April 19, 2022
Subject: Public Comment on the Closed Session Conference with Legal Counsel Regarding Letter from Robert Shaffer, General Counsel for Security Paving Company, Inc.
Dated February 22, 2022
Closed Session Date: April 19, 2022
Dear Mayor Perotte, Mayor Pro Tempore Kasdin, Councilmember Aceves, Councilmember Kyriaco, and Councilmember Richards:
Please consider the comments and requests below when discussing the subject letter from M r. Robert Shaffer during the closed session.
Comments on the February 22, 2022 Letter from Mr. Shaffer:
Mr. Shaffer begins by citing Goleta Municipal Code (GMC) section 17.52.100(B) and then concludes that “The City determined that each of these requirements were met, as detailed in its proposed Findings of Approval.” Despite Mr. Shaffer’s assertion, and as detailed in my comment letter dated February 14, 2022 (attached for your convenience), many of these findings cannot be made.
I object to Mr. Shaffer’s characterization of me; I am neither angry nor dissatisfied and have only tried to serve the City since I first volunteered on the Grants Request Review Committee more than five years ago.
Furthermore, I wish to note that City Staff work hard to serve our City and they should be supported and encouraged as the majority of their work is l audable. There are some topics (this project being one of them) on which I disagree with staff’s judgement, and as a resident, I have voiced my informed opinion since leaving my position as Staff in favor of a promotional opportunity.
Mr. Shaffer is correct that GMC section 17.01.040(E)(1) - Previously Approved Projects Under Construction provides that: “Any structure for which a building permit has been issued prior to adoption of this Title may be built in accordance with the approved zoning and building permits …” Security Paving is (currently) entitled to construct the project per the approved plans. The problem is that they wish to construct the project differently from the approved plans – hence the request for approval of a SCD. In other words, none of this discussion would occur if Security Paving were to construct the project per the approved plans. Staff informed Security Paving of this option when the error in the wall’s construction was first identified; Security Paving thus far has chosen a diff erent route. This issue also repeats throughout Mr.
Shaffer’s letter.
Mr. Shaffer is also correct that the approved Development Plan needs to conform to the ordinance requirements effective when the project was approved by the City on October 24, 2011. However, the proposed project – the SCD – is new. The City officially received the application for the SCD this calendar year, in early January 2022. The SCD is subject to all Title 17 requirements, which is how all SCDs applications received since Title 17 b ecame effective in April 2020 have been processed. This issue also repeats throughout Mr. Shaffer’s letter.
The discussion on Page 3 of Mr. Shaffer’s letter regarding standing to appeal a decision on the SCD is laughable. By this logic, to appeal a decision on a SCD for a Development Plan that was originally approved
in 1972 (of which many projects in the City of Goleta were approved in the 1960s and 1970s) would require that an interested party that objects to a proposed SCD on procedural grounds have attended a hearing held by the County of Santa Barbara 50 years ago. In such an absurd scenario, the only people that could have standing to appeal a decision would typically be 70-80 years old, assuming anyone can find a record of a public speaker.
Also on Page 3, Mr. Shaffer states there is no condition of approval requiring a 50 -foot setback from the creek as identified in Coastal Development Permit 4-15-0692. Herein, Mr. Shaffer conveniently omits the fact that the approved plans clearly identify (in text as well as in callouts on the Site Plan , if memory serves) that a 50-foot setback from ESHA is required both along the western property boundary (Old San Jose Creek) and the northern property boundary (ES HA that was illegally removed by the northern property owner). I believe there are additional references to a 50 -foot setback from the Coastal Commission approval, but Staff will have to identify these as I no longer have access to the plans and documents.
This is a question for the City Attorney ’s Office: On page 4, Mr. Shaffe r writes “There were no findings approved by the [Coastal] Commission for this project …”. GMC Section 17.52.100(B)(2)(a) requires the Director to find that “The findings required for the original approval must be re -made.” If there are no Findings for the original approval from the Coastal Commission – the entity with Review Authority for the original Development Plan – how can they be remade? Or, is the requirement in 17.52.100(B)(2)(a) automatically met because there are no findings ? The Findings provided by Staff for the SCD do not address this question, nor do they specifically state what Findings were originally adopted on a point-by- point basis (one would have to look at the original, 2011 documentation, which was not attached to the SCD). Additionally, and as mentioned my February 14, 2022 comment letter, a Staff Report to discuss any background material was not provided.
Mr. Shaffer concludes that “The City has continually delayed this project for nearly 3 years from obtaining a Certificate of Occupancy since the City assigned our project in May 2019 to Chr is Noddings.” Herein, I would like to clarify some facts:
A. The project was never assigned to me. Ms. Lisa Prasse was always the lead planner on this project and I followed her direction to support the effort. At one point (early in 2018), I thought I was the assigned case planner but I was later informed by my supervisor that this was not correct and never had been.
B. While the City ’s process has not been perfect (and admittedly was further hampered by taking nearly two years to fill a vacant Associate Planner position in a Division that is supposed to be funded by permit fees, during a time when permit applications increased significantly), the majority of the delay in obtaining a Final Certificate of Occupancy is due to Security Paving’s failure to act. For example, in a meeting with Security Paving in September 2019, the City’s Public Works Department requested both As-Built Plans as well as an As-Built overlay. In early 2020, Ms. Gelare Macon informed Staff that this was nearly completed. However, the As -Built overlay was not submitted to Staff until October 2020, more than a year after it was initially requested. This initial version was also highly flawed, which took significant additional staff time to review. After initially stating tha t this was the best overlay that could be provided, Security Paving subsequently reversed course and provided an updated version that was acceptable to the City’s Public Works
Department in March 2021 – approximately 18 months after the As -Built Overlay was initially requested.
C. The intervention by the Santa Barbara County Superior Court in 2017 was prior to my time as Staff at the City of Goleta; I started in February 2018. The Court’s intervention was also prior to Security Paving’s involvement in the project, which roughly began in the spring of 2018.
Mr. Shaffer also concludes that “Currently, SPC cannot operate the site and is losing money on a daily basis.” It seems to me that this should be written as “…cannot legally operate the site…” as they have indeed continued to operate, as evidenced by the numerous violations documented by the City, the Santa Barbara County Air Pollution Control District, and myself (refer to Parts E and I of my February 14, 2022 comment letter).
I think it is particularly interested that Mr. Shaffer does not comment on the many, lengthy, ongoing violations in his letter.
Requests:
1. Follow established policy, regulations, and procedures. Likewise, direct staff to do the same. My February 14, 2022 comment letter identifies numerous procedural errors, including failure to require a complete application (e.g., A Biological Study was not received), failure to implement Title 17 requirement s regarding ESHA setbacks, attempting to hide the purpose of the SCD (approving the relocation of the project) by “acknowledging” As-Built de velopments without analysis thereof, lack of a Staff Report, and blatant use of statements of fact without support for the Findings.
2. Please also direct Staff to utilize GovDelivery to notify the public of Director Decisions ; this is an issue that is broader than the Security Paving SCD . Thousands of people have registered their email addresses to be notified, and despite providing this comment in my February 14, 2022 comment letter, two additional SCDs have been posted on the City ’s website that were not also Noticed via this readily-available email platform.
3. Direct Staff to proceed with Administrative Citations, not only for failure to resolve the ongoing violations but also for allowing the violations to continue to grow, as documented by City Staff, the Santa Barbara County Air Pollution Control District, and myself (refer to Parts E and I of my February 14, 2022 comment letter).
4. Seriously consider revoking the existing permit, pursuant to 17.52.110, Revocation of Approval, and the Conditions of Approval for the original project . Even if this action is not taken, it should be made clear to Security Paving that this is indeed an option available to the City. a. Section 17.52.110(C) lists two circumstances under which a project may be revoked.
Although only one circumstance needs to be met, in this case, both are:
i. “The approval was obtained by means of fraud or misrepresentation of a material fact.” It is well known that the original , 2011 approval was based on misrepresentation of the location of the ESHA associated with Old San Jose Creek.
Figure 3 of the Revised Restoration Plan , which was prepared and submitted by
the Applicant, demonstrates this; in one location, the ESHA boundary is off by more than 50 feet . Accordingly, this circumstance is met. See my February 14, 2022 comment letter for additional information.
ii. “There is or has been a violation of or failure to observe the terms or conditions of the permit or approval, or the use has been conducted in violation of the provisions of this Title or other applicable law. ” The APCD has concluded that Security Paving has “willfully” violated APCD rules. City Staff, and the massive pile of raw concrete and asphalt to be crushed that exists onsite (as documented in my previous comment letter) are further proof of this.
b. Every City approval associated with this project, including the Planning Commission’s approval in 2011, the 2017 LUP, and 18 -136-SCD-LUP, included a Condition that the approval is based on accurate information provided by the Applicant. As discussed above and detailed in my previous comment letter, this Condition has not been met.
5. Lastly, despite asking staff to notify me of any updates for the Security Paving project as an interested party, I received no update about this Closed Session item. I expect that none of the other organizations that submitted comments on the proposed SCD were notified either. This reflects a continuing, broader trend related to public notification that I hope the City Council will address.
Thank you for your time and consideration.
Respectfully,
Chris Noddings
City of Goleta Resident
February 13, 2022
Subject: Public Comment on Case Number 22-0001-SCD for Security Paving City of Goleta Planning and Environmental Review Director Decision Decision Date: February 14, 2022
Dear Director Imhof:
I am writing to provide comments on the subject project for your consideration.
Under different circumstances (e.g., if ESHA were not located on or near the property, the project was not controversial, and the changes were smaller, such as not relocating the project more than 10% closer to a property line), the proposed project changes as shown in the As-Built Plan could be considered minor. In such a circumstance, issuance of a SCD would be an appropriate course of action.
Title 17 requirements for a SCD are clear, and unfortunately, this project does not meet any of these criteria as shown in the detailed analysis below.
Staff are given tremendous discretion on day-to-day implementation of the City’s adopted policies (e.g., CE 2.2) and Municipal Code. The fact that Staff attempted to process this project in this manner – with an “acknowledgement” of the As-Built Plan (and no analysis thereof), preparing unjustified Findings (that cannot be made), and with egregious errors in Noticing the proposed project – is deeply concerning. This also raises questions about the manner in which Staff are processing other proposed projects and zoning violations.
While I am grateful that the decision to approve the SCD on Monday has been cancelled, it is also concerning that no indication has been provided thus far that approval of a Major Conditional Use Permit will be required if the proposed project is not significantly changed. When moving forward, the applicant must be required to either request a Major Conditional Use Permit (per 17.30.070) or modify the project such that this is no longer applicable. If the project remains largely unchanged and a Major Conditional Use Permit is not deemed necessary, solid justification must be provided (e.g., in the accompanying Zoning Analysis) for doing so.
Additionally, there are several existing zoning violations on the property that staff have allowed to not only persist but also grow. These must be addressed immediately. The applicant has delayed this permitting process for years while continuing to operate as if the project was complete. Given the issues raised herein, it is not clear how the applicant will choose to move forward and there is a significant risk that the existing, unpermitted, massive stockpile will remain in place for a long time to come. If this happened, it could ultimately be up to the City to remove the stockpile at significant cost.
Last, I believe the potential to rescind the existing permit must be considered. Every approval associated with this project, including the Planning Commission’s approval in 2011, the 2017 LUP, and 18-136-SCD-LUP, included a Condition that the approval is based on accurate information provided by the Applicant. Since the last LUP was issued, staff have determined (and Figure 3 of the Revised Restoration Plan shows) that the 2010 Biological Report showed a wildly inaccurate ESHA boundary. As noted in more detail below, in one location, the boundary is off by more than 50 feet. Given the
incorrect information, the many other problems with this project, and the applicant’s refusal to postpone commencing operations until a Final Certificate of Occupancy is granted, the possibility of rescinding the existing permit should be seriously considered.
Respectfully,
Chris Noddings
City of Goleta Resident
Part A: Comments on the As-Built Plan and Permit Process
1. One of the standard Conditions of Approval is that projects be constructed per the approved plans, and that any deviations therefrom (e.g., the As-Built Plan) shall be subject to further permit processes. As such, all project components, including all changes shown on the As-Built Site Plan, must be described and analyzed consistent with Title 17 requirements as well as past practice (e.g., Hollipat Permanent Parking Lot). Components include, but are not necessarily limited to, the following:
a. The retaining wall, V-ditch, and chain link fence along the western property boundary.
As shown on the As-Built Site Plan, the retaining wall is precisely built where the chain link fence is supposed to be, and other features (V-ditch, chain link fence) are built precisely 10 feet further west of where they are supposed to be located. Relocating these features, and expanding the large stockpiles located behind the retaining wall – must be analyzed consistent with General Plan policies and Title 17 requirements.
b. All development that has moved closer to ESHA within the 100-foot SPA, with special attention given to any development that has been moved into the 50-foot setback from ESHA required by the California Coastal Commission. This includes, but is not necessarily limited to, the parking area, east-west V-ditch along the northern property line, and a portion of the basin to the east of the parking area.
c. The overflow swale from the retention basin to the northern property line. This has been added as a new project feature going through former ESHA and therefore represents development within ESHA. The fact that the ESHA was previously and illegally removed by the property owner to the north has no bearing on the matter as the definition of ESHA includes “any area that has been previously designated [as ESHA].”
2. Given that the above components are all considered “development” (per the Title 17 definition of “development”) and have been relocated closer to ESHA within the 100-foot SPA for ESHA (some within the ESHA itself), all requirements from Chapter 17.30 of the GMC apply. This includes a Bio Study consistent with GMC Section 17.30.030 and a Major Conditional Use Permit consistent with GMC Section 17.30.070.
3. The changes to the existing Development Plan proposed represent a new project, received in 2022. Furthermore, none of the Project Vesting allowances under GMC Section 17.01.040(E) apply to these proposed changes. Consistent with Title 17 requirements, and as implemented by the City for multiple other projects (e.g., the Hollipat Permanent Parking Lot is one such project), any proposed changes must comply with Title 17 requirements despite approval of original Development Plan prior to Title 17 going into effect.
4. The proposed changes on the As-Built Plan show development within 25 feet of ESHA as it existing in 2019 (refer to Revised Restoration Plan Figure 3). Given comments above, comments submitted by the Audubon Society, anticipated vegetation growth since 2019, Title 17 requirements (Chapter 17.30), and General Plan Policy (CE 2.2), it is unclear how these proposed
changes within 25 feet of ESHA (as it exists today) can be approved even if a Major Conditional Use Permit is granted.
Part B: Comments on the Project Description
5. Regarding the changes proposed in the As-Built Site Plan, the project description in the SCD states, “These locations do not fully align with the original City approvals, given the initial site plan inaccuracies, site plan and project changes made at the California Coastal Commission level, and discrepancies that occurred during construction.” This statement requires further justification as it is both inaccurate and misleading. Given Staff’s awareness of the project’s history, and internal discussions, I believe this is intentional to downplay the nature of the proposed changes. For example:
a. What “initial site plan inaccuracies” are being referenced? The original architect for the entitled plans used a different coordinate system than was used by Security Paving’s licensed surveyors, which made initial efforts to provide an As-Built Overlay difficult.
The Security Paving Team, however, was able to resolve this discrepancy and prepare the proposed As-Built Site Plan that has been accepted by the City’s Public Works Department as (sufficiently) accurate.
b. While the original City approvals (from 2011 by the Planning Commission) were indeed heavily modified by the Coastal Commission’s site plan, which heavily reconfigured the site and was approved in 2014, the As-Built site plan is overlaid on the site plan for the 2017 LUP that was issued to effectuate the Coastal Commission’s approval. While the Coastal Commission’s site reconfiguration does have implications for various Conditions of Approval, it has no bearing on the fact that the site was constructed incorrectly.
Suggesting that the changes in the As-Built Plan are needed because of “project changes made at the California Coastal Commission level” is completely misleading and inaccurate.
c. Regarding the As-Built location of the retention wall and (other features built incorrectly) as shown in the As-Built Site Plan:
Based on discussions with the applicant, staff concluded that the licensed surveyors hired by the applicant misread the site plans given the unusual symbology utilized for the line work (e.g., the chain link fence is a thick, dashed, gray line and the concrete gravity wall is shown as “adjacent to stock pile”). Given the callouts and details provided in the site plan (shown below), however, the approved site plan makes it is clear where the wall was supposed to be located despite the unusual symbology. Accordingly, describing the relocation of project components into ESHA and SPA as a “discrepancy during construction” is dubious, at best.
This callout at the northern end of the project clearly identifies the location of the stockpile and retaining wall, with a reference to the site detail in the upper- left hand corner of the same sheet:
These callouts along the western property boundary clearly identify the retaining wall, chain link fence (twice), and V-ditch:
This detail inset clearly shows the retaining wall to the east and south of the V- ditch and chain-link fence:
The chain link fence was always planned to reach the corner of the property shown below. Even if the surveyors had missed all of the above, they should have realized that the thick, gray, dashed line representing the chain link fence could not be the wall because constructing the wall in this manner would close off the required secondary fire access road.
Part C: Comments on the Findings
As detailed below, the Findings attached to the SCD do not meet the most basic requirements. It is shocking that Staff would attempt to approve a project that have these issues.
6. Despite “recognizing” the As-Built Site Plan in the project description, the As-Built site plan is never mentioned in the Findings.
7. Finding 1.4:
a. This Finding requires that “The location [of the project] must not be moved more than 10 percent closer to a property line than the originally approved Permit or Plan.” The northern portion of the retaining wall, and the large stockpile behind the wall, was supposed to be 20 feet from the nearest property line to the west. Moving the retaining wall and stockpile 10 feet to the west thereby moves a portion of the project 10 feet to the west, resulting in moving the project 50% closer to a property line. Other project features (e.g., the V-ditch and chain link fence) are moved even more than 50% closer to the property line. This finding cannot be made.
When I identified the above issues to the City’s Current Planning Manager prior to accepting an offer of a promotion at another jurisdiction, she agreed with my assessment. Why, then, did Staff choose to attempt to approve this project with a SCD?
b. Furthermore, regarding the revised location of the Restoration Plan (as addressed in the Finding):
i. Text inaccurately indicates total restoration area would be increased, stating “... while also adding habitat to an area located along the northern property line...” instead of providing “an equivalent amount of habitat restoration, as intended with the original approval,” as used in Finding 2.1. This language in Finding 1.4 makes the proposed revisions to the Restoration Plan appear better than they are.
ii. The Finding requires that the revised location be consistent with the original approval as it was “originally intended.” It is very clear that the approvals by the City’s Planning Commission and the Coastal Commission were based on the SPA
being restored within 25-50 feet of the existing ESHA within Old San Jose Creek.
The proposed revision would locate part of the restored area further away from this corridor. The analysis does not address this fact or state how it is consistent with the intent of the original approval.
8. Finding 1.5 regarding public controversy:
The text simply repeats of the finding verbatim; no supporting evidence to justify making the finding is provided. All Planners know that Findings must be justified, and City Staff did not attempt to justify this finding. That staff attempted to approve this project via a SCD, especially given the facts below (all of which are known to Staff) is appalling.
California Coastal Commission Staff recommended that the Coastal Commission deny the project. To make this Finding required to approve a SCD, City Staff must address this issue. The Finding must have described why Coastal Commission Staff recommended denying the project (and attached the Commission’s Staff Report for f ull details) and explained why that recommendation did not amount to “controversy” in the past and would not create controversy now.
Furthermore, proposed projects that have less than a 100-foot SPA are known to staff as being controversial. Heritage Ridge, in the opposite side of the railroad tracks and with only a very small portion of the project within the 100-foot SPA, was held up for months (possibly years - I don't know current status) because of a request for a minor SPA reduction. As described ab ove, the proposed project is partially within ESHA, is largely within the minimum 25 -foot SPA setback, and almost entirely within the 100 -foot SPA.
While Staff have decided that public comments submitted to date generate sufficient public controversy to prevent this Finding from being made, it remains unclear how Staff could have ever justified that there was no reason “to believe the [project] is likely to create substantial public controversy.”
Finally, as noted in the Zoning Violation section below, th e applicant has flagrantly disregarded requirements not to bring new material onto the site and not to operate the crushing machinery . It is unclear how this was not expected to generate public controversy.
9. Finding 2.1 regarding re-making the Findings for the original approval:
a. The text acknowledges the “various survey and site plan discrepancies [that] have come to light” and does not acknowledge the fact that the retention wall was built where the chain link fence was supposed to be located, or that everything originally planned to be west of the retention wall was subsequently shifted further west (and into the SPA and ESHA itself).
b. Per above, the intent was to require a minimum of a 25-foot SPA setback, consistent with the minimum requirements of the General Plan. This is no longer proposed. Moreover, Staff are now aware that the 2010 Dudek study was highly flawed; as shown on Restoration Plan Figure 3, the discrepancy between the ESHA boundary as determined by
the 2010 Dudek Survey and a 2010 aerial is a minimum of 12 feet, typically 20 -25 feet, and (at the southern end of the project) over 50 feet.
Accordingly, it is impossible to justify the statement that "the revised project meets the intent of what was to occur on the property and can be found consistent with the original approval” as the intent was to provide a minimum 25-foot upland SPA buffer.
10. Finding 2.2, that “ The change does not conflict with project conditions of approval… and the change can be effectuated through existing permit conditions” cannot be made for reasons outlined above. The project no longer provides the 25 -foot minimum SPA (let alone 50 feet required by the Coastal Commission). Furthermore, the revised restoration plan is not consistent with the original Conditions of Approval that required all work to be immediately adjacent (within the first 25 feet of) the ESHA.
11. Finding 2.3 regarding proposed changes being consistent with the previous environmental impact analysis:
The project analyzed in the MND had a 25-foot SPA that was to be measured from what was later discovered to be a flawed edge of riparian canopy from Dudek's 2010 Bio Study. The analysis in the MND was provided based on a good-faith assumption that the bio study was accurate and that at least 25 feet of SPA would be provided. Related, the MND did not analyze the significant impact associated with not complying with General Plan requirements (e.g., CE
2.2, which requires a minimum of a 25-foot SPA). This project is not consistent with the original analysis and the Finding cannot be made. Indeed, to make the Finding, it would have to be demonstrated that the MND analyzed the use of a less-than-25 foot SPA and that it was approved as such by both the Planning Commission and Coastal Commission. Clearly, the proposed change would result in the need for additional mitigation measures.
The finding’s text regarding CEQA also does not address the As-Built Plan:
"A Mitigated Negative Declaration (11-MND-02) was prepared for the original development plan and a Categorical Exemption was issued for previously approved SCD (Case No. 18-136-SCD). As the change to the restoration plan does not results [sic] in changes to previously identified impacts, nor result in any new significant impacts, and since the changes to the project are considered minor, the previous CEQA findings can be re-made and an exemption for the revised project would be the appropriate environmental documentation. The City of Goleta, as the lead agency for this project, has found the revisions to the habitat restoration plan to be exempt from CEQA and a Notice of Exemption can be issued by the Director. Specifically, the project is categorically exempt from environmental review pursuant to CEQA Guidelines Section 15333 (Small Habitat Restoration Project. The project is less than 5 acres in size for the purpose of restoration and enhancement of wildlife and streamside protection."
12. Common Findings, required per GMC Section 17.52.070, are missing entirely. This Section of the GMC states “The Review Authority must make affirmative findings of fact as required by this Title for any approval of new development...". No such findings are provided.
a. Finding 2 states “The proposed project conforms to the applicable regulations of this Title...". Given all of the above, which include moving the project more than 10% closer to the property line and development within the ESHA itself, this finding cannot be made. b. Finding 2 also states "...and any zoning violation enforcement on the subject premises has been resolved as permitted by law." This finding cannot be made – see the discussion regarding ongoing Zoning Violations below.
c. Finding 4, that "The development is within the project description of an adopted or certified CEQA document or is statutorily or categorically exempt from CEQA," also suffers from the same issues identified above and cannot be made.
Part D: Comments on the Restoration Plan
13. Figure 3: In and around the "Southern Extension," the figure shows that the boundary of the 2010 riparian canopy (ESHA, as represented by a solid red line) has been reduced when compared to the most recent survey performed in 2019 (as represented by a solid orange line) . The project's Conditions of Approval require that any riparian habitat inadvertently removed must be mitigated. This must be added to the Zoning Violations listed below and mitigation must be provided.
14. The Restoration Plan already has an “Approved” stamp on it. Given that the SCD is to approve the Revised Restoration Plan, this is pre-decisional and wholly inappropriate.
15. Furthermore, the “Electronic Certification Stamp” has not been included to certify the approval, which is inconsistent with Current Planning approval procedures. I had thought this might be intentional, but per an email chain forwarded by Ms. Prasse, it is clear that the intention is for the Revised Restoration Plan to be approved. This stamp must be marked as rescinded immediately.
Part E: Comments on the Ongoing Zoning Violations
Numerous violations of the existing permit and/or zoning code are known to City Staff. These include the items below. It should be noted that a review of project materials ( electronic and written notes at City Hall, emails, etc.) may reveal additional violations known to City Staff that have been similarly disregarded.
16. Given the required Findings that there are no zoning violations on the property, the issues identified below should have been investigated by Staff and resolved prior to publicly releasing the proposed SCD. Staff should explain why this was not done.
17. The As-Built Plan shows that a portion of the chain link fence in the northwestern corner has been constructed on neighboring property (APN 071-190-018). I believe this property is owned by the City of Santa Barbara. Have they been notified of the error?
18. Security Paving is using the trash and recycling enclosure as office space. This is an unpermitted Change of U se. City Staff have discussed the violation with the applicant’s team and chosen to disregard it, deciding that they (Staff) would pretend that the applicant had resolved the situation without verification or follow-up inspections to ensure the violation did not subsequently return.
This is particularly relevant given that the Coastal Commission’s approval removed all office space proposed in the site plan approved by the City’s Planning Commission in 2011.
19. Maintaining the stockpile at an angle of repose greater than what is allowed in the permit. This was included in at least one Notice of Violation issued by the City. While it may have been corrected after the NOV was issued, based on the photographs shown below, it appears the angle of repose is once again too great.
20. Given the proximity to the airport and to ensure airport safety , the stockpile is not allowed to exceed a specific height. If memory serves, the maximum height allowed is roughly 28 to 34 feet.
I had asked Staff to provide a copy of the pe rmit, Conditions of Approval, and/or report the maximum height allowed so that I could verify the specific maximum height allowed, but Staff refused to provide this information in a timely manner without explanation; this is discussed further below. Regardless, based on a site visit to the eastern end of Placencia Street and Corta Street, the existing pile appears to be taller than the adjacent, ~35 -foot-tall trees. As such, I believe the existing stockpile is taller than the maximum allowed.
21. Security Paving has continually brought new, raw material (asphalt and concrete rubble) onto the site without the benefit of a permit. City Staff have discussed this issue with the Security Paving team countless times between 2018 (when Security Paving assumed responsibility for the project) and my departure from the City in September 2021. For example, the City's Building Official observed the applicant receiving raw material during a typical inspection (at which time the applicant was reminded of this requirement) . We discussed this issue before and after issuance of the 18-136-SCD-LUP, which gave a one-time authorization to crush the raw material that was on the site and included a Condition of Approval prohibiting the receipt of new material to ensure this activity did not continue. Security Paving agreed to the Condition but did not stop bringing new material onto the site. Subsequently, the City issued two Notices of Violation (dates:
11/19/2020 and 1/19/2021).
After receiving the first NOV, Mr. John Gasparo called to discuss the situation with me and stated that Security Paving had not stopped bringing new material onto the site in part because they thought the ongoing permit situation (e.g., the Wall and Restoration Plan) would be resolved before anyone noticed.
Despite all of the above, Security Paving continues receive new material: on February 7, 2022, Mr.
Glenn Gazdecki inspected the site and observed Security Paving receiving new material.
Furthermore, the APCD has also issued a NOV (#12825, dated August 26, 2021) because Security Paving was caught crushing materials without a Permit to Operate from the APCD (or a Final Certificate of Occupancy from the City of Goleta). Despite this and the many years of disregarding permit requirements, as of September 2021, the City of Goleta had not yet issued a third NOV. If this is still the case, that means the last NOV was issued in January 2021, approximately 7 months before the APCD caught Security Paving crushing material. Why has a third NOV not been issued in all of this time?
The scale of the material that Security Paving has received is astounding. According to Security Paving’s operational logs provided by the APCD, Security Paving produced 16,126 tons of road base in January-February 2021 (without a permit) and 13,269 tons of road base in September 2021. This latter crushing event likely would have been significantly greater if the APCD had not been informed of the violation, investigated, and shut it down. Combined, this makes 29,395 tons of road base produced without a permit. For comparison, that is 1,867 tons more than the 27,528 tons that were legally produced in in September 2019 (as part of the one-time exemption to crush the over-sized, unpermitted raw stockpile collected by Highway Recycling and Security Paving).
Additionally, today’s unpermitted, raw stockpile appears to be at least as big as the unpermitted stockpile that existed in September 2019. Assuming that the existing stockpile today is indeed about the same as existing in September 2019 (approximately 27,528 tons), the total amount of raw material brought onto the site, after agreeing to a Condition of Approval not to do so, is 29,395 + 27,528 = 56,923 tons.
Please also refer to the images below to help understand the scale of the issue.
This has gone on long enough. The City must enforce permit conditions!
22. It must also be noted that, on February 7, 2022, Mr. Gazdecki also reported that, after leaving a voicemail for Mr. Albert Torres and Ms. Sue Saddler at 805-961-7556, he received a return phone call from a woman (he could not remember her name but stated it was not Ms. Saddler) stating that Security Paving is allowed to bring new material onto the site. City Staff should clarify what, if anything, has changed to allow Security Paving to bring new material onsite, especially when considering that the raw stockpile location was filled months ago. Alternatively, perhaps this was an error, or an inexplicable miscommunication? Regardless, the status that Security Paving is not permitted to bring new material onto the site should be clear to all involved.
23. Additional violation details (e.g., the phone number to report dust complaints has been disconnected) are noted in the Investigation Summary prepared by APCD Inspector Glenn Gazdecki in August 2021, as shown below. Note that the logs for all crushing activity provided to the APCD following Mr. Gazdecki’s report demonstrates discrepancies between what he was told verbally and what actual ly happened. For example, the crushing event in August 2021 occurred for a total of 7 days (not 6, as stated). All of these logs are available to the City upon Staff’s request.
Part F: Comments on the City’s Public Notice for this Director’s Decision
24. Multiple aspects of the Notice did not meet Title 17 requirements for Notices, in part because no “Notice” was ever posted – onsite or online. The first file attached for eight of the eleven Director Decisions proposed, as posted to the City’s Dir ector Decisions page (https://www.cityofgoleta.org/city-hall/planning-and-environmental-review/director-decisions), is either a “Notice of Intent to Issue…” or a “Notice of Director’s Decision.” This project does not have such a Notice posted. Accordingly, Staff have not provided the critical information needed to submit a Public Comment. This information, which includes directions on how to submit comments and a description of the appeals process, is required by Title 17.
25. Multiple thousands of people have requested email notification about Planning-related projects.
While not required by Title 17, whenever I processed SCDs as Staff, I ensured that th is email list was notified of the pending decision. Such notice is the best professional practice, particularly as there is no indication that such projects will not be noticed in this manner. Without this Notice, by far the only way for an interested party (that does not live in the immediate vicinity of a project) to know about a proposed Director Decision such as this one is to regularly monitor the City’s website linked above. This is a disservice to the people who have gone out of their way to request notifications from City Planning.
Moreover, based on a searched my personal email for such City-wide notification for this project, the only City-wide notification I could find was for a Director Decision scheduled for July 17, 2020. It appears that not a single one of the 10 SCDs since July 2020 has been similarly Noticed. This also means that the only SCD that has been noticed in this manner was for a religious institution (a Jewish Synagogue). It is not clear why Staff have made these decisions or why the Synagogue project was singled-out in this manner.
26. Given the above issues with notification, project description, etc., it seems extremely likely that if I hadn't known about the problems with this project and specifically requested to be updated
as an interested party, the proposed SCD, with all of the problems noted in this letter , likely would have been approved on February 14, 2022. City Staff should provide justification for its decisions to process this project this way.
Part G: Comments on the Staff Report
27. Like the lack of a Public Notice, there is no Staff Report. None of the information typically provided therein, including background and analysis, is provided. It is unclear what the Draft Director’s Letter is based on, nor is there an opportunity for interested members of the public to comment on the analysis.
Part H: Comments on Requests for Information
28. While preparing these comments, I requested information from City Staff. While some requests were honored, most were denied or deferred to a Public Records Act Request process. This includes requests as simple as an electronic copy of a readily-available permit (18-136-LUP).
Importantly, the Public Records Act (PRA) allows staff a minimum of 10 days to respond, which would push receipt of the requested materials well beyond the scheduled decision date (9/14/2022).
Importantly, not once in my nearly four years of public service at the City of Goleta Planning Counter was I instructed by any supervisor or manager to direct a member of the public seeking copies of readily-available permits to submit a PRA, especially when it was germane to an proposed project imminently scheduled for a decision. To the contrary, I was instructed to provide the information as quickly and efficiently as possible. Only if someone wanted copies of a Notice of Violation, emails, and similar were requestors directed to submit a Public Records Act Request.
I do not understand the impetus for this deeply disappointing, and sudden, change, which is made all the more egregious by the fact that a Staff Report was not prepared.
Part I: Images (2019-Present)
June 20, 2019 Site Visit: view of unpermitted, original raw stockpile a few months prior to the one-time exemption that allowed it to be crushed.
View of finish stockpile. This is the result shortly after Security Paving received a one-time exemption to crush the unpermitted, raw stockpile in September 2019. Image date: October 11, 2019.
October 22, 2020: More than one year after Security Paving legally crushed the unpermitted stockpile, a small portion of the Finish stockpile remains (mid-ground) and a (new) raw stockpile is clearly visible (background, left). Image taken during an on-site meeting of City personnel (Planning and Public Works) with the Security Paving Team. The presence of the new, raw stockpile – and the angle of repose utilized to build it – led to the issuance of a Notice of Violation on November 19, 2020.
Photograph taken by Mr. Glenn Gazdecki, APCD Inspector, in August 2021, of Security Paving’s unpermitted crushing equipment in action, with raw and finish stockpile visible.
This material was brought onto the site following issuance of 18-136-SCD-LUP, which included Conditions of Approval to not bring new material onsite.
View from Entrance at 909 S. Kellogg Ave (gate was open) on 2/4/2022 (zoomed in). This material was brought onto the site following issuance of 18-136-SCD-LUP, which included Conditions of Approval to not bring new material onsite. Despite two previous, unpermitted crushing efforts in 2020, this raw material stockpile appears to be bigger than it was in 2019, when the unpermitted material was legally allowed to be crushed.
View from Entrance at 909 S. Kellogg Ave (gate was open) on 2/4/2022 (full image – for perspective). This material was brought onto the site following issuance of 18-136-SCD-LUP, which included Conditions of Approval to not bring new material onsite. Despite two previous, unpermitted crushing efforts in 2020, this raw material stockpile appears to be bigger than it was in 2019, when the unpermitted material was legally allowed to be crushed.
View from Placencia Street on 2/8/2022. This raw material is where the Finish Stockpile is supposed to be located.
This material was brought onto the site following issuance of 18-136-SCD-LUP, which included Conditions of Approval to not bring new material onsite. Despite two previous, unpermitted crushing efforts in 2020, this raw material stockpile appears to be bigger than it was in 2019, when the unpermitted material was legally allowed to be crushed.
Top of stockpile is visible above trees to the
west of the stockpile.
View from Corta Street on 2/8/2022. This material was brought onto the site following issuance of 18-136-SCD-LUP, which included Conditions of Approval to not bring new material onsite. Despite two previous, unpermitted crushing efforts in 2020, this raw material stockpile appears to be bigger than it was in 2019, when the unpermitted material was legally allowed to be crushed.
View of the raw stockpile from CA-217 headed towards UCSB on 2/8/2022 (zoomed in). This material was brought onto the site following issuance of 18-136-SCD-LUP, which included Conditions of Approval to not bring new material onsite. Despite two previous, unpermitted crushing efforts in 2020, this raw material stockpile appears to be bigger than it was in 2019, when the unpermitted material was legally allowed to be crushed.
View of the raw stockpile from CA-217 headed towards UCSB on 2/8/2022 (no zoom, for perspective). This material was brought onto the site following issuance of 18-136-SCD-LUP, which included Conditions of Approval to not bring new material onsite. Despite two previous, unpermitted crushing efforts in 2020, this raw material stockpile appears to be bigger than it was in 2019, when the unpermitted material was legally allowed to be crushed.