HomeMy WebLinkAboutStaff Report 5.A 01/28/2019 Attachment 06-13RUTAN
RUTAN & TUCKER, LLP
September 6, 2018
VIA EMAIL AND FEDERAL EXPRESS
Heather Hines
Planning Manager
City of Petaluma
I1 English Court
Petaluma, CA 94952
Re: Safeway Fuel Center Project
Dear Ms. Hines:
ATTACHMENT 13
Matthew D. Francois
Direct Dial: (650) 798-5669
E-mail: mfrancois@rutan.com
We write on behalf of our client, Safeway, Inc., regarding the proposed Safeway Fuel
Center Project (the "Project") at 335 S. McDowell Boulevard (the "Property") in the City of
Petaluma (the "City"). The Project has been reviewed by the City for 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 Planning Commission
approved the Project on June 26, 2018. On July 9, 2018, an appeal of the Planning Commission's
action was filed by JoAnn McEachin and others. The appeal is scheduled for consideration by the
City Council at its September 17, 2018 hearing.
In connection with its consideration of the appeal, we are voluntarily providing updates
and supplemental information for the benefit of the City Council, City Staff, and the public record.
The updates and supplemental information relate to: (1) the health risk assessment ("HRA")
prepared for the Project; (2) the community outreach conducted by Safeway concerning the
Project; (3) an analysis of the City's discretionary review authority over the Project; (4) an analysis
of the Project's consistency with the City's General Plan; and (5) a summary of the City's approval
of other gas station projects.
Summaries of the updates and supplemental information are provided below; more detailed
responses are provided in the enclosed attachments.
1. Letter from Moira Sullivan to City Council dated August 14, 2018.
In an August 14, 2018 letter to the City Council, Moira Sullivan opines on gas stations, her
opinions on the highest and best use of the Property, and questions the health risks of the Project.
Although Ms. Sullivan advises she works as a toxicologist for the State of California, her opinions
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RUTAN 6 TUC -R, LLP
Heather Hines
September 6, 2018
Page 2
are submitted on her own behalf and not on behalf of the State. As explained in the September 4,
2018 memorandum by Illingworth & Rodkin (attached hereto as Exhibit A), a health risk
assessment ("HRA") was prepared for the Project. Employing conservative assumptions and
accepted methodologies per federal, state, and local guidelines, the HRA concludes that the project
will result in less than significant impacts with respect to community risk for all categories of
sensitive receptors.
2. Summary of community outreach efforts made by Safeway concerning the
Project.
Safeway has utilized various methods for creating community awareness and citizens have
been offered multiple opportunities for input during the City's six-year review process. A
summary of those methods and opportunities is provided in the document prepared by Safeway
attached hereto as Exhibit B. We will provide an update again prior to the hearing.
3. The scope of the City's discretionary review authority over the Project.
As explained in the September 5, 2018 memorandum prepared by our firm, attached hereto
as Exhibit C, the City has limited discretionary review authority over the Project. As a permitted
use, the only discretionary approval needed for the Project is Site Plan and Architectural Review.
The scope of the City's discretion is accordingly limited to aesthetic and design issues.
4. The Project's consistency with the City's General Plan.
The Project is consistent with the site's Community Commercial land use designation as
well as numerous policies contained in the City's General Plan. An analysis of the Project's
consistency with the General Plan is included in the September 5, 2018 memorandum prepared by
our firm, attached hereto as Exhibit D.
S. The City's approval of other gas stations.
The City has recently approved planning or building permits for other gas stations ("Other
Gas Stations"). These include City Permit File Nos. BLDG -17-1089 (Chevron -1440
E. Washington); BLDG -18-0641 (Chevron -4999 N. Petaluma Boulevard); BLDG -18-0215
(Valero -910 Baywood); PLMA-18-0001 (Valero -532 E. Washington); and PLSR-15-0013
(Unocal 76- 4998 N. Petaluma Boulevard, We hereby incorporate by reference into the record of
proceedings for the Project, the record of proceedings for the Other Gas Stations, including all
permits, correspondence, applications, drawings, fee summaries, notices, staff reports, studies,
environmental documents, transcripts, recordings, and minutes of any public hearing.
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RUTAN
RUT- & TUCKER, LLP
Heather Hines
September 6, 2018
Page 3
Thank you very much for your assistance on this matter. Please do not hesitate to contact
me with any questions regarding the enclosed information.
Very truly yours,
RUTAN & TUCKER, LLP
r�
Matthew D. Francois
MDF:mtr
cc: John Brown, City Manager, City of Petaluma
Natalie Maffei, Senior Real Estate Manager, Safeway Inc.
Mark Friedman, President, Fulcrum Property
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® INGWORI H& RODK,N, /NMa
11111 Acoustics • Air Quality 11
I Willowbrook Court, Suite 120
Petaluma, California 94954
Tel: 707-794-0400 Fax: 707-794-0405
www. illingworthrodkin. com illro@illingworthrodkin. com
Date: September 4, 2018
To: Natalie Mattei
Senior Real Estate Manager
Albertsons Companies
11555 Dublin Canyon Road
Pleasanton, CA 94588
From: James A. Reyff
Illingworth & Rodkin, Inc.
1 Willowbrook Court, Suite 120
Petaluma, CA 94954
RE: Safeway Fuel Center CEQA document - Petaluma, CA
SUBJECT: Safeway Fuel Center Health Risk Assessment, Response to Comments made
by Moira Sullivan - h)b#7 )-'?O
This memo addresses comments made by Moira Sullivan, M.S. in a letter dated August 14, 2018
to the Petaluma City Council regarding health risk effects from the planned Safeway fuel center
project. The commenter references general studies in regard to the toxicology of benzene and
other vehicular -related toxic air contaminants (TAC). Guidance provided by the U.S. EPA
regarding siting of schools is also cited in this letter. The commenter claims that he City of
Petaluma and Safeway have not considered the health risks of the project. As explained below,
these concerns were addressed.
Benzene and other TACs emitted by motor vehicles and the fueling of these vehicles is a known
concern. This is addressed in guidance from both the U.S. Environmental Protection Agency (U.S.
EPA) (as pointed out by the commenter) and the California Air Resources Board (CARB) that
recommend that fuel stations near sensitive receptors be studied for their potential adverse health
impacts. For this reason, a health risk assessment (HRA) of the project was prepared. Based on
the comments provided by Ms. Sullivan, we have to presume that she has not read the study. We
point the commenter to this study: Safeway Fuel Center Health Risk Assessment, Petaluma, CA —
prepared January 8, 2014, revised September 19, 2017 (Illingworth & Rodkin, Inc.). Responses
to comments regarding the HRA were also provided to the City of Petaluma in memoranda
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Memo to Natalie Mattei
September 4, 2018 —Page 2
prepared by Illingworth & Rodkin dated May 8, 2018 and June 6, 2018.
Benzene is the primary TAC associated with the operation of gasoline fuel stations. Regulators
and health specialists in California and the Bay Area are quite aware of the toxicity of benzene.
The City and Safeway are aware also and as a result, Illingworth & Rodkin, Inc. prepared the HRA
for the project at the direction of City Staff and per the guidelines issued by U.S. EPA, CARB, and
the Bay Area Air Quality Management District (BAAQMD). That risk assessment addressed all
aspects of the project that could lead to emissions of TACs and conducted dispersion modeling to
predict exposures of not only school children but nearby residences (infants, children and adults).
The study also evaluated the combined effects of construction emissions, evaporative emissions
from the operation of the fuel station, emissions from vehicles that travel to and from the station
and potentially idle at the station, and emissions from fueling trucks that would service the station.
Contrary to a higher figure cited in Ms. Sullivan's letter, the annual throughput of gasoline
associated with the project will not exceed 8.5 million gallons per year, and this figure was used
in the analysis of project health risk. The study was quite extensive and addressed exposures to
daycare children, elementary school children, and residences. The dispersion modeling utilized
meteorological data collected in Petaluma and provided by BAAQMD.
Cancer risk computations were made using the predicted exposures following guidance developed
by California's Office of Environmental Health Hazards Assessment (OEHHA). The HRA
predicted exposures for various child and residential receptors near the project. The cancer risk
computations considered the toxicity of the various TACs as well as the increased sensitivity of
infants and children to cancer-causing TACs.
The HRA that was originally prepared in 2014 was updated in 2017 to reflect the new OEH1-1A
guidance that is more protective of infants and children. For instance, the HRA considered TACs
(including benzene and diesel particulate matter) to have a potency that is 10 times greater for
infants and 3 times greater for children than adults. In addition, the HRA considered the higher
breathing rates and maximum exposure times that these more sensitive receptors could have.
These factors are based on the latest OEIM guidance that was issued in 2015 and is considered
the state-of-the-art information for conducting health risk assessments in California. l The HRA
considered that the maximum exposed sensitive receptors would be exposed to diesel particulate
matter from construction and then the operational TACs from the project.
Employing conservative assumptions and accepted methodologies, the HRA concludes that the
project will result in a less than significant impact with respect to community risk for all categories
of sensitive receptors.
It must also, be borne in mind that California likely has the most extensive control requirements
for gasoline emissions in the world. These requirements are developed and enforced by CARE
and BAAQMD permitting requirements. The evaporative emissions from volatile organic
compounds from gasoline, which include benzene, have been greatly reduced over the past two
decades.
1 OEIffIA. 2015. Air Toxics Hot Spots Program Risk, Assessment Guidelines - Guidance Manual for
Preparation of Health Risk Assessments. February.
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Memo to Natalie Mattei
September 4, 2018 —Page 3
CARB has adopted a number of significant advancements as part of the Enhanced Vapor Recovery
(EVR) program to reduce these emissions. Phase I EVR, which addresses transfer of bulk fuel
from transfer trucks, requires more durable and leak -tight components, along with an increased
collection efficiency of vapors to be 98 percent. Phase II EVR, which addresses fueling of vehicles
that purchase gasoline, includes three major advancements: (1) dispensing nozzles with less
spillage and required compatibility with onboard refueling vapor recovery (ORVR) vehicles, (2) a
processor to control the static pressure of the ullage, or vapor space, in the underground storage
tank, and (3) an in -station diagnostic system that provides warning alarms to alert the facility
operators of potential vapor recovery system malfunctions. Phase I EVR was fully implemented
in 2005. Phase 1I EVR was fully implemented between 2009 and 2011. Attachment 1 includes a
summary of the mandatory emission controls implemented at gas stations in California.
In addition, a majority of the vehicles on the road today in California have ORVR systems. These
systems were phased in beginning with 1998 model year passenger vehicles, and are now installed
on all passenger, light-duty, and medium -duty vehicles manufactured since the 2006 model year.
When an ORVR vehicle is fueled, almost all the gasoline vapor displaced from the fuel tank is
routed to a carbon canister in the vehicle fuel system. As a result of these achievements, emissions
of TACs (including benzene) from gasoline fuel stations are substantially reduced. These
technological achievements are reflected in the newer emission factors developed by CARB in
2013, which were used in the project HRA. In light of the extensive regulation of gasoline
emissions in California, the commenter's reliance on older studies from other countries (e.g.,
France and Spain) are not reflective of this project.
As a result of the improvements described above in addition to the reformulation of gasoline that
occurred in the late 1990s, emissions of benzene and other TACs from gasoline have decreased
substantially in the last 10 to 20 years. A report recently released by OEH14A in 2018,2 describes
the trend in exposure and health risk to TACs from gasoline (the press release for this study is
included as Attachment 2). In this report, emissions of benzene statewide are described as being
reduced by 70 percent since 1996 as reflected in ambient statewide benzene concentrations that
decreased at or greater than that rate. The report describes the primary source of benzene emissions
as from on -road mobile sources, where gasoline production and distribution make up a small
fraction of the overall emissions. Benzene concentrations in the air are primarily the result of
emissions from traffic. While the report addresses California as a whole, monitoring data in the
Bay Area support these conclusions.3
The commenter raises broad comments concerning health risks of fuel stations generally. The
commenter does not appear to have read the HRA for the project. Employing conservative
assumptions and accepted methodologies, the HRA concludes that the project will result in a less
than significant impact with respect to community risk for all categories of sensitive receptors.
2 OEHHA. 2018. Gasoline -Related Air Pollutants in California - Trends in Exposure and Health Risk, 1996
to 2014. January
3 Measured benzene levels in San Francisco are reported at this CARB website. Within the Bay Area,
benzene is only monitored in San Francisco. Note that levels in Petaluma are expected to be lower due to the less
intensive urban environment. https://www.arb.ca_gov/adam/toxiesfsitepaages/benzsfo.htm]. Accessed August 28,
2018.
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Memo to Natalie Maffei
September 4, 2018 —Page 4
Attachment 1: Vapor Recovery Summary
Attachment 2: Trend in Exposure and Health Risk to TACs from` Gasoline
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® Stantec Attachment 1
Vapor Recovery Summary
Phase I and Phase II vapor recovery were implemented in California 1987 in an effort to reduce fugitive VOC
emissions from fueling facilities. Most of the US states implemented the requirement in 1990. Before Vapor
recovery was introduced fugitive emissions from a fuel dispensing facility were 8.4 lbs. of hydrocarbons per
1,000 gallons dispensed.
Phase I vapor recovery is the reclaim of vapors from a storage tank back into the truck that is delivering fuel. As the
tank is filled, a second hose is connected to the tank. As the tanks fill, the vapors are pushed through the hose back
into the delivery truck.
Phase II vapor recovery occurs at the fuel dispenser. When a vehicle is adding fuel to the tank, the vapors are
pushed back through the nozzle and hose, through the dispenser and back into the fuel storage tank(s). Some
systems use a vacuum pump to pull the vapors from the vehicles tank and push them back into the fuel storage tank.
The recovery of vapors can pressurize the storage tank. When this happens, the pressure is released through the
tank vents. This releases fugitive emissions. A fuel dispensing facility with Standard Vapor Recovery and non-
ORVR vehicles produces 2.4 lbs. of hydrocarbons per 1,000 gallons dispensed.
FUGATIVE EMISSIONS
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® Stantec
ORVR is the acronym for Onboard Refueling Vapor Recovery. This process is handled inside the vehicle. Newer
vehicles are equipped with a canister system that collects fuel vapors as the vehicle is refueling. In 1998, the first
vehicles with ORVR were produced. Since 2006, all vehicles produced are required to have ORVR. A fuel
dispensing facility with Standard Vapor Recovery and ORVR vehicles produces 0.12 lbs. of hydrocarbons per
1,000 gallons dispensed.
IM
Enhanced Vapor Recovery occurs at the vent riser. EVR requires introducing a means to capture the fugitive
emissions from the vent riser. There are 3 approved methods available.
A Veeder Root carbon canister captures vapors in a carbon filter. The carbon is refreshed as the storage tank returns
to normal pressure and clean air is pulled through the carbon canister.
The Healy system is a large bladder tank that captures vapors in a bladder tank and returns them to the storage
tanks when the pressure returns to normal.
The Hirt system is a furnace that burns the vapors as they are released.
With all 3 systems, the vapors are now captured instead of being released through the vents.
2
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® Stantec
The combination of Enhanced Vapor Recovery and ORVR have significantly reduced fugitive emissions to nearly
zero percent. A fuel dispensing facility with Enhanced Vapor Recovery and ORVR vehicles produces 0.021
lbs, of hydrocarbons per 1,000 gallons dispensed.
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A wm'k E mmHmm mHm A Attachment 2
SCIENCE FOR A HEALTHY CALIFORNIA Press Release
California Environmental Protection Agency
Office of Environmental Health Hazard Assessment
Lauren Zeise, PhD, Director
For Immediate Release: Contact:
January 24, 2018 Sam Delson (916) 324-0955 (0)
(916) 764-0955 (C)
State's Cleaner Gasoline is Significantly Reducing Air Pollution,
OEHHA Study Shows
Gasoline -related pollutants associated with health concerns steadily declining
SACRAMENTO — A new analysis released today by state environmental health researchers
shows that California's cleaner gasoline and vehicle controls have significantly reduced
emissions of toxic pollutants and lowered cancer risks. Since 1996, estimated total emissions of
volatile air pollutants from gasoline -related sources declined nearly 70% statewide, including
significant declines for toxic chemicals such as benzene and toluene.
"These reductions in toxic gasoline -related chemicals demonstrate the substantial progress
California has made in reducing air pollution," said Dr. Lauren Zeise, Director of the Office of
Environmental Health Hazard Assessment (OEHHA). "When we reduce air pollution, important
public health benefits follow."
Using emissions data and ambient air-quality measurements from the California Air Resources
Board (CARB) and other sources, OEHHA researchers estimated average gasoline -related
exposures and associated health risks statewide and for five major air basins. OEHHA's
analysis covers the years 1996 to 2014. Significant findings include:
Estimated emissions of
total volatile air pollutants
from gasoline -related
sources declined nearly
70% statewide between
1996 and 2012. Pollutants
with the most substantial
declines include harmful
carcinogens like benzene
and reproductive toxicants
like toluene.
Emissions of gasoline -
related pollutants declined
even while gasoline sales
remained steady and
California's population
grew. By 2012, total
emissions from on -road
gasoline -powered vehicles
had decreased so
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=Gasoline -related on -road mobile source emissions
Gasoline -related off-road source emissions (e.g., recreational boats, lawn and garden equipment, off-road vehicles)
—All gasoline -related source emissions
Californla net taxable gasoline gallons
Data from CARS Emission Inventory and State Board of Equariiation. Mobile source emissions estimates not ovollcble for2009.
6-13-12
substantially that they were not much higher than the total emissions from off-road sources
like lawn and garden equipment, recreational boats, and off-road vehicles. (See chart)
• Cancer risks associated with average gasoline -related exposures to the most highly emitted
carcinogens declined by more than 80% between 1996 and 2014.
Since 1996, CARB has worked to adjust the state's gasoline formula in an effort to reduce
gasoline -related pollutants. To maximize those benefits, the Board has also promoted cleaner
vehicle technologies.
"California's fuel standards are clearly working, but clean gasoline is only part of the solution,"
said CARB Executive Officer Richard W. Corey. "Californians will see progressively cleaner
air—and savings in fuel costs—as the number of electric and hydrogen powered vehicles
increase."
Researchers recommend a future study focused specifically on exposures in high traffic areas,
especially in disadvantaged communities. Recently enacted legislation, AB 617 (C. Garcia,
Chapter 136, Statutes of 2017), aims to reduce air pollution exposure in California's most
burdened communities. CARB will consult with OEHHA on this new effort.
The analysis—Gasoline-Related Air Pollutants in California: Trends in Exposure and Health
Risk 1996 to 2014—can be found at http://oehha.ca.gov.
OEHHA is the primary state entity for the assessment of risks posed by chemical contaminants
in the environment. Its mission is to protect and enhance public health and the environment by
scientific evaluation of risks posed by hazardous substances.
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PUBLIC DISCUSSION AND OUTREACH ACTIVITIES FOR SAFEWAY GAS STATION
*As of September 6, 2018*
PUBLIC DISCUSSION AND REVIEW
• 6 Years of public discussion and debate
• 15+ Public Hearings that discussed, reviewed or affected the project
• Planning Commission approval on June 26, 2018
• 4 Resubmittals of Application until deemed complete
• Multiple On -Site Meetings with City Staff
• 60+ amendments and revisions incorporating feedback from City Staff and community
COMMUNITY OUTREACH AND MEDIA
• 2,400+ "YES" votes on supporter Petitions
• 502 Petaluma residents interviewed in June 2018 public opinion survey -55% support
for project (versus 35% opposed)
• 35+ Media Articles, Editorials, Op -Ed's and Letters to the Editor on the topic
• Two Open Houses with an additional two scheduled for September 8 and 11
• September 2018 Mailer providing project details and updates (English and Spanish)
• Multiple calls and meetings with representatives of Petaluma City Schools, North Bay
Children's Center, and 4Cs Petaluma Child Development Center
• Multiple calls and meetings with neighbors and community members
• Extensive In -Store communication with customers, including FAQ and on-site tabling
• Formal endorsement from the Petaluma Area Chamber of Commerce
• Meetings with Pedestrian & Bicycle Advisory Committee & Transit Advisory Committee
• Outreach via project website (English and Spanish) and Social Media
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rwq.iil.,]Fln
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R-UTAN
RUTAN & TUCKER, LLP
Rutan & Tucker, LLP
Five Palo Alto Square
3000 EI Camino Real, Suite 200
Palo Alto, CA 94306-9814
(650)320-1500 Fax(650)320-9905
www.rutan.com
PALO ALTO
ORANGE COUNTY
(714)641-5100
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
TO: Natalie Mattei
FROM: Matthew D. Francois
DATE: September 5, 2018
FILE NO.: 031700-0001
RE: Safeway Fuel Center: Scope of City's Discretionary Review Authority Over The
Project
The Property is zoned Commercial 2 ("C2"). Gas stations are permitted uses in the C2
zone. The only discretionary approval needed from the City for the Project is Site Plan and
Architectural Review ("SPAR"). The purpose of SPAR approval is to "secure compliance with
the Zoning Ordinance and to promote the orderly and harmonious development" of the City.
(Implementing Zoning Ordinance ("IZO") § 24.010.A.)
In taking action to approve a SPAR application, the reviewing body must consider the
following:
• Any controls to be exercised to achieve a satisfactory quality of 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. Satisfactory quality
design and harmony will involve among other things:
2696/031700-0001
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o The appropriate use of quality materials and harmony and proportion of the
overall design.
o The architectural style which should be appropriate for the project in
question, and compatible with the overall character of the neighborhood.
o The siting of the structure on the property, as compared to the siting of other
structures in the immediate neighborhood.
o The size, location, design, color, number, lighting, and materials of all signs
and outdoor advertising structures.
o The bulk, height, and color of the proposed structures as compared to the
bulk, height, and color of other structures in the immediate neighborhood.
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Natalie Mattei
September 5, 2018
Page 2
• Landscaping to approved City standards shall be required on the site and shall -be
in keeping with character or design of the site. Existing trees shall be preserved
wherever possible, and shall not be removed unless approved by the Planning
Commission.
Ingress, egress, internal circulation for bicycles and automobiles, off-street
automobiles and bicycle parking facilities and pedestrian ways shall be so designed
as to promote safety and convenience, and shall conform to approved City
standards.
It is recognized that good design character may require participation by a
recognized professional designer, such as an architect, landscape architect or other
practicing urban designer and the reviewing body shall have the authority to require
that an applicant hire such a professional, when deemed necessary to achieve good
design character.
(IZO § 24.010.G.)
The above "considerations" are in stark contrast to the "findings" required for a conditional
use permit. For a conditional use permit, the Planning Commission (or City Council on appeal)
can approve (or disapprove) such a permit only when it finds that the proposed structure or use
"will (or will not) conform to the requirements of the [IZO] and the Petaluma General Plan" and
that such use "will not (or will), under the circumstances of the case, constitute a nuisance or be
detrimental to the public welfare of the community." (IZO § 24.030.H.) As a principally permitted
use, the Project does not require a conditional use permit. It only requires design review (or SPAR)
approval from the City.
As correctly noted in the Staff Report for the May 8, 2018 Planning Commission hearing,
the Project achieves a satisfactory quality of design and harmony with its surroundings. It
incorporates an appropriate use of quality materials and reflects a harmonious and proportional
design. The architectural style is appropriate for the Project and compatible with the overall
character of the neighborhood. The siting of the structure is compatible with the siting of other
structures in the immediate neighborhood. Project signage shall be designed to conform with the
City's Sign Code and any applicable Sign Program. The bulls, height, and color of the structure is
compatible with the bulk, height, and color of other structures in the immediate vicinity.
Further, landscaping to approved City standards will be provided in keeping with the
character and design of the site. Circulation patterns will not be substantially altered by the Project
and will conform to approved City standards. In addition, the Project was appropriately designed
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Natalie Mattei
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Page 3
by a professional architect, with extensive review and input from City Staff, the Pedestrian and
Bicycle Advisory Committee, and the Transit Advisory Committee.
As detailed above, the City's discretion over the Project under the IZO is very narrow and
limited to design issues. To the extent, the City attempts to expand its limited design -review
discretion to preclude the Project, its efforts would be in contravention of the law. (See, e.g.,
Friends of Davis v. City of Davis (2000) 83 Cal.AppAth 1004 [Court of Appeal 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.].)
Further, nothing in the California Environmental Quality Act ("CEQA") expands the City's
discretionary review authority over the Project. To the contrary, the scope of environmental review
is constrained by the discretion an agency possesses over the project, which is extremely minimal
here. (Public Resources Code § 21004; CEQA Guidelines § 15040; Sierra Club v. County of
Sonoma (2017) 11 Cal.App.5th 11, 28.) In San Diego Navy Broadway Complex Coalition v. City
of San Diego (2010) 185 Cal.AppAth 924, the court rejected a CEQA challenge to a design review
approval for a large mixed-use development project for allegedly failing to consider the impacts
of global climate change. The court reasoned that since the agency had no authority to impose
mitigation for this issue, CEQA review "would be a meaningless exercise."'
In California Water Impact Network v. County of San Luis Obispo (2018) 25 Cal.App.5th
666, the court of appeal reaffirmed San Diego Navy Broadway Complex Coalition in a case that
did not involve subsequent review. In that case, an agency's issuance of well permits was
challenged for failure to comply with CEQA. The court upheld the agency's finding that the permit
were ministerial and thus exempt from CEQA. The court noted that even if the ordinance gave
the county discretion over water quality issues, that did not extend to water supply issues, which
were the subject of challenge in that case.
Notwithstanding the above case law, City Staff claimed that CEQA review extends to all
environmental resource categories reasoning that CEQA applies to the whole of an action. (Staff
Report for June 26, 2018 Planning Commission hearing, pp. 4-5.) The fact that CEQA requires
an analysis of the whole of an action does not mean that CEQA somehow expands an agency's
discretionary review authority. It does not.
In addition, it is well settled.that "[e]conomic or social effects of a project shall not be
treated as significant effects on the environment." (CEQA Guidelines § 15131.) Specifically,
CEQA does not extend to social or economic issues, such as quality of life matters. (CEQA
I Although this case arose in the context of supplemental environmental review, "the court based
its holding on generally applicable CEQA principles and did not limit it to the supplemental EIR
context, so this holding may apply more broadly to EIRs generally." (Kostka & Zischlce, Practice
Under the California Environmental Quality Act § 13.22.)
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Guidelines § 15131; Preserve Poway v. City of Poway (2016) 245 Cal.AppAth 460; City of
Pasadena v. State of California (1993) 14 Cal.AppAth 810; Cathay Mortuary, Inc. v. San
Francisco Planning Com. (1989) 207 Cal.App.3d 275; Citizen Action to Serve All Students v.
Thornley (1990) 222 Cal.App.3d 748.) As noted by the Califoinia Supreme Court, CEQA "must
not be subverted into an instrument for the oppression and delay of social, economic, or
recreational development or advancement." (Citizens of Goleta Valley v. Board of Supervisors
(1990) 52 Cal.3d 553, 576.)
Even though the scope of environmental review could legitimately be confined to aesthetic
issues since SPAR is the only needed discretionary entitlement, all applicable environmental
resource categories were studied in the Mitigated Negative Declaration ("MND") and associated
reports prepared by expert consultants. The MND concludes that the Project's potentially
significant impacts will be reduced to a less than significant level through the imposition of
mitigation measures. The MND's conclusions are fully supported by substantial evidence in the
record and must be upheld.
In sum, the City has limited discretion over the Project. The scope of discretion relates to
aesthetic and design issues. To the extent the City attempts to employ this limited discretion to
preclude a use that it or some of its residents or outside parties do not want, it would be acting in
contravention of the law.
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RUTAN & TUCKER, LLP
Rutan & Tucker, LLP
Five Palo Alto Square
3000 EI Camino Real, Suite 200
Palo Alto, CA 94306-9814
(650)320-1500 Fax(650)320-9905
www.rutan.com
PALO ALTO
ORANGE COUNTY
(714)641-5100
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
rLlffnorffl[�A ��J 13
TO: Natalie Maffei
FROM: Matthew Francois and Hannah Goodwin
DATE: September 5, 2018
FILE NO.: 031700-0001
RE: Safeway Fuel Center Project: Consistency with Petaluma General Plan
Safeway, Inc. has proposed the Safeway Fuel Center Project ("Project") at 335
S. McDowell Boulevard. (the "Property") in the City of Petaluma ("City"). This memo
summarizes the Project's consistency with the City's General Plan 2025 (the "General Plan" or
"GP")
The City's General Plan "reflects a commitment on the part of the City Council and their
appointed representatives and staff to carry out the Plan" and "[e]stablishes a basis for judging
whether specific development proposals and public projects are in harmony with Plan policies and
standards." (GP § i.2.) As set forth below, the Project is consistent with the City's General Plan.1
1. Land Use, Growth Management, and the Built Environment
Community Commercial (Land Use Designation): "This category includes shopping center sand
commercial districts, including regionally -oriented centers."
The Property is designated Community Commercial by the General Plan. This category
includes shopping centers, commercial districts, and regionally -oriented centers. As a commercial
use in an existing shopping center, the Project is consistent with the Property's land use
designation.
GP Policy 1-P-6: "Encourage mixed-use development, which include opportunities for increased
transit access."
The Project's consistency with Policy 1-P-6 is discussed in Section 4 below.
GP Policy 1-P-11: "Allow land use intensification at strategic locations along the arterial corridors
leading to Downtown and Central Petaluma, including aging commercial and industrial sites."
1 In its May 8, 2018 Staff Report for the Project, the City's professional Planning Staff
likewise found the Project to be consistent with the City's General Plan.
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The Project will replace an existing, dated commercial building in the Washington Square
Shopping Center, allowing for more convenient access to daily needs and cross -shopping. The
Project site is well connected to the rest of Petaluma as it is located along a major arterial with
nearby connectivity to Highway 101. Moreover, the Project will provide improvements to enhance
the Eastside Transit Center, thereby improving public transit conditions.
GP Policy 1-P-14: "Require provision of street trees, landscaping, parking and access features to
help integrate land uses and achieve an effective transition between uses of disparate intensities."
The Project's consistency with Policy 1-P-14 is discussed in Section 2 below.
In sum, the Project is consistent with the Property's land use designation as well as
pertinent General Plan policies regarding land use.
2. Community Design, Character, and Green Building
GP Policy 2-P-5: "Strengthen the visual and aesthetic character of major arterial corridors,"
through the use of, among others, "[s]idewalk improvements including trees, lighting fixtures,
planters, curbs, shading devices, public and commercial -related seating, and paving materials."
Consistent with Policies 1-P-14 and 2-P-5, the Project will incorporate numerous sidewalk
improvements and promote the community aesthetic. The Project is architecturally compatible
with the surrounding neighborhood, and will incorporate an updated building design and neutral
colored materials. The Project will more than double the existing landscape on-site and will
include new street trees and evergreen hedges to screen the facility, in addition to flowering and
low water -use plants. Mitigation Measure AES -1 will further the Project's aesthetic value by
providing for sufficient screening by placement of grasses, shrubs, and other groundcover species,
in addition to a dense landscaping screen to eliminate glare from headlights. The Project's
landscaping improvements and improved and compatible design will strengthen the visual and
aesthetic character of major arterial corridors, in compliance with the General Plan.
In sum, the Project is consistent with General Plan policies regarding aesthetics and
community design.
3. The Natural Environment
GP Goal 4-G-4: "Reduce reliance on non-renewable energy sources in existing and new
development."
GP Policy 4-P-10: "Require electric vehicle charging and alternative fuel facilities at all new and
remodeled gas stations."
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In accordance with Goal 4-G-4 and Policy 4-P-10, the Project will include one (1) electric -
vehicle charging station.
GP Policy 4-P-12: "Prohibit new drive-thru food and service facilities with the exception of vehicle
serving businesses.... Discretionary approvals for such facilities shall include provisions which
decrease or eliminate idling vehicles, to the extent feasible and practical."
While the Project is exempt from this provision as a vehicle -serving business, Policy
4-P-12 is nonetheless incorporated into the Project's conditions and mitigation measures.
Condition 17 requires that signs prohibiting vehicle idling be installed as indicated on the proposed
Project plans. Mitigation Measure TRANS -1 further provides for the dedication of employees to
serve as fuel ambassadors during peals hours in order to facilitate efficient fueling and "maintain
constant egress/ingress" of vehicles. This measure will ensure that idling vehicles will be
minimized to the extent feasible and practical. Further, the Project's operational emissions,
including traffic generation, vehicle idling, and fuel vapor emissions, have been found to have a
"less -than significant impact with respect to emissions of air pollutants that could cause a violation
of an air quality standard or cumulatively contribute to existing violations of air quality standards."
(Air Pollutant and Greenhouse Gas Emissions Assessment, p. 9; see also Health Risk Assessment,
p. 14.)
GP Policy 4-P-16: Encourage inclusion in construction contracts of requirements and measures
"to reduce combustion emissions during construction and demolition phases."
Policy 4-P-16 has likewise been accounted for in the Project's mitigation measures.
Pursuant to Mitigation Measure AQ -1, air quality construction measures will be implemented,
including, without limitation, watering of all active construction areas, idling time restrictions for
construction vehicles, and restrictions on the use of diesel -powered equipment. In analyzing the
Project's construction emissions, the "[c]onstruction air pollutant emissions were predicted and
found to be well below the BAAQMD significance thresholds." (Air Pollutant and Greenhouse
Gas Emissions Assessment, p. 9.) The Project will employ best management practices with regard
to construction emissions in order to minimize its air quality impacts. (Id., p. 9.) As a result, the
Assessment concluded that "air pollutant and GHG emissions from construction activity are
considered less than significant." (Id., p. 6-9.) Actual emissions will be even less than those
studied due to Safeway's agreement to employ Tier 3 construction equipment.
GP Goal 4-G-3: "Improve air quality by reducing the generation of air pollutants from stationary
and mobile sources."
GP Policy 4-P-7: "Reduce motor vehicle related air pollution."
GP Policy 4-P-17: "[A]void potential health effects and citizen complaints that may be caused by
sources of odors, dust from agricultural uses, or toxic air contaminants ...."
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The Project includes numerous improvements to the bus transit system, as well as improved
pedestrian and bicyclist access, as discussed in Section 4 below. In accordance with Goal 4-G-3
and Policies 4-P-7 and 4-P-17, these improvements will have the effect of reducing reliance on
motor vehicles and promoting the use of alternative means of transportation. By improving public
transit and non -motor vehicle access to the Shopping Center and nearby school, the Project will
promote a reduction in motor vehicle use and improve air quality. Further, increasing local retail
options will discourage consumers from traveling by motor vehicle to other markets for affordable
fuel options. As noted above, measures have been incorporated into the Project to ensure that idling
vehicles will be minimized to the extent feasible and practical. Further, the health risk assessment
prepared for the Project concludes that it will result in less than significant impacts with respect to
community risk for all categories of sensitive receptors.
In sum, the Project is consistent with General Plan policies regarding the natural
environment, particularly the promotion of alternative fuel vehicles, reduction of idling vehicles,
reduction of construction emissions, and improvement of air quality.
4. Mobility
GP Policy 5-P-22: "Preserve and enhance pedestrian connectivity in existing neighborhoods and
require a well[ -]connected pedestrian network linking new and existing developments to adjacent
land uses."
GP Policy 5-P-23: "Require the provision of pedestrian site access for all new development."
GP Policy 5-P-32: "Promote bicycle and pedestrian safety" through, among others, the Safe Routes
to School program.
GP Policy 5-P-42: "Expand the bus transit system so that it is convenient and provides frequent,
regular service along major City corridors serving education, shopping, and employment
destinations, and SMART park-and-ride lots."
The Project will bring marked improvements to the bus transit system, in compliance with
Policies I -P-6 and 5-P-42. The Project will construct a new bus turn bay for Petaluma Transit's
Eastside Transit Center, one of the City's busiest bus stops, and will accommodate up to three (3)
buses lining up simultaneously during normally timed transfers. In addition to promoting frequent,
regular bus service, the Project will include improvements to the bus facilities such as a transit
kiosk, three benches, covered shelters, enhanced signage, and perimeter landscaping. In
compliance with the General Plan, such improvements will increase transit access to the
neighboring commercial center and promote the use of bus transit for nearby residents.
In accordance with Policies 5-P-23, 5-P-32, and 7-P-15 (discussed in Section 6 below), the
Project will improve sidewalks and promote pedestrian access to the neighboring commercial
districts and 4Cs Petaluma Child Development Center, North Bay Children's Center, and
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McDowell Elementary School. The Project will be positioned to establish a new, pedestrian path
connecting the structure to the existing sidewalk, and will establish a pedestrian -friendly building
edge along the street. The Project will also replace the existing sidewalks and curb ramps that are
broken or cracked, and new pedestrian -friendly infrastructure will be installed, including a
pedestrian ramp, crosswalk striping, and warning signage at proposed driveway entrances. These
measures will promote pedestrian access and safety, particularly as to the school -bound pedestrians
in the vicinity, in compliance with the Safe Routes to School Program.
Likewise, the Project will promote bicyclist safety and access in adherence with the above -
listed policies and objectives.
In sum, the Project is in compliance with applicable General Plan policies regarding
mobility.
5. Recreation, Music, Parks, and the Arts
GP Policy 6-P-29: "Integrate the arts into the planning process in the city and encourage the arts
as an integral part of development proposals and capital improvement projects."
In accordance with Policy 6-P-29, Safeway will pay the public art in7lieu fee at the time of
building permit issuance to contribute to public art projects for all nonresidential development in
the City. The Project thus is consistent with pertinent policies regarding the arts.
6. Community Facilities, Services, and Education
GP Policy 7-P-15: "Improve and expand safe pedestrian, bicycle, and transit access to all school
sites and campuses."
The Project's consistency with Policy 7-P-15 is discussed in Section 4 above. The Project
thus is consistent with pertinent policies regarding education and community services.
7. Economic Health & Sustainability
GP Guiding Principle No. 8: Foster and promote economic diversity and opportunities.
GP GuidingPple No. 9: Expand retail opportunities to meet residents' needs and promote the
city's fiscal health, while ensuring that new development keeps with Petaluma's character.
GP Policy 9-P-1: "Retain and attract `basic' economic activities that bring dollars into the local
economy by exporting products and services," including "serving unmet local demands for goods
[and] services," "generating revenue for the City," and "providing jobs for un- and under-
employed segments of the work force."
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GP Policy 9-P-3: "Provide an array of employment opportunities to existing and future residents
by assuring diversity in Petaluma's industry and enterprise mix."
GP Policy 9-P-8: "Pursue economic development that is consistent with and supportive of
Petaluma's quality of life."
GP Policy 9-P-10: "Encourage economic development that will enhance job opportunities for
existing City residents by providing incentives for proposals that... [p]rovide jobs that match the
skills (occupations) of unemployed or underemployed workers who live in Petaluma...."
GP Policy 9-P-13: "Expand and diversify Petaluma's retail base" and encourage expansion of
"local choice in types of retail enterprises."
GP Policy 9-P-16: "Strengthen existing retail concentrations", particularly those "serving
Petaluma's residential neighborhoods."
In accordance to the above -listed General Plan policies and principles, the Project promotes
the City's economic health and retail base. At present, the Project location is an underutilized
commercial/retail space which does not generate revenue or provide employment opportunities.
By contrast, the Project will generate a number of retail employment opportunities for the
community, particularly for un- and under -employed segments of the City's work force. In
addition to the primary sales of gas, the convenience store will sell fresh produce, pre-packaged
items, including non-alcoholic beverages and auto -related items. The Project will diversify
residents' choice in retail options and will keep dollars in the local economy by offering consumers
a convenient and affordable fuel option. As a community -serving commercial land use, the Project
will complement the surrounding commercial uses and strengthen the existing retail base at the
East Washington Square Shopping Center.
In sum, the Project will provide numerous retail and employment benefits to Petaluma and
is in compliance with the General Plan's economic policies.
8. Health and Safety
GP Policy 10-P-3: "Protect public health and welfare by eliminating or minimizing the effects of
existing noise problems, and by minimizing the increase of noise levels in the future."
In accordance with Policy 10-P-3, the Project will include mitigation measures to limit
construction and delivery hours and regulate the operation of noise -producing equipment. A site-
specific Noise Assessment analyzed noise levels generated by construction and operation of the
Project, and concluded a "less than significant impact" on noise levels. Noise from parking/fueling
operations, truck delivery, mechanical equipment, traffic, and on-site operations were all found to
be below or within the range of current noise levels and below the noise exposure limits allowed
by applicable zoning ordinances. (Environmental Noise Assessment, p. 17.) Further, Mitigation
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Measure NOI-1 will promote minimization of noise by imposing several conditions on
construction contracts, including, without limitation, limited hours of operation, intake/exhaust
mufflers on all combustion engine driven equipment, temporary noise barriers, and designation of
an individual to respond to any noise complaints.
GP Policy 10-P-4: "Minimize the risk to life and property from the production, use, storage, and
transportation of hazardous materials and waste by complying with all applicable State and local
regulations."
Safeway will satisfy Policy 10-P-4 by complying with all federal, state, and local
regulations pertaining to the use, storage, and transportation of fuel.
In sum, the Project is consistent with pertinent General Plan policies regarding health and
safety.
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