DATE:
April 4, 2023
TO:
Mayor and Council Members
FROM:
Nils Bentsen, City Manager
BY:
Rachel Molina Assistant City Manager
Ryan Leonard, Senior Planner
Edgar Gonzalez, Associate Planner
SUBJECT:
Appeal to the City Council (APP23-00002 – Appellant: Center for Biological Diversity); Applicant: SRD Design Studio, LLC; APN’s: 3064-551-01, -02, -03, -04, -06, -07 and -08
RECOMMENDED ACTION
It is recommended that the City Council adopt Resolution No. 2023-12, denying appeal APP23-00002 and upholding the Planning Commission’s decision to certify the Final Environmental Impact Report (SCH# 2022040060) for the Dara Industrial Project and approve Conditional Use Permit CUP22-00003 and Tentative Parcel Map TPM22-00003 and the revised conditions of approval.
BACKGROUND
On January 26, 2023, the Planning Commission voted 4-0 (one seat was vacant) to approve Conditional Use Permit CUP22-00003 to construct a 750,000 square foot industrial warehouse building on approximately 43 acres of vacant land in conjunction with Tentative Parcel Map (TPM22-00003) to merge and subdivide 7 existing parcels into 3 new parcels. As a part of the approval the Planning Commission made an environmental determination pursuant to the California Environmental Quality Act and certified the Final Environmental Impact Report for the project. During the public hearing two parties spoke in favor of the project and no one spoke in opposition to the project.
On February 6, 2023, the Center for Biological Diversity (CBD) submitted an application to appeal the decision of the Planning Commission to the City Council. The appellant generally asserts that the Draft EIR failed to adequately analyze and mitigate the project’s environmental impacts to biological resources, greenhouse gas emissions and air quality (Attachment 1).
Current General Plan, Zoning and Land Uses: The project is located on the northwest corner of Poplar Court and Highway 395. The portion of the site that is to be developed is within the Commercial Industrial Business Park (CIBP) zone of the Main Street and Freeway Corridor Specific Plan. The remaining portion of the site that will not be developed is within the Rural Estate Residential (RER) zone. The surrounding land is designated as noted on Attachment 2. The subject site is vacant but was previously used for the Competitive Edge racetrack. The properties to the north and south are vacant. The properties to the west consist of single-family homes and vacant land. The property to the east is currently vacant, but was recently approved for a 742,000 square foot warehouse building (Attachment 3).
ISSUES/ANALYSIS
Given the size and regional importance of this project, the California Environmental Quality Act (CEQA) requires that the environmental impacts of the project be analyzed. An initial study was prepared, which determined that the project may have a significant impact on the environment. As a result, an Environmental Impact Report (EIR) was required. A Notice of Preparation (NOP) was distributed for public review for a period of 30 days from April 5, 2022 thru May 5, 2022 and the Draft EIR was distributed for a 45-day public period from July 26, 2022 thru September 9, 2022. The environmental document was circulated to local, State and federal agencies and organizations as well as surrounding property owners. The Final EIR was released on January 13, 2023 and was sent out to local, state and federal agencies and organizations that commented on the Draft EIR. Five comment letters were received during the Initial Study/NOP comment period, six comment letters were received during the Draft EIR comment period and one comment letter was received after the release of the Final EIR.
Before a project is approved, CEQA requires the lead agency (City of Hesperia) to prepare and certify a final EIR. The contents of a final EIR are specified in Section 15132 of the CEQA Guidelines, which state that the final EIR shall consist of:
(a) The draft EIR or a revision of the draft EIR.
(b) Comments and recommendations received on the draft EIR. (c) A list of persons, organizations, and public agencies commenting on the draft EIR. (d) The responses of the lead agency to significant environmental points raised in the review and consultation process. (e) Any other information added by the lead agency.
The lead agency must also provide each public agency that commented on the draft EIR with a copy of the City’s responses to the agency’s comments at least ten days prior to certifying the final EIR.
The Center for Biological Diversity initially submitted a comment letter for the project during the 45-day public review period for the Draft EIR. In addition, 4 other comments were received during the Draft EIR comment period. The comment letter from CBD stated that the Draft EIR failed to adequately disclose, analyze, or mitigate the project’s impacts to biological resources, greenhouse gas emissions, air quality, cumulative impacts and concluded that the Draft EIR needed to be revised and re-circulated.
The Final EIR contains the applicant’s response to each of the comment letters that were received during the Draft EIR comment period. The Draft and Final EIR are posted on the City’s website and have been provided to the City Council under separate covers.
Pursuant to CEQA Guidelines Section 15132, the Final EIR was released at least 10 days prior to the January 26, 2023 Planning Commission hearing. During the public review of the Final EIR, the Center for Biological Diversity submitted a second comment letter for the project. The comment letter had generally the same arguments that were already stated in the comment letter that was received during the public review period for the Draft EIR, in which the applicant responded during the Final EIR.
Settlement: The applicant and Center for Biological Diversity began a series of discussions after the appeal was submitted to the City that ultimately led to a mutual agreement in which CBD will no longer oppose or challenge the approval of the project if the below project design features are adopted as conditions of approval, which will eliminate all concerns raised by CDB on previous comment letters. (Attachment 4 & Attachment 5) As part of the settlement agreement, and in response to the letter from CBD, Applied Planning, Inc., the CEQA consultant who prepared the EIR submitted a subsequent study (Attachment 6) which analyzes the project’s Green House Gas (GHG) emissions. While the DEIR utilizes the applicable Mojave Desert Air Quality Management District (MDAQMD) GHG threshold of 100,000 Metric Tons CO2e per year, a comment was raised by CBD that states that the use of 100,000 MT CO2e threshold is inappropriate for use in the EIR because it is not supported by substantial evidence. In response to the comments raised by CBD, the applicant will voluntarily implement the South Coast Air Quality Management District (SCAQMD) threshold of 3,000 MT CO2e per year. As provided, the subsequent study demonstrates that the project will be generate 2,211.57 MT CO2e per year and will comply with the SCAQMD threshold. Although not required by CEQA, the applicant has voluntary agreed to impose, as conditions of approval, the following additional project design features which are outlined below:
Construction Measures:
Require all generators, and all diesel-fueled off-road construction equipment greater than 75 horsepower, to be zero-emissions or equipped with CARB Tier IV-compliant engines (as set forth in Section 2423 of Title 13 of the California Code of Regulations, and Part 89 of Title 40 of the Code of Federal Regulations) or better by including this requirement in applicable bid documents, purchase orders, and contracts with successful contractors. After either (1) the completion of grading or, (2) the completion of an electrical hookup at the site, whichever is first, require all generators and all diesel-fueled off-road construction equipment, to be zero-emissions or equipped with CARB Tier IV-compliant engines (as set forth in Section 2423 of Title 13 of the California Code of Regulations, and Part 89 of Title 40 of the Code of Federal Regulations) or better by including this requirement in applicable bid documents, purchase orders, and contracts with successful contractors. An exemption from these requirements may be granted by the City in the event that the applicant documents that equipment with the required tier is not reasonably available and corresponding reductions in criteria air pollutant emissions are achieved from other construction equipment.[1] Before an exemption may be considered by the City, the applicant shall be required to demonstrate that at least two construction fleet owners/operators in the San Bernadino Region were contacted and that those owners/operators confirmed Tier 4 Final or better equipment could not be located within the San Bernardino Region. To ensure that Tier 4 Final construction equipment or better would be used during the proposed Project’s construction, the applicant shall include this requirement in applicable bid documents, purchase orders, and contracts. Successful contractors must demonstrate the ability to supply the compliant construction equipment for use prior to any ground-disturbing and construction activities.
Provide electrical hook ups to the power grid, rather than diesel-fueled generators, for contractors’ electric construction tools, such as saws, drills and compressors. In contracts with contractors selected to construct the Project, include language requiring all off-road equipment with a power rating below 19 kilowatts (e.g., plate compactors, pressure washers, etc.) used during Project construction to be electric.
Prohibit grading on days with an Air Quality Index forecast of greater than 100 for PM or ozone for the City of Hesperia and on days when the sustained wind speed exceeds 25 miles per hour.
Require construction equipment to be turned off when not in use.
Recycle and/or salvage for reuse a minimum of 75 percent of the nonhazardous construction and demolition waste in accordance with Section 5.408.1 of the California Green Building Standards Code Part 11.
Cool surface treatments shall be added to all drive aisles and parking areas or such areas shall be constructed with a solar-reflective cool pavement such as concrete.
Applicant shall use only super-compliant VOC architectural and industrial maintenance coatings (e.g., paints) for all exterior coated surfaces.
Operational Measures:
The Project and subject property shall not include or allow refrigerated storage.
All outdoor cargo handling equipment (including yard trucks, hostlers, yard goats, pallet jacks, and forklifts) shall be zero-emission vehicles. Each building shall include the necessary charging stations or other necessary infrastructure for cargo handling equipment. The building manager or their designee shall be responsible for enforcing these requirements.
Prior to certificate of occupancy, install on-site rooftop (which can include, where feasible, shade structures over parking lots and other paved areas) photovoltaic energy generation sufficient to meet 100% of the Project's anticipated total operational energy requirements.
Prior to certificate of occupancy, install: (1) Level 2 (or faster) electric vehicle charging stations on-site for employees for the percentage of employee parking spaces commensurate with Title 24 requirements in effect at the time of building permit issuance plus additional charging stations equal to 5% of the total employee parking spaces in the building permit, and (2) conduit, and infrastructure, and 240 volt outlets suitable for electric vehicle charging, for 25% of the remaining parking spaces onsite.
Install HEPA air filtration systems in all warehouse facilities.
Prior to tenant occupancy, provide documentation to the City of Hesperia demonstrating that occupants/tenants of the Project site have been provided documentation that:
Recommends the use of electric or alternatively fueled sweepers with high efficiency particulate air (HEPA) filters; Recommends the use of water-based or low VOC cleaning; and For occupants with more than 250 employees, require the establishment of a transportation demand management program to reduce employee commute vehicle emissions.
Include contractual language in tenant lease agreements requiring that any facility operator shall:
Ensure that site enforcement staff in charge of keeping the daily log and monitoring for excess idling will be trained/certified in diesel health effects and technologies, for example, by requiring attendance at California Air Resources Board-approved courses (such as the free, one-day Course #512); Be required to train managers and employees on efficient scheduling and load management to eliminate unnecessary queuing and idling of trucks. The building manager or their designee shall be responsible for enforcing these requirements; and Be in, and monitor compliance with, all current air quality regulations for on-road trucks including CARB's Heavy-Duty (Tractor-Trailer) Greenhouse Gas Regulation, Periodic Smoke Inspection Program (PSIP), and the Statewide Truck and Bus Regulation.
CONCLUSION
The Environmental Impact Report was prepared and completed in compliance with the provisions of CEQA, the State CEQA Guidelines, and the City's Local CEQA Guidelines. As analyzed in the EIR the project’s impacts to the environment were determined to be less than significant and will remain less than significant with the incorporation of the revised conditions of approval. It is therefore recommended that the City Council adopt Resolution No. 2023-12, denying the appeal (APP23-00002), approving the revised conditions of approval, and upholding the Planning Commission’s decision to certify the Final Environmental Impact Report (SCH# 2022040060) for the Dara Industrial Project.
ALTERNATIVE(S)
Provide alternative direction to staff.
ATTACHMENTS
Attachment 1 - Response to comments and CBD comment letter Attachment 2 - General Plan Land use Map
Attachment 3 - Aerial Photo
Attachment 4 - Notice of Settlement
Attachment 5 - Revised Conditions of Approval
Attachment 6 - Subsequent Study
Attachment 7 - Resolution No. 2023-12
Attachment 8 - Planning Commission Staff Report with Attachments City of Hesperia STAFF REPORT City of Hesperia STAFF REPORT City of Hesperia
STAFF REPORT
City of Hesperia
STAFF REPORT
Staff Report to the City Council
APP23-00002
April 4, 2023