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Home My WebLink About2015-115 1 RESOLUTION NO. 2015-115 2 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DENYING APPEAL NO. 15-02 AND UPHOLDING THE PLANNING 4 COMMISSION DECISION DENYING APPEAL NO. 15-01; THEREBY AFFIRMING THE COMMUNITY DEVELOPMENT DIRECTOR'S APPROVAL OF MINOR 5 MODIFICATIONS TO TENTATIVE TRACT MAP NO. 15731 AND THE NORTH PLAN (HIGHLAND HILLS PROJECT) GENERALLY LOCATED EAST OF 6 FREEWAY 330 AND NORTH OF HIGHLAND AVENUE 7 8 WHEREAS, on December 20, 1982 the Mayor and Common Council ("MCC") approved the Highland Hills Specific Plan 82-1 ("HHSP 82-1") and certified the Environmental 9 Impact Report; 10 WHEREAS, on July 1, 1985 the MCC amended HHSP 82-1 to allow construction of 11 low and moderate income housing units within the HHSP; 12 WHEREAS, on January 14, 1988 the Highland Hills Homeowners filed suit against the City seeking to stop the low and moderate income, multi-family housing project; 13 14 WHEREAS, on July 3, 1989 a settlement was reached allowing for construction of up to 1,730 dwelling units and a Championship "Links" Golf Range; 15 WHEREAS, on February 5, 1993 the First Addendum to the 1989 Settlement 16 Agreement was executed. Among other things, the First Addendum reduced the multi-family dwellings from 1,200 to 566 units; 17 18 WHEREAS, on March 26, 2001 a Second Addendum to the 1989 Settlement Agreement was executed. Among other things, the Second Addendum was intended "to once 19 and for all clarify the terms and provisions of those previous agreements and documents..."; 20 WHEREAS, on April 17, 2001 the San Bernardino Planning Commission approved Tentative Tract Map No. 15731, which allows for the development of 1,516 dwelling units 21 including a commercial pad and golf course; 22 WHEREAS, on July 28, 2014 a request for Minor Modifications pursuant Section 1.4 23 of the Second Addendum to the 1989 Settlement Agreement was filed by Hogan Edgcomb Consulting representing the current property owner, First American Title Insurance Company; 24 WHEREAS, on December 30, 2014 the Community Development Director approved 25 Minor Modifications to Tentative Tract Map No. 15731 and the North Plan for the Highland 26 Hills Project through an Operating Memorandum; 27 28 1 I WHEREAS, on January 8, 2015 an appeal (Appeal No. 15-01) was filed by Cory Briggs on behalf of James Nunn and the Highland Hills Homeowners Association challenging 2 the Community Development Director's approval of the Minor Modifications; 3 WHEREAS, on February 18, 2015 the Planning Commission conducted a public 4 hearing on Appeal No. 15-01 and upheld the approval of the Minor Modifications to the Highland Hills Project approved by the Community Development Director; 5 WHEREAS, on March 3, 2015 an appeal (Appeal No. 15-02) was filed by Cory Briggs 6 challenging the Planning Commission decision upholding the Community Development 7 Director approval of the Minor Modifications; 8 WHEREAS, on March 19, 2015 Cory Briggs alleged Brown Act violations due to the posted agenda being removed and therefore not available for 72 hours in advance of the 9 February 18, 2015 meeting; 10 WHEREAS, on April 15, 2015 the Planning Commission voted to reconsider all items 11 heard at the February 18, 2015 meeting including Appeal No. 15-01 for the Highland Hills Proj ect; 12 WHEREAS, on April 15, 2015 the Planning Commission conducted a de novo public 13 hearing on Appeal No. 15-01 and upheld the Minor Modifications to the Highland Hills Project 14 approved by the Community Development Director on December 30, 2014; 15 WHEREAS, on April 28, 2015 an appeal (Appeal No. 15-02) was filed by Cory Briggs challenging the April 15, 2015 Planning Commission decision upholding the Community 16 Development Director's approval of the Minor Modifications; and, 17 WHEREAS, a notice of the June 1, 2015 public hearing before the Mayor and 18 Common Council regarding Appeal No. 15-02 was published in The Sun newspaper on May 15, 2015 and, was mailed to property owners within a 500 foot radius of the project site in 19 accordance with Development Code Chapter 19.52. 20 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON 21 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 22 23 SECTION 1. The Mayor and Common Council find that the above-stated Recitals are true and hereby adopt and incorporate them herein. 24 SECTION 2. Findings of Fact. 25 26 1. The Minor Modifications are permitted under Section 1.4 of the Second Addendum to the 1989 Settlement Agreement. Section 1.4 contains specific criteria in determining if 27 the request is a "Minor Modification." The criteria are as follows "(a) fewer residential 28 2 1 units, (b) less gross leasable commercial space, (c ) changes in improvement locations which are equal to or less intrusive than the location of improvements under the North 2 Plan (d) enhancement of architectural, landscape and hardscape improvements, (e) more 3 efficient mitigation measures/conditions of approval resulting from advancement in scientific knowledge, know how or improved technology, or (f) other modifications 4 which the Director determines are similar to the foregoing, or any combination of the same." 5 2. The Minor Modifications approved by the Community Development Director permit a 6 project that is less intense from the standpoint of CEQA. The number of dwelling units 7 is reduced from 1,516 to 695 a 54% reduction. The commercial acreage has been completely eliminated. The amount of grading has been reduced from approximately 8 10,000,000 cubic yards to 3,500,000 cubic yards a 65% reduction. The amount of disturbed area has been reduced from 345 acres to 193 acres a 44% reduction. The total 9 traffic has been reduced from 12,212 average daily trips to 5,760 average daily trips a 53%reduction. 10 11 3. Elimination of the golf course is an intensification of one component of the project, however, when all components of the project are considered, the modified project is 12 significantly less intense than the original project. 13 4. The Highland Hills project is vested under the Second Addendum and may be 14 developed without any further discretionary actions. Approval of Minor Modifications is prescribed by Section 1.4 of the Second Addendum and is therefore non- 15 discretionary. The Minor Modifications are exempt from review under the California Environmental Quality Act (CEQA) as a Ministerial action pursuant to Public 16 Resources Code Section 21080(b)(1) and CEQA Guidelines Section 15268. 17 5. There is no basis for the appeal filed by James Nunn and the Highland Hills 18 Homeowners. The five points contained in the appeal: a) the Planning Commission prejudicially abused its discretion under the California Environmental Quality Act; b) 19 the Planning Commission abused its discretion under Municipal Code Section 19.66.150; c) the Planning Commission abused its discretion under the Subdivision 20 Map Act; d) assuming the approval is a minor amendment to a tract map, the Planning Commission abused its discretion because there is a lack of evidence; and e) appellant is 21 entitled to appeal to the City Council pursuant to Public Resources Code Section 21151 22 without having to pay an unreasonable appeal fee, are without merit. 23 6. There are no occurrences of substantial changes with respect to the circumstances under which the project is being undertaken which would require major revisions in the 24 previously approved environmental impact report due to the involvement of new significant environmental effects or a substantial increase in the severity of previously 25 identified significant effects. 26 7. There is no new information of substantial importance, which was not known and could 27 not have been known at the time the previously approved environmental impact report 28 3 1 was certified as complete, which has become available. 2 8. There is no new information that the project will have significant effects previously 3 examined which will be substantially more severe than shown in the previously approved environmental impact report. 4 9. There is no new information that mitigation measures or alternatives previously found 5 not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project and the project proponents declined to adopt the 6 mitigation measure or alternative. 7 10. There is no new information that mitigation measures or alternatives which are 8 considerably different from those analyzed in the previously approved environmental impact report would substantially reduce one or more significant effects on the 9 environment and the project proponents declined to adopt the mitigation measure or alternative. 10 11 11. The site is physically suitable for this type of development, and design of the proposed subdivision is consistent with the 2005 San Bernardino General Plan and the Highland 12 Hills Specific Plan. 13 12. The design of the subdivision and the proposed improvements are not likely to cause 14 substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. 15 13. The design of the subdivision or type of improvements is not likely to cause serious 16 public health problems. 17 14. The changes contained within the Modified TTM and the North Plan are consistent with 18 the intent of the original tentative tract map approval. 19 15. The appeal fee in the amount of $1,801.32 is a reasonable appeal fee that offsets the costs of processing the appeal. 20 21 SECTION 3. Compliance with the California Environmental Quality 22 Approval of the Minor Modification is exempt from review under the California 23 Environmental Quality Act. Pursuant to Public Resources Code Section 21080 (b)(1) and CEQA 24 Guidelines Section 15268, CEQA only applies to discretionary projects. The Second Addendum at Section R "Intent of Second Addendum," states that the property may be developed "without any 25 further discretionary approvals." Furthermore, if the conditions described in Section 1.4 exist, approval of the Minor Modifications is prescribed by the Director,which means that modifications 26 are also ministerial actions. 27 28 4 1 The appellants contend that "the Project as proposed will have environmental impacts and require mitigation that was not analyzed in any environmental document." However, as 2 indicated, CEQA mandates that the opposite conclusion be reached. 3 "[A]n agency is required to prepare a subsequent or supplemental EIR only where the 4 agency grants a `discretionary' approval" (San Diego Navy Broadway Complex Coalition v. City of San Diego (2010) 185 Cal.App.4th 924, 935-36) [Emphasis added] and only if certain 5 findings are made by the agency not present here. (Pub. Res. Code § 21166 and CEQA 6 Guidelines § 15162). 7 In the absence of the authority for such discretion, the agency has no jurisdiction to prepare a subsequent or supplemental EIR. (Cucamongans United for Reasonable Expansion 8 v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479, see also CEQA Guidelines § 15162(c) stating, "[o]nce a project has been approved, the lead agency's role in project 9 approval is completed, unless further discretionary approval on that project is required" and 10 [I]nformation appearing after an approval does not require reopening of that approval.") 11 Given that CEQA only applies to discretionary actions (Pub. Res. Code § 21080(b)(1) and CEQA Guidelines § 15268), there is no mechanism to permit supplemental or subsequent 12 environmental review. Notably, a thorough environmental review of the Minor Modifications was prepared by Tom Dodson & Associates, which contained an analysis of the environmental 13 issues related to Modified TTM 15731 and the Modified North Plan and determined that the 14 Modified project has a significantly reduced impact on the environment as compared to the original project. 15 The record before the City demonstrates the following: 16 a) There are no substantial changes proposed by the project which would require 17 major revisions of the previously approved environmental impact report due to 18 the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. 19 b) There are no occurrences of substantial changes with respect to the 20 circumstances under which the project is being undertaken which would require major revisions in the previously approved environmental impact report due to 21 the involvement of new significant environmental effects or a substantial 22 increase in the severity of previously identified significant effects. 23 c) There is no new information of substantial importance, which was not known and could not have been known at the time the previously approved 24 environmental impact report was certified as complete, which has become available. 25 26 d) There is no new information that the project will have one or more significant effects not discussed in the previously approved environmental impact report 27 28 5 1 e) There is no new information that the project will have significant effects previously examined which will be substantially more severe than shown in the 2 previously approved environmental impact report. 3 f) There is no new information that mitigation measures or alternatives previously 4 found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project and the project proponents declined 5 to adopt the mitigation measure or alternative. 6 g) There is no new information that mitigation measures or alternatives which are 7 considerably different from those analyzed in the previously approved environmental impact report would substantially reduce one or more significant 8 effects on the environment and the project proponents declined to adopt the mitigation measure or alternative. 9 h) The Minor Modifications to the project will result in a project that is less intense 10 from the standpoint of CEQA. 11 i) The Minor Modifications to the project do not cause any new significant 12 environmental effect. 13 j) The Minor Modifications to the project result in either the deletion of or a 14 substantial decrease in the severity of environmental impacts. 15 SECTION 4. The Mayor and Common Council hereby deny Appeal No. 15-02 and uphold the April 15, 2015 decision of the Planning Commission; thereby affirming the decision 16 of the Community Development Director approving Minor Modifications to Tentative Tract Map 15731 and the North Plan for the Highland Hills project, based upon the Findings of Fact 17 stated in this Resolution. 18 SECTION 5. Notice of Exemption The Community Development Department is 19 hereby directed to file a Notice of Exemption with the County Clerk of the County of San Bernardino certifying the City's compliance with California Environmental Quality Act. 20 SECTION 6. Severability: If any section, subsection, subdivision, sentence, or clause 21 or phrase in this Resolution or any part thereof is for any reason held to be unconstitutional, 22 invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Resolution or any part thereof. The 23 Mayor and Common Council hereby declares that it would have adopted each section irrespective of the fact that any one or more subsections, subdivisions, sentences, clauses, or 24 phrases be declared unconstitutional, invalid, or ineffective. 25 26 27 28 6 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DENYING APPEAL NO. 15-02 AND UPHOLDING THE PLANNING 2 COMMISSION DECISION DENYING APPEAL NO. 15-01; THEREBY AFFIRMING 3 THE COMMUNITY DEVELOPMENT DIRECTOR'S APPROVAL OF MINOR MODIFICATIONS TO TENTATIVE TRACT MAP NO. 15731 AND THE NORTH 4 PLAN (HIGHLAND HILLS PROJECT) GENERALLY LOCATED EAST OF FREEWAY 330 AND NORTH OF HIGHLAND AVENUE 5 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 7 and Common Council of the City of San Bernardino at a joint regular meeting thereof, held on 8 the 1St day of June, 2015, by the following vote to wit: AYES NAYS ABSTAIN ABSENT 9 Council Members: 10 X 11 MARQUEZ 12 BARRIOS x X 13 VALDIVIA 14 SHORETT X 15 NICKEL x 16 JOHNSON x 17 18 MULV IHILL x 19 Georg 4n Hanna, &ity Clerk 20 21 The foregoing Resolution is hereby approved this ...3 day of June, 2 r 22 23 R. CAREY DAV , Mayor 24 Approved as to form: City of San Bernardino Gary D. Saenz, 25 City Attorney 26 By 27 czi 28 7