HomeMy WebLinkAboutStaff Report 4.B 05/06/2019L
aw�A Agenda Item #4.B
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DATE: May 6, 2019
TO: Honorable Mayor and Members of the City Council through City Manager'.''
FROM: Eric Danly, City Attorney
Heather Hines, Planning Manager
SUBJECT: Adoption of an Urgency Ordinance Imposing a Moratorium on Approval of
Applications for New Gas Station Uses in the City of Petaluma That Are Not
Already Complete as of the Effective Date of the Ordinance Pursuant to
California Government Code Section 65858 and Other Applicable Laws
RECOMMENDATION
It is recommended that the City Council adopt an urgency ordinance imposing a moratorium on
the approval of applications for new gas station uses in the City of Petaluma that are not already
complete as of the effective date of the ordinance pursuant to California Government Code
Section 65858 and other applicable law.
BACKGROUND
On April 1, 2019, the City Council denied the appeal brought against Planning Commission's
approval under the California Environmental Quality Act and the City's Site Plan and
Architectural Review requirements of the Safeway Fuel Station project located at 335 South
McDowell Boulevard in Petaluma. The Council action upheld the Planning Commission's
approval of the project. In response to the unprecedented community concern about the possible
location of new gas station uses near sensitive receptors like schools and residences, and in view
of the recent holding in MCCorkle Eastside Neighborhood Group v. Cite of St. Helena limiting
approving bodies' ability to review projects' environmental impacts to their authority to mitigate
project impacts, the City Council requested that staff prepare for Council consideration and
possible adoption an urgency ordinance pursuant to Section 65858 of the California Government
Code that would prohibit the approval of applications for new gas station uses in the City.
Accordingly, attached is an urgency ordinance prepared pursuant to the authority in Government
Code section 65858 that would prohibit approval of new gas station applications in the City that
are not already complete as of the effective date of the ordinance.
The attached ordinance would not affect the Safeway Fuel Station Project. However, adoption of
the ordinance would bar approval of new gas station applications that are not yet complete while
the City Council considers potential new regulatory options regarding new gas station
applications. Adoption of new regulatory requirements for new gas station applications, such as
requiring conditional use pen -nits for such applications, would expand the ability of City
approving bodies to conduct environmental review and exercise discretionary approval regarding
new gas station uses. Such new regulations could permit the approving bodies to order the
preparation of an Environmental Impact Report (EIR) regarding future gas station applications,
and to disapprove projects that do not satisfy the City's regulations, whether due to emissions or
other health impacts, traffic, or other considerations within the City's discretion. A 6/7 vote of
the City Council is required to adopt the attached ordinance as an urgency item for an initial
period of 45 days. In accordance with Government Code Section 65858, the ordinance may be
extended for up to an additional ten months and 15 days following a noticed public hearing
within the next 45 days. Prior to the expiration of the initial extension, the ordinance may be
extended a final time for up to an additional 12 months, for a total potential duration of two
years.
Government Code Section 65858 requires that prior to adoption of an interim ordinance, the City
Council must find that there is a current and immediate threat to the public health, safety, or
welfare and that adoption of an interim ordinance would protect the public safety, health, or
welfare. The attached ordinance includes findings of public health, safety and welfare risk
resulting based on the effect of the McCorkle decision on the City's ability to conduct full
environmental review of applications for new gas station uses and based on potential
applications for new gas station uses near sensitive receptors. Ten days prior to the expiration of
the initial interim ordinance or any extension, the City Council is required to issue a written
report describing the measures taken to alleviate the condition that lead to the adoption of the
interim ordinance. Following adoption of an interim ordinance under Section 65858, subsequent
interim ordinances affecting the same property are prohibited unless the subsequent ordinance is
adopted to protect the public safety, health, and welfare from an event, occurrence or set of
circumstances different from those that led to the adoption of the prior interim ordinance. In
other words, once an interim ordinance expires, a new interim ordinance cannot be enacted
regarding the same health, safety and welfare concerns affecting the same property.
DISCUSSION
Currently, fuel station/gas stations are a permitted use in the Cl and C2 zoning districts in the
City. Gas stations are a conditional use in the BP, MU 1 A, and MU 1 B zones. In 2013, during
the adoption process for the updated SmartCode, the Council adopted modifications to the
SmartCode to allow gas stations as a conditional use in the T5 zone within the boundaries of the
Petaluma Specific Plan. Gas stations are a permitted use in the D4 district as outlined in the
SmartCode.
The Implementing Zoning Ordinance (IZO) does not currently contain any specific use criteria
for gas station uses in Petaluma. The definition of a Fueling Station/Gas Station included in
Section 27 of the IZO is "A retail business selling gasoline and/or other motor vehicle fuels, and
related products. A gas station may also include a convenience store, vehicle services, and
restaurant facilities." The definition adopted in Section 9 of the SmartCode is "A retail business
selling gasoline or other motor vehicle fuels, and related products. A gas station may also
include a convenience store, vehicle services, restaurant facility and/or trailer rental where
authorized by the Conditional Use Permit for the gas station."
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At the request of the City Council, staff has brought forward the attached temporary urgency
ordinance under California Government Code Section 65858 that would prohibit the approval of
any new gas station applications in the City not already complete as of the effective date of the
ordinance for a period of 45 days. The interim ordinance could be extended beyond the initial
45 -day period for a total duration of up to two years. Such an ordinance would preserve the
status quo of existing gas stations in the City and provide time for the City to study the potential
impacts that new gas station uses may have on nearby neighborhood and sensitive receptors,
options for regulating gas station uses in the City, and the practical and legal implications of the
various regulatory options.
The City Council's adoption of the urgency ordinance would allow for a period of consideration
and discussion regarding options for potential new legislation regarding new gas station uses
during which new gas station applications would be processed but could not be approved.
Following expiration of the interim ordinance, new gas station applications could be approved,
subject to any new regulatory requirements that have taken effect during the moratorium period.
Depending upon the specific impacts that the City Council may wish to address, legislative
options may include:
• Modification to the IZO and/or SmartCode to prohibit new gas stations uses in all zones;
• Modification to the IZO to make new gas station uses subject to a CUP in all zones where
they are currently permitted as of right;
• Modification to the use tables in the IZO and/or the City's zoning snap changing the
zones in which gas stations are permitted;
• Adoption of specific use criteria for new gas station uses (similar to the approach taken
for Bed and Breakfast Inns and Short -Tenn Vacation Rentals);
• Adoption of specific use criteria for new gas stations uses when in proximity to sensitive
receptors such as residential neighborhoods, schools, parks, etc.;
• Adoption limitations on the size (number of pumps/dispensers or annual fuel throughput)
of new gas station uses; and/or
• Adoption of expanded definitions of gas station uses addressing large gas stations and
small gas stations (number or pumps/dispensers or annual fuel throughput), and
identification of the appropriate entitlement process (e.g., whether a CUP or use criteria
should apply) to address project specific impacts.
Based on direction given by the Council at the May 6, 2019 meeting, staff will research
appropriate legislative options and associated legal and practical issues for the Council's
consideration. It is unlikely that the necessary research and analysis would be completed within
the initial 45 -day moratorium period and would likely necessitate an extension of the urgency
ordinance. However, staff would provide the Council with a status update concurrent with any
future extension request. As noted above, Section 65858 of the Government Code requires that
staff prepare for Council issuance at least 10 days prior to expiration of the interim ordinance a
report on the measures taken to alleviate the conditions that led to adoption of the interim
ordinance.
If the Council enacts an interim ordinance temporarily prohibiting approval of new gas station
applications not already complete as of the effective date of the ordinance, the law requires that
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staff continue to process any pending gas station applications or applications received during the
moratorium period. Interim ordinances under Section 65858 only temporarily suspends project
approvals subject to a moratorium, but not project processing. If the Council adopts an interim
ordinance on new gas station applications, such proposed new uses would not be brought before
the decision -snaking body until such time as the interim ordinance is repealed (presumably upon
new regulation of new gas station uses taking effect), or has expired.
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Adoption of an interim urgency ordinance is not subject to the procedures and public noticing
otherwise required for adoption of a zoning ordinance. This item had been distributed along with
the rest of the May 6 City Council Agenda and posted on the City's website in accordance with
the requirements of the Brown Act and the City's established practice. Any future extension of
the interim ordinance will require public noticing pursuant to Government Code Section 65090,
which requires published notification in the City's official newspaper at least ten days prior to
the hearing.
FINANCIAL IMPACTS
Staff costs associated with preparation of this urgency ordinance are covered under the City's
contract with M -Group under base level services and by the staff budget for the City Attorney's
Office and does not have any additional cost impacts to the General Fund.
ATTACHMENTS
Attachment 1 Draft Urgency Ordinance
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Attachment 1
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PETALUMA
IMPOSING A MORATORIUM ON THE APPROVAL OF APPLICATIONS FOR NEW GAS
STATION USES IN THE CITY OF PETALUMA THAT ARE NOT COMPLETE AS OF THE
EFFECTIVE DATE OF THE ORDINANCE PURSUANT TO CALIFORNIA GOVERNMENT
CODE SECTION 65858 AND OTHER APPLICABLE LAW
WHEREAS, Article X1, Section 5 of the California Constitution provides that it shall be
competent in any city charter to provide that the city governed thereunder may make and enforce all
ordinances and regulations in respect to municipal affairs subject only to restrictions and limitations
provided in their several charters and in respect to other matters they shall be subject to the general laws;
and
WHEREAS, Section 54 of Article VIII of the Petaluma Charter provides that the City, by and
through its council and other officials shall have and may exercise all powers necessary or appropriate to
the municipal corporation and the general welfare of its inhabitants, which are not prohibited by the
constitution and which it would be competent for the charter to set forth particularly or specifically, and
the specification of any particular powers shall not be held to be exclusive or any limitation on the general
grant of powers; and
WHEREAS, California Government Code Section 65858, subdivision (a) provides: that city
legislative bodies may, to protect public safety, health and welfare, adopt as an urgency measure an
interim ordinance prohibiting any uses that may conflict with a contemplated general plan, specific plan,
or zoning proposal that the legislative body is considering or studying or intends to study within a
reasonable time; that adoption of such urgency measures requires a four-fifths vote of the legislative
body; that such measures shall be of no effect 45 days from the date of adoption, and may be extended a
maximum to two times and have a maximum total duration of two years; and
WHEREAS, California Government Code Section 65858, subdivision (c) provides that
legislative bodies may not adopt or extend such interim ordinances unless they contain findings that there
is a current and immediate threat to the public health, safety, or welfare, and that the approval of
additional entitlements would result in that threat to public health, safety, or welfare; and
WHEREAS, California Government Code Section 65858, subdivision (c) further provides that
such interim ordinances that have the effect of denying approvals needed for the development of projects
with a significant component of multifamily housing (as defined in California Government Code Section
65858, subdivisions (g) and (h)) may not be extended except upon written findings adopted by the
legislative body, supporting by substantial evidence on the record, that:
(1) the continued approval of the development of multifamily housing projects would have a
significant, quantifiable, direct, and unavoidable impact, based on objective, identified
written public health or safety standards, policies, or conditions as they existed on the
date that the ordinance is adopted by the legislative body,
(2) the interim ordinance is necessary to mitigate or avoid such impact, and
(3) there is no feasible alternative to satisfactorily mitigate or avoid such impact as well or
better, with a less burdensome or restrictive effect, than the adoption of the proposed
interim ordinance; and
WHEREAS, California Government Code Section 65858, subdivision (d) provides that ten days
prior to the expiration of an interim ordinance or any extension, the legislative body shall issue a written
report describing the measures taken to alleviate the condition which led to the adoption of the ordinance;
and
WHEREAS, residents in the neighborhood in proximity to the proposed Safeway Fuel Station
project at 335 South McDowell Boulevard at the corner of South McDowell Boulevard and Maria Drive
have expressed opposition to the project based on concerns related to air quality, health risks, safety, and
circulation and traffic impacts;
WHEREAS, teachers, administrators, parents, and students and the adjacent McDowell
Elementary School have expressed opposition to the project based on concerns involving potential
impacts associated with air quality, health risk, safety, and circulation impacts; and
WHEREAS, public comments received in opposition to the project express a common concern
with the incompatibility of the proposed gas station with the surrounding land uses and sensitive
receptors, including residential, parks, and schools; and
WHEREAS, the property located at South McDowell Boulevard and Maria Drive is currently
zoned C-2 and new gas station uses are a permitted use in the Zone C-2, subject to approval of Site Plan
and Architectural Review (SPAR); and
WHEREAS, SPAR approval pursuant to Section 24.010 of the City's Implementing Zoning
Ordinance (IZO), Ordinance No. 2300 N.C.S. adopted July 2, 2008, involves consideration of SPAR
factors such as appropriate use of materials, architectural style, siting of structures on property, size,
location and design of signs, and bulk and height of proposed structures, landscaping to approved City
standards, and ingress, egress and internal circulation; and
WHEREAS, currently in the City new gas station uses are permitted in the C 1, C2, and D4
zoning districts subject to SPAR, and are permitted in the BP, MUTA, MUIB, and T5 zones subject to
SPAR and issuance of a Conditional Use Permit; and
WHEREAS, on December 17 and 18, 2018, respectively, the cases of Georgetotivn Preservation
Society v. County of El Doi -ado and McCorkle Eastside Neighborhood Group v. City of St. Helena were
published; and
WHEREAS, although the court in Georgetown held that evidence of aesthetic impacts of the
proposed development in that case was sufficient to trigger the need for an Environmental Impact Report,
the court in McCorkle held that environmental review in that case was limited to the scope of St. Helena's
design review authority, and, specifically, its authority under its zoning regulations to mitigate project
environmental impacts; and
WHEREAS, based on the McCorkle ruling, legal counsel for Safeway argued that the City
Council could not order an Environmental Impact Report based on information in the record concerning
project emissions and health risk impacts that are outside of the scope of the City's discretionary approval
under its SPAR regulations, and
WHEREAS, on the advice of the City Attorney and following the McCorkle ruling, the City
Council denied that appeal regarding the Planning Commission's approval of the Safeway Fuel Station
project, upholding the Planning Commission approval, despite concerns regarding potential health and
other impacts of the project; and
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WHEREAS, prior to the McCorkle decision, it had been the City's consistent practice to treat
applications for SPAR approval as subject to the exercise of discretion of the approving body, up to and
including the authority of the approving body to disapprove the project on SPAR grounds, and to conduct
full CEQA review, up to and including the ordering of an Environmental Impact Report, if warranted; and
WHEREAS, the McCorkle case limits environmental review of development applications to
environmental impacts the approving body has authority to mitigate; and
WHEREAS, the California Supreme Court has denied petitions to depublish or overturn the
McCorkle ruling, which remains in effect and binding on the City and its ability to conduct environmental
review regarding projects such as applications for new gas stations that may be subject to only design
review in specified zones; and
WHEREAS, the City's SPAR regulations do not address emissions or other project health risks
unrelated to aesthetics, siting and internal circulation; and
WHEREAS, City Planning staff has been contacted by a potential applicant for a new gas station
use located at the corner of Industrial Drive and Petaluma Boulevard North, near sensitive receptors
including a school, and where new gas stations uses are permitted as of right and subject only to SPAR
review, posing a threat to the public health, safety and welfare, from environmental and health impacts
that the City may be unable to avoid or mitigate following the McCorkle decision; and
WHEREAS, there is no information in the record supporting that this interim ordinance
regarding new gas station applications in the City of Petaluma that are not complete as of the effective
date of the ordinance may have the effect of denying approvals needed for the development of projects
with a significant component of multifamily housing as defined in the California Government Code
Section 65858, subdivisions (g) and (h); and
WHEREAS, pursuant to Section 15001 of the California Environmental Quality Act (CEQA)
Guidelines, this ordinance is exempt from CEQA based on the following:
(1) This ordinance is not a project within the meaning of Section 15378 of the CEQA Guidelines,
because it has no potential for resulting in physical change in the environment, directly or
ultimately; it prevents changes in the environment related to new gas station use applications
pending consideration of possible amendments to the City's Zoning Code or other land use
regulations;
(2) This ordinance is categorically exempt from CEQA under Section 15308 of the CEQA
Guidelines as a regulatory action taken by the City pursuant to its policy power and in
accordance with Government Code Section 65858 to assure maintenance and protection of
the environment pending the evaluation and possible adoption of contemplated local
legislation, regulation and policies, which local legislation, if adopted, will be subject to
CEQA requirements;
(3) This ordinance is not subject to CEQA under the general rule that CEQA applies only to
projects which have the potential for causing a significant effect on the environment, and for
the reasons set forth in subparagraphs (1) and (2) above, it can be seen with certainty that
there is no possibility that this ordinance will have a significant effect on the environment;
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NOW THEREFORE BE IT ORDAINED by the Council of the City of Petaluma as follows:
Section 1. Recitals Made Findings. The above recitals are hereby declared to be true and correct
and findings of the City Council of the City of Petaluma.
Section 2. Moratorium Imposed. A moratorium is hereby imposed on the approval of applications
for new gas station uses in the City of Petaluma that are not complete as of the effective date of this
ordinance in accordance with the City's powers under Article Xl, Section 5 of the California Constitution,
Article VII, Section 54 of the City Charter and California Government Code Section 65858 and other
applicable law, as follows:
A. Scope
Applications for land use or development entitlements for new gas station uses in the City
of Petaluma not complete as of the effective date of this ordinance may not be approved
during the moratorium period.
B. Statutory Findings and Purpose
This ordinance is declared to be an interim ordinance as defined under California
Government Code Section 65858. This ordinance is deemed necessary for the following
reasons:
The purpose of this ordinance is to protect the public safety, health, and welfare from
a current and immediate threat posed by the issuance of land use or development
entitlements for new gas station uses that could result in negative health, safety or
other impacts on adjacent or nearby existing uses or neighborhoods with which new
gas station uses may not be compatible, absent adequate local regulation addressing
compatibility of new gas station uses with adjacent or nearby uses or neighborhoods.
2. New gas station uses have been and/or may be proposed for construction in the City,
and unless a moratorium is imposed on the issuance of land use or development
entitlements for new gas station uses in the City, such development may result in
negative health, safety or other impacts on adjacent or nearby existing uses or
neighborhoods with which new gas station uses may not be compatible, absent
adequate local regulation addressing compatibility of new gas station uses with
adjacent or nearby existing uses or neighborhoods. This is particularly true regarding
City zoning districts where currently new gas stations are permitted uses (C1, C2, and
D4 zones) and approval of applications for such proposed new uses is subject only to
site plan and architectural review, which review does not take into account such
consideration as project emissions and other health impacts unrelated to aesthetics,
siting and internal circulation.
It is, therefore, necessary to impose a moratorium on issuance of land use or
development entitlements for new gas station uses in the City that are not complete as
of the effective date of this ordinance to provide time to evaluate and adopt
legislation, guidelines and/or policies as required to address negative health, safety or
other impacts of proposed new gas station uses on, adjacent to or nearby existing uses
or neighborhoods.
C. Applicability
This ordinance applies to approval of applications for land use or development
entitlements for new gas station uses in the City that are not complete as of the effective
date of this ordinance. This ordinance has no effect on the processing of applications for
land use or development entitlements for new gas station uses in the City, except that
such applications may not be approved during the moratorium period. Subject to the
moratorium on approval of applications for land use or development entitlements for new
gas station uses, applications for such entitlements will continue to be processed during
the moratorium period in accordance with applicable law.
Section 3. Severabilitv. If any provision of the ordinance or the application thereof to any person
or circumstance is held invalid, the remainder of the ordinance, including the application of such part or
provision to other persons or circumstances shall not be affected thereby and shall continue in full force
and effect. To this end, provisions of this ordinance are severable. The City Council hereby declares that
it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof
irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences,
clauses, or phrases be held unconstitutional, invalid, or unenforceable.
Section 4. Effective Date and Duration. This ordinance shall become effective immediately upon
passage and adoption if passed and adopted by at least four-fifths vote of the City Council and shall be in
effect for 45 days there from unless extended by the City in accordance with Government Code Section
65858.
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