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HomeMy WebLinkAboutStaff Report 5.A 01/28/2019 Attachment 22RUTAIN RUTAN & TUCKER, LLP December 2, 2018 VIA E-MAIL Honorable David Glass, Mayor and Members of the Petaluma City Council City of Petaluma 11 English Court Petaluma, CA 94952 ATTACHMENT 22 Matthew D. Francois Direct Dial: (650) 798-5669 E-mail: mfrancois@rutan.com Re: Safeway Fuel Center Project; December 3, 2018 City Council Agenda Item 5.13 Dear Mayor Glass and Members of the City Council: We write on behalf of our client, Safeway, Inc., regarding the proposed Safeway Fuel Center Project (the "Project") at 335 S. Mc Dowell Boulevard (the "Property") in the City of Petaluma (the "City"). The Project has been reviewed by the City for nearly six years and was the subject of numerous studies prepared by expert consultants as well as a detailed mitigated negative declaration ("MND") prepared by M -Group, the City's contract Planning Staff. After continuing its May 8, 2018 hearing to obtain more information regarding air quality and traffic, and to allow additional review by Petaluma City Schools (the "District"), the City's Planning Commission approved the Project on June 26, 2018. On July 9, 2018, an appeal of the Planning Commission's action was filed by JoAnn McEachin and others ("Appellants"). In connection with its consideration of the appeal, Safeway submitted letters dated September 6, 2018, September 11, 2018, September 14, 2018, September 17, 2018, October 10, 2018, November 14, 2018, and December 1, 2018 providing updates and voluntary supplemental information for the benefit of City Council, City Staff, and the public record. Today, we are writing to again provide voluntary supplemental information in response to Appellants' November 30, 2018 submittal from: (i) Phyllis Fox and Ray Kapahi claiming that the Project will result in significant health risk impacts, and (ii) Patrick Soluri asserting that the City can deny the Project's Site Plan and Architectural Review ("SPAR") application on broad health, safety, and welfare grounds.' As summarized below and as detailed in the attached supplemental response by Illingworth & Rodkin, the commenters are wrong both as a matter of fact and as a matter of law. 1. The Project will not result in significant health risk impacts. The supplemental analysis provided by Fox and Kapahi uses the same modeling assessment they previously provided, but now employs a hybrid meteorological data set, combining Petaluma wind data with Santa Rosa meteorological data. As explained in the December 2, 2018 response 1 Appellants' November 30, 2018 submittals respond to documents submitted by Safeway on September 5, 2018, September 17, 2018, and October 10, 2018. Yet Appellants' submittals were only received by Safeway on Friday, November 30, 2018 at 6:06 p.m. Rutan & Tucker, LLP I Five Palo Alto Square, 3000 EI Camino Real, Suite 200 22-1 Palo Alto, CA 94306-9814 1 650-320-1500 1 Fax 650-320-9905 2696/031700-0001 Orange County I Palo Alto I www.rutan.com 13143643.1 a12/02/18 RUTAN RUI- 6 T&KEF, LLP Honorable Members of the City Council December 2, 2018 Page 2 from James Reyff of Illingworth & Rodkin, attached hereto as Exhibit A, there is no sound scientific; meteorological, or regulatory basis for the data set Fox and Kapahi utilized. Mr. Reyff notes that "[b]y applying an artificial, misleading, and erroneous hybrid meteorological data set to their previous analysis, Fox and Kapahi have compounded the numerous key concerns that we and BAAQMD have previously identified." As with their prior submittal, the latest submittal from Fox and Kapahi claiming that the Project will result in significant impacts is based on argument, speculation, unsubstantiated opinion, clearly inaccurate and erroneous information, and evidence that is not credible. As such, the letter does NOT constitute substantial evidence of a fair argument that the Project may result in a significant environmental impact. 2. The City's discretion over the Project is limited to design issues. As detailed in previous submittals, the City has limited discretionary authority over the Project. (See, e.g., September 5, 2018 memo from our firm to Heather Hines, included in Attachment 8 to the Staff Report.) As subsequently noted in the September 17, 2018 memo prepared by our firm (also included in Attachment 8 to the Staff Report), Mr. Soluri misconstrues the applicable "considerations" at issue in the Project's SPAR application review process and misstates the legal standard of review applicable to the City's action on the Project's SPAR application. In his November 30, 2018 letter, Mr. Soluri continues to misrepresent the relevant "considerations" at issue in this SPAR proceeding by claiming that the City Council can deny the Project based on broad health, safety, and welfare concerns. Mr. Soluri first states that the "siting" consideration applicable to SPAR review is not limited to setbacks or related considerations. Mr. Soluri's claim in this regard is belied by the actual language of the City Code which calls for a review of "[t]he siting of the structure on the property, as compared to the siting of other structures in the immediate neighborhood." (Implementing Zoning Ordinance ["IZO"] § 24.010(G)(1)(c).) This language unambiguously indicates that the siting considerations relate to setbacks and related site planning considerations. This makes sense in light of the purpose of SPAR review, which is to "achieve a satisfactory quality of design" and "promote the orderly and harmonious development" of the City. (IZO § 24.010(A),(G).) The City is only authorized to consider compatibility of a project with its site, surrounding properties, and the community if the IZO does not identify specific criteria for a zoning -related decision. (IZO § 1.030(B).) However in Petaluma, the IZO does contain specific criteria for review of a SPAR application. (IZO § 24.010.G.) Thus, the City cannot lawfully consider other considerations including those cited by Mr. Soluri. (See, e.g., Friends of Davis v. City of Davis (2000) 83 Cal.AppAth 1004 [court rules that design review ordinance does not confer on a city the unrestrained power to decide who may and may not do business in the city.].) Even though all of the evidence in the record supports approval of the Project's SPAR application and none supports denial of it, Mr. Soluri claims that the City can nonetheless deny the Project based on a general provision that allows a reviewing body to "impose more stringent 2696/031700-0001 22-2 13143643.1 a12/02/18 RUTAN RUTAN 6 TUCKER, u.P Honorable Members of the City Council December 2, 2018 Page 3 requirements than set forth in [the IZO], as may be determined by the review authority to be necessary to promote appropriate land use and development, environmental resource protection, and the other purposes of [the IZO]." (IZO § 1.040(C).) First, the specific considerations applicable to SPAR applications prevail over any more general provision of the IZO. (See, e.g., Stockton Citizens for Sensible Planning v. City of Stockton (2012) 210 Cal.App.4th 1484, 1496.) Second, nothing in section 1.040(C) authorizes a review body to deny a project as Mr. Soluri claims; at most, it allows a review body to impose additional conditions and then only as needed to promote appropriate land use development or environmental resource protection. The Project currently has 65 conditions of approval imposed on it, far surpassing the number of conditions imposed on any other recent gas station project in Petaluma. We agree with Staff that construing section 1.040(C) as to reject a permitted use like the Project would "undermine the stability and reliability of the permitted land uses" specified in the City's Zoning Ordinance. (Staff Report, p. 14.) Finally, and fatally to Appellants' claims, all of the studies and analysis, including those provided by the City's professional Planning Staff and expert environmental consultants, confirm that the Project is an appropriate land use, does not require additional environmental mitigation, and conforms to the purposes of the IZO and the Commercial 2 zoning district in which it is located. Thank you for your consideration of Safeway's views on this matter. Representatives of Safeway, including the undersigned, will be in attendance at your December 3, 2018 hearing on the appeal. In the meantime, please do not hesitate to contact me with any questions regarding this correspondence. Very truly yours, RUTAN & TUCKER, LLP M hWFrra MDF:mtr cc: Heather Hines, Planning Manager, City of Petaluma Olivia Ervin, Principal Environmental Planner, City of Petaluma Adam Petersen, Senior Planner, City of Petaluma Eric Danly, City Attorney, City of Petaluma Claire Cooper, City Clerk, City of Petaluma Natalie Mattei, Senior Real Estate Manager, Safeway, Inc. Marls Friedman, President, Fulcrum Property 2696/031700-0001 22-3 13143643.1 a12/02/18 1 a T, N all 11] v -l-- ow 22-4 IL UNGWORTH& RODKIN,/NC. WII Acoustics • Air Quality fl 429 K Cotati Ave Cotati, California 94931 Tel: 707-794-0400 Fax: 707-794-0405 www.illingworthrodkin.com illro@illingworthrodkin.com MEM® Date: December 2, 2018 To: Natalie Mattei Senior Real Estate Manager Albertsons Companies 11555 Dublin Canyon Road Pleasanton, CA 94588 From: James A. Reyff Illingworth & Rodkin, Inc. 429 E. Cotati Ave Cotati, CA 94931 RE: Safeway Fuel Center CEQA document - Petaluma, CA SUBJECT: Safeway Fuel Center Health Risk Assessment - Response to Supplemental Comments made by Phyllis Fox and Ray Kapahi - Jn[i{f 13-205 This memo provides our response to comments regarding the Petaluma Safeway gas station project ("Project") made by Phyllis Fox and Ray Kapahi in a supplemental report dated November 30, 2018. Note that responses provided in our memo dated October 10, 2018 apply since the supplemental analysis continues to use erroneous diesel exhaust and evaporative fuel emissions, incorrect risk exposure parameters, and, as described below, improper meteorological conditions. The supplemental analysis provided by Fox and Kapahi uses the same modeling assessment previously provided, but employs a hybrid meteorological data set, combining Petaluma wind data for the years 1990-1994 with other meteorological data from Santa Rosa for the years 2013-2017 (i.e., stability and other dispersion parameters). The resulting data represent conditions that do not occur in nature (e.g., moderate to strong winds under stable atmospheric conditions or vice versa) and reflects an erroneous calculation of concentrations and portrayal of resulting health risk. In layman's terms, Fox and Kapahi created a "Frankenstein" meteorological data set that is not acceptable in practice and fails to provide an accurate assessment of the Project's health risk. There is no underlying sound scientific, meteorological, or regulatory basis for what was 22-5 Memo to Natalie Mattei December 2, 2018 — Page 2 conducted in creating the new hybrid meteorological data. The Petaluma wind data that the commenters relied upon is not appropriate or suitable for use with the AERMOD model. There is no correlation between the 1990-1994 Petaluma wind data and the other meteorological parameters in the 2013-2017 Santa Rosa meteorological data. Not only is the data substitution method that Fox and Kapahi employed "not the ideal," as they admit, it would not be accepted for use by any regulatory agency, including BAAQMD.1 In short, the hybrid meteorological data set relied on by commenters is useless for any sort of meaningful modeling analysis of the Project. Because the existing Petaluma wind data relied on by Fox/Kapahi is not appropriate for use with the AERMOD model, our firm contracted with Lakes Environmental Group to develop a custom meteorological data set for use with our AERMOD analysis. (Our AERMOD analysis is attached as Exhibit A to our October 10, 2018 memo.) Similar to our original analysis employing the ISCST3 model, the analysis employing the AERMOD model concludes that the Project meets all thresholds and will not result in any significant impacts related to health risk. BAAQMD reviewed and accepted our analysis. (November 8, 2018 letter from Damien Breen to Olivia Ervin.) Unlike its acceptance of our analysis, BAAQMD cited "several key concerns" with Fox/Kapahi's analysis. In addition to inappropriately relying on Santa Rosa wind data, BAAQMD pointed out that the benzene emission factor used by Fox/Kapahi was "substantially higher" than BAAQMD's standard benzene emission factor. It also noted that the residential exposure assumptions used in the Fox/Kapahi IJRA were "not consistent with the Air District's current HRA risk calculation procedures." In our October 10, 2018 submittal we concurred with BAAQMD's concerns and detailed other significant flaws with the Fox/Kapahi analysis. For instance, the commenters significantly overstate diesel emissions (by a factor of ten) by overestimating the amount of Project diesel sales, vehicle idling, and emission rates. They inappropriately applied protective modeling assumptions designed for use with a 30 -year exposure period to a 70 -year exposure period, thus including 40 years of additional exposure beyond what is recommended by BAAQMD and the California Air Resources Board. In addition, the commenters inappropriately model the Project as operating 24 hours per day, which is not the proposal. By applying an artificial, misleading, and erroneous hybrid meteorological data set to their previous analysis, Fox and Kapahi have compounded the numerous key concerns that we and BAAQMD have previously identified. The resulting analysis does not provide any meaningful or credible assessment of the Project health risk. Commenters continue to grossly overstate Project emissions, resulting in false claims of significant impacts. As such, their analysis should be given no weight. ' Specifically, the methodology conflicts the with the following regulatory guidance: (1) 40 CFR Part 51 Appendix W (Guideline on Air Quality Models), and (2) User's Guide for the AERMOD Meteorological Preprocessor (AERMET) EPA -454E-18-002, U.S. EPA, April 2018. 22-6