MINUTE
S
CITY OF LINCOLN
CITY COUNCIL, PUBL IC FINANCE AUTHORITY
and REDEVELOPMENT SUCCESSOR AGENCY
Regular
Meeting
February 14, 2023
OPEN SESSIO
N MEETING
The meeting was conducted in-person at City Hall, 600 6th Street, Lincoln, CA, and virtually on Zoom with a Live Stream on the City of Lincoln YouTube Channel and WAVE Channel 18.
1. CALL
TO ORDER by Mayor Joiner at 6:03 PM.
2. ROLL CA
LL: Councilmembers present:
Holly Andreatta
Ben Brown
Dan Karleskint
William Lauritsen
Mayor Paul Joiner
Roll Call: 5 members present, 0 members absent, 0 members excused.
Staff members present: Sean Scully, City Manager
Kristine Mollenkopf, City Attorney
Matt Alves, Public Safety Chief
Nita Wracker, Finance Director
Matt Medill, Public Works Director
Gwen Scanlon, City Clerk
Leslie Tetley Jodrey, Deputy City Clerk
Various
City employees, consultants, and members of the public were also present in person and via teleconference.
3. REPORT
FROM CLOSED SESSION – Kristine Mollenkopf, City Attorney, stated there is no reportable action.
4. PLEDGE O
F ALLEGIANCE – Led by Tom Indrieri, Chief Executive Officer, Lincoln Area Chamber of Commerce.
5. AGEN
DA MODIFICATIONS – None
6. PRESENTA
TIONS- None
7. PUBLIC CO
MMENT ON NON-AGENDA ITEMS
1) Anne Const
antin Birge, a Lincoln resident, thanked City Council and City staff for hearing the community’s feedback about the former Titan Missile Site and Council’s agreement that Placer County and the United States Federal Government should accept responsibility for environmental clean-up efforts.
2) Ray Birge, a Lincoln resident, asked to speak on item 12.A; however, Mayor Joiner asked Mr. Birge hold his comments until then.
3) Dawn Veltre, a Lincoln resident, expressed concerns regarding the homeless population along Auburn Ravine.
Mayor Joiner asked the City Attorney, Kristine Mollenkopf to provide an update.
Kristine Mollenkopf, City Attorney, reported that efforts to reduce homeless campsites are ongoing.
City Council, Public Finance Authority and
Redevelopment Successor Agen cy
Regular Meeting Minutes
February 14, 2023
On February 10th, 2023, Code Enforcement contacted the homeless population off of Gateway Drive, to begin the process of enforcing 10x10 campsites, asking campsites to remove tarps tied to trees and demanding
that dogs must remain on a leash or crated.
Each site was marked off and Code Enforcement will follow up on Wednesday the 15th, to remove any trash and or items outside the 10x10 space. With the assistance from the Adopt-A-Creek V olunteers, Code Enforcement will continue to monitor the campsites along Auburn Ravine.
Additionally, the City of Lincoln will continue to address and solve issues, under the constraints of upheld Supreme C
ourt Cases, and laws passed by the State of California. The City of Lincoln has an on-going partnership with Placer County Probation and Placer County office of Health and Human Services. The City of Lincoln’s Police Department, given staff constraints, will assist when called upon for issues outside of C
ode Enforcements purview. Code enforcement will issue citations based on the municipal code.
Mayor J
oiner asked if the City of Lincoln could leverage the Dewitt Homeless Center in Auburn.
Kristine Mollenkopf, City Attorney, stated, it is an option for anyone in South Placer County, if one of our campers in the Auburn Ravine would be willing to accept the offer. 4) Fred Barnhart, a
Lincoln resident, expressed his concerns with the plume at the Titan Missile Site.
Mayor J
oiner, asked the City Manager, Sean Scully, to address plume movement at the Titan Missile Site.
Sean Scully, C
ity Manager, stated that the plume movement depends on ground water movement and other g
eological factors. The overall takeaway is that it needs to monitored, but it will not move 11 feet per year.
5) Burt
Mattson, a Lincoln resident, gave kudos to the City Council on their on-going efforts to be transparent about the former Titan Missile Site and encouraged the City on the efforts to protect the city.
Mayor
Joiner asked the City Manager, Sean Scully, to briefly provide an update on the Missile site.
Sean Scul
ly, City Manager, stated it would be best to arrange a local community meeting with experts that can speak to environmental remediation. The meeting is tentatively scheduled for March 8th, location to be determined.
6) Richar
d Pearl, a Lincoln resident, and City Council Treasurer, expressed appreciation to the Lincoln Area Chamber CEO, Tom Indrieri, for hosting the recent Business Excellence Awards and creating a thriving business community.
7) Byron C
hapman, a Lincoln resident, spoke in opposition against the recent McBean Park Stadium bleacher replacement project as the center of stadium isn’t accessible for people with mobility issues which is an American’s with Disability Act (ADA) violation. He also stated the City’s tenants could be liable for the violation.
Mayor
Joiner closed public comment at 6:29pm.
Mayor
Joiner, asked the City Attorney, Kristine Mollenkopf, to provide a response to Mr. Chapman’s comments.
Ms.
Mollenkopf stated that there is a settlement agreement between Mr. Chapman and the City of Lincoln that he is not authorized to file lawsuits against the city within the next six years for alleged ADA violations; Pa
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February 14, 2023
furthermore, for the record, the Potters organization and William Jessup University lease McBean Park Stadium and are not tenants.
8. CONS
ENT
Ma
yor Joiner asked if any members of the City Council the or public would like to pull any items from the Consent agenda. Councilmembers did not pull any items from the Consent agenda.
By
ron Chapman, a Lincoln resident, asked to pull item 8E from the consent agenda. Councilmember Andreatta asked to pull item 8J.
Ma
yor Joiner called for a motion of the remainder of the Consent agenda items. Councilmember Andreatta motioned approval of the items and the motion was seconded by Councilmember Brown, By the following Vote (Approved): Andretta-Aye, Brown – Aye, Karleskint – Aye, Lauritsen – Aye, and Mayor Joiner – Aye.
The items approved were:
8. A. Approval of Minutes of January 24, 2023, Regular City Council meeting.
8.B. Waive second reading and adopt by title only an ORDINANCE 1059B amending Lincoln Municipal Code section 2.50.070 and 2.05.080 regarding attendance requirements for continued participation on boards, committees and commissions, and finding the Ordinance is exempt from environmental review under the California Environmental Quality Act (“CEQA”).
8. C. Adopt RESOLUTION 2023-022 accepting the Meadowlands Lot 6 Subdivision Improvements as complete and authorize the City Clerk to file the Notice of Completion with the Placer County Recorder. (Araceli Cazarez)
8.D. Adopt RESOLUTION 2023-023 accepting the Meadowlands Park Public Improvements as complete and authorize the City Clerk to file the Notice of Completion with the Placer County Recorder. .
8.F. Adopt RESOLUTION 2023-025 authorizing the City Manager to execute a Task Order with Kimley- Horn for engineering design services for the Moore Road Class 1 Trail Project.
8.G. Adopt RESOLUTION 2023-026 superseding Resolution 2022-238 to authorize the City Manager to execute a purchase order for a Caterpillar asphalt roller and modify purchase order 20230163 to purchase one Ford F350 instead of two Ford F350 trucks, production of one F350 having been canceled by the manufacturer.
8.H. Adopt RESOLUTION 2023-027 as follows: a) approving the Improvement Plans for Esplanade at Turkey Creek Phases 5A-5C; b) approving Esplanade at Turkey Creek Phases 5A, 5B, and 5C Final Map and authorizing the City Manager to execute the Subdivision Improvement Agreement; and c) authorizing the City Clerk to sign the Clerk’s Statement and record the Final Map and Subdivision Improvement Agreement.
8.I Adopt RESOLUTION 2023-028 authorizing the City Manager to execute a Contract with Flowline Contractors, Inc. for the Hoitt Area Waterline Replacement (CIP 484).
ITEMS PULLED FROM THE CONSENT AGENDA
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8.E. Adopt RESOLUTION 2023-024 accepting the McBean Stadium Bleacher Replacement Project (CIP 605) as complete and authorizing the City Clerk to file the Notice of Completion with the Placer County Recorder
1.) B
yron Chapman, a Lincoln resident, voiced concern that funds were not spent on ADA modifications.
With no further comments, Mayor Joiner called for a motion. Councilmember Karleskint motioned approval of RESOLUTION 2023-024 and the motion was seconded by Councilmember Brown. By the following Vote (Approved): Karleskint – Aye, Brown – Aye, Andretta, Lauritsen – Aye, and Mayor Joiner – Aye.
8.J Adopt RESOLUTION 2023-029 approving the appropriation of $52,000 of American Rescue Plan Act (ARPA) standard allowance funding to contribute to the Youth Development Plan for the City of Lincoln and Western Placer Unified School District.
Counc
ilmember Andreatta clarified the purpose of the Youth Development Plan and the City of Lincoln’s involvement and reiterated the plan is to help students navigate school and socialization skills post COVID-
19. With no further comments, Mayor Joiner called for a motion. Councilmember Lauritsen motioned approval of RESOLUTION 2023-029 and the motion was seconded by Councilmember Andretta. By the following Vote (Approved): Lauritsen – Aye, Andreatta- Aye, Karleskint – Aye, Brown – Aye, and Mayor Joiner – Aye.
9. PUBL
IC HEARINGS - None
10. GEN
ERAL BUSINESS
10. A
Adopt RESOLUTION 2023-030 of the City Council of the City of Lincoln rescinding Resolution 2020-011 Financial Reporting and Resolution 2019-027 Financial Close and approving the Financial Policies.
Nita Wracker, Director of Finance, presented financial policies that are used as a guidebook intended to provide quality services to the community in an efficient and effective manner within the limitations established in the policies.
Mayor Joiner thanked Nita Wracker for the clear and succinct description andcalled for a motion.
Councilmember Brown motioned approval of RESOLUTION 2023-030 and the motion was seconded by Councilmember Lauritsen. By the following Vote (Approved): Brown- Aye, Lauritsen – Aye, Andreatta- Aye, Karleskint – Aye, Mayor Joiner – Aye.
10.B. Adopt RESOLUTION 2022-031 approving an Addendum to the Village 5 Specific Plan Environmental Impact Report, as amended by the Partially Recirculated Environmental Impact Report, which clarifies the role of the Placer County Conservation Plan (PCCP) as mitigation for potential impacts to special-status species and their habitats resulting from a buildout of the Village 5 Specific Plan area and
finding that no subsequent or supplemental environmental review is required.
Kristine Mollenkopf, City Attorney, gave a staff report requesting the Council approve the addendum to Pa
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clarify that the Placer County Conservation Plan (PCCP) fully mitigates impacts to special-status species resulting from future development under the Village 5 Specific Plan.
Mayor Joiner asked if any members of the Council or public had questions or comments.
1.) Albert Scheiber, a Lincoln resident, stated on record that his attorney sent comments to the Council regarding Resolution 2022-031.
Gwen Scanlon, City Clerk, spoke to Council, acknowledging correspondence from Mr. Schieber’s attorneys on February 14th 2023 at 5:00 pm. Ms. Scanlon also stated the City Clerk’s office received correspondence from Michelle McDonald, who wrote in opposition of the Addendum to the Village 5 Specific Plan Environmental Impact Report, made a part of these minutes by mention thereof.
Mayor Joiner called for a motion.
Councilmember Lauritsen motioned approval of RESOLUTION 2022-031 and the motion was seconded by Councilmember Karleskint. By the following Vote (Approved): Lauritsen – Aye, Karleskint – Aye, Andreatta- Nay, Brown- Aye, Mayor Joiner – Aye.
10.C. Adopt RESOLUTION 2023-032 authorizing the City Manager to execute the Property Tax Increment Agreement between the County of Placer and the City of Lincoln for the Village 5 Specific Plan area.
Sean Scully, City Manager, gave a powerpoint presentation on the Property Tax Increment Agreement, made apart of these minutes by mention thereof. The draft agreement for consideration is based off of Village 7 and Sud-B agreements. If and when substantive changes are made, the item will be brought back to Council for further consideration. The Placer County Board of Supervisors has not brought forth a final draft; therefore, if the City of Lincoln’s draft aligns, which was presented to Council, with the Board of Supervisors agreement, then the executed agreement will be provided to LAFCO.
Mayor Joiner asked if any members of the Council or public had questions or comments.
Mayor Joiner and Sean Scully, City Manager, discussed Governor Newsom’s Senate Bill 6 which allows residential use on commercially zoned property without requiring a rezoning.
1.) Ryan Cooley, Richland Communities, one of the land owners of Village 5, thanked City staff, specifically the City Manager, for their continued efforts in moving the project along and responded to LAFCO’s questions and concerns. In regards to Senate Bill 6, the bill seems to target urban built out infill communities where large shopping centers where built in the 1970’s that are mostly compromised of parking lots no longer utilized. Mr. Cooley thanked City staff and City Council for their continued support and stated Richland will continue to commit to this project.
2.) Tom Indrieri, Chief Executive Officer, Lincoln Area Chamber of Commerce, first wanted to thank Mayor Joiner for assisting with installing the Chamber’s new board members and secondly congratulated the City Manager, Sean Scully, for winning the President’s award. Mr. Indrieri and the Lincoln Area Chamber of Commerce, lend it’s support of Village 5 project and ask that the resolution before the City Council be adopted.
3.) Albert Scheiber, a Lincoln resident, expressed concern regarding that the formally proposed agricultural over-lay was left out of the project. Mr. Scheiber also expressed concern with the City Council approving a draft without having an agreement with Placer County.
Gwen Scanlon, City Clerk, stated the City Clerk’s office received two public comments in favor of the project, made a part of these minutes by mention thereof.
Counc
ilmember Karleskint, stated the last five tax sharing agreements have shared the same model, Pa
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February 14, 2023
although with the different numbers. Councilmember Karleskint is content with the financial model as he doesn’t foresee any material change and trusts City staff to identity a material change that could essentially stop the process and there is enough coverage and controls in place to get the final draft out.
Councilmember Brown thanked Councilmember Karleskint for the background and the public comment.
Mayor Joiner called for a motion.
Councilmember Karleskint motioned approval of RESOLUTION 2023-032 and the motion was seconded by Councilmember Brown. By the following Vote (Approved): Karleskint – Aye, Brown- Aye, Andreatta- Nay, Lauritsen – Aye, Mayor Joiner – Aye.
10.D. City Council discussion and appointment of two members of the Council to serve on a 2X2 committee with two Placer County Supervisors as is required by the 2020 Limited Term Property Tax Sharing Agreement.
Sean Scully, City Manager, provided a brief history on the tax sharing agreement that was enacted a couple of years ago, the City Council and Placer County Board of Supervisors, worked out an agreement to help Lincoln right-size it’s deficiencies in public safety. The agreement diverted revenues to the City over an eight-year period, with extensions built in. The City has been using those revenues on staff, associated equipment and capital expenses. One of the requirements of that agreement, is that two members of the City Council and two members from the Board of Supervisors form a 2x2 committee to meet and review the agreement, revenues, and plans moving forward.
Supervisor Bonnie Gore and Supervisor Shanti Landon have been appointed for Placer County.
Mayor Joiner, recommended Councilmember Karleskint and Councilmember Andretta represent the City of Lincoln.
Mayor Joiner called for a motion.
Councilmember Andretta motioned approval of appointment of Councilmembers Andreatta and Karleskint to the 2X2 with Placer County, and the motion was seconded by Councilmember Brown.
By the following Vote (Approved): Andreatta- Aye, Brown- Aye, Karleskint – Aye, Lauritsen – Nay, Mayor Joiner – Aye.
10.E. Airport Leasing Strategy discussion and direction.
Sean Scully, City Manager, stated there has been significant interest, both locally and State wide, for leasable space at the airport both commercially and privately. Based on this interest, staff would like to seek direction from Council on how to strategically plan lease agreements. Given the City Council has appointed new members to the Airport Committee, based on Council direction, the new committee could use the leasing strategy as their first project.
Additionally, two business, located at the airport, would like to move forward with new leasing agreements.
The largest business at the airport, Lincoln Skyways, is looking to lease new ground and combine a conglomeration of a couple of other other leases into one master lease. A second lease agreement is for a group of business that would like to expand their hanger space.
Ma
yor Joined opened up for public comment.
1.) Richard Pearl, a Lincoln resident and City Treasure, thanked the City Manager for creating a balance for the economy at the airport. The businesses at the Airport are committed to Lincoln and looking forward to growth.
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Councilmember Andreatta asked for an update on Code Enforcement efforts at the Airport.
Kristine Mollenkopf, City Attorney, stated that the Code Enforcement team have gone through the hangers to ensure compliance and are now focused on a new claim, on a newly purchased parcel on Flightline Drive that contains sea containers and an RV.
11. CIT
Y MANAGER REPORTS
Sean S
cully, City Manager, provided an update on the progress made and possible proposal of how to address the homeless population.
Multiple residents have sent emails to Council and City staff expressing concern. City staff has been trying to figure out what the City can do locally and at what cost. Homelessness is not illegal, as a result, in many cases, it has to do with mental health, drug addiction, broken down families and other factors.
A lot of Cities within the State, are put in an awkward situation on trying to provide services. Therefore, we would like to bring forward a pro-forma plan that has three prongs.
The proposed prongs are
1: Tiny homes to assist with transitional housing
2: Agreement with a service provider to help the homeless move to the next step, by providing services to help assimilate into society.
3: Chief Alves, Public Safety Officer, has proposed a Problem Ordinated Policy Team (POP)- which is a sworn police unit that deals with enforcement issues and quality of life problems that may not be criminal in nature.
Ci
ty staff is reviewing costs, which can be quite expensive, success rates and models. City staff is looking for Council direction on how to proceed.
Mayor Joiner stated that it is Placer County that receives funding and is responsible for addressing these issues; however, the City does not receive those funds.
A C
ouncilmember and City staff discussion ensued.
City Staff will continue to review the proposed pronged approach and will bring back to Council an updated report at a future Council meeting.
12. COUNCIL INITIATED BUSINESS
12. A. Cons
ideration of lifting censure restrictions imposed on Councilmember Lauritsen by Resolution 2022-113
Ma
yor Joiner implored everyone to remain very professional as they addressed the difficult conversation.
Mayor Joiner asked Councilmember Lauritsen to begin the conversation. Councilmember Lauritsen asked that Resolution 2022-113 be revoked, as he felt it was not fair to him or his constituents.
Counc
ilmember Karleskint offered a proposed resolution as a starting point for discussion to improve conditions amongst the council. The proposed resolution read before the City Council, rescinds a portion of Resolution 2022-113. Councilmember Karleskint read aloud the draft resolution, made a part of these minutes by mention thereof.
Ma
yor Joiner asked the City Attorney, Kristine Mollenkopf, if the proposed resolution can be carried forward at this council meeting, or if it would be an item that would need to be placed on a future agenda.
Ms. Mollenkopf stated that Councilmember Karleskint, can make an oral motion.
Counc
ilmember discussion ensued.
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February 14, 2023
Councilmember Brown recommended adding time-line language to the resolution as a way of monitoring progress.
Mayor Joiner opened up for public comment.
1.) Anne C
onstantin Birge, a Lincoln resident, spoke in favor of lifting the censure and agrees with adopting a timeline for Councilmember Lauritsen to complete training.
2.) Ray Birge, a Lincoln resident, appreciated Councilmember Brown’s comments regarding ethics and adding a timeframe to work through issues. Mr. Birge hopes the Council can work together and move forward to continue their job in good favor.
3.) Fred Barnhart, a Lincoln resident, spoke in favor of lifting the censure placed on Councilmember Lauritsen
4.) Burt Mattson, a Lincoln resident, acknowledges the hard work City staff and Councilmembers put into the City business. Mr. Mattson expressed opposition to Resolution 2022-113 as it seems to be a disproportionate response to the level of the alleged offense.
5.) Lena Labosky, a Lincoln resident, spoke via zoom, in opposition of lifting the censure.
6.) June Paquette, a Lincoln resident, spoke via zoom, doesn’t condone past behavior, and agrees that the censure is a disproportionate response to the level of the alleged offense.
Mayor Joiner asked for closing comments from Council.
Councilmember discussion ensued.
Mayor Joiner stated a one-year time limit would be an appropriate benchmark to review progress.
Mayor Joiner called for a motion.
Councilmember Brown motioned approval of the minute order to approve the draft resolution offered by Councilmember Karleskint with one year benchmark to review progress and the motion was seconded by Councilmember Andreatta. By the following Vote (Approved): Brown – Aye, Andreatta- Aye, Karleskint – Aye, Lauritsen -Nay, Mayor Joiner – Aye.
13. INFORMATION ITEMS- None
14. ADJOURNMENT- Mayor Joiner adjourned the meeting at approx. 8:27pm.
Submitted by:
Gwen Scanlon, City Clerk
From: Judi Chapman
To: Leslie Tetley Jodrey
Subject: Fw: City Council Meeting Feb. 14, 2023
Date: Saturday, February 11, 2023 9:23:31 PM
Dear Leslie,
I sent this e-mail to Gwen and she said forward it to you. Please let me know when you receive this request so I will know it got to you.
I want to have the documents sent to all Councilmembers for the 2-14-2023 City Council Meeting.
Thank You,
Byron Chapman
----- Forwarded Message -----
From: Judi Chapman
To: Gwendolyn Scanlon <[email protected]>
Sent: Saturday, February 11, 2023 at 09:13:31 PM PST
Subject: City Council Meeting Feb. 14, 2023
Dear Gwen,
Could you send the Mayor and All Councilmembers the information Attached below.
See Attachments:
Regarding 2-14-23 Council meeting:
Consent item: 8E McBean Stadium Bleacher Replacement.
Note pages 5, 6, & 7.
Q.
#1. The Bid was for work on the Bleachers at McBean Baseball Stadium. Can anyone find any ADA work listed on the Job Bid for the bleachers? Especially the Center Bleachers behind Home plate?
#2. Does William Jessup know that they are playing at a Stadium that is not ADA Compliant since 2016?
#3. Does The Potters know they are playing at a Stadium that is NOT ADA Compliant since 2016?
#4. Are Both Teams aware that they are also liable and responsible to ensure any ADA Barriers are removed.
#5. Under the ADA all parties (Landlord - City of Lincoln), (Tenant - William Jessup)
CAUTION: This email originated from outside the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
and (Tenant - The Potters) are equally responsible regardless of any written agreement between The City of Lincoln and the Tenants.
Don't take my word for it, have the City Attorney look up section in the ADA. Also call DOJ to verify the ruling (1-800-669-4000).
I would prefer getting the Equal Facilitation without legal action. However, it has been 8 (eight years) and that is approx. 6 years to long.
Respectfully,
Byron Chapman
From: Web Feedback
To: City Clerk
Subject: FW: Village 5 Objection
Date: Tuesday, February 07, 2023 8:28:40 AM
-----Original Message-----
From: [email protected] <[email protected]> On Behalf Of Michelle MacDonald Sent: Monday, February 06, 2023 6:26 PM
To: Web Feedback <[email protected]>
Subject: Village 5 Objection
Hello
The purpose of this email is to make clear that I object to the Village 5 Project.
I feel that it is much more important to use the land for agriculture than it is to build on some of the most fertile farmland in the world. We have a Mediterranean climate here and it is the perfect growing conditions for many crops and herds. This is similar to what happened in the town of Natomas in 2009 when they built single-family homes and then we had a recession and the economy crashed. The same thing happened to Foskett Ranch and many homes were foreclosed on. With the cattle industry it is oredicted that we will have a shortage of breedable cattle this year due to the recent drought years. Many farmers have been selling their breedable cattle because there is a hay shortage already. We need to leave this agricultural land the way it is. Maybe you should build up not out and build affordable housing in some of the other already developed areas first. In other countries they use community housing to build affordable housing and they build up not out. This is why I object to Village 5 Development Project. We grow rice and cattle in our land and feed many families.
Kindest regards
Michelle Macadonald
S Dowd Road
Lincoln CA 95648
-------------------------------------
Origin: https://www.lincolnca.gov/en/our-government/council.aspx -------------------------------------
This email was sent to you by Michelle MacDonald through https://www.lincolnca.gov.
CAUTION: This email originated from outside the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
February 14, 2023
SENT VIA EMAIL ([email protected])
Mayor Paul Joiner and
Members of the City Council
City of Lincoln
c/o of City Clerk – Gwen Scanlon
600 Sixth Street
Lincoln, California 95648
RE: City of Lincoln 2023 Regular Meeting – City Council – February 14, 2023 – Agenda Item 10.B (Addendum to Environmental Impact Report for Village 5)
Dear Mayor Joiner and Members of the Lincoln City Council:
This letter, submitted on behalf of Albert and Connie Scheiber and Scheiber Ranch Properties, LP, provides comments regarding Agenda Item 10.B for the regular meeting of the City Council for the City of Lincoln scheduled for February 14, 2023.
While we generally agree with the City’s plan to abandon its legally-deficient mitigation measure 3.4-2(b), the procedure employed by the City both substantively and procedurally violates the California Environmental Quality Act (“CEQA”).
The City’s Addendum substantively violates CEQA.
Incredibly, the City takes the position that it can simply disregard mitigation measure 3.4-2(b) going forward without (i) actually deleting it, (ii) undertaking the process necessary for deleting it, or (iii) correcting the informational deficiencies identified by the trial and appellate courts. Specifically, the Addendum asserts that mitigation measure 3.4-2(b) “is no longer an option,” and the staff report further explains, “[T]he City is not proposing to amend Mitigation Measures 3.4-2(a) or 3.4-2(b) because the mitigation is clear that if the PCCP is in operation then it shall be the methodology of compliance, and the option under 3.4-2(b) is no longer available.” Not so. These claims ignore the actual language of mitigation measure 3.4-2(b), which provides in relevant part: “If the PCCP is not in operation or the County and City processes for designating project impacts as covered under the PCCP have not been established, the following mitigation measures shall apply.” Thus, if the PCCP loses operational status at some Mayor Paul Joiner and
Members of the City Council
City of Lincoln
February 14, 2023
point in the future then this mitigation measure would apply on its own terms. The same is true regarding the vague trigger “County and City processes for designating project impacts as covered under the PCCP have not been established.” Neither the Addendum nor the staff report explains what this language even means, much less explain that it cannot ever be triggered in the future.
Thus, the actual text of mitigation measure 3.4-2(b) refutes the Addendum’s claim that the PCCP will undoubtedly be the exclusive mechanism for mitigating impacts to sensitive species. In the absence of actual deletion, it is possible that this unlawful mitigation strategy could be triggered at some point in the future. This outcome could be avoided if the City were to simply eliminate it, but the City is tellingly not following that approach here. (See Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152, 1174 [agency may not change a mitigation measure adopted for a significant impact in a way that reduces its effectiveness without preparing a subsequent or supplemental EIR to analyze the environmental impacts of the change].)
The City’s novel proposed approach to simply disregard mitigation measure 3.4- 2(b) likely reflects the City’s implicit recognition that its elimination would reduce the effectiveness of mitigation and thereby require a supplemental EIR. (See Sierra Club, supra, 231 Cal.App.4th at p. 1174.) If City is correct that the PCCP now provides the exclusive vehicle for mitigating special-status species, the record demonstrates that it is inadequate to address all special-status species that may be impacted by the Village 5 Project. This issue was clarified by the court of appeal, which explained:
To the extent “the open space, agricultural land and biological resources strategy” referred to the conservation or mitigation strategy described in the section relating to the draft Conservation Program, many special-status species with potential to occur within the Specific Plan area were not among the 14 listed covered species under the draft Conservation Program.
Therefore, a reader could not conclude that the strategy of the draft Conservation Program would address impacts to all special-status species within the Specific Plan area.
(Opinion, p. 26.)
Mayor Paul Joiner and
Members of the City Council
City of Lincoln
February 14, 2023
We previously raised this issue in response to the DPREIR, explaining in relevant part:
The DPREIR provides, “No surveys have been conducted in the Plan area” - including Area A that is purportedly analyzed on a project level – for the following species that have a “high” or “medium” potential to occur:
western pond turtle, western spadefoot toad, tricolored blackbird, grasshopper sparrow, short-eared owl, burrowing owl, ferruginous hawk, Swainson’s hawk, northern harrier, western yellow-billed cuckoo, white- tailed kite, snowy egret, prairie falcon, loggerhead shrike, long-billed curlew, black-crowned night heron, purple martin, pallid bat, Townsend’s big-eared bat, American badger. (DPREIR, pp. 3.4-17 – 21.) . . . Bare reliance on compliance with the PCCP is inadequate since the City has not performed the minimum studies necessary to inform itself and the public regarding presence of special-status species.
(See Exhibit 1.)1
Contradicting the Addendum’s analysis, the City’s response to this comment expressly relies on the existence of mitigation measure 3.4-2(b) to shore up this deficiency, stating:
The comment argues that the DPREIR’s reliance on the PCCP fails to adequately mitigate for adverse impacts to special-status species. However, the DPREIR does not rely solely on the PCCP to mitigate for adverse impacts to special status species. Mitigation Measures 3.4-1 and 3.4-2 include a subpart b), which prescribes specific measures requiring habitat preservation, compensatory mitigation, and impact avoidance and minimization, if the PCCP is not in operation. Mitigation Measure 3.4-2.
(Final PREIR, p. 3-50, italic added.)
1 The attached prior comments in response to the DPREIR are incorporated by reference into these comments on the Addendum.
Mayor Paul Joiner and
Members of the City Council
City of Lincoln
February 14, 2023
What is more, the two subparts to mitigation measure 3.4-2 are expressly linked in terms of their effectiveness. Mitigation measure 3.4-2(a) provides:
The project applicant shall comply with the PCCP and that participation shall satisfy all of the mitigation requirements for this impact. Mitigation achieved through implementation of the PCCP shall be equal to or greater than the mitigation ratios and requirements described in subsection (b) and/or (c), below, as applicable.
(Italic added.) In other words, subsection (a) expressly references and therefore relies upon “subsection (b)” as setting forth minimum “mitigation ratios and requirements.” The court of appeal found subsection (b) to be improperly deferred precisely because it lacked performance standards. The Addendum’s conclusory, two-page analysis completely fails to address this express linkage between the two subparts, much less address the impact on subsection (a) if it was “removed to address the appellate court’s concerns.”2
Incredibly, the City now reverses itself by suggesting that subsection (b) is entirely unnecessary. The Addendum, however, fails to provide any explanation about how compliance with the PCCP, which is limited to protecting 14 specific species, adequately mitigates for impacts to other special-status species and the City’s earlier representation that subsection (b) worked together with subsection (a) to protect special-status species.
In short, the City’s attempt to simply disregard subsection (b) going forward without properly eliminating it runs afoul of CEQA. The City cannot simply disregard the appellate decision in this manner.3 The City must actually revise or delete the mitigation measure following a recognized procedure and adequately support that action.
2 Subsection (a)’s express reference to subsection (b) alone refutes the City’s claim that subsection (b) “is therefore redundant and may be removed to address the appellate court’s decision.”
3 The City’s argument that “the appellate court’s concerns with Mitigation Measure
3.4-2(b) are rendered moot” is strikingly similar to the City’s two failed arguments that the Scheibers’ appellate claims were moot. The opinion first explained, “The trial court lacks jurisdiction to alter the judgment while the appeal is pending. [Citation] Accordingly, we reject the claim of mootness, deny the Lincoln and Richland motion to dismiss on that basis, and turn to Scheiber Ranch’s appellate claim.” (Opinion, p. 30.) Later, the opinion explained, “Whether the EIR was sufficient as an informational Mayor Paul Joiner and
Members of the City Council
City of Lincoln
February 14, 2023
The City fails to consider the Addendum with the Village 5 Final EIR or Final Recirculated EIR.
The City’s consideration of the Addendum also violates CEQA’s procedural rules.
CEQA Guidelines section 15164, subdivision (d), plainly states, “The decision making body shall consider the addendum with the final EIR or adopted negative declaration prior to making a decision on the project.” We reviewed in detail both the City’s agenda and agenda item packet. While the action is characterized as “approving an Addendum to the Village 5 Specific Plan Environmental Impact Report, as amended by the Partially Recirculated Environmental Impact Report,” neither the Village 5 Final EIR nor the Final Partially Recirculated EIR are included in the agenda packet for the Council’s certification. Thus, the Council cannot consider the Addendum “with the Final EIR” as CEQA requires.
* * *
We urge the Council to abandon this substantively and procedurally flawed attempt to address the legal deficiencies identified by the court of appeal. Thank you for the opportunity to comment.
Very truly yours,
SOLURI MESERVE
A Law Corporation
By:
Patrick M. Soluri
PS/mre
Exhibit 1: Soluri Meserve comment dated June 21, 2021
document is not rendered moot by the approval of the final Conservation Program.” (Opinion, p. 42.)
EXHIBIT 1
June 21, 2021
VIA EMAIL: ([email protected])
Steve Prosser, Community Development Director
City of Lincoln, Community Development Department
600 Sixth Street
Lincoln, California 95648
RE: Village 5 Specific Plan Draft Pa rtially Recirculated Environmental Impact Report
Dear Mr. Prosser:
This firm, along with the Law Offices of Matthew Emrick, represents Albert Scheiber and Scheiber Ranch Properties, LP. (collectively, the “Scheibers”). This letter provides comments regarding the proposed Village 5 Specific Plan (“V5SP”) and its Draft Partially Recirculated Environmental Impact Report (“DPREIR”) that is necessitated by the Scheibers’ success in invalidating several aspects of the original V5SP EIR.
As described more fully below, however, the DPREIR contains numerous flaws that render it fatally flawed as an informational document. In order to comply with California Environmental Quality Act (“CEQA”), the City must revise and recirculate the DPREIR in accordance with the comments below.
A. The DPREIR improperly incorporates the Placer County Conservation Plan As the City proposes to rely so heavily, and even exclusively, on compliance with the Placer County Conservation Plan (“PCCP”) to analyze and mitigate V5SP impacts, it is surprising that the DPREIR did not circulate the PCCP as an appendix, or even an executive summary of the PCCP, as provided by CEQA Guidelines section 15147. This prevents adequate public disclosure regarding the V5SP’s analysis of impacts and mitigation.
Instead, the City appears to incorporate the PCCP by reference as set forth in CEQA Guidelines section 15150. This procedure is inadequate here. The CEQA Guidelines state, “Incorporation by reference is most appropriate for long, descriptive, or technical materials that provide background but do not contribute directly to the analysis Steve Prosser
City of Lincoln Community Development Department
June 21, 2021
of the problem at hand.” (Cal. Code Regs., tit. 14, § 15150, subd. (f) [CEQA Guidelines].) Additionally, incorporated materials must be summarized or described, and the relationship between the incorporated part of the referenced document and the DPREIR must be described. (Id. at subd. (c).) The City fails to comply with these sections of the Guidelines.
The DPREIR relies on the PCCP for mo re than background information, the PCCP is relied upon to provide mitigation measures for several impacts. However, the specific information relied upon in the PCCP is not indicated, making it nearly impossible to determine how mitigation measures will be implemented. For example, several mitigation measures rely on language similar to that found it Mitigation Measure
3.4-1 “The project applicant shall comply with the PCCP and that participation shall satisfy all mitigation requirements for this impact. Mitigation achieved through implementation of the PCCP shall be equal to or greater than the mitigation ratios and requirements described in subsection (b), below.” (DPREIR, p. 3.4-57.) Reliance on bare language like this does not comply with the standards of CEQA. This language lacks either a brief summarization or description of the data or information being relied upon. (CEQA Guidelines, § 15150, subd. (c).) Without this information the public is deprived of the meaningful opportunity to comment on feasible mitigation of several impacts.
B. The DPREIR fails to adequately mitigate for loss of agricultural production Analysis of farmland conversion and the ne ed for farmland mitigation, is flawed.
The analysis is flawed in several ways. The DPREIR identifies multiple agricultural impacts, and is attempting to mitigate them all with non-agricultural mitigation.
First, the mitigation is not based on mitigating conversion of farmland to non- agricultural use; the mitigation measure addresses species habitat, not agricultural production. Mitigation Measure 3.2-1 states mitigation will be achieved through the PCCP and the PCCP’s mitigation ratios will be equal to or greater than those listed in Mitigation Measures 3.4-1(b) and 3.4-2(b). Both 3.4-1(b) and 3.4-2(b) create ratios to mitigate species habitat, not agricultural land. Therefore, there are no agricultural impact mitigation requirements in these mitigation measures.
Second, the DPREIR states implementa tion of mitigation measure 3.2-1 would “ensure agricultural land that is similar in character to that which would be lost in the Plan Area would be preserved at a ratio consistent with the PCCP, particularly since agricultural land provides foraging habitat for many species.” (DPREIR, p. 3.2-25.) The DPREIR attempts to roll agricultural mitigation into biological resources mitigation Steve Prosser
City of Lincoln Community Development Department
June 21, 2021
through the “conservation strategy” that houses landscape-level biological goals and objectives. The Court of Appeal has rejected the idea that imposing conservation easements on agricultural operations was acceptable. (County of Colusa v. California Wildlife Conservation Bd. (2006) 145 Cal.App.4th 637, 652-654.) Noting without judicial intervention that the State would have felt it had the green light to convert agricultural land to wildlife preserves, and over time this would have an adverse effect on agriculture in the state. (Ibid.) This is precisely the strategy the DPREIR is attempting to use.
1. No agricultural production is required to be mitigated and mitigation ratios are for biological resources.
Preventing significant, avoidable, and negative environmental impacts by requiring feasible mitigation measures is one of CEQA’s primary purposes. (Pub.
Resources Code, § 21002; CEQA Guidelines, §§ 15002. subd. (a)(3), 15021, subd. (a)(1).) Mitigation included in Mitigation Measure 3.2-1 potentially does nothing to lessen the impacts to agricultural production, and farmland conversion impacts of the Project.
In the summary of Mitigation Measure 3.2-1, the DPREIR lists several ways agricultural acreage will be mitigated. (DPREIR, p. 3.2.25 – 26.) First, the amount of acreage being protected is unclear, it states the PCCP will acquire 10,050 acres of agricultural land, 2,000 will be rice and 8,050 will be dedicated to other agricultural uses, but the numbers to be protected are 8,240 total, 2,000 of which will be rice land. (PCCP, p. 5-63.) The DPREIR also confuses what will and will not be included by noting the 8,240 and 2,000 acre numbers later in the paragraph. Is the PCCP protecting 2,000 acres of rice land and 8,050 acres of other agricultural uses, or is it protecting 8,240 total acres of agriculture, 2,000 of which are rice land? As written, it is unclear how much agricultural land could be protected to mitigate the impacts of V5SP.
Regardless of these numbers the agricu ltural impacts are still not addressed.
Objective AO-1.1 Protect Agricultural Lands and Other Open Space, requires protection of 8,240 acres of agricultural lands or natural communities. (PCCP, p. 5-33.) The 8,240 acres will be comprised of 2,000 acres of rice land, and 6,240 acres of other agricultural land. (Ibid.) However, the 2,000 acres is not being protected for rice land, but for giant garter snake habitat, and can be substituted for “wetland equivalent.” (Ibid.) Therefore, there are potentially zero acres of rice being protected or mitigated, this is not an adequate mitigation measure for agricultural impacts. Additionally, the other 6,240 acres are not required to be put to agricultural use either, “it may be substituted by any Steve Prosser
City of Lincoln Community Development Department
June 21, 2021
natural community.” (PCCP, p. 5-59.) The PCCP defines natural community as “a collection of species that co-occur in the same habitat or area that interact through trophic and spatial relationships. For purposes of the Plan, communities are typically characterized by reference to one or more dominant species, vegetation, or characteristic wetland feature. The Plan recognizes six natural communities in the Plan Area.” (PCCP, p. 3-28.) None of the six natural communities include agriculture. (PCCP, p. 3-25.) The PCCP goes on to admit the goal is not to protect agricultural resources, but to protect natural communities. “Protecting agricultural land will preclude future development from permanently fragmenting the landscape in the Valley RAA. An advantage of preventing development on agricultural lands is that these lands, unlike developed lands, will be available for potential conversion to natural communities in the future.” (PCCP, p. 5-34.) Even if agricultural lands were protected the purpose is to convert them into natural communities.
Mitigation Measure 3.2-1 relies on the m itigation ratios put forth in Mitigation Measures 3.4-1 and 3.4-2. However, the DPREIR fails to identify how these ratios will be fulfilled. The PCCP covers over 260,000 acres, 116,802 acres is agricultural land (7,804 acres field/orchard, 89,418 acres rangeland, and 19,580 acres rice land). (PCCP, p. 2-3.) The mitigation ratios only attach to vernal pools, wetlands, and open water. (DPREIR, pp. 3.2-19 – 20.) Therefore, it is unclear what Mitigation Measure 3.2-1 requires, other than perhaps rice land is equivalent to wetlands, and therefore rice falls under the mitigation ratios.
2. Mitigation Measure 3.2-1 PCCP Objectives.
The DPREIR also relies on various PCCP objectives to show agricultural impacts will be mitigated. As noted below, each of these Objectives is not dedicated to agriculture, much like Mitigation Measure 3.2-1.
Objective L-1.1 establishes an interconnected “Reserve System of at least 47,300 acres of natural communities, agricultural habitat, and Covered Species’ habitat.” (PCCP, p. 5-12.) First, this Objective falls under the “Landscape-level Biological Goals and Objectives” section, as previously noted, mitigation of biological resources does not mitigate agricultural impacts. The DPREIR includes this Objective in the summary of Mitigation Measure 3.2-1, ostensibly for the purpose it uses the words “agricultural habitat,” however, the rationale of the Objective has nothing to do with agriculture, and instead, “is intended to protect the highest quality natural communities and Covered Species’ habitat in the Plan Area to optimize the ecological value of the Reserve System Steve Prosser
City of Lincoln Community Development Department
June 21, 2021
for conserving Covered Species and native biodiversity.” (PCCP, p. 5-13.) Though the City would like to connect this Objective to agricultural mitigation, this pursuit is faulty.
Objective L-2.4 is to prov ide connectivity from Yuba County to Nevada County. (PCCP, p. 5-14.) Again, this Objective falls under the “Landscape-level Biological Goals and Objectives” section. The purpose of the Objective is to maintain connectivity and though it is presumed some of the lands will be agricultural lands, it does not specifically provide any protections or mitigation for agricultural impacts.
Objective AO-1.1 and Objective GGS-1.1 have been discussed above. Though the DPREIR suggests these two objectives provide protection of 8,240 acres of agricultural lands, this simply is not true. The 2,000 acres protected under GGS-1.1 can be rice or wetlands, and the other 6,240 can be any natural community. Much like the other Objectives listed in Mitigation Measure 3.2-1, these have potentially no agricultural impact mitigation value.
It is unclear whether Mitigation Meas ure 3.2-1 is a mitigation measure for agricultural impacts. The DPREIR and the PCCP convolute what lands will be preserved, and for what reason. There are several instances in the Mitigation Measure, where the City has seemingly added every PCCP Objective that hints to agricultural lands. However, the bottom line is the DPREIR fails as an informational document.
CEQA requires an EIR to inform the public of significant environmental effects of the project, and possible ways to minimize those effects. (CEQA Guidelines, § 15121, subd. (a).) Additionally, the DPREIR fails to do this. “Mitigation measures must be “roughly proportional” to the impacts of the project,” here there is simply no proportion because none of the actions required in the mitigation measure are directly linked to agricultural impacts. (CEQA Guidelines, § 15126.4, subd. (a)(4)(B).) Therefore, the City has described an impact that will be significant, and has provided essentially no mitigation measures to combat the impact.
C. The DPREIR fails to adequately analyze and mitigate impacts to biological resources
Impact 3.4-2 considers whether “Implementation of the proposed project could result in adverse impacts to special-status species, either directly or through habitat modifications.” (DPREIR, p. 3.4-60.) Reliance on the PCCP fails to adequately mitigate this impact.
As a threshold matter, bare reliance on regulatory compliance is inadequate to mitigate an impact where, the agency fails to adequately analyze the impacts. “A Steve Prosser
City of Lincoln Community Development Department
June 21, 2021
determination that regulatory compliance will be sufficient to present significant adverse impacts must be based on a project-specific analysis of potential impacts and the effect of regulatory compliance.” (Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar. 2d ed. 2020) § 14.15, p. 14-20.3.) The record reveals there has been no such project-specific analysis here. The DPREIR provides, “No surveys have been conducted in the Plan area” - including Area A that is purportedly analyzed on a project level – for the following species that have a “high” or “medium” potential to occur: western pond turtle, western spadefoot toad, tricolored blackbird, grasshopper sparrow, short-eared owl, burrowing owl, ferruginous hawk, Swainson’s hawk, northern harrier, western yellow-billed cuckoo, white-tailed kite, snowy egret, prairie falcon, loggerhead shrike, long-billed curlew, black-crowned night heron, purple martin, pallid bat, Townsend’s big-eared bat, American badger . (DPREIR, pp. 3.4-17 – 21.) The fact that a few species were surveyed in Area A demonstrates the feasibility of doing similar surveys for other species prior to preparing the DPREIR. (Save the Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665, 692.) No explanation is provided as to why such surveys were not performed.
Bare reliance on compliance with the PCCP is inadequate since the City has not performed the minimum studies necessary to inform itself and the public regarding presence of special-status species. Since its actual surveys were limited to “brachiopod dry season surveys” performed in 2014, the DPREIR instead expressly relies on three databases, including the California Natural Diversity Database (“CNDDB”), to identify the species that have the potential to occur within the V5SP. (DPREIR, p. 3.4-23.) This is improper since these databases are not intended to be used as substantial evidence that species are not present. In fact, the CNDDB’s license agreement includes a specific admonition to this effect:
DFW does not portray its databases as an exhaustive or comprehensive inventory of all rare sp ecies and natural communities statewide. For any given location in California, a lack of species occurrences or records in no way indicates or implies that the species do not occur there. Field observations by qualified persons a nd using the proper protocols at appropriate times are nece ssary to support negative findings. Much of the state has never been surveyed for plant and animal species. (Exhibit 1, CNDDB License Agreement, ¶ 6.)
Steve Prosser
City of Lincoln Community Development Department
June 21, 2021
While mere reliance on database searches is never adequate, it is certainly inadequate to rely on such searches that are between five and six years old. (DPREIR, p.
3.4-23.)
Setting aside the DPREIR’s failure to perform an adequate investigation, exclusive reliance on the PCCP to mitigate impacts to sensitive species is facially inadequate. The PCCP is limited in its application to only 14 species. (DPEIR, p. 3.4-51.) As set forth above, however, many other special-status species have a high to medium potential for occurring in the V5SP area. The PCCP itself makes clear that it simply does not address impacts to these other species:
In addition to complying w ith the terms and conditions of the Plan for take of Covered Species, project applicants must comply with all other applicable laws and regulations related to species protection, including, but not limited to, the Bald and Golden Eagle Protection Act; California Fish and Game Code Sections 3503 (eggs an d nests of birds), 3503.5 (birds of prey), 3505 (specified birds), and 1 900 et seq. (rare plants); and any California Fully Protected species or CESA-listed species not addressed by this Plan.
(PCCP, p. 6-18.)
Therefore, if the PCCP is “in operation” and therefore the City relies on mitigation measure 3.4-2(a) to address impacts to all special-status species, 1 there is literally no
identifiable mitigation for direct or indirect impacts to western spadefoot toad, grasshopper sparrow, short-eared owl, northern harrier, white-tailed kite, loggerhead shrike, purple martin, pallid bat, Townsend’s big-eared bat or American badger.
D. The DPREIR Fails as an informational document regarding transit impacts
1. The City cannot refuse to address potential impacts to transit capacity.
The DPREIR correctly notes, “The Court also ruled that the 2017 EIR did not provide an adequate discussion or analysis of the Project’s impacts to transit, rendering that portion of the 2017 EIR inadequate as an informational document.” In doing so, the Court agreed with the Scheibers that the original EIR “never identifies – quantitatively or
1 The DPREIR provides no information about what is meant by “the County and City processes for designating project impacts as covered under the PCCP have not been established.”
Steve Prosser
City of Lincoln Community Development Department
June 21, 2021
even qualitatively – the ‘demand for mass transit services’ created by the V5SP or the additional ‘capacity’ that the V5SP would create. . . . Thus, there is no information informing the public whether the V5SP will create demand for transit that is above the capacity that it will provide.”
Incredibly, rather than simply comply with the Court’s judgment by providing the omitted analysis, the City actually eliminated the significance standard requiring the analysis in the first place. (DPREIR, 3.15-42.) However, case law does not allow such transparent manipulation of an agency’s significance standards to avoid analysis of potentially significant impacts. (CEQA Guidelines, § 15064, subd. (b)(2) [“Compliance with the threshold does not relieve a lead agency of the obligation to consider substantial evidence indicating that the project’s environmental effects may still be significant”]; see also East Sacramento Partnership for a Livable City v. City of Sacramento (2016); 5 Cal.App.5th 281, 300; Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1109 (Amador Waterways) [“[I]n preparing an EIR, the agency must consider and resolve every fair argument that can be made about the possible significant environmental effects of a project”].) This is particularly true where, as here, an agency affirmatively eliminates a previously-used significance standard for no other reason than to avoid addressing a potentially significant impact.
While not explained in the DPREIR itself, buried in a technical report is a consultant’s assertion that the significance standard was eliminated “to reflect updates to the CEQA Guidelines in response to SB 743, and in light of guidance released after the Final EIR in the Office of Planning and Research’s Technical Advisory on Evaluating Transportation Impacts in CEQA (December 2018).” (Appendix M, pp. 1-2.) 2 The OPR
Guidance does not support elimination of transit capacity as a CEQA issue.
CEQA Guidelines section 15064.3, subdivision (a) states, “Other relevant considerations may include the effects of the project on transit.” Subdivision (b)(3) of that same Guideline states that even a qualitative analysis of transportation impacts “would evaluate factors such as the availability of transit, proximity to other destinations, etc.” OPR’s Guidance, upon which the DPREIR purports to follow, includes a section entitled “Impacts to Transit” and states in relevant part:
Because criteria for determining the significance of transportation impacts must promote “the development of multimodal transportation networks” pursuant to Public Resources Code section 21099, subd. (b)(1), lead
2 The DPREIR claim that elimination of the transit capacity significance standard is justified by subsequent revision to the CEQA Guidelines is addressed immediately above.
Steve Prosser
City of Lincoln Community Development Department
June 21, 2021
agencies should consider project impacts to transit systems and bicycle and pedestrian networks.
(OPR Guidance, p. 19.)
While it is true that the OPR Guidance states, “Lead agencies generally should not treat the addition of new transit users as an adverse impact,” the mere addition of riders is not the same as overwhelming transit capacity.
3 Confirming this interpretation, the OPR
Guidance further states, “Increased demand throughout a region may, however, cause a cumulative impact by requiring new or additional transit infrastructure.” In other words, OPR Guidance provides that increasing demand above capacity is at least a cumulative impact. The DPREIR does not address cumulative transit capacity.
2. The City’s alternative attempt to address transit capacity fails even under substantial evidence.
Implicitly acknowledging that it may not simply disregard the Court’s direction to prepare a transit analysis, the City purports to provide some information in this regard under undefined “near-term” and “long-term” conditions. (DPREIR, pp. 3.15-62 – 66,
3.15-100 – 103.) However, this cursory analysis is fatally flawed.
The DPREIR’s undefined “near-term” analysis defies simple logic. The critical analysis is contained in a section entitled “Initial V5SP Transit Passenger Demand,” but conspicuously fails to actually analyze transit demand in favor of transit availability. The DPREIR states, “[B]ecause the V5SP does not identify fixed-route transit service expansion into the V5SP area, transit options for V5SP residents, employees, and visitors would initially be limited.” (DPREIR, 3.15-64.) This is nonsensical. Applying the same argument, constructing homes without running water or toilets would also result in “nominal” demand for potable water and sewage treatment. The DPREIR’s misapplication of the Transit Capacity and Quality of Service Manual, 3rd Edition
3 The OPR Guidance also supports its statement that “lead agencies generally should not treat the addition of new transit users as an adverse impact” with subsequent reference “[a]n infill development” that “may add riders to transit systems and the additional boarding and alighting may slow transit vehicles, but it also adds destinations, improving proximity and accessibility.” The V5SP is not an infill development.
Steve Prosser
City of Lincoln Community Development Department
June 21, 2021
(“Transit Manual”) on this point is inexcusable,
4 and does not constitute a serious, much
less expert, analysis of the V5SP’s “near-term” demand for transit.
That said, the DPREIR’s citation to the Transit Manual actually further supports the need for a bus line under near-term conditions. Area A, which is the first phase of the V5SP, includes 2,417 residential dwellings within 432.4 acres. (DPREIR, p. 108.) This translates to a density of 5.59 units per net acre, which is individually well above the Transit Manual’s threshold of 4.5 units per acre5 - in addition to 1,094,000 square feet of non-residential. Thus, Area A, viewed in isolation, requires a dedicated local bus line with one bus per hour under “near term” conditions according to the DPREIR’s own cited authority.
The DPREIR also misapplies the Transit Manual with respect to “long-term” conditions. The fact that “[l]ocal and regional transit plans and policies do not establish what are referred to as ‘new service warrants’” is not an excuse to inadequately address the issue. (CEQA Guidelines, § 15064, subd. (b)(2); Amador Waterways, supra, 116 Cal.App.4th at p. 1106-1109.) While it is established above that the Transit Manual does not even purport to be a “ridership forecasting model, even that document squarely demonstrates the need for one or two dedicated bus lines under “full buildout” conditions.
DPREIR Table 1-1 clarifies that V5SP full buildout is 8,188 dwellings within 2093.94 net acres, or 3.9 dwellings per acre. While this might individually appear less than the threshold of 4.5 dwellings per acre, the V5SP also includes 4,599,4000 square feet of non-residential space, which in insolation is very close to the Transit Manual’s 5 million square foot threshold. The combination of 3.9 dwellings per acre and 4,599,400
4 Fehr & Peers asserts, with no citation to authority whatsoever, “Transit passenger demand is determined by the transit service characteristics (e.g., service levels, quality, access, etc.) within a given service area and its underlying land use, socioeconomic and travel patterns.” (Appendix M, p. 16.) One must speculate that this is unsupported assertion a strained interpretation of Transit Manual page 3-18. Setting aside its obvious logical failure, the Transit Manual itself plainly states, “”[T]he TCQSM is not a ridership forecasting manual” and only provides “a high-level overview of some of the external factors that influence transit demand.” The Transit Manual provides no support for Fehr & Peer’s purportedly expert opinion that failing to provide transit infrastructure means that transit demand is therefore nominal.
5 The Transit Manual clarifies that it uses “net acres, which count only the land actually developed as residential use” as opposed to “gross acres, which represent total land area, including that used for streets or not developed.” (Transit Manual, p. 3-19.) Steve Prosser
City of Lincoln Community Development Department
June 21, 2021
easily puts V5SP full buildout well over the threshold for requiring a dedicated local bus line according to the Transit Manual, and perhaps two lines.
3. Transit mitigation is required by CEQA and the City’s General Plan.
Despite the City’s own authority squarely demonstrating the need for at least one dedicated bus line to the V5SP, the DPREIR finds the impact to be less than significant without the need for any mitigation. The DPREIR purports to justify this conclusion by suggesting that the V5SP’s transit demand could perhaps be met by various regional transit programs that may or may not actually be implemented. CEQA prohibits reliance on such speculation to the exclusion of feasible and enforceable mitigation. (CEQA Guidelines, § 15126.4.)
The City’s failure to require specific dedicated transit for the V5SP also violates its General Plan, to wit:
LU-15.5 Connectivity. New villages shall provide connectivity to other Villages and the deve loped portions of th e City. This connectivity shall be in the form of roadways, transit co nnections, and bicycle and pedestrian linkages.
T-4.4 Funding for Public Transit. Th e City shall . . .require that new employment‐generating, large ‐scale commercial, office, and residential development be adequately served by transit.
T-4.6 Expansion of Trans it Service Areas. The City shall expand fixed route transit service to serve new de velopment areas, including direct connections to employment and commercial areas.
The City’s hope that regional programs might someday provide adequate transit service to the V5SP violates the above mandates in its own General Plan. This is particularly true regarding Area A, which is by far the densest portion of the V5SP and purports to be analyzed on a project level in the DPREIR.
E. The DPREIR has failed to analyze the V5SP’s impact on Vehicle Miles Traveled
Fehr & Peers notes, “The significance criteria used in the Draft PREIR is updated from that included in the Village 5 Specific Plan Final EIR (July 2017) to reflect updates to the CEQA Guidelines in response to SB 743.” But this is not the only revision in response to SB 743. CEQA Guidelines Appendix G also now includes the question:
“Would the project conflict or be inconsistent with CEQA Guidelines section 15064.3, Steve Prosser
City of Lincoln Community Development Department
June 21, 2021
subdivision (b).” This significance criteria requires an analysis of the V5SP’s impact on vehicle miles traveled (“VMT”). Neither the City nor Fehr & Peers explains why it analyzed the V5SP based on one revision to the significance criteria but not the other.
The City cannot rely on updated thresholds only when doing so eliminates consideration of environmental impacts. Having purported to base its revised analysis of transportation on the current version of Guidelines Appendix G Section XVII, it must address all issues set forth in that section. This is particularly true in light of the new revelation that the V5SP does not include transit infrastructure required to meet its demand for transit – under both “near term” and “full buildout” conditions – that will, in turn, result in greater vehicle use than initially contemplated.
The City cannot avoid its lawful duty to analyze the V5SP’s impact on VMT by pointing to the fact that the DPREIR is being prepared on remand from the superior court. (Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 324-327; Ione Valley Land, Air, & Water Defense Alliance, LLC v. County of Amador (2019) 33 Cal.App.5th 165, 170). The City’s failure to adequately address the V5SP’s VMT impacts could not have been raised earlier since CEQA Guidelines section 15064.3 was not applicable to the V5SP until July 1, 2020, long after the statute of limitations for a challenge to the original approval had expired.
* * *
The DPREIR fails to adequa tely address the informational deficiencies identified by the superior court and also violates CEQA as well as the City’s General Plan. A new DPREIR will need to be prepared and circulated for public review and comment.
Very truly yours,
SOLURI MESERVE
A Law Corporation
By:
Patrick M. Soluri
Attachments:
Exhibit 1: CNDDB License Agreement
EXHIBIT 1
California Department of Fish and Wildlife
Biogeographic Data Branch
California Natural Diversity Database
License Agreement for the California Natural Diversity
Database
June 2018
The following terms and conditions govern the use of data from the Department of Fish and Wildlife’s (DFW) California Natural Diversity Database (CNDDB). By using the CNDDB applications, associated CNDDB Geographic Information Systems (GIS) data, and/or the Spotted Owl Database, the user agrees to the following:
1. The CNDDB and Spotted Owl Database are proprietary databases owned by the California Department of Fish and Wildlife.
a) The user may not resell, redistribute, or repackage CNDDB or Spotted Owl data, except as allowed by this agreement.
b) The user may make copies of the CNDDB and Spotted Owl data in digital or hardcopy form for use or distribution within the local office of the user’s department, agency, business, or corporation. This copy privilege does not extend to professional organizations, associations, or affiliations.1
c) Subcontractors may have access to these data during the course of any given project, but they must not be given a copy, or access, for use on subsequent, unrelated work.2 d) The CNDDB and Spotted Owl data may be shared freely between current subscribers, but should not be released to the public or non-subscribers.
2. The CNDDB is dynamic. DFW adds, modifies, and updates records daily, and the CNDDB data in our web applications are updated on a regular basis. It is the user’s responsibility to update their copy of the CNDDB GIS data from the CNDDB webpage. Check the Updates page and log in to download the current version.
3. When creating maps for public viewing, please refer to our Data Use Guidelines document to answer questions regarding the appropriate ways to depict CNDDB data in user products.
Correct interpretation of the CNDDB GIS data relies on utilizing the biological attribute data embedded in the GIS polygon features. For information on interpreting the data within the Spotted Owl Database, please refer to the Spotted Owl Information page.
4. When creating static or interactive maps or products for public viewing in print or over the internet, care must be taken not to violate our “no redistribution or repackage” clause (see
1.a. above). The information within these databases may not be displayed over the internet except with DFW’s express permission. DFW understands there are situations where an organization may need to display CNDDB and Spotted Owl data on its website for business purposes. In those cases, the user must contact the CNDDB program for guidance and written permission on how to properly display CNDDB data on the website. As a general rule, data from the CNDDB and Spotted Owl Database may only be displayed at such a scale (no larger than a scale of 1:350,000), or in such a way that the viewers/users cannot determine exact location information of the elements mapped in the system. The CNDDB
1 Such groups may not purchase one subscription for distribution to all members of the group. 2 Consulting firms that subcontract work on portions of a project to another contractor that is not a subscriber may share the CNDDB data for that project. However, the subcontractor must relinquish access to the data when that work is completed. Counties that subscribe to the CNDDB may not share their subscription copy of RareFind with all consultants that develop EIRs for their Planning Office; those consultants must subscribe individually to the CNDDB.
and Spotted Owl data include location information for the state’s most imperiled species, and these are sensitive resources.
5. Data within the CNDDB and Spotted Owl Database require biological expertise for proper analysis, interpretation, and application. It is the user’s responsibility to ensure that the data obtained from DFW are used correctly. DFW staff are available by phone to advise users in the technical aspects of the data. In addition, DFW has tutorials and videos online to help interpret the CNDDB and Spotted Owl data. DFW periodically offers CNDDB training. Visit the CNDDB’s training page for information on these resources.
6. DFW does not portray its databases as an exhaustive or comprehensive inventory of all rare species and natural communities statewide. For any given location in California, a lack of species occurrences or records in no way indicates or implies that the species do not occur there. Field observations by qualified persons and using the proper protocols at appropriate times are necessary to support negative findings. Much of the state has never been surveyed for plant and animal species.
7. The user’s contribution of data to the CNDDB and Spotted Owl Database is important and encouraged. DFW accepts data in many formats. For the CNDDB, please visit our reference webpage Submitting Data to the CNDDB for guidance on data submissions. For Spotted Owl data submissions, please contact the Spotted Owl Data Manager ([email protected]).
8. Citations to the CNDDB and/or Spotted Owl Database shall be made in the user’s reports, papers, publications, internet products, and maps that incorporate CNDDB or Spotted Owl data.3
3 Citations should include the version of the database used (government or commercial, month and year), as well as the platform (e.g. Rarefind, BIOS, CDFW Data Portal) and date accessed. Version information can be found in the Metadata for GIS datasets, or in the margins of reports (lower left corner of CNDDB RareFind reports, upper left corner of Spotted Owl reports).
Examples:
California Department of Fish and Wildlife. (2018). California Natural Diversity Database (CNDDB) – Government version dated June 1, 2018. Retrieved June 08, 2018 from https://map.dfg.ca.gov/rarefind/view/RareFind.aspx.
California Department of Fish and Wildlife. (2018). Spotted Owl Observations [ds704] – version updated May 31, 2018. Retrieved June 8, 2018, from http://bios.dfg.ca.gov.
CAUTION: This email originated from outside the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
From: Lorraine Greco
To: Paul Joiner; Holly Andreatta; Ben Brown; Dan Karleskint; William Lauritsen Cc: Sean Scully; Kristine Mollenkopf; Gwendolyn Scanlon Subject: Village 5 Annexation
Date: Thursday, February 09, 2023 10:32:08 AM
Mayor Joiner and Council Members Andreatta, Brown, Karleskint and Lauritsen, We are writing to express our continued support for the Village 5 annexation and to encourage you to approve the related tax share agreement with Placer County as soon as possible. We understand that the agreement is expected to appear on your February 14th meeting agenda and we hope you can approve so the process can proceed.
We are long time land owners in Village 5 and have been attending workshops and meetings since the beginning.
Thank you.
Nick and Lorraine Greco
CAUTION: This email originated from outside the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
From: Gayle Moore
To: Paul Joiner; Holly Andreatta; Ben Brown; Dan Karleskint; William Lauritsen Cc: Sean Scully; Kristine Mollenkopf; Gwendolyn Scanlon Subject: Village 5 Tax Share Agreement
Date: Thursday, February 09, 2023 12:42:50 PM
Mayor Paul Joiner
City Council Members, Holly Andreatta, Ben Brown, Dan Karleskint, Bill Lauritsen, As a landowner in Village 5, I am encouraging you to approve the Village 5 tax-share agreement as part of the annexation process as soon as possible, specifically at your next meeting on February 14th.
Thank you
for your consideration.
Gayle Moore, Trustee
Moore Family Trust
Moore Road
Lincoln, CA 95648
RESOLUTION 2023 - ###
RESOLUTION OF CENSURE OF COUNCILMEMBER WILLIAM LAURITSEN
WHEREAS, on May 10, 2022, the Lincoln City Council disavowed the unprofessional and inappropriate conduct of Councilmember William Lauritsen by imposing the discipline of censure as set forth in Resolution 2022-113; and
WHEREAS, Councilmember Lauritsen has failed to apologize or express remorse for the conduct that gave rise to his censure; and
WHEREAS, Councilmember Lauritsen has since continued to engage in ad hominem attacks of his fellow councilmembers , escalating the unprofessionalism and animosity during council meetings and in public forums; and
WHEREAS, notice of this action has been given to Councilmember Lauritsen as he was the councilmember who requested consideration of the repeal of his censure be placed on the agenda for discussion on February 14, 2023.
NOW THEREFORE BE IT RESOLVED:
Section 1. The foregoing Recit als are true and correct and inc orporated herein by reference.
Section 2. Councilmember Lauritse n’s conduct as described herein and in Resolution 2022-113 is disavowed by this Council, and the reprimand and discipline of censure is reaffirmed.
Section 3. Because Councilmember Lauritsen has demonstrated his inability to honorably and professionally carry out his duties when representing the City and his colleagues, removal from all City an d regional committees and commissions is reaffirmed for the balance of his term of office.
Section 4. Because it is readily apparent Councilmember Lauritsen need s comprehensive professional training and coaching, the discipline set forth in Section 4 of Resolution 2022- 113 is hereby lifted. The City is authorized to pay the expense of trainings and appropriate conferences requested by Councilmember Lauritsen and approved by the Mayor.
Section 5. Councilmember William Lauritsen has refused to resign from office in the best interests of the City despite repeat requests from his colleagues to do so; therefore, Section 5 of Resolution 2022-113 is withdrawn.
PASSED AND ADOPTED this 14th day of February, 2023.
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ACTION
SUMMARY
Feb. 14, 2023
Regular
Meeting
¤ Page 1
Minutes – January 24, 2023
2nd Read & Adopt Skate Park Ordinance
NOC – Meadowlands Lot 6
NOC – Meadowlands Park
NOC – McBean Stadium Bleacher
Kimley Horn Task Order – Moore Rd. Class I Trail
Public Works Purchase Caterpillar Roller & Ford F350
Esplanade @ Turkey Creek Ph 5A,B&C Final Map
Hoitt Area Waterline Replacement – Flowline Contract
Youth Development Plan Appropriation
Presentation CONSENT
ITEM -- -- -- 8A 8B 8C 8D 8E 8F 8G 8H 8I 8J -- -- -- -- RESO/ORD# -- -- -- -- 1059 022 023 024 025 026 027 028 029 -- -- -- -- Andreatta -- -- -- 1 1 1 1 Y 1 1 1 1 2 -- -- -- --
Brown -- -- -- 2 2 2 2 2 2 2 2 2 Y -- -- -- --
Karleskint -- -- -- Y Y Y Y 1 Y Y Y Y Y -- -- -- --
Lauritsen -- -- -- Y Y Y Y Y Y Y Y Y 1 -- -- -- --
Mayor Joiner -- -- -- Y Y Y Y Y Y Y Y Y Y -- -- -- --
ACTION
SUMMARY
Feb. 14, 2023
Regular
Meeting
1st Read Ordinance 1059 – Committee Attendance
Financial Policies
Village 5 Specific Plan EIR Addendum – PCCP clarification Village 5 Specific Plan Tax Agmt. w/Placer County
Appt Andreatta/Karleskint to 2x2 Term Tax Share Committee Airport Leasing Strategy Discuss
Minute Order - Councilmember Lauritsen Partial Lift of
Censure Restrictions w/Review in Nov. 2023
CONSENT Public Hearings General Business CIB
ITEM -- -- -- -- -- -- -- -- -- 10A 10B 10C 10D 10E -- 12A RESO/ORD# -- -- -- -- -- -- -- -- -- 030 031 032 -- -- -- -- Andreatta -- -- -- -- -- -- -- -- -- Y N N 1 -- -- 2
Brown -- -- -- -- -- -- -- -- -- 1 Y 2 2 -- -- 1
Karleskint -- -- -- -- -- -- -- -- -- Y 2 1 Y -- -- Y
Lauritsen -- -- -- -- -- -- -- -- -- 2 1 Y N -- -- N
Mayor Joiner -- -- -- -- -- -- -- -- -- Y Y Y Y -- -- Y