HomeMy WebLinkAboutStaff Report 5.A 01/28/2019DATE:
TO:
January 28, 2019
Honorable Mayor and Members of the City Council through City Manager
FROM: Heather Hines, Planning Manager
Olivia Ervin, Principal Environmental Planner.
Eric Danly, City Attorney ,
SUBJECT: Public Hearing to Cure or Correct Alleged Violations of the Brown Act at the
City Council Appeal Hearing on December 3, 2018 in Response to January 2,
2019 Demand of Safeway Regarding the Planning Commission's Approval of the
Mitigated Negative Declaration ("MND") and Site Plan and Architectural Review
("SPAR") for the Safeway Fuel Center Project — City Council Consideration and
Possible Adoption of One of Two Offered Resolutions: 1) A Resolution
Rescinding and Replacing Resolution No. 2018-180 Adopted December 3, 2018
Upholding the Appeal Filed by JoAnn McEachin as to the MND Approved by the
Planning Commission on June 26, 2018, Ordering the Preparation of an
Environmental Impact Report ("EIR") and Staying the Planning Commission's
Approval of SPAR Pending Certification of the EIR and City Council Review of
the SPAR Concerning the Safeway Fuel Center Project at 335 South McDowell
Boulevard; or 2) A Resolution Rescinding and Replacing Resolution No. 2018-
180 Adopted December 3, 2018 Denying the Appeal Filed by JoAnn McEachin of
the Planning Commission's Approval of the MND and SPAR on June 26, 2018,
and Affirming the Planning Commission's Approval of the MND and SPAR for
the Safeway Fuel Center Project at 335 South McDowell Boulevard.
RECOMMENDATION
It is recommended that the City Council: conduct a public hearing to cure or correct alleged
violations of the Brown Act at the City Council appeal hearing on December 3, 2018 regarding
the Planning Commission's approval of the Mitigated Negative Declaration and Site Plan and
Architectural Review for the Safeway Fuel Center Project, and, following the public hearing and
City Council deliberation, adopt the attached resolution entitled:
RESOLUTION OF THE CITY OF PETALUMA CITY COUNCIL
RESCINDING AND REPLACING RESOLUTION NO. 2018-180 ADOPTED
DECEMBER 3, 2018 AND 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. 2018-21A, 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. 2018-21B 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 ENVIRONMENTAL
IMPACT REPORT AND CITY COUNCIL � REVIEW OF THE PROJECT
SITE PLAN AND ARCHITECTURAL REVIEW APPROVAL
Discussion regarding this item and support for staff's recommendation follows:
BACKGROUND
A. The Cure and Correct Action
1. Safeway's Allegations
On January 2, 2019, Matthew Francois representing Safeway submitted correspondence to the
City demanding that the City cure or correct alleged violations of the Brown Act at the
December 3, 2018 City Council hearing on appeal of the Petaluma Planning Commission's
approval of the Safeway Fuel Center project Mitigated Negative Declaration ("MND") and Site
Plan and Architectural Review ("SPAR") approval on June 26, 2018. The January 2
correspondence alleges three Brown Act violations.
a. First, Safeway alleges that the City tools action on an item that was not on the
published agenda in violation of Government Code Section 54954.2. Safeway alleges that the
City Council's action on December 3 violated Section 54954.2 because none of the agendas that
had been prepared for the scheduled appeal hearings, including the hearing that ultimately took
place December 3, indicated that the City Council would take action to require an Environmental
Impact Report ("EIR") or stay the Planning Commission's SPAR approval.
b. Second, Safeway alleges that the City failed to make available to the public
documents related to the appeal hearing in accordance with Government Code Section 54957.5.
Safeway alleges that the City failed to make available in accordance with the Brown Act the
revised resolution ordering preparation of an EIR that staff prepared December 3, 2018.
Safeway also alleges that the City failed to make a September 17, 2018 email from project
supporters and a December 3, 2018 memo from Safeway's consultant, Illingworth and Rodkin
available in accordance with Brown Act requirements.
c. Third and finally, Safeway alleges that the City failed to disclose the anticipated
litigation items listed on the September 10, 2018 and December 3, 2018 agendas, and failed to
disclose the existing facts and circumstances giving rise to significant exposure to litigation in
accordance with Government Code Sections 54954(c) and 54956.9.
No
2. The City's Response
Staff has recommended and the City Council has directed that this January 28, 2019 hearing be
conducted to cure or correct the Brown Act violations alleged by Safeway, in keeping with the
City's commitment to transparent local government. Staff recommended and the Council
directed the cure action even though staff has concluded that, notwithstanding the Safeway
allegations, no Brown Act violations actually occurred at the December 3, 2018 appeal hearing,
in accordance with the following:
a. The Safeway January 2, 2019 correspondence refers to agenda descriptions of the
appeal hearing on the Safeway project in City Council agendas preceding the December 3, 2018
agenda, including Council agendas items that were continued due to submission of extensive
additional comments and analysis regarding the project, and tentative City Council agendas. The
only agenda description that is relevant to Safeway's allegation that the City failed to satisfy the
requirements of Government Code Section 54954.2 is the agenda description included in the
agenda the City distributed on November 27, 2018 for the December 3, 2018 hearing, because
that is the regular meeting agenda which the City published and posted to satisfy Section 54954.2
requirements. The December 3, 2018 agenda description for the Safeway appeal hearing was as
follows:
Resolutions for Council Action on the Appeal of the Planning Commission's
approval of a Mitigated Negative Declaration and Site Plan and Architectural
Review for the Safeway Fuel Center Project.
Section 54954.2 of the Brown Act requires that agendas for regular meetings of legislative
bodies include
a brief general description of each item. of business to be transacted or discussed
at the meeting, including items to be discussed in closed session. A brief general
description of an item generally need not exceed 20 words.
The agenda description for the December 3 appeal hearing, which contained 29, words indicated
that the City council would consider resolutions for council action on the appeal of the Planning
Commission's approval of the Safeway project. The agenda description listed both components
of the Planning Commission approval that were on appeal: the MND, and the SPAR for the
project. Following the appeal hearing, the City Council members present (Mayor Glass was
absent) unanimously adopted a revised version of the resolution included in the December 3
agenda packet that upheld the appeal regarding the MND, ordered the preparation of an EIR, and
stayed the Planning Commission's approval of the SPAR pending certification of an EIR and
City Council review of the SPAR.
It is important to note that the agenda description requirements in Section 54954.2 of the Brown
Act do not require that each possible action that the legislative body may take be listed in agenda
descriptions. If that were the case, agenda descriptions would rarely contain 20 or fewer words.
That is especially true concerning a de novo SPAR appeal hearing under the City's Implementing
Zoning Ordinance ("IZO"), because in such hearings, the City Council may take almost any
action on the application subject to appeal that is consistent with the SPAR provisions in the
IZO, including affirming, affirming in part, or reversing the decision on appeal. In addition, the
City Council may consider any issue involving the matter on appeal, not just those that are the
subject of the appeal, may disapprove an earlier approval even if the appellant only sought a
modification, and may also adopt additional conditions of approval that address concerns other
than those on appeal. Agenda descriptions describing all the possible variants Council action on
a SPAR appeal could take is not feasible, given the breadth of the Council's discretion on appeal.
If it were possible to prepare agenda descriptions reciting all possible Council actions on a SPAR
appeal, they would be extremely lengthy, far in excess of 20 words.
However, the Brown Act does not require listing each possible Council action on a SPAR
appeal. Instead, the Brown Act simply requires listing and briefly describing the items to be
transacted or discussed at the meeting. Accordingly, by indicating that the City Council would
consider resolutions for council action on both Planning Commission approvals on appeal, the
MND and SPAR, the December 3, 2018 City Council agenda satisfied Section 54954.2
requirements. The purpose of the Brown Act agenda description requirement is to provide
enough information to permit a person to make an informed decision about whether to attend or
participate in a discussion on an issue. In keeping with the Brown Act's public participation
purposes, as a result of the December 3 agenda description regarding the appeal on the Safeway
project, in addition to counsel and other representatives for the project applicant and appellants,
dozens of members of the public attended the hearing, including 39 who spoke during the
hearing in favor of or against the Project. The Appeal hearing lasted approximately two and one-
half hours. The City has received no communication from any person or group indicating an
inability to take part in the December 3 public hearing due to the agenda description. Therefore,
the December 3 agenda on the Safeway appeal satisfied Section 545954.2 agenda description
requirements, resulting in extensive and robust public participation in the appeal hearing.
b. After the agenda for the December 3 hearing was posted and published, the City
continued to receive extensive amounts of information, comments and analyses concerning the
project. Specifically, the City received comments from appellant JoAnn McEachin on
November 29, from Soluri Meserve representing appellants on November 30, from Rutan and
Tucker representing Safeway on December 1 and December 2, from Fox and Kapahi
representing appellants on December 3, and from Illingworth and Rodkin representing Safeway
on December 3. Staff reviewed the incoming materials and it became clear that staff should
recommend that the City Council direct that an EIR be prepared in accordance with Section
15064, Subdivisions (c) and (g) of the CEQA Guidelines, because of the increasing amount of
conflicting expert opinions in the record concerning the decisions on appeal. Accordingly, on
December 3, staff began preparing a revised resolution to replace that distributed with the
December 3 agenda providing for upholding the appeal regarding the MND, ordering the
preparation of an EIR, and staying the Planning Commission's SPAR approval pending
certification of an EIR and City Council review of the SPAR. The December 3 staff revisions did
not change the title or the action of the original resolution ordering preparation of an EIR that
was distributed with the agenda packet. The December 3 edits added additional findings from the
correspondence received after November 27 when the agenda was posted. Staff finished the
revised resolution shortly before the December 3 City Council meeting began and brought
redline and clean copies of the revision to the meeting.
M
Section 54957.5(b)(1) of the Brown Act requires that
If a writing that is a public record under subdivision (a) and that relates to an
agenda item for an open session of a regular meeting of the legislative body of a
local agency is distributed less than 72 hours prior to that meeting, the writing
shall be made available for public inspection pursuant to paragraph (2) at the time
the writing is distributed to all, or a majority of all, of the members of the body.
A copy of the redlined, revised resolution staff prepared on December 3 was provided promptly
to Mr. Francois and Mr. Soluri when they entered the Council chambers . Accordingly, the
revised resolution was shared with the applicant's and appellants' representatives as soon as
possible at the December 3 hearing, the same time it was first presented to the City Council, in
accordance with Section 54957.5. Although staff discussed the revised resolution in their
presentation during the hearing, no one else requested a copy. If anyone had, copies would have
been provided.
Based on staff's research since receiving the January 2 Safeway correspondence, it appears the
September 17 email from project proponents addressed in Mr. Francois' letter was sent directly
from project proponents to City Council members. It was not distributed to the Council
members by staff and was not distributed less than 72 hours before the December 3 hearing, and
is therefore not covered by Section 54957.5. Staff received the Illingworth and Rodkin
December 3 memo at 5:13 p.m. There was insufficient time to add the memo to the record for
distribution to the Council prior to the commencement of the hearing. However, a brief
summary of the assertions in the memo was included in the findings staff added to the revised
resolution distributed December 3. Because the Illingworth and Rodkin memo was not
distributed to a.majority of the Council on December 3, it also is not subject to Section 54957.5.
As a practical matter, there was barely enough time upon receipt of the Illingworth and Rodkin
memo for staff to read it and prepare a summary for inclusion in the revised resolution. Staff's
last-minute efforts on December 3 to digest and incorporate into the hearing record substantial
amounts of material received after the December 3 agenda was posted (much of it on the
weekend when City Hall is closed) did not violate Section 54957.5 distribution requirements,
and instead served to present information relevant to the Council decision to interested parties
and the City Council despite the very limited amount of time prior to the hearing to consider the
late submissions.
c. In accordance with Section 54960.1(c)(1) of the Brown Act, demands to cure
alleged violations must be made within 90 days of the action being challenged, unless the action
occurred in open session, in which case the demand must be made within 30 days of the action.
The Safeway demand dated January 2, 2019 was submitted 114 days after the September 10,
2018 City Council meeting, and therefore is not timely regarding the September 10, 2018 City
Council meeting.
The agenda description regarding the closed session held concerning the Safeway appeal held at
the December 3 City Council meeting read as follows:
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CONFERENCE WITH LEGAL COUNCIL — ANTICIPATED LITIGATION:
Significant exposure to litigation pursuant to Paragraph (2) of subdivision (d) of
Section 54956.9: One potential case.
Under Section 54956.9(e)(2) of the Brown Act, when anticipated litigation closed sessions are
based on facts or circumstances that might result in litigation against an agency that are known to
potential plaintiffs, the facts or circumstances must be stated on the agenda or announced.
However, the December 3 closed session regarding the Safeway appeal was not based on facts
and circumstances known to a potential plaintiff. The December 3 closed session was based on a
statement made by a person in an open and public meeting threatening litigation on a specific
matter within the responsibility of the legislative body in accordance with Section 54956.9(e)(4)
of the Brown Act. Specifically, the December 3 closed session was based on comments made by
Mr. Francois in his presentation before the Planning Commission at the hearing on June 26,
2018. In his remarks, Mr. Francois challenged the City's decision-making authority regarding
the MND and the SPAR entitlement sought. At the hearing, Mr. Francois disputed the authority
of the City to conduct CEQA analysis regarding project environmental impacts other than
aesthetic impacts, and to base a decision on the SPAR on considerations other than solely
aesthetic considerations. At the meeting City staff disputed Mr. Francois' legal assertions,
because the required findings for SPAR approval under the IZO include functional design
considerations such as circulation as well as aesthetic ones, and because the SPAR provisions in
the IZO provide authority for the decision making body to condition and to order mitigations
concerning functional design considerations as well as aesthetic ones. (The resolutions prepared
for approval of the SPAR and MND both in fact included conditions mitigating Project impacts.)
Mr. Francois' remarks as legal counsel for the applicant suggested that if the City's decision on
the application or its basis conflicted with Mr. Francois' assertions regarding the City's legal
authority, that Safeway would institute litigation against the City. Correspondence Mr. Francois
submitted to the City dated December 1 and 2, 2018 raised challenges concerning the City's
legal authority concerning project similar to those he presented orally at the June 26 Planning
Commission hearing. The January 2 demand further supports such a conclusion, since a demand
to cure or correct is a prerequisite to bringing a lawsuit under the Brown Act. Because the
December 3 closed session was based on Mr. Francois' public remarks at the June 26 Planning
Commission hearing, the December 3 closed session description satisfied Brown Act closed
session description requirements in accordance with Section 54956.9(e)(4).
3. The City's Cure
a. The City's cure actions
Safeway alleges that the City took action on an item that was not on the published agenda in
violation of Government Code Section 54954.2 because none of the agendas that had been
prepared concerning Safeway appeal hearing indicated that the City Council would take action to
require an Environmental Impact Report ("EIR") or stay the Planning Commission's SPAR
approval. In response, the agenda description for the January 28 cure and correct hearing will
indicate that one of the resolutions offered for City Council consideration and possible adoption
would order the preparation of an EIR and stay the Planning Commission's SPAR approval. .
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Safeway alleges that the City failed to make available to the public in accordance with
Government Code Section 54957.5 the revised resolution ordering preparation of an EIR that
staff prepared December 3, 2018, a September 17, 2018 email from project supporters and the
December 3 memo from Illingworth and Rodkin.- In response, an updated version of the
resolution revised on December 3 will be offered to the Council for action on January 28 and
distributed as part of the agenda, and the exhibits included with the agenda item will include the
September 17 email and the December 3 Illingworth and Rodkin memo.
Safeway alleges that the City failed to disclose the existing facts and circumstances giving rise to
significant exposure to litigation in accordance with Government Code Sections 54954(c) and
54956.9 regarding the anticipated litigation items listed on the September 10, 2018 and
December 3, 2018 agendas. In response, a closed session agenda item will be included on the
January 28 City Council agenda that will disclose the fact that the closed session is being held
based on remarks of Mr. Francois representing Safeway at the June 26 Planning Commission
hearing and the January 2 cure and correct demand Mr. Francois submitted to the City.
b. The legal result of the cure
Section 54960.1(e) of the Brown Act provides that
During any action seeking a judicial determination pursuant to subdivision (a) if
the court determines, pursuant to a showing by the legislative body that an action
alleged to have been taken in violation of Section 54953, 54954.2, 54954.5,
54954.6, or 54956.5 has been cured or corrected by a subsequent action of the
legislation body, the action filed pursuant to subdivision (a) will be dismissed
with prejudice.
Accordingly, the City actions described above providing for preparation of the January 28 City
Council agenda in accordance with Safeway's demands, and repeating the closed session and
appeal hearing from the December 3 City Council meeting should bar subsequent litigation by
Safeway under the Brown Act regarding the deficiencies Safeway has alleged.
In addition, Section 54960.1(d) of the Brown Act provides that actions allegedly in violation of
Sections 54954.2 and 54954.5 shall not be determined to void if the actions were taken in
substantial compliance with Sections 54954.2 and 54954.5. Also, under Section 54960.1(d)(5),
alleged violations of Section 54954.2 are not to be determined void if the person or entity
alleging the non-compliance had actual notice of the item of business. Therefore, in addition to
the protection from litigation that results from the City's cure action, the City's substantial
compliance with Section 54954.2 agenda description requirements, and Safeway's actual notice
of the appeal hearings provide additional protection against possible actions to challenge the
Council action.
Subdivision (f) of Section 54960.1(e) provides
N
The fact that a legislative body takes a subsequent action to cure or correct an
action taken pursuant to this section shall not be construed or admissible as
evidence of a violation of this chapter.
Consistent with this subdivision, and in accordance with the discussion above, the City's
action to cure and correct in response to Safeway's January 2 demand is not to be
construed or admissible as evidence that the City violated the Brown Act at the December
3 appeal hearing.
B. The Substantive Project Review and Action
The Safeway Fuel Center project proposes a new gas station on the 0.71 -acre parcel located at
335 South McDowell Drive in the Washington Square Shopping Center. The site is currently
developed with a 13,077 square foot commercial building which would be fully demolished to
facilitate the new development. The Safeway Fuel Center project includes installation of an
eight pump (16 fueling position) facility under a 5,932 square foot fueling canopy with an
adjacent 697 square foot convenience store. Site improvements include, but are not limited to
landscaping, off-street parking, an electric vehicle charging station, and relocation of two
underground storage tanks. Primary.access to the pumps is from the existing drive aisle in the
shopping center with egress either onto Maria Drive via an existing curb cut or into the interior
of the shopping center via a new access at the northwest corner of the parcel. Queuing space for
12 vehicles has been accommodated through placement of the fueling canopy. The project also
includes improvements to the eastside transit center consisting of an off-street pull out for the
three bus stops, shelters, benches, and landscaping, and a solar -powered arrival sign. A more
detailed project description is available in the May 8, 2018 Planning Commission staff report and
in the Initial Study (IS) and MND that can be found on the City's website,
http://petaluma.granicus.coni/GeneratedAgendaViewer.php.view id=31&clip id=2578.
On June 26, 2018 the Planning Commission adopted Resolution No. 2018-21A (Attachment 3 to
Attachment 6 hereto) approving the Mitigated Negative Declaration (MND) and Resolution No.
2018-21B (Attachment 4 to Attachment 6 hereto) approving the SPAR for the project.
The Planning Commission's decision to approve the project was made after in-depth analysis
and discussion regarding potential health risk exposure because of the new gas station and in
particular due to nearby sensitive receptors (school, day care, residential). Health risk due to air
quality impacts as well as traffic safety issues were two primary topics discussed at the first
hearing for the project. Materials for the June 26, 2018 hearing included additional technical
response from both the traffic consultant and the air quality consultant to ensure that the
questions, and in particular the concerns expressed by Petaluma City Schools in their letter dated
May 7, 2018 (Attachments 10 and 11 to Attachment 6 hereto), were appropriately addressed.
Additionally, staff prepared a Response to Comments (Attachment 8 to Attachment 6 hereto)
addressing comments received during the public review period for the IS/MND.
The decision was not unanimous (4-3) and there was frustration voiced by Commissioners that
voted in support of the project regarding the poor public outreach by the Applicant but
I
acknowledging that there was no legally defensible reason to deny the Project based on the
Project record. The SPAR approval included the following additional conditions of approval:
• Require tanker trucks to access the site from North McDowell Boulevard
• Construct a median barrier on Maria Drive to prevent left turns into and out of the center
driveway onto Maria Drive
• Explicitly limit maximum fuel throughput to 8.5 million gallons per year and requiring
annual reporting from the applicant
• Require Tier 3 construction equipment during construction
• Conduct outreach to the McDowell Elementary School population prior to construction,
with bilingual translators for all oral and written communication
The Planning Commissioners supporting the project cited the following reasons:
• No legally defensible reason for denial based on the project record
• Proposed conditions of approval alleviate the remaining concerns regarding operation
• All environmental issues had been adequately addressed through the analysis in the
Mitigated Negative Declaration and subsequent Response to Comments
• Support of overall site plan and architectural design for the project
Those Commissioners opposing the project cited the following reasons:
Inadequate engagement with the surrounding neighborhood, including residents and the
school population
Incompatibility with General Plan goals related to reducing air quality and protecting
quality of life
Following approval of the MND for Safeway Project, a Notice of Determination was filed with
the County Clerk, which was posted from June 29, 2018 through July 30, 2018.
Consistent with the requirements of the Implementing Zoning Ordinance (IZO) Section 24.070,
JoAnn McEachin filed an appeal within 14 days of the Planning Commission's approval. The
appeal was filed on behalf of the McDowell Elementary School, Little League Children, and East
Petaluma Residents, and included 15 additional signatures from members of the public. The
grounds for appeal, outlined in the Letter of Appeal (Attachment 2 of Attachment 6 hereto),
included: questioning the community need for the project; the proximity of the project to a day
care, school and Little League ball park; traffic increase; project emissions and health impacts;
traffic safety; and public awareness of the project. Initial responses to each of the grounds for
appeal is included in the City Council staff report dated September 17, 2018 (Attachment 6).
Comments submitted on September 14, 2018 by Soluri Meserve (Attachment 10), counsel for the
appellants, challenged both the Planning Commission's Site Plan and Architectural Review
approval and approval of the project's Mitigated Negative Declaration.
The appeal hearing before the City Council was duly noticed for the September 17, 2018
meeting. A large volume of public comment letters was received, including technical analyses
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prepared by qualified consultants on behalf of the Petaluma School District and the appellants, in
the days and hours leading up to the Council meeting. Due to the volume of public comment
letters and new information received and given that there was insufficient time to adequately
review new materials, the Council continued the item, without opening a public hearing, to
October 15, 2018.
On October 15, 2018, the City Council continued the item to a date certain of December 3, 2018.
The staff recommendation for continuance was based on receipt of new information and to allow
time for consultation with BAAQMD, a responsible agency for the project.
DISCUSSION
Leading up to the September 17, 2018 City Council hearing and in advance of the December 3,
2018 hearing, a number of additional comment letters and documents were received, including
substantial new information. The following summarizes new information received. All
documents are provided as attachments:
1. On behalf of 'the applicant, Rutan & Tucker issued a September 11, 2018 letter
responding to comments raised by Mr. Sachen on behalf of the Sierra Club, Sonoma
Group, and providing correct distances between the project site and nearby school and
residents, and the qualifications of expert consultants who prepared studies and plans
(Attachment 7).
2. On behalf of the Petaluma School District, Meridian Consultants conducted a review of
the Safeway Fuel Center IS/MND. Meridian Consultants' letter dated September 12,
2018 identified concerns with the environmental analysis presented in the IS/MND for air
quality/health risks, greenhouse gas emissions, hazards and hazardous materials, noise,
and transportation/traffic (Attachment 8).
3. On behalf of the applicant, Rutan & Tucker issued a September 14, 2018 letter
responding to concerns raised in the Meridian letter including supporting technical
analysis prepared by Illingworth & Rodkin (Air Quality/Health Risk, GHG and Noise)
and CHS Consulting (transportation) (Attachment 9).
4. On behalf of the appellant, Soluri Meserve issued a letter on September 14, 2018
including supporting technical analysis prepared by Phyllis Fox and Ray Kapahi, and on
September 17, 2018 Errata thereto dated September 17, 2018. The letter asserts that the
City Council should overturn the SPAR approval under its land use discretionary
authority and that an EIR must be prepared because there is substantial evidence to
support a fair argument that the project may have significant adverse environmental
impacts -The supporting technical analysis presented in the Soluri letter contains a HRA
using the AERMOD dispersion model and concludes that cancer risks exceed thresholds
of significance (greater than 10.0 in one million, assuming a 70 -year lifetime exposure).
(Exhibit A of Attachment 10)
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5. On behalf of ' the applicant, Rutan & Tucker issued a September 17, 2018 letter
responding to comments raised in the Soluri Meserve letter (September 14, 2018) and
including technical responses provided by CHS (September 17, 2018) (Attachment 11).
6. The Bay Area Air Quality Management District (BAAQMD) issued a comment letter on
September 17, 2018 regarding the methodology utilized in the HRA prepared by
Illingworth & Rodkin for the Safeway Fuel Center. The letter provides notice that
BAAQMD's modeling analysis procedures have changed since the authority to construct
permit was issued and that the AERMOD dispersion model is now recommended instead
of the Industrial Source Complex Short -Term 3 (ISCST3) model (Attachment 12).
7. On behalf of the applicant, Rutan & Tucker issued an October 10, 2018 letter responding
to comments raised in the BAAQMD letter (September 17, 2018) and the Fox and
Kapahi HRA. The letter includes a supplemental HRA using BAAQMD's recommended
AERMOD dispersion model, prepared by Illingworth & Rodkin (October 10, 2018), and
concludes that cancer and health risk impacts fall below levels of significance
(Attachment 13).
8. BAAQMD issued a comment letter on November .13, 2018 (letter dated November 8,
2018) regarding the methodology utilized in the HRAs prepared by Fox and Kapahi
(September 17, 2018) and by Illingworth & Rodkin (October 10, 2018) for the Safeway
Fuel Center. BAAQMD's comment letter indicated their review of both reports and
determination that the updated Illingworth & Rodkin HRA appropriately analyzed air
quality impacts (Attachment 14). The BAAQMD letter also outlines concerns with the
methodology used in the Fox and Kapahi HRA.
9. On behalf of the applicant, Rutan & Tucker issued a November 14, 2018 letter
responding to the BAAQMD comment letter and asserting that the City is required to
uphold the Planning Commission's approval of the MND and SPAR because the record
lacks substantial evidence of a fair argument that the project may have significant effect
on the environment (Attachment 15).
10. 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. (Attachment 19
and Attachment 20)
11. 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.
(Attachment 21
12. 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.
(Attachment 22)
13. 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.
(Attachment 23)
14. 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/MND for the Project 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 HRA submitted by Illingworth
and Rodkin is not appropriate for predictions 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. (Attachment 24)
15. On December 3, 2018, on behalf of the Applicant, Illingworth and Rodkin submitted a
response to the December 3, 2018 submittal from Fox and Kapahi asserting: that the
Illingworth and Rodkin HRA 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. (Attachment 25)
16. Various comment letters have been submitted from members of the public, the vast
majority of which express opposition to the project on a number of grounds including air
quality/health risks, safety, and circulation/traffic, while a few express support of the
project (Attachment 16 for comments received between September 11, 2018 and
November 27, 2018 and Attachment 26 for comments received November 27, 2018 to the
publication of this report)
12
The materials and documentation received include opinions of community members, fact -based
observations of neighbors, teachers, and parents of the McDowell Elementary School, and
technical analyses and responses presented by professional experts regarding health risks, traffic
and circulation, safety, noise, and hazards. The following outlines the comments from each of the
public comment documents referenced above.
Meridian Consultants (September 12, 2018)
On behalf of the Petaluma City School District, Meridian Consultant's (Meridian) reviewed the
IS/MND and issued a comment letter dated September 12, 2018. The Meridian letter identifies
concerns related to Air Quality, Greenhouse Gas Emissions, Hazards and Hazardous Waste,
Noise, and Transportation/Traffic (Attachment 8). The following states the primary comments
raised in the Meridian letter and provides staff's responses:
Comment #1: Air quality emission estimates are inaccurate because California Emission
Estimator Model (CaIEEMod) inputs do not fully address the land uses in the Project
Description, the construction scenario precluded trenching, and soil export was not
included.
CaIEEMod inputs were appropriately applied based on the proposed project and correctly relied
on default modeling assumptions. CaIEEMod, version 2016.3.1, was utilized to quantify air
quality emissions from the proposed Safeway Fuel Center associated with construction and
operation. Input values were disclosed in the Illingworth & Rodkin Air Quality and Greenhouse
Gas Assessment (September 19, 2017), which was appended to the IS/MND.
Modeling considered a 16 -pump fuel station for a Gasoline/Service Station type land use. The
exclusion of a trenching phase is consistent with CaIEEMod defaults. The model includes phases
for site preparation, grading and paving, which captures ground disturbance activities and
construction equipment similar to those that would be utilized for a standalone trenching phase.
Soil export was not accounted for in the model because the project is expected to require a net
import of fill to achieve elevations. Import of fill material will result in additional truck trips
during construction. Although CaIEEMod did not capture these additional truck trips, and the
associated air quality emissions, it is estimated that approximately 75 truckloads of material
would be needed to achieve building elevations. This number of trucks during construction
would not substantially alter the air quality emission projections.
As shown in Table 3 of the IS/MND (page 18), the project's construction emissions are well
below established thresholds. The additional 75 truckloads would not substantially increase
construction emissions. Furthermore, as a condition of approval the project applicant has
committed to utilize construction equipment that achieves U.S. EPA Tier 3 standards, which
further reduces exhaust emissions. Therefore, CaIEEMod input and assumptions utilized are
appropriate and adequately reflect projected air quality emissions associated with construction of
the Safeway Fuel Center project. Also, see Illingworth & Rodkin's response to this comment on
page 2 of the September 14, 2018 memo prepared by Rutan & Tucker.
N
Comment #2: The Health Risk Assessment (prepared by Illingworth & Rodkin, dated
January 8, 2014 and revised September 19, 2017) incorrectly utilized the Industrial Source
Complex- Short Term, version 3 (ISCST3) dispersion model, whereas AERMOD should
have been used.
At the time the initial HRA for the project was prepared (2014), the ISCST3 was the BAAQMD
recommended methodology. However, the Air District now recommends using the AERMOD
model. See response to Comment #19 below.
Comment #3: Greenhouse Gas (GHG) emission estimates are inaccurate because
CalEEMod inputs were not appropriately applied and screening criteria mentioned in the
MND are not relevant.
CalEEMod inputs were appropriately applied for the proposed project as described in response to
Comment #1 above. The IS/MND, in addition to mentioning screening criteria (page 33), also
provides results of the project specific Air Quality and GHG Assessment, which quantifies GHG
emission during construction and at operation. GHG emissions are presented in Table 8 of the
IS/MND (page 34) and conclude that construction emission would generate an estimated 66
metric tons of carbon dioxide equivalent (MTCO2e) and operational emissions would generate
an estimated 947 MTCO2e, which are both below the 1,1000 MTCO2e threshold of significance.
Also see Illingworth & Rodkin's response to this comment on page 2 of the September 14, 2018
memo.
Comment #4: The IS/MND did not adequately address potential hazards on the adjacent
McDowell Elementary School and the 4Cs Petaluma Child Development Center located on
Maria Drive. The standard for assessing impacts to schools is to measure the distance
between property lines, which is approximately 50 feet. The Air Quality section of the
IS/MND incorrectly uses a distance of 475 feet and the Hazards/Hazardous Materials
section of the IS/MND incorrectly uses a distance of 150 feet.
The commenter is correct in stating that the distance between the property lines of the
Safeway Fuel Center and the McDowell Elementary School facility is approximately 50
feet (separated by the Maria Drive right -of way). The distance of 150 feet in the
Hazards/Hazardous Materials section of the IS/MND was based on the distance between
the 4Cs Petaluma Child Development Center building and the center of the proposed fuel
station canopy.
The distances identified in the Air Quality section (page 19 of the IS/MND) vary
depending on the location of the sensitive receptor, as described below:
"The nearest sensitive receptors in proximity to the project site, and their distances
from the project's limits of work, include the North Bay Children's Center located
at the northeast corner of South McDowell and Maria Drive (60 feet), McDowell
Elementary School (475 feet) and associated recreational playfield (60 feet), and
residences along South McDowell Boulevard (80 feet)."
14
As a point of clarification, the distance of 475 feet was measured from the blacktop
outdoor area in the center of the McDowell Elementary School facility to the nearest
portion of the project site. Although the precise distances set forth in the IS/MND from
various facilities to the project site were somewhat unclear, the IS/MND adequately
discloses that the McDowell Elementary School is located within I/4 mile of the project site
(page 36, section 3.8 (c)).
The IS/MND appropriately describes the regulatory context including Oil Spill
Prevention, fuel storage, and the role of the Petaluma Fire Department in administering the
Certified Unified Program Agency (CUPA) obligations (pages 37 and 38). In addition, the
General Plan EIR Chapter 3.13 (pages 3.13-5 through 3.13-10) contains details regarding
the regulatory context, including underground storage tanks, asbestos, CUPA, Hazardous
Materials Management, Risk Management and Prevention, Hazardous Waste Handling,
and Emergency Response. As the IS/MND tiers from the General Plan EIR, which is
incorporated by reference, in accordance with CEQA Guidelines Sections 15150 and
15152 the detailed regulatory setting set forth in the General Plan EIR does not need to be
restated.
The City of Petaluma Fire Department carries out CUPA responsibilities and applies
conditions to projects to obtain necessary permits for handling and storing hazardous
materials. Accordingly, the Safeway Fuel Center project is subject to conditions of
approval numbers 59 and 60 imposed by the Fire Department, which require acquisition of
a CUPA permit and preparation of a Hazardous Materials Response Plan, respectively. As
such, the proposed gas station as a standard urban use is sufficiently regulated to ensure
that potential hazards associated with siting such a facility in proximity to a school does
not pose a substantial risk. Therefore, the IS/MND concludes that impacts due to
hazardous emission or hazardous waste in close proximity to a school would be less than
significant.
Comment 95: The IS/MND does not address the cumulative hazards on schools from
small releases of vapor emissions and liquid fuels at project operation.
The small releases of vapor emission would not result in cumulative significant impacts because
it falls under the cumulative threshold established by BAAQMD. Vapor emissions from off
gassing and operation of the proposed Safeway Fuel Center are fully analyzed as part of the
Health Risk Assessment. See response to Comment #19.
The small release from liquid fuels associated with fueling would not result in adverse impact to
the nearby school. As described above in response 4, the project is subject to a Hazardous
Materials Response Plan and a CUPA permit for the handling, transport and storage of fuels,
which ensure that spill prevention and clean up procedures are in place. Additionally, the
IS/MND discloses that the project has the potential to result in the release of hydrocarbons that
could enter storm water and be carried offsite (page 40). However, the project includes
provisions for the installation of an infiltration/bio-filtration trench which would receive and
filter on-site runoff prior to discharging to the City's storm water system. As such, incremental
releases from small amounts of liquid fuels does not present a substantial hazard to the adjacent
15
School. Therefore, the IS/MND concludes that potential impacts from fueling activities in
proximity to the school would be less than significant.
Comment #6: The IS/MND does not address noise levels at the property line or at the
outdoor areas of residences and the recreational area of the school.
Ambient noise measurements were appropriately collected at the property line of the school and
at the property line of the residence south of South McDowell Boulevard. The General Plan
identifies the project site and vicinity (including McDowell Elementary School and residences
along South McDowell Boulevard) as being located fully within the 65 dBA noise contour of
Highway 101 (Figure 10-1). Additionally, South McDowell, as a primary arterial, exhibits a 70
dBA noise contour. The ambient noise measurement collected in the project site vicinity affirms
the General Plan projections with an average noise level of 70 dBA, ambient daytime level of 65
dBA and a nighttime ambient level of 60 dBA.
The noise impact analysis is considered relative to the ambient noise environment, in accordance,
with the City's Zoning Ordinance. Noise generating activities on the project site (e.g. idling,
engine starts, door slams, HVAC, etc.) and noise levels on arterials from increases to traffic
volumes. (on South McDowell Boulevard) were considered in the noise analysis and are
presented in the IS/MND (pages 45 to 46). The impact analysis focuses on nearby sensitive
receptors including the nearest school building and the dwelling unit of a nearby resident. As
described in the IS/MND (page 46), the proposed project would increase the noise environment
by 2 dBA east of Maria Drive (at outdoor areas) and south of South McDowell Boulevard (at
outdoor areas). As concluded in the IS/MND this increase is considered to be less than
significant because it is below, a 4 dBA increase for the area south of South McDowell Boulevard
and below a 5 dBA increase for the area east of Maria Drive and noise levels are projected to
remain at or below the range of the ambient daytime and nighttime noise levels. Also see
Illingworth & Rodkin's response to this comment on page 4 of the September 14, 2018 memo.
Comment #7: Construction activities would intermittently generate high levels of
noise (70 to 85 dBA), but the IS/MND concludes that construction would not exceed
60 dBA Leq for a duration greater than 1 year. This conclusion is not adequately
justified.
The IS/MND appropriately discloses that construction activities generate temporary increases in
the ambient noise environment associated with various stages of construction and use of
construction equipment. The IS/MND tiers off of the General Plan EIR, which provides an
analysis of potential impacts associated with construction activities in the planning area and
includes a discussion of construction activities occurring in close proximity to sensitive noise
receptors (pages 3.9-24 through 3.9-26). The General Plan EIR concludes that impacts would be
less than significant and to further reduce temporary noise level from construction, best
management practices (BMP) are set forth. These BMP have been added to the subject project as
Mitigation Measure NOI-1. Further NOI-1(1) provides enhanced restrictions on the hours within
which construction activities including material delivery can occur. It is well understood that
construction activities generate temporary noise disturbance and the City General Plan and
Zoning Code provide policies and regulation to minimize noise impacts. The Safeway Fuel
In
Center project is subject to BMPs and more stringent construction hours limitations due to the
proximity to nearby sensitive receptors. Therefore, the conclusion that impacts would be reduced
to levels below significant is justified both in the IS/MND and the program level, EIR prepared
for the City's General Plan upon which the IS/MND is tiered.
Comment #8: It is unclear if the increase in trips generated by the project would
result in an increase in the existing roadway noise.
See response to Comment #6 above.
Comment #9: The Noise Study fails to provide the methodology used to determine
the increase in traffic and it is unclear how a conclusion of less than significant is
reached.
The Noise Study (page 15) states that the traffic volumes on project area roadways were obtained
from the TJKM Traffic Study. Noise volumes on roadways are a function of speed limits, vehicle
mix, and flow conditions. The Noise Study described a 1 to 2 dBA increase based on the
roadway parameters and projected traffic volumes. Also see response to Comment #6 above.
Additionally, Illingworth & Rodkin provided a response to this comment on page 4 of the
September 14, 2018 memo stating that "per acceptable acoustical practice, the increases and
decreases in traffic noise levels were calculated as a function of the logarithmic relationship" of
traffic volumes. Therefore, the study provides the methodology utilized, relies on acceptable
practice, and the conclusion of less than significant impacts for roadway volume noise increase is
substantiated.
Comment #10: The IS/MND does not provide any discussion as to what conditions
exist or will exist that would provide for the "conditionally acceptable" noise levels at
the school to be reduced to "normally acceptable" levels.
General Plan Figure 10-2 Land Use Compatibility Standards identify the acceptable,
conditionally acceptable, and unacceptable noise levels for each land use within the City. For
schools, the generally acceptable noise standard ranges from 50 to 70 dBA and is conditionally
acceptable between 60 and 70 dBA. As described above in response to Comment #6, the ambient
noise environment under existing condition is 65 dBA at the school, which is already in the
conditionally acceptable range (and also the normally acceptable range). This is an existing
condition, due to the school's proximity to Highway 101 and South McDowell Boulevard, and is
not a result. of the proposed project. The Noise Study and IS/MND conclude that the proposed
project would not substantially alter the noise environment. As such, the project is not required
to reduce the ambient noise levels at the school or elsewhere in the project vicinity.
Comment #11: Sufficient attention is not given to pedestrian circulation and safety
considerations:
Concerns regarding pedestrian circulation and safety were similarly raised and responded to
during the public review period on the Draft IS/MND. The Response to Comments on Safeway
Fuel Center Draft IS/MND document summarizes the additional records review of collision data
E
prepared by CHS, which is documented in CHS's Technical Memorandum Re: Petaluma
Safeway Fuel Center: Pedestrian Counts and Safety Analysis, dated June 6, 2018 and the
pedestrian improvements that would be made by the project.
In short, review of the five-year collision history indicates a low rate of collisions, at the Maria
Drive/South McDowell Boulevard intersection, with an average vehicle collision rate of four per
year. Based on the collision record, CHS concluded that there was not a pattern of pedestrian -
involved collisions indicating a safety concern at the subject intersection.
Importantly, the Safeway Fuel Center includes a number of improvements to the pedestrian
network along the site's frontage to Maria Drive and at the Maria Drive/South McDowell
Boulevard intersection, including the following:
• Installation of frontage improvements consistent with approved project plans, including
reflective marking/striping to be placed on curb retums/bulb outs to warn drivers and
cyclists (COA #42)
• Sidewalks, driveway approaches and curb ramps along the project site frontage that are
broken, cracked or displaced shall be replaced (COA # 44)
• A new accessible and directional pedestrian ramp shall be installed at the intersection of
South McDowell Boulevard and Maria Drive (COA # 45)
• Pedestrian crossing signage shall be installed at driveway entrances (COA #46)
• Stop bar and legends and crosswalks shall be installed at all project intersections (COA
#50)
It should be noted that several of the above conditions are derived from and consistent with the
City's Safe Routes to School Plan including COAs 44, 45, and 46. Accordingly, the project
implements general and specific recommendations identified in the City's Safe Routes to School
Plan.
Comment #12: Level of Service (LOS) is not a complete measure of impact. Due to
the proximity of the school, the following General Plan policies should have been
included in the MND:
• 5-P-24: Give priority to the pedestrian network and streetscape amenities
near schools, transit, shopping, and mixed-use corridors emphasized in the
General Plan.
• 5 -P -32G: Participate in and support recommendations of the Safe Routes to
School program.
• 7-P-15: Improve and expand safe pedestrian, bicycle, and transit access to all
school sites and campuses.
Pedestrian, bicycle and public transit impacts were considered in the IS/MND in addition to
LOS. Please see response to Comment #11 above regarding the project's improvements to the
pedestrian network (Policy 5-P-24) and compliance with Safe Routes to School (Policy 5 -P -
32G).
18
Regarding improvements to transit (Policy 7-P-15), the project includes a number of upgrades
and enhancements to the adjacent Eastside Transit Center. The bus pullout lane will be widened
such that bus queues can occur fully outside of the Maria Drive travel lane. Additionally, the
Transit Center will be improved with new benches, shelters, landscaping, route -time indicators,
bike racks and a transit kiosk (COA #43).
Regarding improvements to bicycle facilities the project includes striping (share the road
markings) and signage along the project site frontage to Maria Drive, where a Class III bike
route is proposed. As such, the project achieves the intent of the above identified policies.
Comment #13: A conservative traffic analysis should have assumed that most vehicle
trips would exit the site onto Maria Drive, with all vehicles turning to the right.
The 2014 Traffic Impact Study describes the project trip distribution and assignments on page 14
and explains that all project trips are presumed to enter/exit via the two-way drive aisle at Maria
Drive (center driveway). Page 15 goes on to state that the realistic trip distribution would be
expected to utilize the various driveways at the shopping center such that 40% of trips would
take access via Maria Drive, 30 percent via McDowell Boulevard and 30% via Washington
Street. CHS Consulting Group responded to this comment in the September 14, 2018 memo
(page 2) and clarifies that the 2018 Traffic Impact Study reflects the realistic trip distribution
assuming that the multiple points of access are utilized. The trip distribution assumptions were
reviewed and considered by planning and public works engineering staff and appear to be
reasonable given the shopping center configuration, access and adjacent arterials. Additionally,
COA # 18 precludes left in/out at the center driveway on Maria Drive and the driveway closest
to the Maria Drive/South McDowell Boulevard intersection is designed to provide for right out
only movements. Furthermore, delivery trucks are precluded (COA# 1-5) from using Maria Drive
to access the Safeway Fuel Center, which further restricts the volume of trips on Maria Drive.
These design features and conditions of approval further limit trips that will use Maria Drive and
reinforce the appropriateness of assigning trip distribution through the shopping center to reflect
a more realistic travel pattern.
Comment #14: The MND does not acknowledge that the City has identified Maria
Drive as part of the Safe Routes to School network serving McDowell Elementary
School.
The commenter is correct that the MND fails to specifically mention that in accordance with the
City's Safe Routes to School Plan, Maria Drive, South McDowell Boulevard, McGregor Street,
and a number of local and collector streets are all identified as Routes to Schools. Pages 61
through 68 of the City's Safe Route to School Plan provide the setting, recommendation and
graphics relating to Safe Routes and features for the McDowell Elementary School. This
omission from the MND, does not, however, equate to a lack of analysis regarding pedestrian,
bicycle, transit, and alternative transportation facilities, which is provided in Section 3.16(f) of
the IS/MND. As described in response to Comment #11 above, the project includes adequate
improvements and commitments to enhance pedestrian facilities and implement the Safe Routes
to School Plan.
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Comment #15: No pedestrian safety features are described for the exit onto Maria
Drive that is approximately 50 feet from the intersection with McDowell Boulevard.
This statement is incorrect. The project is conditioned (COA #46) to include striping and
pedestrian crossing signage at all project driveways.
Soluri Meserve (September 14, 2018)
On behalf of the appellant, JoAnn McEachin, Soluri Meserve (Soluri) reviewed the IS/MND and
supporting studies and issued a comment letter dated September 14, 2018. The Soluri letter
asserts that the City has broad discretion to deny the project and that because a "fair argument"
can be made based on substantial evidence in the record that the project may have significant
effect on the environment, and therefore that an environmental impact report should be prepared.
The Soluri letter identifies concerns related to Air Quality, Greenhouse Gas Emissions,
Hazardous Material, and Transportation/Traffic (Attachment 10). The Soluri letter is further
supported by input from technical experts including a Health Risk Assessment (prepared by Fox
& Kapahi), and Lamy Wymer & Associates Traffic Engineering. The following states the
primary comments raised in the Soluri letter and provides staff's responses:
Comment #16: The City has broad discretion to deny the project.
It is correct that in accordance with Section 24.010 of the City's IZO, Ordinance No. 2300
N.C.S., SPAR of projects subject to SPAR requirements is a discretionary action. Provision G of
Section 24.010 entitled "Standards for Review of Applications" of the IZO provides in pertinent
part that
[t]he appropriate reviewing body shall review the exhibits, together with
reports of the Director, and based on these documents, evidence submitted,
and the considerations set forth below, may approve the project as applied
for, approve the project with modifications, or disapprove the project.
The authority of the reviewing body under Section 24.010(G) to approve, approve with
modifications or deny a project clearly reflects a discretionary rather than a ministerial action.
Nothing in Section 24.010(G) sets forth conditions under which SPAR approval is required, only
considerations for determining whether a project achieves satisfactory quality design in the
individual building and its site, appropriateness of the building to its intended use, and the
harmony of the development with its surroundings, based on considerations of: quality materials;
architectural style and neighborhood compatibility; siting of structures compared to siting of
other structures in the immediate neighborhood; the characteristics of signs; the bulk, height, and
color of the proposed structure as compared to the bulk, height, and color of other structures in
the immediate neighborhood; landscaping; and ingress, egress, and internal circulation.
The City has consistently treated SPAR review as discretionary review triggering environmental
review under CEQA. Section 15268 of the CEQA Guidelines recognize that "[t]he
determination of what is `ministerial' can be most appropriately be made by the particular public
agency involved based upon its analysis of its own laws." Accordingly, because the City treats
20
its SPAR review as discretionary review, and the CEQA review conducted by the Planning
Commission was the first consideration of project environmental impacts under CEQA, and in
view of the Planning Commission's authority under the City's IZO and CEQA itself to condition
the, project based on project environmental impacts, the City insisted on its authority and
obligation to consider all potential environmental impacts of the project, not merely those related
to aesthetics, as the project applicant had argued. (Attachment 22)
The Planning Commission's authority to deny SPAR approval for a project based on
consideration of the design factors in Section 24.010(G) of the IZO is clear. The City Council
possesses the same authority when conducting de novo review of SPAR decisions of the
Planning Commission on appeal in accordance with Section 24.070(G) of the IZO.
Nonetheless, the City has not interpreted its SPAR discretion as expansively as counsel for the
Appellant. The SPAR factors in Section 24.010(G) of the IZO are not limited to merely aesthetic
considerations, since evaluation of functional design considerations such as ingress, egress and
internal circulation (and related safety considerations) are included. However, the SPAR factors
in section 24.010(G) do not expressly include a General Plan consistency finding that might be
argued to incorporate the full range of General Plan policies and programs into the more focused
review of design considerations under Section 240.10(G). In addition, General Plan Policy 4-P-
17 regarding locating sources of air pollutants cited by Mr. Soluri as a mandatory General Plan
policy is clearly permissive, as it provides measures that "may be considered" for avoiding
potential health effects and citizen complaints.
Mr. Soluri cites Section 1.040(C) of the IZO, which provides that the IZO requirements are
minimum requirements for promotion of the public health, safety and general welfare, and that
more stringent requirements may be imposed when the IZO provides for such discretion. Based
on Section 1.040(C), Mr. Soluri concludes that the IZO grants the City authority to deny SPAR
approval for the project based on broad considerations such as whether the siting of a proposed
use is in harmony with the immediate neighborhood pursuant to Section 24.010(G). However,
the project site is located in a C2 zoning district, and fueling stations are permitted uses in C2
zones. The City has not interpreted its discretion under SPAR so broadly as to permit rejecting
outright uses specified as permitted in a zoning district based on SPAR considerations. Doing so
could undermine the stability and reliability of the permitted land uses specified in the use tables
in Chapter 4 of the IZO.
Comment #17: CEQA requires an EIR whenever a "fair argument" can be made
that a significant impact will occur because of a project.
Section 15064, Subdivision (f) of the CEQA Guidelines provides that the decision as to whether
a project may have one or more significant effects shall be based on substantial evidence in the
record of the lead agency, and that if the lead agency determines there is substantial evidence in
the record that the project may have a significant effect on the environment, the lead agency shall
prepare an EIR. The lead agency shall prepare an EIR even though it may also be presented with
other substantial evidence that the project will not have a significant effect. Section 15064,
Subdivision (g) of the CEQA Guidelines provides that after application of the principles set forth
in Section 15064, Subdivision (f) of the CEQA Guidelines, in marginal cases where it is not clear
21
whether there is substantial evidence that a project may have a significant effect on the
environment, the lead agency shall be guided by the principle that if there is disagreement among
expert opinion supported by facts of the significance of an effect on the environment, the lead
agency shall treat the effect as significant and shall prepare an EIR.
Under Protect Niles v. City of Fremont (2018) 25 Cal.App.5th. 1129, "residents' personal
observations of traffic conditions where they live and commute may constitute substantial
evidence even if they contradict the conclusions of a traffic study." As such, the fact -based
comments of the community may constitute substantial evidence that a fair argument can be
made that the project may potentially result in adverse impacts related to circulation.
Additionally, in accordance with CEQA public testimony (or reasonable inferences from it)
should be considered to constitute substantial credible evidence supporting a fair argument when
the project may have a significant impact (Rominger v. County of Colusa (2014) 229 Cal.App.4th
690). Given the context of the project area, which is located adjacent to the McDowell
Elementary School, testimony of neighbors, parents and teachers providing fact -based
observations and reasonable inferences may qualify as evidence submitted into the record
suggesting that the project may result in safety concerns associated with increased activity at the
North McDowell Boulevard/Maria Drive intersection. Accordingly, it is appropriate for the City
Council to consider whether fact -based concerns expressed by community members related to
traffic and traffic safety, discussed further below, and conflicting air quality analyses, prepared
by experts, amount to substantial evidence supporting a fair argument that the project may have
significant environmental impacts.
Comment #18: The California Air Resources Control Board (CARB) has issued
longstanding land use guidance to cities and counties to locate gasoline stations with
throughput of 3.6 million gallons more than 300 feet away from sensitive receptors
such as homes, daycare centers and schools.
Contrary to the commenter's assertion, CARB's guidance is not for the siting of new gas stations
but for the siting of new sensitive receptors. Sensitive receptors such as homes, daycares centers
and schools, are unregulated (by the Air District) land use types, as opposed to the source
emitters (such as gasoline stations), which are regulated through the issuance of permits by the
Air District.
In April 2005, CARB released the Air Quality and Land Use Handbook, which is intended to
encourage local land use agencies to consider the risks from air pollution before making
decisions that approve the siting of new sensitive receptors, such as homes or day care centers,
near sources of air pollution (CARB, 2005).
The primary purpose of the handbook is to highlight the potential health impacts associated with
siting new sensitive receptors in close proximity to source emitters such as freeways, distribution
centers, and gasoline dispensing facilities and to encourage that local land use decisions consider
health risks in the planning process. CARB set forth advisory recommendations regarding the
siting distance of new sensitive land uses near source emitter.
22
These "advisory" siting recommendations (or buffer distances), are summarized in Table 1
below. The siting of new sensitive land uses within the identified buffer distances may be
possible, but only after site-specific studies are conducted to identify the potential health risks.
Table 1: CARB RECOMMENDATIONS ON SITING NEW SENSITIVE USES LAND USES
Source Categoryl
Advisory Recommendations
Freeways and High -Traffic
Avoid siting new sensitive land uses within 500 feet
Roads
of a freeway, urban roads with 100,000 vehicles/day,
or rural roads with 50,000 vehicles/day.
Avoid siting new sensitive land uses within 300 feet
of a large gas station (defined as a facility with a
Gasoline Dispensing Facilities
throughput of 3.6 million gallons per year or greater).
A 50 -foot separation is recommended for typical gas
dispensing facilities.
Source: Air Quality and Land Use Handbook: A Community Health Perspective, prepared by CARB, April 2005.
Additional Source Categories can be found on Table 1-1 of the Handbook (page 4).
It is important to understand that CARB's recommendations are for the siting of new sensitive
receptors (homes, daycare centers and schools), as opposed to the siting of new stationary source
emitters such as a gas station. As stated in CARB's handbook this is because:
Unlike industrial or stationary sources of air pollution, siting of new sensitive
receptors does not require an air quality permit. Because these situations fall
outside the air quality permitting process, it is especially important that land use
agencies be aware of potential air pollution impacts.
The subject project, Safeway Fuel Center, involves the siting of a new stationary source emitter,
which is subject to the air quality permitting process. The Safeway Fuel Center has received an
Authority to Construct Permit from the BAAQMD and is subject to the District's Rules and
Regulations. (Note, however, that the BAAQMD has indicated that the applicant must apply for
an amended permit. See Attachment 11.) As set forth in the Authority to Construct Permit,
Safeway must utilize Best Available Control Technology for Gasoline Dispensing Facilities
including the use of California Air Resources Board (CARB)-certified Phase -I and Phase -II
vapor recovery equipment. BAAQMD concluded that the Safeway Fuel Center would meet the
requirement by using CNI enhanced vapor recovery (EVR) Phase I equipment and VST Balance
EVR Phase II equipment with the Veeder-Root Vapor Polisher and Veeder-Root ISD controls.
These two systems are certified by CARB under Executive Orders VR -104 and VR -204
respectively.
The regulations imposed by BAAQMD for the siting of new stationary source emitters ensures
that new facilities will not present an adverse health risk impact. Furthermore, this finding is
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substantiated by the HRA prepared in support of the IS/MND and the subsequent HRA prepared
by Illingworth & Rodkin (October 10, 2019), which concluded that health risk impacts would be
less than significant. As described in response to Comment #19, BAAQMD reviewed Illingworth
& Rodkin's HRA and found it be acceptable. Siting of the proposed Safeway Fuel Center at the
proposed location, proximate to the McDowell Elementary School facility and residences, does
not present a significant health risk impact. CARB's guidelines regarding siting new sensitive
receptors are not applicable in this instance because the project involves the siting of a new
source emitter and not the siting of sensitive receptors.
Comment #19: The project will result in significant human health impacts from
emission of toxic air contaminants. The commenter notes that the Illingworth &
Rodkin Health Risk Assessment (September 19, 2017) is invalid because it utilized
the ISCST3 model when AERMOD should have been used. The commenter asserts
that health risk impacts are significant based on the technical analysis contained in
the Fox & Kapahi Health Risk Assessment (September 17, 2018), which used the
BAAQMD recommended AERMOD dispersion model.
In addition to the Soluri comment and the Fox HRA, the City also received a comment letter
from BAAQMD. The BAAQMD comment letter (September 17, 2018), like the Soluri letter,
directed that the HRA use the AERMOD dispersion model instead of the ISCST3 model because
the Air District's permit modeling analysis procedures have changed, and current procedures use
AERMOD.
In response to BAAQMD and Soluri comments, Illingworth and Rodkin prepared a response to
comments and a new HRA using the District recommended AERMOD (October 10, 2018).
The City received and has reviewed two HRAs that utilize the AERMOD dispersion model: one
from the appellant's representative, Soluri Reserve, which was prepared by Fox & Kapahi
(September 17, 2018) and the other from the applicant's representative, Tucker & Rutan, which
was prepared by Illingworth & Rodkin (October 10, 2018). Both HRA's utilize BAAQMD's
recommended AERMOD dispersion model, but apply different assumptions, modeling
parameters and yield differing conclusions. In short, the HRA prepared by Fox & Kapahi
concludes that health risk thresholds are exceeded, whereas the HRA prepared by Illingworth &
Rodkin concludes that health risks resulting from operation of Safeway Fuel Center fall below
thresholds of significance.
The City has been consulting with BAAQMD to receive expert input on the appropriateness of
methodology applied in the HRAs. The Air District was provided with both the Illingworth &
Rodkin HRA and the Fox & Kapahi HRA. City staff has participated in conference calls with
BAAQMD staff and email correspondence seeking expert input on the appropriateness of the
modeling inputs and claims made by each HRA regarding significance determination as it relates
to health risks in the project vicinity including the adjacent McDowell Elementary School
facility.
On November 13, 2018, the City received a comment letter dated November 8, 2018 from
BAAQMD. BAAQMD's letter states that the District has reviewed the two HRAs, prepared by
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Illingworth & Rodkin and Fox & Kapahi, and has concerns regarding the Fox & Kapahi HRA
and finds the Illingworth & Rodkin HRA to be acceptable.
The BAAQMD letter states that the Fox & Kapahi HRA uses inappropriate meteorological data
from Santa Rosa, which results in inaccurate wind pattern assumptions. BAAQMD also states
that the benzene emission factor applied in the Fox & Kapahi HRA is substantially higher than
the District's standard benzene emission factor for gasoline dispensing facilities. Further,
BAAQMD finds that the residential exposure assumptions used in the Fox & Kapahi HRA are
inconsistent with the District's current HRA risk calculation procedures.
The BAAQMD letter concludes that the Illingworth & Rodkin HRA prepared October 10, 2018
is acceptable and resolves the District's prior concerns stated in their September 17, 2018 letter.
The expert input received from BAAQMD supports the less than significant finding of the
IS/MND regarding health risk impact from the proposed Safeway Fuel Center. The Safeway Fuel
Center would result in less than significant impacts to health risk due, to construction and
operation of the proposed Safeway Fuel Center because emissions levels and exposure risk to
adjacent sensitive receptors fall below levels of significance.
However, Soluri correspondence and supplemental analysis prepared by Fox & Kapahi
(November 30, 2018) assert that the AERMOD model with application of Petaluma Specific
wind data yields increased health risk exposure to nearby residents and students at the McDowell
Elementary School facility which is inconsistent with the health and welfare of the City and its
residents.
Comment #20: The project will result in significant impacts to GHG emissions and global
climate change.
See response to Comment # 3 above. The methodology used to quantify GHG emissions
generated by the Safeway Fuel Center is appropriate and supports a less than significant
determination.
Comment 921: The IS/MND fails to account for emission from the fuel sold by the
project and as such the significant threshold of 1,100 metric tons of CO2e is exceeded
by 68 times.
The commenter's assertion that the GHG analysis must include emissions from fuel sold by the
project is contrary to industry practice. The appropriate scope of the GHG analysis includes
direct and indirect emissions generated by a proposed project during construction and at
operation. Direct emissions occur onsite from the fuel and energy combustion such as operation
of construction equipment. Indirect emissions occur offsite from the production of electricity
used for lighting, heating and cooling of onsite facilities, for the electricity required for the
conveyance of water and wastewater treatment, and for fuels used in transportation for traveling
to and from the project site. The BAAQMD provides guidelines for estimating a project's GHG
emissions and directs use of CalEEMod for modeling purposes. In estimating a project's GHG
emissions, BAAQMD directs that projects account for area sources (natural gas, hearth, fuels
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used for landscaping), transportation (vehicles traveling to and from the project site), electricity
consumption (lights, heating and cooling), solid waste landfill (from waste generated onsite),
water and wastewater (conveyance and treatment).
The combustion of fuels sold at the gas station is beyond the scope of an appropriate GHG
analysis. Only fuel combustion used by vehicles traveling to and from the Safeway Fuel Center
is captured in the GHG analysis. This is consistent with acceptable practice utilizing BAAQMD
recommended methodology.
Comment #22: The traffic study assumes an admitted unrealistic trip distribution
through project driveways and claims that this was done to be "conservative."
See response to Comment #13. The traffic study adequately discloses assumptions and relies
upon a realistic traffic pattern in assessing potential impacts. Also see CHS Consulting Group's
response item 2 contained in the Technical Memorandum Re: Petaluma Safeway Fuel Center:
Traffic/ Transportation Response to Peer Review Conducted by Larry Wymer, September 14,
2018, which is included as Exhibit B to Rutan & Tucker's September 17, 2018 comment letter
(Attachment 8).
Comment #23: The traffic study failed to identify Caltrans' thresholds of significance
for Highway 101.
As previously stated, the IS/MND tiers from the General Plan EIR, which is incorporated by
reference, in accordance with CEQA Guidelines Sections 15150 and 15152. Information
contained therein does not need to be restated. As set forth on page 3.2-20 of the General Plan
EIR, significant traffic impacts on freeway segments are identified when a project causes:
1. The volume of the freeway segment to exceed its capacity (Cause LOS #E or better to
deteriorate to LOS F); or
2. An increase in the amount of traffic on a freeway segment already exceeding its capacity
by more than one percent of the freeway segment's design capacity.
Caltrans issued a comment letter on the Draft IS/MND stating that the project should be
conditioned to contribute fair share traffic impact fees towards improvements for the U.S.
Highway 101/East Washington Street interchange. Responses to the Caltrans commenter letter
were included in the Response to Comments on Safeway Fuel Center Draft IS/MND document.
In short, improvements at the subject interchange have already been completed. In addition,
signal timing changes have similarly been completed. Caltrans, did not provide any further
comments regarding the adequacy of the traffic study or request any additional information.
Comment #24: The traffic study failed to identify any methodology for its selection of
roadway segments and intersections. Additional intersections should have been
studied.
The selection of study area intersections was conducted in close coordination with the City
Engineer at the onset of the traffic impact study. The selection of intersections to be evaluated in
traffic impact analyses is carried out on a project specific basis, depending on the nature of the
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project, location, and roadway conditions. The six intersections selected for evaluation in the
Safeway Fuel Center traffic study continue to be appropriate as they provide information about
existing and future operating conditions of the intersections that will be most affected by the
proposed project. Study area intersections farther away from those selected will not be as
affected because trips to/from Safeway will disperse, as evidenced by the trip distribution
assumptions. The study area intersections selected provide adequate information to inform the
potential traffic related effects of the proposed project. No additional study area intersections or
roadway segments analysis are warranted.
Also see CHS Consulting Group's response item #3 (included as Exhibit B to Rutan & Tucker's
September 17, 2018 comment letter, Attachment 11).
Comment 925: The City's General Plan 2025 adopted a level of service D as the
minimum acceptable operations, and signalized intersections operating at LOS E
under existing conditions would result in significant impact if the addition of a new
project would cause LOS E to deteriorate to LOS F. The 2014 traffic study applies
these LOS thresholds for all study intersections, which violates CEQA.
This is not a violation of CEQA. The City consistently applies the thresholds set forth in the
General Plan. The 2018 traffic study, Table 4, identifies a LOS E during the pm peak hour for
the intersection of McDowell Boulevard and Washington Street under the existing plus approved
scenario. This demonstrates that this identified LOS deficiency exists without the project. Table
5 of the 2018 traffic study shows that with the addition of the subject project trips under the
background scenario (existing plus approved projects), the intersection of McDowell Boulevard
and Washington Street will continue to operate at LOS E, with an increase in delay of 1.5
seconds relative to the no project condition. As explained in the traffic study (page 11) and the
IS/MND (page 54), the deficient LOS E occurs without the project, and therefore is not an effect
caused by the Safeway Fuel Center project. The added peak hour trips generated by the Safeway
Fuel Center would contribute a 1.5 second delay at this already deficient intersection but would
not cause the LOS to further degrade. Therefore, the traffic study and IS/MND appropriately
conclude that traffic impacts from the Safeway Fuel Center would be less than significant. Also
see CHS Consulting Group's response item #5 (included as Exhibit B to Rutan & Tucker's
September 17, 2018 comment letter, Attachment 11).
Comment #26: The traffic study and IS/MND rely on speculative future roadway
improvements (Rainier Cross -Town Connector) that have not been adequately
funded.
The Rainier Cross -Town Connector is a long planned future roadway improvement that is central
to the City's General Plan buildout circulation network. In 2015, the City certified the Rainier
Cross -Town Connector EIR (SCH # 2011082032) and has been collecting and continues to
collect funds for its development. The City's funding mechanism for Rainier is its capital
improvement program (CIP), the impact fees collected for development of the program, and
developer contributions. The fee structure for impact fees is based on securing sufficient funds to
construct programmed CIP improvements, including Rainier, at General Plan buildout. All of the
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City's traffic studies that include a cumulative scenario rely on the planned roadway
improvements identified in the General Plan including Rainier Cross -Town Connector.
Also see CHS Consulting Group's response item #6 (included as Exhibit B to Rutan & Tucker's
September 17, 2018 comment letter, Attachment 11).
Comment #27: The IS/MND failed to adequately disclose and mitigate for potentially
significant hazardous materials impacts
See responses to Comments #4 and #5 above.
BAAQMD Comments on Health Risk Assessment (November Stn)
The Bay Area Air Quality Management District (BAAQMD) issued a comment letter on
September 17, 2018 regarding the methodology utilized in the HRAs prepared by Illingworth &
Rodkin and by Fox & Kapahi for the Safeway Fuel Center. (Attachment 12)
Comment #28: The BAAQMD's modeling analysis procedures have changed since the
authority to construct permit was issued and the AERMOD dispersion model is now
recommended instead of the Industrial Source Complex Short -Term 3 (ISCST3) model.
See response to Comment #19. BAAQMD has found the October 10, 2018 Illingworth & Rodkin
HRA which utilized the AERMOD dispersion model to be acceptable and identified several
inappropriate model assumptions applied by the Fox & Kapahi HRA. A supplemental health risk
assessment was subsequently prepared by Fox & Kapahi (November 30, 2018) and asserts that
application of the AERMOD dispersion model increases exposure risks. On December 3, 2018
Fox & Kapahi submitted a Response to Comments on the IS/MND that responds to Illingworth
& Rodkin's revised Health Risk Assessment and BAAQMD's November 8, 2018 letter and
asserts that health risk impact from the proposed gas station are potentially significant.
As additional background, the City of Petaluma, as the lead agency, submitted the environmental
document to the State Clearinghouse (SCH) for circulation to state agencies in accordance with
CEQA for a 30 -day public review period which extended from April 5, 2018 through May 7,
2018. BAAQMD was specifically identified as a reviewing agency in the Notice of Completion
submitted to the SCH. BAAQMD did not submit comments on the IS/MND during the public
comment period. It should be noted that over the course of the environmental review process and
following release of the .IS/MND, City Planning Staff did correspond and consult with
BAAQMD staff on an ongoing basis to receive input regarding the BAAQMD's Authority to
Construct Permit initially issued on October 10, 2013 and for which an extension was granted on
November 9, 2017.
Based on ongoing conversations with BAAQMD, it is understood that the Safeway Fuel Center
IS/MND was received and reviewed by BAAQMD staff during the public comment period but
did not rise to the level prompting comment as a responsible agency. The September 17, 2018
letter issued by BAAQMD was prompted due to the large volume of public comments
BAAQMD received through their Community Health Protection Program.
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Soluri Meserve (November 30, 2018)
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 providing supplemental health risk results from Fox and Kapahi. The following
states the primary comments raised in the Soluri letter and identifies where staff responses are
provided:
Comment #29: 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.
See Response to Comments #16 above.
Comment #30: Substantial evidence in the record supports the conclusion that siting the
siting of the Project is not harmonious with the neighborhood and is inconsistent with the
health and welfare of the City and residents.
See Response to Comments #19 and #28 above and Response to Comment #37 below.
Rutan & Tucker (December 1, 2018)
On behalf of the Applicant, Mr. Francois provided correspondence to the City alleging that the
appeal did not extend to the MND and that the record lacked substantial evidence of a fair
argument. The following states the primary comments raised in the Rutan & Tucker letter and
identifies where staff responses are provided:
Comment #31: 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.
The appeal applies to both Planning Commission actions, approval of the IS/MND and approval
of SPAR. See discussion below under the heading City Council Action on the Appeal
beginning on page 33.
Comment #32: No substantial evidence of a fair argument of a significant environmental
impact had been submitted and therefore the City cannot lawfully require the preparation
of an Environmental Impact Report for the Project.
Substantial evidence of a fair argument has been submitted into the record and contains
"disagreement among experts." See Response to Comment #17 above and Response to Comment
#37 below.
Rutan & Tucker (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.
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See Response to Comments #16, #17, #19 and #28 and Response to Comment #37 below.
Soluri Meserve (December 3, 2018)
On behalf of the Appellant, Mr. Soluri responds to Mr. Francois December 1 and 2, 2018 letters
regarding the scope of the appeal.
See Response to Comment #16 above and discussion below under the heading City Council
Action on the Appeal beginning on page 33.
Fox & Kapahi (December 3, 2018)
On behalf of the Appellant, Fox & Kapahi provided a Response to Comments on the IS/MND
asserting that health risk impacts are significant, critiquing the revised Health Risk Assessment
prepared by Illingworth & Rodkin, and responding to BAAQMD's November 8, 2018 letter.
The following states the primary comments raised in the Fox & Kapahi letter and identifies
where staff responses are provided:
Comment #33: Scientific research confirms that the project's health risk impacts are
significant.
See Response to Comments #19 and #28 above and Response to Comment #37 below. The
record contains disagreement among experts regarding the potential for health risk impact. As
described in Response to Comment #17, 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.
Comment #34: The methodology applied in the health risk assessment must rely on
appropriate data and assumptions including meteorological data, emission factors, and
exposure duration.
See Response to Comments #19 and #28 above and Response to Comment #37 below. The
record contains disagreement among experts regarding the potential for health risk impact. As
described in Response to Comment #17, 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.
Comment #35: The setbacks recommended by CARB for gas stations might be inadequate.
See Response to Comments #17, #18 and #28 above and Response to Comment #37 below.
Illingworth & Rodkin (December 3, 2018)
On behalf of the Applicant, Illingworth and Rodkin submitted a response to the December 3,
2018 submittal from Fox and Kapahi.
Comment #36: The memo asserts that modeling using AERMOD and EPA -approved
procedures is appropriate and it is improper to draw correlations between the resolution of
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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.
See Response to Comments #1, #2, #17, #19 and #28 above and Response to Comment #37
below. The record contains disagreement among experts regarding modeling, methodology and
potential for health risk impacts. As described in Response to Comment #17, 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.
Public Comment Letters
Various comment letters have been received from members of the public, the majority of which
expressed opposition to the project on a number of grounds including air quality/health risks,
safety, and circulation/traffic. Some of the comment letters from, members of the public
expressed support for the project.
Comment #37: Concerns regarding air quality, health risks, public health and safety, and
circulation/traffic.
See response to comments above.
Notwithstanding the above summarized collision record, set forth in response to Comment #11,
numerous public comments have been received expressing concern regarding safety conditions
at the Maria Drive/South McDowell Boulevard intersection. These concerns are prompted by
experiences of school families, teachers and residents who routinely use this intersection to
access facilities at the North McDowell Elementary School, services at the Safeway Shopping
Plaza and nearby recreational amenities. The public comment expresses concerns about unsafe
pedestrian conditions, with multiple commenters describing incidences of near collisions, which
would not be captured in the collision record. The Safeway Fuel Center will increase vehicle
activity at this intersection and may somewhat increase the number of pedestrians due to
children, teachers and residents accessing the proposed kiosk for snacks and drinks.
Acknowledging the increased activity and in an effort to further enhance safety and reduce
potential conflicts between pedestrians and vehicles, COA #18 requires that a vertical delineator
be installed on Maria Drive to preclude left turn movements in/out of the center driveway. COA
#15 requires that all delivery vehicles including re -fueling vehicles will access the site at access
points other than Maria Drive. Even with these provisions, community members continue to
express concern regarding safety of the intersection due to increased activity from the Safeway
Fuel Center.
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Given the context of the project area, which is located adjacent to the McDowell Elementary
School, testimony of neighbors, parents and teachers providing fact -based observations and
reasonable inferences, may qualify as evidence submitted into the record suggesting that the
project may result in safety concerns associated with increased activity at the North McDowell
Boulevard/Maria Drive intersection. Public testimony and comment letters identify safety
concerns with increasing vehicle activity at this intersection and potential conflicts with school
children, pedestrians, ballpark activities, and school bus loading. For example, two commenters
noted they have observed pedestrian/vehicle collisions and near -collisions in the Project area.
Another commenter observed that school -aged children walk home by themselves, and the
crosswalk is already a danger. A commenter expressed concernabout heavy traffic and foul
balls getting hit next to a busy street. Another commenter has observed cars run stop signs while
working at the snack shack at Murphy Field and noted Maria Drive is heavily traveled and one of
the main streets in that area.
In accordance with CEQA Guidelines Section 15064(f)(1) if presented with a fair argument, the
lead agency shall prepare an EIR even though it may also be presented with substantial evidence
that the project will have no significant effect. Furthermore, in accordance with CEQA
Guidelines Section 15064(8), "even in 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 following, principal: if there is disagreement among expert
opinion," then the "Lead Agency shall treat the effect as significant and shall prepare an EIR."
Given the preponderance of information received during the appeal process, the City Council
may reasonably conclude that a fair argument exists, based on substantial evidence, supported by
fact and due to disagreement among experts that the proposed Safeway Fuel Center may result in
adverse environmental impacts and thus an Environmental Impact Report is warranted to fully
evaluate to project's direct and indirect environmental impacts in accordance with CEQA.
Pursuant to the City's Environmental Review Guidelines (Adopted May 3, 1993 and revised
May 2, 1994), Section 8.7.0 Appeals provides that "on an appeal of an Initial Study
determination, if the body hearing the appeal finds there is substantial evidence to support a fair
argument that a potential for significant impacts exists, the decision making body shall require
that either: (1) an Expanded Initial Study or an EIR be prepared to address potential impacts
which were subject to the appeal or are otherwise deemed appropriate; or (2) mitigation
measures are attached as conditions of approval that would support a Mitigated Negative
Declaration."
Furthermore, Section 9.6.1 sets forth the following:
"Any comments challenging the determination, raising potential
environmental concerns, or appealing the recommended mitigation
measures shall be forwarded to the Director who shall either change the
recommendation to adopt a Negative Declaration, recommend additional
or alternative mitigation measures to address the concerns, or forward the
comments to the decision-making body for a final determination. The
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decision-making body shall consider any and all such comments and shall
determine if:
a) The comment(s) present substantial evidence of potential significant
effect (as defined in Sections 4.19 and 4.22 herein); and
b) If additional or alternative mitigation measures are warranted that
would avoid or minimize the impact to a level of insignificance; or
c) If further study (Expanded Initial Study) or an EIR should be required.
City Council Action on the Appeal
The Appeal challenges not only the Planning Commission's SPAR approval pursuant to
Resolution No. 2018-21, but also the MND approval for the project pursuant to Resolution No.
2018-21A. Safeway disputes this conclusion, arguing that only the Project SPAR is on appeal.
Nonetheless, both the Project MND and SPAR are properly on appeal before the City Council, in
accordance with the following.
The considerations in Section 24.010(G) of the IZO that the approving body is to take into
account regarding SPAR applications focus primarily on aesthetic considerations such as quality
of design, appropriateness of the building, and harmony of the development with its
surroundings. Some of the considerations in (G) involve functional and not merely aesthetic
factors, such as siting of the structure on the property compared with others in the neighborhood,
and ingress, egress and internal circulation for pedestrians and vehicles being designed to
promote safety and convenience, and to conform with approved City standards.
The bases for the Appeal filed July 9, 2019 include health and safety considerations related to
proximity of the project to schools and emissions from vehicles, traffic congestion concerns, and
traffic safety concerns. The health and safety considerations from proximity of the fuel station to
schools and vehicular emissions are environmental considerations and properly the subject of the
project environmental analysis. The same is true of traffic congestion and safety. Circulation is
included in the Section 24.010(G) SPAR factors, and the traffic congestion and safety concerns
raised in the appeal are also properly the subject of environmental analysis under CEQA.
The appeal appears to have been filed before the Appellant retained legal counsel. It refers to the
Planning Commission approval as an action to approve a building permit for the Project, clearly
not the Planning Commission's action. The Appeal does not distinguish between the Planning
Commission's approval actions under CEQA and regarding SPAR. However, the purpose of the
project appeal rights under Section 24.010 of the IZO is not to lay procedural traps for project
proponents and opponents, but rather to permit review on the merits of project applications in the
interest of project applicants and the public. It is not a fair reading of the Appeal and
inconsistent with the purposes of Section 24.010 of the IZO to treat the Appeal as addressing the
project SPAR approval only. The City has consistently treated the appeal as addressing both
approval actions of the Planning Commission on the Project. The submission from Appellants
legal counsel dated September 14, 2018 makes it expressly clear that the appeal is intended to
challenge both the Planning Commission approval under CEQA and SPAR approval under
Section 24.010.
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Based on the new information in the record and the Council's authority as the lead agency, it is
recommended that the City Council, first consider, as the decision making body, whether there is
substantial evidence in the record on appeal supporting a fair argument that the project may have
significant environmental impacts.
If the Council determines that new information presented concerning the project does not
constitute substantial evidence in support of a fair argument that the project may have significant
environmental impacts, it is recommended that the Council find that the MND is adequate and
the project as mitigated and with implementation of the conditions of approval would not result
in adverse environmental impacts, and deny the appeal of the Planning Commission's action
approving a MND and Mitigation and MMRP pursuant to Resolution No. 2018-21A.
If the Council finds that the Planning Commission's CEQA review was adequate and there is no
substantial evidence supporting a fair argument that the project will have significant
environmental impacts the Council is then free if it chooses to deny the appeal as to the Planning
Commission's SPAR approval and to uphold the Planning Commission's SPAR approval. In this
case, staff recommend that the City Council adopt the resolution found at Attachment 2.
Alternatively, if the Council finds that the Planning Commission CEQA review was adequate but
wishes to revisit the Planning Commission's SPAR approval, it is recommended that the Council
provide direction to staff concerning its determination regarding SPAR approval.
As part of its deliberation, the Council may also consider requiring additional conditions or
mitigation measures to further address concerns raised relating to public health and safety.
Alternatively, if the Council determines that the new information presented concerning the
project does constitute substantial evidence of a fair argument that the project may have
significant environmental impacts; i.e., that the Safeway Fuel Center may potentially result in
adverse environmental impacts it is recommended that the Council uphold the appeal concerning
the Planning Commission's action approving a MND and MMRP pursuant to Resolution no.
2018-21A, and direct that an EIR be prepared as permitted by the City's local Environmental
Review Guidelines and supported by the State CEQA Guidelines and Public Resources Code
Section 21000 et seq. In this case, it is recommended that the City Council adopt the resolution
found at Attachment 1.
PUBLIC COMMENT
Public comments received throughout the proceedings related to the application are included in
prior staff reports. Public comments received since publication of the September 17, 2018 staff
report (September 11, 2018) and up until publication of the December 3, 2018 staff report
(November 27, 2018) are included as Attachment 16. Public comments received since
publication of the December 3, 2018 staff report and up until publication of the January 28, 2019
staff report (January 22, 2019) are included at Attachment 26.
Public notice for the January 28, 2019 City Council hearing was published in the Argus Courier
and mailed to all property owners and tenants within a 1,000 -foot radius of -the site and to 274
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people on the interested parties list. Additionally, two public hearing signs were posted on the
site in advance of the January 28, 2019 hearing.
FINANCIAL IMPACTS
The appeal is a cost recovery project. The initial $235.00 deposit was paid by the appellant upon
submittal of the appeal while all additional costs of processing the appeal are paid by the
applicant.
ATTACHMENTS
Attachment 1 Draft City Council Resolution
Attachment 2 Draft City Council Resolution
Attachment 3 Rutan & Tucker Letter (January 2, 2019)
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Attachment 4 Safeway Appeal City Council Staff Report December 3, 2018
Attachment 1 Draft City Council Resolution
Attachment 2 Draft City Council Resolution (Replaced by revision Dec 3, 2018)
Draft City Council Resolution REDLINE
Draft City Council Resolution CLEAN
Attachment 5 City Council Resolution No. 2018-180
Attachment 6 Safeway Appeal City Council Staff Report September 17, 2018
Attachment 1 Safeway Appeal Resolution (Superseded)
Attachment 2 Letter of Appeal
Attachment 3 Planning Commission Resolution No. 2018-21A
Attachment 4 Planning Commission Resolution No. 2018-21B
Attachment 5 June 26, 2018 Planning Commission Staff Report
Attachment 6 May 8, 2018 Planning Commission Staff Report
Attachment 7 Public Draft IS/MND
Exhibit A Traffic Study, (online)
Exhibit B Traffic Study, (online)
Exhibit C Health Risk Assessment (online)
Attachment 8 Response to Comments
Attachment 9 Mitigation Monitoring and Reporting Program
Attachment 10 Supplemental Analysis from Applicant (June 6, 2018 letter)
Attachment 11 Illingworth and Rodkin (May 8, 2018)
Attachment 12 Complete Plan Set
Attachment 13 Applicant Supplemental Information (September 6, 2018 letter)
Attachment 14Public Correspondence prior to May 8, 2018 Planning Commission
Attachment 15Public Correspondence after May 8, 2018 Planning Commission
through June 26, 2018 Planning Commission
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Attachment 16 Public Correspondence after June 26, 2018 Packet Distribution
Attachment 17Public Correspondence after Appeal Filed to September 11, 2018
Attachment 7 Rutan & Tucker Letter (September 11, 2018)
Attachment 8 Meridian Consultant's Comments (September 12, 2018)
Attachment 9 Rutan & Tucker Response to Meridian Comments (September 14, 2018)
Attachment 10 Soluri Meserve Comments (September 14, 2018)
Exhibit A Comments on IS/MND + HRA prepared by Fox and Kapahi
(September 17, 2018)
Attachment 11 Rutan & Tucker Letter (September 17, 2018)
Attachment 12BAAQMD Comment Letter (September 17, 2018)
Attachment 13 Rutan & Tucker Response to Comments (October 10, 2018)
Attachment 14 BAAQMD Comment Letter (November 14, 2018)
Attachment 15 Rutan & Tucker Letter (November 14, 2018)
Attachment 16 Public Comment Letters received September 11, 2018 to November 27, 2018
Attachment 17Public Comment Letter (September 17, 2018)
Attachment 18 Comment Letter from Joann McEachin (November 29)
Attachment 19 Soluri Meserve Letter (November 30)
Attachment 20 Supplemental Health Risk Results from Fox and Kapahi (November 30)
Attachment 21 Rutan & Tucker Letter (December 1)
Attachment 22Rutan & Tucker Letter (December 2)
Attachment 23 Soluri Meserve Letter (December 3)
Attachment 24 Comments on IS/MND from Fox and Kapahi (December 3)
Attachment 25 Illingworth & Rodkin Letter (December 3, 2018)
Attachment 26Public Comment Letters received November 27, 2018 to present
w
ATTACHMENT 1
RESOLUTION OF THE CITY OF PETALUMA CITY COUNCIL
RESCINDING AND REPLACING RESOLUTION NO. 2018-180 ADOPTED
DECEMBER 3, 2018 AND 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. 2018-21A, 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. 2018-21B
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, 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 500 -foot 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
ran 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 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 1
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
("SPAR") application, the Planning Commission adopted a Mitigated Negative Declaration
("MND") and Mitigation Monitoring and Reporting Program ("MMRP") prepared pursuant to
CEQA for the Project via Resolution 2018-21A; and
WHEREAS, on June 26, 2018 following its action under CEQA the Planning
Commission approved the SPAR for the Project pursuant to Resolution 2018-2113, 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 2018-21 A approving an MND and adoption
of Resolution 2018-21B approving SPAR for the Project ("Appeal"); and
WHEREAS, the Appeal included 15 additional signatures from members of the public;
and
WHEREAS, the grounds for appeal given in the Appeal letter included: questioning the
community need for the Project; the proximity of the Project to a day care, school and Little League
ball park; increased traffic; 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, in accordance with the requirements of
the City's IZO and City Council Resolution No. 2018-107, and to all members on the interested
parties list for the Project; 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
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 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 MND 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 the Appellant, correspondence challenging both the Planning Commission's adoption of
Resolution No. 2018-21A approving the Project MND and the Commission's adoption of
Resolution No. 2018-21B approving the Project SPAR; and
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ATTACHMENT 1
WHEREAS, the Soluri September 14, 2018 correspondence asserted that the City Council
possesses the discretion to deny, and should deny, the Project SPAR 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
EIR; 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 MND
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 the standard of review applicable to the City's approval
of the Project SPAR, 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
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
l-3
ATTACHMENT 1
should run at the maximum permitted throughput limit, that off-site teacher/worker maximum
health impacts 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 6.13 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, ball 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 Illingworth 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 5B 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
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
1-4
ATTACHMENT I
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
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
1-5
ATTACHMENT I
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 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 Appellant Mr. Soluri's Legal Assistant
forwarded to the City responses to comments on the Initial Study/MND for the Project 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 HRA 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 Applicant, Illingworth and Rodkin
submitted a response to the December 3, 2018 submittal from Fox and Kapahi asserting: that the
Illingworth and Rodkin HRA 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
1-6
ATTACHMENT I
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 Cal.App.5th 1129, residents'
personal observations of traffic conditions where they live and commute may constitute substantial
evidence even if they contradict the conclusions of a traffic study, and 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
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.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 opinions 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, the staff report dated December 3, 2018 responded to comments received
since publication of the September 17, 2018 staff report and together with findings and analysis
contained in the September 17, 2018 staff report addressed the grounds for the appeal and are
incorporated herein by reference; 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 the information
submitted by City staff, the Applicant, the Appellant, interested parties and members of the public
concerning the Project and the Appeal, all of which information is hereby incorporated into and
made a part of this resolution; and
1-7
ATTACHMENT 1
WHEREAS, following the public hearing held on the Appeal on December 3, 2018 and
City Council deliberations regarding the Record on Appeal, the City Council, by a unanimous vote
and consistent with staff's oral recommendation at the hearing, adopted Resolution No. 2018-180
entitled:
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. 2018-21A,
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 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; and
WHEREAS, as the title indicates Resolution No. 2018-180 as adopted by the City Council
had the effect of upholding the Appeal as to the Project MND, ordering preparation of an EIR
regarding Project environmental impacts, and staying the SPAR approved by the Planning
Commission on June 26, 2018 pending certification of an EIR for the project and City Council
review of the Project SPAR; and
WHEREAS, on January 2, 2019, Matthew Francois representing the Applicant submitted
to the City correspondence alleging that at the December 3 appeal hearing, the City had violated
the Brown Act by: taking action on an item that was not on the published agenda in violation of
Government Code Section 54954.2, because none of the agendas that had been prepared
concerning Appeal indicated that the City Council would take action to require an EIR or stay the
Planning Commission's SPAR approval; by failing to make available to the public in accordance
with Government Code Section 54957.5 the revised resolution ordering preparation of an EIR that
staff prepared December 3, 2018, a September 17, 2018 email from project supporters and the
December 3 memo from Illingworth and Rodkin; and by failing to disclose the existing facts and
circumstances giving rise to significant exposure to litigation in accordance with Government
Code Sections 54954(c) and 54956.9 regarding the anticipated litigation items listed on the
September 10, 2018 and December 3, 2018 agendas; and
WHEREAS, by letter dated January 22, 2019, the City Attorney responded to Mr.
Francois' letter indicating that the City Council would take action to cure and correct the alleged
Brown Act violations at a notice public hearing on January 28, 2019, even though the City had not
violated the Brown Act at the December 3 hearing on the Appeal, and
WHEREAS, the January 22 correspondence indicated that the City did not violate the
Brown Act at the December 3 appeal hearing because: the agenda description for the December 3
al
ATTACHMENTI
Appeal hearing specified that the City Council would consider resolutions for Council action on
both Planning Commission approvals on appeal, the MND and SPAR, in accordance with Section
54954.2 requirements; the revised resolution upholding the appeal and ordering an EIR was shared
with the applicant's and appellants' representatives as soon as possible at the December 3 hearing,
the same time it was first presented to the City Council, in accordance with Section 54957.5, and
the September 17 email from Project supporters and the Illingworth and Rodkin December 3 memo
were not distributed to the Council members less than 72 hours before the December 3 hearing,
and were therefore not covered by Section 54957.5; and because the December 3 closed session
on the Appeal was based on Mr. Francois' public remarks at the June 26, 2018 Planning
Commission hearing, and therefore the December 3 closed session description satisfied Brown Act
closed session description requirements in accordance with Section 54956.9(e)(4); and
WHEREAS, the January 22 correspondence from the City attorney indicated that the City
would cure or correct Brown Act violations alleged by Safeway by: indicating in the agenda
description for the January 28 cure and correct hearing that one of the resolutions offered for City
Council consideration and possible adoption would order the preparation of an EIR and stay the
Planning Commission's SPAR approval; including as exhibits to an updated version of the
resolution revised on December 3 to be offered to the Council for action on January 28 and
distributed as part of the agenda the September 17 email from Project supporters and the December
3 Illingworth and Rodkin memo; and that a closed session agenda item will be included on the
January 28 City Council agenda that will disclose the fact that the closed session is being held
based on remarks of Mr. Francois representing Safeway at the June 26 Planning Commission
hearing and the January 2 cure and correct demand Mr. Francois submitted to the City; and
WHEREAS, on _January 17, 2019 the City published notice in the Petaluma Argus
Courier of a January 28, 2019 public hearing to cure or correct alleged violations of the Brown
Act at the December 3, 2018 hearing on the Appeal and mailed notice of the January 28 hearing
to all property owners and occupants within 1,000 feet of the Property in accordance with the
requirements of the City's IZO and City Council Resolution No. 2018-107, and to all members on
the interested parties list for the Project; and
WHEREAS, at the noticed public hearing on January 28, 2018, at which time all
interested parties had the opportunity to be heard, the City Council considered the Appeal and the
information submitted by City staff, the Applicant, the Appellant, interested parties and members
of the public concerning the Project and the Appeal at both the December 3, 2018 and January 28,
2019 public hearings on 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:
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. Resolution No. 2018-180 adopted by the City Council on December 3, 2018, is hereby
rescinded in its entirety and is longer in effect.
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ATTACHMENT 1
3. On January 28, 2019 the City Council fully considered all evidence presented before and at
the duly noticed public hearings on December 3, 2018 and on January 28, 2019 regarding
Appeal of the Planning Commission approval of a Mitigated Declaration pursuant to
Resolution No. 2018-21A and Site Plan and Architectural Review pursuant to Resolution
No. 2018-21B for the Safeway Fuel Station Project 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.
4. 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.
5. 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
predictions 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.
6. Illingworth and Rodkin, in response; to the December 3, 2018 submittal from 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
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ATTACHMENT 1
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.
7. The City Council hereby finds 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.
8, The City Council is also guided by the principles that residents' personal observations of
traffic conditions where they live and commute, such as those noted by commenters
concerning traffic volumes and speeds, and conflicts with pedestrians, 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 between expert opinion and 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.
9. 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.
10. 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.
11. This resolution shall take immediate effect upon its adoption.
ATTACHMENT 1
12. Should any portion of this resolution be held to be invalid by a court of competent
jurisdiction, the remaining portions of this resolution shall be unaffected and remain in full
force and effect. The City Council hereby declares that it would have adopted this resolution
notwithstanding some portions being held invalid, and that such invalid portions of this
resolution are severable.
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RESOLUTION OF THE CITY OF PETALUMA CITY COUNCIL
RESCINDING AND REPLACING RESOLUTION NO. 2018-180 ADOPTED
DECEMBER 3, 2018, DENYING THE APPEAL FILED BY JOANN MCEACHIN AND
AFFIRMING THE PLANNING COMMISSION'S APPROVAL OF
THE MITIGATED NEGATIVE DECLARATION BY RESOLUTION NO. 2018-21A AND
SITE PLAN AND ARCHITECUTRAL REVIEW BY RESOLUTION NO. 2018-21B
ON JUNE 26, 2018
FOR THE SAFEWAY FUEL CENTER PROJECT
LOCATED AT 335 SOUTH McDOWELL BOULEVARD
ASSESSOR'S PARCEL NO. 007-820-046
File No. PLAP 18-0001
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 500 foot 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
ran 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 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 June 26,
2018, at which time all interested parties had the opportunity to be heard; and,
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
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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
("SPAR") application, the Planning Commission adopted a Mitigated Negative Declaration
("MND") and Mitigation Monitoring and Reporting Program ("MMRP") prepared pursuant to
CEQA for the Project via Resolution 2018-21A; and
WHEREAS, on June 26, 2018 following its action under CEQA the Planning
Commission approved SPAR for the Safeway Fuel Center 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
Appellants and McDowell Elementary School, Little League Children and East Petaluma
Residents of the Planning Commission's adoption of Resolution 2018-21A approving an MND for
the Project and Resolution 2018-21B approving SPAR for the Project ("Appeal"); and
WHEREAS, the Appeal included 15 additional signatures from members of the public;
and
WHEREAS, the grounds for appeal given in the Appeal letter included: questioning the
community need for the Project; the proximity of the Project to a day care, school and Little League
ball park; increased traffic; project emissions and health impacts; and public awareness of the
Project; and
WHEREAS, on September 6, 2018 a public notice of an appeal hearing before the City
Council on September 27, 2018 was published in the Argus Courier and mailed to all property
owners and occupants within 1,000 feet of the Property and City Council Resolution No. 2018-
107, and to all members on the interested parties list for the Project; 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
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 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 MND 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 the Appellant, correspondence challenging both the Planning Commission's adoption of
Resolution No. 2018-21A approving the Project MND and the Commission's adoption of
Resolution No. 2018-21B approving the Project SPAR; and
WHEREAS, the Soluri September 14, 2018 correspondence asserted that the City Council
possesses the discretion to deny, and should deny, the Project SPAR based on: considerations of
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ATTACHMENT 2
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 MND
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 SPAR, 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
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
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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 6.13 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, ball 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; 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 Illingworth 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 5B 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
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
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ATTACHMENT
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
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
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ATTACHMENT
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 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 Appellant, Mr. Soluri's Legal
Assistant forwarded to the City responses to comments on the Initial Study/MND for the Project
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 HRA 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 Applicant, Illingworth and Rodkin
submitted a response to the December 3, 2018 submittal from Fox and Kapahi asserting: that the
Illingworth and Rodkin HRA 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
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
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ATTACHMENT
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 ProtectNiles v. City of Fremont (2018) 25 Cal.App.5th 1129, residents'
personal observations of traffic conditions where they live and commute may constitute substantial
evidence even if they contradict the conclusions of a traffic study, 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.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, the staff report dated December 3, 2018 responded to comments received
since publication of the September 17, 2018 staff report and together with findings and analysis
contained in the September 17, 2018 staff report addressed the grounds for the appeal and are
incorporated herein by reference; 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 the information
submitted by City staff, the Applicant, the Appellant, interested parties and members of the public
concerning the Project and the Appeal, all of which information is hereby incorporated into and
made a part of this resolution;
WHEREAS, following the public hearing held on the Appeal on December 3, 2018 and
City Council deliberations regarding the Record on Appeal, the City Council, by a unanimous vote
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and consistent with staff's oral recommendation at the hearing, adopted Resolution No. 2018-180
entitled:
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. 2018-21A,
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 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; and
WHEREAS, as the title indicates Resolution No. 2018-180 as adopted by the City Council
had the effect of upholding the Appeal as to the Project MND, ordering preparation of an EIR
regarding Project environmental impacts, and staying the SPAR approved by the Planning
Commission on June 26, 2018 pending certification of an EIR for the project and City Council
review of the Project SPAR; and
WHEREAS, on January 2, 2019, Matthew Francois representing the Applicant submitted
to the City correspondence alleging that at the December 3 appeal hearing, the City had violated
the Brown Act by; taking action on an item that was not on the published agenda in violation of
Government Code Section 54954.2, because none of the agendas that had been prepared
concerning Appeal indicated that the City Council would take action to require an EIR or stay the
Planning Commission's SPAR approval; by failing to make available to the public in accordance
with Government Code Section 54957.5 the revised resolution ordering preparation of an EIR that
staff prepared December 3, 2018, a September 17, 2018 email from project supporters and the
December 3 memo from Illingworth and Rodkin; and by failing to disclose the existing facts and
circumstances giving rise to significant exposure to litigation in accordance with Government
Code Sections 54954(c) and 54956.9 regarding the anticipated litigation items listed on the
September 10, 2018 and December 3, 2018 agendas; and
WHEREAS, by letter dated January 22, 2019, the City Attorney responded to Mr.
Francois' letter indicating that the City Council would take action to cure and correct the alleged
Brown Act violations at a notice public hearing on January 28, 2019, even though the City had not
violated the Brown Act at the December 3 hearing on the Appeal, and
WHEREAS, the January 22 correspondence indicated that the City did not violate the
Brown Act at the December 3 appeal hearing because: the agenda description for the December 3
Appeal hearing specified that the City Council would consider resolutions for Council action on
both Planning Commission approvals on appeal, the MND and SPAR, in accordance with Section
54954.2 requirements; the revised resolution upholding the appeal and ordering an EIR was shared
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with the applicant's and appellants' representatives as soon as possible at the December 3 hearing,
the same time it was first presented to the City Council, in accordance with Section 54957.5, and
the September 17 email from Project supporters and the Illingworth and Rodkin December 3 memo
were not distributed to the Council members less than 72 hours before the December 3 hearing,
and were therefore not covered by Section 54957.5; and because the December 3 closed session
on the Appeal was based on Mr. Francois' public remarks at the June 26, 2018 Planning
Commission hearing, and therefore the December 3 closed session description satisfied Brown Act
closed session description requirements in accordance with Section 54956.9(e)(4); and
WHEREAS, the January 22 correspondence from the City attorney indicated that the City
would cure or correct Brown Act violations alleged by Safeway by: indicating in the agenda
description for the January 28 cure and correct hearing that one of the resolutions offered for City
Council consideration and possible adoption would order the preparation of an EIR and stay the
Planning Commission's SPAR approval; including as exhibits to an updated version of the
resolution revised on December 3 to be offered to the Council for action on January 28 and
distributed as part of the agenda the September 17 email from Project supporters and the December
3 Illingworth and Rodkin memo; and that a closed session agenda item will be included on the
January 28 City Council agenda that will disclose the fact that the closed session is being held
based on remarks of Mr. Francois representing Safeway at the June 26 Planning Commission
hearing and the January 2 cure and correct demand Mr. Francois submitted to the City; and
WHEREAS, on January 17, 2019 the City published notice in the Petaluma Argus Courier
of a January 28, 2019 public hearing to cure or correct alleged violations of the Brown Act at the
December 3, 2018 hearing on the Appeal and mailed notice of the January 28 hearing to all
property owners and occupants within 1,000 feet of the Property, in accordance with the
requirements of the City's IZO and City Council Resolution No. 2018-107, and to all members on
the interested parties list for the Project; and
WHEREAS, at the noticed public hearing on January 28, 2018, at which time all
interested parties had the opportunity to be heard, the City Council considered the Appeal and the
information submitted by City staff, the Applicant, the Appellant, interested parties and members
of the public concerning the Project and the Appeal at both the December 3, 2018 and January 28,
2019 public hearings on 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
The above recitals are hereby declared to be true and correct and are incorporated into
this resolution as findings of the City Council.
2. Resolution no. 2018-180 adopted by the City Council on December 3, 2018, is hereby
rescinded in its entirety and is longer in effect.
On January 28, 2019 the City Council fully considered all evidence presented before
and at the duly noticed public hearings on December 3, 2018 and on January 28, 2019
regarding Appeal of the Planning Commission approval of a Mitigated Declaration
pursuant to Resolution No. 2018-21A and Site Plan and Architectural Review pursuant
to Resolution No. 2018-21B for the Safeway Fuel Station Project and comprising the
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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 denies 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, and as to the Site Plan and Architectural Review approval of the Petaluma
Planning Commission on June 26, 2018 by Resolution No. 2018-21B, in accordance
with the following findings for denial of the appeal, as supported by the record of
proceedings:
CSA
A. Based on its review of the entire record herein, including the Mitigated Negative
Declaration, the Initial Study, Response to Comments, all supporting, referenced
and incorporated documents and all comments received, the City Council finds that
there is no substantial evidence that the Project will have a significant effect on the
environment, that the Mitigated Negative Declaration reflects the City's
independent judgment and analysis, and that the Mitigated Negative Declaration,
Initial Study and supporting documents provide an adequate description of the
impacts of the Project and comply with CEQA, the State CEQA Guidelines and the
City of Petaluma Environmental Guidelines, as outlined in the record. The
comments received into the Project record regarding potentially significant impacts
resulting from the Project either address potential impacts already satisfactorily
analyzed in accordance with CEQA requirements as described in the staff report
accompanying this resolution and the Project record, and/or the comments received
constitute argument, speculation, unsubstantiated opinion or narrative, or evidence
that is erroneous or inaccurate, and thus do not constitute substantial evidence
supporting a fair argument that the Project may result in significant environmental
impacts.
General Plan
B. The proposed construction of the Safeway Fuel Station project at 335 South
McDowell Boulevard is, for the reasons discussed in the May 8, 2018 Planning
Commission staff report, consistent with the following Petaluma General Plan
policies: Policy 1-P-2 (Promote infill development), Policy 1-P-6 (mixed-use
development) 1-P-11 (Land use intensification at strategic locations), Policy 1-P-
14 (street trees), Policy 2-P-5 (Strengthen the visual and aesthetic character of
major arterials), Policy 4-P-10 (Electric Charging stations), Policy 5-P-42 (expand
bus transit), Policy 6-P-29 (Integrate Art), Policy 10-P-3 (Protect Public Health and
Welfare), and Policy 10-P-4 (Transport of Hazardous Materials),
C. The Project is consistent with the "Community Commercial" General Plan land use
designation because the project contributes to the variety of commercial services
provided to the larger the region from this area of Community Commercial
property.
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ATTACHMENT 2
Implementin Zoning oning Ordinance
D. The Project is consistent with all development standards of the C2 Zoning District
including, but not limited to, those pertaining to building height, setbacks and off-
street parking requirements.
E. All the required findings for Site Plan and Architectural Review approval found at
Implementing Zoning Ordinance §24.010 (G)(1) can be made, as follows:
i. The Project includes the use of quality materials and is in harmony with and in
proportion with the overall design through its use of single -story architecture
with building articulation that employs varying depths and balances solid and
transparent fagade materials in the form of stucco and concrete masonry unit
walls stucco, and glass windows with metal aluminum trim; the use of metal,
stone, and concrete finishes; added accent to the main entrance; metallic
awnings; and consistent detailing for the proposed canopy. Articulation is
applied on all building elevations appropriately.
ii. The Project's building form, materials and architectural style is appropriate for
the Project and compatible with the overall character of the area. The proposed
facades include varying depths and materials divided into low, mid, and upper
level strata to provide visual variety. Architectural detailing is carried through
to all structures. The area features similar, rectilinear, simplistic commercial
structures oriented to passing vehicle traffic on South McDowell Boulevard and
Maria Drive and pedestrian on-site.
iii. The proposed site design frames the interior of the lot and more clearly defines
the boundaries of the site than current development, particularly along the
southern property line adjacent to Maria Drive. Positioning the structure
approximately five -feet (5 ft.) from the property line at this location establishes
a pedestrian friendly building edge along the street. Further, the building is
designed with an entry to the kiosk from Maria Drive that orients the building
for customers walking on the sidewalk. The location of the canopy and the kiosk
are located at approximately the same depth as the adjacent building along
South McDowell Boulevard. This positioning enhances the streetscape because
it maintains consistent siting of structures on the east side of the South
McDowell Boulevard.
iv. The project identifies new building signage consisting of two new signs on the
convenience store and on the canopy. The project also includes a price sign
elevation. However, this signage is representative only and is not proposed as
part of the application. An application will be submitted in the future for signage
on the north and south elevations of the convenience store, on the east and west
edge of the fueling canopy, and for a monument signage on the site. Proposed
signs generally fit within the area of the canopy and the kiosk. Additionally,
signage is generally consistent with location, number and size requirements of
the sign code and sign program, although staff will ensure that any future
application for project specific signage will be consistent with the sign code and
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ATTACHMENT 2
sign program.
V. The project identifies new building signage consisting of two new signs on the
convenience store and on the canopy. The project also includes a price sign
elevation. However, this signage is representative only and is not proposed as
part of the application. An application will be submitted in the future for signage
on the north and south elevations of the convenience store, on the east and west
edge of the fueling canopy, and for a monument signage on the site.
vi. The project is harmonious with adjacent structures in terms of bulk, height, and
color. The architecture is, like adjacent buildings, simple in form and design.
Immediately north of the site is a bank and commercial retail store that is
approximately one -and -a -half- to two stories in height. This building is
comprised of rectilinear features with strong square cut elements. Similar bulky
square cut features that are simple in design and form are used in the canopy
over the fuel pumps and portions of the fayade of the kiosk. To the west of the
site, across South McDowell Boulevard are single story single family homes.
The convenience store bulls, at 697 square feet, is similar in size to the single
family homes, and the earth tone color scheme of the homes compliments the
beige and taupe color scheme of the project. Similar to other structures, the
single story nature, architectural expression and color scheme of the project
compliment the structure to the south because the structure to the south is a
single story building, with a rectilinear form, and earth tone color scheme. East
of the project is the Safeway grocery store. The color scheme of the project
matches the color scheme of the Safeway grocery store, with each being
comprised of beige and taupe tones. Similarly, the vertical bands that extend up
the face of the fuel canopy and the convenience store are also found on the
grocery store. Additionally, the proposed trash enclosure employs the same
materials (concrete masonry unit walls and standing seam metal roof, and metal
doors) color scheme, and resembles a similar square bulk as the proposed
convenience store and canopy and is therefore. consistent with other existing
structures in the immediate neighborhood of the project site. For these reasons
the project is harmonious with the bulk, height, and color schemes of other
structures in the immediate neighborhood.
vii. Proposed landscaping serves three functions: to screen structures on the lot and
soften views from Maria Drive and South McDowell Boulevard, and to provide
stormwater retention on-site. Denser landscaping is proposed along the west
and south property boundaries to increase screening, particularly with respect
to the queueing lane for the proposed trash enclosure. The project also includes
landscaping along Maria Drive, along the back of the proposed improved bus
turnout. This landscaping will provide a buffer between the bus turnout and the
parking lot for the shopping center. Further, the project preserves key street
trees at the corner of South McDowell Boulevard and Maria Drive, and the trees
along Maria Drive as well. The project would remove two street trees to
accommodate the improved transit facility but proposes two new 24 -inch box
red maples behind the bus stop.
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viii. Circulation patterns will not be substantially altered by the project. A new
accessible pedestrian path is proposed to connect the convenience store to the
existing sidewalk on Maria Drive, with bicycle parking positioned at a logical
location — at the terminus of the pathway at the building. Vehicle access follows
the predominant current pattern. New access is provided to the site from the
east. This area will allow for queuing of vehicles so as to not impede the drive
aisle on the adjacent property. The project also provides a new egress to the
north to facilitate internal circulation in the shopping center.
4. This resolution shall take immediate effect upon its adoption.
5. Should any portion of this resolution be held to be invalid by a court of competent
jurisdiction, the remaining portions of this resolution shall be unaffected and remain in
full force and effect. The City Council hereby declares that it would have adopted this
resolution notwithstanding some portions being held invalid, and that such invalid
portions of this resolution are severable.
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