HomeMy WebLinkAboutStaff Report 5.A 03/04/2019 Attachments 03-04ATTACHMENT 3
Resolution No. 2019-015 N.C.S.
of the City of Petaluma, California
RESOLUTION OF THE CITY OF PETALUMA CITY COUNCIL
RESCINDINGAND 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
ARCHITECTURAL REVIEW PURSUANT TO RESOLUTION NO. 2018-2111
ADOPTED JUNE 26, 2018 FOR THE SAFE WAY 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
WIIERE,AS, 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
Resolution No. 2019-015 N.C.S.
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,
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 2018-21A 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 N.C.S., 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
Resolution No. 2019-015 N.C.S. 3 , ;
WHEREAS, by letter dated September 12, 2018, Chris Thomas, Chief Business Official
of Petaluma City Schools ("School District"), asserted that an Environmental Impact Report
("ETR") 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 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
Resolution No, 2019-015 N.C.S.
�,`%
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 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 63 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 .
Resolution No. 2019-015 N.C.S. �3 — 4
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 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
Resolution No. 2019-015 N.C.S.
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
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
Resolution No. 2019-015 N.C.S. , ti
WHEREAS, on December 3, 2018, on behalf of the Appellant Mr. Sol -Uri 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
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.5" 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
Resolution No. 2019-015 N.C.S.
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. Country of Colusa (2014) 229
Cal.App.4'h 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
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 N.C.S. entitled;
Resolution No, 2019-015 N.C.S.
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 ARCHITECTURAL 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 N.C.S. 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
Resolution No, 2019-015 N.C,S,
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.
Resolution No. 2019-015 N.C.S. r/ —. [
2, Resolution No. 2018-180 N.C,S. adopted by the City Council on December 3, 2018, is
hereby rescinded in its entirety and is longer in effect,
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
Resolution No, 2019-015 N.C,S, I
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 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
Resolution No. 2019-015 N.C.S,
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.
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.
Under the power and authority conferred upon this Council by the Charter of said City.
REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the App, to
Council of the City of Petaluma at a Regular meeting on the 281h day of January rm
2019, by the following vote:
City Attorney,
AYES: Mayor Barrett; Healy; King; Vice Mayor McDonnell
NOES; Fischer
ABSENT: None
ABSTAIN: Kearney; Miller f \
ATTEST; �1
4CiClerk Mayor
Resolution No, 2019-015 N.C,S.
LU�
Teresa Barrett
Mayor
D'L,ynda Fischer
Mike Healy
Gabe Kearney
Dave King
Kevin McDonnell
Kathy Miller
Councilnrembers
City Attorney's Office
I l English Street
Petahona, CA 949.12
Phone; 707.778.4362
Facsimile; 707.206.6040
citiy-111nci.netahnna. f as
ATTACHMENT 4
CITY OF PETALUMA
POST OFFICE BOX 61
PETALumA, CA 94953-0061
January 22, 2019
VIA U.S. MAIL AND EMAIL AT: MFraneoiskRutan cont
Matthew Francois
Rutan & Tucker, LLP
Five Palo Alto Square
3000E1 Camino Real, Suite 200
Palo Alto, CA 94306-9814
Re: Demand Dated January 2, 2019 to Cure or Correct Alleged Brown Act Violations
Dear Mr. Francois:
This is in response to the correspondence you sent to the City of Petaluma dated January 2, 2019
demanding that the City cure or correct alleged violations of the Brown Act related to the December 3
public hearing on the appeal of the approval actions of the Petaluma Planning Commission oil June 26,
2018 concerning a Mitigated Negative Declaration ("MND") pursuant to the California Environmental
Quality Act ("CEQA") and Site Plan and Architectural Review ("SPAR") regarding the application of
your client Safeway to build a fuel center project ("Project") located at 335 South McDowell Boulevard
in Petaluma. As you know, on June 26, 2018, following a public hearing on the Project MND and SPAR,
the Planning Commission, on a vote of 4 to 3, adopted Resolution no. 2018-21A approving the Project
MND, and Resolution no. 2018-21B approving SPAR for the project. JoAnn McEachin filed all appeal
("Appeal") of the Planning Commission approvals within 14 days in accordance with Section 24.070 of
the City's Implementing Zoning Ordinance ("IZO").
The purpose of this correspondence is to confirm in accordance with Section 54960.1(c)(3) of the Brown
Act that the City Council will conduct a noticed public hearing on January 28, 2019 to cure or correct
the alleged violations. The City Council will take the steps to cure or correct the alleged violations
described below in this letter even though the City believes no Brown Act violations occurred related to
the December 3 hearing on the Appeal. The reasons why the City believes no Brown Act violations
occurred at the December 3 Appeal hearing are also discussed below.
I. Safeway's Allegations
The January 2 correspondence alleges three Brown Act violations.
a. First, Safeway alleges that the City Council took 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
Matthew Francois
January 22, 2019
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 the December 3, 2018 memo from
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.
H. The City's Actions to Cure or Correct
Even though the City believes no Brown Act violations occurred related to the December 3 hearing on
the Appeal, as described further below, the City will take the following actions to cure or correct the
violations alleged in the January 2 demand.
a. The allegation of taldng action on an item not on an agenda
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
the Safeway appeal hearing indicated that the City Council would take action to require an EIR or stay
the Planning Commission's SPAR approval.' In response, the agenda description for the January 28,
2019 cure or 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.
b. The allegation of not making documents available
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, 2018 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.
c. The allegation of failing to disclose facts and circumstances creating litigation exposure
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 Safeway's
legal counsel at the June 26 Planning Commission hearing, Safeway legal counsel correspondence dated
December 1 and 2, 2018, and the January 2 cure and correct demand submitted to the City in accordance
with Section 54956.9(e)(3) and (4).
Matthew Francois
January 22, 2019
III. No Brown Act violations occurred related to the December 3 Appeal bearing
Staff has recommended and the City Council has directed conducting a January 28 hearing on the Appeal
to cure or correct the Brown Act violations alleged by Safeway in ]seeping 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 appeal hearing, in accordance with the following:
a. The agenda description for the December 3 Appeal satisfied the Brown Act
The Safeway January 2 Correspondence refers to agenda descriptions of the appeal hearing on the
Safeway project in City Council agendas preceding the December 3 agenda, including Council agenda
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. That is the regular meeting agenda which the City published and posted
to satisfy Section 54954.2 requirements. The December 3, 2018 agenda described the Safeway appeal
hearing 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 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 regarding an agenda item be
listed. 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 IZO, because in such hearings, the
City Council may take almost any action on the decision subject to appeal that is consistent with the IZO
SPARprovisions, 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, and 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.
Matthew Francois
January 22, 2019
Providing agenda descriptions that describe 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 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 hearing lasted for 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. Accordingly, 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. The City did not fail to make documents available in accordance with the Brown Act
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 ill accordance
with Section 15064, Subdivisions (e) 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 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, but 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.
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 all 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.
Matthew Francois
January 22, 2019
A copy of the redlined, revised resolution staff prepared December 3 was provided to counsel for
Safeway and Appellants promptly after they entered the Council chambers for the hearing. 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 demand, it appears the September 17 email from
Project proponents addressed in the demand 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. 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 notviolate 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. The City's closed session descriptions satisfied the Brown Act
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 at the
December 3 City Council meeting read as follows:
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 legal counsel for Safeway in the applicant
presentation before the Planning Commission at the hearing on June 26, 2018. Those remarks challenged
Matthew Francois
January 22, 2019
the City's decision-making authority regarding the MND and the SPAR entitlement sought. The remarks
on behalf of the applicant 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 Safeway's
assertions, because the required findings for SPAR approval tinder 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 order mitigations concerning functional
design considerations as well as aesthetic ones. (The resolutions prepared for approval of the MND and
SPAR both in fact included conditions mitigating Project impacts.) The remarks from legal counsel for
the applicant suggested that if the City's decision on the application or its basis conflicted with the
assertions regarding the City's legal authority, that Safeway would institute litigation against the City.
Correspondence submitted by Safeway legal counsel dated December 1 and 2 raised challenges to the
City's legal authority concerning the Project similar to those 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 under Section 54960.1 of the Brown Act is a prerequisite to bringing a lawsuit to invalidate
local agency actions allegedly taken in violation of the Brown Act. Because the December 3 closed
session was based on public remarks by Safeway's legal. counsel challenging the City's discretionary
authority concerning the Project 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).
d. The City's agenda notices substantially complied with the Brown Act and Safeway had
actual notice regarding the Appeal hearing
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 be void if the actions were taken in substantial compliance with
Sections 54954.2 and 54954.5. In accordance with the above, the City's agenda notice substantially
complied with the Brown Act agenda description requirements for open and closed sessions. Also, under
Section 54960.1(d)(5), actions allegedly in violation 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.
Notwithstanding Safeway's alleged Brown Act violations, Safeway clearly had actual notice regarding
the Appeal hearing, as is demonstrated by the attendance at the hearing of Safeway's legal counsel,
project manager, and project consultants. Therefore, the City's substantial compliance with Section
54954.2 and 54954.5 agenda description requirements, and Safeway's actual notice of the Appeal
hearing further support the City's compliance with the Brown Act and its public participation purposes
regarding the December 3 hearing on the Appeal.
e. The City's action to cure or correct is not evidence of a Brown Act violation
Subdivision (f) of Section 54960.1(e) of the Brown Act provides
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 or correct in response to Safeway's January 2 demand, notwithstanding that the City
Matthew Francois
January 22, 2019
maintains that no Brown Act violations occun•ed related to the December 3 hearing on the
Appeal, is not to be construed or admissible as evidence that the City violated the Brown Act.
IV. Conclusion
The City respeethilly submits this notice of its actions to cure or correct alleged violations of the
Brown Act in accordance with Government Code section 54960.1(c)(2) and the Safeway
demand dated January 2, 2019. Please let me know if you have any questions.
SiNerely,
Eric W. Danly
City Attorney
C: Mayor and City Council Members
Scott Brodhun, Interim City Manager
Heather Hines, Planning Manager
Patrick Soluri, Counsel for Appellant JoAnn McEachin