HomeMy WebLinkAboutStaff Report 5.A 01/28/2019 Attachment 23SOLURI
XMESERVE
a IavV corporation
December 3, 2018
SENT VIA EMAIL (hhines(c),m-LYroup.us)
Heather Hines, Planning Manager
Planning Division, City of Petaluma
11 English Street
Petaluma, California 94952
ATTACHMENT 23
tel: 916.455.7300 • fax: 916.244,7300
510 8th Street • Sacramento, CA 95814
RE: December 3, 2018 Regular Meeting of the City Council
Agenda Item # 5.13 (Safeway Fuel Center)
Dear Ms. Hines:
This letter responds to two letters submitted by Rutan & Tucker, the applicant's
law firm, dated December 1 and 2, 2018, concerning the proposed Safeway Fuel Station
Project ("Project"). Unfortunately, Rutan & Tucker again tries to mislead the Council
and the public regarding applicable law.
The Tahoe Vista Case
Rutan & Tucker rely on Tahoe Vista Concerned Citizens v. County of Placer
(2000) 81 Cal.AppAth 577 (Tahoe Vista) to argue that the instant appeal was not taken of
the Project's ISIMND. Tahoe Vista in no way supports this assertion. In fact, the
significant factual differences make Tahoe Vista irrelevant.
In Tahoe Vista, the relevant agency ordinance stated, "At the hearing, the appellate
body shall initiate a discussion limited to only those issues that are the specific subject of
the appeal, and, in addition, the specific grounds for the appeal." (Id.at 592 (emphasis
added).) Here, by contrast, IZO section 24.070, subdivision (G) states, "At hearing on
appeal, the reviewing authority may consider any issue involving the matter that is the
subject of the appeal, in addition to the specific grounds for the appeal." (Emphasis
added.)
Further, the Tahoe Vista court noted, "The County assigned different.file numbers
to each approval or reviewing required from the County for the project. The staff
designated the conditional use permit application as file number CUP -2274, and
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Heather Hines, Planning Manager
Planning Division, City of Petaluma
December 3, 2018
Page 2 of 3
designated the environmental review required for the use permit application as file ,
number EIAQ-3354." (Id. at 581.) Here, by contrast, a single file number, PLSR 13-
0012, was assigned to all approvals associated with the Project.
Finally, Tahoe Vista noted, "[Appellants] lodged their appeal by means of a form
furnished by the County. The form lists different types of approvals of applications
which could be appealed, including applications for environmental review, and asks the
appellant to check all those that apply." The City's appeal form did not require, or even
provide, this level of detail to distinguish the various actions associated with the Project.
In short, contrary to Rutan & Tucker's inexcusably false and misleading analysis,
Tahoe Vista is irrelevant here. All Project approvals are properly within the scope of the
Council's de novo review.
The Friends of Davis Case
Rutan & Tucker suggests that Friends of Davis v. City of Davis (2000) 83
Cal.App.4th 1004 somehow overrules the City's broad authority to deny a gasoline
station at the proposed location under IZO section 1.040. Not so. The Friends of Davis
decision was expressly limited to the identity of a proposed tenant (i.e. Borders Books
versus another retailer), and not the underlying use: "The City properly concluded that
its design review ordinance does not encompass tenant approval." (Id. at 1014.) Thus,
Friends of Davis stands for the common sense proposition that a design review ordinance
cannot be used to allow certain businesses over others (i.e. exclude Safeway gas but
allow Raley's). Friends of Davis does not address whether a local agency may, as here,
deny a requested site plan and design permit because the siting of the underlying land
use, in relation to the balance of the neighborhood, is inconsistent with the public health
and welfare.
Very truly yours,
SOLURI MESERVE
A Law Corporation
By r ,
Patrick M. Soluri
PS/mre
cc: Olivia Ervin, Environmental Planner, Planning Division (oervin@m-group.us)
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Heather Hines, Planning Manager
Planning Division, City of Petaluma
December 3, 2018
Page 3 of 3
Mayor David Glass (mayordavidglass@gmail.com)
Vice Mayor Mike Healy (mthealy@sbcglobal.net)
Chris Albertson, Council Member (councilman.albertson@gmail.com)
Teresa Barrett, Council Member (teresa4petaluma@comcast.net)
Gabe Kearney, Council Member (councilmemberkearney@me.com)
Dave King, Council Member (davekingpcc@gmail.com)
Kathy Miller, Council Member(kathleencmilleroffice@gmail.com)
Claire Cooper, City Clerk (ccooper@ci.petaluma.ca.us)
Eric W. Danly, City Attorney (attorney@ci.petaluma.ca.us)
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