HomeMy WebLinkAboutStaff Report 5.A 01/28/2019 Attachment 04-02ATTACHMENT 2
RESOLUTION OF THE CITY OF PETALUMA CITY COUNCIL
UPHOLDING THE APPEAL FILED BY JOANN MCEACHIN AS TO THE
MITIGATED NEGATIVE DECLARATION APPROVED BY THE PETALUMA
PLANNING COMMISSION ON JUNE 26, 2018 BY RESOLUTION NO, 201&21A9
ORDERING THE PREPARATION OF AN ENVIRONMENTAL IMPACT REPORT IN
ACCORDANCE WITH SECTION 15064, SUBDIVISIONS (C) AND (G) OF THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT GUIDELINES, AND STAYING
THE PLANNING COMMISSION'S APPROVAL OF SITE PLAN AND
ARCHITECUTRAL REVIEW PURSUANT TO RESOLUTION NO. 201&21 ADOPTED
JUNE 26, 2018 FOR THE SAFEWAY FUEL CENTER PROJECT
LOCATED AT 335 SOUTH McDOWELL BOULEVARD,
ASSESSOR'S PARCEL NO.007-820-046, FILE NO. PLSR 13-0012,
PENDING CERTIFICATION OF THE EIR AND CITY COUNCIL REVIEW OF THE
PROJECT SITE PLAN AND ARCHITECTURAL REVIEW APPROVAL
WHEREAS, Rutan &Tucker, LLP., on behalf of property owner Washington Square
Associates, LLC., submitted an application for Site Plan and Architectural Review approval
("Application") to demolish an existing 13,770 square foot vacant building and construct a new
5,931 square foot fueling canopy, 1.6 fuel dispensers, a 697 -square foot convenience store, and
associated landscaping and appurtenant parking ("Project") located at 335 South McDowell
Boulevard at APN 007420-046 ("Property"); and
WHEREAS, the Notice of Intent to Adopt a Mitigated Negative Declaration and notice of
a public hearing on the Application before the Petaluma Planning Commission was published in
the Argus Courier on April 5, 2018 and mailed to residents and occupants within a 500400t radius
Athe project site, in compliance with state and local law; and
WHEREAS, the public review period for the Initial Study/MitigatedNegatwe Declaration
ran from Apri15, 2018 to May 7, 2018 during which time the document was available for review
at the City's Planning Division and on the City's website; and
WHEREAS, on May 8, 2018, the Planning Commission held a duly noticed public
hearing, pursuant to Implementing Zoning Ordinance §24.010, to consider the Project; at which
time all interested parties had the opportunity to be heard; and
WHEREAS, on May 8, 2018, the Planning Commission continued the item to a date
certain of June 26, 2018 to allow interested parties an opportunity to review technical studies and
comments received about the Project; and
WHEREAS, public notice of the continued June 26, 2018 public hearing before the
Planning Commission was published in the Argus Courier on June 14, 2018 and mailed to all
occupants and property owners within a 500 -foot radius of the Project site and all public
N
ommenters on the project; and
WHEREAS, the Planning Commission held a duly noticed public hearing on the Project
on June 26, 2018, at which time all interested parties had the opportunity to be heard; and,
A
ATTACHMENT 2
WHEREAS, at the June 26, 2018 public hearing, the Planning Commission considered
the staff reports dated May 8, 2018 and June 26, 2018, analyzing the application, including the
California Environmental Quality Act ("CEQA") determination included therein, and all
comments received concerning the Project; and
WHEREAS, on June 26, 2018, prior to acting on the Site Plan and Architectural Review
application, the Planning Commission adopted a Mitigated Negative Declaration and Mitigation
Monitoring and Reporting Program prepared pursuant to the California Environmental Quality Act
("CEQA") for the Project via Resolution 2018-21A; and
WHEREAS, on June 26, 2018 following its action under CEQA the Planning
Commission approved Site Plan and Architectural Review for the Project pursuant to Resolution
2018-21B, subject to conditions of approval listed in Exhibit 1 to the Resolution; and
WHEREAS, on July 9, 2018, JoAnn McEachin ("Appellant") filed an appeal on behalf of
Appellant and McDowell Elementary School, Little League Children and East Petaluma Residents
of the Planning Commission's adoption of Resolution 2018-21A approving a Mitigated Negative
Declaration for the Project and adoption of Resolution 2018-21B approving Site Plan and
Architectural Review for the Project ("Appeal"); and
WHEREAS, the Appeal included 15 additional signatures from members of the public;
WHEREAS, the grounds for appeal given in the Appeal letter included: questioning the
community need for the Project; the proximity of the Proj ect to a day care, school and Little League
ball park; traffic increase; project emissions and health impacts, and public awareness of the
Project; and
WHEREAS, on September 6, 2018 public notice of an appeal hearing before the City
Council on September 17, 2018 was published in the Argus Courier and mailed to all property
owners and occupants within 1,000 feet of the Property; and
WHEREAS, also on September 6, 2.018 and again on September 11, 2018, counsel for the
Applicant, Matthew Francois, submitted supplemental Project information, addressing, among
other things, correspondence submitted regarding the Project on behalf of the Sierra Club and
distances between the Project site and nearby schools and residences; and
WHEREAS, by lett
er dated September 12, 2018, Chris Thomas, Chief Business Official
of Petaluma City. Schools ("School District"), asserted that an Environmental Impact Report
("EIR") is required for the Project based on comments from Meridian Consultants regarding the
approved Project Mitigated Negative Declaration addressing air quality, greenhouse gas
emissions, hazardous materials, noise, and traffic, which comments were transmitted with Ms.
Thomas' letter; and
WHEREAS, on September 14, 2018, the City received from Patrick Soluri, legal counsel
for Appellant, correspondence challenging both the Planning Commission's adoption of
Resolution No. 2018-21A approving the Project Mitigated Negative Declaration and the
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Commission's adoption of Resolution No. 2018-21B approving the Project Site Plan and
Architectural review; and
WHEREAS, the Soluri September 14, 2018 correspondence asserted that the City Council
possesses the discretion to deny, and should deny, the Project Site Plan and Architectural Review
based on: considerations of the harmony of the development with its surroundings; the siting of
the structure on the property; authority in the City's Implementing Zoning Ordinance ("IZO")
permitting imposition of requirements more stringent than those of the IZO for discretionary
projects; City General Plan policies regarding locating new stationary sources of air pollutants
sufficient distances from residential facilities and facilities that serve sensitive receptors;
California Air Resources Board ("CARB") guidance to avoid siting new sensitive land uses within
300 feet of a large gasoline dispensing facility; the proximity of the Project to the 4CS Petaluma
Child Development Center at 401 S. McDowell Boulevard; a health risk analysis finding that the
project would result in significant health risks to nearby sensitive receptors; siting of the Project
creating disharmony; and the Project being contrary to the public health, safety and general welfare
by exposing residents to health risks; and
WHEREAS, the Soluri September 14, 2018 correspondence also asserted that substantial
evidence supports a fair argument that the Project may have significant environmental impacts
because of conflicting expert analyses concerning: health risks, greenhouse gas emissions, traffic
impacts, and hazardous materials impacts, and that therefore CEQA requires the preparation of an
Environmental Impact Report (`BIR"); and
WHEREAS, the Soluri September 14, 2018 correspondence included Project traffic
analysis prepared by Larry Wymer and Associates Traffic Engineering; and
WHEREAS, on September 17, 2018, the City received comments on the Project Mitigated
Negative Declaration prepared by Fox and Kapahi on behalf of Appellant, which analyzed Project
health risks and concluded that significant health impacts from the Project required that an EIR be
prepared; and
WHEREAS, also on September 17, 2018, Mr. Francois representing the Applicant
submitted to the City correspondence responding to Mr. Soluri's correspondence from September
14, 2018 asserting that Mr. Soluri misstates that standard of review applicable to the City's
approval of the Project Site Plan and Architectural Review, that there is no substantial evidence of
a fair argument that the Project may result in significant environmental impacts, and providing a
technical memorandum from CHS Consulting Group responding to the traffic analysis of Larry
Wymer and Associates; and
WHEREAS, also on September 17, 2018, the City received comments on the Project fr
om
Damien Breen, Deputy Air Pollution Control Officer, representing the Bay Area Air Quality
Management District ("BAAQMD") noting that if the Applicant's current Project proposal differs
from the equipment description contained in the Air District Authority to Construct permit issued
for the Project, anew permit application requesting authorization for a change must be submitted,
and
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WHEREAS, the BAAQMD September 17, 2018 correspondence also commented
regarding the health risk assessment ("HRA") prepared by Illingworth and Rodkin on behalf of
the Applicant and recommended that the Applicant HRA use the AERMOD dispersion model
rather than ISCST3 and run the model with 2 volume sources, and commented regarding the May
7, 2018 peer review of the HRA prepared by ESA Consultants for the District that the Project HRA
should run at the maximum permitted throughput limit, that off-site teacher/worker maximum
health impact' should be addressed, suggesting that using full 2015 OEHHA HRA procedures
would likely be more conservative and acceptable for CEQA purposes, and concurred with
Illingworth and Rodkin's May 8, 2018 response to the ESA peer review of the HRA regarding
receptor height for children; and
WHEREAS, a staff report dated September 17, 2018 was prepared as Item 6.B of the
September 17, 2018 City Council Agenda which analyzed the appeal and included and referenced
numerous attachments comprising the record of decision before the Planning Commission for its
June 26, 2018 consideration of the Project, and numerous comments received from members of
the public after the Planning Commission approval, including public comments opposing the
Project based on the Project's proximity to the adjacent day care, school, fields and perceived
health effects, as well as traffic and congestion; and comments supporting the Project based on
lowered gas prices, need for access to fuel, and ability to conduct one-stop shopping; and
WHEREAS, due to the extensive amount of information regarding the Project received
shortly before and the day of the September 17, 2018 City Council hearing, staff recommended
that the City Council continue the appeal to October 15, 2018 to permit staff to review and provide
the Council analysis of the project information received, and to permit interested parties and
members of the public to also review the information received prior to the appeal hearing; and
WHEREAS, at the duly noticed public hearing on the Project on September 17, 2018 the
City Council continued the item to a date certain of October 15, 2018 without deliberation and
without opening the public hearing in order to allow sufficient time to adequately review the new
materials; and
WHEREAS, on October 10, 2018 the City received correspondence from Mr. Francois
representing the Applicant including a response prepared by Illingworth and Rodkin to Mr.
Soluri's September 14, 2018 correspondence, to the September 17, 2018 HRA prepared by Fox
and Kapahi on behalf of Appellant, and to the September 17, 2018 BAAQMD letter; and
WHEREAS, the October 10, 2018 Illingwort
h and Rodkin response noted that the
AERMOD air quality dispersion model had not been used for modeling potential impacts from
any CEQA project in Petaluma due to the lack of local meteorological data required by AERMOD,
that BAAQMD modeling guidance recommends the use of either AERMOD or ISCST3 models
for CEQA related HRAs, and that Illingworth and Rodkin conducted a supplemental HRA using
the AERMOD model and that analysis, included in the October 10, 2018 correspondence, also
concludes that the Project will not result in any significant health risk impacts; and
WHEREAS, in a staff report
prepared for Agenda Item SB for the October 15, 2018 City
Council meeting, staff summarized the Project -related information received since the September
17, 2018 City Council meeting and noted that a written response was anticipated from BAAQMD
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ATTACHMENT 2
to the Fox and Kapahi September 173 2018 HRA, and recommended that the hearing on the Appeal
be continued to December 3, 2018, to permit review and consideration of the newly -submitted and
anticipated Project information by City staff, decisionmakers, interested parties and members of
the public; and
WHEREAS, at the October 15, 2018 City Council meeting the City Council continued the
public hearing on the Project to a date certain of December 3, 2018 without opening the public
hearing and without deliberation to allow additional time to review new materials, including new
technical studies, and consult with responsible agencies for the project; and
WHEREAS, on November 13, 2018, the City received from Mr. Breen on behalf of
BAAQMD correspondence dated November 8, 2018 responding to the September 17, 2018 Fox
Kapahi HRA and the updated Illingworth and Rodkin HRA dated October 10, 2018; and
WHEREAS, the November 8, 2018 BAAQMD correspondence notes several key
concerns regarding the Fox and Kapahi HRA, including its.use of Santa Rosa meteorological data
as being inappropriate because of wind patterns inconsistent with the Project area, use of benzene
emission factors substantially higher than the BAAQMD standard benzene emission factor, and
residential exposure assumptions inconsistent with BAAQMD HRA risk calculation procedures;
and
WHEREAS, the November 8, 2018 BAAQMD correspondence found the October 10,
2018 Illingworth and Rodkin HRA to be acceptable and to have resolved BAA MD's concerns
expressed in the September 17, 2018 BAAQMD letter, and noted that BAAQMD has no further
comments on the October 10, 2018 HRA, and that the Project includes a gas station configuration
that differs from that approved in the current BAAQMD Authority to Construct permit, and that
therefore the Applicant must apply for permit revisions; and
WHEREAS, Petaluma residents, neighbors, teachers and administrators of the McDowell
Elementary School, 4C3 Child Development Center, and North Bay Children's Center, parents of
students, and parents of children using the baseball fields have provided written and oral comments
expressing concern regarding safety of the McDowell Boulevard and Maria Drive intersection due
to traffic volumes and speeds, conflicts with pedestrians, and increased activity resulting from the
Safeway Fuel Center, including: two commenters noting they have observed pedestrian/vehicle
collisions and near -collisions in the Project area; another commenter observing that school -aged
children walk home by themselves, and the crosswalk is already a danger; a commenter expressing
concern about heavy traffic and foul balls getting hit next to a busy street; another commenter
observing cars run stop signs while working at the snack shack at Murphy Field, and noting Maria
Drive is heavily traveled and one of the main streets in that area; and
WHEREAS, Petaluma residents, neighbors, teachers and administrators of the McDowell
Elementary School, 4Cs Child Development Center, and North Bay Children's Center, parents of
students, and parents of children using the baseball fields have provided written and oral comments
expressing concern that the Safeway Fuel Center would result in substantial changes to the
"neighborhood spirit" that would be detrimental to the neighborhood making it less desirable and
more dangerous; and
ATTACHM ENT 2
WHEREAS, Section 15064, subdivision (a), paragraph (1) of the CEQA Guidelines
provides that if there is substantial evidence, in light of the whole record before a lead agency, that
a project may have significant effect on the environment, the agency shall prepare a draft EIR; and
WHEREAS, Section 15064, subdivision (c) of the CEQA Guidelines provides that in
determining whether an effect will be adverse or beneficial, the lead agency shall consider the
views held by members of the public in all areas affected as expressed in the whole record before
the lead agency, and that before requiring the preparation of an EIR, the lead agency must still
determine whether environmental change itself might be substantial; and
WHEREAS, under Protect Niles v.City of Fremont (2018) 25 Ca1.App.S�' 1129, residents'
personal observations of traffic conditions where they live and commute may constitute substantial
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vidence even if they contradict the conclusions of a traffic study, and therefore, 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; and
WHEREAS, 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
Cal.App.4'' 690); and
WHEREAS, 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, and if a lead agency is presented with a fair
argument that a project may have a significant effect on the environment, 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; and
WHEREAS, Section 15064, Subdivision (g) of the CE
QA Guidelines provides that after
application of the principles set forth in Section 15064, Subdivision (f) of the CEQA Guidelines,
in marginal cases where it isnot clear whether there is substantial evidence that a prof ect 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; and
WHEREAS, at a noticed public hearing on December 3, 2018, at which time all interested
parties had the opportunity to be heard, the City Council considered the Appeal and all information
submitted by City staff, the Applicant, the Appellant, interested parties and members of the public
concerning the Project and the Appeal ("Record on Appeal"), all of which information comprising
the Record on Appeal is hereby incorporated into and made a part of this resolution;
follows:
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Petaluma as
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1. The above recitals are hereby declared to be true and correct and are incorporated into this
resolution as findings of the City Council.
2. On December 3, 2018 the City Council fully considered all evidence presented before and
at the duly noticed public hearing regarding this matter and comprising the Record on
Appeal, and on the basis of the staff report, testimony and other evidence, and the record of
proceedings herein, including the views held by members of the public in all areas affected
as expressed in the whole Record on Appeal, the City Council hereby affirms the appeal of
JoAnn McEachin filed with the City Clerk on July 9, 2018 on behalf of JoAnn McEachin
and McDowell Elementary School, Little League Children and East Petaluma Residents as
to the Mitigated Negative Declaration approved by the Petaluma Planning Commission on
June 26, 2017 by Resolution No. 2018-21A.
3. Petaluma residents, neighbors, teachers and administrators of the McDowell Elementary
School, 4Cs Child Development Center, and North Bay Children's Center, parents of
students, and parents of children using the baseball fields have provided written and oral
comments expressing concern regarding safety of the McDowell Boulevard and Maria
Drive intersection due to traffic volumes and speeds, conflicts with pedestrians, and
increased activity resulting from the Safeway Fuel Center, including: two commenters
noting they have observed pedestrian/vehicle collisions and near -collisions in the Project
area; another commenter observing that school -aged children walk home by themselves,
and the crosswalk is already a danger; a commenter expressing concern about heavy traffic
and foul balls getting hit next to a busy street; another commenter observing cars run stop
signs while working at the snack shack at Murphy Field, and noting Maria Drive is heavily
traveled and one of the main streets in that area. Petaluma residents, neighbors, teachers
and administrators of the McDowell Elementary School, 4Cs Child Development Center,
and North Bay Children's Center, parents of students, and parents of children using the
baseball fields have provided written and oral comments expressing concern that the
Safeway Fuel Center would result in substantial changes to the "neighborhood spirit" that
would be detrimental to the neighborhood making it less desirable and more dangerous. The
City Council hereby fmds that in accordance with Section 15064, Subdivision (g) of the
CEQA Guidelines, after application of the principles set forth in Section 15064, Subdivision
(f) of the CEQA Guidelines, that it is not clear whether there is substantial evidence that the
Project may have a significant effect on the environment. The City Council is guided by
the principles that 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, and that therefore, fact -based comments of the community may constitute
substantial evidence that a fair argument can be made that a project may potentially result
in adverse impacts related to circulation, and that if there is disagreement among expert
opinion supported by facts of the significance of an effect on the environment, the City
Council shall treat the effect as significant and shall prepare an EIR. Accordingly, the City
Council hereby orders the preparation of an EIR concerning the Project, in accordance with
Section 15064, Subdivisions (c) and (g) of the CEQA Guidelines and all other applicable
CEQA requirements, because residents' observations supported by facts of traffic
conditions that may result from the Project constitute substantial evidence supporting a fair
argument that the Project may result in significant environmental impacts, and because
residents' fact -based observations regarding traffic and traffic safety conflict with the results
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ATTACHMENT 2
of expert traffic analyses that have been prepared concerning the Project, further supporting
the need for preparation of an EIR concerning the Project.
4. The City Council hereby stays the Planning Commission's approval of Site Plan and
Architectural Review for the Safeway Fuel Center project (PLSR 13-0012) located at 335
South McDowell Boulevard pursuant to Resolution No. 2018-21B adopted June 26, 2018,
pending certification of an EIR concerning the Project and City Council review of the
Project Site Plan and Architectural Review approval.
ATTAC�IMENT2
RESOLUTION OF THE CITY OF PETALUMA CITY COUNCIL
UPHOLDING THE APPEAL FILED BY JOANN MCEACHIN AS TO THE
MITIGATED NEGATIVE DECLARATION APPROVED BY THE PETALUMA
PLANNING COMMISSION ON JUNE 26, 2018 BY RESOLUTION NO, 201&21A,
ORDERING THE PREPARATION OF AN ENVH2ONMENTAL IMPACT REPORT IN
ACCORDANCE WITH SECTION 15064, SUBDIVISIONS (C) AND (G) OF THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT GUIDELINES, AND STATING
THE PLANNING COMMISSION'S APPROVAL OF SITE PLAN AND
ARCHITECUTRAL REVIEW PURSUANT TO RESOLUTION NO.2018m21 ADOPTED
JUNE 26, 2018 FOR THE SAFEWAY FUEL CENTER PROJECT
LOCATED AT 335 SOUTH McDOWELL BOULEVARD,
ASSESSOR'S PARCEL NO. 007-820-0465 FILE NO. PLSR 13-00121
PENDING CERTIFICATION OF THE FIR AND CITY COUNCIL REVIEW OF THE
PROJECT SITE PLAN AND ARCHITECTURAL REVIEW APPROVAL
WHEREAS, Rutan &Tucker, LLP., on behalf of property owner Washington Square
Associates, LLC., submitted an application for Site Plan and Architectural Review approval
("Application") to demolish an existing 13,770 square foot vacant building and construct a new
5,931 square foot fueling canopy, 16 fuel dispensers, a 697 -square foot convenience store, and
associated landscaping and appurtenant parking ("Project") located at 335 South McDowell
Boulevard at APN 007420-046 ("Property"); and
WHEREAS, the Notice of Intent to Adopt a Mitigated Negative Declaration and notice of
a public hearing on the Application before the Petaluma Planning Commission was published in
the Argus Courier on April 5, 2018 and mailed to residents and occupants within a 500400t radius
of the project site, in compliance with state and local law; and
WHEREAS, the public review period for the Initial Study/Mitigated Negative Declaration
an from April 5, 2018 to May 7, 2018 during which time the document was available for review
at the City's Planning Division and on the City's website; and
WHEREAS, on May 8, 2018, the Planning Commission held a duly noticed public
hearing, pursuant to Implementing Zoning Ordinance §24.010, to consider the Project; at which
time all interested parties had the opportunity to be heard; and
WHEREAS, on May 8, 2018, the Planning Commission continued the item to a date
certain of June 26, 2018 to allow interested parties an opportunity to review technical studies and
comments received about the Project; and
WHEREAS, public notice of the continued June 26, 2018 public hearing before the
Planning Commission was published in the Argus Courier on June 14, 2018 and mailed to all
occupants and property owners within a 500400t radius of the Project site and all public
commenters on the project; and
WHEREAS, the Planning Commission held a duly noticed public hearing on the Project
on June 26, 2018, at which time all interested parties had the opportunity to be heard; and,
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WHEREAS, at the June 26, 2018 public hearing, the Planning Commission considered
the staff reports dated May 8, 2018 and June 26, 2018, analyzing the application, including the
California Environmental Quality Act ("CEQA") determination included therein, and all
comments received concerning the Project; and
WHEREAS, on June 26, 2018, prior to acting on the Site Plan and Architectural Review
application, the Planning Commission adopted a Mitigated Negative Declaration and Mitigation
Monitoring and Reporting Program prepared pursuant to the California Environmental Quality Act
("CEQA") for the Project via Resolution 2018-21A; and
WHEREAS, on June 26, 2018 following its action under CEQA the Planning
Commission approved Site Plan and Architectural Review for the Project pursuant to Resolution
2018-21B, subject to conditions of approval listed in Exhibit 1 to the Resolution; and
WHEREAS, on July 9, 2018, JoAnn McEachin ("Appellant") filed an appeal on behalf of
Appellant and McDowell Elementary School, Little League Children and East Petaluma Residents
of the Planning Commission's adoption of Resolution 2018-21A approving a Mitigated Negative
Declaration for the Project and adoption of Resolution 2018-21B approving Site Plan and
Architectural Review for the Project ("Appeal"); and
WHEREAS, the Appeal included 15 additional signatures from members of the public;.
WHEREAS, the grounds for appeal given in the Appeal letter included: questioning the
community need for the Project; the proximity of the Proj ect to a day care, school and Little League
ball park; traffic increase; project emissions and health impacts, and public awareness of the
Project; and
WHEREAS, on September 6, 2018 public notice of an
appeal hearing before the City
Council on September 17, 2018 was published in the Argus Courier and mailed to all property
owners and occupants within 1,000 feet of the Property; and
WHEREAS, also on September 6, 2018 an
d again on September 11, 2018, counsel for the
Applicant, Matthew Francois, submitted supplemental Project information, addressing, among
other things, correspondence submitted regarding the Project on behalf of the Sierra Club and
distances between the Project site and nearby schools and residences; and
WHEREAS, by letter dated September 12, 2018, Chris Thomas, Chief Business Offi
cial
of Petaluma City Schools ("School District"), asserted that an Environmental Impact Report
("EIR") is required for the Project based on comments from Meridian Consultants regarding the
approved Project Mitigated Negative Declaration addressing air quality, greenhouse gas
emissions, hazardous materials, noise, and traffic, which comments were transmitted with Ms.
Thomas' letter; and
WHEREAS, on September 14, 2018, the City received from Patrick Soluri, legal counsel
for Appellant, correspondence challenging both the Planning Commission's adoption of
Resolution No. 2018-21A approving the Project Mitigated Negative Declaration and the
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Commission's adoption of Resolution No. 2018-21B approving the Project Site Plan and
Architectural review; and
WHEREAS, the Soluri September 14, 2018 correspondence asserted that the City Council
possesses the discretion to deny, and should deny, the Project Site Plan and Architectural Review
based on: considerations of the harmony of the development with its surroundings; the siting of
the structure on the property; authority in the City's Implementing Zoning Ordinance ("IZO")
permitting imposition of requirements more stringent than those of the IZO for discretionary
projects; City General Plan policies regarding locating new stationary sources of air pollutants
sufficient distances from residential facilities and facilities that serve sensitive receptors;
California Air Resources Board ("CARB") guidance to avoid siting new sensitive land uses within
300 feet of a large gasoline dispensing facility; the proximity of the Project to the 4CS Petaluma
Child Development Center at 401 S. McDowell Boulevard; a health risk analysis finding that the
project would result in significant health risks to nearby sensitive receptors; siting of the Project
creating disharmony; and the Project being contrary to the public health, safety and general welfare
by exposing residents to health risks; and
WHEREAS, the Soluri September 14, 2018 correspondence also asserted that substantial
evidence supports a fair argument that the Project may have significant environmental impacts
because of conflicting expert analyses concerning: health risks, greenhouse gas emissions, traffic
impacts, and hazardous materials impacts, and that therefore CEQA requires the preparation of an
Environmental Impact Report ("EIR"); and
WHEREAS, the Soluri September 14, 2018 correspondence included Project traffi
c
analysis prepared by Larry Wymer and Associates Traffic Engineering; and
WHEREAS, on September 17, 2018, the City received comments on the Project Mitigated
Negative Declaration prepared by Fox and Kapahi on behalf of Appellant, which analyzed Project
health risks and concluded that significant health impacts from the Project required that an EIR be
prepared; and
WHEREAS, also on September 17, 2018, Mr. Francois representing the Applican
t
submitted to the City correspondence responding to Mr. Soluri's correspondence from September
14, 2018 asserting that Mr. Soluri misstates that standard of review applicable to the City's
approval of the Project Site Plan and Architectural Review, that there is no substantial evidence of
a fair argument that the Project may result in significant environmental impacts, and providing a
technical memorandum from CHS Consulting Group responding to the traffic analysis of Larry
Wymer and Associates; and
WHEREAS, also on September 17, 2018, the City received comments on the Project from
Damien Breen, Deputy Air Pollution Control Officer, representing the Bay Area Air Quality
Management District ("BAAQMD") noting that if the Applicant's current Project proposal differs
from the equipment description contained in the Air District Authority to Construct permit issued
for the Project, a new permit application requesting authorization for a change must be submitted,
and
ATTACIIIvIENT 2
WHEREAS, the BAAQMD September 17, 2018 correspondence also commented
regarding the health risk assessment ("HRA") prepared by Illingworth and Rodkin on behalf of
the Applicant and recommended that the Applicant HRA use the AERMOD dispersion model
rather than ISCST3 and run the model with 2 volume sources, and commented regarding the May
7, 2018 peer review of the HRA prepared by ESA Consultants for the District that the Project HRA
should run at the maximum permitted throughput limit, that off-site teacher/worker maximum
health impact should be addressed, suggesting that using full 2015 OEHHA HRA procedures
would likely be more conservative and acceptable for CEQA purposes, and concurred with
Illingworth and Rodkin's May 8, 2018 response to the ESA peer review of the HRA regarding
receptor height for children; and
WHEREAS, a staff report dated September 17, 2018 was prepared as Item 6.B of the
September 17, 2018 City Council Agenda which analyzed the appeal and included and referenced
numerous attachments comprising the record of decision before the Planning Commission for its
June 26, 2018 consideration of the Project, and numerous comments received from members of
the public after the Planning Commission approval, including public comments opposing the
Project based on the Project's proximity to the adjacent day care, school, fields and perceived
health effects, as well as traffic and congestion; and comments supporting the Project based on
lowered gas prices, need for access to fuel, and ability to conduct one-stop shopping; and
WHEREAS, due to the extensive amount of information regarding the Project received
shortly before and the day of the September 17, 2018 City Council hearing, staff recommended
that the City Council continue the appeal to October 15, 2018 to permit staff to review and provide
the Council analysis of the project information received, and to permit interested parties and
members of the public to also review the information received prior to the appeal hearing; and
WHEREAS, at the duly noticed public hearing on the Project on September 17, 2018 the
City Council continued the item to a date certain of October 15, 2018 without deliberation and
without opening the public hearing in order to allow sufficient time to adequately review the new
materials; and
WHEREAS on October 10, 2018 the City received correspondence from Mr. Fran
cois
representing the Applicant including a response prepared by Illingworth and Rodkin to Mr.
Soluri's September 14, 2018 correspondence, to the September 17, 2018 HRA prepared by Fox
and Kapahi on behalf of Appellant, and to the September 17, 2018 BAAQMD letter; and
WHEREAS, the October 10, 2018 Illingworth an
d Rodkin response noted that the
AERMOD air quality dispersion model had not been used for modeling potential impacts from
any CEQA project in Petaluma due to the lack of local meteorological data required by AERMOD,
that BAAQMD modeling guidance recommends the use of either AERMOD or ISCST3 models
for CEQA related HRAs, and that Illingworth and Rodkin conducted a supplemental HRA using
the AERMOD model and that analysis, included in the October 10, 2018 correspondence, also
concludes that the Project will not result in any significant health risk impacts; and
WHEREAS, in a staff report prepared for Agenda Item SB for the October 15, 2018 City
Council meeting, staff summarized the Project -related information received since the September
17, 2018 City Council meeting and noted that a written response was anticipated from BAAQMD
ATTACiIIvIENT 2
to the Fox and Kapahi September 17, 2018 HRA, and recommended that the hearing on the Appeal
be continued to December 3, 2018, to permit review and consideration of the newly -submitted and
anticipated Project information by City staff, decisionmakers, interested parties and members of
the public; and
WHEREAS, at the October 15, 2018 City Council meeting the City Council continued the
public hearing on the Project to a date certain of December 3, 2018 without opening the public
hearing and without deliberation to allow additional time to review new materials, including new
technical studies, and consult with responsible agencies for the project; and
WHEREAS, on November 13, 2018, the City received from Mr. Breen on behalf of
BAAQMD correspondence dated November 8, 2018 responding to the September 17, 2018 Fox
Kapahi HRA and the updated Illingworth and Rodkin HRA dated October 10, 2018; and
WHEREAS, the November 8, 2018 BAAQMD correspondence notes several key
concerns regarding the Fox and Kapahi HRA, including its use of Santa Rosa meteorological data
as being inappropriate because of wind patterns inconsistent with the Project area, use of benzene
emission factors substantially higher than the BAAQMD standard benzene emission factor, and
residential exposure assumptions inconsistent with BAAQMD HRA risk calculation procedures;
and
WHEREAS, the November 8, 2018 BAAQMD correspondence found the October 10,
2018 Illingworth and Rodkin HRA to be acceptable and to have resolved BAAQMD's concerns
expressed in the September 17, 2018 BAAQMD letter, and noted that BAAQMD has no further
comments on the October 10, 2018 HRA, and that the Project includes a gas station configuration
that differs from that approved in the current BAAQMD Authority to Construct permit, and that
therefore the Applicant must apply for permit revisions; and
WHEREAS, Petaluma residents, neighbors, teachers and administrators of the McDowell
Elementary School, 4Cs Child Development Center, and North Bay Children's Center, parents of
students, and parents of children using the baseball fields have provided written and oral comments
expressing concern regarding safety of the McDowell Boulevard and Maria Drive intersection due
to traffic volumes and speeds, conflicts with pedestrians, and increased activity resulting from the
Safeway Fuel Center, including: two commenters noting they have observed pedestrian/vehicle
collisions and near -collisions in the Project area; another commenter observing that school -aged
children walk home by themselves, and the crosswalk is already a danger; a commenter expressing
concern about heavy traffic and foul balls getting hit next to a busy street; another commenter
observing cars run stop signs while working at the snack shack at Murphy Field, and noting Maria
Drive is heavily traveled and one of the main streets in that area; and
WHEREAS, Petaluma residents, neighbors, teachers and administrators of the McDowell
Elementary School, 4Cs Child Development Center, and North Bay Children's Center, parents of
students, and parents of children using the baseball fields have provided written and oral comments
expressing concern that the Safeway Fuel Center would result in substantial changes to the
"neighborhood spirit" that would be detrimental to the neighborhood making it less desirable and
more dangerous; and
ATTACHIv4:N'C 2
V1'HEREAS on November 30, 2018 on behalf of Appellants, Mr. Soluri provided
correspondence to the City disputing Mr. Francois' cliaracterization of the City's discretion
concerning approval of the Project and asserting that the City may overturn the Project SPAR
approval because the Project is disharmonious with its surroundings and inconsistent with the
public health safety and welfare, and providing supplemental health risk results from Fox and
Kapahi using Petaluma wind data with the AERMOD model; and
WHEREAS. on December 1. 2018 on behalf of the Applicant, Mr. Francois provided
correspondence to the City arguing that the Appellant did not explicitly appeal the City's approval
of the Mitigated Negative Declaration within 30 -days of the filing of the Notice of Determination
with the Sonoma County Clerk, and therefore the approval of the MND was final and additionally,
arguing that no substantial evidence of a fair argument of a significant environmental impact had
been submitted and therefore the City cannot lawfidly required the preparation of an
Environmental Impact Report for the Project: and
---- Formatted: Indent: First line: 0"
R'FIEREAS, on December 2. 2018 on behalf of the Applicant Mr. Francois provided
correspondence to the City asserting that the Project wul not result in significant health risks and
that the City's discretion regarding approval of the Project is limited to design issues: and
WHEREAS, on December 3, 2018. on behalf of the Appellant Mr. Soluri's Legal Assistant
forwarded to the Ciu responses to comments on the Initial Study/Mitigated Negative Declaration
for the Safeway Fuel Center dated December 3, 2018, which responses to comments assert that:
independent scientific analyses support that gas stations should not be located near housing or
vulnerable populations: the meteorological data used in the revised Health Risk Analysis submitted
by Illingworth and Rodkin is not appropriate for predications at a range of less than 1 kilometer:
the Applicant diesel particulate emissions estimates are understated: BAAQMD guidance calls for
using an exposure duration of 70 years for risk assessments for gas stations: the BAAQMD
November 8, 2018 letter notwithstanding, using Petaluma meteorological data with the AERMOD
model reveals significant health risks: use of the CAPCOA benzene emission factor is appropriate:
the Applicant and BAAQMD underestimate benzene emissions from the Project: and that CARB
recommended setbacks for gas stations might be inadequate: and
WHEREAS. on December 3 2018. on behalf of the Appellant Mr. Soluri submitt
ed a letter
responding to Mr Francois' December 1 and 2 letters and asserting that the Tahoe Vista case does
not apply to the City Council's de novo review of appeals of Planning Commission decisions and
that the Friends ofDavis case does not apply to the appeal: and
WHEREAS, on December 3, 2018, on behalf of the Applican
t, Illingworth and Rodkin
submitted a response to the December 3, 2018 submittal from Fox and Kapahi asserting: that the
Illingworth and Rodkin health risk modelingusing AERMOD and EPA -approved procedures is
appropriate and it is improper to draw correlations beriveen the resolution of the meteorological
data and the prediction accuracy of the dispersion model: comparing 5-mpll travel emission factors
used to compute idling emissions to travel emission factors for diesel emission analysis is not
appropriate*, that BAAQMD recommends using 30 -year exposure duration for analyzing cancer
exposure risk,• that the Fox Kapahi benzene emission analyses are overstated due to California
fueling station vapor recovery standards: and that BAAQMD uses benzene to compute health risks
from gasoline evaporation: and
-6
ATTACFIIvtE;NT 2
WHEREAS, Section 15064, subdivision (a), paragraph (1) of the CEQA Guidelines
provides that if there is substantial evidence, in light of the whole record before a lead agency, that
a project may have significant effect on the environment, the agency shall prepare a draft EIR; and
WHEREAS, Section 15064, subdivision (c) of the CEQA Guidelines provides that in
determining whether an effect will be adverse or beneficial, the lead agency shall consider the
views held by members of the public in all areas affected as expressed in the whole record before
the lead agency, and that before requiring the preparation of an EIR, the lead agency must still
determine whether environmental change itself might be substantial; and
WHEREAS, under Protect Niles v. City of Fremont (2018) 25 Ca1.App.S`h 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, and therefore, 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; and
WHEREAS, in accordance with CEQA, public testimony (or reasonable inferences from
iL) should be considered to constitute substantial credible evidence supporting a fair argument
when the project may have a significant impact (Rommger v. County of Colusa (2014) 229
Cal.App.4th 690); and
WHEREAS, 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, and if a lead agency is presented with a fair
argument that a project may have a significant effect on the environment, 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; and
WHEREAS, 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; and
WHEREAS, at a noticed public hearing on December 3, 2018, at which time all interested
parties had the opportunity to be heard, the City Council considered the Appeal and all information
submitted by Citystaff, the Applicant, the Appellant, interested parties and members of the public
concerning the Project and the Appeal ("Record on Appeal"), all of which information comprising
the Record on Appeal is hereby incorporated into and made a part of this resolution;
NOW THEREFORE BE IT RESOLVED by the City
Council of the City of Petaluma as
follows:
,_7
� : July► _
1. The above recitals are hereby declared to be true and correct and are incorporated into this
resolution as findings of the City Council,
2. On December 3, 2018 the City Council fully considered all evidence presented before and
at the duly noticed public hearing regarding this matter and comprising the Record on
Appeal, and on the basis of the staff report, testimony and other evidence, and the record of
proceedings herein, including the views held by members of the public in all areas affected
as expressed in the whole Record on Appeal, the City Council hereby affirms the appeal of
JoAnn McEachin filed with the City Clerk on July 9, 2018 on behalf of JoAnn McEachin
and McDowell Elementary School, Little League Children and East Petaluma Residents as
to the Mitigated Negative Declaration approved by the Petaluma Planning Commission on
June 26, 2017 by Resolution No. 2018-21A.
3_Petaluma residents, neighbors, teachers and administrators of the McDowell Elementary
School, 4Cs Child Development Center, and North Bay Children's Center, parents of
students, and parents of children using the baseball fields have provided written and oral
comments expressing concern regarding safety of the McDowell Boulevard and Maria
Drive intersection due to traffic volumes and speeds, conflicts with pedestrians, and
increased activity resulting from the Safeway Fuel Center, including: two commenters
_noting they have observed pedestrian/vehicle collisions and near -collisions in the Project
area; another commenter observing that school -aged children walk home by themselves,
and the crosswalk is already a danger; a commenter expressing concern about heavy traffic
and foul balls getting hit next to a busy street; another commenter observing cars run stop
signs while working at the snack shack at Murphy Field, and noting Maria Drive is heavily
traveled and one of the main streets in that area. Petaluma residents, neighbors, teachers
and administrators of the McDowell Elementary School, 4Cs Child Development Center,
and North Bay Children's Center, parents of students, and parents of children using the
baseball fields have provided written and oral comments expressing concern that the
Safeway Fuel Center would result in substantial changes to the "neighborhood spirit" that
would be detrimental to the neighborhood making it less desirable and more dangerous.
F----- Formatted: Indent: Left: 1", Hanging: 0.5", No bullets or
numbering
4. Fox and Kapahi, in the responses to comments on the Initial Study/Mitigated Negative
Declaration for the Safeway Fuel Center dated December 3, 2018 submitted on behalf of
Appellant. assert that: independent scientific analyses support that gas stations should not
be located near housing or vulnerable populations: the meteorological data used in the
revised Health Risk Analysis submitted by Illingi'vorth and Rodkin is not appropriate for
predications at a range of less than 1 kilometer: the Applicant diesel particulate emissions
estimates are understated; BAAQMD guidance calls for using an exposure duration of 70
years for risk assessments for gas stations; the BAAQMD November 8, 2018 letter
notwithstanding, using Petaluma meteorological data with the AERMOD model reveals
significant health risks: use of the CAPCOA benzene emission factor is appropriate: the
Applicant and BAAQMD underestimate benzene emissions from the Project; and CARB
recommended setbacks for gas stations may inadequate.
t------ Formatted: List Paragraph, No bullets or numbering, Allow
5. Illingworth mid Rodkin, in response to the December 3. 2018 submittal from Fox and hanging punctuation, Adjust space between Latin and Asian
Ka ahi on behalf of the A eliant, assert that: the Illin with and Rodkin health risk text, Adjust space between Asian tent and numbers, Font
p pp Alignment: Auto, Tab stops: Not at 2.19"
modeling using AERMOD and EPA -approved procedures is appropriate, and itis improper
2-8
ATTACI IMENT 2
to draw correlations beriveen the resolution of the meteorological data and the prediction
accuracy of the dispersion model: comparing 5 -mph travel emission factors used to compute
idling emissions to travel emission factors for diesel emission analysis is not appropriate:
BAAOMD recommends using 30 -near exposure duration for analyzing cancer exposure
risk: the Fox Kapahi benzene emission analyses are overstated due to California fueline
station vapor recovery standards: and BAAQMD uses benzene to compute health risks from
gasoline evaporation.
----- Formatted: List Paragraph, No bullets or numbering, Allow
6. The City Council hereby finds that in accordance with Section 15064, Subdivision (g) of hanging punctuation, Adjust space between Latin and Asian
the CEOA Guidelines, after application of theprinciples set forth in Section 15064, text, Adjust space between Asian text and numbers, Font
� Alignment: Auto, Tab stops: Not at 2.19"
Subdivision (f) of the CEO A Guidelines. that it is not clear whether there is substantial
evidence that the Project may have a significant effect on the environment, and that there is
disagreement among expert opinions supported by facts submitted on behalf of Applicant
(the Illingworth and Rodkin analyses). on behalf of Appellant (the Fox Kapahi analyses).
and on behalf of the BAAQMD, and therefore the Cibr Council is guided by the principal
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.
7_ b
F .,low mar C .Wl,
Subdivision (f) of the GEQA Guidelines, that it is ;;m elear ;Arhethew ther-el, iss substantial
lidence that theProject may have a signif eanteffeet on the efiviretinfleni.. The City
Council is also guided by the principles that 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, and that therefore, fact -based comments of the
community may constitute substantial evidence that a fair argument can be made that a
project may potentially result in adverse impacts related to circulation, and that if there is
disagreement among expert opinion residents' personal observations supported by facts of
the significance of an effect on the environment, the City Council shall treat the effect as
significant and shall prepare an EIR.
�-.8.
t------ Formatted: List Paragraph, No bullets or numbering, Allow
hanging punctuation, Adjust space between Latin and Asian
text, Adjust space between Asian text and numbers, font
5 Accordingly, the City Council hereby orders the preparation of an EIR concerning the
Alignment: Auto, Tab stops: Not at 2.19"
Project, in accordance with Section 15064, Subdivisions (c) and (g) ofthe CEQA Guideline
and all other applicable CEQA requirements, because there is disagreement among expert
Minions sunnorted by facts submitted on behalf of Applicant (the Illingworth and Rodkin
analyses), on behalf of Appellant (the Fox Kapahi analv
ses), and on behalf of the
BAAOMD. and because residents' observations supported by facts of traffic conditions that
may result from the Project constitute substantial evidence supporting a fair argument that
the Project may result in significant environmental impacts, and because residentsfact-
based observations regarding traffic and traffic safety conflict with the results of expert
traffic analyses that have been prepared concerning the Project, further supporting the need
for preparation of an EIR concerning the Project.
7he City Council hereby stays the Planning Commission's approval of Site Plan and
--Architectural Review for the Safeway Fuel Center project CDT QT?
13-0012) located at 335
South McDowell Boulevard pursuant to Resolution No. 2018-21B adopted June 26, 2018,
-9
FormatTh Clt3 ted: Indent: Left: 1", Hanging: 0.5", No bullets or numbering
ATTACHMENT 2
pending certification of an EIR concerning the Project and City Council review of the
Project Site Plan and Architectural Review approval.
ATTACHMENT 2
RESOLUTION OF THE CITY OF PETALUMA CITY COUNCIL
UPHOLDING THE APPEAL FILED BY JOANN MCEACHIN AS TO THE
MITIGATED NEGATIVE DECLARATION APPROVED BY THE PETALUMA
PLANNING COMMISSION ON JUNE 269 2018 BY RESOLUTION NO. 201&21A,
ORDERING THE PREPARATION OF AN ENVIRONMENTAL IMPACT REPORT IN
ACCORDANCE WITH SECTION 15064, SUBDIVISIONS (C) AND (G) OF THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT GUIDELINES, AND STAYING
THE PLANNING COMMISSION'S APPROVAL OF SITE PLAN AND
ARCHITECUTRAL REVIEW PURSUANT TO RESOLUTION NO.2018-21 ADOPTED
JUNE 269 2018 FOR THE SAFEWAY FUEL CENTER PROJECT
LOCATED AT 335 SOUTH McDOWELL BOULEVARD,
ASSESSOR'S PARCEL NO, 007-820-046, FILE NO. PLSR 13-0012,
PENDING CERTIFICATION OF THE FIR AND CITY COUNCIL REVIEW OF THE
PROJECT SITE PLAN AND ARCHITECTURAL REVIEW APPROVAL
WHEREAS, Rutan &Tucker, LLP., on behalf of property owner Washington Square
Associates, LLC., submitted an application for Site Plan and Architectural Review approval
("Application") to demolish an existing 13,770 square foot vacant building and construct a new
5,931 square foot fueling canopy, 16 fuel dispensers, a 697 -square foot convenience store, and
associated landscaping and appurtenant parking ("Project") located at 335 South McDowell
Boulevard at APN 007-820-046 ("Property"); and
WHEREAS, the Notice of Intent to Adopt a Mitigated Negative Declaration and notice of
a public hearing on the Application before the Petaluma Planning Commission was published in
the Argus Courier on April 5, 2018 and mailed to residents and occupants within a 50046ot radius
Athe project site, in compliance with state and local law; and
WHEREAS, the public review period for the Initial StudylMitigated-XT
egative Declaration
all from April 5, 2018 to May 7, 2018 during which time the document was available for review
at the City's Planning Division and on the City's website; and
WHEREAS, on May 8, 2018, the Planning Commission held a duly noticed public
hearing, pursuant to Implementing Zoning Ordinance §24.01.0, to consider the Project; at which
time all interested parties had the opportunity to be heard; and
WHEREAS, on May 8, 2018, the Planning Commission continued the item to a date
certain of June 26, 2018 to allow interested parties an opportunity to review technical studies and
comments received about the Project; and
WHEREAS, public notice of the continued June 26, 2018 public hearing before the
Planning Commission was published in the Argus Courier on June 14, 2018 and mailed to all
occupants and property owners within a 500 -foot radius of the Project site and all public
commenters on the project; and
WHEREAS, the Planning Commission held a duly noticed public hearing on the Project
on June 26, 2018, at which time all interested parties had the opportunity to be heard; and,
ATTACHMENT 2
WHEREAS, at the June 26, 2018 public hearing, the Planning Commission considered
the staff reports dated May 8, 2018 and June 26, 2018, analyzing the application, including the
California Environmental Quality Act ("CEQA") determination included therein, and all
comments received concerning the Project; and
WHEREAS, on June 26, 2018, prior to acting on the Site Plan and Architectural Review
application, the Planning Commission adopted a Mitigated Negative Declaration and Mitigation
Monitoring and Reporting Program prepared pursuant to the California Environmental Quality Act
("CEQA") for the Project via Resolution 2018-21A; and
WHEREAS, on June 265 2018 following its action under CEQA the Planning
Commission approved Site Plan and Architectural Review for the Project pursuant to Resolution
2018-21B, subject to conditions of approval listed in Exhibit 1 to the Resolution; and
WHEREAS, on July 9, 2018, JoAnn McEachin ("Appellant") filed an appeal on behalf of
Appellant and McDowell Elementary School, Little League Children and East Petaluma Residents
A the Planning Commission's adoption of Resolution 201&21A approving a Mitigated Negative
Declaration for the Project and adoption of Resolution 201&21B approving Site Plan and
Architectural Review for the Project ("Appeal"); and
WHEREAS, the Appeal included 15 additional signatures from members of the public;
WHEREAS, the grounds for appeal given in the Appeal letter included: questioning the
community need for the Project; the proximity of the Proj ect to a day care, school and Little League
ball park; traffic increase; project emissions and health impacts, and public awareness of the
Project; and
WHEREAS, on September 6, 2018 public notice of an appeal hearing before the City
Council on September 17, 2018 was published in the Argus Courier and III to all property
owners and occupants within 1,000 feet of the Property; and
WHEREAS, also on September 6, 2018 and again on September 11, 2018, counsel for the
Applicant, Matthew Francois, submitted supplemental Project information, addressing, among
Aber things, correspondence submitted regarding the Project on behalf of the Sierra Club and
distances between the Project site and nearby schools and residences; and
WHEREAS, by lett
er dated September 12, 2018, Chris Thomas, Chief Business Official
of Petaluma City Schools ("School District"), asserted that an Environmental Impact Report
("EIR") is required for the Project based on comments from Meridian Consultants regarding the
approved Project Mitigated Negative Declaration addressing air quality, greenhouse gas
emissions, hazardous materials, noise, and traffic, which comments were transmitted with Ms.
Thomas' letter; and
WHEREAS, on September 14, 2018, the City received fr
om Patrick Soluri, legal counsel
for Appellant, correspondence challenging both the Planning Commission's adoption of
Resolution No. 2018-21A approving the Project Mitigated Negative Declaration and the
2-2
ATTACHMENT 2
Commission's adoption of Resolution No. 2018-2115 approving the Project Site Plan and
Architectural review; and
WHEREAS, the Soluri September 14, 2018 correspondence asserted that the City Council
possesses the discretion to deny, and should deny, the Project Site Plan and Architectural Review
based on: considerations of the harmony of the development with its surroundings; the siting of
the structure on the property; authority in the City's Implementing Zoning Ordinance ("IZO")
permitting imposition of requirements more stringent than those of the IZO for discretionary
projects; City General Plan policies regarding locating new stationary sources of air pollutants
sufficient distances from residential facilities and facilities that serve sensitive receptors;
California Air Resources Board ("CARB") guidance to avoid siting new sensitive land uses within
300 feet of a large gasoline dispensing facility; the proximity of the Project to the 4CS Petaluma
Child Development Center at 401 S. McDowell Boulevard; a health risk analysis finding that the
project would result in significant health risks to nearby sensitive receptors; siting of the Project
creating disharmony; and the Project being contrary to the public health, safety and general welfare
by exposing residents to health risks; and
WHEREAS, the Soluri September 14, 2018 correspondence also asserted that substantial
evidence supports a fair argument that the Project may have significant environmental impacts
because of conflicting expert analyses concerning: health risks, greenhouse gas emissions, traffic
impacts, and hazardous materials impacts, and that therefore CEQA requires the preparation of an
Environmental Impact Report (`BIR"); and
WHEREAS, the Soluri September 14, 2018 correspondence included Project traffic
analysis prepared by Larry Wymer and Associates Traffic Engineering; and
WHEREAS, on September 17, 2018, the City received comments on the Project Mitigated
Negative Declaration prepared by Fox and Kapahi on behalf of Appellant, which analyzed Project
health risks and concluded that significant health impacts from the Project required that an EIR be
prepared; and
WHEREAS, also on September 17, 2018, Mr. Francois representing the Applicant
submitted to the City correspondence responding to Mr. Soluri's correspondence from September
14, 2018 asserting that Mr. Soluri misstates that standard of review applicable to the City's
approval of the Project Site Plan and Architectural Review, that there is no substantial evidence of
a fair argument that the Project may result in significant environmental impacts, and providing a
technical memorandum from CHS Consulting Group responding to the traffic analysis of Larry
Wymer and Associates; and
WHEREAS, also on September 17, 2018, the City received comments on the Project from
Damien Breen, Deputy Air Pollution Control Officer, representing the Bay Area Air Quality
Management District ("BAAQMD") noting that if the Applicant's current Project proposal differs
from the equipment description contained in the Air District Authority to Construct permit issued
for the Project, a new permit application requesting authorization for a change must be submitted,
and
ATTAMVIVIENT 2
WHEREAS, the BAAQMD September 17, 2018 correspondence also commented
regarding the health risk assessment ("HRA") prepared by Illingworth and Rodkin on behalf of
the Applicant and recommended that the Applicant HRA use the AERMOD dispersion model
rather than ISCST3 and run the model with 2 volume sources, and commented regarding the May
7, 2018 peer review of the HRA prepared by ESA Consultants for the District that the Project HRA
should run at the maximum permitted throughput limit, that off-site teacher/worker maximum
health impact should be addressed, suggesting that using full 2015 OEHHA HRA procedures
would likely be more conservative and acceptable for CEQA purposes, and concurred with
Illingworth and Rodkin's May 8, 2018 response to the ESA peer review of the HRA regarding
receptor height for children; and
WHEREAS, a staff report dated September 17, 2018 was prepared as Item 6.B of the
September 17, 2018 City Council Agenda which analyzed the appeal and included and referenced
numerous attachments comprising the record of decision before the Planning Commission for its
June 26, 2018 consideration of the Project, and numerous comments received from members of
the public after the Planning Commission approval, including public comments opposing the
Project based on the Project's proximity to the adjacent day care, school, fields and perceived
health effects, as well as traffic and congestion; and comments supporting the Project based on
lowered gas prices, need for access to fuel, and ability to conduct one-stop shopping; and
WHEREAS, due to the extensive amount of information regarding the Project received
shortly before and the day of the September 17, 2018 City Council hearing, staff recommended
that the City Council continue the appeal to October 15, 2018 to permit staff to review and provide
the Council analysis of the project information received, and to permit interested parties and
members of the public to also review the information received prior to the appeal hearing; and
WHEREAS, at the duly noticed public hearing on the Project on September 17, 2018 the
City Council continued the item to a date certain of October 15, 2018 without deliberation and
without opening the public hearing in order to allow sufficient time to adequately review the new
materials; and
WHEREAS, on October 10, 2018 the City received correspondence from Mr. Francois
reFresenting the Applicant including a response prepared by Illingworth and Rodkin to Mr.
Soluri's September 14, 2018 correspondence, to the September 17, 2018 HRA prepared by Fox
and Kapahi on behalf of Appellant, and to the September 17, 2018 BAAQMD letter; and
WHEREAS, the October 10, 2018 Illingwort
h and Rodkin response noted that the
AERMOD air quality dispersion model had not been used for modeling potential impacts from
any CEQA project in Petaluma due to the lack of local meteorological data required by AERMOD,
that BAAQMD modeling guidance recommends the use of either AERMOD or ISCST3 models
for CEQA related HRAs, and that Illingworth and Rodkin conducted a supplemental HRA using
the AERMOD model and that analysis, included in the October 10, 2018 correspondence, also
concludes that the Project will not result in any significant health risk impacts; and
WHEREAS, in a staff report
prepared for Agenda Item SB for the October 15, 2018 City
Council meeting, staff summarized the Project -related information received since the September
17, 2018 City Council meeting and noted that a written response was anticipated from BAAQMD
24
ATTACHMENT 2
to the Fox and Kapahi September 17, 2018 HRA, and recommended that the hearing on the Appeal
be continued to December 3, 2018, to permit review and consideration of the newly -submitted and
anticipated Project information by City staff, decisionmakers, interested parties and members of
the public; and
WHEREAS, at the October 155 2018 City Council meeting the City Council continued the
public hearing on the Project to a date certain of December 3, 2018 without opening the public
hearing and without deliberation to allow additional time to review new materials, including new
technical studies, and consult with responsible agencies for the project; and
WHEREAS, on November 13, 2018, the City received from Mr. Breen on behalf of
BAAQMD correspondence dated November 8, 2018 responding to the September 17, 2018 Fox
LK apahi HRA and the updated Illingworth and Rodkin HRA dated October 10, 2018; and
WHEREAS, the November 8, 2018 BAAQMD correspondence notes several key
concerns regarding the Fox and Kapahi HRA, including its use of Santa Rosa meteorological data
as being inappropriate because of wind patterns inconsistent with the Project area, use of benzene
emission factors substantially higher than the BAAQMD standard benzene emission factor, and
residential exposure assumptions inconsistent with BAAQMD HRA risk calculation procedures;
and
WHEREAS, the November 8, 2018 BAAQMD correspondence found the October 10,
2018 Illingworth and Rodkin HRA to be acceptable and to have resolved BAAQMD's concerns
A
xpressed in the September 17, 2018 BAAQMD letter, and noted that BAAQMD has no further
comments on the October 10, 2018 HRA, and that the Project includes a gas station configuration
that differs from that approved in the current BAAQMD Authority to Construct permit, and that
therefore the Applicant must apply for permit revisions; and
WHEREAS, Petaluma residents, neighbors,. teachers and administrators of the McDowell
Elementary School, 4Cs Child Development Center, and North Bay Children's Center, parents of
students, and parents of children using the baseball fields have provided written and oral comments
expressing concern regarding safety of the McDowell Boulevard and Maria Drive intersection due
to traffic volumes and speeds, conflicts with pedestrians, and increased activity resulting from the
Safeway Fuel Center, including: two commenters noting they have observed pedestrian/vehicle
collisions and near -collisions in the Project area; another commenter observing that school -aged
children walk home by themselves, and the crosswalk is already a danger; a commenter expressing
concern about heavy traffic and foul balls getting hit next to a busy street; another commenter
observing cars run stop signs while working at the snack shack at Murphy Field, and noting Maria
Drive is heavily traveled and one of the main streets in that area; and
WHEREAS, Petaluma residents, neighbors, teachers and administrators of the McDowell
Elementary School, 4Cs Child Development Center, and North Bay Children's Center, parents of
students, and parents of children using the baseball fields have provided written and oral comments
expressing concern that the Safeway Fuel Center would result in substantial changes to the
"neighborhood spirit" that would be detrimental to the neighborhood making it less desirable and
more dangerous; and
ATTACHM ENT 2
WHEREAS, on November 30, 2018 on behalf of Appellants, Mr. Soluri provided
correspondence to the City disputing Mr. Francois' characterization of the City's discretion
concerning approval of the Project and asserting that the City may overturn the Project SPAR
approval because the Project is disharmonious with its surroundings and inconsistent with the
public health safety and welfare, and providing supplemental health risk results from Fox and
Kapahi using Petaluma wind data with the AERMOD model; and
WHEREAS, on December 1, 2018 on behalf of the Applicant, Mr. Francois provided
correspondence to the City arguing that the Appellant did not explicitly appeal the City's approval
of the Mitigated Negative Declaration within 30 -days of the filing of the Notice of Determination
with the Sonoma County Clerk, and therefore the approval of the MND was final and additionally,
arguing that no substantial evidence of a fair argument of a significant environmental impact had
been submitted and therefore the City cannot lawfully required the preparation of an
Environmental Impact Report for the Project; and
WHEREAS, on December 2, 2018 on behalf of the Applicant Mr. Francois provided
correspondence to the City asserting that the Project will not result in significant health risks and
that the City's discretion regarding approval of the Project is limited to design issues; and
WHEREAS, on December 3, 2018, on behalf of the Appellant Mr. Soluri's Legal Assistant
forwarded to the City responses to comments on the Initial Study/Mitigated Negative Declaration
for the Safeway Fuel Center dated December 3, 2018, which responses to comments assert that:
independent scientific analyses support that gas stations should not be located near housing or
vulnerable populations; the meteorological data used in the revised Health Risk Analysis submitted
by Illingworth and Rodkin is not appropriate for predications at a range of less than 1 kilometer;
the Applicant diesel particulate emissions estimates are understated; BAAQMD guidance calls for
using an exposure duration of 70 years for risk assessments for gas stations; the BAAQMD
November 8, 2018 letter notwithstanding, using Petaluma meteorological data with the AERMOD
model reveals significant health risks; use of the CAPCOA benzene emission factor is appropriate;
the Applicant and BAAQMD underestimate benzene emissions from the Project; and that CARB
recommended setbacks for gas stations might be inadequate; and
WHEREAS, on December 3 2018, on behalf of the Appellant Mr. Soluri submitted a letter
responding to Mr. Francois' December 1 and 2 letters and asserting that the Tahoe Vista case does
not apply to the City Council's de novo review of appeals of Planning Commission decisions, and
that the Friends of Davis case does not apply to the appeal; and
WHEREAS, on December 3, 2018, on behalf of the Applicant, Illingworth an
d Rodkin
submitted a response to the December 3, 2018 submittal from Fox and Kapahi asserting: that the
Illingworth and Rodkin health risk modeling using AERMOD and EPA -approved procedures is
appropriate and it is improper to draw correlations between the resolution of the meteorological
data and the prediction accuracy of the dispersion model; comparing 5 -mph travel emission factors
used to compute idling emissions to travel emission factors for diesel emission analysis is not
appropriate; that BAAQMD recommends using 30 -year exposure duration for analyzing cancer
exposure risk; that the Fox Kapahi benzene emission analyses are overstated due to California
fueling station vapor recovery standards; and that BAAQMD uses benzene to compute health risks
from gasoline evaporation; and
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WHEREAS, Section 15064, subdivision (a), paragraph (1) of the CEQA Guidelines
provides that if there is substantial evidence, in light of the whole record before a lead agency, that
a project may have significant effect on the environment, the agency shall prepare a draft EIR; and
WHEREAS, Section 150645 subdivision (c) of the CEQA Guidelines provides that in
determining whether an effect will be adverse or beneficial, the lead agency shall consider the
views held by members of the public in all areas affected as expressed in the whole record before
the lead agency, and that before requiring the preparation of an EIR, the lead agency must still
determine whether environmental change itself might be substantial; and
WHEREAS, under ProtectNiles v.City of Fremont (2018) 25 Cal.App0 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, and therefore, 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; and
WHEREAS, 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
Cal.App.41h 690); and
WHEREAS, 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, and if a lead agency is presented with a fair
argument that a project may have a significant effect on the environment, 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; and
WHEREAS, Section 15064, Subdivision (g) of the CE
QA 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; and
WHEREAS, at a noticed public hearing on December 3, 2018, at which time all interested
parties had the opportunity to be heard, the City Council considered the Appeal and all information
submitted by City staff, the Applicant, the Appellant, interested parties and members of the public
concerning the Project and the Appeal ("Record on Appeal"), all of which information comprising
the Record on Appeal is hereby incorporated into and made a part of this resolution;
follows:
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Petaluma as
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ATTACHMENT 2
1. The above recitals are hereby declared to be true and correct and are incorporated into this
resolution as findings of the City Council.
2. On December 3, 2018 the City Council fully considered all evidence presented before and
at the duly noticed public hearing regarding this matter and comprising the Record on
Appeal, and on the basis of the staff report, testimony and other evidence, and the record of
proceedings herein, including the views held by members of the public in all areas affected
as expressed in the whole Record on Appeal, the City Council hereby affirms the appeal of
JoAnn McEachin filed with the City Clerk on July 9, 2018 on behalf of JoAnn McEachin
and McDowell Elementary School, Little League Children and East Petaluma Residents as
to the Mitigated Negative Declaration approved by the Petaluma Planning Commission on
June 26, 2017 by Resolution No. 2018-21A.
3. Petaluma residents, neighbors, teachers and administrators of the McDowell Elementary
School, 4Cs Child Development Center, and North Bay Children's Center, parents of
students, and parents of children using the baseball fields have provided written and oral
comments expressing concern regarding safety of the McDowell Boulevard and Maria
Drive intersection due to traffic volumes and speeds, conflicts with pedestrians, and
increased activity resulting from the Safeway Fuel Center, including: two commenters
noting they have observed pedestrian/vehicle collisions and near -collisions in the Project
area; another commenter observing that school -aged children walk home by themselves,
and the crosswalk is already a danger; a commenter expressing concern about heavy traffic
and foul balls getting hit next to a busy street; another commenter observing cars run stop
signs while working at the snack shack at Murphy Field, and noting Maria Drive is heavily
traveled and one of the main streets in that area. Petaluma residents, neighbors, teachers
and administrators of the McDowell Elementary School, 4Cs Child Development Center,
and North Bay Children's Center, parents of students, and parents of children using the
baseball fields have provided written and oral comments expressing concern that the
Safeway Fuel Center would result in substantial changes to the "neighborhood spirit" that
would be detrimental to the neighborhood making it less desirable and more dangerous.
4. Fox and Kapahi, in the responses to comments on the Initial Study/Mitigated Negative
Declaration for the Safeway Fuel Center dated December 3, 2018 submitted on behalf of
Appellant, assert that: independent scientific analyses support that gas stations should not
be located near housing or vulnerable populations; the meteorological data used in the
revised Health Risk Analysis submitted by Illingworth and Rodkin is not appropriate for
predications at a range of less than 1 kilometer; the Applicant diesel particulate emissions
estimates are understated; BAAQMD guidance calls for using an exposure duration of 70
years for risk assessments for gas stations; the BAAQMD November 8, 2018 letter
notwithstanding, using Petaluma meteorological data with the AERMOD model reveals
significant health risks; use of the CAPCOA benzene emission factor is appropriate; the
Applicant and BAAQMD underestimate benzene emissions from the Project; and CARB
recommended setbacks for gas stations may be inadequate.
5. Illingworth and Rodkin, in response to the December 3, 2018 submittal fr
om Fox and
Kapahi on behalf of the Appellant, assert that: the Illingworth and Rodkin health risk
modeling using AERMOD and EPA -approved procedures is appropriate, and it is improper
?-s
ATTACHMENT2
to draw correlations between the resolution of the meteorological data and the prediction
accuracy of the dispersion model; comparing 5 -mph travel emission factors used to compute
idling emissions to travel emission factors for diesel emission analysis is not appropriate;
BAAQMD recommends using 30 -year exposure duration for analyzing cancer exposure
risk; the Fox Kapahi benzene emission analyses are overstated due to California fueling
station vapor recovery standards; and BAAQMD uses benzene to compute health risks from
gasoline evaporation.
6. The City Council hereby finds that in accordance with Section 15064, Subdivision (g) of
the CEQA Guidelines, after application of the principles set forth in Section 15064,
Subdivision (f) of the CEQA Guidelines, that it is not clear whether there is substantial
evidence that the Project may have a significant effect on the environment, and that there is
disagreement among expert opinions supported by facts submitted on behalf of Applicant
(the Illingworth and Rodkin analyses), on behalf of Appellant (the Fox Kapahi analyses),
and on behalf of the BAAQMD, and therefore the City Council is guided by the principal
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.
7. The City Council is also guided by the principles that 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, and that therefore, fact -based comments
of the community may constitute substantial evidence that a fair argument can be made that
a project may potentially result in adverse impacts related to circulation, and that if there is
disagreement among expert opinion residents' personal observations supported by facts of
the significance of an effect on the environment, the City Council shall treat the effect as
significant and shall prepare an EIR.
8. Accordingly, the City Council hereby orders the preparation of an EIR concerning the
Project, in accordance with Section 15064, Subdivisions (c) and (g) of the CEQA Guidelines
and all other applicable CEQA requirements, because there is disagreement among expert
opinions supported by facts submitted on behalf of Applicant (the Illingworth and Rodkin
analyses), on behalf of Appellant (the Fox Kapahi analyses), and on behalf of the
BAAQMD, and because residents' observations supported by facts of traffic conditions that
may result from the Project constitute substantial evidence supporting a fair argument that
the Project may result in significant environmental impacts, and because residents' fact -
based observations regarding traffic and traffic safety conflict with the results of expert
traffic analyses that have been prepared concerning the Project, further supporting the need
for preparation of an EIR concerning the Project.
9. The City Council hereby stays the Planning Commission's approval of Site Plan an
d
Architectural Review for the Safeway Fuel Center project (PLSR 13-0012) located at 335
South McDowell Boulevard pursuant to Resolution No. 2018-21B adopted June 26, 2018,
pending certification of an EIR concerning the Project and City Council review of the
Project Site Plan and Architectural Review approval.
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ATTACHMENT 2