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HomeMy WebLinkAbout48-City Attorney I 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. / -; Q J La(ptv }/ /'7i#~9c- , 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 / / / / / 28 meeting thereof, held , 1986, by the following / / / / / 1 2 3 4 5 6 7 8 of 9 10 11 12 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: 13 147 "v J ~'7 ,} '. ~tl;l-l,j r-t/7 .--t.~"r:.[/ 15 Clty Attorney 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- - ----- - ---"--: -- ---- - 0NI'lm ~ D'-R1!4mT (J! . PA>lnlT IItIRE FORES'l' ~CE f~n Gorgonio 34701 Mill Creek Rd. \.....lCH!r District 0 Mentone. CA. 92359 ) 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 f~~~ cc: Counci1Inenber Esther Estrada Counci1Inenber Dan Frazier Counci1Inenber Ralph Hernandez counci1Inenber steve Marks Counci1Inenber Gordon ().1iel Counci1Inenber Jack Reilly Counci1Inenber Jack strickler SHIsh Lief li'r1(, ~ <. 1l.'I...../ ~ '" v .... "oJ ,J , 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. ...... '-c CE '.. -""( C,"~- ~~7 .r.__~ lJj7 .... ~.... v ",) ...... - 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 l.,.,. ...... - "" ) """ November 3, 1986 Page 3 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 - .... - ~ - "" J November 3, 1986 Page 4 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 ..... - ...., ) ~ ""' November 3, 1986 Page 5 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: .... -- - ,. ') ...... "" - November 3, 1986 Page 6 "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 ~ .. ~ o ~ ~ November 3, 1986 Page 7 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 - l.. - ...~ ) ...., ...... November 3, 1986 Page 8 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. I c.. " -- -~- -- ...; November 3, 1986 Page 9 o 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, ?' ;;, ~7 (l~0 ~h ~U CYNTHIA GRACE Deputy City Attorney ;) .... ,