Loading...
HomeMy WebLinkAboutS1 Development ServicesCITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Michael E. Hays Subject: County of San Bernardino - General Plan Amendment for Spheres of Dept: Development Services Influence Date: July 27, 1999 ORIG"INAL MCC Date: August 2, 1999 Synopsis of Previous Council Action: 3/17/99 Council directed staff to prepare a letter for the Mayor's signature to the County outlining the City's concerns with the proposed action. Recommended Motion: That the Mayor and Common Council ratify the Mayor's directive to the City Attorney to prepare and send a letter to the County Board of Supervisors. f� ..a Michael E ays Contact person: Valerie r Koss Phone: 184 5057 Supporting data attached: Staff Report Ward: Citywide FUNDING REQUIREMENTS: Amount: N/A Council Notes: Source: (Acct. No.) (Acct_ nPscrintinnl Finance: Agenda Item No. CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION STAFF REPORT Subject: Ratification of the Mayor's directive to the City Attorney to prepare and send a letter to the County Board of Supervisors. Mayor and Common Council Meeting of August 2, 1999 BACKGROUND Earlier this year, the County of San Bernardino initiated a General Plan Amendment to revise goals, objectives, and policies related to development within spheres of influence. The concerns with the policy changes were discussed by the Mayor and Common Council, and at the March 17, 1999 Council meeting, staff was directed to prepare a letter for the Mayor's signature to be submitted to the County Planning Commission. At its meeting of March 18, 1999, the County Planning Commission continued the item to enable County planning staff to meet with planning representatives of the affected cities. The cities reached a general consensus, and submitted an alternative recommendation to the County. The County Planning Commission recommended denial of the County's proposed amendment, but the Board of Supervisors approved it at its meeting of June 15, 1999. The cities later became aware that this action was approval in concept, and the General Plan Amendment was scheduled for formal adoption at the Board meeting of July 27, 1999. On July 27, 1999, the Mayor asked the City Attorney to prepare letter outlining the City's concerns with the Initial Study and proposed Negative Declaration. A copy of that letter is attached. Notwithstanding the City's letter, and similar letters from the other affected jurisdictions, the Board adopted the General Plan Amendment at its July 27, 1999 meeting. FINANCIAL IMPACT There are no direct costs associated with this action. RECOMMENDATION Staff recommends that the Council ratify the Mayor's directive to the City Attorney to prepare and send a letter to the County Board of Supervisors outlining the City's concerns with the Initial Study and Proposed Negative Declaration. Attachment 1 Letter from City Attorney's Office to County Board of Supervisors - *- ATTACHMENT 1 C I T Y O F 5an Bernardino O F F I C E O F T H E C I T Y A T T O R N E Y J A M E S F. P E N M A N C I T Y A T T O R N E Y July 27, 1999 John D. Goss Interim Director Land Use Services Department/Planning Division County of San Bernardino 385 North Arrowhead Avenue, Third Floor San Bernardino, California 92415 Re: County Board of Supervisors Meeting on July 27, 1999 Agenda Item No. 69(c) Intent to Adopt a Negative Declaration for the General Plan Text Amendment to Revise Countywide Goals and Policies Related to Annexation and Land Use Planning in City Sphere of Influence Area (GPA/CW1 -849N) Dear Mr. Goss: We are writing this letter on behalf of the City of San Bernardino ( "City ") regarding the above - referenced matter. After reviewing the negative declaration prepared for the proposed General Plan Text Amendment GPA/CW 1 -849n ( "GPA "), we have significant concerns that the negative declaration and supporting documents fail to comply with the California Environmental Quality Act ( "CEQA "). Given the potential environmental impacts this project will have, we strongly recommend that prior to approving the GPA the County of San Bernardino ( "County ") withdraw the negative declaration, restudy the project's environmental impacts, and prepare an environmental impact report to ensure compliance with state law. As you are aware, the essence of a negative declaration is contained in the initial study. The initial study provides the factual and legal basis for the lead agency's determination that a project will result in no significant environmental impacts and a negative declaration can be approved. Specifically, the initial study serves three purposes for a negative declaration: JFP/1-IE:ea(Goss.Ltr] - - 3 0 0 N O R T H D S T R E E T S A" B E R N A R D I N O C A L I F O R N I A 9 2 4 1 8 - 0 0 0 1 ( 9 0 9) 3 8 4- 5 3 5 5 John D. Goss July 27, 1999 Page 2 To provide the lead agency with information to use as the basis for deciding whether to prepare an environmental impact report ( "EIR ") or a negative declaration (14 CCR § 15063(b)(1)); 2. To identify potentially significant effects that can be eliminated or reduced to insignificance by modifying the project or implementing mitigation measures (Pub. Res. Code § 21064.5; 14 CCR § 15063(c)(2); and 3. To provide support for the lead agency's decision to adopt a negative declaration (14 CCR § 15063(c)(5)). A materially deficient initial study cannot support a negative declaration. (Christward Ministry v. Superior Court (1986) 184 Cal.App.3d 180, 197.) Legally defensible negative declarations must provide some explanation of their environmental conclusions and cannot be supported by bare -bones environmental checklists. (Sundstrom v. County of Mendicino (1988) 202 Cal.App.3d 296.) The lead agency has a duty to investigate all potential environmental impacts and cannot adopt a negative declaration simply by producing a record devoid of evidence on environmental impacts. (Id..) The following are the specific concerns we have identified in the County's initial study and negative declaration for the proposed GPA; A. Project Description and Environmental Setting. Under Title 14, Section 15063(d), of the California Code of Regulations ( "State CEQA Guidelines "), an initial study must include both a description of the project, including its location, and identification of the environmental setting. The project description and environmental setting are fundamental tools for identifying and evaluating potential project impacts. Without an adequate description of the project and environmental setting, decision - makers and the public are unable to obtain an accurate view of the project, understand its potential ramifications, and properly analyze any mitigation that may be required. (County of Into v. City of Los Angeles (1977) 71 Cal.App.3d 185, 192 -193.) The County's initial study for the GPA fails to adequately describe the project and its setting. As the initial study indicates, the purpose of the GPA is to revise the goals, policies, and action statements for coordinating land use and development within the city sphere of influence areas. The project description, however, fails to adequately identify the specific location of the city sphere of influence areas and the environmental settings therein as required under Section 15063(c) of the State CEQA Guidelines. Instead, the initial study merely provides a general statement that JEP /HE:ea(Goss.Ltr] _ _ John D. Goss July 27, 1999 Page 3 the GPA will affect all unincorporated areas within the designated spheres of influence for the 24 cities in San Bernardino County. Because of the inadequate location description for the project, the environmental setting description is also insufficient. Instead of describing the pertinent environmental setting for each sphere of influence area that will be impacted by the GPA, the initial study provides a general geographic and topographic description of the more than 20,000 square miles in San Bernardino County. This explanation of the environmental setting is unhelpful and irrelevant for assessing the environmental impacts of the GPA. The information provided in the environmental setting such as temperature ranges, average rainfalls, and generalized topographic descriptions is simply inadequate for understanding how alterations to the County's land use and development policies will impact the environment. Without a more specific environmental description of the unincorporated areas within each city's sphere of influence, including essential information such as the existing built environment or potential for development of the areas, neither the County nor the public is capable of understanding the scope of the project or properly analyzing its environmental impacts. While the specificity of the project description and environmental setting may seem demanding, such detail is necessitated by the sweeping changes in the County's land use policies proposed by the GPA. B. Findings of No Significant Impacts and Supporting Evidence. As you know, there is a strong presumption in the law requiring the preparation of an environmental impact report ( "EIR "). CEQA allows a negative declaration only if there is "substantial evidence" in the administrative record that no "fair argument" exists that the project may have a potentially significant environmental impact. (14 CCR § 15063(b).) Under Section 21080(e) and 21082.2(c) of the Public Resources Code, and the regulations thereto, "substantial evidence" requires the administrative record to contain facts, reasonable assumptions predicated on facts, and expert opinion; not unsubstantiated opinion, speculation, or narrative. Moreover, a "fair argument" exists if there is competing evidence that must be reviewed to determine whether there is substantial evidence of a potentially significant environmental impact. (Friends of "B" St. v. City of Hayward (1980) 106 Ca1.App.3d 988). As set forth below, the initial study for the GPA does not contain substantial evidence to support the County's findings that the GPA will have "no impact" or a "less than significant impact" on the physical environment. Instead, a fair argument exists that the proposed changes in the County's land use goals, policies, and action statements will have a potentially significant environmental impact. As a result, the County must withdraw its negative declaration for the GPA and prepare an EIR which properly considers all the evidence and mitigation of the potential environmental impacts, and allows the public the opportunity to understand and comment on the project. JFP /HE:ea[Goss.Ltr1 John D. Goss July 27, 1999 Page 4 Land Use Planning; Population and Housing. The express purpose of the GPA is to eliminate the existing requirements of the County to coordinate land uses and development with the cities in their sphere of influence areas, and instead make such coordination strictly permissive. It is baffling how the County can conclude that such a major change in land use policy will have no significant impact, especially in regards to applicable land use planning policies, and regulations. The shift from reliance on city land use plans to reliance on county plans in determining development in sphere of influence areas changes the basic presumption that urbanization will occur within existing cities. The GPA reverses several decades of basic land use planning in the sphere of influence areas. The cursory analysis provided in the initial study incorrectly limits its focus to the impacts on the County's own land use planning process. Ignored are the glaring potential physical impacts created by conflicts between the County and city land use plans, policies, and regulations. As you are aware, cities often pre -zone many areas within their sphere of influence, especially properties adjacent to the city boundaries. Such areas are also often included or discussed in the city's general plan. The purpose of pre- zoning, as expressed in state law, is to provide for the orderly and coordinated development in county -city boundary areas. Appropriately, the County's current general plan substantially defers to the city land use plans and regulations in these areas to ensure proper coordination. The GPA, however, would allow the County to ignore city efforts to plan for the orderly development of areas adjacent to city boundaries and create potentially disastrous conflicts in land use plans, policies, and regulations. Under the GPA, adjacent properties can be developed with incompatible uses. Moreover, because of the numerous current differences between the development regulations of the County and cities, the potential current conflicts between street standards, utility locations, building design standards, and landscape requirements will be extensive. Especially damaging is the GPA proposal to eliminate the policy that a conditional use permit is required for all non - single family residences in sphere of influence areas. This dramatic land use policy change will render the County unable to appropriately condition the development of permitted uses in sphere of influence areas to ensure compatibility with city land use plans, policies, and standards. Because the County does not have any discretionary site plan or design review process, under the GPA, a permitted use in a sphere of influence area will have the right to develop in accordance with existing County standards without the imposition of conditions. The potentially significant land use conflicts and resulting environmental impacts are not speculative, but instead are cognizable and must be mitigated before the GPA is approved. Both the County's and the cities' current land use plans, policies, and regulations for each sphere of influence areas are known. With the proper description and analysis, the potentially significant land use conflicts can be identified and the environmental impacts mitigated through the CEQA process. JEP /HE:ea[Goss.Ltr1 John D. Goss July 27, 1999 Page 5 In order to comply with the requirements of CEQA, the County must withdraw its negative declaration and postpone approving the GPA until the land use conflicts and environmental impacts are properly analyzed and mitigated. 2. Transportation/Traffic. In its discussion of transportation and traffic impacts, the County again fails to analyze the potentially significant environmental impacts of the GPA. The initial study is devoid of any discussion of the multitude of potential transportation and traffic conflicts that will be created in county-city border areas. Similar to land use plans, the County and cities have different traffic and circulation plans, policies, and standards which must be integrated at the county -city border areas. By eliminating the requirements that the County ensure that integration occurs, the GPA creates potentially significant traffic impacts that must be mitigated. Again, these potentially significant environmental impacts are not speculative and can be assessed by examining the County's and cities' current transportation/circulation plan and standards for each sphere of influence area. Any potentially significant impacts must be mitigated by creating traffic planning procedures that ensure integration between conflicting traffic and circulation plans, policies, and standards. 3. Utility and Service Systems; Public Services. The County's conclusion that the GPA will not result in any significant environmental impacts related to utility and public services is also perplexing for many of the reasons previously discussed. By removing mandatory language from Policy LU -9(f) in the general plan that requires infrastructure coordination, the County creates the potential for conflicting utility and public service plans and standards. The initial study, however, fails to assess the environmental impacts of these potential impacts and instead simply states that "future decisions about utilities and service systems may be affected, but potential differences in planning and service jurisdiction would have no significant adverse environmental effects." Without analyzing and explaining how the County and city utility and service systems can be integrated in the border areas without creating any significant impacts, the County's statement is conclusory, unsupported and legally insufficient. 4. Other Unmitigated Impacts. Without being repetitive, for the many reasons previously discussed, the initial study inadequately analyzes the potential significant environmental impacts of the GPA as to aesthetics, agricultural resources, air quality, biological resources, hydrology, noise, and water quality. In all of these areas. there is insufficient evidence to support a negative declaration and overwhelming evidence supporting a fair argument that the GPA will cause significant environmental impacts. JFP /HE:ea[Goss.Ltr] John D. Goss July 27, 1999 Page 6 C. Project Splitting. The Negative Declaration also fails to consider the "whole of the action" and the County is impermissibly splitting two projects which appear intimately related. It is our understanding the County is currently considering additional amendments to the general plan to facilitate water and sewer service to sphere of influence areas within the East Valley Corridor Specific Plan. For these general plan amendments, we understand the County is preparing an EIR. As noted above, a potentially significant environmental impact created by the GPA is the integration of utility and service systems in the sphere of influence areas. In piecemealing the full project by separately analyzing and considering the provision of water and sewer services by the County in sphere of influence areas, the County has minimized the GPA's potential impacts and denied the public the opportunity to consider and understand the full ramifications of the GPA. D. Other Issues. We also feel it is important to make the County aware that the California Courts have considered a case very similar to the County's proposed action and held that the lead agency had to prepare an EIR. In City of Livermore v. Local Agency Formation Comm (1986) 184 Cal.App.3d 531, the city sued LAFCO for its adoption of a negative declaration for proposed revisions to the sphere of influence guidelines. The revisions deleted the statement "existing and future urban development areas belong in cities," and added language that development in sphere of influence areas would be based on county plans rather than city plans. In rejecting LAFCO's negative declaration and requiring an EIR for the project, the court found the evidence supporting the argument that the project may have a significant environmental impact was formidable. In particular, the court cited evidence that LAFCO's proposed changes altered the basic land use planning presumptions, directed growth away from cities, deteriorated existing cities, caused a loss of open space, and increased net travel in the region. We strongly recommend the County review the City of Livermore case before approving a negative declaration for the GPA. Finally, although unrelated to the proposed negative declaration, we want to make the County aware of our concern that the GPA will create horizontal inconsistencies within the County's general plan. Government Code section 65300.5 requires that a general plan must form an integrated and internally consistent and compatible statement of policies. Currently, the general plan contains internally consistent policies which help ensure that development in the sphere of influence areas is consistent with the plans, policies, and standards of the adjacent city and that urbanization occurs within city boundaries. The GPA, however, will eliminate some of the policies essential to consistent and coordinated development resulting in a general plan full of qualified and inconsistent statements regarding how development should proceed in the sphere of influence areas. 1FP /HE:ea[Goss.Ltr] John D. Goss July 27, 1999 Page 7 This letter is submitted in addition to the written comments previously submitted by the City of San Bernardino. The City expressly reaffirms in those written comments and the CEQA deficiencies expressed therein. For purposes of efficiency, the comments will not be repeated but are hereby incorporated into this letter by reference. Without addressing the deficiencies identified above, it is our opinion that the negative declaration for the GPA violates CEQA because it fails to adequately analyze and mitigate the project's potential significant environmental impacts. After properly studying the whole of the proposed GPA, the County will certainly find an environmental impact report is necessary to address all of the potential significant environmental impacts. Thank you for the opportunity to comment on this negative declaration. We would appreciate being advised of all public meetings or hearings concerning this issue, and sent copies of all relevant documents prior to such meetings. If you have any questions, or would like to discuss our concerns in more detail, please feel free to call. Sincerely, JAMES F. PENMAN City Attorney /;�� By: HENRY E. EMPENO, JR. Deputy City Attorney cc: Clerk of the Board of Supervisors Honorable Kathy A. Davis, First District Honorable Jon D. Mikels, Second District Honorable Dennis Hansberger, Third District Honorable Fred Aguiar, Fourth District Honorable Jerry Eaves, Fifth District Mayor Judith Valles James F. Penman, City Attorney Mike Hays, Director, Development Services Valerie Ross, Principal Planner 1FP /HE.ea[Goss.Ltr]