HomeMy WebLinkAboutStaff Report 5.A 03/04/2019 Attachments 10-15ATTACHMENT 10
Heather Hines
From: Crump, Katie <KCRUMP@ci.petaluma.ca.us>
Sent: Monday, February 4, 2019 2:40 PM
To: Heather Hines
Subject: FW: Vote No to Safeway gas station - late document
Attachments: Petaluma vs Santa Rosa 70 yr Cancer Risk Comparison.pdf
FYI
From: Pascoe, Samantha
Sent: Monday, February 04, 2019 2:36 PM
To: Crump, Katie <KCRUMP@ci.petaluma.ca.us>
Subject: FW: Vote No to Safeway gas station - late document
Samantha Pascoe, CMC
Deputy City Clerk
Main 707.778.4360 Direct 707.778.4575
www.cityofpetaluma.net
Hours: Mon — Thurs 8am to 5pm, Closed Fridays
From: JoAnn McEachin <ioannmceachin@gmaiI.com>
Sent: Monday, February 4, 2019 2:09 PM
To: Teresa Barrett <teresa4petaluma@comcast.net>; -- City Clerk <CityClerk@cLpetaluma.ca.us>
Cc: Danly, Eric <edanly@ci.petaluma.ca.us>
Subject: Vote No to Safeway gas station
---Warning: Use caution before clicking any attachments. THIS EMAIL IS FROM OUTSIDE OUR EMAIL SYSTEM. ---
Madam Mayor and City Council Members,
Please take a moment to review the two isopleths below, produced by Dr. Phyllis Fox and Ray Kapahi for their Response to the IS/MND. D'Lynda Fischer and
Kevin McDonnell may not have seen it yet.
In summer 2018, when No Gas Here sought the meteorological data that Safeway's experts used in the IS/MND and were refused, No Gas Here was forced
to use the only met data available at that time, which was that out of Santa Rosa. The isopleth on the left side of the page shows the projected number of
cancers per million that would be caused by the installation and operation of the Safeway gas station at the corner of S. McDowell and Maria Dr.
The wind patterns out of Santa Rosa blow differently from those in Petaluma, though. So later, when No Gas Here's experts were able to get meteorological
data from Petaluma (isopleth on the right side of the page), the number of cancers per million was shown to spread farther and wider, affecting even more
residents.
I urge you to keep in mind that all of these projected cancers, caused by the toxins from the Safeway gas station, are preventable. Countless residents have
said that we neither need nor want a gas station in this location.
If Safeway's ever-present threat of a lawsuit is a factor that you are considering while making your decision to require a full EIR or to reject the project
altogether, I ask you to also consider the lawsuits that are sure to come when neighborhood cancers are diagnosed.
And, if we Petaluma residents have to face a Safeway lawsuit, I think the judge would rule in our favor because you will only have done your duty to protect
the health of the community.
JoAnn McEachin
®,z
70 Year Cancer Risk — Santa Rosa Met Data
70 Year Cancer Risk — Petaluma Met Data
10 -Z?
,-.
ATTACHMENT 11
Heather Hines
From: Natalie Mattei <Natalie.Mattei@albertsons.com>
Sent: Monday, February 4, 2019 4:22 PM
To: teresa4petaluma@comcast.net; mthealy@sbcglobal.net; davekingpcc@gmail.com;
dlynda@fischerforcouncil.com; mcdonnell4council@gmail.com
Cc: Francois, Matthew (MFrancois@rutan.com); Danly, Eric; cityclerk@ci.petaluma.ca.us;
Heather Hines; Olivia Ervin; citymgr@ci.petaluma.ca.us; Natalie Mattei
Subject: Response to McEachin email: Vote No to Safeway gas station - late document
Attachments: 2018 1202 Letter to Petaluma City Council.PDF; Petaluma vs Santa Rosa 70 yr Cancer
Risk Comparison.pdf
Madam Mayor and City Council Members,
In response to Ms. McEachin's email below from today at 2:09 PM, please note that Appellant had previously submitted
this same commentary to the City on Friday, 11/30/18 at 4:08 PM.
Safeway's expert consultant, Illingworth & Rodkin, responded in full on Sunday, 12/2/18 at 4:05 PM (see attached,
Exhibit A). This subject matter is what we referred to in our 1/28/19 City Council presentation as the "Frankenstein"
approach.
Ms. McEachin states below "So later, when No Gas Here's experts were able to get meteorological data from Petaluma
(isopleth on the right side of the page)...." This statement is false. The data that Fox/Kapahi used in their 11/30/18 is not
valid data for Petaluma. It is composite data from Santa Rosa and Petaluma (combining portions of data from two
different cities and two different time periods, hence the "Frankenstein" reference) and that is not acceptable for use in
modeling.
Thank you,
Natalie
Natalie Mattel
Senior Real Estate Manager
Albertsons Companies
11555 Dublin Canyon Road
Pleasanton, CA 94588
(925) 226-5754 Office 1 (925) 413-4455 Mobile
natalie.mattei@safeway.com I Linkedln
^Albertsons-,
Wr t =- .�
www.aIbertsonscompaniesrealestate.com
From: Heather Hines <hhines@m-group.us>
Sent: Monday, February 04, 2019 3:06 PM
To: Natalie Mattei <Natalie.Mattei@albertsons.com>; Francois, Matthew (MFrancois@rutan.com)
<MFrancois@rutan.com>
Subject: EXTERNAL EMAIL: FW: Vote No to Safeway gas station - late document
Comment letter from the appellant.
Heather
From: Crump, Katie <KCRUMP@ci.petaluma.ca.us>
Sent: Monday, February 04, 2019 2:40 PM
To: Heather Hines <hhines@m-group.us>
Subject: FW: Vote No to Safeway gas station - late document
FYI
From: Pascoe, Samantha
Sent: Monday, February 04, 2019 2:36 PM
To: Crump, Katie <KCRUMP@ci.petaluma.ca.us>
Subject: FW: Vote No to Safeway gas station - late document
Samantha Pascoe, CMC
Deputy City Clerk
Main 707.778.4360 Direct 707.778.4575
www.cityofpetaluma. net
Hours: Mon —Thurs Sam to 5pm, Closed Fridays
From: JoAnn McEachin <joannmceachin@gmail.com>
Sent: Monday, February 4, 2019 2:09 PM
To: Teresa Barrett <teresa4petaluma@comcast.net>; -- City Clerk <CityClerk@ci.petaluma.ca.us>
Cc: Danly, Eric <edanly@ci.petaluma.ca.us>
Subject: Vote No to Safeway gas station
---Warning: Use caution before clicking any attachments. THIS EMAIL IS FROM OUTSIDE OUR EMAIL SYSTEM. ---
Madam Mayor and City Council Members,
Please take a moment to review the two isopleths below, produced by Dr. Phyllis Fox and Ray Kapahi for their Response to the IS/MND. D'Lynda Fischer and
Kevin McDonnell may not have seen it yet.
In summer 2018, when No Gas Here sought the meteorological data that Safeway's experts used in the IS/MND and were refused, No Gas Here was forced
to use the only met data available at that time, which was that out of Santa Rosa. The isopleth on the left side of the page shows the projected number of
cancers per million that would be caused by the installation and operation of the Safeway gas station at the corner of S. McDowell and Maria Dr.
The wind patterns out of Santa Rosa blow differently from those in Petaluma, though. So later, when No Gas Here's experts were able to get meteorological
data from Petaluma (isopleth on the right side of the page), the number of cancers per million was shown to spread farther and wider, affecting even more
residents.
I urge you to keep in mind that all of these projected cancers, caused by the toxins from the Safeway gas station, are preventable. Countless residents have
said that we neither need nor want a gas station in this location.
If Safeway's ever-present threat of a lawsuit is a factor that you are considering while making your decision to require a full EIR or to reject the project
altogether, I ask you to also consider the lawsuits that are sure to come when neighborhood cancers are diagnosed.
And, if we Petaluma residents have to face a Safeway lawsuit, I think the judge would rule in our favor because you will only have done your duty to protect
the health of the community.
JoAnn McEachin
Warning: All e-mail sent to this address will be received by the corporate e-mail system, and is subject to archival and
review by someone other than the recipient. This e-mail may contain proprietary information and is intended only for
the use of the intended recipient(s). If the reader of this message is not the intended recipient(s), you are notified that
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strictly prohibited. If you have received this message in error, please notify the sender immediately.
RUTAN
RUTAN & TUCKER, LLP
December 2, 2018
VIA E-MAIL
Honorable David Glass, Mayor
and Members of the Petaluma City Council
City of Petaluma
11 English Court
Petaluma, CA 94952
Matthew D. Francois
Direct Dial: (650) 798-5669
E-mail: mfrancois@rutan.com
Re: Safeway Fuel Center Project; December 3, 2018 City Council Agenda Item 5.13
Dear Mayor Glass and Members of the City Council:
We write on behalf of our client, Safeway, Inc., regarding the proposed Safeway Fuel Center
Project (the "Project") at 335 S. Mc Dowell Boulevard (the "Property") in the City of Petaluma (the
"City"). The Project has been reviewed by the City for nearly six years and was the subject of
numerous studies prepared by expert consultants as well as a detailed mitigated negative declaration
("MND") prepared by M -Group, the City's contract Planning Staff.
After continuing its May 8, 2018 hearing to obtain more information regarding air quality
and traffic, and to allow additional review by Petaluma City Schools (the "District"), the City's
Planning Commission approved the Project on June 26, 2018. On July 9, 2018, an appeal of the
Planning Commission's action was filed by JoAnn McEachin and others ("Appellants").
In connection with its consideration of the appeal, Safeway submitted letters dated
September 6, 2018, September 11, 2018, September 14, 2018, September 17, 2018, October 10,
2018, November 14, 2018, and December 1, 2018 providing updates and voluntary supplemental
information for the benefit of City Council, City Staff, and the public record. Today, we are writing
to again provide voluntary supplemental information in response to Appellants' November 30, 2018
submittal from: (i) Phyllis Fox and Ray Kapahi claiming that the Project will result in significant
health risk impacts, and (ii) Patrick Soluri asserting that the City can deny the Project's Site Plan and
Architectural Review ("SPAR") application on broad health, safety, and welfare grounds.' As
summarized below and as detailed in the attached supplemental response by Illingworth & Rodkin,
the commenters are wrong both as a matter of fact and as a matter of law.
1. The Project will not result in significant health risk impacts.
The supplemental analysis provided by Fox and Kapahi uses the same modeling assessment
they previously provided, but now employs a hybrid meteorological data set, combining Petaluma
wind data with Santa Rosa meteorological data. As explained in the December 2, 2018 response
1 Appellants' November 30, 2018 submittals respond to documents submitted by Safeway on September
5, 2018, September 17, 2018, and October 10, 2018. Yet Appellants' submittals were only received by
Safeway on Friday, November 30, 2018 at 6:06 p.m.
Rutan & Tucker, LLP I Five Palo Alto Square, 3000 EI Camino Real, Suite 200
Palo Alto, CA 94306-9814 1 650-320-1500 1 Fax 650-320-9905
Orange County ( Palo Alto I www.rutan,com
2696/031700-0001
13143643.1 a12/02/18
AN
T_
R.- 61UCi{ 1 -
Honorable Members of the City Council
December 2, 2018
Page 2
from James Reyff of Illingworth & Rodkin, attached hereto as Exhibit A, there is no sound scientific,
meteorological, or regulatory basis for the data set Fox and Kapahi utilized. Mr. Reyff notes that
"[b]y applying an artificial, misleading, and erroneous hybrid meteorological data set to their
previous analysis, Fox and Kapahi have compounded the numerous key concerns that we and
BAAQMD have previously identified." As with their prior submittal, the latest submittal from Fox
and Kapahi claiming that the Project will result in significant impacts is based on argument,
speculation, unsubstantiated opinion, clearly inaccurate and erroneous information, and evidence
that is not credible. As such, the letter does NOT constitute substantial evidence of a fair argument
that the Project may result in a significant environmental impact.
2. The City's discretion over the Project is limited to design issues.
As detailed in previous submittals, the City has limited discretionary authority over the
Project. (See, e.g., September 5, 2018 memo from our firm to Heather Hines, included in Attachment
8 to the Staff Report.) As subsequently noted in the September 17, 2018 memo prepared by our firm
(also included in Attachment 8 to the Staff Report), Mr. Soluri misconstrues the applicable
"considerations" at issue in the Project's SPAR application review process and misstates the legal
standard of review applicable to the City's action on the Project's SPAR application.
In his November 30, 2018 letter, Mr. Soluri continues to misrepresent the relevant
"considerations" at issue in this SPAR proceeding by claiming that the City Council can deny the
Project based on broad health, safety, and welfare concerns. Mr. Soluri first states that the "siting"
consideration applicable to SPAR review is not limited to setbacks or related considerations. Mr.
Soluri's claim in this regard is belied by the actual language of the City Code which calls for a review
of "[t]he siting of the structure on the property, as compared to the siting of other structures in the
immediate neighborhood." (Implementing Zoning Ordinance ["IZO"] § 24.010(G)(1)(c).) This
language unambiguously indicates that the siting considerations relate to setbacks and related site
planning considerations. This makes sense in light of the purpose of SPAR review, which is to
"achieve a satisfactory quality of design" and "promote the orderly and harmonious development"
of the City. (IZO § 24.010(A),(G).)
The City is only authorized to consider compatibility of a project with its site, surrounding
properties, and the community if the IZO does not identify specific criteria for a zoning -related
decision. (IZO § 1.030(B).) However in Petaluma, the IZO does contain specific criteria for
review of a SPAR application. (IZO § 24.010.G.) Thus, the City cannot lawfully consider other
considerations including those cited by Mr. Soluri. (See, e.g., Friends of Davis v. City of Davis
(2000) 83 Cal.App.4th 1004 [court rules that design review ordinance does not confer on a city the
unrestrained power to decide who may and may not do business in the city.].)
Even though all of the evidence in the record supports approval of the Project's SPAR
application and none supports denial of it, Mr. Soluri claims that the City can nonetheless deny the
Project based on a general provision that allows a reviewing body to "impose more stringent
2696/031700-0001
13143643.1 a12/02/18
IJTAN
Ft1TRfA fi YUGN£W, LLF
Honorable Members of the City Council
December 2, 2018
Page 3
requirements than set forth in [the IZO], as may be determined by the review authority to be
necessary to promote appropriate land use and development, environmental resource protection, and
the other purposes of [the IZO]." (IZO § 1.040(C).) First, the specific considerations applicable to
SPAR applications prevail over any more general provision of the IZO. (See, e.g., Stockton Citizens
for Sensible Planning v. City of Stockton (2012) 210 Cal.App.4th 1484, 1496.) Second, nothing in
section 1.040(C) authorizes a review body to deny a project as Mr. Soluri claims; at most, it allows
a review body to impose additional conditions and then only as needed to promote appropriate land
use development or environmental resource protection. The Project currently has 65 conditions of
approval imposed on it, far surpassing the number of conditions imposed on any other recent gas
station project in Petaluma. We agree with Staff that construing section 1.040(C) as to reject a
permitted use like the Project would "undermine the stability and reliability of the permitted land
uses" specified in the City's Zoning Ordinance. (Staff Report, p. 14.) Finally, and fatally to
Appellants' claims, all of the studies and analysis, including those provided by the City's
professional Planning Staff and expert environmental consultants, confirm that the Project is an
appropriate land use, does not require additional environmental mitigation, and conforms to the
purposes of the IZO and the Commercial 2 zoning district in which it is located.
Thank you for your consideration of Safeway's views on this matter. Representatives of
Safeway, including the undersigned, will be in attendance at your December 3, 2018 hearing on the
appeal. In the meantime, please do not hesitate to contact me with any questions regarding this
correspondence.
Very truly yours,
RUTAN & TUCKER, LLP
M hWFra
MDF:mtr
cc: Heather Hines, Planning Manager, City of Petaluma
Olivia Ervin, Principal Environmental Planner, City of Petaluma
Adam Petersen, Senior Planner, City of Petaluma
Eric Danly, City Attorney, City of Petaluma
Claire Cooper, City Clerk, City of Petaluma
Natalie Mattei, Senior Real Estate Manager, Safeway, Inc.
Mark Friedman, President, Fulcrum Property
2696/031700-0001
131436411 a12/02/18
11 u
EXHIBIT A
/LL/NGWDRTH&RODK/N,INC.
11 Acoustics • Air Quality 11
429 E. Cotati Ave
Cotati, California 94931
Tel: 707-794-0400 Fax: 707-794-0405
www.illingworthrodkin.com illro@illingworthrodkin.com
MEMO
Date: December 2, 2018
To: Natalie Mattei
Senior Real Estate Manager
Albertsons Companies
11555 Dublin Canyon Road
Pleasanton, CA 94588
From: James A. Reyff
Illingworth & Rodkin, Inc.
429 E. Cotati Ave
Cotati, CA 94931
RE: Safeway Fuel Center CEQA document - Petaluma, CA
SUBJECT: Safeway Fuel Center Health Risk Assessment - Response to Supplemental
Comments made by Phyllis Fox and Ray Kapahi W)
This memo provides our response to comments regarding the Petaluma Safeway gas station project
("Project") made by Phyllis Fox and Ray Kapahi in a supplemental report dated November 30,
2018.
Note that responses provided in our memo dated October 10, 2018 apply since the supplemental
analysis continues to use erroneous diesel exhaust and evaporative fuel emissions, incorrect risk
exposure parameters, and, as described below, improper meteorological conditions.
The supplemental analysis provided by Fox and Kapahi uses the same modeling assessment
previously provided, but employs a hybrid meteorological data set, combining Petaluma wind data
for the years 1990-1994 with other meteorological data from Santa Rosa for the years 2013-2017
(i.e., stability and other dispersion parameters). The resulting data represent conditions that do not
occur in nature (e.g., moderate to strong winds under stable atmospheric conditions or vice versa)
and reflects an erroneous calculation of concentrations and portrayal of resulting health risk. In
layman's terms, Fox and Kapahi created a "Frankenstein" meteorological data set that is not
acceptable in practice and fails to provide an accurate assessment of the Project's health risk.
There is no underlying sound scientific, meteorological, or regulatory basis for what was
I
Memo to Natalie Maffei
December 2, 2018 — Page 2
conducted in creating the new hybrid meteorological data. The Petaluma wind data that the
commenters relied upon is not appropriate or suitable for use with the AERMOD model. There is
no correlation between the 1990-1994 Petaluma wind data and the other meteorological parameters
in the 2013-2017 Santa Rosa meteorological data. Not only is the data substitution method that
Fox and Kapahi employed "not the ideal," as they admit, it would not be accepted for use by any
regulatory agency, including BAAQMD.' In short, the hybrid meteorological data set relied on
by commenters is useless for any sort of meaningful modeling analysis of the Project.
Because the existing Petaluma wind data relied on by Fox/Kapahi is not appropriate for use with
the AERMOD model, our firm contracted with Lakes Environmental Group to develop a custom
meteorological data set for use with our AERMOD analysis. (Our AERMOD analysis is attached
as Exhibit A to our October 10, 2018 memo.) Similar to our original analysis employing the
ISCST3 model, the analysis employing the AERMOD model concludes that the Project meets all
thresholds and will not result in any significant impacts related to health risk. BAAQMD reviewed
and accepted our analysis. (November 8, 2018 letter from Damien Breen to Olivia Ervin.)
Unlike its acceptance of our analysis, BAAQMD cited "several key concerns" with Fox/Kapahi's
analysis. In addition to inappropriately relying on Santa Rosa wind data, BAAQMD pointed out
that the benzene emission factor used by Fox/Kapahi was "substantially higher" than BAAQMD's
standard benzene emission factor. It also noted that the residential exposure assumptions used in
the Fox/Kapahi HRA were "not consistent with the Air District's current HRA risk calculation
procedures."
In our October 10, 2018 submittal we concurred with BAAQMD's concerns and detailed other
significant flaws with the Fox/Kapahi analysis. For instance, the commenters significantly
overstate diesel emissions (by a factor of ten) by overestimating the amount of Project diesel sales,
vehicle idling, and emission rates. They inappropriately applied protective modeling assumptions
designed for use with a 30 -year exposure period to a 70 -year exposure period, thus including 40
years of additional exposure beyond what is recommended by BAAQMD and the California Air
Resources Board. In addition, the commenters inappropriately model the Project as operating 24
hours per day, which is not the proposal.
By applying an artificial, misleading, and erroneous hybrid meteorological data set to their
previous analysis, Fox and Kapahi have compounded the numerous key concerns that we and
BAAQMD have previously identified. The resulting analysis does not provide any meaningful or
credible assessment of the Project health risk. Commenters continue to grossly overstate Project
emissions, resulting in false claims of significant impacts. As such, their analysis should be given
no weight.
' Specifically, the methodology conflicts the with the following regulatory guidance: (1) 40 CFR Part 51 Appendix
W (Guideline on Air Quality Models), and (2) User's Guide for the AERMOD Meteorological Preprocessor
(AERMET) EPA -454B-18-002, U.S. EPA, April 2018.
-q
70 Year Cancer Risk — Santa Rosa Met Data
70 Year Cancer Risk — Petaluma Met Data
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ATTACHMENT 15
Heather Hines
From: Crump, Katie <KCRUMP@ci.petaluma.ca.us>
Sent: Wednesday, February 27, 2019 9:29 AM
To: -- City Clerk; Heather Hines
Subject: FW: Proposition 65
Late document
From: JoAnn McEachin <joannmceachin@gmaii.com>
Sent: Wednesday, February 27, 2019 8:50 AM
To: City Council <citycouncil@ci.petaluma.ca.us>
Subject: Proposition 65
For the record, the City of Petaluma should heed the State of California's warning and vote NO to the Safeway fuel
center, which will sell gasoline and diesel too close to children and pregnant women. This warning is real and it is
everywhere.
1