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Home My WebLink AboutStaff Report 5.A 04/18/2011 Late DocumentTr.om:D;iepenbrock Harrison AdM diepenb:r-ockd harrison i A PROFESSIONAL CORPORATION 1 i I April 18, 2011 AN 9164464535 JOHN t - jW DIEPENBRO(EC NAM L DIEPEIBROQ KEITH W. Md111IOE BMW J: ELKIN EILEEN N DIEPEOW NARK D. BARRMON GENE 1. CNEEVEA ANDREA L MAEAAM JOEL PATRICK EBB JON D. RURIN JEFFREY IL DORSO JENNIFER L DAUER SEAN L RUNGERFORD CHRIS A MCCANDLESS DAVID A. DIEPENBROCR DAVID P. TEPIBIADOR' Mayor David Glass and City Council City of Petaluma 11 English Street Petaluma, CA 94952 Re: Deer Creek Village 1 Draft Environmental Impact Report Continuance of April 18, 2011 Public Hearing Honorable Mayor Glass: #112 P JEFFREY L AMERSON DAN M. NLYERBOAAD JOFEAYMAN L MARE MAR[ L PEIEINON ANYHONS j. CORM BRADLEY B. JOENMON 1_ JAMES DIEPERBROC[ (1929- 2007) Please be advised that this office. represents Merlone Geier Management with respect to the above referenced project. We write to formally express Merlone Geiers objections to the: continuance of the April 18, 2011 public hearing on the Deer Creek Village Draft Environmental Impact Report ( "Draft 'EIR "). Consistent with the requirements of the California Environmental Quality Act (" CEQA "), the City published a Notice of Completion /Availability of the project's Draft EIR, which expressly provided for a 45 -day public comment period terminating on April 18, 2011. Moreover, the Notice of Completion /Availability further provided for a City Council hearing on April 18, 2011. to solicit additional public comment on the Draft EIR prior `to the formal close of the 45 -day comment period. We °are now advised that the City intends to continue the above referenced City Council hearing to , a special meeting on April 25, 2011. Although no action to extend the 45-day comment period has been taken, we are further advised that the City also intends to continue to. accept public comments on the Draft EIR at this hearing even though any such comments will be provided outside the formally noticed 45 -day comment period. 400 CAPITOL MALI SUITE 1800 SACRAMENTO, CA 95814 WWW.DIEPENBFLOCK.COM 916492.5000 FAR:916 446.4535 1 {0031711.6;2} From`Diewbrock Harrison 91'64464535 04/18/2011 10:39 #112 P.0031004 DI EPENBROMHARRISON Honorable Mayor Glass City & Petaluma April 18, 2011 Page,.2 Merlone Geier has the following objections to the City's proposed actions: First, we have been advised that the continuance is in response to perceived conflicts with holding .a public meeting during Passover. On its face, this would not be an objectionable action on the part of the City as' it is certainly within the City's prerogative to generally recognize religious holidays. This, however, is not the case and pit is clear that the Deer Creek Village project has been' prejudicially singled out. A review of the City Council's April 18, 2011 Agenda :Report (and the subsequently published :Revision #1) demonstrates that the Deer Creek Village item is the only agenda item being continued and that the City Council is otherwise intending to proceed with 'its normally scheduled public meeting in all other respects. Given this, there appears to be no basis, legal or otherwise, to support the City's continuance of the Deer Creek Village 'item. Indeed, given the City's clear intention to otherwise proceed with its April 18 2011 agenda, any City action to continue the Deer Creek Village matter at this point appears legally suspect and, respectfully, should be avoided. Second should the City continue to accept comments on the Draft EIR :following close of the 45 -day comment period, it wilhfurther prejudice the project. Although CEQA encourages robust public - participation, it also recognizes fundamental procedural due process rights and the prejudicial effect of procedural non- compliance. In this regard, the Public Resources Code provides, in relevant part, that: Nothing in [CEQA] requires the lead agency to respond to comments not received within the comment periods specified in this division, to reopen comment periods, onto delay acting on a negative declaration or environmental iimpact report. (Cal.! Pub. Resources Code §21092.5(c).) In the present case,. the City has publicly noticed April 18, 2011 as the close of the public comment period on the Draft El R. Consistent with the requirements of'CEQA, we request that-the City honor the 45-day comment period it originally established for review of the project's environmental document and not formally accept public comments provided after April 18, 2011. i ' Finally, we must reiterate that the City continues to be in violation of the CEQA for its'failure to act upon the Deer Creek Village'EIR within the mandated one -year statutory timeframe. (Cal. Pub. Resources Code §21151.5; 14 CCR §15108.) As the {00317116;2} FromAiep,enbrock Harrison 9164464535 04/18/2011 10:39 #112 P.004/004 DIEPENBROCK HARRISON Honorable Mayor Glass City of Petaluma April 1;8, 2011 Page; 3 City s aware, the Deer Creek Village project application was deemed complete on November 12, 2,009 and, as such, the City was required to take action to certify the project's Final EIR by no later than November 1.2, 2010. Although Merlone Geier has continued to cooperate with the City, it has now been seven months since the City was legally obligated to take action on this project. Thank you, in advance, for your consideration. Very truly yours, DIEPENBROCK HARRISON A Professional Corporation i I, 7By: J:i'° P. em ador DPT /Ill cc: , Mike Grehl, Merlone Geier Management Leslie Thomsen, Esq. {00319116;2} from - .D;iepenbrock Harrison 9164464535 DIEPENBROCK HARRISON A PROFESSIONAL CORPORATION 04/18/2011 10:38 #112P.0011004 400 Capitol Mall, Suite 1800 Sacramento, CA 95814 Telephone No.: (916) 492 -5000 Facsimile No.: (916) 446.4535 FACSIMILE TRANSMITTAL COVER SHEET THE INFORMATION CONTAINED IN THIS FACSIMILE IS CONFIDENTIAL AND MAY ALSO CONTAIN PRIVILEGED ATTORNEY - CLIENT INFORMATION OR WORK PRODUCT. THE INFORMATION IS INTENDED:ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. 1F YOU ARE NOT THE INTENDED`RECIPIENT; ANY USE, DISSEMINATION OR DISTRIBUTION OF THIS COMMUNICATION IS PROHIBITED. IF YOU HAVE RECEIVED THE FACSIMILE IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY'TELEPJ40NE, AND RETURN THE ORIGINAL MESSAGE TO DIEPENBROCK HARRISON. Date: April 18, 2011 Our File: 0792 -002 Please Deliver the f=ollowing Page(s) Immediately To: Name:; Mayor David Glass &C Council Company: City of Petaluma Facsimile No.: 707 7784554 Telephone No.: 707 778 -4360 FROM: ' David P. Temblador PAGES; (including cover): 4 MESSAGE: Please see attached. A hard copy will be mailed out via .US Postal Service today, Thank you. cc: Mike Grehl, Merlone Geier Management Leslie Thomsen, Esq. (00317380;,1) IF YOU DO NOT RECEIVE ALL PAGES OR HAVE ANY PROBLEMS WITH RECEIVING, PLEASE CALL (916)492 -5000.