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HomeMy WebLinkAboutStaff Report 5.A Late Document 08 01/04/2010yi~~J BEYERS COSTIN December 31, 2009 BY HAND AND EMAIL City Council City of Petaluma 11 English Street Petaluma, CA 94952 Re: East Washington Place Project (Regency Center) Dear Council Members: A PROFESSIONAL CORPORATION I object to this project to the extent its approval could be construed to include a home improvement center and lumber yard such as Friedman Brothers - a use that is neither permitted by zoning nor analyzed in the project EIR or Fiscal Economic Impact Analysis. At Planning Commission, both the applicant and staff stated that, despite the widespread press to the contrary, the proposed project does not include Friedman's. Furthermore, staff indicated that mere Friedman's to become a tenant, the project would be evaluated anew in light of that fact. This Council should affirm those two points -that this project does not include a home improvement center and lumber yard, and any future inclusion of such use would require further environmental and fiscal study. The Uncertainty of Friedman's as a Major Tenant For four years, t11e project has designated a Target store as its anchor tenant. The EIR analyzed only a Target store, never a Friedman's, as the project's anchor tenant. Beginning early in 2009, however, rumors began circulating that a different anchor tenant might be involved, in lieu of or in addition to Target. On November 26, 2009 Friedman Brothers confirmed those rumors by announcing its intention to be part of the Regency project.l ~. , ®. 200 FOURTH ST. SUITE 400 P.O. BOX 878 SANTA ROSA, CA 954.02-0878 PHONE 707.547.2000 FAX 707.526.2746 WEB BEYERSCOSTIN.COM 1 See Press Democrat, November 26, 2009: "Friedman's, Target as neighbors? Home improvement store plans to join Target as main tenants of East Washington shopping center," (http://tinyurl.com/ycoavm6). Citv Council J December 31, 2009 Page 2 In its original November 18 report to the Planning Commission, staff acknowledged that a change in the mix of project tenants could result in "a significant change proposed to the project." The applicant is in ongoing discussions with various prospective tenants for possible inclusion to the proposed project. The physical requirements, loading requirements, and dimensions of their desired operations may be different than the proposed site plan as reflected on the current Vesting Tentative Map application and related project plans and exhibits. (Staff report at p. 14). After Friedman s November press release, staff determined that a "significant change" had still not occurred, because Friedman's had only a "private, non-binding" Letter of Intent ("LOI"} with Regency Centers. (December 8, 2009 supplemental staff report). Staff failed to mention in either of its reports that the applicant had on November 6 submitted a revised site plan -one that included Friedman's as an anchor tenant. Staff did, however, disclose receipt. of this document at the December 8 commission hearing, stating that this document was not considered part of the project. Including Friedman Brothers Would Be a Substantial Change to the Project To be sure, including Friedman's would significantly change this project. First, it would require a re-zoning of the property. The current MU1B zoning for this site does not permit, either by right or with a use permit, the location of an outdoor, drive through lumber yard which Friedman's is contemplating. Second, the impacts from a home improvement store such as Friedman's are not the same as those from the Target store analyzed in the EIR -not even close. A Target store is oriented toward consumers and homeowners; a home improvement store is oriented to consumers as well as contractors and tradesmen. A home improvement store, with large semi trucks making regular trips throughout the day, has different traffic impacts than a Target store, where passenger cars and vehicles predominate. Impacts on access and circulation are also different when a home improvement store is involved. Compare the impacts on East Washington, the present "primary access" for retail customers, to the impacts on Lindberg Lane, the preferred route for contractors. A home improvement store also has different requirements for loading and un-loading by tradesmen and suppliers. City Council December 31, 2009 Page 3 While a Target store conducts its operations primarily under one roof, a home improvement store such as Friedman Brothers includes a large outdoor lumber yard with acres of lumber, concrete and other construction equipment and supplies. It also includes far more farm and agricultural products and supplies on-site. The EIR does not identify, much less analyze, the impacts which would flow from this different use of the site -just as it does not analyze the change in visual impacts on 101 and the surrounding parcels, nor the different impacts on noise and air quality. In short, adding a home improvement center into the mix fundamentally changes the very nature of the project under consideration. If Friedman's Is Included, Further Environmental Review Is Warranted It should go without saying that "[a]n accurate project description is necessary for an intelligent evaluation of the potential environmental effects of a proposed activity."2 That is why "[i]f the description is inadequate because it fails to discuss the complete project, the environmental analysis will probably reflect the same mistake."3 To be adequate under CEQA, an EIR's project description must include both the "precise location and boundaries" of the project as well as a "description of the project's technical, economic, and environmental characteristics."4 The EIR may not analyze only a portion of the project, or only some aspects of the project, and defer other portions or aspects for later consideration. To do so would mean that "some important ramifications of the proposed project remain[ ]hidden from view at the time the project [is] being discussed and approved" - a result which "frustrates one of the core goals of CEQA."s In a recent court decision, involving circumstances not unlike those presented here, a court ruled that where proposed tenants for a shopping center have different environmental impacts, the EIR must identify those tenants, if not by name then by proposed activity and intensity of use: McQeeen z~. Mid-Peninsula Regional Open Space District, 202 Cal. App. 3d 1136, 1143 (1988). s CEB, Practice Under tl2e Cnlifornia Environmental Qualift~ Act ~ 12.7 (2009). 14 California Code of Regulations (hereafter "Guidelines") ~ 15124. s Santiago Counh~ Water Dist. v. County of Orange, 118 Cal. App. 3d 818, 830 (1981). City Council December 31, 2009 Page 4 f Rlecognition of the characteristics of the shopping centers' tenants is a necessary py~ rerec~uisite to accurate identification and anal sy is of the environmental consequences that will result from approval of the pro-posed projects. When the particular type of retail business planned for a proposed project will have unique or additional adverse impacts, then disclosure of the type of business is necessary in order to accurately recognize and analyze the ' ` environmental effects that will result from the proposed project. A rendering plant has different environmental impacts than a chandler.... fTlo simply state as did the Gosford EIR that'no stores have been identified' without disclosing the type of retailers envisioned for the proposed project is not only misleading and inaccurate, but it hints at mendacity.6 If there is any question as to. whether Friedman's is part of this project, it would be insufficient to simply certify the EIR now based on incomplete data, and then later "fill in the blanks" by means of a negative declaration as staff has suggested. CEQA requires more: that new information concerning a significant change in the site plan and anchor tenant(s) be included nozn in the draft EIR, and that. that EIR then be re- circulated.~ Any other course would signify that after four years, the "public comment on the draft [EIR] was in effect meaningless."8 If Friedman's Is Not Included in this Project, Any Approval Should Make That Clear By letter dated December 1, 2009, Regency Centers acknowledged that, notwithstanding its LOI with Friedman's, it was not proposing to amend its project application. In the words of the applicant, "[t]he project analyzed in the EIR" - i.e., one without Friedman s - "is the same project now before the Planning Commission." If indeed Friedman s is not a component of the proposed project, it would be both prudent and appropriate for any resolution of approval, or conditions attached thereto, to make fhatfact explicit - i.e., that approval was made zoithout consideration of a 6 Bakersfield Citizens for Local Control v. City of Bakersfield, 124 Cal. App. 4th 1184, 1213 (2004) (emphasis added). ~ Guidelines § 15088.5 s Laurel Heights Improvement Assn v. Regents of the University of California, 4 Cal. 4th 1112, 1130 (1985) (significant new information discovered prior to EIR certification requires re-circulation). City Council December 31, 2009 Page 5 home improvement center at the site; and that the inclusion of such a center in the future would require further review under CEQA and all other applicable local and state codes, ordinances and regulations. Such an approach would retain for the City and applicant greater flexibility with regard to the project's tenant mix, and would leave open the. option for Friedman's to locate to an alternative site in the event its current negotiations do not evolve beyond the LOI stage. It would also allow the public to know with certainty what in fact is the nctuc~l project being approved, and what would occur should the project be later amended to include Friedman s or another home improvement center. Sincerely, ~~ Bob Haroche