HomeMy WebLinkAboutOrdinance 2724 N.C.S. 03/16/20201
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EFFECTIVE DATE
OF ORDINANCE
March 16, 2020
Introduced by
Kathy Miller
ORDINANCE NO. 2724 N.C.S.
Seconded by
D'Lynda Fischer
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PETALUMA EXTENDING A
MORATORIUM ON THE APPROVAL OF APPLICATIONS FOR NEW GAS STATION USES IN THE CITY OF
PETALUMA THAT WERE NOT COMPLETE AS OF MARCH 6, 2019 PURSUANT TO CALIFORNIA
GOVERNMENT CODE SECTION 65858 AND OTHER APPLICABLE LAW
WHEREAS, Article XI, 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:
Ordinance No. 2724 N.C.S.
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(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 C1, C2, and D4
zoning districts subject to SPAR, and are permitted in the BP, MU 1 A, MU 1 B, 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 Georgetown
Preservation Society v. County of EI Dorado 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
Ordinance No. 2724 N.C.S.
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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
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 de -publish 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 an interim ordinance
regarding new gas station applications in the City of Petaluma that are not complete as of May 6,
2019 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, the urgency ordinance was determined 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
Ordinance No. 2724 N.C.S.
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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;
WHEREAS, on May 6, 2019 the City Council adopted Urgency Ordinance 2681 imposing a
moratorium on approval of applications for new gas station uses that are not complete as of the
effective date of the ordinance; and
WHEREAS, consistent with California Government Code Section 65858 interim ordinances are
effective for 45 days unless extended by the City in accordance with Government Code Section
65858; and
WHEREAS, the City Council adopted Ordinance 2688 on June 3, 2019, extending the
moratorium on approval of applications for new gas station uses that are not complete as of May 6,
2019, established by Urgency Ordinance 2681, for a period of 10 months, 15 days.
WHEREAS, Government Code Section 65858, subsection (a), provides for a second extension
of an urgency ordinance for a period of one year with approval by the City and noticing of a public
hearing consistent with Government Code Section 65090; and
WHEREAS, consistent with Government Code Section 65090, notification of a March 16, 2020
public hearing on a potential final extension of the moratorium on approval of applications for new
gas station uses was published in the Argus Courier on March 5, 2020.
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. Time Extension. This ordinance hereby extends the moratorium imposed on approval
of applications for new gas station uses not complete as of May 6, 2019 pursuant to Ordinance 2681,
and extended for an addition ten months and fifteen days pursuant to Ordinance 2688 on June 3,
2019, for an additional period of one year in accordance with California Government Code Section
65858 and other applicable law.
Section 3. Moratorium Extended. The moratorium initially imposed by the adoption of
Ordinance 2681 and extended pursuant to Ordinance 2688 shall remain in effect for an additional
year expiring on March 16, 2021 and prohibit the approval of applications for new gas station uses in
the City of Petaluma that were not complete as of May 6, 2019, the initial effective date of
Ordinance 2681, in accordance with the City's powers under Article XI, 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 May 6, 2019 may not be approved during the
moratorium period.
Ordinance No. 2724 N.C.S.
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Statutory Findings and Purpose
This ordinance is an interim ordinance as defined in California Government Code
Section 65858. This ordinance is deemed necessary to protect the health, safety and
welfare of Petaluma residents and visitors 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 (C 1, 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.
3. The extension of a moratorium on issuance of land use or development
entitlements for applications for new gas station uses in the City that were not
complete as of May 6, 2019 in order to provide time to evaluate and adopt
legislation, guidelines and/or policies is 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
The moratorium extended pursuant to this ordinance applies to approval of
applications for land use or development entitlements for new gas station uses in the
City that were not complete as of May 6, 2019. The 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 4. Severability. 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.
Ordinance No. 2724 N.C.S.
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Section 5. Effective Date and Duration. This ordinance shall become effective on April 18, 2020
following passage and adoption if passed and adopted by at least four-fifths vote of the City
Council and shall be in effect for one year therefrom, expiring on March 16, 2021 in accordance
with Government Code Section 65858.
INTRODUCED and ordered posted, and ADOPTED this 16th day of March 2020, by the following vote:
Ayes: Mayor Barrett, Vice Mayor Fischer, Healy, Kearney, King, McDonnell, Miller
Noes: None
Abstain: None
Absent: None
ATTEST:
Claire Cooper, CMC, City CI
Teresa Barrett, Mayor
APPROVED ASTO FORM:
Eric Danly, City,/Attorney
Ordinance No. 2724 N.C.S.
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