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HomeMy WebLinkAboutStaff Report 5.B 12/03/2018IMF DATE: December 3, 2018 TO: Honorable Mayor and Members of the City Council through City Manager FROM: Heather Hines, Planning Manager Olivia Ervin, Principal Environmental Planner SUBJECT: Resolutions for Council Action on the Appeal of the Planning Commission's approval of a Mitigated Negative Declaration and Site Plan and Architectural Review for the Safeway Fuel Center Project. RECOMMENDATION It is recommended that the City Council either: Adopt the attached resolution denying the appeal and upholding the Planning Commission's approvals for the Safeway Fuel Center project; or Adopt the attached resolution affirming the appeal of the CEQA review, directing the preparation of an Environmental Impact Report, and staying the Planning Commission decision approving Site Plan and Architectural Review of the project pending certification of the EIR and City Council review of the Site Plan and Architectural Review. BACKGROUND The Safeway Fuel Center project proposes a new gas station on the 0.71 -acre parcel located at 335 South McDowell Drive in the Washington Square Shopping Center. The site is currently developed with a 13,077 square foot commercial building which would be fully demolished to facilitate the new development. The Safeway Fuel Center project includes installation of an eight pump (16 fueling position) facility under a 5,932 square foot fueling canopy with an adjacent 697 square foot convenience store. Site improvements include, but are not limited to landscaping, off-street parking, an electric vehicle charging station, and relocation of two underground storage tanks. Primary access to the pumps is from the existing drive aisle in the shopping center with egress either onto Maria Drive via an existing curb cut or into the interior of the shopping center via a new access at the northwest corner of the parcel. Queuing space for 12 vehicles has been accommodated through placement of the fueling canopy. The project also includes improvements to the eastside transit center consisting of an off-street pull out for the three bus stops, shelters, benches, and landscaping, and a solar -powered arrival sign. A more detailed project description is available in the May 8, 2018 Planning Commission staff report and in the Initial Study (IS)/Mitigated Negative Declaration (MND) that can be found on the City's website, http://petaluma.grranicus.com/GeneratedAgendaViewer.php?view id=31&clip id=2578. On June 26, 2018 the Planning Commission adopted Resolution No. 2018-21A (Attachment 3 to Attachment 3 hereto) approving the Mitigated Negative Declaration (MND) and Resolution No. 2018-21B (Attachment 4 to Attachment 3 hereto) approving the Site Plan and Architectural Review (SPAR) for the project. The Planning Commission's decision to approve the project was made after in-depth analysis and discussion regarding potential health risk exposure because of the new gas station and in particular due to nearby sensitive receptors (school, day care, residential). Health risk due to air quality impacts as well as traffic safety issues were two primary topics discussed at the first hearing for the project. Materials for the June 26, 2018 hearing included additional technical response from both the traffic consultant and the air quality consultant to ensure that the questions, and in particular the concerns expressed by Petaluma City Schools in their letter dated May 7, 2018 (Attachment 5 to Attachment 3 hereto), were appropriately addressed. Additionally, staff prepared a Response to Comments (Attachment 8 to Attachment 3 hereto) addressing comments received during the public review period for the IS/MND. The decision was not unanimous (4-3) and there was frustration voiced by Commissioners that voted in support of the project regarding the poor public outreach by the applicant but acknowledging that there was no legally defensible reason to deny the project based on the project record. The SPAR approval included the following additional conditions of approval: • Require tanker trucks to access the site from North McDowell Boulevard • Construct a median barrier on Maria Drive to prevent left turns into and out of the center driveway onto Maria Drive • Explicitly limit maximum fuel throughput to 8.5 million gallons per year and requiring annual reporting from the applicant • Require Tier 3 construction equipment during construction • Conduct outreach to the McDowell Elementary School population prior to construction, with bilingual translators for all oral and written communication The Planning Commissioners supporting the project cited the following reasons: • No legally defensible reason for denial based on the project record • Proposed conditions of approval alleviate the remaining concerns regarding operation • All environmental issues had been adequately addressed through the analysis in the Mitigated Negative Declaration and subsequent Response to Comments • Support of overall site plan and architectural design for the project Those Commissioners opposing the project cited the following reasons: • Inadequate engagement with the surrounding neighborhood, including residents and the school population W • Incompatibility with General Plan goals related to reducing air quality and protecting quality of life Following approval of the MND for Safeway Project, a Notice of Determination was filed with the County Clerk, which was posted from June 29, 2018 through July 30, 2018. Consistent with the requirements of the Implementing Zoning Ordinance (IZO) Section 24.070, JoAnn McEachin filed an appeal within 14 days of the Planning Commission's approval. The appeal was filed on behalf of the McDowell Elementary School, Little League Children, and East Petaluma Residents, and included 15 additional signatures from members of the public. The grounds for appeal, outlined in the Letter of Appeal (Attachment 2 of Attachment 3 hereto), included: questioning the community need for the project; the proximity of the project to a day care, school and Little League ball park; traffic increase; project emissions and health impacts; traffic safety; and public awareness of the project. Initial responses to each of the grounds for appeal is included in the City Council staff report dated September 17, 2018 (Attachment 3). Comments submitted on September 14, 2018 by Soluri Meserve (Attachment 7), counsel for the appellants, challenged both the Planning Commission's Site Plan and Architectural Review approval and approval of the project's Mitigated Negative Declaration. The appeal hearing before the City Council was duly noticed for the September 17, 2018 meeting. A large volume of public comment letters was received, including technical analyses prepared by qualified consultants on behalf of the Petaluma School District and the appellants, in the days and hours leading up to the Council meeting. Due to the volume of public comment letters and new information received and given that there was insufficient time to adequately review new materials, the Council continued the item, without opening a public hearing, to October 15, 2018. On October 15, 2018, the City Council continued the item to a date certain of December 3, 2018. The staff recommendation for continuance was based on receipt of new information and to allow time for consultation with Bay Area Air Quality Management District (BAAQMD), a responsible agency for the project. DISCUSSION Leading up to the September 17, 2018 City Council hearing and in advance of the December 3, 2018 hearing, a number of additional comment letters and documents were received, including substantial new information. The following summarizes new information received. All documents are provided as attachments: 1. On behalf of the applicant, Rutan & Tucker issued a September 11, 2018 letter responding to comments raised by Mr. Sachen on behalf of the Sierra Club, Sonoma Group, and providing correct distances between the project site and nearby school and residents, and the qualifications of expert consultants who prepared studies and plans (Attachment 4). 3 2. On behalf of the Petaluma School District, Meridian Consultants conducted a review of the Safeway Fuel Center IS/MND. Meridian Consultants' letter dated September 12, 2018 identified concerns with the environmental analysis presented in the IS/MND for air quality/health risks, greenhouse gas emissions, hazards and hazardous materials, noise, and transportation/traffic (Attachment 5). 3. On behalf of the applicant, Rutan & Tucker issued a September 14, 2018 letter responding to concerns raised in the Meridian letter including supporting technical analysis prepared by Illingworth & Rodkin (Air Quality/Health Risk, GHG and Noise) and CHS Consulting (transportation) (Attachment 6). 4. On behalf of the appellant, Soluri Meserve issued a letter on September 14, 2018 including supporting technical analysis prepared by Phyllis Fox and Ray Kapahi, and on September 17, 2018 Errata thereto dated September 17, 2018. The letter asserts that the City Council should overturn the SPAR approval under its land use discretionary authority and that an Environmental Impact Report (EIR) must be prepared because there is substantial evidence to support a fair argument that the project may have significant adverse environmental impacts. The supporting technical analysis presented in the Soluri letter contains a Health Risk Assessment (HRA) using the AERMOD dispersion model and concludes that cancer risks exceed thresholds of significance (greater than 10.0 in one million, assuming a 70 -year lifetime exposure). (Attachment 7) 5. On behalf of the applicant, Rutan & Tucker issued a September 17, 2018 letter responding to comments raised in the Soluri Meserve letter (September 14, 2018) and including technical responses provided by CHS (September 17, 2018) (Attachment 8). 6. The Bay Area Air Quality Management District (BAAQMD) issued a comment letter on September 17, 2018 regarding the methodology utilized in the HRA prepared by Illingworth & Rodkin for the Safeway Fuel Center. The letter provides notice that BAAQMD's modeling analysis procedures have changed since the authority to construct permit was issued and that the AERMOD dispersion model is now recommended instead of the Industrial Source Complex Short -Term 3 (ISCST3) model (Attachment 9). 7. On behalf of the applicant, Rutan & Tucker issued an October 10, 2018 letter responding to comments raised in the BAAQMD letter (September 17, 2018) and the Fox and Kapahi HRA. The letter includes a supplemental HRA using BAAQMD's recommended AERMOD dispersion model, prepared by Illingworth & Rodkin (October 10, 2018), and concludes that cancer and health risk impacts fall below levels of significance (Attachment 10). 8. BAAQMD issued a comment letter on November 13, 2018 (letter dated November 8, 2018) regarding the methodology utilized in the HRAs prepared by Fox and Kapahi (September 17, 2018) and by Illingworth & Rodkin (October 10, 2018) for the Safeway Fuel Center. BAAQMD's comment letter indicated their review of both reports and determination that the updated Illingworth & Rodkin HRA appropriately analyzed air U quality impacts (Attachment I1). The BAAQMD letter also outlines concerns with the methodology used in the Fox and Kapahi HRA. On behalf of the applicant, Rutan & Tucker issued a November 14, 2018 letter responding to the BAAQMD comment letter and asserting that the City is required to uphold the Planning Commission's approval of the MND and SPAR because the record lacks substantial evidence of a fair argument that the project may have significant effect on the environment (Attachment 12). 10. Various comment letters have been submitted from members of the public, the vast majority of which express opposition to the project on a number of grounds including air quality/health risks, safety, and circulation/traffic, while a few express support of the project (Attachment 13 for comments received since the September 17, 2018 City Council Staff Report and Attachments 14 through 17). The materials and documentation received include opinions of community members, fact -based observations of neighbors, teachers, and parents of the McDowell Elementary School, and technical analyses and responses presented by professional experts regarding health risks, traffic and circulation, safety, noise, and hazards. The following outlines the comments from each of the public comment documents referenced above. Meridian Consultants (September 12, 2018) On behalf of the Petaluma City School District, Meridian Consultant's (Meridian) reviewed the IS/MND and issued a comment letter dated September 12, 2018. The Meridian letter identifies concerns related to Air Quality, Greenhouse Gas Emissions, Hazards and Hazardous Waste, Noise, and Transportation/Traffic (Attachment 5). The following states the primary comments raised in the Meridian letter and provides staff's responses: Comment #1: Air quality emission estimates are inaccurate because California Emission Estimator Model (CalEEMod) inputs do not fully address the land uses in the Project Description, the construction scenario precluded trenching, and soil export was not included. CalEEMod inputs were appropriately applied based on the proposed project and correctly relied on default modeling assumptions. CalEEMod, version 2016.3.1, was utilized to quantify air quality emissions from the proposed Safeway Fuel Center associated with construction and operation. Input values were disclosed in the Illingworth & Rodkin Air Quality and Greenhouse Gas Assessment (September 19, 2017), which was appended to the IS/MND. Modeling considered a 16 -pump fuel station for a Gasoline/Service Station type land use. The exclusion of a trenching phase is consistent with CalEEMod defaults. The model includes phases for site preparation, grading and paving, which captures ground disturbance activities and construction equipment similar to those that would be utilized for a standalone trenching phase. Soil export was not accounted for in the model because the project is expected to require a net import of fill to achieve elevations. Import of fill material will result in additional truck trips during construction. Although CalEEMod did not capture these additional truck trips, and the associated air quality emissions, it is estimated that approximately 75 truckloads of material would be needed to achieve building elevations. This number of trucks during construction would not substantially alter the air quality emission projections. As shown in Table 3 of the IS/MND (page 18), the project's construction emissions are well below established thresholds. The additional 75 truckloads would not substantially increase consti action emissions. Furthermore, as a condition of approval the project applicant has committed to utilize construction equipment that achieves U.S. EPA Tier 3 standards, which further reduces exhaust emissions. Therefore, CalEEMod input and assumptions utilized are appropriate and adequately reflect projected air quality emissions associated with construction of the Safeway Fuel Center project. Also, see Illingworth & Rodkin's response to this comment on page 2 of the September 14, 2018 memo prepared by Rutan & Tucker. . Comment #2: The Health Risk Assessment (prepared by Illingworth & Rodkin, dated January 8, 2014 and revised September 19, 2017) incorrectly utilized the Industrial Source Complex- Short Term, version 3 (ISCST3) dispersion model, whereas AERMOD should have been used. At the time the initial HRA for the project was prepared (2014), the ISCST3 was the BAAQMD recommended methodology. However, the Air District now recommends using the AERMOD model. See response to Comment #19 below. Comment #3: Greenhouse Gas (GHG) emission estimates are inaccurate because CalEEMod inputs were not appropriately applied and screening criteria mentioned in the MND are not relevant. CalEEMod inputs were appropriately applied for the proposed project as described in response to Comment #1 above. The IS/MND, in addition to mentioning screening criteria (page 33), also provides results of the project specific Air Quality and GHG Assessment, which quantifies GHG emission during construction and at operation. GHG emissions are presented in Table 8 of the IS/MND (page 34) and conclude that construction emission would generate an estimated 66 metric tons of carbon dioxide equivalent (MTCO2e) and operational emissions would generate an estimated 947 MTCO2e, which are both below the 1,1000 MTCO2e threshold of significance. Also see Illingworth & Rodkin's response to this comment on page 2 of the September 14, 2018 memo. Comment #4: The IS/MND did not adequately address potential hazards on the adjacent McDowell Elementary School and the 4Cs Petaluma Child Development Center located on Maria Drive. The standard for assessing impacts to schools is to measure,the distance between property lines, which is approximately 50 feet. The Air Quality section of the IS/MND incorrectly uses a distance of 475 feet and the Hazards/Hazardous Materials section of the IS/MND incorrectly uses a distance of 150 feet. The commenter is correct in stating that the distance between the property lines of the Safeway Fuel Center and the McDowell Elementary School facility is approximately 50 feet (separated by the Maria Drive right -of way). The distance of 150 feet in the 6 Hazards/Hazardous Materials section of the IS/MND was based on the distance between the 4Cs Petaluma Child Development Center building and the center of the proposed fuel station canopy. The distances identified in the Air Quality section (page 19 of the IS/MND) vary depending on the location of the sensitive receptor, as described below: "The nearest sensitive receptors in proximity to the project site, and their distances from the project's limits of work, include the North Bay Children's Center located at the northeast corner of South McDowell and Maria Drive (60 feet), McDowell Elementary School (475 feet) and associated recreational playfield (60 feet), and residences along South McDowell Boulevard (80 feet)." As a point of clarification, the distance of 475 feet was measured from the blacktop outdoor area in the center of the McDowell Elementary School facility to the nearest portion of the project site. Although the precise distances set forth in the IS/MND from various facilities to the project site were somewhat unclear, the IS/MND adequately discloses that the McDowell Elementary School is located within 1/4 mile of the project site (page 36, section 3.8 (c)). The IS/MND appropriately describes the regulatory context including Oil Spill Prevention, fuel storage, and the role of the Petaluma Fire Department in administering the Certified Unified Program Agency (CUPA) obligations (pages 37 and 38). In addition, the General Plan EIR Chapter 3.13 (pages 3.13-5 through 3.13-10) contains details regarding the regulatory context, including underground storage tanks, asbestos, CUPA, Hazardous Materials Management, Risk Management and Prevention, Hazardous Waste Handling, and Emergency Response. As the IS/MND tiers from the General Plan EIR, which is incorporated by reference, in accordance with CEQA Guidelines Sections 15150 and 15152 the detailed regulatory setting set forth in the General Plan EIR does not need to be restated. The City of Petaluma Fire Department carries out CUPA responsibilities and applies conditions to projects to obtain, necessary permits for handling and storing hazardous materials. Accordingly, the Safeway Fuel Center project is subject to conditions of approval numbers 59 and 60 imposed by the Fire Department, which require acquisition of a CUPA permit and preparation of a Hazardous Materials Response Plan, respectively. As such, the proposed gas station as a standard urban use is sufficiently regulated to ensure that potential hazards associated with siting such a facility in proximity to a school does not pose a substantial risk. Therefore, the IS/MND concludes that impacts due to hazardous emission or hazardous waste in close proximity to a school would be less than significant. Comment #5: The IS/MND does not address the cumulative hazards on schools from small releases of vapor emissions and liquid fuels at project operation. I The small releases of vapor emission would not result in cumulative significant impacts because it falls under the cumulative threshold established by BAAQMD. Vapor emissions from off gassing and operation of the proposed Safeway Fuel Center are fully analyzed as part of the Health Risk Assessment. See response to Comment #19. The small release from liquid fuels associated with fueling would not result in adverse impact to the nearby school. As described above in response 4, the project is subject to a Hazardous Materials Response Plan and a CUPA permit for the handling, transport and storage of fuels, which ensure that spill prevention and clean up procedures are in place. Additionally, the IS/MND discloses that the project has the potential to result in the release of hydrocarbons that could enter storm water and be carried offsite (page 40). However, the project includes provisions for the installation of an infiltration/bio-filtration trench which would receive and filter on-site runoff prior to discharging to the City's storm water system. As such, incremental releases from small amounts of liquid fuels does not present a substantial hazard to the adjacent School. Therefore, the IS/MND concludes that potential impacts from fueling activities in proximity to the school would be less than significant. Comment #6: The IS/MND does not address noise levels at the property line or at the outdoor areas of residences and the recreational area of the school. Ambient noise measurements were appropriately collected at the property line of the school and at the property line of the residence south of South McDowell Boulevard. The General Plan identifies the project site and vicinity (including McDowell Elementary School and residences along South McDowell Boulevard) as being located fully within the 65 dBA noise contour of Highway 101 (Figure 10-1). Additionally, South McDowell, as a primary arterial, exhibits a 70 dBA noise contour. The ambient noise measurement collected in the project site vicinity affirm the General Plan projections with an average noise level of 70 dBA, ambient daytime level of 65 dBA and a nighttime ambient level of 60 dBA. The noise impact analysis is considered relative to the ambient noise environment, in accordance with the City's Zoning Ordinance. Noise generating activities on the project site (e.g. idling, engine starts, door slams, HVAC, etc.) and noise levels on arterials from increases to traffic volumes (on South McDowell Boulevard) were considered in the noise analysis and are presented in the IS/MND (pages 45 to 46). The impact analysis focuses on nearby sensitive receptors including the nearest school building and the dwelling unit of a nearby resident. As described in the IS/MND (page 46), the proposed project would increase the noise environment by 2 dBA east of Maria Drive (at outdoor areas) and south of South McDowell Boulevard (at outdoor areas). As concluded in the IS/MND this increase is considered to be less than significant because it is below a 4 dBA increase for the area south of South McDowell Boulevard and below a 5 dBA increase for the area east of Maria Drive and noise levels are projected to remain at or below the range of the ambient daytime and nighttime noise levels. Also see Illingworth & Rodkin's response to this comment on page 4 of the September 14, 2018 memo. Comment #7: Construction activities would intermittently generate high levels of noise (70 to 85 dBA), but the IS/MND concludes that construction would not exceed 60 dBA Leq for a duration greater than 1 year. This conclusion is not adequately justified. The IS/MND appropriately discloses that construction activities generate temporary increases in the ambient noise environment associated with various stages of construction and use of construction equipment. The IS/MND tiers off of the General Plan EIR, which provides an analysis of potential impacts associated with construction activities in the planning area and includes a discussion of construction activities occurring in close proximity to sensitive noise receptors (pages 3.9-24 through 3.9-26). The General Plan EIR concludes that impacts would be less than significant and to further reduce temporary noise level from construction, best management practices (BMP) are set forth. These BMP have been added to the subject project as Mitigation Measure NOI-l. Further NOI-1(1) provides enhanced restrictions on the hours within which construction activities including material delivery can occur. It is well understood that construction activities generate temporary noise disturbance and the City General Plan and Zoning Code provide policies and regulation to minimize noise impacts. The Safeway Fuel Center project is subject to BMPs and more stringent construction hours limitations due to the proximity to nearby sensitive receptors. Therefore, the conclusion that impacts would be reduced to levels below significant is justified both in the IS/MND and the program level EIR prepared for the City's General Plan upon which the IS/MND is tiered. Comment #8: It is unclear if the increase in trips generated by the project would result in an increase in the existing roadway noise. See response to Comment #6 above. Comment #9: The Noise Study fails to provide the methodology used to determine the increase in traffic and it is unclear how a conclusion of less than significant is reached. The Noise Study (page 15) states that the traffic volumes on project area roadways were obtained from the TJKM Traffic Study. Noise volumes on roadways are a function of speed limits, vehicle mix, and flow conditions. The Noise Study described a 1 to 2 dBA increase based on the roadway parameters and projected traffic volumes. Also see response to Comment #6 above. Additionally, Illingworth & Rodkin provided a response to this comment on page 4 of the September 14, 2018 memo stating that "per acceptable acoustical practice, the increases and decreases in traffic noise levels were calculated as a function of the logarithmic relationship" of traffic volumes. Therefore, the study provides the methodology utilized, relies on acceptable practice, and the conclusion of less than significant impacts for roadway volume noise increase is substantiated. Comment 910: The IS/MND does not provide any discussion as to what conditions exist or will exist that would provide for the "conditionally acceptable" noise levels at the school to be reduced to "normally acceptable" levels. General Plan Figure 10-2 Land Use Compatibility Standards identify the acceptable, conditionally acceptable, and unacceptable noise levels for each land use within the City. For 9 schools, the generally acceptable noise standard ranges from 50 to 70 dBA and is conditionally acceptable between 60 and 70 dBA. As described above in response to Comment #6, the ambient noise environment under existing condition is 65 dBA at the school, which is already in the conditionally acceptable range (and also the normally acceptable range). This is an existing condition, due to the school's proximity to Highway 101 and South McDowell Boulevard, and is not a result of the proposed project. The Noise Study and IS/MND conclude that the proposed project would not substantially alter the noise environment. As such, the project is not required to reduce the ambient noise levels at the school or elsewhere in the project vicinity. Comment #11:.Sufficient attention is not given to pedestrian circulation and safety considerations. Concerns regarding pedestrian circulation and safety were similarly raised and responded to during the public review period on the Draft IS/MND. The Response to Comments on Safeway Fuel Center Draft IS/MND document summarizes the additional records review of collision data prepared by CHS, which is documented in CHS's Technical Memorandum Re: Petaluma Safeway Fuel Center`. Pedestrian Counts and Safety Analysis, dated June 6, 2018 and the pedestrian improvements that would be made by the project. In short, review of the five-year collision history indicates a low rate of collisions, at the Maria Drive/South McDowell Boulevard intersection, with an average vehicle collision rate of four per year. Based on the collision record, CHS concluded that there was not a pattern of pedestrian - involved collisions indicating a safety concern at the subject intersection. Importantly, the Safeway Fuel Center includes a number of improvements to the pedestrian network along the site's frontage to Maria Drive and at the Maria Drive/South McDowell Boulevard intersection, including the following: • Installation of frontage improvements consistent with approved project plans, including reflective marking/striping to be placed on curb returns/bulb outs to warn drivers and cyclists (COA #42) • Sidewalks, driveway approaches and curb ramps along the project site frontage that are broken, cracked or displaced shall be replaced (COA # 44) • A new accessible and directional pedestrian ramp shall be installed at the intersection of South McDowell Boulevard and Maria Drive (COA # 45) • Pedestrian crossing signage shall be installed at driveway entrances (COA #46) • Stop bar and legends and crosswalks shall be installed at all project intersections (COA #50) It should be noted that several of the above conditions are derived from and consistent with the City's Safe Routes to School Plan including COAs 44, 45, and 46. Accordingly, the project implements general and specific recommendations identified in the City's Safe Routes to School Plan. In Comment #12: Level of Service (LOS) is not a complete measure of impact. Due to the proximity of the school, the following General Plan policies should have been included in the MND: 5-P-24: Give priority to the pedestrian network and streetscape amenities near schools, transit, shopping, and mixed-use corridors emphasized in the General Plan. 5 -P -32G: Participate in and support recommendations of the Safe Routes to School program. 7-P-15: Improve and expand safe pedestrian, bicycle, and transit access to all school sites and campuses. Pedestrian, bicycle and public transit impacts were considered in the IS/MND in addition to LOS. Please see response to Comment #11 above regarding the project's improvements to the pedestrian network (Policy 5-P-24) and compliance with Safe Routes to School (Policy 5 -P - 32G). Regarding improvements to transit (Policy 7-P-15), the project includes a number of upgrades and enhancements to the adjacent Eastside Transit Center. The bus pullout lane will be widened such that bus queues can occur fully outside of the Maria Drive travel lane. Additionally, the Transit Center will be improved with new benches, shelters, landscaping, route -time indicators, bike racks and a transit kiosk (COA #43). Regarding improvements to bicycle facilities the project includes striping (share the road markings) and signage along the project site frontage to Maria Drive, where a Class III bike route is proposed. As such, the project achieves the intent of the above identified policies. Comment #13: A conservative traffic analysis should have assumed that most vehicle trips would exit the site onto Maria Drive, with all vehicles turning to the right. The 2014 Traffic Impact Study describes the project trip distribution and assignments on page 14 and explains that all project trips are presumed to enter/exit via the two-way drive aisle at Maria Drive (center driveway). Page 15 goes on to state that the realistic trip distribution would be expected to utilize the various driveways at the shopping center such that 40% of trips would take access via Maria Drive, 30 percent via McDowell Boulevard and 30% via Washington Street. CHS Consulting Group responded to this comment in the September 14, 2018 memo (page 2) and clarifies that the 2018 'Traffic Impact Study reflects the realistic trip distribution assuming that the multiple points of access are utilized. The trip distribution assumptions were reviewed and considered by planning and public works engineering staff and appear to be reasonable given the shopping center configuration, access and adjacent arterials. Additionally, COA # 18 precludes left in/out at the center driveway on Maria Drive and the driveway closest to the Maria Drive/South McDowell Boulevard intersection is designed to provide for right out only movements. Furthermore, delivery tiucks are precluded (COA# 15) from using Maria Drive to access the Safeway Fuel Center, which further restricts the volume of trips on Maria Drive. These design features and conditions of approval further limit trips that will use Maria Drive and reinforce the appropriateness of assigning trip distribution through the shopping center to reflect a more realistic travel pattern. Comment #14: The MND does not acknowledge that the City has identified Maria Drive as part of the Safe Routes to School network serving McDowell Elementary School. The commenter is correct that the MND fails to specifically mention that in accordance with the City's Safe Routes to School Plan, Maria Drive, South McDowell Boulevard, McGregor Street, and a number of local and collector streets are all identified as Routes to Schools. Pages 61 through 68 of the City's Safe Route to School Plan provide the setting, recommendation and graphics relating to Safe Routes and features for the McDowell Elementary School. This omission fiom the MND, does not, however, equate to a lack of analysis regarding pedestrian, bicycle, transit, and alternative transportation facilities, which is provided in Section 3.16(f) of the IS/MND. As described in response to Comment #11 above, the project includes adequate improvements and commitments to enhance pedestrian facilities and implement the Safe Routes to School Plan. Comment #15: No pedestrian safety features are described for the exit onto Maria Drive that is approximately 50 feet from the intersection with McDowell Boulevard. This statement is incorrect. The project is conditioned (COA #46) to include striping and pedestrian crossing signage at all project driveways. Soluri Meserve (September 14, 2018) On behalf of the appellant, JoAnn McEachin, Soluri Meserve (Soluri) reviewed the IS/MND and supporting studies and issued a comment letter dated September 14, 2018. The Soluri letter asserts that the City has broad discretion to deny the project and that because a "fair argument" can be made based on substantial evidence in the record that the project may have significant effect on the environment, and therefore that an environmental impact report should be prepared. The Soluri letter identifies concerns related to Air Quality, Greenhouse Gas Emissions, Hazardous Material, and Transportation/Traffic (Attachment 7). The Soluri letter is further supported by input from technical experts including a Health Risk Assessment (prepared by Fox & Kapahi), and Larry Wymer & Associates Traffic Engineering. The following states the primary comments raised in the Soluri letter and provides staffs responses: Comment #16: The City has broad discretion to deny the project. It is correct that in accordance with Section 24.010 of the City's Implementing Zoning Ordinance (IZO), Ordinance No. 2300 N.C.S., Site Plan and Architectural Review (SPAR) of projects subject to SPAR requirements is a discretionary action. Provision G of Section 24.010 entitled "Standards for Review of Applications" of the IZO provides in pertinent part that [t]he appropriate reviewing body shall review the exhibits, together with reports of the Director, and based on these documents, evidence submitted, a and the considerations set forth below, may approve the project as applied for, approve the project with modifications, or disapprove the project. The authority of the reviewing body under Section 24.010(G) to approve, approve with modifications or deny a project clearly reflects a discretionary rather than a ministerial action. Nothing in Section 24.010(G) sets forth conditions under which SPAR approval is required, only considerations for determining whether a project achieves satisfactory quality design in the individual building and its site, appropriateness of the building to its intended use, and the harmony of the development with its surroundings, based on considerations of. quality materials; architectural style and neighborhood compatibility; siting of structures compared to siting of other structures in the immediate neighborhood; the characteristics of signs; the bulk, height, and color of the proposed structure as compared to the bulk, height, and color of other structures in the immediate neighborhood; landscaping; and ingress, egress, and internal circulation. The City has consistently treated SPAR review as discretionary review triggering environmental review under CEQA. Section 15268 of the CEQA Guidelines recognize that "[t]he determination of what is `ministerial' can be most appropriately be made by the particular public agency involved based upon its analysis of its own laws." Accordingly, because the City treats its SPAR review as discretionary review, and the CEQA review conducted by the Planning Commission was the first consideration of project environmental impacts under CEQA, and in view of the Planning Commission's authority under the City's IZO and CEQA itself to condition the project based on project environmental impacts, the City insisted on its authority and obligation to consider all potential environmental impacts of the project, not merely those related to aesthetics, as the project applicant had argued. (Attachment 6, p. 4.) The Planning Commission's authority to deny SPAR approval for a project based on consideration of the,design factors in Section 24.010(G) of the IZO is clear. The City Council possesses the same authority when conducting de novo review of SPAR decisions of the Planning Commission on appeal in accordance with Section 24.070(G) of the IZO. Nonetheless, the City has not interpreted its SPAR discretion as expansively as counsel for the Appellant. The SPAR factors in Section 24.010(G) of the IZO are not limited to merely aesthetic considerations, since evaluation of functional design considerations such as ingress, egress and internal circulation (and related safety considerations) are included. However, the SPAR factors in section 24.010(G) do not expressly include a General Plan consistency finding that might be argued to incorporate the full range of General Plan policies and programs into the more focused review of design considerations under Section 240.10(G). In addition, General Plan Policy 4-P-17 regarding locating sources of air pollutants cited by Mr. Soluri as a mandatory General Plan policy is clearly permissive, as it provides measures that "may be considered" for avoiding potential health effects and citizen complaints. Mr. Soluri cites Section 1.040(C) of the IZO, which provides that the IZO requirements are minimum requirements for promotion of the public health, safety and general welfare, 13 and that more stringent requirements may be imposed when the IZO provides for such discretion. Based on Section 1.040(C), Mr. Soluri concludes that the IZO grants the City authority to deny SPAR approval for the project based on broad considerations such as whether the siting of a proposed use is in harmony with the immediate neighborhood pursuant to Section 24.010(G). However, the project site is located in a C2 zoning district, and fueling stations are permitted uses in C2 zones (Attachment 7, p. 14). The City has not interpreted its discretion under SPAR so broadly as to permit rejecting outright uses specified as permitted in a zoning district based on SPAR considerations. Doing so could undermine the stability and reliability of the permitted land uses specified in the use tables in Chapter 4 of the IZO. Comment #17: CEQA requires an EIR whenever a "fair argument" can be made that a significant impact will occur because of a project. Section 15064, Subdivision (f) of the CEQA Guidelines provides that the decision as to whether a project may have one or more significant effects shall be based on substantial evidence in the record of the lead agency, and that if the lead agency determines there is substantial evidence in the record that the project may have a significant effect on the environment, the lead agency shall prepare an EIR. The lead agency shall prepare an EIR even though it may also be presented with other substantial evidence that the project will not have a significant effect. Section 15064, Subdivision (g) of the CEQA Guidelines provides that after application of the principles set forth in Section 15064, Subdivision (f) of the CEQA Guidelines, in marginal cases where it is not clear whether there is substantial evidence that a project may have a significant effect on the environment, the lead agency shall be guided by the principle that if there is disagreement among expert opinion supported by facts of the significance of an effect on the environment, the lead agency shall treat the effect as significant and shall prepare an EIR. Under Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129, "residents' personal observations of traffic conditions where they live and commute may constitute substantial evidence even if they contradict the conclusions of a traffic study." As such, the fact -based comments of the community may constitute substantial evidence that a fair argument can be made that the project may potentially result in adverse impacts related to circulation. Additionally, in accordance with CEQA public testimony (or reasonable inferences from it) should be considered to constitute substantial credible evidence supporting a fair argument when the project may have a significant impact (Rominger v. County of Colusa (2014) 229 Ca1.App.4th 690). Given the context of the project area, which is located adjacent to the McDowell Elementary School, testimony of neighbors, parents and teachers providing fact -based observations and reasonable inferences may qualify as evidence submitted into the record suggesting that the project may result in safety concerns associated with increased activity at the North McDowell Boulevard/Maria Drive intersection. Accordingly, it is appropriate for the City Council to consider whether fact -based concerns expressed by community members related to traffic and traffic safety, discussed further below, amount to substantial evidence supporting a fair argument that the project may have significant environmental impacts. IE Comment #18: The California Air Resources Control Board (CARB) has issued longstanding land use guidance to cities and counties to locate gasoline stations with throughput of 3.6 million gallons more than 300 feet away from sensitive receptors such as homes, daycare centers and schools. Contrary to the commenter's assertion, CARB's guidance is not for the siting of new gas stations but for the siting of new sensitive receptors. Sensitive receptors such as homes, daycares centers and schools, are unregulated (by the Air District) land use types, as opposed to the source emitters (such as gasoline stations), which are regulated through the issuance of permits by the Air District. In April 2005, CARB released the Air Quality and Land Use Handbook, which is intended to encourage local land use agencies to consider the risks from air pollution before making decisions that approve the siting of new sensitive receptors, such as homes or day care centers, near sources of air pollution (CARB, 2005). The primary purpose of the handbook is to highlight the potential health impacts associated with siting new sensitive receptors in close proximity to source emitters such as freeways, distribution centers, and gasoline dispensing facilities and to encourage that local land use decisions consider health risks in the planning process. CARB set forth advisory recommendations regarding the siting distance of new sensitive land uses near source emitter. These "advisory" siting recommendations (or buffer distances), are summarized in Table 1 below. The siting of new sensitive land uses within the identified buffer distances may be possible, but only after site-specific studies are conducted to identify the potential health risks. Table 1: CARB RECOMMENDATIONS ON SITING NEW SENSITIVE USES LAND USES Source Categoryi Advisory Recommendations Freeways and High -Traffic Avoid siting new sensitive land uses within 500 feet Roads of a freeway, urban roads with 100,000 vehicles/day, or rural roads with 50,000 vehicles/day. Avoid siting new sensitive land uses within 300 feet of a large gas station (defined as a facility with a Gasoline Dispensing Facilities throughput of 3.6 million gallons per year or greater). A 50 -foot separation is recommended for typical gas dispensing facilities. Source: Air Quality and Land Use Handbook: A Community Health Perspective, prepared by CARB, April 2005. Additional Source Categories can be found on Table 1-1 of the Handbook (page 4). 15 It is important to understand that CARB's recommendations are for the siting of new sensitive receptors (homes, daycare centers and schools), as opposed to the siting of new stationary source emitters such as a gas station. As stated in CARB's handbook this is because: Unlike industrial or stationary sources of air pollution, siting of new sensitive receptors does not require an air quality permit. Because these situations fall outside the air quality permitting process, it is especially important that land use agencies be aware of potential air pollution impacts. The subject project, Safeway Fuel Center, involves the siting of a new stationary source emitter, which is subject to the air quality permitting process. The Safeway Fuel Center has received an Authority to Construct Permit from the BAAQMD and is subject to the District's Rules and Regulations. (Note, however, that the BAAQMD has indicated that the applicant must apply for an amended permit. See Attachment 11.) As set forth in the Authority to Construct Permit, Safeway must utilize Best Available Control Technology for Gasoline Dispensing Facilities including the use of California Air Resources Board (CARB)-certified Phase -I and Phase -II vapor recovery equipment. BAAQMD concluded that the Safeway Fuel Center would meet the requirement by using CNI enhanced vapor recovery (EVR) Phase I equipment and VST Balance EVR Phase II equipment with the Veeder-Root Vapor Polisher and Veeder-Root ISD controls. These two systems are certified by CARB under Executive Orders VR -104 and VR -204 respectively. The regulations imposed by BAAQMD for the siting of new stationary source emitters ensures that new facilities will not present an adverse health risk impact. Furthermore, this finding is substantiated by the HRA prepared in support of the IS/MND and the subsequent HRA prepared by Illingworth & Rodkin (October 10, 2019), which concluded that health risk impacts would be less than significant. As described in response to Comment #19, BAAQMD reviewed Illingworth & Rodkin's HRA and found it be acceptable. Siting of the proposed Safeway Fuel Center at the proposed location, proximate to the McDowell Elementary School facility and residences, does not present a significant health risk impact. CARB's guidelines regarding siting new sensitive receptors are not applicable in this instance because the project involves the siting of a new source emitter and not the siting of sensitive receptors. Comment #19: The project will result in significant human health impacts from emission of toxic air contaminants. The commenter notes that the Illingworth & Rodkin Health Risk Assessment (September 19, 2017) is invalid because it utilized the ISCST3 model when AERMOD should have been used. The commenter asserts that health risk impacts are significant based on the technical analysis contained in the Fox & Kapahi Health Risk Assessment (September 17, 2018), which used the BAAQMD recommended AERMOD dispersion model. In addition to the Soluri comment and the Fox HRA, the City also received a comment letter from BAAQMD. The BAAQMD comment letter (September 17, 2018), like the Soluri letter, directed that the HRA use the AERMOD dispersion model instead of the ISCST3 model because the Air District's permit modeling analysis procedures have changed, and current procedures use AERMOD. Ulm In response to BAAQMD and Soluri comments, Illingworth and Rodkin prepared a response to comments and a new HRA using the District recommended AERMOD (October 10, 2018). The City received and has reviewed two HRAs that utilize the AERMOD dispersion model: one from the appellant's representative, Soluri Reserve, which was prepared by Fox & Kapahi (September 17, 2018) and the other from the applicant's representative, Tucker & Rutan, which was prepared by Illingworth & Rodkin (October 10, 2018). Both HRA's utilize BAAQMD's recommended AERMOD dispersion model, but apply.different assumptions, modeling parameters and yield differing conclusions. In short, the HRA prepared by Fox & Kapahi concludes that health risk thresholds are exceeded, whereas the HRA prepared by Illingworth & Rodkin concludes that health risks resulting from operation of Safeway Fuel Center fall below thresholds of significance. The City has been consulting with BAAQMD to receive expert input on the appropriateness of methodology applied in the HRAs. The Air District was provided with both the Illingworth & Rodkin HRA and the Fox & Kapahi HRA. City staff has participated in conference calls with BAAQMD staff and email correspondence seeking expert input on the appropriateness of the modeling inputs and claims made by each HRA regarding significance determination as it relates to health risks in the project vicinity including the adjacent McDowell Elementary School facility. On November 13, 2018, the City received a comment letter dated November 8, 2018 from BAAQMD. BAAQMD's letter states that the District has reviewed the two HRAs, prepared by Illingworth & Rodkin and Fox & Kapahi, and has concerns regarding the Fox & Kapahi HRA and finds the Illingworth & Rodkin HRA to be acceptable. The BAAQMD letter states that the Fox & Kapahi HRA uses inappropriate meteorological data from Santa Rosa, which results in inaccurate wind pattern assumptions. BAAQMD also states that the benzene emission factor applied in the Fox & Kapahi HRA is substantially higher than the District's standard benzene emission factor for gasoline dispensing facilities. Further, BAAQMD finds that the residential exposure assumptions used in the Fox & Kapahi HRA are inconsistent with the District's current HRA risk calculation procedures. The BAAQMD letter concludes that the Illingworth & Rodkin HRA prepared October 10, 2018 is acceptable and resolves the District's prior concerns stated in their September 17, 2018 letter. The expert input received from BAAQMD supports the less than significant finding of the ISIMND regarding health risk impact from the proposed Safeway Fuel Center. The Safeway Fuel Center would result in less than significant impacts to health risk due to construction and operation of the proposed. Safeway Fuel Center because emissions levels and exposure risk to adjacent sensitive receptors fall below levels of significance. Comment #20: The project will result in significant impacts to GHG emissions and global climate change. 17 See response to Comment # 3 above. The methodology used to quantify GHG emissions generated by the Safeway Fuel Center is appropriate and supports a less than significant determination. Comment #21: The IS/MND fails to account for emission from the fuel sold by the project and as such the significant threshold of 1,100 metric tons of CO2e is exceeded by 68 times. The commenter's assertion that the GHG analysis must include, emissions from fuel sold by the project is contrary to industry practice. The appropriate scope of the GHG analysis includes direct and indirect emissions generated by a proposed project during construction and at operation. Direct emissions occur onsite from the fuel and energy combustion such as operation of construction equipment. Indirect emissions occur offsite from the production of electricity used for lighting, heating and cooling of onsite facilities, for the electricity required for the conveyance of water and wastewater treatment, and for fuels used in transportation for traveling to and from the project site. The BAAQMD provides guidelines for estimating a project's GHG emissions and directs use of CalEEMod for modeling purposes. In estimating a project's GHG emissions, BAAQMD directs that projects account for area sources (natural gas, hearth, fuels used for landscaping), transportation (vehicles traveling to and from the project site), electricity consumption (lights, heating and cooling), solid waste landfill (from waste generated onsite), water and wastewater (conveyance and treatment). The combustion of fuels sold at the gas station is beyond the scope of an appropriate GHG analysis. Only fuel combustion used by vehicles traveling to and from the Safeway Fuel Center is captured in the GHG analysis. This is consistent with acceptable practice utilizing BAAQMD recommended methodology. Comment 422: The traffic study assumes an admitted unrealistic trip distribution through project driveways and claims that this was done to be "conservative." See response to Comment #13. The traffic study adequately discloses assumptions and relies upon a realistic traffic pattern in assessing potential impacts. Also see CHS Consulting Group's response item 2 contained in the Technical Memorandum Re: Petaluma Safeway Fuel Center: Traffic/ Transportation Response to Peer Review Conducted by Larry Wymer, September 14, 2018, which is included as Exhibit B to Rutan & Tucker's September 17, 2018 comment letter (Attachment 8). Comment #23: The traffic study failed to identify Caltrans' thresholds of significance for Highway 101. As previously stated, the IS/MND tiers from the General Plan EIR, which is incorporated by reference, in accordance with CEQA Guidelines Sections 15150 and 15152. Information contained therein does not need to be restated. As set forth on page 3.2-20 of the General Plan EIR, significant traffic impacts on freeway segments are identified when a project causes: W 1. The volume of the freeway segment to exceed its capacity (Cause LOS #E or better to deteriorate to LOS F); or 2. An increase in the amount of traffic on a freeway segment already exceeding its capacity by more than one percent of the freeway segment's design capacity. Caltrans issued a comment letter on the Draft IS/MND stating that the project should be conditioned to contribute fair share traffic impact fees towards improvements for the U.S. Highway 101/East Washington Street interchange. Responses to the Caltrans commenter letter were included in the Response to Comments on Safeway Fuel Center Draft IS/MND document. In short, improvements at the subject interchange have already been completed. In addition, signal timing changes have similarly been completed. Caltrans did not provide any further comments regarding the adequacy of the traffic study or request any additional information. Comment #24: The traffic study failed to identify any methodology for its selection of roadway segments and intersections. Additional intersections should have been studied. The selection of study area intersections was conducted in close coordination with the City Engineer at the onset of the traffic impact study. The selection of intersections to be evaluated in traffic impact analyses is carried out on a project specific basis, depending on the nature of the project, location, and roadway conditions. The six intersections selected for evaluation in the Safeway Fuel Center traffic study continue to be appropriate as they provide information about existing and future operating conditions of the intersections that will be most affected by the proposed project. Study area intersections farther away from those selected will not be as affected because trips to/from Safeway will disperse, as evidenced by the trip distribution assumptions. The study area intersections selected provide adequate information to inform the potential traffic related effects of the proposed project. No additional study area intersections or roadway segments analysis are warranted. Also see CHS Consulting Group's response item #3 (included as Exhibit,B to Rutan & Tucker's September 17, 2018 comment letter, Attachment 8 hereto). Comment #25: The City's General Plan 2025 adopted a level of service D as the minimum acceptable operations, and signalized intersections operating at LOS E under existing conditions would result in significant impact if the addition of a new project would cause LOS E to deteriorate to LOS F. The 2014 traffic study applies these LOS thresholds for all study intersections, which violates CEQA. This is not a violation of CEQA. The City consistently applies the thresholds set forth in the General Plan. The 2018 traffic study, Table 4, identifies a LOS E during the pm peak hour for the intersection of McDowell Boulevard and Washington Street under the existing plus approved scenario. This demonstrates that this identified LOS deficiency exists without the project. Table 5 of the 2018 traffic study shows that with the addition of the subject project trips under the background scenario (existing plus approved projects), the intersection of McDowell Boulevard and Washington Street will continue to operate at LOS E, with an increase in delay of 1.5 seconds relative to the no project condition. As explained in the traffic study (page 11) and the IS/MND (page 54), the deficient LOS E occurs without the project, and therefore is not an effect N caused by the Safeway Fuel Center project. The added peak hour trips generated by the Safeway Fuel Center would contribute a 1.5 second delay at this already deficient intersection but would not cause the LOS to further degrade. Therefore, the traffic study and IS/MND appropriately conclude that traffic impacts from the Safeway Fuel Center would be less than significant. Also see CHS Consulting Group's response item #5 (included as Exhibit B to Rutan & Tucker's September 17, 2018 comment letter, Attachment 8 hereto). Comment #26: The traffic study and IS/MND rely on speculative future roadway improvements (Rainier Cross -Town Connector) that have not been adequately funded. The Rainier Cross -Town Connector is a long planned future roadway improvement that is central to the City's General Plan buildout circulation network. In 2015, the City certified the Rainier Cross -Town Connector EIR (SCH # 2011082032) and has been collecting and continues to collect funds for its development. The City's funding mechanism for Rainier is its capital improvement program (CIP), the impact fees collected for development of the program, and developer contributions. The fee structure for impact fees is based on securing sufficient funds to construct programmed CIP improvements, including Rainier, at General Plan buildout. All of the City's traffic studies that include a cumulative scenario rely on the planned roadway improvements identified in the General Plan including Rainier Cross -Town Connector. Also see CHS Consulting Group's response item #6 (included as Exhibit B to Rutan & Tucker's September 17, 2018 comment letter, Attachment 8 hereto). Comment #27: The IS/MND failed to adequately disclose and mitigate for potentially significant hazardous materials impacts See responses to Comments #4 and #5 above. BAAQMD Comments on Health Risk Assessment (November, 8th) The Bay Area Air Quality Management District (BAAQMD) issued a comment letter on September 17, 2018 regarding the methodology utilized in the HRAs prepared by Illingworth & Rodkin and by Fox & Kapahi for the Safeway Fuel Center. Comment #28: The BAAQMD's modeling analysis procedures have changed since the authority to construct permit was issued and the AERMOD dispersion model is now recommended instead of the Industrial Source Complex Short -Term 3 (ISCST3) model. See response to Comment #19. BAAQMD has found the October 10, 2018 Illingworth & Rodkin HRA which utilized the AERMOD dispersion model to be acceptable and identified several inappropriate model assumptions applied by the Fox & Kapahi HRA. Therefore, the less than significant health risk finding set forth in the IS/MND continues to be supported. As additional background, the City of Petaluma, as the lead agency, submitted the environmental document to the State Clearinghouse (SCH) for circulation to state agencies in accordance with 20 CEQA for a 30 -day public review period which extended from April 5, 2018 through May 7, 2018. BAAQMD was specifically identified as a reviewing agency in the Notice of Completion submitted to the SCH. BAAQMD did not submit comments on the IS/MND during the public comment period. It should be noted that over the course of the environmental review process and following release of the IS/MND, City Planning Staff did correspond and consult with BAAQMD staff on an ongoing basis to receive input regarding the BAAQMD's Authority to Construct Permit initially issued on October 10, 2013 and for which an extension was granted on November 9, 2017. Based on ongoing conversations with BAAQMD, it is understood that the Safeway Fuel Center IS/MND was received and reviewed by BAAQMD staff during the public comment period but did not rise to the level prompting comment as a responsible agency. The September 17, 2018 letter issued by BAAQMD was prompted due to the large volume of public comments BAAQMD received through their Community Health Protection Program. Public Comment Letters Various comment letters have been received from members of the public, the majority of which expressed opposition to the project on a number of grounds including air quality/health risks, safety, and circulation/traffic. Some of the comment letters from members of the public expressed support for the project. Comment #29: Concerns regarding air quality, health risks, public health and safety, and circulation/traffic. See response to comments above. Notwithstanding the above summarized collision record, set forth in response to Comment #11, numerous public comments have been received expressing concern regarding safety conditions at the Maria Drive/South McDowell Boulevard intersection. These concerns are prompted by experiences of school families, teachers and residents who routinely use this intersection to access facilities at the North McDowell Elementary School, services at the Safeway Shopping Plaza and nearby recreational amenities. The public comment expresses concerns about unsafe pedestrian conditions, with multiple commenters describing incidences of near collisions, which would not be captured in the collision record. The Safeway Fuel Center will increase vehicle activity at this intersection and may somewhat increase the number of pedestrians due to children, teachers and residents accessing the proposed kiosk for snacks and drinks. Acknowledging the increased activity and in an effort to further enhance safety and reduce potential conflicts between pedestrians and vehicles, COA #18 requires that a vertical delineator be installed on Maria Drive to preclude left turn movements in/out of the center driveway. COA #15 requires that all delivery vehicles including re -fueling vehicles will access the site at access points other than Maria Drive. Even with these provisions, community members continue to express concern regarding safety of the intersection due to increased activity from the Safeway Fuel Center. 21 Given the context of the project area, which is located adjacent to the McDowell Elementary School, testimony of neighbors, parents and teachers providing fact -based observations and reasonable inferences, may qualify as evidence submitted into the record suggesting that the project may result in safety concerns associated with increased activity at the North McDowell Boulevard/Maria Drive intersection. Public testimony and comment letters identify safety concerns with increasing vehicle activity at this intersection and potential conflicts with school children, pedestrians, ballpark activities, and school bus loading. For example, two commenters noted they have observed pedestrian/vehicle collisions and near -collisions in the Project area. Another commenter observed that school -aged children walk home by themselves, and the crosswalk is already a danger. A commenter expressed concern about heavy traffic and foul balls getting hit next to a busy street. Another commenter has observed cars run stop signs while working at the snack shack at Murphy Field and noted Maria Drive is heavily traveled and one of the main streets in that area. In accordance with CEQA Guidelines Section 15064(f)(1) if presented with a fair argument, the lead agency shall prepare an EIR even though it may also be presented with substantial evidence that the project will have no significant effect. Furthermore, in accordance with CEQA Guidelines Section 15064(8), "even in margin cases where it is not clear whether there is substantial evidence that a project may have a significant effect on the environment, the lead agency shall be guided by the following principal: if there is disagreement among expert opinion, then the "Lead Agency shall treat the effect as significant and shall prepare an EIR". Given the preponderance of information received during the appeal process, the City Council may reasonably conclud that a fair argument exists, based on substantial evidence, supported by fact and due to disagreement among experts that the proposed Safeway Fuel Center may result in adverse environmental impacts and thus an Environmental Impact Report is warranted to fully evaluate to project's direct and indirect environmental impacts in accordance with CEQA. Pursuant to the City's Environmental Review Guidelines (Adopted May 3, 1993 and revised May 2, 1994), Section 8.7.0 Appeals provides that "on an appeal of an Initial Study determination, if the body hearing the appeal finds there is substantial evidence to support a fair argument that a potential for significant impacts exists, the decision making body shall require that either: (1) an Expanded Initial Study or an EIR be prepared to address potential impacts which were subject to the appeal or are otherwise deemed appropriate; or (2) mitigation. measures are attached as conditions of approval that would support a Mitigated Negative Declaration." Furthermore, Section 9.6.1 sets forth the following: "Any comments challenging the determination, raising potential environmental concerns, or appealing the recommended mitigation measures shall be forwarded to the Director who shall either change the recommendation to adopt a Negative Declaration, recommend additional or alternative mitigation measures to address the concerns, or forward the comments to the decision-making body for a final determination. The 22 decision-making body shall consider any and all such comments and shall determine if: a) The comment(s) present substantial evidence of potential significant effect (as defined in Sections 4.19 and 4.22 herein); and b) If additional or alternative mitigation measures are warranted that would avoid or minimize the impact to a level of insignificance; or c) If further study (Expanded Initial Study) or an EIR should be required. City Council Action on the Appeal Based on the new information in the record and the Council's authority as the lead agency, it is recommended that the City Council, first consider, as the decision making body, whether there is substantial evidence in the record on appeal supporting a fair argument that the project may have significant environmental impacts. If the Council determines that new information presented concerning the project does not constitute substantial evidence in support of a fair argument that the project may have significant environmental impacts, it is recommended that the Council find that the MND is adequate and the project as mitigated and with implementation of the conditions of approval would not result in adverse environmental impacts, and deny the appeal of the Planning Commission's action approving a Mitigated Negative Declaration and Mitigation and Monitoring Plan pursuant to Resolution no. 2018-21A. The appeal challenges not only the Planning Commission's CEQA approval for the project but also its SPAR approval pursuant to Resolution no 2018-21B. If the Council finds that the Planning Commission's CEQA review was adequate and there is no substantial evidence supporting a fair argument that the project will have significant environmental impacts the Council is then free if it chooses to deny the appeal as to the Planning Commission's SPAR approval and to uphold the Planning Commission's SPAR approval. In this case, staff recommend that the City Council adopt the resolution found at Attachment 1. Alternatively, if the Council finds that the Planning Commission CEQA review was adequate but wishes to revisit the Planning Commission's SPAR approval, it is recommended that the Council provide direction to staff concerning its determination regarding SPAR approval. As part of its deliberation, the Council may also consider requiring additional conditions or mitigation measures to further address concerns raised relating to public health and safety.\ Alternatively, if the Council determines that the new information presented concerning the project does constitute substantial evidence of a fair argument that the project may have significant environmental impacts; i.e., that the Safeway Fuel Center may potentially result in adverse environmental impacts it is recommended that the Council uphold the appeal concerning the Planning Commission's action approving a Mitigated Negative Declaration and Mitigation and Monitoring Plan pursuant to Resolution no. 2018-212A, and direct that an EIR be prepared as permitted by the City's local Environmental Review Guidelines and supported by the State 23 CEQA Guidelines and Public Resources Code Section 21000 et seq. In this case, it is recommended that the City Council adopt the resolution found at Attachment 2. PUBLIC COMMENT Public comments received throughout the proceedings related to the application are included in prior staff reports. Public comments received since publication of the September 17, 2018 staff report are included as Attachment 13. Public notice for the September 17, 2018 City Council hearing was published in the Argus Courier and mailed to all property owners and tenants within a 1,000 -foot radius of the site and to 274 people on the interested parties list. Additionally, two public hearing signs were posted on the site in advance of the September 17, 2018 hearing. Because the appeal hearing was continued to date certain October 15, 2018 and subsequently date certain December 3, 2018, re - noticing of the public hearing was not required. FINANCIAL IMPACTS The appeal is a cost recovery project. The initial $235.00 deposit was paid by the appellant upon submittal of the appeal while all additional costs of processing the appeal are paid by the applicant. ATTACHMENTS Attachment 1 Draft City Council Resolution Attachment 2 Draft City Council Resolution Attachment 3 Safeway Appeal City Council Staff Report September 17, 2018 Attachment 1 Safeway Appeal Resolution (Superseded) Attachment 2 Letter of Appeal Attachment 3 Planning Commission Resolution No. 2018-21A Attachment 4 Planning Commission Resolution No. 2018-21B Attachment 5 June 26, 2018 Planning Commission Staff Report Attachment 6 May 8, 2018 Planning Commission Staff Report Attachment 7 Public Draft IS/MND Exhibit A Traffic Study, (online) Exhibit B Traffic Study, (online) Exhibit C Health Risk Assessment (online) Attachment 8 Response to Comments Attachment 9 Mitigation Monitoring and Reporting Program Attachment 10 Supplemental Analysis from Applicant (June 6, 2018 letter) Attachment 11 Illingworth and Rodkin (May 8, 2018) Attachment 12 Complete Plan Set Attachment 13 Applicant Supplemental Information (September 6, 2018 letter) Attachment 14Public Correspondence prior to May 8, 2018 Planning Commission Attachment 15Public Correspondence after May 8, 2018 Planning Commission through June 26, 2018 Planning Commission Attachment 16Public Correspondence after June 26, 2018 Packet Distribution Attachment 17Public Correspondence after Appeal Filed to September 11, 2018 Attachment 4 Rutan & Tucker Letter (September 11, 2018) Attachment 5 Meridian Consultant's Comments (September 12, 2018) Attachment 6 Rutan & Tucker Response to Meridian Comments (September 14, 2018) Attachment 7 Soluri Meserve Comments (September 14, 2018) Exhibit A Comments on IS/MND + HRA prepared by Fox and Kapahi (September 17, 2018) Attachment 8 Rutan & Tucker Letter (September 17, 2018) Attachment 9 BAAQMD Comment Letter (September 17, 2018) Attachment 10 Rutan & Tucker Response to Comments (October 10, 2018) Attachment 11 BAAQMD Comment Letter (November 14, 2018) Attachment 12 Rutan & Tucker Letter (November 14, 2018) Attachment 13 Public Comment Letters received September 11, 2018 to present w