HomeMy WebLinkAboutStaff Report 5.A 01/28/2019 Attachment 15a■�
RUTAN & TUCKER, LLP
November 14, 2018
VIA EMAIL AND FEDERAL EXPRESS
Heather Hines
Planning Manager
City of Petaluma
11 English Court
Petaluma, CA 94952
ATTACHMENT 15
Matthew D. Francois
Direct Dial: (650) 798-5669
E-mail: mfrancois@rutan.com
Re: Safeway Fuel Center Project, 335 S. McDowell Boulevard (PLSR 13-0012)
Dear Ms. Hines:
We write on behalf of our client, Safeway, Inc., regarding the proposed Safeway Fuel
Center Project (the "Project") at 335 S. McDowell Boulevard (the "Property") in the City of
Petaluma (the "City"). The Project has been reviewed by the City for over six years and was the
subject of numerous studies prepared by expert consultants as well as a detailed mitigated negative
declaration ("MND") prepared by M -Group, the City's contract planning staff.
After continuing its May 8, 2018 hearing to obtain more information regarding air quality
and traffic, and to allow additional review by Petaluma City Schools, the Planning Commission
approved the Project on June 26, 2018. On July 9, 2018, an appeal of the Planning Commission's
action was filed by JoAnn McEachin and others.
The appeal was scheduled for consideration by the City Council at its September 17, 2018
hearing. On Friday, September 14, 2018 at 5:24 PM, Patrick Soluri of Soluri Meserve, on behalf
of Joann McEachin, submitted a letter contesting various aspects of the Project. On Monday,
September 17, 2018 at 11:17 AM, Mr. Soluri submitted a report by Fox/Kapahi contesting the
health risk assessment. Also on Monday, September 17, 2018, at 2:57 PM the Bay Area Air
Quality Management District submitted a letter regarding the health risk assessment. The Mayor
and City Council continued the appeal to October 15, 2018, and subsequently to December 3,
2018.
In connection with its consideration of the appeal, Safeway submitted letters dated
September 6, 2018, , September 11, 2018, September 14, 2018, September 17, 2018, and
October 10, 2018 providing updates and voluntary supplemental information for the benefit of
City Council, City Staff, and the public record. Today, we are writing to again provide voluntary
supplemental information regarding the standard of review applicable to the MND prepared by
City Staff for the Project. As indicated in the analysis attached hereto as Exhibit A, the City must
adopt the MND prepared for the Project and cannot lawfully require that an environmental impact
report be prepared.
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RUTAN
RUTAN 6 TUCKER, LLP
Heather Hines
November 14, 2018
Page 2
We also write to incorporate by reference into the record of proceedings for the Project, all
correspondence, plans, proposals, reports, studies, communications, calendars and/or calendar
invites, records, text messages, e-mails, resolutions, ordinances, motions, staff reports, notices,
agendas, minutes or other "documents" as that term is defined by Government Code section 6252
or Evidence Code section 350, that have (or should have) been produced by the City in response
to Safeway's May 24, 2018 Public Records Act request or any subsequent Public Records Act
request submitted by Safeway prior to the City Council's action on the Project.
Thank you very much for your assistance on this matter. Please do not hesitate to contact
me with any questions regarding the enclosed information.
Very truly yours,
RUTAN & TUCKER, LLP
f
r
Matthew D. Francois
MDF:mtr
cc: John Brown, City Manager, City of Petaluma
Olivia Ervin, Environmental Planner, City of Petaluma
Adam Petersen, Planner, City of Petaluma
Natalie Maffei, Senior Real Estate Manager, Safeway Inc.
Mark Friedman, President, Fulcrum Property
2696/031700-0001
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RUTAN & TUCKER, LLP
Rutan & Tucker, LLP
Five Palo Alto Square
3000 EI Camino Real, Suite 200
Palo Alto, CA 94306-9814
(650)320-1500 Fax(650)320-9905
www.rutan.com
PALO ALTO
ORANGE COUNTY
(714)641-5100
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
TO: Natalie Maffei
FROM: Matthew D. Francois & Emily Webb
DATE: November 14, 2018
FILE NO.: 031700-0001
RE: Safeway Fuel Center: Fair Argument Standard of Review
The purpose of this memorandum is to provide a voluntary summary of the fair argument
standard of review applicable to negative declarations under the California Environmental Quality
Act ("CEQA"). The comments received on September 14, 2018 from Patrick Soluri and on
September 17, 2018 from Phyllis Fox and Ray Kapahi misstate (among other things) the legal
standard of review applicable to the action by the City of Petaluma ("City") on the mitigated
negative declaration ("MND") for the Safeway Fuel Center Project ("Project").' As explained
below, neither commenter presents substantial evidence of a fair argument that the Project may
result in significant environmental impacts. As such, the City must adopt the MND prepared for
the Project and cannot lawfully require that an environmental impact report (`BIR") be prepared.
I. AN EIR IS REQUIRED ONLY WHEN THERE IS SUBSTANTIAL
EVIDENCE THAT A PROJECT MAY RESULT IN SIGNIFICANT
ENVIRONMENTAL IMPACTS.
The relevant standard for challenging a mitigated negative declaration is whether it can be
"fairly argued" based on "substantial evidence" that a project may have a significant environmental
impact, and the burden to demonstrate such impact is on the project opponent. (Citizens Comm.
to Save Our Village v. Claremont (1995) 37 Cal.App.4th 1157, 1171; League for Protection of
Oakland's Historic Resources v. City of Oakland (1997) 52 Cal.App.4th 896, 904.) The key to
any analysis under this standard is whether there is "substantial evidence"—meaning legally
significant, credible, and of solid value that a project may have a significant effect on the
environment. (Public Resources Code § 21080(c)(1); CEQA Guidelines § 15384(a).) "Section
1094.5 clearly contemplates that at minimum, the reviewing court must determine both whether
substantial evidence supports the administrative agency's findings and whether the findings
1 This memo supplements our September 6, 2018 memo regarding the City's limited
discretionary authority over the Project. Unless otherwise noted, emphasis in quotations is added
and citations are omitted.
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November 14, 2018
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support the agency's decision." (Topanga Assn. for a Scenic Community v. County of
Los Angeles (1974) 11 Cal.3d 506, 514-515.)
First, substantial evidence is defined as evidence of ponderable legal significance,
reasonable in nature, credible, and of solid value. (Lucas Valley Homeowners Assn. v. County of
Marin (1991) 233 Cal.App.3d 130, 142.) It includes fact, a reasonable assumption predicated upon
fact, or expert opinion supported by fact. (Public Resources Code § 21080(e)(1).) It does not
include argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly
inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are
not caused by, physical impacts on the environment. (Public Resources Code § 21080(e)(2).)
Second, CEQA requires that lead agencies and the courts distinguish between argument,
speculation, and unsubstantiated opinion—which do not constitute substantial evidence—and fact,
reasonable assumption predicated on fact, and expert opinion supported by fact—which do. (Pub.
Resources Code §§ 21080(e), 21082.2(c); CEQA Guidelines §§ 15064(f)(5), 15384.)
It is the burden of those challenging the project to demonstrate the existence of
substantial evidence. (Leonoff v. Monterey County Board of Supervisors (1990) 222 Cal.App.3d
1337, 1348-49.) To carry its burden, individuals challenging a project must cite to material that is
sufficiently reliable to have solid evidentiary value of environmental impact—i.e., material that is
based not on subjective concerns, personal belief, or speculation, but on an adequate foundation
within a witness's expertise or personal knowledge of fact. (Lucas Valley Homeowners Assn.,
supra, 233 Cal.App.3d at 142.)
An argument that a project may have a significant environmental effect must be based on
relevant evidence sufficient to support that conclusion. If a public agency finds no substantial
evidence that a project may significantly affect the environment, the agency must adopt a
negative declaration. (Public Resources Code § 21080(c)(1); CEQA Guidelines §§ 15063(b)(2),
15064(f)(3).) Argument, speculation, unsubstantiated opinion, clearly inaccurate and erroneous
information, and evidence that is not credible does not constitute "substantial evidence." (Public
Resources Code §§ 21080(e), 21082.2(c); CEQA Guidelines §§ 15064(f)(5), and 15384; Friends
of `B" Street v. City of Hayward (1980) 106 Cal.App.3d 988.)
When an agency is presented with conflicting evidence of a significant environmental
effect, the agency must undertake a two-step process: First, the agency must evaluate the evidence
in order to determine whether it qualifies as "substantial evidence," or conversely, whether it
amounts to argument, speculation, unsubstantiated opinion, or clearly inaccurate and erroneous
information not constituting "substantial evidence." (Kostka & Zischke, Practice Under the
California Environmental Quality Act (2d ed. CEB) § 6.76) Second, only after the agency
determines that the evidence is "substantial" should the agency move on to considering the
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November 14, 2018
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evidence against conflicting evidence.2 (Id.) If the agency determines that the evidence is not
credible, the agency cannot move on to the next step of the process, and must instead adopt a MND
for the project. (Public Resources Code §§ 21080(c)(1); CEQA Guidelines §§ 15063(b)(2),
15064(f)(3).)
A lead agency is not obligated to consider arguments that are not based in fact, or to treat
as credible expert evidence not grounded in fact. "A lead agency need not accept expert testimony
that lacks an adequate factual foundation." (Lucas Valley Homeowners Assn., supra, 233
Cal.App.3d at 157 [testimony by real estate agent on potential decline in nearby property values
was properly rejected as imprecise opinion without supporting verifiable data, such as comparable
sales]; Gentry v. City of Murrieta (1995) 36 Cal.AppAth 1359, 1422 [letter from engineering
professor about groundwater and erosion impacts was not substantial evidence because it was
based on inadequate foundation of specific information about the project]; Citizens Comm. to Save
Our Village, supra, 37 Cal.AppAth at 1170 [no factual foundation for architect's letter claiming
historically significant landscape plan had been implemented on project site].) In addition, expert
opinion that is not directly relevant to the project's environmental impacts may be disregarded.
(See, e.g., Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal. 4th 1086, 1119
[categorical exemption case holding that expert opinion was insufficient because it was based on
project opponent's assertions about design of project rather than project as actually approved].)
Courts have frequently upheld negative declarations and MNDs where the evidence
presented by project opponents was erroneous or speculative, as is the case here. (See, e.g., Parker
ShattuckNeighbors v. Berkeley City Council (2013) 222 Cal.AppAth 768, 786 [rejecting challenge
to MND on basis of claims that disturbance of contaminated soil on site might have a significant
effect on construction workers and future residents, where challenging expert's data lacked
foundation and was based on clearly erroneous assumptions]; Schenck v. County of Sonoma (2011)
198 Cal.AppAth 949, 958 [upholding MND for distribution facility because there was no
substantial evidence in record that impacts to water quality, riparian habitat, and traffic conditions
were not adequately mitigated]; Leonoff, supra, 222 Cal.App.3d at 1359; [upheld MND for
contractors' service center, noting unsubstantiated opinions by project opponents did not constitute
substantial evidence of a fair argument of impacts; court observes that "feeling are not facts to
govern environmental decisions."]; and Joshua Tree Downtown Business Alliance v. County of
San Bernardino (2016) 1 Cal.App.5th 677, 692 [holding that because there were legitimate issues
of credibility as to a local business owner's opinions suggesting that the project might cause urban
decay, the county could deem them not substantial evidence and thus did not err in adopting a
negative declaration].)
2 In cases involving conflicting expert witness reports, this is often called a "battle of the
experts." However, a local agency is only allowed to move on to this step after it determines
that the evidence presented by the expert is "substantial evidence," rather than "unsubstantiated
opinion" or "clearly inaccurate and erroneous information."
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November 14, 2018
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II. BECAUSE THERE IS NO SUBSTANTIAL EVIDENCE OF A FAIR
ARGUMENT THAT THE PROJECT MAY RESULT IN SIGNIFICANT
ENVIRONMENTAL IMPACTS, THE CITY MUST ADOPT THE MND
FOR THE PROJECT.
As noted above, CEQA requires that lead agencies and the courts distinguish between
(1) argument, speculation, and unsubstantiated opinion and (2) fact, reasonable assumption
predicated on fact, and expert opinion supported by fact. Here, the commenters rely exclusively
on the former, and disregard the latter as established by the experts who considered and responded
to the comments submitted, refuting the substantive claims of improprieties.
The comment letter from Mr. Soluri, questioning the health risk analysis prepared for the
Project does not constitute substantial evidence of a fair argument of environmental impacts. In
Pala Band of Mission Indians v. County of San Diego (1998) 68 Cal.App.4th 556, 578-580, the
court of appeal ruled that an attorney comment letter, like that submitted by Mr. Soluri, does not
constitute substantial evidence of a fair argument of significant environmental impacts. To the
extent Mr. Soluri raises or references comments on the traffic, air quality, hazards, and other
aspects of the MND, those comments were responded to in Safeway's submittal dated September
17, 2018. His comments regarding health risk were responded to in the October 10, 2018 memo
from Illingworth & Rodkin, discussed below.
As fully explained in the October 10, 2018 response from Illingworth & Rodkin, the
comments in the September 17, 2018 Fox/Kapahi letter asserting that the Project will result in
significant impacts are based on argument, speculation, unsubstantiated opinion, clearly inaccurate
and erroneous information and evidence that is .not credible. This does not constitute substantial
evidence of a fair argument of impacts.
Specifically, Fox/Kapahi wrongly base their analysis on Santa Rosa wind data as opposed
to Petaluma data even though analysis of health risk is heavily dependent on the use of correct
meteorological information. Fox/Kapahi also overstate diesel emissions by an approximate factor
of ten by overestimating the amount of diesel sales and the number of vehicles as well as by
incorrectly averaging the emission rate for all vehicle types. These commenters likewise overstate
the amount of benzene emissions, citing higher emission factors from another air district, and then
modeling even higher emissions than the cited values.
The Bay Area Air Quality Management District ("BAAQMD") concurs, citing "several
key concerns" with the Fox/Kapahi comment letter. Specifically, in a November 8, 2018 letter,
Damian Breen, Deputy Air Pollution Control Officer with BAAQMD writes:
Fox/Kapahi's use of Santa Rosa meteorological data is not appropriate for this
project because the wind patterns are not consistent with the project area. The
gasoline dispensing facility benzene emission factor used for the Fox/Kapahi HRA
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November 14, 2018
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is substantially higher than the Air District's standard benzene emission factor for
gasoline dispensing facilities. The residential exposure assumptions used in the
Fox/Kapahi HRA are not consistent with the Air District's current HRA risk
calculation procedures.3
Conversely, Mr. Breen accepts the updated analysis performed by Illingworth & Rodkin
and states that BAAQMD has no further comments on the Project's health risk assessment.
In sum, neither commenter presents substantial evidence of a fair argument that the Project
may result in a significant environmental impact. Because Project opponents have not satisfied
this requisite first step of the analysis, the City must adopt the MND for the Project and cannot
lawfully require an EIR based on the claim that there is conflicting evidence.
III. CONCLUSION
Because the commenters have not shown that substantial evidence supports a fair argument
of significant impact, the City cannot lawfully require the preparation of an EIR. The commenters'
speculation and unsubstantiated opinions do not rise to the level of "evidence," let alone
"substantial evidence," and thus should be rejected. BAAQMD concurs, citing "several key
concerns" with the Fox/Kapahi comment letter. As noted above, if a public agency finds no
substantial evidence that a project may significantly affect the environment, the agency must adopt
a negative declaration. (Public Resources Code §§ 21080(c)(1), 21082.2(c); CEQA Guidelines
§§ 15063(b)(2), 15064(f)(3).) Thus, to require an EIR, in contravention of the substantial evidence
established by experts and City staff, and accepted by BAAQMD, would be impermissible and an
abuse of discretion.
3 Mr. Breen's letter is attached hereto as Attachment A.
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BAY AREA
AIR Q UALITY
MANAGEMENT
D I S T R I C T
ALAMEDA COUNTY
John J. Bauters
Pauline Russo Cutter
Scott Haggerty
Nate Miley
CONTRA COSTA COUNTY
John Gioia
David Hudson
(Chair)
Karen Mitchoff
Mark Ross
MARIN COUNTY
Katie Rice
(Vice Chair)
NAPA COUNTY
Brad Wagenknecht
SAN FRANCISCO COUNTY
Rafael Mandelman
Hillary Ronen
Tyrone Jue
(SF Mayor's Appointee)
SAN MATEO COUNTY
David Canepa
Carole Groom
Doug Kim
SANTA CLARA COUNTY
Margaret Abe-Koga
Cindy Chavez
Liz Kniss
Rod G. Sinks
(Secretary)
SOLANO COUNTY
Pete Sanchez
James Spering
SONOMA COUNTY
Teresa Barrett
Shirlee Zane
November 8, 2018
Olivia Ervin
Environmental Planner
City of Petaluma
11 English Street
Petaluma, CA 94952
RE: Safeway Fuel Center Project — Air District Comments on Health Risk Assessments
Dear Ms. Ervin,
The Bay Area Air Quality Management District (Air District) submitted comments dated
September 17, 2018 to the City of Petaluma on the prior Health Risk Assessment (HRA)
done by Illingworth & Rodkin on the proposed Safeway Fuel Center Project ("project").
Pursuant to your recent request, Air District staff have reviewed the HRA conducted by
Phyllis Fox and Ray Kapahi (Fox/Kapahi HRA) and the subsequent October 10, 2018
updated HRA conducted by Illingworth & Rodkin.
The Air District has several key concerns regarding the Fox/Kapahi HRA. Fox/Kapahi's use
of Santa Rosa meteorological data is not appropriate for this project because the wind
patterns are not consistent with the project area. The gasoline dispensing facility benzene
emission factor used for the Fox/Kapahi HRA is substantially higher than the Air District's
standard benzene emission factor for gasoline dispensing facilities. The residential
exposure assumptions used in the Fox/Kapahi HRA are not consistent with the Air
District's current HRA risk calculation procedures.
Air District staff find that the October 10, 2018 updated HRA conducted by Illingworth &
Rodkin is acceptable and has resolved our concerns from the September 17, 2018 letter.
The Air District has no further comments on this updated HRA.
The project includes a gas station configuration that differs from the configuration
approved in the Air District's current Authority to Construct for this gas station. Safeway
must apply for Air District permit revisions to ensure that their Air District permit is
consistent with this described project.
For more information, or if you have any questions, please contact David Vintze, Planning
Manager, at (415) 749-5179 or via email at dvintze@baagmd.gov, or Barry G. Young,
Senior Advanced Projects Advisor, at (415) 749-4721 or via email at
byoung@baaqmd.gov.
Sincerely,
Jack P. Broadbent
EXECUTIVE OFFICERIAPCO
t
Connect with the Damian Breen
Bay Area Air District: Deputy Air Pollution Control Officer
® e
375 BEALE STREET, SUITE 600 • SAN FRANCISCO CA • 94105 •415.771.6000 - wivvv.baagmd.gov
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