the only VTA bus that actually serves Moffett Field.)

VTA is currently planning a revised route structure that involves increased service where buses are full, and reduced or eliminated services where buses are not full. The latter includes route 81, perhaps going back to the original name, route 51, with a different schedule and path. VTA has very limited services in the Stanford-Palo Alto-Los Altos area, partly due, I think, to the free Marguerite bus services provided by Stanford. I hope VTA will not reduce service at the two main Mountain View transit centers, at the downtown Caltrain station and at the San Antonio shopping center, because of the MV free shuttle.

Another commenter suggested a possible VTA bus or light rail connection between the existing NASA light rail station at the 101/Ellis interchange, and the growing North of Bayshore area, which is finally going to get more housing, I hope.

When it comes to housing in Mountain View, the City Council has run hot and cold alternately over the last few decades, and the amount of housing available and planned is either too much or too little depending on which City Council temperature you favor.

And has anyone thought yet of the schools needed for the kids from all that housing? MVWSD used to get federal impact aid for the military kids living on base but as they left so did the money.

@Former board member brings up the point:

"And has anyone thought yet of the schools needed for the kids from all that housing?"


Bingo. We're bringing in all these Very Clever Techies by the tens and hundreds of thousands, yet all the real problems are only being made worse. Our laws and policies have incentivized commercial development at the expense of everything else and now we notice that we have too many people for our housing stock and our transportation infrastructure. So what do we do? Solve the problem? Nah, that would be way too complicated. We'll just add more housing, which oops, sucks in more people, creating the need for more housing. Wash, rinse, repeat.

If we really truly want to solve anything (and I'm not so sure our city and regional planners actually do; they seem to have their own agenda), we need to put in place laws and policies that incentivize a balance of jobs, housing, transportation, schools, youth programs (sports fields!), parks, shops, services, and so on.

in reference to the worry of Lenny (2) financing transit, and "swissik" past transit tax measure promises:

maybe Mountain View's own good government / libertarian? legal advocate Wesley - has something to offer?

I think everyone should know that this location for proposed housing is only 1800 feet away from ground zero of a Superfund site.

This is highly contaminated and will be a health risk to anyone living there without a doubt. Does the city know this or are they acting criminally negligent if they approve this?

Here's the map and the proposed building site is between wescoat Rd. and Ellis St.
Web Link

How dare readers question the "progress" of limitless development of this city. If you don't like it, leave. OR, vote for different city council members. OR write your own initiative to establish limits or conditions.

OR write the newspaper. Okay, you did that. But it is not enough. Big money is at stake. Money talks loudly.

Folks, the land in question belongs to the federal government, Mountain View city council really has no control over what goes on there. Sure, you can contact your representatives and you can scream a lot but they are not required to follow every local and state law. Fun fact: you want plastic grocery bags, the base commissary has got em!

I work for NASA, and I welcome this change. Toxins are all around us. I will take my chances with the TCE, versus the grueling 2-hour roundtrip commute I take every day.

Big mistake building housing there, it's basically an island. No grocery store, school, library, public services around for several miles. You couldn't think of a worse place to build housing.

It's not far from existing housing across the Freeway. This plan calls for 100,000 sq feet of commercial space to be built too. Seems like a pretty good place to me. It's also pretty close to the light rail line which gets so little use compared to what was invested to build it. In principle they could ride the light rail line to downtown Mountain View. Ooops, no grocery store there either....

Why isn't the city buying up this land and keeping it as open space. A huge portion of NASA has been a wildlife sanctuary for decades. Why is it that this is ignoroed and the land is being sold to the highest bidder?

Sick, sick, sick!

NASA and the GSA are doing this. It's THEIR land. That land is not to be sold.
The project will be RENTAL housing for Federal employees. The cost will be low because
the land is essentially free for the use.

Plus 10% will be designated affordable for low income federal workers.

Goodle should do the same.

"Goodle"

Such a pity that's only a typo. So much potential for terrific word play were that their real name :-D

There are no jobs at Ames, so this housing, who exactly is it for? Interns come in the summer and then leave, what's left are contractors who have multiple contracts and make enough money to live in surrounding areas and take Ames for the part-time reality it is... then there are the few and disappearing civil servants, aging and being replaced by no one. So - exactly who are these employees that need housing?

Well, I for one, am a civil servant, and would be a potential applicant for this housing. It is also a frequent topic of discussion at NASA town hall meetings.

Somehow, I don't think demand will be an issue.

Sorry for the typo. Of course I meant Goofle, the Big Brother company.

There is a University at NASA Ames these days, Carnegie Mellon West. They plan
to allow contractor employees and employees of CMU to lease the housing too.
The point is not whether or not they can afford to take a housing unit in Mountain
View proper. The point is that this frees that alternate housing unit for someone else,
maybe even a Goofler. It's not clear if Goofle employees themselves would be eligible for this housing, but maybe. The leases at Ames are for H211 LLC with no affiliation to Goofle or Alphabet and with Planetary Ventures which is a fellow subsidiary of Alphabet. Alphabet has its own permission to construct housing on the land for which they have a 90 year lease deal.

isn't the USGS getting moved to Moffett, starting this year?

It appears that whoever these people are that would rent out there most certainly are high wage earners like Scientists and engineers or contractors.

With those incomes, they would be better off buying all the new housing that's going to be built when all these rent controlled apartment buildings are torn down over the next 5 years.

There's going to be 1000's of homes created that aren't sitting on a toxic superfund waste site.

Also, they would get tax benefits and appreciation, creating wealth instead of throwing away money on rent month after month being a wage slave forever.

In response to Bob and others regarding TCE problem:

You seem to accept the health risks upon others simply by saying that as long as a “disclaimer” is posted, that is evidence enough of toxic exposure “control”. You know that is not correct. That is not toxic pollution control of any kind. Lenny Siegel simply is not a trained scientist, he issues “white-papers” which are not scientific studies, they are not “peer-reviewed” by scientists, merely opinions.

Please read this information? It appears there is scientific evidence already that the ambient air is polluted very badly in Mountain View

If there is significant concentrations of TCE being measured INSIDE A BUILDING, it only is logical that a GREATER CONCENTRATION MUST EXIST OUTSIDE THE STRUCTURE. The law of GASEOUS DIFFUSION means that concentrations attempt to equalize or establish an equilibrium. As defined as:

“LAW OF GASEOUS DIFFUSION

THE LAW OF GASEOUS DIFFUSION STATES THAT A GAS WILL DIFFUSE ACROSS A SEMI PERMEABLE MEMBRANE FROM AN AREA OF A HIGHER CONCENTRATION (PRESSURE) TO AN AREA OF LOWER CONCENTRATION (PRESSURE).1 “

The relevance is that a structure can be considered a semi-permeable membrane and thus TCE will want to penetrate a structure where the structure has less concentration of the TCE. THE AMOUNT OF POSITIVE AIR PRESSURE NEEDED TO PREVENT TCE FROM ENTERING THE STRUCTURE IS NEEDED TO BE HIGHER THE CONCENTRATION DIFFERENTIAL TO THE OUTSIDE.

In other words one could say that if the atmospheric pressure inside a building is 1.25 pressure, so that outside gases are propelled away from the building. THE VAPORS ARE PREVENTED FROM “INTRUDING” THE STRUCTURES.

By the way, the above NBC report (Web Link stated:

“IT IS IN SOME OF THESE BUILDINGS WHERE EPA INVESTIGATORS FOUND LEVELS OF TCE VAPORS IN THE INTERIOR AIR THAT WERE AS MUCH AS 26 TIMES HIGHER THAN ACCEPTABLE SAFE LEVELS WITH AIR CONDITIONING SYSTEMS OFF.”

This would indicate to me that it is highly likely that the ambient air levels outside the building is in fact 26 TIMES HIGHER THAN ACCEPTABLE EXPOSURE. Given that the vapor intrusion systems failed and the gases were allowed to equalize. MEANING THE GASEOUS DIFFUSION ESTABLISHED EQUILIBRIUM WITH THE OUTSIDE LEVELS.

I am surprised that no one caught the implications of this on the public. Now it may be that bad “NEAR” the polluted site, BUT GASES TRAVEL AND ATTEMPT TO EQUALIZE, if this is working correctly, THE AIR OUTSIDE THE SITE AIR SPACE CAN BE VERY CLOSE TO THE SAME LEVELS.

To me, unless there is any public records disclosing the actual measurements of indoor samples, which I have not seen any, OR TRENDS OF TCE AMBIENT OUTDOOR MEASUREMENT, I can only assume that this has not in fact occurred. THIS IS VERY TROUBLING.

The EPA cannot make any claims or promises that the public atmosphere in Mountain View is in fact safe. ONLY WHEN SCIENTIFIC STUDIES ARE PUBLISHED CAN WE BE ASSURED OF PUBLIC SAFETY, OTHERWISE THE ONLY PRUDENT ASSUMPTION GIVEN THE POLLUTION THAT EXISTS HERE, IS THAT IT IS UNSAFE, UNTIL PROVEN OTHERWISE.

Business man,

Your concerns are falling on deaf ears. These people are so thirsty for more housing they would build it on an ammunition dump site if they could.

Ya there's TCE in the wells and gassing from the soil in this proposed building site. They will live there if they need gas masks.

My interest here is for the landlords who have been damaged by the rent control law. The best property in Mountain View now sits right under their NOT ECONOMICALLY VIABLE buildings.

I want to see them tear it down so they can get their money out and reinvest it elsewhere leaving Mountain View to subsidise its own affordable housing at the taxpayers expense.

That's how it's supposed to be done in America. Not on the backs of certain people who have worked hard, invested their money and sacrificed to get ahead in life. Why don't we say that everyone that bought apple stock needs to give 25% away to low income people too? Lets just take it from them because the voters want their money too?

A day of reckoning is coming to Mountain View because of its own success and the class warfare we see in our society where voters steal money from the hard working families that have gotten ahead. I'm afraid for where were heading.

In response to Bob

“Your concerns are falling on deaf ears. These people are so thirsty for more housing they would build it on an ammunition dump site if they could.”

Thanks for proving that the public safety is being ignored, and that you in fact acknowlege that hazardous pollution state Mountain View is in.

“Ya there's TCE in the wells and gassing from the soil in this proposed building site. They will live there if they need gas masks.”

Thanks again for acknowledging that the public are is so hazardous. Just realize if the outside air is 26 times more TCE than allowable, and the allowable takes into account 10 hours of exposure than you can calculate that (26 times (10 hours divided by 24)) equates to about 15 minutes of exposure to outside air will be considered a violation of EPA standards.

“My interest here is for the landlords who have been damaged by the rent control law. The best property in Mountain View now sits right under their NOT ECONOMICALLY VIABLE buildings.”

Thanks, first for pointing out your only interest is for the pivate interests of real estate. Second, you have just proven that the City itself may be NOT ECONOMICALLY VIABLE anymore. Unless you require all structures to have VAPOR INTRUSION PREVENTION TECHNOLOGY installed. ALL Homes, , Condos, Apartments, Governmental Buildings, and Commercial Property will be REQUIRED to have them installed. If this is required, who pays for it? The Homeowners will have to pay, The Condo Owners will have to pay, the Apartment owners will have to pay, The Government will have to pay, and the Commercial Property owners will have to pay. But even then you still need to leave the buildings at some time.

“I want to see them tear it down so they can get their money out and reinvest it elsewhere leaving Mountain View to subsidise its own affordable housing at the taxpayers expense.”

Well, given that it might be a violation of the EPA safety of TCE in the entire city of Mountain View that simply may not be able to occur anymore, in effect, the City should be condemned as a hazardous waste site as long as the TCE is at the levels I predict.

“That's how it's supposed to be done in America. Not on the backs of certain people who have worked hard, invested their money and sacrificed to get ahead in life. Why don't we say that everyone that bought apple stock needs to give 25% away to low income people too? Lets just take it from them because the voters want their money too?”

AGAIN YOU SHOW THAT YOU WANT TO HAVE YOUR PROFITS FROM INVESTMENT WITHOUT RISK. IF YOU WANT THAT NEVER INVEST IN ANYTHING BUT FEDERAL TREASURY NOTES. THERE IS NO GUARRENTEES THAT YOU MIGHT NOT LOSE YOUR INVESTMENT IN ANY INVESTMENT. ANYONE MAKING INVESTMENTS CHOSE TO TAKE THE RISKS, THE RESULTS ARE SIMPLY GOING TO OCCUR THE WAY THEY DO.

“A day of reckoning is coming to Mountain View because of its own success and the class warfare we see in our society where voters steal money from the hard working families that have gotten ahead. I'm afraid for where were heading.”

Yes, the fact that the City might be condemned for being unhealthy to such an extreme, given that only 15 minutes of exposure to the public ambient pollution can qualify as an EPA safety violation, the City may be on its way to oblivion. However, those choosing to invest in the real estate of Mountain View may discover their investment will become worthless.

Hey, if older apartment buildings are replaced, they will be replaced by newer rental buildings, probably with more unit and more dense.

So no one is going to be buying these individual units, only the large real estate companies which have already been buying them anyway. They sit on them a while whilst they develop a project and find financing.

There's no reason to think that NASA and GSA would let contracts in this area that did not include vapor barriers and any needed special ventilation. The source of the TCE plum was not NASA, but over on the Whisman Road side of 101. One could hope that the vapor is less present on the NASA side of 101.

In response to Economic Viability

“Hey, if older apartment buildings are replaced, they will be replaced by newer rental buildings, probably with more unit and more dense.”

Correct, but if the ambient air is polluted with enough TCE to render 15 minutes exposure a violation of EPA safety protocols, you are just poisoning more people.

“So no one is going to be buying these individual units, only the large real estate companies which have already been buying them anyway. They sit on them a while whilst they develop a project and find financing.”

Correct, it is very highly likely that only corporate investors would have the resources to act on this situation, and most importantly, larger corporate interests have a significant history of disregarding customers safety.

“There's no reason to think that NASA and GSA would let contracts in this area that did not include vapor barriers and any needed special ventilation. The source of the TCE plum was not NASA, but over on the Whisman Road side of 101. One could hope that the vapor is less present on the NASA side of 101.”

Not correct, if you look at the NBC investigates story I refer to here (Web Link The report states:

“After NBC Bay Area’s Investigative Unit began asking questions in April, 2012, about possible health effects of the TCE plumes the Cancer Prevention Institute of California (CPIC) opened its own probe.

After exhaustive research and analysis of three decades worth of health data, California’s state cancer registry announced that it found a higher than expected number of people living in neighborhood surrounding the M-E-W Superfund site who had contracted a group of cancers the registry’s scientists call non-Hodgkin lymphoma.

The higher than expected incidence of these cancers occurred during the years 1996 to 2005.

Now the EPA admits that until recently it had somehow missed some “hot spots” of higher than acceptable levels of TCE in groundwater and in the air in several homes and more than 20 commercial buildings in the area. Two of the hotspots were found by EPA investigators along Evandale Avenue outside the original plume area…

But Lee also said that the EPA also missed these hot spots of TCE both in groundwater and in the air inside some buildings along Evandale Avenue including two homes outside the original plume area.

“The concentration (found there) is very high,” said Lee, “A very high concentration.

How high?

ACCORDING TO DOCUMENTS FROM TEST RESULTS, THE HIGHEST TCE LEVELS THAT THE EPA MEASURED IN GROUND WATER IN THE AREA REACHED 130,000 PARTS PER BILLION. THE EPA CONSIDERS ANYTHING OVER 5 PARTS PER BILLION UNSAFE.

IN THE COMMERCIAL BUILDINGS NEARBY, INCLUDING TWO NOW OCCUPIED BY GOOGLE, EPA TESTS FOUND TCE IN THE AIR AT LEVELS 26 TIMES HIGHER THAN THE LEVEL CONSIDERED BY THE EPA TO BE ACCEPTABLE AND SAFE.”


Source: Concern For Mountain View Toxic Plume Expanded - NBC Bay Area Web Link
Follow us: @NBCBayArea on Twitter | NBCBayArea on Facebook

Basing your decision to live in an area based on “HOPE” appears to be a foolish idea. One must make good judgment decisions not on “HOPE” but on the “EVIDENCE” of safety. Given that the “EVIDENCE” is developing that the problem is far more wide spread, this situation is too risky to invest in.

WARNING THIS IS LONG BUT IT IS IMPORTANT

I was just checking something and this is what I discovered:

The Proposition 65 warnings are NOT sufficient to warrant limited liability where injury has occurred based on exposure to known carcinogens in the situation of Mountain View, please read the following:

“Warning label

California Proposition 65 Warning

The following warning language is standard on products sold in California if they contain chemicals on the Proposition 65 list and the amount of exposure caused by the product is not within defined safety limits.

WARNING: This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.

The wording can be changed as necessary, so long as it communicates that the chemical in question is known to the state to cause cancer, or birth defects or other reproductive harm. For exposures from other sources, such as car exhaust in a parking garage, a standard sign might read: "This area contains chemicals known to the State of California to cause cancer, or birth defects or other reproductive harm".[14]”( Web Link

IN FACT, THERE HAS NEVER BEEN A COURT CASE TO ESTABLISH THAT THE PROP 65 WARNING DOES PROVIDE UNLIMITED IMMUNITY OF LIABILITY WHERE THE PROPOSITION HAS BEEN APPLIED REGARDING AN APARTMENT OR DEVELOPMENT. In fact, it may cause the opposite situation. Where the warning is issued, it indicates that the public safety is in such threat from a known pollutant, means that the development willfully exposed the public to hazardous environmental conditions. WILLFUL EXPOSURE WOULD INVALIDATE ANY PROTECTIONS UNDER PROP 65, EVEN IF THE WARNINGS ARE ISSUED. Where no warnings are issued, there is no defense at all.

There is a great deal of misinformation involving how much Prop 65 will protect a product supplier. It simply does not establish an assurance of protection from liability. In fact if you read this it is even more dangerous:

“In 1986, California’s electorate passed a voter initiative called Proposition 65, or “Prop 65,” which was later enacted into law as the “Safe Drinking Water and Toxic Enforcement Act of 1986.” The goal of the initiative was to improve the overall health of California’s residents and to combat toxicity in consumer products. The “consumer product” part of the law provides an enforcement mechanism allowing the government and certain private parties to sue businesses alleged to have violated Prop 65 by, for example, selling a product containing a dangerous toxin that can harm a consumer’s health — that is, unless the seller has provided sufficient warning notices to the public. If your company gets sued for a Prop 65 violation, you might think that your company’s insurance policy — usually, a Commercial General Liability (“CGL”) policy — would afford coverage under the “bodily injury” clause of the policy. After all, isn’t the fundamental purpose of Prop 65 to protect people from bodily injuries?

IF THAT IS WHAT YOU THOUGHT, YOU WOULD BE WRONG.

In a recent published opinion, the California Court of Appeal found that, under the terms of a standard CGL policy, an insurance company had no duty to defend or indemnify its insured for a lawsuit alleging that the insured company had violated Prop 65.

The case is Ulta Salon v. Travelers Property Casualty (2011) 197 Cal.App.4th 424. The plaintiff, Ulta Salon, had a ten million dollar CGL policy from Travelers, providing standard coverage for the defense of any lawsuit seeking recovery for bodily injury or property damage. Ulta Salon asked Travelers to defend a lawsuit alleging that the company’s nail care products contained toxic ingredients, and that there were insufficient Prop 65 warnings. Travelers denied coverage, and Ulta Salon sued Travelers in an insurance coverage lawsuit.

By way of background, the California Supreme Court has held that under a CGL policy, an insurer must defend its insured whenever a lawsuit could potentially give rise to a claim covered by insurance. Therefore, Ulta Salon could prevail in its insurance coverage lawsuit against Travelers by showing that there was a “potential” that the insurance policy covered the damages alleged in the Prop 65 lawsuit.

Travelers had denied coverage on grounds that the Prop 65 complaint did not allege bodily injury or property damage. In opposition, Ulta Salon argued that the underlying complaint alleged facts which gave rise to a potential for coverage, because the complaint alleged exposure to a chemical that was known to cause cancer. But both the trial court and the Court of Appeal agreed with Travelers, and denied coverage.

According to the Court of Appeal, the Prop 65 lawsuit was solely based on violations of Prop 65’s “clear and reasonable warnings” requirements for consumer products. Under Prop 65 businesses are required to notify consumers about significant amounts of certain chemicals in consumer products. By providing this information, Prop 65 enables Californians to make informed decisions about protecting themselves from exposure to these chemicals.

Ulta Salon argued that the underlying lawsuit contemplated bodily harm, because the complaint repeatedly emphasized the toxic nature of the products that it manufactured and sold, so that the complaint potentially gave rise to bodily injury claims. BUT THE APPELLATE COURT REJECTED THE ARGUMENT, FINDING THAT IT “MISCONSTRUED” THE PRINCIPLE OF POTENTIAL LIABILITY UNDER AN INSURANCE POLICY. The appellate court explained that although an insurer’s duty to defend “is broader than the duty to indemnify, the duty to defend depends upon facts known to the insurer at the inception of the suit. . . . The insured may not speculate about unpled third party claims to manufacture coverage.” THUS, TRAVELERS DID NOT OWE ULTA SALON A DUTY TO DEFEND BECAUSE THE COMPLAINT DID NOT MAKE ANY CLAIM OF BODILY INJURY; RATHER, THE CLAIM WAS FOR ENFORCEMENT OF A STATUTE AND AN AWARD OF PENALTIES — SOMETHING THE LAW CONSIDERS TO BE DIFFERENT FROM “DAMAGES.”

All businesses selling consumer products in California should be aware of potential liability for violating Prop 65, BECAUSE THE LAW ESTABLISHES A LEGAL REGIME UNDER WHICH “BOUNTY HUNTER” LAWYERS CAN SUE ALLEGED VIOLATORS ON BEHALF OF THE PUBLIC (AND COLLECT A PORTION OF ANY PENALTIES AWARDED AGAINST THE DEFENDANT(S)). However, unless the complaint makes a claim for some type of personal injury, a company’s CGL policy will not require the insurance company to defend the lawsuit.”( Web Link

So all developments occurring in Mountain View are on notice, they cannot be expected to be immune for exposure to TCE as long as it is occurring in the public air-space within your development. The fact that it can be determined that 15 minutes of exposure to public air constitutes a violation of safety standards, you would need to inform your customers to avoid being outside and never open any windows. Does this requirement mean that said development is within the immunity standards of Prop 65. On its face it clearly doesn’t and this means any development must take into account it may be liable for health damages suffering by the customers without insurance coverage protections.

So under your analysis, since a landlord is responsible for said damages or "personal Injury" to their tenants, wouldn't this give the landlord the right to remove the tenants from the property for relocation to limit their liability since they have no immunity and be considered to be in the public interest?

Then develop under an LLC and transfer the funds from the sales to another separate LLC, leaving the development LLC insolvent and walk away unscathed.

I'LL make a note of that.

@Anke

"The reason we're so crushed in the Bay Area is not that there's not enough housing, but very simply that there are too many people. Adding more housing only enables yet more people being brought into the already way overcrowded region."

The magnitude of the housing demand is directly attributable to the number of jobs being created, enabled by the magnitude of office development. This is painfully obvious. I don't understand people's belief that we should continue as is and just have everyone commute in.

Tech needs about 200 sqft per employee. The city's own planning estimates, last time I checked, were 180. I don't know what the average intensity of residential is, but 500 sqft per resident seems reasonable.

Taco Bell Plaza (Shoreline @ Terra Bella) is 4 stories. Just to house the people who will be working there when it opens, you would need a 4 story apartment complex with almost 3x the footprint, and this isn't including non employed residents, service workers, etc who also need housing. These offices are going up all over the city, ranging from 4 to 6 stories. 4 seems to be the highest we're building apartments right now.

Just drive around the city and look at construction. It's clear the math doesn't add up.

In response to Bob you said:

“So under your analysis, since a landlord is responsible for said damages or "personal Injury" to their tenants, wouldn't this give the landlord the right to remove the tenants from the property for relocation to limit their liability since they have no immunity and be considered to be in the public interest?”

Unfortunately, your question has a serious flaw, from what I understand at this time the only option you have is to cease all operations and never offer the apartment again.

Under the CSFRA you are not entitled to any “NO FAULT” apartment termination. Thus you will be forced to pay for relocation, cease all operations in the city of Mountain View, and never operate any business in the city of Mountain View ever again.

If you decide to reopen the business, the original renters under rent control will be entitled to their apartment again at the same rent controlled rate. So you wind up being in the same situation, you simply just made your work that much more difficult.

And from what I understand, the “NO FAULT” prohibition applies to every apartment, not just the rent controlled apartments. So what you are proposing is the end of all apartment operations in the City. And the elimination of the apartment industry in the City.

So partially you are correct, you can remove the tenants, but it will cost you about $7,500 at minimum each to do so.

You said:

“Then develop under an LLC and transfer the funds from the sales to another separate LLC, leaving the development LLC insolvent and walk away unscathed.”

Just understand the following:

“Like shareholders of a corporation, all LLC owners are protected from PERSONAL LIABILITY for business debts and claims. ... Because only LLC assets are used to pay off business debts, LLC owners STAND TO LOSE ONLY THE MONEY THAT THEY'VE INVESTED IN THE LLC. This feature is often called "limited liability."LLC Limited Liability - Nolo.com”

So what this means is that an LLC does not actually protect an investor from bad decisions. Your personal money is protected but your personal and business credit will be destroyed. Thus any attempts to open another business will probably be either “EXTREMLY” difficult or expensive out of pocket expense. More than likely, you will never be able to get any “OTHER PEOPLES MONEY” or OPM investment funds to get back into business.

There is an exception to limited liability protections if you read this:

Fraud

A CORPORATION OR LLC’S OWNERS MAY ALSO BE HELD PERSONALLY LIABLE IF THEY ARE FOUND TO HAVE COMMITTED FRAUD. If the owner made fraudulent representations or omissions when applying for a business loan, he or she can be held personally responsible for the resulting harm to the creditor and risk losing personal assets. ALTERNATIVELY, IF A CORPORATION OR LLC WAS CREATED TO FURTHER A FRAUDULENT CAUSE OR BUSINESS, A COURT CAN PIERCE THE CORPORATE VEIL TO GET TO THE OWNERS AS WELL.( Web Link

So, if you open an organization where it can be determined you committed fraud in the process, you lose all limited liability protections. So you have to be very careful to have absolute proof that not one instance of fraudulent representations or omissions when applying for a business loan in your business history. It is not very simple to file for bankruptcy.

During bankruptcy, you will have to disclose all records regarding your business to the bankruptcy court and any of your creditors will be able to file for that information to ensure that said fraudulent representations or omissions did not occur when applying for a business loan.

You seem to only plan for at most 2 moves in the business chess game. In business you have to look ahead at least 4 moves ahead. Realize that there are more consequences to your decisions than you typically foresee.

@Transplant,
"I don't understand people's belief that we should continue as is and just have everyone commute in."

I don't understand that notion either. Who is advocating for it? The current model that incentivizes commercial development gives rise to the current trend of pulling all the world's techies into the Bay Area, particularly SF and the South Bay and mid-Peninsula, where they will be happy to live several a piece in 14x8 microunits stacked 10 or more stories high, and pushing out everyone else. There's a nearly bottomless supply of techies and aspiring techies living in even worse conditions, so that model will be sustainable for at least the mid-term.

An alternative would be to put in place policies that incentivize a balance of diverse jobs and housing at all income levels, schools, shops, services, parks, infrastructure, transportation and so on, where there's room for everyone.

Anke, you do this faux "room for everyone" bit in every housing article. We currently don't have room for everyone that wants to live here, that's why we're in a housing crisis and housing is so expensive. Demand has outstripped supply. What's your solution? Make Mountain View unappealing? Kick out Google (and Facebook, and LinkedIn?)

Just an update:

I asked the Council about the indeterminate problem with TCE, and Lenny Siegel criticised my question by saying he had up to date ambient TCE data. Alana Lee stated that 1 PPM is considered unsafe. Conversion means 1000 micrograms per litre.

From what I can see, the latest Vapor data results I can find on the EPA website was 2014. This information seems extremely out of date. So far I have not received any updates. Lenny Sigal claims to have up to date data, I look forward to receiving it.

Lenny Siegel tonight during the City Council Meeting break claimed to me that the NBC Investigates report I have been using as a reference was presenting false information. I was completely surprised he would say that. So I asked why didn't he seek a retraction or correction in the story? He didn't seem to indicate he ever tried. This behavior activated my suspicious reptilian brain. My intent is to contact Steven Stock who broadcast the following report (Web Link)

I await an email by Lenny Siegel to explain how the report could be misleading.

My first reaction to this comment was that if such a misleading story existed, how could the NBC Investigates broadcast this news story? They surely would do all efforts to fact proof the story so that no one could disqualify its validity. From what I see, Steven Stock has no history of making false statements or even accidentally broadcasting misleading stories. I am concerned we are being given another "fake news" excuse.

@Anke

I don't understand. You say the problem is not too little housing, but too much population. Then you say to incentivize balanced development so there's "room for everyone".

I don't think anyone disagrees. But the offices are already built, and keep being built. There's a large hole to climb out of before we can be balanced, and that's why people are calling for housing. If you also want to stop new offices, fine, but there will remain "too many people" until you kick Google out.

"they will be happy to live several a piece in 14x8 microunits stacked 10 or more stories high"

I don't think this is true. This is not the type of housing I see under construction and I don't know many techies who live like this, unless they're interns. The units will have to be stacked high though, regardless of their size.

Hello Lenny Siegel,

Here is my understanding of the “Big report” you sent to me after I briefly reviewed it.

Table 2 seems to indicate that there has been NO approval of the results by the EPA regarding the OM&M Plans and the Response Action and Implementation Reports, why did you not see this?

In table 3 the test sampling was not appropriate regarding outdoor air, the sample was only 8 hours and once done in every 4 years. THIS SAMPLING SCHEDULE SIMPLY CANNOT ESTABLISH STATISTICAL SIGNIFICANT RESULTS. Only at least a bi-weekly sampling traced throughout a year would be required to satisfy the real measurements of the ambient air. Also, to deal with outdoor sampling, given that those who do not live in an indoor TCE controlled building, you must take a 24 hour sample. So these results are NOT appropriate.

Just think that a person’s air quality where they need to open windows and use fans will suck in the TCE, and then the vapors can either attach themselves to surfaces or get trapped due to their heavy weight, typically a window is at least 30 inches above the floor, the TCE gets sucked in but settles below a windows pane so that it cannot escape. TCE is too heavy a molecule, the measurements will vary significantly in a variety of conditions. .

So, my question is who established the sampling standards? Since when is 1 test done every 4 years can establish safety? You know that in the course of the year the levels will change, especially during the summers due to heat. The test was performed in October, alone. To prove safety a continuous sampling schedule is required to establish actual safety. THE SAMPLING RATE IS SIMPLY NOT ENOUGH TO ESTABLISH STATISTICAL SIGNIFICANCE. I AM SURPRISED YOU DON’T KNOW THAT. This report in my opinion is simply unacceptable regarding the scientific standards one must achieve.

Hello Lenny,

I forgot to tell you, I do have an Associate’s degree in Life Sciences, along with 10+ years of ambient air monitoring experience.

To address the information provided in the EPA report

Just in case you do not know, the relative temperature and humidity will directly change the rate of TCE vaporization.

Given that the report indicates that one sample (335OUT‐1) was taken on 10/12/2016, the weather was 70 degrees F at highest and 74% humidity, this would cause a significant decrease of TCE vaporization.

Given that the report indicates that another sample (335OUT‐1) was taken on 10/10/2016, the weather was 70 degrees F at highest and 61% humidity, this would cause a significant decrease of TCE vaporization.

Given that the report indicates that one sample (440OUT1) was taken on 2/7/2016, the weather was 72 degrees F at highest and 61% humidity, this would cause a significant decrease of TCE vaporization.

From what I read form this site (Web Link from March to September, the temperatures themselves are much higher in average from 13 degrees to 30+ degrees F, and in my experience also very much drier, thus the TCE vaporization rate will significantly increase during that time. Taking 3 samples on only 3 days of the year is simply unacceptable scientifically.

Just in case I need to I am about to demonstrate how ambient air monitoring is required to do in order for it to be validate scientifically.

First, the devices doing analysis must be certified by the EPA or NIST to be used in such monitoring.

Second, documented validation tests regarding accuracy will need to be documented at least once every 3 months of use.

Third, the use f the devices requires documentation to ensure they are operated correctly.

Fourth, the persons operating the devices must be certified to act as technicians during the monitoring.

Fifth, it is required to have at least 3 devices per site monitor to establish device reading validation, if variance between devices are recorded significant enough, the entire data recorded is invalidated.

Sixth, A reading of the devices must be logged at least in 15minute intervals for 365 days in order to provide the daily, weekly, monthly, seasonally, and annual trend information required to establish it as a ambient air monitor and not just a sample or snapshot.

If any of these is not performed, it is clearly not an ambient air monitoring program, thus the results cannot be scientifically certified and approved. The fact that the EPA published this document did not declare Mountain View air safe, only publishing a report that in itself contains such scientific problems. You need to get another study dine with the above requirements satisfied, otherwise it is NOT safe to assume that the TCE vapors in Mountain View are below hazardous levels.