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HomeMy WebLinkAbout08-01-16 ARC Correspondence - Item 1(Hawley)ARC 08-01-2016 Item: 1 Public Review Period* State Agencies Local Agencies State Agencies Local Agencies Public Agency determines whether the activity is a “project” Public agency evaluates project to determine if there is a possibility that the project may have a significant effect on environment Project Not Exempt Public agency determines if the project is exempt Notice of Exemption may be filed No further action Required under CEQA Determination of lead agency where more than one public agency is involved LEAD AGENCY Project is ministerial Categorical exemption No possible significant effect Statutory exemption Not a Project Possible significant RESPONSIBLE AGENCY CCEEQQAA PPrroocceessss FFllooww CChhaarrtt Lead agency prepares initial study Decision on project Lead agency decision to prepare EIR or Negative Declaration Lead agency sends Notice of Preparation to responsible agency Findings on feasibility of reducing or avoiding significant environmental effects Lead agency prepares draft EIR Consideration and approval of final EIR by decision-making body Lead agency files Notice of Completion and gives public notice of availability of draft EIR Lead agency prepares final EIR including responses to comments on draft EIR EIR Respond to informal consultation Consultation Respond to Notice of Preparation as to contents of draft EIR Consultation Comments on adequacy of draft EIR or Negative Declaration Consultation Lead agency gives public notice of availability of Negative Declaration Public Review Period* Decision on permit Findings on feasibility of reducing or avoiding significant environmental effects Decision-making body considers final EIR or Negative Declaration prepared by lead agency File Notice of Determination with Office of Planning & Research File Notice of Determination with County Clerk File Notice of Determination with County Clerk File Notice of Determination with Office of Planning & Research Negative Declaration Consideration and approval of Negative Declaration by decision-making body Source: California Environmental Resources Evaluation System, http://ceres.ca.gov/topic/env_law/ceqa/flowchart/index.html * The public review and comment period shall not be less than 30 days and nor should it be longer than 60 days, per the CEQA Guidelines at http://ceres.ca.gov/topic/env_law/ceqa/guidelines/  1   Report on Violations of the California Environmental Quality Act, California General Plan Law, and the San Luis Obispo General Plan involved in the City’s Approval Process for the 71 Palomar Project Prepared for Lydia and Bob Mourenza Peter and Diane Crough Dan and Tess Matthews Allan Cooper Cheryl McLean By Cynthia Hawley August 1, 2016 This report is provided to demonstrate why the August 1, 2016 hearing on the 71 Palomar Project must, in order to comply with the California Environmental Quality Act (CEQA), State General Plan law, and the City of San Luis Obispo General Plan, be continued to a future date. As discussed below, the procedure the City is currently following for CEQA review of the Project involves serious violations of CEQA including evading the determination – based on information in the Initial Study – of whether an Environmental Impact Report is required, the predetermination that a Mitigated Negative Declaration will be prepared before the Initial Study is completed, and the omission of information to justify that predetermination. The consequences of these violations are both legal and practical in terms of providing for informed public decisionmaking and protecting the irreplaceable public resources threatened by the Project. In addition, State General Plan law requires all development projects to be consistent with the City’s General Plan and, as discussed below, the process provided for approval of the 71 Palomar Project does not include analysis of General Plan consistency, and there are a number of General Plan policies and goals to which this project is not consistent in violation of the City’s General Plan and the California Government Code. The conclusion of the report is that the Architectural Review Commission should continue the August 1st hearing to a future date after these matters have been corrected. CEQA requires integration of its requirements with all planning review procedures to the maximum feasible extent. The California Environmental Quality Act1 (CEQA) includes the State Legislature’s policies on planning and review procedures that apply to local agencies. In relevant part §21003 provides that:                                                                                                                 1 CEQA is part of the California Public Resources Code beginning at section 2100.  2   The Legislature further finds and declares that it is the policy of the state that: (a) Local agencies integrate the requirements of this division with planning and environmental review procedures otherwise required by law or by local practice so that all those procedures, to the maximum feasible extent, run concurrently, rather than consecutively.2 The CEQA Guidelines are part of the California Code of Regulations, beginning at section 15000, that implement the statutory Act. Guidelines section15004(c)3 clarifies that the “Documents prepared pursuant to this division be organized and written in a manner that will be meaningful and useful to decisionmakers and to the public.” The preparation and review of environmental documents under CEQA – the Negative Declaration and Environmental Impact Report (EIR) – are to be coordinated, in time, with all planning, review, and project approval processes to the maximum extent feasible. They should run in time concurrently and not consecutively and they should be integrated so they can be useful; so project modifications and mitigation measures required by CEQA can be folded into development project plans at the appropriate time. The City staff claims that the August 1st conceptual planning review of the 71 Palomar Project complies with these CEQA requirements even though the environmental document for the Project has not been completed – is not yet available to integrate into the review. It hardly needs to be said that environmental data, information and analyses provided in an EIR or Negative Declaration due to be completed in September cannot be integrated with, and are not organized in time to be useful to decisionmakers at a hearing in August. The integration of environmental documents and information into the project approval process is critical. When environmental information is left out of the project approval process at the conceptual stage, project elements can be accepted or modifications required that might be found to be harmful to public environmental resources when environmental information is later taken into consideration. The issue is not that the August 1st hearing on the Project is a conceptual review of the proposed Project. There is no rule against conceptual review. The issue is that a fundamental policy of the California Legislature mandates that CEQA requirements are to be integrated concurrently into all planning and environmental review procedures to                                                                                                                 2 Please note that emphasis by underlining is added. 3 §15004(c) states that “The environmental document preparation and review should be coordinated in a timely fashion with the existing planning, review, and project approval processes being used by each public agency. These procedures, to the maximum extent feasible, are to run concurrently, not consecutively.”  3   the maximum feasible extent. The August 1st hearing is a planning procedure to which this policy applies. The record does not include indications that efforts to the maximum extent feasible were made to schedule this concept-level planning review of the Project to a time when information about the impacts the Project might have on the environment can be included. Contrary to State policy, the Architectural Review Commission is being asked to undertake review of, and provide recommendations for, the Project’s conceptual plans without environmental information, without application of CEQA requirements, and to later review the more solidified Project for impacts the Project might have on the environment. As a practical matter, by reviewing the Project at a hearing without concurrently reviewing environmental data, information and analyses of possible environmental impacts, the ARC risks: § loss of the opportunity to analyze – and integrate into the Project – options for feasible alternatives and/or needed mitigation measures early in the project review process when the project plans are flexible, § “precommitment” to the Project, and § loss of an open mind for later review of data and analyses of environmental impacts. Case law has linked “precommitment” to a lack of transparency. (Pugsley, Timing is Everything: Ensuring Meaningful CEQA Review by Avoiding Improper “Precommitment” to a Project, California Environmental Law Reporter, Matthew Bender, May 2009, p. 244.) As discussed below, the purpose of the Initial Study is to determine whether an Environmental Impact is required by CEQA. Since the Initial Study for the Project is now being reconsidered and rewritten based on additional data and analyses, it is at this time unknown whether an EIR will be required for the Project. The ARC is directed to engage in project review at the project concept stage for the purpose of suggesting recommended changes that might be integrated into the final proposed Project but without being able to review the information needed to recommend changes that might be required by CEQA – before it is even known whether an EIR will be required to provide that information. In spite of the lack of an EIR or Negative Declaration and in spite of not knowing which document will be required, the staff report indicates that the August 1st review is for the purpose of giving “direction to staff and the applicant on items to be addressed in plans submitted for final approval (p. 1), to provide feedback to the applicant “…prior to finalizing plans and returning for final approval” (p. 2) “…as to whether the project’s design is headed in the right direction before plans come forward for final review.” (p. 2) The ARC should continue the hearing to a time when the environmental document is  4   available and the data, information and analyses it contains can be integrated into the ARC’s public review and shaping of a project that will reflect CEQA requirements for protection of public resources and for the benefit of the public welfare. CEQA requires a specific sequence of steps. The first step is a determination of whether CEQA applies to a project. Once a project application is accepted as complete, a preliminary environmental evaluation is required to determine whether a project is subject to CEQA. (Guidelines §15060) If CEQA does apply, the next step is to determine whether an Environmental Impact Report is required. The determination of whether to prepare an EIR “…will be made either during preliminary review under §15060 or at the conclusion of an initial study…” (Guidelines §15081) Under Guidelines §15064 “If there is substantial evidence, in light of the whole record before a lead agency, that a project may have a significant effect on the environment, the agency shall prepare a draft EIR.” If, for example, the initial study shows that there is substantial evidence that the Project may have a significant effect on raptors and their habitat, scenic views, air quality, noise, or traffic and parking, an EIR will be required for the Project. The EIR includes analyses of project alternatives and measures that might be taken to mitigate the identified impacts. Please see the attached CEQA flow chart. CEQA Guidelines §15367 states that “The lead agency will decide whether an EIR or negative declaration will be required for the project and will cause the document to be prepared.” In this case, however, before the new Initial Study provides the information on which this decision is made has been completed, the City leaped over the step of determining whether an EIR or Negative Declaration is required for the Project and prematurely proceeded directly into a project approval process. Even more disturbing, before the Initial Study has been completed, and before it is possible to determine whether there is substantial evidence that the Project may have a significant effect on the environment such that an EIR would be required, City staff has already predetermined that a mitigated negative declaration will be prepared; that an EIR will not be prepared for the Project no matter what the Initial Study shows. According to the staff report, the “environmental status” of the Project is “Mitigated Negative Declaration Pending”. (See pages 1 and 5 of the staff report.) The law requires that the determination of whether an EIR or Negative Declaration will be prepared must be based on information provided in the Initial Study. This predetermination that an EIR will not be provided is confirmed by the July 29, 2016 memorandum from City staff stating that “Completion of the IS and further public review of the final environmental document is anticipated to be completed by end of September of this year.” An EIR for the Project could not be completed by the end of September. This is more than the cart before the horse – more than an up side down process where everything will eventually get done. By predetermining that a mitigated negative  5   declaration will be provided, it is clear that the City does not plan to go back when the initial study is completed to decide, based on information provided in the initial study as required by law, whether an EIR is required. Worse yet, the precommitment to a Negative Declaration requires precommitment to the content of the Initial Study. To justify elimination of the need for an EIR, the Initial Study cannot contain “… substantial evidence, in light of the whole record before a lead agency, that a project may have a significant effect on the environment …” Data, information, and analyses showing that the Project may have a significant impact on scenic views, wildlife habitat on the site, the animals including raptors dependent on that habitat, the historical building, traffic and parking, noise, or climate change (due to the release of carbon through clear cutting this urban forest that now continually sequesters CO2 emissions4) will have to be excluded from the Initial Study to justify limiting the environmental review of the Project to the predetermined Mitigated Negative Declaration that City staff states is “pending”. Unless it is changed, this process not only effectively precludes an EIR, but precludes introduction of data, information, and analysis required by CEQA from the entire approval process. The staff opinion that there is “…no problem with this course of action relative to CEQA compliance…” is, to say the least, incorrect. (See July 25th email from Michael Codron to City staff.) The law is clear that a failure to provide information required by CEQA is a violation of CEQA. The purposes of CEQA are subverted if material necessary for informed decisionmaking and informed public participation is omitted. (Planning and Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892, 912) The process provided involves serious violations of CEQA, denies the public its right to participate in an informed decisionmaking process, and threatens potential harms to public environmental resources. The Architectural Review Commission should direct staff to continue this hearing to a time when a proper Initial Study including a report from the Tree Committee is available for the City to determine, as required by law, whether an EIR is required for the Project. The ARC should review and form recommendations about the Project after it has received advice from the Tree Committee. According to City Municipal Code §12.24.020 “The tree committee shall act as an advisory body to the director and the city council on all matters related to trees in San Luis Obispo.”                                                                                                                 4 CEQA Guidelines §15064.4 directs the City to consider “The extent to which the project may increase or reduce greenhouse gas emissions as compared to the existing environmental setting.”  6   The Project site has 48 old-growth specimen trees on it that are slated for clear cutting by the proposed Project. These trees include mulberry, pine trees, olive trees, decorative palms, larch or spruce trees, eucalyptus, and redwood trees. The ARC’s assessments and recommendations related to the Project should be made after all information about the trees has been made available to the Commission. The Commission should not be asked to commit, and should not commit to, assessments and recommendations in relation to the trees on the site in the absence of environmental information related to the trees, the removal of which would cause multiple impacts to habitats, scenic views, wildlife, and climate change. Review of the Project must include consideration of whether the Project is consistent with the City’s General Plan. The California Supreme Court has called the general plan the “constitution for future development.” (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540-541) Development approved by land use decision-making agencies like the City of San Luis Obispo is required to be consistent with the agency’s general plan. “[T]he propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable general plan and its elements.” (Pheiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1563) The staff report for the August 1st hearing recommends that the ARC’s review should be limited to (1) a general discussion of the proposed tree removals (p. 5) and providing feedback about (2) scale and massing, (3) materials and architectural elements design, and (4) landscaping. (pp. 5-6) No applicable general plan policies are provided for the ARC to review as a basis for making the required finding of general plan consistency prior to approval of the Project. There are applicable General Plan goals and policies that must be considered to determine whether this Project is consistent with the San Luis Obispo General Plan including the following. It should be noted that the staff report for this hearing does not include review of General Plan goals, policies, and requirements related to the scope of recommended subjects for evaluation and discussion by the ARC as listed above. This hearing should be continued until a proper analysis of general plan consistency is provided to the decisionmakers who are required by law to make the finding, based on facts in the record, that the Project is consistent with the City’s General Plan. Conservation and Open Space Element 1.2 Purpose “The Conservation and Open Space Element is a tool to protect and preserve these unique community resources. Its overarching goal is to protect resources (such as air and water, wildlife habitat, scenic and agricultural lands, watershed and historic features.” It is known that the Project site provides habitat for birds including raptors, butterflies and bees, is considered to be scenic, and includes an historic residence. At this time the  7   record does not show that the Project carries out this overarching goal. Conservation and Open Space Element Natural Communities 7.3.2. Species of local concern. “The City will: Maintain healthy populations of native species in the long term, even though they are not listed for protection under State or Federal laws. Protect species of local concern through: its actions on land use designations, development standards, development applications….”. The known raptors that depend on the habitat on the Project site are listed as official “species of local concern” in Appendix A of the Conservation and Open Space Element. At this time the record shows that the raptor habitat will be eliminated by the Project in violation of this policy. Conservation and Open Space Element Viewshed Policy 9.1.5. View protection in new development. “The City will include in all environmental review and carefully consider effects of new development, streets and road construction on views and visual quality by applying the Community Design Guidelines, height restrictions, hillside standards, Historical Preservation Program Guidelines and the California Environmental Quality Act and Guidelines.” At this time the record does not show that the City has carefully considered the effects the Project may have on views. Conservation and Open Space Element Air Policy 2.2.1. Atmospheric change. “City actions shall seek to minimize undesirable climate changes and deterioration of the atmosphere’s protective functions that result from the release of carbon dioxide and other substances.” According to the U.S. Environmental Protection Agency trees play an important role in minimizing climate change because they store carbon dioxide in what is called biological sequestration. They are greenhouse gas “sinks” that actually remove greenhouse gas emissions from the atmosphere. Increasing or maintaining carbon storage can be achieved by avoiding land degradation caused by conversion to development. https://www3.epa.gov/climatechange/ghgemissions/sources/lulucf.html#Reducing Because the stored carbon is released when trees are cut, allowing the trees on the Project site to be cut would both eliminate carbon dioxide sequestration and cause a release of  8   greenhouse gas into the atmosphere, which the City seeks to minimize according to its General Plan. https://www3.epa.gov/climatechange/wycd/waste/downloads/forest- carbon-storage10-28-10.pdf At this time the record does not show that the City is seeking to minimize incremental climate change caused by the Project but is instead increasing the release of carbon into the atmosphere by allowing the trees to be cut down and by decreasing the carbon sequestering capacity of City land by not requiring protection of the trees. Conservation and Open Space Element 7.3.3. Wildlife habitat and corridors. “Continuous wildlife habitat, including corridors free of human disruption, shall be preserved and where necessary, created by interconnecting open spaces, wildlife habitat and corridors. To accomplish this, the City will: Require public and private developments, including public works projects, to evaluate animal species and their movements within and through development sites and create habitats and corridors appropriate for wildlife.” At this time the record shows that the significant urban wildlife habitat on the site is to be eliminated entirely without the evaluation. Land Use Element 12. Implementation Policies. " ‘Implementation’ refers to all the City’s actions to carry out the general plan. Besides the programs described in previous sections, the City uses the following means of implementing the Land Use Element. The City’s actions taken pursuant to the following shall be consistent with the General Plan. ….. 12.9. Environmental Review “….. For those projects subject to environmental review, features to be examined would include but not be limited to, toxic contamination, air quality, open space preservation, sustainability impacts, scenic values and impacts, …. wildlife habitats, road and rail traffic noise, …..access and circulation, and historic and archaeological resources. ….The City is committed to early and meaningful participation by the community in the environmental review process to help inform the public and decision-makers of the potential environmental consequences of their actions.” As discussed above, the City’s commitment to early and meaningful participation in environmental review of the Project impacts by the community has not been carried out and has instead been thwarted. Land Use Element Growth Management Policies 1.1.1. Growth Management Objectives  9   “The City shall manage its growth so that: The natural environment and air quality will be protected.” Policy 1.8.1. Open Space Protection “Within the City's planning area …. undeveloped land should be kept open….. Scenic lands, sensitive wildlife habitat…. shall be permanently protected as open space.” The Project is not consistent with this policy. Land Use Element Conservation and Development of Residential Neighborhoods Policies 2.1. Neighborhood Focus “The City shall preserve, protect and enhance the City’s neighborhoods and strive to preserve and enhance their identity and promote a higher quality of life within each neighborhood.”……. 2.3.7. Natural Features “The City shall require residential developments to preserve and incorporate as amenities natural site features, such as land forms, views, creeks, wetlands, wildlife habitats, wildlife corridors, and plants.” 2.3.9. Compatible Development “The City shall require that new housing built within an existing neighborhood be sited and designed to be compatible with the character of the neighborhood. Compatibility for all development shall be evaluated using the following criteria: ….” G. Preservation of Natural, Historic and Cultural Features “New development shall: …… (b) Maintain mature trees on-site to the maximum extent feasible” The City is not requiring the Project to preserve and incorporate natural site features such as views, wildlife habitat, and the wildlife corridors of which the habitat is a part. It is not requiring the preservation of mature trees to the maximum extent feasible and has not engaged in evaluation of how these requirements could be carried out in the Project. I. Parking “New development: (a) Outside of the Downtown In-lieu Parking Fee Area, new development will be required to provide adequate off-street parking to match the intended use.”  10   The City is not requiring adequate off-street parking for the Project. Circulation Element Neighborhood Parking Management 14.1. Policies 14.1.1. Residential Parking Spaces “Each residential property owner is responsible for complying with the City's standards that specify the number, design and location of off-street residential parking spaces.” 14.1.2. Neighborhood Protection “The City shall facilitate strategies to protect neighborhoods from spill-over parking from adjacent high intensity uses.” The City has not facilitated strategies to protect adjacent neighborhoods from spill-over parking from the Project. Project consistency with the City’s General Plan is mandatory under State law and the City does not have the authority to approve a project that is not consistent with the General Plan. The hearing should be continued to a time when the proposed Project has been analyze for General Plan consistency so it can be modified to be consistent with the San Luis Obispo General Plan.