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HomeMy WebLinkAboutRCC MIN 1994/03/07_ utes of a Special Joint Meefing of the City t hula Vista C~ Council, Planning Commission. and Resource Conservation Commission Samrdav. December 4, 1993 Conference Rooms 2/3 8:39 x.m. Public Services Building CALL TO ORDER 1. ROLL CALL: PRESENT: Councilmembers Moore, Rindone, and Mayor Nader Planning Commission Members Puller, Moot, Salas, Tarantino, Tuchscher, and Chair Martin Resource Conservation Commission Members Burrascano, Hall, ]ohnson, Myers, and Chair Kracha ABSENT: Councilmembers Fox and Horton; Planning Commission Member Ray; and Resource Conservation Commission Members Ghougassian and Guerreiro ALSO PRESENT: Robert Leiter, Director of Planning; Doug Reid, Environmental Review Coordinator; Tina Thomas, Esq. and lames Moose, Esq., Remy and Thomas; Ken Lee, Assistant Planning Director; Barbara Reid, Associate Planner, Maryatm Miller, Environmental Consultant; and Berlin Bosworth, Secretary to the Redevelopment Agency BUSINESS 2. PRESENTATION ON CEOA -- a. Background and Implementation of CEQA; b. Preliminary Review, Exemptions, and Negative Declarations; c. Prepazation and Review of an Environmental Impact Report (El R); d. Contents of an EIR; e. Agency Decision Making Under CEQA; and, f. New Legislation Mayor Nader noted the intent of CEQA could be capNred in the following two maxims: [7] know what you are doing before you do it; and l2] do not inflict any harm on the enviromnent that is not outweighed by a greater good. Those two precepts had evolved into volumes of codes and regulations, hence the need for the workshop/meeting. Robert Leiter, DirecU~r of Planning, made brief introductory remazks. Doug Reid, Environmental Review Coordinator, presented xn overview of the topics to be presented. James Moose, Esq., Remy and Thomas, made a comprehensive presentation on CEQA, covering items "a" through "f". The basis and content of the presentation was fully contained in the materials on file in the City Clerk's Office. Specific topics of note included: [a] Purposes of CEQA; ib] Screening for CEQA Applicability; ic] Key Participants in the CEQA Process; [d] Environmental Documents Should be Prepared Early; [e] Lead Agency Has Principal Responsibility to Carry Ou[ CEQA; [fJ Legislative Mechanisms [o Aca>mplish CEQA's Purposes; [gJ Initial Studies; [h] Appendix [, Environmental Checklist Form; [i] Required Contents of a Negative Declaration; [] Significant Impact Defined; [k] Drafting Effective Mitigation Measures, [l] Negative Declaration Review Process; [mJ Types of Significant Impacts; [n] Making CEQA Threshold Decisions; [o] Adequacy of Mitigation Measures; lp] Feasibility of Mitigation Measures, [q] EIR Review Process; [ri Required Contents of an EIR; (s] EIR Adequacy--Legal Standards; [t] EIR Adeyuacy-Other Considerations; [u] Project Description; lv] Cumulative Impacts; [w] Contents of Pinal ETR; [x] Agency Decisionmaking Under CEQA; [y] Supplements to EIRs; [z] Similarities in Terminology Between CEQA and NEPA; [aa] Differences Between CEQA and NEPA; and [bb] Types of EIRs. Minutes December 4, 1993 Page 2 Mr. Moose advised, particularly with respect to controversial projects, to put things in writing and place documentation and narrative analyses in the files--which would be a hismry of the thought process that had been followed in justifying an exemption(s), as it related to the discussion on [b] above. Tina Thomas, Esq., Remy and Thomas, as it related to discussion on ~c~ above, noted that legislation passed required the City, as the lead agency, once an application was deemed complete, that a contract had to be entered into with x consultant within 45 days--unless the document was going to be prepared in-house--for the preparation of that document. Mayor Nader pointed out that when a developer did a project in the City of Chula Vista, athree-party contract was entered into whereby the developer would pay for preparation of the EIR and the City would retain the consultant(s), which was the common practice in the State of California. Mr. Moose said the main Trustee Agency which needed to be in the loop on virtually every project--unless the project had no conceivable impact on fish and wildlife resources--was California Department of Fish and Game as the guardians of fish and wildlife resources iu the State, as it related to continued discussion on [c) above. The former Office of Permit Assistance had been combined into what was now called the Department of Trade and Commerce whose mission was to help California in economic growth. He noted that, starting on January ] , 1994, the Governor's Office of Planning and Research, upon a request from the applicant or an agency, would help determine who all needed to be contacted. Should a federal agency he involved that would have a permitting role, the lead agency may have m comply with NEPA and i[ would be judicious to involve them early in the process. Ms. Thomas stated that should a federal agency have to issue a permit, they would haue to comply with [he federal equivalent, or NEPA, and so at some point it would need to be determined if it would be advisable m do a join[ federal/state document. Mr. Moose pointed out it was very important that every action taken should be documented in writing, that there be evidence to support every action taken, and to make sure there was a written record to "tell" the story to someone--e.g., Judge of the Court, who may not totally understand CEQA. He stated that if a Court saw what a city had done was reasonable and there was a good explanation for what was done and it was based upon evidence, i.e., written documentation, the Court would not disturb the city's decision(s). Planning Commissioner Moot asked who would bear cost of litigation. Mr. Moose replied that Code of Civil Procedures, Section 1021.5, which was a codification of a doctrine known as the Private Attorney General Doctrine, held that if a citizens' group filed litigation and was successful and their contribution in creating a public benetit exceeded the direct benefit to them--in other words there was a measure of altruism in what they were doing, they are not doing it for purely selfish reasons--a Judge had the discretion, but not the obligation, to order the respondent or defendant to pay attorney fees of the plaintiff or petitioners. Mayor Nader noted that to make The Statement of Overriding Considerations as an explanation as to why the City was doing what it was doing--as the law required--there needed to be a factual basis for the conclusion. There had to be some evidence in the record or some fact that supported the conclusion; and, should there be a Statement with no evidence to support it, a Judge probably would throw that decision out. Mr. Moose concurred and noted there had to be substantial evidence before The Statement of Overriding Considerations. Councilman Moore asked if there were any lawsuits by petitioners, such as [he Sierra Club or similar organizations, where they were ordered by dre Court to pay attorney fees of the defendant. Minutes December 4, 1993 Page 3 Mr. Moose responded he knew of none, but stated the exception could apply to a patentty frivolous lawsuit; even then, it would be an extremely rare occurrence. However, he cautioned that most people/organizations could claim they had a reasonable belief that the law could be extended to apply to their theory. Resource Conservation Commissioner Kracha asked about the adequacy of an Environmental Impact Report (EIR) and what percentage of cases really went to court versus those that were settled out of court. Ms. Thomas replied that a very small percentage actually went to court. Resource Conservation Commissioner Kracha asked what would be the determination of who would be the lead agency. Mr. Moose said the standard generic statement rule was [hat the agency that had the greater role in the overall project should be the lead agency and if there was asingle-purpose agency that was only involved in a piece of the project, that agency would more likely be the responsible agency. Another rule would be that the agency that acted first, if it could not be determined who should be the lead agency, would be the lead agency. Typically, the local agency was the lead agency. If there was x situation where a number of agencies were involved and none wanted m be the lead agency, then We Office of Planning and Research would make the determination. Mr. Moose then discussed [d], Environmental Documents Should be Prepazed Eazly. He noted an EIR document should be prepared early in the planning process, yet late enough for the information to be believable. In general, if what the agency had done was reasonable, the court would uphold it. However,if an agency got to the point where it had approved something, i.e., committed itself to a definite course of action with environmental conseyuences, then the agency had gone too far. He noted there was a statement in the Guidelines that a public agency ought not to buy property for a public works project without first complying with CEQA. Mr. Moose then discussed igJ, Initial Studies. In recapping the discussion to that point, he stated there was x project being contemplated for approval, it had been determined there was no statutory/categorical exemption, and now the project was at the stage where a determination needed to be made to either conduct xn EIR or prepare a Negative Declaration which required the completion of an Initial Study. He pointed out the Initial Study would be the most important document to he prepared as it would be the primary basis for defending your decision. Should an EIR be done, then the Initial Study would become relatively unimportant. However, the Environmental Checklist Form, ([h]), would be forthcoming from the Oftice of Administrative Law and may become official eazly in 1994. He emphasized that under Ii, Environmental Impacts of the Environrrrental Checklist Porm that it was imperative to provide an answer not only to the "Yes" and "Maybe" columns, but it required an explanation to a "No" answer as well. Mr. Moose next discussed [i], Required Contents of a Negative Declaration. He stated the concept needed [o be kept in mind throughout the process--it became a crucial concept when malting the decision on whether to do an Environmental Impact Report (EIR) or Negative Declaration. He pointed out that when deciding to do an EIR the agency's obligation was not triggered by finding that there would be a significant impact, but rather that there could be a significant impact. A potential significant impact was a substantial impact, there was no clear cut definition or criteria; however, it must he adverse and must deal with physical conditions. Under NEPA Guidelines a significant impact could be beneficial and it would still need to be analyzed; it had to be in the physical condition area. If there was a project that would cause a social effect, or an economic effect, that in turn would start a chain of causation that would lead to a physical effect, and all that was reasonably foreseeable, they were charged with looking at that physical effect. If there was a physical effect and it could not be decided if it was significant or not, if it was of social or economic importance, that could be a factor that need not be looked to in deterntining if the physical effect itself was significant or not. An example of that would be if there was a physical impact in terms of an effect on a view or loss of minor amounts of habitat, religious significance to a group of Native Americans, or was an historic area. Those factors could tip the agency toward calling the physical impact significant. He made Minutes December 4, 1993 Page 4 specific reference to Appendix G of the Guidelines and pointed out it should serve as a guide, and briefly discussed the specific topics of concern contained in Appendix G. Mayor Nader noted there had been economic impacts in the Overriding Considerations which was an economic impact to the applicant as opposed to an economic impact to the community at large. He asked if there was any case law on whether a private economic benefit was a sufficient overriding consideration. Mr. Moose responded that he had not seen any case law, but i[ was his interpretation of the intent of CEQA [hat the economic benefit ought to be for public benefit. Planning Commission Member Fuller asked Mr. Moose to comment on extending a sewer line and capacity. Mr. Moose replied it probably related to the phenomenon of growth inducement. In other words, if there was an area of agricultural land and a huge water main or sewer pipe was extended out to the area, the marketplace would react to that by increasing the speculative value of the property as the infrastructure would then be in and there would be a flood of rezone applications to urbanize that area. Even though the impacts of [he pipe itself could be just disturbing the dirt, laying the pipe, and throwing the dirt back over the pipe, because it would unleash market forces that would, if the political forces align, it could result in urbanization. They needed to be alerted to that early on so it could be decided whether they wanted to allow that to happen. They could not have growth without iufrastructure and if the infrastructure was put in it would facilitate the growth. Mr. Moose [hen went on to discuss [I], Negative Declaration Review Process, [n], Making CEQA Threshold Decisions; (oJ, Adequacy of Mitigation Measures; and [p], Peasibifity of Mitigation. Planning Commission Member Moot requested infomution about khe cost difference between preparing a Negative Declaration as compared to preparing afull-blown Environmental Impact Report. Ms. Thomas responded the cost difference was very dramatic. Avery detailed Mitigated Negative Declaration could cos[ upwards to $5,000, but a nomtal Negative Declaration averaged around $500 in staff time. She pointed out that preparing an EIR was a major expenditure, but noted that if they were talking about doing xn EIR for perhaps $100,000, where there was a gray area--about the quality of the environmental merits--about whether to do a Negative Declaration or an EIR, the calculation that would need to be made was whether they wanted to spend, for example, $100,000 doing an EIR or $200,000 in litigation with no certainty of winning. The decision needed to be made on a case-by-case project basis. The decision should be made on environmental merits and the evidence. Mr. Moose stated that if the law was clear, they would follow the law regardless of whether there was the potential of a lawsuit or not. Mr. Moose, then discussed [q], EIR Review Process and [r], Required Contents of an EIR. He recommended sending NOPs (Notice of Preparation) to the public to seek its input as well as holding Scoping meetings to ascertai^ the study content the EIR would encompass. By reaching out to the public and requesting their input up-front, there would be less likelihood of being surprised later that there should have been other significant environmentally-related topics taken into consideration in the EIR document. He noted the Final EIR consisted of the draft EIR and the Comments from everyone in the public who commented on the document and the written responses to those comments. The party responsible for the EIR was required to address, in writing, all significant environmental points raised in the comments. When there was a Pinal EIR before them, as decision makers, they were required to certify that document which, according to the Guidelines, was atwo-pronged exercise but when the revised Guidelines took effect it would become athree-pronged exercise. The first was that [he documents were legally adequate; secondly, the decisiomtnaking body had considered the content of the document; and the third was that it reflect the independence of the agency. After the Final EIR had been certified, they would [hen adopt the Pindings and those Findings must describe the fate of all the mitigation measures that were proposed. If they were rejected as infeasible, then they must explain why based on evidence rejected as infeasible. Associated with the Pindings, which was typically x separate document, was the Statement of Overriding Considerations. Minutes December 4, 1993 Page 5 Simultaneously with the Findings, they needed to adopt the Mitigation Monitoring Program. Resource Conservation Commissioner Myers asked Mr. Moose to reiterate his statement about responding [o comments on environmental issues; and, if the statement "comment noted" constituted a response. Mr. Moose replied that in an EIR they had to be responded to. If a member of the public raised abona-fide environmental issue, putting in a written response of "comment noted" would probably no[ be prudent. If a substantive point had been raised, that would call for a response. It would be permissible if members of [he public were just making their viewpoint known. Resource Conservation Commissioner Hall noted there seemed to be some thought that if, for example, with [he Otay Ranch Project, that if the property were divided into different ownerships, the process that was insisted on in the EIR would not be followed by subsequent landholders or developers. She asked if there was a way subsequent landholders oc developers could get around the EIR or if they were required to comply. Mr. Moose wanted to know if the conditions ran with the land. Mayor Nader noted that the designated land uses for the land were in place and if the current owner sold all or a portion of the property, it would be subject to the approved land use. Planning Commissioner Moot asked if someone bought a portion of the property, using [he Otay Ranch as an example, the new landowner could change the performance standards set within [he EIR document that covered the entire property, of if they would have to resubmit it for an entirely new environmental impact. Mr. Moose noted that performance standards were a form of legislative policy that would bind successors to the extent they could change legislative policy if they went through the proper channels, i.e., compliance with CEQA. The exception was if they were impairing the discretion of the successors during the life of that agreement. Mayor Nader stated drat a change in the performance standards constituted a project under CEQA and that would require an entirely new EIR to analyze [he effect of that change. Mr. Moose pointed out there may have to be an overriding consideration to justify changing [he rules. But, because it was legislative they could not bind the successors in perpetuity. Ms. Thomas noted that was consistent with General Planning Law which said there had to be some flexibility in the Plat, that it could not be "s'et in stone" so that subsequent dceisiornnakers did not have any ability to reorganize the Plan. There had to be some degree of flexibility. Mr. Moose emphasized that it must be consistent throughout the document and drat the project was defined broadly enough to include all reasonably foreseeable phases or aspects of a project. People had gotten in trouble by saying all they were doing in their project was building Phase 1 and not building Phase 2. If the record showed that it was reasonably foreseeable, that needed to be laid out in the EIR. Otherwise, the courts would say it was being hidden from the public and making a project look less damaging than it really was. It was desirable to articulate dre Objectives of the project with specificity. Those Objectives were very important when i[ came time to adopt the Findings and in determining what was feasible and what was infeasible. It could he that something could be considered infeasible, not because is cost too much or was technically infeasible, but because it was not consistent with the objectives of the project. There was a danger that if the Objectives read too much like the "wish list" of a private applicant, people could argue that the EIR, by defining those Objectives in Bach narrow terms, was precluding the good faith consideration of alternatives. The point was to be honest with the public about what the implications of the decision would be. He stated another very important requirement was the Alternative Analysis and if it was not done properly, that was the type thing they would get nailed for in court. Alternatives were supposed to generally provide environmental advantages tds-a-vis the preferred project. Think in terms of the objectives of [he project, think in terms of the significant, particularly the significant unavoidable unmifigatable Minutes December 4, 1993 Page 6 impacts associated with the proposed project, and try to find alternative means of meeting those objectives that would reduce the severity of those significant impacts. The alternatives should, at leas[ ostensibly, be feasible. If they were patently umealis[ic there was no point in including them. The ultimate decision of whether they were tmly feasible was not made in the EIR, it was made in the Findings. The decisionrnakers were the ones to decide if it was feasible or infeasible. The point of the CEQA Alternative Analysis was to try to reduce the environmental effects of the project and there needed to be a range of reasonable alternatives. A brief discussion was held regarding ambient air quality standards as it related to cumulative impacts. Resource Conservation Commissioner Burrascano inquired if there needed to be a summary of the effects of each alternative in addition to the preferred project. Mr. Moose responded it would be desirable. Mr. Moose concluded, discussing [s~, EIR Adequacy--Legal Standards; [t], EIIi Adequacy--Other Considerations; and, [bb] Types of EIRs. Environmental Review Coordinator Reid stated he would distribute copies of the Mister EIR Guidelines m all attendees as soon xs it became available. ORAL COMMUNICATIONS None. OTHER BUSINESS 3. CITY MANAGER'S REPORT(S) None. 4. MAYOR'S REPORT(S) None. 5. COUNCIL COMMENTS None. ADJOURNMENT The meeting adjourned xt 11:55 a.m. Respectfully submitted, ,~ . ~~~-- BerlinBosworth, Secretary to the RedevelopmentAgency MINUTES OF A SCHEDULED REGULAR MEETING Resource Conservation Commission Chula Vista, California 6:30 p.m. Conference Room #1 Monday, February 7, 1994 Public Services Building CALL MEETING TO ORDER/ROLL CALL: Meeting was called to order at 6:30 p.m. by Chairman ICracha. City Staff Environmental Review Coordinator Doug Reid called roll. Present: Commissioners Kracha, Ghougassian, Burrascano, Guerreiro. It was MSUC (GhougassianlGuerreiro) to excuse from the meeting Commissioner Hall due to illness and Commissioner Myers due to work commitment; and to defer vote on Johnson until next meeting; motion carried 4-0. [Commission Johnson arrived at 6:40 p.m.] APPROVAL OF MINUTES: It was MSUC (Ghougassian/Burrascano) to approve the minutes of the meeting of January 10, 1994 with one clarification on Item 1, para. 3, sentence 2, which should be: "He felt the economic interest outweighed the limited environmental interest and there was no need for a new environmental impact report." Vote 4-0 [Johnson not present for vote]. ORAL COMMUNICATIONS: John Rojas, Chula Vista Historical Society, advised that he received a letter from a homeowner of a designated historical home. Historical site plaques have not been received by about 30 other homeowners who are so designated to receive them. Due to inadequate funding, the City Manager's office is seeking alternative budget plans for the plaques, which wst approximately $375 each. Kracha directed Staff to determine an estimated cost per plaque, the cost to get a lazge quantity produced, and an alternative source of funding. Ghougassian suggested homeowners get the plaques made and submit their bill to the city. The city wuld then deduct that amount from the homeowner's property tax at the end of the yeaz or give them some type of a tax break. The legality of this idea needs to be reseazched. Doug to respond to the one homeowner regazdinL the plaque. NEW BUSINESS: 1. Michael Meacham, the new Resource Conservation Coordinator was introduced to the Boazd. He noted his office is on the 2nd floor of the El Dorado Building, Suite O. He shazed his previous work experience with the Boazd. 2. IS-91-15 Bonita Hills Estates, Michael Demich, applicant, was present, along with the biological consultant. This project has been going through the system for 3-1/2 yeazs for approval. He has already downscaled the project to 12 acres. A fence is to be put in to keep people and animals out of the azea, acwrding to city requirements. Part of the mitigation is to build around the good quality coastal sage. The legal listing of environmental species was already met. Resource Conservafion Commission Page 2 In the discussion, Burrascano requested to put restrictions on the landscape with homes adjacent to the coastal sage (i.e., no ice plant that would grow down into the existing plants), and to have no work done during the breeding season (already set forth by federal law.) The applicant noted that they have aheady paid many fees on the schools and have been added to their Mello Roos program two years ago. It was moved and seconded (Ghougassian/Johnson) to accept the negative declaration with the two conditions listed by Burrascano; motion carried 4-1 (no: Guerreiro). Guerreiro stated he will vote no on projects that impede on the preservation of habitat and open space throughout the city. STAFF REPORT: None COMMISSIONER COMMENTS: Johnson will be going to New Orleans February 18-20. ADJOURNMENT: The meeting was adjourned by Chairman Kracha at 7:48 p.m. Respectfully submitted, EXPRESS SECRETARIAL SERVICES Barbara Taylor