HomeMy WebLinkAbout08/03/2004, PH3 - AUGUST 3, 2004 PUBLIC HEARING ITEM #1 DALIDIO/MARKET PLACE DEVELOPMENT AGREEMENT AND SPECIAL TAX RE RECEIVED
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— MEETING AGENDA SLO CITY CLERK
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CPR
CITIZENS FOR PLANNING RESPONSIBLY
C/O Eugene Jud, President
665 Leff Street
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San Luis Obispo City Council
990 Palm Street
San Luis Obispo CA 93401
RE: August 3. 2004 Public Hearing Item #1 Dalidio/Market Place Development
Agreement and Special Tax Reimbursement Agreement
Dear San Luis Obispo City Council
Citizens for Planning Responsibly (CPR) urges the City Council to follow the
recommendation of the Planning Commission and reject the development agreement and special
tax reimbursement agreement because CPR opposes the Dalidio/Market Place Project for the
reasons we have already stated in the July 6 and 7, 2004 record. Additional testimony in
opposition to these two agreements is stated below.
1. All Further Action on this Project Should be Suspended and is Not Consistent with
the General Plan.
If Council does not reject these two agreements outright, CPR urges you to suspend any
action on them pending two determinations: 1) a decision by the Superior Court on whether the
Final EIR has been validly certified and on other matters challenged by the attached Petition for
Writ of Mandate filed July 28, 2004; 2) a decision by the voters on whether or not they want the
project to go forward at all.
At 3:00 pm August 2, 2004, Save San Luis Obispo plans to deliver to the City Clerk
petitions bearing, we are confident, more than enough signatures to qualify for a referendum on
the Council's July 6/7, 2004 General Plan Land Use Element (LUE) Map amendment regarding
the Dalidio/San Luis Market Place project (Resolution 9590). The clerk has thirty days in which
to verify the validity of those signatures. During that time, no action at all should take place on
the Dalidio/Market Place project, including any action on these two agreements, because all and
any such action is based on said General Plan Amendment, which will be subject to referendum.
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Under California Elections Code section 9237, the effective date of-the Council's decision
regarding Resolution 9590 is suspended and the Council must either reconsider its decision or,
under Elections Code section 9241, place the issue on the ballot. Therefore, any action on the
proposed Development Agreement and Special Tax Reimbursement Agreement should be
suspended. The agreements are not consistent with the General Plan Land Use Element (LUE)
map. The July 6/7 changes to said LUE map have been suspended until the voters decide the
issue, contrary to section O of the Development Agreement on page 3-94. All subsequent actions
regarding this project based on the proposed amended LUE map should be suspended.
Contrary to the fourth"WHEREAS" on the face of the Development Agreement
Ordinance, and SECTIONS 3, 4, 5 and 7 thereof, the project and the Development Agreement
will have a significant adverse impact on the environment. They are not supported by the Final
EIR. The Final EIR and its certification have been challenged in court for not complying with the
California Environmental Quality Act and failing to adequately address significant environmental
impacts. See attached copy of the Petition for Writ of Mandate filed July 28, 2004. Any action on
the project, including the Development Agreement should be postponed until the litigation has
been resolved by the court.
Also the Prezoning Ordinance referred to in Paragraph Q of the Development agreement,
page 3-94, has been suspended, due to the referendum, as detailed in CPR's letter regarding item
C-2 on the August 3, 2004, which is fully incorporated herein.
2. The Development Agreement Will Harm the Environment and Residents' Health.
None of the findings in Section 5 of the agreement (page 3-88) can be substantiated by
fact. All of the Class I significant unavoidable impacts listed in the EIR which cannot be mitigated,
and which Council has decided to allow,given "over-riding considerations" will harm the"health,
peace, comfort and welfare of persons residing or working in the surrounding area." Air pollution,
noise, and automobile accidents are obviously detrimental to human health. The Development
Agreement will be"materially detrimental" to the use, enjoyment or value of surrounding
property, due to the fact that the gridlock traffic arising from the project cannot be mitigated.
People will be living in the middle of a perpetual traffic jam. Many of the mitigation measures
offered in the FEIR would be completely ineffectual. The Development Agreement will be a
"menace to the public health, safety or general welfare" due to the tremendous environmental
damage it will do, as detailed in the flawed FEIR, as detailed in the pending lawsuit, attached.
a. The road between the proposed housing and LOVR has never been studied and
was not adequately analyzed in the EIR. It is not a proper use of Open Space, to pave it over.
Also, the impact on the creek and surrounding wetlands has not been analyzed, let alone
mitigated. The road will impair movement of wildlife and agricultural activities.
b. The horse race stadium and track should not be allowed on open space agricultural
land, since it is not an open space or agricultural use. It will conflict with agricultural uses and
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wildlife habitat.
C. Off site open space acquisition on this property arguably violates the City's
General Plan. Until this issue has been resolved through litigation, the City should not agree to it.
Also, City should not enter into an agreement in this regard without knowing specifically which
piece of land would be purchased by the developer and how much it would actually cost. The
developer should not be allowed to pay only $192,000 to fullfil this obligation. It should be
required, instead, to purchase an actual piece of comparable agricultural land near 101 and deed it
over to the city.
3. The Development Agreement is Bad Public Policy.
The Development Agreement at section 6.1 would have the City.Council to partner with
the developer to forbid City residents to adopt an initiative in the future regarding the Dalidio
property. CPR strenuously objects to the Council teaming up with the developer to rob residents
of this Constitutional right. Section 6.1 should be eliminated.
The Development Agreement at section 7.4 binds the City to continue with the project
even if third party litigation commences. Well, it has commenced, and unless it signs this
agreement, the City still has the option to halt the project. CPR urges the City to do so. Section
7.4 should be eliminated.
4. The Special Tax Reimbursement Agreement Violates the General Plan.
Despite staffs mantra to the effect that "50% of something is more than nothing," this
Special Tax Reimbursement Agreement shows clearly that development will not pay for itself, as
required by our General Plan. Given the City's present financial situation, this is a very bad time
to engage in a partnership with a project which would require the City to give 50% of the sales
tax so generated back to the developer. The City would finance the developer's portion of the
interchange costs (70.1%) through bonds. Other commercial projects would pay 100% of the
sales tax, putting the city in a much better financial position. Even with the"protections" built in
for the Downtown, CPR believes that this project would severely damage the Downtown
economically. The Downtown already has numerous vacancies and is facing an economic shock
from upcoming retrofit costs. Also, the administrative burden for the city to enforce this
agreement, especially the provisions regarding small shops, would be tremendous, perhaps even
requiring more staff. This arrangement is full of risks and pitfalls for the City, especially given Bill
Bird's past bankruptcies.
CONCLUSION
The Council needs to recognize the fact that a large number of city residents are very
upset about the Council's approval of this project and feel the Council is ignoring them. By
tabling this Ordinance and any future action on the Dalidio/Market Place project until after the
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voters have decided and the litigation has been resolved, the Council would be showing residents
that they are willing to listen to them. By proceeding full steam ahead, as if there were no
opposition, no referendum, no lawsuit, the Council would be showing just the opposite. This
attitude would likely make the community even more upset with the Council. CPR hopes the City
Council Will suspend all action of any kind regarding this project until the court and the voters
have had a chance to make their decisions.
Thank you for considering our testimony.
Yours Truly,
<4=ud, �•�
President, CPR
attached:Petition for Writ of Mandate
cc:Jana Zimmer,Esq.
4
1
Zimmer&;i`viarcus,LLP
2 Jana Zimmer State Bar#89978
2640 Las Encinas Lane
' Santa Barbara, CA. 93105
Tel: (805) 563-1591
4 Fax: (805-687-4156
.•,;i janazimmer@cox.net
5 \/ LLLNl1.
Attorneys for PETITIONER
6 CITIZENS FOR PLANNING RESPONSIBLY
7
s
SUPERIOR COURT OF THE STATr.OF C_-"LIFO-Wi-A
9 COUNTY OF SAN LUIS OBISPO
10
Case No.
I I C7TT7.FNS FOR PT,AINTNTNG 1
RESPONSIBLY, an unincorporated ) PETITION FOR WRIT OF MANDATE
12 association, )
13 PETITIONER )
vs. ) [Pub. Res Code 21168;21168.5; C.C.P ;
i4 CITY OF SAN LUIS OBISPO, a 1085, 1094.5A
15 Municipal Corporation, CITY COUNCIL )
of the CITY OF SAN LUIS OBISPO )
16 Respondents )
1 and
18 SAN LUIS OBISPO MARKETPLACE )
19 ASSOCIATES,LLC, a California limited liability )
company; ERNEST F. DALIDIO, JR., as Successor )
0 Trustee of the Dalidio Family Trust u/t/a dated )
October 29, 1987; ERNEST F. DALIDIO, JR. as )
21 Successor Trustee of the Thelma F. Perrozi Trust )
u/t/a dated February 7,1991; CLARA B. DALIDIO, )
22 as Trustee of the Clara B. Dalidio Trust )
u/t/a dated January 15, 1991 )
23 }
REAL PARTIES in Interest )
24
25
INTRODUCTORY ALLEGATIONS
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Q PETITION FOR WRIT OF MANDATE
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2 1. This action challenges the RESPONDENTS' actions taken on or about July 7,2004 certifying
3 an environmental impact report [EIR] under the California Environmental Quality Act,Pub.
4 Res. Code Section 21000 et. seq., and adopting and/or approving a General Plan Land Use
5 Element Amendment- changing land use designations from Interim Open Space to
6 Commercial,Retail, Office and Open Space, and from Medium-High Density Residential to
7 Office; a Prezoning Ordinance;A Use Permit;A Preliminary Development Plan;A Resolution
8 accepting a negotiated exchange of property tax revenues and annual tax increment; and A
9 Resolution of Application requesting that the Local Agency Formation Commission(LAFCO)
10 take proceedings for the Annexation of 131 Acres of property, hereinafter, "the PROJECT
APPROVALS", to allow development on property owned by REAL PARTIES and to be
12 known as the San Luis Marketplace, 2005 Dalidio Drive, San Luis Obispo, California. The
13 development is the single largest retail project ever proposed in the City of San Luis Obispo
14 and includes a regional shopping center of approximately 615,000 square feet of enclosed area,
15 a hotel,and a major highway interchange. The City's actions violate numerous provisions of
16 the California Environmental Quality Act, Pub. Res. Code Section 21000 et seq., and are
17 inconsistent with provisions of the General Plan of the City of San Luis Obispo in violation of
1.8 Government Code Section 65000 et seq.,as set forth herein. PETITIONER CITIZENS FOR
19 PLANNING RESPONSIBLY, [hereinafter, "PETITIONER"], seeks a writ of mandate
20 commanding RESPONDENT CITY COUNCIL to vacate and set aside these approvals.
21 PARTIES
22 2. PETITIONER is an unincorporated association whose members reside and pay taxes in the
23 City and County of San Luis Obispo.PETITIONER'S organizational purpose is to protect the
24 environment and quality of life in the City of San Luis Obispo, in accordance with the
25 principles stated in the Community Values, Preamble, San Luis Obispo's Vision, and
26 Community Goals section of the City of San Luis Obispo General Plan Land Use Element
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1)Q PETITION FOR WRIT OF MANDATE Page 2 of 18
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2 (1994). PETITIONER'S members are persons beneficially interested in the enforcement of the
public duties imposed by statute on RESPONDENTS herein, and are aggrieved by the acts,
4 decisions, and omissions of RESPONDENTS as alleged in this Petition.
5 3. RESPONDENT CITY OF SAN LUIS OBISPO is a charter city subject to the requirements of
6 the California Environmental Quality Act, [CEQA],Public Resources Code Section 21000 et
7 seq., the State of California Planning and Zoning Laws 65000 et seq., and the State of
8 California laws pertaining to Annexations of territory.
9 4. RESPONDENT CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO is the elected
10 governing body of the CITY and is charged with responsibility to consider whether to approve
11 development proposals within the City, and to render final decisions in compliance with the
12 California Environmental Quality Act,the State Planning and Zoning Laws,and the.State laws
13 pertaining to Annexation.
14 5. DOES 1 through 20, inclusive, are employees, officers, agents or subdivisions of the
15 RESPONDENTS CITY OF SAN LUIS OBISPO and CITY COUNCIL OF THE CITY OF
16 SAN LUIS OBISPO. PETITIONER believe and thereon allege that DOES 1-20 are
17 responsible in soiree manner for the actions described herein. DOES 1-20 are presently
18 unknown to PETITIONER.PETITIONER will amend this Petition to specifically identify each
19 such person as a RESPONDENT as the identity, interest and capacity of each such party, if
20 any, becomes knov n.
21 6. REAL PARTY SAN LUIS OBISPO MARKETPLACE ASSOCIATES, LLC is a California
22 Limited Liability Company. PETITIONER believes and thereon alleges that SAN LUIS
23 OBISPO MARKETPLACE ASSOCIATES, LLC has an option to purchase or other legal or
24 equitable interest in the property which is the site of the proposed development project.
25 7. REAL PARTY ERNEST F.DALIDIO,as Successor Trustee of the Dalidio Family Trust u/t/a/
26 dated October 29, 1987 and as Successor Trustee of the Thelma F. Perrozi Trust u/t/a/dated
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1)Q PETITION FOR WRIT OF MANDATE Page 3 of 18
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2 February 7, 1991 has a legal and/or equitable interest in the property which is the site of the
proposed development project.
4 8. REAL PARTY CLARA B. DALIDIO, as Trustee of the Clara B. Dalidio Trust u/t/a dated
5 January 15, 1991 has a legal and/or equitable interest in the property which is the site of the
6 proposed development project.
7 9. DOES 21-40, inclusive are Owners, employees, officers, or agents of Owners of the property
8 which is the subject the proposed development. DOES 21-40 are presently unknown to
9 PETITIONER.PETITIONER will amend this Petition to specifically identify each such person
10 as a REAL PARTY as the identity, interest and capacity of each such party, if any, becomes
11 known.
12 10. PETITIONER is informed and believes and thereon alleges that each RESPONDENT is an
1 agent of the others and acted on their behalf with regard to the matters alleged herein.
14 11. RESPONDENTS have the present ability to ensure compliance with CEQA,its General Plan,
15 and the State Planning Law before approving the project.
16 12. PETITIONER is informed and believes and thereon alleges that each REAL PARTY is an
1% agent of the others aad acted or,their behalf with regard to the matters alleged herein.
18 FIRST CAUSE OF ACTION
19 [For Writ of Mandate]
20 [Violation of Pub. Res. Code Section 21100 et seq.]
21 13. PETITIONER realleges and incorporates by reference the allegations of Paragraphs 1 through
22 12 of the Petition herein.
23 14. In or about February,2001,RESPONDENT CITY COUNCIL denied certification of an EIR
24 which analyzed proposed retail and commercial development on the site.
25 15. On or about June 27, 2002 REAL PARTIES submitted a new application for development
26 entitlements, including the PROJECT APPROVALS challenged by Petitioner herein.
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,)SZ PETITION FOR WRIT OF MANDATE Page 4 of 18
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2 16. On or about May 26, 2004, after a public hearing and consideration of the evidence, the
3 Planning Commission of the RESPONDENT CITY adopted (1) a Resolution No. 5396-04
4 recommending to the City Council that a Final EIR be certified, with modifications adding
5 Policy 1.4 Jobs/Housing Relationship to Table 5.1 and classifying the project as potentially
6 inconsistent with the General Plan,and modifying the conclusion in Table 5.1 regarding Policy
7 LU 1.13.5, Open Space from `consistent' to `potentially inconsistent' with the General Plan,
8 and finding that a Statement of Oyerriding Considerations should not be adopted because the
9 economic, social, and other considerations of the project do not outweigh the unavoidable
10 impacts, that the annexation as designed is `potentially inconsistent' with the City's General
11 Plan and that the annexation creates concerns for a further jobs/housing imbalance; and 2) a
12 Resolution No. 5397-04 recommending denial to the City Council of a General Plan
13 Amendment, Prezoning, Use Permit and Preliminary Development Plan, finding, inter glia,
14 that annexation and development of the site is notappropriate, and
potentially inconsistent
15 with policies included in the City's General Plan, including Policy LU 1.4 Jobs/Housing
16 Relationship and LU 1.13.5 Open Space. Under the applicable provisions of the CITY
17 Municipal Code, the Planning Commission's actions are final unless appealed.
18 17. On or about June 7, 2004,REAL PARTIES, or their agents, filed an appeal of the Planning
19 Commission's actions.
20 18. On or about July 7,2004,RESPONDENT CITY COUNCIL,after a public hearing,granted the
21 appeal and approved a Resolution making findings and certifying an Environmental Impact
22 Report for the "PROJECT APPROVALS". Respondents posted a Notice of Determination
23 under the California Environmental Quality Act. Pub. Res. Code Section 21000 et seq. on or
24 about July 9, 2004.
25 19. The California Environmental Quality Act [hereinafter, "CEQA"], Pub. Res. Code Section
26 21100 et seq., and its implementing regulations 14 CCR 15000 et seq., require
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Q PETITION FOR WRIT OF MANDATE Page 5 of 18
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2 RESPONDENTS to prepare and certify an adequate Environmental Impact Report
3 [hereinafter, "EIR"] prior to approving any project as defined under the statute. The
4 PROJECT APPROVALS herein constitute a project under CEQA. RESPONDENTS abused
5 their discretion and failed to proceed in the manner required by law in that the EIR certified
6 for
7 " the PROJECT APPROVALS" fails to comply with CEQA in the following respects:
8 19.1 RESPONDENTS impermissibly segmented or piecemealed the "PROJECT
9 APPROVALS"because the EIR failed to fully disclose and analyze the impacts and provide
10 mitigation measures for the construction of the Prado Road Extension, the Prado Freeway
11 Interchange and related roadway improvements.
12 19.2 The EIR is inadequate under Pub. Res. Code Section 21100(b)(1) because it
13 failed to fully disclose and analyze, and provide mitigation for, the direct, indirect and
14 cumulative impacts of the project,including but not limited to impacts in the following issue
15 areas: (1)traffic and circulation;(2)flooding,drainage and hydrology;(3)growth inducement;
16 (4) impacts to public services, including but not limited to water resources, wastewater, and
17 solid waste disposal; (5) inconsistencies with community design guidelines; (6) impacts to
18 agriculture; (7)biological resources, including,but not limited to impacts to wetlands and to
19 habitat of the great blue heron, monarch butterfly and red legged frog; (8) impacts of the
?0 approval of a development agreement; (9) impacts of the construction of the Prado Freeway
21 Interchange and related roadway improvements; (10) impacts of the construction of housing
22 units, including but not limited to impacts to schools and parks; (11) visual resources; (12)
23 Land Use Impacts; (13)inconsistencies with goals and policies in the Land Use; Circulation,
24 Housing and Open Space Elements of the General Plan, and the Clean Air Plan of the Air
25 Pollution Control District (APCD), and (14) impacts to the historic downtown and historic
26 resources on the project site.
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PETITION FOR WRIT OF MANDATE Page 6 of 18
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2 19.3 The EIR improperly relied on projections and analysis in the 1994 General Plan
3 EIR.
4 19.4 The EIR failed to analyze ostensibly feasible alternatives to the project,including
5 a`phased' annexation, a significantly smaller project,a mid-Higuera street site,and alternative
6 downtown sites.
7 19.5 The EIR failed to analyze and identify feasible mitigation measures, and the
8 mitigation measures identified in the EIR are either inadequate, infeasible, improperly
9 deferred or unenforceable in violation of Pub.Res. Code Section 21100(b)(3),21002,21002.1
10 and 14 CCR 15126(e);15125(d) and 15130(d)(3).
11 Based on the aforementioned errors and omissions, the EIR does not contain all of the
12 information required to be included and is therefore inadequate under Section 21100 of the Public
13 Resources Code.
14 i. Pub. Res. Code Section 21081, 21002.1 and 14 CCR Section 15091 require that no public
15 agency shall approve or carry out a project for which an EIR has been certified and which
16 identified one or more significant environmental effects unless the agency finds that changes
1% or alterations have been required in or incorporated into the project which avoid or
18 substantially lessen the significant environmental effects, or such changes are within the
19 responsibility and jurisdiction of another public agency and not the agency making the finding,
20 and such changes have been adopted by such other agency or can and should' be adop ed by
21 such other agency, and/or that specific considerations make infeasible the alternatives in the
22 final EIR. All such findings must be supported by ,substantial evidence in the record.
23 RESPONDENTS failed to proceed in the manner required by law in that the findings adopted
24 by the RESPONDENTS are inadequate as a matter of law,do not support the decision,and/or
25 are not supported by substantial evidence in the record.
26 20.1 RESPONDENTS failed to make adequate findings setting forth their reasons for
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PETITION FOR WRIT OF MANDATE Page 7 of 18
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2 rejecting the environmentally superior alternative(s)to the project, and the rejection of such
alternatives is not supported by substantial evidence.
4 20.2 The findings that certain impacts in.the issue areas of Geology/Hazards,
5 Drainage and Water Quality, Biological
6 Resources, Aesthetics and Land Use are
7 mitigated are not supported by substantial
8 evidence because the mitigation measures
9 adopted by the City are inadequate to reduce the
10 impacts to below the threshold of level of
11 insignificance. Respondents failed to make
12 required findings that changes have been
13 incorporated to.avoid or lessen other impacts,
14 including air quality and traffic and circulation
15 impacts,which were found to be significant but
16 mitigable.
I-, 20.3 The findings that certain Class I,significant,unavoidable impacts are acceptable
18 are irrelevant and not supported by substantial evidence.
19 20.4 The Statement of Overriding Considerations is not supported by substantial
20 evidence.
21 20.5 Respondent failed to make required findings that certain cumulative impacts are
22 significant and unavoidable.
23 20.6 Respondent failed to make required findings that growth inducing impacts are
24 significant and unavoidable.
25 20.7 Respondent's re-classification of Impact DW-1 from significant and unavoidable
26 to significant but mitigable is not supported by substantial evidence. The City's failure to
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R PETITION FOR WRIT OF MANDATE Page 8 of 18
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2 recirculate the EIR to enable additional public comment on the City's deletion of a Class I
impact on Drainage,Flooding and Water Quality from the Final E1R deprived the public of an
4 adequate opportunity to participate in the proceedings in violation of 14 CCR 15088.5.
5 20. The Mitigation Monitoring Plan is inadequate under Pub.Res. Code Section 21081.6 because
6 the measures do not constitute adequate enforceable commitments to mitigate the project's
7 identified impacts to, inter alia, aesthetics, traffic circulation and safety, air pollution,
8 biological resources, geology, and public services and infrastructure.
9 21. The Responses to Comments are not adequate under CEQA and its implementing regulations,
10 14 CCR 15088(b)including but not limited to responses regarding the inadequacy of the traffic
I I and circulation analysis,failure to consider alternatives and failure to adopt feasible mitigation
12 measures.
13 22. PETITIONER, including its individual members,has exhausted its administrative remedies by
14 appearing before RESPONDENTS and providing testimony orally and/or in writing setting
15 forth the aforesaid objections to the PROJECT APPROVALS. PETITIONER has complied
16 with PRC Section 21167.7 and Code of Civil Procedure Section 388 by serving a copy of this
17 Petition on the Attorney General. PETITIONER has also complied with Public Resources
18 Code Section 21167.5 by serving on RESPONDENT a Notice of Commencement of Action
19 prior to the filing of this action.Assuming without admitting that said section is applicable to
?0 this action, PETITIONER has complied with Gov. Code Section 065009(c) by seining a
21 statement of their objections to the adoption of the PROJECT APPROVALS prior to the filing
72 of this action.
23 //
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25 SECOND CAUSE OF ACTION
26 For Writ of Mandate C.C. P. 1094.5;1085
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1 Q PETITION FOR WRrr OF MANDATE, Page 9 of 18
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2 [Violation of Planning and Zoning Law Gov. Code Section 65000 et seq.]
3 23. PETITIONER realleges and incorporates by reference the allegations ofParagraphs 1 through
4 23 of the Petition as though fully set forth herein.
5 24. RESPONDENTS abused their discretion and their fmdings are not supported by the evidence
6 in that the PROJECT APPROVALS violate the State Planning and Zoning Law, Government
7 Code Section 65000 et seq., and the City Municipal Code because the General Plan
8 Amendment and related approvals are inconsistent with various policies of the City's General
9 Plan, and the PROJECT APPROVALS will frustrate the objectives ofthe General Plan in that
10 the City failed to adopt affirmative measures to mitigate the project's adverse effects on
11 General Plan goals and policies, including but not limited to the following:
12 25.1 The current General.Plan Land Use Element Map shows a potential development
13 of forty (40) acres of General Retail on the subject property, while the PROJECT
14 APPROVALS include of 48.7 Acres of General Retail,plus a hotel,plus 8.1 Acres of Office,
15 and 3.3 Acres of residential development.
16 25.2 The PROJECT APPROVALS are inconsistent with Land Use Element Policy
17 1.13.5 in that the PROJECT APPROVALS do riot require a sufficient number of acres of the
18 subject property to be dedicated to agriculture and open.space.
19 25.3 The PROJECT APPROVALS are inconsistent with Land Use Element Policy 1.4
20 because the construction and operation of the project will exaeer'oate an existingjob lrousi::g
21 imbalance in the City.
22 25.4 The PROJECT APPROVALS are inconsistent with Open Space Element Policy
23 1.A.2 and LA3 for Agricultural Land in that the City failed to protect the Prefumo creek
24 setback area from urban uses, failed to protect the portion of the Dalidio Property used by
25 herons and other unique resources or sensitive habitat and failed to consider transfer of
26 commercial development potential from the Dalidio site's commercial area to the Madonna
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2 and Central Coast Plaza sites;.
3 25.5 The PROJECT APPROVALS are inconsistent with Open Space Element Policy
4 1.A.1 which calls for preservation of the southern portion of the subject property entirely in
5 agricultural use;
6 25.6 The PROJECT APPROVALS are inconsistent with Open Space Element Policy
7 3.A which provides for protective easements as a condition of discretionary and development
8 approvals in creek corridors and creek setback areas;
9 25.7 The PROJECT APPROVALS are inconsistent with Open Space Element Policy 2
10 in that the agricultural buffer is not adequate to eliminate adverse impacts and conflicts with
11 human use.
12 25.8 The PROJECT APPROVALS are inconsistent with Land Use Element Policy
13 1.13.2 which calls for the use of annexation as a growth management tool;
14 25.9 The PROJECT APPROVALS are inconsistent with Land Use Element Policy
15 3.1.3 which calls for an evaluation of how much an expansion of retail uses in the Madonna
16 Road area would transfer sales from existing retail areas in the City,and requires consideration
11 of whether proposed uses could be developed in existing retail areas,and the City's study was
18 inadequate and its conclusions were not supported by substantial evidence;
19 25.10 The PROJECT APPROVALS are inconsistent with policies of the Housing
20 Element to maximize affordable housing opportunities for those who live or work in Sa"Luis
21 Obispo while seeking to balance job growth and housing supply, and Policy 11.2.1 which
22 provides that where property is equally suited for commercial or residential uses,the City shall
23 give preference to residential uses. The PROJECT APPROVALS include a redesignation of
74 land from medium, high density residential to Office uses, and the City failed to impose a
25 specific condition requiring construction of housing units as part of the project.
26 25.11 The PROJECT APPROVALS are inconsistent with Land Use Element Policy
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PETITION FOR WRIT OF MANDATE Page 11 of 18
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2 6.4.7 which encourages the use of porous paving, in that the project approvals include paved
parking areas in excess of ordinance requirements,which will exacerbate run-off,flooding and
4 water quality impacts, and which violate Mitigation Measure CIRC-2 on the 1994 General
5 Plan.
6 25.12 The PROJECT APPROVALS are inconsistent with Land Use Element Policy
7 .3.1.3 which calls for development to be aesthetically and
8 functionally compatible with existing development in the area;
9
10 25.13 The PROJECT APPROVALS are in with Circulation Element Policy
11 5.2 in that the project will result in a significant increase in traffic on residential streets,
12 including but not limited to North Broad Street, which is a residential collector street
13 designated to be limited to 3000 Average Daily Trips.
14 25.14 The PROJECT APPROVALS are inconsistent with the Circulation Element
15 Policy Neighborhood Traffic Management Policies 6.1,6.2,6.3, and 7.3 in that the project
16 constitutes a commercial development which will use local streets,and the City has failed to
17 mitigate the adverse impacts on residential neighborhoods.
18 25.15 The PROJECT APPROVALS are inconsistent with Circulation Element Policy
19 8.10 in that the City has failed to ensure that changes to Prado Road are implemented in a
20 sequence that satisfies circulation demands caused by area development.
21 25.16 The PROJECT APPROVALS are inconsistent with Circulation Element Policy
22 8.15 which requires that as a part of any proposal to further develop the Dalidio-Madonna-
23 McBride Area,the alignment and design of a road connecting Prado Road(west of Route 10 1)
24 with Los Osos Valley Road shall be evaluated and established.
25 25.17 The PROJECT APPROVALS are inconsistent with Land Use Element Policy
26 1.13.2 because the.City failed to consider annexation with phases to reflect needed capital
27
7R
PETITION FOR WRIT OF MANDATE Page 12 of 18
1
2 facilities and funding.
3 25.18 The PROJECT APPROVALS are inconsistent with Land Use Element Policy
4 1.14 which requires that the cost of public facilities and services needed for new development
5 shall be borne by the new development,unless the City determines to help pay for the costs to
6 obtain community-wide benefits,in that there is no evidence of community wide benefit from
7 the project.
8 25.19 The PROJECT APPROVALS are inconsistent with Land Use Element Policy
9 1.15 because the City has failed to determine that adequate capacity exists, cumulatively, to
10 serve the project.
11 25.20 The PROJECT APPROVALS are inconsistent with Land Use Element Policy 8.8
12 to preserve significant parts of this signature working agricultural landscape at the southern
13 gateway to San Luis Obispo.
14 1 25.21 The PROJECT APPROVALS are inconsistent with the Noise Element of the
15 General Plan, including Policy.-1.2.16 and Policy 9.
16 THIRD CAUSE OF ACTION
17 For Writ of Mandate C.C.P Section 1094.5, C.C.P Section 1085
IS 25. PETITIONER realleges and incorporates by reference the allegations of Paragraphs 1-25 as
19 though fully set forth herein.
20 26. On or about July 7,2004,RESPONDENT CITY COUNCIL upheld REAL PARTIES' appeal
21 and approved an Ordinance Prezoning the subject property and granting Preliminary
22 Development Plan approval.
23 27. RESPONDENT abused its discretion and failed to proceed in the manner required by law in
24 that the prezoning and preliminary development plan are not consistent with the General Plan,
25 and its findings, including but not limited to the findings that the proposal is consistent with
26 the intention of Land Use Element Policy 1.13.5,that the project is consistent with the General
27
Q PETITION FOR WRIT OF MANDATE Page 13 of 18
1
2 Plan, that the project complies with all applicable City Design Guidelines, that all affected
3 public facilities,services and utilities are adequate,that the location,size,site planning,design
4 and operating characteristics are compatible with the character of the site, that the site is
5 adequate and has appropriate access to public streets with adequate capacity to accommodate
6 the quantity and type of traffic expected to be generated by the use,that the project will not be
7 detrimental to the health, safety, or general welfare of persons residing or working in the
8 vicinity, or to the general welfare of the City, are arbitrary and capricious and are not
9 supported by substantial evidence.
10 28. The project does not meet the requirement for mandatory project features because there is no
I 1 commitment or condition requiring an affordable housing component.
12 29. There is no substantial evidence to support a height exception to allow a 51 foot high building
13 for the hotel.
14 FOURTH CAUSE OF ACTION
15 [for Writ of Mandate C.C. P. Section 1094.5]
16 30. PETITIONER realleges and incorporates by reference the allegations of Paragraphs 1-25 as
17 though fully set Orth herein.
18 31. On or about July 7,2004,RESPONDENT CITY COUNCIL upheld REAL PARTIES' appeal
19 and adopted a Resolution approving a Use Permit to allow large scale retail stores in
20 conjulliction with the consideration of the Dalidio/San Luis Marketplace A-Mexation and
21 Development project.
22 32. RESPONDENTS failed to proceed in the manner required by law and abused their discretion
23 in that their findings,including but not limited to the findings that the EIR is adequate;that the
24 use is consistent with the General Plan, that the scales of the buildings are compatible with
25 existing uses,and that the proposed large scale retail uses will serve the community and will
26 result in a potential increase of local restaurant, entertainment and even other retail uses
27
1)Q PETITION FOR WRIT OF MANDATE Page 14 of 18
f'
1
2 elsewhere in the City are not supported by substantial evidence.
FIFTH CAUSE OF ACTION
4 For Writ of Mandate C.C.P. 1094.5, 1085
5 33. PETITIONER realleges and incorporates by reference the allegations of Paragraphs 1-25 as
6 though fully set forth herein.
7 34. On or about July 7, 2004 RESPONDENT CITY COUNCIL adopted a Resolution requesting
8 that the Local Agency Formation Commission[hereinafter"LAFCO"]approve the Dalidio/San
9 Luis Marketplace Annexation and Development project.
10 35. RESPONDENTS abused their discretion and failed to proceed in the manner required by law
11 in that the finding that the annexation will enable the City to achieve its General Plan goals is
12 not supported by substantial evidence.
13
14 'WHEREFORE, PETITIONER requests judgment against RESPONDENTS and REAL
15 PARTIES as follows:
16 1. For an alternative and peremptory writ of mandate directing RESPONDENTS to set aside
17 their approval and certification of the EIR and their approvals, including the General Plan Land Use
18 Element amendments and related entitlements;
19 2. For a peremptory writ of mandate directing RESPONDENTS to comply with CEQA with
20 respect to the project, and to reconsider their findings and decision in iight.of this court's decision.
21 3. For a temporary stay order, temporary restraining order, and preliminary and permanent
22 injunction restraining RESPONDENT their agents, employees, officers and representatives from
23 takine any further action to implement the PROJECT APPROVALS, including but not limited to
24 pursuing any application for annexation through LAFCO, issuing any further permits or approvals, .
25 entering into any contract for the expenditure of public funds in furtherance of construction of the
26 project, pending compliance with CEQA and all other applicable laws.
27
7R
PETITION FOR WRIT OF MANDATE Page 15 of 18
1
2 6. For Costs of suit;
7. For attorney fees pursuant to Section 1021.5 of the Code of Civil Procedure.
4 8. For such other and further relief as the court deems just and proper.
5
6 ZIMIVMR&MARCUS, LLP
7 Dated: By.
8 Tana Zimmer
Attorney for PETITIONER
9 CITIZENS FOR PLANNING
RESPONSIBLY
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R PETITION FOR WRIT OF MANDATE''; Page 16 of 18
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2 VERIFICATION
3 STATE OF CALIFORNIA, COUNTY OF SAN LUIS OBISPO
4 I, GERALD R. MOOR_F, have read the foregoing Petition for Writ of Mandate and know its
5 contents.
zens for
ONER in tl-�s action.
6 The matters the
din Vice-President retrue of mylown knowledge Planning c except as tolthose matte which are stated on
7 information and belief, and as to those matters I believe them to be true.
8 Executed under penalty of perjury on , 2004 at San Luis Obispo, California.
9
10
Signature
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12 PETITION FOR WRIT OF MANDATE
1
PROOF OF SERVICE BY MAIL,
STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA
4 I am over the age of 18 and not a party to the within action; my business address is 2640 Lasa
5 E=MU-S Lane, Santa Barbara, California.
6 On July 28.2004 1 served the foregoing document described as:/Petition for Writ of Mandate,
on RESPONDENTS City of San Luis Obispo and on the Attorney General of the State of California by
7 placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in the
U.S. mail at Santa Barbara, California addressed as follows:
8
9 Bill Lockyer
Attorney General
10 300 S. Spring St.
Los Angeles, CA. 90013
I1
12 Executed at Santa Barbara, California on July 28.2004.\I declare under penalty of perj ury that the
above is true and correct.
13
14 Jana Zimmer
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PETITION FOR WRIT OF MANDATE'; Page 18 of 18
AUG-01-2004 07:06 J� 8055412239 P.01/04
RECEIVED
CPR AU6 U 2 2004
CMZENS FOR PLANNING RESPONSIBLY SLO CITY CLERK
C/O Eugene Jud,President
COUNCIL ..-"CDD Dla 665 Leff Street
/CAC r^F1 DIR San Luis Obispo CA 93401 RED FILE
,eACAO AFIRE CHIEF
Z'ATTORNEY $PW DIR MEETING AGENDA
ifCLERK/ORIG �, POLICE CHF
❑ DEPT HEADS IR=C DIR August 2,2004 DATE ITEM #
JAI
IUTIL DIR
VIA HAND DELIVERY & FACSIMII,E 781-7109
San Luis Obispo City Council
990 Palm Street
San Luis Obispo CA 93401
RE: August 3.2004 Public Hearing Item#1al W-M rket Place Development
Agreement and Special Tax Reimbursement AgI eement
Dear San Luis Obispo City Council:
Citizens for Planning Responsibly(CPR)urges the City Council to follow the
recommendation of the Planning Commission and reject the development agreement and special
tax reimbursement agreement because CPR opposes the Dalidio/Market Place Project for the
reasons we have already stated in the July 6 and 7, 2004 record. Additional testimony in
opposition to these two agreements is stated below.
1. AllFuwrther Action on this P 'ect Should he Suspended and is Not Consistent with
the General Plan.
If Council does not.reject these two agreements outright, CPR urges you to suspend any
action on them pending two determinations: 1)a decision by the Superior Court on whether the
Final EIR has been validly certified and on other matters challenged by the attached Petition for
Writ of Mandate filed July 28, 2004-$.2) a decision by the voters on whether or not they want the
project to go forward at all.
At 3:00 pm August 2, 2004, Save San Luis Obispo plans to deliver to the City Clerk
petitions bearing, we are confident, more than enough signatures to qualify for a referendum on
the Council's July 6/7, 2004 General Plan Land Use Element (LUE)Map amendment regarding
the Dalidio/San Luis Market Place project (Resolution 9590). The clerk has thirty days in which
to verify the validity of those signatures. During that time, no action at all should take 121ace on
the Dalidio/Market Place project, including any action on these two agreements, because all and
any such action is based on said General Plan Amendment,which will be subject to referendum.
I
RUG-01-2004 0706 J 8055412239 P.02/04
i
Under California Elections Code section 9237, the effective date of-the Council's decision
regarding Resolution 9590 is suspended and the Council must either reconsider its decision or,
under Elections Code section 924.1, place the issue on the ballot. Therefore, any action on the
proposed Development Agreement and Special Tax Reimbursement Agreement should be
suspended. The agreements are not consistent with the General Plan Land Use Element(LUE)
map. The July 6n changes to said LUE map have been suspended until the voters decide the
issue, contrary to section O of the Development Agreement on page 3-94. All subsequent actions
regarding this project based on the proposed amended LUE map should be suspended.
Contrary to the fourth"WHEREAS" on the face of the Development Agreement
Ordinance, and SECTIONS 3, 4, 5 and 7 thereof, the project and the Development Agreement
will have a significant adverse impact on the environment. They are not supported by the Final
EIR. The Final EIR and its certification have been challenged in court for not complying with the
California Environmental Quality Act and failing to adequately address significant environmental
impacts. See attached copy of the Petition for Writ of Mandate filed July 28, 2004. Any action on
the project, including the Development Agreement should be postponed until the litigation has
been resolved by the court.
Also the Prezoning Ordinance referred to in Paragraph Q of the Development agreement,
page 3-94, has been suspended, due to the referendum, as detailed in CPR's letter regarding item
C-2 on the August 3, 2004, which is fully incorporated herein.
2. The Development Agreement Will Harm the Environment and Residents' Health
None of the findings in Section 5 of the agreement (page 3-88) can be substantiated by
fact. All of the Class I significant unavoidable impacts listed in the EIR which cannot be mitigated,
and which Council has decided to allow, given"over-riding considerations" will harm the"health,
peace, comfort and welfare of persons residing or working in the surrounding area."Air pollution;
noise, and automobile accidents are obviously detrimental to human health. The Development
Agreement will be"materially detrimental" to the use, enjoyment or value of surrounding
property, due to the fact that the gridlock traffic arising from the project cannot be mitigated.
People will be living in the middle of a perpetual traffic jam. Many of the mitigation measures
offered in the FEIR would be completely ineffectual. The Development Agreement will be a
"menace to the public health, safety or general welfare" due to the tremendous environmental
damage it will do, as detailed in the flawed FEIR, as detailed in the pending lawsuit, attached.
a. The road between the proposed housing and LOUR has never been studied and
was not adequately analyzed in the EIR. It is not a proper use of Open Space, to pave it over.
Also, the impact on the creek and surrounding wetlands has not been analyzed, let alone
mitigated. The road will impair movement of wildlife and agricultural activities.
b. The horse race stadium and track should not be allowed on open space agricultural
land, since it is not an open space or agricultural use. It will conflict with agricultural uses and
2
AUG-01-2004 07 06Aa . 8055412239 P.03/04
wildlife habitat.
C. Off site open space acquisition on this property arguably violates the City's
General Plan. Until this issue has been resolved through litigation, the City should not agree to it.
.Also, City should not enter into an agreement in this regard without knowing specifically which
piece of land would be purchased by the developer and how much it would actually cost. The
developer should not be allowed to pay only $192,000 to fiillfil this obligation. It should be
required, instead, to purchase an actual piece of comparable agricultural land near 101 and deed it
over to the city.
3. The Development Agreement is Bad Public Policy,
The Development Agreement at section 6.1 would have the City-Council to partner with
the developer to forbid City residents to adopt an initiative in the future regarding the Dalidio .
property. CPR strenuously objects to the Council teaming up with the developer to rob residents
of this Constitutional right. Section 6.1 should be eliminated.
The Development Agreement at section 7.4 binds the City to continue with the project
even if third party litigation continences. Well, it has commenced, and unless it signs this
agreement, the City still has the option to halt the project. CPR urges the City to do so. Section
7.4 should be eliminated.
4. The Special Tax Reimbursement Agreement Violates the General Plan
Despite staffs mantra to the effect that"50% of something is more than nothing," this
Special Tax Reimbursement Agreement shows clearly that development will not pay for itself, as
required by our General Plan. Given the City's present financial situation, this is a very bad time
to engage in a partnership with a project which would require the City to give 50% of the sales
tax so generated back to the developer. The City would finance the developer's portion of the
interchange costs(70.1%) through bonds. Other commercial projects would pay 100% of the
sales tax, putting the city in a much better financial position. Even with the"protections"built-in
for the Downtown, CPR believes that this project would severely damage the Downtown
economically. The Downtown already has numerous vacancies and is facing an economic shock.
from upcoming retrofit costs. Also, the administrative burden for the city to enforce this
agreement, especially the provisions regarding small shops, would be tremendous, perhaps even
requiring more staff. This arrangement is full of risks and pitfalls for the City, especially given Bill
Bird's past bankruptcies.
CONCLUSION
The Council needs to recognize the fact that a large number of city residents are very
upset about the Council's approval of this project and feel the Council is ignoring them. By
tabling this Ordinance and any future action on the Dalidio/Market Place project until after the
AUG-01-2004 07:06 • 8055412239 P.04/04
AD
voters have decided and the litigation has been resolved, the Council would be showing residents
that they are willing to listen to them. By proceeding full steam ahead,as if there were no
opposition, no referendum, no lawsuit, the Council would be showing just the opposite. This
attitude would likely make the community even more upset with the Council. CPR hopes the City
Council will suspend all action of any kind regarding this project until the court and the voters
have had a chance to make their.decisions.
Thank you for considering our testimony.
Yours Truly,
Eugene Jud, C�
President, CPR
attached:Ped4on for writ of Mandate
cc:Jana Zimmer,Esq.
4
TOTAL P.04
Richard Schmidt $REDfILE 208/2/4 01:49 PIA D114
a
_ - MEETING AGENDA I.
RICHARD SCHMIDT DATE ITEM #.IN 3
45" Q road Street, San Luis Obispo, CA 9340
COUN IL �c D-JIR I ED
CAO Z'FIN DIR
J.ZACAO ;y- IRE CHIEF AU6 U 2 2004
August 2, 20041.��ATTORNEY 2.-PW DIR
r;?'CLERKORIG IPOLJCE CHF SLID CITY CLERK
I �. ,EPT DS ZIREC DIR
To the City Coun ,,c� Z-UTIL DIR Re. Marketplace Development Agreement
-- � DIR
I urge you to reject this development agreement.
The Planning Commission is absolutely correct in determining that this agreement is not in the
best interests of the city and its citizens, and should be rejected. They are to be praised for
standing up to a staff so arrogant that it offered no alternatives to the staff-initiated agreement,
not even a draft resolution for its denial. The city hall arrogance reflected in this simple fact is
exemplary of how out of touch current top staff are from their fiduciary responsibilities to the
people who pay them for their "service."
The development agreement is the most offensive "public" document I've ever seen.
There are many, many offensive parts of the development agreement, but perhaps the most
offensive is the giveaway of sales tax funds to the developer for a prolonged period of years.
This is a gift of public funds to the developer, and has no rational basis. The developer is being
reimbursed for what? For building this monster center which will destroy the character and
economic stability of our city? Why should he get this sort of special gift?This is the sort of
project incentivization used by Podunks in states like Tennessee, Alabama, Mississippi and
Louisiana that are so desperate for economic development they'll try anything; inevitably, they
get burned, as San Luis Obispo will also get burned. There is no excuse for our city's entering
into this sort of arrangement we are one of the most desirable places on the face of earth for
development and we do not need to pander to get what we want.
Another offensive part of this agreement is that you are entering into a Iona term financial
agreement with a developer has already stiffed the city financially under terms he agreed to for
a former development. Why is it not fiscally irresponsible for the city to enter into an agreement
with someone who has already caused the city such grief? How much have you budgeted to
cover future litigation, instigated by him or by you, in connection with these long-term financial
entanglements?
A third offensive part of the development agreement is that it puts the city's General Fund on the
line as collateral for some of the project's debts. This it immoral, and not very smart. I think
when the citizens understand that the council has put police service on the chopping block so it
can help pay for the Marketplace. there will be a revolt against those responsible for this
disgrace.
A fourth offensive part of development agreement is that it informs us for the first time, in the
course of the council's piecemealed approvals for the Marketplace, offs we had not known
before, like the inclusion of a major roadway to Los Osos Valley Road, which bisects the
agricultural open space and crosses the sensitive Prefumo Creek habitat zone (home to
Schmidt, Page 1, Development Agreement
Richard Schmid[ '0'544-4247 M8/2/4 01:49 PM D 214 .
numerous endangered and threatened species and species of interest) and was not studied in
the project EIR. This roadway was not shown on the map the Council adopted in its previous
land use approvals, nor is it shown on maps connected to this approval. The lack of CEQA work
on something this major means the EIR is inadequate -- and the public had no way to know this
prior to the adoption of that EIR by the council.
A fifth offensive part of the development agreement is its effort to make itself democracy-proof.
The repeated special exem tib ons for this project from referendum or initiative activity are
reprehensible features that show how authoritarian, totalitarian, and anti-democratic our city
regime has become. These sorts of provisions have no place in a democracy. Any elected
official who votes for this sort of stuff deserves to be recalled, tarred and feathered, and "run out
of town on a rail."
A sixth offensive part of the development agreement is its thud its nose at the right of third
parties to file legal actions against the project approvals ovals and the project, i.e., stating that the city
will continue ap rp Dying aspects of the project just as if there were no legal action in egress.
This stinks, and you know it. Ditto above what should happen to to elected officials who do this.
A seventh offensive part of the development agreement is the way it inflates the value of land
purchased from the Dalidios for the freeway interchange. By using an average of the agricultural
and the commercial values, the appraisal will significantly and unfairly raise the public's cost of
acquiring this land. This is a really unfair way toicp k theubp lic's pocketbook to enrich the
Dalidios. The land, without entitlements, has only an agricultural value. By granting urban
entitlements the Council has raised the land's value from $8,000 per acre (the value used
elsewhere in the development agreement as a comparable value for prime ag land) to about
$500,000 per acre. Now the Council is agreeing to in effect buy back that land at the inflated
value of approximately $254,000 per acre. This is not right! The entitlements alone are a huge
public gift to the owner of otherwise low value land. To then turn around and pay for land
needed for public improvements at the value which has been created by those entitlement gifts
is immoral and criminal.
An eighth offensive part of the development agreement is the way costs of the freeway
interchange a�stematically inflated, item by item, to increase the amount of "rebate" the city
will payr out of sales tax revenues that rightfully belong to the people of San Luis
Obispo, not to this developer.
A ninth offensive part of the development agreement.is that it involves the city for years with
negotiating, reporting- record-keeping, meeting, discussing, reviewing, etc. of a complex
agreement that is of primary benefit to one private party. This extensive expenditure of staff time
is unwarranted and improper. It further involves the Council with regular public hearings, and
takes up valuable Council time for administering this development agreement when the Council
has much better things to be doing with its scarce time.
A tenth offensive part of the development agreement is its permitting "water treatment drainage.
and retention" and associated "improvements° in the open space area subject to easement. This
means the storm water detention basins and whatever treatment facilities may be associated
with 38 acres of Marketplace parking and road surfaces can be constructed on what is
supposed to be agricultural and natural open space. This puts to the lie all the flowery language
Schmidt, Page 2, Development Agreement
Richard Schmidt 17544,4247 CW81214 01:50 PM D314
i
about preserving the view and beauty etc. found in the agreement. I believe further that such
development-related uses are Inconsistent with the Open Space Element of the General Plan.
An eleventh offensive part of the development agreement is the open space grant'srop vision
stating that if any land is subject to acquisition or condemnation by aup blic agency- the QM
space provisions end and the Dalidios will be compensated for their land as if the open space
dedication had never been in effect. In other words, they get an inflated value which the land
would not support had it not been designated open space, which in fact it was. This not only
rewards the Dalidios for value their land did not possess, it is a deliberate effort torp event
condemnation of the land for some public use such as water production or wastewater
treatment, both of which have been proposed by opponents of the project. This provision stinks,
and shows, once again, that the development agreement is entirely one sided: heads, developer
wins, tails, public loses. Worse, it shows the depths to which your autaocratic staff will stoop to
preclude solutions they happen not to agree with, thereby tieing the hands of future city councils
which may have more common sense than the present one apparently has.
A twelfth offensive part of the development agreement is that the sales tax give away scheme is
a great investment vehicle for the Marketplace promoters not available to other "investors" in the
city. Basically, it's sort of like buying a bond -- you get interest payments from the other party in
return for fronting money -- but it is far more lucrative than the bond, since you not only get
guaranteed interest. you also get refund of yourrp incjpal. And the deal's apparently good for 30
years or longer. Wow! How can I get a deal like this, guaranteed and paid for by city taxpayers?
Finally, the odor of the entire development agreement is offensive because what it is about is
turning the city into the development-agent for arip vate party. The city becomes a partner in this
development, facilitating this that and t'other, providing sweetheart development review
opportunities, and even helping the developer get permits from other agencies. This is not the
proper function of a government agency which supposedly exists to look out for the public
interest. For shame that our city regime has degenerated to the state that this is seen as OK.
All in all, this development agreement stinks. It gives virtually all the cards to the develoW, and
leaves the city with its change purse open so it can be picked clean by the other side. I am
ashamed and offended that our city staff negotiated such a one-sided agreement, and argued
that it is good. You should be too.
As for the staff mantra that this project simply follows, of fulfills, or implements the General Plan
-- something they repeat throughout their one-sided, propagandistic, promotional staff report -- ,
these recitations are utter nonsense. The project.and development agreement, conflict with
significant portions of the Land Use, Circulation, Housing and Open Space elements of the
General Plan. Others and myself have been pointing this out for years, still staff keeps singing
the same old untruthful song, and asking you to sing along. Don't, for this project doesn't
conform to the General Plan.
Just one tiny example of the degree of detailed, fine-grained non-conformance:
Development agreement Recitation V brags that this is "a non-pedestrian oriented design." As
such, it cannot be consistent with the General Plan. Just a few of the provisions a "non-
Schmidt, Page 3, Development Agreement
Richard Schmidt V5444247 CM804 m1:51PM p414
pedestrian oriented design" conflicts with, among others:
• LUE goal 28. "San Luis Obispo should maintain the town's character as a small, safe,
comfortable place to live." This non-pedestrian power center overwhelms that character, and
by not providing safety for pedestrians, undercuts the safety goal. Your own economic
consultant, Kotin, testified earlier before the Council that the center would not be a
comfortable place. Without walkability, it cannot conform to the town's character.
• LUE policy 3.1.3, referring to Madonna Road retail expansion: "Any permitted expansion
should be aestherically and functional compatible with existing development in the area." How
can it be functionally compatible if it's non-pedestrian oriented, and cut off from other
development by a freeway ramp and arterial highway?
• CE Transportation goal 2: "Reduce people's use of their cars by supporting and promoting
alternatives such as walking, riding buses and bicycles, and using car pools." How is this
possible in a "non-pedestrian oriented" development? Your own consultant, Kotin, told you
this place would be so unpleasant shoppers couldn't walk from store to store, but would
have to drive.
• CE Tranportation strategy 12: "Ensure that development projects and subdivisions are
designed and/or retrofitted to be efficiently served by buses, bike routes and pedestrian
connections." This project design negates that strategy.
• CE policy 14.1, scenic roadways element. "Views of important scenic resources from major
streets should be preserved and improved to the maximum extent possible." Since Highway
101 bordering this project is a scenic highway, it's unclear how cluttering the view with a
generic power center fulfills this directive of the General Plan.
• CE policy 14.3: "Development along scenic roadways should not block views or detract from
the quality of views." At present, the view from Highway 101 is of a. signature agricultural
working landscape. You would replace that with a generic power center of Anytown USA
variety. Perhaps you should rewrite the CE policy to state that it's pretty to look at.SprawlMart
freeway frontages in order to make your General Plan consistent with what you approve.
So, let's get it straignt: the "non-pedestrian oriented" Marketplace described in the development
agreement is not consistent with the General Plan no matter how may times you cynically "find"
that it is.
Sincerely,
Richard Schmidt
Schmidt, Page 4, Development Agreement
I
council mcmoizanbum
,city of san Luis osispo, aammistizatlon Oepaatment
DATE.: August 3, 2004 RECEIVED
TO: City Council AU6 0 3 2004
VIA: Ken Hampian, City Administrative Officer SLO CITY CLERK
FROM: Wendy George, Assistant City Administrative Officer
SUBJECT: Marketplace Development Agreement, Council Agenda Item 3
Following the issuance of our earlier memo concerning the February 2001 vote on the original
Marketplace Final Environmental Impact Report, Council member Mulholland reminded us that she
had actually been seated on the Council at that time and our"correcting" memo was incorrect. So that
there is no further confusion, I am attaching a copy of the minutes of the February 13, 2001 meeting,
showing that the final vote was 3-1-1 on a motion to deny certification of the EIR and 3-1-1 on a
motion to deny annexation and prezoning. In both cases, Council members Mulholland, Marx and
Ewan supported the motions; Council member Schwartz opposed; and then Mayor Settle refrained.
Staff is sorry to have created this confusion. While support of the project had been divided prior to the
election, at the time of the actual vote there was a clear majority to deny the project.
Attachment:
41a( !!
�couNCIL CDD DIR
! r CAO FIN DIR
lr ACA0 XFIRE CHIEF
1,TATTORNEY FW DIR
j CLER=RIG ,2 POLICE CHF
❑ D- THF DSREC DIR RED FILE
- IL DIR M ET,IrNi G AGENDA
j R Din DATM,b-- ITEM #�_
MINUTES
CO_ NITNUED MEETING OF THE CITY COUNCIL
CITY OF SAN LUIS OBISPO
TUESDAY, FEBRUARY 13,2001 -7:00 P.M.
COUNCIL CHAMBER; 990 PALM STREET
SAN LUIS OBISPO, CALIFORNIA
ROLL CALL:
Council Members
Present:. Council Members Jan Howell Marx, Christine Mulholland, Ken
Schwartz, Vice Mayor John Ewan, and Mayor Allen K. Settle
City Staff:
Present: Ken Hampian, City Administrative Officer; Jeff Jorgensen, City
Attorney; Lee Price, City Clerk; Wendy George,Assistant City
Administrative Officer, Ron Whisenand, Development Review
Manager; Bill Statler, Finance Director; Jim Gardiner, Police Chief;
Mike McCluskey, Public Works Director; Paul LeSage, Parks and
Recreation Director; Pam Ricci, Associate Planner and Mary
Kopecky,Assistant City Clerk
PUBLIC COMMENT
Richard Kransdorf urged Council not to begin important discussions late in the evening.
Members of the Gold Coast Chorus serenaded Council Member Schwartz with a chorus of
"Let Me Call You Sweetheart" and "Heart of My Heart," as a Valentine gift from his wife,
Martha Schwartz.
CONTINUED ITEM
2. FINAL ENVIRONMENTAL IMPACT REPORT(EIR),ANNEXATION AND PREZONIN_G FOR
THE DALIDIO PROPERTY LOCATED AT 2005 DALIDIO-DRIVE{ER.ANNX: R.57-981.
Mayor Settle stepped down due to a potential conflict of interest.
Vice Mayor Ewan, encouraged those who had not commented at the February 6, 2001
meeting to speak, however, he noted that their comments would not be part of the official
record. The public testimony period (which was closed at the end of the meeting of
February 6, 2001)was not reopened, however the following individuals provided additional
comments.
Public Comment
Andrew Merriam. Dalidio family representative, addressed public concerns and urged
Council to support the project.
Christine Dalidio, applicant, urged Council to support the project.
—end of public comments—
City Council Meeting Page 2
Tuesday, February 13,2001 =7:00 p.m.
Development Review Manager Whisenand and Associate Pi anner Ricci presented the staff
report. Council comments followed. Council Members Mulholland, Marx, and Ewan spoke
against proceeding with the project. Council Member Schwartz voiced support for the staff
recommendation and previous Council action.
ACTION: Moved by Mulholland/Marx deny the certification of the EIR; motion
passed 3:1:1 (Schwartz opposed; Settle refrained).
ACTION: Moved by Mulholland/Marx to adopt Resolution No. 9154 to deny the
annexation and prezoning requests, based on findings that the land use categories
for the site reflected on the existing Land Use Element map are no longer
appropriate, and directing staff to:study land use options for the property and return
to the Council at a later date with a report analyzing those options; motion passed
3:11 (Schwartz opposed; Settle refrained).
ACTION: Moved by Marx/Mulholland directed staff to come back to the Council with
more information and land use options that would consider conservation of open
space and preservation of agriculture; motion passed 4:0:1 (Schwartz opposed;
Settle refrained).
LIAISON REPORTS
Council Member Mulholland reported on the January 18, 2001 California Men's Colony
Citizens'Advisory Committee meeting.
Council Member Mulholland reported on the January 3, 2001 meeting of the Human
Relations Commission.
Council Member Mulholland reported on the latest County Water Resources Advisory
Committee meeting.
Council Member Schwartz reported that at the latest meeting of San Luis Obispo Regional
Transit Authority(SLORTA),the decision to make call boxes universally accessible has
been postponed until a study is completed.
Council Member Schwartz noted that at the latest meeting of the San Luis Obispo Council
of Governments (SLOCOG), County staff was directed to study unmet transit needs and
report back.
Council Member Marx updated Council on the January 10, 2001 San Luis Obispo County
Flood Controi and Water Conservation District Zone 9 Advisory Committee meeting. She
asked Council Member Schwartz to attend the February 28, 2001 in her place.
COMMUNICATIONS
Council Member Marx announced that the City is currently seeking applications for most of
the City's advisory bodies. She urged interested citizens to apply and return applications to
the Office of the City Clerk by February 23,2001.
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MEMORANDUM'. UT DIR
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San Luis Obispo
Downtown
DowndtIOn TO: Mayor Dave Romero and City Councilmembers
P.O. Box 1402 FROM- SLO DOWNTOWN ASSOCIATION RED FILE
San Luis Obispo Deborah Cash,Administrator MEETING AGENDA
California 93406 DATEIVIY4 ITEM #7(i_:�)
Re: Marketplace Project Development Agreement
Phone:805541 0286
FAX:805.781.2647 The San Luis Obispo Downtown Association Board of Directors at its 13 July
www.downrownslo.com meeting took under discussion the probable impact that the Marketplace project,
having recently been approved by the City Council, will have on Downtown.
Because of the size and makeup of the project, it is likely that Downtown will be
at a disadvantage economically when transfer of sales tax occurs and (accelerated)
seismic retrofitting begins. Since there are no guarantees regarding entitlements
nor whether or not development agreement incentives will be effective, the
Downtown Association requests that the City of San Luis Obispo include in the
development agreement a mechanism, similar to one devised in Paso Robles
between the Wa1Mart project and the Paso Robles Main Street program,that
provides direct funding to the Downtown Association from the developer.
This mechanism would enable the Downtown Association to
C minimize the impact of collateral vacancies
continue its level of programs,
• finance new programs designed to improve economic viability as
determined by the Board of Directors (including but not limited to
pedestrian lighting, cleanliness, safety, trolley service or other
improvement projects) and,
• work towards a level playing field on which to compete.
As a method of determining a funding amount, the Downtown Association
requests that the funding be awarded as such:
An assessment by the developer of all Marketplace tenants of one cent per
square foot per month ($0.01 per sqft per month); based on an estimate of
600,000 square feet this amounts to $6,000 per month or $72,000 per year,
paid in advance, annually in a lump sum for a period of 10 years.
A subcommittee of the Board will work with the City to fine-tune the details of
the final agreement including timeline and project descriptions.
In addition to assisting the Downtown in maintaining its level of service and
attractiveness, this gesture enables the developer to guarantee his and his client's
commitment that they intend to work with—not against—the Downtown and
develop San Luis Obispo as the major commercial hub of retail in the area.
This memorandum was previously submitted to the Planning Commission.
Shortly after the Planning Commission met on 14 July, 2004, the Downtown
Association Administrator, Deborah Cash, was contacted by the Marketplace
developer, Bill Bird. Mr. Bird indicated that he was prepared to offer a
counterproposal.
Cc:
SLO Downtown Association Board of Directors
Ken Hampian
Wendy George
Shelly Stanwyck
Jonathan Lowell
Pam Ricci
IIIIIIIIIIIII�I IIII I RED FILE
-- MEETING AGENDA
DATE ITEM #��
MEMORANDUM
From the Office of the City Attorney
July 30, 2004
To: Mayor and City Council
From: Jonathan P. Lowell, City Attorney
Shelly Stanwyck, Economic Development Manager v
Subject: Dalidio Development Agreement and Conservation Easement Agreement
Development Agreement
Staff and the Developer have continued to negotiate two aspects of the draft
Development Agreement since the agenda packet was distributed to Council. Basically,
certain terms,previously set forth as an exhibit to the draft Development Agreement
reviewed by the Planning Commission, have been slightly revised and placed into the
body of the Development Agreement itself. These provisions concern the ratio of
parking spaces to square footage of commercial space and a signage program for the
project. In light of the Planning Commission's recommendation that the Council not
enter into the Development Agreement,the fact that these issues were considered by the
Planning Commission (but as an exhibit to, rather than in the body of, the Development
Agreement), and the suggested revisions are not substantially changed from what was
reviewed by the Planning Commission, further review by the Planning Commission is not
necessary.
The suggested modifications to page 9 of Development Agreement (page 3-99 of Agenda
packet) are that the following new sections be inserted:
5.6. Parking. It is the intent of the parties that the Retail Project have a
parking ratio of no less than four(4) parking spaces per 1,000 square feet of total
planned commercial space (including outdoor sales areas), provided consistent
with the FEIR and conditions imposed by the City Council in conjunction with its
approval of the Preliminary Development Plan, introduced by ordinance on July
7, 2004 and finally adopted on August 3, 2004. In no event shall a lesser ratio be
allowed unless by the mutual consent of the parties.
5.7. Signage. The parties contemplate a signage program that will
include up to two (2) freeway monument signs and two (2) additional monument
signs at entrances to the Retail Project, subject to review in accordance with the
Applicable Rules. � I&IW-1
COUNCt CDD D
CAO FIN DIR
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ATTORNEY PW DIR
CLERK/CJt�lt3 POLICE CHF
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Mayor and Council
July 30, 2004
Page 2
Then, existing Section 5.6 (City Discretion) is to be renumbered as Section 5.8.
Further explanation of this modified language will be provided in the staff presentation
on August 3`d.
Conservation Easement Agreement
Staff has also further revised the Conservation Easement Agreement, and the Developer
is in accord with the suggested changes. A copy of the revised Conservation Easement
Agreement is attached. Further explanation of its terms will be provided at your
August 3rd meeting.
Attachment
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
ANDRE,MORRIS &BUTTERY
P.O.BOX 730
SAN LUIS OBISPO,CA 93406
SPACE ABOVE THIS LINE FOR RECORDER'S USE
GRANT OF CONSERVATION EASEMENT
THIS GRANT OF CONSERVATION EASEMENT (the "Grant") is made on
200—(the "Effective Date") , by ERNEST F. DALIDIO, JR., Successor
Trustee of Dalidio Family Trust u/t/a dated October 29, 1987, ERNEST DALIDIO JR.,
Successor Trustee of the Thelma F. Perrozi Trust u/t/a dated February 7, 1991, and CLARA B.
DALIDIO, Trustee of the Clara B. Dalidio Trust u/t/a dated January 15, 1991 (collectively,
"Grantors"), in favor of the CITY OF SAN LUIS OBISPO, a Municipal Corporation and Charter
City (the "City").
RECITALS
A: Grantors are the sole owners of the real property located in the City of San Luis
Obispo, State of California, legally described as approximately 54.7 acres of land near the
intersections of Prado Road, Dalidio Road and Madonna Road, in San Luis Obispo, California,
as fully described in Exhibit A, which is attached to and made a part of this Grant by reference
(the "Property").
B. The Property possesses natural, scenic, open-space, historical, cultural and
agricultural values. In particular, the Property, which exists in an essentially unimproved state,
provides an open view corridor of great natural beauty at the entrance of the City of San Luis
Obispo. The approximately 7-acre portion of the Property along Prefumo Creek, more
specifically described in Exhibit 'B" (the "Creek Area"), harbors plant and animal life. The
remaining approximately 47.7 acres of the Property (the "Agricultural Area") is primarily
agricultural land, which presents a valuable scenic, open space, historical and agricultural
resource to the City of San Luis Obispo.
C. The Grantors and San Luis Obispo Marketplace Associates, LLC, a California limited
liability company ("Marketplace") entered into that certain Development Agreement dated
2004 with the City providing for the annexation of 131 acres of real property to the City,
with the intent that Grantor and Marketplace would develop approximately 60.1 acres of such
real property for commercial and residential use, that 16.2 acres of such real property would be
utilized for roadways, and that approximately 54.7 acres of such real property would be
preserved in essentially its present scenic beauty and openness, and available for habitat
protection and ongoing agricultural use, through the imposition of a perpetual conservation
G:Wg =nu\DalicioC madon En nn Agml.07-3U4.DOC 1
easement with conditions hereinafter expressed. In connection with the Development Agreement
and approval of Marketplace's development project, the City prezoned a portion of the Property
"C/OS," Conservation/Open Space, and a portion "AG," Agriculture. Grantor is willing to grant
this conservation easement as a part of the governmental approval of the commercial
development described above.
D. It is the intention of Grantors to grant to the City a conservation easement on, over
and across the Property pursuant to the California Civil Code Section 815 (the "Act"), whereby
Grantors relinquish certain rights and enter into certain covenants concerning the Property, as
more particularly set forth below.
E. The purposes of this Grant of a conservation easement in the Property are to preserve
the natural, scenic, and open space character of the Property for public enjoyment, to protect
plant and animal habitat in the Creek Area,and to preserve the Agricultural Area primarily for
agricultural, historical, open space and scenic uses (the "Grant Purposes").
F. By accepting this Grant, the City agrees to honor the intentions of Grantors, to act in a
manner consistent with the purposes of this grant, and to preserve and protect in perpetuity the
conservation values of the Property.
AGREEMENT
1. Grant of Easement. In consideration of the above and the mutual covenants, terms,
conditions, and restrictions contained in this grant deed, and pursuant to the laws of California
and in particular to the Act, Grantors voluntarily grant and convey to the City a conservation
easement in the Property in accordance with the terms and conditions set forth herein. The term
of the granted conservation easement shall be perpetual.
2. Prohibited Uses. In order to maintain the existing open space and agricultural
character of the Property, except as provided herein, Grantors and Grantors' successors in interest
will refrain from doing, causing, or permitting any of the following acts with respect to the
Property:
2.1. Constructing improvements on the Property, other than those that exist at
the time of the grant of this Grant, except appurtenances consistent with the open space and
agricultural zoning of the Property and are consistent with the stated purposes, terms, conditions,
restrictions, and covenants of this Grant, with the provisions of the Act, and except those
improvements for which the right is expressly reserved in this Grant or the Act, including paved
pathways and roadways.
2.2. Locating any advertising of any kind or nature on the Property.
2.3. Constructing, placing, or maintaining a parking lot, storage area, or dump
site for the storage or disposal of anything that is not indigenous or natural to the Property or
related to the permitted uses of the Property.
G:Ag==nM\DuUdio Cou a iuu E==nt AgML 07-30�04.DOC 2
2.4. Constructing, placing, or maintaining overhead pipes, conduits, or wires
above the Property for the purpose of transmitting communications or power.
2.5. Conducting agricultural operations on the Creek Area or making any
recreational use of the Creek Area that significantly interferes with the plant and wildlife
protection values of the Creek Area.
3. Permitted Uses. Subject to applicable law and governmental regulation, Grantors
reserve the right to all uses and occupancy of, and ingress and egress to and from, the Property in
any manner consistent with the stated purposes, terms, conditions,restrictions, and covenants of
this Grant. Without limiting the generality of the foregoing, the following rights are consistent
with the purpose of this Grant and with the Act, and are expressly reserved by Grantors:
3.1. To engage in any and all agricultural uses of the Agricultural Area which
are compatible with and preserve the open space character of the Agricultural Area,including
but not limited to: planting, raising, harvesting, and producing agricultural, aquacultural,
horticultural, and forestry crops and products of every nature and description; the primary
processing, storage, and sale, including direct retail sale to the public, of crops and products
harvested and produced principally on the Agricultural Area; breeding, raising, pasturing, and
grazing cattle and/or horses; and breeding and raising bees, fish, poultry, and other fowl. To use
and store agricultural equipment and products on the Agricultural Area. To install improvements
and structures in support of permitted agricultural uses, fencing, utilities and facilities in
connection with the permitted agricultural uses on the Agricultural Area, and consistent with the
intent of this Grant. To use the Property as a buffer between adjacent urban uses and the
agricultural uses on the Agricultural Area.
3.2. The above reservation notwithstanding, any intensive agricultural uses
that are or may be obnoxious, offensive, or constitute a public nuisance in an urban location, are
prohibited. Similarly, the construction or development of any structure, including but not limited
to dairy barns, poultry barns, or other structures intended for use in conjunction with intensive
agricultural uses that are or may be obnoxious, offensive, or constitute a public nuisance in an
urban location, are prohibited.
3.3. In furtherance of the historical values of the Property, and to provide for
the preservation of the historic "Sulkey Racing Stadium" grandstand structure that was located
on or near the Property approximately 100 years ago and used by residents of the City of San
Luis Obispo for horse racing (the "Grandstand Structure"), nothing in this Grant shall prohibit
installation by Grantors of the Grandstand Structure on the Property, provided the siting and
installation of such structure is in accordance with the Applicable Rules, as defined in that
separate Development Agreement entered into between the parties, dated September_, 2004.
3.4. To use the Property for any and all irrigation, agricultural, agricultural
accessory and currently-existing water resources purposes, including but not limited to water
wells, water lines, water treatment, drainage, and retention, and the construction of
improvements related thereto.
3.5. To engage in any and all passive recreational uses of the Property.
G:W.gmemenm\Dalidio Commadon Fmt nt Agmt 07-30-06.DOC 3
3.6. To install, alter, relocate and maintain surface and subsurface utilities,
utility easements, roads and facilities, to conduct grading and regrading and to install and
maintain water drainage facilities and improvements on the Agricultural Area, consistent with
Grant Purposes.
3.7. To permit the construction of a public road as contemplated in the
Circulation Element of the General Plan of the City of San Luis Obispo.
3.8. To permit the construction of a bicycle path as contemplated in the
Bicycle Transportation Plan (May 2002).
3.9. To use any existing structure on the Property and any structure permitted
to be installed on the Property pursuant to this Grant.
3.10. To maintain the Property and all improvements thereto, including but not
limited to natural resource management, pruning and removal of trees and plants, and preventing
damage from potential natural hazards.
4. Public Facilities. Notwithstanding any provision herein, this Grant shall in no way
restrict the construction of either public service facilities installed for the benefit of the land
which is the subject of this Grant, the roadway and bicycle path identified in Sections 3.7 and 3.8
above, or public service facilities installed pursuant to an authorization by the Public Utilities
Commission.
5. Right to Prevent Prohibited Use. Grantors grant to the City and the City's successors
and assigns, for the term of this Grant, the right, but not the obligation, to prevent or prohibit any
activity that is inconsistent with the stated purposes, terms, conditions,restrictions, or covenants
of this grant and the right to enter the Property for the purpose of removing any building,
structure, improvement, or any material whatsoever constructed, placed, stored, deposited, or
maintained on the Property contrary to any term, condition, restriction, or covenant of this Grant.
6. Monitoring and Enforcement. The purposes, terms, conditions, restrictions, and
covenants in this Grant may be specifically enforced or enjoined by proceedings in the Superior
Court of the State of California, consistent with the terms of Section 51086(a) of the California
Government Code. To that end, Grantor specifically permits City to enter upon the Property
upon reasonable notification to Grantor for the purpose of determining that no violations of
purposes, terms, conditions, restrictions or covenants contains within the Grant have occurred.
Such inspections shall be undertaken on a reasonable schedule, but no less than once per year.
7. Costs of Enforcement. If any legal proceeding, arbitration or other action is brought
or threatened for the enforcement or interpretation of this Grant, or because of an alleged dispute,
breach, default or misrepresentation in connection with any of the provisions of this Grant, and
the prevailing party in any such action(s) should incur any legal fees, including, but not limited
to, attorneys' fees, paralegal fees, expert witness fees and other similar costs, the successful or
prevailing party or parties to any such dispute or action shall be entitled to recover their
reasonable attorneys' fees and additional legal costs incurred, together with any other relief to
which they may otherwise be entitled, as determined by an arbitrator,judge at trial, or upon
appeal or petition.
GMg==nn:\Dandio Conservation F. =nt AgmL 07-30-04.DOC 4
8. Acts Beyond Grantors' Control. Nothing contained in this instrument may be
construed to entitle the City to bring any action against Grantors for any injury to or change in
the Property resulting from causes that are beyond Grantors'control, including,but not limited
to, fire, flood, storm, earth movement, or any prudent or reasonable action undertaken by
Grantors in emergency situations to prevent or mitigate significant damage or injury to the
Property resulting from such causes.
9. No Authorization for Public Trespass. The granting of this conservation easement by
this instrument and the acceptance of the easement by the City do not authorize, and are not to be
construed as authorizing, the public or any member of the public to enter, trespass on, or use all
or any portion of the Property, or as granting to the public or any member of the public any
tangible rights in or to the Property. It is understood that the purpose of this grant is solely to
restrict the use of the Property, so that it may be kept as near as possible in its current state.
10. Costs, Taxes, and Liabilities. Grantors retain all responsibility and shall bear all costs
and liabilities of any kind concerning the ownership, operation, and maintenance of the Property,
including maintaining comprehensive liability insurance. Grantors must pay before delinquency
all taxes, assessments, fees, and charges of whatever description levied on or assessed against the
Property by competent authority.
11. Condemnation. If an action in eminent domain for condemnation of any interest in
the Property is fled, or if the Property is acquired for a public improvement by a public agency
or person, these restrictions will be null and void as to the interest in the Property actually
condemned or acquired. However, all conditions, restrictions, and covenants of this grant will be
in effect during the pendency of such an action; if such an action is abandoned before the
recordation of a final order of condemnation, any portion of the Property that is not actually
acquired for public use will once again be subject to all of the terms, conditions, restrictions, and
covenants of this grant. Grantors will be entitled to the amount of compensation as if the
Property had not been burdened by the conservation easement.
12. Extinguishment. If circumstances arise in the future that render the purpose of this
Easement impossible to accomplish, this Grant can only be terminated or extinguished, whether
in whole or in part, by judicial proceedings in a court of competent jurisdiction.
13. Amendment. This conservation easement may not be amended in whole or in part as
to any term, condition, restriction, or covenant without the prior written consent of the Grantors
and the City, as may be permitted by applicable California law.
14. Binding on Successors and Assigns. This Grant, and each and every term, condition,
restriction, and covenant of this grant, is intended for the benefit of the public and is enforceable
pursuant to the provisions of the Act. This Grant binds Grantors and Grantors' successors and
assigns and constitutes a servitude on the Property that runs with the land.
15. Liberal Construction. This Grant is to be liberally construed in favor of the Grant and
the Grant Purposes in order to effectuate the purposes of the easement and the policy and
purpose of the Act. If any provision in this Grant is found to be ambiguous, an interpretation
GAAgmemenm DaEdio Coa m ion F�nt Agmt 07-30-04.DOC 5
consistent with the purpose of this easement that would render the provision valid will be
adopted over any interpretation that would render it invalid.
16. Severability. If any provision of this Grant is found to be invalid, or if the application
of this easement to any person or circumstance is disallowed or found to be invalid, the
remainder of the provisions of the grant, or the application of the grant to persons or
circumstances other than those to which its application was disallowed or found invalid, will not
be affected and will remain in full force and effect.
17. Controlling Law. This Grant is to be interpreted, enforced, and performed in
accordance with the laws of the State of California.
18. Entire Agreement. This Grant sets forth the entire agreement of the parties with
respect to the conservation easement and supersedes all previous conversations,negotiations,
understandings, settlements, or agreements related to the conservation easement.
19. Captions. The captions in this Grant have been inserted solely for the purpose of
convenience of reference and are not to be construed as part of this instrument and do not affect
the construction or interpretation of the Grant.
20. Counterparts. The parties may execute this instrument in two or more counterparts,
which shall, collectively, be signed by all parties. Each counterpart shall be deemed an original
instrument as against any party who has signed it. In the event of any disparity between the
counterparts produced, the recorded counterpart controls.
"Grantor"
ERNEST DALIDIO, JR. Successor Trustee
of Dalidio Family Trust u/t/a dated October
29, 1987
ERNEST DALIDIO JR., Successor Trustee
of the Thelma F. Perrozi Trust u/t/a dated
February 7, 1991
CLARA B. DALIDIO, Trustee of the Clara
B. Dalidio Trust u/t/a dated January 15, 1991
G:�ns\Dandio Com oration Eo nt Agmt 07-30-04.DOC 6
G:Wgec %'Dadio Cooservudoo F�t AgmL 07-30-04.DCC
1
ACCEPTANCE OF CONSERVATION EASEMENT
The CITY OF SAN LUIS OBISPO, a Municipal Corporation and Charter City accepts
this grant of a conservation easement.
Dated:
"City"
CITY OF SAN LUIS OBISPO, a Municipal Corporation and Charter City
By:
Its:
I HEREBY APPROVE the form and legality of the foregoing Agreement this day of
Jonat an well, City Attorney
GAA,vm..u1Ddulio C., avwion Favatsnt AgmL 07-30-04.DOC 8
� 1
dIIIIIII������Il VIII; RED FILE
C! MEETING AGENDA
PATEITEM # LO�3
MEMORANDUM
From the Office of the City Attorney
July 30, 2004
To: Mayor and City Council
From: Jonathan P. Lowell, City Attorney
Shelly Stanwyck, Economic Development Manager� V
Subject: Dalidio Development Agreement and Conservation Easement Agreement
Development Agreement
Staff and the Developer have continued to negotiate two aspects of the draft
Development Agreement since the agenda packet was distributed to Council. Basically,
certain terms, previously set forth as an exhibit to the draft Development Agreement
reviewed by the Planning Commission, have been slightly revised and placed into the
body of the Development Agreement itself. These provisions concern the ratio of
Gparking spaces to square footage of commercial space and a signage program for the
pot
emar'into the Development Agreement, the fact that these issues were considered by the
Planning Commission (but as an exhibit to, rather than in the body of, the Development
Agreement), and the suggested revisions are not substantially changed from what was
reviewed by the Planning Commission, further review by the Planning Commission is not
necessary.
The suggested modifications to page 9 of Development Agreement (page 3-99 of Agenda
packet) are that the following new sections be inserted:
5.6. Parking. It is the intent of the parties that the Retail Project have a
parking ratio of no less than four(4) parking spaces per 1,000 square feet of total
planned commercial space (including outdoor sales areas), provided consistent
with the FEIR and conditions imposed by the City Council in conjunction with its
approval of the Preliminary Development Plan, introduced by ordinance on July
7, 2004 and finally adopted on August 3, 2004. In no event shall a lesser ratio be
allowed unless by the mutual consent of the parties.
5.7. Signage. The pariies contemplate a signage program that will
include up to two (2) freeway monument signs and two (2) additional monument
signs at entrances to the Retail Project, subject to review in accor ance with the � ,,rr��
Applicable Rules. mak"
G i COUNCJCDD DIF
L CAO FIN DIR
ACRO FIRE CHIEF
_ ATTORNEY PW DIR
CLERK/ORIGj POLICE CHF
\ ; [ DE'T�p��H DS REC DIR
\ UTIL DIR
Mayor and Council
July 30, 2004
Page 2
Then, existing Section 5.6 (City Discretion) is to be renumbered as Section 5.8.
Further explanation of this modified language will be provided in the staff presentation
on August P.
Con ation Easement Agreement
Staff has also further revised the Conservation Easement Agreement, and the veloper
j is in accord with the suggested changes. A copy of the revised Conservation Eas ment
f/ Agreement is attached. Further explanation of its terms will be provided at your
August 3`d meeting.
Attachment
V ,
� f
ru'/^MVI 1
I I�
6'�
ORECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
ANDRE,MORRIS&BUTTERY
P. O. BOX 730
SAN LUIS OBISPO,CA 93406
SPACE ABOVE THIS LINE FOR RECORDER'S USE
GRANT OF CONSERVATION EASEMENT
THIS GRANT OF CONSERVATION EASEMENT (the "Grant") is made on
200—(the "Effective Date") , by ERNEST F. DALIDIO, JR., Successor
Trustee of Dalidio Family Trust u/t/a dated October 29, 1987, ERNEST DALIDIO JR.,
Successor Trustee of the Thelma F. Perrozi Trust u/t/a dated February 7, 1991, and CLARA B.
DALIDIO,Trustee of the Clara B. Dalidio Trust u/t/a dated January 15, 1991 (collectively,
"Grantors"), in favor of the CITY OF SAN LUIS OBISPO, a Municipal Corporation and Charter
City (the "City").
RECITALS
CA. Grantors are the sole owners of the real property located in the City of San Luis
Obispo; State of California, legally described as approximately 54.7 acres of land near the
intersections of Prado Road, Dalidio Road and Madonna Road, in San Luis Obispo, California,
as fully described in Exhibit A, which is attached to and made a part of this Grant by reference
(the 'Property").
B. The Property possesses natural, scenic, open-space, historical, cultural and
agricultural values. In particular, the Property, which exists in an essentially unimproved state,
provides an open view corridor of great natural beauty at the entrance of the City of San Luis
Obispo. The approximately 7-acre portion of the Property along Prefumo Creek, more
specifically described in Exhibit "B" (the "Creek Area"), harbors plant and animal life. The
remaining approximately 47.7 acres of the Property(the "Agricultural Area") is primarily
agricultural land, which presents a valuable scenic, open space, historical and agricultural
resource to the City of San Luis Obispo.
C. The Grantors and San Luis Obispo Marketplace Associates, LLC, a California limited
liability company ("Marketplace") entered into that certain Development Agreement dated
2004 with the City providing for the annexation of 131 acres of real property to the City,
with the intent that Grantor and Marketplace would develop approximately 60.1 acres of such
real property for commercial and residential use, that 16.2 acres of such real property would be
utilized for roadways, and that approximately 54.7 acres of such real property would be
preserved in essentially its present scenic beauty and openness, and available for habitat
C` protection and ongoing agricultural use, through the imposition of a perpetual conservation
GAAgmm nm\Dnlidio Coo ation Fn nt AgmL 07-30-04000 1
1
easement with conditions hereinafter expressed. In connection with the Development Agreement
and approval of Marketplace's development project, the City prezoned a portion of the Property
"C/OS," Conservation/Open Space, and a portion "AG," Agriculture. Grantor is willing to grant
this conservation easement as a part of the governmental approval of the commercial
development described above.
D. It is the intention of Grantors to grant to the City a conservation easement on, over
and across the Property pursuant to the California Civil Code Section 815 (the "Act"), whereby
Grantors relinquish certain rights and enter into certain covenants concerning the Property, as
more particularly set forth below.
E. The purposes of this Grant of a conservation easement in the Property are to preserve
the natural, scenic, and open space character of the Property for public enjoyment, to protect
plant and animal habitat in the Creek Area, and to preserve the Agricultural Area primarily for
agricultural, historical, open space and scenic uses (the "Grant Purposes").
F. By accepting this Grant, the City agrees to honor the intentions of Grantors, to act in a
manner consistent with the purposes of this grant, and to preserve and protect in perpetuity the
conservation values of the Property.
AGREEMENT
1. Grant of Easement. In consideration of the above and the mutual covenants, terms,
conditions, and restrictions contained in this grant deed, and pursuant to the laws of California
and in particular to the Act; Grantors voluntarily grant and convey to the City a conservation
easement in the Property in accordance with the terms and conditions set forth herein. The term
of the granted conservation easement shall be perpetual.
2. Prohibited Uses. In order to maintain the existing open space and agricultural
character of the Property, except as provided herein, Grantors and Grantors' successors in interest
will refrain from doing, causing, or permitting any of the following acts with respect to the
Property:
2.1. Constructing improvements on the Property, other than those that exist at
the time of the grant of this Grant, except appurtenances consistent with the open space and
agricultural zoning of the Property and are consistent with the stated purposes, terms, conditions,
restrictions, and covenants of this Grant, with the provisions of the Act, and except those
improvements for which the right is expressly reserved in this Grant or the Act, including paved.
pathways and roadways.
2.2. Locating any advertising of any kind or nature on the Property.
2,3. Constructing, placing, or maintaining a parking lot, storage area, or dump
site for the storage or disposal of anything that is not indigenous or natural to the Property or
related to the permitted uses of the Property.
GAAgmem=\Dalidio Con tion Fn ent Agmt 07-30-04.DOC 2
C2.4. Constructing,placing, or maintaining overhead pipes, conduits, or wires
above the Property for the purpose of transmitting communications or power.
2.5. Conducting agricultural operations on the Creek Area or making any
recreational use of the Creek Area that significantly interferes with the plant and wildlife
protection values of the Creek Area.
3. Permitted Uses. Subject to applicable law and governmental regulation, Grantors
reserve the right to all uses and occupancy of, and ingress and egress to and from, the Property in
any manner consistent with the stated purposes, terms, conditions, restrictions, and covenants of
this Grant. Without limiting the generality of the foregoing, the following rights are consistent
with the purpose of this Grant and with the Act, and are expressly reserved by Grantors:
3.1. To engage in any and all agricultural uses of the Agricultural Area which
are compatible with and preserve the open space character of the Agricultural Area, including
but not limited to: planting, raising, harvesting, and producing agricultural, aquacultural,
horticultural, and forestry crops and products of every nature and description; the primary
processing, storage, and sale, including direct retail sale to the public, of crops and products
harvested and produced principally on the Agricultural Area; breeding,raising; pasturing, and
grazing cattle and/or horses; and breeding and raising bees, fish, poultry, and other fowl. To use
and store agricultural equipment and products on the Agricultural Area. To install improvements
and structures in support of permitted agricultural uses, fencing, utilities and facilities in
G connection with the permitted agricultural uses on the Agricultural Area, and consistent with the
intent of this Grant. To use the Property as a buffer between adjacent urban uses and the
agricultural uses on the Agricultural Area.
3.2. The above reservation notwithstanding, any intensive agricultural uses
that are or may be obnoxious, offensive, or constitute a public nuisance in an urban location, are
prohibited. Similarly, the construction or development of any structure, including but not limited
to dairy barns, poultry barns, or other structures intended for use in conjunction with intensive
agricultural.uses that are or may be obnoxious, offensive, or constitute a public nuisance in an
urban location, are prohibited.
3.3. In furtherance of the historical values of the Property, and to provide for
the preservation of the historic "Sulkey Racing Stadium" grandstand structure that was located
on or near the Property approximately 100 years ago and used by residents of the City of San
Luis Obispo for horse racing (the "Grandstand Structure"), nothing in this Grant shall prohibit
installation by Grantors of the Grandstand Structure on the Property, provided the siting and
installation of such structure is in accordance with the Applicable Rules, as defined in that
separate Development Agreement entered into between the parties, dated September_, 2004.
3.4. To use the Property for any and all irrigation, agricultural, agricultural
accessory and currently-existing water resources purposes, including but not limited to water
wells, water lines, water treatment, drainage, and retention, and the construction of
improvements related thereto.
C3.5. To engage in any and all passive recreational uses of the Property.
G:Wgree n¢\Dalidio Cons uon En ent AgML 07-30-04.DOC 3
3.6. To install, alter, relocate and maintain surface and subsurface utilities,
utility easements, roads and facilities, to conduct grading and regrading and to install and Jl
maintain water drainage facilities and improvements on the Agricultural Area, consistent with
Grant Purposes.
3.7. To permit the construction of a public road as contemplated in the
Circulation Element of the General Plan of the City of San Luis Obispo.
3.8. To permit the construction of a bicycle path as contemplated in the
Bicycle Transportation Plan (May 2002).
3.9. To use any existing structure on the Property and any structure permitted
to be installed on the Property pursuant,to this Grant.
3.10. To maintain the Property and all improvements thereto, including but not
limited to natural resource management, pruning and removal of trees and plants, and preventing
damage from potential natural hazards.
4. Public Facilities. Notwithstanding any provision herein, this Grant shall in no way
restrict the construction of either public service facilities installed for the benefit of the land
which is the subject of this Grant,the roadway and bicycle path identified in Sections 3.7 and 3.8
above, or public service facilities installed pursuant to an authorization by the Public Utilities
Commission.
5. Richt to Prevent Prohibited Use. Grantors grant to the City and the City's successors
and assigns, for the term of this Grant, the right, but not the obligation, to prevent or prohibit any
activity that is inconsistent with the stated purposes, terms, conditions, restrictions, or covenants
of this grant and the right to enter the Property for the purpose of removing any building,
structure, improvement, or any material whatsoever constructed, placed, stored, deposited, or
maintained on the Property contrary to any term, condition, restriction, or covenant of this Grant.
6. Monitoringand Enforcement Enforcement. The purposes, terms, conditions, restrictions, and
covenants in this Grant may be specifically enforced or enjoined by proceedings in the Superior
Court of the State of California, consistent with the terms of Section 51086(a) of the California
Government Code. To that end, Grantor specifically permits City to enter upon the Property
upon reasonable notification to Grantor for the purpose of determining that no violations of
purposes, terms, conditions, restrictions or covenants contains within the Grant have occurred.
Such inspections shall be undertaken on a reasonable schedule, but no less than once per year.
7. Costs of Enforcement. If any legal proceeding, arbitration or other action is brought
or threatened for the enforcement or interpretation of this Grant, or because of an alleged dispute,
breach, default or misrepresentation in connection with any of the provisions of this Grant, and
the prevailing party in any such action(s) should incur any legal fees, including, but not limited
to, attorneys' fees, paralegal fees, expert witness fees and other similar costs, the successful or
prevailing party or parties to any such dispute or action shall be entitled to recover their
reasonable attorneys' fees and additional legal costs incurred, together with any other relief to
which they may otherwise be entitled, as determined by an arbitrator,judge at trial, or upon
appeal or petition.
G: v==nZ0u idio Conservation Fasnnent Agme 07-30-N.DOC 4
C8. Acts Beyond Grantors' Control. Nothing contained in this instrument may be
construed to entitle the City to bring any action against Grantors for any injury to or change in
the Property resulting from causes that are beyond Grantors'control, including, but not limited
to, fire, flood, storm, earth movement, or any prudent or reasonable action undertaken by
Grantors in emergency situations to prevent or mitigate significant damage or injury to the
Property resulting from such causes.
9. No Authorization for Public Trespass. The granting of this conservation easement by
this instrument and the acceptance of the easement by the City do not authorize, and are not to be
construed as authorizing, the public or any member of the public to enter, trespass on, or use all
or any portion of the Property, or as granting to the public or any member of the public any
tangible rights in or to the Property. It is understood that the purpose of this grant is solely to
restrict the use of the Property, so that it may be kept as near as possible in its current state.
10. Costs, Taxes, and Liabilities. Grantors retain all responsibility and shall bear all costs
and liabilities of any kind.concerning the ownership, operation, and maintenance of the Property,
including maintaining comprehensive liability insurance. Grantors must pay before delinquency
all taxes, assessments, fees, and charges of whatever description levied on or assessed against the
Property by competent authority.
11. Condemnation. If an action in eminent domain for condemnation of any interest in
the Property is filed, or if the Property is acquired for a public improvement by a public agency
or person, these restrictions will be null and void as to the interest in the Property actually
condemned or acquired. However, all conditions, restrictions, and covenants of this grant will be
in effect during the pendency of such an action; if such an action is abandoned before the
recordation of a final order of condemnation, any portion of the Property that is not actually
acquired for public use will once again be subject to all of the terms, conditions, restrictions, and
covenants of this grant. Grantors will be entitled to the amount of compensation as if the
Property had not been burdened by the conservation easement.
12. Extinguishment. If circumstances arise in the future that render the purpose of this
Easement impossible to accomplish, this Grant can only be terminated or extinguished, whether
in whole or in part, by judicial proceedings in a court of competent jurisdiction.
13. Amendment. This conservation easement may not be amended in whole or in part as
to any term, condition, restriction, or covenant without the prior written consent of the Grantors
and the City, as may be permitted by applicable California law.
14. Binding on Successors and Assigns. This Grant, and each and every term, condition,
restriction, and covenant of this grant, is intended for the benefit of the public and is enforceable
pursuant to the provisions of the Act. This Grant binds Grantors and Grantors' successors and
assigns and constitutes a servitude on the Property that runs with the land.
15. Liberal Construction. This Grant is to be liberally construed in favor of the Grant and
the Grant Purposes in order to effectuate the purposes of the easement and the policy and
purpose of the Act. If any provision in this Grant is found to be ambiguous, an interpretation
C
c:wg==nMO u io ca�afiw E nw ngML 07-30 04.00c 5
consistent with the purpose of this easement that would render the provision valid will be
adopted over any interpretation that would render it invalid.
16. Severability. If any provision of this Grant is found to be invalid, or if the application
of this easement to any person or circumstance is disallowed or found to be invalid, the
remainder of the provisions of the grant, or the application of the grant to persons or
circumstances other than those to which its application was disallowed or found invalid, will not
be affected and will remain in full force and effect.
17. Controlling Law. This Grant is to be interpreted, enforced, and performed in
accordance with the laws of the State of California.
18. Entire Aereement. This Grant sets forth the entire agreement of the parties with
respect to the conservation easement and.supersedes all previous conversations, negotiations,
understandings, settlements, or agreements related to the conservation easement.
19. Captions. The captions in this Grant have been inserted solely for the purpose of
convenience of reference and are not to be construed as part of this instrument and do not affect
the construction or interpretation of the Grant..
20. Counterparts. The parties may execute this instrument in two or more counterparts,
which shall, collectively, be signed by all parties. Each counterpart shall be deemed an original
instrument as against any party who has signed it. In the event of any disparity between the
counterparts produced, the recorded counterpart controls.
"Grantor"
ERNEST DALIDIO, JR. Successor Trustee
of Dalidio Family Trust u/t/a dated October
29, 1987
ERNEST DALIDIO JR., Successor Trustee
of the Thelma F. Perrozi Trust u/t/a dated
February 7, 1991
CLARA B. DALIDIO, Trustee of the Clara
B. Dalidio Trust u/t/a dated January 15, 1991
G:1Ag==nm%Dn6tUo Conservation Ea nt AFm 07-30-04.DOC 6
C
O
o
G:Wg==naXDandio Com"ation Eaw=nt AgmL 07-30-04.DOC '7
J
ACCEPTANCE OF CONSERVATION EASEMENT
The CITY OF SAN LUIS OBISPO, a Municipal Corporation and Charter City accepts
this grant of a conservation easement.
Dated:
"City"
CITY OF SAN LUIS OBISPO, a Municipal Corporation and Charter City
By:
Its:
I HEREBY APPROVE the form and legality of the foregoing Agreement this day of
�3
Jonatl an,JZwell, City Attorney
•
G:%Agm imnmOa6dio Camemion Fn mnt Agmc 07-30-04.DOC 8
".:uUhJCI_ CDD DIR
`ICAO 22'FIN DIR
ACAO AFIRE CHIEF
2''ATTORNEY .;1PW DIR RECEIVED
IIIIIIIIIIIIIIIII IIIII:IIII ;;1tLERK/0RIG �10LICE CHF AU6 0 2 '2004
C ` t DEBT HEADS ;WRFC DIR
- SP1 j :I SLO CITY CLERK
MEMORANDUM
From.the Office of the City Attorney
August 2, 2004 RED FILE
To: Mayor and City Council MEIMNG AGENDA
T
From: Jonathan P. Lowell; City Attorney 01I.- =- ITEM # f�
Subject: Minor Clerical Revisions to Dalidio Development Agreement and Special Tax
Reimbursement Agreement
Further review of the Development Agreement and Special Tax Reimbursement Agreement
revealed the need for minor clerical revisions, as follows.
At pages 4 and 5 of the Development Agreement (pages 3-94 and 3-95 of the August 3, 2004
Agenda Report), Recitals R and T should be modified as shown below:
R. Consistent with City's General Plan, City approved that certain Development
Plan (the "Development _Plan")for a portion of the Project, including the Retail
Project, on [INSERT DATE],by Reselotieo Ordinance No. [INSERT NUMBER].
T. The City Council, after providing public notice as required by law,#geld-e
on [INSERT DATE] . ^'.
considered and approved the Conservation Easement by
Resolution No. [INSERT NUMBER].
At page 2 of the Special Tax Reimbursement Agreement (page 3-151 of the Agenda Report),
Recital I should be modified as follows:
I. The City Council, after providing public notice as required by law, held
publie hearing an this AgFeefa on [INSERT DATE]. ,
considered and approved this Agreement by Resolution No. [INSERT
NUMBER].
The change to Recital R is necessary because the Development Plan was adopted by an
ordinance introduced on July 6, 2004, rather than by a resolution. The changes to Recitals I
and T are made because, unlike for an Open Space Easement, a public hearing is not required
prior to entering into a Conservation Agreement, and approval may be accomplished by
resolution. The blanks left for dates and ordinance and resolution numbers will be filled in,
following City Council action, at the time of execution of the documents.
RECEIVED
RED FILE AU6 0 3 2004
�IIIIIIIII�����IIIII��lllll I CPJIE ING AGENDA SLO CITY CLERK` C E ITEM #11,
MEMORANDUM n
From the Office of the City Attorney tU
jAOf ` .�N DIRr
August 3, 2004 yACAO' 2'FIRE CHIEF
yYATTORNEY L PW DIR
To: Mayor and City Council i�TLERKIORIG Z--POLICE CHF
nr: T Er AD$ -'REC P!R
From: Jonathan P. Lowell, City Attorney / } ' -"
Subject: Effect of Referendum Petition on City Council Decisions on Dalidio
Development Agreement, Special Tax Reimbursement Agreement and
Conservation Easement Agreement
Attached is a letter from legal counsel for a group called Save San Luis Obispo
explaining that, as that organization has submitted a referendum petition containing over
4,700 signatures and only approximately 2,330 are required for the referendum to qualify
for the ballot, the City Clerk should promptly complete the required prima facie review of
the signatures and accept the petition for filing. Upon acceptance of the petition for
filing, pursuant to the Elections'Code, the effective date of the City Council's July 7
G action of approving a General Plan Amendment by Resolution No. 9590 (2004 Series)is
suspended pending City Council reconsideration of its action. It is Save San Luis
Obispo's contention that while such a suspension is in effect, no further actions related to
the Dalidio project may proceed because they are all predicated upon consistency with
the General Plan. 1
At the time of this writing, the Acting City Clerk has not completed a prima.facie review .
of the signatures and has not yet accepted the petition for filing. (Her review is hampered
by the shortage of staff in that office, and by the following facts: the petitions were
dropped off at approximately 3:30 p.m. yesterday afternoon, today's City Council
meeting commences at 4 p.m., yet the normal pre-City Council meeting responsibilities
and pre-meetings still must be attended to by the Acting City Clerk and her deputy.)
Thus, the City Council's July 7 approval of the General Plan Amendment(by Resolution
No. 9590) is still effective, has not been suspended, and the General Plan consistency
findings for the subsequent Dalidio project approvals can be made.
One alternative that the Council may wish to consider is to modify the effective dates
applicable to the subsequent Dalidio project approvals. The actions before you tonight
could be conditioned.such that they take effect on their normal effective dates or when
Under state law and the City Charter the City Council cannot take actions that are inconsistent with the
General Plan. Hence,the subsequent approvals before the Council this evening must be consistent with the
General Plan. The General Plan has been amended by the Council through its adoption of Resolution No.
9590.
Mayor and CounciA,
August 3, 2004
Page 2
the possible suspension, pursuant to Elections Code Section 9237, of the effective date of
Resolution No. 9590 is lifted, whichever is later. The lifting of the suspension of
Resolution No. 9590 would occur if either: 1) it is determined there is not a sufficient
number of valid signatures for the measure to qualify for the ballot, or 2) the measure is
defeated by voters. In this way, it is clear that the City Council is not seeking to thwart
the will of the electorate to utilize the referendum process, as the Council's actions will
essentially be tied to the results of the pending referendum measure. This approach also
eliminates the need for project opponents to pursue further referenda of the two
remaining legislative actions concerning this project. And, finally, this permits the City
Council to take action and then allows for a potentially divisive issue in the community to
be resolved at the ballot box.
If the Council is amenable to this alternative, it is recommended that the Council act upon
the proposed ordinances and actions before it tonight with the minor modifications noted
below.
• For item C2, Section 4 of the ordinance (page C2-13)should be modified by the
addition of the following to the end of the last sentence of that section:
"...or when the possible suspension, pursuant to Elections Code Section 9237, of
the effective date of Resolution No. 9590 (2004 Series) is lifted, whichever is
later."
• For item 3, Section 9 of the Development Agreement ordinance (page 3-90)
should be modified by the addition of the following to the end of the last sentence
of that section:
"...or when the possible suspension, pursuant to Elections Code Section 9237, of
the effective date of Resolution No. 9590 (2004 Series) is,lifted, whichever is
later."
[Note: the term of the Special Tax Reimbursement Agreement is the same as that of the
Development Agreement, so no there is no need to modify the action relating to the
Reimbursement Agreement.]
• For item 3, a new Section 5 should be added to the resolution (page 3-203) as
follows:
"Section 5. This resolution shall take effect immediately or when the possible
suspension, pursuant to Elections Code Section 9237,of the effective date of
Resolution No. 9590 (2004 Series) is lifted, whichever is later."
Further clarification and explanation will be provided at tonight's meeting.
Attachment
AUG-02-2004 MON 12:41 PM 4796848 FAX N0._8314294057 P. 02
VVY I-I"VI ER & N)ARrJN LLP
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i• SAN-rA URU/.,(WA- UNTIA 95060
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Antt,ra ht.t�rnJri.1 t?,L(:ul ln.f?:(83 1)329.d(157
E.MAII,utlirn(ntitrr((t+rrp..t.:n.rnot
August 2,2004
DUAVLRED VIA FACSIMILE(808)781-7109
City Council
City of San Luis Obispo
990 Palm Street
Ssn Luis Obislnl, CA 03401
Ke: Mandatory Suspension of Resolution No.9590 (2004 Series)
Amending General Plan re Dalidio/San Luis Marketplace Project
I lonorahle City Councilmernbers:
CThis office represents ilia interests oFSavc San Luis Obispo regarding the Referendum
Petition against the Dalidio/San Luis Marketplace Project (hereinafter"the Dalidio Project") .
11w purpose of this letter into provide you with my Icgal opinion with regard to two issues:
(1) that once the proponent OF the Rcfcrandum Petition (Save San Luis Obispo) submits
Such Petition to the City Clerk, Resolution No. 9590 (2004) Series) is suspended as it
matter of Statc law; and
(2) that the effect of suc11 suspension is to preclude any action in furtherance of the
approval of proposed Ordinance No. 1449 (the Ordinance for Prezoning, amending
the City "Zoning Regulations Map and Preliminary Development Plan approval for
the Dalidio/San Luis Marketplace Project ti item C2 on the City Council's August 3,
2004 Agenda)and the Development Agreement and Special Tax Reimbursement
Agreement (Item PI-13 on the City Council's August 3, 2004 Agenda).
My legal analysis follows.
BACKGROUND
At approxintately 3:00 pnt August 2. 2004, Save San Luis Obispo will be delivering to
fie City Clerk a Refewridtim Petition Against Resolution No. 9590 (2004 Series)Amending the
City Generul Plan to enable the Dalidio/San Luis Marketplace Project (hereinafter"General Plat
Amendment Resoltition"), The Referendum Petition will contain on its face more than 4,700
si;;natures. The number ol'signatures rccluired to compel an election is 2,330 according to prior
AUG-02-2004 MON 12:42 PM 4796848 FAX NU. U142MUt,f P. 03
laity('ounc:il O
City of San Luis Obispo,
MaiiiL•tlnry Susrcusiuti erRcsolurion No.9590(2004 Series)
tlasM on 11.011MM&M PCtiliOn
Page 2
Au-lust
information provided to Save San Luis Obispo by the City Clerk. it will.not take the City Clerl:
more than an hour or two to confirm that "prima facie"the Referendum Petition contains
signatures equal to or exceeding the minimum number of signatures required.
Neither item C2 nor Item P113 on the City Council's August 3, 2004 Agenda can be
<iPproved unless found to be consistent with the City General Plan. If the General Plan
Antendment Resolution is suspended,the required finding of consistency with the General Plan
c-onnot he made. That is because the General Plan Amendment Resolution was a necessary
amendment to the City General Plan in order esiablish the required General Plan consistency,
LEGAL ANALYSIS
(1) Mandatory Suspension by Operation of Law of General Plan Amendment
Rceolution Based on Submittal of Referendum Petition
Under Elce6ons Code Section 9219, a referendum petition is required to be accepted for
f ilin3 by the City Clerk and the determination of the number of signatures thereon shall be made
by tax; City Clerk in accordance with Section 9210. Section 9210, in turn,provides:
"When the Petition is Presented for filing, the [City Clerk] ... shall do all of the
following:
(;i)Ascertain the number of registered voters of the city last reported by the
county elections officiii to the Secretary of State pursuant to [Elections Code]
Section 2187...,
(b) Determine the total number of signatures affixed to the petition. If, from this
examination, the [City Clerk] determines that the number of signatures, rP imn
mete, equals or is in excess of the minimum number of signatures required, he or
she shall accrht the petition for filing. The petition shall be deemed as filed on
that data (emphnsis added)
Thv City Clerk then has thirty business days after the filing in which to verify the validity of
Iho;ce signntures (Elections Code Section 9240).
Under California Elections Code Section 9237, upon submittal of the Referendum
Petition, the effective date of the City Council's decision regarding the General Plan Amendment
Resolution is suspended and the City Council must reconsider its decision. Section 9237
provides, in pertinent part, as follows:
>• AUG-02-2004 MON 12:42 PM ^796848 FAX NO._8314294057 P. 04
CCity Council
city or San Luis owspo.
Mxnciniory Suspension of Resolution No. 9590(2004 series)
Based on Referendum Petition
1'.+t;e 3
AuZ-Usl 2,2004
"If a petition protesting the adoption of an ordinance ... is submitted to the .
elections official of the legislative body of the city ... within 30 days of the
adoption of the ordinance,and is signed by not less than 10 percent of the voters
of lie city according to the county elections official's last official report of
registration to the Secretary of State ... the effective date of the ordinance shall be
suspended and (lie legislative body shall reconsider the ordinance."
Thus, the suspension of the Cieneral flan Amendment Resolution is mandatory by operation of
law upon submittal of the Referendurn Petition and the City Clerk determining that"prima facie"
there are a sufficient number of sign<<t.nres. Given the fact that there are nearly double the
number of required signatures on the Referendum Petition, the City Clerk, acting reasonably,
will easily be able to make the "prima facie"determination prior to the City Council meeting on
August 3, 2004. "Ihat is bemuse all that is involved is obtaining;the number orregistered voters
in the City from the County i:lections Official (which it is my understanding the City Clark has
already
done), multiplying that number by 10 Percent, and checking that the total number of
sitn:chtres on The submitted lteferendunt Petition(not their validity)equals or exceeds the 10
pc,rccnt uumher.
(2) Action in Furtherance of Other Approvals for Dalidio Project Precluded
During the 30 business day period while the validity of the signatures is being examined
(and thereafter if sufficient validity is confirmed),the General Plan Amendment Resolution is
not in effect, because it's effective date has been suspended. Hence, no action in furtheranncc of
rmy approval for the Dalidio Project requiring a finding of consistency with the City General
Plan may legally be takrn tit the City Council Meeting on August 3,2004. This would include
the final reading or approval of proposed Ordinance.No. 1449 (Item C2). The Zoning
Ordinance Arncudrncnl in Item C2 is required to be consistent with the General Plan. City Code
Section 17.70.050. This would also preclude the introduction of, or authorization of signing of,
the Development Agreement and Special Tax Reimbursement Agreement(Item P113). A
Development Agrcenrcut is requires! by SLaie law to be consistent with the General Plan.
Government Code Section 65867.5; City Code Section 17.94.100 and .120. Although
incoosistency absent the General flan Amendment Resolution is clear for a variety of reasons,
the sixth"WI)EAF.AS"on the face oftltc proposed Zoning Ordinance Amendment
acknowled,acs the lack of consistency with the existing General Plan Land Use Element(Wr)
Mali. because it finds only consistency with the-pmenserP' LUE Map (i.e. the one resulting
from the General Plan Amendment Resolution wl- ch will line been suspended).
Thank you for your consideration of these matters.
3
AUG-02-2004 MON 12:42 PM 4796848 FAX NO. 8314294Ub-! P. 05
ti
City Council O
City of San I alis Obispo..
Rluidauory Suspension of Resolution No.9590(2004 Series)
Bascd on Refeiendum Petition
Pad v 4
Aunusl2,200•
Very truly yours,
WITTWER 8c PARKTN, I.I.P
onathan Wittwer
cc: Jonathan Lowell, City Attorney (fax to 805-781-7409)
Diane Reynolds, Interim City Clerk (fax to 905-78I-7109)
Eugene Jud
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02 Aug 2004 To City-of San Luis Obispo from Michael Sullivad" Page 1 of 5 I-,/
-RE: Dalidio development agreementf` b
To: City of San Luis Obispo RED FILE
From: Michael SullivanM ING AGENDA RECEIVED
D14% ITEM #�
RE: City Council hearing of 03 Aug 2004—Dalidio development agreemen, AU6 U 3 2004
Abbreviations
SLO CITY CLERK
CEQA-California Environmental Quality Act
DA-Development Agreement
EIR -Environmental Impact Report CUNCIL CAO z CDD DIR
FEIR- Final Environmental Impact Report sAc o �`IN DIR
FIRE CHIEF
LOVR-Los Osos Valley Road I ZEATTCRNEY ,r PW DIR
SLO- San Luis Obispo 12CLERKJCRIG ,�PCLICE CHF
DEPT FADS jCREC DIR
Members of City Council / /UTIL DIR
This letter and its two attachments(A and B)and my other comments to the City
(Planning Commission, Council, etc.)have indicated that the City would be committing
an abuse of discretion as defined by the California Environmental Quality Act and as
defined by other state laws in approving the final EIR and in approving the so-called
Dalidio Marketplace project and Development Agreement. This abuse of discretion
results from various instances in which the City has failed to meet the requirements of
state and local laws such as CEQA,the Planning and Zoning Law,etc. In addition,the
City would be committing an abuse of discretion in approving the proposed Development
Agreement(DA)when several of the findings in support of the DA are invalid or not
supported by substantial evidence in the record.
Findings are given in the staff report for 03 Aug 2004 at page 3-88, Sections 5,6 and
7 of proposed ordinance(attachment 6). The findings are invalid or false or not
supported by substantial evidence as follows:
(a) The DA will not adversely affect the health,peace, comfort or welfare of persons
residing or working in the surrounding area, since the project is in keeping with the
character and general development pattern of the existing area.
FALSE. The FEIR identified several significant environmental impacts(e.g.traffic)
which cannot be completely mitigated. The"peace"of the community will be
permanently degraded because of excessive traffic and noise. The health of persons in
the community will be harmed by increased air pollution caused by the project. The
welfare of the community will suffer because of the imbalance in jobs and housing(i.e.
the project will create an unmet need for additional housing,thereby making an existing
affordability problem even worse.)
(b) The DA will not be materially detrimental to the use,enjoyment or valuation of
property or other persons located in the vicinity of the site,since the DA ensures that
public improvements,additional infrastructure and other public benefits will be provided
as the project is constructed.
9
02 Aug 2004 To City of San Luis Obispo from Michael Sullivan' Page 2 of 5
RE: Dalidio development agreement
FALSE. Persons affected by excessive traffic and noise(e.g.those along Madonna Road,
Oceanaire Street, Los Osos Valley Rd.,etc)are likely to have property values adversely
impacted by the project. People in these areas will also have a degradation in the
enjoyment of their properties(e.g.their use of outdoor spaces)due to the excessive traffic
and noise caused by the project. The proposed additional road which would connect the
project site to Los Osos Valley Road will bring additional negative impacts(noise,
traffic, aesthetics,air pollution)not adequately analyzed by the EIR. On a regional basis,
there will likely be additional congestion in areas such as US 101 southbound(especially
south of Los Osos Valley Rd.)because the project EIR fails to adequately assess regional
traffic impacts and cumulative impacts. For example,the COSTCO 2003 EIR had
identified the need for at least one additional freeway lane south of LOVR within 10
years due to cumulative impacts. The Dalidio project(which contributes to those
cumulative impacts) has an inadequate EIR that fails to adequately address or mitigate
this impact. Also, since the traffic study area of the Dalidio EIR was so limited,the
analysis of traffic impacts on nearby neighborhoods(e.g. Margarita/Airport area,Orcutt
area,town of Los Osos,etc)is inadequate. It is highly probable that impacts in such
areas would be significant.
(c) The DA will not jeopardize, endanger or otherwise constitute a menace to the public
health, safety or general welfare, since the DA will provide public safety improvements
such as traffic improvements contemplated by the separate finding that the Development
Agreement will help the City pay for the freeway interchange as contemplated by the
Circulation Element that the City could not otherwise afford. Further,the project is
conditioned to comply with applicable fire,building and life safety codes and regulations.
FALSE. The project will cause significant increases in traffic on various routes e.g.
LOVR,Madonna Rd., Oceanaire St.,etc. This will create a menace to public health and
safety primarily for pedestrians who will have more difficulties safely crossing these
streets. Crossing the proposed US 101 /Prado Rd interchange would be unsafe for
pedestrians and bicyclists given the volume and speed of traffic there.
(d) The DA will be in the best interests of the City in that it implements the proposed
San Luis Obispo Marketplace project and will provide certainty to the City and the
Applicant regarding that project's standards and similar matters. The proposed project
will provide for a functional and attractive development that will contribute to the City's
tax base while preserving a considerable amount of land for agricultural,conservation
and open space uses. Because of this,the DA is in the best interests of the City and its
residents.
FALSE. The goals of enhancing the tax base and providing more shopping could have
been met by more intensely developing nearby commercial properties,e.g. at Madonna
Plaza and the Promenade. This was one of the viable options stated in the EIR. Instead,
the City has chosen the more environmentally destructive option of placing a huge new
02 Aug 2004 To City of San Luis Obispo from Michael Sullivan Page 3 of 5
RE: Dalidio development agreement
retail center on"green fields"and this will have a very severe impact on agricultural use
and will diminish the net amount of open space.
(e) The Development Agreement is consistent with the General Plan, any applicable
Specific Plan and the Municipal Code. The administrative record and findings of this
Ordinance demonstrate conformance with City requirements.
FALSE. As noted by Planning Commission and various other persons,the proposed
project is inconsistent with the General Plan in various ways. For example,the proposed
project would violate Land Use Element policy 1.4 Oobs/housing relationship)because
according to the EIR the project would increase the gap between housing demand and
supply. Also,the project is inconsistent with General Plan policies related to open space
(e.g. Land Use element policies 1.13.5E)because significantly less than the required
"approximately 50%of the ownership(Dalidio parcel)would be dedicated as open space.
Staff report(2004 Aug 03)at p. 3-44 notes that the amount of on-site open space(06 Jan
2004) is 54.67 acres which amounts to 41.7%of the 131 acre site. This is clearly
inconsistent with the General Plan Land Use Element policy 1.13.5 which calls for
approximately 50%of on-site open space. Several other General Plan inconsistencies are
mentioned in communications from Michael Sullivan(e.g. letter for Council hearing of
06 July 2004)and others.
(f) The project will be appropriate at the proposed location and will be compatible with
the neighboring uses, in light of the existing adjacent commercial uses,and as the
Conservation Land and the proposed residential uses separate much of the proposed
project from existing residential uses.
FALSE. This statement omits mention of the proposed roadway which would eventually
connect the Dalidio site to Los Osos Valley Road. This roadway will create additional
impacts related to traffic, noise,air pollution, aesthetics, and loss of open space. Such
impacts are incompatible with the adjacent residential neighborhoods e.g. the
.neighborhoods south of the site(Oceanaire St., etc.). In addition,the insufficient buffers
between agricultural use and proposed on-site residences would be incompatible with the
residential use there.
(g) The DA would promote the public interest and welfare of the City. The development
project will preserve open space,provide for public improvements contemplated by the
Circulation Element and expand the City's tax base through regional serving retail uses
different from those in the downtown area. The development project also provides for a
residential useadjacent to an existing residential area and limits the commercial-retail use
to an area adjacent to existing commercial and retail development.
FALSE. The Planning Commission found that the statement of overriding considerations
(under CEQA) is not justified. The significant(and permanent) environmental impacts of
the project,the creation of an imbalance in jobs and housing, and the erosion of public
sales tax revenue to finance a very expensive overpass that mainly benefits the project
f 1
' 02 Aug 2004 To City of San Luis Obispo from Michael Sullivan ' Page 4 of 5
RE: Dalidio development agreement
developer at the expense of the city, are all reasons why the project and the Development
Agreement are not in the public interest.
Section 7
The proposed DA was analyzed in the Final Environmental Impact Report(FEIR) for the
San Luis Obispo Marketplace project,and the City Council certified said FEIR and
adopted statements of overriding considerations on July 7, 2004. The City Council finds
and determines that the Final Environmental Impact Report adequately addresses the
potential significant environmental impacts of the proposed DA, and reflects the
independent judgment of the City Council. The Council,through the certification of the
FEIR, incorporated the mitigation measures listed in the Mitigation Monitoring Program
into the project and the DA. In light of adoption of the overriding considerations and
incorporation of the mitigation measures,the project and DA will not have a significant
adverse impact on the environment.
FALSE. A statement of overriding considerations clearly does not eliminate the
significant adverse impacts on the environment. The statement of overriding
considerations,rather,is a statement that the known significant adverse impacts on the
environments are tolerable given the project's purported benefits to the city. However,it
has been clear from the record that the purported benefits do not outweigh the adverse
environmental impacts. At a time when housing scarcity and affordability are extreme
hardships in San Luis Obispo,the Dalidio project makes these problems only worse.
Furthermore,the final EIR should never have been certified because of its many
deficiencies. Some of these deficiencies were explained in letters by Michael Sullivan
and others. Mitigation measures proposed in some cases do not meet the requirements of
CEQA. The project is inconsistent with the General Plan in various ways. Discussion
and analysis of certain environmental impacts was inadequate.
Two major projects(Dalidio Marketplace,and Margarita/Airport specific plan) have
considered the Prado Road corridor(extending from Madonna Road to Broad Street)as
the future route of State Highway 227. For example, Attachment A-1 at page A-24 notes
that in 1994,the City recommended that Prado Road ultimately become Highway 227
removing that distinction from Broad and South Street. Since 1994,the City has been
planning to use Prado Road as a public highway. Under CEQA,a public project such as
this must have environmental review at the earliest possible stage. Instead,the City
continues to use a"piecemeal"or segmented approach, See letter of Michael Sullivan in
attachment B (pages B-2, B-3).
Also,the City has not properly analyzed the fiscal impact of the financing scheme for
the US 101 /Prado Rd. overpass. This scheme could have significant indirect
environmental impacts if the city's Transportation Improvement Fund (TIF)becomes
partly depleted to help finance the overpass. If general funds or TIF funds are
diminished,there would be less money available for other improvement projects
throughout the city,and this could cause indirect traffic problems.
02 Aug 2004 To City ur San Luis Obispo from Michael Sullivan Page 5 of 5
RE: Dalidio development agreement
The Development Agreement also establishes a bad precedent for the city which is
harmful to the general welfare of the city. Development should pay its own way. (See
Land use Element policy LU 1.14: Costs of Growth). The trade-off for"community
wide benefits"is not a good one. The city would get a new overpass, but it is the project
itself which makes the overpass necessary at this time. The trade-off is loss of significant
city revenue (due to the loss of sales tax)and also the permanent significant
environmental effects (e.g. traffic,noise,loss of open space, etc.)which would remain
with the city for many,many years to come. The Development Agreement is,on
balance, an especially bad deal for the City.
Michael C. Sullivan
/C�LG /✓mac
ATTACHMENTS
1 (A) City of San Luis Obispo—Planning Commission staff report etc.—Feb. 11,2004—
�e' Margarita and Airport Area SP/ER 73-00. (A-1 through A-44)
V (B) Letters from Michael Sullivan to City of SLO—dated May 7, 2004,April 28, 2004,
March 23,2004 (B-1 through B-16)
L.A. STYLE PROBLEMS
CREATED BY THIS L.A.
STYLE MALL
1. Violate AIR QUALITY standards: DIRTY AIR
2. Violate NOISE standards: DESTROY PEACE & QUIET
3. Create GRIDLOCK TRAFFIC congestion
4. Destroy HISTORICAL resources
5. Destroy PRIME AGRICULTURAL LAND
6. Increase risk of FLOOD DAMAGE.
T Destroy the lovely view from 101.
8. Worsen the jobs/housing imbalance.
9. Put the city at financial risk for the INTERCHANGE.
10. Harm small businesses and the Downtown
ECONOMICALLY.
,- Page 1 of 1
SLO Citycouncil
From: "Bruce Dwyer" <bdwyerslo@earthlink.net>
To: "slocitycouncil" <slocitycouncil@slocity.org>
Date: 8/5/2004 11:16 AM
They paved paradise and put up a parking lot
With a pink hotel, a boutique,and a swingin'hot spot
Don't it always seem to go
That you don't know what you got'til it's gone
They paved paradise and put up a parking lot
They took all the trees,and put em in a tree museum
And they charged the people a doUar and a half to see them OIL,, ;
No, no, no
Don't it always seem to go
That you don't know what you got'til it's gone
They paved paradise, and put up a parking lot pp '�
Hey farmer,farmer,put away your DDT ` V
I don't care about spots on my apples, JJJJ
-I to
Leave me the birds and the bees
Please
Don't it always seem to go
That you don't know what you got'til it's gone Q`31 LW
They paved paradise and put up a parking lot
Hey now,they paved paradise to put up a parking lot
Why not?
Listen, late last night, I heard the screen door slam
And a big yellow taxi took my girl away
Don't it always seem to go
That you don't know what you got'til its gone
They paved paradise and put up a parking lot
Well,don't it always seem to go
That you don't know what you got'til it's gone
They paved paradise to put up a parking lot
Why not?
They paved paradise and put up a parking lot
Hey hey hey
Paved paradise and put up a parking lot
I don't wanna give it
Why you wanna give it
Why you wanna giving it all away
Hey, hey,hey
Now you wanna give it
I should wanna give it
Now you wanna giving it all away
Hey, paved paradise to put up a parking lot
Bruce Dwyer
bdwyerslo@earthlink.net
Why Wait? Move to EarthLink.
file://C:\Documents%20and%20Settings\slouser\L.ocal%20Settings\Temp\GW 100001.HTM 8/6/2004
Warren Gay
Marilyn Zahm
2165 Oxford Avenue
l:li- Cambria, 93428
-I 805-927-11414 7
wgaochartennet
c ULU
August 2, 2004 `�„�,LP o J
San Luis Obispo City Council z�'�'
990 Palm
San Luis Obispo, CA 93401
Dear Council Members,
Although we live in Cambria, we consider San Luis as our town too. We
spend lots of time in your town and also do most of our shopping there too.
We know you are considering a new shopping area, The Marketplace, and
wish to give you our input to assist you in your determinations.
We believe that right now there are adequate shopping opportunities in San
Luis and that addition stores will only dilute the shopping dollar. The addition of
the Marketplace could impact the current stock of retail stores, particularly those
located in your charming downtown area. Please consider waiting a few years for
further retail development.
We have personally seen the gradual and complete destruction of many
American cities caused mainly by retail development on the fringes of these cities.
Don't encourage it to happen to your town.
ds,
Warren Gay Maril m
F-RECEVED
LLO �I--
r`' CU_._UNC�L
Page 1 of 1
SLO Citycouncil - marketplace
RECEIVED
From: Jean E Reno <jeanoreno@juno.com>
To: <slocitycoundl@slocity.org> SLO CITY
Date: 8/5/2004 3:45 AM C��RK
Subject: marketplace
Dear Council Members,
I see another meeting coming up tomorrow that lists the development
agreement for the Marketplace-project as a discussion item.
I wanted to take a moment to express my opposition to the Marketplace
project. The way I understand it the project is slated to move forward
and add 600,000 square feet to retail space in SLO. Personally I am not
interested in shopping there. If it is built it will greatly change the
face of downtown as we know it. There are only so many spendable dollars
and if they are spread over more retail areas most downtown merchants
will not be able to make it. Also if the retrofitting deadline is moved
to an earlier date the downtown I have enjoyed for the past 32 years will
be ruined. How can a downtown have approximately 75 buildings
retrofitted in 7 years and stay profitable for the merchants? If the
Marketplace doesn't put local merchants out of business then surely the
accelerated retrofitting plan will. r
I believe you have all voted on the project but I wanted to let my
opinion be known. I hope the gathering of signatures to put it on the
ballot will be a success and then we can all see what "the people"want
and live with that decision instead of basing-it on politics and greed
for supposed increases in tax dollars.
Thank you for your time.
Jean Reno
1255 Orcutt Rd. Space A14
San Luis Obispo CA 93401
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MEMORANDUM
From the Office of the City Attorney
August 2, 2004 RED FILE
To: Mayor and City Council MEETING AGENDA
DATE 11C ITEM #
From: Jonathan P. Lowell, City Attorney
Subjects Minor Clerical Revisions to Dalidio Development Agreement and Special Tax
Reimbursement Agreement
Further review of the Development Agreement and Special Tax Reimbursement Agreement
revealed the need for minor clerical revisions, as follows.
At pages 4 and 5 of the Development Agreement (pages 3-94 and 3-95 of the August 3, 2004
Agenda Report), Recitals R and T should be modified as shown below:
R. Consistent with City's General Plan, City approved that certain Development
Plan (the "Development Plan") for a portion of the Project, including the Retail
Project, on [INSERT DATE], by Resolution Ordinance No. [INSERT NUMBER].
T. The City Council, after providing public notice as required by law,held.
on [INSERT DATE] . Ge [INSERT
DATE], the City Gauneil-considered and approved the Conservation Easement by
Resolution No. [INSERT NUMBER].
At page 2 of the Special Tax Reimbursement Agreement (page 3-151 of the Agenda Report),
Recital I should be modified as follows:
I. The City Council, after providing public notice as required by law, held a
on [INSERT DATE]. ,
considered and approved this Agreement by Resolution No. [INSERT
NUMBER].
The change to Recital R is necessary because the Development Plan was adopted by an
ordinance introduced on July 6, 2004, rather than by a resolution. The changes to Recitals I
and T are made because, unlike for an Open Space Easement, a public hearing is not required-
prior
equiredprior to entering into a Conservation Agreement, and approval may be accomplished by
resolution. The blanks left for dates and ordinance and resolution numbers will be filled in,
following City Council action, at the time of execution of the documents.
Page 1 of 1
Allen Settle-Dalidio Marketplace RECEIVED
From: "D.&E. Dollar"<ddollar@pacbell.net> SLO CITY CLERK
To: Ken Schwartz<kschwartz@slocity.org>,John Ewan<jewan@slocity.org>,Christine Mulholland
<cmulholland@slociry.org>,Allen Settle<asettle@slocity.org>,Dave Romero<dromero@slocity.org>
Date: 7/30/2004 1:38 PM
Subject: Dalidio Marketplace
CC: Pam Ricci<pricci@slocity.org>,Neil Havlik<nhavlik@slociry.org>
City Council,
RE: Dalidio/San Luis Marketplace Development Agreement
I support the position that the Planning Commission made on the Marketplace.I think they clearly defined the issues.As it appears
that your will continue with the approval process,on the Marketplace issue before you now,there is one area that I will comment on,
that is the Open Space agreement.
The development agreement for the Open Space part of this deal,will set precedent. It is very important that it be done with great
fairness to the public.I understand that the land is private,and will not be open to the public.But,for there to be a public benefit,the
protection measures must be strong and enforceable. Also,the protection must be perpetual.This whole deal is very contentious.
1. My understanding is that there is a choose between using a Conservation Easement or an Open Space Easement.My understanding
is that the Conservation Easement is stronger and much more difficult to revoke. I urge you to recommend the stronger Conservation
Easement.
2.To protect public open space easements and keep them open visually,I recommend that you add the following:
No new buildings,sheds,outbuildings,structures,billboards,equipment storage and material storage to be allowed(prohibit
hazardous material,fuel and agricultural materials unless it/they will be used appropriately in the immediate future for accepted
agricultural purposes on site).
3. Inspections-in addition to the normal annual inspection,add the potential to inspect on short term notice when there is concern on
how the land is being used.
In closing,please be proactive and set a strong precedent for this type of Open Space agreement.We will be visually accessing this
land often.We will all see the results.
Sincerely,
Don Dollar
SLO 781.0118
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Fr, �'entl Asked Questions Ab. the
July 2004 Improved General Fund Revenues. The Marketplace
will generate substantial new sales and hotel tax
The following answers a dozen frequently asked revenues that will help deliver important day-to-day
questions about the proposed development and tax services like police, fire, street maintenance, parks,
reimbursement agreements for the San Luis Marketplace recreation and added open space acquisitions. These
project. added revenues will also help offset significant State
budget cuts to cities.
1 What is a Development Agreement and why is
one proposed for the Marketplace project? Expanded Shopping Opportunities. The project will
offer shopping opportunities locally that many of our
State law allows development agreements as a way of residents want but now must go elsewhere to find. On
offering greater certainty for the developer in the review the other hand, because the retail mix within the
process in exchange for unique public benefits Marketplace is so different and there is significant
associated with a project. When the Council negotiated leakage to other parts of the Central Coast region for
the return of the Marketplace project to the City from the these types of retail, an independent economic analysis
County, it offered a development agreement as a way of has shown that the project should have a modest impact
formalizing these benefits for both the City and the on the Downtown.
developer.
3 Whatis the "greater certainty" offered to the
ZWhat "unique public benefits" are offered by developer in exchange for these benefits?
the Marketplace project?
The development agreement does not change any of the
The project helps achieve a number of General Plan City's development review "ground rules" for the
objectives and major City goals, including: project. However, it does provide assurance to the
developer that they won't change for 5 years in the case
Open Space Protection. In most communities, freeway of the retail portion of the project, and for 15 years for
frontage like the Dalidio property would be developed in the residential and business park components. And as
its entirety. In this case, 55 acres of the property will be noted above, it also sets forth the developer's financial
preserved as open space as well as an additional 24 acres responsibilities for building the Prado Road interchange.
offsite in an area where sprawl is a significant threat.
The conditions of the development approval granted by 4 Who is responsible for paying for the
the Council on July 7, 2004 assure that these 79 acres of interchange?
open space will be protected forever. As noted above, the interchange will be solely funded by
Prado Road Interchange. The proposed agreements new development, summarized as follows:
create a financing mechanism—totally funded by new
development—to help construct the Prado Road Allocation '
e Costs
interchange, a long-standing General Plan Circulation Developer(Community Facilities District)
Element goal. Along with mitigating the traffic needs of Marketplace Project 52A%
the Marketplace, this interchange will also serve the Other Directly Benefiting Properties
Prado, Margarita and Airport areas as well as other areas Prado Road Area 4.7%
of the community. The proposed agreements also assure Margarita Area 13.0%
that building permits for the project will not be issued Total Developer Responsibility 70.1%
until the construction contract for the interchange has Other New Development(Impact Fees) 29.9%
been awarded. Tom 1 100.0%
Affordable Housing. The project includes 60 affordable The developer's share of interchange costs (70.1%) will
housing units. be funded by the issuance of Community Facilities
District (CFD) bonds. Repayment of this debt will be
Strengthened Tourism. The project also includes the sole responsibility of the developer, funded by
construction of a 150-unit hotel, which will help "special taxes"levied specifically on the property. The
strengthen the City's market position for destination remaining 29.9% will be financed by a separate City
tourism and conferences, as set forth in the Council's bond issue funded by transportation impact fees.
major City goal for 2003-05.
Frequently Asked Questions: Mark�j,, .ice Development and Tax Reimburser Agreements
5 What are the key terms of the proposed tax the type of tenants—whether smaller or larger—is likely
reimbursement agreement? to require changes in the physical lay-out of the project,
and thus trigger additional City review.
The City is proposing to reimburse the developer for
some of its interchange special tax obligation by sharing Who is in charge of approving the interchange
up to 50% of the "net" new sales and hotel taxes—after design and who is responsible for building it?
accounting for transfers from existing businesses—
generated by the project. Based on comprehensive Since it is part of the State's freeway system,CalTrans is
analyses by two independent economists, the transfer responsible for approving the interchange design.
affects are estimated to be 33% for the retail uses and However, under an agreement with CalTrans, the City
20% for the hotel. This results in "net" new revenues to will be responsible for awarding and managing the
the City—after transfer affects and the 50% construction contract.
reimbursement--of about$750,000 annually.
to What happens if the project generates lower
It is important to note that the tax sharing agreement sales and hotel tax revenues than expected,or
does not obligate the City for any of the CFD debt the cost of the interchange is higher than estimated?
service payments for the interchange: the City is only
agreeing to share "50% of the net"; it is not agreeing If these revenues are lower, then the City's "net new
to share any of the financial liability for repayment of revenues" will be lower—but so will the reimbursements
the CFD bonds. As such, the developer is responsible to the developer. However; this will not relieve the
for paying any differences between its debt service developer of its full responsibility for the CFD debt
obligations and the amount of the shared revenue. In the service payments. In the event that the cost of the
early years of the project, this difference will be interchange is more than $22 million, either the City or
significant. For example, by "Year 4," the developer's the developer may withdraw from the agreements, unless
debt service obligation is projected to be about $1.3 both agree to renegotiate them.
million, but the amount of shared tax revenues from the
City will only be$765,000. Can stores open before the interchange is
11 completed?
6 Why is the City proposing to share revenues
with the Developer to pay for the interchange As noted above,under the proposed agreements, the City
when the City continues to face budgetary will not issue building permits for construction of the
challenges? stores and hotel until the construction contract for the
interchange is awarded. This means that construction of
Stated simply, without this project, there will be no the interchange and the Marketplace will occur on
added revenues at all. In short, 50% of something roughly the same timeline, although some stores may
(especially a very large something) is a lot more than open a few months before the interchange is completed
100%of nothing. (store openings are expected to occur in phases).
How does the tax reimbursement agreement "� What further design review will occur, and
protect the Downtown? 12 how will mitigation measures be
It provides a number of economic disincentives for incorporated into the project?
creating smaller, competing store spaces by excluding After approval of the development and tax
any revenues from these stores from the calculation of reimbursement agreements, there will still be a number
net taxes to be shared. It also excludes revenues from of review steps remaining, including: final review and
stores relocating from the other areas of the City, with an approval by the Architectural Review Commission of
added penalty if they relocate from the Downtown. design issues such as the site plan, building design,
SSince the City cannot specify tenants, how can colors, landscaping, lighting, signage and public art;
we be assured that there won't be a major incorporation of all project changes mandated in
change in the type of proposed tenants over time? previous reviews and required by mitigation measures
into the final plan; and subsequent public hearings for
First, as noted above, in the case of creating additional the business park and affordable housing components of
smaller spaces that might more directly compete with the project.
Downtown, there are significant disincentives for the
developer to do so. Secondly, any significant change in
r Page 1 of 1
1
Barbara Ehrbor - Market Place
From: "amayjay" <amayjay@highstream.net> 7CEIVED
To: <slocitycouncil@slocity.org>
Date: 8/2/2004 8:27 AM 004Subject: Market Place � ERK
Dear Members of City Council,
I have lived in SLO for over fifty years, and my husband has lived here over forty. We have seen the changes
come,and welcome most of them. While we do have very good climate and lovely hills surrounding, we do not feel
that there is anything about San Luis Obispo that is "Quaint." It is a population explosion. We are no longer a small
town,any more than we are a small population. Yet the Council has fought any larger stores, every step of the way,
to unreasonability.
We need the Market Place! We need Costco! We needed badly, the Home Depot. And we need a Wal-Mart. By the
way, Wal-Mart is not an undesirable. It provides household necessities for lots of elderly,and young families, who
don't have plenty of money and cannot afford San Luis Obispo's higher prices.
Leave Downtown for the tourist and visitors. But please support these new business trying to locate at the edge of
the city. We feel that if not, the population growth will still continue to explode,and the tax dollars will still
continue to go to the other surrounding cities that do provide these stores.
Thank you for allowing us to send you our feelings on this very important matter.
Sincerely,
Don and Mary Hines
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Barbara Ehrbar- Marketplace
NtUtIVED
From: "Kerry, Kent or Patrick Taylor" <KKPT @ slonet.org> AUG 0 2 2004
To: <slocitycouncil@slocity.org>
Date: 8/2/2004 7:53 AM SLO CITY CLERK
Subject: Marketplace
Dear Council Members,
I will be out of town on the evening you take up the Marketplace development agreement. From what I have read,this is a total give
away of city revenues. The developer should pay 100%of his share of the freeway interchange/overpass without a huge subsidy from
the City,just like any other development.
On Channel 6 last night, Mayor Romero complained that the opposition to the Marketplace was a very small group of people. He's
wrong. Save San Luis Obispo will be turning in petitions signed by thousands of City registered voters,obtained over a very short
period of time. They want to be allowed to vote on the Marketplace.
Why not do us all a favor and trust the wisdom of the people? This isn't just another development proposal;this is a community and
neighborhood altering,southern California-style colossus. It should be put on the ballot so that the people can decide..
Thank you.
Kent Taylor
1295 Descanso St.
San Luis Obispo,CA 93405
594-1559 ' Imo_ �O
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Mcounat mcmoRanbum
city of san Luis ot;ispo, a0mmisteation Oepantment
DATE: August 2, 2004 =RECEEIVEDTO: Council
FROM: Ken Hampian, CAO vo,�
Prepared By: Shelly Stanwyck, Economic Development Manager 0 -1-�
SUBJECT: MARKETPLACE DEVELOPMENT AGREEMENT,COUNCIL AGENDA ITEM 3
During a recent meeting with Council Member Schwartz, he pointed out the potential to
misinterpret Council's prior direction on the San Luis Obispo Marketplace Project from a
cursory reading of the August 3, 2004 Agenda Report for the Marketplace Development
Agreement.
In February 2001, Council voted 2-2 (Romero, Schwartz supported, Howell Marx, Ewan
opposed)regarding the certification of the Final Environmental Impact Report for the original
San Luis Obispo Marketplace Project. The Agenda Report for this item erroneously stated that
the project was denied. It was not. Rather, when the Council vote is tied, City policy is that
further action cannot be taken and therefore the EIR was not certified and the project could not
proceed. The current project was submitted for processing on June 27, 2002 and received
approvals relating to land use issues on July 7, 2004.
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RECEIVED
AUG 0 2 2004
July 30, 2004
SLO CITY COUNCIL
Dear Dave Romero
SLO City Council
Thought you might be interested in this survey I just read in Footwear News.
It shows Target as#1 for women who are in the wealthiest 10 percent of the US
population, and #3 among men. I definitely feel our city could use a Target, but if the
loud minority gets their way, I will just continue to drive to either Paso or Santa Maria.
I think it is very obvious that the people who say our downtown has complete shopping,
do not shop, and definitely do not shop for a family.
My daughter got tricked into signing a petition in front of her grocery store. She was told
it was to get the Marketplace. Obviously you have already voted on this project, and this
petition is part of the process to stop the Marketplace.
I'm actually tired of all the bickering surrounding the Marketplace and in the political
race for President. No one wants what's best for the majority, everyone has their own
agenda. I think we've all lost sight of what is really important.
Kindr ds,
ath Jones
5752 Salisbury Ln.
SLO, CA. 93401
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HIGH
NOTES
EvcI gone loves a superheto,so itIna kes perfect sense to intro-
'� I duce caped cnisadeistothe world ofcouture.JeanPaulGaultl-
er—who is a superhero himself in the fashion world—dazzled
o us with his latest,h igh-fly i rig couturecollection.Plushvelvets,
_ exotic skins and hncy plumage,all in living color;created a i
rich,heroic effect+ fhe collection was filled with must-have f
unique,pieces Thigh-high boots in multiple varintions,incli,id- y
ing reverse Iambs wool,knit olive-green and brighu ed suede,
were standouts.As for the feather-covered,dusk-gray and
cornflower-blue versions,they arc destined to provide armor
to en urban goddess'fashion arsenal-
.
i
TheFKLI'st In a recent poll, 316 households that represent the
wealthiest 10 percent of the U.S. population were asked
which stores they visited in the last 90 days. Gender
Bankroll: Favorite Retailers stereotypes were tossed aside, with Bed Bath & Beyond
and Crate & Barrel making the men's top 10 and Home
Among Wealthy Americans Depot and Best Buy rated high among women,
MEN PERCENTAGE WOMEN STOK PERCENTAGE
iaHome Depot 69 Target61
No surprise that Home.Depot easily tops the men's list:. , ' I As it did on the men's side,Target easily finished ahe;
This home-fumishings giant is a favorite among aspir- �!%r'" ? of Wal-Mart among women,who can shop for shoes by
ing Mr.Fix-its everywhere. Isaac Mizrahi and Massimo.
Costco 49 Home Depot 60
Apparently,even the wealthiest among us like to save FYI,it's all about DIY for the richest Americans:
a few bucks,as evidenced by Costco's No.2 finish According to the survey,more than half of all females
among men. 2 polled had visited Home.Depot recently.
V ; Target 46 Costco 54
For guys who don't really like to shop,Target is the one- As with men,Costco,which charges a small annual fee to
stop ticket,offering shoes from Mossimo and fashions _ gain access to its bargains,finished very high on the list for
from Levis,Lee and Wrangler. 3women.
Best Buy 42 Nordstrom 43
�+* Whether they're looking for a N to watch the game or a The only true department store to make the top 10 among
stereo to play their favorite tunes,Best Buy is a favorite either gender,Nordstrom offers female footwear mainstays
among male consumers. such as Kate Spade and Nine West.
Nordstrom 36 Gap 40
Nordstrom features"many men's footwear favorites, For women looking for summer shoes,Gap has plenty
including popular brands such as Adidas,Nike, of flip-flops and sandals that all sell for less than$30
Timberland,Cole Haan and Rockport. and most for less than-$20.
-, Bed Bath & Beyond 35 =; Bed Bath&Beyond 38
'°s= Bed Bath&Beyond may beta bit of a surprise for the =_� In addition to the myriad bathroom adornments,sheets and
men's side,but guys can find poker tabletops and elec- towels,women can also find jewelry boxes and aromathera-
tric razors here. py sets at Bed Bath&Beyond.
Wal-Mart 31 Best Buy 31
Wal-Mart—the world's largest retailer—finished 15 per- With DVDs,CDs,stereos and countless other types of
ceritage points below Target,one of its main competitors. IT �
electronic equipment,Best Buy is a must-shop for any-
Men can find such shoe brands as Thom McAn here. one.seeking an entertainment fix.
Gap 30 Wal-Mart 30
With its simple and classic fashions,Gap has been a Female shoppers at Wal-Mart can choose footwear
mainstay in the men's fashion sector for years now and fashions from such labels as George and No
shows no signs of slowing down. Boundaries.
Radio Shack 27 Crate&Barrel 29
Gadgets.Men love them and Radio Shack has them.Byrq ;_Uwl ,
Wine openers,olive dishes,copper cookware,vases—
comparison,only 5 percent of women polled said they Crate&Barrel has everything a well-heeled hostess
had shopped here in the past 90 days. 9(Ts@) could want.
10 Crate&Barrel 22 Williams-Sonoma 29
Probably the biggest surprise in the men's top 10,Crate �' "` Williams-Sonoma,which bills itself as"The Place for
rT1W;_UW171
&Barrel has become a staple of couples'wedding reg- Cooks,"offers everything from ice-cream-sandwich.istries in recent years. 9(Tie) makers to marble rolling pins. '
Source:FN reporting,American Affluence Research Center: - - _ - - -- - -
RECEIVED
RED FILE AUG 0 3 2004
�IIIIIIIIIIIIIIII I Illl I
MEETING AGENDA
DATEPO ITEM #,J.3 SLO CITY CLERK
MEMORANDUM
From the Office of the City Attorney
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From: Jonathan P. Lowell; City Attorney �' }�(� Vii_;R DI ;
Subject: Effect of Referendum Petition on City Council Decisions on Dalidio
Development Agreement, Special Tax Reimbursement Agreement and
Conservation Easement Agreement
Attached is a letter from legal counsel for a group called Save San Luis Obispo
explaining that, as that organization has submitted a.referendum petition containing over
4,700 signatures and only approximately 2,330 are required for the referendum to qualify
for the ballot, the City Clerk should promptly complete the required prima facie review of
the signatures and accept the petition for filing. Upon acceptance of the petition for
filing, pursuant to the Elections Code, the effective date of the City Council's July 7
action of approving a General Plan Amendment by Resolution No. 9590 (2004 Series)is
suspended pending City Council reconsideration of its action. It is Save San Luis
Obispo's contention that while such a suspension is in effect, no further actions related to
the Dalidio project may proceed because they are all predicated upon consistency with
the General Plan. '
At the time of this writing, the Acting City Clerk has not completed a prima facie review
of the signatures and has not yet accepted the petition for filing. (Her review is hampered
by the shortage of staff in that office, and by the following facts: the petitions were
dropped off at approximately 3:30 p.m. yesterday afternoon, today's City Council
meeting commences at 4 p.m., yet the normal pre-City Council meeting responsibilities
and pre-meetings still must be attended to by the Acting City Clerk and her deputy.)
Thus, the City Council's July 7 approval of the General Plan Amendment(by Resolution
No. 9590) is still effective, has not been suspended, and the General Plan consistency
findings for the subsequent Dalidio project approvals can be made.
One alternative that the Council may wish to consider is to modify the effective dates
applicable to the subsequent Dalidio project approvals. The actions before you tonight
could be conditioned such that they take effect on their normal effective dates or when
1 Under state law and the City Charter the City Council cannot take actions that are inconsistent with the
General Plan. Hence,the subsequent approvals before the Council this evening must be consistent with the
General Plan. The General Plan has been amended by the Council through its adoption of Resolution No.
9590.
Mayor and Council
August 3, 2004
Page 2
the possible suspension,pursuant to Elections Code Section 9237, of the effective date of
Resolution No. 9590 is lifted, whichever is later. The lifting of the suspension of
Resolution No. 9590 would occur if either: 1) it is determined there is not a sufficient
number of valid signatures for the measure to qualify for the ballot, or 2)the measure is
defeated by voters. In this way, it is clear that the City Council is not seeking to thwart
the will of the electorate to utilize the referendum process, as the Council's actions will
essentially be tied to the results of the pending referendum measure. This approach also
eliminates the need for project opponents to pursue further referenda of the two
remaining legislative actions concerning this project. And, finally, this permits the City
Council to take action and then allows fora potentially divisive issue in the community to
be resolved at the ballot box.
If the Council is amenable to this alternative, it is recommended that the Council act upon
the proposed ordinances and actions before it tonight with the minor modifications noted
below.
• For item C2, Section 4 of the ordinance (page C2-13) should be modified by the
addition of the following to the end of the last sentence of that section:
"...or when the possible suspension, pursuant to Elections Code Section 9237, of
the effective date of Resolution No. 9590 (2004 Series) is lifted, whichever is
later."
• For item 3, Section 9 of the Development Agreement ordinance (page 3-90)
should be modified by the addition of the following to the end of the last sentence
of that section:
"...or when the possible suspension, pursuant to Elections Code.Section 9237, of
the effective date of Resolution No. 9590 (2004 Series) is lifted, whichever is
later."
[Note: the term of the Special Tax Reimbursement Agreement is the same as that of the
Development Agreement, so no there is no need to modify the action relating to the
Reimbursement Agreement.]
• For item 3, a new Section 5 should be added to the resolution (page 3-203) as
follows:
"Section 5. This resolution shall take effect immediately or when the possible
suspension, pursuant to Elections Code Section 9237, of the effective date of
Resolution No. 9590 (2004 Series) is lifted, whichever is later."
Further clarification and explanation will be provided at tonight's meeting.
Attachment
AUG-02-2004 MON 12:41 PM 4796848 FAX NO. 8314294057 P. 02
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August 2,2004
DELIVERED 171A I ACSiM1L r (805) 781-7109
City Council
City of San Luis Obispo
940 Palm Street
Snn Luis Obispo, CA 93401
Re: Maudatory Suspension of Resolution No. 9590 (2004 Series)
Amending General Plan rc Dalidio/San Luis Marketplace Project
I iorlorahle City Councilmernbers:
This office mprescoLs [he interests of Save San Luis Obispo regarding the Referendum
Petition ogninst the Dalidio/San i.uis Marketplace Project(hereinafl.er"the Dalidio Project")
"Chu purpose of this letter into provide you with my legal opinion with regard to two issues:
(1) that Once the proponent()f the Referendum Petition (Save San Luis Obispo) submits
such Petition to the City Clerk, Resolution No. 9590 (2004) Series)is suspended as tt
matter of State law; and
(2) that the effect of such suspension is to preclude any action in furtherance of the
approval of proposed Ordinance No. 1449 (the Ordinance for Prezoning,amending,
tate City Zoning Regulations Mnp and Preliminary Development Plan approval for
the Dalidio/San Luis Marketplace Project—itetn C2 on the City Council's August 3,
2004 Agenda)and the Development Agreement and Special fax Reimbursement
Agreement (Itetn PH3 on the City Council's August 3, 2004 Agenda).
My legal analysis follows.
i3ACKGROUND
At approximately 3:00 pnt.August 2, 2004; Save San Luis Obispo will be delivering to
the City Clerk a Referendum Petition Against Resolution No; 9590 (2004 Series) Amending the
City Oenerul Plan to enable the Dalidio/San Luis Marketplace Project (hereinafter"General Plan
Amendment Resolmion"). The Referendum Petition will contain on its face more than 4,700
signatures. 11ic number of signatures required to compel an election is 2,330 according to prior
AUG-02-2004 MON 12:42 PM 4796848 FAX NO. 8314294057 P. 03
city Council
City of San Luis Obispo,
-%Iory Suspension of Rusolution No.9500(2004 Series)
f3ased nn Rofcrundurn Petition
Pet,c 2
Au-ust.2,2004
inforniation Provided to Save San Luis Obispo by the City Clerk. it will not take the City Clerk
more than an hour or two to confirm that"prima facie" the Referendum Petition contains
signatures eclual to or exceeding the minimum number of signatures required.
Neither hem C2 nor Itern P113 on the City Council's August 3, 2004 Agenda can be
approved unless found to he consistent with the City General Plan. If the General Plan
Arnendnuent Resolution is suspended',the required IIindiag of consistency with the General Plan
cannot be made. That is because the General Plan Amendment Resolution was a necessary
amcndment to the City Gcneral Plan in order establish the required General Plan consistency,
C,9:GAl, ANALYSIS
(1) Marulatory Suspension by Operation of Law of General Plan Amendment
Resolution Based on Submittal of Referendum Petition
Under Elections Code Section 92359, a referendum petition is required to be accepted for
filing by ilia City Clerk and the determination oftbc number of signatures thercon shall be made
by t6: City Clerk in accordance with Section 9210, Section 9210, in tum,provides:
"When the petition is presented for filing, the [City Clerk] ... shall do all of the
fol lowing:
(n) Ascertain the number of registered voters of the city last reported by the
county elections offlicinl to the Secretary of State pursuant to [Elections Code]
Section 2187._..
(b) Determine the total number of signatures affixed to the petition. If, froin this
examination, the [City Clerk] determines that the number of signatures, ry imn
mete, equals or is in excess of the minimum number of signatures required, he or
she shall accept the petition for filing. The petition shall be deemed as filed on
that date. (empbasis added)
Tlw City Clerk then has thirty business days after the filing in which to verify the validity of
(hose signntures (Elections Codd Section 9240).
0nd%:r 0-ilifomia Elections Code Section 9237, upon submittal of the Referendum
Petition, the effective date of the City Council's decision regarding the General Plan Amendment
Resolution is suspended and the City Council must.reconsider its decision. Section 9237
provides, in porlinent part,as follows:
2
AUG-02-2004 MON 12:42 PM 4786848 FAX NO. 8314294057 P. 04
t
City Council
City of Stn Luis Obispo.
Mandatory Suspension of Resolution No. 9590(2004 Scrics)
Based on Referendum Petition
P,i�z 3
(1«Fust 2,2004
"If a petition protesting the adoption of an ordinance ... is submitted to the
elections official of the legislative body of the city ... within 30 days of the
adoption of the ordinance, and is signed by not less than 10 percent of the voters
of dic city according to the county elections oflicial's last official report of
registration to the Secretary of State ... the effective date of the ordinance shall be
suspended and the legislative body shall reconsider the ordinance."
Thus, the susl)cnsion of the (iencral flan Amendment Resolution is-mandatory by operation of
law upon submittal of the Refercudtlm Petition and the.City Clerk determining that"prima facie"
thcro are a sufficient number of signatarvs. Given the fact that there are nearly double the
number of required signatures on the Referendum Petition, the City Clerk, acting reasonably,
will inisily be able to Make the "prima facie"determination prior to the City Council meeting on
August 3, 2004, "lllat is bwause all that is involved is obtaining;the number of registered voters
in the City from the County Elections Official (which it is my understanding the City Clerk has
ilrenrly deme), multiplying that number by 10 percent, and checking that the total number of
signatures on the submitted Referendum Petition(not their validity)equals or exceeds the 10
percent iturnber.
(2) Action in 1+urtheranee of Other Approvals for Dalidio Project Precluded
During the 30 business clay period while the validity of the signatures is being examined
(and tlicrealler if sufficient validity is confirtn(A), the General Plan Amendment Resolution is
not in effect, because it's effective date has been suspended. Hence, no action in furtherance of
any approval for the Dalidio Project requiring a finding of consistency with the City General
Plan may legally be takrn at the City Council Mcetinp on August 3,2004. This would include
the final reacting or approval of proposed Ordinance No. 1449 (Item C2). The Zoning
Ordinance Arttendtnettt in Item C2 is required to be consistent with the General flan. City Code
Section 17.70.050. This would also preclude the introduction of, or authorization of signing of,
the l welopinent Agreement and Special Tax Reimbursement Agreement(item P113). A
f eveiopmont Agrecrucut is required by State law to be consistent with the General Plan.
Clovernnicnt Code Section 155807:5; City Code Section 1.7.94.100 and.120. Although
incoosisteiicy absent the (iencral 1'lon Amendlnant Resolution is clear for a variety of reasons,
tho sixth"WIlEP%.F.AS"on the face oft}hc proposed Zoning Ordinance Amendment
ock-nowledges the lack of consistency with the existing General Plan Land Use Elemenf(LUP)
N'lap. because it finds only consistency with the'—,yM osec!' LUE Map(i.e, the one resulting
front the Gencnl Plan Amendment Resolution which will have been suspended),
"thank you for your consiu'cmtion of these matters.
3
AUG-02-2004 MON 12:42 PM 4796848 FAX N0. 8314294057 P. 05
City Council
City of San 1 alis Obispo.
Alandmory,Suspension of Resolution No. 9590(200.1 Series)
Based on Refeiendum Petition
Pa„t•4
August 2,200.1
Very truly yours,
WITTWER& PARKTN,LIT
9onathan Wiitwel•
cc: Jonathan Lowell, City Attorney (fax to 805-781-7409)
Diane Reynolds, Interim City Clerk (fax to 805-781-7109)
F.ug;cnc Jud
4
_ Page 1 of 1
Allen Settle-The Marketplace
ME� P
G AGENDA AUG U 3 2004
From: "Lance Parker" <IparkerC�fwg.com> DATE 4ITEM #
To: <asettle@slocity.org>
E. Ti-�-= SLO CITY CLERK
Date: 8/3/2.004 10:20 AM
Subject: The Marketplace
Dear Allen,
I know you cannot vote on the Marketplace project. I think it is important that you know,as a memeber of the Downtown Association
and a city resident, I am in favor of seeing the Marketplace completed. I will not be able to attend tonights meeting, but I wanted you to
know there are Downtown Association members who are in favor of the Marketplace.
Thank you,
Lance Parker,CFS
Registered Representative
Cal. Ins.License#0845297
(805)546-9611 Fax(805)546-8276
1042 Pacific St. Ste C
San Luis Obispo,CA 93401
Securities offered and representative registered through
Financial West Group, Member, NASD/SIPC/MSRB
The information contained in this message is for the sole purpose of the
intended recipient(s). Nothing in this message is meant to be a
solicitation or request for securities transactions.Any and all investment
decisions should be reviewed with your Financial Advisor and
accompanied with the approriate prospectus.
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SLO Citycouncil-Save the SLO MarketPlace!
RECEIVED
From: "Dave and Leah Dean"<deanld@sbcglobal.net>
To: <slocitycouncil@slocity.org> AU6 0 3 2004
Date: 8/2/2004 5:13 PM
Subject: Save the SLO MarketPlace! SLO CITY CLERK
Dear City Council Members,
Is there anything I can do to help counteract the petition that was recently submitted to stop the construction of the SLO
Marketplace? My friends and I have been looking forward to the new marketplace for so long now and I would hate to see
it stopped (it's already been too long in coming!).Whole Foods is the best market anywhere in my opinion and we NEED
to have a Target in our area. I believe that the majority of people who want it aren't in the "vocal citizens"crowd, and may
not even realize that people are trying to stop it. I am a new mother, as are a lot of my local friends, and the new
Marketplace would be a blessing to our busy schedules.
Sincerely,
Leah J Dean
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SLO Citycouncil - SanLuis MarketPlace RECEIVED
From: "martin fox" <ososfox@hotmail.com> AUS 04 2004
To: <slocitycouncil@slocity.org> SLO CITY CLERK
Date: 8/3/2004 7:44 PM
Subject SanLuis MarketPlace
Downtown has been given to the college students and tourists. There is no
reason for this family to go downtown. Downtown is slowly killing itself:
no parking, transient&seasonal residents unable to support viable
business'. We want the the SanLuis MarketPlace. We need the SanLuis
MarketPlace! We don't want to continue driving to Santa Maria to do our
major shopping!
Dee Ann Fox
Don't just search. Find. Checkout the new MSN Search!
bUp://search.msn.click-url.com/go/onmOO200636ave/direct/Ol/
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SLO Citycouncil-dalideo project AUb U 3 2004
LSLO CITY CLERK
From: "Linda Pax" <lindapax@charter.net>
To: <slocitycouncil@slocity.org>
Date: 8/3/2004 5:00 PM
Subject: dalideo project
Dear city council members,
I have been watching a past meeting on TV regarding the Dalideo project and suggest we
seriously think about NOT letting this proposal go through. As many who came forth said, it is
so true that our needs as shoppers (the local needs) are NOT being met by this project.
PLEASE consider this! I have lived here since 1968 and do not want to see unnecessary
development. I don't NEED a Loews — I have Best Buy and Home Depot and Pacific Home
Do-it Center and other local merchants. I don't NEED a Blue Navy. I have the GAP. I do not
need any more shopping opportunities. The traffic on Madonna and Los Osos Valley Road is
frustrating and many times unacceptable these days!! Go there during peak hours. The
character of our community is what we have to seriously consider, and if we are trading tax
dollars for tax dollars, what are we gaining? And if we are trading valuable agricultural land for
water and air pollution, what are we gaining? I implore you!! I love my community and the
way our planners have fought to maintain it. It is that effort that has made our central coast
town so very special, so unique. Let the city of San Luis Obispo be the precious community
that it has always been.
I hope there is time for more discussion.
Thank you for your consideration,
Linda Pax
UNCIL
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RECEIVED
JUL 2 9 2004
SLO Citycouncil - Marketplace project
From: "Linda Ortali" <Imo47@msn.com>
To: <slocitycouncil@slocity.org>
Date: 7/28/2004 11:03 PM
Subject: Marketplace project
We have lived in the Laguna Lake area of San Luis Obispo for over 30 years and understand that if the
city is going to grow in will be in this direction. However, enough is enough! Traffic in and out is
impossible now and will only get worse with more development. Has there been a recent traffic study? I
do not think another project should even be considered until the new overpass at Los Osos Valley
Road and Costco is complete and evaluated to determine if this side of town can handle any further
development. In my opinion we can not!
It is sad to me that a so few people can be responsible for the everyday quality of life for so many of us
who live in this area. I urge you to reconsider your recent decision and heed the recommendations of
the planning commission.
Linda Ortali
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