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HomeMy WebLinkAboutResource Conservation Commission mins 1993/12/04 ~ .utes of a SDecial Joint Meetine: of the City l bula Vista City Council. PJllnn;ne: Commission. and Resource Conservation Commission Saturday. December 4. 1993 8:39 a.m. Conference Rooms 2/3 Public Services Buildin1! CALL TO ORDER 1. ROLL CALL: PRESENT: Councilmembers Moore, Rindone, and Mayor Nader Planning Commission Members Fuller, Moot, Salas, Tarantino, Tuchscher, and Chair Martin Resource Conservation Commission Members Burrascano, Hall, Johnson, 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 James Moose, Esq., Remy and Thomas; Ken Lee, Assistant Planning Director; Barbara Reid, Associate Planner; Maryann 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. Preparation and Review of an Environmental Impact Report (EIR); d. Contents of an EIR; e. Agency Decision Making Under CEQA; and, f. New Legislation Mayor Nader noted the intent of CEQA could be captured in the following two maxims: [1] know what you are doing before you do it; and [2] do not inflict any harm on the environment 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, Director of Planning, made brief introductory remarks. Doug Reid, Environmental Review Coordinator, presented an overview of the topics to be presented. James Moose, Esq., Remy and Thomas, made a comprehensive presentation on CEQA, covering itemS "a" through "r. 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; [b] Screening for CEQA Applicability; [c] Key Participants in the CEQA Process; [d] Environmental Documents Should be Prepared Early; [e] Lead Agency Has Principal Responsibility to Carry Out CEQA; [ij Legislative MechAnimls to Accomplish CEQA's Purposes; [g] Initial Studies; [h] Appendix I, Environmental Checklist Form; [i] Required Contents of a Negative Declaration; OJ Significant Impact Defined; [k] Drafting Effective MitigationMeasures; P] Negative Declaration Review Process; [m] Types of Significant Impacts; [n] Making CEQA Threshold Decisions; [0] Adequacy of Mitigation Measures; [P] Feasibility of Mitigation Measures; [q] EIR Review Process; [r] Required Contents of an EIR; [s] EIR Adequacy..Legal Standards; [t] EIR Adequacy.-Other Considerations; [u] Project Description; [v] Cumulative Impacts; [w] Contents of Final EIR; [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. _..~,,_.__~d_~._,",," _~_, ~,__.__.. 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 history 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 a 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, a three-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 in 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 I, 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 be involved that would have a permitting role, the lead agency may have to comply with NEP A and it 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 have to comply with the federal equivalent, or NEP A, and so at some point it would need to be determined if it would be advisable to do a joint 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 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 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 the Sierra Club or similar organizations, where they were ordered by the 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 patently 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 that the agency that had the greater role in the overall project should be the lead agency and if there was a single-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 a situation where a number of agencies were involved and none wanted to be the lead agency, then the Office of Planning and Research would make the determination. Mr. Moose then discussed [d], Environmental Documents Should be Prepared Early. 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 consequences, 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 [g], Initial Studies. In recapping the discussion to 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 completion of an Initial Study. He pointed out the Initial Study would be the most important document to be prepared as it would be the primary basis for defending your decision. Should an ErR be done, then the Initial Study would become relatively unimportant. However, the Environmental Checklist Form, ([h]), would be forthcoming from the Office of Administrative Law and may become official early in 1994. He emphasized that under II, Environmental Impacts of the Environmental Checklist Form 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 [il, Required Contents of a Negative Declaration. He stated the concept needed to be kept in mind throughout the process-it became a crucial concept when making 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 ~ be a significant impact. A potential significant impact was a substantial impact, there was no clear cut definition or criteria; however, it must be 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 determining 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 seNe 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 h~ had not seen any case law, but it was his interpretation of the intent of CEQA that 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 agricultura1land 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 the 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 infrastructure and if the infrastructure was put in it would facilitate the growth. Mr. Moose then went on to discuss [I], Negative Declaration Review Process; [n). Making CEQA Threshold Decisions; [0], Adequacy of Mitigation Measures; and [pl, Feasibility of Mitigation. Planning Commission Member Moot requested information about the cost difference between preparing a Negative Declaration as compared to preparing a full-blown Environmentallmpact Report. Ms. Thomas responded the cost difference was very dramatic. A very detailed Mitigated Negative Declaration could cost upwards to $5,000, but a normal 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 an 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 &oping meetings to asceIUin 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 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 decisionmaking 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 then adopt the Findings 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 Findings, which was typically a 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 to comments on environmental issues; and, if the statement "comment noted" constituted a response. Mr. Moose replied that in an EIR they bad to be responded to. 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 bad been raised, dut would call for a response. It would be permissible if members of the public were just making their viewpoint known. Resource Conservation Commissioner Hall noted there seemed to be some thought that if, for example, with the 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 or 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 the Otay Ranch as an example, the new landowner could change the performance standards set within the 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 that a change in the performance standards constituted 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 to be an overriding 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 bad to be some flexibility in the Plan, that it could not be "set in stone" so that subsequent decisionmakers 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 that the project was defined broadly enough to include all reasonably foreseeable phases or aspects of a project. People bad gotten in trouble by saying all they were doing in their project was building Phase I 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 the Objectives of the project with specificity. Those Objectives were very important when it came time to adopt the Findings and in determining what was feasible and what was infeasible. It could be that something could be considered infeasible, not because it 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 such 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 vis-a-vis the preferred project. Think in terms of the objectives of the project, think in terms of the significant, particularly the significant unavoidable unmitigatable 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 least ostensibly, be feasible. If they were patently unrealistic there was no point in including them. The ultimate decision of whether they were truly feasible was not made in the EIR, it was made in the Findings. The decisionmakers 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], EIR Adequacy--Other Considerations; and, [bb] Types of EIRs. Environmental Review Coordinator Reid stated he would distribute copies of the Master EIR Guidelines to all attendees as soon as 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 at 11: 55 a.m. Respectfully submitted, 1l.aL 4. ~ Berlin Bosworth, Secretary to the Redevelopment Agency