HomeMy WebLinkAboutResolution 2019-045 N.C.S. 04/01/2019Resolution No. 2019-045 N.C.S.
of the City of Petaluma, California
RESOLUTION OF THE CITY OF PETALUMA CITY COUNCIL
RESCINDING AND REPLACING RESOLUTION NO. 2019-015 N.C.S. ADOPTED
JANUARY 28, 2019, DENYING THE APPEAL FILED BY JOANN MCEACHIN
AS TO THE MITIGATED NEGATIVE DECLARATION AND SITE PLAN AND
ARCHITECTURAL REVIEW APPROVED BY THE PLANNING COMMISSION
PURSUANT TO RESOLUTION NOS. 2018-21A AND 2018-21B ADOPTED
JUNE 26, 2018, AND AFFIRMING THE PLANNING COMMISSION'S APPROVAL
OF THE MITIGATED NEGATIVE DECLARATION AND SITE PLAN AND
ARCHITECTURAL REVIEW FOR THE SAFEWAY FUEL CENTER
PROJECT LOCATED AT 335 SOUTH McDOWELL BOULEVARD,
ASSESSOR'S PARCEL NO. 007-820-046, FILE NO.
PLAP 18-0001
WHEREAS, Stantec Architecture Inc., on behalf of Safeway ("Applicant") and property
owner Washington Square Associates, LLC., submitted an application ("Application") for Site
Plan and Architectural Review "(SPAR") approval 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 referred to as
the Safeway Fuel Center Project ("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 ("MND")
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, a Notice of Completion was submitted to the State Clearinghouse and
established the local public review period for the Initial Study ("IS")/MND starting April 5, 2018
and ending May 7, 2018; and
WHEREAS, the public review period for the IS/MND 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 The City's Implementing Zoning Ordinance, Ordinance No. 2300 N.C.S.
("IZO"), §24.010, to consider the Project; at which time all interested parties had the opportunity
to be heard; and
WHEREAS, 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
Resolution No. 2019-045 N.C.S. Page 1
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
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 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 SPAR Application, the Planning
Commission adopted an 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 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 filed an appeal on behalf of herself and
Friends of McDowell Elementary School, Little League Children, and East Petaluma Residents
("Appellants") of the Planning Commission's adoption of Resolution 2018-21A approving an
MND for the Project and Resolution 2018-21B approving SPAR for the Project ("Appeal"); and
WHEREAS, the Appeal included 16 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 a public notice of an appeal hearing before the City
Council on September 27, 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. 2018407, and to all those 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
WHEREAS, by letter dated September 12, 2018, Chris Thomas, Chief Business Official
of Petaluma City Schools ("School District"), asserted that an Environmental Impact Report
Resolution No. 2019-045 N.C.S. Page 2
(`BIR") 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 Appellants, 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 Appellants, 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 that 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
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
Resolution No. 2019-045 N.C.S. Page 3
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 impact 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 6.B 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; 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
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
Resolution No. 2019-045 N.C.S. Page 4
supplemental HRA using the AERMOD model and that analysis, included in the October 10,
2018 correspondence, which 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
configuration that differs fiom that approved in the current BAAQMD Authority to Construct
permit, and that therefore the Applicant must apply for permit revisions; and
WHEREAS, on behalf of the Applicant, Rutan & Tucker issued a November 14, 2018
letter responding to the BAAQMD comment letter and asserting that the City is required to
uphold the Planning Commission's approval of the MND and SPAR because the record lacks
substantial evidence of a fair argument that the Project may have significant effect on the
environment; 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
Resolution No. 2019-045 N.C.S. Page 5
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 require the
preparation of an EIR 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
WHEREAS, on December 3, 2018, on behalf of the Appellant, Mr. Soluri 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 IS/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
Resolution No. 2019-045 N.C.S. Page 6
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.Sth 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
therefore, fact -based comments of the community may constitute substantial evidence that a fair
argument can be made that the 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. County of Colusa (2014) 229
Cal.App.4th 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
Resolution No. 2019-045 N.C.S. Page 7
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 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;
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;
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 entitled:
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 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
Resolution No. 2019-045 N.C.S. Page 8
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 FIR
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 noticed 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
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
Resolution No. 2019-045 N.C.S. Page 9
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, On January 24, 2019, Mr. Francois on behalf of Safeway submitted
correspondence arguing that under McCorkle Eastside Neighborhood Group 1,. City of St.
Helena, filed on December 18, 2018, the City Council could not order that an EIR be prepared
concerning the Project, notwithstanding the conflicting expert opinion in the record on Appeal
concerning Project environmental impacts, because the court held in McCorkle that local
agencies conducting design review are limited under CEQA to analyzing only those
environmental impacts that the agency has the authority to mitigate under its design review
regulations; and
WHEREAS, on January 28, 2019 on behalf of the appellant, Mr. Soluri submitted
correspondence to the City asserting that the McCorkle case does not limit the City's discretion
to require environmental review for the Project; and
WHEREAS, on January 28, 2019 on behalf of the Applicant, Mr. Francois submitted
correspondence to the City asserting that the City Attorney's letter of January 22, 2019 in
response to Mr. Francois' demand letter to cure or correct alleged violations of Brown Act dated
January 2, 2019, was not supported by facts; and
WHEREAS, On January 28, 2019 on behalf of the Applicant, Mr. Francois submitted
correspondence to the Mayor and City Members to respond to public comments in the record
associated with the January 28 council consideration of the Appeal and the demand to cure and
correct alleged Brown Act violations; and
WHEREAS, at the January 28, 2018 City Council meeting, in accordance with the City's
January 22, 2019 correspondence to the Applicant, the City Council held a closed session
regarding anticipated litigation based on and citing comments and correspondence on behalf of
Safeway raising a threat of litigation; 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
comprises part of the Record on Appeal is hereby incorporated into and made a part of this
resolution; and
WHEREAS, after the January 28 public hearing had been closed and during Council
deliberation on the item, some Council members expressed a desire for additional time to
consider the impact of the recent decision in McCorkle Eastside Neighborhood Group v. CioJ of
St. Helena on the City Council's options on the Appeal; and
Resolution No. 2019-045 N.C.S. Page 10
WHEREAS, in response to the desire expressed by some Council members for
additional time to consider the McCorkle case, Safeway representatives indicated Safeway would
not stipulate to additional time for Council consideration and that the City Council should take
action at the January 28 City Council in accordance with the cure and correct deadline that
applies under the Brown Act to Safeway's demand dated January 2, 2019; and
WHEREAS, following the response from Safeway representatives, Council Member
Healy asked for confirmation whether Council action to cure or correct subject to the Council's
rules regarding motions for reconsideration would satisfy Brown Act requirements, and upon
receiving an answer that such action would satisfy Brown Act requirements, Council Member
Healy gave notice of his intent to later move reconsideration, in accordance with Section VI(F)
of the City Council's rules, and moved to adopt Resolution No. 2019-015 N.C.S. entitled
RESOLUTION OF THE CITY OF PETALUMA CITY COUNCIL
RESCINDING AND 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. 2018-21B
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, Mayor Barrett seconded Council Member Healy's motion to adopt
Resolution No. 2019-015 N.C.S, and the motion passed by a vote of four to one with Council
Member Fischer opposed and Council Members Kearney and Miller recused; and
WHEREAS, under Section VI(F) of the Council Rules, a motion to reconsider the
Council's adoption of Resolution No. 2019-015 N.C.S. on January 28, 2019 was required to
occur at the City Council meeting on February 4, 2019, and in accordance with Section VI(F), an
agenda item on reconsideration of Resolution No. 2019-015 N.C.S. was agendized for the City
Council's February 4 meeting; and
WHEREAS, on February 1, 2019 on behalf of the applicant, Mr. Francois submitted
correspondence to the Mayor and Council Members arguing that Rule IX(C) of the City
Council's Rules, Policies, and Procedures allows the City Council to move, second, and vote on
reconsideration at the February 4, 2019 in order to reconsider the Council's action in two
meetings instead of three; and
Resolution No. 2019-045 N.C.S. Page I 1
WHEREAS, on February 4, 2019 the appellant, JoAnn McEachin, emailed the City
Council reiterating two isopleths produced by Fox and Kapahi representing cancer risk from the
proposed project; and
WHEREAS, on February 4, 2019 Natalie Maffei on behalf of Safeway submitted a
response to Ms. McEachin's email of the same date and indicating that the Fox and Kapahi
isopleths had previously been argued as misrepresenting the cancer risks associated with the
project by Illingworth & Rodkin in their response on December 2, 2018; and
WHEREAS, On February 11, 2019 on behalf of the Applicant, Mr. Francois provided
correspondence to BAAQMD summarizing the record relating to health risk modeling for the
Project; and
WHEREAS, at the City Council's February 4 meeting, following consideration of the
reconsideration item (with Council Members Kearney and Miller recused), Council Member
Healy moved reconsideration of Resolution No. 2019-015 and Council Member King seconded
the motion; and
WHEREAS, in accordance with Rule VI(F), the vote on the reconsideration motion was
agendized for the February 25 City Council meeting, and, at the February 25 meeting, following
consideration of the reconsideration item, Mayor Barrett called the reconsideration vote and the
vote passed 3 to 2, with Vice Mayor McDonnell and Council Members Healy and King voting in
favor, Mayor Barrett and Council Member Fischer opposed, and Council Members Kearney and
Miller recused; and
WHEREAS, under Council Rule VI(F), following passage of the reconsideration
motion, reconsideration must occur at the next regularly scheduled Council meeting at least one
week after the vote; and accordingly, a reconsideration hearing under Rule VI(F) has been
agendized for the March 4, 2019 City Council meeting; and
WHEREAS, on February 25, 2019, Appellant JoAnn McEachin emailed the City Clerk
providing a link to a report from scientists at the Columbia University Mailman School of Public
Health and highlighting quotes attributed to the report suggesting that actual emissions may
substantially exceed emissions estimated in setback regulations for school, park and playground
uses; and
WHEREAS, on February 25, 2019, Appellant JoAnn McEachin emailed the City Clerk
stating annual vehicular collision data for 2013 through 2018 at and around the intersection of
McDowell and East Washington; and
WHEREAS, on February 27, 2019, Appellant JoAnn McEachin emailed the City Clerk
urging the City Council to uphold the appeal based on Proposition 65 and associated with the
sale of gasoline and diesel in proximity to sensitive receptors; and
WHEREAS, additional comment letters have been submitted from members of the
public since the last packet distribution on January 22, 2019 and up until distribution of this staff
report on February 28, 2019, the majority of which express opposition to the Project on a number
Resolution No. 2019-045 N.C.S. Page 12
of grounds including air quality/health risks, safety, and circulation/traffic, while a number
express support of the project; and
WHEREAS, to provide adequate public notice in the event the City Council voted in
favor of reconsideration at the February 25 City Council meeting, staff arranged to publish on
February 20, 2019 notice in the Petaluma Argus Courier of a March 4, 2019 public hearing to
reconsider the adoption of Resolution No. 2019-015. Notices of the March 4 hearing were
mailed to all property owners and occupants within 1,000 feet of the Property and to all members
on the interested parties list for the Project, and two public hearing signs were posted on the site,
in accordance with the requirements of the City's IZO and City Council Resolution No. 2018-
107; and
WHEREAS, at the noticed public hearing on March 4, 2019, at which time all interested
parties had the opportunity to be heard, the City Council reconsidered adoption of Resolution
No. 2019-015, considered the Appeal and the information submitted by City staff, the Applicant,
the Appellants, interested parties and members of the public for all public hearings on the
Application and Appeal, including the information submitted for the December 3, 2018 City
Council hearing, and the January 28, 2019 City Council hearing, 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
herein by reference as findings of the City Council.
2. Resolution No. 2019-015 adopted by the City Council on January 28, 2019, is hereby
rescinded in its entirety and is longer in effect.
On March 4, 2019 the City Council fully considered all evidence presented before
and at the duly noticed public hearing on December 3, 2018, January 28, 2019, and
March 4, 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 denies the appeal of JoAnn McEachin filed with the
City Clerk on July 9, 2018 on behalf of JoAnn McEachin and Friends of 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, and as to the Site Plan and Architectural
Review approval of the Petaluma Planning Commission on June 26, 2018 by
Resolution No. 2018-2113, in accordance with the following findings for denial of the
appeal, as supported by the record of proceedings:
Resolution No. 2019-045 N.C.S. Page 13
3. Based on its review of the entire record herein, the City Council makes the following
findings:
CEQA
A. Based on its review of the entire record herein, including the Mitigated Negative
Declaration, the Initial Study, Response to Comments, all supporting, referenced
and incorporated documents and all comments received, the City Council finds
that there is no substantial evidence that the Project will have a significant effect
on the environment, that the Mitigated Negative Declaration reflects the City's
independent judgment and analysis, and that the Mitigated Negative Declaration,
Initial Study and supporting documents provide an adequate description of the
impacts of the Project and comply with CEQA, the State CEQA Guidelines and
the City of Petaluma Environmental Guidelines, as outlined in the record. The
comments received into the Project record regarding potentially significant
impacts resulting from the Project either address potential impacts already
satisfactorily analyzed in accordance with CEQA requirements as described in the
staff report accompanying this resolution and the Project record, and/or the
comments received constitute argument, speculation, unsubstantiated opinion or
narrative, or evidence that is erroneous or inaccurate, and thus do not constitute
substantial evidence supporting a fair argument that the Project may result in
significant environmental impacts.
CIPnPt•al Plan
B. The proposed construction of the Safeway Fuel Station project at 335 South
McDowell Boulevard is, for the reasons discussed in the May 8, 2018 Planning
Commission staff report, consistent with the following Petaluma General Plan
policies: Policy 1-P-2 (Promote infill development), Policy 1-P-6 (mixed-use
development) 1-P-11 (Land use intensification at strategic locations), Policy 1-P-
14 (street trees), Policy 2-P-5 (Strengthen the visual and aesthetic character of
major arterials), Policy 4-P-10 (Electric Charging stations), Policy 5-P-42 (expand
bus transit), Policy 6-P-29 (Integrate Art), Policy 10-P-3 (Protect Public Health
and Welfare), and Policy 10-P-4 (Transport of Hazardous Materials).
C. The Project is consistent with the "Community Commercial" General Plan land
use designation because the project contributes to the variety of commercial
services provided to the larger the region from this area of Community
Commercial property.
Implementin Zig Ordinance
D. The Project is consistent with all development standards of the C2 Zoning District
including, but not limited to, those pertaining to building height, setbacks and off-
street parking requirements.
E. All the required findings for Site Plan and Architectural Review approval found at
Implementing Zoning Ordinance §24.010 (G)(1) can be made, as follows:
Resolution No. 2019-045 N.C.S. Page 14
The Project includes the use of quality materials and is in harmony with and in
proportion with the overall design through its use of single -story architecture
with building articulation that employs varying depths and balances solid and
transparent fagade materials in the form of stucco and concrete masonry unit
walls stucco, and glass windows with metal aluminum trim; the use of metal,
stone, and concrete finishes; added accent to the main entrance; metallic
awnings; and consistent detailing for the proposed canopy. Articulation is
applied on all building elevations appropriately.
ii. The Project's building form, materials and architectural style is appropriate
for the Project and compatible with the overall character of the area. The
proposed facades include varying depths and materials divided into low, mid,
and upper level strata to provide visual variety. Architectural detailing is
carried through to all structures. The area features similar, rectilinear,
simplistic commercial structures oriented to passing vehicle traffic on South
McDowell Boulevard and Maria Drive and pedestrian on-site.
iii. The proposed site design frames the interior of the lot and more clearly
defines the boundaries of the site than current development, particularly along
the southern property line adjacent to Maria Drive. Positioning the structure
approximately five -feet (5 ft.) from the property line at this location
establishes a pedestrian friendly building edge along the street. Further, the
building is designed with an entry to the kiosk from Maria Drive that orients
the building for customers walking on the sidewalk. The location of the
canopy and the kiosk are located at approximately the same depth as the
adjacent building along South McDowell Boulevard. This positioning
enhances the streetscape because it maintains consistent siting of structures on
the east side of the South McDowell Boulevard.
iv. The project identifies new building signage consisting of two new signs on the
convenience store and on the canopy. The project also includes a price sign
elevation. However, this signage is representative only and is not proposed as
part of the application. An application will be submitted in the future for
signage on the north and south elevations of the convenience store, on the east
and west edge of the fueling canopy, and for a monument signage on the site.
Proposed signs generally fit within the area of the canopy and the kiosk.
Additionally, signage is generally consistent with location, number and size
requirements of the sign code and sign program, although staff will ensure
that any future application for project specific signage will be consistent with
the sign code and sign program.
V. The project identifies new building signage consisting of two new signs on the
convenience store and on the canopy. The project also includes a price sign
elevation. However, this signage is representative only and is not proposed as
part of the application. An application will be submitted in the future for
signage on the north and south elevations of the convenience store, on the east
Resolution No. 2019-045 N.C.S. Page 15
and west edge of the fueling canopy, and for a monument signage on the site.
vi. The project is harmonious with adjacent structures in terms of bulk, height,
and color. The architecture is, like adjacent buildings, simple in form and
design. Immediately north of the site is a bank and commercial retail store that
is approximately one -and -a -half- to two stories in height. This building is
comprised of rectilinear features with strong square cut elements. Similar
bulky square cut features that are simple in design and form are used in the
canopy over the fuel pumps and portions of the fagade of the kiosk. To the
west of the site, across South McDowell Boulevard are single story single
family homes. The convenience store bulk, at 697 square feet, is similar in
size to the single family homes, and the earth tone color scheme of the homes
compliments the beige and taupe color scheme of the project. Similar to other
structures, the single story nature, architectural expression and color scheme
of the project compliment the structure to the south because the structure to
the south is a single story building, with a rectilinear form, and earth tone
color scheme. East of the project is the Safeway grocery store. The color
scheme of the project matches the color scheme of the Safeway grocery store,
with each being comprised of beige and taupe tones. Similarly, the vertical
bands that extend up the face of the fuel canopy and the convenience store are
also found on the grocery store. Additionally, the proposed trash enclosure
employs the same materials (concrete masonry unit walls and standing seam
metal roof, and metal doors) color scheme, and resembles a similar square
bulk as the proposed convenience store and canopy and is therefore consistent
with other existing structures in the immediate neighborhood of the project
site. For these reasons the project is harmonious with the bulk, height, and
color schemes of other structures in the immediate neighborhood.
vii. Proposed landscaping serves three functions: to screen structures on the lot
and soften views from Maria Drive and South McDowell Boulevard, and to
provide stormwater retention on-site. Denser landscaping is proposed along
the west and south property boundaries to increase screening, particularly with
respect to the queueing lane for the proposed trash enclosure. The project also
includes landscaping along Maria Drive, along the back of the proposed
improved bus turnout. This landscaping will provide a buffer between the bus
turnout and the parking lot for the shopping center. Further, the project
preserves key street trees at the corner of South McDowell Boulevard and
Maria Drive, and the trees along Maria Drive as well. The project would
remove two street trees to accommodate the improved transit facility but
proposes two new 24 -inch box red maples behind the bus stop.
viii. Circulation patterns will not be substantially altered by the project. A new
accessible pedestrian path is proposed to connect the convenience store to the
existing sidewalk on Maria Drive, with bicycle parking positioned at a logical
location — at the terminus of the pathway at the building. Vehicle access
follows the predominant current pattern. New access is provided to the site
Resolution No. 2019-045 N.C.S. Page 16
from the east. This area will allow for queuing of vehicles so as to not impede
the drive aisle on the adjacent property. The project also provides a new
egress to the north to facilitate internal circulation in the shopping center.
4. This resolution shall take immediate effect upon its adoption.
5. 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.
6. The City Council's denial of the Appeal and affirmation of the Planning
Commission's approval of the Mitigated Negative Declaration and Site Plan and
Architectural Review for the Project pursuant to Planning Commission Resolutions
2018-21A and 2018-21B N.C.S. and this resolution is subject to the mitigation
measures and conditions of approval attached to and made a part of this resolution as
Exhibit A.
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 pro
proved as to
Council of the City of Petaluma at a Regular meeting on the I" day of April 2019, � �foy�n:
by the following vote:
City ttorney
AYES: Fischer; Healy; King; Vice Mayor McDonnell f
NOES: Mayor Barrett
ABSENT: None
ABSTAIN: Kearney; Miller
ATTEST:
City Clerk Mayor
Resolution No. 2019-045 N.C.S. Page 17
EXHIBIT A
CONDITIONS OF APPROVAL
Safeway Fuel Center Project
335 South McDowell Boulevard (APN 007-820-046)
City File Number: PLSR 13-0012
Planning Division
Standard Conditions of Approval
1. The plans submitted for building permit review shall be in substantial conformance with the
plans on file in the Planning Division, date stamped August 13, 2014 and the color
materials board except as modified by the following conditions.
2. This approval is granted for and contingent upon construction of the project as a whole, in a
single phase, with the construction and/ or installation of all features approved and required
herein. Modifications to the project, including but not limited to a change in construction
phasing, shall require Site Plan and Architectural Review in accordance with Implementing
Zoning Ordinance IZO) § 24. 010.
3. Prior to the issuance of any construction permits, these conditions of approval shall be
included with the plan set. A copy of the approved plans shall be maintained on- site when
construction activities are occurring.
4. The site shall be kept cleared at all times of garbage and debris. No outdoor storage shall be
permitted other than typical bulls materials, i.e., lumber, appliances, window systems, etc.,
temporarily stored through the normal course of construction.
5. All exterior lighting shall be hooded and directed downward and shall conform to
Implementing Zoning Ordinance § 21. 040(D), which specifies lighting standards for all
new exterior lighting, including the provision that the cone of direct illumination be sixty
degrees if the luminary is greater than 6 feet above the ground.
6. Construction activities shall comply with performance standards specified in Implementing
Zoning Ordinance Chapter 21 (Performance Standards).
7. In accordance with CEQA § 21083.2 and CEQA Guidelines § 15064.5, if during the course
of ground disturbing activities, including, but not limited to excavation, grading and
construction, a potentially significant prehistoric or historic archeological resource is
encountered, all work within a 100 foot radius of the find shall be suspended for a time
deemed sufficient for a qualified and city approved cultural resource specialist to
adequately evaluate and determine significance of the discovered resource and provide
treatment recommendations. Should a significant archeological resource be identified a
qualified archaeologist shall prepare a resource mitigation plan and monitoring program to
be carried out during all construction activities.
8. In accordance with CEQA § 21083.2 and CEQA Guidelines § 15064. 5, if paleontological
resources, including individual fossils or assemblages of fossils, are encountered during
construction activities all ground disturbing activities shall halt and a qualified
paleontologist shall be procured to evaluate the discovery and make treatment
recommendations.
Resolution No. 2019-045 N.C.S. Page 18
9. The applicant/ developer shall defend, indemnify, and hold harmless the City and any of its
boards, commissions, agents, officers, and employees from any claim, action, or proceeding
against the City, its boards, commissions, agents, officers, or employees to attack, set aside,
void, or annul any of the approvals of the project, when such claim or action is brought
within the time period provided for in applicable State and/ or local statutes. The City shall
promptly notify the applicants/ developers of any such claim, action, or proceeding. The
City shall coordinate in the defense. Nothing contained in this condition shall prohibit the
City from participating in a defense of any claim, action, or proceeding and if the City
chooses to do so applicant shall reimburse City for attorneys' fees incurred by the City.
10. If a construction permit has not been issued for the project within twelve (12) months of
this resolution, this approval shall become void. A twelve-month extension may be granted
if requested at least thirty (30) days prior to the initial twelve (12) month expiration date.
11. Prior to the issuance of a building permit, all applicable development impact fees shall be
paid to the City of Petaluma.
Special Conditions
12. The maximum fuel throughput shall not exceed 8.5 million gallons per year as proposed
and analyzed as the project description. The applicant shall provide documentation
demonstrating actual annual throughput at the beginning of each calendar year for the
previous year.
13. Prior to issuance of building permit, the applicant shall demonstrate to the satisfaction of
the Planning Manager that all rooftop equipment is screened from views from adjacent
streets and properties.
14. The Final Landscaping Plan shall provide sufficient screening by placement of grasses,
shrubs and other groundcover species to effectively screen out glare from headlights
oriented towards South McDowell Boulevard and towards Maria Drive. A variety of
heights shall be introduced through the landscaping plan including a dense 4 -foot high
screen that blocks glare emanating from headlights.
15. Prior to issuance of building permit, the applicant shall submit a revised tanker circulation
plan Sheet A 1. 05 illustrating alternative access than Maria Drive.
16. Prior to the commencement of work on the site, a preconstruction meeting shall be
organized by the applicant team and held at the McDowell Elementary School site. All
outreach for and during the meeting shall include Spanish translation for all written oral
communication.
17. Signs prohibiting idling shall be installed as indicated on Sheet Al .06 of the approved plan
set.
18. Public Improvement Plans shall include vertical delineator on Maria Drive to create a
barrier to prevent left turning movements into the shopping center at the center access
point.
Resolution No. 2019-045 N.C.S. Page 19
19. The contractor(s) shall implement basic and additional air quality construction measures set
forth by BAAQMD, including the following:
a) Water all active construction areas (staging, parking, soil piles, graded areas, unpaved
driveways, etc.) at least twice daily.
b) Cover all haul trucks transporting soil, sand, or other loose materials offsite.
c) Sweep daily (with water sweepers) all paved access roads, parking areas, and staging
areas. Sweep streets daily (with water sweepers) if visible soil material is deposited
onto adjacent roads.
d) Suspend construction activities that cause visible dust plumes that extend beyond the
construction site.
e) A certified mechanic shall verify that equipment is properly tuned and maintained in
accordance with manufacturer specifications.
f) Idling times shall be limited to 5 minutes or less pursuant to the "no idling" rule for in
-use off-road diesel -fueled vehicles. Signage shall be posted at the construction site
indicating the idle time limitation.
g) All diesel -powered off-road equipment larger than 50 horsepower and operating at the
site for more than two days continuously shall meet U. S. EPA particulate matter
emissions standards for Tier 3 engineer or the equivalent.
h) Diesel -powered generators or air compressors shall not be used on-site for more than
two days continuously, unless under emergency conditions.
i) Post a publicly visible sign with the telephone number of designated person and
person to contact at the Lead Agency regarding dust complaints. This person shall
respond and take corrective action within 48 hours. The Air District's phone number
shall also be visible to ensure compliance with applicable regulations.
20. The demolition and removal of asbestos -containing building materials shall be subject to
applicable California Occupational Safety and Health Administration (CAL -OSHA) and
BAAQMD Regulations, and the applicant shall obtain a Job Number from the BAAQMD.
The applicant shall present the Job Number to the City Building Department and notify the
BAAQMD at least 10 working days before demolition commences. Federal and state
construction worker health and safety regulations shall be followed during demolition
activities due to the presence of asbestos containing material (ACM). All ACM shall be
removed by a qualified contractor and disposed of in accordance with existing hazardous
waste regulations.
21. In order to avoid potential impacts to nesting birds covered by State and federal law
(California Department of Fish and Game Code and the MBIA), the applicant shall avoid
the removal of trees, shrubs, or weedy vegetation between February 1 and August 31,
during the bird nesting period. If no vegetation or tree removal is proposed during the
nesting period, no surveys are required. If it is not feasible to avoid the nesting period, a pre
-construction survey for nesting birds shall be conducted by a qualified wildlife biologist no
earlier than 14 days prior to the removal of trees. Survey results shall be valid for the tree
Resolution No. 2019-045 N.C.S. Page 20
removals for 21 days following the survey. If the trees are not removed within the 21 - day
period, then a new survey shall be conducted. In the event that an active nest for a protected
species of bird is discovered temporary protective breeding season buffers that avoid direct
or indirect mortality of these birds, nests or young shall be established. The appropriate
buffer distance is dependent on the species, surrounding vegetation and topography and
shall be determined by a qualified biologist to prevent nest abandonment and direct
mortality during construction.
22. If during the course of ground disturbing activities, including, but not limited to excavation,
grading and construction, a potentially significant prehistoric, historic, or paleontological
resource is encountered, all work within a 100 foot radius of the find shall be suspended for
a time deemed sufficient for a qualified and city -approved cultural resource specialist to
adequately evaluate and determine the significance of the discovered resource and provide
treatment recommendations. Should a significant archeological or paleontological resource
be identified a qualified archaeologist or paleontologist shall prepare a resource mitigation
plan and monitoring program to be carried out during all construction activities.
23. In the event that human remains are uncovered during earthmoving activities, all
construction excavation activities shall be suspended, and the following measures shall be
undertaken:
a) The Sonoma County Coroner shall be contacted to determine that no investigation of
the cause of death is required.
b) If the coroner determines the remains to be Native American the coroner shall contact
the Native American Heritage Commission within 24 hours.
c) The project sponsor shall retain a City -approved qualified archaeologist to provide
adequate inspection, recommendations and retrieval, if appropriate.
d) The Native American Heritage Commission shall identify the person or persons it
believes to be the most likely descended from the deceased Native American and shall
contact such descendant in accordance with state law.
e) The project sponsor shall be responsible for ensuring that human remains and
associated grave goods are reburied with appropriate dignity at a place and process
suitable to the most likely descendent.
24. Foundation and structural design for buildings (convenience store and canopy) shall meet
the California Building Code regulations for seismic safety (i.e., reinforcing perimeter and/
or load bearing walls, bracing parapets, etc.).
25. Prior to issuance of a grading permit, an erosion control plan along with grading and
drainage plans shall be submitted to the City Engineer for review. All earthwork, grading,
trenching, backfilling, and compaction operations shall be conducted in accordance with the
City of Petaluma' s Grading and Erosion Control Ordinance # 1576, Title 17, Chapter 17.
31 of the Petaluma Municipal Code. These plans shall detail erosion control measures such
as site watering, sediment capture, equipment staging and laydown pad, and other erosion
control measures to be implemented during construction activity on the project site.
26. Prior to issuance of a grading permit, a soils and geological report shall be submitted to the
City Engineer for review pursuant to the City of Petaluma's Ordinance #1576, Title 17,
Resolution No. 2019-045 N.C.S. Page 21
Chapter 17. 31. 180. The soils report shall detail the strength and characteristics of the soils
onsite and provide conclusions and recommendations for grading procedures and design
criteria as appropriate. Techniques used to correct expansive soils include controlled pre -
watering prior to the placement of foundations, removal of expansive material and
replacement with non -expansive fill, and/ or the use of soil stabilizers.
27. Prior to demolition activities, the applicant shall perform a point -count analysis on the
Gypsum Board and Joint Compound Samples determined to contain less than one percent
asbestos. Where the material is found to contain greater than 1 percent asbestos and is
friable, the material must be handled in accordance with BAAQMD Regulations Section
11- 2-303. Proper handling and disposal procedures that promote safe working conditions
and minimize release of component materials into the environment shall be performed.
28. Due to the proximity of sensitive receptors, construction activities shall be required to
comply with the following and shall be noted accordingly on construction contracts:
a) Construction activities for all phases of construction, including servicing of
construction equipment shall only be permitted during the hours of 7:30 am and 7: 00
pm Monday through Friday and between 9: 00 am to 7: 00 pm on Saturdays, Sundays
and holidays recognized by the City of Petaluma.
b) Delivery of materials or equipment to the site and truck traffic coming to and from the
site is restricted to the same construction hours specified above.
c) All internal combustion engine driven equipment shall be equipped with intake and
exhaust mufflers that are in good condition and appropriate for the equipment.
d) Locate stationary noise generating equipment (e.g. compressors) as far as possible
from adjacent noise -sensitive receptors.
e) Acoustically shield stationary equipment located near noise sensitive receptors with
temporary noise barriers.
f) Utilize "quiet" air compressors and other stationary noise sources where technology
exists.
g) The contractor shall prepare a detailed construction plan identifying the schedule for
major noise -generating construction activities. The construction plan shall identify a
procedure for coordination with the owner/ occupants of nearby noise -sensitive land
uses so that construction activities can be scheduled to minimize noise disturbance.
h) Designate a "disturbance coordinator" responsible for responding to any complaints
about construction noise. The disturbance coordinator will determine the cause of the
noise complaint (e.g. bad muffler etc.,) and require that reasonable measures be
implemented to correct the problem.
29. In order to maintain queuing at acceptable levels during peak hours, the Safeway Fuel
Center shall dedicate a sufficient number of employee(s) to serve as fuel ambassadors
during peak hours to facilitate efficient and safe fueling of vehicles and maintain consistent
egress/ ingress at internal access points onsite.
Resolution No. 2019-045 N.C.S. Page 22
30. On plans submitted for building permit approval, the approved materials and colors for all
siding, windows, trim, doors, and roof, shall be clearly indicated on the plans.
31. Prior to building permit issuance, the required Public Art in -lieu fee shall be remitted to the
City.
32. Prior to building permit issuance, a "J Number" permit from the Bay Area Air Quality
Management District (BAAQMD) shall be obtained for the project.
33. Prior to building permit issuance, an "Authority to Construct" permit shall be issued by the
Bay Area Air Quality Management District (BAAQMD).
34. Prior to occupancy permit issuance, a "Permit to Operate" shall be issued from the Bay
Area Air Quality Management District (BAAQMD).
35. Pursuant to Regulation 8, Rule 7 of the Bay Area Air Quality Management District
(BAAQMD) regulations, the Safeway Fuel Station facility shall employ California Air
Resources Board (CARB) certified vapor recovery systems. Rule 7 requires that stationary
source emitters such as the Safeway Fuel Station use enhanced vapor recovery (EVR)
systems. Nothing is this condition excuses compliance with BAAQMD regulations as they
may be modified in the future.
36. Pursuant to Regulation 2-2-301 of the Bay Area Air Quality Management District
(BAAQMD) regulations, the Safeway Fuel Station facility shall employ Best Available
Control Technology BACT) to control emissions of District SACT pollutants. BACT
technology includes California Air Resources Board (CARB) certified CNI EVR Phase I
equipment and VST Balance EVR Phase Il equipment (per CARB Executive Order VR -
104 and VR -204) be utilized. Nothing in this condition excuses compliance with
BAAQMD regulations as they may be modified in the future.
37. Prior to the issuance of demolition permit, the applicant shall prepare, submit and receive
approval for a Construction Phase Recycling plan in accordance with General Plan Policy
2- P122 for disposal of materials from demolition and construction.
38. Prior to final inspection and opening, the applicant shall install signage to City standards
indicating a Class III bicycle route along Maria Drive.
39. Prior to the issuance of a building permit the applicant shall submit evidence of a cross
access agreement between the project site and adjoining shopping center parcels 007-280-
085 and 007-280-069.
40. Prior to installation, a sign permit shall be obtained in conformance with IZO Chapter 20
and in substantial conformance with this SPAR approval and applicable conditions.
41. Prior to the issuance of a building permit, all outstanding cost recovery balances for the
Safeway Fuel Center and Safeway Fuel Center Appeal shall be paid in full.
Building Division
41. Prior to issuance of a building permit, the applicant shall demonstrate the project' s
compliance with CalGreen requirements at Modified Tier One.
Resolution No. 2019-045 N.C.S. Page 23
Public Works and Utilities
42. Prior to final inspection/operation of the fuel center, the project shall install frontage
improvements as shown on the approved project plans submitted for design review and as
modified in these conditions of approval. The exact design, location and radii of the
proposed curb cuts shall be subject to approval by the City Engineer on the construction
drawings. Reflective markings/striping shall be placed on the curb returns/ bulb outs to
warn drivers and cyclists.
43. Prior to final inspection, the City's Eastside Transit Center shall be modified by the
applicant as shown on the proposed plans including the following: Install new transit
shelters and benches per new City requirements with hard wired electrical service(s),
relocate the existing solar powered real-time route time indicator, install XX U- shaped bike
racks, install a new transit kiosk (information to be provided with the construction
drawings). All Eastside Transit Center improvements shall be shown on plans submitted for
building and encroachment permits and shall be subject to the review and approval by the
City' s Transit Manager. The applicant shall remove the existing shelters and benches and
return them to the City' s transit facility.
44. All portions of existing sidewalk, driveway approaches and curb ramps that are broken,
cracked or displaced 1/2 inch or greater, along the Maria Drive and South McDowell project
frontages, shall be removed and replaced with new sidewalk, driveway approaches and curb
ramps that meets City of Petaluma and Caltrans standards.
45. A new, accessible and directional pedestrian ramp and shall be installed along the project
frontage at the intersection of South McDowell Boulevard and Maria Drive. The applicant
shall relocate existing signal poles, pedestrian push buttons, drain inlets, utility vaults and
other existing infrastructure as determined necessary by the City Engineer, to install the
new pedestrian ramp.
46. The applicant shall install a pedestrian crossing warning sign at the proposed driveway
entrances.
47. All driveway approaches shall meet the City's commercial approach standard and shall be
designed and constructed to meet accessibility requirements.
48. The property owner shall dedicate the necessary right of way dedications and public utility/
public access easements for the project, including along the Eastside Transit Center. The
applicant shall prepare the necessary legal descriptions, grant deeds and plats, and submit
with the building permit application.
49. The westerly most driveway approach on Maria Drive shall be limited to right turns out
only. The necessary signage and pavement markings shall be installed.
50. Stop bars and legends and crosswalks shall be installed at all project intersections. Keep
Clear stenciling shall be placed in Maria Drive at the driveway entrance. All striping shall
be thermoplastic per Caltrans standards.
51. All recommendations within the final traffic report prepared by CHS Consulting Group
shall be implemented as part of the project.
Resolution No. 2019-045 N.C.S. Page 24
52. Final, construction level storm water design calculations shall be provided with the building
permit submittal to demonstrate compliance with E. 12 City of Petaluma post construction
stormwater treatment requirements.
53. The project shall submit preliminary joint trench plans with the encroachment permit set.
The project shall comply with the City's street cut and pavement restoration standards.
54. The project shall comply with the City's water use and landscape efficiency standards and
shall provide the required calculations with the building permit submittal.
55. Provide proposed water and sewer utility connections and service/ meter locations on the
construction drawings. The existing sewer lateral may be re -used if it is deemed by the
City to be in acceptable condition for re -use. The applicant shall provide a video of the
existing sewer lateral for review and approval by City staff. All existing, unused services
and laterals shall be abandoned at the main, per City requirements.
56. Install two bike racks at the location shown on the proposed site plan.
58. An encroachment permit is required for all work within the City right of way. A traffic
control plan, in accordance with MUTCD standards, shall be provided with the application.
Fire Department
59. Prior to the issuance of a building permit, pursuant to the City of Petaluma's Certified
Unified Program Agency (CUPA) regulations regarding projects that intend to store,
transport or generate hazardous waste, an application shall be submitted, appropriate fees
shall be paid, and a CUPA permit shall be secured.
60. Pursuant to the City of Petaluma's Certified Unified Program Agency (CUPA) regulations
regarding projects that intend to store, transport or generate hazardous waste, a Hazardous
Materials Release Response Plan and Inventory shall be submitted on an annual basis.
61. The fire Department standards require 12 -inch address numerals on the street facade of
commercial buildings. Numerals shall be shown on Building Permit plans.
62. The 697sf. kiosk shall be protected with an automatic fire sprinkler system designed and
installed per NFPA 13 for Ordinary Hazard Protection. The canopy over the fuel pumps is
not required to be protected with fire sprinklers per CA Fire Code 903.2. 19. 1, Item 3, as
adopted by the City of Petaluma. The proposed kiosk will require a new combination
service from the eight -inch main in Maria Drive and a new fire hydrant within 50 -feet of
the FDC. The fire hydrant and FDS shall be visible from Fire Department access roads and
accessible via paving.
Police Department
63. The applicant shall install high definition security cameras with a minimum 15 -day storage
capability shall be installed and maintained. Security cameras shall cover and record all
publicly accessible areas throughout the property, as well as the rear and sides of the
structure(s).
64. The Petaluma Police Department encourages the use of down-facing lighting throughout
the property, eliminating dark areas that would normally invite trespassing or loitering.
Resolution No. 2019-045 N.C.S. Page 25
65. Alcohol sales are prohibited. This approval does not authorize the sale of beer, wine, or
other alcoholic beverages from the convenience store.
Resolution No. 2019-045 N.C.S. Page 26