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HomeMy WebLinkAbout12-18-2012 c3 city-county agreement-leadagency status for aasp-cheveron project eircounci lagenea nepont C I T Y O F S A N L U I S O B I S P O FROM :Derek Johnson, Community Development Directo r Prepared By :Phil Dunsmore, Senior Planne r SUBJECT : Memorandum of Understanding between the City and the County to specify Lea d and Responsible Agencies for the purpose of certifying the Chevron EIR . RECOMMENDATIO N Approve the Memorandum of Understanding (MOU) to designate the City to act as Lead Agenc y and the County to act as Responsible Agency for the purpose of processing and certifying th e Chevron Tank Farm Environmental Impact Report (EIR) pursuant to Section 15050 of th e California Environmental Quality Act . DISCUSSIO N The City and the County of San Luis Obispo are working together to oversee the preparation o f • the EIR for the Chevron Tank Farm Remediation and Redevelopment project . The City Council was given an overview of this project on September 18 n'.The project consists of two principal components : 1)Remediation/restoration an d 2)Property development . Chevron is proposing two separate development options or scenarios, both of which are bein g processed simultaneously : one under the County's jurisdiction and one under the City's jurisdiction . Project-related work is proposed to include grading and remediation while under County jurisdiction, with development and dedication of open space likely occurring once th e project site is annexed to the City . The City and County have been acting as California Environmental Quality Act (CEQA) "co - lead agencies" in preparation of the Environmental Impact Report (EIR). However, CEQ A (section 15050) specifies that when a project is to be approved by more than one public agency , only one public agency may act as Lead Agency 'while the other agency acts as Responsibl e Agency 2 (Attachment 1). CEQA 15367 "Lead Agency means the public agency which has the principal responsibility for carrying out o r •approving a project" Z CEQA 15381 " Responsible Agency means a public agency which proposes to carry out or approve a project, for which a Lead agency is preparing or has prepared an EIR" May-18-1 2 Item Numb.,C3 C3-1 Chevron Remediation and Development EIR MO U December 18, 201 2 Page 2 In recent discussions with County staff, it was determined that the City should act as Lea d agency since the City will likely be acting on the project first, and the City will be considering a wider range of entitlements such as the annexation, tract map, specific plan amendments, th e development project and open space dedications . The County will only be considering th e grading and remediation portions of the project under the City development scenario . If entitlements are not processed through the City, Chevron will then have the opportunity to pursue similar entitlements in the County, utilizing the same EIR . Although an MOU between the City and County is not required, absent an agreement the agenc y that acts first on the project would be the agency that assumes the Lead Agency role . As the City and Chevron are actively engaged in discussions of a Development Agreement an d Reimbursement Agreement, it appears likely that the project's entitlements will be processe d through the City and therefore the City is likely the jurisdiction that would take initial action o n the EIR . The MOU includes a clause to allow the County to act as Lead agency to certify th e EIR for the purposes of the remediation project should the City choose not to certify the EIR . Next Step s The MOU requires approval by the City Council and the County Board of Supervisors . Th e agreement needs to be completed before the public draft of the EIR is released because the Draft EIR needs to declare the Lead Agency in the project introduction . Following the release of th e public draft EIR, staff will schedule a public hearing before the Planning Commission with a n emphasis on gathering public feedback and public comments . The EIR consultant will b e available at this hearing to assist with questions and receive comments . The release of the Draft EIR is anticipated to occur in January 2013 . CONCURRENCE S The City Attorney, City staff and County Counsel of San Luis Obispo have worked together t o prepare the MOU . FISCAL IMPAC T There is no fiscal impact as a result of the agreement to allow the City to assume Lead Agenc y role . The Lead Agency would be the agency responsible for any legal challenges as a result o f the EIR, however the EIR agreement with the applicant holds the City harmless in the event of a legal challenge . ALTERNATIVE S The Council may choose not to endorse an MOU at this time or may request that the County ac t as Lead agency . If no MOU is endorsed, the EIR may continue to proceed as planned, and th e first agency to certify the EIR at a public hearing would automatically become the Lead Agency . If the County assumes the role of Lead Agency, then the City may have to wait for the County t o certify the EIR before the City can act on entitlements . • • • • Chevron Remediation and Development EIR MO U December 18, 201 2 Page 3 ATTACHMENT S 1. CEQA section 15050 through 1505 2 2. Draft MOU T:\Council Agenda Reports\2012\2012-12-18\City-County Agreement- AASP-Chevron Project EIR (Johnson-Dunmore)\CAR City-Count y Agreement (12-18-12).docx • • C3-3 Title 14 Page 1 of 3Attachment 1C E A The California Environmental Quality Act • Title 14.Cahfornia Code of Regulation s Chapter 3 . Guidelines for Implementation of th e California Environmental Quality Ac t Article 4 . Lead Agency Sections 15050 to 1505 3 15050. Lead Agency Concep t (a)Where a project is to be carried out or approved by more than one public agency, one publi c agency shall be responsible for preparing an HR or Negative Declaration for the project . This agency shall be called the Lead Agency . (b)Except as provided in subdivision (c), the decision-making body of each Responsible Agency shal l consider the Lead Agency's EIR or Negative Declaration prior to acting upon or approving the project . Each Responsible Agency shall certify that its decision-making body reviewed and considered th e information contained in the EIR or Negative Declaration on the projec t (c)The determination of the Lead Agency of whether to prepare an EIR or a Negative Declaration shall be final and conclusive for all persons, including Responsible Agencies, unless : (1)The decision is successfully challenged as provided in Section 21167 of the Public Resource s Code, (2)Circumstances or conditions changed as provided in Section 15162, or (3)A Responsible Agency becomes a Lead Agency under Section 15052 . Note:Authority cited Section 21083, Public Resources Code ; Reference : Sections 21080 .1, 21165 , and 21167 .2, Public Resources Code . Discussion : This section provides a short and concise statement of the Lead Agency concept fo r clarity of this article. While the bulk of this article deals with identifying the appropriate Lead Agency , a summary of the Lead Agency concept is appropriate because the concept is fundamental to th e CEQA process as a whole . 15051 . Criteria for Identifying the Lead Agenc y Where two or more public agencies will be involved with a project, the determination of which agenc y will be the Lead Agency shall be governed by the following criteria : (a)If thg roject will be carried out by a public agency, that agency shall be the Lead Agency even i f the _project would be located within the jurisdiction of another public agency . (b)If the project is to be carried out by a nongovernmental person or entity, the Lead Agency shall b e the public agency with the greatest responsibility for supervising or approving the project as a whole . (1) The Lead Agency will normally be the agency with general governmental powers, such as a city o r county, rather than an agency with a single or limited purpose such as an air pollution control district C3-4 http ://Ceres.ca.gov/cega/guidelines/art4 .htm1 11/15/2012 Title 14 age 2 of 3Attachment 1 'or a district which will provide a public service or public utility to the project . •(2) Where a city prezones an area, the city will be the appropriate Lead Agency for any subsequen t annexation of the area and should prepare the appropriate environmental document at the time of th e prezoning. The Local Agency Formation Commission shall act as a Responsible Agency. (c)Where more than one public agency equally meet the criteria in subdivision (b), the agency whic h will act first on the project in question shall be the Lead Agency . (d)Where the provisions of subdivisions (a), (b), and (c) leave two or more public agencies with a substantial claim to be the Lead Agency, the public agencies may by agreement designate an agency as the Lead Agency . An agreement may also provide for cooperative efforts by two or more agencie s by contract, joint exercise of powers, or similar devices . Note: Authority cited : Section 21083, Public Resources Code ; Reference: Section 21165, Publi c Resources Code . Discussion :The purpose of this section is to provide the criteria for identifying which of severa l competing agencies shall be the Lead Agency for a project . By providing these criteria, the Guideline s will enable most agencies to determine forthemsel3es which agency is the appropriate Lead Agenc y in any given c ircumstance . Thus, most projects will be spared the additional time and cost involved i n submitting a Lead Agency dispute for resolution by the Office of Planning and Research . 15052 . Shift in Lead Agency Designatio n (a) Where a Responsible Agency is called on to grant an approval for a project subject to CEQA fo r which another public agency was the appropriate Lead Agency, the Responsible Agency shall assum e the role of the Lead Agency when any of the following conditions occur : •(1) The Lead Agency did not prepare any environmental documents for the project, and the statute o f limitations has expired for a challenge to the action of the appropriate Lead Agency. (2) The Lead Agency prepared environmental documents for the project, but the following condition soccur: (A)A subsequent EIR is required pursuant to Section 15162 , (B)The Lead Agency has granted a final approval for the project, and (C)The statute of limitations for challenging the Lead Agency's action under CEQA has expired . (3) The Lead Agency prepared inadequate environmental documents without consulting with th e Responsible Agency as required by Sections 15072 or 15082, and the statute of limitations has expire d for a challenge to the action of the appropriate Lead Agency. (b) When a Responsible Agency assumes the duties of a Lead Agency under this section, the tim e limits applicable to a Lead Agency shall apply to the actions of the agency assuming the Lead Agenc y duties . Note : Authority cited : Section 21083, Public Resources Code ; Reference: Section 21165, Publi c Resources Code . Discussion :The purpose of this section is to explain how Responsible Agencies shall deal with th e problem they encounter when the appropriate Lead Agency failed to comply with CEQA . As a general rule, Responsible Agencies must use the EIR or Negative Declaration prepared by the Lead Agenc y even if the Responsible Agency believes that the document is inadequate . The purpose for this genera l •rule is to require Responsible Agencies to work through the normal CEQA consultation and revie w process to obtain adequate documents from the Lead Agency . If the Responsible Agency i s dissatisfied with the end product, the Responsible Agency's only relief is to litigate the adequacy o f the document within 30 days . C3-5 http ://Ceres .ca .gov/cega/gtlidelines/art4 .html 11/15/2012 Title 14 P e 3 of 3AttacEiment 1 Section 15052 deals with the situation where the normal CEQA process broke down . The section • provides three exceptions to the general rule . These are (1) where the Lead Agency prepared n o document for the project, (2) where a subsequent EIR would be required, and (3) where the Lea d Agency failed to consult with the Responsible Agencies as required by CEQA . If any of thes e situations occurs and the statute of limitations has expired for a challenge to the action of th e appropriate Lead Agency, then the Responsible Agency would be required to assume the role of th e Lead Agency . These exceptions are narrowly drawn in order to require Responsible Agencies to wor k within the normal CEQA process to the maximum extent possible . Where the normal process break s down in any of these three ways, the Responsible Agency could not get an adequate document fro m the Lead Agency due to no fault of its own . This section provides an interpretation necessary to allo w the Responsible Agency to obtain an adequate analysis of the environmental problems . Subsection (b) is added to provide an interpretation as to which set of time limits would apply to th e agency when it shifts roles . There has been confusion on this point because the agency could b e viewed as either a Lead or a Responsible Agency . The section provides that when the agency acts i n the Lead Agency role, the time limits involved will be those that apply to a Lead Agency . 15053 . Designation of Lead Agency by the Office of Planning an d Researc h (a)If there is a dispute over which of several agencies should be the Lead Agency for a project, th e disputing agencies should consult with each other in an effort to resolve the dispute prior to submittin g it to the Office of Planning and Research . If an agreement cannot be reached,any public agency, o r the applicant if a private project is involved, may submit the dispute to the Office of Planning an d Research for resolution . (b)The Office of Planning and Research shall designate a Lead Agency within 21 days after receivin g a completed request to resolve a dispute. (c)Regulations adopted by the Office of Planning and Research for resolving Lead Agency dispute s may be found in Tide 14, California Code of Regulations, Sections 16000 et seq . (d)Designation of a Lead Agency by the Office of Planning and Research shall be based o n consideration of the criteria in Section 15051 as well as the capacity of the agency to adequately fulfil l the requirements of CEQA . Note :Authority cited: Section 21083, Public Resources Code ; Reference : Section 21165, Publi c Resources Code ; California Code of Regulations, Title 14, Sections 16000-16041 . Discussion : The purpose of this section is to outline the process to be used by the Office of Plannin g and Research in resolving Lead Agency disputes . Because resolving a dispute involves additional costs and delays for a project, the Guidelines require the disputing agencies to try to resolve the issu e among themselves . Only where an agreement cannot be reached, would the issue be submitted t o OPR . Once the dispute is submitted to OPR, certain formal steps would be required in order to allo w all interested parties to make their views known . These steps are contained in the regulations identifie d in subsection (c). This section outlines the process so that public agencies can understand the proces s before deciding to submit a dispute to OP R CERES I CEQA Home I CEQA Guidelines I Wetlands !LUPIN This file last modified on: Wednesday, October 26, 2005 . Document URL : http ://ceres.ca.gov/ceqa/guidelines/art4.html Copyright ®1998-2003 California Resources Agency .All rights reserved. http ://ceres.ca.gov/cega/guidelines/art4 .html C3-6 11/1512012 Attachment 2 • MEMORANDUM OF UNDERSTANDIN G This Agreement is between the City of San Luis Obispo, a chartered city and municipa l corporation, referred herein to "City", and the County of San Luis Obispo, a political subdivisio n of the State of California, referred to herein as "County". The City and County are collectivel y referred to as "Parties". RECITAL S A.Chevron is the owner of 332 acres of real property located at 276 Tank Farm Road , which is just south of the City and in an unincorporated area of the County ("Site"). B.Chevron is currently in the process of proposing a development agreement fo r consideration by the City to annex the Site for development and is seeking entitlements to allo w for development in the City including amendments of the Airport Area Specific Plan and Cit y General Plan Map . C.As the Site is currently in the unincorporated area of the County, Chevron is also seekin g entitlements from the County to enable it to remediate the Site of certain hazards prior t o developing its project in the City . D.Given the uncertainty of annexation and approval of specific plan amendments in th e •City, Chevron has decided to also file an application with the County to amend the Count y General Plan and obtain use permits to allow development in the County, which means Chevro n is proposing two separate development options, one within the County's jurisdiction and/or on e within the City's jurisdiction, depending upon whether annexation of the Site into the Cit y occurs . However, in either case the entitlements to perform the remediation work would b e acted on by the County . The project, therefore, would consist of either remediation within th e County's jurisdiction and development within the City's jurisdiction subsequent to annexation ; or, remediation and development within the County's jurisdiction should annexation of the Sit e into the City not occur (collectively referenced herein as the "Project"). E.The Project will require land use entitlements in the form of Specific Plan and Land Us e Map amendments, and a tentative tract map, from the City and General Plan amendments,a tentative tract map, remediation permits, and a Conditional Use Permit (CUP) from the County . The permitting process will require compliance with the California Environmental Quality Act , Cal . Public Resources Code, section 21000, et seq. ("CEQA"). Both the City and the Count y have determined that an environmental impact report ("EIR") is appropriate . F.Marine Research Specialists ("Consultant")is under separate contract with each Party to prepare an EIR for the Project . To date, Parties have been engaging Consultant in th e preparation of the EIR as "co-Lead Agencies". G.Under the CEQA Guidelines (Title 14 of the California Code of Regulations) Sectio n • 15051(d), when two or more public agencies have jurisdiction over a project subject to CEQA 1 C3-7 Attachment 2 review, the public agencies may by agreement designate an agency as the Lead Agency . An • agreement also may provide for cooperative efforts by two or more agencies by contact, join t exercise of powers, or similar devices . AGREEMEN T NOW THEREFORE, IT IS MUTUALLY AGREED AND UNDERSTOOD AS FOLLOWS : 1.Entitlement Authority .The City shall have the sole authority to issue land use an d Specific Plan amendments and Tentative Tract Map approval for that portion of the Project located within or proposed to be annexed into its boundaries, and the County shall have the sol e authority to approve General Plan amendments, a tentative tract map, a CUP, and remediatio n project approvals for that portion of the Project located within its boundaries . 2.Designation of Lead Agency .The Parties agree that for the purposes of satisfying CEQ A requirements to process and ultimately certify an EIR for the Project, the City shall act as an d assume the legal responsibilities of Lead Agency . In the event that, in acting on any portion o f the Project and considering whether to certify the Final EIR, the City declines to certify the Fina l EIR for any reason, the County shall act as Lead Agency for purposes of acting on any portion o f the Project and certifying the Final EIR . 3.CEQA Responsible Agency Special Duties .The Parties agree that, in accordance wit h CEQA Guidelines Sections 15096 and 15381, County shall act and assume the responsibilities of • Responsible Agency, and shall actively participate in the Lead Agency's CEQA Process , including reviewing and revising the Lead Agency's CEQA document and responses t o comments, and shall use that document when making a decision on the Project . County shall no t grant discretionary approval of any portion of the Project until the City has acted on the Projec t and either certified the Final EIR or declined to certify the Final EIR . 4.Dispute Resolution .In the event a dispute arises regarding the preparation and/or review of the Lead Agency's CEQA document, mutual negotiations shall occur at the Project staff level . Any remaining issues shall be considered at a negotiation sessions between the City's Community Development Director and the County's Director of the Department of Planning an d Building(collectively referred to as "Directors"). 5.EIR Documents .All EIR documents shall bear the seals of both Parties . 6.Additional County Meetings for Project .If County holds separate and/or additional public meetings/hearings regarding the Project, the County will forward all public comment s received to the Consultant . 7.Confidentiality of Drafts .All administrative reports, studies, materials, an d documentation, including but not limited to all administrative drafts and administrative finals , relied upon, produced, created or utilized for the Project and shared among the Parties will b e held in confidence pursuant to Government Code section 6254 .5(e). The Parties agree that sai d material will not be distributed, released or shared with any other organization, person or grou p 2 • C3-8 Attachment 2 •other than the parties' employees, agents and consultants whose work requires that acces s without the prior written approval of the party with the authority to authorize said release an d except as required or authorized by statute or pursuant to the terms of this Agreement . 8.Review of Drafts .The Parties agree that the Consultant will provide draft documents t o the Parties for joint review and approval before their release to Chevron or to the public . Disputes regarding modifications shall follow the same process as outlined in paragraph 4 . County shall review and provide to City any of its comments on draft documents related t o preparation of the EIR within the time schedule coordinated by the City's Project planner (wit h scheduling input from the County's review team). 9.Cooperation .The Directors, or their designees, shall confer monthly by conference call , at key milestones in the Project review process, and as needed to discuss schedule, policy issues , and other matters relevant to the preparation of the EIR . The Directors or their designees shal l meet in person prior to the release of the DEIR and prior to the release of the FEIR . In WITNESS WHEREOF, the City of San Luis Obispo and the County of San Luis Obispo hav e executed this Agreement as of the latest day and year written below . CITY OF SAN LUIS OBISPO COUNTY OF SAN LUIS OBISPO •By :By : Jan Man, Mayo r APPROVED AS TO FORM APPROVED AS TO FORM AND LEGAL EFFEC T RITA L . NEA L By :County Counse l J . Christine Dietrick, City Attorney By : Deputy County Counse l 3 C3-9 Page intentionally lef t blank . •