HomeMy WebLinkAbout20201006 LTR TO SAN BERNARDINO CITY COUNCIL RE APPEAL Final
SLOVAK BARON EMPEY MURPHY & PINKNEY LLP
Palm Springs, CA
T (760) 322-2275
Indian Wells, CA
T (760) 322- 9240
Costa Mesa, CA
T (714) 435-9592
San Diego, CA
T (619) 501-4540
Princeton, NJ
T (609) 955-3393
New York, NY
T (212) 829-4399
www.sbemp.com
BRUCE T. BAUER, ESQ.
Of Counsel
ADMITTED IN CA
REPLY TO:
1800 E. Tahquitz Canyon Way
Palm Springs, California 92262
T (760) 322-2275 • F (760) 322-2107
bauer@sbemp.com
October 6, 2020
Via Email
Mayor and Members of the City Council
City of San Bernardino
201 N. "E" Street, Bldg. A
San Bernardino, CA 92401
Re: Appeal 20-01 Conditional Use Permit 20-08 BioLife Plasma
Donation Facility–2065 E. Highland (Ward 7)
Elizabeth Mora-Rodriguez, Associate Planner
Honorable Mayor and Members of the City Council:
Please accept this letter on behalf JCW Development, LLC (sometimes the “Applicant”)
in response to the July 6, 2010, appeal filed by RIVSA SB , LLC (“Appellant”)(Appeal 20-
10) (the “Appeal”) from the Planning Commission’s June 23, 2020 approval of Conditional
Use Permit 20-08 ( “CUP”) for a BioLife Plasma Services (“BioLife”) donation facility
located at 2065 E. Highland, San Bernardino, California. The Appeal is scheduled for
hearing on Wednesday, October 7, 2020, at 7:00 p.m., as Agenda Item No. 9.
For the reasons set forth below, the decision of the Planning Commission on June 23,
2020, was well founded, based on substantial evidence in the record, and in the best
interests of the City of San Bernardino (the “City”) and its efforts to facilitate and enhance
the economic viability of its commercial centers. Based on the information and evidence
presented by the Applicant in connection with the Project before the Planning
Commission, the below information, and the evidence that has been and will be presented
at the City Council’s hearing on October 7, 2020, it is urged that the City Council adopt
the recommendation of City staff and deny the Appeal, thereby upholding the Planning
Commission’s decision on June 23, 2020, approving the CUP.
1. JUNE 23, 2020 PLANNING COMMISSION APPROVAL OF THE PROJECT.
On June 23, 2020, the City’s Planning Commission considered Applicant’s request for
approval of the CUP to allow the tenant improvement of an existing tenant space
containing approximately 11,844 square feet for the establishment and operation of a
Honorable Mayor and Members of the City Council
City of San Bernardino
October 6, 2020
Page 2
plasma donation facility, to be operated by BioLife, located 2065 E. Highland, San
Bernardino, California, within an existing commercial multi-tenant center containing
approximately 106,144 square feet (referred to herein as “BioLife,” the “Facility” an/or the
“Project.”) The Project is located within the Highland Plaza Shopping Center at the
southeast corner of E. Highland Ave. and Sterling Ave. (“Shopping Center”), and the
owner of the Property that underlies the Project is Novalk LLC (“Landlord”).
The Planning Commission approved Applicant’s request and adopted Resolution No.
2020-029 approving the Project and the granted the CUP. See, the City Packet for the
Appeal Hearing (“Staff Packet”), at pp. 598-619. In so approving the Project, the Planning
Commission made some of the following findings:
The Project complied with all of the applicable provisions of the Development Code
including pursuant to Chapter 19.36 and Section 19.06.020 of the City of San
Bernardino Development Code. Finding No. 1.
The Project was consistent with the City’s General Plan, including Land Use Policy
2.1.1, 2.2.2, 4.7 and 5.7.9. Finding No. 2.
The Project was in compliance with the requirements of the California
Environmental Quality (“CEQA”), determined that it was categorically exempt from
CEQA pursuant to §15301 (Existing Facilities), and complied with Section
19.20.030(6) of the City of San Bernardino Development Code. Finding No. 3.
The Project would result in no potentially significant negative impacts upon
environmental quality and natural resources that could not be properly mitigated
and monitored. Finding No. 4.
The location and operating characteristics of the Project were consistent with all
provisions of the City of San Bernardino Development Code, and that a Traffic
Scoping form or the preparation of a Traffic Impact Analysis was not required for
the Project. Finding No. 5.
The subject site for the Project was physically suitable for the type and
density/intensity of use being proposed that parking requirements will be
exceeded, by providing fifty-nine (59) parking spaces instead of the required forty
(40) parking spaces, according to Section 19.24.040 of the City’s Development
Code. Finding No. 6.
There were adequate provisions for public access, water, sanitation, and public
utilities and services to ensure that the proposed use for the Project would not be
detrimental to public health and safety. Finding No. 7. Staff Report, pp. 555-559.
Honorable Mayor and Members of the City Council
City of San Bernardino
October 6, 2020
Page 3
Applicant concurs with all of the findings and conclusions of the Planning Commission in
approving the CUP and the Project and will address the issues of the Appeal that is before
the City Council presently.
2. THE APPEAL.
On July 6, 2010, Appellant filed its Appeal of the CUP. Staff Report, pp. 72-90. The
grounds for the Appeal are as follows:
1. The Project should not be exempt from CEQA pursuant to Section
15301 (Existing Facilities) as it is not compatible with the previously
existing use of a fabric store.
2. The Project will have adverse impact on parking, circulation and traffic
in the existing multi-tenant commercial center.
3. The Project will attract homeless individuals because of the economic
incentive provided to qualified donors in the form of a debit card.
4. The Project will encourage criminal activity through the receiving of the
economic incentive in the form of a debit card.
5. The Project make the Shopping Center dangerous and encourage drug
dealing using the debit cards just like cash at ATM in center
6. City Code 19.02.05 requires a blood bank to be free -standing. This
building is attached on both sides.
7. It will attract homeless which is a constant problem in this center. This
use is not compatible with the family-oriented Cardenas.
8. The payment of $25 per blood donor will encourage drug dealing and
create challenges for SB Police.
9. This use is only 9% of the center and is opposed by the majority of other
tenants in the center.
10. Disposal of needles and medical waste, waiting time outside and inside
of Premises, and COVID 19 social distancing issues have not been
addressed. Staff Report.
The first two issues in the Appeal will be addressed within the scope of the CEQA
discussion below. The remainder of the issues, if not addressed above, will be
discussed below. The Appeal has no merit given a more thorough understanding
Honorable Mayor and Members of the City Council
City of San Bernardino
October 6, 2020
Page 4
of the nature of the Project and the operator of the Project, BioLife , and the
of the Shopping Center.
3. THE PROJECT.
A. BioLife
BioLife operates plasma donation centers throughout the United States. BioLife
(https://www.biolifeplasma.com/us/) is a subsidiary of Takeda Pharmaceuticals an
industry leader in the collection of high-quality plasma. BioLife does not wholesale the
plasma it obtains from donors. Rather, BioLife collects plasma at its local donation centers
and then sends it to its parent company, which processes the plasma into life-saving
therapies. See, the attached informational publication s “BioLife Plasma Services at a
Glance” attached as Exhibit 1; and “Working Together to Save Lives” attached as Exhibit
2. Plasma-based therapies are used to treat a variety of illnesses and maladies, including
hemophilia, immune deficiency, and blood loss due to major surgeries and traumatic
injuries.
BioLife operates over 150 plasma donation centers across the U.S. and Europe, which
are licensed by the Food and Drug Administration (FDA) and the European Medicines
Agency (EMA).To learn more about the products made from the plasma it collects, visit
(www.takeda.com).
At full staff level, there will be an anticipated 50 -80 employees at the BioLife San
Bernardino facility. Approximately half of the employees will be full-time employees,
including operations managers, quality managers, plasma technicians and medical
supervisors. Management and growth opportunities exist for positions within the rapidly
expanding company.
The jobs opportunities in the Project will be quality positions with paid medical benefits,
paid time-off (vacation) and the opportunity for tuition reimbursement for many courses
of study.
In addition to the jobs created, the typical BioLife plasma donation facility pays
approximately $3,000,000.00 per year in donor compensation in the form of debit cards.
Approximately 80% of donor compensation ($2,400,000.00) is spent within the
community. The economic boon of the infusion of these monies into the Shopping
Center and the surrounding communities is manifest. It is anticipated that retailers within
the Shopping Center will experience an uptick in their sales and services resulting not
only from the patrons of the Project but also from the employees of the Project who will
be spending money in local businesses and restaurants. Also, in addition to the above
job creation of the Project itself, the City will be expected to experience additional job
growth resulting from the economic benefit of the Project. A Georgia Life Science
Report concluded for every direct job in the plasma center, an additional 2.2 jobs will be
Honorable Mayor and Members of the City Council
City of San Bernardino
October 6, 2020
Page 5
created locally because of spending related to that job. See,
https://www.terry.uga.edu/media/documents/selig/shaping_infinity_2012.pdf.
B. Other BioLife Projects in Nearby Communities:
BioLife has a strong presence throughout the United States, and only recently has made
a commitment to expand into the State of California and, more particularly, the Inland
Empire. To that end, BioLife has obtained approvals of BioLife Plasma Donation Facilities
in the following nearby communities: Riverside; Rialto; Corona; Moreno Valley; and
Pomona.
Renderings of all five (5) of these approved, attractive and well-designed BioLife Plasma
Donation Facilities are attached collectively hereto as Exhibit 3 and demonstrate that
BioLife will be a partner in the communities where they will be located.
Where other communities may initially have raised concerns about plasma donation
center in their neighborhoods, those concerns have been quickly allayed as they learned
more about BioLife and its centers and operations, and with experience following the
opening of the facilities. See, the enclosed hyperlinked video for such an example, at
https://www.youtube.com/embed/_uw9pHyUlLs.
C. The BioLife Project Land Use Issue
The BioLife Project will be developed in an established commercial development and will
fit in with the surrounding retail buildings, enhancing the appearance and character of the
Shopping Center. The Shopping Center zoning is CG-1 (General Commercial), and the
BioLife use is described in the City’s Development Code as a plasma donation center
defined under “Blood Bank,” allowed in the CG-1 zone with a conditional use permit. The
Shopping Center is also consistent with the City’s General Plan and Land Use Map.
Prior to opening the facility, BioLife will obtain a Laboratory and Biologics License from
the State of California. An FDA Biologics License and a Federal CUA License will also be
obtained to meet all jurisdictional requirements. The proposed BioLife facility is
compatible with surrounding land uses and the development will result in a safe and
attractive property.
D. Issue of Homelessness.
Appellant has raised the issue of homelessness at the Shopping Center and indicated its
concern that the Project will exacerbate that issue. This assertion misunderstands the
nature of the BioLife and its plasma donation center and donor base. As pointed out
above, BioLife is very selective regarding its donors. Donors mirror the demographics of
the surrounding community are screened carefully:
Honorable Mayor and Members of the City Council
City of San Bernardino
October 6, 2020
Page 6
• A majority of BioLife’s donors to a particular shopping center come from
within a 10-mile radius of that shopping center;
• Approximately 86% of BioLife’s donors are employed, students, retired
or homemakers;
• BioLife donors must make appointments for donations; and,
• All of BioLife’s donors must provide proof of residency, identification and
be in good general health, as a condition of donation eligibility. See
Exhibits 1 and 2.
Thus, contrary to the assertions of Appellant that the Project will be attracting the
homeless as donors, BioLife’s donor base is drawn from a broad base that includes the
(1) employed, (2) students, (3) retirees, and/or (4) homemakers. Also, donors must make
appointments before they donate at the BioLife facility, and therefore walk-in and queuing
at the Project is not a concern. Finally, all donors must provide proof of residency, which
inhibits transients’ ability to qualify for a donation.
Also, BioLife, as stated in the Conditions of Approval, will implement several safety and
security measures including regular maintenance of the site to include regular removal of
litter, graffiti, trash, and other debris, and the installation of adequate lighting.
Additionally, BioLife vets all donors in order to comply with rigorous Food and Drug
Administration (FDA) licensing requirements. There is no evidence that the Project would
attract homeless individuals or vagrants to the area or to the Shopping Center. Rather,
with a strong presence in a well-lit and maintained storefront, BioLife will enhance the
physical appearance and deter vagrancy in the Shopping Center.
Additionally, there will be testimony provided at the hearing that the BioLife Project will
help to reduce an existing problem in the Shopping Center. As the Appellant has
indicated, the issue of the homeless is currently one of the biggest issues in the Shopping
Center currently. Rather than exacerbate the issue of the homeless in the Shopping
Center, the Project will help to alleviate it on several fronts; (1) the Project will occupy
space that has long been vacant, and empty storefronts, especially in a sheltered corner,
are known to attract the homeless; (2) there will be activity in the area of the Project,
which will also deter the homeless; and (3) the donor base for the Project does not include
the homeless.
Currently, the space that BioLife seeks to fill is vacant. The Project will be occupying an
existing large “elbow” or corner-space in the Shopping Center that has remained vacant
since Jo-Ann Fabrics left, prior to 2015. This type and configuration of space is difficult
to rent out under normal conditions. This has been exacerbated by a general decline in
retail markets in recent years, and even more difficult now with the COVID19 pandemic.
It is always better to have occupied space in a shopping center because longstanding
vacancies tend to deter new tenants and attract nuisance conditions.
Honorable Mayor and Members of the City Council
City of San Bernardino
October 6, 2020
Page 7
Mr. Cardenas will further testify that the homeless avoid activity and congregate,
wherever possible, near pockets of relative inactivity in a shopping center. The Project
proposes a constant stream of activities from employees and patrons that will have a
deterrent effect on the homeless congregating in the area of the “elbow” of the Shopping
Center.
E. The Unique Characteristics of the Shopping Center.
The Shopping Center for the Project poses special challenges not experienced by centers
held by single ownership. There are at least nine (9) owners of parcels within the
Shopping Center An aerial photo on the San Bernardino County Assessor’s website
indicates this ownership as follows: starting at parcel in the upper right-hand, northeast
corner, going clockwise, is as follows:
• NC Queen Inc.
• Cirit Family Trust 12/19/03)
• Novalk LLC
• RIVSA SB, LLC
• Novogroder/San Bernardino LLC
• Hattar Family Revocable Trust
• Great American Properties LLC
• 2011 East Highland LLC
• Bugaboo Properties LLC
(https://sbcounty.maps.arcgis.com/apps/webappviewer/index.html?id=87e70bb9b69945
59ba7512792588d57a). There are then nine (9) different owners of parcels within the
Shopping Center. As discussed below, as a result of the multiple ownership interests
within the Shopping Center, rules regarding reciprocal parking and easement rights, and
“shared parking” are not always evenly or even cooperatively enforced.
F. Shared Parking Rights in the Shopping Center.
The April 2020 lease agreement between BioLife and its Landlord, Novalk, LLC for the
Property (the “Project Lease”) contains pertinent and important provisions regarding
reciprocal easements and parking for Applicant, at Article 4 (p. 6), which reads as follows:
ARTICLE 4
Common Areas and Facilities
1. Common Areas. All facilities furnished by Landlord at the Shopping
Center and designated for the general use, in common, of occupants of the
Shopping Center, including Tenant, their respective officers, agents,
Honorable Mayor and Members of the City Council
City of San Bernardino
October 6, 2020
Page 8
employees, and customers, including, but not limited to any of the following
which may have been furnished by Landlord such as parking areas,
driveways, entrances and exits thereto, employee parking areas, truck way
or ways, truck courts and service courts, loading docks (other than Tenant's
exclusive use of the loading docks, package pick-up stations, pedestrian
sidewalks and ramps, landscaped areas, exterior stairways, and other
similar facilities shall at all times be subject to the exclusive control,
administration, and management of Landlord; and Landlord shall have the
right, from time to time, to change the area, level, location, amount, and
arrangement of such parking areas and all other facilities referred to above,
to restrict parking by Tenants and their employees to employee parking
areas, and to make all rules and regulations pertaining to and necessary
for, In Landlord's reasonable judgment, the proper operation and
maintenance of the common facilities as described above.
2. Parking. Landlord agrees (i) to maintain a parking ratio at the Shopping
Center of at least Five (5) spaces for every 1,000 square feet of building
area within the Shopping Center, and (ii) not to assign parking spaces to
other Shopping Center tenants in a manner that would materially restrict the
ability of Tenant's employees and customers to park in close proximity to
the Premises.
Excerpted portions of the Project Lease are attached as Exhibit 4.
Thus, according to the Project Lease, BioLife is entitled to parking of five (5) spaces per
1,000 square feet of the lease space. Since the Project contains 11,844 of space, that
equates to 59 parking spaces.
Given the disjointed ownership of the Center, a document addressing the reciprocal
parking rights of tenants in the Shopping Center entitled “Declaration of Restrictions and
Reciprocal Grant of Easements”, recorded on the Shopping Center properties by the San
Bernardino County Recorder’s Office, Document No. 86 -062599 (“Declaration of
Restrictions”) is of particular importance. The Declaration of Restrictions is attached
hereto as Exhibit 5
According to the Declaration of Restrictions, at p. 4, Section 1 (Definitions), “common
area” is defined to include “. . . all areas of the Shopping Center upon which none of the
Buildings (as the term ‘Building’ is defined below) are constructed and which are subject
to nonexclusive use of any single Occupant but which shall in all events include: (1) The
parking lot and individual parking spaces for passenger vehicles (including employee
parking areas); . . . .”
Also, the Declaration of Restrictions provides, at p. 6, Section 2 (Ingress, Egress and
Parking), for free access to the “. . . Common Area portions of the Plaza Property [the
Honorable Mayor and Members of the City Council
City of San Bernardino
October 6, 2020
Page 9
Shopping Center] for pedestrian and vehicular traffic over and through those areas of the
parking lots, roadways, sidewalks and walkways set aside for pedestrian and vehicular
traffic as are from time to time existing on the Plaza Property [the Shopping Center].
Thus, the tenants in the Shopping Center all enjoy reciprocal or shared parking rights to
utilize and share all of the parking in the Shopping Center.
Special note is made here that Declaration of Restrictions (Exhibit “5”), at pp. 7-8, Section
2 (Ingress, Egress and Parking), subsection (b) (Alteration of Parking and Site Plans),
provides that that any modifications or alterations in that portion of the Common Area
cross-hatched on Exhibit "C" (the “Impact Zone”) thereto are not permitted without the
prior written consent of owners of property restricted. Further, under the next section, at
page 8, Section 3 (Parking), the “Plaza shall not construct any building or other
improvement in the Impact Zone which shall unreasonably impact the parking ratio in
such Impact zone.”
G. The Starbuck’s/Wendy’s Project and the 2019 Parking Study.
In January 2019, a parking study was prepared by Kimley-Horn and Associates, Inc. for
the Shopping Center (“2019 Parking Study”). A copy of the 2019 Parking Study is
attached hereto as Exhibit 6.
The 2019 Parking Study was conducted in connection with a proposed development on
land that was owned by RIVSA SB, LLC (the Appellant in the present matter) to be
developed in the Shopping Center. The project at that time was for the demolition of an
existing stand-alone retail building at the front of the site (adjacent to Highland Avenue)
and to construct two new buildings with drive-through restaurants and retail space. That
proposed project reconfigured the site which now consists of 145,127 square feet zoned
as CG-1 (the “Starbuck’s/Wendy’s Project).
In connection with the Starbuck’s/Wendy’s Project, the applicant requested a Minor
Exception for the reduction of thirty-five (35) parking spaces, translating to a 5.7%
reduction of the required parking. The Starbuck’s/Wendy’s Project analyzed in the 2019
Parking Study thus eliminated 78 parking spaces in the Shopping Center, reducing
parking from the 659 existing parking spaces to 581 parking spaces.
The zones affected by Starbuck’s/Wendy’s Project were parking zones C and D. The
2019 Parking Study concluded the site provided sufficient parking supply and the
remaining zones could easily accommodate any additional needs.
The Starbuck’s/Wendy’s Project was approved by the City’s Planning Commission on
February 12, 2019, and the City’s Planning Commission approved CUP No. 18-24 for the
Starbuck’s/Wendy’s Project. In connection with that approval, applicant further obtained
an exemption under the California Environmental Quality Act (“CEQA”), pursuant to
CEQA Guidelines Section 15303 (New Construction or Conversion of Small Structures).
Honorable Mayor and Members of the City Council
City of San Bernardino
October 6, 2020
Page 10
Further, the City determined that, despite the fact that the Starbuck’s/Wendy’s Project
was reducing parking in the Shopping Center from 659 existing parking spaces to 581
parking spaces, there were no “potentially significant negative impacts on environmental
quality or natural resources that could not be properly mitigated and monitored1.”
Thus, while the owner of the land under the Starbuck’s/Wendy’s Project permitted and
acquiesced to a reduction in the amount of parking in the Shopping Center for its project,
that same owner is now asserting that the BioLife Project will have a determinantal impact
on parking. Similarly, while that same owner had obtained a CEQA exemption for an
entirely new development, it is now asserting the applicability of CEQA for Applicant’s
reuse of an existing tenant space.
H. There Is Adequate Parking for the Project as Demonstrated in the Urban
Crossroads Report.
Adequate parking exists for the Project as demonstrated in the attached October 5, 2020,
parking analysis prepared at the request of the Applicant by Urban Crossroads, Inc., one
of California’s leading traffic (including parking and circulation planning) engineering firms
(the “Urban Crossroads Report.”), which represents both public agencies and private
clients. The Report was prepared by Jose Alire, P.E., a Senior Traffic Engineer with
Urban Crossroads. A copy of the Urban Crossroads Report is attached hereto as Exhibit
7.
As indicated in the Urban Crossroad Report, the Shopping Center site currently provides
581 parking spaces which are, as discussed above, designated for shared parking by all
tenants of the Center. As discussed above, on February 12, 2019, the City’s Planning
Commission deemed this shared parking sufficient without any negative impacts to the
Shopping Center. The January 2019 Parking Study demand analysis clearly documented
at that time the Shopping Center had approximately a 50% parking vacancy.
With construction of the Starbuck’s/Wendy’s Project, the parking zones nearest the
Project, Parking Zones I and J did not suffer any loss of parking spaces in 2019 due to
the demolition of an existing building. (See, Exhibit 7, p. 5.) Additionally, the Declaration
of Restrictions provides for the allocation of 59 parking spaces for the BioLife Project,
where only 47 are required per City Code. The reciprocal parking easement with shared
parking throughout the Shopping Center, provides even greater latitude for patrons of all
1 The Appellant included in its appeal package the assertion th at Applicant “. . .
should not be allowed to cannibalize parking now used by existing tenants.” See, Staff
Packet, at p. 633. As pointed out above, the Appellant was the owner of the project in
which parking spaces for the Shopping Center were significantly reduced or cannibalized
in order to make room for that project.
Honorable Mayor and Members of the City Council
City of San Bernardino
October 6, 2020
Page 11
businesses, based on existing parking space availability and convenience. This assume s,
of course, what we all know and have come to rely on – that people who come to a
shopping center frequently visit more than one business while they are there.
In the interim, as the Urban Crossroads Report noted, while Appellant has complained
of recently impacted parking in the Shopping Center, construction of the
Starbuck’s/Wendy’s Project is under way, and temporary construction activity may have
affected parking availability. Furthermore, Appellant is responsible for reducing the
available parking in the center by 78 spaces.
The Urban Crossroads Report concludes as follows regarding the effect the BioLife
Project will have on parking in the Shopping Center:
There is no evidence that would support a conclusion that the Project will
create an unusual parking deficit in the Shopping Center, because the
Center is under-parked and the reciprocal or shared parking agreement
recorded on the property provides for adequate parking with the BioLife
Facility as proposed.
This conclusion is consistent with the findings of the Planning Commission
in support of the CUP 20-08 approval, consistent with the 2019 Parking
Study accepted by the City in connection with its approval of the
Starbuck’s/Wendy’s Project, and consistent with the City’s goa ls of
enhancing the economic viability of the Shopping Center.
There is no evidence that the Project, as proposed, will have a potential
substantial or detrimental impact on parking within the Shopping Center, or
on traffic. There is further no evidence that the Project proposes a use which
will generate parking or traffic that exceeds the reasonable capacity of the
Center, as indicated above.
Additionally, for the reasons outlined in the Urban Crossroads Report,
parking for the BioLife Project does not warrant the preparation of a
comprehensive parking or traffic study.
See, Urban Crossroads Report, Exhibit 7, pp. 7-8.
Thus, Appellant has not satisfied its burden of providing evidence on this critical issue.
As such, then, the Existing Facilities Exemption applies as discussed below.
I. There Is Additional Parking for the Project in the Shopping Center.
Even though Applicant has demonstrated that there will be more than sufficient parking
for the Project in the above identified zones, there is a source of additional parking that is
Honorable Mayor and Members of the City Council
City of San Bernardino
October 6, 2020
Page 12
not being utilized in the Center. Parking Zone A (as shown in Exhibit 7, p. 5) is currently
gated off on both ends and is not striped for parking. This area is depicted in a series of
eight (8) photographs that are attached hereto as Exhibit 8. It appears that at least one
of these gates remain locked which is a health and safety concern. Per the January 2019
Parking Study, this zone can accommodate 77 parking spaces. This area can be used
for employee parking if reconfigured properly and striped. Opening this area up for
parking would be beneficial to the Center and maintain consistency with the January 2019
Parking Study. As pointed out in the Urban Crossroads Study, it has further been
observed that it might be possible at a later date, if additional parking for the Center is
desired, to stripe approximately 20 additional spaces leaving adequate fire and
commercial truck access.
4. LEGAL ARGUMENTS.
A. Standard of Review of this Appeal.
The standard of review on an appeal from the approval of a C.U.P. is de novo. As such,
the appeal hearing shall be considered a new hearing and the review authority may hear
and consider testimony and, documents submitted at and prior to the hearing on appeal.
B. The City Planning Commission Properly Determined that the Project was
Exempt Under CEQA, and that the Application of the Existing Facilities
Exemption is Not Barred by Any Exception or Unusual Circumstance.
The City’s Planning Staff and Commission correctly determined that the Project was
categorically exempt from CEQA review, pursuant to Section 15301 of CEQA Guidelines
(Existing Facilities), and that no environmental impacts are anticipated form the proposed
use of the plasma donation center. (See, Planning Commission Staff Report and
Resolution No. 2020-029, which are incorporated here.) The proposed Project site was
found to be in compliance with the requirements of CEQA and Section 19.20.030(6) of
the City’s Development Code. In making these determinations, the Planning Commission
correctly found that the Existing Facilities Exemption “does not require like for like
substitution. The § 15301 Exemption for Existing Facilities is appropriate for this project
because it proposes a commercial use replacing a prior commercial use. There is no
requirement that the intended use be the same type of use of the prior tenant, a fabric
store.” (Resolution No. 2020-029, Finding of Fact No. 3, pp. 4-5.)
The Project should be deemed exempt from CEQA pursuant to that categorical exemption
and its application is not barred by one of the ex ceptions set forth in CEQA Guidelines
Section 15300.2. In addition, the Project is specifically is consistent with a commercial
use pursuant to Section 19.20.030(6) of the City’s Development Code, and there will be
Honorable Mayor and Members of the City Council
City of San Bernardino
October 6, 2020
Page 13
no significant impacts on natural resource nor unusual circumstances that would lead to
a significant environmental impact. (See, Resolution No. 2020-029, Section 1,
Environmental Determination.)
i. The Application of the Existing Facilities Exemption to CEQA to the Project
is Appropriate Here.
CEQA "establishes a comprehensive scheme to provide long-term protection to the
environment. It prescribes review procedures a public agency must follow before
approving or carrying out certain projects." (Berkeley Hillside Preservation v. City of
Berkeley (2015) 60 Cal.4th 1086, 1092, 184 Cal. Rptr. 3d 643, 343 P.3d 834 (Berkeley
Hillside).)
Under CEQA, for any project, the agency must decide whether the project is exempt from
the CEQA review process based on either a statutory exemption (see Pub. Resources
Code, § 21080) or a categorical exemption set forth in the CEQA guidelines. (See Pub.
Resources Code, § 21084, subd. (a); Cal. Code Regs., tit. 14, § 15300 et seq.) If the
agency determines the project is exempt, there is no further environmental review.
(Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380
[60 Cal. Rptr. 3d 247, 160 P.3d 116].)
“By statute, the Legislature directed the Secretary of the Natural Resources Agency
(Secretary) to establish ‘a list of classes of projects that have been determined not to
have a significant effect on the environment and that shall be exempt from’ CEQA. (Pub.
Resources Code, § 21084, subd. (a).) ‘In response to that mandate,” the Secretary ‘has
found’ that certain ‘classes of projects . . . do not have a significant effect on the
environment’ and, in administrative regulations known as guidelines, has listed those
classes and ‘declared [them] to be categorically exempt from the requirement for the
preparation of environmental documents.’ (Cal. Code Regs., tit. 14, § 15300; see id.,
§ 15000 et seq., Guidelines for Implementation of CEQA (Guidelines).)” (Berkeley Hillside
Preservation v City of Berkeley (2015) 60 C4th 1086, 1093 [184 Cal.Rptr.3d 643, 343
P.3d 834] (“Berkeley Hillside”.)
The Guidelines then provide a categorical exemption for "Existing Facilities." (Cal. Code
Regs., tit. 14, § 15301.) (the “Existing Facilities Exemption”). The Existing Facilities
Exemption provides an exemption from environmental review for the “operation, repair,
maintenance, permitting, leasing, licensing, or minor alteration of existing public or private
structures, facilities, mechanical equipment, or topographical features, involving
negligible or no expansion of existing or former use.” (§ 15301.) The regulation provid es
the following relevant examples of the types of projects which might fall within the
exception:
“(a) Interior or exterior alterations involving such things as interior partitions,
plumbing, and electrical conveyances; [¶] … [¶]
Honorable Mayor and Members of the City Council
City of San Bernardino
October 6, 2020
Page 14
“(d) Restoration or rehabilitation of deteriorated or damaged structures,
facilities, or mechanical equipment to meet current standards of public
health and safety, unless it is determined that the damage was substantial
and resulted from an environmental hazard such as earthqu ake, landslide,
or flood;
“(e) Additions to existing structures provided that the addition will not result
in an increase of more than:
“(1) 50 percent of the floor area of the structures before the addition, or
2,500 square feet, whichever is less; or
“(2) 10,000 square feet if:
“(A) The project is in an area where all public services and facilities are
available to allow for maximum development permissible in the General
Plan; and
“(B) The area in which the project is located is not environmentally
sensitive.” (§ 15301.)
(San Diegans for Open Government v. City of San Diego (2018) 31 Cal.App.5th 349, 370
[242 Cal.Rptr.3d 541].)
Appellant contends that the Project does not qualify for the Existing Facilities Exemption
because the Project will be a “totally different use from the previously existing fabric store.”
Appellant’s assertion that the Project cannot be approved under th is exemption because
the prior use of the Project site was a fabric store is wrong. CEQA Guidelines do not
require a “like-for-like” substitution. “The relevant issue in determining whether the
existing facilities exemption applies is whether the project involves ‘expansion of use
beyond that existing or former use.’ (§ 15301, italics added.) (Id. at 371.) Here the Project
does not propose any significant changes to the physical environment for the space that
Applicant will occupy. The Project will maintain an existing tenant space and Applicant
merely proposes to do interior tenant improvement that will not increase the existing
building footprint and will follow current building and fire code regulations.
Since the Project reflects relatively minor changes in the interior of the space, and the
use sought by Applicant is permitted, the Existing Facilities Exemption should apply here.
The court in City of Pasadena v. State of California (1993) 14 Cal.App.4th 810, 814 [17
Cal.Rptr.2d 766, affirmed a determination by the State Department of Corrections that a
decision to lease space in an existing building for a parole office was exempt under this
Honorable Mayor and Members of the City Council
City of San Bernardino
October 6, 2020
Page 15
section. The evidence established that only minor alterations to the structure and work
necessary to bring the building up to established safety and other standards would be
involved, consisted with 14 Cal Code Regs §15301 (a), (f). The required improvements
to the leased building were minor and within the scope of Cal. Code Regs., tit. 14,
§ 15301, subds. (a) & (f) (exemption from CEQA for lease of existing office space that
has been determined not to have significant impact on environment), because they only
involved changes in interior partitions and work required to bring the building to
established safety and other standards.
Similarly, the Existing Facilities Exemption is appropriate for this Project because, as the
Planning Commission determined, it proposes a commercial use replacing a prior
commercial use. The intended use is not a new use and is accounted for in the City’s
Development Code. “Blood banks” are listed in Table 06.01(H) as commercial
establishments which provide services of a medical/care nature related to the health and
welfare of the City’s residents. Section 19.02.050 of the City’s Development Code defines
“Blood Bank” as follows:
“A place where blood is collected from donors, typed, separated
into components, stored, and prepared for transfusion to recipients. A
blood bank may be a separate free-standing facility or part of a larger
laboratory in a hospital and may also include plasma centers.” 2
Thus, plasma centers, of the type sought for the Project, are expressly included in the
definition of a blood bank, which is a conditionally permitted use. Also, the Property is
zoned CG-1 and a "blood bank" is listed as a conditional use per Table 06.01 of Chapter
19.06-Commercial Zones (See, also, §19.06.020(H)(l) of the City’s Development Code.)
The Existing Facilities Exemption applies here, and Appellant has not produced sufficient
evidence that one of the exceptions to this categorical exemption applies here.
ii. Appellant Has Not Provided Evidence to Support a Determination that the
Unusual Circumstance Exception is Applicable to Override the Existing
Facilities Exemption.
Although a project might otherwise be eligible for a categorical exemption, an exemption
must be denied if “[t]here is a ‘reasonable possibility’ of a significant effect on the
2 As pointed out above, Appellant assert that a “blood bank” must be free-standing.
The City’s Development merely indicates that it may be free-standing but there is no
requirement that it must be free-standing.
Honorable Mayor and Members of the City Council
City of San Bernardino
October 6, 2020
Page 16
environment due to ‘unusual circumstances.’” (The “Unusual Circumstances Exception”.)
See, Kostka & Zichke, Practice Under the California Environmental Quality Act (CEB
2019) § 5.72, p. 5-53; and 14 Cal Code Regs § 15300.2(c). This exception applies only
when both “unusual circumstance” and a “significant impact” as a result of those “unusual
circumstances” are shown. (Berkeley Hillside, supra, at 1104.)
While not employing the exact language of Unusual Circumstances Exception to the
Existing Facilities Exemption, Appellant nonetheless asserts that there will be a
“substantial adverse impact” on parking and traffic in the Shopping Center resulting from
the Project. As such, the question of whether Appellant has provided sufficient evidence
the Unusual Circumstance Exception to apply here will be analyzed in connection with
Appellants’ assertion that Project will substantially and adversely impact parking i n the
Shopping Center.
It is Appellant’s burden to provide sufficient evidence that this exception, or any exception,
applies here. When an agency, such as the City, finds that a proposed project is subject
to a categorical exemption, such as the Existing Facilities Exemption, it is not required to
also determine that none of the exceptions applies. A determination that an activity is
categorically exempt constitutes an implied finding that none of the exceptions to the
exemptions exists. (San Francisco Beautiful v City & County of San Francisco (2014) 226
Cal.App.4th 1012, 1022; Save Our Carmel River v Monterey Peninsula Water Mgmt. Dist.
(2006) 141 Cal.App.4th 677, 689.) Once an agency determines that a project falls within
a categorical exemption the burden shifts to the objecting patty to produce evidence that
one of the exceptions to the categorical exemptions applies. (Berkeley Hillside, supra at
1105.)
As our Supreme Court explained in Berkeley Hillside, “t]he plain language of this provision
supports the view that, for the exception to apply, it is not alone enough that there is a
reasonable possibility the project will have a significant environmental effect; instead, in
the words of the Guidelines, there m ust be ‘a reasonable possibility that the activity will
have a significant effect on the environment due to unusual circumstances.’ (Guidelines,
§ 15300.2, subd. (c), italics added.) (Id. at 1097-1098.) Accordingly, the Unusual
Circumstances Exception “requir[es] more than a showing of a fair argument that the
proposed activity may have a significant environmental effect.” (Ibid. at p. 1102.) Only “if
‘unusual circumstances’ are established, [should] an agency … apply the fair argument
standard in determining whether there is ‘a reasonable possibility’ that those
circumstances will produce ‘a significant effect’ within the meaning of CEQA.” (Berkeley
Hillside, at p. 1117, italics added.) (Berkeley Hillside, supra, 60 Cal.4th at pp. 1097–1098.)
“As to projects that meet the requirements of a categorical exemption, a party challenging
the exemption has the burden of producing evidence supporting an exception.” (Berkeley
Hillside, supra, 60 Cal.4th at p. 1105.) “A party invoking the exception may establish an
unusual circumstance without evidence of an environmental effect, by showing that the
project has some feature that distinguishes it from others in the exempt class, such as its
Honorable Mayor and Members of the City Council
City of San Bernardino
October 6, 2020
Page 17
size or location. In such a case, to render the exception applicable, the pa rty need only
show a reasonable possibility of a significant effect due to that unusual circumstance.
Alternatively, … a party may establish an unusual circumstance with evidence that the
project will have a significant environmental effect. That evidence, if convincing,
necessarily also establishes ‘a reasonable possibility that the activity will have a
significant effect on the environment due to unusual circumstances.’” (Ibid.)
Here, Appellant asserts that Project will have a “substantial adverse impact on parking,
circulation and traffic in the shopping center.” See, Staff Packet, p. 621. However, the
assertion that that there is insufficient parking for the Project in the Shopping Center is
not supported by the evidence. Rather, all the evidence that has been presented by City
Staff and will be presented at the hearing indicates otherwise.
Nor can Appellant attack, as it has wrongly, the character of the donors to the Project to
prove significant changes to the physical environment. "’Significant effect on the
environment’ is defined as ‘a substantial, or potentially substantial, adverse change in any
of the physical conditions within the area affected by the project including land, air, water,
minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance. An
economic or social change by itself shall not be considered a significant effect on the
environment. A social or economic change related to a physical change may be
considered in determining whether the physical change is significant.’" (Guidelines, §
15382, italics added.) (Emphasis added. City of Pasadena v. State of California (1993)
14 Cal.App.4th 810, 827 [17 Cal.Rptr.2d 766].) Thus, the court ruled that the significant
effects exception did not apply in such a setting. See. also, City of Orange v. Valenti
(1974) 37 Cal.App.3d 240, 249 [112 Cal.Rptr. 379], in which the court held that there
should be no consideration of the characteristics of persons utilizing an unemployment
office located in an existing office building in analyzing environmental impact under
CEQA.
5. RESPONSE TO RECENTLY SUBMITTED COMMENTS.
Finally, Applicant has recently received comments from Handan Cirit, dated October 5,
2020, regarding five (5) issued raised in connection with the Project. Those issues are
addressed in a table of Applicant’s responses thereto, attached hereto as Exhibit “9.”
CONCLUSION.
Based on the above, it is urged that the City Council deny the Appeal and, therefore,
approve Resolution No. 2020-243 of the Mayor and City Council of the City of San
Bernardino, California, denying Appeal 20-01, thereby upholding the Planning
Commission’s decision finding the Project is subject to a categorical exemption and
Honorable Mayor and Members of the City Council
City of San Bernardino
October 6, 2020
Page 18
approving Conditional Use Permit 20-08 allowing the establishment of a BioLife Plasma
Donation Center at 2065 E. Highland Avenue, San Bernardino, CA.
Sincerely,
SBEMP LLP
Bruce T. Bauer, Esq.
BTB:emg
cc: Sonia Carvalho, City Attorney
Robert D. Field, City Manager
Enclosures:
Ex. 1 – BioLife Plasma Services At a Glance
Ex. 2 – BioLife Working Together to Save Lives
Ex. 3 - Renderings of five (5) BioLife Plasma Centers
Ex. 4 – Project Lease
Ex. 5 - Declaration of Restrictions
Ex. 6 – 2019 Parking Study
Ex. 7 – Urban Crossroads Report
Ex. 8 - Eight (8) photographs of Rear of Shopping Center
Ex. 9 – Applicant’s Response to Oct. 5, 2020 Comment Letter