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HomeMy WebLinkAboutProcopio letter dated 01-04-2018• PROCOPIO gprocopid 525 B Street NIM101im 10111 Suite 2200 San Diego, CA 92101 T. THEODORE J. GRISWOLD Partner AUSTIN DEL MAR HEIGHTS PHOENIX SAN DIEGO SILICON VALLEY January 4, 2018 VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED VIA E-MAIL (CYOUNGWHULAVISTACAGOV) Caroline Young Development Services Project Manager Development Services Department City of Chula Vista 276 Fourth Ave. Chula Vista, CA 91910 Re: Wash'N Go Carwash; 495 Telegraph Canyon Road Project No. DR15-0037, CUP -15-0023, & PER16-0003 Inadequate Noise Analysis Report; Erroneous Use of Categorical Exemption; Inability to make findings for CUP Dear Caroline: This letter is in response to your letter, dated November 17, 2017, providing Eilar Associates, Inc.'s response, dated October 13, 2017 ("Response Letter"), to our October 4, 2017 letter regarding the proposed Final Noise Analysis Report, dated August 7, 2017 ("Noise Study") for the above - referenced project ("Project"). Although we appreciate the City's response, our concerns regarding the impacts of unevaluated noise sources and the impact the Project may have on the ambient noise levels remain unaddressed. We are also responding to recent notice of intent to adopt a CEQA categorical exemption in support of a conditional use permit for the project. The Noise Report does not support the use of a categorical exemption, or the ability to make all findings required of a CUP. As you know from the multiple correspondence to date, we represent elderly individuals living immediately next door to the proposed car wash facility. We have stated our concerns that the facility will cause disruptive noise to the adjacent residences, yet these concerns remain unaddressed. This project seeks to have unmitigated and unsupervised noise from cars waiting to enter the car wash immediately adjacent to homes. It is wholly predictable that noise from these cars and the operation will be disruptive to these neighbors, affecting their health and welfare. Until this impact is recognized, addressed and adequate mitigation is provided, consideration of the CUP is premature and subject to challenge. DOCS 999992-000101/3126010.3 Project Noise Report does not address the issue. The noise study purports to evaluate a "worst-case" scenario for the Project, but only evaluates one noise source. A "worst-case" scenario that does not take into account all of the noise sources arising from the site such as the vacuums, intercoms, and customer noise (radios, idling cars, loud conversations, horns) ("Unevaluated Noise Sources") is wholly inadequate. Such a limited analysis cannot be used as a basis to determine whether the Project will exceed the municipal code requirements or whether the Project may have an impact on the environment or on the health and welfare of surrounding residences. These are separate inquiries. The applicant's Response Letter simply dismissed the potential impacts of the Unevaluated Noise Sources and offered no evaluation to support the dismissal. While the dryers (which were the sole noise source evaluated) may be the dominant source of noise, they are not the only source. More importantly, the Unevaluated Noise Sources would be immediately adjacent to the residential properties and are of particular concern to such residents. As the Response Letter concedes, the vacuums and intercoms will generate noise and, rather than explain how such noises impact the environment, merely states the noises "are not expected to be significant" or would be of brief duration and would be minimal compared to the dryer noise. There are several issues with these contentions. First, a mere statement that such noises are not expected to be significant is not sufficient to properly evaluate whether such noise sources alone, or taken together with other noise sources, will have an impact on the environment or meet the municipal code requirements. The decision maker cannot determine to what extent the Unevaluated Noise Sources will be heard in the adjacent residences, and as a result there is no way for Planning Commission to make the required finding for the permit: That such use will not, under the circumstances of the particular case, be detrimental to the health, safety or general welfare of persons residing or working in the vicinity, or injurious to property or improvements in the vicinity; (CVMC 19.14.080 B.) There is no support for making such finding relative to the noise impacts to the adjacent residences. Second, the comparison of the intercom noise and other Unevaluated Noise Sources to the dryer noise is irrelevant; the impact of these noise sources on the environment and surrounding homes is the relevant inquiry. This requires measurement of noise levels, proximity to homes, and number of occurrences throughout the day, and if impacts occur, how such impacts can be eliminated or minimized. None of these issues are addressed in the noise study. Third, the fact that the intercoms would be of brief duration, and, therefore, may not impact the average hourly noise levels, does not mean that such noises will not be disruptive and impact the residential properties. Residential properties immediately adjacent to the carwash will be subject to such disruptive noises regardless of the impact on the hourly average. Moreover, the high number of sporadic and brief noise sources would, in fact, be more disruptive to the neighboring residences. DOCS 999992-000101/3126010.3 The Response Letter also incorrectly contends that customer noise is "unpredictable" and "out of control of the carwash operators" which would make modeling of such noises infeasible. However, noise from idling cars, radios, and car horns is both predictable and very common at car washes and this is what makes their impact so significant. This impact is unassessed, and no mitigation is proposed for the impact. The unpredictability of the timing of such noises does not alleviate the requirement to evaluate and mitigate for such foreseeable impacts. To determine the potential impacts, the applicant can use a similarly designed and situated car wash as a reference and create real, objective measurements. In addition, noise from idling cars is not unpredictable, especially in modeling a worst-case scenario with assumptions that the Project will be used at capacity. Car idling is often modeled to determine noise from circulation within a development. Therefore, at a minimum, the Noise Study should include an analysis of noise from idling cars, radios, speakers, etc. and an assessment of this impact on neighboring homes. In addition, the contention that the noise sources are out of the control of the carwash operators is incorrect. The City could require as a condition of approval that employees be located at the queue line and at the vacuums to police the facility so that customers keep noise volumes down, turn their radios down or refrain from using loud voices and their car horns. Signs can be posted in addition to having onsite employees, but signs alone will do little to prevent such noises. Also, the project is proposing a sound barrier wall near the adjacent commercial property --a sound wall of effective height can also be constructed along the property line bordering the residential properties to limit impacts. Such design of a sound barrier requires an analysis of the noise first, then a determination of the barrier necessary to protect neighboring residences. Finally, as noted in our previous letters, CEQA Guidelines require the City to evaluate if the Project will have a temporary, permanent or periodic increase in ambient noise levels in the Project vicinity above levels existing without the Project. The determination of whether the Project will comply with the City's noise ordinance is a separate inquiry under CEQA and the CUP findings. The City's noise ordinance does not establish the sole threshold for significance under CEQA and does not limit consideration under the CUP findings. Therefore, a finding that the Project complies with the noise ordinance does not mean that it has no impact on the environment or that the project is not detrimental to the health, safety orgeneral welfare of persons residing or working in the vicinity. The Noise Study has no evaluation of the increase in ambient noise levels above the current levels. As noted in the Noise Study, the ambient noise levels in the area are very high, increases to these ambient noise levels can be detrimental to the residents located immediately adjacent to the Project. The Noise Study still contains significant deficiencies that need to be addressed before the City can rely on its findings to determine whether the Project will comply with the City's noise ordinance and whether Project will have an impact on the environment. 3 prow Io.,co 1 DOCS 999992-000101/3126010.3 Use of a Categorical Exemption is Inappropriate for the Permit. Any consideration of this project under a CEQA categorical exemption would be without substantial support and erroneous. Moreover, the use of a categorical exemption for in fill property (§ 15332) as noted in the public notice, is wholly inappropriate. This exemption is specifically intended for "environmentally benign infill projects," and does not apply to a project that would result in any significant offsets relating to traffic, noise or air quality. The City is not able to provide this assurance given the current level of analysis. Moreover, this assurance cannot be assumed in this situation. CEQA guidelines § 15300.2 prohibits the use of a categorical exemption where there "is a reasonable probability that the activity will have a significant effect on the environment due to unusual circumstances." Here, the location is a busy, unsupervised car wash immediately adjacent to residential homes is just such an unusual circumstance. We have previously deplored the City and the applicant to take our clients' concerns and address them in a meaningful manner through multiple correspondence. However, both have failed to do so. Instead, you refer to an inadequate Noise Study, which is a diversion from the project impacts of highest concern. The Noise Study still needs to include the potential impacts of the Unevaluated Noise Sources and any corresponding mitigation measures, and the Noise Study needs to include an analysis of any increases in ambient noise levels in the Project vicinity, including the affected homes. We respectfully request that you either instruct the project applicant to address these needs, or deny the application outright. Best regards, Theodore J. Griswold Partner, of Procopio, Cory, Hargreaves & Savitch LLP TJG/pat cc: Chula Vista Planning Commissioners Glen Googins, Esq., Chula Vista City Attorney Ms. Judith Wilson 4 pros pion., om DOCS 999992-000101/3126010.3