Loading...
HomeMy WebLinkAbout08-01-16 ARC Correspondence - Item 1, cc - Schmidt (Appeal Staff Decision)RECEIV�-7 JUL 27 SI_0 CITY CLERK Appeal to City Council of Staff Decision to Hold ARC Conceptual Approval for 71 Palomar Prior to Compilation of a CEQA Initial Study of Environmental Impact This is an appeal to the Council of a staff decision to violate the purpose of the California Environmental Quality Act by holding an approval hearing for 71 Palomar prior to completion of the CEQA-required initial study of environmental impact of the project. We ask that said approval hearing be postponed pending Council's ability to review this matter at its next public meeting. Note: Since the City Council is on summer hiatus at this time, and will remain so beyond the scheduled Aug. 1 Architectural Review Commission meeting being contested, it falls upon the City Manager to act timely in lieu of the Council's present inability to act by postponing the ARC meeting on 71 Palomar until such time as this appeal may be heard by the council. We ask the City Manager to take this timely remedial action immediately. Refusing to do this would constitute asserting bureaucratic imperative to obstruct residents' right to appeal reasonable grievances to their elected officials within the unexpectedly narrow appeal timeframe the City itself is responsible for creating (see below). Brief Factual Recitation 1. Staff had a consultant do an initial study on the project in the spring of 2016. 2. Project critics pointed out instance after instance of said initial study's inadequate analysis, unfactual and unsubstantiated assertions, omissions, and general inadequacy; after being presented with significant evidence, staff agreed with critics the study was flawed and needed to be redone, and so informed the Council in mid-July. 3. An ARC hearing preliminarily scheduled for July 18 was cancelled due to this need to restart environmental studies. 4. The City Council was informed a new environmental consultant would be engaged and the soonest a new initial study might be completed would be sometime in September, and staff implied continued project approvals would be suspended until after CEQA work was complete. 5. Thus it was a surprise to everyone when late in the day on July 20, just two days after the postponed ARC hearing everyone had been led to believe would be rescheduled for a date after completion of the initial study, Rachel Cohen announced it would be held in just 12 days, on Aug. 1. It should be noted that this date placed this controversial hearing smack in the middle of the City Council's summer hiatus, when the mayor was out of the country, and the Council would not be meeting. 6. At least two knowledgeable individuals, one a former ARC commissioner the other a former Planning Commissioner, asked staff to pull the item from the Aug. 1 ARC agenda because approval was being scheduled prior to CEQA work, which is improper CEQA sequencing. [14 CCR § 15OO4(b) "EIRs and negative declarations should be prepared as early as feasible in the planning process to enable environmental considerations to influence project program and design."] 7. Staff refused to pull the item, thus mapping a path that violates the purpose, intent and possibly even the letter of the California Environmental Quality Act. 8. As citizens, we are disturbed that our city intends to behave in this manner, and we believe this issue must be reviewed by the City Council, to establish whether our city's elected leaders desire a high standard of deference towards this environmental law and the environment it is intended to protect. 9. Since the Council is on summer hiatus and cannot meet prior to the contemplated ARC meeting, it is incumbent upon the City Manager to postpone any ARC "direction - giving" on 71 Palomar until such time as the Council can hear this substantive appeal and put on the record its desires for how CEQA shall be administered within its jurisdiction. 10. By simply ignoring this appeal, we believe staff has the ability to render it non - meaningful and untimely. We therefore urge the City Manager, in her fiduciary duties to protect the public good, to realize she must perform Step 9 above in order to give our elected officials the opportunity to weigh in on CEQA protections for the environment and the public welfare which the proposed hearing process undercuts. In conclusion, we call upon the City Manager to postpone this ARC hearing until the council can respond to this appeal. Thank you. That is brief factual recitation of why this appeal is being filed. Since time is of the essence, to provide further substance to our arguments we are attaching an email thread to this document which explains some of the issues inherent in placing the project -approval cart in front of the CEQA horse. Appellants: Dia Hurd, Cheryl McLean, Bob Mourenza, Richard Schmidt, Camille Small, Carolyn Smith Email thread to provide additional information about "the project -approval cart in front of the CEQA horse." To CC • Richard Schrnldt,< • Jul 26 at 11:01 AM • Codron, Micnaei • James Lopes ' • ema lcguncil@slocity.org • Christine Dietrick • Katie Lichtig Michael, is this your response to my July 21 email to you asking that the 71 Palomar project be removed from the Aug. 1 ARC agenda due to failure to complete CEQA initial study? If so, I find it odd that it's routed indirectly via cc through a third party's email communication. I'd also point out to your bcc recipients that the email thread in your communication does not include the two salient email requests, one from a former Planning Commissioner and one from a former ARC commissioner, both of whom understand the "process" quite well, to pull Palomar from the Aug. 1 ARC agenda, so I've added them back in immediately below this message. I'm assuming that since this email arrived yesterday, and today's a new day and still nothing from you, that no further communication is headed my way on this matter, so I'm responding here so as to lose no more time. Now that the ARC agenda is out at slocity.org, it is even more imperative than we realized earlier that this item not proceed to public hearing on Aug. 1. The agenda packet indicates you seek "direction" from the ARC on stuff that will constitute grounds for "final approval" at some future date. Yet, there remains no CEQA initial study for this project. Your own timetable sent to the Council states the soonest such CEQA initial study could be completed is still more than a month away. The ARC agenda packet contains no initial study and states: "Environmental Status Mitigated Negative Declaration Pending." That statement in itself presents a problem, since you cannot, under CEQA, predetermine that a mitigated negative declaration is adequate prior to doing the initial study which would provide the rationale for making such a decision. The statement suggests prejudicial predetermination, not CEQA analysis, will provide the basis for what happens. It seems that your department is piling CEQA error upon CEQA error in its effort to hurry this project along. The basic problem with holding the Aug. 1 hearing I've outlined before, but I'll repeat it once again. The premise of the California Environmental Quality Act is to place ALL relevant environmental information before decision -makers prior to their making decisions so that their decisions may be shaped to assure that a project's potential harm to the environment is minimized or eliminated. We all — except for perhaps the applicant -- acknowledge that numerous environmental impacts of the Palomar project are potentially huge. We know this from commonsensical observation and rational thought processes. But commonsense observation and rational thought processes are not what CEQA requires. CEQA requires a thorough analysis, first in the form of an initial study to discover potential environmental impacts. Without such analysis, no legitimate environmental determinations can possibly be made by decision makers. Any decisions they make will be based on shooting from the hip, not on sound science or other sound analysis. So the very act of holding the ARC hearing without an initial study's completion is an affront to CEQA, and an invitation for a huge blowup of some sort. You seem to be selling the point this is only a "conceptual" review, and therefore it's OK to proceed with no CEQA work's having been completed. But that is incorrect. The ARG's conceptual reviews lay out the grounds for granting final approval later. These are not innocent little discussions — they are directives that result in instructions to the applicant that if followed lead to final approval more or less routinely, if riot automatically. Mr. Lopes, a former ARC commissioner, wrote you "We are very aware that the `conceptual' review by the ARC is tantamount to a 'final draft' review." He further explains that "`conceptual' review at the ARC is in practice the 98% final review. The plan proposals are finalized in their peak form, and the ARC members usually suggest not require minor tweaks. Rarely is a concept plan reviewed and just as rarely are substantial changes required by the ARC [at final review]." Therefore, decisions that affect the environment will be made at a hearing like you plan to hold Aug. 1, and they will be made WITHOUT CEQA documentation that's required by state law and needed to guide decision -makers in their decisions. This is just plain wrong. Time wise, it puts the project -approval cart before the CEQA horse. And that undercuts the purpose and intent of CEQA. CEQA contemplates serious and not superficial or pro forma consideration of the potential environmental consequences of a project. I don't think one can demonstrate the proposed scheduling of the Palomar project rises to the level of even superficial consideration, and it certainly doesn't provide what CEQA mandates. So, Michael, I am asking one final time that this item be pulled from the Aug. 1 ARC agenda, and not be heard until the proper CEQA studies are complete and ready to guide decision -makers' decisions on this environmentally -intense project. I request that you get back to me with a positive answer by the end of work today. Thank you. Richard Schmidt PS. I have reinterpolated the two missing emails into the thread immediately hereafter, between the double lines. The rest of the thread is as you sent it. July 21 Michael, Thank you as always for your prompt reply. I do continue to believe there is a fundamental problem with this going to the ARC on Aug. 1, for the following reasons: 1. The rationalization that it is only a "conceptual" review doesn't hold water. No matter how the meeting is characterized, it is a project review meeting by the final approving body, and those are not supposed to take place absent full CEQA work being done. 2. The ARC's training by the city in CEQA is too flimsy for the responsibility for "limited behavior" that you describe to be placed on them. The ARC will do what they wish to do regardless of your hopes. 3. If the ARC aren't providing the applicant direction that sets conditions under which they will later grant final approval, what exactly is the point of a conceptual review meeting? They will be telling the applicant to do things that assure later approval, and they cannot legitimately do that absent CEQA work being complete. 4. 1 have watched your staff on this project in a number of meetings thus far, and do not think they have the ability to play the instructional role and the policing role you describe as being your charge to them. It is a matter of record that they have failed to help other advisory bodies accomplish their goals or to stay on the straight and narrow. 5. It seems that the ONLY reason for this going to the ARC on Aug. 1 is a continuation of the city's clear objective of speeding approval through the development review process. That is not sufficient reason to engage in what reasonable observers will see as skirting CEQA's requirements and core purpose, and quite likely violating the law. I respectfully recommend for your department's integrity and propriety that you postpone all ARC deliberations on the project until such time as CEQA work is complete and available to inform what decision -makers decide to do. Thank you. Richard July 22 Hi Michael, Let me add support to Richard Schmidt's request for full CEQA documentation before any more hearings for 71 Palomar. We are very aware that the "conceptual" review by the ARC is tantamount to a "final draft" review, with fully developed (not conceptual) architect's drawings, staff recommendation and conditions of approval, as I recall from many meetings on the ARC 2000 - 2007. Also as we well know, the ARC typically makes a few minor suggestions then and all but approves the project with those changes. At the "final" review, the ARC then typically limits its "purview" to addressing whether only their suggestions were met somewhat adequately. New information and public input at the final review is a problem for the the staff and commissioners. All parties should have access to complete CEQA analysis before any further public hearings for 71 Palomar - I hope that you'll agree. Regards, Jamie Lopes From: "Codron, Michael" <mcodron@slocity.org> To: "James Lopes (jameslopes@charter. net)" <jameslopes@charter. net> Cc: "Richard Schmidt <slobuild@yahoo.com> (slobuild@yahoo.com)" <slobuiId@yahoo.com> Sent: Monday, July 25, 2016 4:14 PM Subject: FW: 71 Palomar Conceptual Review Jamie, Thank you for contacting me directly regarding the conceptual review planned for the 71 Palomar project. I appreciate your input and have given it careful consideration. I have just sent an e-mail to the City Council at the request of a Council Member asking to see my prior response to Richard on this topic. I wish to assure you both that nothing is set in stone relative to our recommendations on the project - particularly as additional information is developed to inform the review. I hope you will take the opportunity to provide input and comments to the Commission so that they can take those into consideration and provide useful feedback to the applicant. In my experience, this leads to improved project outcomes. Thank you, -Michael From: Codron, Michael Sent: Monday, July 25, 2016 4:07 PM To: Lichtig, Katie <klichtig@slocity.org>; Dietrick, Christine <cdietrick@slocity.org>; Hermann, Greg <ghermann@slocity.org> Cc: Davidson, Doug (ddavidson@slocity.org) <ddavidson@slocity.org>; Cohen, Rachel (rcohen@slocity.org) <rcohen@slocity.org>; Corey, Tyler (tcorey@slocity.org) <tcorey @ slocity. org> Subject: 71 Palomar Conceptual Review Mayor and Council, A Council Member has asked that I provide my response to an e-mail sent to me by Richard Schmidt regarding conceptual review of the project on 71 Palomar by the ARC. This meeting is scheduled for Monday, August 1. 1 have attached that e-mail exchange for your review, as requested. In addition to the information included in the attached e-mail, I also want to note for you that staff and the City Attorney's Office have found no problem with this course of action relative to CEQA compliance, or compliance with the City's policies and procedures. Conceptual review is a normal and helpful process that applicants may elect to pursue to get feedback regarding proposed project designs. I find the conceptual review process to be of particular value because it provides residents and other community members with additional opportunities to provide input on projects before a staff recommendation is developed. The e-mail correspondence received on this topic expresses concerns that conceptual review will limit the scope of future review by the Commission. This is not the case, particularly if new information is produced that changes staff recommendations relative to project design, conditions of approval, mitigation measures, or other components of the project approval. Please let me know if you have any questions on this matter. Thank you, -Michael Bcc: City Council Michael Codron Director of Community Development Community Development 919 Palm Street, San Luis Obispo, CA 93401-3249 E rr codron0E% slocity.orc� T 805.781.7187 C 805.540.0767 Hi Richard, I see your perspective and understand those concerns. In this case, the ARC is the decision-making authority and so before they make any decisions on the project they will need a completed environmental document with all appropriate background information available to them. Our recommendation on the project will rely on that information, as well, so we will not be making any specific recommendations or requesting any actions of the ARC on August 1 St. Conceptual review does provide the public with an additional opportunity to participate in the process and provide testimony to the decision makers. It also gives the ARC a look at the design of the proposed buildings, an opportunity to provide direct feedback on the design to the applicant, and provides the applicant with the ability to ask questions of the ARC, which may inform changes to the project. So, I do think there is value to the process and there is certainly nothing wrong with airing the project issues in this fashion. I'll share your concerns with my staff and ask that they be sure to make clear in the written report and in their presentation to the ARC the status of the environmental review process. You are free to make this testimony to the ARC. Maybe they will agree with you and choose not to provide feedback until later in the process, but we have found that they appreciate the opportunity to have an early look at projects. Regarding your post script, I don't have all of the proposals in hand yet, but we are requesting an independent arborist report, a bird survey report, a biological evaluation of the habitat on the site to see if there is any evidence of, or potential to support, special status species, and an assessment of impacts to nesting birds. Staff and the consultant will also be producing a more thorough policy analysis of the proposed tree removals. Even if no new impacts are discovered, we will recirculate the environmental document for public review and comment, and this will provide you with the ability to carefully review the information presented and provide comments back to the City, which we will address in our reports to decision makers. Thank you, -Michael From: Richard Schmidt [ Sent: Thursday, July 21, 2016 11:25 AM To: Codron, Michael <mcodron@slocity.org> Subject: Scheduling for Palomar project Dear Michael, Your memo on the scheduling of the Palomar project has me scratching my head. In it you state the following sequence; 1. 8-1-16: Conceptual ARC review 2. September 2016: Completion of the additional environmental review and beginning of public review of the updated environmental document. So, the project is reviewed by the ARC a month or more prior to any pretext of CEQA work being done? I'm sure you'll say it's ONLY a "conceptual" ARC review, but that, while perhaps falling into the category of some legalistic minimum loophole certainly does not fulfill the intent of CEQA. The intent of CEQA is that decision -makers have before them all relevant environmental information PRIOR to making any kind of decision. If the required CEQA documentation has not yet been prepared, how can the ARC on Aug. 1 possibly fulfill it's obligations under CEQA to review the project, even "conceptually" -- whatever that means, prior to CEQA work being performed? Clearly, it cannot, So, it appears, the city's "dotting its is and crossing its t's" consists of still more manipulation of the process to speed it along rather than doing things right. I'm very disappointed in your decision on this matter, and suggest, once again, that doing things quickly and poorly often ends up taking longer than doing things right. You are, for example, apparently assuming your environmental consultants, working at a bird -sterile season, can make an adequate bird study this August when bird experts universally advise a year-long study that includes wintering and nesting seasons; by delaying once again the initiation of such a study, the beginning of such a study's timeline is simply kicked down the road. The longer you wait to start doing the right thing by the birds on this site, the longer it will take to get anything accomplished. I do hope you will reconsider this schedule while it's still possible to do so. All ARC consideration must wait till CEQA work has been completed. Richard PS. Your memo seems mute on the two issues we'd specifically raised and asked to be dealt with: getting an independent arborist with no axe to grind to evaluate the trees as a viable urban forest, and getting an independent ornithologist on site to begin a proper ornithological study. As you're well aware, the city's prior work products on both those subjects were not competent, and I'm mystified why no mention of correcting those with proper specific studies is made in your memo on scheduling.