pieces, as here, in order for the applicant/ developer to obtain momentum and an important foothold toward a much larger project.
In general, a lead agency must analyze fully each “project” in a single environmental analysis and not perform “piecemeal” review by splitting a project into two or more segments. “The prohibition against piecemeal review is the flip side of the requirement that the whole of a project be reviewed under CEQA.” (Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1208, citing Cal Code Regs., tit. 14, § 15378, subd. (a) [CEQA Guidelines].) This principle is designed to ensure “that environmental considerations do not become submerged by chopping a large project into many little ones—each with a minimal potential impact on the environment—which cumulatively may have disastrous consequences.” (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283–284; see also, Nelson v. County of Kern (2010) 190 Cal.App.4th 252, 271-273 [County, as lead agency under CEQA, was required to analyze impacts of both mining operations and reclamation plan, even though mining operations were reviewed and approved by the Bureau of Land Management].) In response to the August 26, 2024, letter submitted by Buchalter in support of the applicant’s appeal (Buchalter Letter), we respectfully submit the following:
First, the City Council is not required to overturn the Planning Commission’s decision simply because the Commission did not adopt formal findings. (See Buchalter Letter, pp. 3-6.) The Buchalter letter mistakenly cites only authority involving legal challenges to a lead agency’s approval of a project and the adequacy of the evidence supporting that approval under CEQA or the State Planning and Zoning Law (Gov. Code, § 65000 et seq.) not, as here, the denial of a project by a city.
CEQA does not apply to projects that a public agency rejects or disapproves. (Pub.
Resources Code, § 21080, subd. (b)(5); CEQA Guidelines, § 15270, subd. (a); 3 see also, Sunset Sky Ranch Pilots Assn. v. County of Sacramento (2009) 47 Cal. 4th 902, 905 [same]; Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal. App. 4th 837, 850 [finding public agencies need not complete and certify an EIR before rejecting a project; developer did not have any property interest protected by federal or state procedural due process in the possibility of approval; there was no substantive due process violation in city’s rejection of the project; city’s rejection of project did not result in a “class of one” equal protection violation; and developer forfeited claim of error].)
3 If a public agency denies a project the applicant must still pay for the costs associated with preparing the EIR (or other environmental document) after the normal evaluation and processing. (CEQA Guidelines, § 15270, subd. (c).)
7.g
Packet Pg. 445 Attachment: Attachment F Public Comments Received By 12pm on 2024-09-18 (5761 : Quarry Reclamation Plan Appeal) Honorable Mayor Vaterlaus & City Councilmembers
City of Pacifica
September 16, 2024
Second, the cases cited in the Buchalter Letter are inapposite. Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514-518, for example, involved the Supreme Court invalidating a variance granted by a county in furtherance of project permitting a mobile home park on land zoned for light agriculture and single family residences. The Court found that administrative findings supported by substantial evidence were a prerequisite to sustaining the variance and the county neglected to make such findings.
Similarly, City of Carmel-by-the-Sea v. Board of Supervisors (1977) 71 Cal.App.3d 84 also involved a successful CEQA challenge to the county zoning administrator’s approval of a use permit for a motel development. On appeal, the court found the administrative findings insufficient to support the approval. (Id., at p. 87, citing Topanga, supra, 11 Cal.3d 506.) As an aside, the court also found no merit in plaintiffs’ contention that only written findings of fact, labeled as such, are sufficient to comply with the requirements of Topanga. (Id., at p. 91.) Rather, the court looked to the whole record to see if (1) the evidence supports the findings, and (2) the findings support the decision. (Ibid.) The court in City of Carmel explained:
Neither in the Zoning Administrator’s findings nor in any of the matters considered in support thereof do we find evidence of, or a discussion concerning, economic or social values in the project which override the adverse effects disclosed by the EIR . . . . we are unable to find anything in the administrative record from which the evaluation and resolution of such environmental problems can even be implied. The absence of such an evaluation makes compliance with section 21001, subdivision (g), of the Public Resources Code impossible as a matter of law. We must conclude, therefore, that the Zoning Administrator's findings are insufficient to support his decision. (City of Carmel-By-The-Sea, supra, 71 Cal. App. 3d at pp. 94–96.) Third, the Buchalter letter neglects to cite case law that could be relied on by the City Council here to uphold the Planning Commission’s decision. In Las Lomas Land Company, for example, the Court of Appeal upheld a trial court decision dismissing a petition for writ of mandate and complaint filed against the City of Los Angeles by a developer after it terminated its environmental review of a proposed development project and rejected the project before completing the EIR and after the developer allegedly spent millions of dollars in an effort to comply with the city’s requirements. The developer unsuccessfully argued that the city had a mandatory duty under CEQA to complete and consider the EIR before rejecting the project, in addition to a variety of alleged due process and equal protection violations. (Las Lomas Land Co., LLC, supra, 177 Cal. App. 4th 837, 842-862.)
Schellinger Brothers v. City of Sebastopol (2009) 179 Cal.App.4th 1245, is also instructive. In that case, the First District Court of Appeal upheld a trial court’s decision denying
7.g
Packet Pg. 446 Attachment: Attachment F Public Comments Received By 12pm on 2024-09-18 (5761 : Quarry Reclamation Plan Appeal) Honorable Mayor Vaterlaus & City Councilmembers
City of Pacifica
September 16, 2024
a writ of mandate filed by a developer to compel certification of an EIR where recirculation of the EIR was determined to be necessary by the city and, therefore, the CEQA process was ongoing despite years of environmental review. The court reasoned that, however tortured the environmental review process may have become, the developer was not entitled to an order requiring certification of the EIR or approval of the project, nor was the developer entitled to damages for the harm caused by the city’s actions. Rather, the court reasoned that the city had exercised its discretion, albeit in a way not to the developer’s liking. Such discretion, however, was not actionable against the City.
Lastly, while disgruntled applicants may appeal to the State Department of Conservation’s Division of Mine Reclamation (DMR), State Mining and Geology Board (Board), for approval of a reclamation plan, the likelihood that the Board would take over as lead agency, hear an appeal, or require fees and costs to be paid by a local agency to an applicant, is slim. In fact, we are unaware of any such action being taken by the Board under circumstances such as those that exist before the City.
The Board may hear any appeal if an applicant proves that a lead agency (1) violated due process, (2) relied on considerations outside the scope of Public Resources Code §§ 2772, 2772.1, 2773, 2773.1, 2773.3, or 2773.4 or the local ordinances enacted pursuant to § 2774(a), or (3) failed to act on the application within a reasonable time. (Pub. Resources Code, § 2770 subd. (e)(1).) Conversely, the Board “may decline to hear an appeal if it determines that the appeal raises no substantial issues related to the lead agency's decision to deny the approval of a reclamation plan or financial assurance, or the timeliness in reviewing a completed application.” (Pub. Resources Code § 2770 subd. (f)(1).) According to the Board’s rules promulgated pursuant to SMARA, in determining whether the Board has jurisdiction to hear an appeal, the Chairman must determine whether the appeal “raises substantial issues related to the lead agency’s review of reclamation plans …” This decision must be made in consideration of “(a) whether the appeal raises any issues which can legally be addressed by the Board within the limits of PRC 2770(e) and the rules of the Board and (b) whether the appeal specifically relates to the lead agency's review of reclamation plans submitted for surface mining operations pursuant to the provisions of PRC 2770." (Cal.
Code Regs., tit. 14, Division 2, Chapter 8 § 3627.)
Even if the Board were to claim jurisdiction over an appeal, the Board “shall not exercise its independent judgement on the evidence but shall only determine whether the decision of the lead agency is supported by substantial evidence in the light of the whole record.” (Pub.
Resources Code § 2775 subd. (c).) If the Board finds the lead agency lacked the requisite substantial evidence, the Board is limited to remanding the appeal back to the lead agency for reconsideration. In other words, the Board cannot independently approve or reject a reclamation plan on appeal.
7.g
Packet Pg. 447 Attachment: Attachment F Public Comments Received By 12pm on 2024-09-18 (5761 : Quarry Reclamation Plan Appeal) Honorable Mayor Vaterlaus & City Councilmembers
City of Pacifica
September 16, 2024
Hypothetically, the Board could also take over as lead agency “if it finds that a lead agency has: (1) approved reclamation plans and financial assurances that are not consistent with SMARA; (2) failed to inspect mines as required by SMARA; (3) failed to seek forfeiture of financial assurances to carry out reclamation; (4) failed to take appropriate enforcement actions; (5) intentionally misrepresented the results of inspections; or (6) failed to submit the required information to the Department.” (See People ex re. Dept. of Conservation v. El Dorado County (2005) 36 Cal.4th 971, 985 [outlining the criteria under Pub. Resources Code § 2774.4 subd. (a)(1-6)].) None of these factors are at issue here.
In our view and under the circumstances at hand, it is extremely unlikely that the Board would claim jurisdiction over an appeal, should the applicant file one, or assert itself as lead agency over the City. Even if the Board were to hear an applicant appeal, moreover, the remedy would be limited to remanding the appeal for further consideration by the City as lead agency. * * *
In light of the above authority and the independent (third-party) expert evidence in the record warranting the need for additional revision and recirculation of the EIR under CEQA, CPUP urges the Council to adopt findings denying the applicant’s appeal and declining to certify the EIR or approve the Project at this time.
CPUP urges the Council to take a breath, ask the tough questions and require staff and the applicant to provide additional information and, based on that information, revise the EIR and proposed approval documents so that the planning and environmental review process can work as the Legislature intended.
Thank you for your time and consideration of these comments.
Very truly yours,
Andrea K. Leisy
Cc: Honorable Mayor pro Tem Beckmeyer ([email protected]) Honorable City Councilmember Bier ([email protected])
Honorable City Councilmember Bigstyck ([email protected]) Honorable City Councilmember Boles ([email protected]) City Clerk ([email protected])
City of Pacifica ([email protected])
7.g
Packet Pg. 448 Attachment: Attachment F Public Comments Received By 12pm on 2024-09-18 (5761 : Quarry Reclamation Plan Appeal) 1 From: wolfgang lembcke
Sent: Monday, September 16, 2024 5:14 PM
To: Public Comment
Subject: Quarry Landfill
[CAUTION: External Email]
DO NOT ALLOW TOXIC LANDFILL IN OUR QUARRY!!
Wolfgang Lembcke
CAUTION: This email originated from outside of the City of Pacifica. Unless you recognize the sender's email address and know the content is safe, do not click links, open aƩachments or reply.
7.g
Packet Pg. 449 Attachment: Attachment F Public Comments Received By 12pm on 2024-09-18 (5761 : Quarry Reclamation Plan Appeal) 1 From:
Sent: Monday, September 16, 2024 5:34 PM
To: Public Comment
Subject: Quarry landfill
[CAUTION: External Email]
I am against the proposed project. I think it is unnecessary for california rules and regulaƟons. There are a lot of unknowns with this project. Before approving, make sure the city oversees the tesƟng of soil. I worry there wont be enough oversight and we will get toxic soil. Wear and tear on roads, dust , traffic and noise are other concerns. It sounds like we don’t need to fill in the whole quarry to comply with state law.
Lisa Isenstein
Linda Mar
CAUTION: This email originated from outside of the City of Pacifica. Unless you recognize the sender's email address and know the content is safe, do not click links, open aƩachments or reply.
7.g
Packet Pg. 450 Attachment: Attachment F Public Comments Received By 12pm on 2024-09-18 (5761 : Quarry Reclamation Plan Appeal) 1 From: Nina Lombardo
Sent: Tuesday, September 17, 2024 7:59 AM
To: Public Comment
Subject: Quarry appeal hearing
[CAUTION: External Email]
I'd like to know how many members of city council would benefit from the dumping of truckloads of hazardous waste.
Hazardous waste is precisely what it is. We don't know where it's from, what's been draining into it, what's contaminated it. There's a plethora of hazardous materials that will be dumped in our community, exposing us to who knows what! Is the city council going to take responsibility should their constituents become sick from it? If city council wants their hazardous waste so bad, let them put it in their backyard.
It's instances like this that cause the public at large to think ill of council members because there's no benefit to the community so it can only be benefiting council members.
SAY NO TO HAZARDOUS WASTE DUMPING IN OUR TOWN!
CAUTION: This email originated from outside of the City of Pacifica. Unless you recognize the sender's email address and know the content is safe, do not click links, open attachments or reply.
7.g
Packet Pg. 451 Attachment: Attachment F Public Comments Received By 12pm on 2024-09-18 (5761 : Quarry Reclamation Plan Appeal) 1 From: Christina Rimmer
Sent: Tuesday, September 17, 2024 12:59 PM
To: Public Comment; Beckmeyer, Sue; Bier, Mary; Bigstyck, Tygarjas; Vaterlaus, Sue Subject: City Council Special Meeting 9/17/24
[CAUTION: External Email]
Dear Pacifica City Council members, public and staff,
I write as a longƟme resident of Pacifica who has seen mulƟple aƩempts through failed ballot measures, planning commission submissions and campaigns to develop the “undeveloped and vacant land” at Rockaway Quarry, also known as The Quarry.
What makes Pacifica special is its open spaces, fresh air and access to the out of doors. While I appreciate the Pacifica city staff in refreshing the Local Coastal Land Use Plan, development of the quarry for what is clearly monetary (versus societal) gain is not supported by this Pacifican, and many others I know. As our elected officials, I urge you to focus on the legacy you plan to provide Pacifica, and that your legacy not be one of development, commercializaƟon and greed, but one of safety, quality and beauty.
Regards
ChrisƟna WerĬorst Rimmer
Sent from my iPad
CAUTION: This email originated from outside of the City of Pacifica. Unless you recognize the sender's email address and know the content is safe, do not click links, open aƩachments or reply.
7.g
Packet Pg. 452 Attachment: Attachment F Public Comments Received By 12pm on 2024-09-18 (5761 : Quarry Reclamation Plan Appeal) 1 From: Rimmer, Eric
Sent: Tuesday, September 17, 2024 1:28 PM
To: Public Comment; Beckmeyer, Sue; Bier, Mary; Bigstyck, Tygarjas; Vaterlaus, Sue Cc: Christina Rimmer
Subject: City Council Special Meeting 9/17/24
[CAUTION: External Email]
Dear Pacifica City Council members, public and staff,
I write as a longƟme resident of Pacifica who has seen mulƟple aƩempts through failed ballot measures, planning commission submissions and campaigns to develop the “undeveloped and vacant land” at Rockaway Quarry, also known as The Quarry. You must be aware that this land has significantly returned to nature, and now has significant conservaƟon and recreaƟonal value. I and a majority of Pacifica Residents would be against any “development” of this valuable local asset.
What makes Pacifica special is its open spaces, fresh air and access to the out of doors. While I appreciate the Pacifica city staff in refreshing the Local Coastal Land Use Plan, development of the quarry for what is clearly monetary (versus societal) gain is not supported by this Pacifican, and many others I know. As our elected officials, I urge you to focus on the legacy you plan to provide Pacifica, and to show to out-of-town land speculators that Pacifica is not for sale.
Thanks
Eric Rimmer,
This e-mail message, together with any attachments, contains information of Merck & Co., Inc. (126 East Lincoln Ave., P.O. Box 2000, Rahway, NJ USA 07065) and/or its affiliates, that may be confidential, proprietary copyrighted and/or legally privileged. (Direct contact information for affiliates is available at - Contact us - MSD.) It is intended solely for the use of the individual or entity named on this message. If you are not the intended recipient, and have received this message in error, please notify us immediately by reply e-mail and then delete it from your system.
CAUTION: This email originated from outside of the City of Pacifica. Unless you recognize the sender's email address and know the content is safe, do not click links, open attachments or reply.
7.g
Packet Pg. 453 Attachment: Attachment F Public Comments Received By 12pm on 2024-09-18 (5761 : Quarry Reclamation Plan Appeal)