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CIT\, OF SAN BERNARDlt, ) - REQU( T FOR COUNCIL AC", .oN
From: Ralph H. Prince
Subject:
Mountain Shadows Apartment
Project - Stubblefield
Enterprises
Dept: City Attorney
Date: November 7, 1986
Synopsis of Previous Council action:
11/3/86
The appeal hearing on the Planning Commission's decision
to issue a Negative Declaration for the Mountain Shadows
Apartment project continued to ll/l7/86 at 7:00 p.m. in
Sturgis Auditorium. City Attorney directed to prepare
an ordinance extending the time period in w~ich the
Stubblefield project may be heard before the Development
Review Committee and still qualify for grand fathering under
the existing R-3 ordinance.
Recommended motion:
Waive further final reading and adopt ordinance.
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Signature
Contactperson:____ Ralph H. Prince
Phone:
5255
Supporting data attached: _____Yes
Ward:
Fourth
FUNDING REQUIREMENTS:
Amount:
None
Source:
N/A
Finance:
Council Notes:
Agenda Item No_ ~~--
75-0262
1
ORDINANCE NO.
2 ORDINANCE OF THE CITY OF SAN BERNARDINO ESTABLISHING THE
EFFECTIVE DATE OF FINAL APPROVAL OF PLANS FOR PROJECTS PERTAINING
3 TO MULTIPLE-FAMILY DEVELOPMENTS APPEALED TO THE PLANNING
COMMISSION AND THEN TO THE MAYOR AND COMMON COUNCIL~ AND DECLARING
4 THE URGENCY THEREOF.
5
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO
6 ORDAIN AS FOLLOWS:
7 SECTION l. Where the recommendation of the Environmental
8 Review Committee, with respect to the environmental impact of a
9 project, has been appealed to the Planning Commission and then to
10 the Mayor and Common Council, and is pending on the date of
11 adoption of this ordinance, the provisions of Chapter 19.12 as
12 amended by Ordinance No. MC-550 shall apply unless plans for such
13 project have been approved by the Development Review Committee on
14 or before December 4, 1986.
15 SECTION 2. Urgency. This ordinance is an urgency measure,
16 which shall take effect and become operative upon its adoption and
17 approval. The facts giving rise to this urgency are. that
18 development proposals on administrative appeals from the
19 recommendation of the Environmental Review Committee would be
20 subject to different development regulations caused by the
21 exercise by the appellant of the right to appeal.
22 I HEREBY CERTIFY that the foregoing ordinance was duly
23 adopted by the Mayor and Common Council of the City of San
24 Bernardino at a
25 on the day of
26 vote, to wit:
27 / / / / /
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meeting thereof, held
, 1986, by the following
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of
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AYES:
Council Members
NAYS:
ABSENT:
City Clerk
The foregoing ordinance is hereby approved this
day
, 1986.
Mayor of the City of San Bernardino
Approved as to form:
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15 Clty Attorney
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PA>lnlT IItIRE
FORES'l'
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f~n Gorgonio 34701 Mill Creek Rd.
\.....lCH!r District 0 Mentone. CA. 92359
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Reply To: 1900 PllllU1in:l
Date: 17 NovaIber, 1986
Mayor Evlyn wilcox
City of San Bernardino
300 N. 'B' st.
San Bernardino, CA 92418
Dear Mayor Wilcox:
The USDl\. Forest Service, as an adjacent property owner of the proposed Mountain
Shadows developrrent, just recently became a~re of this prqx>sal to construct a
large apartment conplex. Because national forest land will be affectEd by the
project, we would like to take this q:portunity to offer sorre limited CaIIllellts
on the proposal. If an environrrental illpact report will be preparEd, we will
then cament in greater detail at that time.
Based upon our understanding of the project, and that it is locatEd adjacent to
national forest land, the USDA Forest Service would request, as a mininum, that
the proponent be requirEd to survey the cOllIllDn property line, and that the
line be praninently narked by the propcnent to prevent inadvertent trespass.
Additionally, wildfire prevention and control is a najor corcem whenever
developrrents occur in close proximity to the national forest. Therefore, we
would request that the Council require COIlPliance with the wGreemelt programw
as a requirement of any project approval.
If a decision is nade to require the preparation of an enviroranent inpact
report, we would appreciate having the q:portunity to review and Call1lellt on
it. If we can be of assistance during its preparation, please feel free to
contact me at 794-1123.
Sincerely,
, ~{r
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cc: Counci1Inenber Esther Estrada
Counci1Inenber Dan Frazier
Counci1Inenber Ralph Hernandez
counci1Inenber steve Marks
Counci1Inenber Gordon ().1iel
Counci1Inenber Jack Reilly
Counci1Inenber Jack strickler
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BERNARDINO
300 NORTH "0" STREET. SAN BERNARDINO, CALIFORNIA 92418
RALPH H, PRINCE
CITY A HORNEY
November 3, 1986
Qpn. No. 86-45
10.36, 700.30
Honorable Evlyn wilcox
Mayor
Re: Environmental Impact Reports, Stubblefield Property
Questions
1. What action would you advise the Mayor and Common
Council to take based on case history of similar
public protests of a negative declaration regarding
building projects?
2. If the Common Council sustains the Planning Commis-
sion's decision and we are taken to'court by the
citizen's Group, who would pay the citizen's legal
fees? Would there be other damages awarded and who
would pay for them?
Analvsis
Determination of Siqnificant Effect on the Environment
CEQA requires that an Environmental Impact Report must be
prepared when there is a project which may have significant
effect on the environment. The test is set forth at
California Administrative Code Title 14 Section 15064, which
states:
"(a) Determining whether a project may have
a significant effect plays a critical role in
the CEQA process.
(1) When a Lead Agency determines that
there is substantial evidence that a
project may have a significant effect on
the environment, the agency shall
.J prepare a draft EIR.
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November 3, 1986
Page 2
(2) When a final EIR identifies one or
more significant effects, the Lead
Agency and each Responsible Agency
shall make a finding under Section 15091
for each significant effect and may need
to make a statement of overriding
considerations under section 15093 for
the project.
(b) The determination of whether a project
may have a significant effect on the environ-
ment calls for careful judgment on the part
of the public agency involved, based to the
extent possible on scientific and factual
data. An ironclad definition of significant
effect is not possible because the signifi-
cance of an activity may vary with the set-
ting. For example, an activity which may not
be significant in an urban area may be
significant in a rural area."
The CEQA guidelines go on to enumerate some of the direct or
indirect affects that an agency should consider in making the
determination of whether a project has a significant effect
on the environment. These consequences include dust, noise,
traffic, geologic hazards, other hazards such as flooding and
fire safety. CEQA also requires a local agency to consider
secondary consequences such as the impact the project may
have on public facilities such as sewage treatment plants.
Economic and social changes resulting from a project without
more are not considered significant effects within the scope
of CEQA. However, if the social and economic changes result
in some physical change in the environment, then these
physical changes shall be regarded as significant within the
scope of CEQA. For example, if the economic or social
changes result in an increase in population density, and this
increase in turn results in overcrowding or otherwise
overburdening of some public facilities, then this
overburdening could be regarded as a significant effect.
iIf the city finds that there is substantial evidence in the
record that a project, mav have a significant effect on the
environment, then the City is required to prepare an
Environmental Impact Report. Friends of "B" Street v. citv
of Havward (1980) 106 Cal.App.3d 988, 165 Cal.Rptr. 514.
Furthermore,(if the city is presented with a fair argument
that a project mav have a significant effect on the
environment, then the City must prepare an Environmental
Impact Report even though it may also be presented with other
substantial evidence that the project will not have a
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significant effectl No oil. Inc. v. Citv of Los Anqeles
(1974) 13 Cal.3d 68, 118 Cal.Rptr.34. If the City finds
there is no substantial evidence that the project may have a
significant effect on the environment, then the lead agency
may prepare a negative declaration. Friends of "B" street,
supra.
There is no hard and fast rule as to when evidence of an
environmental effect rises to threshhold of "significant"
which triggers the requirement to prepare an Environmental
Impact Report. The CEQA guidelines say that the city must be
guided by the following factors. California Administrative
Code Title 14 Section 15064 Subsection (h):
"(h) In marginal cases where it is not clear
whether there is substantial evidence that a
project may have a significant effect on the
environment, the Lead Agency shall be guided
by the following factors:
(1) If there is serious public
controversy over the environmental
effects of a project, the Lead Agency
shall consider the effect or effects
subject to the controversy to be
significant and shall prepare an EIR.
Controversy unrelated to an
environmental issue does not require
preparation of an EIR.
(2) If there is disagreement between
experts over the significance of an ef-
fect on the environment, the Lead Agency
shall treat the effect as significant
and shall prepare an EIR." (emphasis
added) .
The guidelines instruct local agencies to err on the safe
side in close cases. If there is serious public controversy
or disagreement among experts, the CEQA guidelines instruct
the local agency to prepare an Environmental Impact Report.
The following is a capsuled digest of several cases which
have applied the tests set forth in No Oil. Inc., supra and
Friends of "B" Street, supra.
Brentwood Association. etc. v. Citv of Los Anqeles (1982) 134
Cal.App.3d 491, 184 Cal.Rptr. 664. The court reversed a
negative declaration granted by the City of Los Angeles to
Chevron Oil Company to drill an exploratory corehole. An
injunction was also granted. The Brentwood court quoted from
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Friends of "B" street, suora:
". . . but if a local agency is required to
secure preparation of any ErR whenever it can
be fairly argued on the basis of substantial
evidence that the project may have a
significant environmental impact (citations
omitted), then an agency's adoption of a
negative declaration is not to be upheld
merely because substantial evidence was
presented that the project would not have
such an impact. The trial court's function
is to determine whether substantial evidence
supported the agency's conclusion as to
whether the prescribed 'fair argument' could
be made. If there was substantial evidence
that the proposed project might have a
significant environmental impact, evidence to
the contrary is not sufficient to support the
decision to dispense with the preparation of
an EIR and adopt a negative declaration,
because it could 'be fairly argued' that the
project might have a significant
environmental impact. stated another way, if
the trial court perceives substantial evi-
dence that the project might have such an
impact, that the agency fails to secure
preparation of the required EIR, the agency's
action is to be set aside because the agency
abused its discretion by failing to proceed
in a manner required by law." (citations
omitted) .
The Brentwood court goes on to apply this test to the facts
arising from Chevron's application to drill an oil well core
hole. The court says:
"Even though there is significant evidence to
the contrary, the administrative record
contains substantial credible evidence of
environmental impacts associated with the
Chevron project having a potential for such
disastrous consequences that it cannot be
ignored. In addition to substantial evidence
of the project's effects on traffic and
noise, the administrative record contained
substantial evidence of the project's having
a potential for adverse seismic consequences
from drilling into the active Malibu Coast-
HOllywood-Raymond Fault. Moreover, the
evidence demonstrated that the proposed
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Chevron core hole posed a danger to the
under-ground reservoir beneath the Riviera
Country Club stemming from drilling into the
prevailing alluvial soil conditions as
evidenced by the failure of the Baldwin Hills
Reservoir." Brentwood, at page 671 and 672.
Pistoresi v. citv of Madera. (1982) 138 Cal.App.3d 284, 188
Cal.Rptr. 136. This case involved a proposed annexation to
the City of Madera. LAFCO issued a negative declaration in
connection with the annexation proceedings; the court set the
negative declaration aside and held that where annexation was
a prerequisite for proposed development, and because of the
resulting need for City services, annexation was a project
within the scope of CEQA. This case quoted the above two
passages from No oil. Inc., supra and Brentwood Association,
supra, and went on to hold that:
"The evidence in the record from which an
argument fairly cold be made consisted of a
staff report noting the present use of the
parcel was agricultural and the proposed
development was residential, that county
zoning required residential rural one-acre-
minimum lots, that the city's prezoning was
one unit per forty-five hundred square feet,
and that on-site drainage facilities would
'probably' be required." Pistoresi v. Citv
of Madera at page 139.
The court went on to hold that this constituted substantial
evidence that the annexation might have a significant
environmental impact and an Environmental Impact Report was
consequently required.
Citizen's Association for Sensible Development v. Countv of
Invo (1985) 172 Cal.App.3d 151, 217 Cal.Rptr. 893. In this
case, the county issued a negative declaration for the
construction of a shopping center. The court set aside the
negative declaration because the Board of Supervisors failed
to consider the cumulative impact of the project. In this
case, the plaintiffs established a "colorable claim to
attorney's fees". This project was a phased project, and
each phase of the project was granted a negative declaration
without considering the cumulative effect of the whole
project. The court held that failing to consider the
cumulative effect constituted an abuse of discretion which
required reversal of the decision of the Board of
Supervisors. The court said:
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"The California Environmental Quality Act
mandates that environmental considerations do
not become submerged by chopping a large
project into many little ones, each with a
minimal potential impact on the environment,
which cumulatively may have disastrous
consequences." citizens Association at page
894.
El Dorado Union Hiqh School District v. citv of Placerville
(1983) 144 Cal.App.3d 123, 192 Cal.Rptr. 480. In this case,
a high school district challenged the adequacy of an
Environmental Impact Report, which had been prepared in
connection with a proposed subdivision. The court held that
the Environmental Impact Report which was prepared by the
city was "woefully inadequate." The Real Party claimed that
crowded classrooms were a social rather than a physical
impact; the court rejected this argument and held that the
crowding of classrooms is cognizable under CEQA. The court
said:
"The EIR should contain sufficient
information to enable public agencies to make
decisions that consider environmental
consequences. The EIR here falls woefully
short of that standard. Although the Draft
recognized an increase in student enrollment,
neither report said anything about the
effects of such an increase in the student
population, and suggested no mitigation
measures to deal with such an impact,
required by the Guidelines. (Section 15143,
subds. (a), (c) and (g)). Nor is there any
discussion of the cumulative impact of
projects such as Whispering pines on
District, which CEQA expressly requires."
(citations omitted).
Finally, District had advised the City in
February 1980 the special impact fee it had
imposed would not fully meet its needs. On
this record, we cannot assume City made any
evaluation of the impact of the project, much
less the kind of detailed evaluation CEQA
contemplates under these circumstances." n
Dorado Union Hiqh School District, at page
485.
Merz v. Monterev Countv Board of Supervisors (1983) 147
Cal.App.3d 933, 195 Cal.Rptr. 370. This is the case where
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the court upheld the Board of Supervisors' decision to adopt
a negative declaration for a reconstruction of a major
intersection. The court held that the Board's administrative
record was adequate to support its adoption of the negative
declaration. However, it is significant to note that the
intersection in question was a part of a specific plan for
the development of a residential and resort complex in Carmel
Valley. An Environmental Impact Report had been prepared and
certified by the Board in connection with this project, and
the court held that the traffic impacts with respect to this
particular intersection had been adequately addressed in the
earlier Environmental Impact Report.
Newberrv Sorinas Water Association v. County of San Bernardi-
no (1984) 150 Cal.App.3d 740, 198 Cal.Rptr. 100. In this
case, the court upheld the Board of Supervisors'
certification of a negative declaration for a 900 cow dairy.
The action was brought by a local water company which
contended that the dairy would result in pollution of the
ground water, and would lower the water table. Theplaintiff
introduced evidence of such events occurring at other
locations during the administrative hearing; however, the
Board distinguished this evidence which was based on an
example of 38 square miles of planted crops, not on a 900 cow
dairy on 160 acres. Neighbors and members of the water
company presented evidence of the nuisance effect of dairies,
but the court held that this evidence was not credible.
At the public hearing before the Planning commission on
October 21, 1986 with regard to the Stubblefield project,
testimony was presented from GeOlogist Rasmussen that geo-
logic hazards on the site had not been adequately identified,
and that sub-soil conditions relating to historic landslides
have also not been adequately identified and investigated,
and that these conditions present a potential public safety
hazard. Testimony was also given that the site is subject to
flooding and that, while flood control improvements are
slated to be built which will adequately mitigate this
impact, there is no time frame for the construction of these
improvements and no assurance that the improvements will be
in place by the time the project is ready for occupancy.
Conflicting testimony has also been given regarding the
adequacy of a traffic study which was prepared for this
project; there is evidence in the record that the existing
streets will be burdened, not only by this project, but by
the cumulative effect of other undeveloped property in the
vicinity. There is disagreement among the experts as to
whether certain of the existing streets in the vicinity of
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November 3, 1986
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the project are adequate to serve the needs of this project
as well as the acreage which is available for future develop-
ment. This is the sort of cumulative impact that
appropriately should be addressed by an Environmental Impact
Report.
Leaal Fees and Damaaes
The Citizen's Group is not entitled to any form of damages
under CEQA, or under any other theory. The remedy, if they
are not satisfied with the Council's decision, is to seek a
writ of mandate to reverse the Council's decision. This is
the exclusive remedy, California Administrative Code Title 14
Section 15232. In connection with the writ of mandate
proceedings, citizens may also seek an injunction which would
prohibit the issuance of any building or grading permits
until the CEQA litigation is concluded.
If the Citizen's Group files a writ of mandate, it will most
likely name Stubblefield Enterprises as Real Party in
Interest. The City may choose to defend such a lawsuit, or
it may simply abstain from the proceedings and allow the Real
Party in Interest to defend the suit.
As to the question of who pays the attorney's fees and court
costs of the Citizen's Group, there is no provision in CEQA
that allows a plaintiff to recover its legal fees for CEQA
based litigation. However, there are several other theories
whereby the citizens may seek to recover their attorney's
fees either from the City, or from the Real Party in
Interest. These are the private attorney general, and the
public benefit theories. There has been a marked trend in
the courts over recent years to allow fees to citizen's
groups in this kind of litigation, but it is not automatic
that the citizens would recover its legal fees from the City.
Conclusion
1. On the basis of expert testimony presented at the
Planning Commission hearing on October 21, 1986, it is fairly
arguable that there may be significant environmental effects
which require mitigation given the trend of the courts as
expressed in the cases cited above. It is possible that at
least a focused Environmental Impact Report would be required
if this matter were litigated.
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2. The citizen's group cannot seek damages from the city but
they can seek payment of legal fees from the city. Legal
fees in cases of this nature may be substantial.
CG:pmm
cc:
Common Council
City Administrator
City Clerk
Planning Director
Concur:
BY/?~~~
City Attorney
Respectfully Submitted,
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CYNTHIA GRACE
Deputy City Attorney
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