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33- Development Services
CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION From: Valerie C. Ross, Director Subject: An appeal of the Planning Commission's approval of Conditional Use Permit No. 07-15, a request to expand an existing 129,794 square foot retail Dept: Development Services commercial building by 41,644 square feet to a total of 171,438 square feet on approximately 15.13 acres Date: December 7, 2009 located on the north side of Highland Avenue at the intersection with Boulder Avenue, at 4210 East Highland Avenue in the CG-1, Commercial General land use district(Appeal No. 09-03) MCC Date: January 4, 2010 Synopsis of Previous Council Action: None Recommended Motion: That the hearing be closed and that the Mayor and Common Council deny the appeal and uphold the Planning Commission's approval of Conditional Use Permit No. 07-15 based on the Findings of Fact in the Planning Commission Staff Report and Resolution. r&� cJ �� Valerie C. Ross Contact person: Aron Liang, Senior Planner Phone: 3332 Supporting data attached: Staff Report Ward: 4 FUNDING REQUIREMENTS: Amount: N/A Source: (Acct. No.) Acct. Description: Finance: Council Notes: a-/ was, 33 3 -/-/d A ,23, -/ r-10 a y Agenda Item No. 3- 3-/o 0 a7 71to CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION STAFF REPORT Subject: An appeal of the Planning Commission's approval of Conditional Use Permit No. 07-15, a request to expand an existing 129,794 square foot retail commercial building by 41,644 square feet to a total of 171,438 square feet on approximately 15.13 acres located on the north side of Highland Avenue at the intersection with Boulder Avenue, at 4210 East Highland Avenue in the CG-1, Commercial General land use district(Exhibit 1). Applicant/Owner: Appellant: Wal-Mart Real Estate Business Trust Citizens for Responsible Equitable c/o: Jennifer Guenther Environmental Development(CREED) Gresham Savage Nolan&Tilden, PC c/o: Cory J. Briggs, Briggs Law Corporation 550 East Hospitality Lane, Suite 300 99 East°C" Street, Suite 111 San Bernardino, CA 92408-4205 Upland, CA 91786 (909) 890-4499 (909)949-7115 Background: The subject of the appeal (Exhibit 2) is the November 18, 2009 Planning Commission approval of Conditional Use Permit (CUP)No. 07-15, to expand the existing Walmart store located in the Highland Avenue Plaza shopping center. The project would eliminate the existing Tire & Lube Express, reconstruct and expand the existing garden center, expand the existing general merchandise store to include a full line of groceries and expand store hours to 24 hours daily. The Planning Commission Staff Report(Exhibit 3)contains a detailed project description. The first motion made to approve the project failed on a vote of 3 to 4, with Commissioners Eble, Rawls, and Sauerbrun voting in favor and Commissioners Coute, Heasley, Mufloz, and Mulvihill voting against the motion. Commissioner Durr left the dais before the project was presented, stating that he would abstain because he is employed by a competitor of Walmart. Commissioner Longville was absent. A second motion to deny the project passed, 4 to 3, with the same Commissioners voting for and against the project. The traffic impacts of the project, the potential impacts of a 24-hour operation on public safety and the employment practices of Walmart were stated as concerns by those who voted against the project. Chairman Sauerbrun called for a brief recess for staff to draft findings for denial for consideration and further discussion by the Planning Commission. During the break, it was brought to the Chairman's attention that there were speakers who were not called on during the public hearing. The meeting was called back to order,the public hearing was re-opened, and several speakers addressed the Planning Commission, including Laura Barbosa, the current Walmart store manager and Jennifer Guenther, the applicant's representative. Ms. Barbosa and Ms. Guenther responded to the concerns stated by Planning Commission members with details of security measures planned for the project and a statement that 70% of the estimated 175 new jobs to be provided by the project would be full-time jobs, meaning that the employees would work at least 34 hours per week and would receive full-time benefits. It was also noted that traffic impacts of the project amount to only 3% of projected traffic at the impacted intersections, and the project is required to mitigate its impact by paying its fair share of the cost of improvements. The traffic impacts of the project are identified as significant only because of the uncertainty of the timing of improvements. 2 The Planning Commission was satisfied with the security measures identified in the project Environmental Impact Report (EIR) as adequate measures for typical operating hours, but there were still concerns about 24-hour operations. The applicant then stated that a condition of approval restricting the project to the current normal operating hours of 6:00 a.m. to 11:00 p.m. would be acceptable. Commissioner Coute, who had initially voted against the project, made a motion to approve the project with an additional condition of approval specifying the security measures detailed in the EIR and with a modified condition of approval to maintain the current operating hours. The motion carried with Commissioners Coute, Eble, Heasley, Rawls and Sauerbrun voting in favor, and Commissioners Muftoz and Mulvihill voting no. The Planning Commission certified the EIR for the Highland Avenue Walmart Expansion project; adopted the Mitigation Monitoring and Reporting Plan; adopted a Statement of Facts, Findings and Overriding Considerations; and approved CUP No. 07-15 as recommended, with modifications to the conditions of approval as noted. A notice of the January 4, 2010 hearing was mailed to surrounding property owners on December 21, 2009. Notice was also published in the San Bernardino County Sun newspaper on December 25, 2009, 10 days in advance of the public hearing. Appeal: Appeal Application No. 09-03 (Exhibit 2) states that the approval of CUP No. 07-15 violated the California Environmental Quality Act (CEQA) because the EIR is inadequate. No specific contents of the EIR are cited and no specific reasoning is offered. Conclusion: The appeal in Exhibit 2 does not contain adequate information to support the request to overturn the decision of the Planning Commission. Financial Impact: No cost to the City. Recommended Motion: That the hearing be closed and that the Mayor and Common Council deny the appeal and uphold the Planning Commission's approval of Conditional Use Permit No. 07-15, based on the Findings of Fact in the Planning Commission Staff Report and Resolution. Exhibits: 1. Location Map 2. Appeal Application No. 09-03 3. Statement of Action, Staff Report and Resolution of the Planning Commission 3 EXHIBIT 1 CITY OF SAN BERNARDINO PLANNING DIVISION LOCATION MAP HEARING DATE: 01/04/10 PROJECT: Conditional Use Permit No. 07-15 NORTH +� R E W MW Y Rs Q Q�0 Project Site 0� 0 L� I Copyright -� EXHIBIT 2 CITY OF SAN BERNARDINO Development Services Department, Planning Division t `-! 300 North"D"Street, 3`d Floor San Bernardino, CA 92418 Sao Rerllar IIIU Phone (909) 384-5057 • Fax (909) 384-5080 Web address: www.sbcity.org 41 UARIGIML APPLICATION FOR APPEAL A 17 1 -� APPEAL FROM A DECISION OF THE (check one) ❑ Development Services Director ❑ Development/Environmental Review Committee M Planning Commission Case number(s): Conditional Use Permit No. 07-15/Planning Commission Agenda November 18, 2009 Project address: North side of Highland Avenue at intersection with Boulder Avenue Appellant's name: Citizens for Responsible Equitable Environmental Development Ch `ory 5 Dr gp ,& 0.5 .0.w Core T— Appellant's address: 99 East"C"Street,Suite 111 Upland,CA 91786 Appellant's phone: 909-949-7115 Appellant's e-mail address: cory@briggslawmrp.com Contact person's name: Cory J. Briggs, Briggs Law Corporation Contact person's address: 99 East"C"Street, Suite 111, Upland, CA 91786 Contact person's phone: 909-949-7115 Contact person's e-mail address: cory@wggslawwrp.wM Pursuant to Section 19.52.100 of the Development Code, an appeal must be filed on a City application form within 15 days following the final date of action, accompanied by the appropriate appeal filing fee. Appeals are normally scheduled for a determination by the Planning Commission or Mayor and Common Council within 30 days of the filing date of the appeal. You will be notified, in writing, of the specific date and time of the appeal hearing. OFFICE USE ONLY Date appeal filed: I Z/0 L� Z G G 9 Do Received by: lzo: — -j CIIYOFDAN 137RIJARfIiNO DEVELOPMENT SERV!C-1 eE= ARItM' vr 11104 REQUIRED INFORMATION FOR AN APPEAL Specific action being appealed and the date of that action: Please see accompanying letter Specific grounds for the appeal: Please see accompanying letter Action sought: Please see accompanying letter Additional information: Please see accompanying letter r Signature of appellant: IT4t jEj2iG_ Date: 12/02109 2 11/04 BRIGGS LAW CORPORATION San Diego Office: Inland Empire Office: 5663 Balboa Avenue,No. 376 99 East"C"Street,Suite 111 San Diego, CA 92111-1705 Upland, CA 91786 Telephone:858-495-9082 Telephone: 909-949-7115 Facsimile:858-495-9138 Facsimile.909-949-7111 Please respond to:Inland Empire Ogee BLC File(s):1366.44 02 December 2009 Honorable Mayor and City Council City of San Bernardino 300 North "D" Street, 3' Floor San Bernardino, CA 92418 Re: November 18, 2009 Planning Commission Meeting Agenda Item 2• Conditional Use Permit No. 07-15 Dear Honorable Mayor and City Council: On behalf of Citizens for Responsible Equitable Environmental Development,I am writing to appeal the above-identified matter by the Planning Commission at its meeting on November 18, 2009. The approval violated the California Environmental Quality Act("CEQA")for the following reasons: (i) the EIR fails to adequately describe the project (including its scope) and is based on an inadequate description of the underlying project's design; (ii) the EIR fails to identify and analyze all the potentially significant environmental impacts of the underlying project; (iii) the mitigation measures fail to eliminate or avoid all potentially significant impacts;(iv)the EIR is not supported with substantial evidence;and(v)the findings are not supported by substantial evidence. My client reserves the right to assert other grounds in support of the appeal as more information is obtained. Please note that this appeal is being made entirely under CEQA. CEQA does not authorize an appeal fee and entitles the public to appeal to the elected decision-making body as a matter of right. Thank you for giving this matter the attention it deserves. Sincerely, BRIGGS LAW CORPORATION tnl 4- 1l Cory J. Briggs Attorney for Appellant Citizens for Responsible Equitable Environmental Development 99 East"C" Street, Suite 111, Upland, CA 91786 909-949-7115 CITY OF SAN BERNARDINO EXHIBIT 3 OSTATEMENT OF OFFICIAL PLANNING COMMISSION ACTION PROJECT Number: Conditional Use Permit No. 07-15 Owner/Applicant: Wal-Mart Stores Description: A request to expand an existing 129,794 square foot retail commercial building by 41,644 square feet to a total of 171,438 square feet on approximately 15.13 acres located on the north side of Highland Avenue at the intersection with Boulder Avenue, at 4210 East Highland Avenue in the CG-1, Commercial General land use district. ACTION: APPROVED Meeting Date: November 18, 2009 The Planning Commission independently reviewed, analyzed and exercised independent judgment in its consideration of the Environmental Impact Report and in making its determination and the Planning Commission adopted a Resolution to: 1. Certify the Environmental Impact Report for the Highland Avenue Wal-Mart Expansion Project; 2. Adopt the Mitigation Monitoring and Reporting Plan (MMRP); 1 Adopt the Facts, Findings, and Statement of Overriding Considerations; and 4. Approve Conditional Use Permit No. 07-15 based on the Findings of Fact contained in the Staff Report and subject to the Conditions of Approval (Attachment C), as revised and Standard Requirements(Attachment D). VOTE Ayes: Conte, Eble, Heasley, Rawls and Sauerbrun Nays: Mulvihill and Munoz Abstain: Durr Absent: Longville The decision of the Planning Commission is final unless a written appeal is filed, with the appropriate fee, within 15 days of the Planning Commission action, pursuant to Section 19.52.100 of the Municipal (Development)Code. I hereby certify that this Statement of Official Action accurately reflects the final determination of the Planning Commission of the City of San Bernardino. Terri Rahhal, Deputy Director/City Planner Date cc: Case File, Department File, Plan Check, and Public Works/Engineering PLANNING COMMISSION STAFF REPORT CITY OF SAN BERNARDINO PLANNING DIVISION CASE: Conditional Use Permit No. 07-15 AGENDAITEM: 2 HEARING DATE: October 28, 2009 WARD: 4 OWNER/APPLICANT: Wal-Mart Real Estate Business Trust C/O: J. Kell Collier 2001 SE 10 Street Bentonville, AR 72716-0550 479.273.8015 REQUEST/LOCATION: A request to expand an existing 129,794 square foot retail commercial building by 41,644 square feet to a total of 171,438 square feet on approximately 15.13 acres located on the north side of Highland Avenue at the intersection with Boulder Avenue, at 4210 East Highland Avenue in the CG-1, Commercial General land use district. CONSTRAINTS/OVERLAYS: High Wind, Fire and Geological Hazards ENVIRONMENTAL FINDINGS: ❑ Exempt from CEQA ❑ No Significant Effect ❑ Mitigation Measures and Mitigation Monitoring/Reporting Program 0 Environmental Impact Report (SCH No. 2007121072) Mitigation Measures, Mitigation Monitoring Plan and Facts, Findings and Statement of Overriding Considerations STAFF RECOMMENDATION: a Approval a Conditions ❑ Denial ❑ Continuance to: CUP No. 07-15 October 18.2009 Page 2 PROJECT DESCRIPTION Conditional Use Permit (CUP) No. 07-15 is a request under the authority of Development Code Section 19.06.030, Table 06.01 to expand an existing 129,794-square foot commercial/retail building by 41,644 square feet to 171,438 square feet on approximately 15.13 acres located at the northwest comer of Highland Avenue and Frontage Road, at 4210 East Highland Avenue in the CG-1, Commercial General land use district(Attachments A& B). The project site consists of 4 parcels with a combined area of approximately 15.13 acres. The project site contains an existing Wal-Mart store of approximately 129,794 square feet, which includes 124,812 square feet of interior uses (general merchandise/ancillary/stockroom uses) and 4,982 square feet of exterior uses (garden center),that was constructed in 1992. The applicant proposes to expand the existing Wal-Mart store by 41,644 square feet. The proposed expansion would occur to the east, west and south of the existing building. Expansion to the east would include demolition of existing structures including a 5,170 square foot Tire & Lube Express, a 4,982 square foot garden center, a two-bay loading dock and a parking lot to accommodate a 41,644 square foot expansion with parking, landscaping and a truck turn-around area. Expansion to the west would include removal of a landscaped area to construct a parking lot, a driveway for truck deliveries and a two-bay loading dock. Expansion to the south would include adding a new store front, store entrances and ADA access upgrades. The expansion would increase the existing Wal-Mart store by 32 percent, from 129,794 square feet to 171,438 square feet. Below is a summary of the proposed floor area expansion: Store Component Existin Sg tore Proposed Store General Merchandise 94,224 sq.ft. 98,054 sq.ft. Grocery n/a 29,525 sq.ft. Grocery Support n/a 6,866 sq.ft. Ancillary 10,910 sq.ft. 9,685 sq.ft. Stockroom Receiving 124,812 sq.ft. 161,011 sq.ft. Garden center 4,982 sq.ft. 10,427 sg.ft. Total: 129,794 sq.ft. 171,438 sq.ft. The existing Wal-Mart parking lot currently provides 732 parking stalls. The proposed expansion would add 22 parking stalls to the project site, increasing the total to 754 stalls. The proposed expansion would be completed in 3 phases with Phase 1 expanding to the west, Phase 2 expanding to the east and Phase 3 expanding to the south. All construction areas would be fenced with a 6-foot temporary chain-link fence. Access to the project site would remain open at all times to provide convenient access for customers (Attachment B). The hours of operation would be 24 hours, seven days per week. SETTING/SITE CHARACTERISTICS The project site is located within the Highland Avenue Plaza shopping center, which is located at the northeastern end of the San Bernardino city limits, at the intersection of Highland and Boulder Avenues. The project site contains an existing Wal-Mart store,which occupies the CUP No. 07-15 October 28,2009 Page 3 eastern portion of the shopping center. The project site is generally bounded by the Highland Avenue Plaza to the west in the CG-1, Commercial General land use district, the Mountain Shadows Mobile Home Community to the north in the RU, Residential Urban land use district, North Frontage Road to the east and Boulder Avenue to the south in the City of Highland. CALIFORNIA ENVIRONMENTAL OUALITY ACT(CEOA) Michael Brandman Associates was retained by the project applicant to prepare environmental documents for the proposed project, under the direction of City staff. On December 6, 2007, the Development/Environmental Review Committee (D/ERC) approved release of a Notice of Preparation (NOP) of an Environmental Impact Report (EIR) for public review from December 12, 2007 through January 11, 2008. During the NOP review period, a scoping meeting was held on January 9, 2008. Six comments were received from responsible agencies in response to the NOP. The comments have been noted and addressed in the EIR. Upon completion of the Draft. EIR the Notice of Completion (NOC) was sent to the Governor's Office of Planning and Research State Clearinghouse and circulated for public review from March 19, 2009, to May 4, 2009. The City received comments from Department of Toxic Substances Control, California Native American Heritage Commission, City of Highland, San Bernardino Valley Municipal Water District and San Manuel Band of Mission Indians. Complete responses have been provided in the Final EIR. The Final EIR (EIR) is comprised of the Draft EIR and appendices, comments and responses, textual revisions to the Draft EIR and the Mitigation Monitoring and Reporting Plan (MM/RP). The EIR identifies the following unavoidable significant environmental impacts: Noise: The EIR concludes that implementation of the proposed project would result in significant construction noise impacts on nearby residences. Construction noise mitigation is proposed that would require the project applicant to implement noise reduction measures and practices during construction, including limited hours of construction from 7:00 a.m. to 7:00 p.m., Monday through Saturday. However, even with mitigation, construction noise impacts will remain significant and unavoidable. Transportation: Implementation of the proposed project would create significant near-term intersection operational impacts and significant long-term intersection operational impacts. Intersections at Highland and Boulder Avenues, Boulder Avenue and Pacific Street and Boulder Avenue and Baseline Street are forecast to operate at unacceptable levels. Although the project applicant will be required to contribute fair share contributions toward installation of traffic signals and additional lanes that would mitigate traffic impacts, there are no approved funding sources to construct/install all required improvements. The near-term and long-term traffic impacts will remain significant and unavoidable. CUP No. 07-15 October 18,2009 Page 4 BACKGROUND On October 29, 1991, the Planning Commission approved Conditional Use Permit No. 91-26 to construct a shopping center with 310,283 square feet of retail space and four restaurants totaling 18,000 square feet, Variance No. 91-16 to allow wall signs for major tenants to exceed code requirements and Development Agreement No. 91-02 to govem the development of the shopping center. The existing Wal-Mart store construction within the Highland Avenue Plaza shopping center was completed in 1992. The Development/Environmental Review Committee (D/ERC) initially reviewed the proposed Wal-Mart expansion project on May 7, 2007. The item was continued for preparation of environmental documents. On December 6, 2007, the D/ERC approved release a Notice of Preparation (NOP) of an Environmental Impact Report (EIR) and continued the item for public review. On March 12, 2009, the D/ERC approved release the Draft EIR for public review and on October 8, 2009, the D/ERC approved release the Final EIR and moved the item to Planning Commission for consideration. ANALYSIS The project applicant proposes to expand an existing Wal-Mart store located in the Highland Avenue Plaza shopping center. The proposed expansion would involve demolition of existing structures, including the Tire& Lube Express, an outdoor garden center, a two-bay loading dock, a parking lot, and a landscaped area in order to construct a 41,644 square foot commercial/retail addition. The proposed expansion plan is consistent and compatible with the original construction and development standards of the CG-1 land use district. The proposed project will accommodate a full line.of groceries in addition to the current general merchandise and a McDonald's inside the store. The proposed project will provide employment opportunities and expanded shopping convenience for local residents. The hours of operation are expected to be 24 hours, 7 days per week. The following site design analysis illustrates the project compliance with Development Code regulations, standards and guidelines. Access There are five entrances to the project site. The main entrance is located on Highland Avenue at Boulder Avenue (signalized full access). The remaining entrances are on Highland Avenue (one unsignalized left-in, right-in, right-out access & one unsignalized right-in, right-out access) and Piedmont Drive (two unsignalized fiill access entries). All existing access points are proposed to remain unchanged,to maintain convenient access to the project site. Architecture The proposed expansion has been designed to complement the existing shopping center, in compliance with architectural design guidelines pursuant to Development Code Section 19.06(G)(9). The design elements feature an accent wainscot, trellises, projections and columns. The proposed finish materials and colors would enhance the existing shopping center as well as the existing Wal-Mart store. CUP No. 07-15 October 18,1009 Page 5 TABLE A—Development Code/General Plan Conformance CATEGORY PROPOSAL DEVELOPMENT CODE GENERAL PLAN Permitted Use Commercial/Retail Building Permitted subject to Consistent Conditional Use Permit Height 25 feet 30 feet/2 stories max. N/A Setbacks - Front 10 feet 10 feet N/A - Side 35 feet(minimum) 0 feet(*) N/A - Rear 20 feet(minimum) 0 feet(*) N/A - Side Street N/A 10 feet N/A Landscaping 23.5%(83,940 sq.ft.) 15% N/A Lot Coverage 25.9% 50% max.) N/A Parking - Standard 754 spaces 673 spaces(min.) N/A - Handicap 19 spaces 15 spaces (*) Except if adjacent to a residential land use district, the minimum setback shall be 10 feet. FINDINGS AND ANALYSIS 1. The proposed use is conditionally permitted within, and would not impair the integrity and character of the subject land use district, and complies with all of the applicable provisions of the Development Code. The proposed expansion of a general merchandise store with indoor concessions is permitted subject to a Conditional Use Permit in the CG-1, Commercial General land use district. The proposed project design is compatible with the existing commercial buildings in the Highland Avenue Plaza shopping center. The proposed project complies with development standards of the CG-1 district, as stated in Section 19.06.030, Table 06.02 of the Development Code and as summarized in Table A of the staff report. Therefore, the proposal would not impair the integrity and character of the CG-1, Commercial General land use district. 2. The proposed use is consistent with the General Plan. The proposed expansion of an existing general merchandise store with indoor concessions is consistent with the purpose of the CG-1 land use district, as stated in Table LU-2 in the Land Use Element of the General Plan, which describes the purpose of the CG-1 land use district as providing a variety of local and regional serving retail, personal service and related commercial uses. The proposed project is consistent with numerous General Plan policies discussed in detail in Table 4.7-2 of the Draft Environmental Impact Report for the Highland Avenue Walmart Expansion Project. The following are key General Plan policies implemented by the proposed project: CUP No. 07-15 October 28,2009 Page 6 Economic Development Policy 4.1.1 — Proactively seek out and retain businesses that create jobs and generate sales tax revenue. Economic Development Goal 4.5 — Identify and attract new employment types/land uses that complement the existing employment clusters and foster long-term economic growth. Economic Development Policy 4.5.2 — Maintain and enhance commercial regional cores and economically sound community-serving commercial concentrations by attracting new regional outlets, maintaining the existing regional retail base, and stabilizing the future regional retail base. Land Use Policy 2.2.1 — Ensure compatibility between land uses and quality design through adherence to the standards and regulations in the Development Code and policies and guidelines in the Community Design Element. 3. The approval of the Conditional Use Permit for the proposed use is in compliance with the requirements of the California Environmental Quality Act (CEQA) and Section 19.20.030(6) of the Development Code. An Environmental Impact Report (EIR) (SCH No. 2007121072) was prepared to analyze all potential impacts related to approval of the Conditional Use Permit in compliance with CEQA requirements and Section 19.20.030 (6) of the Development Code. ' Mitigation measures formulated to reduce potential impacts on aesthetic resources, air quality, biological resources, geologic hazards, hazardous materials, hydrology and water quality, noise, public services and utilities, and transportation/traffic are recommended as conditions of approval of the project, to be implemented through the proposed Mitigation Monitoring and Reporting Plan. Findings of Fact and a Statement of Overriding Considerations are proposed for adoption also in accordance with CEQA. 4. There will be potentially significant negative impacts upon environmental quality and natural resources that could not be properly mitigated and monitored. The EIR identifies significant environmental impacts of the proposed project, relating to construction noise and transportation/traffic that cannot be mitigated to less than significant levels. The Planning Commission may determine, in accordance with CEQA, that the economic, social, and other benefits of the project outweigh the unavoidable adverse environmental impacts, and it may therefore approve the project despite the significant and unavoidable environmental impacts. A Statement of Facts, Findings and Overriding Considerations is proposed for the Planning Commission to consider for adoption in its review of the project. The proposed overriding considerations include economic growth and employment opportunities, improved convenience in the provision of additional and complementary goods & services in an existing shopping center and additional sales tax and property tax revenues to be generated by the project. CUP No. 07-15 October 28,2009 Page 7 5. The location, size, design, and operating characteristics of the proposed use are compatible with the existing and future land uses within the general area in which the proposed use is to be located and will not create significant noise, traffic or other conditions or situations that may be objectionable or detrimental to other permitted uses in the vicinity or adverse to the public interest, health, safety, convenience, or welfare of the City. The location, size, design and operating characteristics are consistent with provisions of the Development Code and will be compatible with the existing and future land uses within the general area and will not be detrimental to other permitted uses in the vicinity. The proposed expansion is compatible with the existing and future land uses within the surrounding area. The proposed project will provide convenient commercial goods and services for residents of the surrounding area. The project will operate in a manner consistent with the Development Code and the conditions of approval. Therefore, no land use conflict is anticipated to result from the construction and operation of the proposed development. 6. The subject site is physically suitable for the type and density/intensity of use being proposed. The site is physically suitable for the proposed expansion of an existing commercial building. The site is an existing shopping center, and the proposed expansion plan and related on-site improvements conform to all applicable development standards as illustrated in Table"A"of the staff report. Therefore, the site if physically suitable for the proposed land use. 7. There are adequate provisions for public access, water, sanitation, and public utilities and services to ensure that the proposed use would not be detrimental to public health and safety? Existing facilities and infrastructure are available and already exist on the project site to provide adequate public access, public utilities, and public services for the proposed project. The proposed project complies with development standards and design guidelines of the Development Code, which ensure that the project would not be detrimental to public health and safety. CONCLUSION The proposed Wal-Mart Expansion Project satisfies all Findings of Fact required for approval of Conditional Use Permit No. 07-15. CUP No. 07-15 October 28, 2009 Page 8 RECOMMENDATION Staff recommends that the Planning Commission independently review, analyze and exercise independent judgment in its consideration of the Environmental Impact Report and in making its determination and that the Planning Commission adopt the Resolution to: 1. Certify the Environmental Impact Report for the Highland Avenue Wal-Mart Expansion Project; 2. Adopt the Mitigation Monitoring and Reporting Plan (MMRP); 3. Adopt the Facts, Findings, and Statement of Overriding Considerations; and 4. Approve Conditional Use Permit No. 07-15 based on the Findings of Fact contained in the Staff Report and subject to the Conditions of Approval (Attachment C) and Standard Requirements (Attachment D). Respectfully Submitted, Valerie C. Ross Director of the Development Service Department ron Lian Senior Pla me Attachment A Location Map Attachment B Site Plan/Floor Plans/Elevations/Phasing Plans Attachment C Conditions of Approval Attachment D Standard Requirements Attachment E Mitigation Monitoring and Reporting Plan Resolution Exhibit 1 —Final Environmental Impact Report* Exhibit 2—Facts, Findings and Statement of Overriding Considerations Exhibit 3 —Planning Commission Staff Report dated October 28, 2009 *The Final EIR, distributed on a CD, is also posted on City Web Site, and is comprised of the following: Draft Environmental Impact Report (EIR) and Appendices Comments on the Draft EIR and Responses to Comments Textual Revisions to the Draft FIR © Mitigation Monitoring and Reporting Plan (MM/RP) ATTACHMENT A CITY OF SAN BERNARDINO PLANNING DIVISION LOCATION MAP HEARING DATE: 10/28/09 PROJECT: Conditional Use Permit No. 07-15 NORTH j� f } F 'r 1 R �v — E �y A Y .. - R9 0�0 Project Site vt- 4c St. 0 Hl6Hl:ANErA1�E—••---• '�<r� ::rl_..—..—:.—.----_� .r I - - � th , - t �� � I I �JL•-QI thpyrighk. av - ATTACENETB NMaNIONS QNV'ISvN �O � e NOISNYd%3 40—bLGL# 1HtlW—IVM NOLLOnUiSNOO MOd ION-IM AGM%NOIS3O - Z x / w $ § ` Y i _ Y2 W J. 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II !�i W pp !aS j Ial o- �( U C ! o � U la � - lal e if t;l1�l !aS 11±! !al ! ilb 1t �l ita !tl P,l �Z I;e AWA Lh !at NE- _ Y p !! = man --■�� i r - ; ����� � b•�`fit, � � t ''t� III"�� �sx ��/��' ��t�► �� ��� � ������iF `������ �' - >� + irk► ` � �°�►iIc rr .0 ATTACHMENT G eV '311IANOIN38 V ONIiI33NION3 aNtl'IStlN 0 c' v Nv IN ATTACHMENT B — s NOISNVdX3 40-4161# 18VN-IVM NOILOM SNOO WOd ION-13S M-9VGJW NOIS30 € r- a z R s � WF8 ' F z O R ti o © ® I � � 6 p `GL J s '1 , ■ L � §g z , , Q 1 � r r \ Q ' J I 1 I I I �� ad '31iinNOin3e .W«.�. +...e�� 'ONI 'S3 a 4IMNION3 GkMSVN ;, d N ATTACHMENT B vn NOISNVd%3 40—*L61# 18YA—IVM NOLLOnU SNOO H03 ION-13S M3VgU NW3a N w @ C a 6 H z n q € � a pp 13 � - I e z ] R pill �R9yl . 6B�jAgi�� �4�l N 01112 M 11 C- © O O J1 �6 1 / sl / z r av '»�inuni n�a � G ONi •s3a ATTACHMENT B `JNIH'.a3N1`JN3 aNV'7StlN� � e tr �R3SPZ e s NOISNtl dX3 40-4t61V 18tlW-ltlM NOILOnULSNOO HOB ION-135 M31A=IH NOIS3O let —J Q £ Q E R HZ8 ➢ W D UVR � Z � H • ��p G $ � 4 A O R ppC 6 5 S 0 ti \ 6 m k wn / Z z r g ATTACHMENT C CONDITIONS OF APPROVAL Conditional Use Permit No. 07-15 1. This approval is for expansion of an existing 129,794-square foot retail commercial building by 41,644 square feet to a total floor area of 171,438 square feet on approximately 15.13 acres located at the northwest corner of Highland Avenue and Frontage Road, at 4210 East Highland Avenue in the CG-1, Commercial General land use district. The expansion will be completed in 3 phases with Phase 1 expanding to the west, Phase 2 expanding to the east and Phase 3 expanding to the south. All construction areas shall be fenced with a 6- foot temporary chain-link fence. Access to the project site shall remain open to provide normal access to the site during construction. The normal hours of operation will be 24 heafs 6:00 a.m. to 11:00 p.m., seven days per week. 2. Within two years of development approval, commencement of construction shall have occurred or the permit/approval shall become null and void. In addition, if after commencement of construction, work is discontinued for a period of one year, then the permit/approval shall become null and void. However, approval of this application does not authorize commencement of construction. All necessary permits must be obtained prior to commencement of specified construction activities included in the Conditions of Approval and Standard Requirements. EXPIRATION: October 28,2011 3. The review authority may, upon an application being filed 30 days prior to the expiration date and for good cause, grant a one-time extension not to exceed 12 months. The review authority shall ensure that the project complies with all current Development Code provisions. 4. In the event this approval is legally challenged, the City will promptly notify the applicant of any claim, action or proceeding and will cooperate fully in the defense of this matter. Once notified, the applicant agrees to defend, indemnify and hold harmless the City of San Bernardino (City), the Economic Development Agency of the City of San Bernardino (EDA), any departments, agencies, divisions, boards or commission of either the City or EDA as well as predecessors, successors, assigns, agents, directors, elected officials, officers, employees, representatives and attorneys of either the City or EDA from any claim, action or proceeding against any of the foregoing persons or entities. The applicant further agrees to reimburse the City for any costs and attorneys' fees which the City may be required by a court to pay as a result of such action, but such participation shall not relieve the applicant of his or her obligation under this condition. The costs, salaries, and expenses of the City Attorney and employees of his office shall be considered as "attorneys fees"for the purpose of this condition. Conditions of Approval CUP No. 07-15 Hearing Date: /0.28.09 Page 2 As part of the consideration for issuing this permit, this condition shall remain in effect if this Conditional Use Permit is rescinded or revoked, whether or not at the request of applicant. 5. Construction shall be in substantial conformance with the plan(s) approved by the Director, Development Review Committee, Planning Commission or Mayor and Common Council. Minor modification to the plan(s) shall be subject to approval by the Director through a minor modification permit process. Any modification which exceeds 10% of the following allowable measurable design/site considerations shall require the refiling of the original application and a subsequent hearing by the appropriate hearing review authority if applicable: a. On-site circulation and parking, loading and landscaping; b. Placement and/or height of walls,fences and structures; c. Reconfiguration of architectural features, including colors, and/or modification of finished materials that do not alter or compromise the approved theme; and, d. A reduction in density or intensity of a development project. 6. No vacant, relocated, altered, repaired or hereafter erected structure shall be occupied or no change of use of land or structure(s) shall be inaugurated, or no new business commenced as authorized by this permit until a Certificate of Occupancy has been issued by the Department. A temporary Certificate of Occupancy may be issued by the Department subject to the conditions imposed on the use, provided that a deposit is filed with the Department of Public Works prior to the issuance of the Certificate, if necessary. The deposit or security shall guarantee the faithful performance and completion of all terms, conditions and performance standards imposed on the intended use by this permit. 7. This approval is subject to all the applicable provisions of the Development Code in effect at the time of approval. This includes Chapter 19.20 - Property Development Standards, and includes: dust control during construction and grading activities; emission control of fumes, vapors, gases and other forms of air pollution; glare control; exterior lighting design and control; noise control; odor control; screening; sign regulations, off-street parking and off-street loading standards, and vibration control. Any exterior structural equipment, or utility transformers, boxes, ducts or meter cabinets shall be architecturally screened by a wall or structural element, blending with the building design, and may include landscaping when on the ground. S. Signs are not approved as a part of this permit. Prior to establishing any new signs or replacing existing signs, the applicant shall submit an application, and receive approval of a sign permit from the Planning Division. 9. Signs or banners shall not be placed on or over the roof or within landscaped areas. Banners and other signs for special events (i.e., grand opening) will require a Temporary Sign Permit to be approved by the Planning Division prior to installation. Signs and banners shall not encroach into the public right-of-way. Conditions ofApprovai CUP No. 07-15 Hearing Date: 10.28.09 Page 3 10. No painted window signs, roof signs, permanent sale or come-on signs shall be permitted at this site. 11. The landscape plan shall include one 24" box tree for every four surface parking spaces, consistent with the requirements of Section 19.24.060(6)(B) and Chapter 19.28 of the Development Code. 12. The applicant shall post a bond in an amount equivalent to the cost of landscaping including landscape installation and one year of maintenance service. This shall be accomplished on a project basis or by phase of construction. The purpose of the bond is to ensure that all landscaping survives the planting process and last for a period of at least one year. The bond will be released no sooner than one year after issuance of the Final Certificate of Occupancy and only after such time as the survival of the landscaping has been verified by City staff. 13. All lighting fixtures shall be shielded to confine lights within the site only. 14. All exterior lighting shall be energy efficient with provisions to lower or reduce usage when the store is closed. Signage may be required to be turned off when the business is closed. 15. All public telephones shall be located inside the building and shall be fixed for Ir outgoing calls only. 16. The applicant shall be responsible for regular maintenance of the project site. Vandalism, graffiti, trash and other debris shall be removed and cleaned up within 24 hours. 17. Any equipment,whether on the roof, side of structure, or ground shall be screened as per Development Code requirements. 18. If the color(s) of any buildings are proposed to be modified after construction, the revised color scheme shall be reviewed and approved by the Planning Division prior to painting. 19. The project applicant shall contact Public Services at 909.384.5335 to obtain a list of approved debris haulers. 20. This approval shall comply with the requirements of other outside agencies (i.e., San Bernardino County Health Department, Division of Environmental Health Services, and California Board of Equalization), as applicable. 21. Outdoor displays and/or storage shall be prohibited, except as approved on project plans. Products displayed or stored outdoors shall be properly secured. Conditions of Approval CUP No. 07-15 Hearing Date: 10.28.09 Page 4 22. The following security measures outlined in the Project Description, Section 3.2.8 of the Draft EIR shall be implemented concurrent with the expansion proiect and shall continue on an on-going basis: a. Conduct a risk analysis (crime survey) of the area to evaluate the security needs for the store and implement a security plan based upon this analysis. b. Install closed-circuit camera systems (surveillance cameras) inside and outside the store. c. Establish a parking lot patrol for store areas which assists customers, ensures safety, and takes action to identify and prevent any suspicious activity (such as loitering and vandalism) both during the he day and during nighttime hours. d. Establish a plainclothes patrol inside the store to ensure safety and security. e. Establish a Risk Control Team of associates responsible and trained to identify and correct safety and security issues at the site. f. Provide lighting in the parking areas that will ensure public safety. g. Prohibit consumption of alcohol in the parking lots by having associates regularly "patrol" the Parking areas while collecting shopping carts, and resort any inappropriate activity to the store managers. 23. Submittal requirements for permit applications (building, site improvements, landscaping, etc.) to Building Plan Check and/or Public Works/Engineering shall include all Conditions of Approval and Standard Requirements issued with the Planning approval to be printed on the plan sheets. 24. This project is subject to all Mitigation Measures contained in the Mitigation Monitoring and Reporting Plan, hereby incorporated by reference as conditions of approval. 25. No final Certificate of Occupancy shall be issued until all conditions of approval have been completed. Temporary Certificates of Occupancy may be issued for each phase of building construction. 26. This permit or approval is also subject to Attachment D, the conditions or requirements of the following City Departments or Divisions: a. Public Works Division b. Building Plan Check Division C. Fire Department ** Stt<ikeeu and underline text denotes deleiiens and additions by the Planning Commission 11118109. End of Attachment C ATTACHMENT D CITY OF SAN BERNARDINO Development Services Department — Public Works Division Standard Requirements Description: A request to expand the existing 124,812 square foot commercial/retail building by 46,626 square feet on approximately 15.13 acres of land. Applicant: Nasland Engineering APN: 1199-671-21, 22, 27 & 28 Location: 4210 Highland Avenue Case Number: CUP 07-15 1. Drainage and Flood Control a) All necessary drainage and flood control measures shall be subject to requirements of the City Engineer, which may be based in part on the recommendations of the San Bernardino County Department of Transportation and Flood Control. The developer's Engineer shall furnish all necessary data relating to drainage and flood control. b) A local drainage study will be required for the project. Any drainage improvements, structures or storm drains needed to mitigate downstream impacts or protect the development shall be designed and constructed at the developer's expense, and right-of-way dedicated as necessary. c) All drainage from the development shall be directed to an approved public drainage facility. If not feasible, proper drainage facilities and easements shall be provided to the satisfaction of the City Engineer. d) If site drainage is to be outletted into the public street, the drainage shall be conveyed through a parkway culvert constructed in accordance with City Standard No. 400. Conveyance of site drainage over the Driveway approaches will not be permitted. Proiecr A request to expand the existing 124,812 square foot commercial/retail building by 46,626 square feet on approximately 15 13 acres of land. Case No. CUP 07-15 Page 2 of 9 e) A Full Categorical Water Quality Management Plan (WQMP) is required for this project. The applicant is directed to the City's web page at www.sbcity.orq— Departments — Development Services — Public Works for templates to use in the preparation of this plan. f) A Storm Water Pollution Prevention Plan (SWPPP) will be required. The applicant is directed to the City's web page at www.sbcity.org — Departments — Development Services — Public Works for templates to use in the preparation of this plan. g) The City Engineer, prior to issuance of any permit, shall approve the WQMP and the SWPPP. h) A "Notice of Intent (NOI)" shall be filed with the State Water Quality Control Board for construction disturbing 1 acre or more of land (including the project area, construction yards, storage areas, etc.). i) The City Engineer, prior to grading plan approval, shall approve an Erosion Control Plan. The plan shall be designed to control erosion due to water and wind, including blowing dust, during all phases of construction, including graded areas which are not proposed to be immediately built upon. 2. Grading and Landscaping a) The site/plot/grading and drainage plan shall be signed by a Registered Civil Engineer and a grading permit will be required. The grading plan shall be prepared in strict accordance with the City's "Grading Policies and Procedures" and the City's "Standard Drawings", unless otherwise approved by the City Engineer. b) If more than 5 trees are to be removed from the site, a tree removal permit conforming to the requirements of Section 19.28.090 of the Development Code shall be obtained from the Department of Development Services-Planning Division prior to issuance of any grading or site development permits. C) If more than 5,000 cubic yards of earthwork is proposed, the grading shall be supervised in accordance with Section 3317.2 of the California Building Code. d) The applicant must post a grading bond prior to issuance of a grading permit. The amount of the bond is to be determined by the City Engineer. © e) If the grading plan indicates export or import, the source of the import material or the site for the deposition of the export shall be C'Docmnctin,and Sellings'liang_anLeral Setting's remporary Inlennct Files OLK64:CI.JP 07-15 Walman Expansion 4210 flighland Ave-DlUdm 10,'21 X 09 Project A request to expand the existing 124,812 square foot commercial/retail building by 46,626 square feet on approximately 15.13 acres of land. Case No. CUP 07-15 Page 3 of 9 noted on the grading plan. Permit numbers shall be noted if the source or destination is in the City of San Bernardino. f) If more than 50 cubic yards of earth is to be hauled on City Streets then a special hauling permit shall be obtained from the City Engineer. Additional conditions, such as truck route approval, traffic controls, bonding, covering of loads, street cleaning, etc. may be required by the City Engineer. g) An on-site Improvement Plan is required for this project. Where feasible, this plan shall be incorporated with the grading plan and shall conform to all requirements of Section 15.04-167 of the Municipal Code (See "Grading Policies and Procedures"). h) Wheel stops are not permitted by the Development Code, except at designated accessible parking spaces. Therefore, continuous 6" high curb shall be used around planter areas and areas where head in parking is adjacent to walkways. The parking spaces may be 16.5' deep and may overhang the landscaping or walkway by 2.5'. Overhang into the setback area or into an ADA path of travel (minimum 4' wide) is not permitted. i) Continuous concrete curbing at least 6 inches high and 6 inches wide shall be provided at least 3 feet from any wall, fence, property line, walkway, or structure where parking and/or drive aisles are located adjacent thereto. Curbing may be left out at structure access points. The space between the curb and wall, fence, property line, walkway or structure shall be landscaped, except as allowed by the Development Review Committee. j) The refuse enclosure(s) must be constructed in accordance with City Standard Drawing No. 508. The minimum size of the refuse enclosure shall be 8 feet x 15 feet, unless the Public Services Department, Refuse Division, approves a smaller size, in writing. Where a refuse enclosure is proposed to be constructed adjacent to spaces for parking passenger vehicles, a 3' wide by 6 " high concrete planter shall be provided to separate the enclosure from the adjacent parking. The placement of the enclosure and design of the planter shall preclude the enclosure doors from opening into drive aisles or impacting against adjacent parked cars. The number and placement of refuse enclosures shall conform to the location and number shown on the site plan as approved by the Development Review Committee, Planning Commission or City Council. Docmnents and semngs:liang., IAL al 1Cttutg5 I cmpornry Interact I iles 01 K119 t I't17-15 Wahnarl E.apansimt 42101 fighland Ave-D6J.d`x 1021109 P, roiect A request to expand the existing 124,812 square foot commercial/retail building by 46,626 square feet on approximately 15 13 acres of land. Case No. CUP 07-15 Page 4 of 9 k) Retaining walls, block walls and all on-site fencing shall be designed and detailed on the on-site improvement Plan. This work shall be part of the on-site improvement permit issued by the City Engineer. All masonry walls shall be constructed of decorative block with architectural features acceptable to the City Planner. 1) This project is located in the high wind zone. All walls and fences shall be designed to withstand 100 mph winds. All construction details shall be included on the appropriate plan. Structural calculations shall be provided for City review. m) No construction on a site shall begin before a temporary/security fence is in place and approved by the City Engineer or his designee. Temporary/security fencing may not be removed until approved by the City Engineer or his designee. The owner or owner's agent shall immediately remove the temporary/security fencing upon the approval of the City Engineer or his designee. Sites that contain multiple buildings shall maintain the temporary/security fencing around the portion of the site and buildings under construction as determined by the City Engineer or his designee. All temporary/security fencing for construction sites shall include screening, emergency identification and safety identification and shall be kept in neat and undamaged condition. n) The on-site improvement plan shall include details of on-site lighting, including: • light location, • type of poles and fixtures, • foundation design, • conduit location, material and size, and • number and size of conductors in each conduit run. • Photometric plot shall be provided which show that the proposed on-site lighting design will provide: • 1 foot-candle of illumination uniformly distributed over the surface of the parking lot during hours of operation, and • 0.25 foot-candles security lighting during all other hours. c:I)ocmnarts and$euingcliang.arl.ocal Seump'Jorporwy Intentet I-fle5'OLKIi i t I'07.15 N'almart I:xpancim 4210 Highland 1xc-DHJ.dt>c 1021109 Project A request to expand the existing 124,812 square foot commercial/retail building by 46.626 square feet on approximately 15 13 acres of land. Case No.CUP 07-15 Page 5 of 9 o) The design of on-site improvements shall also comply with all requirements of The California Building Code, Title 24, relating to accessible parking and accessibility, including retrofitting of existing building access points for accessibility, if applicable. p) An accessible path of travel shall be provided from the public way to the building entrance. All pathways shall be concrete paved and shall provide a minimum clear width of 4 feet. Where parking overhangs the pathway, the minimum paved width shall be 6.5 feet. q) Where an accessible path of travel crosses drive aisles, it shall be delineated by textured/colored concrete pavement, unless otherwise approved by the Development Review Committee. r) A Lot Merger is required for this project. The applicant is directed to the City's web page at www.sb(: ity.orq— Departments — Development Services — Public Works for submittal requirements. s) The project Landscape Plan shall be reviewed and approved by the City Engineer prior to issuance of a grading permit. Submit 5 copies to the Engineering Division for Checking. t) Prior to occupancy of any building, the developer shall post a bond to guarantee the maintenance and survival of project landscaping for a period of one year. u) The public right-of-way, between the property line and top of curb (also known as "parkway") along adjoining streets shall be landscaped by the developer and maintained in perpetuity by the property owner. Details of the parkway landscaping shall be included in the project's on-site landscape plan, unless the parkway area is included in a Landscape and Lighting Maintenance District, in which case, a separate landscape plan shall be provided. V) All electrical transformers located outdoors on the site, shall be screened from view with a solid wall or landscaping and shall not be located in any setback/right-of-way area. If the transformer cannot be screened, it shall be located in an underground vault unless approved by the City Engineer pursuant to Section 19.30.110. w) An easement and covenant shall be executed on behalf of the City to allow the City to enter and maintain any required landscaping in case of owner neglect. Upon request, the Real Property Section will prepare documents for execution by the property owner. The documents shall ensure that, if the property owner or subsequent owner(s) fail to properly maintain the landscaping, the City will be (':1.1)ocurnuatu and Swi inp Iiang ar.Local Setting,Icmporary Intemet I`ilesOIKB9 t 1 1,0 -15 Walnwrt Lspansim 4210 11 ighland Ne-D13J.doc 102109 ProieCt7 A request to expand the existing 124,812 square foot commercial/retail building by 46.626 square feet on approximately I S 13 acres of land. Case No.CUP 07-15 Page 6 of 9 able to file appropriate liens against the property in order to accomplish the required landscape maintenance. A document- processing fee in the amount established by ordinance shall be paid to the Real Property Section to cover processing costs. The property owner, prior to plan approval, shall execute this easement and covenant unless otherwise allowed by the City Engineer. Applicable to Commercial, industrial and multi-family development only. 3. Utilities a) Design and construct all public utilities to serve the site in accordance with City Code, City Standards and requirements of the serving utility, including gas, electric, telephone, water, and sewer. b) Each parcel shall be provided with separate water and sewer facilities so the City or the agency providing such services in the area can serve it. C) Backflow preventers shall be installed for any building with the finished floor elevation below the rim elevation of the nearest upstream manhole. d) Sewer main extensions required to serve the site shall be constructed at the Developer's expense. e) This project is located in the sewer service area of the East Valley Water District; therefore, any necessary sewer main extension shall be designed and constructed in accordance with requirements of the East Valley Water District. f) Utility services shall be placed underground and easements provided as required. g) A street cut permit, from the City Engineer, will be required for utility cuts into existing streets. h) All existing overhead utilities adjacent to or traversing the site on either side of the street shall be placed underground in accordance with Section 19.20.030 (non-subdivisions) or Section 19.30.110 (subdivisions) of the Development Code. i) Existing Utilities which interfere with new construction shall be relocated at the Developer's expense as directed by the City Engineer, except overhead lines, if required by provisions of the Development Code to be undergrounded. See Development Code Section 19.20.030 (non-subdivisions) or Section 19.30.110 (subdivisions). c: and Seeing.Jiang ar`.I.mal Settings`Aemporwr hnemeI I-iles 01.K13 9 CI T 0'-15 N'ahnart iiNpansion 4210 I l i ghland Ayr-D61d<x 10 21 09 Proiect A request to exvaand the existing 124,812 square foot commercial/retail building by 46.626 square feet on approximately 15.13 acres of land. Case No.CUP 07-15 Page 7 of 9 j) Sewers within private streets or private parking lots will not be maintained by the City but shall be designed and constructed to City Standards and inspected under a City On-Site Construction Permit. A private sewer plan designed by the Developers Engineer and approved by the City Engineer will be required. This plan can be incorporated in the grading plan, where practical. 4. Street Improvement and Dedications a) All public streets and public easements within and adjacent to the development shall be improved to City standards. Improvements shall include combination curb and gutter, paving, access ramps, street lights, sidewalks, and appurtenances, including, but not limited to relocation of public or private facilities which interfere with new construction and striping. All improvements shall be accomplished in accordance with the City of San Bernardino "Design Policies and Procedures" and City "Standard Drawings," unless otherwise approved by the City Engineer. b) If the existing sidewalk and/or curb & gutter adjacent to the site are in poor condition, the sidewalk and/or curb & gutter shall be removed and reconstructed to City Standards. Curb & Gutter shall conform to Standard No. 200, Type "B" and sidewalk shall conform to Standard No. 202, Case "A" (6' wide adjacent to curb), unless otherwise approved by the City Engineer. c) At all curb returns within and adjacent to the project site, construct accessible curb ramps in accordance with Caltrans Standards to comply with current ADA accessibility requirements. Dedicate sufficient right-of-way at the corner to accommodate the ramp. d) Construct Driveway Approaches per City Standard No. 204, Type II, including an accessible by-pass around the top of the drive approach. Remove existing driveway approaches that are not part of the approved plan and replace with full height curb & gutter and sidewalk. e) If a radius type Driveway Approach is used in lieu of the standard drive approach the throat of the driveway shall be paved in colored textured concrete. 5. Required Engineering Plans a) A complete submittal for plan checking shall consist of: C`DOCUmnans and Senings',liang ar,l.mal SettinESCTemporary lntentet Files�Ol..Kt19'.CIiP 07-15 Walmart F.xpansi<m 4210 Highland Ave-DITJ.dw Proiect7 A request to expand the existing 124,812 square foot commercial/retail building by 46,626 square feet on approximately 15 13 acres of land. Case No. CUP 07-15 Page 8 of 9 • street improvement plans (may include street lights or street lighting may be separate plan), • signing and striping plan (may be on sheets included in street improvement plan), • lighting (on-site lighting may be included in on-site improvement plan or may be on a separate stand-alone plan), • grading (may be incorporated with on-site improvement plan), • on-site landscaping and irrigation, • other plans as required. Piecemeal submittal of various types of plans for the same project will not be allowed. • All required supporting calculations, studies and reports must be included in the initial submittal (including but not limited to drainage studies, soils reports, structural calculations) b) The rough grading plan may be designed and submitted in combination with the precise grading plan. c) All improvement plans submitted for plan check shall be prepared on the City's standard 24" x 36" sheets. A signature block satisfactory to the City Engineer or his designee shall be provided. d) After completion of plan checking, final mylar drawings, stamped and signed by the Registered Civil Engineer in charge, shall be submitted to the City Engineer for approval. e) Electronic files of all improvement plans/drawings shall be submitted to the City Engineer. The files shall be compatible with AutoCAD 2000, and include a .DXF file of the project. Files shall be on a CD and shall be submitted at the same time the final mylar drawings are submitted for approval. f) Copies of the City's design policies and procedures and standard drawings are available at the Public Works Counter for the cost of reproduction. They are also available at no charge at the Public Works Web Site at http://www.sbcity.org 6. Required Engineering Permits a) Grading permit. b) On-site improvements construction permit (except buildings - see Development Services-Building Division), including landscaping. Document,and ScItings\liang_ar-.Local Settingsiiemporary Interact l de>OLK119`-.CUP 07-15 Walmart I?xpansim 4210 highland Ave-nitl.dne in2l,no Project A request to expand the existing 124,812 square foot conunercial/retail building by 46,626 square feet on approximately 15 13 acres of land. Case No.CUP 07-15 Page 9 of 9 c) Off-site improvement construction permit. 7. Applicable Engineering Fees a) All plan check, permit, inspection, and impact fees are outlined on the Public Works Fee Schedule. A deposit in the amount of 100% of the estimated checking fee for each set of plans will be required at time of application for plan check. The amount of the fee is subject to adjustment if the construction cost estimate varies more than 10% from the estimate submitted with the application for plan checking. b) The current fee schedule is available at the Public Works Counter and at http://www.sbcity.org C) Expeditious plan review is available. A non-refundable fee in the amount of 125% of the estimated plan check fee for each set of plans will be required at time of application for expedited plan check. The amount of the fee is subject to adjustment if the construction cost estimate varies more than 10% from the estimate submitted with the application for plan checking. C:'.Docummts and Settingiliang anlxwal Seeing ':Temporary Intmict 1-NN OI KIMCIJP 07-15 Walmn hxpansim 4210 Highland :hoc-DBJ.doc Inn 1/09 City of San Bernardino STANDARD REQUIREMENTS gBernar Development Services/Plan Check Division Property Address: �J DRC/CUP/DP:GN Pd ( ' 45 DATE: NOTE: NO PLANS WILL BE ACCEPTED FOR PLAN CHECK WITHOUT CONDITIONS OF APPROVAL IMPRINTED ON PLAN SHEETS. Submit 6 sets of plans,minimum size 18" x 24",drawn to scale. If plan check is for expeditious review, submit 6 sets. The plans shall include(if applicable): • SITE PLAN(include address & assessors parcel number) • FOUNDATION PLAN • FLOOR PLAN(label use of all areas) • ELEVATIONS • ELECTRICAL,MECHANICAL& PLUMBING PLANS • DETAIL SHEETS(structural) • CROSS SECTION DETAILS • SHOW COMPLIANCE WITH TITLE 24/ACCESSIBILITY(disabled areas) • PLAN CHECK DEPOSIT FEE WILL BE REQUIRED UPON SUBMITTAL OF PLANS. CALL DEVELOPMENT SERVICES(PLAN CHECK)FOR AMOUNT. NUMBER TO CALL: (909)384-5071 1. The title sheet of the plans must specify the occupancy classification,type of construction,if the building has sprinklers and the current applicable codes. 2. The person who prepares them must sign the plans. Also,provide the address and phone number of that person. Some types of occupancies require that the plans are prepared, stamped and signed by an architect,engineer or other person licensed by the State of California. 3. For structures that must include and engineers design,provide 2 sets of stamped/wet signed calculations prepared by a licensed architect/engineer. 300 N.'D'Street (909)384.5071 Office San Bernardino,CA 92418 (909)384.5080 Fax 4. Provide 2 sets of Title 24/Energy compliance forms and calculations. Some compliance forms are required to be printed on the plans. 5. Submit grading, site and/or landscape plans to Public Works/Engineering for plan check approval and permits. For more information, phone(909)384-5111. 6. Fire sprinklers plans, fire suppression system plans, etc. shall be submitted to the Fire Department for plan check approval and permits. For information, phone(909)384-5388. 7. Signs require a separate submittal to the Planning Division for plan check approval and permits. For information, phone(909)384-5057. S. Restaurants,food preparation facilities and some health related occupancies will require clearances and approved plans from San Bernardino County Health Department. For information, phone(909) 387-0214. 9. Occupancies that include restaurants,car washes,automotive repair/auto body,dental offices, food preparation facilities or processing plants,etc. may require approvals and permits from San Bernardino Water Reclamation. For information, phone (909)384-5141. 10. An air quality permit may be required. Contact South Coast Air Quality Management Division for information at(909)396-2000. 11. State of California Business & Professions Code/Contractors License Law requires that permits can be issued to licensed contractors or owner-builders(that are doing the work). Contractors must provide their State License Number,a city business registration and workers compensation policy carrier and policy number. Owner-builders must provide proof of ownership. NOTE: PLAN CHECK TIME ON THESE TYPES OF PROJECTS IS APPROXIMATELY 4-6 WEEKS FOR FIRST CORRECTIONS. EXPEDITIOUS REVIEW IS APPROXIMATELY 10 WORKING DAYS. THE DEVELOPMENT REVIEW PROCESS IS NOT THE BUILDING PLAN CHFCK AND DOES NOT IMPLY THAT THE DESIGN AS SUBMITTED WILL BE APPROVED WITHOUT CORRECTIONS. Comments: 300 N. 'D Street (909)384-5071 Office San Bemudino,CA 92418 (909)384-5080 Fa CITY OF SAN BERNARDINO FIRE DEPARTMENT STANDARD REQUIREMENTS case: (2'yv Q/-f. Date: R. (0.09- 471 0 d16,aZ,,f,/a /� ����2, Reviewed By: sue_ GENERAL REQUIREMENTS: Provide one additional set of construction plans to Building and Safety for Fire Department use at time of plan check. Contact the City of San Bernardino Fire Department at(909)384-5585 for specific detailed requirements. The developer shall provide for adequate fire flow.Minimum fire flow requirements shall be based on square footage,construction features,and exposure information supplied by the developer and must be available prior to placing combustible materials on sae. WATER PURVEYOR FOR FIRE PROTECTION: �U9 The fire protection water service for the area of this project is provided by: San Bernardino Municipal Water Department—Engineering (309)384-5391 East Valley Water District—Engineering (909)888-8986 ❑ Other Water purveyor. Phone: _. UBLIC FIRE PROTECTION FACILITIES: Public fire hydrants are required along streets at intervals not to exceed 300 feet for commercial and multi-residential areas and at intervals not to exceed 500 feet for residential areas. Fire hydrant minimum flow rates of 1,500 gpm at a 20 psi minimum residual pressure are required for commercial and multi-residential areas.Minimum fire hydrant flow rates of 1,000 gpm at a 20 psi minimum residual pressure are required for residential areas. Fire hydrant type and specific location shall be jointly determined by the City of San Bernardino Fire Department in conjunction with the water purveyor. Fire hydrant materials and installation shall conform to the standards and specifications of the water purveyor. Public fire hydrants,fire services,and public water facilities necessary to meet Fire Department requirements are the developer's financial responsibility and shall be installed by the water purveyor or by the developer at the water purveyor's discretion.Contact the water purveyor indicated above for additional information. ACCESS: I-I Provide two separate,dedicated routes of ingresslegress to the property entrance.The routes shall be paved,all weather. ic�Al Provide an access road to each building for fire apparatus. Access roadway shall have an all-weather driving surface of not less than 20 feet of unob- structed width. Extend roadway to within 150'eet of all portions of the exterior wall of all single stor;buildings. /❑" Extend roadway to within 50 feet of the exterior wall of all multiple-story buildings. Provide"NO PARKING"signs whenever parking of vehicles would possible reduce the clearance of access roadways to less than the required width. Signs are to read"FIRE LANE—NO PARKING—M.C.Sec.15.16". ❑ Dead-end streets shall not exceed 500 feet in length and shall have a minimum 4C loot radius turnaround. ❑ The names of any new streets(public or private)shall be submitted to the Fire Department for approval. SITE: ❑ All access roads and streets are o be constructed and usable prior to combustible construction. ❑ Private fire hydrants shall be installed to protect each building located more than 150 feet from the curb line. No fire hydrants should be within 40 feet of any exterior wall.The hydrants shall be Wet Barrel type,with one 2-h inch and 4 inch outlet,and approved by the Fire Department. Areas adjacent to fire hydrants shall be designated as a"NO PARKING"zone by painting an 8 inch vide,red stripe for 15 feet in each direction in front of the hydrant in such a manner that it will not be blocked by parked vehicles. Lettering to be in white 6"-RIJILDINGS: Address numerals shall be installed on the building at ire wont or other approved location in such a manner as to be visible from the frontage street Com- mercial and multi family address numerals shall tie 6 inches tall,single family address numerals shall be 4 inches tall.The color of the numerals shall con- trast with the color of the background. ❑ Identify each gas and electric meter with tha number of the milt it serves. Fire extinguishers must be installed odor to the building being occupi5d. The minimum ral.-g 1qr:.^.y fre extinguisher is 2A 10BIC. Minimum distribution of fire extinguishers must be such that ro interior part of the building is over 75;eat travol dis'anca from a fire extinguisher. ❑ Apartment houses with 16 or more units,hotels(mo:ols),.vitn 20 or more units,or apart:ne!its or hotels(motels)three stories or more in height shall be equipped with automatic fire sprinklers resigned,o NFFA standams. All buildings,over 5,000 square eat,shad be eguipp:W with an automatic lire sprinker system designed to NFPA standards.This includes existing buildings vacant over 365 days. red. d. yyy���Submit plans for the fire urotection s;;rem b the�ha Cupartmenl paw le uegim:ing consirucion � t a syete - t eq Tenant improvements in all sprinkleretl h�.lidir�ys o.r io Ce approved by the Fire Departmem prier io star of construcion.Permit required. Provide fire alarm(required ihroughoct),mans must be approved by me Fire Department prior to start of installation.Permit required. Fire Department connection o sprinkler s}clot Nstandpipe system,shall L•e required at Fire Department approved lo:alion. ire Code Permit required,apply at 2,0 east 3rd street,(909)384-5388. Fire Sprinkler monitoring requires. r ins rest oe appoved by:he Fire L`epartment prior to the Stan of constuction.Permit required. Occupant Load. Note:The applicant must request,in writing.any•.i:anngas to Fire Department requirementts..,.sN ADDITIONAL INFORMATION: _.. � fI? ' I r /���_..��+1�' t%r 6�-�4i•-�[Z�t�.F-mac - FPS 170 l�ol ATTACHMENT E City of San Bernardino-Highland Avenue Walmart Expansion Project Administrative Final OR Mitigation Monitoring and Reporting Plan SECTION 4: MITIGATION MONITORING AND REPORTING PLAN 4.1 - Introduction The following mitigation monitoring and reporting plan(MMRP)will help assure that the mitigation measures contained in the Draft Environmental Impact Report(EIR),and as modified in this Final EIR,are properly implemented according to State law. This MMRP identifies measures incorporated into the Project that reduce its potential environmental impacts,the entities responsible for implementation and monitoring of mitigation measures,and the appropriate timing for implementation of mitigation measures. As described in Section 15097 of the State California Environmental Quality Act(CEQA)Guidelines,this MMRP employs both reporting on and monitoring of Project mitigation measures. i The objectives of the MMRP are to: • Assign responsibility for,and ensure proper implementation of,mitigation measures; • Assign responsibility for,and provide for monitoring and reporting of compliance with mitigation measures;and • Provide the mechanism to identify areas of non-compliance and the need for enforcement ~` action before irreversible environmental damage occurs. The MMRP for the Project is presented in the following Section(Section 4.2). Specific mitigation measures identified in the Final EIR,mitigation timing,and implementation and reporting/monitoring responsibilities are presented in this section in Table 4.2-1. 4.2 - Mitigation Monitoring and Reporting Plan As the Lead Agency,the City of San Bernardino(City)is responsible for ensuring full compliance with the mitigation measures adopted for the project. The County will monitor and report on all mitigation activities. If,during the course of Project implementation,any of the mitigation measures identified cannot be successfully implemented,the City shall immediately inform any affected responsible agencies. The City,in conjunction with any affected responsible agencies,will then determine if modification to the project is required,and/or whether alternative mitigation is appropriate. 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Ny � 000Q «° aosy.., E yyuN- oUuc •3 � mwp . mvvo 'QAQ m cv s O u O O ° .E .E -El o m _ c m7 W iF m� CQ EppF4+4 j a �E a e I � I � lol m i I . o w -- - ^ i O L `o w m o I a USa C i O c v CL m N i7 .o c 0 � m v U U w Q O C v m Fp.. w me a Y p n c d om d c _ m 6 Ay O x I m $ w E ;° p s ayi r o i v lo: A .y. � sj TY n = v `o u .° •'u p E a. t Uy9 'JAUO p � UO U m o UN p t p o o u o ey c� 0E -° aas = , 0. .5u ° uam » � u. y E� 1 RESOLUTION NO. 2009-01 2 RESOLUTION OF THE CITY OF SAN BERNARDINO PLANNING COMMISSION 3 ADOPTING THE FACTS, FINDINGS AND STATEMENT OF OVERRIDING 4 CONSIDERATIONS, CERTIFYING THE FINAL ENVIRONMENTAL IMPACT REPORT, ADOPTING THE MITIGATION MONITORING AND REPORTING 5 PLAN AND APPROVING CONDITIONAL USE PERMIT NO. 07-15 FOR THE 6 HIGHLAND AVENUE WAL-MART EXPANSION PROJECT. 7 SECTION I. RECITALS 8 (1) WHEREAS, the Planning Commission of the City of San Bernardino 9 ("City") adopted the General Plan for the City by Resolution No. 2005-362 on 10 November 1, 2005; and 11 12 (2) WHEREAS, Michael Brandman Associates, retained by the project 13 applicant and working under the direction of City staff, prepared an Initial Study for the 14 proposed Highland Avenue Wal-Mart Expansion Project("Project"); and 15 (3) WHEREAS, on December 6, 2007, the Environmental Review 16 Committee determined that the Highland Avenue Wal-Mart Expansion Project could 17 have significant effects on the environment, and thus warranted the preparation of an 18 Environmental Impact Report pursuant to the California Environmental Quality Act 19 20 (CEQA); and 21 (4) WHEREAS, the Notice of Preparation of the City to prepare a Draft 22 Environmental Impact Report was made known to the public, responsible agencies and 23 other interested persons for their concerns and comments from December 12, 2007 24 through January 11, 2008 as required by CEQA; and 25 (5) WHEREAS, on January 9, 2008 the City Held a public scoping meeting 26 27 to solicit public comments on the preparation of the Draft EIR; and 28 1 (6) WHEREAS, a Draft EIR was distributed for a 45-day public review 2 period from March 19, 2009 through May 4, 2009; and 3 (7) WHEREAS, five comment letters were received before the close of the 4 public review period and a written response was provided on October 15, 2009 and the 5 6 specific responses to the written comments are in the Final EIR; and 7 (8) WHEREAS, on November 18, 2009, the Environmental Review 8 Committee determined that the Final EIR adequately addresses all potential impacts of 9 the project and recommended certification of the Final EIR and adoption of the 10 Mitigation Monitoring and Reporting Plan (Section 4 of the Final EIR, also referred to 11 as a Program); and 12 (9) WHEREAS, on November 18, 2009, the Planning Commission of the 13 14 City of San Bernardino held a noticed public hearing on the Highland Avenue Wal-Mart 15 Expansion Project in order to receive public testimony and written and oral comments 16 relating to the Final EIR and proposed conditional use permit in compliance with City 17 requirements; and 18 (10) WHEREAS, the Planning Commission considered the Planning 19 Commission Staff Report on November 18, 2009, which recommends certification of the 20 21 Final EIR for the proposed Highland Avenue Wal-Mart Expansion Project; and 22 (11) WHEREAS, the Planning Commission conducted a noticed public 23 hearing on November 18, 2009, and fully reviewed and considered the Draft EIR, Final 24 EIR, the Mitigation Monitoring and Reporting Plan, the Facts, Findings and Statement 25 of Overriding Considerations, and the Planning Commission Staff Report; 26 27 28 2 1 SECTION 11. ENVIRONMENTAL IMPACT REPORT 2 NOW, THEREFORE, BE IT HEREBY RESOLVED, FOUND, AND 3 DETERMINED THAT THE PLANNNG COMMISSION HEREBY CERTIFIES: 4 A. The facts and information contained in the Recitals section are true and 5 correct. The Environmental Impact Report for the Highland Avenue Wal-Mart 6 7 Expansion Project, including Conditional Use Permit No. 07-15 has been completed in g compliance with the California Environmental Quality Act. Attached to this Resolution 9 as Exhibit 1, and incorporated herein by reference, is the Final EIR which consists of the 10 Draft EIR (which includes a list of persons, organizations and public agencies 11 commenting on the Draft EIR), the comments received on the Draft EIR either verbatim 12 or in summary, responses to those comments, textual revisions to the Draft EIR, and the 13 14 Mitigation Monitoring and Reporting Plan. 15 B. The Final EIR was presented to the Planning Commission which has 16 reviewed and considered the information in the Final EIR prior to its certification and 17 prior to approval of Conditional Use Permit No. 07-15. 18 C. The Final EIR has identified all significant environmental effects of the 19 Highland Avenue Wal-Mart Expansion Project. 20 21 D. Although the Final EIR identifies certain significant environmental effects 22 that would result if the Wal-Mart Expansion occurs, all significant effects that can 23 feasibly be avoided or mitigated will be avoided or mitigated by the implementation of 24 the mitigation measures as set forth in the Mitigation Monitoring and Reporting Plan. 25 E. Potential mitigation measures and other project alternatives not 26 incorporated into or adopted as part of the Highland Avenue Wal-Mart Expansion 27 28 3 1 Project, were rejected as infeasible, based on specific economic, social, or other 2 considerations as set forth in the Facts, Findings and Statement of Overriding 3 Considerations, attached to this Resolution as Exhibit 2 and incorporated herein by 4 reference. 5 6 F. The Planning Commission has given great weight to the significant 7 unavoidable adverse environmental impacts. The Planning Commission finds that the 8 significant unavoidable adverse environmental impacts are clearly outweighed by the 9 economic, social, cultural, and other benefits of the Highland Avenue Wal-Mart 10 Expansion Project, as set forth in the Facts, Findings and Statement of Overriding 11 Considerations. 12 G. The findings contained in the Facts, Findings and Statement of Overriding 13 14 Considerations with respect to the significant impacts identified in the Final EIR are true 15 and correct, and are based upon substantial evidence in the record, including documents 16 comprising the Final EIR. 17 H. The Final Environmental Impact Report, Mitigation Monitoring and 18 Reporting Plan, and the Facts, Findings and Statement of Overriding Considerations 19 reflect the independent review, analysis and judgment of the Planning Commission of the 20 21 City of San Bernardino. 22 SECTION III. CERTIFICATION OF THE ENVIRONMENTAL IMPACT REPORT 23 NOW, THEREFORE BE IT RESOLVED, FOUND AND DETERMINED by the 24 Planning Commission of the City of San Bernardino that the Final Environmental 25 Impact Report (SCH #2007121072) is hereby certified, the Facts, Findings and 26 27 28 4 1 Statement of Overriding Considerations are hereby adopted, and the Mitigation 2 Monitoring and Reporting Plan is hereby adopted. 3 4 SECTION IN. CONDITIONAL USE PERMIT 5 NOW, THEREFORE BE IT RESOLVED that the Planning Commission hereby 6 approves Conditional Use Permit No. 07-15 based upon the Findings of Fact contained in 7 8 the Planning Commission Staff Report dated October 28, 2009, attached to this 9 Resolution as Exhibit 3 and incorporated herein by reference, and subject to the 10 Conditions of Approval and Standard Requirements (Attachments C and D to the 11 Planning Commission Staff Report dated October 28, 2009). 12 SECTION V. NOTICE OF DETERMINATION 13 In accordance with the provisions of this Resolution, the Planning Division is 14 15 hereby directed to file a Notice of Determination with the County of San Bernardino 16 Clerk of the Board of Supervisors certifying the City's compliance with the California 17 Environmental Quality Act in preparing and adopting the Final Environmental Impact 18 Report, the Facts, Findings and Statement of Overriding Considerations, and the 19 Mitigation Monitoring and Reporting Plan. A copy of the Notice of Determination will be 20 forwarded to the State Clearinghouse. 21 22 23 24 25 26 27 28 5 RESOLUTION OF THE CITY OF SAN BERNARDINO PLANNING COMMISSION ADOPTING THE FACTS, FINDINGS AND STATEMENT OF OVERRIDING CONSIDERATIONS, CERTIFYING THE FINAL ENVIRONMENTAL IMPACT REPORT, ADOPTING THE MITIGATION MONITORING AND REPORTING PLAN AND APPROVING CONDITIONAL USE PERMIT NO. 07-15 FOR THE HIGHLAND AVENUE WAL-MART EXPANSION PROJECT. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Planning Commission of the City of San Bernardino at a regular meeting thereof,held on the 18th day of November , 2009,by the following vote to wit: Members: Ayes Nays Abstain Absent COUTE DURR X EBLE X HEASLEY X LONGVILLE MULVIHILL X MLTROZ X RAWLS X SAUERBRUN X Planning Comfnission The foregoing resolution is hereby approved as of the day of 2009. Alarming Commission C airman Approved as to form: By: Henry Empeno Jr.' r. Senior Deputy City Attorney 6 EXHIBIT 2 Facts, Findings and Statement of Overriding Considerations Regarding the Environmental Effects from the Environmental Impact Report for the Highland Wal-Mart Expansion Project State Clearinghouse No. 2007-121072 SECTION 1 THE PROJECT A. Project Description The proposed project consists of expanding the existing 129,794-square-foot Wal-Mart store by 41,644 square feet to 171,438 square feet with all appurtenant structures and facilities. The project site is located in the City of San Bernardino, San Bernardino County, California. The 15.13-acre project site is located within the Highland Avenue Plaza shopping center, which is located at the far eastern end of the San Bernardino city limits at the intersection of Highland Avenue and Boulder Avenue. The project site contains an existing Wal-Mart discount store, which occupies the eastern portion of the shopping center. The project site is generally bounded by the Highland Avenue Plaza(west), the Mountain Shadows Mobile Home Community (north), N. Frontage Road (east), and Boulder Avenue (south). The expansion would occur on the west and east sides of the existing store. The expanded store would retail a full line of groceries in addition to the general merchandise currently sold in the existing store. In order to accommodate the proposed expansion, the Tire & Lube Express would be permanently removed. The existing 4,982-square-foot garden center would also be demolished and replaced with a larger 10,427- square-foot garden center. The expanded store would include, without limitation, new truck doors and loading facilities. The store would operate 24 hours a day. B. Project Objectives The primary Project objectives are as follows: • Enhance the commercial retail opportunities in the City of San Bernardino and the larger East Valley. • Provide regional commercial retail activities that will complement existing local retail activities in the City of San Bernardino and the larger East Valley. • Provide commercial development that creates new job opportunities for local residents. 1 W8944fighUnJ_t'A- 4230S2 I • Provide a regional retail establishment that serves local residents and visitors with essential goods and services in a safe and secure, 24-hour shopping environment. • Promote economic growth and development that is consistent with the policies of the City of San Bernardino General Plan. • Generate sales tax and property tax revenues to accrue to the various agencies within the project area. • Pay for its fair share of impacts and positively contribute to the local economy. • Minimize travel lengths and utilize existing infrastructure to the maximum extent possible by expanding an existing Wal-Mart store. • Ensure that commercial development has sufficient onsite parking to minimize impacts to the surrounding area and ensure that adequate parking is provided for customers and employees. • Develop an architectural design that softens the scale and mass of the buildings with features designed to blend with the surrounding area. • Provide landscaping to soften the design and create a pleasant, attractive appearance that complements the surrounding area. SECTION 2 FINDINGS The City of San Bernardino conducted an extensive review of this Project which included a Notice of Preparation, Initial Study, Notice of Availability, a Draft EIR, and a Final EIR, including technical reports; along with a public review and comment period. Hereafter, the Notice of Preparation, Initial Study, Notice of Availability, Draft EIR, Technical Studies, Final EIR containing Responses to Comments and textual revisions to the Draft EIR, and the Mitigation Monitoring and Reporting Program will be referred to collectively herein as the EIR. At a regular meeting assembled on October 28, 2009, the Planning Commission of the City of San Bernardino determined that, based upon all of the evidence presented, including, but not limited to the EIR, written and oral testimony given at meetings and hearings, and submission of testimony from the public, organizations and regulatory agencies, the following impacts associated with the Project are either: (1) less than significant and do not require mitigation; or (2) potentially significant but will be avoided or reduced to a level of insignificance through the identified mitigation measures and/or implementation of an environmentally superior alternative to the proposed Project; or (3) significant and cannot be fully mitigated to a level of less than significant but will be substantially lessened to the extent feasible by the identified mitigation measures. 2 W894.Highland CA--J?dUS21 SECTION 3 LESS THAN SIGNIFICANT ENVIRONMENTAL IMPACTS NOT REQUIRING MITIGATION The Planning Commission of the City of San Bernardino hereby finds that the following potential environmental impacts of the Project are less than significant and therefore do not require the imposition of mitigation measures: A. Aesthetics 1. Scenic Vistas: Harrison Mountain, McKinley Mountain, and the San Bernardino Mountains are the most prominent scenic vistas within view of the project site. (DEIR p. 4.1-11.) The proposed project would expand the existing 129,794-square-foot store Wal-Mart store by,41,644 square feet to a total of 171,438 square feet. (Id.) The expansion would be located in the east side of the store on an area that currently contains a Tire & Lube Express, a garden center, loading docks, and parking. (Id.) The viewpoints of most concern in the project vicinity would be from the mobile home park located north of the project site and views from public roadways east and south of the project site. (Id.) Because the mobile home park is located north of the project site, its views of Harrison Mountain and the San Bernardino Mountains would not be affected by the proposed project. The two public roadways in the project vicinity that could potentially have views altered are N. Frontage Road and E. Highland Avenue. N. Frontage Road is located east of the project site; therefore, its views of Harrison Mountain and the San Bernardino Mountains would not be affected by the proposed project. E. Highland Avenue is located south of the project site. Because the existing Wal-Mart store is setback more than 200 feet from E. Highland Avenue, the store does not impede any views of Harrison Mountain or the San Bernardino Mountains from the roadway. (Id.) Therefore, the expansion of the store, which would maintain the existing roofline elevation, would not adversely affect any views of scenic vistas. Impacts would be less than significant. (Id.) Accordingly,no mitigation is required. 2. State Scenic Highways: The segment of SR-330 near the project site is designated as an eligible State Scenic Highway. (DEIR p. 4.1-12.) The freeway is located in a depression and does not have views of the project site because of an embankment along the west side of the roadway. (Id.) Therefore, the development of the proposed project would not damage or destroy scenic resources within view of a State Scenic Highway. (Id.) Impacts would be less than significant. Accordingly, no mitigation is required. 3. Visual Character: The Project's design is consistent with all provisions of the City's General Plan, and the City's Development Code. (DEIR p. 4.1-13.) In addition, the presence of the existing Wal-Mart store, the expansion and upgrade of the store would not be considered a substantial change in the visual character of the project site. Moreover, the architectural features and landscaping designed into the proposed project are intended to provide a visually appealing commercial retail development that attracts potential customers. As such, it would be expected to enhance the aesthetics of the project site. 3 Wg? Highlm CA--42"21 The two surrounding land uses of most concern from a visual character perspective are the Highland Avenue Plaza and the Mountain Shadows Mobile Home Community. (DEIR p. 4.1- 14.) The existing Wal-Mart store's architecture reflects the design elements of the other structures in the Highland Avenue Plaza. (Id.) The proposed project would maintain the visual appearance of the Wal-Mart store and, therefore, would maintain consistency with the appearance of the other structures in the Highland Avenue Plaza. (Id.) Moreover, the proposed project would implement landscaping through its portion of the Highland Avenue Plaza, which would enhance the overall appearance of the shopping center. (Id.) Accordingly, the visual character of the Highland Avenue Plaza would not be degraded by the proposed project. The Mountain Shadows Mobile Home Community is located north of the project site and is approximately 25 feet higher in elevation than the Wal-Mart store. (Id.) The existing slope between the mobile home park and the rear of the Wal-Mart store is landscaped and includes a 6- foot-high masonry block wall located along the property boundary. (Id.) The proposed project would expand the western and eastern portions of the store and maintain the existing rear wall of the store. (Id.) Both expansion areas are not visible to most of the mobile home park because they are screened from view by the existing store, the block wall, and landscaping. (Id.) The proposed project would maintain the block wall and the landscaping. Accordingly, the visual character of the mobile home park would not be degraded by the proposed project but would remain nearly identical to its current condition. (Id.) For these reasons, the proposed project would not substantially degrade the visual character of the project site. Accordingly, no mitigation is required. B. Air Quality 1. Operational Emissions: Operational, or long-term, emissions occur over the life of the project. Operational emissions include mobile and area source emissions. Area source emissions are from consumer products, natural gas usage, gasoline-powered landscape equipment, fireplaces, and architectural coatings (painting). Mobile emissions from motor vehicles are the largest single long-term source of air pollutants from the project. (DEIR 4.2-26.) Operational emissions from all emission sources were generated by the URBEMIS2007 model using trip generation information presented in the Traffic Impact Analysis performed by Urban Crossroads. (Id.) Analysis was conducted for full operation of the project in 2010. The analysis used the modified trip rate that accounted for reduction associated with pass-by, as presented in the Traffic Impact Analysis, thus the pass-by option in URBEMIS was turned off. (Id.) The emissions associated with the operation of the project are shown in Table 4.2-11 of the DEIR, which shows that no regional threshold would result in an exceedance. (Id.) Therefore, operational emissions would be a less than significant impact. Accordingly, no mitigation is required. 2. Carbon Monoxide Hotspot: The Traffic Impact Study prepared by Urban Crossroads (Appendix G or the DEIR) concluded that two study intersections were shown to operate at LOS F during peak hours in the near-term operations. (DEIR 4.2-27.) Even though the TIA showed that both could be mitigated to LOS C or better, for the purposes of providing a conservative approach, these intersections (Highland Avenue at North Frontage Road and Boulder Avenue at Pacific Street) were analyzed using the CALINE4 model. (Id.) As shown in Table 4.2-12 of the DEIR, the estimated 1-hour and 8-hour average CO concentrations in 4 „rl;,,LghiaW CX J;JOF]1 combination with background concentrations are below the state and national ambient air quality standards. (Id.) Therefore, the mobile emissions of CO from the project are not anticipated to contribute substantially to an existing or projected air quality violation of CO. (Id.) Carbon Monoxide Hotspot impacts would be less than significant. Accordingly, no mitigation is required. 3. Cumulative Criteria Pollutants: The Basin is in nonattainment for ozone, PM10, and PM2.5, which means that the background levels of these pollutants are, at times, higher than the ambient air quality standards. (DEIR 4.2-31.) The air quality standards were set to protect public health, including the health of sensitive individuals (i.e., elderly, children, and the sick). (Id.) When the concentration of those pollutants exceeds the standard, some sensitive individuals in the population may experience health effects. (Id.) Here, the regional significance analysis of construction emissions demonstrated that emissions of PM10, PM2.5, and NOx would not be over the SCAQMD regional significance thresholds. (Id.) Therefore, according to this criterion, the project would not result in a significant cumulative impact to PM10, PM2.5, and ozone during construction. The regional significance analysis of operational impacts indicates that the project would not exceed regional significance thresholds at buildout. (Id.) Therefore, according to this criterion, the project would not result in a significant cumulative impact to ozone, PM10, and PM2.5. Accordingly, no mitigation is required. 4. Diesel Particulate Matter Heath Risks: Cancer risk is calculated by applying a risk characterization model to the results from the air dispersion model to estimate potential health risks at each sensitive receptor location. (DEIR 4.2-34.) The total individual excess cancer risk is summarized in Table 4.2-15 of the DEIR for year 2010. (Id.) As shown in Table 4.2-15 of the DEIR, the lifetime excess cancer risks associated with the operation of the project are not expected to exceed the SCAQMD cancer risk significance level of 10 in 1 million at any nearby sensitive receptor. (DEIR 4.2-35.) The maximum calculated non-cancer chronic risk from the operation of the project was found to be 0.0006 for the chronic non-cancer risk. (Id.) These values are substantially less than the SCAQMD non-cancer risk threshold of 1.0. Therefore, impacts would be less than significant. Accordingly,no mitigation is required. 5. Sensitive Receptors: The construction equipment would emit diesel particulate matter, which is a carcinogen. (DEIR 4.2-36.) However, the diesel particulate matter emissions are short-term in nature. (Id.) Determination of risk from diesel particulate matter is considered over a 70-year exposure time. (Id.)Considering the dispersion of the.emissions and the short time frame, exposure to diesel particulate matter is anticipated to be less than significant. (Id.) A CO hotspot analysis is the appropriate tool to determine if project emissions of CO during operation would exceed ambient air quality standards. (Id.) The main sources of air pollutant emissions during operation are from offsite motor vehicles traveling on the roads surrounding the project. (Id.) The CO hotspot analysis demonstrated that emissions of CO during operation would not exceed the most stringent ambient air quality standards for CO. (Id.) Therefore, according to this criterion, the impact of air pollutant emissions to sensitive receptors during operation would result in a less than significant impact. (Id.) A Health Risk Assessment was prepared for the proposed project that evaluated the potential for nearby sensitive receptors to be exposed to substantial concentrations of diesel particulate matter from project-related truck emissions. (Id.) The Health Risk Assessment found that concentrations of diesel particulate 5 W89 High Lmd-CA-4230&21 matter at nearby sensitive receptors would not exceed exposure standards. (Id.) In summary, the proposed project would not expose sensitive receptors to substantial pollutant concentrations during operation. Impacts would be less than significant. Accordingly, no mitigation is required. 7. Climate Change/Greenhouse Gas Emissions: The proposed project is ' anticipated to result in an annual net increase of approximately 0.01 MMTCO2e. (FEIR 3-19.) It is anticipated that the project would not be significantly impacted from rising sea levels or other secondary effects of global climate change. (Id.) It has been shown that the project is consistent with California strategies to reduce greenhouse gas emissions to 1990 levels, it complies with the CARB's early action measures, and it would satisfy the Attorney General's suggested mitigation measures. (Id.) Although the proposed project would intensify the urban uses onsite, the _ incremental increase in greenhouse gas emissions resulting from the proposed project would be marginal, given the existing uses of the site. (DEIR 4.2-48.) In view of the marginal increase relative to the existing baseline conditions, this increase would not be considered significant on a local, regional, state, national, or global level. Moreover, the proposed project incorporates feasible greenhouse gas emissions reduction features and mitigation measures, AES-4, PSU-3a, PSU-3b, PSU-6, TRANS-6a and TRANS-6b that directly or indirectly reduce greenhouse gas emissions from the proposed project. (Id.) For these reasons, the proposed project's greenhouse gas emissions would not be cumulatively considerable. Impacts would be less than significant. Accordingly, no mitigation is required. 7. Climate Change Effects: The existing store is currently served by Southern California Edison (SCE). (DEIR 4.2-50.) SCE's primary sources of electricity are nuclear, hydroelectric, natural gas, and coal. (Id.) Approximately 16 percent of SCE's electricity from renewable sources (i.e., wind, solar, biomass, small hydroelectric, and geothermal) and this percentage is expected to increase in the coming years because of the Renewable Portfolio Standards contained in AB 32. (Id.) Accordingly, increased electricity usage attributable to the proposed project would not necessarily result in increased criteria pollutant or greenhouse gas emissions. (Id.) Moreover, the proposed project incorporates the building energy efficiency mitigation measures identified in Section 3 of the DEIR, Project Description. (Id.) These measures would promote energy efficiency, which would reduce the inefficient, unnecessary, and wasteful consumption of energy. (Id.) For these reasons, the proposed project's consumption of electricity would not have a significant impact on climate change. The project site is more than 45 miles from the Pacific Ocean. (Id.) Accordingly, this condition precludes the possibility of the proposed project being exposed to sea level rise. The project site is located in an urban, built-up area and is not near any wildlands or undeveloped areas. Accordingly, the project site is not susceptible to wildland fires. (Id.) The proposed project would include the installation of fire suppression systems (e.g., fire hydrants, fire sprinklers, smoke detectors). (Id.) These systems would be designed in accordance with the latest standards of the California Fire Code and would be considered adequate to provide fire suppression to the project site. (Id.) The San Bernardino City Fire Department would provide fire protection to the proposed project. (Id.) The Fire Department did not indicate that it had any wildfire susceptibility concerns about the proposed project. (Id.) Therefore, the proposed project would not be at risk of wildfires. 6 N'R�a-H lghlaW.CA—J3103]I The East Valley Water District (EVWD) would provide the proposed project with potable water. (DEIR 4.2-51.) As discussed in Section 4.9, Public Services and Utilities, EVWD obtains its water from groundwater and surface water sources. Combined, both sources can provide more than 62,000 acre-feet of water on an annual basis, which is well in excess of existing demand of 30,000 acre-feet annually. (Id.) EVWD indicated that it anticipates having enough water supplies to serve the proposed project. (Id.) Nonetheless, the proposed project would implement various outdoor and indoor water efficiency mitigation measures to reduce water demand. (Id.) Finally, the proposed project consists of a commercial retail project, a type of land use that is not considered water-intensive. (Id.) For these reasons, the proposed project would not create a significant impact to water supply due to climate change. (FEIR 3-19) Therefore the proposed project will not have any significant impacts relating to Climate Change. Accordingly, no mitigation is required. C. Geology Soils & Seismicity 1. Ground Failure/Liquefaction: The Geotechnical Investigation Report concluded that because of the coarse nature of the subsurface materials and the absence of shallow groundwater, the project site would not be susceptible to liquefaction in a seismic event. (DEIR 4.4-19.) In addition, Figure S-5 (Liquefaction Hazards) of the City of San Bernardino General Plan indicates that the project site is not within an area of "High Liquefaction Susceptibility" or "Moderate High to Moderate Liquefaction Susceptibility." (Id.) Finally, Figure S-6 (Subsidence Potential) of the City of San Bernardino General Plan indicates that the project site is not within an area of"Potential Ground Subsidence." (Id.) Therefore, the proposed project would not be susceptible to ground failure or liquefaction. (Id.) Impacts would be less than significant. Accordingly, no mitigation is required. 2. Landslides: A slope is present along the northern boundary of the project site. This slope is protected by a retaining wall and is vegetated with trees and shrubs. (DEIR 4.4-20.) A V-shaped concrete drainage ditch runs along the top of the slope and serves to convey runoff to the east. (Id.) Overall, the slope is in good condition, and the retaining wall, vegetation, and drainage ditch adequately protect it from failure. Figure S-7 (Slope Stability and Major Landslides) of the City of San Bernardino General Plan indicates that the project site is adjacent to an area of low generalized slope relief, with low to moderate landslide potential. (Id.) Given the good condition of the slope along the northern boundary of the project site, the potential for landslides would be low. (Id.) The proposed project would not modify the slope, retaining wall, vegetation, or drainage ditch in any way. (Id.) As such, the potential for slope failure or landslides would not affected by the proposed project. Therefore, impacts would be less than significant. Accordingly, no mitigation is required. 3. Unstable Geologic Units: The project site was previously graded and soil engineered during the development of the existing Wal-Mart store in the early 1990s. (DEIR 4.4- 21.) Accordingly, the soils underlying the project site have been conditioned to support urban development and are considered stable soils and geologic units. (Id.) Therefore, the proposed 7 W84411ighland CA--{»OC 1 project's structures would not be located on an unstable geologic unit. Impacts would be less than significant. Accordingly, no mitigation is required. 4. Expansive Soils: The Geotechnical Investigation Report included laboratory testing of onsite soils for expansion potential and found that soils on the project site have a very low expansion potential. (DEIR 4.4-22.) Therefore, the proposed project would not be exposed to hazards associated with shrinking and swelling of expansive soils. (Id.) Impacts would be less than significant. Accordingly, no mitigation is required. D. Hazards 1. Risk of Upset: Project construction activities may involve the use and transport of hazardous materials. These materials may include fuels, oils, mechanical fluids, and other chemicals used during construction. (DEIR 4.5-10.) Transportation, storage, use, and disposal of hazardous materials during construction activities would be required to comply with applicable federal, state, and local statutes and regulations. (Id.) Compliance would ensure that human health and the environment are not exposed to hazardous materials. In addition, Mitigation Measure HYD-la requires the project applicant to implement a Stormwater Pollution Prevention Plan during construction activities to prevent contaminated runoff from leaving the project site. (Id.) Therefore, no significant impacts would occur during construction activities. The existing Wal-Mart store is not a large-quantity user of hazardous materials, r nor would the expanded store. Small quantities of hazardous materials would be used onsite, l including cleaning solvents (e.g., degreasers, paint thinners, and aerosol propellants), paints (both latex- and oil-based), acids and bases (such as many cleaners), disinfectants, and fertilizers. (DEIR 4.5-11.) These substances would be stored in secure areas and would comply with all applicable storage, handling, usage, and disposal requirements. (Id.) The potential risks posed by the use and storage of these hazardous materials are primarily limited to the immediate vicinity of the materials. In addition, the store may include a medical clinic; there is the potential for storage, transport, and disposal of biomedical wastes. (Id.) Transport of these materials would be performed by commercial vendors who would be required to comply with various federal and state laws regarding hazardous materials transportation. (Id.) As such, these materials are not expected to expose human health or the environment to undue risks associated with their use. In summary, the proposed project would not potentially create a significant hazard to the public or the environment from routine transport, use, or disposal of hazardous materials or through the reasonably foreseeable upset and accident conditions. (Id.) Impacts would be less than significant. Accordingly, no mitigation is required. 2. Emergency Response & Evacuation: The proposed project consists of an expansion of an existing Wal-Mart store located on a commercial corridor. (DEIR 4.5-11.) The project site is located in an area where existing emergency response times for fire protection, emergency medical services, and law enforcement meet adopted standards. (Id.) Both the San Bernardino City Fire Department and the San Bernardino Police Department have indicated that the proposed project would not impair their ability to respond to emergencies at the project site or in other parts of the community. (Id.) In addition, the proposed project does not include any characteristics (e.g., permanent road closures) that would physically impair or otherwise interfere 8 with emergency response or evacuation in the project vicinity. (DEIR 4.5-12.) Therefore, the proposed project would not impair or obstruct emergency response or evacuation. Impacts would be less than significant. Accordingly, no mitigation is required. E. Hydrology and Water Quality 1. Groundwater: There are no existing groundwater wells on the project site, and none are proposed as part of the proposed project. (DEIR 4.6-13.) The existing Wal- Mart store is—and the proposed expansion of the store would be—served by the East Valley Water District (EVWD) potable water system. (Id.) EVWD primarily obtains its water from Bunker Hill Subbasin, which encompasses the San Bernardino Valley. (Id.) The subbasin is not in a state of overdraft, and EVWD indicates that it would be able to serve the proposed project with existing resources and infrastructure. (Id.) The proposed project would prevent degradation of groundwater quality through implementation of the stormwater treatment controls and practices identified in Mitigation Measures HYD-1 and HYD-2. (Id.) The proposed project would not result in a substantial net increase in impervious surface coverage above the existing condition. (Id.) Therefore, the proposed project would not result in groundwater overdraft or degradation of groundwater quality. Impacts would be less than significant. Accordingly, no mitigation is required. 2. Drainage: The Conceptual Utility Plan prepared by the project engineer identifies the location and type of drainage facilities that would be developed as part of the proposed project. (DEIR 4.6-14.) The plan indicates that most of the existing storm drainage infrastructure would be maintained and expanded to serve the larger store. (Id.) Four new catch basins would be installed on the project site to detain runoff and prevent releases of stormwater runoff that would exceed runoff rates associated with the pre-development condition of the project site. (Id.) New piping would be installed around the expanded portion of the store to collect and convey runoff to the City storm drain line located within the Highland Avenue right- of-way. (Id.) With the installation of these drainage improvements, adequate storm drainage would be provided, and no downstream facilities would be necessary to prevent flooding caused by project runoff. Impacts would be less than significant. Accordingly, no mitigation is required. F. Land Use 1. Division of an Established Community: The proposed project consists of the expansion of the existing Wal-Mart store on the project site. (DEIR 4.7-7.) The store would be expanded on the west and east sides. The west expansion area contains undeveloped land. The east expansion area contains the garden center, Tire & Lube Express, and a parking area. No established communities exist within the expansion areas; therefore, none would be displaced or divided by the proposed project. Impacts would be less than significant. Accordingly, no mitigation is required. 2. General Plan Consistency: The project site (and the entire Highland Avenue Plaza) is designated "General Commercial' by the General Plan. (DEIR 4.7-8.) For the General Commercial designation, the General Plan allows the following uses: local and regional serving retail, personal service, entertainment, office, related commercial uses, and limited [ ) residential uses with a Conditional Use Permit. (Id.) The proposed project, as well as the 9 WM 4 tl,h4nd CA—373052 1 _ Highland Avenue Plaza, would qualify as a "local and regional serving retail." (Id.) The General Plan limits development in the General Commercial designation to a maximum FAR of 0.7. (Id.) The proposed project would have a FAR of 0.26, which would be within the maximum allowable limit. Therefore, the proposed project would comply with the development regulations of the General Commercial land use designations. Table 4.7-2 of the DEIR summarizes the proposed project's consistency with all applicable goals and policies of the General Plan. The proposed project would be consistent with applicable goals and policies. (Id.) impacts would be less than significant. Accordingly, no mitigation is required. 3. Development Code Consistency: The Development Code identifies the General Commercial (CG-1) zoning district as supporting the continued use, expansion, and new development of administrative and professional offices, hospitals, and supporting retail uses in proximity to major transportation corridors that are compatible with adjacent residential and commercial uses. (DEIR 4.7-30.) The proposed project consists of the expansion of an existing Wal-Mart store located in a shopping center on a major arterial roadway. Therefore, the proposed project would be consistent with the allowed uses of the General Commercial (CG-1) zoning district. (Id.) The proposed project would expand the existing Wal-Mart store by 41,644 square feet. The expanded store would total 171,438 square feet and contain 161,011 square feet of interior uses and 10,427 square feet of outdoor garden center uses. (Id.) Because the outdoor garden center would total less than 15,000 square feet, it would not require a Development Permit. (Id.) The roofline of the store would range from 20 feet to 29 feet, four inches. The rounded gable over the main entrance would have a maximum height of 34 feet above grade. The Development Code establishes a 30-foot height limit for the General Commercial (CG) zoning district, but exempts minor architectural projections from this limit. (Id.) City staff indicates that the rounded gable would be fall within the exemption. In summary, the proposed project would be consistent with all applicable provisions of the Development Code's requirements for the General Commercial (CG-1) zoning district. Impacts would be less than significant. Accordingly, no mitigation is required. G. Noise 1. Vibration: The proposed project would relocate a truck loading area and add an additional truck loading area. In addition, the proposed project would increase the truck traffic from 21 trips per week to 57 trips per week. (DEIR 4.8-42.) As shown in Exhibit 4.8-1 of the DEIR, a truck would typically produce a vibration level of 63 VdB at 50 feet. (Id.) This would result in a vibration level of 57.4 VdB at the nearest residence to the eastern truck loading area and a vibration level of 52.9 VdB at the nearest residence to the western truck loading area. (Id.) Therefore, vibration impacts from the ongoing operations of the proposed project would be less than significant. 2. Offsite Vehicular Noise: The noise level contributions from the proposed project to the study area roadways would range from 0.0 to 0.2 dBA CNEL under Near-Term conditions. (DEIR 4.8-49.) The greatest project contribution of 0.2 dBA would occur on Highland Avenue between Boulder Avenue and SR-330. (Id.) A 0.2-dBA noise increase is below the thresholds of significance. (Id.) Therefore, for the near-term conditions, no significant, long- 10 W89 -HIghlapd C.4--1130.¢21 term, offsite noise impacts from project related vehicle noise would occur along the study area roadways segments. The noise level contributions from the proposed project to the study area roadways would range from 0.0 to 0.2 dBA CNEL under year 2030 conditions. (DEIR 4.8-50.) The greatest project contribution of 0.2 dBA would occur on Highland Avenue between Boulder Avenue and SR-330, and on Pacific Street east of Boulder Avenue. (Id.) (The proposed project would increase the traffic by 40 vehicles per day on this section of Pacific Street for both scenarios; the difference in noise increases between scenarios is due only to rounding of the traffic volumes.) (Id.) A 0.2-dBA noise increase is below the thresholds of significance. (Id.) Therefore, for the year 2030 conditions, no significant, long-term, offsite noise impacts from project-related vehicle noise would occur along the study area roadways segments. Accordingly, impacts relating to offsite vehicular noise would be less than significant and no mitigation is required. 3. Combined Stationary and Transportation Noise: The City's Municipal Code has established performance standards to control stationary source/nontransportation related noise impacts. (DEIR 4.8-51.) A stationary noise impact would be considered significant if the onsite interior noise level exceeds 55 dBA CNEL or if the noise level exceeds 65 dBA CNEL at the exterior areas of the nearby mobile homes. (Id.) Table 4.8-25 of the DEIR shows that for the near-term without project scenario, only Receiver 7 would exceed the City's 65-dBA CNEL exterior stationary noise standard. (DEIR 4.8-55.) For the near-term with project scenario, no nearby homes would exceed the City's 65-dBA CNEL exterior noise standard. Receivers 7 and 8 are located adjacent to the existing truck loading area, which would be removed and relocated further to the east with development of the proposed project; because of this, the noise levels would decrease at these receivers with development of the proposed project. (Id.) Therefore, the proposed project would not be anticipated to create a significant stationary noise impact at any of the nearby homes. Table 4.8-26 of the DEIR shows that the proposed project's combined transportation and noise impacts would create the largest noise increase at Receiver 3, whose noise level would increase by 3.0 dBA CNEL over the near-term without project noise level of 57.1 dBA CNEL. (DEIR 4.8-56.) The project-related, combined stationary- and transportation- related noise increases are below the thresholds of significance defined above. Therefore, the combined stationary and transportation interior and exterior noise impacts from the operations of the proposed project would be less than significant. Accordingly, no mitigation is required. H. Public Services and Utilities 1. Fire Protection and Emergency Medical Services: Given the increase in square footage and the 24-hour operation of the store, the Fire Department anticipates the store would generate 10 additional calls for service on an annual basis. (DEIR 4.9-21.) When applied to the 28 calls generated by the store in 2007, this would result in 38 calls for service. (Id.) In its 11 11 N'>L Ihg6lanJ G—J?_!US]1 response to a questionnaire provided in Appendix F, the Fire Department did not indicate that this increase in calls for service would represent a significant burden on its resources. (Id.) The Fire Department did not indicate that new or expanded fire facilities would be necessary to serve the proposed project. (Id.) The proposed project would contribute money toward ongoing fire facilities needs through the City's Development Impact Fee program. (Id.) Therefore, the proposed project would not result in physical impacts on the environment from the construction or expansion of fire facilities. Accordingly, impacts would be less than significant and no mitigation is required. 2. Police Protection: Given the increase in square footage and the 24-hour operation of the store, the Police Department anticipates the store would result in a 25- to 50- percent increase in calls for service above existing levels. (DEIR 4.9-21.) When applied to the 272 calls generated by the store in 2007, this would result in an estimated 340 to 408 calls for service on an annual basis. (DEIR 4.9-22.) The Police Department did not indicate that additional officers would be required as a result of the proposed project. (Id.) The Police Department did not indicate that new or expanded police facilities would be necessary to serve the proposed project. (Id.) The proposed project would contribute money toward ongoing police facilities needs through the City's Development Impact Fee program. (Id.) Therefore, the proposed project would not result in physical impacts on the environment from the construction or expansion of police facilities. (Id.) Accordingly, impacts would be less than significant and no mitigation is required. 3. Wastewater: Table 4.9-17 of the DEIR summarizes the proposed project's estimated wastewater generation. The estimate is based on a standard assumption that wastewater generation represents 90 percent of domestic water consumption. (DEIR 4.9-24 & 25.) As shown in the table, the proposed project would result in a net increase of 1,590 gallons per day. (Id.) The City of San Bernardino's wastewater reclamation plant has 33.0 mgd of capacity and currently treats an average of 28.0 mgd. (Id.) Based on the available capacity, the reclamation plant could readily accommodate the proposed project's wastewater flows without a need for new or expanded facilities. (Id.) Therefore, adequate treatment capacity would be available to serve the proposed project. Accordingly, impacts would be less than significant and no mitigation is required. 4. Storm Drainage: The Conceptual Utility Plan prepared by the project engineer identifies the location and type of drainage facilities that would be developed as part of the proposed project. (DEIR 4.9-25.) The plan indicates that most of the existing storm drainage infrastructure would be maintained and expanded to serve the larger store. (Id.) Four new catch basins would be installed on the project site to detain runoff and prevent releases of stormwater runoff that would exceed runoff rates associated with the pre-development condition of the project site. (Id.) New piping would be installed around the expanded portion of the store to collect and convey runoff to the City storm drain line located within the Highland Avenue right- of-way. (Id.) With the installation of these drainage improvements, adequate storm drainage would be provided, and no downstream facilities would be necessary to serve the proposed 12 WSIM,H ighl.mQ_CA-423082 1 project. (Id.) Accordingly, impacts would be less than significant and no mitigation is required. 5. Energy: SCE would serve the proposed project with electricity, and the Southern California Gas Company would serve the project with natural gas. (DEIR 4.9-28.) Table 4.9-20 of the DEIR provides an estimate of the proposed project's annual electricity and natural gas consumption. (Id.) These figures were derived from energy consumption rates provided by the United States Energy Information Administration. (Id.) The consumption rates are based on national consumption figures for commercial buildings that operate continuously and, therefore, likely overstate actual consumption because the figures include structures located in different climate regions or states with less stringent energy efficiency standards than those in California. (Id.) The proposed project's structures would be designed in accordance with Title 24, California's Energy Efficiency Standards for Residential and Nonresidential Buildings. (Id.) These standards include minimum energy efficiency requirements related to building envelope, mechanical systems (e.g., HVAC and water heating systems), indoor and outdoor lighting, and illuminated signs. (DEIR 4.9-29.) The incorporation of the 2005 Title 24 standards into the project would ensure that the project would not result in the inefficient, wasteful, or unnecessary consumption of energy. (Id.) In addition, the expanded Wal-Mart store would contain a number of energy efficiency measures that are above and beyond 2005 Title 24 standards. (Id.) When implemented in a Wal-Mart store prototype, these additional energy efficiency features have been found to exceed the 2005 Title 24 standards by 9 percent. (DEIR 4.9-30.) In summary, the proposed project incorporates energy efficiency measures that exceed minimum state standards and, therefore, would not result in the inefficient, unnecessary, or wasteful use of energy. Accordingly, impacts would be less than significant and no mitigation is required. I. Transportation 1. Parking & Loading: a. Parking: The proposed store expansion would occur on an existing parking area located on the east side of the project site. (DEIR 4.10-81.) The proposed project would offset parking lost to the store expansion by developing a new parking area on an undeveloped parcel located between the main vehicular entrance on Highland Avenue and the Tarbell Realty parcel. (Id.) In total, the store expansion would provide 772 vehicular parking spaces and 16 cart corrals. (Id.) The Development Code requires that parking be provided for commercial retail land uses at a ratio of no less than one space per 250 gross square feet. (Id.) When this ratio is applied to the proposed building square footage of 171,438, it yields a minimum requirement of 686 spaces. (Id.) According, the proposed project would exceed to the City's minimum vehicular parking requirements by 86 spaces. (Id.) Accordingly, impacts would be less than significant and no mitigation is required. b. Loading: The Development Code requires that at least one off- street loading space be provided for commercial retail land uses of 25,000 square feet or V 13 W"4 Highland_CA-.4210921 more, and if deemed necessary by the Planning Director, additional spaces may be required. (DEIR 4.10-81.) Each loading space is required to be adjacent or close to the structure and be situated to ensure that no loading activities occur in public rights-of-way. (Id.) Finally, vehicle maneuvers (e.g., three-point turns) to access the loading space must occur onsite. (DEIR 4.10-82.) As shown in Exhibit 3-4, the proposed project would provide five truck doors, with two bays on the west side of the building and the remaining three on the east side. (Id.) Each truck door provides capacity for one full-size tractor-trailer and allows for direct loading and unloading from inside the back-room- areas. (Id.) The west truck doors would be accessed from Piedmont Drive via the delivery drive aisle, and the east truck doors would be accessed from the main entrance at Highland Avenue and Boulder Avenue. (Id.) There would be sufficient paved-areas near each truck door to allow truck maneuvers to access each bay. (Id.) Therefore, sufficient off-street loading facilities would be provided in accordance with Development Code standards. Accordingly, impacts would be less than significant and no mitigation is required. 2. Emergency Access: The proposed project would maintain the locations of the five existing access points serving the project site. (DEIR 4.10-82.) These access points would be a minimum of 36 feet wide, which would be adequate for a large emergency vehicle such as a fire engine. (Id.) In addition, both the San Bernardino City Fire Department and the San Bernardino Police Department have indicated that they do not foresee any problems responding to emergencies at the proposed project. (Id.) Finally, the proposed project would not create any obstructions to emergency access on surrounding roadways (e.g., permanent road closures). (Id.) Therefore, the proposed project would have adequate emergency access. Accordingly, impacts would be less than significant and no mitigation is required. 3. Roadway Hazards: The proposed project would maintain the locations of the five existing access points serving the project site. (DEIR 4.10-83.) All five access points have clear lines of sight and are considered safe. Internal drive aisles would be a minimum of 25 feet wide, a standard width for parking lots, and would allow for safe circulation within the project site. (Id.) In addition, the proposed project does not propose any circulation features that may create hazards (e.g., round-abouts, hairpin turns, etc.). (Id.) Therefore, the proposed project would not create any roadway hazards. Accordingly, impacts would be less than significant and no mitigation is required. I Urban Decay 1. Urban Decay: The proposed project's change in square footage (41,644) is within the range of supportable square footage for all sales volume figures for 2007 to 2015 in the Primary Market Area. (DEIR 4.11-17.) As a result, the proposed project would not significantly impact existing competitive grocery-oriented retailers in the Primary Market Area. (Id.) Accordingly, the proposed project is not anticipated to result in substantial business vacancies, physical deterioration of vacant structures, or any other symptom that would directly or indirectly result in adverse physical changes to the environment. (Id.) 14 1VE1NigM1IpnJ lA—J_10N]I The proposed project's change in square footage (41,644) is within the range of supportable square footage for all sales volume figures for 2007 to 2015 in the Secondary Market Area. (DEIR 4.11-18.) As a result, the proposed project would not significantly impact existing competitive grocery-oriented retailers in the Secondary Market Area. (Id.) Accordingly, the proposed project is not anticipated to result in substantial business vacancies, physical deterioration of vacant structures, or any other symptom that would directly or indirectly result in adverse physical changes to the environment. (Id.) Pursuant to the "Urban Decay Memorandum" included in the FEIR, dated August 21, 2009, the analysis contained in the original July 15, 2008 urban decay analysis is still valid -- specifically, that the potential for urban decay due to the expansion of the proposed Wal-Mart Highland Expansion is highly unlikely. (FEIR 3-28.) Accordingly, impacts would be less than significant and no mitigation is required. 2. Cumulative Urban Decay Impacts: The Cumulative Primary Market Area is an underserved market and, based on the annual sales volume of the existing and future shopping centers ($2.4 billion), it is anticipated that additional capacity exists to support approximately $155 million to $275 million in annual retail expenditures by 2012. (DEIR 4.11- 19.) These expenditures are available to support new retail development in the Cumulative Primary Market Area. Because there is sufficient and abundant demand for retail goods and services in the market, the development and operation of the proposed project, together with other related projects including those that include a Wal-Mart, should not directly affect other retailers. (DEIR 4.11-26.) There are sufficient retail expenditure dollars currently available in this market for all retailers, even with the development of the two proposed Wal-Mart projects. As a result, it is reasonable to conclude that there will be no adverse physical changes in the environment that would indirectly result in either substantial business vacancies or physical deterioration of the vacant structures by the development of the proposed Wal-Mart projects. (DEIR 4.11-27.) Accordingly, impacts would be less than significant and no mitigation is required. SECTION 4 ENVIRONMENTAL IMPACTS MITIGATED TO A LEVEL OF LESS-THAN-SIGNIFICANT The Planning Commission of the City of San Bernardino hereby finds that the following potential environmental impacts of the Project can be mitigated to a less than significant level through the imposition of mitigation measures. A. Aesthetics 1. Light & Glare: The project site contains an existing Wal-Mart store, which produces existing sources of light and glare. (DEIR p. 4.1-15.) Examples include exterior security lighting, illuminated signs, and vehicular headlights. The proposed project would result in the expansion of the store to a total of 171,438 square feet. (Id.) The expanded store would operate 24 hours a day. (Id.) The expansion of the store would require new lighting fixtures to be installed onsite, including on the building exterior, in parking areas, and in the loading area. (Id.) ■ 15 %WQ4,Hi$hWN CA-.6230921 Lighting in the loading area is of particular concern because of the proximity of the mobile home park to the north of the store. (Id.) City policy requires that lighting associated with new development projects be arranged in a manner that prevents the direction or reflection of annoying light and glare onto residential areas. (Id.) Accordingly, impacts to light & glare are potentially significant. Finding: Implementation of the following Mitigation Measure will reduce potential impacts from Light & Glare to a less than significant level. Mitigation Measure: The following measure has been identified to reduce the significance of potential impacts from Light & Glare to a less than significant level: Mitigation Measure AES-4: Prior to issuance of building permits, the project applicant shall submit a photometric plan to the City of San Bernardino for review and approval. The photometric plan shall identify types of lighting fixtures and their locations on the project site. All light fixtures shall be shielded, recessed, or directed downward to prevent unwanted illumination of neighboring properties. Lighting fixtures should employ the most energy-efficient technology available unless technical feasibility or safety concerns take precedent. Support for Finding: City policy requires that lighting associated with new development projects be arranged in a manner that prevents the direction or reflection of annoying light and glare onto residential areas. (DEIR p. 4.1-15.) Therefore, mitigation is proposed that would require the project applicant to submit a photometric plan to the City that identifies lighting fixtures and practices to prevent spillage of light and glare onto neighboring properties. (Id.) With the implementation of this mitigation, the proposed project would minimize the amount of the light and glare it would add to the ambient environment and, therefore, ensure that impacts are reduced to a level of less than significant. (Id.) B. Air Quality 1. Air Quality Management Plan Consistency: As set forth by the SCAQMD, a project is consistent with the AQMP if a project would not result in an increase in the frequency or severity of existing air quality violations or cause or contribute to new violations, or delay timely attainment of air quality standards or the interim emission reductions specified in the AQMP. (DEIR p. 4.2-23.) As discussed in Impact AIR-2, the proposed project's construction emissions would exceed the localized significant threshold for particulate matter. (Id.) Accordingly, impacts relating to consistency with an Air Quality Management Plan are potentially significant. Finding: Implementation of Mitigation Measure AIR-2 will reduce potential impacts regarding consistency with the applicable AQMP to a less than significant level. Mitigation Measure AIR-2: The construction contractor shall implement the following soil stabilization measures to control dust during grading and construction: © • Application of water on disturbed soils a minimum of two times per day; 16 \k S4 1ighlaml CA—4:3082 1 • Covering haul vehicles; • Replanting disturbed areas as soon as practical; • Restricting vehicle speeds on unpaved roads to 15 miles per hour; • Ensure that all trucks hauling dirt, sand, soil, or other loose materials are covered or maintain at least two feet offreeboard (i.e., minimum vertical distance between top of the load and the top of the trailer) in accordance with the requirements of California Vehicle Code Section 23114. Support for Finding: The proposed project's construction emissions would exceed the localized significant threshold for particulate matter. Implementation of Mitigation Measure AIR-2 during construction would reduce particulate matter emissions to below the localized threshold and, therefore, the residual significance of this impact would be less than significant. 2. Construction Emissions: Construction of the proposed project would result in air emissions from the construction equipment exhaust, worker vehicles, fugitive dust, and on-road truck travel. (DEIR p. 4.2-24 & 25.) A summary of the emissions estimated using URBEMIS2007 is shown in Table 4.2-9 of the DEIR. Sources of emissions shown in this table include those generated from onsite construction activities as well as those generated from off- site activities such as worker and delivery trips. (Id.) As shown in the table, unmitigated construction emissions for particulate matter would exceed the local significant thresholds. (Id.) This is a potentially significant impact. Construction activities would also involve the use of diesel-powered construction equipment, which emit DPM. Emissions of DPM would not be substantial enough to be considered a significant health risk. (Id.) Therefore, impacts diesel-powered construction from would be less than significant. A review of the General Location Guide indicates that San Bernardino County is not identified as an area of naturally occurring asbestos. (Id.) Therefore, this condition precludes the possibility of project construction activities exposing human health or the environment to such hazards. Finding: The following measure has been identified to reduce the significance of potential impacts from construction emissions to a less than significant level: Mitigation Measure: See Mitigation Measure AIR-2 above. Support for Finding: Mitigation is proposed that would require the implementation of dust control measures during construction activities. Table 4.2-10 of the DEIR summarizes the results of PM10 and PM2.5 emissions with implementation of mitigation. (DEIR p. 4.2-24.) As shown in the table,particulate matter emissions would be below local significance thresholds after the implementation of mitigation. Therefore, this would be a less than significant impact. 17 U%WJ i&..J CA, 4230921 3. Air Quality StandardsNiolations: The CEQA Guidelines indicate that a significant impact would occur if the proposed project would violate any air quality standard or contribute substantially to an existing or projected air quality violation. (DEIR p. 4.2-28.) The South Coast Air Basin, the geographical area in which the project is located, is in nonattainment for PM10, PM2.5, and ozone. (Id.) Levels of PM10 and PM2.5 are locally high enough that contributions from new sources may add to the concentrations of those pollutants and contribute to a projected air quality violation. (Id.) Although background levels of ozone are high in the Basin, the project alone (without other cumulative sources) would not contribute substantially to a projected air quality violation of ozone. Project emissions of VOCs and NOx (ozone precursors) and their contribution to ozone concentrations are discussed in Impact AIR-3. (Id.) The localized construction analysis contained in Impact AIR-2 analysis demonstrated that, without mitigation, the project would not exceed the localized thresholds for CO or nitrogen dioxide. (Id.) However, concentrations of PM10 and PM2.5 would exceed the LSTs. Therefore, according to this criterion, the unmitigated air pollutant emissions during construction would result in a significant impact. (DEIR p. 4.2-29.) A CO hotspot analysis is the appropriate tool to determine if project emissions of CO during operation would exceed ambient air quality standards. (Id.) The main source of air pollutant emissions during operation are from offsite motor vehicles traveling on the roads surrounding the project site. (Id.) The CO hotspot analysis demonstrated that project emissions of CO during operation, along with emissions from other foreseeable projects in the area, would not exceed the most stringent ambient air quality standards for CO. (Id.) Therefore, according to this criterion, air pollutant emissions during operation would result in a less than significant impact. (Id.) Sulfur dioxide emissions from the project are negligible. The regional analysis demonstrated that emissions are far under the regional significance threshold. (Id.) Therefore, it follows that on a localized basis, emissions of sulfur dioxide would not exceed the ambient air quality standards. hi addition, the Basin is in attainment for sulfur dioxide and does not experience high pollutant episodes of that pollutant. Therefore, potential impacts of sulfur dioxide are less than significant. Finding: The following measure has been identified to reduce the significance of potential impacts regarding Air Quality StandardsNiolations to a less than significant level. Mitigation Measure: See Mitigation Measure AIR-2 above. Support for Finding: Concentrations of PM10 and PM2.5 would be mitigated below the threshold by implementing the above referenced measure. C. Biological Resources 1. Special-Status Species. As part of the expansion project, the parking area located east of the existing Wal-Mart structure would be removed. (DEIR p. 4.3-8.) This parking area contains approximately 12 mature ornamental trees that would be removed. (Id.) These ornamental trees have the potential to support nesting birds. In addition, mature trees located in 18 Weai.Highland CA--0210821 other areas of the project site may also be removed as part of infrastructure improvements, parking lot reconfiguration, and landscaping alterations. (Id.) Finding: The following measure has been identified to reduce the significance of potential impacts regarding Special-Status Species to a level of less than significant: Mitigation Measure BIO-1: If tree removal occurs during the nesting season (February 1 to August 31), no more than 15 days prior to any site-disturbing activities, including vegetation removal or grading, the project applicant will retain a qualified wildlife biologist to conduct nesting bird surveys to determine if nests are active or occupied onsite or within 500 feet of the project site. The surveys shall be conducted a minimum of three separate days during the 15 days prior to disturbance. Active passerine nests shall be protected with a 250 foot buffer, and active raptor nests shall be protected with a 500 foot buffer. The buffers shall be maintained until after the nestlings have fledged and left the nest. No construction activities shall be allowed in these buffers. Buffers shall be marked in the field with stakes and flagging at all potential access points to the buffer. Buffers shall remain in place until the nest is no longer active, as determined by a qualified biologist. If warranted by site conditions (as evaluated and documented by a qualified biologist), this buffer may be reduced with the approval of the California Department of Fish and Game. This mitigation measure does not apply to any tree removal activities that would occur during the non-nesting season (September I to January 31). Support for Finding: Mitigation is proposed that would require the project applicant to conduct a pre-construction survey for nesting birds during the nesting season (February 1 through August 31) and, if nesting birds are found, to protect the nests until the young have fledged. (Id.) The implementation of this mitigation measure would reduce potential impacts on special-status species to a level of less than significant. (Id.) Note that this mitigation measure would not apply to tree removal occurring during the non-nesting season (September 1 through January 31). 2. Local Biological Ordinances or Policies. The proposed project would involve the removal of at least 12 mature trees. Because more than five trees would be removed, the project applicant would be required to obtain a tree removal permit from the City of San Bernardino, in accordance with Development Code Chapter 14.34. (DEIR p. 4.3-9.) Finding: The following measure has been identified to reduce the significance of potential impacts regarding Local Biological Ordinances or Policies to a level of less than significant: Mitigation Measure BIO-2: Prior to any tree removal activities, the project applicant shall obtain a tree removal permit from the City of San Bernardino in accordance with Development Code Chapter 15.34. As part of the terms of the permit, all removed trees shall be replaced at no less than a 1.5:1 ratio. Support for Finding: The tree removal permit requirement has been incorporated into the project as a mitigation measure. (DEIR p. 4.3-8.) Implementation of this mitigation measure would reduce potentially significant impacts to a level of less than significant. 19 W81)4 Highland CA_423M] D. Geology. Soils & Seismicity 1. Fault Rupture. The project site is located within the San Andreas Fault Zone. (DEIR p. 4.4-17.) A splay associated with the fault is adjacent to the northern portion of the project site, and a secondary shear zone is present on a portion of the project site. (Id.) The 2006 Leighton Consulting, Inc. fault investigation found no evidence of faulting within the footprint of the proposed store expansion. (Id.) Therefore, the likelihood of a fault or fault trace being encountered during excavation of the proposed project is considered very low. However, the project site is located within the San Andreas Fault Zone, and there is a very small possibility that undiscovered fault traces may be present onsite. (Id.) Finding: The following measures have been identified to reduce the significance of potential impacts regarding Fault Rupture to a level of less than significant: Mitigation Measure GEO-1a: The proposed project shall maintain the existing 50 foot building setback from the southern splay of the San Andreas Fault and the existing 35- foot building setback from the secondary shear zone present on the project site. Adherence to these setbacks shall be shown on project plans. Mitigation Measure CEO-lb: During construction, all excavations for building foundations shall be observed by a qualified engineering geologist to determine if any fault traces are present. If a fault trace is encountered, all excavation shall be halted until the engineering geologist has determined if the trace is active (i.e., experienced movement in the past 1,100 years). If the trace is not active, excavations may proceed as planned. If the trace is determined to be active, the project plans shall be revised to incorporate an appropriate setback from the trace in accordance with the Alquist-Priolo Earthquake Fault Zoning Act. Support for Finding: Mitigation is proposed that would require the proposed project to maintain the existing 50-foot and 35-foot setbacks from each feature, respectively. (DEIR p. 4.4-17.) The implementation of this mitigation measure would ensure that the proposed project would not unduly expose building occupants to fault rupture hazards and that potential impacts would be reduced to a level of less than significant. (Id.) Mitigation is proposed that would require a qualified engineering geologist to observe all excavations for building foundations to determine if any fault traces are present. (Id.) If a fault trace is observed, excavation activity would be halted and the trace would be investigated to determine if it is active. (Id.) If it is found to be active, the project plans would be revised to incorporate an appropriate setback in accordance with the Alquist-Priolo Earthquake Fault Zoning Act. (Id.) With the implementation of this mitigation measure, potential fault rupture hazards would be reduced to a less than significant level. (Id.) 2. Strong Ground Shaking. The project site is located within the San Andreas Fault Zone and, therefore, may be exposed to strong ground shaking during an earthquake. (DEIR p. 4.4-18.) Strong ground shaking may result in damage or destruction to poorly designed or constructed buildings during a seismic event and could result in injury or loss of life. 20 VA'N»Hiehhnd Ck JUOS'_1 Finding: The following measure has been identified to reduce the significance of potential impacts regarding Strong Ground Shaking to a level of less than significant: Mitigation Measure GEO-2: The proposed project's plans shall incorporate all applicable earthwork and structural design recommendations contained in the Geotechnical Investigation Report prepared by Converse Consultants or an equivalent study prepared for the proposed project. This includes recommendations for, but not limited to, demolition, vegetation removal, utility abandonment, grading, soil engineering, slopes, drainage,foundations, retaining walls, and pavement areas. Specific actions that shall be implemented include: • All pavement, undocumented fill, and debris located within the upper 3 to 6 inches of existing vegetation shall be removed. • All non-alluvial soils located within the upper 4 to 7 feet of soil shall be removed and replaced with compacted fill. • Subgrade soil surfaces that will receive compacted fill shall be scarified. The scarified soil shall be moisture-conditioned to within 3 percent of optimum moisture content. • Compacted fill shall laterally extend to at least 10 feet beyond exterior footing edges, except where confined by the existing Wal-Mart structure. • The proposed building shall be supported by continuous or isolated footings. Continuous footings shall be founded on compacted fill with thickness of at least 4 feet or equal to footing width, whichever is greater. Isolated footings shall be founded on compacted fill with a thickness of at least 5 feet or equal to one-half the footing width, whichever is greater. Fill under foundations and slab-on-grade shall be compacted to at least 95 percent of the laboratory dry density and within 3 percent of optimum moisture content. • For shallow footings founded on compacted fill, an allowable net bearing capacity of 3,000 pounds per square foot shall be used. Continuous and isolated footings shall be at least 24 inches wide and embedded at least 24 inches below the lowest adjacent final soil grade. • Resistance to lateral loads shall be provided by the passive earth pressures acting behind the footings and by the frictional resistance at the base. An allowable value of the passive earth pressure resistance of 280 pounds per square foot per foot of footing depth shall be used in design. The passive resistance shall be limited to maximum of 3,000 pounds per square foot. An ultimate value of the frictional coefficient of 0.35 shall be used to evaluate base frictional force between soil and concrete. Support for Finding: To abate potential for ground shaking hazards, mitigation is proposed that would require the project applicant to implement all applicable earthwork and structural design recommendations contained in the Geotechnical Investigation Report prepared by Converse Consultants or an equivalent study, should one be prepared at a later date. (DEIR p. 4.4-18.) The implementation of the report's recommendations into the project design would ensure that ground shaking hazards are reduce to acceptable levels and, therefore, would not expose persons or structures to significant hazards. 21 %W14 Highland CA--4130821 3. Erosion. Construction activities associated with the proposed project would involve vegetation removal, grading, and excavation activities that could expose barren soils to sources of wind or water, resulting in the potential for erosion and sedimentation on and off the project site. (DEIR p. 4.4-20.) Finding: The following measure has been identified to reduce the significance of potential impacts regarding Erosion to a level of less than significant: Mitigation Measure.Refer to Mitigation Measure HYD-1, below. Support for Finding: National Pollutant Discharge Elimination System (NPDES) stormwater permitting programs regulate stormwater quality from construction sites, which includes erosion and sedimentation. Under the NPDES permitting program, the preparation and implementation of a Stormwater Pollution Prevention Plan (SWPPP) are required for construction activities that would disturb an area of 1 acre or more. (DEIR p. 4.4- 20.) The SWPPP must identify potential sources of erosion or sedimentation that may be reasonably expected to affect the quality of stormwater discharges as well as identify and implement Best Management Practices (BMPs) that ensure the reduction of these pollutants during stormwater discharges. (DEIR p. 4.4-21.) Typical BMPs intended to control erosion include sandbags, detention basins, silt fencing, storm drain inlet protection, street sweeping, and monitoring of water bodies. These requirements have been incorporated into the proposed project as mitigation. The implementation of a SWPPP and its associated BMPs would reduce potential erosion impacts to a less than significant level. E. Hazards. 1. Past & Present Site Usage. Based on site reconnaissance and the findings of the Phase I ESA, there are three hazardous materials concerns on the project site: (1) hazardous materials associated with the Tire & Lube Express; (2) fixtures or equipment that may contain PCBs, mercury, or CFCs; and (3) the Southern California Edison electrical transformer in the northeastern portion of the project site. (DEIR p. 4.5-8.) • Tire & Lube Express Hazardous Materials The Tire & Lube Express performs basic automotive maintenance (e.g., oil changes, tire replacement and rotation, battery replacement) and stores materials that are used in those activities, as well as byproducts of those activities (e.g., automotive batteries, motor oil, vehicle fluids, etc.). Materials are stored in four ASTs and several drums. The proposed project would remove the Tire & Lube Express from the store and, therefore, would necessitate the proper removal of hazardous materials and their associated storage vessels. (DEIR p. 4.5-9.) • Fixtures or Equipment Containing PCBs, Mercury, or CFCs The existing Wal-Mart store contains light ballasts, thermostats, temperature control switches, refrigeration, and air conditioning units. These fixtures and pieces of equipment may contain PCBs, mercury, or CFCs. (DEIR p. 4.5-9.) © • Electrical Transformer 22 N'X•IYkI IEhbnd.l A-Jld('C^_I A Southern California Edison electrical transformer is located in the northeastern portion of the project site and may contain transformer oil. (DEIR p. 4.5-9.) The transformer would be removed because it is located in the footprint of the expanded store. Removal of the transformer has the potential to expose persons to transformer oil, which may contain PCBs. (Id.) Finding: The following measures have been identified to reduce the significance of potential impacts regarding Past & Present Site Usage to a level of less than significant: Mitigation Measure HAZ-la:Prior to the commencement of demolition activities for the Tire & Lube Express, the project applicant shall retain a certified contractor to remove all potentially hazardous materials and associated storage vessels (e.g., ASTs and drums) stored in that area. This includes, but is not limited to, used automotive batteries, waste oil, and vehicle fluids, and any hazardous materials containment systems associated with those items.All removal activities must be completed prior to commencement of demolition activities. Mitigation Measure HAZ-1b: If evidence of soil staining is encountered in the vicinity of the Tire & Lube Express, construction activities shall cease until a qualified hazardous materials contractor has determined the extent and significance of the staining. The contractor shall evaluate the stained soil and determine if it should be removed or otherwise abated. If the soil must be removed or abated, such activities must be completed before earthwork or construction activities can resume within 50 feet of the stained soil. Mitigation Measure HAZ-1c: Prior to the commencement of demolition activities, the project applicant shall retain a certified hazardous waste contractor to determine the presence or absence of PCBs, mercury, or CFCs in any equipment that may contain such substances (e.g., light ballasts, thermostats and temperature control switches, refrigeration or air-conditioning units). If such substances are found to be present, the contractor shall properly remove and dispose of these hazardous materials in accordance with federal and state law. All removal and disposal activities shall be completed prior to commencement of demolition activities. Mitigation Measure HAZ-1d: Prior to the commencement of demolition activities, the project applicant shall retain a certified contractor to remove or relocate the Southern California Edison electrical transformer located in the northeastern portion of the project site. If there is evidence of transformer oil leakage, PCB testing shall be performed and the results shall be provided to the City of San Bernardino. The project applicant shall be responsible for remediating any PCB leakage associated with the transformer. All remediation activities shall be completed prior to commencement of demolition activities. Support for Finding: Mitigation is proposed that would require all hazardous materials and storage vessels associated with the Tire & Lube Express to be properly removed and disposed of by a qualified hazardous materials contractor prior to demolition activities. (DEIR p. 4.5-9.) In addition, because the potential exists for soil staining to be encountered near the Tire & Lube Express, mitigation is proposed that would require stained soil to be evaluated for its significance and, if necessary, be removed or abated prior to the resumption of construction activities. (Id.) The implementation of this mitigation measure would ensure that human health and the environment are not exposed to significant hazards associated with the Tire 23 %"Q44 ighlunl_CA-.4230821 &Lube Express. Mitigation is proposed that would require a hazardous materials contractor to determine if these hazardous materials are present onsite and, if necessary, properly remove and dispose of such materials prior to the commencement of demolition. (Id.)The implementation of this mitigation measure would ensure that human health and the environment are not exposed to significant hazards associated with PCBs, mercury, or CFCs. (Id.) Mitigation is proposed that would require the transformers to be properly removed to ensure that impacts are reduced to a less than significant level. (Id.) F. Hydrology & Water Quality 1. Short-Term Water Quality. Project implementation would require extensive construction and grading. (DEIR p. 4.6-9.) During these activities, there would be the potential for surface water to carry sediment from onsite erosion and small quantities of pollutants into the stormwater system and local waterways. (Id.) Soil erosion may occur along project boundaries during construction in areas where temporary soil storage is required. Small quantities of pollutants have the potential for entering the storm drainage system, thereby potentially degrading water quality. (Id.) Construction of the proposed project would also require the use of gasoline and diesel powered heavy equipment, such as bulldozers,backhoes, water pumps, and air compressors. (Id.) Chemicals such as gasoline, diesel fuel, lubricating oil, hydraulic oil, lubricating grease, automatic transmission fluid, paints, solvents, glues, and other substances would be utilized during construction. (Id.) An accidental release of any of these substances could degrade the water quality of the surface water runoff and add additional sources of pollution into the drainage system. Finding: The following measure has been identified to reduce the significance of potential impacts regarding Short-Term Water Quality to a level of less than significant: Mitigation Measure HYD-1: Prior to the issuance of grading permits, the project applicant shall prepare and submit a Stormwater Pollution Prevention Plan (SWPPP) to the City of San Bernardino that identifies specific actions and Best Management Practices (BMPs) to prevent stormwater pollution during construction activities. The SWPPP shall identify a practical sequence for site restoration, BMP implementation, contingency measures, responsible parties, and agency contacts. The SWPPP shall include, but not be limited to, the following elements: • Temporary erosion control measures shall be employed for disturbed areas. • No disturbed surfaces will be left without erosion control measures in place during the winter and spring months. • Sediment shall be retained onsite by a system of sediment basins, traps, or other Cappropriate measures. 24 WR?a4Highland_CA--4130821 • The construction contractor shall prepare Standard Operating Procedures for the handling of hazardous materials on the construction site to eliminate or reduce discharge of materials to storm drains. • BMP performance and effectiveness shall be determined either by visual means where applicable (e.g., observation of above-normal sediment release), or by actual water sampling in cases where verification of contaminant reduction or elimination (such as inadvertent petroleum release) is required by the Santa Ana River Regional Water Quality Control Board to determine adequacy of the measure. • In the event of significant construction delays or delays in final landscape installation, native grasses or other appropriate vegetative cover shall be established on the construction site as soon as possible after disturbance, as an interim erosion control measure throughout the wet season. Support for Finding: The NPDES stormwater permitting programs regulate stormwater quality from construction sites. (Id.) Under the NPDES permitting program, the preparation and implementation of SWPPPs are required for construction activities more than 1 acre in area. The SWPPP must identify potential sources of pollution that may be reasonably expected to affect the quality of stormwater discharges as well as identify and implement BMPs that ensure the reduction of these pollutants during stormwater discharges. (Id.) The measures proposed by the Project applicant are consistent with standard SWPPP requirements and are expected to be accepted by the reviewing agencies. (DEIR p. 4.6-11.) However, to ensure that these measures are implemented, mitigation is proposed that would require the project applicant to prepare and implement a SWPPP. (Id.) The implementation of the mitigation measure would ensure that potential, short-term, construction water quality impacts are reduced to a level of less than significant. 2. Long-Term Water Quality. The introduction of commercial uses on the project site would result in increased vehicle use and potential discharge of associated pollutants. (DEIR p. 4.6-12.) Leaks of fuel or lubricants, tire wear, and fallout from exhaust contribute petroleum hydrocarbons, heavy metals, and sediment to the pollutant load in runoff being transported to receiving waters, notably City Creek east of the project site. Runoff from the proposed landscaped areas may contain residual pesticides and nutrients. (Id.) The expansion of the Wal-Mart store will not substantially increase impervious surface coverage on the project site because the footprint of the expanded building would be located on an existing parking lot. (Id.) The proposed project would reuse the existing but upgraded storm drainage infrastructure, adding four catch basins and additional inlets and piping in the vicinity of the expanded portion of the store. (Id.) Finding: The following measure has been identified to reduce the significance of potential impacts regarding Long-Term Water Quality to a level of less than significant: Mitigation Measure HYD-l: Prior to the issuance of building permits, the project lapplicant shall submit a stormwater management plan to the City of San Bernardino for review and approval. The plan shall include stormwater treatment/pollution prevention devices, such as, 25 W3W.Hi3hland CA-4230321 but not limited to: •Proprietary underground, inline treatment devices •Porous/permeable pavement • Green roofs (which incorporate vegetation) and blue roofs (which incorporate detention or retention of rain) • Curb cuts in parking areas •Rock-lined areas along landscaped areas in parking lots • Vegetated swales with check dams • Oil/grease separators for parking areas • Catch basins • Storage offertilizer and other agricultural chemicals in covered areas underlain by waterproof surfaces and surrounded with proper containment devices The project applicant shall also prepare and submit an Operations and Maintenance Agreement to the City identifying procedures to ensure that stormwater quality control measures work properly during operations. Support for Finding: Mitigation is proposed that would require the project applicant to prepare and submit a stormwater quality management plan to the City of San Bernardino for review and approval. (Id.) The plan would require the project applicant to document various stormwater quality control measures that would be in effect during project operations to ensure that water quality in downstream water bodies is not degraded. (Id.) This would also ensure that the proposed project is consistent with the Federal Anti-Degradation Policy. (Id.) The implementation of the mitigation measure would ensure that potential, long- term, operational water quality impacts are reduced to a level of less than significant. (Id.) G. Public Services & Utilities 1. Potable Water. The expanded Wal-Mart store is anticipated to demand 9,700 gallons of water per day, of which 4,600 gallons per day would be for domestic use and 5,100 gallons per day would be for outdoor irrigation. (DEIR p. 4.9-22 & 23.) These figures were provided by the project engineer and are based on observed usage rates at Wal-Mart stores with similar square footages. (Id.) However, EVWD indicates that the existing Wal-Mart store demands an average 5,503 gallons per day for domestic use and 16,482 gallons per day for outdoor irrigation. (Id.) EVWD notes that it is likely that the irrigation figure includes all landscaped areas of the Highland Avenue Plaza. Both the existing domestic and outdoor irrigation demand figures are greater than the rates projected for the store, and EVWD suggested that the above projections may understate actual demand. Accordingly, this EIR used EVWD's rates as the basis for calculating store water demand. (Id.) 26 W814.1 ighland CA--4230K I Outdoor irrigation water usage is not anticipated to change because most of the landscaping on the project site would remain unchanged or removed and would be replaced with similar plants and shrubs. (Id.) Domestic water usage is anticipated to increase at a rate commensurate with the increase in square footage. Table 4.9-16 of the DER summarizes the projected increase in domestic water demand based on a gallon-per-square-foot factor of 0.042. (Id.) As shown in the table,the expanded Wal-Mart store is anticipated to result in a net increase of 1,766 gallons per day above the existing store's demand. On an annual basis, this would represent a net increase of 1.98 acre-feet. (Id.) In the interests of disclosure, EVMWD released revised water supply estimates in November 2008 as part of the 2007 Upper Santa Ana River Watershed Integrated Regional Water Management Plan that forecast reduced water supplies from the State Water Project. (FEIR 3-22.) These figures are lower than those shown in Table 4.9-6 and Table 4.9-8, which were provided in the 2005 Urban Water Management Plan. (Id.) However, EVMWD obtains most of its water supply from groundwater sources and anticipates surpluses under normal year, single dry year, and multiple dry year scenarios in excess of its reduced State Water Project allotment (refer to Table 4.9-8, Table 4.9-9, and Table 4.9-10). (Id.) Regardless, this does not change the previous conclusion that with the implementation of Mitigation Measures PSU-3a and PSU-3b, which require the proposed project to implement various indoor and outdoor water conservation measures to reduce overall water usage, impacts would be reduced to a level of less than significant. (Id.) EVWD indicated that it would be able to cover the increase in demand from existing water supplies and, therefore, would not need to obtain additional entitlements or supplies to serve the proposed project. (DEIR p. 4.9-22 & 23.) In addition, EVWD did not identify a need for additional treatment capacity or conveyance capacity to serve the proposed project. Nonetheless, long-term water supply is a significant concern in California, and the proposed project can reduce its demand on water supply through the implementation of water conservation measures. (Id.) Finding: The following measure has been identified to reduce the significance of potential impacts regarding Potable Water to a level of less than significant: Mitigation Measure PSU-3: Prior to issuance of building permits, the project applicant shall submit landscaping plans to the City of San Bernardino for review and approval that identify the following outdoor irrigation water conservation measures: •Drought resistant vegetation •Irrigation systems employing at least four of the following features: -Drip irrigation-Low-precipitation-rate sprinklers -Bubbler/soaker systems -Programmable irrigation controllers with automatic rain shutoff sensors Cj - Matched precipitation rate nozzles that maximize the uniformity of the water 27 W8944ighland CA—423052 1 distribution characteristics of the irrigation system - Conservative sprinkler spacing that minimize overspray onto paved surfaces -Hydrozones that keep plants with similar water needs in the same irrigation zone • Minimally or gently sloped landscaped areas to minimize runoff and maximize infiltration • Organic topdressing mulch in non-turf areas to decrease evaporation and increase water retention Support for Finding: Mitigation is proposed that would require the project applicant to implement outdoor irrigation and indoor domestic water conservation measures and practices. (M) These measures would reduce overall project demand for potable water and ensure that long-term water supply impacts are less than significant. (M) Operational solid waste generation estimates were calculated by using a standard commercial waste generation rate provided the California Integrated Waste Management Board. As shown in Table 4.9-19 of the DEIR, the proposed project is estimated to generate 411.5 tons of solid waste annually, which represents a net increase of 100 tons above the store's existing solid generation rate. Actual solid waste generation would be expected to be less than 411.5 tons of solid waste annually because of Wal-Mart Stores, Inc.'s corporate requirements for recycling facilities and practices at its stores. 2. Solid Waste. Solid waste would be generated by construction and operational activities. While the estimate of 81.0 tons of construction waste would be an extremely small amount relative to existing capacity at the Colton and Mid Valley landfills, it is still considered substantial because the City of San Bernardino currently falls below the State's waste diversion goal of 50 percent. (DEIR p. 4.9-26.) Finding: The following measure has been identified to reduce the significance of potential impacts regarding Solid Waste to a level of less than significant: Mitigation Measure: Prior to issuance of building permits, the project applicant shall retain a qualified contractor to perform construction and demolition debris recycling. The contractor shall be approved by the City of San Bernardino. The project applicant shall provide documentation to the satisfaction of the City of San Bernardino demonstrating that construction and demolition debris was recycled. Support for Finding: Mitigation is proposed that would require the project applicant to retain a contractor to recycle construction and demolition debris. (Id.) The implementation of this mitigation measure would reduce potential impacts to a less than significant level. (Id.) New Wal-Mart stores are typically constructed using the recycled materials. (DEIR p. 4.9-27.) Although the use of recycled building materials would not affect the proposed project's construction waste generation, it does promote the broader objective of diverting recoverable materials from landfills. Because Wal-Mart's recycling practices are standard features, it is assumed that they will be in place and serve to divert recyclable materials 28 \FU.l Lghlind CA- 4?40221 from the waste stream. (DEIR p. 4.9-28.) Therefore, solid waste impacts from project operations would be reduced to a less than significant level. H. Transportation 1. Public Transit, Bicycles, and Pedestrians. Two Omnitrans bus routes serve the Highland Avenue Plaza: Route 3/4 and Route 15. (DEIR p. 4.10-83.) Currently, the Omnitrans bus stop on westbound Highland Avenue, adjacent to the Highland Avenue Plaza frontage, consists of sign and a concrete bench. Because the expanded Wal-Mart store would be larger than the existing store and would operate 24 hours a day, it would be expected that transit usage would increase. Given the anticipated increase in usage, the existing bus stop would not be adequate for providing a safe and convenient waiting facility, particularly during the nighttime hours or rainy or windy conditions. Both Highland Avenue and Boulder Avenue have existing Class II bicycle facilities and serve as east-west and north-south bike corridors, respectively. (DEIR p. 4.10-84.) In addition, Piedmont Drive provides bicycle access to the Highland Avenue Plaza from residential neighborhoods to the west and north. (Id.) Given the proximity of bicycle facilities and nearby residential neighborhoods, it would be expected that some customers and employees would use bicycles to travel to the proposed project. (Id.) Highland Avenue has existing sidewalks on both the north and south sides of the street. Highland Avenue is designated a Local Multi-Purpose Trail by the City of San Bernardino General Plan. (DEIR p. 4.10-84.) Finding: The following measure has been identified to reduce the significance of potential impacts regarding Public Transit, Bicycles, and Pedestrians to a level of less than significant: Mitigation Measure Trans-6a: Prior to project occupancy, the project applicant shall install an enhanced Omnitrans bus stop on the Highland Avenue Plaza frontage with Highland Avenue. The bus stop shall conform to Omnitrans design requirements and include, at a minimum: a shelter, signage, transit information, lighting, and a trash receptacle. Alternately, the project applicant can satisfy this requirement by providing payments to Omnitrans for the cost of this improvement if Omnitrans commits to having it in place prior to project occupancy. Mitigation Measure Trans-6b: Prior to occupancy, the project applicant shall install bicycle racks near the store entrance for customer use and provide a bicycle storage facility in an "employee only" area of the store for employee use. The customer bicycle racks shall provide capacity for at least 35 bicycles, which is equivalent to 5 percent of the minimum required vehicular parking for the store. The employee bicycle storage facilities shall be provided in a secure area (i.e., non publicly accessible) in recognition that employees will require bicycle storage for longer periods than customers. Support for Finding: Mitigation is proposed that would require the project applicant to install an enhanced bus stop on the project frontage that would include amenities r such as a shelter, signage, transit information, lighting, and a trash receptacle. (DEIR p. 4.10-83.) W8444 ighland C4- 4230K 1 29 The implementation of this mitigation measure would ensure that adequate access to public transit is provided. To facilitate bicycle access, mitigation is proposed that would require both customer and employee bicycle storage to be provided. (DEIR p. 4.10-84.) The provision of these bicycle storage facilities would ensure that adequate storage is available. (Id.) The site plan (Exhibit 3-4)depicts a pedestrian connection between Highland Avenue and the Wal-Mart store entrance that would provide convenient and safe access to the store. (DEIR p. 4.10-84.) This is an improvement over the existing condition, in which no such connection exists. This project design feature would also enhance the effectiveness of Mitigation Measure TRANS-6a, which requires the installation of an enhanced Omnitrans bus stop on the project frontage. (Id.) SECTION 5 ENVIRONMENTAL IMPACTS NOT FULLY MITIGATED TO LESS THAN SIGNIFICANT The Planning Commission of the City of San Bernardino finds the following environmental impacts identified in the EIR remain significant even after application of all feasible mitigation measures: cumulative air quality impacts, and construction noise impacts: In accordance with CEQA Guidelines Section 15092(b)(2), the Planning Commission of the City of San Bernardino cannot approve the project unless it first finds (1) under CEQA Section 21081(a)(3), and CEQA Guidelines Section 15091(a)(3), that specific economic, legal, social technological, or other considerations, including provisions of employment opportunities to highly trained workers make infeasible the mitigation measures or project alternatives identified in the Final EIR; and (2) under CEQA Guidelines section 15092(b), that the remaining significant affects are acceptable due to overriding concerns described in the CEQA Guidelines Section 15093 and, therefore, a statement of overriding considerations is included herein. A. Noise 1. Construction Related Impacts: The closest noise-sensitive land uses to the project site are the mobile homes to the north, with the nearest residential structures located approximately 80 feet from the proposed demolition and construction areas. (DEIR p. 4.8-40.) Construction noise impacts on nearby sensitive receptors have been calculated according to the equipment noise levels established by the Sound Plan model. (Id.) The loudest phase of construction would be anticipated to occur during the demolition of the existing Tire & Lube Express and garden center. (Id.) Demolition noise has been modeled on the simultaneous operation of four jackhammers and one dozer. (Id.) The equipment was spread evenly around the area to be demolished. The noise level emitted from each piece of equipment was based on the values in Table 4.8-1 of the DEIR, which shows that a jackhammer would produce 89 dB at 50 feet and a dozer would create 82 dB at 50 feet. (Id.) A summary of the results of the construction noise impacts are shown below in Table 4.8-17, and the Sound Plan model printouts are provided in Appendix E to the DEIR. Table 4.8-17 of the DEIR shows that Receivers 7 and 8 would 30 WNW Highland CA--423092 1 exceed the City's 65-dBA exterior stationary noise standard, with the average noise levels during the grading operations as high as 80.6 dBA Leq at the facades of the nearby homes. (DEIR p. 4.8-41.) This is considered a potentially significant impact. (Id.) Finding: Mitigation is proposed that would require the project applicant to implement noise reduction measures and practices during construction. (DEIR p. 4.8-41.) The measures include limiting construction activities to daytime hours, using noise attenuation devices on heavy equipment, locating staging and maintenance areas at least 300 feet from residences, requiring that stationary equipment be shielded with a noise protection barrier when operating within 300 feet of a residence, and providing written notification to nearby residents about construction activities. (Id.) Although these measures would be expected to minimize adverse noise effects on the Mountain Shadows Mobile Home Community, there is still the possibility that construction noise levels would be perceived as annoying at nearby residences at certain times. (Id.)No feasible mitigation is available to reduce this impact to a level of less than significant; therefore, this would be a significant unavoidable impact of the proposed project. (Id.) Mitigation Measure NOI-1: The project applicant shall require construction contractors to adhere to the following noise attenuation requirements: • Construction activities shall be limited to the hours of 7 a.m. to 7 p.m. Monday through Saturday. i •All construction equipment shall use noise reduction features (e.g., mufflers and engine shrouds) that are no less effective than those originally installed by the manufacturer. • Construction staging and heavy equipment maintenance activities shall be performed a minimum distance of 300 feet from the nearest residence, unless safety or technical factors take precedence. • Stationary combustion equipment such as pumps or generators operating within 300 feet of the nearest residence shall be shielded with a noise protection barrier. • The construction contractor shall provide written notification to the nearby residences about potential noise from construction activities at least 10 days prior to the beginning of project construction. The notification shall indicate the days and hours when construction activities are anticipated to occur and provide contact information of the construction superintendent and store management for residents to use in the event of questions or concerns about construction noise. • No trucks waiting to be loaded or unloaded with material during construction activities shall be left to idle for more than 5 minutes,pursuant to state law. B. Traffic 1. Near-Term Intersection Operations: Near-term conditions represent existing conditions with the addition of traffic volumes from ambient growth and planned and approved projects in Highland (refer to Table 4.10-6). (DEIR p. 4.10-47.) Near-term intersection 31 WNeLH ighland CA--O?d03'1 operations are intended to represent the project opening year (2010) and were evaluated under "without project' and `with project" scenarios. (Id.) Under the near-term without project scenario, Boulder Avenue/Pacific Street would operate at unacceptable levels. The same result would occur under the near-term with project scenario. (Id.) Mitigation is proposed that would require the project applicant to provide fair- share payments towards construction of improvements at the intersection. (DEIR p. 4.10-48.) The improvements would consist of signalizing the intersection and adding a left turn lane in both northbound and southbound directions. (Id.) Exhibit 4.10-11 depicts the necessary improvements. (Id.) Table 4.10-8 provides a summary of the mitigated LOS at the study intersections. As shown in the table, after the implementation of mitigation, both deficient intersections would operate at LOS C or better during the afternoon peak hour and, therefore, would be improved to acceptable levels. (Id.) Finding: Based on the proposed project's contribution of traffic volumes, the project applicant is only obligated to contribute 3.2 percent of the cost of the improvement; therefore, 96 percent of the remaining cost would need to be home by other funding sources. (DEIR p. 4.10-65.) Given the uncertainty of other funding sources being available to cover the cost of the balance of the improvements, there is the potential that these improvements would not be in place prior to project occupancy. (Id.) Therefore, if the improvements were not in place, then the Boulder Avenue/Pacific Street intersection would likely operate at unacceptable levels. (Id.) Therefore, there is the possibility that the impact will not be fully mitigated, and a significant impact would occur. (Id.) For this reason, no feasible mitigation is available to reduce this impact to a level of less than significant; therefore, this would be a significant unavoidable impact of the proposed project. (1d.) Mitigation Measure TRANS-]: Prior to issuance of building permits, the project applicant shall provide 'fair-share"payments to the City of San Bernardino for improvements to the intersection of Boulder Avenue/Pacific Street. The improvements shall consist of the installation of a traffic signal, the installation of an eastbound left-turn lane, and the installation of a westbound left-turn lane. The project applicant is responsible for 3.2 percent of the cost of these improvements in accordance with SANBAG methodology for calculating equitable share. (FEIR 3-25.) 2. Long-Term Intersection Operations: As shown in Table 4.10-9 of the DEIR, under the long-term without project scenario, three intersections are projected to operate at unacceptable LOS. (DEIR p. 4.10-77.) With the addition of traffic generated by the proposed project, the same four intersections would operate at unacceptable LOS. (Id.) The three intersections that operate at unacceptable LOS under both scenarios are listed below. • Highland Avenue/Boulder Avenue • Boulder Avenue/Pacific Street • Boulder Avenue/Baseline Street 32 N'FOF H Ighlvod_CA 1]Jg5'_, Mitigation is proposed that would require the project applicant to provide fair-share payments towards construction of improvements at the three intersections. (Id.) Based on the proposed project's contribution of traffic volumes, the project applicant is only obligated to contribute the following percentages to improvements at each intersection, with the total estimated cost of the improvement in parentheses: • Highland Avenue/Boulder Avenue: 13.1 percent ($75,000) • Boulder Avenue/Pacific Street: 3.2 percent ($490,000) • Boulder Avenue/Baseline Street: 1.0 percent ($75,000) The project applicant's share ranges from 1.0 to 13.1 percent; therefore, 86 to 99 percent of the remaining cost of improvements at each intersection would need to be home by other funding sources. (Id.) Given the uncertainty of other funding sources being available to cover the cost of the balance of the improvements, there is the potential that these improvements would not be in place at the time that unacceptable intersection operations occur(i.e., Year 2030). (DEIR p. 4.10-78.) Therefore, if the improvements are not in place, then the intersections of Highland Avenue/Boulder Avenue, Boulder Avenue/Pacific Street, and Boulder Avenue/Baseline Street would likely operate at unacceptable levels. (Id.) Finding: There is the possibility that the impact will not be fully mitigated, and a significant impact would occur. For this reason, the residual significance of this impact is significant and unavoidable. There is no feasible mitigation that would reduce this impact to a level of less than significant. Mitigation Measure TRANS-la: Prior to issuance of building permits, the project applicant shall provide 'fair-share" payments to the City of San Bernardino for improvement to the intersection of Highland Avenue/Boulder Avenue. The improvement shall consist of the construction of an exclusive right-turn lane on eastbound Highland Avenue and modification of the signal operation to allow right-turn overlap phasing. The project applicant is responsible for 13.1 percent of the cost of this improvement in accordance with SANBAG methodology for calculating equitable share. Mitigation Measure TRANS-lb: Prior to issuance of building permits, the project applicant shall provide 'fair-share" payments to the City of San Bernardino for improvement to the intersection of Boulder Avenue/Baseline Street. When the City of Highland constructs improvements at Boulder Avenue/Baseline Street intersections as a future City project, the City of Highland will request the City of San Bernardino to contribute the collected fair share amount toward the improvement. The improvement shall consist of the construction of a second left-turn lane on northbound Boulder Avenue and modification of the signal operation to allow right-turn overlap phasing. The project applicant is responsible for1.0 percent of the cost of this improvement in accordance with SANBAG methodology for calculating equitable share. 33 W8104 Highland CA--42.10921 SECTION 6 CUMULATIVE IMPACTS Cumulative Impacts refer to one or more individual effects which considered together compel or increase the environmental impact of a proposed project. State CEQA Guidelines require a discussion of the Cumulative Impacts of a Project "when the Projects incremental effects are cumulatively considerable." For example, the incremental effects of an individual project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects. The Planning Commission of the City of San Bernardino finds and determines that the discussion of cumulative impacts in the DEIR provides adequate and sufficient discussion of the Cumulative Impacts of the Project pursuant to CEQA Guidelines Section 15130. A. Cumulative Impacts: Aesthetics,Light, and Glare The geographic scope of the cumulative aesthetics, light, and glare analysis is the area surrounding the project site. (DEIR p. 6-3.) The project site is located within the Highland Avenue Plaza, an existing shopping center. The proposed expansion would maintain the height of the existing building and add building massing to the west and east sides. (Id.) The proposed project would have a Floor Area Ratio of 0.26, which is within the General Plan's FAR limit of 0.75. (Id.) The appearance of the expanded Wal-Mart store would employ a contemporary retail design. Landscaping would be installed in highly visible areas, including in parking areas. (Id.) The expanded Wal-Mart store would be compatible with the commercial visual character of the p— Highland Avenue Plaza and the San Manuel Village project, under development on the opposite side of Highland Avenue from the project site. (DEIR p. 6-4.) In addition, the proposed project would be consistent with the urban character of the existing residential uses west and north of the project site. (Id.) As such, the proposed expansion would not represent a significant change relative to the existing ambient visual appearance of the surrounding area. (Id.) Therefore, the proposed project's visual character impacts would not be cumulatively considerable. Finding: Light and glare emitted by the expanded Wal-Mart store would not represent a significant increase above existing levels of ambient illumination in the project vicinity because all project lighting fixtures would be shielded or directed downward to prevent spillover. It is reasonable to assume that other related projects will implement mitigation that would reduce spillover light. Therefore, cumulative impacts are anticipated to be less than significant, and the proposed project's light and glare impacts would not be cumulatively considerable. B. Cumulative Impacts: Air Quality The geographic scope of the cumulative air quality analysis is the South Coast Air Basin. With the implementation of dust control mitigation, the proposed project's construction emissions would not exceed the South Coast Air Quality Management District's (SCAQMD) regional or local significance thresholds. (DEIR p. 6-4.) The proposed project's operational © emissions also would not exceed SCAQMD's regional or local significance thresholds. Therefore, the proposed project would not have a significant cumulative contribution of criteria 34 Wgl• Highland CA--4230311 pollutants to the Air Basin. (Id.) The proposed project's diesel particulate matter emissions also do not exceed established health risk exposure thresholds; therefore, they would not add a significant cumulative contribution of diesel particulate matter to the Air Basin. (Id.) The proposed project would result in a net increase of greenhouse gas emissions; however, compliance with applicable Climate Action Team strategies demonstrates that this increase is not considered a significant cumulative contribution over the baseline concentration of greenhouse gases because the project would expand an existing store in an urbanized area. (Id.) Reusing an existing developed site within the urban footprint results in far fewer greenhouse gas emissions than developing an urban project in an undeveloped area. (Id.) In addition, the proposed project would install an enhanced Omnitrans bus stop; bicycle storage facilities for customers and employees; and a safe, direct pedestrian connection between the store entrance and Highland Avenue. (Id.) These features would enhance the viability of public transit, bicycling, and walking and contribute to a reduction in criteria pollutant and greenhouse gas emissions. (Id.) Finding: Based on the discussion above, the proposed project's air quality impacts would not be cumulatively considerable. C. Cumulative Impacts: Biological Resources The geographic scope of the cumulative biological resources analysis is the San Bernardino/Highland area. The project site is in an urban, built-up state and does not contain any significant biological habitat or special-status plant or animal species. The project site contains at least a dozen mature ornamental trees that provide nesting habitat for passerine and raptor bird species protected by the Migratory Bird Treaty Act. In addition, the proposed project would mitigate the loss of the trees by requiring that they be replaced at a ratio of no less than 2:1. This would ensure that there is no net loss of trees in the San Bernardino/Highland area. Finding: The implementation of standard construction mitigation measures, discussed in section 4 above, would ensure that no protected bird species are adversely affected by tree removal activities and, therefore, would not affect the biological viability of these species in the San Bernardino/Highland area. (DEIR p. 6-4.) In addition, the proposed expansion would not result in significant changes to the existing ambient biological environment of the San Bernardino/Highland area. (DEIR p. 6-5.) It is reasonable to assume that other related projects would implement mitigation that will reduce potential impacts to special-status species and comply with local biological policies and ordinances; therefore, cumulative impacts are anticipated to be less than significant, and the proposed project would not have a cumulatively considerable impact on biological resources. (Id.) D. Cumulative Impacts: Geology, Soils, and Seismicity The geographic scope of the cumulative geology, soils, and seismicity analysis is the San Bemardino/Highland area. (DEIR p. 6-5.) The project site is in an urban, built-up state and contains a Wal-Mart store, parking areas, and landscaping. A splay of the San Andreas Fault Zone traverses the northeastern portion of the project site. (Id.) Mitigation is proposed that 35 AVM-I igManV_CA—423082 1 would require that all structures be set back appropriate distances from the fault in accordance with State law. (Id.) In addition, mitigation is proposed that would require monitoring of earthwork activities for the presence of fault traces and, if necessary, make project modifications if such traces are found. (Id.) The implementation of certain mitigation measures, discussed in section 4 above, would ensure that fault rupture hazards are reduced to a level of less than significant and, therefore, would ensure that the proposed project would not contribute to area- wide fault rupture exposure. (Id.) s Project construction activities would involve grading and soil engineering practices intended to ensure that buildings and paved areas are adequately supported to minimize the potential for structural damage caused by seismic events, settling, or other geologic conditions. (Id.) Project construction activities would implement standard erosion control measures to ensure that earthwork activities do not result in substantial erosion offsite and, therefore, would not contribute to area-wide erosion problems. As such, the proposed expansion would not result in significant changes to the existing ambient geological environment of the San Bemardino/Highland area. (Id.) It is reasonable to assume that other development projects will implement mitigation measures for seismic hazards and erosion that would reduce project-level impacts to a less than significant level. (Id.) Therefore, cumulative impacts are anticipated to be less than significant, and the proposed project would not have a cumulatively considerable impact on geology, soils, and seismicity. (Id.) Finding: With implementation of mitigation measures discussed in section 4 above, the proposed project would not have a cumulatively considerable impact on geology, soils, and seismicity. E. Cumulative Impacts: Hazards and Hazardous Materials The geographic scope of the cumulative hazards and hazardous materials analysis is the San Bemardino/Highland area. (DEIR p. 6-5.) The proposed project would expand the existing Wal-Mart. The proposed project would maintain the existing commercial retail nature of the project site and would not result in the use of substantial quantities of hazardous materials or the creation of new hazards. (Id.) Demolition activities would include removal of the Tire & Lube Express, which currently stores potentially hazardous materials such as waste oil, automotive batteries, and vehicle fluids. (DEIR p. 6-6.) In addition, demolition and construction activities associated with the proposed project would have the potential to expose persons and the environment to hazardous building materials (e.g., polychlorinated biphenyls, chlorofluorocarbons, mercury, etc.). (Id.) To address these potentially significant impacts, precautionary mitigation measures are proposed that would require proper abatement of these potential hazards to reduce the impact to a level of less than significant. (Id.) It is reasonable to assume that other related projects will implement mitigation that would require proper abatement of potential hazards, and cumulative impacts are anticipated to be less than significant. (Id.) Therefore, the proposed project would not have the potential to cause an incremental contribution to hazards in the San 36 MM4+Iigh Lm CA--4230821 Bemardino[Highland area, and the proposed project would not have a cumulatively considerable impact on hazards and hazardous materials. (Id.) Finding: With implementation of mitigation measures discussed in section 4 above, the proposed project would not have a cumulatively considerable impact on hazards and hazardous materials. F. Cumulative Impacts: Hydrology and Water Quality The geographic scope of the cumulative hydrology and water quality analysis is the San Bernardino/Highland area. (DEIR p. 6-6.) The proposed project would involve short-term construction and long-term operational activities that would have the potential to degrade water quality in downstream waterways. (Id.) Mitigation is proposed that would require the implementation of various construction and operational water quality control measures that would prevent the release of pollutants into downstream waterways. (Id.) With the implementation of this mitigation, the proposed project would not cumulatively contribute to water pollution in downstream waterways. (Id.) The proposed project would require improvements to the existing onsite drainage infrastructure in order to accommodate the existing stormwater generated by the increased impervious surface coverage on the project site. (Id.) The upgraded storm drainage would be designed to limit the release of stormwater at a rate no greater than the pre-development condition of the project site. As such, the proposed project would ensure that no net increase in stormwater would leave the project site, which would avoid a cumulatively considerable contribution to potential flooding problems in downstream waterways. (Id.) It is reasonable to assume that other related projects would implement similar mitigation that would reduce potential impacts to downstream waterways to a less than significant level. (Id.) Therefore, the proposed project, in conjunction with other planned projects, would not have a cumulatively considerable impact on hydrology and water quality. (Id.) Finding: With implementation of mitigation measures discussed in section 4 above, the proposed project would not have a cumulatively considerable impact on hydrology and water quality. G. Cumulative Impacts: Land Use The geographic scope of the cumulative land use analysis is the San Bemardino/Highland area. The proposed project would expand the existing Wal-Mart store on the project site. (DEIR p. 6-6.) Land use activities associated with the proposed project would be similar in nature to existing activities associated with the existing Wal-Mart store and, therefore, would not create any land use conflicts with surrounding land uses. (Id.) The proposed project would be consistent with the General Plan and Development Code and would not be in conflict with any policies or provisions of either document. (Id.) For these reasons, the proposed expansion would not result in significant changes to the existing ambient land use environment of the San Bemardino/Highland area. It is reasonable to assume that other related projects would be consistent with the General Plan and Development Code. 37 IX644 Higbiand CA--J?DOA]1 Finding: Based on the discussion above, cumulative impacts are anticipated to be less than significant, and the proposed project would not have a cumulatively considerable impact on land use. H. Cumulative Impacts: Noise The geographic scope of the cumulative noise analysis is the project vicinity, including surrounding sensitive receptors. (DEIR p. 6-7.) Construction activities associated with the proposed project would result in substantial sources of noise. (Id.) Mitigation is proposed that would require the implementation of noise control measures during construction; however, there is uncertainty about the effectiveness of these measures, and the residual significant of this impact is significant and unavoidable. (Id.) Therefore, the proposed project would have a cumulatively considerable contribution to short-term ambient noise levels. (Id.) The proposed project's construction and operational vibration levels would not exceed annoyance thresholds and, therefore, would not constitute a cumulatively considerable contribution to ambient vibration levels. (Id.) As shown in Table 4.8-26 and Exhibit 4.8-8 of the DEIR, combined stationary and transportation noise levels under near-term with project conditions would not result in significant noise increases at nearby sensitive receptors relative to the near-term without project condition. (Id.) As such, the proposed project would not have a cumulatively considerable, permanent increase in ambient noise levels in the project vicinity. Finding: Even with implementation of mitigation measures discussed in section 4 above, the proposed project would have a cumulatively considerable impact regarding construction noise. There is no feasible mitigation that would reduce this impact below a level of significance. 1. Cumulative Impacts: Public Services and Utilities The geographic scope of th,: cumulative public services and utilities analysis is the service area of each of the providers serving the proposed project. Because of differences in the nature of the public service and utility topical areas, they are discussed separately. Fire Protection and Emergency Medical Services The geographic scope of the cumulative fire protection and emergency medical services analysis is the San Bernardino City Fire Department's jurisdictional area, which is the entire City of San Bernardino. (Id.) The Fire Department indicated that the proposed expansion would not result in a need for any additional resources to provide adequate fire protection or emergency medical services to the community. (Id.) Finding: Based on the above discussion, the proposed project, in conjunction with other planned projects, would not have a cumulatively considerable impact on fire protection or emergency medical services. 38 N'Naa-Highland CA—423052 1 Police Protection The geographic scope of the cumulative law enforcement analysis is the San Bernardino Police Department's jurisdictional area, which is the entire City of San Bernardino. (Id.) The Police Department indicated that although the proposed expansion would increase calls for service, it would not result in a need for any additional resources to provide adequate police protection to the community. (M) Finding: Based on the above discussion, the proposed project, in conjunction with other planned projects, would not have a cumulatively considerable impact on police protection. Potable Water The geographic scope of the cumulative potable water analysis is the East Valley Water District's (EVWD) service area, which generally encompasses the eastern portion of the City of San Bernardino, the City of Highland, and surrounding unincorporated areas. (DEIR p. 6-8.) The proposed project is estimated to result in a net increase of 1,766 gallons of water on a daily basis or 1.98 acre-feet annually. (Id.) To reduce overall water demand, the proposed project would install water conservation features and practices. EVWD indicated that adequate water entitlements and conveyance facilities exist to serve the proposed project, as well as existing and projected demand through 2025. (Id.) It is reasonable to assume that other related projects would implement similar water conservation features and practices to reduce water demand; therefore, cumulative impacts are anticipated to be less than significant. (Id.) Finding: Based on the above discussion, the proposed project, in conjunction with other planned projects, would not have a cumulatively considerable impact on potable water supply. Wastewater The geographic scope of the cumulative wastewater analysis is the City of San Bernardino's wastewater service area, which generally the Cities of San Bernardino and Highland and nearby unincorporated areas. (Id.) The City indicated there is existing capacity at the City's wastewater reclamation plant to serve proposed project. (Id.) The proposed project would generate a net daily increase of 1,590 gallons of effluent, which would be readily accommodated by existing available treatment capacity. (Id.) The wastewater conveyance infrastructure downstream of the project site has sufficient capacity to serve the proposed project. (M) Finding: Based on the above discussion, the proposed project, in conjunction with other planned projects, would not have a cumulatively considerable impact on wastewater. 39 W844I ithlamt_CA—G?i0$21 Storm Drainage The geographic scope of the cumulative storm drainage analysis is the receiving areas that accept runoff from the project site. The proposed project would require improvements to the existing onsite drainage infrastructure, in order to accommodate the existing stormwater generated by the increased impervious surface coverage on the project site. The upgraded storm drainage would be designed to limit the release of stormwater at a rate no greater than the pre- development condition of the project site. As such, the proposed project would ensure that no net increase in stormwater would leave the project site and would avoid a cumulatively considerable contribution of stormwater to downstream waterways. Finding: Based on the above discussion, the proposed project, in conjunction with other planned projects, would not have a cumulatively considerable impact on storm drainage. Solid Waste The geographic scope of the cumulative solid waste analysis is the City of San Bernardino. The proposed project is anticipated to generate 81 total tons of waste during construction and a net increase of 100 tons annually during operations. (Id.) The proposed project would implement recycling and waste reduction practices during both construction and operations that would divert substantial quantities of materials from the solid waste stream and would serve to assist the City in meeting the 50-percent waste-diversion target set by the State. (DEIR p. 6-9.) In addition, these practices would also contribute to conserving landfill capacity and extending the operational life of such facilities. (Id.) It is reasonable to assume that other related projects would include as part of the project, or would be conditioned to implement, recycling and waste reduction practices that will aid local agencies in meeting the waste diversion target set by the State. (Id.) Finding: Based on the above discussion, the proposed project, in conjunction with other planned projects, would not have a cumulatively considerable impact on solid waste. Energy The geographic scope of the cumulative energy analysis is the Southern California Edison (SCE) and Southern California Gas Company (Gas Company) service areas, which generally encompass all or portions of nine Southern California counties (Imperial, Kern, Los Angeles, Orange, Riverside, San Bernardino, San Diego, and Ventura). (DEIR p. 6-9.) The proposed project would result in a net increase of 653,801 kilowatt-hours (kWH) of electricity and 49,973,000 BTUs of natural gas on an annual basis. (Id.) Both SCE and the Gas Company have adequate energy supplies to serve the proposed project, as well as existing demand in its service area. (Id.) Both utilities are currently developing additional energy supplies to serve anticipated demand in future years. (Id.) Finding: Based on the above discussion, the proposed project, in conjunction with other Qplanned projects, would not have a cumulatively considerable impact on energy. 40 WF14 Highlind CA--421052 I J. Cumulative Impacts: Transportation The geographic scope of the cumulative transportation analysis is the San Bernardino/Highland area. (Id.) The proposed project would result in a net increase of 1,890 daily trips, including 74 trips during the morning peak hour and 173 trips during the afternoon peak hour. (Id.) Other planned and approved projects in the City of Highland would add 61,694 daily trips, including 4,103 trips during the morning peak hour and 6,441 trips during the afternoon peak hour. The addition of the proposed project's trips would substantially contribute to unacceptable intersection operations at four intersections, and the proposed project would be required to provide fair-share payments to cover the costs of improvements to the impact intersections (e.g., signals, turn lanes, and right-turn overlap phasing). (Id.) With the installation of the improvements, all four intersections would operate at acceptable levels of service. Although all intersections would operate at acceptable levels of service after mitigation, the project applicant would only provide partial costs of the mitigation; therefore, the City of San Bernardino cannot assure that the necessary roadway improvements would be in place prior to project occupancy because of uncertainties about how the remaining cost of the improvements would be financed. (Id.) Accordingly, the proposed project may generate trips that contribute to unacceptable intersection operations, which would be considered a cumulatively considerable impact. (Id.) The proposed project would provide adequate onsite parking supply and would not contribute to inadequate parking supply. (Id.) The proposed project would provide adequate `► emergency access and would not create any roadway hazards. (Id.) The proposed project would install an enhanced Omnitrans bus stop on the Highland Avenue Plaza frontage, which would improve the viability of public transit use for employees and customers. (DEIR p. 6-10.) The proposed project would provide bicycle storage facilities and a direct pedestrian connection between the store entrance and Highland Avenue to enhance the viability of bicycle and pedestrian modes of transportation. (Id.) Therefore, the proposed project would not have any cumulatively considerable impacts on these transportation-related areas. (Id.) Finding: Based on the above discussion, the proposed project, in conjunction with other planned projects, would have a cumulatively considerable impact on traffic level of service at intersections due to the uncertainty that improvements will be constructed prior to project construction. The Project is contributing fair-share payments to cover the costs of improvements to the impact intersections, however no feasible mitigation exists to ensure that mitigation will be constructed prior to project operation. K. Cumulative Impacts: Urban Decay The geographic scope of the cumulative urban analysis is the Cumulative Primary Market Area identified in Impact UD-2 in Section 4.11 of the DEIR, Urban Decay and shown on Exhibit 4.11-3 of the DEIR. (Id.) As noted in that section, the Cumulative Primary Market Area encompasses the Primary Market Area for both the proposed project and the proposed Redlands retail center that would be anchored by a Wal-Mart. As shown in Table 4.11-18 of the DEIR, 41 W814}I ighlmd CA--4210831 excess expenditures in the Cumulative Primary Market Area are anticipated to range between $155 million and $274 million in 2012. (Id.) Subtracting out sales captured by the two proposed Wal-Mart projects, there would still be $48 million to $168 million in excess expenditures (Table 4.11-19 of the DEIR). Since demand would outpace supply, store closure in the Cumulative Primary Market Area would not be a foreseeable result; therefore, urban decay would not occur. (Id.) Accordingly, the proposed project would not have any cumulatively considerable impacts on urban decay. Finding: Based on the above discussion, the proposed project, in conjunction with other planned projects, would not have a cumulatively considerable impact on urban decay. SECTION 7 SIGNIFICANT IRREVERSIBLE ENVIRONMENTAL CHANGES The types and level of development associated with the Project would consume natural resources in the form of construction materials and energy resources during construction, and additional energy resources in the form of electricity and gas during the long-term operations of the project. Construction materials such as concrete, aggregate, asphalt and other materials are commercially available in the Southern California region with few or no constraints. Because of the general availability of construction materials (including aggregate) and the Project's use of recycled building materials, no adverse impact related to the availability of these resources or the resource base from which they are derived would occur. Energy resources required to construct and operate the Project would be minimized to the extent practicable through the use of energy- efficient equipment, the application of design and construction practices that conserve energy, and adherence to applicable energy conservation measures discussed in Section 6.5 of the DEIR. While development of the Project would commit additional area on the Project site to development, because the site and surrounding area have long been planned for such uses, no significant long-term impact would occur. Moreover, potential effects of commitment of natural and non-renewable resources are substantially reduced by the Project's commitment to energy savings and water conservation measures. SECTION 8 GROWTH INDUCING IMPACTS CEQA requires a discussion of ways in which the proposed Project could be growth inducing. Specifically Section 15126.2(d) of the CEQA Guidelines states that EIR's must describe the ways in which proposed Project could foster economic or population growth or the construction of additional housing either directly or indirectly in the surrounding environment. 42 W8444ighlnnd CA--<?l092I 10. The proposed project consists of expanding the existing Wal-Mart store to a maximum of 171,438 square feet. (DEIR p. 6-2.) The existing store is located within the Highland Avenue Plaza, a shopping center that is served by urban infrastructure. (Id.) The project site is surrounded by urban, built-up land uses on all sides. (Id.) The proposed project does not propose any residential uses. Therefore, the proposed store expansion would not directly induce population growth either by providing additional residential capacity or by removing an obstacle to growth. (Id.) The proposed project is estimated to add an estimated 175 employment opportunities to the local economy. (Id.) These types of employment opportunities would be primarily entry-level jobs, both filltime and part-time. Data provided by the California Employment Development Department indicate that, as of December 2008, the City of San Bernardino had an unemployment rate of 13.1 percent, or 11,700 unemployed persons, and the City of Highland had an unemployment rate of 12.3 percent, or 3,000 unemployed persons. (Id.) Given the nature of the job opportunities and the availability of labor, it would be expected that the proposed project's employment opportunities would not result in indirect population growth. For these reasons, the proposed project would not induce substantial population growth. (Id.) No impacts would occur. SECTION 9 ALTERNATIVES ` CEQA requires that an EIR evaluate a reasonable range of alternatives to a Project, or the location of the Project, which: 1. Offers substantial environmental advantages over the Project Proposal; and 2. May be feasibly accomplished in a successful manner within a reasonable amount of time considering the economic, environmental, social, and technological factors involved. An EIR must only evaluate reasonable alternatives to a project that could feasibly obtain most of the project objectives, and evaluate the comparative merits of the alternatives. In all cases, the consideration of the alternatives is to be judged against a rule of reason. The lead agency is not required to choose an environmentally superior alternative identified in the EIR if the alternative does not provide substantial advantages over the proposed project, and: A. Through the imposition of mitigation measures the environmental effects of the Project can be reduced to an acceptable level; or B. There are social economic technical or other considerations that make the alternative infeasible. Project Objectives As stated in Section 3 of the DEIR, Project Description, the objectives of the proposed project are to: 43 W814 f i, Wnd CA 4230$2 1 • Enhance the commercial retail opportunities in the City of San Bernardino and the larger East Valley. • Provide regional commercial retail activities that will complement existing local retail activities in the City of San Bernardino and the larger East Valley. • Provide commercial development that creates new job opportunities for local residents. • Provide a regional retail establishment that serves local residents and visitors with essential goods and services in a safe and secure 24-hour shopping environment. • Promote economic growth and development that is consistent with the policies of the City of San Bernardino General Plan. • Generate sales tax and property tax revenues to accrue to the various agencies within the project area. •Pay for its fair share of impacts and positively contribute to the local economy. • Minimize travel lengths and utilize existing infrastructure to the maximum extent possible by expanding an existing Wal-Mart store. i • Ensure that commercial development has sufficient onsite parking to minimize impacts to the surrounding area and ensure that adequate parking is provided for customers and employees. • Develop an architectural design that softens the scale and mass of the buildings with features designed to blend with the surrounding area. • Provide landscaping to soften the design and create a pleasant, attractive appearance that complements the surrounding area. A. Alternative 1 - No Project Alternative The No Project Alternative would maintain the existing conditions on the project site. (DEIR p. 5-3.) The existing 129,794-square-foot Wal-Mart store would maintain its current operations as a conventional discount store for the foreseeable future. (Id.) No alterations to the project site would occur. The project site would remain in its existing condition, and no changes in land use intensity would occur. (Id.) The proposed project would result in potentially significant impacts on aesthetics, light, and glare; air quality; biological resources; geology, soils, and seismicity; hazards and hazardous materials; hydrology and water quality; noise; public services and r utilities; and transportation. (Id.) With the exception of construction noise, near-term intersection 44 W8?44JiEnlanJ CA--i23w21 operations, and long-term intersection operations, all project impacts can be mitigated to a level of less than significant. (Id.) None of the proposed project's significant unavoidable impacts would occur under the No Project Alternative. (Id.) Finding: The No Project Alternative would have less impact on all environmental topical areas and would avoid the proposed project's significant unavoidable impacts associated with noise and transportation. (Id.) The No Project Alternative would maintain the existing annual sales volume, which is approximately $53 million and, therefore, would not realize the proposed project's estimated annual sales volume of$68.4 million. (Id.) Accordingly, the City of San Bernardino would not realize the additional tax revenues associated with the increase in volume. Moreover, by maintaining the existing conditions, this alternative would not advance any of the project objectives. Accordingly, the No Project Alternative is rejected. B. Alternative 2 — 10% Reduction Alterative The 10-Percent Reduction Alternative would expand the existing Wal-Mart store by 24,500 square feet to 154,294 square feet. (DEIR p. 5-4.) As part of the expansion, the store would retail groceries and operate 24 hours a day. (Id.) This alternative would represent a net reduction of 17,144 square feet, or approximately 10 percent relative to the proposed project. Table 5-1 of the DEIR provides a summary of the 10-Percent Reduction Alternative. (Id.) Finding: The 10-Percent Reduction Alternative would have fewer impacts on air quality, noise; public services and utilities; and transportation. (DEIR p. 5-8.) However, the alternative would not prevent significant and unavoidable noise or transportation impacts. (Id.) Furthermore, this alternative would not further all of the project objectives to the same degree as the proposed project. (Id.) For example, the smaller store size would create fewer job opportunities for local residents and would result in fewer sales, thus generating less sales tax revenue for the City of San Bernardino. (Id.) Accordingly, the 10% Reduction Project Alternative is rejected. C. Alternative 3— 20% Reduction Alterative The 20-Percent Reduction Alternative would expand the existing Wal-Mart store by 7,356 square feet to 137,150 square feet. (Id.) As part of the expansion, the store would retail groceries and operate 24 hours a day. (Id.) This alternative would represent a net reduction of 34,288 square feet, or approximately 20percent relative to the proposed project. (Id.) Table 5-3 of the DEIR provides a summary of the 20-Percent Reduction Alternative. (Id.) Finding: The 20-Percent Reduction Alternative would have fewer impacts on air quality, noise; public services and utilities; and transportation. (DEIR p. 8-13.) However, the alternative would not avoid significant and unavoidable noise or transportation impacts. (Id.) Furthermore, this alternative would not further all of the project objectives to the same degree as the proposed project. (Id.) For example, the smaller store size would create fewer job opportunities for local residents and would result in fewer sales, thus generating less sales tax revenue for the City of San Bernardino. (Id.) Accordingly, the 20% Reduction Project Alternative is rejected. 45 W81M I iFhland_CA-1?D0Y11 E. Environmentally Superior Alternative CEQA Guidelines Section 15126(e)(2) requires an EIR to identify an environmentally superior alternative. If the No Project Alternative is the environmentally superior alternative, the EIR must also identify an environmentally superior alternative from among the other alternatives. Each of the proposed alternatives would have fewer environmental impacts relative to the proposed project, with the No Project Alternative having the fewest. Therefore, the No Project Alternative is the environmentally superior alternative, as the project site would remain in its existing condition, thereby avoiding any potentially adverse environmental impacts. As stated above, if the No Project Alternative is environmentally superior, the EIR must also identify another environmentally superior alternative among the remaining alternatives. Based on this review, the 20-Percent Reduction Alternative is considered the environmentally superior alternative because it would result in greater reductions in impacts related to air quality; noise; public services and utilities; and transportation than the 10-Percent Reduction Alternative. Therefore, the 20-Percent Reduction Alternative is considered the environmentally superior alternative. This alternative is rejected for the reasons identified above in Section C. SECTION 10 CERTIFICATION OF FINAL ENVIRONMENTAL IMPACT REPORT The City of San Bernardino Planning Commission finds that it has reviewed and considered the Final EIR in evaluating the Project, that the Final EIR is an accurate and objective statement that fully complies with CEQA and the CEQA Guidelines, and that the Final EIR reflects the independent judgment of the Planning Commission. The Planning Commission declares that no new significant information as defined by CEQA Guidelines Section 15088.5 has been received by the Planning Commission after the circulation of the DEIR that would require recirculation. All of the information added to the FEIR merely clarifies, amplifies or makes insignificant modifications to an already adequate EIR pursuant to CEQA Guidelines Section 15088.5(b). The Planning Commission hereby certifies the EIR based on the following findings and conclusions: A. Findings 1. CEQA Compliance As the decision-making body for the Project, the Planning Commission has reviewed and considered the information contained in the Findings and supporting documentation. The Planning Commission determines that the Findings contain a complete and accurate reporting of the environmental impacts and mitigation measures associated with the Project, as well as complete and accurate reporting of the unavoidable 46 WWU HigglinA_CA--42MSZ 1 impacts and benefits of the Proposed Project as detailed in the Statement of Overriding Considerations. The Planning Commission finds that the EIR was prepared in compliance with CEQA and that the Environmental Consultant and the Planning Commission have complied with CEQA's procedural and substantive requirements. 2. Independent Judgment of Lead Agency: Working under the direction of the City, at the direct expense of applicant, Michael Brandman Associates prepared the EIR for the Project. The EIR was prepared with direction from the City of San Bernardino Planning Department staff. The Planning Commission is the final decision making body for the entitlements listed below. The Planning Commission has received and reviewed the EIR prior to certifying the EIR and prior to making any decision to approve or disapprove the project. Finding: The EIR reflects the City's independent judgment. The City has exercised independent judgment in accordance with Public Resources Code section 21082.1(c)(3) in retaining its own environmental consultant, directing the consultant in preparation of the EIR as well as reviewing, analyzing and revising material prepared by the consultant. 3. Significant Unavoidable Impacts/Statement of Overriding Considerations: The Project will have significant adverse impacts even following adoption of all feasible mitigation measures which are required by the Planning Commission. The following significant environmental impacts have been identified in the EIR and will require mitigation but cannot be mitigated to a level of insignificance as set forth in Section 5 of these Findings: Construction Noise Impacts; Near-Term Intersection Operations; and Long-Term Intersection Operations. The project design has eliminated or substantially reduced environmental impacts where feasible as described in the Findings, and the Planning Commission determines that the remaining unavoidable significant adverse impacts are acceptable due to the reasons set forth in the preceding Statement of Overriding Considerations. B. Conclusions: 1. All potentially significant environmental impacts from implementation of the proposed Project have been identified in the EIR and, with the implementation of the mitigation measures defined herein and set forth in the Mitigation Monitoring and Reporting Plan (also referred to as the Mitigation Monitoring and Compliance Program), will be mitigated to a less-than-significant level, except for the impacts identified as significant and avoidable herein. 2. Other reasonable alternatives to the proposed Project that could feasibly achieve the basic objectives of the proposed Project have been considered and rejected in favor of the proposed Project. 3. Environmental, economic, social and other considerations and benefits derived from the development of the proposed Project override and make infeasible any alternatives to the proposed Project or further mitigation measures beyond those incorporated into the proposed Project. 47 W844{IighlaM CA--4?30P21 SECTION 11 STATEMENT OF OVERRIDING CONSIDERATIONS The San Bernardino Planning Commission hereby declares that, pursuant to CEQA Guidelines Section 15093, the Planning Commission has balanced the benefits of the proposed Project against any significant and unavoidable environmental impacts in determining whether to approve the proposed Project. If the benefits of the proposed Project outweigh the unavoidable adverse environmental impacts, those impacts are considered"acceptable." The Planning Commission hereby declares that the EIR has identified and discussed significant effects that may occur as a result of the Project. With the implementation of the mitigation measures discussed in the FEIR, these impacts can be mitigated to a level of less than significant except for the unavoidable and significant impacts discussed in Section 5 herein. The Planning Commission hereby declares that it has made a reasonable and good faith effort to eliminate or substantially mitigate the potential impacts resulting from the Project. The Planning Commission hereby declares that to the extent any mitigation measures recommended to the City are not be incorporated, such mitigation measures are infeasible because they would impose restrictions on the Project that would prohibit the realization of specific economic, social, and other benefits that this Planning Commission finds outweigh the unmitigated impacts. The Planning Commission further finds that except for the Project, all other alternatives set forth in the FEIR are infeasible because they would prohibit the realization of the Project objectives and/or specific economic, social or other benefits that this Planning Commission finds outweigh any environmental benefits of the alternatives. The Planning Commission hereby declares that, having reduced the adverse significant environmental effects of the Project, to the extent feasible by adopting the proposed mitigation measures, having considered the entire administrative record on the Project and having weighed the benefits of the Project against its unavoidable significant impact after mitigation, the Planning Commission has determined that the social, economic and environmental benefits of the Project outweigh the potential unavoidable significant impacts and render those potential significant impacts acceptable based upon the following considerations: 1. The Project will provide a regional retail establishment that serves local residents and visitors with essential goods and services in a safe and secure 24-hour shopping environment. 2. The Project will promote economic growth and development that is consistent with the policies of the City of San Bernardino General Plan. 3. The Project will generate sales tax and property tax revenues to accrue to the various agencies within the project area. 48 WNW-I ighbnd CA--4230521 4. The Project will pay for its fair share of impacts and positively contribute to the local economy. 5. The Project will minimize travel lengths and utilize existing infrastructure to the maximum extent possible by expanding an existing Wal-Mart store. 6. The Project is the buildout of the expansion square footage approved in 1991 and included in the original approvals for the shopping center. This expansion area has always been considered as a part of the shopping centers ultimate buildout and is therefore not adding any new or additional impacts that had not already been previously studied and contemplated. 7. The Project is already in existence and already provides dry food goods to a certain extent. The additional grocery square footage will provide complementary services to the area that are in demand and necessary to meet the needs of the community. As the CEQA Lead Agency for the proposed action, the City of San Bernardino has reviewed the Project description and the alternatives presented in the EIR, and fully understands the Project and Project alternatives proposed for development. Further, this Commission finds that all potential adverse environmental impacts and all feasible mitigation measures to reduce the impacts from the project have been identified in the Draft EIR, the Final EIR and public testimony. This Commission also finds that a reasonable range of alternatives was considered in the EIR and this document, Section 9 above, and finds that approval of the Project is appropriate. This Commission has identified economic and social benefits and important policy objectives, herein, which result from implementing the Project. The Commission has balanced these substantial social and economic benefits against the unavoidable significant adverse effects of the Project. Given the substantial social and economic benefits that will accrue from the Project, this Commission finds that the benefits identified herein override the unavoidable environmental effects. California Public Resource Code 21002 provides: "In the event specific economic, social and other conditions make infeasible such Project alternatives or such mitigation measures, individual projects can be approved in spite of one or more significant effects thereof." Section 21002.l(c) provides: "In the event that economic, social, or other conditions make it infeasible to mitigate one or more significant effects of a project on the environment, the project may nonetheless be approved or carried out at the discretion of a public agency..." Finally, California Administrative Code, Title 4, 15093 (a) states: "If the benefits of a proposed project outweigh the unavoidable adverse environmental effects, the adverse environmental effects may be considered `acceptable."' The Planning Commission hereby declares that the foregoing benefits provided to the public through approval and implementation of the Project outweigh the identified significant adverse environmental impacts of the Project that cannot be mitigated. The Planning Commission finds that each of the Project benefits outweighs the unavoidable adverse © environmental impacts identified in the DER and, therefore, finds those impacts to be acceptable. 49 W994 H ighlanJ CA..4230911 BRIGGS LAW CORPORATION San Diego Office: In land Emp ire Office: 5663 B alb o a Ave n a e, No. 376 99 East "C"Stre a t, Su ite 111 San Diego, CA 92111-2705 Upland, CA 91786 T e lep b o n e:858-495-9082 T e le p b o n e:909-949-7115 gone Facsimile:858-495-9138 Facrim ile:909-949-7121 Please respond to:Inland Empire Office BLC File(s): 1366.44 4 January 2010 N Honorable Mayor and City Council o ,7,1., City of San Bernardino a m 300 North "D" Street, 3rd Floor s San Bernardino, CA 92418 � C-) Re: Highland Avenue Wal-Mart Expansion Project = - W c� Dear Honorable Mayor and City Council: ry Ls On behalf of Citizens for Responsible Equitable Environmental Development,I am writing to urge you to deny the project and uphold the appeal that is the subject of the above-referenced matter. In general, approval of the project would violate the California Environmental Quality Act ("CEQA")and other laws. The specific reasons for denying the project are set forth on Attachment 1 to this letter and supported by evidence in the administrative record for the project and by other evidence provided on the accompanying CD/DVD. (The fee for today's appeal hearing accompanies this letter.) If you do not make a decision on the appeal tonight,please provide me with written notice of the next public hearing or other meeting at which you will consider this project. Additionally, please provide me with written notice of whatever action you do take tonight. Thank you for giving this matter the attention it deserves.. Sincerely, B GGS LAW CORPORATION Cory J. Briggs Attachment&DVD (including exhibit index) Be Good to the Earth:Reduce,Reuse,Recycle l 0 /-y-,ioAb Attachment 1: Comments on Highland Avenue Wal-Mart Expansion Project January 4, 2010 1. Global Climate Change 1.01 The EIR does not adequately analyze the cumulative impacts of the project on greenhouse-gas emissions. Evidence supporting the conclusion that the project's cumulative impacts on global climate change will be significant is included on the accompanying CD/DVD in the "GHG Exhibits" folder. 1.02 The EIR's analysis of greenhouse-gas emissions is not supported by substantial evidence in the record. 1.03 The EIR does not include any alternatives that significantly reduce the impacts associated with greenhouse-gas emissions. 1.04 The EIR's conclusion (on page 4.2-48 & -51 of the draft EIR) that the project's contribution to global climate change through the emission of greenhouse gases will be "less-than-significant" appears to be based on the implementation of certain mitigation measures (see page 4.2-48 of draft EIR and 3-13 of the final EIR).' The conclusion implies that the project's impacts will be significant without the mitigation; this is consistent with the findings of other jurisdictions, which have concluded that any increase in net greenhouse-gas emissions is significant and have then proceeded to impose mitigation. See Exs. lb-ld. Consequently, all feasible mitigation measures must be imposed in order to reduce the project's impacts to a level of insignificance. Furthermore,nothing in the EIR proves that the prescribed mitigation measures will reduce the project's impacts to a level of insignificance. 1.05 The Climate Action Team ("CAT")report is not an approved general plan or other planning document that may be used in the manner that the City of San Bernardino is using it (e.g., for mitigation measures). Furthermore, the project does not fully comply with all of the identified strategies. 1.06 The EIR states that the solar initiative is not implemented because Wal-Mart Stores, Inc., is still exploring the feasibility of solar technology(final EIR page 3-14). The feasibility of utilizing solar at this project needs to be analyzed before you can determine whether it is a feasible mitigation measure or not. The feasibility of mitigation must be assessed as part of environmental review, not after EIR certification. Sundstrom v. County of Mendocino,202 Cal.App.3d 296,307(1988) (mitigation envisioned as part of future use permit would violate CEQA because they would be exempt from the CEQA process of public and governmental scrutiny). The feasibility of using on-site solar should be analyzed to determine if it is feasible before it is accepted or rejected. 1.07 All feasible mitigation measures must be imposed in order to reduce the project's impacts to a level of insignificance. However, the EIR and the City of San Bernardino have not imposed all feasible mitigation measures. Former Wal-Mart CEO Lee Scott recognizes that global warming"is real,now,it must be addressed." Another EIR in the City of San Bernardino found that the cumulative impacts of climate change would be cumulatively significant without mitigation based on the same concerns about calculating cumulative impacts expressed here. See Ex. lq. This EIR should have likewise found the cumulative impacts of climate change significant and imposed feasible mitigation measures. Be Good to the Earth:Reduce,Reuse.Recycle Attachment 1: Comments on Highland Avenue Wal-Mart Expansion Project January 4,2010 See Ex. lf. Wal-Mart has also acknowledged, among other things, that it must reduce its energy consumption and that the best way to reduce its carbon emissions is to "not bum fossils." See Ex. lg. Big-box stores like Kohl's and Tesco are installing solar panels on their roofs,with the effect of reducing project-specific and cumulative impacts relating to climate change; this includes Tesco's distribution center in Riverside, California. See Exs. lh-lm. Similarly, the EIR should have imposed mitigation measures on the project to minimize its impacts on global climate change.Solar panels and renewable energy certificates(RECs)that render the project "carbon neutral"would be sufficient mitigation measures.See Ex. ln. Retail-center developer Regency Centers recently agreed to impose mitigation measures to offset 100% of its energy consumption with RECs for a big-box shopping center in Murrieta. See Ex. lo. Solar technology is not limited to rooftops, but is also a feasible mitigation measure for parking lots. See Exs.lr-lw. 1.08 Wal-Mart is capable of using solar power at the project site without any capital costs and without paying more than existing electricity rates. In 2007, SunEdison announced that it finances,installs,operates,and maintains solar technology for free on eight Wal-Mart stores, four of which are in California. The City of San Bernardino has not adequately considered the reductions in the project's greenhouse- gas emissions that will be achieved by requiring solar technology as a mitigation measure and has not adequately considered the feasibility of such technology. See Ex. 1p. 1.09 Under CEQA, an EIR must provide certainty regarding the implementation of mitigation measures.Federation ofHillside&Canyon Assns v. City ofLos Angeles, 83 Cal. AppAth 1252 (2000). The mitigation measures for the reduction of greenhouse gas emissions are not made enforceable through a Mitigation Monitoring and Reporting Program. The mitigation measures are also not included as conditions for the project. 2. Water Supply and Quality 2.01 The Project relies on groundwater from the Bunker Hill Subbasin,an area known to have several contaminated plumes. See Exs. 2a-2c. Particularly given the current situation, the EIR should, but fails to, provide adequate information about the environmental consequences of supplying water to the project. The informational purposes of an EIR are not satisfied unless decision-makers are provided with enough information to evaluate the pros and cons of supplying the amount of water that the project will need. The critical issue to be considered is not simply whether an adequate supply is available, but whether there is an adequate discussion of the foreseeable impacts of the project. While the EIR includes a discussion about water supply,it does not provide information about the impacts of supplying water such as the effect that the project's water use will have on water infrastructure or the availability of water for other purposes. 3. Cumulative Impacts 3.01 Conspicuous by its absence in the EIR is any analysis of the cumulative energy- impacts. Why did the City of San Bernardino not analyze the cumulative impacts of the project on regional energy consumption? Barstow did for a recent Wal-Mart distribution center that it considered for approval. See Ex. 3a. Be Good to the Earth:Reduce,Reuse,Recycle Attachment l: Comments on Highland Avenue Wal-Mart Expansion Project January 4, 2010 3.02 The draft EIR identifies a list of projects considered in the cumulative impact list. The project list is under-inclusive. For example,the project list does not identify a recently opened Fresh & Easy grocery store in the project vicinity. Ex. 3b. 3.03 The project list used in the cumulative impact analysis is not tied to the impacts being analyzed. Table 6-1 identifies 14 projects considered in the cumulative analysis without any analysis of the methodology for selecting the projects or how they relate to each of the resources being analyzed. For example, the EIR states that the geographic scope of the cumulative air quality analysis is the South Coast Air Basin, ignoring the fact that different air pollutants have impacts in different ranges. The diesel particulate matter emissions have a more localized impact than other air pollutants and should be analyzed along with other projects having an impact on nearby sensitive receptors. Similarly, the baseline for greenhouse gas emissions is not within the South Coast Air Basin but instead has a much larger range as causing global climate change. See Ex. 1q. 3.04 There is no explanation for why the projects listed in the cumulative analysis section were included and others excluded. 3.05 There is no supporting evidence for the cumulative transportation analysis. The EIR does not identify which other planned and approved projects would contribute traffic to which unacceptable intersection operations. Such information is essential so that the public can meaningfully review and comment on additional mitigation measures. 4. Traffic/Transportation 4.01 Mitigation measures Trans-1,-2a and-2b are insufficient because they are based on a program that might not ever come into being. There is no evidence in the record showing that there will be enough funds to pay for completion within the time frame when the mitigation will be necessary. The project is responsible for paying at most just 1.0 to 13.1 percent of the total cost of the mitigation necessary to achieve a Level of Service D or better at the intersections identified on page 4.10-77 of the draft EIR. The draft EIR goes on to recognize (page 4.10-63, -77 and-78)the high likelihood that the mitigation measures will not be in place when the project's operations occur. 4.02 There is no evidence in the record that additional mitigation measures were contemplated. You cannot find that there are no feasible mitigation measures without investigating whether such measures exist;they should have been identified, and the reasons for their rejection should have been identified. 4.03 Approval of the project would violate the General Plan (see page 6-16) for intersection Level of Service, including but not limited to Policy 6.2.1. Consequently, it is not possible to make the finding that the project will not violate the General Plan and support the finding with substantial evidence in the record. The high probability that there will not be enough funding to implement the mitigation measures necessary to maintain intersection Levels of Service D or better,which has triggered the EIR's conclusion that the project's traffic will be a "significant unavoidable impact,"is substantial evidence that the project will violate the General Plan. Be Good to the Earth:Reduce,Reuse,Recycle t* Attachment 1: Comments on Highland Avenue Wal-Mart Expansion Project January 4,2010 4.04 The EIR fails to analyze the project's traffic impacts on roadways. However, the General Plan(see pages 6-16 and-24)requires a Level of Service C on all roadways and requires traffic studies that identify roadway improvements necessary to mitigation the traffic impacts of new developments. Those requirements imply that the project's traffic impacts on roadways must be analyzed. 4.05 Approval of the project would violate the General Plan(see pages 6-16 and-24) for roadway Level of Service, including but not limited to Policy 6.2.3. Consequently, it is not possible to make the finding that the project will not violate the General Plan and support the finding with substantial evidence in the record. The EIR failed to consider the project's impacts on roadway traffic. Because the General Plan requires a roadway Level of Service C at a minimum, and further because the General Plan requires traffic studies that identify roadway improvements necessary to mitigate the traffic impacts of new developments, it is not possible to make a finding supported with substantial evidence that the project will not violate the General Plan. 4.06 The traffic mitigation requires the applicant to pay money to the City of Highland. However, there is nothing in the administrative record to establish that the City of Highland will spend the money to implement the prescribed mitigation within its city limits. Mitigation measures must be enforceable. Without substantial evidence that the payments to the City of Highland will be spent on the prescribed mitigation,the mitigation measures are not enforceable. 4.07 Approval of the project would violate the General Plan(see page 2-43),including but not limited to Policy 2.7.5. Based on the current written conditions of approval,the project will not be contingent upon the ability of public infrastructure to provide sufficient capacity to accommodate the project's demands and mitigate the project's impacts. The mitigation measures being imposed--even if satisfied--would allow the project to go forward with there being sufficient traffic infi*astructure to ensure,upon the project's completion, that roadway Level of Service C is achieved and that intersection Level of Service D is achieved. However,the General Plan requires such a contingency. 5. Impacts of 24-hour Operations 5.01 The project description in the draft EIR indicates that the project will operate 24 hours per day. However, the EIR's analyses of the project's impacts assumed that the project will operate during ordinary retail business hours (i.e.,not 24 hours per day). For instance, the traffic analysis only looked at peak traffic during ordinary business hours and did not consider traffic outside ordinary business hours; meanwhile, the General Plan(see page 6-17) looks at roadway traffic for a 24-hour period. The failure to analyze the project's round-the-clock impacts has the effect of understating the project's impacts,such as traffic,air quality,water consumption and pollution,greenhouse-gas emissions,noise,light and glare,and energy consumption. Such a failure has been held to violate CEQA in another case involving a big-box retail project. See Ex. 5a. 5.02 The traffic model used in the EIR's traffic analysis appears not to apply to a store with 24-hour operations. Thus, the EIR did not consider traffic impacts outside ordinary retail business hours and did not use a trip-generation model appropriately suited for this type of project. Be Good to the Earth:Reduce,Reuse,Recycle Attachment 1: Comments on Highland Avenue Wal-Mart Expansion Project January 4, 2010 6. Response to Comments; Adequate Notice 6.01 The City of San Bernardino did not respond to all commenters as required by CEQA Guidelines Section 15088(a)-(b). 7. Necessary Findings and Sufficiency of the Evidence 7.01 The draft EIR identifies the 20-percent reduction alternative as the environmentally superior alternative. You have not made the findings required under Public Resources Code Section 21081(a)and(b)to approve the project generally and as they relate to the environmentally superior alternative. 7.02 To the extent that you have attempted to make all findings required under Public Resources Code Section 21081(a)and(b),such findings have not been supported by substantial evidence in the record. 7.03 You have not complied with Public Resources Code Section 21082.1(c). You have not made the requisite findings, and to the extent that you have made any findings under Section 21082.1(c) they are not supported by substantial evidence. For instance, there is no finding that the EIR reflects the independent judgment of City of San Bernardino or of the Common Council. 7.04 You cannot make the findings required by San Bernardino Municipal Code Section 19.36.050(2). The project's inconsistencies with the General Plan are identified above(i.e.,for traffic). Since there will be inconsistencies,the conditional use permit cannot be approved. Furthermore, you cannot make the findings required by San Bernardino Municipal Code Section 19.36.050(3),which requires a finding that the approval of a conditional use permit, like the one being sought here,complies with all General Plan environmental policies. The project will be inconsistent with the General Plan as identified above. Again, since there will be inconsistencies, the conditional use permit cannot be approved. (Alternatively and additionally,there is no substantial evidence in the administrative record to indicate either that these findings were made or that they could have been made based on substantial evidence in the Planning Commission Staff Report dated October 28, 2009.) 7.05 You cannot make the findings required by San Bernardino Municipal Code Section 19.36.050(4). The EIR concludes that the project will have significant noise and traffic impacts that cannot be mitigated to a level of insignificance. Section 19.36.050(4)prohibits the approval of a conditional use permit, like the one being sought for the project, unless there is a finding that there will be no potentially significant negative impacts upon environmental quality and natural resources that could not be properly mitigated and monitored. Since there will be such impacts despite the imposition of all feasible mitigation measures,the conditional use permit cannot be approved. (Alternatively and additionally,there is no substantial evidence in the administrative record to indicate either that these findings were made or that they could have been made based on substantial evidence in the Planning Commission Staff Report dated October 28, 2009.) 7.06 You cannot make the findings required by San Bernardino Municipal Code Section 19.36.050(5). The EIR concludes that the project will have significant noise and traffic impacts that cannot be mitigated to a level of insignificance. Section Be Goad to the Earth:Reduce,Reuse,Recycle 0 Attachment 1: Comments on Highland Avenue Wal-Mart Expansion Project January 4,2010 19.36.050(5) prohibits the approval of a conditional use permit, like the one being sought for the project, unless there is a finding that the project's location, size, design,and operating characteristics will not create significant noise,traffic,or other conditions or situations that may be objectionable or detrimental to other permitted uses in the vicinity or adverse to the public interest, health, safety, convenience, or welfare of the City of San Bernardino. Since there will be such conditions and situations with regard to noise and traffic, the conditional use permit cannot be approved. (Alternatively and additionally, there is no substantial evidence in the administrative record to indicate either that these findings were made or that they could have been made based on substantial evidence in the Planning Commission Staff Report dated October 28, 2009.) Be Good to the Earth:Reduce,Reuse,Recycle ATTACHMENT 1: INDEX OF EXHIBITS Greenhouse Gas Emissions and Global Climate Change la Office of Planning and Research, "CEQA and Climate Change: Addressing Climate Change through California Environmental Quality Act(CEQA) Review,"June 19,2008 lb City of Suisan, "Air Quality,"Walters Road West Project EIR le City of Suisan, "Appendix B: Air Quality Analysis,"Walters Road West Project EIR Id Draft EIR Upper York Creek Ecosystem Restoration Project le CAPCOA, "CEQA&Climate Change,"January 2008 if "Don't Discount Him: An Interview with Wal-Mart CEO H. Lee Scott,"April 12, 2006 I "Wal-Mart is Reducing Greenhouse Gas Emissions"brochure I h "Tesco to Install $13 Million Solar Roof,"January 19, 2007 1 i "Kohl's plans to convert stores to solar power,"April 27,2007 lj "Big-box retailers tap California's sun power for stores," October 5,2007 Ik "More solar in store for California big-box retailers,"June 15, 2007 11 "Solar Integrated wins US $13 million contract from Tesco USA to install world's largest solar roofing system,"January 19, 2007 lm "World's biggest solar roof for Tesco U.S.A.,"January 26,2007 In FAQs re: renewable energy credits lo Murrietans for Smart Growth v. Regency Centers Corporation et. al., Stipulation 1p "SunEdison Named for Wal-Mart's Solar Power Pilot Project,"May 7, 2007 1 q City of San Bernardino, University Hills Specific Plan draft EIR lr "Sun shades cool parking lots,pump out solar energy" Is "New solar parking lot structure at Dell HQ to generate solar energy,help avoid CO2 emissions,"October 20, 2009 It "Google plants solar trees,"December 13,2006 In "New Jersey Guard heats up with Army Corps solar power projects,"March 24, 2009 lv "Fresno State, Chevron Energy Solutions complete solar parking project largest at U.S.university,"November 8,2007 lw "Ohio's largest solar array,"April 13, 2006 lx "Wal-Mart to Open First High Efficiency Store: Supercenter Expected to Use 20 Percent Less Energy,"January 18, 2007 GHG Folder "Not too late to save the polar bear,"Center for Biological Diversity Report Arctic Sea Ice Data • "The California Environmental Quality Act: On the Front Lines of California's Fight Against Global Warming,"Center for Biological Diversity Report • Draft County of San Diego Guidelines on Climate Change • "Our Changing Climate: Assessing the Risks to California" • The Copenhagen Diagnosis • Executive Order 5-3-05 • AB 32 "Local Government's Role in Responding to Climate Change in California" • IPCC Working Group I IPCC Working Group 2 IPCC Working Group 3 • National snow and ice data • "Arctic sea ice decline: Faster than forcast" • "Working 9 to 5 on Climate Change: An Office Guide" • Various reporting protocols Water Supply and Quality 2a East Water Valley District Projects 2b "State Working on Perchlorate Limit,"August 29, 2007 2c Upper Santa Ana Valley Groundwater Basin, Bunker Hill Subbasin Bulletin Cumulative Impacts 3a Barstow Distribution Center EIR, "Utility/Service Systems" 3b "Tesco to open 4 Fresh&Easy markets in Inland area" 3c Federal Register, High-Speed Train Project 24-Hour Operations 5a Save Our Community v. City of Rosemead, Los Angeles Superior Court,2005 Veq W el!alap pepnpw swn�ea�Alpnoeg�,y g (D 2 �.`i. W v' C7 � Q F Q D W r� J Q h J 1/� V ` y V U L l-� W N U Q o CJ <� ¢ YwU J¢- Z z Sg0 W � 1 LLo Ir m¢ l J a � O • � O ti z 3 C CO rm O : a �w 0IL9 am •_ 2 �~W^ O _ =wUn Le�p J dd 1 Um cA Z: 4 Rv O SD • a< ¢ ` s C-3 ¢�, m Uz am GJ z Lu W ¢ W i- FOO fA m" r: L, c,,, iy;:e: UL Di aw; D te; ;k 11 03 Keceia t n;: 30127! Mhr SI','a..,r -Q r raa5 ember j07; z O lTY A TY - 66 M IFB. K - 666 16x.' airs: re: 1!041 s .V Q 'irE: i ::.�• CD LO 'J 6 Lc) d M z z z � U Q f° U r a z Q c U C E CITY OF SAN BERNARDINO CASHIERINU z' e * CUSTOMER RECEIPT ++ . a Oper: CSERM Type: OC Drawer: o Date: 1!05!10 03 Receipt no: 301211 8 Description Quantitx Amount v w SF MISC SHORT FORM 1.00 $165.00 v CITY ATTY - 750566 J Tender detail E CM CHECK - M 55666 $16x.00 o o Total tendered $165.00 I— Total payment. $1ox.00 2 v c W a) i E Trans date: 1/04/10 Time: 15:35:52 r W v Q + THANK YOU FOR YOUR P'AYMENI o = c "TRUSTED, QUALITY SERVICE SINCE 1905' O Z a U v E z W w N r z U) LL J Lu m W U D H u pp Es . V Il OFFICE OF THE CITY CLERK RACHEL G.CLARK-CITY CLERK 300 North"D"Street•San Bernardino•CA 92418-0001 909.384.5002•Fax: 909.384.5158 www.sbcity.org San Bernar wo s,. January 5, 2010 Citizens for Responsible Equitable Environmental Development (CREED) c/o Mr. Cory J. Briggs Briggs Law Corporation 99 E. "C" Street, Suite 111 Upland, CA 91786 Dear Mr. Briggs: At the meeting of the Mayor and Common Council held on January 4, 2010, the following action was taken relative to Appeal No. 09-03 - an appeal of the Planning Commission's approval of Conditional Use Permit No. 07-15, a request to expand an existing 129,794 square foot retail commercial building by 41,644 square feet to a total of 171,438 square feet on approximately 15.13 acres located on the north side of Highland Avenue at the intersection with Boulder Avenue, at 4210 E. Highland Avenue in the CG-1, Commercial General, land use district: That the matter be continued to the Council/Commission meeting of January 19, 2010, at 4:30 p.m. If we can be of further assistance, please do not hesitate to contact the City Clerk's office. Sincerely, Rachel G. Clark q 1 City Clerk / % / RGC:IIs pc: Development Services Wal-Mart Real Estate Business Trust, c/o Jennifer Guenther, Gresham Savage Nolan & Tilden, PC, 550 E. Hospitality Lane, Suite 300, San Bernardino, CA 92408-4205 CITY OF SAN BERNARDINo ADOPTED SHARED VALVES: Integrity•Accountability•Respect for Human Dignity•Honesty RECEIVED-CITY CtE 2010 JAN -4 PM 3: 12 Dear City Officials: Please approve the plans to upgrade the Wal-Mart store on Highland Ave. I want to save money and so do my friends and neighbors. Thank you! l�`uze/6�en0edt-e(< Ente►ed Into Rec. at MCCICIC Mig;=° by. Age!M- CN No. s CjeN DC$ecietary City of San Bemardho 141,o -91f ym/t0 �/5 '2110110 RLCHVED-CITY 2010 JAN -4 PM 3: 12 Dear Councilmembers, Please Vote YES for the improved Wal-Mart on Highland! We need more places like this to do all of our shopping at once. Thank you, 92Yv� RECEIVED—,, ! CL 2010JAN -4 Fil3: 12 Dear Mayor and Council - With high gas prices today, having a Wal-Mart with groceries in San Bernardino will help my family save money. Please vote for upgrading the Highland Ave. store. Sincerely. L/o (� � SC', H-CEIVED-U T'! GLL; 2010 JAN -4 PM 3: 12 Mayor and City Council — We've been waiting a long time for a Wal-Mart with groceries, and I'm glad that it is finally coming to you for a vote. I hope you approve the project. Our city needs the tax revenue, and our residents need more shopping choices and low prices. Sincerely, It£CEIVE6-CIT'! C 2010 JAN -4 PM 3: 12 Mayor and City Council - A Wal Mart with groceries will mean better shopping opportunities in San Bernardino, which will create more sales tax revenue for the city to spend on police and other public services. And our residents will have a great store that will let us save money. So an upgraded and improved store looks like a win-win for everyone. I hope you vote in favor of it. Sincerely, r1///1l� i .cJe,7 �� . RECEIVED-CITY 2010 JAN -4 PM 3= 12 Dear Mayor and City Council: Wal-Mart sells everything I need at great prices, and I want to be able to buy my food there in one stop. Please vote for the improvements planned for the Highland Ave. Wal-Mart. Thank you, rtLCEIVED-CITY CL? 1010 JAN -4 PM 3: 12 Dear City Council, We need a Wal-Mart with groceries in San Bernardino. It makes sense to shop in one store whenever I can. I hope you approve the plans to upgrade the Highland Ave. store. Sincerely, REODVE�-Ci?Y CIE!', 2010 JAN -4 PM 3: 12 Mayor and City Council I hope you would approve the plans for the Wal-Mart store on Highland. I don't have the time or money to drive all over town to buy groceries and other goods. And I think that the City of San Bernardino should get the benefit of the sales tax revenue from these stores, and not other cities. D4)& Z� ttLMVED-Ci;Y 2010 JAN -4 PM 3: 12 Dear City Officials: Please approve the plans to upgrade the Wal-Mart store on Highland Ave. I want to save money and so do my friends and neighbors. Thank you! MSc; /\/ S ,e,rat.: ey =143 s ," set4r, C A9 g240 _`EIVED-CITY CLE;, 2010 JAN -4 PM 3= ! 2 Mayor and City Council — We've been waiting a long time for a Wal-Mart with groceries, and I'm glad that it is finally coming to you for a vote. I hope you approve the project. Our city needs the tax revenue, and our residents need more shopping choices and low prices. Sincerely, ECEIVED-CITY iLE;;^ 2010 JAN -4 PM 3: 12 Dear City Council, I want to buy everything I need in one place. We need a Wal-Mart that sells food. Please vote yes for the Highland Avenue Wal-Mart upgrades! Sincerely, 9a boy RECEIVED-CITY C'U' X010 JAN -4 PM 3: 12 Dear City, Gas is too expensive to drive all around town and shop! Adding groceries to our San Bernardino store would be great for our community. Please vote yes. Thank you. ��r� a d "o, �a�fosJ City of San Bernardino: I live in San Bernardino and would like to see improvements made to the store on East Highland Ave. Adding groceries and upgrading the store will provide residents with a greatly improved shopping experience! Please approve the plans for Wal-Mart. Sincerely, Fri N o ^d L Ci 2 G m 0 -v c> wte r.. _ rn N h I'NLUEV`LD--CIT( CLLa., 310 JAN -4 PM 3: 12 Dear City, Please vote for the Wal-Mart on East Highland. A Wal-Mart store with groceries will help us save money on things that our families need every day. Thank you. 4724 ,010 JAN -4 PM 3: 12 Dear City Officials: Please approve the plans to upgrade the Wal-Mart store on Highland Ave. I want to save money and so do my friends and neighbors. Thank you! � o% ce �s C (C)V/0 1 (� i0 � � � q �5 �ti=cEly€o-cr�r Dear Councilmembers, Please Vote YES for the improved Wal-Mart on Highland! We need more places like this to do all of our shopping at once. Thank you, stn L140roo0in6,C RIE0EIVED-CI?'! CLE!;I ?310 JAN -4 PM 3: 12 Mayor and City Council I hope you would approve the plans for the Wal-Mart store on Highland. I don't have the time or money to drive all over town to buy groceries and other goods. And I think that the City of San Bernardino should get the benefit of the sales tax revenue from these stores, and not other cities. Nib-�IR . u�1��S4N TIC N � s+ SAN 'g�2 �,AI�DI'NO CU �12UU5 ECFIVED-CIT'( C� ,:N '010 JAN -4 PM 3: 13 Dear City of San Bernardino — It's time the people of San Bernardino get the same benefits as other cities in our area. I want a Wal-Mart store where I can buy groceries and everything else I need —and I want to save money! Thank you. 0 - A(AlIr— ]��/,)-//q/67 RECEIVED-CITY CLLi.r 7.310 JAN -4 PM 3: 13 Dear City, Gas is too expensive to drive all around town and shop! Adding groceries to our San Bernardino store would be great for our community. Please vote yes. Thank you. r 1 Il Z 25H" s � S� RECEIVED-CITY C = 2910 !AN -4 PM 3: 13 Mayor and City Council - A Wal Mart with groceries will mean better shopping opportunities in San Bernardino, which will create more sales tax revenue for the city to spend on police and other public services. And our residents will have a great store that will let us save money. So an upgraded and improved store looks like a win-win for everyone. I hope you vote in favor of it. Sinc f 323 ��5 ifte" RECEIVED-CITY CLEI;, 2010 JAN -4 PM 3: 13 Dear City, Please vote for the Wal-Mart on East Highland. A Wal-Mart store with groceries will help us save money on things that our families need every day. Thank you. kQ'C_� F to OQ, U4 ACS tUEIVED_NTY LEr;' 2010 JAN -4 PM 3: 13 Mayor and City Council — We've been waiting a long time for a Wal-Mart with groceries, and I'm glad that it is finally coming to you for a vote. I hope you approve the project. Our city needs the tax revenue, and our residents need more shopping choices and low prices. Sincerely, S9,r `&AWE , 16 RECEIVED-CiT7 CLE -,r MIG JAN -4 PM 3: 13 Dear City of San Bernardino — It's time the people of San Bernardino get the same benefits as other cities in our area. I want a Wal-Mart store where I can buy groceries and everything else I need— and I want to save money! Thank you. T s �1.�CEIVED -CITY I 2010 JAN -4 PM 3: 13 Mayor and Council— I would be able to buy just about everything I need at a Wal-Mart with groceries. Please approve the plans to upgrade the store on Highland Ave. to add groceries. r n - -_,JFa , cA 92`roS 2010 JAN -4 PM 3: 13 Dear City Council - It' s time that San Bernardino had a Wal-Mart with groceries because other cities in our area are getting them, but I can' t afford to drive that far and shop. Please vote for Wal-Mart . Very truly yours, 9z yip ECEWEDCiTY C! 2010 JAM -4 PM 3: 13 Dear City Council, We need a Wal-Mart with groceries in San Bernardino. It makes sense to shop in one store whenever I can. I hope you approve the plans to upgrade the Highland Ave. store. Sincerely, RECEIVED-CITY CLErt' 2010 JAN -4 PM 113 Dear Mayor and City Council: Wal-Mart sells everything I need at great prices, and I want to be able to buy my food there in one stop. Please vote for the improvements planned for the Highland Ave. Wal-Mart. Thank you, v6v�6 ��� { 1 City of San Bernardino: { I live in San Bernardino and would like to see improvements made to the store on East Highland Ave. Adding groceries and upgrading the store will provide residents with a greatly improved shopping experience! Please approve the plans for Wal-Mart. Sincerely, ek i i o s o rn ! L M m Z G � m F � I C'> W n F_ _ r_n W _ III OFFICE OF THE CITY CLERK RAcnEL G.CLARK-CrrY CLERK 300 North"D"Street•San Bernardino•CA 92418-0001 909.384.5002•Fax: 909.384.5158 www.sbeity.org San Bernar ono su May 4, 2010 Citizens for Responsible Equitable Environmental Development (CREED) c/o Mr. Cory J. Briggs Briggs Law Corporation 99 E. "C" Street, Suite 111 Upland, CA 91786 Dear Mr. Briggs: At the meeting of the Mayor and Common Council held on March 15, 2010, the following action was taken relative to Appeal No. 09-03 - an appeal of the Planning Commission's approval of Conditional Use Permit No. 07-15, a request to expand an existing 129,794 square foot retail commercial building by 41,644 square feet to a total of 171,438 square feet on approximately 15.13 acres located on the north side of Highland Avenue at the intersection with Boulder Avenue, at 4210 E. Highland Avenue in the CG-1, Commercial General, land use district: That the matter be continued to the Council/Commission meeting of June 7, 2010, at 4:30 p.m. If we can be of further assistance, please do not hesitate to contact the City Clerk's office. Sincerely, Rachel G. Clark, CMC City Clerk RGC:Ils pc: Development Services Wal-Mart Real Estate Business Trust, c/o Jennifer Guenther, Gresham Savage Nolan & Tilden, PC, 550 E. Hospitality Lane, Suite 300, San Bernardino, CA 92408-4205 CITY OF SAN BERNARDINO ADOPTED SHARED VALUES: Integrity•Accountability•Respect for Human Dignity•Honesty OFFICE OF THE CITY CLERK RACHEL G.CLARx-Crrr CLERK 300 North"D"Street•San Bernardino•CA 92418-0001 909384.5002•Fax: 909.384.5158 www.sbcity.org RBerinrar Pin March 17, 2010 Citizens for Responsible Equitable Environmental Development (CREED) c/o Mr. Cory J. Briggs Briggs Law Corporation 99 E. "C" Street, Suite 111 Upland, CA 91786 Dear Mr. Briggs: At the meeting of the Mayor and Common Council held on March 15, 2010, the following action was taken relative to Appeal No. 09-03 - an appeal of the Planning Commission's approval of Conditional Use Permit No. 07-15, a request to expand an existing 129,794 square foot retail commercial building by 41,644 square feet to a total of 171,438 square feet on approximately 15.13 acres located on the north side of Highland Avenue at the intersection with Boulder Avenue, at 4210 E. Highland Avenue in the CG-1, Commercial General, land use district: That the matter be continued to the Council/Commission meeting of May 3, 2010, at 4:30 p.m. If we can be of further assistance, please do not hesitate to contact the City Clerk's office. Sincerely, �k ;�). cc,�_ Rachel G. Clark, CMC City Clerk RGC:IIs pc: Development Services Wal-Mart Real Estate Business Trust, c/o Jennifer Guenther, Gresham Savage Nolan & Tilden, PC, 550 E. Hospitality Lane, Suite 300, San Bernardino, CA 92408-4205 CITY OF SAN BERNARDINO ADOPTED SHARED VALUES: Integrity•Accountability•Respect for Human Dignity•Honesty OFFICE OF THE CITY CLERK RActiEL G.CLARK-CrrY CLERK 300 North"D"Street•San Bernardino•CA 92418-0001 909.384.5002•Fax:909.384.5158 www.sbcity.org PSanilerNP1110 March 2, 2010 Citizens for Responsible Equitable Environmental Development (CREED) c/o Mr. Cory J. Briggs Briggs Law Corporation 99 E. "C" Street, Suite 111 Upland, CA 91786 Dear Mr. Briggs: At the meeting of the Mayor and Common Council held on March 1, 2010, the following action was taken relative to Appeal No. 09-03 - an appeal of the Planning Commission's approval of Conditional Use Permit No. 07-15, a request to expand an existing 129,794 square foot retail commercial building by 41,644 square feet to a total of 171,438 square feet on approximately 15.13 acres located on the north side of Highland Avenue at the intersection with Boulder Avenue, at 4210 E. Highland Avenue in the CG-1, Commercial General, land use district: That the matter be continued to the Council/Commission meeting of March 15, 2010, at 4:30 p.m. If we can be of further assistance, please do not hesitate to contact the City Clerk's office. Sincerely, �w e lea b. l e eve-iCr n Rachel G. Clark, CMC #7 City Clerk 3 / 0 RGC:IIs pc: Development Services Wal-Mart Real Estate Business Trust, c/o Jennifer Guenther, Gresham Savage Nolan & Tilden, PC, 550 E. Hospitality Lane, Suite 300, San Bernardino, CA 92408-4205 CITY OF SAN BERNARDINO ADOPTED SHARED VALUES: Integrity•Accountability•Respect for Human Dignity•Honesty OFFICE OF THE CITY CLERK RAcDEL G.CLARK-CrrY CLERK i 300 North"D"Street•San Bernardino•CA 92418-0001 909.384.5002•Fax: 909.384.5158 www.sbcity.org Son Berner ino February 18, 2010 Citizens for Responsible Equitable Environmental Development (CREED) �� c/o Mr. Cory J. Briggs Briggs Law Corporation 99 E. "C" Street, Suite 111 Upland, CA 91786 Dear Mr. Briggs: At the meeting of the Mayor and Common Council held on February /4,2010, the following action was taken relative to Appeal No. 09-03 - an appeal of the Planning Commission's approval of Conditional Use Permit No. 07-15, a request to expand an existing 129,794 square foot retail commercial building by 41,644 square feet to a total of 171,438 square feet on approximately 15.13 acres located on the north side of Highland Avenue at the intersection with Boulder Avenue, at 4210 E. Highland Avenue in the CG-1, Commercial General, land use district: That the matter be continued to the Council/Commission meeting of March 1, 2010, at 4:30 p.m. If we can be of further assistance, please do not hesitate to contact the City Clerk's office. Sincerely, a.t� Rachel G. Clark, CMC City Clerk RGC:lls pc: Development Services Wal-Mart Real Estate Business Trust, c/o Jennifer Guenther, Gresham Savage Nolan & Tilden, PC, 550 E. Hospitality Lane, Suite 300, San Bernardino, CA 92408-4205 CITY OF SAN BERNARDINO ADOPTED SHARED VALUES:Integrity•Accountability•Respect for Human Dignity•Honesty OFFICE OF THE CITY CLERK RACHEL G.CLARK-CrrY CLERK 300 North"D"Street•San Bernardino•CA 92418-0001 909384.5002•Fax: 909.384.5158 www.sbcity.org RBernar ono SM February 2, 2010 Citizens for Responsible Equitable Environmental Development (CREED) c/o Mr. Cory J. Briggs Briggs Law Corporation 99 E. "C" Street, Suite 111 Upland, CA 91786 Dear Mr. Briggs: At the meeting of the Mayor and Common Council held on February 1, 2010, the following action was taken relative to Appeal No. 09-03 - an appeal of the Planning Commission's approval of Conditional Use Permit No. 07-15, a request to expand an existing 129,794 square foot retail commercial building by 41,644 square feet to a total of 171,438 square feet on approximately 15.13 acres located on the north side of Highland Avenue at the intersection with Boulder Avenue, at 4210 E. Highland Avenue in the CG-1, Commercial General, land use district: That the matter be continued to the Council/Commission meeting of February 16, 2010, at 4:30 p.m. If we can be of further assistance, please do not hesitate to contact the City Clerk's office. Sincerely, Rachel G. Clark, CMC City Clerk RGC:Ils pc: Development Services Wal-Mart Real Estate Business Trust, c/o Jennifer Guenther, Gresham Savage Nolan & Tilden, PC, 550 E. Hospitality Lane, Suite 300, San Bernardino, CA 92408-4205 CrrY OF SAN BERNARDINO ADOPTED SHARED VALUES: Integrity•Accountability•Respect for Human Dignity•Honesty OFFICE OF THE CITY CLERK RAcnEL G.CLARK•Crrr CLmK t 300 North°D"Street•San Bernardino•CA 92418-0001 909.384.5002•Fax: 909.384.5158 • Ci www.sbcity.org San �ernar�ino January 25, 2010 Citizens for Responsible Equitable Environmental Development (CREED) c/o Mr. Cory J. Briggs Briggs Law Corporation 99 E. "C" Street, Suite 111 Upland, CA 91786 Dear Mr. Briggs: At the meeting of the Mayor and Common Council held on January 19, 2010, the following action was taken relative to Appeal No. 09-03 - an appeal of the Planning Commission's approval of Conditional Use Permit No. 07-15, a request to expand an existing 129,794 square foot retail commercial building by 41,644 square feet to a total of 171,438 square feet on approximately 15.13 acres located on the north side of Highland Avenue at the intersection with Boulder Avenue, at 4210 E. Highland Avenue in the CG-1, Commercial General, land use district: That the matter be continued to the Council/Commission meeting of February 1, 2010, at 4:30 p.m. If we can be of further assistance, please do not hesitate to contact the City Clerk's office. Sincerely, i Rachel G. k City Clerk RGC:IIs pc: Development Services Wal-Mart Real Estate Business Trust, c/o Jennifer Guenther, Gresham Savage Nolan & Tilden, PC, 550 E. Hospitality Lane, Suite 300, San Bernardino, CA 924084205 CITY OF SAN BERNARDINO ADOPTED SHARED VALUES: Integrity•Accountability•Respect for Human Dignity•Honesty CITY OF SAN BERNARDINO Developement Services Department Memorandum TO: Mayor and Common Council FROM: Valerie C. Ross,Dire onctor THROUGH: Charles McNeely, City M� SUBJECT: January 19,2010 Council Meeting Agenda Item No. 15 Conditional Use Permit No. 07-15 (Appeal No. 09-03) DATE: January 14, 2010 COPIES: Rachel Clark, City Clerk; James F. Penman, City Attorney Back rg ound: This item, an appeal of the Planning Commission approval of a Conditional Use Permit to expand the existing Walmart store located at 4210 East Highland Avenue, was continued from the January 4,2010 Council meeting agenda. On January 4, Cory J. Briggs submitted a letter to the Council on behalf of the appellant with six pages of comments on the project and a compact disk (CD) containing numerous documents, encompassing over 2,000 pages, cited in his comments. The CD is attached for your review, along with the final Planning Commission Resolution No. 2009-01. A typographical error in the newspaper advertisement giving public notice of the January 4, 2010 appeal hearing necessitates a new hearing notice and precludes a decision on the appeal on January 19. A new hearing notice will be advertised and mailed to schedule the appeal for the next Council meeting on February 1, 2010, when the final staff report and recommendation will be presented. Recommended Motion: That said agenda item be continued to February 1,2010,at 4:30 p.m. Attachments: Planning Commission Resolution No. 2009-01 CD Attachment to the Cory J. Briggs letter dated January 4, 2010 �4�� / / /-1 S- 2d io 1 RESOLUTION NO. 2009-01 2 RESOLUTION OF THE CITY OF SAN BERNARDINO PLAiNNING COMMISSION 3 ADOPTING THE FACTS, FINDINGS AND STATEMENT OF OVERRIDING 4 CONSIDERATIONS, CERTIFYING THE FINAL ENVIRONMENTAL IMPACT REPORT, ADOPTING THE MITIGATION MONITORING AND REPORTING 5 PLAN AND APPROVING CONDITIONAL USE PERMIT NO. 07-15 FOR THE 6 HIGHLAND AVENUE WAL-MART EXPANSION PROJECT. 7 SECTION I. RECITALS 8 (1) WHEREAS, the Planning Commission of the City of San Bernardino 9 ("City") adopted the General Plan for the City by Resolution No. 2005-362 on 10 November 1, 2005; and 11 12 (2) WHEREAS, Michael Brandman Associates, retained by the project 13 applicant and working under the direction of City staff, prepared an Initial Study for the 14 proposed Highland Avenue Wal-Mart Expansion Project("Project"); and 15 (3) WHEREAS, on December 6, 2007, the Environmental Review 16 Committee determined that the Highland Avenue Wal-Mart Expansion Project could 17 have significant effects on the environment, and thus warranted the preparation of an 18 19 Environmental Impact Report pursuant to the California Environmental Quality Act 20 (CEQA); and 21 (4) WHEREAS, the Notice of Preparation of the City to prepare a Draft 22 Environmental Impact Report was made known to the public, responsible agencies and 23 other interested persons for their concerns and comments from December 12, 2007 24 through January It, 2008 as required by CEQA; and 25 (5) WHEREAS, on January 9, 2008 the City Held a public scoping meeting 26 27 to solicit public comments on the preparation of the Draft EIR; and 28 1 1 (6) WHEREAS, a Draft EIR was distributed for a 45-day public review 2 period from March 19, 2009 through May 4, 2009; and 3 (7) WHEREAS, five comment letters were received before the close of the 4 public review period and a written response was provided on October 15, 2009 and the 5 6 specific responses to the written comments are in the Final EIR; and 7 (8) WHEREAS, on November 18, 2009, the Environmental Review 8 Committee determined that the Final EIR adequately addresses all potential impacts of 9 the project and recommended certification of the Final EIR and adoption of the 10 Mitigation Monitoring and Reporting Plan (Section 4 of the Final EIR, also referred to 11 as a Program); and 12 (9) WHEREAS, on November 18, 2009, the Planning Commission of the 13 14 City of San Bernardino held a noticed public hearing on the Highland Avenue Wal-Mart 15 Expansion Project in order to receive public testimony and written and oral comments 16 relating to the Final EIR and proposed conditional use permit in compliance with City 17 requirements; and 18 (10) WHEREAS, the Planning Commission considered the Planning 19 Commission Staff Report on November 18, 2009, which recommends certification of the 20 21 Final EIR for the proposed Highland Avenue Wal-Mart Expansion Project; and 922 (t1) WHEREAS, the Planning Commission conducted a noticed public 23 hearing on November 18, 2009, and frilly reviewed and considered the Draft EIR, Final 24 EIR, the Mitigation Monitoring and Reporting Plan, the Facts, Findings and Statement 25 of Overriding Considerations, and the Planning Commission Staff Report; 26 27 "3 I SECTION II. ENVIRONMENTAL IMPACT REPORT 2 NOW, THEREFORE, BE IT HERBY RESOLVED, FOUND, AND 3 DETERMINED THAT THE PLANNING COMMISSION HEREBY CERTIFIES: 4 A. The facts and information contained in the Recitals section are true and 5 6 correct. The Environmental Impact Report for the Highland Avenue Wal-Mart 7 Expansion Project, including Conditional Use Permit No. 07-15 has been completed in 8 compliance with the California Environmental Quality Act. Attached to this Resolution 9 as Exhibit 1, and incorporated herein by reference, is the Final EIR which consists of the 10 Draft EIR (which includes a list of persons, organizations and public agencies 11 commenting on the Draft EIR), the comments received on the Draft EIR either verbatim 12 13 or in summary, responses to those comments, textual revisions to the Draft EIR, and the 14 Mitigation Monitoring and Reporting Plan. 15 B. The Final EIR was presented to the Planning Commission which has 16 reviewed and considered the information in the Final EIR prior to its certification and 17 prior to approval of Conditional Use Permit No. 07-15. 18 C. The Final EIR has identified all significant environmental effects of the 13 20 Highland Avenue Wal-Mart Expansion Project. 21 D. Although the Final EIR identifies certain significant environmental effects 22 that would result if the Wal-Mart Expansion occurs, all significant effects that can 23 feasibly be avoided or mitigated will be avoided or mitigated by the implementation of 24 the mitigation measures as set forth in the Mitigation Monitoring and Reporting Plan. 25 E. Potential mitigation measures and other project alternatives not 26 incorporated into or adopted as part of the Highland Avenue Wal-Mart Expansion 27 23 3 1 Project, were rejected as infeasible, based on specific economic, social, or other 2 considerations as set forth in the Facts, Findings and Statement of Overriding 3 Considerations, attached to this Resolution as Exhibit 2 and incorporated herein by 4 reference. 5 6 F. The Planning Commission has given great weight to the significant 7 unavoidable adverse environmental impacts. The Planning Commission finds that the 8 significant unavoidable adverse environmental impacts are clearly outweighed by the 9 economic, social, cultural, and other benefits of the Highland Avenue Val-Mart 10 Expansion Project, as set forth in the Facts, Findings and Statement of Overriding 11 Considerations. 12 13 G. The findings contained in the Facts, Findings and Statement of Overriding 14 Considerations with respect to the significant impacts identified in the Final EIR are true 15 and correct, and are based upon substantial evidence in the record, including documents 16 comprising the Final EIR. 17 H. The Final Environmental Impact Report, Mitigation Monitoring and 18 Reporting Plan, and the Facts, Findings and Statement of Overriding Considerations 19 reflect the independent review, analysis and judgment of the Planning Commission of the 20 21 City of San Bernardino. 22 SECTION III. CERTIFICATION OF THE ENVIRONMENTAL IMPACT REPORT 23 NOW, THEREFORE BE IT RESOLVED, FOUND AND DETERMINED by the 24 Planning Commission of the City of San Bernardino that the Final Environmental 25 Impact Report (SCH #2007121072) is hereby certified, the Facts, Findings and 26 27 23 4 1 Statement of Overriding Considerations are hereby adopted, and the Mitigation 2 Monitoring and Reporting Plan is hereby adopted. 3 4 SECTION IV. CONDITIONAL USE PERMIT 5 NOW, THEREFORE BE IT RESOLVED that the Planning Commission hereby 6 approves Conditional Use Permit No. 07-15 based upon the Findings of Fact contained in 7 8 the Planning Commission Staff Report dated October 28, 2009, attached to this 9 Resolution as Exhibit 3 and incorporated herein by reference, and subject to the 10 Conditions of Approval and Standard Requirements (Attachments C and D to the 11 Planning Commission Staff Report dated October 28, 2009). 12 SECTION V. NOTICE OF DETERMINATION 13 In accordance with the provisions of this Resolution, the Planning Division is 14 15 hereby directed to file a Notice of Determination with the County of San Bernardino 16 Clerk of the Board of Supervisors certifying the City's compliance with the California 17 Environmental Quality Act in preparing and adopting the Final Environmental Impact 13 Report, the Facts, Findings and Statement of Overriding Considerations, and the 19 Mitigation Monitoring and Reporting Plan. A copy of the Notice of Determination will be 20 forwarded to the State Clearinghouse. 21 22 23 24 25 26 27 23 5 RESOLUTION OF THE CITY OF SAN BERNARDINO PLANNING COMMISSION ADOPTING THE FACTS, FINDINGS AND STATEMENT OF OVERRIDING CONSIDERATIONS, CERTIFYING THE FINAL ENVIRONMENTAL I,MPACT REPORT, ADOPTING THE MITIGATION MONITORING AND REPORTING PLAN AND APPROVING CONDITIONAL USE PERMIT NO. 07-15 FOR THE HIGHLAND AVENUE R'AL-MART EXPANSION PROJECT. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Planning Commission of the City of San Bernardino at a regular meeting thereof, held on the I e day of November , 2009, by the following vote to wit: Members: Ayes Nays Abstain Absent COUTE X DURR x EBLE X HEASLEY X LONGVILLE MULVIHILL x MUNOZ x RAWLS x SAUERBRUN X Planning Co ission Secretary The foregoing resolution is hereby approved as of the day of 2009. planning Commission C airman Approved as to form:J' By: Henry Empeno Jr. Senior Deputy City Attorney 6 Entered Into Rec. at MCC/CDC Mtg: 317, by. Agenda It No: May42010 City Clerk/C C Secretary City of San Bernardino Honorable Mayor Morris and Members of the City Council City or San.Bepiardino 300 North "D" Street San Bernardino,CA 92418, Re: Withdrawal of Appeal 1 Walmart Highland Avenue Expansion Dear Honorable Mayor Morris and Members of the City Council: I represent Citizens for Responsible Equitable Environmental Development("CREED"),the party which has appealed the Planning Commission's November 18, 2009, approval(the "Appeal")of the proposed Walmart Highland Avenue expansion(the"Project")and filed a lawsuit related to that appeal. By a separatejoint letter from CREED and Wal-Mart Stores, Inc. ("Walmart")which was also delivered to you today,CREED and Walmart reported that they have settled that lawsuit(the"Settlement")brought by CREED against the City. The Settlement has been reached as a result of ongoing discussions between the parties. The specific terms and conditions of the Settlement represent a mutually beneficial compromise in which no money is changing hands. Each party will bear its own attorneys fees. As a result of the Settlement,CREED is pleased to withdraw the Appeal and agrees that the decision of the Planning Commission is final. CREED also wishes to express its gratitude to Walmart for its commitment to reduce the Project's generation of greenhouse gases and conserve water. With these commitments from Walmart, CREED can now express to you its support for the Project. We appreciate the efforts of the City and Walmart to make this an environmentally friendly project. Sincereell�y, ` . Al? ' Cory J. Briggs Counsel for Citizens for Responsible Equitable Environmental Development 804523.E/60998.05002 Highland Exp 5/10/2010 Sf��lo May;6�010 Honorable Mayor Morris and Members of the City Council City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Re: Negotiated Resolution of Citizens for Responsible Equitable Environmental Development v. City of San Bernardino, et at (San Bernardino Superior Court, Case No. CIVDS 918169) Dear Honorable Mayor Morris and City Council Members: Petitioner in the above-captioned case, Citizens for Responsible Equitable Environmental Development(CREED), has, by separate agreement("Agreement"), agreed to dismiss its Petition for Writ of Mandate filed to challenge, among other things,the validity of the City's requirement for payment of a fee as a condition to appealing to the City Council the Planning Commission's approval of the Walmart Expansion project("Project")located at 4210 East Highland Avenue. This agreement has been reached as a result of ongoing discussions between the parties. The specific terms and conditions of the settlement represent a mutually beneficial compromise in which no money is changing hands. Each party will bear its own attorneys fees. The parties have agreed to keep the Agreement itself confidential. However, we are pleased to disclose publicly the major substantive terms of the resolution. CREED and Wal-Mart Stores, Inc. (Walmart) recognize the importance of reducing greenhouse gas emissions and minimizing water usage. Walmart is proud of its ongoing efforts to reduce the carbon emissions associated with its operations and to reduce the consumption of water for Project landscaping. To further this shared objective, CREED has dismissed its lawsuit and Walmart has agreed to incorporate energy efficiency measures at the Project site and to take various additional sustainability measures to address greenhouse gas emissions. These measures include: • Install mechanical, electrical, and plumbing systems that will exceed Title 24 standards; • Employ secondary loop, CO2/Glycol refrigeration system. • Install LED lighting in refrigerated cases with doors and jewelry cases; and • Incorporate a comprehensive recycling program, including programs to donate, reduce, reuse, recycle, and properly divert materials such as fixtures, cardboard and plastic bales, apparel, and organics. • Maintain the existing Solar Energy Facility with a minimum 250 kilowatt generation after expansion of the Walmart Highland Avenue store. 904523.8/80998.05002 Highland Exp 5/10/2010 G>I-7/J)p In addition, CREED has agreed not to object to or disrupt the opening of the expansion of the Walmart Highland Avenue store. On behalf of all the parties, we are pleased to inform the City of this Agreement and the resolution of the litigation,which we all agree are in the best interests of the City, its residents, and the environment. Sincerely, t SIGNATURE ON,= PAGE v 1 Cory J. Briggs Name Counsel for CITIZENS FOR RESPONSIBLE Title EQUITABLE ENVIRONMENTAL WAL-MART STORES,INC. DEVELOPMENT SIGNATURE CN NENr PAGE Tim Paone Theodora Oringher Miller& Richman PC Counsel for WAL-MART STORES, INC. 904523.eW"10SOM HighLvrd Exp 5/10/2010 In addition, CREED has agreed not to object to or disrupt the opening of the expansion of the Walmart Highland Avenue store. On behalf of all the parties, we are pleased to inform the City of this Agreement and the resolution of the litigation, which we all agree are in the best interests of the City, its residents, and the environment. Sincerely, Cory J. Briggs eamelchn Cla rkt- Counsel for CITIZENS FOR RESPONSIBLE Title �i cz Phe-jade 'of RkaJ fyiw+,e- EQUITABLE ENVIRONMENTAL WAL-MART STORES, INC. DEVELOPMENT Tim Paone Theodora Oringher Miller&Richman PC Counsel for WAL-MART STORES, INC. 804523.8/8099805002 Highland Exp 5/10/2010 i CIV-110 ATTORNEY OR PARTY IMTHOUT ATTORNEY(Name,SnIIe 9arnam6W..am edaresa): ' BRIGGS LAW CORPORATION[file: 1366.44] FOR COURT USE ONLY Cory I. Briggs(State Bar no. 176284) 99 East"C"Street,Suite 111 Upland,CA 91786 TELEPHONE No: 909-949-7115 FAX N0.(Op6onsn 909-949-7121 tl C EMAIL ADDRESS(Opth nag ` E: F i D ATTORNEY FOR(Name):Citizens for Responsible Equitable Eri Dev't SUPERIOR COUNTY OF SAN BERNA EERNAROINO SUPERIOR COURT OF CALIFORNIA,COUNTY OF San Bernardino SAN SERNARDW CIVIL DIVISION STREET ADDRESS: 303 West Third Street MAY 2 6 2010 MAILING ADDRESS: .Same ,N G Q' J CITY ANDZIP CODE. San Bernardino, CA 92415 BRANCH NAME:Central District BY t r�(1� � �O[ � PLAINTIFF/PETITIONER:Citizens for Responsible Equitable Envtl. Dev't ii DUTY DEFENDANT/RESPONDENT:laity of San Bemardlno et al. REQUEST FOR DISMISSAL CASE NUMBER: Q Personal Injury,Property Damage, or Wrongful Death CTVDS918169 0 Motor Vehicle = Other Family Law = Eminent Domain Other(specify): Admin. Mandate (Code of Civ. Prod. § 1094.5) -A conformed copy will not be returned by the clerk unless a method of return Is provided with the document.- 1. TO THE CLERK: Please dismiss this action as follows: a.(1) F_V] With prejudice (2) 0 Without prejudice b.(1) Complaint (2) Petition (3)0 Cross-complaint filed by(name): on (date): (4) Cross-complaint filed by(name): on (date): (5)Q Entire action of atl parties and all causes of action (6) Other(specify):' 2. (Complete in all cases except family law cases.) Court fees and costs were waived for a party in this case. (This information may be obtained from the clerk. If this box is checked, the declaration on the back of this form must be completed) M1 Date: May 26, 2010 (/ , /luYlt^ll Cory J: Briggs. . . . . . . . . . . . . 1 V'1 1 (TYPE OR PRINT NAME OF O ATTORNEY O PARTY WITHOUT ATTORNEY) (SIGNATURE) 'If dismissal requested Is of specified parties only of specified causes of action Attorney or party without attorney for: only,or of specified b sComdelnts only w state and identIfy the parties. V Defendant/Respondent ndent causes of action,or crossownp alnm to be dismissed � Plaintiff/Petitioner p0 0 Cross-complainant 3. TO THE CLERK: Consent to the above dismissal is hereby given." Date: ' (TYPE OR PR)NT NAME OF =ATTORNEY O PARTY WITHOUT ATTORNEY) (SIGNATURE) --it a =ss+nmplaint—or Response (Family Lew) seeking affirmative Attorney or party without attorney for: relief—is on file,the attorney for cress-complainant(respondent)must Plaintiff/Petitioner Defendant/Respondent sign this consent If required by Code of ONO Procedure section 581(p or p). Cross-Complainant (To be mpleted by clerk) 4. ] Dismissal entered as requested on(date): MAY 2 6 2010 5 Q Dismissal entered on(date): as to only(name): 6. D'smissal not entered as requested for the following reasons (specify): 7, a. Attorney or party without attorney notified on (date): MAY 2 6 2010 b. Attorney or party without attorney not notified. Filing party failed to provide Q a copy to be conformed 0 means to return conformed copy Date: MAY 2 6 2010 Clerk,by Paula Rogers Deputy Pagr 1 or a Farm Adopted for Mandatory Use Cade of Civil Promdure,5 581 et seq.: Jurndaladfor Mandatmw REQUEST FOR DISMISSAL Gov.Cme.g eeca](c);Cal.Russ of Co, naa].1390 of www.cou unlo.w.toy CIV-110 JR.Y,July 1,20M Amenran LegslNet Inc. www.FOnnsWbdMw.mm CIV-110 PLAINTIFF/PETITIONER: Citizens for Responsible Equitable Envtl. Dev't CASE NUMBER: DEFENDANT/RESPONDENT:City of Sari Bernardino et al. CI 'DS918169 Declaration Concerning Waived Court Fees The court has a statutory lien for waived fees and costs on any recovery of$10,000 or more in value by settlement,compromise,arbitration award,mediation settlement, or other recovery.The courrs lien must be paid before-the court will dismiss the case. 1. The court waived fees and costs in this action for(name): 2. The person in item 1 (check one): a. is not recovering anything of value by this action. b. Q is recovering less than$10,000 in value by this action. c. Q is recovering$10,000 or more in value by this action. (If item 2c is checked, item 3 must be completed.) 3.= All court fees and costs that were waived in this action have been paid to the court(check one): =Yes = No I declare under penalty of perjury under the laws of the State of California that the information above is true and correct Date: (TYPE OR PRINT NAME OF=ATTORNEY PARTY MAKING DECLARATION) (SIGNATURE) av-rro JR...Hwy 1.2DNI REQUEST FOR DISMISSAL P.°e3a12 I PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF SAN BERNARDINO 3 I am employed in the County of San Bernardino, State of California. I am over the age of 18 years and not a party to the within action; my business address is: 550 East Hospitality Lane, 4 Suite 300, San Bernardino, CA 92408-4205. On May 27, 2010, I served copies of the within documents described as REQUEST FOR DISMISSAL on the interested parties in this action in 5 a sealed envelope addressed as follows: 6 SEE ATTACHED SERVICE LIST 7 FX BY MAIL - I am "readily familiar" with the firm's practice of collecting and processing correspondence for mailing. Under that practice, it would be deposited with the United 8 States Postal Service on the same day in the ordinary course of business, with postage thereon fully prepaid at San Bernardino, California. I am aware that on motion of the 9 party served, service is presumed invalid if postal cancellation date or postage meter date 10 is more than one day after date of deposit for mailing in affidavit. ❑ BY PERSONAL SERVICE - I caused such envelope to be delivered by hand to the 11 offices of the addressee pursuant to C.C.P. § 1011. 12 ❑ BY EXPRESS MAIL/OVERNIGHT DELIVERY - I caused such envelope to be delivered by hand to the office of the addressee via overnight delivery pursuant to 13 C.C.P. § 1013(c), with delivery fees fully prepaid or provided for. 14 BY FACSIMILE - I caused such document to be delivered to the office of the addressee via facsimile machine pursuant to C.C.P. § 1013(e). Said document was transmitted to 15 the facsimile number of the office of the addressee from the office of Gresham Savage Nolan & Tilden, in San Bernardino, California, on the date set forth above. The facsimile 16 machine I used complied with California Rules of Court, Rule 2003(3) and no error was reported by the machine. Pursuant to California Rules of Court, Rule 2009(i), I caused 17 the machine to print a record of the transmittal, a copy of which is attached to this declaration. 18 FEDERAL - I am employed in the office of a member of the bar of this court at whose 19 direction the service was made. 20 I declare under penalty of perjury under the laws of the State of California that the 21 foregoing is true and correct. Executed on May 27, 2010, at San Bernardino, California. 22 �\ / 24 Vanessa Wilcox 25 26 27 28 GRESHAM SAVAGE - 1 NOEAN&TR,UEN, FROF6.ALCORP ATON PROOF OF SERVICE SM University Ave.,Sm.250 R—.W,CA 9 2 5 111-3335 WB91S=B..Mi.CA-508977.: (951) 0.3171 1 SERVICE LIST 2 3 ATTORNEYS PARTIES 4 5 Cory J. Briggs Petitioner, BRIGGS LAW CORPORATION CITIZENS FOR RESPONSIBLE 6 99 East"C" Street, Suite 111 EQUITABLE ENVIRONMENTAL Upland, CA 91786 DEVELOPMENT 7 Tel. No.: (909) 949-7115 Fax No.: (909) 949-7121 8 9 Henry Empeno, Jr., City Attorney Respondent, 10 City of San Bernardino CITY OF SAN BERNARDINO 300 North "D" Street 11 San Bernardino, CA 92418-0001 Tel. No.: (909) 384-5355 12 Fax No.: (909)384-5238 13 14 Tim Paone Real Party In Interest, THEODORA ORINGHER ET AL. WAL-MART STORES, INC. 15 535 Anton Blvd., 9`h Floor Costa Mesa, CA 92626-7109 16 Tel. No.: (714) 549-6200 Fax No.: (714) 549-6201 17 18 19 20 21 22 23 24 25 26 27 28 GRESHAM SAVAGE - 2 NOLAN&TILDEN, °"` ONALCORP RAT'°" PROOF OF SERVICE 3M Ulivemity A-'5r S6 Riverside,CA W501-3335 W894-S.0..Ni.–CA-508937.1 (951)60 'M