19356962.6
DANA DEAN
COUNSEL
REAL ESTATE + ENVIRONMENT
DIRECT DIAL (925) 746-8482
DIRECT FAX (925) 746-8490
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February 18, 2023
VIA ELECTRONIC MAIL ONLY
Mayor Moy
City Council
City of Fairfield
1000 Webster Street
Fairfield, California, 94533
[email protected]
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Re: Appeal of Planning Commission's Decision on Minor Development Review and Use Permit No. 2021-02 for Edison RV Storage 490 Edison Court Hearing Date: February 21, 2023 Agenda Item: 15
Dear Honorable Mayor Moy and Honorable Councilmembers:
In response to the relevant staff report published on February 16, 2023 Hanson Bridgett LLP submits this comment letter on behalf of the appellant and applicant, StoragePRO, regarding its Appeal of the Planning Commission's decision on Minor Development Conditions of Approval and Use Permit No. 2021-02 for Edison Recreational Vehicle Storage 490 Edison Court (MD2021-011; UP2021-002; ER2021-009). StoragePRO filed an application for Minor Development Review, Conditional Use Permit, and Environmental Review on April 7, 2021.1 StoragePro is an industry leader in the running of clean, efficient, state-of-the-art storage solutions for communities such as Fairfield. After building and opening its modern personal property storage facility on Lopes Road that has demonstrated well Fairfield's commitment to attracting and maintaining excellent community amenities to Fairfield, Steve Mirabito, the owner and President, was excited to bring an RV storage operation of similar high quality to the property adjacent to the Lopes Road facility. Unfortunately, the process for permitting a simple
1 The City Council Staff Report claims that the appeal was submitted 15 business days after December 7, 2022. Between December 7, 2022 and December 29, 2022, City offices were closed on December 23rd and December 26th. Thus, the appeal was filed 14 business days after we first received the correct Planning Commission Resolution.
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modern RV Storage lot has proved frustrating and exceptionally burdensome and has served to discourage this project, and potentially others, from coming to fruition.
In order to address the problematic process and overreaching conditions imposed on the project, StoragePRO asks that the Council grant the appeal, and approve the Minor Development Conditions of Approval and Use Permit No. 2021-02 with the following burdensome conditions removed:
First and most challenging, Special Condition 1.1(c)(ii) requiring sig nage inviting customers to access to trash receptacles for the disposal of waste and debris generated offsite is unreasonable, in violation of Fairfield Municipal Code section 25.40.4.C, and goes far beyond what is required for other use permits, even for uses that are much more waste intensive. As such, we request that the Council remove this condition.
Second, StoragePRO appeals Condition 12 of the Conditions of Development requiring a trash enclosure in excess of the size needed for this project, a simple RV Storage lot.
Third, StoragePRO appeals Condition 3.7 of the Conditions of Approval and Section 9 of the Use Permit No. 2021-02, because it requires StoragePRO to indemnify the City fully for any claims arising out of this approval that would result from the potential hazards anticipated to result from Special Condition1.1(c)(ii).
As detailed in the appeal and further below, StoragePRO will be damaged by the unduly burdensome, arbitrarily imposed conditions for Use Permit No. 2021-02 and asks the City Council to remove these conditions.
Procedural History
On June 13, 2022 and June 20, 2022, the Zoning Administrator held public hearings on the Project and subsequently approved the Project, against the objections of StoragePRO to certain conditions. StoragePRO appealed these conditions to the Planning Commission.
The Planning Commission first heard the appeal on October 12, 2022. At hearing, the Commission modified the trash enclosure requirement but denied the request to remove the unreasonable and unprecedented sign requirement. On October 26, 2022, the Planning Commission held an improper second hearing and approved the modified Minor Development Conditions of Approval, which still included the burdensome sign requirement. After that, StoragePRO received no notice of action at all until, after repeated requests, a copy of the Planning Commission resolution was forwarded to the Applicant on December 7, 2022.
StoragePRO promptly filed an appeal to the City Council on December 29, 2022.
A. The Condition Requiring Signage Inviting Customers to Dispose of Waste and Debris on the Site Should be Removed Because it is Overly Burdensome, is Not Required of Other Uses, and Will Harm StoragePRO Special Condition 1.1(c)(ii) of the Conditions of Approval, which requires StoragePRO to provide "[s]ignage stating tenants/customers have access to trash receptacles/carts for the disposal of minor waste and debris," adversely affects StoragePRO because it is disproportional to the land use intensity of the project. While this condition has been characterized as necessary to this one particular project, the City has provided no evidence to support this claim , or any claim that
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without the condition the project will be detrimental to the general welfare of the greater community. Rather, for the reasons stated in StoragePRO's appeal, this condition creates a potential nuisance and actually makes efforts to maintain a clean, safe, and secure storage environment far more challenging.
When conducting minor development review to allow storage in the limited industrial zone, the City is only allowed to impose reasonable conditions on the project.2 The Planning Commission erred by imposing unreasonable conditions on the project, which are damaging to the project.
This is because Special Condition 1.1(c)(ii) invites and directs disposal of waste both unrelated to operations on site and unpermitted on site, such as hazardous waste. Indeed, the Project permitting only allows RV storage, and expressly prohibits such things as vehicle maintenance or cleaning on site, which will be encouraged by the signage the City insists is necessary for only this site and only this project. Moreover, the Special Condition contradicts RV storage best practices, StoragePRO's business plan, industry rental agreements, and house rules. The condition is thus inconsistent with the permit itself and all norms for this type of project.
Because very little waste is generated as result of the permitted use, simple recreational vehicle storage, the Special Condition goes well beyond requiring containers for solid waste generated as a result of the patronization of such establishments. (Fairfield Municipal Code section 9.230.) Since the property is only to be used for storage of recreational vehicles, requiring signage that encourages waste disposal puts StoragePRO at risk of violating the prohibition against the release of hazardous materials.3 The Special Condition burdens the owner with a privately managed and financed garbage disposal place for its customers, effectively making StoragePRO a free collection agent who must accept liability for hazardous materials.
The City Council Staff Report claims that these conditions are necessary to ensure that waste is not left uncontained on the project site and littered onto adjacent properties or the public right of way. However, the Staff Report fails to provide any evidence that RV storage poses any more risk of uncontained waste or litter than all the other types of uses that have not been required to maintain a similar obligation.
Indeed, Special Condition1.1(c)(ii) is unreasonable and extraordinary, as shown in the way it is arbitrarily imposed on this particular permit. At hearing, the Planning Commission was advised that the condition is essentially standard. As demonstrated by this City's own approval of other more intense uses, that assertion is not correct. Other businesses in the City, including those approved by the Planning Commission during the same time period, are not required to display signs containing this language. Of the seven use permits granted by the Planning Commission in 2022 and 2023, six contained Public Works' boilerplate conditions of approval for waste disposal. Importantly, these use permits authorize uses with much higher waste generation than could ever be expected of RV storage, , including restaurant uses (the Dutch Bros., Drive Thru Restaurant, and North Texas Street Hotel and Drive-Through Restaurant) which inherently produce waste for every customer and have exponentially more customer traffic than a simple RV storage use. Additionally, use permits for CarMax Phase II Industrial Center, and Aviatrix
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were approved without special conditions to address waste generated.4 In sum, it was plainly determined by the City that these far more intense uses do not require this special condition, but the simple RV storage does. Both cannot be true.
The Planning Commission erred in adopting Special Condition 1.1(c)(ii) because it is unreasonable, arbitrarily applied, goes above and beyond what the Municipal Code requires, and demands that StoragePRO bear a disproportionate burden by handling waste not created by onsite permitted uses and accepting liability for potential hazardous waste. Accordingly, the City Council should remove Special Condition 1.1(c)(ii) from the Conditions of Approval.
B. The Condition Granting The Public Works Department Final Design, Verbiage, and Placement of the Sign is Ambiguous and Burdensome Special Condition 1.1 c) provides that "[f]inal design, verbiage, and placement location [of the waste management signage] shall be subject to the review and approval of the Public Works Department.” The condition improperly defers development of critical details about the sign.
The location and content of the sign is subject to the later "review and approval of the Public Works Department" after the use permit is issued, with no particular constraints on location.
Under these circumstances, the standard is ambiguous, improperly deferred, and, frankly, unfair. In addition, it leaves open the possibility that the appellant will be required to have signage visible to the general public located off-site and thus encourage the public to come onto the property and dispose waste of all types. This substantially increases the already excessive risk borne by StoragePRO in connection with its use of the site as created by these conditions.
Because this condition grants undue discretion to the Public Works Department, and leaves the requirements for the condition uncertain and ambiguous, the City Council should remove it.
C. Coupled With the Signage Requirement, the Indemnity Provision is Overbroad, and the City Should Share Liability
Given the broad generality of the indemnity included under the Conditions of Approval and Use Permit No. 2021-02, it is unreasonable to require StoragePRO to assume the risks inherent in providing the required signage. The generality of the indemnity required of StoragePRO in connection with Use Permit No. 2021-02 exacerbates the risk to StoragePRO. This indemnity, stated in Section 3.7 of the Conditions of Approval and Section 9 of Use Permit No. 2021-02, requires StoragePRO to "indemnify, defend and hold harmless the City…from and against any and all claims, actions, lawsuits, damages, losses and liabilities arising or resulting from the granting of this permit by the City, the performance of the use authorized by this permit or the exercise of the rights granted by this permit." This provision also requires StoragePRO to pay all amounts incurred by the City in defense of the City in connection with an action brought against it regarding the subject of the indemnity. To the extent that the risk of claims and litigation is increased as a result of the City's arbitrarily imposed and unnecessary requirement to direct and invite disposal of waste on site, it is unreasonable to require StoragePRO to bear this risk as part of its indemnity obligations to the City.
4 During this period, only Storquest Self Storage, an indoor personal property storage facility, was subject to similar conditions. This occurred even though no such conditions were imposed with prior storage facilities permits, including for the facility adjacent to this project.
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Thus, if Special Condition 1.1(c)(ii) is retained, StoragePRO requests that the indemnification contained in Section 3.7 of the Conditions of Approval and Section 9 of Use Permit No. 2021-02 is revised to require the City to accept joint and several liability for any claims arising out of the disposal of hazardous waste on the site.
D. The Requirement to Provide 13 Foot by 8 Foot Enclosure Imposes an Excessive Burden on StoragePRO and Should Be Removed
The Planning Commission reduced the trash enclosure size because the initial enclosure size for "Office, Retail, Industrial, and General Commercial" uses over 20,000 square feet was beyond the project scope. However, Condition 12 of the Conditions of Development requiring a 13 foot by 8 foot enclosure is still without sufficient, relevant basis and overburdens StoragePRO. StoragePRO submitted evidence demonstrating that the City's estimates of waste generation are unreasonable and unrelated to the actual use of the site. For additional evidence of StoragePRO's weekly garbage generation, see photographs of garbage collection from a week in January where both carts are 20 gallon and only partially full. (Exhibit A.) The City Council should remove the requirement for a trash enclosure because waste is not generated by the customers of this recreational vehicle storage project on-site. As a result, only a cart is required, and the cart can be stored indoors, so no enclosure is necessary.
F. The Use Permit Should Begin on the Date of the City Council's Decision The effective date of the Use Permit received from the City on December 7, 2022, was backdated to August 1, 2022, which was well before the planning commission even heard the matter. However, there is still no final decision on the permit. The permit should run from the date of the final decision of the decision-maker, which would be the date that the City Council rules on this appeal. By backdating the permit, StoragePRO would be deprived of six months of its permit period, which is twenty-four months in total.
G. The Appeal Was Timely
Staff recommends denying the appeal on the sole basis that it is untimely. However, the Staff Report admits that there is no explicit timeframe for providing written notice of the commission's decision or the associated resolution. Staff also admits that there was a procedural error during the Planning Commission hearing, providing grounds for the appeal to be heard. StoragePRO filed its appeal within 14 business days of the date that it received the correct signed and executed resolution. As a result, the appeal's timeliness is not grounds for denial.
H. Conclusion
The appellant is committed to creating and operating modern, high-quality projects and to do so in Fairfield. We respectfully ask that the City Council support this effort by removing the burdensome obstacles to this project by granting our appeal.
Very truly yours,
Dana Dean
Honorable Mayor Moy and City Council
February 18, 2023
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Exhibit A