Cyrus Abhar, City Manager
October 3, 2022
DPML-58478\2688190.1
consistent with aesthetic criteria in urban design guidelines established in connection with redevelopment project reviewed and approved under earlier EIR; limited scope of city’s discretion in reviewing plans for conformity to guidelines’ aesthetic criteria did not give it ability to meaningfully respond to GHG and climate change impacts raised by project opponent]; McCorkle, supra, 31 Cal.App.5th at 94 [rejecting project opponent’s argument “that because the City had discretion to conduct design review the entire project was discretionary and subject to CEQA”]; Sierra Club v. County of Sonoma, supra, 11 Cal.App.5th 11 [vineyard development permit was ministerial where applicable regulations conferred no meaningful discretion to mitigate environmental damage].)
III. To the Extent Limited CEQA Review Is Required Here, The Design Review Project Qualifies For A Guidelines Section 15183 Partial Exemption And Streamlined Review.
As noted above, to the extent that CEQA applies to the Design Review Project, it qualifies for a CEQA Guidelines Section 15183 partial exemption for projects that are consistent with the densities/intensities established by the existing zoning, community plan, or general plan. Because an EIR was prepared and certified by the lead agency in accordance with CEQA, which covered full development of the Project site with the type and intensity of uses authorized when it adopted the ZSPA, the City’s additional CEQA review of the Design Review Project here must be narrowly limited to analysis of only the design review-related environmental effects of the Design Review Project (if any).
Moreover, any such CEQA review is further limited under Guidelines Section 15183 as follows:
(1) to those environmental effects that the city determines are peculiar to the project and were not studied in the EIR for the zoning, community plan, or general plan;
(2) to those environmental effects of the project that were not analyzed as significant effects in the EIR prepared for the general plan (or zoning action, or community plan);
(3) to potentially significant off-site impacts and cumulative environmental impacts of the project which were not discussed in the prior EIR prepared for the general plan (or zoning action or community plan); or (4) to previously identified significant effects which, as a result of substantial new information which was not known at the time the EIR was certified, are determined to have a more severe adverse impact than discussed in the prior EIR.
Here, the Design Review Project involves a land use that the ZSPA permits by right at the proposed density and intensity (also fully consistent with the ZSPA) — and for ITEM 18.1.
ATTACHMENT 10
Cyrus Abhar, City Manager
October 3, 2022
DPML-58478\2688190.1
which Dermody has vested rights under the Development Agreement to proceed — and all environmental impacts of such use, density and intensity were fully disclosed, analyzed and mitigated as required under CEQA in the certified ZSPA FEIR. Thus, in addition to the legal limitations on the application and scope of CEQA inherent in the Major Design Review process itself, the application of a Guidelines Section 15183 exemption is also entirely appropriate and is exactly the CEQA compliance pathway that the City has followed for similar recent projects in the ZSPA.2
With regard to any potential design-related environmental effects peculiar to the Design Review Project, we note that the applicant has already prepared a thoughtful noise study to confirm that it would not have any new significant and/or peculiar noise impacts not already analyzed in the ZSPA FEIR. The Project will also be required to – and will – comply with all applicable mitigation measures under the ZSPA MMRP, which further ensures that the Design Review Project will not result in any peculiar or more severe impacts than already discussed in the ZSPA FEIR.
Among other things, the MMRP includes measures to mitigate any potentially significant biological impacts, air quality impacts, water quality impacts, and noise impacts.
Finally, we note that following the preparation and certification of an EIR, CEQA places strict limitations on conducting subsequent CEQA review of a project (the conditions for which are not met here), and prescribes no “expiration date” for an EIR (or for any relevant type CEQA document, for that matter). (See Pub. Res.
Code, § 21166 and CEQA Guidelines § 15162 [setting forth the limited situations where subsequent or supplemental review may be required after an EIR has been prepared]; see also Latinos Unidos v. City of Napa (2013) 221 Cal.App.4th 192 [upholding city’s reliance on decades-old general plan EIR when approving a new housing element and determining no new EIR was required]; Committee for Re- Evaluation of T-Line Loop v. San Francisco Municipal Transportation Agency (2016) 6 Cal.App.5th 1237, 1254 [16-year old EIR held adequate CEQA compliance for light rail line project]; Snarled Traffic Obstructs Progress v. City and County of San Francisco (1999) 74 Cal.App.4th 793 [nearly decade-old negative declaration held adequate CEQA compliance for parking structure project].) In sum, here it is entirely appropriate to apply the Guidelines Section 15183 partial exemption and streamlined CEQA review to the Design Review Project based on
2 Within the ZSPA, the Project site has a land use designation of Business and Professional Office where the proposed warehousing, delivery, and distribution type use is permitted by right, not requiring approval of a conditional use permit. (ZSPA, § 512-204 (D).) The Design Review Project at issue here has also been carefully designed so as to ensure that the height and size of the proposed building, setbacks, and site improvements are consistent with the development standards set forth in the ZSPA. (See, e.g., Development Agreement, at § 2.1; ZSPA, § 512-204 (D); 2003 Zoning Ordinance at § 230, Table IV.)
ITEM 18.1.
ATTACHMENT 10
Cyrus Abhar, City Manager
October 3, 2022
DPML-58478\2688190.1
the extensive CEQA review already conducted in the certified ZSPA FEIR, which is now final, beyond legal challenge, and conclusively presumed to be adequate. To require any more extensive or repetitive review would violate fundamental principles of CEQA that seek to promote the finality of EIRs and avoid and prohibit meaningless, duplicative, wasteful, and/or unnecessary environmental review. ***************************************************
Your anticipated attention to the above information is greatly appreciated, and we hope it is helpful to you. Should you have any questions regarding the foregoing, please do not hesitate to contact the undersigned directly.
Very truly yours,
MILLER STARR REGALIA
Arthur F. Coon
AFC:tzb/klw
cc: Adam Lindgren, Esq., City Attorney, [email protected] Elizabeth Sparkman, Community Development Director,
[email protected]
George Condon, Dermody Properties, [email protected]
Lucy Crocker, Lucy & Company, [email protected]
Michelle Smira, MMS Strategies, [email protected] Nadia L. Costa, Esq., Miller Starr Regalia, [email protected] Travis A. Brooks, Esq., Miller Starr Regalia, [email protected] ITEM 18.1.
ATTACHMENT 10
EXHIBIT E
ITEM 18.1.
ATTACHMENT 10
555 Capitol Mall, Suite 1200
Sacramento, California 95814
tel (916) 556‐1531
fax (916) 556‐1516
www.meyersnave.com
Edward Grutzmacher
Attorney at Law
[email protected]
A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO March 2, 2020
Michael R. Lozeau
Paige Fennie
Lozeau Drury LLP
1939 Harrison Street, Suite 150
Oakland, CA 94612
Re: Project DD9903: GLP Stores, LLC Warehouse on APN 072-2860-033-0000 Request for Review under the California Environmental Quality Act (“CEQA”) Dear Mr. Lozeau and Ms. Fennie:
The City of Rancho Cordova (“City”) is in receipt of your letter dated February 18, 2020 concerning Project DD9903: GLP Stores, LLC Warehouse on APN 072-2860-033-0000 (“Project”). The City Attorney’s Office has had the opportunity to review your letter and has the following responses to the allegations and assertions made therein.
In your letter, you claim that the City is in violation of the California Environmental Quality Act (“CEQA”) for relying on CEQA Guidelines section 15183 to conclude that the Project is in compliance with the City’s General Plan and no further environmental review is required.
Your letter further asserts that the CEQA requires the City to examine the Project’s potential impacts to human health from toxic air contaminants (“TAC”), (pp. 3-4), impacts from the Project’s greenhouse gas emissions, (p. 4-5), the Project’s consistency with the General Plan (p. 5-6), and the Project’s impacts to biological resources, (p. 5-8).
The Project seeks Major Design Review approval for a 164,149 square-foot light industrial office warehouse and associated office space building that includes parking, lighting, and landscaping for the applicant GLP Stores, LLC. The Project is located within the Villages of Zinfandel Special Planning Area (“ZSPA”). The Special Planning Area was approved in 2002 by Sacramento County. The ZSPA includes residential, commercial, business professional, light industrial, park, bike trails, and open space uses. A Final Environmental Impact Report was certified for the Special Planning Area in 1998 by Sacramento County and a Mitigation Monitoring Program was adopted. Under the City’s General Plan and the ZSPA, the Project site has a designation of Light Industrial, which allows for limited industrial uses. Similarly, under the City’s Zoning Code, the Project site is zoned Light Industrial Villages of Zinfandel Special Planning Area (LI ZSPA) which allows for industrial/retail flex and manufacturing and warehousing uses.
ITEM 18.1.
ATTACHMENT 10
Michael R. Lozeau
March 2, 2020
A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO The Project site has had previous entitlements that were approved as follows:
April 2006: Tentative Parcel Map that included the light industrial zoned area to the west and south. Divided 3 parcels into 93 parcels.
May 2007: Tentative Subdivision Map, Creekside Commerce Center, to divide 28 acre parcel into 16 parcels. The project also included a design review for 16 buildings.
Feb 2009: A Tentative Subdivision Map Amendment, Creekside Commerce Center, that reduced the subdivision map from 16 parcels to 8 parcels and reduced 16 buildings to 7 buildings.
March 2017: A Tentative Subdivision Map, Creekside Commerce Center, Extension to February 2020.
Oct 2018: Final Map recorded.
Oct 2019: Lot Line Adjustment to combine 3 lots into 1 lot (subject property).
The Project is a permitted use and does not require a conditional use permit. Rather, the Project requires only approval of Major Design Review. Pursuant to the City’s Code, Chapter 23.141, the City Council “may approve or approve with conditions an application for major design review after finding all of the following” “A. The proposed project is consistent with the objectives of the General Plan, complies with applicable zoning regulations, Specific Plan provisions, and special planning area provisions, and is consistent with the applicable Rancho Cordova design guidelines.
B. The proposed architecture, site design, and landscape are suitable for the purposes of the building and the site and will enhance the character of the neighborhood and community.
C. The architecture, including the character, scale, and quality of the design, relationship with the site and other buildings, building materials, screening of exterior appurtenances, exterior lighting and signing, and similar elements, establishes a clear design concept and is compatible with the character of existing or anticipated buildings on adjoining and nearby properties.
D. The proposed project will not create conflicts with vehicular, bicycle, or pedestrian transportation modes of circulation.” (City Code, § 23.141.070.) The City Council may only condition approval of a Major Design Review application “to ensure specific design features, construction materials, and conformance with all applicable provisions of this chapter.” (City Code, § 23.141.080.) ITEM 18.1.
ATTACHMENT 10
DPML-58478\2730442.2
1331 N. California Blvd.
Suite 600
Walnut Creek, CA 94596
T 925 935 9400
F 925 933 4126
www.msrlegal.com
Arthur F. Coon
Direct Dial: 925 941 3233
[email protected]
Offices: Walnut Creek / San Francisco / Newport Beach
January 25, 2023
VIA EMAIL
Mayor Budge, Vice Mayor Sander, and City
Councilmembers
City of Rancho Cordova
2729 Prospect Park Drive
Rancho Cordova, CA 95670
Email: [email protected]
Re: Dermody Properties’ Notice of City of Rancho Cordova’s Breach of and Default Under Development Agreement and 60-Day Period to Cure; LogistiCenter Project at Corner of N. Mather Blvd./Bear Hollow Drive (APN 072-2360-041-000), File No. PLND-1021-0015
Dear Mayor Budge, Vice Mayor Sander, and Honorable Members of the City Council:
This firm represents Dermody Properties (“Dermody”), as successor-in-interest to original master developer Elliott Homes, Inc. under that certain “Villages of Zinfandel Development Agreement” entered into as of May 28, 2003, and adopted by County Ordinance No. SZC-2003-0011, which became effective June 28, 2003 (the “Development Agreement” or “DA”), with respect to Dermody’s above-referenced real property located within the 671.39± acre site governed by the DA.
This letter constitutes Dermody’s written notice pursuant to Section 6.1 of the Development Agreement that the City of Rancho Cordova (the “City”), which is successor-in-interest to the County of Sacramento under the DA, has materially breached and is in default of its legal obligations under the DA to timely and in good faith process and approve Dermody’s Major Design Review application for the above-referenced LogistiCenter project located on Dermody’s approximately 10- acre parcel at the corner of North Mather Boulevard and Bear Hollow Drive in the City (the “Design Review Project” or “Project”).
The Project is located within the Villages of Zinfandel Special Planning Area (VOZSPA), an 823± acre area within the Cordova community that transitioned from heavy industrial (surface mining) use and zoning to a comprehensively planned and entitled mixed-use development in the late 1990’s and early 2000’s when the County of Sacramento approved extensive development entitlements for the area, including general plan and zoning amendments, an amended community plan, a ITEM 18.1.
ATTACHMENT 11
Mayor Budge, Vice Mayor Sander, and City Councilmembers January 25, 2023
DPML-58478\2730442.2
public facilities financing plan, and the subject DA. The VOZSPA’s potential environmental impacts were also comprehensively analyzed under the California Environmental Quality Act (“CEQA”; Pub. Resources Code, § 21000 et seq) through a Final Environmental Impact Report (“FEIR”) certified by the County on March 25, 1998, as supplemented through a Final Supplemental EIR (“FSEIR”) certified by the County on April 26, 2000. The DA was approved by Ordinance No. SZC-2003- 0011, which was adopted on May 28, 2003, and has a 20-year term.
Dermody submitted its Design Review Project application on October 25, 2021, and the City determined the application to be complete on January 12, 2022, over a year ago. The City was required to determine within 30 days of that date, or by November 24, 2021, whether an EIR or negative declaration would be required for the Project. (Pub. Resources Code, §§ 21080.1(a), 21080.2.) Even assuming that the Project is not exempt – which it is – such that a CEQA document of some kind would be necessary, all possible statutory deadlines for the City to have completed its CEQA review of the Design Review Project have now expired without the City Council having completed or adopted any CEQA document or findings. (See Pub.
Resources Code, § 21151.5(a), (1)(A), (B); CEQA Guidelines, § 15107 [if negative declaration is to be prepared, lead agency must complete and adopt same within 180 days after date application is complete, and if EIR is to be prepared, agency must complete and certify same within one year].) The City’s staff and attorneys have consistently advised the Council that the Project is exempt from CEQA under CEQA Guidelines, § 15183. (See Pub. Resources Code, § 21083.3.) For many months Dermody and the City’s own planning staff have advised and reminded the Council of (1) its obligations under the DA, (2) its very limited discretion to conduct CEQA review in the Major Design Review process, and (3) that the Project should be reviewed and found exempt from further environmental analysis under the exemption/streamlined review provisions of CEQA Guidelines section 15183, which the City has applied to similar projects. The Council’s failure to timely complete its CEQA review of the Project in the more-than-one-year period of time that has elapsed since the Project application was determined to be complete, in and of itself, constitutes a bad faith failure to timely process and approve the Project as required by the DA.
The City’s failure to timely process the Project not only violates CEQA and the DA, as explained further below, but has deprived Dermody of legal rights that should also rightfully have accrued to it under the Permit Streamlining Act (“PSA”; Gov.
Code, § 65920 et seq). The PSA provides that a CEQA lead agency must act to approve or disapprove a project within 60 days after a negative declaration is adopted or an exemption determination made. (Gov. Code, § 65950(a)(4), (5).) The City should have completed its CEQA analysis and exemption determination for this Project by the Spring of 2022, at the latest, and acted to approve or disapprove it not later than June 2022 – over six months ago – assuming it had been acting in compliance with CEQA and the PSA, and even setting aside its further legal obligations under the DA.
ITEM 18.1.
ATTACHMENT 11
Mayor Budge, Vice Mayor Sander, and City Councilmembers January 25, 2023
DPML-58478\2730442.2
In fact, the Project should have been processed to an approval decision even earlier than last summer because – in addition to the basic requirements of CEQA and the PSA – Dermody has vested property and contractual rights under the DA requiring the City’s timely processing of and approval action on its Design Review Project application, and the City’s full and good faith cooperation to enable Dermody to obtain the full benefits of the DA. These DA rights of Dermody, and the City’s corresponding DA obligations, have previously – and repeatedly – been explained to the City in detail, with abundant supporting citations to relevant DA provisions, in prior correspondence from Dermody’s counsel including: (1) Nadia Costa’s July 18, 2022 letter to the City Attorney, copied to the City Manager and Deputy City Manager; (2) my September 16, 2022 letter to City Manager Cyrus Abhar, copied to the City Attorney and Community Development Director; (3) my November 29, 2022 letter to the City Council, copied to the City Manager, Deputy City Manager, and City Attorney; (4) my December 14, 2022 letter to the City Council, copied to the City Manager, Deputy City Manager, and City Attorney; and (5) my January 10, 2023 letter to the City Council, copied to the Community Development Director and City Attorney.1
Despite Dermody’s extensive correspondence repeatedly bringing the City’s attention to its legal obligations under the DA and applicable law, the City Council has ignored and failed even to acknowledge these obligations. Instead, it has repeatedly continued and delayed hearings on the Project beginning in April 2022.
After a half year delay, the City refused to set a hearing for Project approval in November 2022 as Dermody requested. After delays of well over a year from the date of Dermody’s submitted application, and almost a year from the application being deemed complete, the City finally set a December 5, 2022 hearing to consider the Project, but then further continued that hearing without taking action to January 17, 2023. On the latter date, the Council finally closed the public hearing following presentations by City staff and Dermody, and after hearing public comment on the Project, but then refused to discuss, deliberate or take action on Dermody’s Project application, and instead further continued that portion of the hearing to January 30, 2023. The Council voted to further delay a decision on Dermody’s Project so that it could first further consult with the City Attorney (who was present at the January 17 hearing) in closed session concerning an 8-page, single-spaced “late hit” CEQA comment letter submitted by an attorney hired by project opponents which was not received until well after commencement of the January 17 hearing.
Unfortunately, but consistent with the Council’s previous public discussions indicating either a profound misunderstanding of or a heedless intent to exceed its lawful discretion in its consideration of the Project, the Council’s most recent action
1 The foregoing correspondence, and all exhibits thereto, are already part of the Administrative Record in the City’s administrative proceedings on Dermody’s Design Review Project and are fully incorporated by reference in the instant written notice of City’s breach and default under the DA.
ITEM 18.1.
ATTACHMENT 11
Mayor Budge, Vice Mayor Sander, and City Councilmembers January 25, 2023
DPML-58478\2730442.2
was again taken in bad faith disregard of its DA obligations to timely process and approve the Project. As but one example, when I, as counsel for Dermody, was asked by the Council to come to the podium and respond at the January 17 hearing to the just-received CEQA comment letter and began my response by accurately characterizing it as a typical (and meritless) “late hit” CEQA comment letter, I was interrupted and chided by the Council not to “editorialize.” I found this to be an extremely surprising rebuke since the Council, like the California courts, is surely “aware that the practice of allowing [CEQA] objectors to withhold objections, which could have been raised earlier in the environmental review process, until the last possible moment must be strongly disapproved.” (Galante Vineyards v.
Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109, 1120, emph. Added, citing Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 568.) As noted by our Supreme Court in the above-cited case:
“We cannot, of course, overemphasize our disapproval of the tactic of withholding objections, which could have been raised earlier in the environmental review process, solely for the purpose of obstruction and delay. As one federal court has aptly stated: “[T]he NEPA requirement of studying alternatives may not be turned into a game to be played by persons who – for whatever reasons and with whatever depth of conviction – are chiefly interested in scuttling a particular project. [citation.]” (Goleta Valley, supra, 52 Cal.3d at 568, emph. added, citation omitted; see also, e.g., South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316 [lengthy “late hit” comment letter from project opponent’s attorney delivered at beginning of Board hearing on project resulted in Board continuing hearing for over a month to respond]; cf. Save North Petaluma River and Wetlands v. City of Petaluma (2022) 86 Cal.App.5th 207 [notwithstanding project opponent’s late hit comment letter submitted on afternoon of hearing, City Council proceeded with hearing and after considering detailed staff memo covering project’s history, public comments, the real party’s public outreach, and numerous responsive project revisions, and the revised project’s satisfaction of the previously expressed planning commission concerns, and after several hours of deliberation and public comment at the hearing, City Council took action as publicly noticed and scheduled and voted to certify FEIR and approved zoning amendments for project].) While Dermody will respond by separate letter to the substance – or, more accurately, the lack thereof – of the Project opponents’ lawyer’s late-hit CEQA comment letter, the above is included for present purposes simply to augment Dermody’s showing as to the City’s continuing bad faith breaches and disregard of its DA obligations. Here, the City Council not only refused to “strongly disapprove” the Project opponents’ “late hit” CEQA tactic, but actually rewarded it with a further two-week delay. By contrast, a council acting in good faith would have quickly and roundly condemned and rejected the Project opponents’ well-recognized and judicially-disapproved abusive CEQA “late-hit” tactic, and would have reminded the Project opponents of the lengthy processing process Dermody has endured to date, ITEM 18.1.
ATTACHMENT 11
Mayor Budge, Vice Mayor Sander, and City Councilmembers January 25, 2023
DPML-58478\2730442.2
the numerous project amendments and concessions it has voluntarily made and offered to address public concerns, and Dermody’s vested legal and contractual rights to timely processing and approval of its Major Design Review application under the DA. But the Council did not. Instead, it chose to praise the project opponents, as “informed and articulate” and not “typical NIMBYs,” further underscoring its willful disregard for Dermody’s DA and other legal rights to timely and good faith processing of and an approval decision on its Project.2 In other words, for whatever reason, the Council members are continuing to unnecessarily delay their decision on this Project and are publicly praising Project opponents who are vilifying Dermody, encouraging further dilatory City action in processing the Project approvals, and blatantly encouraging the City to repudiate its binding DA obligations. Such conduct is the polar opposite of the good faith required under the DA and applicable law.
In sum, the only conclusion that can be drawn from the record in this matter is this:
the City has violated and breached the Development Agreement and Dermody’s vested rights thereunder by attempting to subject Dermody’s Design Review Project to improper and inapplicable requirements and procedures, and by failing to act in good faith to timely process, act on, and approve the Project. Dermody can no longer wait or give the City Council the benefit of the doubt by assuming that it will ultimately choose to comply with its legal obligations under the DA – the term of which will expire in Summer 2023 – and Dermody has therefore been compelled to now provide this formal notice of default.
As provided in the DA, the City can cure its default and avoid the institution of legal proceedings seeking remedies for its DA breaches, by making a final decision on and approving Dermody’s Project, as the Project was fully presented at the January 17, 2023 meeting, by not later than 60 days from the date of this letter. (DA, § 6.1.)
2 It bears noting that the same Project opponents praised by council members offered comments characterizing my client (or, perhaps, me) as a “playground bully” (for insisting that Dermody’s vested rights be respected) and urging the council to “continue the process as long as needed” (Troy Fennel). The opponents even stated: “There are ways out of this contract [the DA], and you know what they are.” (Greg Mylenberg.) Stunningly, the Council did nothing to correct such misapprehensions or acknowledge its binding obligations under the DA.
ITEM 18.1.
ATTACHMENT 11
Mayor Budge, Vice Mayor Sander, and City Councilmembers January 25, 2023
DPML-58478\2730442.2
Thank you for your anticipated attention to these matters.
Very truly yours,
MILLER STARR REGALIA
Arthur F. Coon
AFC:dly/klw
cc: Micah Runner, City Manager ([email protected]) Elizabeth Sparkman, Community Development Director,
([email protected])
Adam Lindgren, City Attorney ([email protected]) George Condon, Dermody Properties ([email protected]) Lucy Crocker, Lucy & Company ([email protected])
Michelle Smira, MMS Strategies ([email protected]) Nadia L. Costa, Esq., Miller Starr Regalia ([email protected]) Travis A. Brooks, Esq., Miller Starr Regalia ([email protected]) ITEM 18.1.
ATTACHMENT 11
DPML-58478\2731268.1
1331 N. California Blvd.
Suite 600
Walnut Creek, CA 94596
T 925 935 9400
F 925 933 4126
www.msrlegal.com
Arthur F. Coon
Direct Dial: 925 941 3233
[email protected]
Offices: Walnut Creek / San Francisco / Newport Beach
January 25, 2023
VIA EMAIL
Mayor Budge, Vice Mayor Sander, and City
Councilmembers
City of Rancho Cordova
2729 Prospect Park Drive
Rancho Cordova, CA 95670
Email: [email protected]
Re: January 17, 2023 Letter to City Council from Attorney Gloria D. Smith Concerning CEQA Review of LogistiCenter Project at N. Mather Blvd./Bear Hollow Drive (APN 072-236—041-000) Within Villages of Zinfandel Special Planning Area, File No. PLND-1021-0015
Dear Mayor Budge, Vice Mayor Sander, and Honorable Members of the City Council:
This office represents Dermody Properties (“Dermody”) in connection with the City Council’s ongoing Major Design Review approval process for the above-referenced warehouse project (the “Project”). This letter addresses contentions raised in the above-referenced January 17, 2023 letter to the Council from San Francisco attorney Gloria D. Smith (the “Smith letter”), which was written on behalf of certain Project opponents calling themselves “Stone Creek Residents for Smart Growth.” The Smith letter makes numerous assertions about the California Environmental Quality Act (“CEQA”; Pub. Resources Code, § 21000 et seq) and its alleged applicability to the City’s design review of the Project. Based thereon, the Smith letter urges this Council to reject the analysis and well-supported conclusions of City’s expert planning staff that: (1) “the [P]roject is exempt and no environmental document pursuant to CEQA is required” and (2) “the City lacks the discretion under the Major Design Review approval process to consider environmental effects not related to the design of the Project, including, but not limited to human health impacts from toxic air contaminants, greenhouse gas emissions, and impacts [to] biological resources.” (Staff Memorandum from Associate Planner Nicholas Sosa to City Council re January 17, 2023 Meeting Agenda Item 18.1, at page 8; see also Staff Memorandum from Sosa to Council re December 5, 2022 Meeting Agenda Item 22.1, at pp. 12-13 [reaching same conclusions].) As explained in more detail below, the City staff’s analysis and determinations are legally and factually correct, and it is the Smith letter that is in error and should be rejected.
ITEM 18.1.
ATTACHMENT 12
Mayor Budge, Vice Mayor Sander, and City Councilmembers January 25, 2023
DPML-58478\2731268.1
I. CITY’S STAFF HAS CORRECTLY DETERMINED THAT THE DESIGN
REVIEW PROJECT BEFORE THE COUNCIL IS CEQA-EXEMPT UNDER
GUIDELINES SECTION 15183 BECAUSE IT IS STATUTORILY EXEMPT FROM CEQA UNDER THAT GUIDELINE’S AUTHORIZING STATUTE,
PUBLIC RESOURCES CODE SECTION 21083.3
The City’s staff has correctly analyzed the Project’s exemption from CEQA as follows:
The Logisticenter at Rancho Cordova Major Design Review would be exempt from CEQA review under CEQA State
Guidelines Section 15183. This exempts from CEQA projects that are consistent with the development density established by existing zoning, community plan, or general plan policies for which an Environmental Impact Report (EIR) was certified, except as might be necessary to examine whether there are project-specific significant effects which are peculiar to the project or its site. The project is located within the Villages of Zinfandel Special Planning Area (VOZSPA). An EIR was certified by the Sacramento County Board of Supervisors in 1998 for the VOZSPA. Additionally, a Supplemental EIR was prepared and certified by the Sacramento County Board of Supervisors in 2002 for the plan area.
The Logisticenter at Rancho Cordova Major Design Review involves development of a 155,040 square foot industrial shell building with parking and loading docks. The development also includes landscaping, drainage, and required screening/fencing for a loading dock area. The business and professional park (BP) site was identified in the Villages of Zinfandel Special Planning Area EIR and uses contemplated within the BP designation include those use[] listed in the Sacramento County Zoning Code under the BP and MP (Industrial Office Park) use tables located in Chapter 25 and Chapter
30. Warehousing is a permitted by right use[s] as listed in Table IV I.3.
Additional supplemental technical studies were prepared to further support that no additional project related impacts would occur as a result of the proposed project. These technical studies include additional traffic analysis, as well as a noise study. The traffic analysis results were summarized under the Traffic Improvements section of the December 5th staff report. The noise study that was completed concluded that noise levels associated with the project generated onsite operations would satisfy the General Plan noise criteria at the nearest existing residential uses. This is due in part to existing solid noise barriers in the vicinity, as well as overall on-site operational practices.
ITEM 18.1.
ATTACHMENT 12
Mayor Budge, Vice Mayor Sander, and City Councilmembers January 25, 2023
DPML-58478\2731268.1
As this Major Design Review is consistent with the Special Planning Area and the environmental documentation prepared for the Special Planning Area, it is exempt from CEQA review.
So long as the project does not have any project-specific significant effects peculiar to the Major Design Review and not identified in the previous environmental documentation, the project is exempt and no environmental document pursuant to CEQA is required. The project applicant is requesting approval of a Major Design Review for the proposed project. Additionally, under CEQA, the City lacks the discretion under the Major Design Review approval process to consider environmental effects not related to the design of the Project, including, but not limited to human health impacts from toxic air contaminants, greenhouse gas emissions, and impacts of biological resources.
(1/17/23 Meeting Staff memo at pp. 7-8, emph. added.)
While the Smith letter attacks Dermody’s past correspondence and positions regarding CEQA, mischaracterizing many of them in the course of doing so (Smith letter, at pp. 2-3, 6), it fails to acknowledge that the City’s own planning staff (and City Attorney) have independently concluded – in full agreement with Dermody’s counsel – that the Design Review Project now before the Council for approval is exempt from CEQA. That conclusion is fully supported by the law and the record.
Indeed, and as the Smith letter also fails to recognize, the Design Review Project is clearly statutorily exempt under Public Resources Code section 21083.3, which is part of CEQA itself, and which states in relevant part:
(a) If a parcel has been zoned to accommodate a
particular density of development or has been designated in a community plan to accommodate a particular density of development and an environmental impact report was certified for that zoning or planning action, the application of this division [CEQA] to the approval of any subdivision map or other project that is consistent with the zoning or community plan shall be limited to effects upon the environment which are peculiar to the parcel or to the project and which were not addressed as significant effects in the prior environmental impact report, or which substantial new information shows will be more significant than described in the prior environmental impact report.
(b) If a development project is consistent with the general plan of a local agency and an environmental impact report was certified with respect to that general plan, the application of this division [CEQA] to the approval of that development project shall be limited to effects on the environment which are peculiar to the parcel or to the project and which were not addressed as significant effects ITEM 18.1.
ATTACHMENT 12
Mayor Budge, Vice Mayor Sander, and City Councilmembers January 25, 2023
DPML-58478\2731268.1
in the prior environmental impact report, or which substantial new information shows will be more significant than described in the prior environmental impact report.
(Pub. Resources Code, § 21083.3(a), (b).) This section of CEQA – which the Smith letter fails to mention – is the relevant statutory authority that CEQA Guidelines § 15183 cites and on which it is based.
A leading CEQA treatise describes the scope and operation of this statutory exemption as follows:
When Pub. Res. C. § 21083.3 applies, CEQA review of a later project is limited to significant environmental impacts that are [1] “peculiar to” the affected parcel or project and [2][a] that were not addressed as significant impacts in the previous EIR or [b] that substantial new information shows will be more significant than described in the previous EIR, [3] together with significant off-site and cumulative impacts that were not discussed in the prior EIR. [citations] Section 21083.3 is worded as a CEQA exemption and not as a procedure for streamlining subsequent environmental review. …. [¶] As originally enacted in 1981, [section] 21083.3 applied only to residential development projects. It was amended in 1992 to remove the residential limitation, so that it now applies to industrial and commercial projects as well as mixed-use projects.
(1 Kostka & Zischke, Practice Under the California Environmental Quality Act (CEB 2d ed., 2022 Update), § 10.33, pp. 10-35 – 10-36, citations omitted, emph. in orig., bracketed text added.)
Accordingly, while there are statutory limits (as enumerated in the above passage) on its application, the Smith letter’s contention that CEQA Guidelines “§ 15183 is not a true exemption” (Smith letter, at p. 3) is simply incorrect. The interpretive Guideline is in relevant part based wholly on the statutory CEQA exemption set forth in Public Resources Code § 21083.3, and as a regulatory interpretive aid it must be applied in a manner consistent with that authorizing statutory exemption in order to be valid. (E.g., 8 Miller & Starr, California Real Estate 4th (2022 Update), § 26:3, pp. 26-18 – 26-19, and cases cited [“guideline that is clearly unauthorized or inconsistent with CEQA is invalid”].) Further, because it is a statutory CEQA exemption enacted by the Legislature for policy reasons, rather than a categorical CEQA exemption based on a regulatory determination of the Secretary of Resources, the exemption is not to be narrowly construed, but, rather, must be broadly construed to achieve its statutory purpose of exempting the covered actions from CEQA review. (E.g., County of Ventura v. City of Moorpark (2018) 24 Cal.App.5th 377, 386-387 [observing it would be incorrect to assume a harmony exists between CEQA’s general purposes and those of its statutory exemptions, which, on the contrary, reflect a variety of policy goals promoting interests deemed important enough to justify foregoing the benefits of CEQA review; ITEM 18.1.
ATTACHMENT 12
Mayor Budge, Vice Mayor Sander, and City Councilmembers January 25, 2023
DPML-58478\2731268.1
further stating, in upholding application of CEQA’s emergency exemption, that courts “do not balance the policies served by the statutory exemptions against the goal of environmental protection” and “the self-evident purpose of the exemption is to provide an escape from the EIR requirement despite a project’s clear, significant impact”].)
II. THE SMITH LETTER CONCEDES THAT THE STATUTORY EXEMPTION OF PUBLIC RESOURCES CODE § 21083.3/CEQA GUIDELINES § 15183
APPLIES TO THE DESIGN REVIEW PROJECT, AND IS WRONG IN
ARGUING THAT ANY OF THE STATUTE’S LIMITATIONS REMOVE THE PROJECT FROM THE SCOPE OF THE EXEMPTION; ITS ATTEMPT TO INVOKE CEQA’S SUBSEQUENT REVIEW RULES ALSO FAILS
The Smith letter does not contest – and thus concedes – that section 21083.3 applies to the project since (1) the parcel on which it is proposed has been zoned and planned to accommodate a particular density of development, (2) an EIR was certified for that zoning and planning action, and (3) the Project is consistent with the zoning and plan for the area.
The Smith letter nonetheless argues the Project is removed from the coverage of the statutory exemption because there are allegedly impacts “peculiar to the project” that “were not analyzed as significant effects in [the] prior EIR on the zoning action” or “which substantial new information [not known at the time the EIR was certified] shows will be more significant [or severe] than described in the prior [EIR].” (See Pub. Resources Code, § 21083.3(a); Smith letter at p. 3, citing CEQA Guidelines, § 15183.) The Smith letter also appears to argue that the Project will have potentially significant cumulative impacts that were not discussed in the prior EIR. (Smith letter, at pp. 3-5; Pub. Resources Code, § 21083.3(c).) The Smith letter’s first argument fails as a factual matter because there is absolutely no evidence that it points to showing that any of the allegedly significant and unanalyzed environmental impacts with which it professes concern are “peculiar to the parcel or to the project” as required by the statute to limit the scope of the exemption. (Pub. Resources Code, § 21083.3(a), (b).) Even assuming arguendo that the warehouse project would have significant GHG, particulate matter, ozone, NOx, or other air quality impacts as the Smith letter suggests (at p. 4), these impacts are not peculiar to Dermody’s Project or parcel. Indeed, they are the same as or similar to the air quality impacts of any other warehouse or distribution center built on any other parcel authorized by applicable zoning for such use; they are not impacts caused by any “peculiar” aspect of either the parcel or the Project, but are generic to the authorized use itself. To the extent the Smith letter tries to argue that the statutory limit on the exemption does not require that the alleged significant impacts be “peculiar” to the parcel or project, it simply misreads the statute.
To the extent the Smith letter argues that CEQA contains some uncodified requirement to “keep information fresh” by updating allegedly “stale” EIRs whenever “new information” becomes available (Smith letter, pp. 3-4, citing CEQA Guidelines, ITEM 18.1.
ATTACHMENT 12
Mayor Budge, Vice Mayor Sander, and City Councilmembers January 25, 2023
DPML-58478\2731268.1
§ 15162[(a)] (3)), it is wrong as a matter of law and either fundamentally misunderstands – or intentionally mischaracterizes – the CEQA subsequent review rules it tries to invoke. (See also Pub. Resources Code, § 21083.1 [“It is the intent of the Legislature that courts … shall not interpret this division [CEQA] or the state guidelines … in a manner which imposes procedural or substantive requirements beyond those explicitly stated in this division or in the state guidelines.”].) In either event, its arguments lack merit. CEQA’s “subsequent review” rules (Pub.
Resources Code, § 21166; CEQA Guidelines, §§ 15162, 15163) are designed to balance promoting environmental review with finality and efficiency interests, and they therefore limit a lead agency’s authority to require additional CEQA review after an EIR has been certified. (See, Friends of College of San Mateo Gardens v. San Mateo Community College Dist. (2016) 1 Cal.5th 937, 949.) To avoid an “intractable” agency decision-making process (ibid.), CEQA establishes a strong presumption against further environmental review after an EIR is certified. (Committee for Reevaluation of the T-Line Loop v. San Francisco Municipal Transportation Agency (2016) 6 Cal.App.5th 1237, 1246; Save Our Heritage Organization v. City of San Diego (2018) 28 Cal.App.5th 656, 666; Citizens Against Airport Pollution v. City of San Jose (2014) 227 Cal.App.4th 788, 805.) Thus, under the subsequent review CEQA rules the Smith letter tries to invoke, once an EIR for a project has been prepared, the agency may not require a subsequent or supplemental EIR except in specific circumstances. An SEIR is required only if “[s]ubstantial changes are proposed in the project” or “occur with respect to the circumstances” of the project or if “[n]ew information” becomes available which “will require major revisions of the [EIR]” “due to the involvement of new significant environmental effects or substantial increase in the severity of previously identified significant effects.” (Pub. Resources Code, § 21166; CEQA Guidelines, §§ 15162(a), 15163(a); T-Line Loop, supra, 6 Cal.App.5th at 1246.) Moreover, “new information” is that “which was not known and could not have been known” when the EIR was originally “certified as complete” (§ 21166(c)), and it must be “of substantial importance,” for example because it shows “[s]ignficant effects … will be substantially more severe than shown in the previous EIR.” (CEQA Guidelines, § 15162(a)(3).)
The Smith letter falls woefully short of pointing to any substantial evidence showing that a subsequent or supplemental EIR could be required for the Project under these standards. The Project does not modify, but is concededly fully consistent with, the general plan and zoning standards reviewed under the 1998 FEIR and 2000 FSEIR for the VOZSPA entitlements.
Moreover, there are no “changed circumstances” and no “significant new information” that was not known or knowable at the time those EIRs were certified.
It was always known and, indeed, planned that commercial and light industrial uses (such as warehouses and distribution centers) could be developed in locations within the VOZSPA that included the Project parcel, and that such locations were near to other VOZSPA locations where residences would be built. To the extent the Smith letter claims that air quality issues, including those related to GHGs or toxic ITEM 18.1.
ATTACHMENT 12
Mayor Budge, Vice Mayor Sander, and City Councilmembers January 25, 2023
DPML-58478\2731268.1
diesel particulate matter (whether PM10 or PM2.5) constitute “new information” that was unknown or unknowable in 1998 or 2000 (see Smith letter at pp. 4-5), it is wrong as a matter of both fact and law, for reasons pointed out in prior correspondence. (See 1/10/23 Coon to Council letter, at p. 7, and legal authorities cited therein.) To the extent the Smith letter (at pp. 4-5) argues that post-EIR changes in laws, or regulatory standards for categorizing, analyzing or assessing the significance of project impacts constitute “significant new information” or “changed circumstances” requiring subsequent CEQA review, it is again wrong as a matter of law. (Citizens Against Airport Pollution, supra, 227 Cal.App.4th at 807- 808; Concerned Dublin Citizens v. City of Dublin (2013) 214 Cal.App.4th 1301, 1318-1320.) Further, information anticipated by an EIR is not significant new information. (E.g., Citizens Committee to Complete the Refuge v. City of Newark (2021) 74 Cal.App.5th 460, 478 [“REIR anticipated the new information that appellants rely on”]; T-Line Loop, supra, 6 Cal.App.5th at 918 [“FEIR anticipated an increase in residential use and other development and analyzed the impacts of constructing and operating light rail in residential areas….”].) Similarly, and contrary to the Smith letter’s contentions, there is no CEQA statute or rule declaring a project EIR “stale” after any particular time period; as seen above, whether CEQA’s subsequent review rules require a supplemental EIR depends on whether substantial changes in the project or surrounding circumstances or significant new information require major revisions to a previously certified EIR (or other adopted CEQA document) due to the involvement of new or substantially more severe environmental impacts – not the mere passage of time or any vague or subjective notions of “freshness.” (E.g., T-Line Loop, supra, 6 Cal.App.5th at 1254 [holding use of 16-year old EIR was adequate CEQA compliance for light rail line project and noting absence of “any authority holding that mere delay in completing construction constitutes a substantial change in a project under section 21166”]; Snarled Traffic Obstructs Progress v. City and County of San Francisco (1999) 74 Cal.App.4th 793 [9-year old negative declaration was adequate CEQA compliance for revived parking structure project and SEIR not required].) The very fact that the County entered into a CEQA-reviewed 2003 Development Agreement with a 20-year term evinces that it had thoroughly analyzed the environmental impacts of long-term development and build-out of the VOZSPA.
In short, the Smith letter fails to negate the application of CEQA’s Section 21083.3 statutory exemption because it points to no facts or evidence of any environmental impacts that are peculiar to the Project or site and that were not analyzed as significant impacts in the prior VOZSPA EIR or shown by substantial new information to be more significant than previously described. Nor does the Smith letter point to any substantial evidence supporting any of the grounds for conducting further review under CEQA’s subsequent review rules. Nor does the Smith letter demonstrate or point to evidence of any significant cumulative impacts (as to air quality or otherwise) that were not discussed as such in the prior EIR.
ITEM 18.1.
ATTACHMENT 12
Mayor Budge, Vice Mayor Sander, and City Councilmembers January 25, 2023
DPML-58478\2731268.1
III. AS A SEPARATE AND INDEPENDENT GROUND FOR REJECTING ITS
CEQA ARGUMENTS, CITY STAFF HAS CORRECTLY INTERPRETED
CITY’S MAJOR DESIGN REVIEW PROCESS AS LIMITING CITY’S
DISCRETION SUCH THAT IT CANNOT ADDRESS THE AIR QUALITY
IMPACTS OF WHICH THE SMITH LETTER COMPLAINS
It is fundamental that when addressing a project’s significant effects, an agency may only exercise those express or implied powers provided by law other than CEQA, subject to the other law’s express or implied limitations. (Pub.
Resources Code, § 21004; CEQA Guidelines, § 15040(b) [“CEQA does not grant an agency new powers independent of the powers granted to the agency by other laws.”].) The City’s Major Design Review ordinance is the “other law” that provides the express or implied powers the Council may exercise in acting on the Project design review application that is now before it. The City Council is bound by and must comply with its own Design Review Ordinance, including that local law’s restrictions on its discretion. As the Court of Appeal recently explained in the context of applying CEQA to a housing project, “where a legal obligation limits an agency’s discretion, the scope of environmental review likewise is limited” and “adjusts in relation to the amount of discretion[.]” (Tiburon Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 700.)
While the Smith letter spends two pages desperately attempting to distinguish relevant case law based on insignificant, irrelevant and immaterial alleged factual differences (at pp. 6-7), it fails to grapple with the main and dispositive issue, which is that the City here has consistently interpreted its own design review ordinance not to permit it to address the types of environmental issues the letter raises. (See e.g., City Staff memos for 1/17/23 meeting and 12/5/22 meeting; see also 3/2/20 letter from Meyers Nave attorney Ed Grutzmacher written on behalf of the City to Michael Lozeau, attached hereto as Exhibit 1 [explaining in detail why design review of zoning-compliant warehouse project in VOZSPA limits City’s discretion such that it cannot “consider environmental effects not related to the design of the Project, including, but not limited to human health impacts from TAC’s, greenhouse gas emissions, and impacts to biological resources.”].) Mr. Grutzmacher, a quite knowledgeable CEQA attorney who is a partner at a well-respected law firm, cited in support of the City’s position on this issue the very same cases that Dermody did, and which the Smith letter unpersuasively tries to distinguish – Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1014-1015 and McCorkle Eastside Neighborhood Group v. City of St. Helena (2018) 31 Cal.App.5th 80, 91-95.
The point is that CEQA does not independently confer power or discretion, and simply does not apply where agency discretion to deny or require project modifications to mitigate environmental impacts does not exist. The Smith letter fails to cite any provision of the City’s Major Design Review ordinance that would allow the City to exercise CEQA-triggering discretion to address the non-design- related environmental issues the letter raises.
ITEM 18.1.
ATTACHMENT 12
Mayor Budge, Vice Mayor Sander, and City Councilmembers January 25, 2023
DPML-58478\2731268.1
IV. CONCLUSION
The City’s design review ordinance does not vest it with CEQA-triggering discretion to address the non-design-related air quality/public health issues the Smith letter raises. The Project before the City is also CEQA-exempt under Public Resources Code § 21083.3 and CEQA Guidelines § 15183. Further, CEQA’s subsequent review rules furnish no authority to revisit or supplement the prior certified EIRs for the VOZSPA, with which the Project is fully consistent. The City should therefore reject the Smith letter’s meritless arguments regarding CEQA, and follow its staff’s correct analysis and recommendations, and its own prior consistent interpretations.
Thank you for your attention to the foregoing important issues.
Very truly yours,
MILLER STARR REGALIA
Arthur F. Coon
AFC:dly/klw
encl.
cc: Micah Runner, City Manager ([email protected]) Elizabeth Sparkman, Community Development Director,
([email protected])
Adam Lindgren, City Attorney ([email protected]) George Condon, Dermody Properties ([email protected]) Lucy Crocker, Lucy & Company ([email protected])
Michelle Smira, MMS Strategies ([email protected]) Nadia L. Costa, Esq., Miller Starr Regalia ([email protected]) Travis A. Brooks, Esq., Miller Starr Regalia ([email protected]) ITEM 18.1.
ATTACHMENT 12
EXHIBIT 1
ITEM 18.1.
ATTACHMENT 12
555 Capitol Mall, Suite 1200
Sacramento, California 95814
tel (916) 556‐1531
fax (916) 556‐1516
www.meyersnave.com
Edward Grutzmacher
Attorney at Law
[email protected]
A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO March 2, 2020
Michael R. Lozeau
Paige Fennie
Lozeau Drury LLP
1939 Harrison Street, Suite 150
Oakland, CA 94612
Re: Project DD9903: GLP Stores, LLC Warehouse on APN 072-2860-033-0000 Request for Review under the California Environmental Quality Act (“CEQA”) Dear Mr. Lozeau and Ms. Fennie:
The City of Rancho Cordova (“City”) is in receipt of your letter dated February 18, 2020 concerning Project DD9903: GLP Stores, LLC Warehouse on APN 072-2860-033-0000 (“Project”). The City Attorney’s Office has had the opportunity to review your letter and has the following responses to the allegations and assertions made therein.
In your letter, you claim that the City is in violation of the California Environmental Quality Act (“CEQA”) for relying on CEQA Guidelines section 15183 to conclude that the Project is in compliance with the City’s General Plan and no further environmental review is required.
Your letter further asserts that the CEQA requires the City to examine the Project’s potential impacts to human health from toxic air contaminants (“TAC”), (pp. 3-4), impacts from the Project’s greenhouse gas emissions, (p. 4-5), the Project’s consistency with the General Plan (p. 5-6), and the Project’s impacts to biological resources, (p. 5-8).
The Project seeks Major Design Review approval for a 164,149 square-foot light industrial office warehouse and associated office space building that includes parking, lighting, and landscaping for the applicant GLP Stores, LLC. The Project is located within the Villages of Zinfandel Special Planning Area (“ZSPA”). The Special Planning Area was approved in 2002 by Sacramento County. The ZSPA includes residential, commercial, business professional, light industrial, park, bike trails, and open space uses. A Final Environmental Impact Report was certified for the Special Planning Area in 1998 by Sacramento County and a Mitigation Monitoring Program was adopted. Under the City’s General Plan and the ZSPA, the Project site has a designation of Light Industrial, which allows for limited industrial uses. Similarly, under the City’s Zoning Code, the Project site is zoned Light Industrial Villages of Zinfandel Special Planning Area (LI ZSPA) which allows for industrial/retail flex and manufacturing and warehousing uses.
ITEM 18.1.
ATTACHMENT 12
Michael R. Lozeau
March 2, 2020
A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO The Project site has had previous entitlements that were approved as follows:
April 2006: Tentative Parcel Map that included the light industrial zoned area to the west and south. Divided 3 parcels into 93 parcels.
May 2007: Tentative Subdivision Map, Creekside Commerce Center, to divide 28 acre parcel into 16 parcels. The project also included a design review for 16 buildings.
Feb 2009: A Tentative Subdivision Map Amendment, Creekside Commerce Center, that reduced the subdivision map from 16 parcels to 8 parcels and reduced 16 buildings to 7 buildings.
March 2017: A Tentative Subdivision Map, Creekside Commerce Center, Extension to February 2020.
Oct 2018: Final Map recorded.
Oct 2019: Lot Line Adjustment to combine 3 lots into 1 lot (subject property).
The Project is a permitted use and does not require a conditional use permit. Rather, the Project requires only approval of Major Design Review. Pursuant to the City’s Code, Chapter 23.141, the City Council “may approve or approve with conditions an application for major design review after finding all of the following” “A. The proposed project is consistent with the objectives of the General Plan, complies with applicable zoning regulations, Specific Plan provisions, and special planning area provisions, and is consistent with the applicable Rancho Cordova design guidelines.
B. The proposed architecture, site design, and landscape are suitable for the purposes of the building and the site and will enhance the character of the neighborhood and community.
C. The architecture, including the character, scale, and quality of the design, relationship with the site and other buildings, building materials, screening of exterior appurtenances, exterior lighting and signing, and similar elements, establishes a clear design concept and is compatible with the character of existing or anticipated buildings on adjoining and nearby properties.
D. The proposed project will not create conflicts with vehicular, bicycle, or pedestrian transportation modes of circulation.” (City Code, § 23.141.070.) The City Council may only condition approval of a Major Design Review application “to ensure specific design features, construction materials, and conformance with all applicable provisions of this chapter.” (City Code, § 23.141.080.) ITEM 18.1.
ATTACHMENT 12
Michael R. Lozeau
March 2, 2020
A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO “A city is not, pursuant to general law, required to have a design review ordinance.
Accordingly, where, as here, a city chooses to impose such an additional level of review, it is for the city to determine the scope that such review will entail.” (Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004,1014 (“Friends of Davis”).) “The Guidelines recognize that the application of CEQA to a local ordinance is dependent upon the scope and interpretation of the local ordinance, rather than vice versa. ... The Guidelines note[d] that CEQA does not grant an agency new powers independent of the powers granted by other laws. (Guidelines, § 15040, subd. (a).) Rather, the exercise of an agency’s authority under a particular law must be within the scope of the agency’s authority provided by that law and must be consistent with express or implied limitations provided by other laws.” (Id. at pp. 1014–1015.) Where a city’s own ordinance prevents it from disapproving or conditioning a project “for non-design related matters,” it lacks “discretion to address environmental effects” and, thus, the city’s ability to apply CEQA review to a project is limited to design- related issues. (McCorkle Eastside Neighborhood Group v. City of St. Helena (2018) 31 Ca.App.5th 80, 91-95.)
Therefore, under CEQA, the City lacks the discretion under the Major Design Review approval process to consider environmental effects not related to the design of the Project, including, but not limited to human health impacts from TAC’s, greenhouse gas emissions, and impacts to biological resources. That said, pursuant to the General Plan and the ZSPA, the Project will be required to comply with the mitigation monitoring and reporting program for the ZSPA, which includes measures designed to mitigate the impacts from air pollutant emissions and impacts to biological resources in the area. Moreover, the Project has undertaken a trip generation analysis that concludes that the Project’s traffic trips are consistent with the analysis and findings of the ZSPA EIR. As such, no further CEQA review of this Project is required.
If you have any further questions regarding this Project, please do not hesitate to contact myself or the City.
Best Regards,
Edward Grutzmacher
cc (email only): Adam Lindgren
Frank Splendorio
Cyrus Abhar
Darcy Goulart
Stacy Leitner
June Cowles
3489253.1
ITEM 18.1.
ATTACHMENT 12
DPML-58478\2734888.1
1331 N. California Blvd.
Suite 600
Walnut Creek, CA 94596
T 925 935 9400
F 925 933 4126
www.msrlegal.com
Arthur F. Coon
Direct Dial: 925 941 3233
[email protected]
Offices: Walnut Creek / San Francisco / Newport Beach
February 6, 2023
VIA EMAIL
Mayor Budge, Vice Mayor Sander,
and City Councilmembers
City of Rancho Cordova
2729 Prospect Park Drive
Rancho Cordova, CA 95670
Email: [email protected]
Re: January 27, 2023, Second Letter to City Council from Attorney Gloria D.
Smith Concerning CEQA Review of and Land Use Compliance for LogistiCenter Project at Corner of N. Mather Blvd./Bear Hollow Drive (APN 072-2360-041-000), File No. PLND-1021-0015
Dear Honorable Mayor Budge, Honorable Vice Mayor Sander, City Councilmembers:
We submit this letter on behalf of Dermody Properties (“Dermody”) in response to the above-referenced letter to the Council from attorney Gloria D. Smith (the “second Smith letter”), regarding the LogistiCenter Project (“Project”). We will be submitting another letter prior to the Council’s final hearing on the Project that will respond in greater detail to each contention raised in the second Smith letter, but for now, as a preliminary matter, we will briefly point out its fundamental flaws in the text that follows.
In brief summary, the second Smith letter urges the City to violate state law and its obligations under the May 28, 2003 “Villages of Zinfandel Development Agreement” (the “Development Agreement”) based on a clear mischaracterization of state law and a misunderstanding of – or failure to acknowledge – the relevant underlying facts. Indeed, the letter goes so far as to urge the City to deny the very existence of the Development Agreement – a position that, if adopted by the City, would constitute the bad faith denial of the existence of a binding contract, which is the epitome of a breach of the covenant of good faith and fair dealing. Contrary to the second Smith letter’s unsupported assertions, the Development Agreement remains fully in effect and binding on the City until June of 2023. As we have repeatedly advised, if the City ignores its obligations under the Agreement, it will expose itself to significant monetary damages and attorneys’ fees as expressly provided for in the Agreement. The second Smith letter also raises meritless claims regarding alleged (but non-existent) obligations of the City to apply its current general plan and/or to ITEM 18.1.
ATTACHMENT 13
Mayor Budge, Vice Mayor Sander,
and City Councilmembers
City of Rancho Cordova
February 6, 2023
DPML-58478\2734888.1
update its general plan whenever the state adopts new laws or regulations, and also re-states Smith’s previous arguments that the Supplemental EIR for the Zinfandel Special Plan Area (“ZSPA”) is somehow “stale.” Ultimately, the second Smith letter is yet another eleventh-hour attempt to further obstruct and delay the Project, but it lacks any merit whatsoever and fails to state any valid basis for the City to further delay its final decision and approval of the Project as presented to the Council on January 17, 2023.
I. The Development Agreement Continues in Effect Until June 28, 2023.
Contrary to the claims in the second Smith letter, the Development Agreement was not somehow automatically invalidated when the City incorporated in 2003. State law quite clearly provides that, once recorded, the benefits and burdens of a development agreement accrue to and are binding on all successors in interest to the original parties. As a successor in interest to the County, the City is bound by the obligations in the Agreement that we have previously discussed in detail until June of 2023.
Government Code section 65865.3, invoked by the second Smith letter, places time limits on the term of a limited set of development agreements to which it applies.
Nothing in Section 65865.3 states that a development agreement between a county and a developer automatically becomes null and void if a subject property becomes incorporated or is annexed into a city. Instead, a careful reading of the statute’s plain language, in the context of the Development Agreement statute as a whole, makes clear that when the Legislature enacted Section 65865.3 in 1986, it presumed that development agreements between a county and a developer would continue in effect after a subject property was incorporated or annexed into a city – in other words, Section 65865.3 does not (as the second Smith letter appears to argue) provide the exclusive basis by which a development agreement between a developer and county binds a successor city. As noted in my November 29, 2022 letter to the Council, the election on the incorporation of the City occurred prior to May 28, 2003, when the County (the City’s predecessor in interest) and Elliot Homes (Dermody’s predecessor in interest) executed the Development Agreement.
This means that the Development Agreement does not meet the condition set forth in subdivision (c) of Section 65865.3, that the county “enter[ ] into the agreement with the applicant prior to the date of the election on the question of incorporation or annexation…” As a result, Section 65865.3 and the limitations on a development agreement’s duration set forth in its subpart (a) do not apply by the statute’s own terms. Nothing in Section 65865.3 says that the Development Agreement became void when the City incorporated, and other provisions of the Development Agreement statute make clear that after its recordation it continued in existence as a valid agreement binding upon the City as a successor in interest.
ITEM 18.1.
ATTACHMENT 13
Mayor Budge, Vice Mayor Sander,
and City Councilmembers
City of Rancho Cordova
February 6, 2023
DPML-58478\2734888.1
Numerous actions taken by the City, the County, and other public agencies with jurisdiction over the ZSPA also confirm and demonstrate a clear recognition that the Development Agreement remained fully in effect and legally binding on the City following the City’s incorporation. For example, in 2002 when the Sacramento Local Agency Formation Commission (“LAFCO”) approved the resolution authorizing the City to proceed with the incorporation, it adopted a condition expressly requiring the City to honor development agreements entered into between the County and development project applicants prior to the effective date of the City’s incorporation.
Nothing in LAFCO resolution – which was never challenged and is now beyond legal challenge – allowed the City to invalidate or refuse to recognize or honor development agreements that did not meet the requirements of subdivision (c) of Section 65865.3.
Further, since 2003, the City itself has repeatedly recognized that the Development Agreement has continued and still continues in effect as a binding agreement; more specifically, the City so acknowledged when it negotiated, and the City Council approved, three separate amendments to the Agreement. Each of these amendments conferred benefits and burdens on the City and each acknowledged that, except as amended, the terms and conditions of the Development Agreement remained in full force and effect. The first amendment, dated August 2, 2004, shortened the term of the Development Agreement to 15 years, adjusted the general plan land use and zoning designations for a residential subdivision in the ZSPA, and established a special police tax and park renovation fee for some development within the ZSPA. The most recent amendment, executed in August of 2016, changed the land use and zoning designations for another residential subdivision and re-extended the term of the Agreement to 20 years from its original effective date – to June of 2023. The August 2016 amendment was approved by the Council and duly recorded by the County Clerk, and was never objected to or judicially challenged by anyone. The statute of limitations to challenge the 2016 amendment and its re-extension of the Agreement to June of 2023 has, of course, obviously long since expired and that amendment is now (like the LAFCO incorporation resolution) well beyond any legal challenge and therefore conclusively presumed to be valid. Project opponents thus have no basis to challenge that amendment or its re-extension of the Development Agreement term at this late date.
In summary, the Development Agreement remains in full force and effect. In contending otherwise, the second Smith letter – like the first – fails to properly analyze the applicable law and fails to account for the material facts discussed above, apparently based on sheer willful ignorance stemming from a failure to investigate the facts or the public record that would readily disclose such facts. But, as recent precedent in the CEQA context has amply underscored, a failure to investigate the facts, coupled with a misreading of the clear law, does not excuse the assertion of untenable legal positions completely lacking in probable cause. If the City were to deny the existence of or otherwise ignore its obligations under the Agreement, as the second Smith letter recklessly proposes, it would (as we have already repeatedly advised) be exposing itself to litigation with the risk of incurring ITEM 18.1.
ATTACHMENT 13
Mayor Budge, Vice Mayor Sander,
and City Councilmembers
City of Rancho Cordova
February 6, 2023
DPML-58478\2734888.1
significant monetary damages and attorneys’ fees as expressly provided for in the Development Agreement.
II. The Remaining Claims in the Second Smith Letter Lack Merit.
In addition to the above, the second Smith letter argues that the “City’s general plan does not adequately address current state laws and standards” and repeats the argument that the EIR for the ZSPA is “unlawfully stale.” Both arguments lack any legal support.
Regarding alleged deficiencies with City’s General Plan, we note that the second Smith letter’s arguments in that regard fail, first and foremost, because their arguments against the Development Agreement’s validity lack any merit; because the Development Agreement remains in effect, the Project is only subject to those applicable development standards in the County’s General Plan, ZSPA, and incorporated zoning standards in effect in 2003. Putting that aside, courts have also repeatedly held that cities are not required to update their general plans at any given interval or in connection with any given event. State law certainly does not require a city to update its general plan every time the Legislature adopts a new law or every time a state agency adopts a new regulation. The overwhelming burdens this would place on cities throughout the state are obvious. Further, if project opponents wish to challenge the City’s General Plan as inadequate, the proper time to have done so or to do so was at the time the General Plan language in question was adopted or when such language was or is amended in the future, and any challenges not timely brought after such trigger dates are time-barred by the applicable statute of limitations.
Finally, the second Smith letter repeats arguments from the first letter that the Supplemental EIR for the ZSPA is somehow “unlawfully stale”. As set out in detail in my January 25, 2023 letter to the Council, the claim that CEQA contains some uncodified requirement that an allegedly stale EIR be updated when new information becomes available is wrong as a matter of law and fundamentally misunderstands CEQA’s subsequent review rules. As previously demonstrated, CEQA establishes a strong presumption against further environmental review after an EIR is certified, and no such further environmental review is warranted here.
III. Conclusion
Similar to the first Smith letter, the City should reject the second Smith letter’s meritless arguments regarding the Development Agreement, which – quite clearly under the relevant law and material facts – remains fully binding on the City. The second Smith letter’s additional arguments fail as well. The City must abide by its obligations under the Development Agreement and make a final decision on and
ITEM 18.1.
ATTACHMENT 13
Mayor Budge, Vice Mayor Sander,
and City Councilmembers
City of Rancho Cordova
February 6, 2023
DPML-58478\2734888.1
approving the Project as it was presented at the Council’s January 17, 2023 meeting.
Very truly yours,
MILLER STARR REGALIA
Arthur F. Coon
AFC:tzb/klw
cc: Micah Runner, City Manager ([email protected]) Elizabeth Sparkman, Community Development Director,
([email protected])
Adam Lindgren, City Attorney ([email protected]) George Condon, Dermody Properties ([email protected]) Lucy Crocker, Lucy & Company ([email protected])
Michelle Smira, MMS Strategies ([email protected]) Nadia L. Costa, Esq., Miller Starr Regalia ([email protected]) Travis A. Brooks, Esq., Miller Starr Regalia ([email protected])
ITEM 18.1.
ATTACHMENT 13