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HomeMy WebLinkAboutcc min 1993/12/04 MINUTES OF A SPECIAL JOINT MEETING OF THE CITY COUNCIL OF THE CITY OF C!iULA VISTA, PLANNING COMMISSION, AND RESOURCE CONSERVATION COMMISSION Saturday, December 4, 1993 Conference Rooms 2/3 8:39 a.m. Public Services Building CALL TO ORDER 1. ROLL CALL: PRESENT: Councihnen~bers Moure, Rindune, and Mayor Nader Planning Counnission Members Fuller, Moot, Saltis, Tarantino, Tuchschef, and Chair Martin Resuurce Conservation Cominission Members Burrascano, Hall, Johnson, Myers, and Chair Kracha ABSENT: Councihnembers Fox and Hurton; Planning Commission Member Ray; and Resuurce Conservation Commission Members Ghougassian and Guerreiro ALSO PRESENT: Robert Leiter, Director of Phmning; Doug Reid, Environmental Review Courdinator; Tina Thoums, Esq. and James Mouse, Esq., Remy and Thomas; Ken Lee, Assistant Planning Director; Barbara Reid, Associate Planner; Maryann Miller, Enviromnental Consultant; and Berlin Busworth, Secretary to the Redevelupment Agency BUSINESS 2. PRESENTATION ON CEOA -- a. Backgruund and hnplementation of CEQA; b. Preliminary Review, Exemptinns, and Negative Deelavations; c. Preparation and Review of an Environmental Impact Report (EIR); d. Contents of an EIR; e. Agency Decisilm Making Under CEQA; and, f. New Legislation Mayor Nader noted the intent of CEQA could he captured in the f~lh~wiug two maxims: [1] know what you are doing before you du it; and [2] do not inllict any harm un the environment that is not outweighed by a greater good. Those two precepts had evolved into volunEcs of codes and regulatluns, hence the need for the workshop/meeting. Robert Leiter, Director of Planning, made brief intruductory remarks. Dung Reid, Environmental Review Cuordinator, presented an overview of the topics to be presented. James Moose, Esq., Remy and Thunlas, made a comprehensive presentaliun on CEQA, covering items "a" through "f". The basis and content of the presentation was fully clmtalned in the materials on file in the City Clerk's Ottlce. Specific topics of note included: [a] Purpuses of CEQA; [b] Screening for CEQA Applicability; [c] Key Participants in the CEQA Process; [d] Environmental Documents Should be Prepared Early; [el Lead Agency Has Principal Responsibility to Carry Out CEQA; Ill Legislative Mechanisms to Accomplish CEQA's Purpnses; [g] Initial Studies; [h] Appendix I, Envirolunental Checklist Form; [i] Required Contents ufa Negative Declaration; [i] Significant hnpact Defined; [k] Drafting Effective Mitigation Measures; [I] Negative Declaration Review Proceis; [m] Types of Signiticant hnpacts; [n] Making CEQA Threshold Decisions; [u] Adequacy of Mitigation Measures; [p] Feasibility of Mitigation Measures; [q] ElR Review Process; [r] Required ContenLs nf an EIR; [s] EIR Adequacy--Legal Standards; It] EIR Adequacy-- Other Considerations; [u] Project Description; [v] Cumulative hnpact. s; [w] Contents of Final EIR; [x] Agency Decision making Under CEQA; [y] Supplements to EIRs; [z] Similarities in Terminolugy Between CEQA and NEPA; [aa] Dif'erences Between CEQA and NEPA; and [bb] Types uf EIRs. Minutes December 4, 1993 Page 2 Mr. Moose advised, particularly with respect to conlroversial projects, to put things in writing and place documentation and narn~tive analyses in the tiles--which wonld be a history of the thought process that had been foBawed in justifying an exemption(s). as it related to the discussinn on [b] abave. Tina Thomas, Esq., Remy and Thomas, its it relaled to discussion nn [c] abave, noted that legislation passed required the City, as the lead agency, ance an application was deemed complete, that a contract had to be entered into with a consultant within 45 dltys--unless the dacumeut was going to be prepared in-house--for the preparation of that document. Mayor Nader pointed out that when a developer did a projeet in the City af Chula Vista, a three-party contract was entered inta whereby the developer would pay for preparatian of the EIR and the City would retain the consultant(s), which wits the common practice in the State of Califi~rnia. Mr. Moose said the main Trustee Agency which needed to be in the lunp on virtually every pro. ject--unless the project had no conceivable impact on fish and wildlife resources--was Califarnia Department of Fish and Game as the guardtarts of fish and wildlife resources in the State, as it related tu continued discussion on [c] above. The former Oillee of Permit Assistance had been combined intu what was now called the Department of Trade and Commerce whose misstan wits to help California in econnmic growth. He noted that, starting on January 1, 1994, the Governor's Oillee of Plam~ing and Research, upon a request from the applicant or an agency, would help determine who all needed to be contacted. Shuuld a federal agency be involved that would have a permitting role, the lead agency may have to comply with NEPA and it would be judicious to involve them early in the process. Ms. Thomas stated that shuuld a federal agency have to issue a permit, they wnuld have tu comply with the federal equivalent, or NEPA, and so at same point it wauld need to be determined if it would be advisable to do a joint federal/state ducnment. Mr. Moose pointed out it was very important that every action tltken 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 nf the Court, who may not tatally 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 dncumentation, the Court woold not disturb the city's decision(s). Planning Commissioner Moot asked who would bear cast of litigatinn. Mr. Moose replied that Cade af Civil Procedures, Section 1021.5, which wits a codiiication of a doctrine known as the Private Atturney General Doctrine, held that if a citizens' group tiled litigation and was successful and their contribution in creating a public benefit 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 purdy selfish reasons--a Judge had the discretion, but not the obligatian, tu arder the respnndent or defendant to pay attorney fees of the plaintiff or petitioners. Mayor Nader noted that to make The Statement uf Overriding Consideratiuns 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 same fact that supported the conclusion; and, should there be a Statement with no evidence tn support it, a Judge probably would throw that decision out. Mr. Moose concurred and hated there had to be substantial evidence before The Statement nf Overriding Considerations. Councilman Moore asked if there were any lawsuits hy petitinners, such as the Sierra Club or similar organizations, where they were ordered by the Court tn pity attorney fees of the defendant. Minutes December 4, 1993 Page 3 Mr. Moose re~punded he knew of nune, but stated the exceptjim could apply taa patently frivolous lawsuit; even then, it would be an extremely rare uccurrence. Huwever, lie cautinned that must people/organizations could claim they had a reas~mable belief that the law cl~uld be extended to apply to their theory. Resource Conservation Commissioner Kracha asked abuut the adequacy of an Environmental Impact Report (EIR) and what percentage of cases really wetit to cnurt versus thase that were settled out of court. Ms. Thomas replied that a very small percentage actually went tu cnurt. Resource Conservation Commissioner Kracha asked what wuuld be the determination of who would be the lead agency. Mr. Moose said the standard generic statement rule was that the agency that had the greater role in the overall project shnuld be the lead agency and if there was a single-purpose agency that was only involved in a piece of the pruject, that agency wuuld more likely be the respunsihle agency. Another rule would be that the agency that acted first, if it cuuld nut be determined whn shnuld be the lead agency, would be the lead agency. Typically, the local ngency was the lead agency. If there was a situation where a number of agencies were involved and nune wantted tu be the lead agency, then the Oillee nf Planning and Research would make the determination. Mr. Moose then discussed [d], Envirnmnental DtncutnenLs Shuuld be Prepared Early. He noted an Ell{ document should be prepared early in the phmning process, yet late enuugh fnr the information to be believable. In general, if what the agency had dune was reaslmahle, the cnurt would uphold it. However,if an agency got tu the point where it had approved something, i.e., cnmmitted itself to a definite course of action with envirunmental consequences, then the agency had gane tnu tltr. He noted there was a statement in the Guidelines that a public agency ought nut lu buy pr~perty t'lnr a public wnrks project without first complying with CEQA. Mr. Moose then discussed [g], Initial Studies. In recapping the discussion tu that point, he stated there was a 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 an EIR or prepare a Negative Declaration which required the eompletinn of an Initial Study. He pointed out the Initial Study would be the must impnrtant document to be prepared as it would be the primary basis for defending your decisinn. Should an EIR be dnne, then the Initial Study wnuld becume relatively unimportant. However, the Environmental Checklist Form, ([h]), wuuld be furthcomiug frum the Office of Administrative Law and may become ut]icial early in 1994. He emphasized that under II, Envirunmental Impacts of the Environmental Checklist Form that it was imperative to provide an answer not only tn the "Yes" and "Maybe" culuulns, but it required an explanatiml tin a "No" answer as well. Mr. Mouse next discussed [i], Required Cunteuts uf a Negative Declarati~m. He stated the concept needed to be kept in mind throughuut the process--it because a crucial concept wben making the decision on whether to do an Environmental Impact Report (EIR) nr Negative Declaratinn. 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 signiticant impact. A potential significant impact was a substantial impact, there was no clear cut de~nitiun or criteria; huwever, it must be adverse and must deal with physical conditions. Under NEPA Guidelines a significant impact could be beneticial and it would still need to be analyzed; it had to be in the physical cnnditiun area. If there was a pruject that wuuld cause a social effect, or an economic effect, that in turn wuuld start a chain uf causatlun that wuuld lead tua physical effect, and all that was re~tsonably fureseeable, they were charged with Itnoking at that physical effect. If there was a physical effect and it cnuld not be decided if it was significant or nlnt, if it was of sucial or economic importance, that cuuld be a factor that need nut be h~uked tin in determining if the physical effect itself was significant or nnt. An exmnple of that would be if there was a physical impact in terms of an effect on a view or loss of minnr amounts of habitat, religilms significauce to a grnup uf Native Atnericans, or was an historic area. Those factors could tip the agency tuward calling the physical ilnpact significant. He made specific Minutes December 4, 1993 Page 4 reference to Appendix G uf the Guidelines and puinted out it shuuld serve its a guide, and briefly discussed the specific topics uf concern cuntained in Appendix G. Mayor Nader noted there had been ecunumic impacts in the Overriding Cnnsideratiuns which was an economic impact to the applicant as opposed to an ecanomic impact to the cnmmunity at large. He asked if there was any case law un whether a private economic benefit was a soffitlent overriding consideration. Mr. Moose respnnded that he had not seen any ease htw. hot it wits his interpretatiun of the intent of CEQA that the economic benefit ought to be fur public benefit. Planning Commissiun Member Fuller asked Mr. Muuse tit comment un 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 tu the area, the marketplace would react to that by increasing the speculative value uf the property its the infrastructure would then be in and there would be a flood uf rezune applicatiuns to urbanize that area. Even though the impacts of the pipe itself could he .just disturbing the dirt, laying the pipe, and thruwing the dirt back over the pipe, because it would unleash market furces that wunld, if the political forces align, it could result in urbanization. They needed ta be alerted tu that early ou so it could he decided whether they wanted to allow that to happen. They could nut have growth withaul infrastructure and if the infrastructure was put in it would facilitate the growth. Mr. Moose then went on tu discuss [I], Negative Declaratilm Review Prucess; In], Making CEQA Threshold Decisions; [o], Adequacy nf Mitigation Measures; and [p], Feasibility of Mitigatiun. Planning Commission Member Muut requested information about the cost difference between preparing a N~gative Declaration as compared tu preparing a full-bluwn Environmental lmpact Report. Ms. Thomas responded the cust difference was very dramatic. A very detailed Mitigated Negative Declaration could cost upwards to $5,000, but a nurmal Negative Declaratiun averaged arnund $500 in staff time. She pointed out that preparing an EIR wits a majur expenditure, but noted that if they were talking about doing an EIR for perhaps $100,000, where there was a gray area--about the quality uf the environmental merits-- about whether to do a Negative Dech{ratiun or an EIR. the calcuh{tion that wnuld need to be made was whether they wanted tu spend, htr example, $100.000 duing an EIR ur $200,000 in litigation with no certainty of winning. The decision needed tit be made on a case-by-case project basis. The decisiun should be made on environmental meritq and the evidence. Mr. Moose stated that if the law was clear, they would hdluw 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 uf an EIR. He recommended sending NOPs CNotice of Preparation) to the public to seek its input as well as boldlug Scoping meetings to ascertain the study content the EIR would encompass. By reaching uut to the public and requesting their input up-front, there would be less likelihood of being surprised later that there shuuld have been other significant environmentally-related topics titken into coasideratian in the EIR dncument. He noted the Final EIR consisted of the draft EIR and the Cumments frum everynne in the public who commented on the docmnent and the written respnnses tu those comments. The party responsible h~r the EIR was required to address, in writing, all significant environmental puints raised in the comments. When there was a Final EIR before them, as decision makers, they were required to certify that document which, according to the Guidelines, was a two-pronged exercise but when the revised Guidelines took effect it would become a three- pronged exercise. The first was that the documents were legally adequate; secondly, the decision making body had considered the content of the document; and the third was that it reflect the independence of the agency. After the Final E1R had been certified, they would then adopt the Findings and those Findings must describe Minutes December 4, 1993 Page S the fate of all the mitigation measures that were proposed. If they were rejected as infeasible, then they mast explain why based on evidence rejected as infeasible. Associated with the Findings, which was typically a separate document, was the Statement of Overriding Considerations. Simaltaneously with the Findings, they needed to adopt the Mitigation Monitoring Program. Resource Conservation Co~nmissioner Myers asked Mr. Moase to reiterate his statement about responding to comments on environmental issues; and, if the statement "comment noted" cunstituted a response. Mr. Moose replied that in an EIR they had to be responded tit. If a member of the public raised a bona-fide environmental issue, putting in a written response of "comment noted" would probably not be prudent. If a substantive point had been raised, that would call for a response. It would be perulissible if members of the public were just making their viewpoint known. Resource Conservation Cnmmissioner Hall nitted there seemed tu be some thought that if, for example, with the Otay Ranch Project, that if the property were divided iuto different ownerships, the process that was insisted on in the EIR would nat be followed by subsequent landholders or developees. She asked if there was a way subsequent landholders or developers could get around the EIR or if they were required to comply. Mr. Moose wanted to know if the couditimls ran with tile land. Mayor Nader noted that the designated land uses hw the brad were in place and if the current owner sold all or a portion of the pruperty, it would be subject to lhe approved land use. Planning Commissioner Moot asked if someone bought a portiou uf the pruperty, using the Otay Ranch as an example, the new landowner could change the pertiwmance standards set within the EIR document that covered the entire property, of if they would have tu resubmit it ~r an entirely new environmental impact. Mr. Moose noted that perfiwmance standards were a form of legislative policy that wuald hind successors to the extent they could change legislative policy if they went through tbe proper chamlels, i.e., cnmpliance with CEQA. The exception was if they were impairiu~ tile discretitm of the successors during the life of that agreement. Mayor Nader stated that a chaatle in the perfiwmance staudards coustituted a project under CEQA and that would require an entirely new EIR to analyze the effect of that change. Mr. Moose pointed out there may have ta be an averriding consideration to justify changing the 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 Plan, that it could not be "set in stmte" sa that subsequent decisinn makers did not have any ability to reorganize the Plan. There had to be some degree of tlexibility. Mr. Mnose emphasized that it must be consistent throughout the document aud that the pro. ject was defined broadly enough tu include all reasouahly fiweseeable pbases or aspects of a project. Penpie had gotten in trouble by saying all they were doing in their project was huilding Phase I and not building Phase 2. If the record showed that it was reasonably ti}rt.~eeable, that needed to be laid out in the EIR. Otherwise, the courts would say it was being hidden fnun the public aud making a pro. iect look less damaging than it really was. It was desirable tn articulate the Objectives af the project with specificity. Those Objectives were very important when it came time tu adopt the Findings and in determining what was feasible and what was infeasible. It could be that sumething could be considered infeasible, not because it cost too much or was technically infeasible, but because it was not cousistent with the objectives of the prnject. There was a danger that if the Objective~ read too much like the "wish list" of a private applicant, people could argue that the EIR, by defining thase Objectives iu such narruw terms, was precluding the gond faith consideration of alternatives. The point was ta be hunest with the public about what the intplications of the decision would Minutes December 4, 1993 Page 6 be. He stated another very importaut reqnirement was lbe Alternative Analysis and if it was not done properly, that was the type thing they would get nailed ti}r in cuurt. Alternatives were suppused to generally provide environmental advantages vis-a-vis the preferred pr~jeet. Think in terms uf the objectives of the project, think in terms of the significant, particularly the significant unaw~idable unmitigatable impacts associated with the propused praject, and try to tlnd alternative means uf meeting those ob. jectives that would reduce the severity of those significant impactq. The alternatives should, at least ostensibly, be feasible. If they were patently unrealistic there was nu point in including them. The ultimate decisiun nf whether they were truly feasible was not made in the EIR, it wits made in the Findings. The decisinn makers were the ones to decide if it was feasible or infe~tsible. The point uf the CEQA Alternative Analysis was to try to reduce the environmental effects of the prujeet and there needed to be a range of reasonable alternatives. A brief discussion was held regarding ambient air quality standards its it related tn cumulative impacts. Resource Conservation Commissioner Burrascanu inqoired 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 Is], EIR Adequacy-Legal Standards; It], EIR Adequacy--Other Considerations; and, [bb] Types of EIRs. Environmental Review Conrdinator Reid stated he would distribute eapies uf the Master EIR Guidelines to all attendees as soon as it became available. ORAL COMMUNICATIONS OTIIER BUSINESS 3. CITY MANAGER'S REPORT(S) Nune. 4. MAYOR'S REPORT(S) None. 5. COUNCIL COMMENTS Nnne. ADJOURNMENT ADJOURNMENT AT 11:55 A.M. Respectfully submitted, BEVERLY A. AUTHELET, CMC, City Clerk Berlin Bosworth, Secretary to the Redevelopment Agency