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HomeMy WebLinkAbout05/17/2005, C3 - ADOPTION OF A RESOLUTION DECERTIFYING THE ENVIRONMENTAL IMPACT REPORT AND RESCINDING THE USE PERMIT i council ft®NwbQ j acEnaa Report CITY OF SAN LU I S OB IS PO FROM: John Mandeville,Community Development Director SUBJECT: ADOPTION OF A RESOLUTION DECERTIFYING THE ENVIRONMENTAL IMPACT REPORT AND RESCINDING THE USE PERMIT FOR THE MARKETPLACE DEVELOPMENT PROJECT. CAO RECOMMENDATION Adopt a resolution de-certifying the environmental impact report and rescinding the use permit for the proposed Marketplace development project. DISCUSSION On July 6h, 2004 the City Council gave the following approvals to the Marketplace development: 1. Certified the environmental impact report (EIR). 2. Adopted an amendment to the General Plan. 3. Adopted zoning for the site. 4. Approved a development agreement. 5. Approved a use permit. On April 26, 2005, city voters rejected items 2,:3, and 4. This leaves items 1 and 5 standing as approvals. These latter approvals were granted presuming the validity of certain mitigation measures and conditions that were to have been implemented through the now overturned development agreement. As a result of the special election both the certified EIR and the use permit have been rendered moot. For example, the City has no authority to grant use permit approvals outside the City limits. With the annexation proceedings now cancelled (they were connected with the Council's zoning approvals overturned by the voters), the approved use permit is moot. Similarly, without implementation of mitigation measures required under the development agreement, some of the significant environmental impacts identified in the EIR will not be adequately mitigated, thereby precluding development in reliance upon the EIR. These standing approvals should be rescinded in order to avoid potential future misunderstandings regarding the certified EIR and approved use permit. The attached resolution will provide the Council with the vehicle to rescind these remaining standing approvals. This action also will be consistent with the position of a majority of the voters in the special municipal election. ALTERNATIVES The Council may modify the proposed resolution,or take no action. ATTACHMENT Resolution rescinding approvals for Marketplace development project. C3 - ATTACHMENT 1 RESOLUTION NO. (2005 Series) A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO RESCINDING APPROVALS FOR THE MARKETPLACE DEVELOPMENT PROJECT WHEREAS, on July 6b, 2004 the City Council of San Luis Obispo approved Resolution 9588 certifying the final environmental impact report for the Marketplace development project; and WHEREAS, on July 6`h, 2004 the City Council also adopted Resolution 9591, approving a use permit for the Marketplace development project; and WHEREAS, at a special municipal election held on April 26"' 2005, the voters of the City of San Luis Obispo overturned certain City Council approvals relating to the Marketplace development project; and WHEREAS, the certified environmental impact report and approved use permit were not overturned, but are linked to project components denied by the voters at the special municipal election; and WHEREAS, the effect of the voters' actions was to render both the use permit and the certified EIR moot. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis Obispo, that its Resolutions Nos. 9588 and 9591 (2004 Series) relating to the remaining approvals for the Marketplace development are hereby rescinded. Upon motion of seconded by and on the following vote: AYES: NOES: ABSENT: The foregoing resolution was adopted this day of 200x. Mayor David F. Romero ATTEST: Audrey Hooper City Clerk APPROVED AS TO FORM: Jo P.Lowell City Attorney �3 -a 05/16/2005 08:45 8056874196 JANA ZIMMER PAGE 02 . _ LMIAY D ZIMMER & MARCUS, LLPlc9" SZn B.AnRANCA93105 PRoxr (305)553-1591 JhNnZSMMER LERK FAx (SOS)687A156 i ANDRU M. JCkRCUS RED FILE janaRimmcr@c=nct R[CHIaRD C. SOLOMON OfCounrcl andraamarca-AmOcox.nct ME ING AGENDA rsoLomon2P_'c=ncr I)ATEITEM #�_ May 16. 2005 IO N&L --CDD DIR J�ZCAO FIN DIR �OACAO Z FIRE CHIEF Mayor David F. Romero �ATTORNEY �.Z'i PW DIR City Council � CLERKIORIG 2-POLICE CHF City of San Luis Obispo ❑ DEPT HEADS K RTC DIR _ K UTIL DIR BY FAX 990 Palm St % ,/HR DIR San Luis Obispo, Ca. 93401 Re:May 17.2005 City Council Agenda Item C-3 Ad ration of a Resolution DecertifvZna the Environmental Irn act Re ort and ReScirldin the Use Permit for the .ark lace Develo ment Project Dear Mayor Romero and honorable Council Members: Tliis office represents the Petitioner in pending litigation entitled Citizens f r Planning Responsibly v. City of San Luis Obispo Case#CV 040619,which challenges the City's approval of various entitlements for the Marketplace Development project. While the Council Agenda Report for the above item represents that the results of the referendum election of April 26, 2005 rendered the certified EIR for the Marketplace moot,this legal conclusion is simply not supported by the facts. The only possible motivation for the recommendation to vacate the certification of the EIR now is to support the City's recent contention in the litigation that the Petitioner's lawsuit is moot. For the reasons set i'orth below, we believe that this proposal will not resolve the lawsuit, and, if pursued as proposed.will result in additional confusion and litigation. While we agree that the EIR may not be relied on by future reviewing agencies,we urge the Council to continue this item to allow for consideration of a full and legally defensible means of resolving this dispute. 1. The Citv is without jurisdiction to unilaterally vacate the certification of the EIR Any unilateral action by the City to de-certify the EIR simply to attempt to moot out the litigation is vulnerable to challenge. In the absence of express statutory authority;an administrative agency may not change a determination made on the facts presented at a hearing once its decision has become final. Save Oxnard Shores v. Califomia Coastal Commission (1986) 179 Cal. App. 3d 140, 150, citing Olive Proration etc.Com v. Agri (1.941) 17 Cal. 2d 204. See. also Kirk v. County of Sad Luis Obispo ( 1984) 156 Cal.App. 3d 453 If the City can de-certify the EIR at its convenience,there is nothing to prevent it from re-certifying it at its pleasure or on.request of Real Parties. The only lawful mechanism available to the City is to vacate the certification of the EIR in response to a writ issued by the court, or as part of a settlement agreement among the Page 1 of 4 05/16/2005 08:45 8056874'56 JANA ZIMMER PAGE 03 parties to the litigation.' 2. The draft Resolution is inadequate to `avoid potential misunderstandings regarding the certified EIR'. The language of the proposed Resolution does not accomplish its stated purpose. The proposed Resolution states,as a"Whereas"clause,that the-effect of the voters' actions was to render... the certified EIR moot". This is not a statement of fact but a legal conclusion,and it is manifestly wrong. The election had no legal effect on the City's Resolution certifying the EIR, or the City's Findings and Statement of Overriding Considerations with respect to the impacts, mitigation measures and alternatives to the project, and the justification for approving the project notwithstanding its significant unmitigable environmental impacts_ While the proposed Resolution would withdraw the City's findings, it docs nothing to change the analysis or conclusions of the EIR itself. The Council Agenda report sets forth that,without the implementation of mitigation measures required under the now-repealed developtnent:agreement, some of the significant environmental impacts identified in the EIR will not be adequately mitigated' However, nothing in Resolution 9588 directly ties the mitigation of project-related impacts to the Development Agreement. The only approval which is directly tied to the Development Agreement is the Preliminary Development Plan,which was invalidated by the voters' repeal of Ordinance 1449. [1AR00097] Thus,if the purpose of the Resolution is to assure that the project will not go forward without the unidentified `mitigation' measures, it is unnecessary. In fact,the Development Agreement recites (incorrectly)that the Developer is making expenditures and dedications over and above those that the City could require of the Developer in exchange for the benefits ofthe Development Agreement. [lAR.001161 The specific `benefits' of the Development Agreement were enumerated as (1)providing a non-pedestrian oriented design(2)construction of the Frecway Interchange,and(3)and an intent to provide a `hybrid power shopping center"which will not have a material adverse impact on downtown San Luis Obispo retail activities from either an economic or a social standpoint. (1AR:001181 However,there is nothing in the Findings or Statement of Overriding Considerations set forth in Resolution 9588 that identifies these items as mitigation measures for the identified impacts of the project. Furthermore,the findings themselves recite that traffic and circulation impacts will be reduced to less than significant with the implementation of mitigation measures identified in the EIR. [1 AR:00003],but none of the mitigation measures identified in the EIR or adopted as part of the MMRP require the construction of the lntcrchange. [lAR:00058-70] Moreover,although the proposed Resolution purports to rescind the City's findings and statement of overriding considerations, it does not affect the analysis and conclusions of the EIR. 'Our client has proposed,under separate cover and under Evid Code Section 1152,the terms for such a settlement. Page 2 of 4 05/16/2005 08:45 80568741-56 JANA ZIMMER PAGE 04 which may still be put forth as`evidence' of the impacts of the project in context of a separate application before the County. While the staff memorandum essentially admits that the EIR does not itself propose sufficient measures to mitigate the identified environmental impacts,the Resolution does rot set forth which environmental impacts are affected, or how they must be mitigated. Even assuming the City could lawfully and unilaterally rescind the certification of the EIR(an action for which there is no statutory provision or legal precedent under CEQA), if the Council's intent is to eliminate future confusion, the Resolution must,at a minimum specify which project impacts are not fully mitigated through the mitigation measures set forth in the EIR, and that the analysis and conclusions of the EIR cannot be relied upon in any future proceeding by any agency. Finally, the proposed Resolution fails to address all of the outstanding approvals which were not the subject of the referendum, e.g. the Resolution recommendation LAFCO approval,and the Resolution accepting a Conservation Easement. Therefore,the adoption of this Resolution in its present form will do nothing to achieve its stated purpose. 3. The City's decision making process has violated the Brown Act and the Council must act to cure this violation The Council discussed the pending litigation in closed session on May 3, 2005. Any discussion in closed session of a plan to vacate the City's certification of the EIR for the reasons stated in the staff memorandum (i.e. the effects of the election) went beyond the authorized topic for discussion in closed session,which was limited to the lawsuit filed by Petitioners. Since the draft Resolution rescinding the EIR certification is proposed as a consent item rather than a discussion item,and the City Attorney has stated that there are no staff memoranda or communications on the subject other than the Agenda report,the inference that a collective decision was taken improperly taken in closed session is clear. Any collective determination in closed session to rescind the certification of.the EIR as `moot' because of the election was unlawful under Gov. Code Section 54952.6. Furthermore,to the extent the Council was advised on or discussed the substantive decision to decertify the EIR in closed session,that communication was not privileged. See,North Pacifica. LLC v City of Pacifica(2003)274 F. Supp. 2d 1118 [in a dispute over communications taking place during closed sessions under the Brown Act,the court held that not all closed sessions with the presence of legal counsel are necessarily privileged, and that the City bears the burden,to show that the advice given was are, to litigation strategy as opposed to substantive decision making (Id at 1127,1129)]. Therefore, the Council members should cure the Brown Act violation by fully and accurately disclosing the contents of their prior discussion of this issue on the record. If the Council keeps a tape or minutes of its closed session,discussion,that record Page 3 of 4 05/16/2005 08:45 80568741-56 JANA ZIMMER PAGE eo should be made public. In light of the foregoing issues,Our proposed ent t*is em for ts dat the furtlter onszderatxon of then on the proposed Resolution at this tz , appropriate paeans vacate the certification of the EIR. Very Truly Yours, 7.iMarcus, LLP gy:1 Ummer cer�J nathan Lowell,City Attorney Pagc 4 of 4