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Home My WebLink AboutStaff Report 4.E 3/3/2014 - Ag Itevw#4.E 1; -N*C,�A U� isse DATE: March 3,2014 TO: Honorable Mayor and Members of the City Council through City Manager FROM: Eric Danly, City Attorney Heather Hines, Planning Manager SUBJECT: Consideration of temporary moratorium of new gas station uses in Petaluma RECOMMENDATION Staff recommends that the City Council consider proposed draft interim urgency ordinance for a temporary moratorium of new gas station uses in Petaluma BACKGROUND In response to neighborhood concerns about the possible location of a new gas station at the corner of South McDowell Boulevard and Maria Drive, the City Council requested that staff prepare for Council consideration and possible adoption an urgency ordinance pursuant to Section 65858 of the CaliforniaGovernmentCode that would prohibit the approval of any new gas station use in the City for an initial period of 45-days while potential regulatory options such as new land use regulations are being studied. A 6/7 vote of the CityCouncil is required to adopt the attached ordinance as an urgency item. In accordance with Government Code Section 65858, the ordinance may be extendedfor up to and additional ten months and 15 days following a noticed public hearing within the next 45 days. Prior to the expiration of the initial extension, the ordinance may be extended a final time for up to an additional 12 months, for a total potential duration of 2 years. Consistent with Government Code Section 65858, prior to adoption of an interim ordinance the City Council must find that there is a current and immediate threat to the public health, safety, or welfare and that adoption of an interim ordinance would protect said public safety, health or welfare. Ten days prior to the expiration of the initial interim ordinance or any extension, the City Council is require to issue a writ report describing the measures taken to alleviate the condition that.led to the adoption of the interim ordinance. Following adoption of an interim ordinance under Section 65858, subsequent interim ordinances affecting,the same property are prohibited unless the subsequent ordinance is adopted to protect the public safety, health and welfare from an event, occurrence or set of circumstances different from those that led to the adoption of the prior interim ordinance. Agenda Revi w: 4_ City Attorne Finance Director _ City Manager / DISCUSSION Atahe'present timegas stations area permitted use in theC1 :and C2 zoning districts in the City. Gas stations are a conditional use in the BP, MUTA, and,MUIB zones. During the recent adoption process for the updated SmartCode, the Council adopted :modifications to the SmartCode to=allow gas stations'as a use subject to conditional use permit in the T5 zone within the boundaries of the Central Petaluma Specific Plan. Gas stations are a permitted use in the D4 district as outlined in the SmartCode. The Implementing Zoning Ordinance (IZO) does not currently contain any specific use criteria for gas station uses in Petaluma. The definition of a Fueling Station/Gas Station included in Section 24 of the IZO is "A retail business selling gasoline and/or other motor vehicle fuels, and related products. A gas station may also include a convenience"store, vehicle services, and restaurant facilities. The definition adopted in Section 9 of the 'SmartCode is "A retail business, selling gasoline or other motor vehicle fuels, and related products. A gas station may also includea convenience store, vehicle services, restaurant facilities, and/or trailer rental where authorized by the Conditional Use Permit for the gas station." At the request of the City Council, staff has brought forward:the attached temporary urgency ordinance under California Government Code Section 65858 that would prohibit the approval of any new gas station uses in the City for a period of 45-days. Theinterim ordinance could be extended beyond the initial 45-day period for a total duration of up to two years from the date of initial adoption of the interim ordinance. Such an ordinance'would preserve the status quo of existing gas stations in the City and provide time for the City to study the potential impacts that new gas stations uses may have on,nearby neighborhoods and other uses, options for regulating gas station uses in the City, and the practical and legal implications of the various regulatory options. City Council adoption of the urgency ordinance would be for the purpose of consideration and discussion regarding options for potential new legislation. Dependent upon the specific impacts that the City Council may wish to address,:legislative options may include: • Modification to the,IZO to prohibit new gas station uses in all zones; • Modification to the IZO to make new gas station uses subject to a CUP in all zones where they are currently permitted as of right; • Adoption of specific use criteria for new gas station uses (similar to the approach taken with Bed and Breakfast Inns); • Adoption of specific use criteria for new gas station uses when in proximity to sensitive receptors such as residential neighborhoods, schools, parks, etc. • Limitation onsize (number of pumps) of new gas station uses; and/or • Adoption of expanded definitions of gas station uses addressing large gas stations and small gas. stations (number of pumps), and identification of the appropriate entitlement process (e.g., whether a CUP or use criteria should apply) to address project specific impacts. Based on direction given by the Council, staff will research appropriate legislative options and associated legal and practical issues for the Council's consideration. It is unlikely that the necessary research,and analysis would be completed within the initial 45-day moratorium period and would likely necessitate ;an extension of the urgency' ordinance. However, staff would provide the Council with a status update concurrent with,any-future extension request. As noted above, Section 65858 of the Government Code requires that staff prepare for Council issuance at least 10 days prior to expiration of the interim ordinance a report on the measures taken to alleviate the conditions'that led to adoption of the interim ordinance. If the,Council 'enacts an interim ordinance temporarily prohibiting approval of new gas station uses, the law requires that staff continue to process any pending gas station applications or applications received during the moratorium period. Interim ordinances under section 65858 only temporarily suspend project approvals subject to a moratorium, but not project processing. If an interim ordinanceon new gas station uses is adopted, suchproposed new uses would not be brought before the decision,making body until such time as the interim ordinance is repealed (presumably upon new regulation of new gas station uses taking effect);,or has expired. ATTACHMENTS 1. Draft Urgency Ordinance 2. Public Comment letters ORDINANCE NO. AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PETALUMA IMPOSING A MORATORIUM ON THE ISSUANCE.OF ENTITLEMENTS FOR NEW GAS STATION USES IN THE CITY OF PETALUMA PURSUANT TO CALIFORNIA GOVERNMENT CODE SECTION 65858 AND OTHER APPLICABLE LAW WHEREAS, Article XI, Section 5 of the California Consiitution-provides that it shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulation in respect to municipal affairs subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to the general laws; and WHEREAS, Section 54 of Article VIII of the Petaluma Charter provides that the City, by and through its council and other officials shall have and may exercise all powers necessary or appropriate to the municipal corporation and the general welfare of its inhabitants, which are not prohibited by the constitution and which it would be competent for the charter to set forth particularly or specifically, and thespecification of any particular powers shall not beheld to be exclusive or any limitation on the general grant of powers; and WHEREAS, California Government Code Section 65858, subdivision (a) provides: that city legislative bodies may, to protect public safety, health and welfare, adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body is considering or studying or intends to study within a reasonable time; that adoption of such urgency measures requires a four-fifths vote of the legislative body; that such measures shall be of no effect 45 days from the date of adoption, and may be extended a maximum of two times and have a maximum total duration of 2 years; and WHEREAS, California.Government Code Section 65858, subdivision (c) provides: that legislative bodies may not adopt or extend such interim ordinances unless they contain findings that there is a current and immediate threat to the public health, safety, or welfare, and that the approval of additional entitlements would result in that threat to the public health, safety or welfare;and WHERAS, California Government Code Section 65858, subdivision (c) further provides that such interim ordinances that have the effect of denying approvals needed for the development of projects with a significant component of multifamily housing (as defined in California Government Code Section 65858, subdivisions(g) and (h)) may not be extended except upon written findings adopted by the legislative body, supported by substantial evidence on the record, that: (I.) the continued development of multifamily housing projects would have a significant, quantifiable, direct, and unavoidable impact on the public health or safety, based on 1 objective, identified written public health or safety standards, policies'or conditions as they existed on`the date the ordinance is adopted by the legislative.body; (2) the interim ordinance is necessary to mitigate or avoid such impact; and (3) there is no feasible alternative to satisfactorily mitigate or avoid such impact as well or better, with a less burdensome or restrictive effect, than the adoption of the proposed interim ordinance; and WHEREAS, California Government Code section 65858, subdivision (d), provides that ten days prior to the expiration of an interim ordinance or any extension adopted pursuant to that section, the legislative body shall issue a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance; and WHEREAS, residents of Maria Drive in the City have expressed concerns involving potential impacts and compatibility with existing residential uses regarding a new proposed gas station use to be located at the corner of South McDowell Boulevard and Maria Drive; and WHEREAS, the property located at South McDowell Boulevard and Maria Drive is currently zoned C-2, and new gas station uses are a permitted use in Zone C-2, subject to design review approval; and WHEREAS, design review approval pursuant to Section 24:010 of the City's Implementing Zoning Ordinance MO"), Ordinance no. 2300 N.C.S...adopted July 2, 2008, involves consideration of design and aesthetic features such as appropriate use of materials, architectural style, siting of structures on property, size, location and design of signs, and bulk and height of proposed structures, and not such considerations as compatibility of a use with adjacent or nearby uses or neighborhoods; and WHEREAS, currently in the City new gas station uses are permitted in the Cl, C2 and D4 zoning districts subject to design review, and are permitted in the BP, MU1A, MU1B and T5 zones subject to design reviewand issuance of a conditional use permit; and WHEREAS, there is no:information in the record supporting that this interim ordinance regarding new gas station uses in the City of Petaluma may have the effect of denying approvals needed for the development of projects with a significant component of multifamily housing as defined in California Government Code section 65858, subdivisions (g) and (h); and WHEREAS, pursuant to Section 15001 of the California Environmental Quality Act (CEQA) Guidelines, this ordinance is exempt from CEQA based on the following: (1) This ordinanceis not a project within the meaning of Section 15378 of the CEQA Guidelines, because it,has no potential for resulting in physical change in the environment, directly or ultimately; it prevents:changes in the environment related to new gas station use entitlements pending consideration of possible amendments to the City's Zoning Code or other land use regulations. 2 (2) This ordinance is categorically exempt from CEQA under Section 15308 of the CEQA Guidelines as.a regulatory action taken by the City pursuant to its police power and in accordance with Government Code Section 65858 to assure maintenance and protection of the environment pending the evaluation and possible adoption of contemplated local legislation, regulation and policies, which local legislation, if adopted, will be subject to CEQA requirements. (3) This ordinance is not subject to CEQA under the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. For the reasons set forth in subparagraphs (1) and (2), above, it can be seen with certainty that there is no possibility that this ordinance will have a significant effect on the environment. NOW THEREFORE, Be it ordained by the Council of the City of Petaluma as follows: Section 1. Recitals Made Findings. The above recitals are hereby declared to be true and correct and findings of the City Council of the City of Petaluma. Section 2. Moratorium Imposed. A moratorium is hereby imposed on the issuance of entitlements for new gas station uses in the City of Petaluma in accordance with the City's powers under Article XI, Section 5 of the California Constitution, Article VII, Section 54, of the City Charter, and California Government Code Section 65858 and other applicable law, as follows: A. Scope Applications for land use or development entitlements for new gas station uses in the City of Petaluma not lawfully existing as of the effective date of this ordinance may not be approved during the moratorium period. B. Statutory Findings and Purpose. This ordinance is declared to be an interim ordinance as defined under California Government Code section 65858. This ordinance is deemed necessary for the following reasons: 1. The purpose,of this ordinance is to protect the public safety, health, and welfare from a current and immediate threat posed by the issuance of land use or development entitlements for new gas station uses that could result in in negative health, safety or other impacts on adjacent or nearby existing uses or neighborhoods with which new gas station uses may not be compatible, absent adequate local regulation addressing compatibility of new gas station uses with adjacent or nearby existing uses or neighborhoods. 2. New gas station uses have been and/or may be proposed for construction in the City, and unless a moratorium is imposed on the issuance of land use or development entitlements for new gas station uses in the City; such development may result negative health, 3 safety or other impacts on adjacent ornearbyexisting uses ormeighborhoods With which`new;gas station uses'may not be compatible,absent adequate local;regulation addressingicompatibility'of new gas'station uses'with adjacent or nearby existing uses ori neighborhoods. This is particularly true,regarding Cityzoning.districts where currently new gas stations are permitted uses"(CI, C2 and D4 zones) and approval of applications for such proposed new Uses is ministerial except for regarding design review, which rediew:i`s limited to aesthetic matters and generally does not-take into account such considerations as compatibility of neighboring uses. 3. It is, therefore, necessary to impose a moratorium on_issuance of land use or development entitlements for new gas station uses in the City to provide time to evaluate and adopt legislation,,,guidelines,and/or policies as required to address negative health,,safety or other impacts of proposed new gas station uses on adjacentor nearby existing uses or neighborhoods. C. Applicability,. This ordinance applies to`approval of applications:for land use or development entitlements for new gas station uses in the City that are not in lawful existence and/or that have not.received final approvalas Of the effective date of this ordinance. This ordinance has no effect on the processing of applicationsfor land use or development entitlementsfor new gas station uses in the City, except that suchrapplications may not be approved,during the moratorium period. Subject to the moratoriurn oh approval of applications forland'use or development entitlements for new gas station uses, applications for such entitlements Will continue to be processed during thernoratoritun period in accordance with applicable law. Section 3. Severability. If any provision of theordinance or the application thereofto any person or circumstance is held invalid,the.remainderof the ordinance, including the application of-such part or provision to other persons or eircumstances'shall not be affected thereby and.shallcontinue in full force and effect. To this end, provisions of this ordinance are severable. The City Council hereby declares that it would have passedeaeh section, subsection, subdivision,paragraph, sentence, clause, or phrase hereof irrespectiveof the fact that any one or inoresections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable. Section 4. Effective Date and Duration This ordinance shall become effective.immediately upon passage and adoption if passed and adopted byatleast four-fifths vote ofthe City Council and shall be in,effectfor 45 days there from unless extendedbythe Cityin accordance with Government Code Section.65858. 4 7 • EED Crump, Katie RE�a IV From: lenny@goodfoodsource.com � 9' A4 406 Sent Sunday, August 18, 2013 3:52 PM I g 2013 To: citymgr AUG 19 2013 Cc: CDD;Alverde, Ingrid Subject: NO TRUCK STOP ON MCDOWELL COMMUNITY DEVELOPMENT DEPARTMENT Hello City Managers, My husband and I live at 337 Cortez Drive, just one street off of McDowell, across from Safeway. It is my understanding the city is considering allowing a 16 pump fueling station to come in just across from our home. I have many concerns but mainly feel it is NOT needed. We have a Chevron on the SE corner (where I buy my gas) and another on the NW corner. I have NEVER had to Wait-to fuel up for gas. We are one of the mainly folks in the country that bought at the top of the market. We are already UPSIDE down. The noise, smells; and safety hazards of 16 pumps concern me very much and how this will effect the value of our home. MOST IMPORTANTLY... this plan will make the absolute mess of what you already have going on at McDowell and East Washington worse. Your energies should be into making the Washington Street/McDowell intersection easier to get through on a daily basis. We never use Washington bridge anymore and use the Caulfield bridge even thought we are not even one block from Washington. It can take me 30 minutes sometimes to get from the fairgrounds to my house. RIDICULOUS! Please don't take value out of the home we already have.., the economy has already been hard on us. We don't need to be hit by our own city too. We adore Petaluma and chose to buy our first home here almost 8 years ago. My husband and I arebothfrom the Midwest. We have remodeled our home and are inspiring our neighbors to fix up these great 1950's mid-century modern homes. We are the type of good people you want to have in Petaluma. The word "local" is very important to us and we hope that our voice matters. Thank you, Lenny Moonsammy 1 r~ r— Jonckheer, Elizabeth From: Hines, Heather Sent: Monday,August 19, 2013 7:46 AM To: Johckheer, Elizabeth Subject: Fwd: NO TRUCK STOP ON MCDOWELL Public comment letter for Safeway file Sent from my iPhone Begin forwarded message: From: CDD <CDD@ci.petaluma.ca.us> Date: August 19, 2013, 7:18:41 AM PDT To: petalumaplanning <petalumaplanning@a ci.petaluma.ca.us>, "Hines, Heather" <HHINES @ci.petaluma.ca.us> Subject: FW: NO TRUCK STOP ON MCDOWELL From: lenny@doodfoodsource.com,[ma ilto:len ny@goodfoodsou rce:com] Sent: Sunday, August 18, 2013.3:52 PM To: citymgr Cc: CDD; Alverde, Ingrid Subject: NO TRUCK STOP ON MCDOWELL Hello City Managers, My husband and I live at 337 Cortez Drive, just one street off of McDowell, across from Safeway. It is my understanding the city is considering allowing a 16 pump fueling station to come in just across from our home. I have many concerns-but.mainly feel it is NOT needed. We have a Chevron on the SE corner (where I buy my gas) and another on the NW corner. I have NEVER had to'wait to fuel up for gas. We are one of the mainly folks in the country that bought at the.top of the market. We are already UPSIDE down.The noise, smells, and safety hazards of 16 pumps concern me very much and how this will effect'the.value of our home. MOST IMPORTANTLY... this plan will make the absolute mess of what you already have going on at McDowell and East Washington worse. Your energies should be into making the Washington Street/McDowell intersection easier to get through on a daily basis. We never use Washington bridge anymore and use the Caulfield bridge even thought we are not even one block from Washington. It can take me 30 minutes sometimes to get from the fairgrounds to my house. RIDICULOUS! Please don't take value out of the home we already have... the economy has already been hard on us. We don't need to be hit by our own city too. We adore Petaluma and chose to buy our first home here almost 8 years ago. My husband and I are both from the MidWest. We have remodeled our home and are inspiring our neighbors to fix up these great 1950's mid-century modern homes. We are the type of good people you want to have in Petaluma. The word "local" is very important to us and we hope that our voice matters. Thank you, Lenny Moonsammy 1 • J'onckheer, Elizabeth From: Hines,:Heather Sent:- Tuesday,,August 20; 2013 5:32-"PM To:. smith.tyb@gmail:com Cc: lohckheer,.Elizabeth Subject: RE: Citizen Concern of Development of Gas Station. Mr: Smith, Safeway has submitted an application.for Site Plan and Architectural Review for a fuel center at the corner of McDowell and Maria in the Washington Square Shopping Center. The project:is being reviewed internally'for completeness. Itis not yet scheduled There is a project,file with all submitted plans and exhibits that is available at City Hall in the Planning Division. You are welcome to review the file at the-counter, which is open Monday through Thursday from 8:00 a.m. to 12:00 p.m. and 1:00 p.m. to 5:00 p.m. Elizabeth Jonckheer is the planner working;onathe project and she will also be able to answer specific questions you have about the application. I'have cc'd her to this email. Please let me know if l can be of further assistance. Heather HEATHER HINES Planning Manager T: 707.778.4316 E: hhinesCaci.petaluma.ca.us City of Petaluma Community Development - Planning Division 11 English St Petaluma, CA 94952 For faster response to planning and zoning questions, please e-mail us at petalumaplanning@ci.oetaluma.ca.us From: CDD Sent: Tuesday, August 20, 2013'3:05 PM To: Hines, Heather; petalumaplanning Subject: FW: Citizen Concern of Development of Gas Station From: Tyler Smith {mailto:smith.tvb@gmail.com] Sent: Tuesday, August20, 2013 3:01 PM To: CDD Subject: Citizen Concern Of Development of Gas Station Dear Sir or Madam; 1 10 • My neighbor told me that the Safeway on McDowell is building a Gas Station and I don't really like that idea. I tried calling you today but didn't want to leave a message. How do I get a copy of the Application for a Conditional User Permit? Can you send that back to me? Thank you, Tyler Smith 2 /( • Jonckheer, Elizabeth From: Hill, Ellen Sent: Wednesday,August 21, 2013 9:25 AM. To: Jonckheer, Elizabeth Subject: FW: Citizen Concern of Development of Gas Station Ellen Hill Assistant Planner T: 707.778.4472 E: ehill@ci.petaluma.ca.us City of Petaluma Community Development- Planning Division 11 English St Petaluma, CA 94952 From: CDD Sent: Tuesday, August 20, 2013 3:05 PM To: Hines, Heather; petalumaplanning Subject: FW: Citizen Concern of Development of Gas Station From: Tyler Smith fmailto:smith.tvb@cimail.com] Sent: Tuesday, August 20, 2013 3:01 PM To: CDD Subject: Citizen Concern of Development of Gas Station Dear Sir or Madam; My neighbor told me that the Safeway on McDowell is building a Gas Station and I don't really like that idea. I tried calling you today but didn't want to leave a message. How do I get a copy of the Application for a Conditional User Permit? Can you send that'back to me? Thank you, Tyler Smith 1 / RECEIVED SEP 042013 To whom it may concern, MAYOR SEP ncul It has come to my attention that there has been a proposition put into place by the city of Petaluma to install a 16 pump fueling station, located at Maria Drive and South McDowell Boulevard.As a resident of this town, I have become aware of the issues this will cause:and am strongly opposed to the continuing of this project. Primarily, the issues of heaithand public safety are the most significant concerns we as residents.face. With continuous traffic flow through this area, often backed up beginning from the overpass on East Washington Street, the city has neglected to take into consideration th&space needed for this project and the congestion it will cause, along with 24 hours of constant sound, increased with the installment of tanks available for trucks, going in and out of the gas station, disturbing the residents' homes around the complex. With that said, a possible twenty four hour service station will cause an array of completely unsupported noise disturbances throughout the day, disturbing school practices nearby,and will urge residents to boycott further, havingalready been displeased with the amount of noise they had to have dealt with during the night, with the constructionof the new Safeway building and eventually the Target shopping center, which along with its development brought an increased amount of traffic to the East side of town, with a failed attempt at the development of the entrance to and out of the shopping center, both on foot from the pedestrian walkway over the freeway, as well as traffic via vehicles.Along with the concern of increased commuter traffic is the concern of foot traffic and the dangers this station will cause. Placed in front of a preschool and elementary school, both with-limited parking, on a main intersection, children are often crossing and are unseen by negligent drivers. The new apartment complex on Maria Drive is simply a few hundred feet away from the gas station.A major bus stop is located just down the,street in front of Safeway and is often congested throughout the day as itis. With many elderly residents relying on public transit as their means of transportation, daily, this stationposes a.great threat to these residents' daily plans, many of which ride the Petaluma transit,system to doctors appointments or the pharmacy.Along with the concern of public danger, in the case of the possibility of a crime happening at the station, all surrounding schools would be put on a lockdown,yet being within one hundred feet from the establishment, it is likely the alert will be sent out too late for McDowell Elementary, North Bay Child Care, and the 4C's, where the suspect.can easily hide out or arrive on school property. Itis simply dangerous for this station to be built for every resident of this town.As a resident, I pay taxes that support my town and everything it stands for. Yet, I cannot support my own town with taxes if my property must be reappraised, guaranteed to lower the amount I will have to pay to Petaluma.As a resident of this town, one who has supported this town with the belief that my voice wouldbe heard, I am insistently opposed to this project and will see that my voice is heard in making this critical decision. I strongly urge:you to stop the continuation of this project, onbehalf of the city of Petaluma. React and reject this proposition. �I/ n3Se 00e COMMUNITY DEVELOPMENT DEPARTMENT (no aiettes3 l3 Jonckheer; Elizabeth From: Nines,;Heather Sent: Wednesday, September 11, 2013 3:49 PM To: Jonckheer, Elizabeth Subject: Fwd: proposed gas station For the file Sent from my iPhone Begin forwarded message: From: Michael Healy <mthealy@sbcglobal.net> Date: September 11, 2013, 3:47:14.PM PDT To: Heather Hines <hhines@ci.petaluma.ca.us> Subject: Fw: proposed gas station Reply-To: Michael Healy <mthealy@,sbcglobal.net> Just FYI. Mike Forwarded Message From: Petaluma Child Development.Ctr<petaluma(&sonoma4Cs.orq> To: mthealy(c�sbcglobal.net Sent: Wednesday, September 11, 2013 12:48 PM Subject: proposed gas station Dear Mike Healy: I am the Director of the Petaluma Child Development Center onthe corner of Mc Dowell Blvd and Maria Drive. We serve 50 preschoolchildren from low income, working families every week day from 7am to 5:30pm. I am very concerned about the proposed gas station by Safeway. We are directly across'the,street..from'the proposed site and I am very upset about the possibility of this project going through. I have many serious concerns about this project. First of all is the health and safety of the children. Gasoline fumes will be emitted right across the street from our school and play yard. I was under the understanding that gasoline stations could not be build within 1000 feet of a school. We at Petaluma CDC, as well as Mc Dowell Elementary School and North Bay Children's Center are all much closer than that. We have many children attending that suffer from asthma, and this proposal is of great concern to me in this respect. They will be effected daily by the fumes emitted, as we are down wind from this site. I also understand that many semi trucks will be coming here day and night. Polution from their exhausts also will permeate the air in this area. Again, not safe for the children nor the staff members. Second, I am concernedabout safety of the children, family members and staff due to the increased traffic on Maria. Drive. The street is very narrow, and has already been hugely 1 .f- C impactedby thet opening of'the pew Safeway Store itself Many; many more cars drive down Maria now, and go very fast:andwithout�regard.for pedestrians. With the city bus stop being moved to the Middle.of the^block last year, now there is added congestion with the buses pulling out from their'stop.'They'pull out very fast, and many times"3 are in a row`together: Traffic is congested at the exit;from the parking:lot;onto Maria as well.Now there,is the proposed apartment building further down Maria that will add even more cars and congestion to this corner. Maria Drive on this end ofthe block was never built to handle this much traffic. In fact when it was built, Maria was a dead end at the ball park area. There is also the concern of adding, even more traffic and semi trucks to the horrible congestion on East Washington Street and Mc Dowell Blvd. This problem is already out of control and does not need any more stress. Thirdly, there is already limited parking in front of the Center for parents to drop off and pick up their children. Many parents are forced to park across the street in the shopping center parking lot to be able to get their child. Without this available parking, there will be much difficulty in picking up the children. Add that to the extra traffic concerns and this is a disaster waiting to happen. Because of these reasons, I do`not want this gas station to be permitted to be built. Please take these concerns seriously. Do not allow this project to go through. I want to personally invite you to come to the Center and meet with me and actually seethe dangers involved if the gas station were,given the okay to build there. Please call or email me to set a time that you,can comeandlsee first hand what happens on„this corner. I know that you are concerned about the young citizens of our community. Please support us in rejecting this project. I ask for you to not support the proposed,gas station project here. Sincerely, Linda Dusek Linda Dusek Site Supervisor Petaluma Child Development Center' (Cs) 401 S. Mc Dowell Blvd. Petaluma, Ca 94954 707-763-4990 2 /5 Jonckheer,;Elizabeth, From: Cindy Learned <clearned@sonicnet> Sent: Wednesday,;September 11,;2013 5:49 AM, To: Johckheer, Elizabeth Subject: proposed gas station on Maria Dr. Dear Elizabeth, I am a retired teacher and I live in Petaluma. My heart is always with the safety of the children, the teachers and the educationalsystem. I am shocked that the City of Petaluma is considering a gas station right next to a day care, a school, and a play field where children play sports. Please consider all the gas fumes and all the congestion that will be in this area where mothers and fathers are walking their children torschool. Also, there are well established'and'thriving:businesses where the gas station would be built. Are you just going to throw them away because a "Big Giant"wants its way? I know the owner of the property;wants as much money as he can get and I'know that Safeway wants to be able to get more and more money. Greed should not determine,the outcome-safety, quality of air, and congestion (the possibility of more and more accidents happening right by the schools) should be the factor. Lately, I have been losing more and more faith in the town of Petaluma. I hope you will tell Safeway to find a better place and a safer place for their gas station. I AM STRONGLY AGAINST THIS PROPOSAL. Thank you, Cynthia Learned 605 Jonas Ln. Petaluma, CA 94952 1 FULCRUM 13""'""' SACRAMENTr4'95814 r^- 916/,383,32, tulcru r,property:com 1/15/14 The Honorable,David Glass and"City Council 11 English Street Petaluma, CA 94952 RE: Proposed Safeway Fueling Station i ., Dear Mayor Glass and Council, • Fulcrum Properties, a Northern California-based commercial,developer and owner of the Washington Square Shopping Center, has earned an award-winning reputation for renovating, revitalizing and developing commercial properties throughout Northern California. Some of our most robust:projects; and greatestaccomplishments, are redevelopments — properties whose assets were shrouded by age, poor maintenance or dated architecture. It is with our mission in mind that we,decided"to purchase the Washington Square Shopping Center in 19XX The business we are in is very competitive and it requires constant investment,and improvement in order to continue to attract shoppers and, in turn, the finest tenants. With the,goal of continuing to make Washington Square a viable place to do business for current and future tenants, I write to you today in support of Safeway's proposed fueling station— proposed for the corner of South McDowell Blvd. and Maria Drive: This fueling station would make this property far more competitive with surrounding development by enhancing our tenant mix, while still being compatiblewith neighboring properties. As I amsure you:are well aware, the structure currently sittingion the corner of South McDowell and Maria was originally its own complex, with independent ingresses and egresses. When that complex was merged into the;greaterWashington Square Shopping Center, it was impossible to fully integrate it into the full shopping experience due to the odd vehicular and pedestrian circulation pattern., This improper design provided customers with poor access and parking, leading to inconsistent traffic flows that impactedboth internal and external traffic, as well as a difficulty for tenants to do consistent business and for Fulcrum to find consistent tenants. Safeway's^site 1plan will correct these problems, as they have designed a plan with vastly improved ingress and egress to Minimize the traffic and stacking that could impede:both internal and external traffic flow. Put simply, we strongly believe that a fully integrated fueling station will provide far better`traffic':flow than keeping the existing structure in place. Fulcrum would not supporta poorly designed project, as tenants would be-sure to move to other destinations if they were adversely.impacted. Shoppers require easy access to the shopping center and parking within close proximity to storefronts. In today's highly competitive retail environment, congested streets and limited parking will only encourage tenants to move and 17 customersao shop elsewhere. In.ourView Safeway has"designe&aistate-of-the-art;fueling center that addresses all of these concerns. We are pleased to support Safeway, a responsible.corporate citizen that has served Petaluma since 1929,in their endeavor. The benefits of a combined Safeway grocery store and fueling station is critical to the economic viability of the shopping center and its ability to serve the needs of the Petaluma community. If you have any questions regarding the importance of this project,please feel free to contact me. I would be more than pleased,to meet with you. Thank you for your consideration. Sincerely, vy. � Mar Friedman Pre dent Fulcrum CC: Heather Hines, City Planner �S Jonckheer, Elizabeth From: Jonckheer„Elizabeth Sent Thursday;January 30, 2014 10:52 AM To: 'madamesaslow@gmail.com' Subject: RE: New Safeway Gas Station Hi Adriann, Here is.my contact information: Elizabeth Gordon Jonckheer Senior Planner T: 707.778.4317 M: 415.637.2867 E: elonckheer(o�ci.petaluma.ca.us M,Tu,W City of Petaluma Community Development - Planning Division 11 English St Petaluma, CA 94952 From: Adriann Saslow [mailto:madamesaslow©gmail.com] Sent: Wednesday, January 29, 2014 9:25 AM To: - City Clerk Subject: New Safeway Gas Station Hello, my name is Adriann Saslow. I live at 1328 McKenzie Ave in Petaluma,right across the street from the Safeway Gas Station that's going to be built. Where can I find out more about the proposed building? Is there going'.to be a sound wall? My husband and I are really concerned about the noise, light, and smell right next to a residential and school area. Thank you, Adriann Saslow 707-889-7815 Visit me! My NEW Webpage!- www.MadameSaslowsCurio.com My Facebook page- www.facebook.com/madamesaslowscurio My Gallery= madelocalmarketplace.com 531 5th Street, Santa Rosa 707 583-7667 1 l) • :/•, 2 _ Crump, Katie From: Cooper, Claire Sent: Friday, January 31, 2014 10:52 AM PEJO To: Crump; Katie 32014 Cc: Mattioli, Allison Subject: FW: Safeway Gas From: Bill Hosking [mailto:mavai2001Ca�Vahoo.com] Sent: Thursday, January 30, 2014 6:06 PM • To: - City Clerk Subject: Safeway Gas A vote against allowing Safeway to put a gas station, is a vote for higher priced gas in Petaluma, and would not be good for the average citizen. Thank you Bill Hosking ri I. c2/ C ,1onckleer, Elizabeth From: Hines, Heather 'Sent: Wednesday, February 19, 2014 8:23 AM To: Jontkheer, Elizabeth Subject: FW: Safeway Gas Station in Petaluma, CA For the project file From: Mattioli,,Allison Sent: Wednesday, February 19, 2014 7:47 AM. To: Hines, Heather Cc: Cooper, Claire Subject FW: Safeway Gas Station in Petaluma,,CA From: Cathy Berg lmailto:cathvberg109@yahoocom] Sent: Tuesday, February 18, 2014"8:50 PM To: - City Clerk Cc: Petaluma©safewavfuel.com Subject: Safeway Gas Station in Petaluma, CA My husband and I have lived in Petaluma since 1975. We are retired, and yes, I want to save up to a $1 per gallon on gas. Please approve the Safeway gas station,so we don't have to always get gas at Costco in Rohnert Park. Keep the tax revenue here for public safety, parks and road improvements. Please don't ban Safeway gas!!!! Thank you, Cathy Berg Petaluma resident since 1975 t a Jonckheer, Elizabeth From: Hines, Heather Sent: Wednesday,,February19, 2014,8:33 AM To: Jonckheer; Elizabeth Subject: FW: Safeway gas station For the project file. From: Mattioli, Allison Sent: Wednesday, February 19, 2014:8:31 AM To: Hines, Heather Cc: Cooper, Claire Subject: FW: Safeway gas station From: zioadeedoodah24@comcast.net iriailto:zipadeedoodah24Cacomcast.net] Sent: Wednesday, February 19, 2014 8:25 AM To: - City Clerk Subject: Safeway gas station I fully support the gas station proposed by Safeway. It is high time that east side residents have some competitive gas stations. While there are some stations on East Washington street (which is still technically the east side) they are not all that convenient. If you look at the east side from McDowell to Ely and Corona to Baywood Chevron is the only game in town. We could certainly use another gas station. Elaine Caldwell t 23 Jonckheer, Elizabeth From: Hines; Heather Sent: Wednesday, February 19, 2014;10:33 AM To: lonckheer, Elizabeth Subject: Fwd: safeway gas For project file Sent from my iPhone Begin forwarded message: From: "Cooper, Claire" <ccooper@ci.petaluma.ca.us> Date: February 19, 2014 at 10:16:03 AM PST To: "Hines, Heather" <HHINES@ci.petaluma.ca.us> Subject: FW: safeway gas From: dick vartanian [mailto:dvpiano@dmail.com] Sent: Tuesday, February 18, 2014 2:26 PM To: - City Clerk Subject: safeway gas I wish to state my support for this Safeway program R. Vartanian 1506 Florence Way 415-251-3395 1 y Jonckheer, Elizabeth From: Hines, Heather Sent Thursday, February"20, 2014 8:30,AM To: Jonckheer, Elizabeth Subject: Fwd: Safeway's excellent proposal For project file Sent from my iPhone Begin forwarded message: From:."Cooper, Claire" <ccooper@ci.petaluma.ca.us> Date: February 20, 2014 at 7:43:05 AM PST To: "Hines, Heather" <HHFNES@ci:petaluma.ca.us> Cc: "Mattioli, Allison" <amattioli(u�ci.petaluma.ca.us> Subject: FW: Safeway's excellent proposal Original Message From: lynnpieriyoung@gmail.com imailto:lynnpieriyoung@gmail.com] Sent: Wednesday, February 19,,2014 7:12 PM To: - City Clerk Subject: Safeway's excellent proposal Dear City of PetalumaBoard-andMayor, My wife and.I wish to register our firm support for Safeway's excellent-proposal to open a gas station here in our beloved borne town of Petaluma. We are commuters toMarinand Santa Rosa and currently purchase our fuel for our cars at the Safeway in Ignacio and the Costco in Rohnert Park. We would much prefer to,have:our dollars remain here in Petaluma. Please give this proposal serious consideration ! Our best regards, Paul and Lynn Young Sent from my iPad 1 as ATTORNEYS AT LAW 333 BUSH-STREET, 30TH FLOOR SAN FRANCISCO, CALIFORNIA 94104-2834 wana./edgmicklaw.com 415781.7900 phone 415.781.2635 fax Sedg ck11P Matthew D. Francois mattbew,francois@sedswicklaw.rom l (415) 627-3628 February 24, 2014 Via Electronic Mail Honorable David Glass, Mayor and Members of the Petaluma City Council • City of Petaluma 11 English Street Petaluma, CA 94952 Dear Mayor Glass and Members of the City Council: • We are writing on behalf of our client, Safeway Inc. ("Safeway") in response to the proposal by Councilmember Healy to adopt an-urgency.ordinance ("Urgency Ordinance") to prohibit Safeway's proposed fuel center ("Project") in the existing Washington Square Shopping Center("Shopping Center"). Although the Project is an allowed use under the City's,Implementing Zoning Ordinance ("IZO") and would havesubstantial economic, safety and other-benefits, Councilmember Healy recently suggested adopting a moratorium-to block the Project based on concerns that it would compete with nearby gas stations and'that the City lacked discretionary approval authority over it. The City Council is scheduled to consider this item at:its March 3, 2014 hearing.' Because the City already has discretionary approval authority over the,design aspects of the Project and because the Urgency Ordinance is discriminatory and thus unlawful, we respectfully urge the City Council to reject it. In Part A below, we provide-an overview of the Project. In Part B, we summarize the proposed Urgency Ordinance as described by Councilmember Healy at the January 27, 2014 City Council hearing. In Part C,we summarize the existing discretionary approval authority the City has over the Project. In Part,D, we outline the statutory and constitutional reasons that preclude the CityCouncil from adopting the Urgency Ordinance and/or from applying the Urgency Ordinance to the Project. Finally, in Part E, we discuss the City's independent duty to process and act on the Project. A. Project Background The Shopping Center is anchored by a new, improved and expanded Safeway grocery store and related retail uses. It ismanaged by Fulcrum Properties, a well-known commercial property management firm We understand that the Staff Report for this matter will not be available until at least February 27, 2014. We are submitting our letter now so that the City staff has the benefit of our views on this matter while it prepares the Staff Report and can urge the City Council to.act appropriately and legally when considering the Urgency Ordinance. Once the Staff Report is released,we may well have comments on it, and if so,will submit those comments through separate correspondence. DOCS/I 8427526v3 Honorable David Glass;,Mayor' and Members of the Petaluma;City Council Februaryl'24 2014 Page 2 that has earned an award winning-reputation for renovating, revitalizing and developing commercial properties throughout Northern California ' Fulcrum has.indicated that the Project is critical to the economic viability of the Shopping Center.' Safeway proposes to construct afuel center in the Shopping Center.-at-the corner of McDowell Boulevard and Maria Lane.(the "Property"). The Project will belocated in and replace space formerly occupied by commercial tenants of the Shopping Center. The Project will,include underground fuel tanks and 8 fuel dispensers'(16fueling positions) under a 62 foot by 9 foot canopy with an approximately 697 square foot retail store kiosk.° In addition to the fuel pumps,the Project will include a charging station for electrically-powered vehicles. The Project will integrate the Property with the rest of the Shopping Center from a traffic and circulation standpoint. It will provide efficient and organized on-site traffic flow through one-way entry and exit pavement striping. The Project was designed with adequate queuing space to accommodate Project demand, and during peak periods.fuel ambassadors will be employed'to direct arriving vehicles to vacant fuel pumps. The Property has.a General Plan land use designation of CommunityCorrtmercial. "This category includes shopping centers and'commercial districts, including regionally-oriented'centers." General Plan,p. 1-7. While the Community Commercial land use designation would allow development at a floor area ratio ("FAR") of up to L2, the Project will havea FAR of..02.5 The Property is zoned Commercial 2,("C2") pursuant to the IZO. The C2 zone is applied to existing community and regional shopping•center sites. IZO § 4.020.K. It is consistent with and implements the Community Commercial land,use classification of the General Plan„ Id. A gas station is a permitted use in the C2 zoning district as are'general retail uses, grocery stores and restaurants. IZO Table 4.4. The IZO creates no distinction between a fueling center or station and a gas station, defining "fueling station/gas station" as "[a] retailbusiness:selling gasoline and/or othermotor vehicle fuels and related products." IZO §`27.020.6 It further'states that a gas station"may-also include a convenience store, vehicle services, and restaurant facilities:" Id.' On July 25, 2013,Safeway submitted an application to the City for.Site Plan and Architectural Review ("SPAR")for the Project (the"Application"). In accordance with IZO § 24.010.6:4, the Project plans were prepared by Stantec, a recognized professional architectural firm. .In an August 23,2013 letter, City staff deemed the Application incomplete citing the need to complete,,among others, traffic, air, and noise studies. Although the requested items technically are outside the scope of matters needed for a 2 The.Shopping Center is owned by Washington Square Associates,LLC("Owners"). 3 See,January 15,2014 letter from Mark Friedman,,President of Fulcrum,to Mayor Glass and Members of the City Council. ° Some opponents have incorrectly characterized the Project as a'megagasstationor branded it`as the largest in town. Yet, with 8 pumps,the Project is a fairlytypical sized gas stationand indeed no larger than the.Chevron station on Lakeville Street. 5 Even including the Project's fuelcanopy,which is not a building,only increases the Project FAR to 0.2. 6 There,appears to be some confusion about a perceived,distinction between a gas stationand a fuel center. Unlike fuel centers,somegas.stations also provide:forserviceof vehicles. Other than that minor difference,the two,land uses are identical and indistinguishable. 7' See also IZO Table 11.1'stating'that the parking requirements for"fueling/gas stations"are one and the same. • S Honorable David Glass, Mayor and Members of the Petaluma City Council.. Febniary24,2014 Page 3, complete SPAR application,' Safeway nonetheless prepared and provided the requested information to City staff. In conjunction with the Application, several environmental studies were prepared by expert consultants to assess the Project's potential environmental impacts. Based on the results of those studies, all potential environmental impacts will be less than significant with implementation of the Project. In particular, the Project will not result in any significant traffic,' air quality or noise impacts. Safeway spent tens of thousands of dollars completing the studies requestedby the City and resubmitted the Application on January 14, 2014: On February 13, 2014, the City sent a letter to Safeway stating that the Application was incomplete based on the need for additional information pertaining to certain design elements and traffic issues. Although Safeway disputes staffs determination that the Application remains incomplete, Safeway plans to provide the requested information and then reasonably expects the City to accept the Application as complete. In addition to providing a cost-effective location for many City residents to purchase gas, the Project will generate approximately $400;000 per year in new tax revenues for the City. It will also address an existing safety problem caused by inadequate sight distances at the-Shopping Center driveway on Maria Drive by providing a dedicated tum-out area for buses that park to the:east of that driveway. These financial and safety benefits will only occur with the Project. B. The proposed Urgency Ordinance At the January 27, 2014 City Council hearing, in the context of a.hearing on a completely different project, Councilmember Healy firstraised the prospect of adopting the Urgency Ordinance to block the Safeway Project. At that hearing, Healy stated that the Urgency Ordinance'would consist of two parts: (1) a temporary urgency moratorium on the processing of applications for gas stations in the City10 and (2) consideration of legislation to force this type of development to:come before the City Council for review. Itis our understanding that if enacted.the Urgency Ordinance would be in effect for 45 days at which point the City Council could consider whether to extend it at a subsequent noticed public hearing. Despite the plain and unambiguous terms of the IZO equating gas stationsand fuel centers, Healy suggested that one type of legislation that may be appropriate is to "clarify'and confirm" that a gas station does not include a fuel center under common ownership with a retail business where gas may be and is sold below cost as a loss leader or as a reward or incentive for patronizing a retail business." We 8 See,e.g.,IZO §.24.010.D(notingthat a SPAR application must be accompanied by such maps and supporting documents, including'a statement of the colors to be used,the types of materials proposed to be used,site plans,all elevations and other drawings). 9 In addition to traffic levels of service at nearby intersections,the traffic study assessed pedestrian safety, queuing and transit accessibility. The study concludes that the Project will result in no adverse impacts in any of these topic areas. 1° A moratorium prohibiting the processing of development applications,such as the one suggested by Councilmember Healy, is not legal. See,e.g.;Building Industry Foundation Legal Defense Foundation v.Superior Court,72 Cal.App.4'h 1410(1999)discussed in Section E, infra. Councilmember Healy appears to believe that the local planning and zoning process is the appropriate forum to attempt to address unfair,competitionclaims. Because such matters are instead properly addressed by the courts,an attempt by a legislative body, like the City Council,to.address.it raises obvious separation of powers.concerns. Moreover,where such claims have been brought by competing gas station owners, Safeway has prevailed. For instance, in Dixon Gas Club, LLC v. cD Honorable David Glass, Mayor and Members of the Petaluma City Council February 24,2014 Page 4 understand that staff will present several other moratorium options to the City Council to consider." Yet, the only option that would pass legal muster is the no action alternative. As described in more detail below, the Urgency Ordinance is unnecessary because the City already has discretionary approval authority over the Project and adoption of the Urgency Ordinance would be legally infirm for myriad, independent reasons. As such, we urge the City Council to deny the Urgency Ordinance. C. The Urgency Ordinance is unnecessary since the City already has discretionary approval authority over the Project. Neither the Urgency Ordinance nor further land use regulations.is needed since the City's existing codes and regulations give the City appropriate discretionary approval authority over the Project. The Project is a permitted use in the C2 zoning district. As such, and as is common, the City has discretionary approval over the aesthetics and design of the Project. Any proposed commercial development is subject to the City's SPAR process. IZO § 24.010.A. "The purpose of site plan and architectural approval is to secure compliance with the [IZO] and to promote the orderly and harmonious development of the City. . .." IZO § 24.010.A. In reviewing a SPAR application, the City is to consider the overall design of the project, site landscaping features, and circulation flow and access. IZO § 24.010.G. The Planning Commission may approve, conditionally approve or deny an application.for SPAR. IZO § 24.010.G. The Commission's action, in turn, can be appealed to the City Council. IZO §§ 24.010.H, 24.070.B.5. As shown by the submitted Project plans,the fuel center is compatible both in architectural style and design with the Shopping Center. The proposed retail kiosk includes window fenestration and trellis elements on three sides of the building. Landscaping of the site will be provided in accordance with City standards, including the addition of a landscape planter on the northern boundary of the site to screen the adjacent bank building. Since the City's existing codes and regulations already and appropriately give the City discretionary approval authority over the design aspects of the Project, no further regulation is needed. Indeed, the only retail uses needing further discretionary approvals in the C2 zone are adult-oriented businesses and bars/nightclubs. IZO Table 4.4. The potential issues raised by such land uses obviously are nothing like the relatively benign issues posed by the proposed fuel center Project, and those issues are appropriately addressed through the City's SPAR process. Because the City already has discretionary approval authority over the Project, adoption of the Urgency Ordinance and further City regulations is entirely unnecessary. Safeway, Inc.,Alameda County Superior Court Case No.VG08-387771 (2013),the trial court rejected the claim of a competing gas station owner in Dixon(Yolo County)that Safeway had a predatory intent with respect to diverting sales or otherwise driving customers away from competing gas retailers. 12 "Council considers moratorium on gas stations,"Petaluma Argus-Courier,January 30,2014. e Honorable David Glass; Mayor and Members of the(Petaluma City Council February.24, 2014 Page 5 D. By law, the City is precluded from adopting the Urgency Ordinance and/or from applying it to the Project. 1. Adoption-of the Urgency Ordinance would violate Government Code Section 65858: • If a local agency is considering making changes to its planning or zoning laws, and if necessary to protect the public health, safety,,and welfare, the legislative body of that agency, by a vote of four-fifths of its members, may adopt as anurgency measure an interim ordinance. Gov. Code § 65858(a)." As is plain from the circumstances under which the Urgency Ordinance arose, the City here was not considering making any changes ito.its planning and zoning laws; instead, the;Urgency Ordinance was proposed in direct response to the Project application.' This is not a proper exercise of the moratorium power under the Planning &Zoning law. See, e.g., Sunset View Cemetery Assn. v. Kraintz, 196 Cal.App.2d 115, 123-124 (1961) (in overturning an urgency ordinance relatedto a mortuary project, the court observed, "[n]othing in the record in the instant case indicates that the ordinance formed any part of a zoning plan or that [the county] had even contemplated the ordinance before the trial court's first decision [requiring the county to process and approve the cemetery's request fora building permit for the mortuary]; the enactment of the ordinance stemmed from the county's attempt to frustrate [the cemetery's] plans."). Because any proposed legislation would be nothing more than a thinly-veiled, post hoc rationalization to support the Urgency Ordinance, the CityCouncil cannot lawfully enact it. Further, in order legally to adopt the Urgency Ordinance, the City Council must make a finding, supported by substantial evidence,15 that there is "a current and,immediate threat to the public health, safety, or welfare, and that the approval of additional subdivisions, use permits, variances, building permits, or any other applicable entitlement for use which is required in order to comply with a zoning ordinance would result in that threat public health, safety, or welfare." Gov. Code § 65858(c). The Legislature's insistence that an urgency ordinance be supported by an emergency finding supported by substantial evidence reflects the fact that an urgency ordinance which can be adopted "[w]ithout following the procedures otherwise required prior to the adoption of a zoning ordinance" has a high likelihood of substantially impacting the rights of affected property owners. " Thus, in order for the proposed Urgency Ordinance to take effect here,six of the seven members of the City Council would have to vote in favor of it. 14 See,"Council considers moratorium..on gas stations,"Petaluma Argus-Courier,January.30,:2014(news reporter describes results of January 27,2014 City Council hearing as follows:"The Petaluma City Council flexed its authoritative muscle this week,when it discussed plans toplace.an emergency moratorium on new gas stations in a direct response to the proposed Safeway gas station. After realizing a proposed Safeway gas station in the Washington Square shopping center may not need council approval because,it complied with the city's zoning laws, Couneilmember Mike Healy asked the council Monday to consider the temporary ban."). 15 Substantial evidence is evidence of"ponderable legahsignificance. . .reasonable in nature,credible and of solid value." Lucas Valley Homeowners Association v. County of Marin,233 Cal.App.3d 130, 142(1991);see also,Public Resources Code§21080(e)(defining substantial evidence as including"fact, a reasonable assumption predicated upon fact,or expert opinion supported by fact,"but not including"argument speculation, unsubstantiated opinion ornarrative,evidence that is clearly inaccurate or erroneous,or evidence of social or economic impacts that do not contribute to,or are not caused by, physical impacts on the environment.");and Newman v. State Personnel Board, 10 CalApp,48141,47 (1992)(noting that substantial evidence"is not synonymouswith 'any' evidence. The evidence considered.must be reasonable,credible,and of solid value and must be'substantial'proof of the essential elements of the case."). 30 Honorable David"Glass,:Mayor and Members of the Petalurria City'Council February 24, 2014 Page 6 - There ism&emergency here justifyingadoption of the Urgency Ordinance. This is,especially true when the only proposed development that would be affected.by'the Urgency Ordinance(i.e., the Project) has been pending for approximately 7.months, Councilmember Healy cited'no emergency when he proposed the Urgency Ordinance.' Instead, he simply expressed his desire for the City to have greater regulatory control over the,Project. The Application has been pending sincelast summer and the studies prepared by expert consultants and.submitted to the City demonstrate that the Project will not result in any significant impacts to traffic,air quality or noise. There is no substantial evidence to support City Council finding(s) of a current and immediate threat to the public health; safety, or welfare. As such, and on this basis alone, the Cityis precluded from adopting the Urgency Ordinance. Because the City was not consideringmaking any changes to its plans or codes prior to consideration of the Urgency Ordinance and because there is no current and immediate,threat to the public health, safety, and welfare, the City cannot lawfully adopt the Urgency Ordinance. 2. The Urgency Ordinance is aimed at restricting economic competition which is not a valid exercise of+the City's police powers. No city, including Petaluma, can,use its land use powers:to dictate which companies can do business within its community and which cannot. Nor can a city use its land use powers to grant existing businesses a monopoly or shield them from economic.competition. While the City can regulate in which districts certain uses+can operate, it cannot, for instance,pass a law allowing Joe's Ice Cream Shop but disallowing(or only conditionally allowing) Baskin Robbins in the same zoning district. Yet, that is precisely what the Urgency.Ordinance is attempting to do with respecfto the proposed Safeway fuel center. As has been pointed out in multiple news articles, the majority of the opposition to the Project appears to have been promptedby other gas stations in the area who feel threatened.bypotential competition. It is therefore not surprising that some Project opponents urge adoption of the Urgency Ordinance claiming that the Project will threaten thetprofit'margins of area gas station owners'and operators. As a matter of law, it is well settled that zoning-related matters (such as the approval of the Urgency Ordinance) cannot be decided based.on a desire to protect the financial interests of a particular business or individual. To be sure, the economic ramifications of a proposed project may be considered by a city or county, but this consideration,must be in the context of a legitimate planning purpose, such as where particular retail uses are allowed or not allowed within a city, as opposed to the impermissible goalof protecting oneor more existing business entities. In other words, when acting on the Urgency Ordinance, while the City may,properly.consider the general`welfare of the community, it cannot consider the general welfare of an individual gas station owner or operator. In Hernandez v. City of Hanford, 41 Cal.4t'.279,297 (2007),.the California Supreme Court addressed this concept in„great detail, stating specifically'that it is impermissible for a zoning action to have a "private anticompetitive'goal,of protecting'or disadvantaging a particular favored or disfavored business or individual.” (emphasis added). In that case,the court:upheld an ordinance designed to protect an existing downtown district containing,a large number of well=regarded furniture stores by 16_ In contrast,the City eited'what appeared to be valid findings justifying an emergency'moratorium when,it enacted urgency,ordinances pertaining;to flood protection and.medical marijuana uses in 2006. Honorable-David;glass,Mayor and Members of the Petaluma CityCouncil February 24, 2014 Page 7 restricting the location of furniture stores elsewhere in the town. The court noted that the ordinance had as its primary objective a valid and,legitimate public.purpose of preserving.the downtown district and not the impermissible private:anticompetitive purpose of investing'a favoredprivate business with monopoly power or excluding an unpopular company from the community. In Friends of Davis v: City of Davis,,83 Cal.App.4th 1004 (2000), a case remarkably similar to the case at hand, a developer applied to a,city for site plan and architectural review for a proposed retail center. The center was to include:a nationwide retail chain store (Borders Books)'. Opponents sued claiming that the city had authority under its:;design review ordinance to approve or disapprove particular tenants. The Court of Appeal disagreed, ruling thata city could not use its design review ordinance to exclude a prospective tenant from a proposed retail development project on the basis that it a nationwide chain store. While acknowledging that a city has broad authority over the;regulation of land use, the court observed that this authority is not unlimited. See, e.g., Friends of Davis, 83 Cal.App.4th at 1013: Where certain uses are.pertnitted, a city cannot arbitrarily errlude others who would enjoy a similar use. Zoning'and'building laws cannot be used unqualifiedly to restrict competition or simply,to,shield'existing businesses from competition. While valid zoning regulations may affect.competition and have other economic effects, a city does not have carte blanche'to.exclude a retail merchant that it, or some of its residents, do not like. The broad and standardless construction of the'City's,design'review ordinance urged by plaintiff would confer on the City's planning=department virtually unrestrained power to decide who may and who may not do business.in.the City. [citations omitted] (emphasis added). As evidenced by the timing and circumstances surrounding the City's adoption of the Urgency Ordinance, it is plainly aimed.at blocking the Safeway fuel center because customers may choose to purchase gas at Safeway instead of,atotfiernearby gas stations. The City's actions thus appear squarely aimed at restricting and shielding existing businesses from competition,which is not a valid exercise of the City's police powers_ Other concerns expressed (e.g,,,as to traffic and urban decay) are not meritorious and illustrate the pre- textual nature of the City's+stated=interests in considering-the Urgency Ordinance. As demonstrated by the traffic study prepared by TSKM Consultants, the Project will not result in any significant traffic impacts to area-intersections, including the intersection of Washington Street and McDowell Boulevard. In addition, there is no evidence whatsoever that the Project will cause any nearby gas stations to go out of business let alone lead to long-term and prevalent vacancies such that urban decay impacts would ensue." Safeway's experience is to the contrary. For instance, Safeway owns and operates 45 gas 10 In a recent op-ed to the Petaluma Argus-Courier,Councilmember Healy claims that in Dixon and other.communities, Safeway fuel centers'have caused multiple gas stations to fail"and opines that"[d]ead gas stations are particularly problematic to re-purpose,for other productive uses." These assertions have no basis in fact. As applied to the retail fuel market in.Dixon,the trial court in the Dixon Gas Club case,supra, concluded that there was no competent evidence that any fuel retailer had left the Dixon market because of Safeway. To'the,contrary,the court cited evidence that the number of gas stations in Dixon actually grew and notedthat when..one station operator exited the market, another quickly took its place. Even assuming that gas stations did close after the Safeway fuel center opened,which would be directly contrary to the findings of the court in theDixon Gas Club case,Healy fails to make any attempt whatsoever to substantiate his assertion that the Safeway fuel center caused those gas stationsto fail. More fundamentally and contrary to'Healy's claims,gas station 3ei Honorable David Glass, Mayor and Members of the Petaluma City Council February 24, 2014 Page 8 stations in Northern California and is not aware of any competitors being driven out of business due to one of its fuel centers. Instead,'Safewayhas found that increased competition requires all gas retailers to sharpen their pricing and develop unique niches to serve customers. This is no different than any business operating in a free market system. Because the primary purpose of the Urgency Ordinance is to restrict competition, adoption of such an ordinance would not be a valid exercise of the City's police powers. 3. Adoption of the Urgency Ordinance would violate Safeway's rights to due process. The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits a state from depriving a person of life, liberty, or property without due process of law. See also, Cal. Con., art. I, sec. 7. The touchstone,of substantive due process is the protection of the individual against arbitrary government action; the due process clause was intended to prevent government officials from abusing their power or employing it as an instrument of oppression. FKoly. McDonnell, 418 U.S. 539, 558 (1974); Collins v. City of Harker Heights, 503 U.S. 115, 126 (1992). A violation of substantive due process rights occurs if a government agency's actions are (1) irrational or arbitrary or (2) not rationally related to a legitimate government interest.18 Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Lingle v. Chevron, 544 U.S. 528 (2005). If the City were to adopt the Urgency Ordinance, its actions would be arbitrary and irrational, and would constitute an abuse of power, subjecting it to liability under the due-process.clause. See,Arnel Development Co. v. City of Costa Mesa, 126 Cal.App.3d 330, 337 (1981) (enactment of initiative downzoning ordinance was.arbitrary and discriminatory where enacted without considering appropriate planning criteria and for sole and specific purpose of defeating a single development).19 Here, if the City were to adopt the Urgency Ordinance, it would be engaging in precisely the same conduct that the court invalidated in the Arnel case. Specifically, approval of the Urgency Ordinance would constitute irrational and arbitrary conduct not based on appropriate planning criteria and for the sole and specific purpose of defeating (or making more difficult or burdensome)the Safeway fuel center Project. Moreover, it is well settled under California law that an urgency ordinance cannot be aimed at or discriminate against a particular permit applicant. See, e.g., Kieffer v. Spence, 153 Cal.App.3d 954 (1984) (interim ordinance aimed at defeating.particular videogame establishments found invalid) and Sunset View Cemetery Assn.,supra, 196 Cal.App.2d at 124 (invalidating urgency ordinance prohibiting properties can be repurposed and reused for other commercially viable retail uses as the redevelopment of the former gas station site at 440 East Washington Street plainly illustrates. 18 The test is disjunctive. Thus,a property owner need only demonstrate facts to,support one of the two bases inorder to state a viable due process claim. 19 See also,Herrington v. County of Sonoma,834 F.2d 1488(9th Cir. 1987)(denial of subdivision and subsequent downzoning of property violated property owner's due process rights given evidence thatcounty's general plan/subdivision inconsistencydeterminationwas irrational'and arbitraryandaimed at defeating particular development project); and Del Monte Dunes, Ltd. v. City of Monterey,920 F.2d 1496, 1508(9th Cir. 1990)(allegations that city council approved a 190 unit project with,conditions that had been substantiallymet,then same council members abruptly changed course and rejected the project motivated not legitimate regulatory concerns,but by political,pressure from neighbors to preserve property as open space,could constitute arbitrary and irrational conduct). 3 3 • Honorable,David Glass,;Mayor and-Members of the Petaluma City-Council February 24; 2014 Page 9 mortuary on cemetery grounds, ruling "[t]he generality of the language of the [urgency] ordinance [prohibiting the erection of a mortuary on cemetery grounds] does.not.conceal its single, realistic purpose:the prohibition of respondent's mortuary. . . . Such an isolation of one party as the object of the Board's legislative action is a plain discrimination; one that cannotfsurvive testing under accepted principles of constitutional law,").2° The Urgency Ordinance here is plainly and unmistakably aimed at blocking the Safeway fuel center Project. Councilmember Healy admitted that the purpose of the Urgency Ordinance was to block"Safeway. See, e.g., "Petaluma may block proposed Safeway gas station,"Santa Rosa Press Democrat, February 7, 2014, wherein Councilmember Healy is quoted saying, "I'm completely serious about stopping the (Safeway) fueling station."" Because the proposed Urgency Ordinance is an arbitrary and discriminatory actionaimed`at blocking one particular user, it is not reasonably related to a legitimatestate interest. See, e.g.,Lockary,.supra, 917 F.2d at 1155 (court observes that the reasonable relationship test"will not sustain conduct by-state officials that is malicious, irrational or plainly arbitrary."). In sum, adoption of the Urgency Ordinance and approval of any resulting legislation that subjected Safeway to different or more burdensome requirements than imposed on similarly situated gas station owners would deprive Safeway of its constitutionally protected right to due process.22 4. Adoption of the Urgency Ordinance would violate Safeway's right to equal protection. The Fourteenth Amendment-to the.United States Constitution provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. See also, Cal. Con., art. I, sec. 7. The concept of equal protection has been defined to mean that no person or class of persons may be denied the same protection of law that is enjoyed by other persons or other classes in like circumstances. Hawn v. County of Ventura, 73.Cal.App.3d 1009, 1018 (1977). A claimant must show that the state "has adopted a classification thataffects two or more similarly situated groups in an unequal manner." Walgreen Co. v. City & County of San Francisco, 185 Ca1.App.4`h 424, 434 (2010) (emphasis in the original). An equal protection challenge to a regulation that does not involve a suspect class or fundamental right must nevertheless bear a reasonable relationship to a legitimate state interest. Young v. American Mini Theaters, 427 U.S. 50 (1976). "[A] deliberate, irrationaldiscrimination, even if it is against one person (or other entity) rather than a group, is actionable under the equal protection clause." Wor7d,Outreach-Conference Center v. City of Chicago, 591 F.3d 531, 538 (7th Cir.2009). 2° See also,G&D Holland Construction Co. v. City of Marysville, 12 Cal.App.3d!989, 994(1970)(when the police power has been exercised in sucha manner as to oppress or discriminateagainst an individual or individuals or against a particular parcel of land; it will be overtumed)•and Lockary v. Kayfetz, 917 F.2d 1150, 1155-1156 (9th Cir. 1990)(if agency's moratorium on issuance of new water hookups based on a water shortage was pre-textual as alleged,owners could state viable substantive due ptocess and equal protection claims). 21 At the January 27,2014 City Council hearing,Healy likewise stated,"if any emergency ban is passed, it will give Safeway the opportunity to convince us that this makes sense for the community—though I think they're going to have a difficult time doing that." 22 As you may know,the.City of Sebastopol is being sued over that city council's passage of a moratorium on drive-thrus after a prior council approved a CVS drug store,with a drive-thru window. A newly.composed City.Council passed the moratorium four months later,preventing CVS from moving forward. CVS sued.in federal court,arguing that Sebastopol violated its due process rights by passing ban after the company had received city approval. The case is pending in the U.S. District Court for the Northern District of California. 31' Honorable David.Glass,Mayor and Members of the Petalum&City Council February 24, 2014 Page 10 In Village of Willowbrook v. Olech,.528 U.S. 562 (2000), the U.S. Supreme Court ruled that a plaintiff stated a viable equal protection cause of action based on claims that a municipality required a 33 foot easement from her as a conditionof connecting her property to themunicipal water supply when it had only required a 15 foot easement from other similarly situated property owners. The Ninth Circuit has likewise upheld equal protection claims brought by property owners that were discriminated against or treated unfairly by local agencies as part of the land use approval process. See, e.g., Herrington, supra (denial of proposed subdivision and subsequent downzoning violated property owner's equal protection rights where there was evidence that county had approved sizable residential development projects on three other agricultural properties shortly after it rejected the owner's proposal) and Del Monte Dunes, Ltd., supra, (allegation that city arbitrarily and unreasonably limited use and development of property and set aside open space for public use,whereas owners of comparable-properties were not subject to these conditions and restrictions statesviable•equal protection claim)." The only pending permit application affected by the Urgency Ordinance is the Project Application. No such moratorium was imposed'iinresponse to any other comparable development in the City. It thus appears that the proposed Urgency Ordinance and any resulting legislation would only affect the Project. It is our understanding that no other gas station in the City has been subjectto anything more than design-related approvals. For instance,the Union 76 station at 101 North McDowell Boulevard (formerly known as the Grand Gas Station)was remodeled with only SPAR-level approvals. In its findings approving the Project, the City stated that the project was consistent with the allowed uses in the C2 zoning district and wouldnot be detrimental to the public welfare.24 If the Urgency Ordinance is enacted, and other,more burdensome land use regulations are imposed on the Project,the City would not be treating Safeway in an equal manner compared to other similarly situated uses. Additionally, the Urgency Ordinance would not affect other gas stations that partner with retailers to provide gas at discounted prices. As such, the Urgency Ordinance is not rationally related to achieving its purpose of protecting existing gas,stations from competition." Walgreen Co. v. City & County of San Francisco, supra (drug store)stated viable equal protection challenge to ordinance prohibiting sale of tobacco at drug stores but not other similarly situated retail stores). In light of the foregoing, adoption of the Urgency Ordinance and approval of any resulting legislation that subjected Safeway to different or more burdensome requirements than imposed on similarly situated gas station owners would deprive Safeway of its constitutionally protected right to equal protection under the.law. 23 See also,Ross v. City of Yorba Linda, 1 Cal.App.4th 954(1991)(zoning restriction prevented development consistent with surrounding area and thus gave the owner fewer rights than the ownersof surrounding property similarly situated) and Kissinger v. City of Los Angeles, 161 Cal.App.2d 454,460(1958)(downzoning of island surrounded by multi-family residential and commercial uses to singlefamily use improper). 24 A copy of the.staff report,and.minutes of the June 29,2009.meeting of the City's Site Plan and Architectural Review Committeewhere this project was approved are"attached hereto as Exhibit A and incorporated herein by reference. 25 As noted in'.Section.D.2,supra,this purpose is not a legitimate government interest and the Urgency Ordinance is thus .invalid on that basis.-alone. 35-r Honorable David Glass, Mayor and Members of the Petaluma City Council February 24, 2014 Page 11 5. If it adopts the Urgency Ordinance, the City would have to compensate the Owners for an unconstitutional taking of their land. If adopted, the Urgency Ordinance would constitute a compensable taking of the Property. The Takings Clause of the 5th Amendment to the United States Constitution, made applicable to the states through the 14th Amendment,'6 guarantees that private property shall not"be taken for public use, without just compensation." Article I, section 19 of the California Constitution also provides that"[p]rivate property may be taken or damaged for public use only when just compensation . . . has first been paid to . . . the owner." A land use regulation effects an impermissible taking of property if it deprives an owner of all economically beneficial or productive uses of his land (Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)) or conflicts with an owner's distinct investment-backed expectations (Penn Central Transp. Co.. v. New York City, 438 U.S. 104 (1978)); causes the owner to suffer a permanent physical invasion of his property(Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)); or imposes an exaction in violation of the "essential nexus"and "rough proportionality" standards respectively set forth in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994). See, e.g.,Lingle v. Chevron, supra. A land use regulation that deprives the owner of substantially all economically beneficial or productive use of his land constitutes a taking. Lucas v. South Carolina Coastal Council,supra (property owner entitled to compensation for regulations precluding development of two beachfront lots, thereby depriving owner of all economic use of his property); see also,First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 321 (1987) (U.S. Supreme Court rules that property owners are entitled to compensation for temporary taking of their land); and Monks v. City of Rancho Palos Verdes, 167 Cal.App:4`h 263 (2008) (ordinance imposingft moratorium on construction in landslide area deprived landowner of all economically beneficial use and thus constituted a taking). Courts have recognized that land use regulations that take all economically viable use of only a portion of private property can constitute a taking. Twain Harte Associates, Ltd. v. County of Tuolumne, 217 Cal.App.3d 71 (1990). It appears that application of the Urgency Ordinance would prohibit the only economically viable use of the Property and one to which it is well suited, thus denying the Owners'all economically viable use of its land. Even before the Urgency Ordinance was proposed, the Owners experienced difficulties in successfully leasing the space for commercial uses. With the uncertainty created by the Urgency Ordinance, it will likely be virtually impossible to do so. The City would therefore have to pay just compensation (i.e., the fair market value of the Property based on its proposed commercial use) to the Owners if it adopts the proposed Urgency Ordinance. A regulation may affect a taking even though it leaves the property owner some economically beneficial use of his property. Kavanau v. Santa Monica Rent Control Board, 16 Ca1.4`h 761, 774 (1997). In order to determine whether a taking has occurred when the economic impact is less than total, a reviewing court looks to three factors in particular: (i)the economic impact of the regulation on the owner, (ii) the extent to which the regulation interferes with the property owner's distinct investment-backed 26 See Chicago B&Q R. Ca v. Chicago, 166 U.S.226(1897). iL HonorableDavidElass, Mayor ,and"Members of the Petaluma City Council February 24,2014 Page'12 expectations'as to the use of.its-property, and (iii)the character of the governmental action.' Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978). In Palazzolo v. Rhode Island, 533 U.S. 606 (2001), the U.S. Supreme Court emphasized that the above:factors are to be considered and applied in light of"the purpose of the Takings Clause, which is to prevent the Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." 533 U.S. 618. As explained above, the Urgency Ordinance would likely deny all economically viable,use of the Property. Even assuming that some economic use of the Property remained,it would not be sufficient to shield the City from takings liability based upon the Penn,Central'factors. If adopted, the Urgency Ordinance would greatly diminish the economic value of the Property: Thus, the economic impact of the Urgency Ordinance is great As to`the Owners' investment-backed expectations, the Owners purchased the Shopping Center;(including the Property) in 1984;forfair market value, based on its commercial land use designation. The Owners have always intended to use the land for a viable retail use in accordance with the site's zoning. Other commercial development has not proven economically viable on the site. The UrgencyOrdinance would substantially burden use of the Property for an economically viable use and annihilate the Owners' investment-backed expectations with respect to the use of the Property. Indeed, based.on understandings and assurances!from City staff that the Project was an allowed use, the Owners relocated tenants and allowed leases to expire in anticipation of the Project development. These damages"alone would easily exceed $1 million. Finally, the pre-textual and economically protectionist.nature of the City's interest would also favor the Owners' taking claim here.. Thus, all three Penn Central'factors weigh'in favor of the Owners and would subject the City to takings liability if it were to adopt the Urgency Ordinance. In sum, the Urgency Ordinance would likely deny all economically viable use of the Property. Alternatively, the economic'iinpaetof the Urgency Ordinance, the extent to which it interferes with the Owners' distinct investment-backed expectations, and the nature of the:government action would expose the City to takings liability. For either reason, the City may not lawfiilly..adopt the Urgency Ordinance. 6. Based onaSafeway's,detrimental reliance on the Property's=zoning;the City would be estopped from:adopting'the Urgency Ordinance:and/or applying it to the Project. Safeway and the Owners properly and foreseeably relied on the Property-s planning and'zoning, as well as the City's stated policy that the Property is an area of the City where gas stations are a principally permitted use. To date,Safeway and:Owners have spent millions of dollars in reliance on the approved land use designations and planned infrastructure for the Shopping Center and its environs. These funds were used to purchase the Shopping Center, negotiate the.lease.of the Property to Safeway, prepare Project plans and environmental studies, and pay other direct and indirect expensesrelated to operation and maintenance of the Shopping'Center, including the Property. As a.result of the Owners' and Safeway's+reliance,on,the City's`plans'and policies,the City would be estopped from applying the proposed Urgency Ordinance to the Project. See, e.g., Hock Investment Co. v. City and County of San Francisco, 215 Ca1.App.3d 438, 448-449 (1989) (if property owner reasonably and detrimentally relies 27 This.:criterion requires a reviewing court to"consider the purpose and importance of the public interest reflected in the regulatory'impositibni" Loveladies Harbor,Inc. v. United States,28 F.3d 1171, 1176(Fed. Cir.2003). Honorable David Glass, Mayor and Members of the,Petaluina.City Council February 24,•2014' Page 13 upon agency's administrative rule, agency would be estopped from taking subsequent action in contravention of rule).28 The court in Kieffer observed that estoppel was proper when a city"chose to pursue a course of conduct (for reasons not entirely dear) notionlydetrimental to petitioners butto public trust in local government." 153 Cal.App.3d at 9'64. Were:the City to adopt the Urgency Ordinance and impose it upon Safeway, it would run afoul of this guiding principle. The City's.plans and policies that Safeway and the Owners relied upon—even more than the simple administrative rule at issue in Hock— provide a substantial basis for estoppel against the City here. 7. Adoption of the:UrgencyOrdinance would not comply with the California Environmental'.Quality Act. The Urgency Ordinance may result in physical environmental effects and thus the City must conduct environmental review pursuant to the California Environmental Quality Act("CEQA") before it can lawfully act on it. See, Public ResourcesCode §§ 21080, 21000, 21065. Itis reasonably foreseeable that the Urgency Ordinance could force certain gas,station operators, like Safeway, to locate in other areas outside of the City. This would result in associated traffic, air quality, and noise pollution, including am increase in greenhouse gas emissions,vehicle miles traveled and other related emissions. See, e.g.,Muzzy Ranch:Co. v. Solano CountyAiiport Land Use Commn., 41 Ca1.4h 372, 383 (2007) (California.Supreme Court observes that the impact of development in other areas resulting from a ban on development within one jurisdiction should beconsidered in the CEQA process); accord,Napa Citiiens for Honest Government v. Napa County Board of Supervisors, 91 Ca1.App.4th 342, 369 (2001) ("the purpose Of CEQA would be.undermined`if the appropriate governmental agencies went forward without an awareness of the effects a prOject will have on areas outside of the boundaries ofthe:projectarea."). Thus, prior to the'enactment of the Urgency Ordinance, the environmental impacts associated with such displaced development needs to be addressed in an appropriate CEQA document. It is likely that the City could not proceed with such an ordinance without preparing and circulating an environmental impact report ("EIR"),forpublic review and comment. See, Public Resources Code §§21080(d) and 21081; CEQA Guidelines § 15091; Marin Municipal Water District v. KG Land California Corp., 235 Cal.App.3d 1652(1991) (water district prepared.an DR prior to-adopting a water moratorium based in part onpotential secondary impacts of moratorium);;and City of Livermore v. LAFCO,.184 Cal.App.3d 531 (1986) (EIR was required for revision of LAFCOsphere-of- influence guidelines because change'in policies could affect location of development, resulting in significant environmental impacts).29 29 Accord, Pardee Construction Co.v. California Coastal Commission, 95 Cal.App:3d471,481 (1979); Wilson v. City of Laguna Beach,6 Cal.App.4"543 (1992);Kieffer v. Spencer,supra;and Anderson v. City of La Mesa, 118 Cal.App.3d657 y981). See also, City of Redlands v. County.of Sam Bernardino,96Ca1.App.4'"398'(2002)(EIR was required,for amendments to county general plan eliminating policies requinng deference to city standards regarding hillside development,density of development,and public utilities because change may result in significant impacts)and CountySanitation District No 2 v. County of Kern, 127 Cal.App.4th 1544.0:005)(EIR was required for ordinance restricting'disposal of sewage;sludge because of indirect impacts, including need foralternative disposal,increased hauling,and possible loss of farmland in reaction to the new restrictions). 3r Honorable David Glass„Mayor and Members of the.Petaluma City Council February'24,2014 Page 14 The Urgency Ordinance is a "project” subject to CEQA, and one likely to.result in significant impacts. M such, the City maynot adopt the Urgency Ordinance without first considering its direct and reasonably foreseeable indirect environmental impacts. 8. Councilmember,Healy appears to have a common law conflict of interest and should abstain from voting on the Urgency Ordinance. Asa preliminary matter, we wish to note that by raising the conflict Of interest issue, we do not intend to assail the integrity of Councilmember Healy or to accuse him of:any wrongdoing. Rather, we write to make the point that in order to,avoidthe appearance of impropriety and to clearly adhere to the legal dictates, Councilmember Healy should abstain from voting on.the Urgency Ordinance. It is clear from a review of the tape of the City Council's January 27, 2014 hearing where the Urgency Ordinance was first raised and:related news articles that Councilmember Healy is not fair and impartial when it comes to the Project Application. He has, in fact, indicated that he introduced the concept of the Urgency Ordinance to stop theiSafeway fuel center.Project. Such statements raise obvious conflict of interest concerns with respect to theobjectivity of Councilmember Healy's decision-making ability. In Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152 (1996), the Court of Appeal noted that councilmembers must be disinterested,unbiased decision-makersandthat even the probability of unfairness, such as personal embroilment in a dispute, is to be avoided'. The court there held that city council members exhibited bias by denying an application based on height concerns shortly after a proposed moratorium on construction`of buildings higher than 30;feet failed. The court reasoned as follows: The common law doctrine against conflicts of interest prohibits public officials from placing.themselves in a position where their private,personal.interests may conflict with their official duties. . . . The+public is entitled to have its representatives perform their duties free from any personalor pecuniary interest that might affect their judgment. Public policy forbids the sustaining of municipal action founded upon a vote of a council member in any matter before it which directly or immediately affects him or her individually. A finding-of Self-interest sufficient to set aside municipal action need not be based upon actualproof of dishonesty,but may be warranted whenever a public official, by reason of personal involvement in a matter, is placed"in:a situation of temptation to serve his or her own purposes, to the prejudice of those for whom the law authorizes that:officiafto act. An individual member ordinarily cannot vote on a matter in which that member is interested. If the member does, the action taken by the body of which he or she is a member is invalidated. 48 Cal.App.4th at 1171. See also,Cohan v. City of Thousand Oaks, 30 Cal.App.4th 547 (1994) (decision-maker who has preconceived view of outcome of proceeding without regard to evidence presented is not an impartial and unbiased decision-maker);Nasha•L.L.C. v. City of Los Angeles, 125 Cal.App.4th 470 (2004)(article opposing project written by a planning commission member gave rise to an unacceptable probability of actual bias such that the commissioner should have recused himself form acting on the project); and.Hagopian v. State, 223 Cal.App.4th 349 (201'4) (if a record of administrative Honorable David Glass;Mayer and Members of the PetaltuMa City Council February 24.2014. Page 15 proceedings "shows bias and prejudice upon the part of the administrative body,its decision will not he upheld by the courts"), BaSeth on the foregoing, Counoilmember Healy appears,to have a common law conflict of interest. As such, he should recuse himself.attd abstainfom voting on the Urgency Ordinance. E. Even if it were to adopt the Urgency Ordinance,the City has an independent duty to process and act on the Project Even if the City were to adopt the Urgency Ordinance, it is clear that the City must continue to process the Application. See,e.g., Building,Ire,z'ustry Legal Defense F'ourrdatiort v.Superior Court,supra(city cannot use urgency ordinance to prohibit the processing of development applications), Such processing includes the obligation to act on the Project within the tittle limits established by CEQ:A and the Permit Streamlining Act. See, e.g:,Se linger v City Cotrhnil,216 Cal.App.3d 259,269(1989)(co un rules that a moratorium does not toll the time period for agency action on an application under the Permit Streamlining Act). As demonstrated by the reports prepared by expert consultants and submitted to the City,the Project will not result in any significant environmental effects, As such,it,is exempt from CPQA.pursuant to the Class 2 (replacement or reconstruction of existing structures and facilities),and/or Class 32 (infill) exemptions. CEQA Guidelines §§-15302; 15352." Given that the'City oust process and act On the Application within 60 days;from;the date that the Application is deemed complete,'`this does not leave sufficient time for the City to thoughtfully consider meaningful and appropriate zoning changes pertaining to commercial win's such as the Project. This is yet another reason why the City Council should refrain Brom adopting the Urgency Ordinance. rf,,,,,,,t t i MNgp laM Nt i t***Alk In summary, we believe that any further regulation of the Project:is.uAnecessary since the,City already has appropriate discretionary approval authority over it under its existing codes and regulations. Given the numerous constitutional and statutory infirmities with the Urgency Ordinance(as set forth above), we trust that the City will act appropriately and not adapt the Urgepcy Ordinance. As illustrated abcr e, there is no evidence,let atone substantial evidence,to Justify the application of the Urgency Ordinance to:the Project. We appreciate your consideration of Safewa}:'s views on this matter. Representatives of Safeway and Fulcrum will in attendance at the City Council's•March 3,2014 hearing. In the meantime,please do not hesitate to contact me with'any questions concerning this correspondence. Ve „. trtliy y0 0It, �--- � Matthew . Francois Sedgwick LLP '' The City treated a similar gas station project as exempt from CEQA. See,Exhibit A; 31 Gov.Code**654500x4). ?6I Jr- Honorable David Glass, Mayor and Members of the Petaluma City Council February 24, 2014 Page 16 cc: Steve Berndt Mary Davi Steve Gouig Anna Shimko Marko Mlikotin Mark Friedman Mark Koenig Gary Semling John Brown Eric Danly Heather Hines Elizabeth Jonckheer c// CITY OF PETALUMA, CALIFORNIA MEMORANDUM • Community Development Department,Planning Division, LI English-Street,Petaluma, CA 94952 (707) 778-4301 Fax(707) 778-4498 E-mail:planning@ci.petaluma.ca.us DATE: June 25, 2009 AGENDA ITEM NO. I TO: Site Plan and Architectural Review Committee FROM: Tiffany Robbe, Senior Planner SUBJECT: Request for approval of Grand Gas Station Remodel at 101 North McDowell Boulevard at:East Washington Street, APNs 007-340-009'(File 08-SPC-0346- . CR). Continued from May 28, 2009 RECOMMENDATION Staff recommends that the Site Plan and Architectural Review Cortmittëe..review the modified plans and, if they are satisfactory, approve the Grand Gas Station Remodel, at 101 North McDowell Boulevard, based on the attached draft findings and draft conditions of approval (see Attachments A and B). BACKGROUND This agenda item was continued from the May 28, 2009 Site Plan and Architectural.Review Committee (SPARC) hearing in order to allow the applicant time to respond to the concerns of the Committee. At the May.28th hearing, the Committee expressedtheir feeling that this may be themost prominent gas station in town and that the addition and modifications should improve upon, rather than match,the existing building, The Committee then continued the project to give the applicant time to respond to their.concerns. Below is a list of those concerns, followed by a note from staff. • Improve rear carwash wall, at least with varying materials such as glass block, CMU, and stucco or with landscaping. The rear carwash wall has been redesigned, articulation has been added including 3 pairs of spandrel glass windows with CMU block above. • Improve the food mart front entry. Sheet A2:1 shows:the front façade modifications. There were some glazing modifications at, the existing building. At the addition portion of the building,further articulation; including CMU block at the upper third has been added Modifications at the entry itself are not obvious. • Consider breaking up the flat facade of the northwest façade; doing this with a glass block window into the office and the woman's restroom would also add natural light. Sheet A2.1 shows metal trellises painted pine forest green in these two areas, but not block windows, These trellises are also utilized on the southeast elevation. Page 1 ,1 1 • •• Reduce visibilityl.to:the propane tank; consider limiting the tondtete:$d.to just wider the tankiand-onthe'filling:side, with cypress.or tall°juniper plantings on the north+side'of the tank to screen the tank: Sheets SDI and LAI show that the concrete pad has been reduced and 7 escallonia compacta arenow shown around more than half of the propanetank, particularly on the north side. Escallonia compacta is a shrub that'may grow to 4 to 8 feet tall and as wide (though it is slow growing and some "sources describe it as a 2'/2 to 3 foot shrub). The applicant reports that the height of the propane tank,-,including the base, is approximately 3%feet. • Modify curb and landscaping. Done, see sheet SDI"andLA1. • Extend 10 foot wide sidewalk the width of the parcel: Done, see sheet SDI. The sidewalk going north extendstot the point of the existing driveway and the sidewalk going south extends to the southern.property line. See also Engineering conditions 12 - 15. The City Engineer recommends that condition 12 be modified to state that obstructions such as utility. vaults, headwalls, etc. may remain if approved by the City Engineer, this recommendations has been added to the condition:in italic. • Use curbs and landscaping rather than paint at the Southside; -move vacuum and air/water station into the new area,to be closer to car. Done, see sheet SDI and"LA1. The angle is not continued at the western most space because of the existing,drop inlet. The applicant has also added signage the vacuum and air/water station parking spaces restricting the use to these spaces. • Provide a truck radius for the delivery truck route beliind'the;gasstation(continue to consider how to get permission to`landscape off-site so that the carwash facade can be screened). Provided. See'the last sheet of the plan set; SDI-Truck. Because of the frequent turning maneuvers required, the full 29 foot width is actuallyutilized, though not at all points. The manager of the Petaluma Plaza has not been willing to permit landscaping within this area because of their desire toprotect'the delivery truck route. • Prepare a color elevation of the main building and the fueling station canopy. Provided. See thesmaller A2:1 —A7 sheets at the end of the plan set ATTACHMENTS` A. Draft Site Plan,and Architectural Review Findings B, Draft Site Plan and Architectural Review Conditions of Approval C. Half-Sized Plans date stamped June 15, 2009 (Committee Members Only) • s:\PLANNING\SPARC\REPORTS\101 N MCDOWELL GAS SPARCSR 2.DOCX Page 2 . • ATTACHMENT A • DRAFT.SITE PLAN.AND.ARCHITECTURAL REVIEW FINDINGS Grand Gas Remodel 101 North McDowell'.Boulevard APN 007-340-009 File 08-SPC-0346-CR May 28,2009 1. The Site Plan and Architectural Review Committee authorizes the proposed gas station remodel, including new fueling.canopy over relocated pump islands, a 559 square foot food mart addition, new carwash tunnel, and site plan and landscaping modifications at 101 North McDowell Boulevard. 2. The proposed project, as conditioned, is consistent with the Community Commercial land use designation of General Plan 2025 and with the General Plan's policies for the Washington Core subarea that encourage intensification of the Petaluma Plaza and Plaza North sites with a diverse range of Community Commercial uses and the planting of street trees to maximize shade.and improve the pedestrianscale. This proposal-is also consistent with air quality policy'4-P-12because.this new drive-thru is forthe purpose of servicing vehicles and includes signage to limit idling: • 3. The project is consistent with the allowed uses in the Commercial 2 zoning district, The newbuilding is consistent with the development<standards Of'C2 including the standards pertaining to setbacks, maximum coverage, and height. The project is consistent with the parking standard; 14 spaces areProvided. 4. The proposed project, ;conditioned,will not constitute a nuisance:or be detrimental to the public welfare of they community in that it will be operated in conformance with the standards specified in the Uniform Building Code, the Petaluma Zoning'Ordinance and the City of Petaluma General Plan 2025, 5. The project is exempt from the provisions of the California.Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 25301, Class 1, Existing Facilities, section e 2, which allows additions`to existing:structures provided:that,they'araze:less than 10,000 square feet on sites where,public services and facilities are available and where the area is not environmentally sensitive. 6. The proposed structure and'site plan, as conditioned, conforms to the requirements of Site Plan and Architecture Review Standards for Review of Applications 24-010 (G) of the Zoning Ordinance as:. a. Quality materials are used appropriately; im harmony and proportion to the existing gas station and surrounding commercial structures, Page 3 4 b: Thetarchitectural,style is appropiiate,and is compatible with,the existing gas station', and the surrounding structures, c: The siting,of the structures is comparable to the siting of the existing gas station and other structures in the neighborhood; d. The bulk, height; and color of the structures is comparable(.to the bulk, height, and color Of theexisting gas;station and other strictures in the immediate neighborhood. • Page 4 • 1 ATTACHMENT B 2 3 DRAFT SITE PLAN AND ARCHITECTURAL REVIEW 4 CONDITIONS 5 6 Grand Gas Remodel 7 101 North McDowell Boulevard 8 APN 007-340-009 9 File 08-SPC-0346-CR 10 May 28, 2009 11 12 1. Approval is granted for the proposed gas station remodel, including new fueling canopy 13 over relocated pump,islands, a 559 square foot food mart addition,new carwash tunnel, and 14 site plan and'landscaping modifications at 101 North McDowell Boulevard: 15 16 2. The plans submitted for building permit review shall be in substantial conformance with 17 those plans on file in the;'Planning Division and date.stamped June 15, 2009, except as 18 modified by the following conditions. 19 20 3. The colors and materials, including the lighting fixtures; shall be in substantial 21 conformance with those note,.onthe plan set and that colors board.in the project file and 22 date stamped June 15; 2009; except as modified by the following;conditions. 23 24 4. Prior to the issuance'of'any development permit,.the applicant shallrevise the site plan or 25 other first sheet of the office and job site copies of the Building Permit plans to list these 26 Conditions of Approval as notes. 27 28 5. Prior to building permit,approval, the plans shall note the•installation of high efficiency 29 heating-equipment(90°/a or higher heating/furnaces),and low NOx water heaters(40 or less) 30 in compliance with policy4-P-15D(reducing emissions in residential units). 31 32 6. Prior to building, grading, or demolition permit approval, all plans shall note the following 33 and all construction contracts shall include the same,requirements(or measures shown to be 34 equally effective, as approved by Community Development Department), in compliance 35 with General Plan policy 4-P-16: 36 • Maintain construction equipment engines in good condition and in proper tune per 37 manufacturer's specification for the duration of construction: 38 • Minimize idling time of construction related equipment; including heavy-duty 39 equipment,motor vehicles, andportable equipment; 40 • Use alternative fuel construction equipment (i.e., compressed natural gas, liquid 41 petroleum gas, and unleaded.gasoline); 42 • Use add-on control devices such as diesel oxidation catalysts or particulate filters; 43 • Use,diesel equipment that meets the ARB's 2000 or newer certification standard for 44 off-road heavy-duty diesel engines; and 45 • Limit the hours of operation of heavy duty equipment. 46 Page 5 ////,, T� 1 7: Prior to building permit approval plan sheetiSD1 shall also note cautionary signage placed 2 at the,southwest corner to caution drivers exiting;the property of,,pedestrian and bicycle 3 crossing. 4 5 8. All construction;activities shall be limited to 7:00 a.m. to 5:30 p.m. Monday through Friday, 6 this includes construction related deliveries and equipment maintenance. Construction 7 activities that generate little or no noise (plumbing, painting, electrical, etc.) are permitted on 8 Saturdays.from 9:00 am. to 5:00 p.m. Construction shall be prohibited on Sundays and all 9 holidays recognized by the City of Petaluma. 10 11 9. The applicant shall be subject to all applicable Special Development Fees: Sewer and 12 Water Connection, Community Facilities, Storm Drain, School Facilities, Traffic 13 • Mitigation fees and the Public Art fee (if the cost construction is $500,000 - see Ordinance 14 No. 2202). Said fees are due at time of issuance of building,permit at which time, other 15 pertinent fees that maybe applicable to the proposed:project maybe required. 16 17 10. The applicant shall defend, indemnify, and hold harmless 'the City or any of its boards, 18 commissions, agents, officers, and employees from any claim,action, or proceeding against 19 the City, its boards„commissions, agents, officers, or employees to attack, set aside, void, 20 or annul any of the:approvals of the project,when such claim or action is brought within the 21 time period provided for in applicable State and/or local statutes. The City shall promptly 22 notify the applicants/developers of any such claim, action, or proceeding. The City shall 23 coordinate in the defense. Nothing contained in this condition shall prohibit the City from 24 participating in a defense of any claim, action, or proceeding and if the City chooses to do 25 so appellant shallreiuiburse City for attorneys' fees by the City. 26 27 From the City Engineer(Curt Bates) 28 Prior to Building permit final, 29 11. Prior to final inspection, remove the portions of existing fuel island canopy located within 30 the public right of way. 31 32 12, Remove and replace anyportions of existing broken, cracked, displaced sidewalk sections 33 within the proposed 10-foot wide multi-use (pedestrian bicycle) sidewalk (obstructions 34 such as utility vaults,..headwalls, etc. may be permittedto remain subject to acceptance by 35 the City Engineer). Remove all bollards within the proposed multi-use sidewalk. 36 37 13: Dedicate the necessary public access or sidewalk easement to the City of Petaluma for 38 portions of the multi-use sidewalk not located within the existing right of way. 39 40 14, Re-align the proposed stamped concrete accessible path of travel at the north westerly 41 driveway approach to the end of the proposed ADA ramp. Exact location is subject to the 42 approval of the City Engineer. The proposed ADA ramp shall be aligned with the new 43 McDonald's.ramp installed as part of the Raley's project. The ADA ramp shall include a 44 wet-set detectible warning surface,brick red in color, per City requirements. 45 46 15. Install an 8-foot wide crosswalk, stop legend and stop sign at-the North McDowell Blvd. 47 driveway approach. 48 Page 6 • 1/ 1 16. Install "Vehicle Crossing",and "2-way Bike/Ped" crossing signs,at,both McDowell Blvd. 2 driveway approach's along the new multi-use sidewalk. The signage shall match signage 3 installed along the frontage for'the adjacent Raley's project, 4 5 17. All new improvements within:the public right of way shall be ADA accessible. 6 7 18. Provide water demands,to determine if water service/meter size upgrades are necessary for 8 the proposed carwash, 9 10 19. Indicate the proposed carwash traps/recycling system and provide documentation that the 11 system is in compliance with City requirements. 12 13 20. The final site grading, drainage and utility plan(s) shall be signed and'sealed by registered 14 Civil Engineer. 15 16 21. All work within the public right of way requires an encroachment permit from the Public 17 Works Department. 18 19 From the Fire Marshal, 20 22. Prior to building permit review, relocation of the pump islands will need to be done under 21 permit from the fire Marshal's office. 22 23 Standard Site Plan and Architectural Review Commission Conditions 24 23. In the event that archaeological remains are encountered during grading,,work shall be 25 halted temporarily and a qualified archaeologist shall be consulted for evaluation of the 26 artifacts and to recommend future action. The local Native American community shall also 27 be notified and consulted in the event any archaeological remains are uncovered. 28 29 24. All exterior lighting shall provide a "soft wash" of light against the wall and shall be 30 hooded and directed downward with no direct glare into bicyclists' or pedestrians' eyes, 31 and shall conform to City Performance Standards. 32 33 25. External downspouts shall be painted to match background building' colors. Scuppers 34 without drainage pipes may not be installed because of probable staining of walls (overflow 35 scuppers are excepted). 36 37 26. The site shall be kepfclear at all times of all garbage and debris. No outdoor storage shall 38 be permitted. 39 40 27. All planting shall be maintained in good growing condition, Such' maintenance shall 41 include, where appropriate, pruning, mowing, weeding, cleaning of debris and trash, 42 fertilizing and regular watering. Whenever necessary,planting shall be replaced with other • 43 plant materials to insure continued compliance with applicable'landscaping requirements. 44 Required irrigation systems shall be fully maintained in sound operating condition with 45 heads periodically cleaned and replaced when missing to insure continued regular watering 46 of landscape areas,and health and vitality of landscape materials. 47 48 28. Construction activities shall comply with applicable Zoning Ordinance and Municipal Code 49 Performance Standards (noise, dust, odor, etc.). Page 7 Site.Plan.arid,ArchitecturalC'view Committee Page.:1 of 10 P City of Petaluma, CA. Site Plan and Architectural Review Committee • Minutes Regular Meeting June 25, 2009 City Council Chambers03:00 p.m. City Hall, 11 English.Street Petaluma, CA ' Telephone: 707-778-4301 FAX: 707-778-4498 E-Mail: cdd©ci.petaluma.ca.us Web Page: http://www.cityofpetaluma.net The Site Plan and Architectural Review Committee encourages applicants or their representatives to be available at the meeting to answer;questions`so that no agenda item need be deferred to a later date.due to a lack of pertinent information. ROLL CALL(03:01 p.m.) Present: Dennis Elias,Terry Kosewic,John Mills,Ray Johnson,Jack Rittenhouse APPROVAL OF MINUTES:,Approve minutes of May 28,2009'(03:02 p.m.) Motion: 2. APPROVAL OF-MINUTES: Approve minutes of May 28,2009 Moved'by Dennis Elias, seconded by Ray Johnson. PUBLIC.COMMENT:The Committee will hear public comments only on matters over which it has jurisdiction. There will be no Committee discussion or action. The Chair will'allotno morethan three minutes to any individual. If more than three persons wish to speak,their time will be allotted so that the total amount of time allocated to this agenda item will be 15 minutes.(03:02 p.m.) public comment closed COMMISSIONER'S REPORT:(03:02 p.m.) CORRESPONDENCE:(03:02 p.m.) Tiffancy Rabe APPEAL STATEMENT:Within fourteen(14)days following the date of a decision of the Planning Commission,the decision may be appealed to the City Council by the applicant or by any,other interested party. If no appeal is made within that time,,the,decision shall be final.An appeal shall be addressed to the Council m writing and shall be-filed with the City Clerk..Said appealshall be accompanied by the appeal fee as specified by Resolution 2002-114-N.C.S.-as'adopted by the City Council The appeal shall state specifically the grounds•for the appeal and the relief,soughtby the appellant.(03:03 p.m.) LEGAL RECOURSE STATEMENT:Persons commenting orally_or-in_writing are advised to raiseall pertinent issues at this state of review so that possible solutions may be implemented or adopted at the earliest opportunity. If you challenge the action taken°bythe City of Petaluma in court,you maybe limited to'raising only those http://petalurna.granicus:coin/MinutesViewer.php?view_id=4&clip_id=919 2/20/2014 </,, Site Plan and Architectural Resew Committee Page 2 of 10 issues you'or someone else raised-dunng,thelpublic reviewrprocess or'in written:correspondence delivered to the City at or prior to the'conclusiorroftile public review process (03 03 p.m), OLD BUSINESSi•(03 03 p.m.) Continued from May 28,2009 meeting:LPROJECT:'GRAND GAS STATION ADDRESS: 101 NORTH MCDOWELL APPLICANT: SALE/CI TRUST PLANNER TIFFANY ROBBE The applicant is requesting approval of a remodel and modificationsal Grand Gas at North McDowell$ouleVard-within the Petaluma Plaza. Tiffany Robbe,Senior Planner Committee Member.Kosewic Ms. Robbe Committee Member Kosewic Chair Elias Ms.Robbe • Applicant Muthana Ibrahim,Arcitect Committee Member Kosewic Chair Elias Ms. Robbe Chair Elias Ms. Robbe Committee Member Johnson Chair Elias Committee Member Johnson Applicant Committee Member Johnson Chair,Elias Committee Member Kosewic Applicant Committee.Member Kosewic Applicant Committee Member Kosewic Applicant • Chair Elias • http://petaluma.granicusicom/MinutesViewer.php?view_id=4&clip_id=919 2/20/2014 Site Plan and Architectural view Committee Page.3 of 10 Applicant, Chair Elias Motion: To approve this project • Moved by Ray Johnson,seconded by Terry Kosewic. Vote:Motion carried 3-0. Yes: Dennis-Elias,Terry:Kosewic;Ray Johnson Absent:John Mills,Jack Rittenhouse. NEW BUSINESS: (03:16 p.m:) PROJECT: LOGAN,PLACE.ADDRESS:--1200 PETALUMA.BLVD.NORTH APPLICANT: PASCAL SISICHBURBANK HOUSING PLANNER: TIFFANY ROBBE The applicant is requesting,approval of Logan Place, a 66-unit multi-family affordable rental housing community, at 1200 Petaluma Boulevard North. (03:16 p.m.) Tiffany Chair Elias Chair Elias Committee Member Kosewic Ms.Robbe • Applicant Ms. Robbe • Committee Member Kosewic Committee Member Johnson Ms:Robbe Pascal Sisich,Applicant Committee Member Johnson Chair Elias • Committee Member Johnson Ms.Robbe • Committee Member Johnson Ms.Robbe Chair Elias Ms. Robbe Chair Elias • httpa/petaluma.granicus.corn/MinutesUiewer php?view_id=4&clip_id=919 2/20/2014 Site Plan;and Architectural ReVr2'w Committee Page 4 of 10 Applicant Chair Elias Applicant Chair Elias Applicant Chair Elias Applicant Committee Member Johnson Chair Elias Committee Member Kosewic Applicant Committee Member Kosewic Ms. Robbe Applicant Committee Member Kosewic Ms.Robbe Chair Elias Applicant Bob Iwerson,Applicant Architect Chair Elias Applicant Committee Member Kosewic Applicant Committee Member Kosewic Committee Member Johnson Applicant Chair Elias Applicant Chair Elias http://petaluma.granicus.com/MinutesViewer.php?view_id=4&atnp;clip_id=919 2/20/2014 j Site Plan and ArchitecturalC view Committee Page.5 of 10 Applicant Chair Elias. Applicant Chair Elias Applicant Committee Member Kosewic Applicant • Chair Elias Applicant Chair Elias Committee Member Kosewic Chair Elias Applicant Chair Elias Applicant Chair Elias Committee Member Kosewic Chair Elias Committee Member Johnson Committee Member Johnson Applicant Committee Member Johnson Chair Elias Applicant Chair Elias Applicant Applicant Architect Chair Elias Applicant Architect. Committee Member Johnson http://petaluma.granicns:corn/MinutesViewer:phOview_id=4&clip_id=919 2/20/20143 Site Plan and Architectural Re-1/2-6vCommittee J Page5 of 10 Applicant Committee-Member Johnson Applicant Chair Elias Committee Member Kosewic Applicant Committee Member Kosewic' Chair Elias • Applicant Chair Elias Applicant Chair Elias Applicant Chair Elias Applicant Chair Elias Applicant Chair Elias Applicant Chair Elias Applicant • Chair Elias Applicant Chair Elias Applicant Chair Elias Applicant Chair Elias PublicComment: http://petaluma.granicus.com/MinutesViewer,php?view_id=4&ampiclip_id=91,9 2/20/2014 Site Plan and Architectural` view Committee T Page-7 of 10 Mike Estoumes,'Lakeville Autobody Chair Elias Mr.Estomnes Chair Elias Mr.Estoumes Chair Elias Mr.Estoumes Chair Elias Mr.Estoumes Applicant Chair Elias Ms.Robbe Applicant Committee Member Kosewic Chair Elias CommitteeMember-Kosewic Ms.Robbe Chair Elias Applicant Committee Member Kosewic Chair Elias Committee Member Kosewic Chair Elias .Committee,Meriiber Kosewic Mr.Estoumes Committee Member Kosewic Chair Elias Mr.Estoumes Committee Member Johnson Applicant http://petaluma.granicus:comNiinutesViewer.php?view_id=4&clip id=919 2/20/2014 Site Planand Architectural ie A ,Committee J Page 8 of 10 Chair Ellis Estoumes Chair Elias Mr. Estournes Chair Elias Mr. Estournes Chair Elias Mr. Estoumes Applicant Chair Elias Mr. Estoumes • Chair Elias Applicant Chair Elias Committee Member Kosewic Committee Member Johnson Chair Elias Public Comment is Closed Chair Elias Committee Member Kosewic Comm ittee Member Johnson Chair Elias Applicant Chair Elias Committee Member Kosewic Chair Elias Ms.Robbe Chair,Elias Commissioner Kosewic http://petaluma.granicus.ooin/MinutesViewer.php?view_id=4&clip_id=919 2/20/2014 SitePlan.and,Architectura view Committee Page 9 of 10 Chair,Elias Robbe Chair Elias Ms. Robbe Chair Elias Ms.Robbe Chair Elias Applicant Ms.Robbe Committee Member Kosewic Committtee Member Johnson Ms.Robbe Chair Elias Ms.Robbe • Chair Elias Ms.Robbe Chair Elias Committee Member Johnson • Chair Elias Committee Member Johnson Chair.Elias • Applicant Committee Member,Kosewic Chair Elias Vote: Motion<Carried 3-0. Yes:Dennis Elias;,TerryKosewic,Ray Johnson Absent: John Mills,Jack Rittenhouse,Marianne.Hurley,Bill Wolpert Motion: Strikedraftrcondition 6; off-set CMU ok'ed; Council condition 8b shall be subject to staffreview and approval; and where possible, a fence, up to 12 feet'in height shall be constructed around the basketball/sport court, materials and design subject to staff review and approval. Moved by RayJolinson;seconded by Terry Kosewic. http://petaluma:granicus.comlMinutesViewer.php?view_id=4&amp cLip_id=91'9 2/20/2014 Site Plan and Architectural ReQr&w Committee J Page 10 of 10 APPROVAL OF.AGENDA: N/A(05:07 p.m.) ADJOURN For accessible meeting information,please call(707)'778-4360 or TDD(707)778-4480 (05:07 p.m.) • http://petaluma.granicus,com/IvlinutesViewer.php?view_id=4&amp clip_id=919 2/20/2014 Jonckheer, Elizabeth From: Hines, Heather Sent: Thursday, February 27,,2014-724 AM To: Jonckheer; Elizabeth Subject: Fwd: Safeway gas station For the project file Sent from my iPhone Begin forwarded message: From: "Cooper, Claire" <ccooper@ci.petaluma.ca.us> Date: February 27, 2014at 7:10:50 AM PST To: "Hines,Heather" <HHINES@ci.petaluma.ca.us> Cc: "Mattioli, Allison" <amattioli@cLpetaluma.ca.us> Subject: FW: Safeway gas station Original Message From: Tina Brusnahan [mailto:sbrusnahan(&,,aol.com] Sent: Wednesday, February 26, 2014 7:04 PM To: - City Clerk Subject: Safeway gas station I am FOR the building of the new Safeway gas stations McDowell Sent from my iPhone 1 6d