Minutes of the Joint Meeting of the Oakley City Council/Oakley City Council Acting as the Successor Agency to the Oakley
Redevelopment Agency/Oakley Public Financing Authority held April 11, 2023
1) OPENING MATTERS
1.1 Call to Order and Roll Call of the Oakley City Council/Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency/Oakley Public Financing Authority
Mayor Aaron Meadows called the meeting to order at 6:31 p.m. in the Oakley City Council Chambers located at 3231 Main Street, Oakley, California. Vice Mayor Anissa Williams and Councilmembers George Fuller, Hugh Henderson and Shannon Shaw were also present.
1.2 Pledge of Allegiance to the Flag (Sophia Williams, 5th Grade Laurel Elementary School Student)
Mayor Meadows introduced Sophia Williams who led the Pledge of Allegiance to the Flag. 2) PUBLIC COMMENTS
Juan Venegas, field representative for Carpenter Union Local 152, commented that labor standards language (apprenticeship, health care and local hire) is critical for future construction projects, he explained the benefits, and asked the Council how it can better support the working class in Oakley.
Carol Manning expressed opposition to the proposed cannabis facility at the Continente Ranch and expects any Councilmember that owns commercial land/buildings or has a professional relationship with Continente, recuse his/herself from any future vote as it related to this issue.
She read testimonials from people trying to kick their addiction to weed. She asked the City to consider that families do not want this. She mentioned Antioch has seen zero benefit from allowing it. She asked the Council to vote against it.
Rebecca Mears submitted an online comment which has been made part of the meeting record and is available through the City’s website.
3) CONSENT CALENDAR
3.1 Approve Minutes from the Regular Joint City Council/City Council Acting as the Successor Agency to the Redevelopment Agency and Special Public Financing Authority Meeting Held March 28, 2023 (Libby Vreonis, City Clerk)
3.2 Accept Report Out of Closed Session Memo (Derek P. Cole, City Attorney)
3.3 Award of Construction Contract to Campanella Corporation for the demolition of the Sheriff Annex Building – Capital Improvement Project Number 271 (Kevin Rohani, P.E., Public Works Director/City Engineer)
Councilmember Fuller requested to pull item 3.1.
Vice Mayor Williams requested to pull item 3.3.
It was moved by Councilmember Shaw and seconded by Vice Mayor Williams to approve item
3.2. Motion was unanimous and so ordered. (5-0)
Item 3.1
Councilmember Fuller submitted revisions to the minutes regarding the Council’s discussion on mutual aid.
It was moved by Vice Mayor Williams and seconded by Councilmember Henderson to continue the item to the next meeting to allow the City Clerk to review the proposed changes. Motion was unanimous and so ordered. (5-0)
Item 3.3
Vice Mayor Williams commented that she pulled the item to bring attention to it and it’s a good time to look at the City’s policy to support Oakley businesses, such as here where they came in close to the lowest bid.
It was moved by Vice Mayor Williams and seconded by Councilmember Shaw to approve item
3.3. Motion was unanimous and so ordered. (5-0)
Mayor Meadows announced he will return to Public Comments as he had a buried speaker card. See comment (item 2.0, supra).
Mayor Meadows announced item 5.1 (infra) will be heard before Public Hearing items. 4) PUBLIC HEARINGS
4.1 Zoning Ordinance Text Amendments to Article 12 of Chapter 1 of Title 9 of the Oakley Municipal Code (“Special Land Uses”) – Adding Four Subsections to Address Drive-Through Restaurants, Carwashes, Gas Stations, and Self-Storage (RZ 04-21) (Continued from January 24, 2023) (Ken Strelo, Planning Manager)
Determine the Proposed project is Exempt from environmental analysis under the requirements of the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines section 15061(b)(3).
Planning Manager Ken Strelo presented the staff report and provided a PowerPoint presentation.
Vice Mayor Williams inquired who maintains the property to ensure performance standards are enforced, i.e., litter.
Mr. Strelo explained it is applicable to the use, the person or business operating the use, and ultimately the property owner in a code enforcement matter; however, if a business is not meeting the standards, the use permit could be brought back for reconsideration.
Mayor Meadows inquired who maintains the common area.
Mr. Strelo explained compliance is the goal so if there were an issue with the litter, staff would go to the property owner and hopefully the shopping center has a maintenance agreement. He mentioned commercial property standards need to be addressed in the future.
Councilmember Fuller requested clarification that only up to 2 drive-through restaurants/car washes can be built in a 5-acre area and only up to 3 can be built in an 8-acre area, which Mr.
Strelo confirmed is correct. He inquired if this would apply to the current CUP situation at Laurel Plaza or if it would be grandfathered.
Mr. Strelo mentioned this specific ordinance would not apply to applications already in place; this would apply to applications deemed complete after the ordinance is effective.
Mayor Meadows opened the public hearing.
Public Comments
Diane Merritt suggested drive-throughs should be placed away from housing, closer to the freeway; they are getting obnoxious, creating problems and issues, and she wants to see the City do better. She expressed that she is not in favor.
Shelly Fitzgerald commented that the ordinance to address oversaturation and incompatibility has morphed into something completely missing the mark, the corridor was poorly planned, and updating the ordinance now will address future incompatibilities throughout the city to provide buffers and a proactive approach to sensitive uses. She addressed a comment made by City Attorney Derek Cole during the Council meeting held January 24 which she disagreed with as there are examples of other shopping centers that are thriving without these sensitive uses. She provided examples of other cities that have adopted buffers or bans on sensitive uses to protect cities and guide growth.
Liz Elias expressed opposition to the ordinance because it has no teeth; it is written like a facilitation for developers and removing buffers between schools is a bad idea. She added Oakley doesn’t need any more sensitive use businesses; Oakley needs more things to do. She suggested the Council vote no and go back to the drawing board.
Conan Moats echoed what Liz and Shelly said and what so many in the community have said for a long time. He mentioned it is clear why the ordinance has been proposed, considering the items that follow it on the agenda. He expressed he is in favor of case-by-case adjudication and here it is clear the Council is trying to do what the developers want; there is no coincidence about the size of buffers, and the ordinance doesn’t pass the smell test. He also expressed health and safety concerns. He indicated the ordinance will only give a green light to more types of businesses residents do not want in the community.
Marci Lozoya, Lu Kovalick, Joe Kovalick and Paul Seger submitted online comments which have been made part of the meeting record and are available through the City’s website.
Mayor Meadows closed the public hearing.
Vice Mayor Williams referred to the sensitive uses section to add in. She inquired if that would give the City more strength if the Council has denied a CUP because it is next to a sensitive use and if it could be used to support one of the 5 findings which City Attorney Derek Cole confirmed is correct because it would define when there are sensitive uses and when they are incompatible, providing the Council and Planning Commission more guidance.
Vice Mayor Williams mentioned there is a provision that up to 2 drive-through restaurants/car washes can be built in a 5-acre area. She inquired if the Council can deny it if it is adjacent to a sensitive use.
Mr. Cole mentioned there are other factors they would need to know but generally if it doesn’t fit within these standards, the Council can deny it.
Vice Mayor Williams inquired what kinds of standards need to be put in for sensitive uses and if they need to be put in the zoning ordinance.
Mr. Cole explained they are defining sensitive uses in page 1 and in every section.
Councilmember Fuller commented he has reservations regarding the saturation, but they certainly need to be conditioned if they will be drive-throughs. He shared he has heard from many sources merchants are going toward drive-throughs and he is not happy about it, nor is he happy with smell and noise. He inquired how they address the buffer so the community doesn’t need to continually go through this. He mentioned it has been totally removed and he keeps hearing it’s because we can’t do that, but they still haven’t addressed the issue. He mentioned during the January 24, 2023 Council meeting, the Council said it would continue this item until judgment is made in court and now they are kind of backing out of that covenant. He expressed that residents have suffered so much over this issue; it’s time to litigate. He mentioned the Council provides the legislation and the court can decide in its judicial capacity, and this would be for the benefit of residents. He mentioned he knows Blackhawk can continue it and that means they are not building which is fine.
Mayor Meadows commented he can support the ordinance if they remove self-storage.
Mr. Cole requested clarification if he would remove section 5 of the ordinance and otherwise supports the rest of the ordinance which Mayor Meadows confirmed is correct.
Vice Mayor Williams inquired what happens if no motion is made.
Mr. Cole indicated it dies.
Vice Mayor Williams commented that everyone is aware this was brought here because we’re having issues; if anyone on Council did this in the past decade, they wouldn’t be having this conversation. She mentioned he is frustrated it is taking so long and she brought it a long time ago, but she doesn’t want to condemn a future generation to the same thing. She added that she wants to make sure what they are agreeing to is what the community is asking them to do that anyone could have done in the past 10-20 years to avoid the situation there are now in and if that is not the case and they don’t feel that this will address that in future; she would continue again because she wants to make sure it’s right.
Mr. Cole commented that ultimately the Council makes the decision, and he believes he and staff have presented a comprehensive package. He explained the ordinance would create strong performance standards, but at the end of the day would still allow discretion of a future Council and future Planning Commission. He addressed the issue of the school is confined to one specific location in the city and while it might be the cause for what they are looking at here, it would apply city wide.
Councilmember Fuller commented he heard there is a motion on the floor.
Vice Mayor Williams clarified she is only asking clarifying questions; no motion has been made.
Councilmember Fuller commented they are going back to same and that is why he was going to second it. He mentioned people continue to fight for children because somewhere along the way something was broken and children are not safe in elementary schools nationwide; they are targets. He expressed he is looking out on an audience in our community that have brought this forth repeatedly and they are sad, depressed and feel hopeless as no matter what happens they want a solution, but they don’t want anymore, and we keep saying they can’t; they have to do this. He mentioned this is isolated but now they can go to Orchard Park and build around that and if it is challenged, they will go to court, so now they are worried about marijuana growing up around schools.
Councilmember Shaw commented she understands this is about sensitive use, but this is for the whole city and they have areas that need gas and future development which is why the ordinance needs to be so broad. She reminded everyone that this ordinance will cover the entire city and protect sensitive uses.
Vice Mayor Williams mentioned there is an element of circulation, walkability, etc. She inquired what would be the proof of circulation if someone brings an application. She inquired if traffic studies analyze the pedestrian portion and if that would be used as justification for approving or not.
Mr. Strelo commented that if an application came in tomorrow for a drive-through or car wash, there would be a traffic memorandum that will look at established City guidelines, i.e., how many trips are generated by that use and any unsafe situation created by the site plan, fences, or bushes, but these types of things would not by default be required, He mentioned the ideas proposed here came from the discussions from the two CUPs throughout the year and the ideas came from the recommendations proposed to happen adjacent to the other two uses. He mentioned if an application comes in tomorrow, it would not be required to do any studies mentioned here. He mentioned he is not trying to sell the ordinance to the Council, but this would give staff more teeth than it currently has, and the applicant would still be required to have a CUP; this would give staff additional criteria to analyze the application.
Vice Mayor Williams inquired after staff receives an application and has analyzed it and brings it forward to the Planning Commission or Council, what studies will they have to back their decisions, so they are buffering themselves so if they deny something they are able to back it up if they are subject to a lawsuit. She asked if an application is submitted today if there is a study to back up walkability.
Mr. Strelo explained they have given specific criteria and benchmarks for applications to meet.
He shared that staff is writing this ordinance with the mindset to have higher standards for new businesses and design of new development to meet; they are not looking at it from the standpoint of if there are tools in here if it is challenged. He mentioned there are measures that address walkability; it would be pretty easy to do an analysis whether a project hits those marks.
Vice Mayor Williams inquired if they need to provide staff direction if they continue the item.
City Manager Joshua McMurray commented that there has been a considerable amount of time put into this ordinance; staff has tried to listen to Council direction and community input and has tried to capture all opinions and viewpoints and develop standards and codes that staff would have to apply and use as part of its analysis. He requested if the Council is going to continue the item, it provide specific direction so staff can try to hit the mark if staff fell short.
Councilmember Fuller agrees with Mr. McMurray. He mentioned staff has attempted for years to put this together and it is frustrating for residents, merchants and staff as they have competing forces. He moved to continue the item until the judge in Contra Costa County issues a ruling and then have the item return with hope that they will get enough clarification from the bench to give some direction for the City to resolve the disputes.
Mayor Meadows commented that the judge isn’t hearing this ordinance.
Councilmember Fuller commented that the ordinance is not going before the judge, but the judge will be addressing many of the issues they are discussing and if they can’t settle to the happiness of everyone, they should go with the judge’s final decision. He mentioned even if they take action now, they could be back here 18 months to 2 years from now because they’re worried about a lawsuit, but the lawsuit is in motion and they are awaiting a ruling. He suggested judicial review is warranted.
Vice Mayor Williams made an alternate motion to approve this item because it addresses that an applicant can come in tomorrow and we have nothing, and this provides direction. She mentioned she heard people say we need entertainment, and she agrees but those businesses are not knocking on the City’s door and she wants to make sure they are remaining businessfriendly while protecting. She mentioned she wants to keep storage units in the proposed ordinance as part of the motion.
It was seconded by Councilmember Shaw.
Mr. Cole clarified that the motion is to waive the first reading and introduce the ordinance and there would be a second reading if this is approved tonight.
AYES: Shaw, Williams. NOES: Fuller, Henderson, Meadows. (2-3) Mr. Cole announced there is no other action to be taken unless the Council wishes to make another motion, otherwise the item has officially died.
Mayor Meadows moved to waive the first reading and introduce the ordinance removing section
5. Vice Mayor Williams seconded.
AYES: Meadows, Shaw, Williams. NOES: Fuller, Henderson. Motion carried. (3-2) Mayor Meadows announced a brief recess at 7:45 p.m. The Council reconvened at 7:54 p.m.
4.2 Quick Quack Car Wash at Laurel Plaza Conditional Use Permit (CUP 02-20) and Design Review (DR 08-20) – Request for approval to construct and operate a 3,596 square foot drive-through car wash facility; APN 035-510-009 (Ken Strelo, Planning Manager)
Determine the proposed project falls within the scope of an existing Initial Study/Mitigated Negative Declaration (SCH #2008012068) analysis.
Planning Manager Ken Strelo presented the staff report and provided a PowerPoint presentation.
City Attorney Derek Cole mentioned he provided a memo in the agenda packet that applies to this item and the next item that describes the obligation to support any decision with substantial evidence. He noted there is currently litigation, the property owner has filed an opening brief, and the City is due to file its responsive brief, but there were discussions were to have this item and the next item to be brought back to the Council for consideration and the property owner has said that if these projects are approved with the additional modifications, it indicated it will accept and there is no need for litigation. He mentioned the Council’s obligation is to support any decision it makes with substantial evidence, meaning that the Council, if it favors the projects, it must be able to meet all 5 elements with substantial evidence and he has defined what substantial evidence is. He indicated even though these items are being brought back in the context of litigation, this is public hearing and there will evidence taken, the Council will hear comments tonight and have received written comments and letters, the Council has the record from before, all of which is evidence, and it is the Council’s obligation tonight to support any decision it makes with substantial evidence.
Vice Mayor Williams inquired what happens if the sound studies exceed what is allowed by the General Plan. She commented that the language does not seem very substantial; it mentions there are things they can do to buffer, but she wants to know what actual things can be included. She mentioned if they don’t pass the first sound study, they don’t get their certificate of occupancy and that has merit, but once they are 7-8 months down the road it seems vague; it says the City Council may call back the CUP. She inquired if they could include language to specifically say this must be put in place to provide a buffer. She mentioned at one point they were told there were going to be back-up buildings and she wants to know if they can condition it to include that those must be built if it doesn’t pass that sounds study, or just stronger language in general.
Mr. Strelo mentioned the language is left with some flexibility as there could be other options available. He indicated it would be difficult for him to make a recommendation about what they should do. He mentioned if it were the case, it would be difficult to know the extent they are exceeding and what type of additional attenuation would be required to bring that level down.
He added that staff could potentially encourage them to sway toward certain things, i.e., more landscaping in the rear and things like that, but there could be several options to attenuate sound. He mentioned they could even do something on site maybe. He explained in the old plan, the blowers were on the northern side of the tunnel and it was a completely different plan; it’s not something they could just add back with this plan, but there is a trash enclosure or something in the north that could help to dissipate sound, but as it is, they have silence blowers, turning of the tunnel, and they added material in the tunnel to further reduce sound. He mentioned staff is willing to entertain ideas but not recommend specifics.
Vice Mayor Williams commented Quick Quack has made many changes and she appreciates it.
She inquired if they are looking at sound as it hits homes behind or now that the tunnel has been turned is it being looked at how it impacts pedestrians. She asked what the General Plan looks at in this regard.
Mr. Strelo responded that the levels this would create and any areas near it would not be above any General Plan threshold; it is simply just not a loud enough type of use at any distance of the property line. He added that the sound that is measured and the models that are done look at sound levels at the property line and standards for outside private use (private rear yard). He mentioned there has been discussion on first and second stories; for inside of homes, it is anticipated that even with an open window, decibels are reduced by about 12 and for a noticeable decibel change you need about 3 decibels of change louder or quieter. He mentioned with windows closed, even without the most up to date construction, it could be up to 20+ decibel reduction, a drastic reduction from what is currently anticipated there. He mentioned with first and second stories, it ultimately is looking at interior noise levels and based on the levels shown through the model, once you factor in the natural attenuation of a home, it’s going to be well below, probably well below exterior as well, but again exterior looks at the rear yard, not someone on a roof or balcony.
Councilmember Fuller mentioned his questions are in regard to the sound study. He inquired if someone is present for the actual study.
Mr. Strelo mentioned the acoustical engineer is present.
Councilmember Fuller inquired if the school or school district was ever contacted for any information regarding the study for Quick Quack for their input. He mentioned he is not finding a variable for anything to do with the children or the school and would like to know why since the school boundary is within 400 feet of the project and there are children walking by.
Claire Pincock with MD Acoustics, LLC mentioned she wouldn’t know anything about contacting the school as she is just the acoustical consultant, but in terms of the noise levels at the school, based on comments from last year and the most recent model which the Council should have, she included the noise level at the school and the projected interior noise level which is below the World Health Organization recommendations. She mentioned as for children walking by, typically for noise ordinances or General Plan limits, regulating the noise levels at sidewalks and roads is pretty infeasible; it’s a really difficult thing to do; there isn’t much precedence for that and she isn’t sure she has seen a case where something is regulated at a sidewalk so in this case she did what she could and she looked at the levels at the school and the projected interior noise levels.
Councilmember Fuller inquired if she or her firm interviewed anyone at the school and what variables they used to ascertain measurements, and if there was a variable excluded. He asked if she or anyone in her firm ever walked over, called, emailed, or contacted a school official or school district employee and asked what they thought.
Ms. Pincock explained they are consultants, and it is not for them to contact neighbors or local businesses; they simply do the sound study. She mentioned she is not sure what they would ask the school specifically; they take ambient measurements, make their models, and make sure everything aligns with the code and General Plan guidelines.
Councilmember Fuller asked if they contacted the school and she confirmed they did not.
Councilmember Fuller inquired if they ever contacted pediatric audiologists.
Ms. Pincock mentioned the responsibility of studies is for CEQA purposes to ensure there is not a major impact and to ensure they are within the guidelines of the City code and General Plan and that is all that they are authorized to do with the study.
Councilmember Fuller inquired why they would walk away from children who will habitually come into contact with it. He mentioned If they are measuring something on a scientific survey they should take into account all variables. He inquired if there is a school and kids walking by why they would rule them out as a variable.
Ms. Pincock mentioned there are no concerns about audiology and hearing loss; typically the threshold for hearing loss if looking at OSHA requirements would be 90 or as low as 85, depending on what you’re looking at, and in no case outside of properties would there be levels above 85; and as for brief contact for people walking by, she can say based on her expertise there is no concern for hearing, including pediatric hearing.
Councilmember Fuller inquired if the measurement standards are set for adults.
Ms. Pincock responded that they set them for everyone, but OSHA is primarily for workplace.
She shared she has researched extensively pediatric hearing, primarily for her own children, and the lowest level overall she has ever seen of concern is 70, and that is not something that is going to be happening beyond.
Councilmember Fuller mentioned the most recent study he sees have calculations based on first floor. He inquired if all calculations in her study were based on the first floor.
Ms. Pincock mentioned today she included a model with the second-floor levels as it is a question the Council brought up and the Council should have that available.
Councilmember Fuller inquired if it was in the report and she confirmed it is.
Councilmember Fuller asked how many stories and she confirmed 2 stories.
Councilmember Fuller commented that the east side is 50, the west side is 55; and inquired what the decibel level would be for 2 stories.
Ms. Pincock mentioned for the most recent study she measured where there were balconies and windows, and the second stories are 49 or below.
Councilmember Fuller inquired about the median measurement of noise.
Ms. Pincock mentioned it is not a helpful metric because the noise level is important at the location of the receiver and not an average of the measurements around the tunnel. She inquired if he is talking about the median of the homes.
Councilmember Fuller inquired if there were any outliers in the measurements.
Ms. Pincock inquired if he is referring to other measurements taken at other Quick Quack tunnels.
Councilmember Fuller inquired if any outliers were thrown out.
Ms. Pincock indicated no, the data used was calibrated from different tunnels; every point measured represents the loudest of what she measured, not the average of what she measured.
Councilmember Fuller inquired about outliers.
She mentioned they were all where she expected them to be and they aligned within 5 decibels of what she expected.
Councilmember Shaw commented they already addressed the certificate of occupancy if the first noise study is not complied with. She suggested stronger language and change "may request" to "must" and give time to the applicant to mitigate. She mentioned she wants to be guaranteed if a second study doesn’t fall in place, they are making sure it gets corrected or she wants it to come back.
Mr. Strelo mentioned staff can modify the condition and direction on the time to remedy would be good.
Councilmember Shaw inquired if there can be two separate companies perform the studies for 2 separate opinions.
Mr. Strelo requested clarification if she means between the first and second study.
Councilmember Shaw clarified she means the first study at the soft opening and then a second study at 7 months. She explained she wants to make sure they are being very clear and have a fresh perspective.
Mr. Strelo mentioned it can be done.
Councilmember Shaw mentioned this is in litigation and there has been talk about the sale of a property being used to fund the litigation. She inquired if this money would have other uses if the City was not involved in litigation.
City Manager Joshua McMurray commented that staff is working on many different things the Council has requested and they have a lot of competing interests and needs; the many items require tens or millions of dollars, and they need every penny to complete these for the community. He mentioned absent defending a lawsuit; the money they have been trying to generate is to deal with higher profile, very expensive projects such as E Cypress.
Councilmember Henderson requested clarification on the sound study. He inquired if there was testing done south of the project.
Mr. Strelo mentioned the model shows the site plan images; it does measure to all directions.
Councilmember Henderson commented that the tunnel is facing toward Laurel, so the maximum noise would be projected to the south, the direction of the school and roadway.
Mr. Strelo responded that the sound is fairly focused out of the tunnel and disperses to either side, which Ms. Pincock can better explain.
Ms. Pincock inquired if there is a specific spot.
Councilmember Henderson commented he wants to make sure they didn’t just test to the north where houses are; he want to make sure they tested in the direction of the school and intersection.
Ms. Pincock commented that the study focused on the homes because that is what the General Plan guidance is for; however, in the most recent study, she included the school because it came up as a question and at the school façade, it is 54 decibels; however, that is not an outdoor area; it was primarily to calculate the indoor noise levels. She mentioned one area of the General Plan talks about outdoor usable areas and that is where the noise limit applies; the intersection and sidewalk don’t count as outdoor usable areas and are not areas they are supposed to analyze.
Councilmember Fuller commented on page 3 of the letter from Greenfire Law there is a request by their client that at the time this is notified they be allowed to have their own sound engineer test. He inquired if the Council needs to take action on that or if it can be handled administratively.
Mr. Strelo commented that staff have already written it into the requirement. He shared he has a list of Laurel Plaza interested parties who have given staff permission to email them, and he believes those residents are in their email list, but staff would allow and encourage anyone to do their own study on the same day so they can compare readings.
Vice Mayor Williams inquired if the decibels inside the school would be 54.
Ms. Pincock responded that is outside the school, it would be 29 inside.
Vice Mayor Williams mentioned the General Plan doesn’t count with kids outside for recess, etc.
She inquired where at school does the measurement apply, at the corner or further in.
Ms. Pincock mentioned she put the receiver in location where there was window and where the most amount of noise would be coming in from the car wash so the actual playground areas and places where children would be outside are far below that, the building attenuation would be under 50 and the playground area would likely be under 45 from the car wash.
Vice Mayor Williams inquired where they are taking measurements from for the future sound studies, the same places, with the houses, the schools, and if it must pass all of that.
Ms. Pincock commented that she would expect the area where the car wash is closest, the house directly to the west, and homes directly to the north, and depending on the Council’s interpretation of the General Plan, whether they would include the second floor.
Mr. McMurray indicated the General Plan guides the study so they must have a standard requirement to direct applicants when doing a study and the requirement and intent of the study is to address noise at the property lines to the north where residents are.
Mayor Meadows opened the public hearing and received comments from the applicant.
Efrain Corona, Vice President of Development with Quick Quack Car Wash, commented there is a lot of work that has gone into the project and thanked staff. He shared he is available for any questions. He mentioned they reached out to the superintendent and principal, and they had no issues with the proposed use. He shared they are confident with the consultant’s sound study and will stand behind it.
Councilmember Fuller commented that the final report doesn’t say there was a reply from the school and the researcher says there is no need to which is contradictory. He asked why there is no written confirmation in the study.
Mr. Corona commented that they are following and complying with standards and have gone above and beyond to comply with the code, and they are doing more than any other project they have worked on.
Public Comments
Shelly Fitzgerald provided a PowerPoint presentation and spoke on behalf of the residents and property owners of Woodglen Estates and the surrounding community. She indicated they request the Council uphold the decision made by the previous Council to deny the application for the CUP. She mentioned the site is not appropriate for a car wash of this magnitude. She commented that the noise studies provide more questions than answers and conflicts with multiple elements of the General Plan as they have pointed out before. She mentioned car washes are not allowed by right in retail business zoning and they are not as conditionally permitted. She mentioned the April 12, 2022 staff report provides that “Uses that are incompatible with residential uses due to noise, vibration, or other characteristics are not permitted in locations that may impact existing or future residential development.” She mentioned we should be done. She commented that this site exists within a school zone (CA Penal Code §626) and abuts a residential zone, which is to be protected against “intrusion of incompatible land uses and disruptive traffic” (General Plan 2020), Policy 2.2.3. She mentioned the first study conducted by MD did not take into consideration Table 1 that requires allowable noise levels to be lowered by 5 decibels for simple tone noises so by not adhering to this rule, the study assumed Quick Quack would be in compliance by being at the highest allowable noise level at 55 decibels at the nearest receptors of homes with a total combined noise level of 58 decibels. She mentioned on page 20 of the study, they accurately indicated the receptors sites have 2 floors and the project would exceed the allowable noise level at 50 decibels in accordance with Table 1. She mentioned after making changes and re-doing their study, the second study shows they did take into consideration the table; however, on page 20 of the second study, only one floor of receptor sites is depicted. She shared these are two-story homes, tri-level, with living quarters on the second floor. She added although they indicate the noise level would comply, being at the maximum threshold of 50 decibels, the total combined noise would come in at 57 decibels. She mentioned with the receptor sites being two-story homes, the omission looks like it is intentional. She inquired how the planner did not pick up on this and if he pushed it through hoping it would go unnoticed or if he did not do a thorough job looking at the data. She mentioned the sound study commissioned by private citizens found that noise generated by the planned car wash is expected to exceed the 50-decibel noise limit by being up to 60 decibels at residents to the north. She commented this study took into consideration the table, the elevation changes at the project property and residential properties, the current sound wall height which is less than 5 feet on the project side, the orientation of the car wash tunnel moving from north to south, and potential future shops. She mentioned MD assigns a residential noise limit of 55.1 decibels because it is the lowest hourly noise level measured at the center of the project site. She indicated their commissioned study uses a base 50 decibels noise level limit included in the General Plan. She mentioned MD’s noise limit decibel likely underestimates the ambient noise level at the residences because their measurement was conducted at the center of the project site. She mentioned since the most affected residences are farthest from the nearest roadways, the ambient noise level would likely be lower than 55.1. She compared how studies compare to the reality of living behind a car wash. She shared a study by Bollard Acoustics for a Quick Quack on Watt Avenue in Sacramento which indicated the noise level at the nearest property lines would be 54 decibels and that would comply with the daytime noise level criteria. She played a video recording of the actual noise at that car wash and indicated living with this noise level 13 hours a day, 365 days per year cannot be described in a study on paper. She commented that with all of their studies, the best-case scenario would be the very highest level of threshold allowed by our ordinance.
She mentioned after speaking with Monica, the person who took the video, she said the noise became so unbearable that they moved and sold their house at $50k below market and she gave up the fight because it was affecting her mental well-being and she was angry all the time and couldn’t take it anymore. She shared this type of noise will be generated by Quick Quack, whether the dryer end points toward the houses as originally designed or toward the sidewalk which is currently a safe route to school; 3 trees and another sound study will not change that.
She asked the Council to keep in mind that the blowers and vacuums are not the only noise that comes with a car wash at this intensity; there will be slamming doors, yelling people, loud music, aging and breaking parts of equipment and it will go on and on. She shared 900 people have signed petitions opposing both of these projects (Quick Quack and McDonald’s). She added these are concerns that the community has brought to the Council’s attention and all of these concerns apply to both drive-through uses, including safety, traffic, noise, and blight. She mentioned in the Land Use Element, Chapter 2, page 17, Commercial Use, “because this designation encompasses a broad range of uses , the allowed uses and development form on a particular site, will depend not only on the zoning, but also on the characteristics of surrounding land uses, uses that are incompatible with residential uses due to noise, vibration, or other characteristics are not permitted in locations that may impact existing residential development.” She commented that these are more policies for them to look up. She mentioned the first goal of Oakley’s Noise Element is “to protect residents from the harmful and annoying effects of exposure to excessive noise.” She mentioned they understand the intent of the ordinance is to not allow incompatible uses to push the limits of allowable decibels, but rather to protect the sensitive uses from intrusion of those incompatibilities. She mentioned Judge Danielle Douglas put it well when she stated in a recent ruling that “the County (or cities) determination that a project is consistent with its General Plan is subject to great deference and will only be reversed if it is based on evidence from which no reasonable person could have reached the same conclusion and the party challenging a City’s determination of General Plan consistency has the burden to show why. Based on all the evidence in the record, the determination was unreasonable.” She defined deference and respectfully asked the Council to uphold the decision of the former Council made last year.
Conan Moats was called to speak and was not present.
Tosha Gray commented it is important to note she doesn’t live in Woodglen nor have children attending Laurel Elementary School; however, she has worked in OUESD for several years in the past and has experience with general behavior of elementary school students. She requested the Council uphold the decision of the previous Council as its use conflicts with multiple elements of the General Plan which they laid out previously and will lay out again tonight. She mentioned car washes are not allowed by right in retail business zoning. She mentioned the last sentence of the staff report dated April 12, 2022, states that “Uses that are incompatible with residential uses due to noise, vibration, or other characteristics are not permitted in locations that may impact existing residential development.” She commented that this site exists within a school zone and abuts a residential zone; this use will impact the existing elements of that area. She mentioned they already spoke about the noise levels and this level of noise will be generated by Quick Quack whether the dryer ends point to the houses or to the pedestrian traffic (she asked the Council which is worse) on the sidewalk that is a safe route to school where children are crossing the intersection to school. She inquired if they are suggesting that the continuous decibels emitted toward the pedestrian traffic will not impede or distract pedestrians’ awareness of surrounding traffic hazards. She mentioned 54 decibels at the school façade means that at the intersection and crosswalk where children are crossing is even louder than that and she believes the allowable decibels is 50. She asked the Council to imagine with noise like in the video that was shared, children navigating a crosswalk. She mentioned car horns in that video are very faint. She pointed out that earlier staff mentioned discretion with the ordinance. She mentioned it seems they are standing before the Council tonight because the Council seems intimidated to exercise that discretion by the developer’s threat of costly litigation.
Mary Rooney commented that last May, the Council voted with the community agreeing the drive-through businesses at Laurel Plaza are not consistent with intended uses for the area and would change the essential character of the area from the intent of the General Plan. She explained that 2 drive-through restaurants were removed in 2008 because they didn’t fit within the intent of the area, and she is speechless why they are back here again. She mentioned the Council should leave the decisions as they stand and take them before the court. She added that Laurel Elementary, Freedom High School and O’Hara Park Middle kids walk through there and it is just the wrong location. She requested the Council consider it is the wrong thing to do.
Jaime Spohn commented it is unfortunate that they are here again; the individual in the video expressed too much stress; this entire action and the fact that they are here again is an extreme amount of stress. She mentioned she can’t understand why businesspeople would continue to consider something that jeopardizes the well-being of those residing around the plaza and children at the surrounding schools less than a mile of the intersection and hundreds of kids walk past Laurel Plaza daily. She urged everyone to go watch the pedestrian traffic. She agreed with Shelly; there are plenty of legal reasons to continue with 2022 decision, an already settled decision, and these are not acceptable compromises. She mentioned she heard that possibly canceling litigation would help approve costs for improvements on E. Cypress, but it is not right for an error committed in another area to be at the expense of Laurel Plaza. She mentioned it is hard to understand how the current Council set aside a decision made under the objectives of the General Plan. She requested the Council to continue to deny the CUPs and let the judge decide.
Bud Chaddock commented that they are here again talking about the same thing that should have been done by now. He shared that he heard there are codes for this and that. He asked if children are just code numbers. He mentioned maybe they should have child protective codes that way. He commented this is not like any other city; Oakley is strong; it pays professionals to talk about what it needs to do but then don’t do it; it is sad. He mentioned this needs its day in court; it is a process they should be able to have, and the judge is able to decide these things.
He added if the Council takes that away, it takes away residents’ rights; they have a right to go in and do it and he believes the City will get what the people want. He compared it to the Titanic, changing seats from one side to another to make it safe, and it is like that situation with children, safety and road, for a quick profit. He mentioned it seems these are all stacked decks; shuffling is being done with special interest money. He suggested the Council go along with what Shelly said and give the judge with the expertise the matter and share the video with the judge.
Donna Chaddock commented that she was here in March 2022, the City Attorney Cole presented his findings prior to the vote from the Council who denied the CUP and Mr. Cole’s comments (taken from the minutes she pulled online today) included that he had not seen that level of participation in the community since 2010-2011. Members of the community provided evidence for why the CUP should be denied. Cole mentioned (if) it went to court; the findings would send the message that both sides presented evidence and that he drafted the findings in mind that both sides had presented evidence. He went on to say that the applicant must meet the burden on all 5 elements/findings. Mr. Cole mentioned that again tonight. After this information to the Council was presented, the Council voted 3-2 to deny the CUP 1 year ago.
She mentioned she hasn’t seen 1 person in the 2 years she has been participating come into the Chambers and express that they are in favor of McDonald’s or Quick Quack. She shared they participated in drafting the City’s vision and mission statements and not 1 person in any of those meetings said they wanted fast food and car washes; it was completely the opposite. She mentioned paid consultants have presented their initial findings to the Council and they’re all saying the same thing. She addressed each Councilmember: Shaw-you get to vote tonight on this issue, you’ll bow to somebody, are you going to listen to what they have been saying for 2 years or listen to corporations, she gets to choose; Williams-she appreciates that she asks great questions and digs deep to find answers; Meadows-he is a property manager and she knows where his interests lie; Fuller-she appreciates his candor and he asks hard, tough questions and sometimes people don’t want to hear those questions; Henderson-she doesn’t know him but he is a retired police officer and she believes police officers have integrity, please vote with integrity on this issue.
Liz Elias commented that the word conditional in conditional use permit doesn’t mean guaranteed; it is subject to interpretation and further evidence and decisions. She mentioned she is finding a great deal of dichotomy in the sayings and vision and mission statement held by Oaley; flags around town say Oakley is a “Great Place for Families in the Heart of the Delta” but how is that when there is nothing for families to do; there is an excess of underused parks and no actual recreation. She added Oakley does not need another Quick Quack; it is very juvenile of the developer to take this to court when he didn’t get his way. She mentioned the Council is elected by its citizens and its one job is to listen to people in the community who elected them and act accordingly. She mentioned there is a Quick Quack in Brentwood and other car washes in Oakley; they don’t need more of this nonsense.
Marci Lozoya spoke on behalf of her family who live in the Woodglen neighborhood, against the Quick Quack. She commented that it is not thoughtful growth with noise and pollution; it is unhealthy for residents and destructive for learning for school children. She urged the Council to allow residents to enjoy the sanctuary of their homes inside and out.
Londie Phillips commented that the EPA has stated that noise pollution adversely affects the lives of many people; there are direct links between noise and health and named health concerns. She mentioned students are distracted easily coming off of crazy times. She commented that they know the truth. She mentioned a washing machine during spin cycle averages 47-60 decibels, and no one wants to sit in laundry room during spin cycle all day. She shared she knows this because her husband is bedridden, so she did research to find the quietest spin cycle; 47 decibels is the quietest for a washing machine spin cycle. She mentioned this is how it would be for all the kids. She turned to Quick Quack and said Oakley is trying to partner with a company that is not listening to us; they can be a good partner to Oakley but they’re already taking us to court, and they don’t even have a business here; they don’t care about us, the children or traffic; they just want to make money. She indicated there are a lot of places where Quick Quack would be a good fit; she is not against car washes and McDonald’s, but consider where they would benefit the community, not harm it. She asked them to consider 47 decibels while trying to talk, teach, etc.
Hollie Venegas, Woodglen resident, agreed with her neighbors and family that are here to deny the CUP. She mentioned it was previously denied and the City is defending its position. She asked the Council to continue to defend that position; it was a good decision substantiated with research, science, and effort.
Diane Merritt commented that all the reasons last year were good enough for the Council to deny the CUP and just because there are new Councilmembers doesn’t change the fact the Council denied the CUP last April. She expressed disappointment in the November election; at least one new member accepted financial contribution from developers, in particular Quick Quack, while running for Council, protecting his own interest so how can he protect interests of residents. She suggested it would be honorable to return the donation. She mentioned she can hear trucks from behind the wall and everything on the property, and the loudspeaker from Laurel Elementary but these things are temporary; the car wash will bring constant noise; it is unsafe and noisy for the neighborhood. She added that the Council doesn’t live here and will never allow it to be in their area; the new Council and lawsuits don’t change that the CUP was denied; there are many good reasons to deny.
A comment card was submitted by Maggie Diodore regarding the Quick Quack and McDonald’s.
She did not wish to speak. Her comments included that there is a danger to children being close to the elementary school and that anyone on the Council that has personal benefit to this project should recuse themselves from voting on the project as a conflict of interest.
Mayor Meadows called upon Christian Bucey, Robert Beck, and Roberto Estrada who were not present to speak.
Carol Manning commented that she doesn’t live in the neighborhood and has no kids at Laurel Elementary, but these are her Oakley neighbors. She inquired if all vacuum cleaners were run in addition to the actual car wash during the studies.
Shelly Fitzgerald, Eve Dooms, Marci Lozoya, Lu Kovalick, Joe Kovalick, Paul Seger, Diane Merritt, Mike Burkholder, Christian R. Bucey with Greenfire Law, PC, Gloria Canada, Robert Beck, Roberto Estrada, Lindsay Waters and Cheryl Taylor submitted online comments which have been made part of the meeting record and are available through the City’s website.
Community Development Director Brent Smith commented that the sound study did include all vacuums operating at the same time as the car wash.
Mayor Meadows closed the public hearing.
Councilmember Fuller indicated he has no change. He shared that in his expertise and training, the study is inaccurate as not all variables were included in the study and the school should have been included; there is nothing within the 4 corners of the research document addressing the school; it was totally left out. He added that the study says children will be walking by the front of the machine and will be exposed to 55 decibel noise. He commented that children of that age group have expanded prefrontal cortex and they will walk by it to get to school, there is no audiologist saying this is okay, and developmentally disabled students can’t explain what is going on; if they are forcing them to walk by it, it will have impact; He commented that Ms.
Fitzgerald mentioned that an adult gave up; take an 8-year old child with autism and hypersensitivity to sound who will be subject to the noise inside school all day. He mentioned the school does factor in and they will fail kids inside the school. He mentioned that he supports the idea that people who are members of this community want judgment; at some point they need to honor that request and readjust priorities and allow the lawsuit to be heard.
Councilmember Shaw commented that she sat in meetings before being seated on the Council and has been accused of many things since being put on the dais. She has been told everyone is against this. She explained she has residents in her district that have come to her who don’t want litigation and on social media they have been bullied because they are in favor of the Quick Quack. She shared she wants everyone to know there are two sides to this and some people don’t feel comfortable coming here to speak against the loudest voices in the room. She expressed she has sat in the audience and she is now on the dais; she is given information from legal counsel and litigation counsel to make decisions; she is hearing everyone and has to make the best decision for the city as a whole and bankrupting a city is not something she can do and unless someone gives her an alternative, the statement that was given to her was “let the judge decide and figure out the millions of dollars later.” She expressed that giving the judge the decision would be the easy way out for her as she would have no enemies for or against, but she would be taking a gamble because if the judge decides against the City, they are setting precedence in case law that will impact future decisions of future Councils and she doesn’t know if she can ruin it for future Councils. She mentioned she has been accused of her body language; she has a fractured spine and apologized if she must adjust. She commented that this situation is a lose-lose decision; someone will be upset or out money. She explained that safety on E. Cypress is important because there is no way out in a fire and the Council has agreed it is a priority. She mentioned there is money that could be used for that and she explained litigation doesn’t have a guaranteed outcome and they are being advised they should talk about this again. She added that she has people from her district that want roads improved.
She concluded that every decision is not an easy decision and unless there is a guarantee, she doesn’t know if she can gamble.
It was moved by Councilmember Henderson and seconded by Councilmember Shaw to adopt the resolution. AYES: Henderson, Meadows, Shaw. NOES: Fuller, Williams. (3-2) Mayor Meadows called for a brief recess at 9:31 p.m. The Council reconvened at 9:41 p.m.
4.3 McDonald’s Drive-Through Quick Serve Restaurant at Laurel Plaza Conditional Use Permit (CUP 03-20) and Design Review (DR 09-20) – Request for approval to construct and operate a 4,365 square foot quick serve restaurant with dine-in and drive-through service; APN 035-510-006 (Ken Strelo, Planning Manager) Determine the proposed project falls within the scope of an existing Initial Study/Mitigated Negative Declaration (SCH #2008012068) analysis.
Planning Manager Ken Strelo provided the staff report and PowerPoint presentation.
City Attorney Derek Cole reiterated what he did when this project was considered previously which was indicate that a restaurant without a drive through is already permitted at this site and when talking about what they are permitting, it is a drive through associated with a restaurant; it is not a McDonald’s that they are permitting or traffic; the drive through is what is being permitted and must be weighed when considering the merits of this application.
Vice Mayor Williams referred to the plans, specifically the sidewalk existing into the Plaza. She mentioned on these plans there is a raised walkway where cars would be exiting the drive through. She inquired why it is there and if they could just cap it. She inquired about its purpose and added that it looks like the ADA accessible ramp is there.
Mr. Strelo confirmed that is what is happening there; it is the most direct route from the public right-of-way to the potential pad or building at that location. He mentioned if you look at the pathway today at the site, the pathway that comes off the sidewalk terminates when it hits the asphalt area. He mentioned it was a focus of one of the early traffic impact analyses that looked at pedestrian safety; the end result is in attachment 4 in the applicant’s plans; the site plan shows the result of the modifications made to that pathway and how it crosses over there based on those recommendations. He added that for ADA accessibility, the path is the most direct path of travel, and it was moved over as far as possible to still have the direct path.
Vice Mayor Williams requested the applicant speak to how many other of its buildings have that where the setup is the same. She inquired about the hours of operation and if they will take into consideration drop-off and pick up times.
Mr. Strelo commented that has not been proposed. He mentioned with this use, morning hours may be important for breakfast, but staff is happy to address it with the applicant with Council consensus.
Councilmember Fuller inquired if the person with the study is available.
Mr. Strelo requested clarification of which study he is referring to.
Councilmember Fuller indicated it is the study dated January 7, 2022.
Mr. Strelo mentioned the traffic consultants that did those studies are not present.
Councilmember Fuller commented that on page 13, the traffic consultant measured and has a photograph of traffic en route in the intersection and saw that was a hazard; on page 43, it seems to mitigate design for the hazard, but he doesn’t see they ever went to the school district who has the greatest responsibility of kids on the street and he would like to know why.
Mr. Strelo commented that he will attempt to answer but doesn’t want to speak on behalf of any consultants. He explained that staff sends out notices when they first receive applications with the project descriptions and link to the plans; they solicit comments from agencies in Oakley, including school districts; they also send out to neighboring cities and utilities; and this provides an opportunity for the district to comment. He mentioned the acoustical and traffic engineers are not contacting schools as it is not necessarily in the scope of what they do. He added staff has not received comments from the school district that they have concern with what the traffic impact study says.
Councilmember Fuller mentioned the superintendent wrote a letter to the City with concern that the construction is unsafe and the subsequent superintendent says the intersection is unsafe.
Mr. Strelo inquired if he said the intersection was unsafe.
Councilmember Fuller commented that he doesn’t have their exact comments but generally that it is a threat to the health and safety of kids.
Mr. Strelo mentioned opposing the project is what he intended to say.
Councilmember Fuller commented that they have presented a scientific document and there is a variable but in conclusion they didn’t go back to the variable and see if it worked. He explained that schools are responsible for the safety of kids outside of schools on public property (streets and sidewalks). Having responded and said that he would understand they may not want to go further because the city ignores them and the only alternative is to sue the city because it didn’t approve it and he wouldn’t want to play my hand for the people to issue a lawsuit against to protect children. He mentioned his point is that they did not go to the school to see if the mitigation worked.
Mr. Strelo explained that the schools provided an opinion that they have adequate drop-off and pick up and the study found Laurel Plaza is being used as a drop off and pick up location, creating additional pedestrians across Laurel Road. He shared as part of that, one of the recommendations was for the developer to put up signs for no drop off and pick up. He mentioned there are other opportunities to enhance the intersection as they showed in the presentation earlier as they know people are walking the intersection, whether school children or people in general. He mentioned that the school has stated its facilities are adequate to handle pick up and drop off traffic, Laurel Plaza appears to be used based on observations of the traffic consultant as an overflow or maybe a matter of convenience for pick up and drop off, and all of this is occurring with no impact from any business there so what has been found is that the business itself would not create any additional increase during peak hours.
Councilmember Fuller inquired how much the City has paid for litigation and how much more is anticipated to pay up to the day the judge issues a decision.
City Attorney Derek Cole mentioned he doesn’t have numbers and would also caution that a win on behalf of the City is not necessarily a win in the long run; there could be further phases, i.e., inverse condemnation claims which could be hundreds of thousands of dollars and if the City loses an inverse condemnation case, it must pay the other party’s attorney fees which could be several hundreds of thousands of dollars; the court could also submit issue of damages to a jury which would not be good. He mentioned if he is concerned about the total exposure, what would get them to the decision of the court would potentially be only a small amount of what they may ultimately pay.
Councilmember Fuller inquired how much exposure the City will have until the decision is made explaining that if the City has a win, they can bring the win back and if Blackhawk files an appeal, the City could decide at that point to not go forward to defend the decision.
Mr. Cole clarified that the City still has to file its brief sometime in the summer and assuming the City were to do that, the procedure is a writ, and the judge would decide if the City adopted proper findings to support its decision with sufficient evidence. He mentioned if the court were to rule in the City’s favor, it is his assessment, without putting words into other mouths, from things he has heard from the property owner that they have tried to develop this site for many years unsuccessfully. He explained the next logical step if the write decision is in favor of the City would be inverse condemnation because the developer may argue that the city has denied the only economically viable business for that site. He commented that the City would not agree with that and would defend it position; but it would be costly to defend, even if the City wins all the way, it could be costly.
Councilmember Fuller inquired if at the point when the City wins if it could declare it doesn’t want it.
Mr. Cole mentioned the City could decide to reverse its decision but the City would be where it is tonight.
Councilmember Shaw inquired if the design of the sidewalk is raised because it is in the path of the drive through or to slow cars down.
Mr. Strelo mentioned for visibility to place pedestrians at higher eye level and can also slow cars down for traffic calming.
Councilmember Shaw inquired if an ordinance was in place prior to tonight if this wouldn’t fly.
Mr. Strelo commented that there are customers parking on the onsite lot without crossing over the drive-through lane.
Councilmember Shaw read the section again.
Mr. Strelo responded that this site would probably comply with that.
Mayor Meadows opened the public hearing.
Kevin McAuley, Construction Manager with McDonald’s USA, mentioned with the drive through exit, 90% McDonald’s across the country have a door on that side of the building near drive through exit; the other location in Oakley has the same set up; there is a crosswalk at the doorway of the drive through exit.
Community Development Director Brent Smith commented that the California Building Code addresses this and there are code requirements for safety measures to be in place that they would check during plan review and inspection.
Public Comments
Tosha Gray provided a PowerPoint presentation on behalf of Oakley Residents United, residents of Woodglen Estates, concerned families of Laurel Elementary school students, and surrounding communities. She expressed that they request the Council uphold its decision to deny the CUP. She mentioned a CUP is required to establish a drive through in the retail business district. She indicated this project conflicts with multiple elements of the General Plan.
She mentioned the site is too close to an elementary school. She expressed that the City Council is to protect the health, safety, and welfare of the community. She shared that 900 residents have signed a petition to deny this drive through use. She commented that a drivethrough is not allowed by right; it requires a CUP and for good reason as a CUP is discretionary and Mr. Cole spoke to the discretionary ability earlier this evening. She mentioned this site exists within a school zone and abuts a residential zone which are to be protected against intrusion of incompatible land uses and disruptive traffic per the General Plan. She explained the General Plan talks about how to apply the General Plan, how the City Council should use it.
She mentioned the verbiage states, “The General Plan is intended to be used by City decisionmakers to provide a basis for judging whether specific private development proposals are in harmony with the General Plan’s goals and policies.” The current General Plan identifies some community vision principles, including mobility. She provided that the mobility principle states, “Addressing traffic continues to be a priority. As the City continues to grow, additional emphasis needs to be placed on alternative ways of getting around including walking and bicycling.
Increasing the safety and functionality of the entire circulation system is a high priority for the City.” She commented that the proposed project will decrease the safety and functionality of pedestrian traffic that currently exists at this location, at this intersection, as it lies within a safe route to school. She addressed the Land Use Element, policy number 2.1.5 “promote land use compatibility through the use of restrictions”, restrictions such as conditional use permits. She also addressed policy number 2.2.3, “protect existing residential areas from intrusion of incompatible land uses and disruptive traffic.” She mentioned the General Plan also talks about land use designations; this one is designated as commercial. She commented that the General Plan states, “Because this designation encompasses a broad range of uses, the allowed uses and the development form on a particular site will depend not only on the zoning, but also on the characteristics of surrounding land uses. Uses that incompatible with the residential uses due to noise, vibration, other characteristics, are not permitted in locations that may impact existing residences.” She addressed the Circulation Element, Goal 3.2 in the General Plan, and policy
3.2.2. She shared this project is adjacent to 2 residential neighborhoods and is embedded within a safe route to school, as well as the path to Laurel ball fields, which on her way here today she passed 7 pedestrians at that intersection, 5 on biked and 2 walking, that wee using that route to get from the residential homes to the ball fields. She addressed 3.2.C. Implementation Programs. She mentioned as Councilmember Fuller has pointed out several times, in the General Plan, it states, “coordinate with Antioch Unified, Liberty Union District, and Oakley Union Elementary School District to create well-designed routes to schools, maps for bicyclists and pedestrians.” She mentioned school community and staff have submitted in writing opposition and safety concerns to both projects being heard tonight, including 2 superintendents and the crossing guard that works at that particular site at Laurel Elementary School. She referred to 3.7.11 Transportation and Safe Routes to School program. She showed a slide of the project site and school including the path and flow of pedestrian traffic requiring pedestrians to cross the drive through exit to access the front door of McDonald’s and commented that it is not appropriate for a crossing guard to deposit children into a drive through and a car wash. She addressed site specific concerns including that the site is located within 200 feet of Laurel Elementary School and 1 block from O’Hara Park Middle School, it is embedded between 2 established residential neighborhoods, and the cumulative effect of 3 auto-oriented businesses (the existing gas station, the proposed Quick Quack and McDonald’s) will impede pedestrian access at this location. She added it is less than 60 feet from the bike lane to the drive through exit. She shared 900 signatures have been collected and countless letters have been sent to elected officials from residents, surrounding communities, 2 OUESD superintendents, Laurel Elementary School staff and the crossing guard, and hundreds of residents have participated in meetings, they have had to incorporate resident-funded legal action, resident funded legal counsel, and she personally believes that the City Council should have to spend at least what the residents have spent out of pocket to defend its decision. She mentioned with the Council’s prior decision to deny the CUP, O’Hara Properties filed a lawsuit and the judge assigned to this case described the standard of review for this type of case, “The County’s determination that the Project is consistent with its General Plan is subject to great deference (she defined deference and reverence)…” She requested this Council not insult the previous Council’s judgment by reversing its previous denial of this project. She mentioned the judge continues to say that the decision will only be reversed “if it is based on evidence from which no reasonable person could have reached the same conclusion…and “The party challenging a city’s determination of general plan consistency has the burden to show why, based on all the evidence in the record, the determination was unreasonable.” She commented that protecting student safety and pedestrian safety is not unreasonable and it is an extrapolation to assume that they would lose a lawsuit and it would cost millions of dollars. She mentioned in his 2007 staff report, then Senior Planner Ken Strelo voice concerns over multiple components of drive throughs at the proposed center which included at the time a QSR. She mentioned it is unclear now why he is disregarding those concerns as they relate to this project. She commented that they recommend the Council uphold its decision, practice its discretion which Mr. Cole has pointed out we can use, and if those can’t be done every time someone threatens a lawsuit, she doesn’t quite understand what we’re doing here.
Liz Elias was called but was not present to speak.
Jaime Spohn commented she is left with the impression that everything has been predetermined by the City and Council; it is disheartening which makes her question why they are even here. She mentioned that while working on behalf of the city at large, it is also the responsibility of the Council to promote the well-being of its residents and ensure they are treated fairly. She directed a comment to Councilmember Henderson that it is a Councilmembers’ responsibility to learn what is important to their district residents. She mentioned the decision in 2022 to deny the CUPs aligned with those of constituents as well as the General Plan. She mentioned Councilmember Henderson is currently making decisions going against his constituents. She commented that this is what he is to do as Councilmember Shaw indicated that is her purpose for District 4. She mentioned Laurel Plaza shopping center will never be its intended use as a shopping center due to approval of these businesses (gas station with 7-11, Quick Quack and McDonald’s). She added she doesn’t believe Blackhawk and O’Hara Properties have made sufficient efforts to develop the site as she has heard tenants have been told in the past that they would have to construct their own building, and this is why McDonald’s, Quick Quack and Chevron/7-11 ae desirable tenants; it reduces the developer’s out of pocket expense. She mentioned if they truly supported the General Plan and the intended use of it as a shopping center, then they would build out the plaza as she said when she was here in 2022.
Mary Rooney commented that changing the decision of the Council in 2022 would be changing the entire plan for Laurel Plaza as a walkable residential plaza, what it was designed for; allowing drive throughs plaza would be an in/out plaza; there would be no walkable plaza. She mentioned, as Ms. Spohn just said, the developer bought the property knowing the General Plan indicates it is to be a walkable plaza but doesn’t want to build but rather lease it to businesses to develop. She mentioned the developer gets steady income, but what’s in it for residents who have invested their lives in the community. She mentioned drive throughs were not part of the plan when the developer bought the land. She inquired if they planned to change it to meet their needs. She expressed that she knows this is not the 5 criteria. She mentioned data shows 69 million people go to McDonald’s each day, with 43,000 locations it is about 1,600 people a day, with 800 cars causing pollution and health concerns from 5am-12am. She mentioned cars will be idling for 19 hours a day with residents inhaling pollutants which is not consistent with the General Plan.
Shelly Fitzgerald commented she doesn’t understand how they got here; anyone with common sense can tell this is a bad idea and there are failures on part of everyone here tonight. She inquired if Mr. Beinke believes his development is more important than the residents’ rights to breathe, walk, live, and play in this area and if he can develop his property in a manner to profit which he does but he has no right to impede on the enjoyment and use of their properties, nor a right to disregard the safety of their children. She mentioned in 2007, the developer seemed to work collaboratively with city leaders, community members and business tenants as he sat at her kitchen table to discuss what they could do to eliminate drive throughs at this location. To bring a project plan to the table that respects your neighbors, brings good and services, and designed and redesigned a pleasant walkable plaza. She mentioned she is sorry the recession happened but where has he been 2007-2018. She mentioned the last 3 projects he brought to the table require a CUP and are detrimental to their neighborhood. She mentioned he has a responsibility to hear what his customers are telling him they need. She addressed Mr. Goldblatt and that he is not names on the lawsuit, and she is hoping he realizes that locating his restaurant to this site will create problems for the school and neighborhood. She said he may have been promised the sun and moon when bringing a second McDonald’s to Oakley, but Mercedes and Laurel is quite different than O’Hara and Laurel but maybe Mr. Beinke didn’t disclose there is a school nearby in his conversation. She asked him to consider the safety of the children first by considering a more appropriate site for his restaurant or reconsider submitting his application minus the drive through, offering a safe walkable destination, preferably with outdoor dining for their families. She asked City staff to look at this application in relation to the City’s Strategic Plan, Specific Plan, vision, mission, and goals for applications that may create incompatibility issues. She mentioned staff were not satisfied in 2007 with these proposed uses yet pushes for their approval today. She referred to the gas station that sells tobacco and alcohol in the middle of a school walking route and just months later the City adopted an ordinance prohibiting tobacco sales within 1,000 feet of schools yet granted a license to the business to sell such products 3 years later.
Bud Chaddock commented he walks this path every day and sees McDonald’s wrappers, condoms, scotch bottles, minis on the property now and there is nothing done about it. He inquired what will another McDonald’s do for trash; there will be no accountability. He commented that parking is a joke; there is a sign saying no through traffic but constantly kids from O’Hara Park Middle School are being picked up there; no one abides by the law or code.
He commented he sees truck doing construction doing 65mph in front of the school and nothing is done; he can feel the vibration from them. He added that with a drive through, McDonald’s is not a good idea. He mentioned parking is inadequate; it is backed up into the neighborhood, people are running the red light or stop sign, and he has never seen one person get a ticket in 30 years. He commented Oakley is making its own form of rollerball; send them out there and see if they get hit. He expressed he doesn’t believe anything will be taken care of; they’ll just point the finger; it’s his fault or his fault.
Donna Chaddock commented she feels like all the things they have participated in, planning meetings, giving suggestions for Laurel Plaza, has all been for not. She inquired why the City asks for their opinion and suggestions for the kind of business they want there and then doesn’t take it into consideration. She shared that she heard 900 people signed a petition saying they don’t want Quick Quack or McDonald’s and she has still yet to see anybody come in here and say that is what they want. She commented they helped to develop the mission statement and vision for the City to create small enclaves where people can come and enjoy themselves that are walkable, lovely, peaceful, sit-down little places; it’s all for not; it’s been a waste of time; the Council doesn’t listen and it’s a shame.
Diane Merritt commented that she has a feeling that there is a little bit of selling out of our Councilmembers and bought out for at least one, and they are just stepping all over them. She mentioned it is not up to residents and it doesn’t matter what they think. She questions it and wonders if that person should be voted out. She mentioned if McDonald’s passes, it will also bring unwanted squawk boxes for orders to be heard from backyards, unwanted car emissions and unwanted grease smell in the air. She expressed that the developer gets all the riches and benefits in making millions and the residents suffer for that; the developer only wants to do the drive through; it is so crooked, and lame and they are suffering because the developer can’t think outside the box. He inquired why Mr. Beinke is so bent on developing what he can’t develop; the residents don’t want it but he wants to cram it down their throats and force it with a lawsuit with no care about bankrupting the City; he is rotten to the core.
Mayor Meadows called upon Christian Bucey, Robert Beck and Roberto Estrada who were not present to speak.
Christian R. Bucey, Greenfire Law, PC, Gloria Canada, Robert Beck, Roberto Estrada, Lindsay Waters, Cheryl Taylor, Mike Burkholder, Tosha Gray, Sean Ireland, Stephanie Zoochi, Jerry Martin, Marci Lozoya, Joe Kovalick, Paul Seger, and Diane Merritt submitted online comments which have been made part of the meeting record and are available through the City’s website.
Mayor Meadows closed the public hearing.
Councilmember Shaw commented she is glad someone mentioned alternatives; there was a survey posted online that asked do you want a McDonald’s or Quick Quack and if not, what businesses would you like to see, and she read some of those responses including Shake Shack, Chick Fil A, Arby’s, Steak-n-Shake, Sonic, Del Taco, Wienerschnitzel, Raising Cain’s, Wendy’s, Panda Express and Starbuck’s, all which are also drive throughs. She mentioned other options included I Hop, Lazy Dog, Applebee’s, Fuddruckers’s, Texas Road House, Cracker Barrel, all of which are restaurants that would want to come in and serve alcohol next to a school which she does not think is a whole lot safer. A movie theatre and a mini-IKEA were suggested; hours would still be a concern. A small coffee shop, Wanna Waffle, a bakery, a flower shop, a beauty parlor, a sandwich shop, Dino’s Best sandwiches, Oakley French Bread, a yogurt/ice cream store, Papa Murphy’s, a deli, a pottery art studio, a shoe maker, dry cleaner, donut shop, cross fit and a Lego store were all suggested but these stores would be great but they don’t have financial capacity to build and sustain running that business. She mentioned she has hope additional store fronts will be created, they can’t expect it when affordability is not there. She commented that the smell would be some of the same complaints with other restaurants. She mentioned this was just one poll, but every time someone came up with a different idea they got yelled at in all caps; it is on social media. She explained they are not saying they don’t want a McDonald’s; they are voting on a drive through, and they cannot say no to one and expect another.
Vice Mayor Williams commented she understands the developer has a right to develop the land, it is a commercial zone, and if people have a house nearby, they should know what it is. She mentioned she thinks everyone would like to see this plaza developed but it is just the drive through portion that is at issue. She mentioned she has brought up previously that McDonald’s could open without a drive through, and it would be an attraction for Oakley. She would like to know they were told year after year a drive through is not a good idea. She mentioned she cannot in good conscious vote to approve this because she does not think it is compatible with the uses and it has been presented multiple times that it is not compatible with the uses. She inquired how they would know it’s been marketed this whole time. She commented that the residents shouldn’t have to police it. She shared she is at Laurel Plaza every day; she has kids over there and she walks to pick them up. She mentioned where BAC closed is a trash heap so why should residents have to call over and over again about it. She commented she doesn’t see how that gets better with a more car-intensive business. She mentioned if they were working on walkability then maybe everybody sees it, but it may get worse with cars so she can’t say it’s the right fit. She mentioned any of the uses, Dunkin Donuts, Peet’s, they would embrace, just not the drive-through, so open it up without the drive-through.
Councilmember Fuller commented that his education and experience gives credence to what the superintendents say and understands why they may not being saying more; this city marginalizes its superintendents, schools, and teachers. He mentioned they need to protect their children and one of the ways is if the Council approves this going in, they have the option of suing the City which Mr. Beinke will have to pay for our defense; but if they sue us they would not play their hand in the public to everyone who doesn’t think they have abilities anyway to put their case out. He mentioned with the 2 superintendents, in looking at their background, education, integrity and character, they are speculating; what they really mean is it’s not safe.
He mentioned he is grateful the traffic consultant looked at this; they found the traffic unsafe.
He mentioned they found the variable, but they didn’t complete the project because they didn’t finish by going to the people who understand children and have education and experience with children; they didn’t bother to ask them and it’s their responsibility under the Education Code for the safety of children outside of the school on public grounds, the sidewalk, in getting them across street, and onto another sidewalk. He mentioned the intersection is confusing for an adult with maturity with judgment in driving and background to get through the intersection. He mentioned there is a no right turn sign but what does that mean to a 10-year-old child; they don’t get it; if a white signal comes up, they go; they haven’t learned to look behind them where the drive through is coming out to see if anyone is coming; kids don’t get it. He mentioned a teenage driver could get his food and ignore the sign when coming out of the drive through and hit a kid so he still finds it unsafe and he still says they ought to go on. He mentioned he had not heard anything about a bankruptcy, but they can reexamine it at the win He mentioned residents are saying they are suffering for what Councils have done to them for years, not just 2 years, but 5 years; over and over they come here and they suffer an walk away without any hope because the Council says it’s just too expensive to defend its residents and they have better things to do with their money and the Council then becomes a toothless tiger; developers know it; the Council has to approve it because the City will get sued. He mentioned Prime Minister Chamberlin turned over Poland to appease Hitler; somewhere they must say they are not the toothless tiger and Mr. Beinke should also challenge it. He mentioned residents have tenacity, courage, and grit to protect their children and families so he will vote no; he thinks they should go all the way to the court’s decision.
It was moved by Councilmember Shaw and seconded by Councilmember Henderson to adopt the resolution. AYES: Henderson, Meadows, Shaw. NOES: Fuller, Williams. (3-2) 5) REGULAR CALENDAR
5.1 Selection of Non-Profit Organizations to Operate Beer and Wine Concessions at select City Special Events (Lindsey Bruno, Recreation Director) Recreation Director Lindsey Bruno presented the staff report. The following non-profits were recommended for the events named:
Rotary Club of Oakley, Summerfest
East County All Star Fundraising, Heart of Oakley Festival St. Anthony Knights of Columbus 10414, Oaktober Festival Pillars of Hope, May/June concerts
Adventure Therapy, August/September concerts
Be Exceptional, October concert
Ms. Bruno mentioned Rotary Club and East County All Star Fundraising include Councilmembers who are involved, and staff has sought and is awaiting FPPC direction on the matter; therefore, staff recommends approval of only the other four organizations at this time and the other two will be brought back at the April 25 regular Council meeting for consideration.
No public comments were submitted.
It was moved by Councilmember Fuller and seconded by Vice Mayor Williams to approve St.
Anthony Knights of Columbus 10414, Pillars of Hope, Adventure Therapy and Be Exceptional for the respective named events. Motion was unanimous and so ordered. (5-0) Public Hearing items were heard after this item.
6) REPORTS
6.1 CITY MANAGER
(a) City Manager
None.
6.2 OAKLEY CITY COUNCIL/OAKLEY CITY COUNCIL ACTING AS THE SUCCESSOR
AGENCY TO THE OAKLEY REDEVELOPMENT AGENCY
(a) Reports from Council Liaisons to Regional Committees, Commissions and Boards AND Oakley City Council/Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency
Mayor Meadows reported he attended the Mayors’ Conference Thursday and CCTA provided a presentation. He also reported he attended the swearing-in ceremony for Officer Arturo Hurtado.
(b) Requests for Future Agendas
Mayor Meadows shared that resident Liz Elias submitted a public speaker card to request a future agenda item for an e-waste collection site in Oakley.
Vice Mayor Williams requested staff look at a policy for taking a bid close to the lowest competitive bid if coming from an Oakley company.
7) WORK SESSIONS
8) CLOSED SESSION
9) ADJOURN
There being no further business, the meeting was adjourned at 10:57 p.m.
Respectively Submitted,
Libby Vreonis
City Clerk