HomeMy WebLinkAboutMATERIAL DISTRIBUTED TO CITY COUNCIL ON ITEM NO. 3`a~ WOODRUFF, S PRADLIN G SMART
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MEMORANDUM
VIA HAND DELIVERY
TO: Honorable Mayor and Members of the City Council
FROM: David E. Kendig, Acting City Attorney
DATE: September 6, 2011
RE: Response to TUSD Comments on Tentative Tract Map No. 17404
On August 30, 2011, the Tustin Unified School District (TUSD) submitted comments to
the City regarding Tentative Tract Map No. 17404 (TTM 17404). (A copy of TUSD's August
30, 2011 letter is attached far ease of reference.) This memorandum is provided in response to
that letter, and in connection with your consideration of the request for approval of TTM 17404.
For the reasons set forth below, the TUSD is incorrect in its assertion that a
"Supplemental Environmental Proceeding" is required before the Council approves TTM 17404.
Contrary to what TUSD claims in its letter, the City is not required to conduct subsequent
CEQA review. TUSD has not identified any change in the project or circumstances, let alone a
change creating new or increased physical impacts on the environment, let alone a change
creating new or increased significant physical impacts on the environment.
The background is as follows. The Moffett partnership entered into a Mitigation
Agreement with TUSD ("Moffett Agreement"). The Moffett Agreement requires the Moffett
partnership to pay specified fees for the construction of school facilities. The Moffett Agreement
also requires TUSD to pursue funding for the same purpose through a community facilities
district. Apparently, the Legacy partnership has not entered into any similar mitigation
agreement with TUSD.
According to TUSD, the City must conduct subsequent CEQA review under Public
Resources Code Section 21166 and CEQA Guidelines Section 15162 because the Legacy
partnership has not entered into any mitigation agreement with TUSD. TUSD claims that the
absence of a Legacy mitigation agreement (1) constitutes a substantial change in the project and
the circumstances, and (2) will result in new significant impacts on the environment, and a
substantial increase in the severity of identified significant impacts. TUSD seems to assume that
the absence of a Legacy mitigation agreement will somehow result in the construction of interim
and permanent school facilities, and this construction will somehow cause significant traffic,
noise, and other unidentified impacts that were not studied in the FEIS/FEIR.
784623.1
Honorable Mayor and Members of the City Council
September 6, 2011
Page 2
TUSD is incorrect for a variety of reasons. First, the absence of a mitigation agreement
with the Legacy partnership is not a "change in the project." The MCAS reuse project consists
of various City approvals, ultimately resulting in construction of residential and commercial
development at the former MCAS. Any mitigation agreement with Legacy partnership would
not be part of those approvals. Nor did the City require any mitigation agreement as a mitigation
measure in the FEIS/FEIR.
Second, the fact that the Legacy partnership has not entered into any mitigation
agreement with TUSD is not a change in circumstances that is relevant to the City's CEQA
analysis. CEQA does nat require the City to consider the extent to which new residential
development at the base will increase student population and thereby require funding for the
construction of new schools. (Chawanakee Unified School District v. County of Madera (2011)
196 Ca1.App.4th 1016.) The legislature has determined that Government Code Section 65000 et
seq. is the only means by which a school district may obtain funding for the construction of new
schools made necessary by new development - to the exclusion of CEQA. Thus, the presence or
absence of any mitigation agreement between TUSD and a developer is irrelevant to the City's
CEQA analysis.
For that matter, the fact that the Legacy partnership has not entered into a mitigation
agreement with TUSD is not a "change in the circumstances" at all -there was no mitigation
agreement when the FEIS/FEIR was certified, and the situation remains the same today. None of
the analysis in the FEIS/FEIR assumed that the Legacy partnership would enter into a mitigation
agreement with TUSD.
. Third, TUSD has not identified any new or increased impacts, let alone any significant
new or increased impacts, that purportedly will result from the absence of a mitigation agreement
with the Legacy partnership. The FEIS/FEIR thoroughly analyzed the physical impacts
associated with the reuse project's new school construction, including impacts in the areas of
traffic, noise, and air quality. TUSD has not even attempted to describe (1) the new construction
that supposedly will take place that was not projected and studied as part of the FEIS/FEIR
process, or (2} the specific new and increased impacts that supposedly will result from this
unidentified new construction. Nor has TUSD explained how the absence of a mitigation
agreement with the Legacy partnership (which was not part of the project in any case) will
somehow necessitate or result in the unidentified construction.
Fourth, the Chawanakee Unified Schoal District case does not support TUSD's claims.
To the contrary, the Chawanakee Unified School District case confirms that CEQA does not
require the City to consider whether or how school districts will fund the construction of new
schools -whether through mitigation agreements or any other funding mechanisms. The court
in Chawanakee Unified School District explained as follows:
"Because the methods set forth in Government Code section 65996, subdivision (a} are
exclusive, that provision obviates the need for an EIR to contain a description and
analysis of a development's impacts on school facilities. Based on this interpretation, we
reject School District's claim that the EIR violates CEQA because it lacks any analysis of
the environmental consequences for the existing school facilities that will be forced to
784623.1
Honorable Mayor and Members of the City Council
September 6, 2011
Page 3
accommodate hundreds of students beyond current overcrowded conditions."
Chawanakee Unified School Dist. ,supra, 196 Cal.App.4th at 1027-1028.
Under Chawanakee Unified School District, the City is only required to consider the
reasonably foreseeable indirect physical impacts, if any, that could result if the residential
development approved as part of the MCAS reuse plan might result in construction of new
schools. The FEIS/FEIR fully considered these impacts, and TUSD has not even attempted to
explain how or why this analysis needs to be modified based on the fact that the Legacy
partnership has not entered into a mitigation agreement to assure funding for new schools.
For each of the foregoing reasons, the City is not required to conduct a "Supplemental
Environmental Proceeding" before approving TTM 17404. If you have any further questions on
this issue, please do not hesitate to give me a call.
David E. Kendig
cc: William A. Huston, City Manager
Christine Shingleton, Assistant City Manager
Elizabeth Binsack, Community Development Director
'784623.1
BOWIE, AR.1vESON, WILES & GIANNONE
A PAATNERSIIIP INCLUDING PROFESSIONAL CORPORATIONS
ATTORNEYS AT LA W
ALEXANDER BOWIE"
JOAN C. ARNESON
WENDY H. WILES"
PATRICIA B. GIANNONE
ROBERT E. ANSLOW
BRIAN W. SM1TIi
JEFFREY A. HOSKINSON
MEGAN V. WATT
DANIELE D. LE
LAWRENCE K. CHAN
TYLER B. DOCKINS
4920 CAMPUS ~ ~~, i
NEWPORT HEACH, CALIFORNIA 92G60
(949} 851-7300
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TtJSTIf•~
P 12~ 0 8
(800}649-0997
FAX (949) 857-2014
•A PAOFESS(ONAI. CORPORATION
Tustin City Council
City of Tustin
300 Centennial Way
Tustin, CA 92780
August 30, 2011
Attention: Pamela Stoker, City Clerk
Re: Suppleme~itnl Comments re: Tentative Tract Map No. 17404
Dear Council Members:
On behalf of Tustin Unified School District ("TUSD"}, thank you for the "Notice" from
the City of Tustin ("City"} in regard to the above, received on August 23, 2011, relative to
proposed Tentative Tract Map No. 17404 ("TTM 17404"}. The following comments, requests,
and suggestions are respectfully submitted in addition to the comments submitted on January 4,
2011, in response to the City request dated, December 20, 2010.
1. It is respectfully submitted on behalf of TUSD, that substantial changes have occurred in
the "Project" relating to TTM 17404, subsequent to the approval of the "FEIS/EIR" and the
described "Addendum" ("Prior CEQA Documents"). These substantial changes have resulted in
new additional and significant adverse environmental impacts, as well as substantial changes and
substantial increases in the severity of previously identified significant adverse impacts, and
significant changed circumstances under which the Project will be undertaken(collectively,
"Change Impacts"}.
2. As you are aware, TUSD and Moffett Partners ("Lennar" and "Lyon") executed a
"Mitigation Agreement" to seek to establish a "K-$ School" and "High School" on the former
"MCASITustin" property (collectively, ``Proposed MCASITustin School Facilities"). Legacy
Partners (`'Centex" and "Shea") declined to similarly execute the necessary Mitigation
Agreement that would have made the Proposed MCASITustin School Facilities a realistic
REF. OUR FILE
18047.15.3
BOWIES A.RNESON, WILES & GIANNONE
Tustin City Council
August 29, 2011
Page 2
possibility. This occurred after the completion of the Prior CEQA Documents and is a new
substantial change creating new significant adverse environmental impacts as to onsite and
offsite, construction impacts as to interim and permanent school facilities, including traffic,
noise, and other impacts that need to be addressed by the City as the successor "Master
Developer" in a "Supplemental Environmental Proceeding" prior to approval of TTM 17404.
3. In regard to the foregoing, we respectfully bring to your attention the recent decision of
Chawanakee Unified School District, et al. v. County of lt~Iadera, et al., (2011) 196 Cal. App.
4'~' 1016 ("Chawanakee Decision") which, together with other applicable law, necessitates, SB-
50 notwithstanding, that the above-described impacts be addressed prior to approval of TTM
17404 in a Supplemental Environmental Proceeding. In order to do so, this necessitates a
revised plan for on site, off site, permanent and interim school facilities in order that such new
significant adverse impacts can be identified, quantified, and mitigated to a level of
insignificance.
4. Also, the Project CEQA Documents identified a "CFD" by TUSD as a means of funding
the herein described necessary school facilities. Such a CFD has been formed and implemented
as to the Moffet Partners portion of the Project, but the failure of such a CFD to be established as
to the remaining area of TTM 17404 subsequent to completion of the Project CEQA Documents
is an additional change in the Project, and a subsequent change in circumstances which must be
addressed in the requested Supplemental Enviroiunental Proceeding prior to approval of TTM
17404.
5. On the basis of the foregoing, it is respectfully requested that approval of TTM 17404 be
deferred pending a Supplemental Environmental Proceeding to address alt the herein described
relevant issues, particularly as related to the the Chawanakee Decisio~z.
On behalf of TUSD, we request that the City designate the proper persons to interface
with TUSD in order to formulate a mutually acceptable plan for interim and permanent school
facilities for the Project, and a mutually acceptable plan for timely funding thereof to provide
such school facilities as sale of property to third parties and development of additional homes
occurs. This will allow all such significant adverse impacts to be mitigated to a level of
insignificance. It is noted that in regard the desired joint future efforts that State Funding for
new construction has been exhausted by approved unfunded new construction projects. This
now deferred source of funding may occur at a later than assumed date.
The City and TUSD serve the same community and families, and TUSD looks forward to
initiating a collaborative, mutually-acceptable "Win/Win" approach to making development of
this portion of our community, a model of cooperation and good will in these challenging times,
which the City of Tustin and Tustin Unified School District are facing.
160273
BOWIE, AxNESON, WILES & GIANNONE
Tustin City Council
August 29, 2011
Page 3
We look forward to meeting and discussing this request and suggestions prior to
September 6, 2011. Please contact Dr. Gregory Franklin, Superintendent, to implement such a
collaborative meeting at your earliest convenience.
Very truly yours,
BOWIE, ARNESON, WILES & GIANNONE
By: G~%~~~-cry `~~ ~!'~~~,r.2,.c.
Alexander Bowie
ec: Dr. Gregory Franklin, Tustin Unified School District
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