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HomeMy WebLinkAbout03 LETTERS RECEIVED FROM FINNEY ARNOLD LLP(2) Letters Received from Finney Arnold LLP Received October 14, 2019 and October 15, 2019 Finney� a _ .LLP G �� ^ Twenty -Eighth Floor Cn�+ � Cg i��QJ 633 West Fifth Street October 14, 2019 City of Tustin City Council 300 Centennial Way Tustin, CA 92780 RE: Opposition to Approval of Resolution 4385, Approving DR 2018-00026 and CUP 2018-00018 Costco Gas Station at 2541 & 2655 El Camino Real, in Tustin, CA Dear Sir or Madam: Our firm represents Protect Tustin Ranch, an unincorporated association of residents of the City of Tustin and the Tustin Ranch community (the "Coalition"). The intent of this letter is to provide comments on the recent approval by the City of Tustin Planning Commission ("Planning Commission") of Resolution 4385, which adopted Design Review 2018-00026 and approved Conditional Use Permit ("CUP") 2018-00018 for the Project (defined immediately below). The project is located at 2541 and 2655 El Camino Real, in Tustin Ranch, California 92782, and involves the demolition of an existing Goodyear Tire Center (located at 2541 El Camino Real), and the subsequent construction of a 16 -pump Costco gasoline fuel station, with overhead canopy and related equipment, plus 56 new parking stalls (the "Project"). The proposed Project is located within a portion of an existing large shopping center that is improved with an existing Costco warehouse building, the Goodyear Tire Center that is proposed to be demolished, a major retail store (formerly K-mart/Sears/Ansar Gallery), a McDonald's restaurant, and two (2) multi -tenant commercial buildings. Single-family residences are located to the north of the shopping center, across Bryan Avenue, and condominiums are located to the west of the shopping center across Tustin Ranch Road. The Tustin Auto Center is located to the south, across EI Camino Real. The Tustin Market Place is found to the east beyond the EI Modena Flood Channel and Myford Road. Administrative Background On June 11, 2019, the Planning Commission held a public hearing on a request for CUP 2018-00018 and DR 2018-00026 application to demolish the existing Goodyear Tire Center and adjacent Goodyear parking area at 2541 EI Camino Real and to replace that structure with 56 new parking stalls and to construct, at 2655 EI Camino Real, a new 16 -pump Costco gasoline fuel station with overhead canopy and related equipment. At the meeting, ten (10) public speakers Los Angeles, CA 90071 OCT 14 2019 tfinney@falawyers.com C (310) 729-7266 TUSTIN Y CLERKS OFFICE sarnold@falawyers.com C (213) 718-3468 October 14, 2019 City of Tustin City Council 300 Centennial Way Tustin, CA 92780 RE: Opposition to Approval of Resolution 4385, Approving DR 2018-00026 and CUP 2018-00018 Costco Gas Station at 2541 & 2655 El Camino Real, in Tustin, CA Dear Sir or Madam: Our firm represents Protect Tustin Ranch, an unincorporated association of residents of the City of Tustin and the Tustin Ranch community (the "Coalition"). The intent of this letter is to provide comments on the recent approval by the City of Tustin Planning Commission ("Planning Commission") of Resolution 4385, which adopted Design Review 2018-00026 and approved Conditional Use Permit ("CUP") 2018-00018 for the Project (defined immediately below). The project is located at 2541 and 2655 El Camino Real, in Tustin Ranch, California 92782, and involves the demolition of an existing Goodyear Tire Center (located at 2541 El Camino Real), and the subsequent construction of a 16 -pump Costco gasoline fuel station, with overhead canopy and related equipment, plus 56 new parking stalls (the "Project"). The proposed Project is located within a portion of an existing large shopping center that is improved with an existing Costco warehouse building, the Goodyear Tire Center that is proposed to be demolished, a major retail store (formerly K-mart/Sears/Ansar Gallery), a McDonald's restaurant, and two (2) multi -tenant commercial buildings. Single-family residences are located to the north of the shopping center, across Bryan Avenue, and condominiums are located to the west of the shopping center across Tustin Ranch Road. The Tustin Auto Center is located to the south, across EI Camino Real. The Tustin Market Place is found to the east beyond the EI Modena Flood Channel and Myford Road. Administrative Background On June 11, 2019, the Planning Commission held a public hearing on a request for CUP 2018-00018 and DR 2018-00026 application to demolish the existing Goodyear Tire Center and adjacent Goodyear parking area at 2541 EI Camino Real and to replace that structure with 56 new parking stalls and to construct, at 2655 EI Camino Real, a new 16 -pump Costco gasoline fuel station with overhead canopy and related equipment. At the meeting, ten (10) public speakers Tustin City Council October 14, 2019. Page 2 of 5 provided comments regarding the Project. The speakers included residents, interested parties and business owners and the majority expressed concern and opposition. Two e-mails were also received in favor of the proposed Project. After receiving public comments, the Planning Commission continued the public hearing to its meeting of July 9, 2019, so that its staff could address the concerns expressed by the public as well as questions'; jpo s'ed, by the Planning Commission. On July 9, 2019, the Planning Commission took additional public comments (15 people spoke in support of the Project and 10 people opposed the Project), received Planning Commission staff responses to the Planning Commission's questions, and then adopted Resolution No. 4385 approving the Project. On July 19, 2019, an appeal was filed regarding the Planning Commission' s adoption of Resolution No. 4385 approving the Project. The written appeal: 1) states that the actions taken by the Planning Commission should be reversed; 2) identifies concerns related to the gas station operation; and 3) identifies concerns related to the adequacy of the environmental determination of the proposed project. The Coalition submits these comments in support of the appeal. As explained more fully, below, the Agenda Report, dated as of October 15, 2019, from the Community Development Director to the City Manager ("Report") does not fully consider the - impact of the traffic, air quality, soil quality, ground water quality, noise, health, safety and other issues in the area, both during construction, and after the Project is built. The failure to consider these additional issues renders the Report ineffective as an informational document. These traffic, air quality, soil quality, ground water quality, noise, health, safety and other impacts are significant and unavoidable. The failure to consider these additional issues renders the approval of Resolution 4385 improper. As a result of its shortcomings the Report lacks substantial evidence to support its conclusions and fails to properly mitigate the Project's significant environmental impacts. Statement of Interest The Coalition is an unincorporated association of individuals that may be adversely affected by the potential traffic, air quality, soil quality, groundwater quality, noise, public health and safety hazards imposed by the Project. The Coalition includes individuals, and their families, who live' and work in the City of Tustin, and in Tustin Ranch. Because they are local residents, the individual members of the Coalition would be directly affected by the traffic, noise, air quality, soil .quality, groundwater quality, health and safety and other impacts created by the Project. Individual members may also work on the Project itself. As such, they would be first in line to be exposed to any health and safety hazards that exist on the Project site. The Report is Not in Compliance With CEQA CEQA has two basic purposes, neither of which the Report satisfies. Firstly, CEQA is designed to inform decisionmakers, and the public about the potential significant environmental effects of a l project. CEQA Guidelines §15002(a)(1). CEQA requires that an agency anayze potentially Tustin City Council October 14, 2019 Page 4 of 5 ` Additionally, the Report notes that Costco anticipates significant traffic disturbances such that they will need to reconfigure traffic lanes and provide up to three (3) on-site traffic guards to reroute traffic during peak times. These disturbances will necessarily cause traffic issues in the area, possibly creating back-ups onto side streets and increasing the potential for traffic accidents. Reliance on traffic guards, who must be dispatched after unanticipated crowds seeking gasoline have already gathered, idling exhaust fumes into the air adjacent to residential neighborhoods, is a wholly ineffective remediation measure. We will submit expert reports on the insufficiency in the air quality and traffic studies that are identified in the Report. Our expert reports are in progress and will be submitted in full in the near future. Importantly, the administrative record was provided to us in three (3) tranches on September 30th; October 7th and October 8th. We requested a continuance of this hearing to have time to review the extensive record and to provide our expert reports on the Planning Commission's findings. Our request for a continuance was denied. Therefore, we are requesting additional time to submit our expert reports on these issues. The Class 32 Exemption is Improper The Planning Commission feels that the Project is categorically exempt from requiring a full EIR to the public pursuant to the Class 32 "Infill" Categorical Exemption under CEQA Guideline j Section 15332 (the "Class 32 Exemption"), which exempts infill development within urbanized areas if the development meets certain criteria. The Class 32 Exemption is provided to infill projects that are consistent with a community's general plan and zoning requirements. Critically, the Class 32 Exemption is not intended for projects that would result in any significant traffic, noise, air quality, or water quality impacts. As the proposed project will result in significant traffic, air quality, soil quality, ground water quality, noise, health, safety and other issues in the area, both during construction, and after the Project is built, a full EIR must be ordered by this esteemed body. In the EIR, the City of Tustin must consider mitigation measures to alleviate these dangers and concerns and propose feasible mitigation measures that may be available. The full EIR must be circulated for public review. A Full CEOA Review is Required The character of the Project (the construction of a 16 -pump gas station) requires the approval of a CUP, and an extensive CEQA review by the approving agency. Specifically, the Project site is located within the Planned Community Mixed -Use ("PC -MU") zoning district of the East Tustin Specific Plan ("ETSP") area. Pursuant to Section 3.8.2 and 3.7.2.A.1.0 of the ETSP, new service stations are subject to the approval of a CUP. Furthermore, pursuant to Tustin City Code ("TCC") Section 9291c, the Planning Commission has the authority to review and act on CUPS. Finally, pursuant to TCC Sections 9272', design review approval is required for new structures, major exterior alterations or enlargement of existing structures. Tustin City Council October 14, 2019 Page 5 of 5 As this Project may involve significant impacts to traffic patterns, noise, air quality, soil quality, as well as public and worker health and safety, both during and after construction, CEQA requires that the public must have time to consult with experts in order to determine how the Project might negatively impact the community and whether a full environmental impact report ("EIR") should be drafted to consider these issues. Based upon our review of the Report, we conclude that the approval of Resolution 4385 fails to comply with CEQA requirements. We recommend that the Tustin City Council reject the approval of Resolution 4385, and that the matter be continued for sixty (60) days to give the Coalition time to review the administrative record and to provide expert comments thereto. Additionally, based on the findings of this comment letter, a full EIR must be ordered and circulated, and the public given a chance to review and comment on the same to determine whether a full EIR must be drafted. For the reasons stated herein, the approval of Resolution 4385 must be withdrawn and an EIR must be ordered to address these errors and deficiencies. Because of the substantial need to comply with CEQA, the EIR will need to be circulated for additional public comment. Pub. Resources Code, §21091.1; CEQA Guidelines §15088.5. r t As demonstrated above, the Planning Commission failed to adequately disclose, evaluate, and mitigate the Project's environmental impacts, resulting in a legally deficient CEQA document. The City Council must order the preparation of a proper EIR that addresses these inadequacies and circulate the EIR for public review to consider these critical issues. Thank you for your attention to these comments. Sinty, Tal inney, Esq., Of FINN Y ARNOLD LLP FinneyArnoldLLP Twenty -Eighth Floor 633 West Fifth Street Los Angeles, CA 90071 tfinney@falawyers.com C (310) 729-7266 sarnold@falawyers.com C (213) 718-3468 October 15, 2019 City of Tustin City Council 300 Centennial Way Tustin, CA 92780 HE CrE ri"V ED OCT 15 2019 TUSTIN RE: Opposition to Approval of Resolution 4385, Approving DR 2018-00026 and CUP 2018-00018, Costco Gas Station at 2541 & 2655 El Camino Real, in Tustin, CA Dear Sir or Madam: Further to our opposition comment letter that was submitted to the Tustin City Council yesterday, Protect Tustin Ranch offers additional comments contained herein on the application of a Class 32 categorical exemption for the Costco gasoline fueling station project at the address located above. Categorical exemptions represent classes of projects that have been found by the Secretary of the Natural Resources Agency to not have environmental impacts. For this reason, the California Supreme Court has determined that a deferential standard of review is appropriate when reviewing an agency's finding that a categorical exemption exists. The applicable standard of review is a 2 -prong test that seeks to determine: (1) does the project create any unusual circumstances for the local area; and (2) if unusual circumstances are created by the project, do the unusual circumstances impact the environment? According to this test, in order for the City of Tustin to win a challenge on its findings that a Class 32 categorical exemption exists, the Planning Commission must have found that no unusual circumstances will occur as a result of building the Costco gas station that will impact the environment. If such a determination was made, we believe that it was made in error. The building of the Costco gasoline fueling station will create unusual circumstances (as set forth below), and a fair argument exists that the building of this project will significantly impact the environment. For this reason the City of Tustin must order the preparation of a mitigated negative declaration, or the drafting of an environmental impact report that must be circulated for public comment. As the administrative record consists of well over 1,000 pages of materials, we have not ` yet been able to definitively determine whether the Planning Department expressly made that determination. However, given the fact that they approved Resolution 4385, which approved Tustin City Council October 15, 2019 r' Page 2 of 4 Conditional Use Permit 2018-00018 and Design Review 2018-00026, and given the fact that the Agenda Report, which recommended the adoption of Resolution 4385 refers to the application of a Class 32 categorical exemption to the project, we must assume for now that such a determination was affirmatively made. We believe this determination to be in error and that a mitigated negative declaration, or a full environmental impact report must be drafted and circulated for public comments, The Project Will Create Unusual Circumstances That Will Impact the Environment Five (5) unusual circumstances will exist as a result of the construction of the Costco gasoline fueling station project, all of which will impact the environment (thus, necessitating a mitigated negative declaration, or a full environmental impact report on the project): 1. This is a Costco gas station with 16 pumps. They will use a red/green light system, retractable bollards, and key fobs for payment to "help shorten lines of waiting customers." Customers must have a Costco card to access the pumps. This means the gas station isn't even for the neighborhood. Local residents will have to pay money to join a private club in order to access the gas station, and yet they will be forced to bear the brunt of the environmental impacts created by this project. Also, the developer clearly expects large crowds of idling vehicles, or they wouldn't implement these unusual crowd control measures. This provides air quality, traffic and noise issues that should be studied with an environmental impact report. 2. The demolition of the Goodyear Tire Center will present a special set of environmental impacts on its own. This site may easily contain oil, rubber resins and other toxic chemicals in the soil and inside the existing structure that will be disturbed at demolition, and during regrading of the soil. This will greatly impact the environment. For this reason, a mitigated negative declaration, or a full environmental impact report must be drafted in order to study these effects. Additionally, a 16 -pump gas station may result in oil, gasoline and other toxins being washed into the local soil and groundwater. This impact must be studied so that its impacts on the local area may be fully assessed and addressed. 3. The location of the four (4) islands with sixteen (16) pumps and the site configuration on the property will accommodate the fueling for 32 vehicles, with additional stacking of another 40 vehicles east of the pump islands. The project would alsoprovide a dedicated westbound right turn lane into the site at Auto Center Drive and EI Camino Real and restriping of EI Camino Real, THIS PROJECT IS HUGE. This is not a normal gas station. The point of analyzing "unusual circumstances" is not to compare this Costco gas station to other Costcogas stations in other locations (as the,developer did and the Planning Commission accepted). The point of analyzing the "unusual circumstances"; is to compare the effects of this Costco gas station on this local neighborhood prior to its construction versus after its construction. We posit that there is no way to effectively make this comparison without a full environmental impact report being drafted that is circulated to the public for comments. Tustin City Council October 15, 2019 Page 3 of 4 4. Vehicular queuing data was collected at other Costco gasoline fueling sites to determine the anticipated queues ,for the proposed station. Based on the comparable locations with 22 or more fueling positions, the average 95th percentile queue was 26 vehicles with the highest recorded queue at 35 vehicles. With 32 vehicles fueling at one time with the proposed. station and queuing for another 40 vehicles behind those fueling, a maximum of 72 vehicles can be accommodated without interfering with site operations. This is not normal for this local area. The Planning Commission abused its authority by casting a Class 32 categorical exemption over this project without properly and fully considering how this will affect the neighborhood. 5. As we noted in our first opposition letter, if queues should extend beyond the designated queue area, two (2), queue management plans have been included within the developer's traffic analysis. If queues cannot be adequately managed by the strategies shown in the plan, the northbound right tum into the parking aisle adjacent to the fuel station would be closed using retractable bollards to route customers to the next parking aisle to provide more queuing area prior to affecting street operations. In addition to the queue management plan, the City has stipulated that during peak demands, three (3) on-site traffic attendants will be present to guide and direct traffic when fueling. We noted in our letter that the bollards and traffic attendants would most likely be deployed AFTER the traffic back-up occurs. Imagine 72 vehicles idling and 16 pumps -a -pumping right next to a residential neighborhood - that doesn't even get the benefit of the gas station unless they pay a fee to Costco. This is a very significant impact that must be ? further studied. The Class 32 Exemption Does Not Apply to the Costco Gas Station Project The Class 32. categorical exemption (one of several categorical exemptions that are set forth in the CEQA guidelines) applies to small projects (of less than 5 acres), where the project is an "infill" project in urbanized areas (i.e., this is not a brownfield project). In our case the overall mall is about 12 acres, but the proposed construction site is just over 1 acre.. However, the Class 32 exemption will not apply where the project creates unusual circumstances that will impact the environment. As noted above, the building of the Costco gas station will profoundly affect traffic, air quality, noise, and perhaps other aspects of the local community's health, safety and welfare. Because there is a reasonable possibility of a significant effect on the environment due to the unusual circumstances created by this behemoth Costco gasoline fueling station, the exemption does not apply (14 Cal. Code Regs §1 5300.2(c)), and negative declaration must be prepared, or a full environmental impact report must be drafted and circulated for public comments. As demonstrated above, the Planning Commission failed to adequately disclose, evaluate, and mitigate the Project's environmental impacts, resulting in a legally deficient CEQA document. The City Council must order the preparation of a mitigated negative declaration, or the drafting of a proper environmental impact report that addresses these inadequacies, and the environmental impact report must be circulated for public review to consider these critical issues. Tustin City Council October 15, 2019 Page 4 of 4 In addition to the comments set forth above, and the comment letter submitted by Protect Tustin Ranch yesterday, please consider the comments of our expert contained in the attached letter from Swape, a company that is prepared to conduct air quality and greenhouse gas studies for us. Swape requests three . (3) weeks to conclude their studies and provide results. We are engaging additional experts to review the impacts to the environment that will be caused by the building of this project, but we are requesting additional time so that we can engage, the right expert and obtain proper testing and results. For the reasons set forth herein, we hereby request a reasonable amount of time to complete our review of these issues.. Thank you for your attention to these comments. SinqVely, hR Talinney, Esq., Of FIN ARNOLD LLP l -Y I S WA P E Technical Consultation, Data Analysis and Litigation Support for the Environment 2656 291h Street, Suite 201 Santa Monica, CA 90405 Matt Hagemann, P.G, C.Hg. (949) 887-9013 mhagemann@swape.com October 15, 2019 Tal Finney Finney Arnold LLP 633 W. 5th Street, 28th Floor Los Angeles, California 90071 Subject: Air Quality and Greenhouse Gas Report, Soil Conditions, Proposed Costco Facility, Tustin, California Dear Mr. Finney: We have reviewed the October 15, 2019 City of Tustin Agenda Report which includes an Air Quality and Greenhouse Gas report for a proposed Costco gasoline fueling station at 2541 EI Camino Real. The report, prepared by the Costco consultant on October 3, 2019 and included in the Agenda Report as Attachment R, include the results of air quality and greenhouse gas modeling to estimate project emissions. We intend to review the adequacy of the Air Quality and Greenhouse Gas report; however, we need a period of approximately three weeks to conduct our analysis and to conduct original modeling, if necessary. Additionally, a Phase I Environmental Site Assessment for the project site was completed on November 29, 2018; however, the Phase I was not available for our review. We need time to obtain and review the Phase I and to evaluate if soil and groundwater water sampling beneath the existing Goodyear Tire Center (which will be demolished) may be necessary to determine project impacts. Sincerely, Matt Hagemann, P.G., C.Hg. 1