FINAL CORRESPONDENCE Item 16 - Rehearing-Third Party Appeal- Curtis Park Village Fuel Center (PDF-19481 KB) [Updated 04/08/2022 @ 12:12 PM] — Sacramento City Council, January 18, 2022

CITY COUNCIL
Darrell Steinberg, Mayor
Angelique Ashby, Vice Mayor, District 1
Sean Loloee, District 2
Jeff Harris, District 3
Katie Valenzuela, District 4
Jay Schenirer, District 5
Eric Guerra, Mayor Pro Tem, District 6
Rick Jennings, II, District 7
Mai Vang, District 8

CHARTER OFFICERS
Mindy Cuppy, City Clerk
Susana Alcala Wood, City Attorney
Jorge Oseguera, City Auditor
Howard Chan, City Manager
John Colville, City Treasurer

City Council
Financing Authority
Housing Authority
Public Financing Authority
Redevelopment Agency
Successor Agency
City Hall-Council Chamber
915 I Street, 1st Floor
Published by the Office of the City Clerk
(916) 808-5163

CORRESPONDENCE

Description of Attached: Correspondence received after publishing the Agenda.

For the Meeting of: Tuesday, January 18, 2022, at 5:00 p.m.

Agenda Item: Public Hearing Item 16

16. Rehearing-Third Party Appeal: Curtis Park Village Fuel Center (Noticed 11/24/2021 & 12/23/2021) {Continued from 01/04/2022}
File ID: 2021-01331
Location: 3640 Crocker Drive, District 7
Recommendation: Conduct a public hearing and upon conclusion adopt a Resolution adopting an addendum to the original Curtis Park Village EIR and approving the requested entitlements including: 1) Conditional Use Permit (CUP) to operate a new gas station in the Shopping Center (SC-PUD) Zone in the Curtis Park Village Planned Unit Development (PUD); and 2) Site Plan and Design Review to construct a new gas station.

Contact: Marcus Adams, Senior Planner, (916) 808-5044,
[email protected]
, Community Development Department

From: LARRY BARLLY
To: Marcus Adams
Subject: Crocker village safeway application for a gas station Date: Tuesday, January 11, 2022 12:27:11 PM
Can you please provide me with an update on the status of the application and any proposed next steps. (I am in opposition to the gas station and ask whether Safeway has been successful there without the need for a gas station.) From: Ralph Propper
To: Luis Montes; [email protected]; Angelique Ashby; Sean Loloee; Jeff S. Harris; Katie Valenzuela; Rick Jennings; Mai Vang; Eric Guerra
Cc: Marcus Adams; Susan Herre; John Mathews
Subject: Curtis Park Village Fuel Center (City Council Rehearing Jan 4, 2022; agenda item 20) Date: Friday, December 31, 2021 7:29:36 PM
Dear Mayor Steinberg and Sacramento City Councilmembers:

The Environmental Council of Sacramento (ECOS) works to achieve regional and community sustainability and a healthy environment for existing and future residents. For over fifty years, ECOS has worked proactively with our members, member organizations, local government, and community groups, to energize and bring positive change to the Sacramento region as we strive to develop thriving communities. Here are our overarching policy objectives:
1.
Promote and reinforce Smart Growth principles 2. Improve air quality and reduce greenhouse gas emissions to slow climate change
3. Establish a regionally coordinated conservation strategy
4. Establish a sustainable regional water supply for ecological and municipal needs
5. Achieve equity in housing, public health, and economic opportunity
In 2015, the Sacramento City Council voted to deny the application to construct a 16-nozzle fuel center in what is now called Crocker Village. The Council noted that a fuel center would be inconsistent with City policy priorities to reduce vehicle miles traveled (VMT) and curb the impacts of climate change, and to support transit-oriented development.

These goals are even more important now. Notably, the unanimous June 2020 recommendations of the Mayors' Commission on Climate Change call for the City to prioritize active transportation and transit over fossil-fueled transportation. The siting of a fuel center here is in contravention to these recommendations.

In 2018, the Council unanimously passed a Transit Oriented Development Ordinance that prohibits fuel centers on parcels that are: (1) near a light rail stop, (2) more than 500 feet from a freeway interchange, or (3) not on a six-lane street. Under this Ordinance, the application would be prohibited.

The applicant secured major funding by promoting this development as transit friendly: The City helped secure a $9 million grant from the State Transit Oriented Development Housing Infrastructure Grant Program to support infrastructure in Crocker Village, as well as a $7 million grant through SACOG from federal transportation funds to construct the pedestrian/bike bridge to the light-rail station. The City made assurances that the project would promote transit and active transportation. Approval of this application would jeopardize future funding for projects important to the City, as state and federal authorities realize that their funds helped facilitate a development with the largest fossil-fuel station in City.

In 2020, regulations pursuant to SB 743 (Steinberg, 2013) took effect. This updates the way transportation impacts are measured in California for new development projects, making sure they are built in a way that allows Californians more options to drive less. This change will help us achieve our climate commitments, preserve our environment, improve our health and safety--particularly for our most vulnerable residents--and boost our economy by prioritizing co-located jobs, services, and housing. It calls for new development to demonstrate reductions in VMT – the opposite of what a mega-gas station would facilitate.

Also in 2020, Governor Newsom issued an executive order to phase out gasoline-powered cars and drastically reduce demand for fossil fuel in California’s fight against climate change; and the Air Resources Board now mandates that all vehicle sales must be zero-emission by 2035.

The California Mobility Center (by CSUS) projects thousands of new jobs in Sacramento for such vehicles, with the help of high-tech companies. We can attract more such industry, but only if we can show that Sacramento is a leader rather than a laggard in fighting climate change.

Gas stations are major emitters of benzene, a potent carcinogen. Even though the applicant moved the planned location to be further from residences, exposure to benzene will harm the health of those who work there, and of those who frequent the area. Also, the gas station will emit volatile organic compounds, which lead to ozone. Based on our climate and topography, Sacramento’s potential for high ozone is the highest in the nation, and we are already in the “top 10” for unhealthy ozone levels.

On a personal note: I ride my bike over the new bridge between Curtis Park and City College, 5 times a week. The plans for the gas station show far more traffic on 10th Avenue, which I need to take. This will make me – and other bike commuters – worried about riding a bike on such a busy street. This should be analyzed and mitigated.

ECOS requests that the City Council deny this application.

Ralph Propper, President,
Environmental Council of Sacramento
From: Judith Harper
To: Jay Schenirer; Angelique Ashby; Sean Loloee; Jeff S. Harris; Rick Jennings; Mai Vang; Marcus Adams; Leslie Walker; Luis Montes
Subject: Fw: SCNA Opposition to Curtis Park Village Fuel Center Date: Wednesday, January 12, 2022 7:38:13 PM
Dear City Councilmembers and staff
I have lived in Curtis Park for 42 years and have been
active in SCNA for most of that time. While I would like to write an original letter to you, supporting SCNA's
position on the Crocker Village Fuel Center, I find that the SCNA opposition letter is way more complete than
anything I could've written, so am simply FW'ing it to
you.

The worst part of our neighborhood's dealings with the
applicant has been the blatant dishonesty. From the
beginning, he would promise us one thing, then turn
around and do something else completely contrary. This is a continuation of that pattern. Our positions have been consistent throughout the years, as you will see [or
probably have already seen] in the attached letter.

Thanks for your careful consideration.

Judy Harper

SCNA Opposition to
Curtis Park Village Fuel Center
SCNA Members and Curtis Park Neighbors,
Please join the Sierra Curtis Neighborhood Association in opposition of the Regional Fuel Center in Crocker Village (read more about the proposal below). By standing together, we can halt an increase of new and unnecessary traffic that will further disrupt our neighborhood streets.

State your opposition in a letter or email to our City Councilmember Rick Jennings, II.

Send written correspondence to:

Councilmember Rick Jennings,
II5th Floor, City Hall
915 I Street
Sacramento, CA 95814
Send emails to: [email protected]
Thank you,
SCNA Board of Directors
SCNA Letter of Opposition
December 29, 2021
Honorable Mayor Steinberg and members of the Council:

In 2015, the Sacramento City Council, in a 7 to 2 vote, denied the application to construct a 16-nozzle fuel center in Crocker Village. The Council’s findings cited several reasons for denying the application, including that a fuel center would be inconsistent with a number of the City’s policy priorities, such as:

The City’s commitment to reducing vehicle miles traveled and curbing the negative impacts of climate change;
The City’s support for pedestrian and transit-oriented development; The need to act consistently with a multi-million-dollar infrastructure investment that created a pedestrian/bike bridge connecting light rail and Sacramento City College, and encouraging foot rather than car traffic; and
The City’s desire to see infill growth strengthen existing neighborhoods, not weaken them.

Six years later, these goals remain just as important as ever. By this letter, the Sierra Curtis Neighborhood Association (SCNA) provides the Council with facts and data, which show why construction of a large fuel center (it would be the 23rd gas station within a two-mile radius of the proposed site) remains starkly inconsistent with what the people of Sacramento want and need from their City.

The Superior Court’s Order Has Nothing to Do with the Merits of the Council’s Previous Decision, Which Have Never Been Questioned.

In 2018, the Sacramento Superior Court ordered the City Council to hold a new hearing on the application based solely on a procedural issue related to one of the seven votes to deny the application. The Court’s action had nothing to do with the merits of the Council’s decision. The reasons the Council voted to reject the application in 2015 remain relevant—and arguably more so now. (Attachment 1)
Over the Last Six Years, the Council’s Actions Have Further Amplified the Importance of These Policy Priorities.

This new hearing comes before a Council and a City that have taken strong policy actions demonstrating an ongoing commitment to smart infill growth designed to reduce reliance on vehicles. These positions include the June 2020 Mayors’ Commission on Climate Change. (Attachment 2)
The Currently Proposed Location is Not a New Idea.

The proposed southwest corner location of the fuel center was discussed as an option by the applicant and Council at the hearing in 2015.

Nevertheless, the Council denied the application. As the Council correctly noted then, relocating the fuel center does not remedy the numerous problems with the application. The flaw is in the siting of a fuel center in a smart growth infill development, regardless of where within the development it is placed.

The Applicant’s Main Argument for Insisting on a Fuel Center Is Now Moot.

At the 2015 hearing, Safeway representative Todd Paradise told Mayor Johnson and the Council that a fuel center at the future Raley’s store on Freeport Boulevard would competitively disadvantage Safeway’s new store at Crocker Village. Mr. Paradise argued that Safeway should be allowed a fuel center to mitigate this competitive disadvantage. He insisted that the fuel center was absolutely necessary to bring Safeway to Crocker Village, and that the store would not open without the City’s approval of a fuel center. This turned out not to be true. Safeway opened its Crocker Village store in March 2019, without a fuel center.

The new Raley’s store also opened without a fuel center. This Council, in December 2018, unanimously passed the Transit Oriented Development Ordinance that, among other things, prohibits fuel centers on parcels that are: (1) near a light rail stop, (2) more than 500 feet from a freeway interchange, or (3) not on a six-lane street. This ordinance prohibits a fuel center from ever being constructed on the Raley’s site, thus permanently removing the “competitive disadvantage” repeatedly cited by Safeway as a reason for approving the application. The Council created a win-win situation for the appellants and the applicant.

There is No Shortage of Gas Near this Neighborhood (Twenty-Two Gas Stations Within a Two-Mile Radius of the Proposed Site).

Four are Chevron stations that offer a $0.20/gallon gasoline discount for Safeway reward points. The Chevron discount is reasonably equivalent to the proposed Safeway fuel center discount for most customers.

Safeway points can also be used for direct discounts on food and other grocery items at Safeway. Grocery discounts, which surveys indicate most customers prefer, are equal to or exceed gas savings. (Attachment 3)
Whether the Council Applies 2015 Code or 2021 Code, the Application Cannot Stand.

Council should consider current regulations in its decision. In the past six years, the City has made great strides in its efforts to encourage smart infill and to combat climate change. Grandfathering in applications inconsistent with the City’s current regulations does not serve either of these laudable goals. Under current regulations (specifically the Transit Oriented Development Ordinance) the application would be prohibited.

However, even if the Council decides to apply 2015 code, a denial is still appropriate for all the same reasons it was back in 2015. Remember, the merits of the Council’s 2015 denial were never questioned, and the Council’s reasons for denying the application in 2015 apply just as strongly today.

The City’s Broad Discretion to Deny a Conditional Use Permit Application is Well-Established Law.

The law states that the City has broad discretion to deny a Conditional Use Permit application for any of the designated conditionally permitted uses in a shopping center zone. The applicant’s position on this issue (that the City has no discretion to deny the project) is wrong, and SCNA is confident that the City Attorney will confirm the broad scope of the Council’s legal authority in this regard. To highlight the error in applicant’s argument, we have attached a list of all the uses the City has the discretion to approve or deny conditionally in this zone. The list includes an amusement center, drive-in theater, correctional facility, and golf course and many other uses for which, obviously, the City Council would rightfully want to exercise its appropriate discretion to approve with conditions or deny the application. (Attachment 4) Certainly, applicant cannot seriously argue that City Council has no discretion to deny an application to put, for example, Epcot Center in Crocker Village. While this point seems obvious, considering the applicant’s repeated false (not to mention illogical) legal assertion, it is unfortunately necessary to make it.

Applicant’s Argument that SCNA and the Sacramento Area Council of Governments Knew About the Fuel Center Before He Applied for a Permit is False.

The applicant did not reveal his plan to build a fuel center, or a gas station of any size, until 2014. Before then, the applicant never once made known his desire to put a fuel center in this smart-growth development, despite many years of community meetings and multiple planning and environmental documents leading up to the 2010 Planned Unit Development (PUD) entitlements. In fact, applicant was able to secure millions of dollars of funding before 2014 by promoting his development as transit friendly.

Approval of the Application Would Jeopardize Millions of Dollars of Future Funding for Projects Important to this City.

SCNA and the City helped secure a grant of $9.1 million from the State Transit Oriented Development Housing Infrastructure Grant Program to support on-site infrastructure in Crocker Village. They also helped secure an additional $6.963 million of Sacramento Area Council of Governments’ regional transportation funds to construct the pedestrian/bike bridge in Crocker Village. They secured funding based on the applicant’s and the City’s assurances that the project would be an exemplary transit and pedestrian-oriented infill project that promoted transit ridership as opposed to vehicle traffic. The City described Curtis Park Village as the region’s pre-eminent Transit Oriented Development in its 2013 Resolution confirming the grant of State funds to the developer.

A gas station is antithetical to these goals and would jeopardize future funding from these and likely other sources. (Attachments 5 and 6) SCNA is proud of its consistent support for smart- growth in Crocker Village. Throughout the planning process SCNA strongly advocated for a fully connected street and pedestrian network to link old and new neighborhoods. We advocated for greater density and onsite affordable housing, and against the applicant’s proposal to move the affordable housing off-site. SCNA worked for the successful award of millions of dollars of public infrastructure investment to support what, at the time, was being marketed by the applicant as a transit-oriented development.

We believe we have been good partners with the City in advancing these important citywide public policy priorities, and we respectfully request that the City continue this healthy partnership by denying the application before it.

Very truly yours,
Sierra Curtis Neighborhood Association Board of Directors View Attachments
The above letter was sent via email to:

Mayor Darrell Steinberg c/o ([email protected] ) Vice Mayor Jay Schenirer ([email protected]) Councilmember Angelique Ashby ([email protected]) Councilmember Sean Loloee ([email protected]) Councilmember Jeff Harris ([email protected]) Councilmember Katie Valenzuela (kvalenzuela
@cityofsacramento.org)
Councilmember Eric Guerra ([email protected]) Councilmember Rick Jennings, II ([email protected]) Councilmember Mai Vang ([email protected]) c/c ([email protected])
Marcus Adams, Senior Planner ([email protected]) Leslie Walker, Senior Deputy City Attorney
([email protected])
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From: Erin Hauge
To: Rick Jennings
Cc: Dennis M. Rogers; Luis Montes; Marcus Adams; Jay Schenirer Subject: OPPOSE: Crocker Village gas station add-on
Date: Friday, January 14, 2022 3:19:13 PM
Dear Councilmember Jennings,
Please vote against a 16-pump gas station in Crocker Village at Safeway.

This gas station proposal was an add-on to the 2015 development proposal that was approved without a gas station by the City Council. And as you are no doubt aware, the area surrounding Crocker Village is already saturated with gas stations located on main streets.

There is no need for a gas station tucked into Crocker Village. This would only increase traffic and congestion in the surrounding residential neighborhood.

Raley’s is governed by the 2018 Transit-Oriented Development Ordinance and so is unable to build a gas station now even if they wanted to. Allowing the Safeway gas station to be grandfathered in as an 'add-on' to the original plan would put Raley’s at a disadvantage. By the Crocker Village developer’s own logic, it could result in vacant storefronts, decreased business and loss of jobs at the Raley’s shopping center. Please don’t allow this to happen.

The Crocker Village development has an opportunity to be a model transit-oriented development, a bastion of smart infill that other communities will want to emulate. But not if a 16-pump gas station is added in to degrade the quality and safety of the surrounding neighborhood.

The Crocker Village development has an opportunity to be a model for addressing climate change by making choices that help reduce greenhouse gas emissions. But not if a 16-pump gas station is added in to create more traffic, more congestion, and more exhaust.

I request that you vote against building a gas station in the Crocker Village shopping center.

Thank you for your consideration.

Erin Hauge
Curtis Park resident and Constituent
Sacramento, CA 95818
Cc (via email):

Dennis M. Rogers, Chief of Staff ([email protected] )
Mayor Darrell Steinberg c/o ([email protected] ) Vice Mayor Jay Schenirer ([email protected]) Marcus Adams, Senior Planner ([email protected]) From: JOHN MATHEWS
To: Luis Montes; Angelique Ashby; Sean Loloee; Jeff S. Harris; Katie Valenzuela; Jay Schenirer; Eric Guerra; Rick Jennings; District8
Cc: Marcus Adams
Subject: Crocker Village Fuel Center
Date: Monday, January 17, 2022 1:26:50 PM
Honorably Mayor and members of the City Council,
There is a probability that the proposed fuel station entails a foreseeable, “baked-in,” violation of Sacramento City Code 17.608.040, (“Development standards for off-street parking facilities”), which specifies that Standard off-street vehicle 90 degree parking spaces “shall meet the following minimum dimensions,” width, 8.5 feet, depth 18 feet, maneuvering width 24 feet. Planning to allow a line of cars to occupy a 23-25 foot parking lane is a plan that impermissibly reduces the minimum size requirements.

The underlying problem is laid out by the Planning Commission:
“The overall shopping center was approved with three driveways and the modified gas station project only includes one new exit-only driveway along Buchannan Street/10 th Avenue at the
rear of the site. With the unidirectional flow of traffic (east to west), queuing for the fuel pumps will occur on site and vehicle stacking is not expected to affect any of the adjacent public streets. None of the driveways provide direct, immediate access to the fuel pump queue.” (City Council Report: Rehearing Third Party Appeal [etc.]: Attachments: Site /Building Plan @ p. 19 of 396.)
The plan, then is for all cars to enter the shopping center from Crocker Drive, and for cars leaving the fuel center to exit to the west. None of the driveways go directly to the fuel center. Therefore everyone who wants to go the fuel center must use the parking lanes to get there. The above passage contains an admission that there is not room for all the cars at the fuel center, and that it is will be necessary for the fuel pump queue to extend back into the parking lanes (“queuing for the fuel pumps will occur on site and vehicle stacking is not expected to affect any of the adjacent public streets.”) The existing available parking lanes measure out at only 25 feet wide, and a queue of vehicles will greatly reduce the maneuvering space that section 17.608.040 requires. A plan to allow lines of cars to form in parking lanes as part of the feasibility of the fuel station constitutes a plan to violate City Code 17.608.040. The planning Commission admits that this plan is an integral part of the plan for operation of the fuel center. Therefore, the application to construct the fuel center in Crocker Village should be denied.

Respectfully,
John Mathews
From: Nancy McKeever
To: Marcus Adams
Subject: Fwd: Item 20 - Jan 4 2022 City Council Meeting Comment - OPPOSE Date: Saturday, January 1, 2022 4:45:23 PM
Attachments: Safeway Fuel Station · 8369 Elk Grove Florin Rd, Sacramento, CA 95829.png Safeway Fuel Station · 2811 Del Paso Rd, Sacramento, CA 95835.png Safeway Fuel Station · 5400 Dewey Dr, Fair Oaks, CA 95628.png Ms Adams -
I sent the forwarded email to council but made a typo in your address. I am now forwarding it to you. My apologies.

ISSUES relevant to Crocker Village site:

Attached are Google Maps photos of the three closest Safeway Fuel Centers. Please press "view" and flip through them. These (and all area Safeway stations) are all located on major six lane each way intersections. Each site has multiple access/exit points directly from the station to the road to keep cars moving and provide safe access for tanker trucks delivering gasoline. Crocker Village is not similar to any other Safeway Fuel Center site.

The Crocker Village site site has no direct entrance/exit pathway for the three or more daily tanker trucks or gas customers from the six urban area Safeway stores with no fuel center. The staff report states that cars are required to enter the pump area via the parking lot. Tanker trucks must enter from the rear and then exit via the parking lot. Cars will exit the village by passing by the pedestrian bridge, senior housing, and along the foot/bike access way to the bridge. Some tanker trucks will arrive at the rear of the Fuel Center via the foot/bike access to the pedestrian bridge. Some tanker trucks will make tight turns passing the small businesses along West Pacific Ave and under the Sutterville overpass. The staff report did not adequately address the many health and safety concerns of the complex and crossing-path requirements of this site. The main point is, all other Safeway Fuel Centers are located at the intersections of very main roads with multiple direct exit/entrance points for a clear reason. Crocker Village is not.

Everyone has seen large gas stations. Drivers circle the pumps looking for an available pump on the correct side of the car for fueling.The proposed layout for the Crocker Village Fuel Center, unlike any other Safeway Fuel Center, would require one-way flow, allowing cars to enter only from the parking lot near the main entrance to the grocery. Cars will have less space to circle and may need to wait in longer lines to access a pump on the correct side. Lines will have no place to go but into the parking lot, passing in front of the proposed convenience store kiosk and conflicting with the main entrance into the grocery store which is toward the south end of the building. This operational scheme is unlike any other Safeway Fuel Center in our area and its impacts will occur very near the front door to the grocery.

All of these unusual and complicated tanker truck and gas customer entrance and exit pathways are because the applicant wants to build a gas station in a development that was never meant for that use.

Granting the permit would create serious health and safety issues, compromise the City's 2015 funding agreements with the State and SACOG, and take the wind from the sails of all efforts to become a sustainable, climate action leader.

Please do not grant the requested conditional use permit.

Nancy McKeever

January 11, 2022

VIA U.S. MAIL & E-MAIL
Mr. Howard Chan
City Manager
City of Sacramento
915 I Street, Fifth Floor
Sacramento, California 95814

RE: Condition of Approval for Fuel Center – Restriction on Fuel Center User

Dear Mr. Chan,

I am writing to address one of the conditions of approval proposed as part of the City Council’s fuel station rehearing scheduled for January 18, 2022.

As you may be aware, as part of its approval of the gas station on June 11, 2015, the Planning and Design Commission added the following to conditions of approval: “the gas station shall be developed and operated as a Safeway gas station. Modifications to this condition shall be subject to modification by the Planning and Design Commission.” (See Conditions of Approval, Section C, C.10). While the remaining 88 other conditions of approval are acceptable for this CUP, this condition (as addressed below) creates numerous legal and practical c oncerns. Accordingly, I am writing to request that this condition be removed from those conditions of approval being considered by City Council on January 18, 2022.

1. Fuel Station Operations and Operator – Solely within Air District’s Jurisdiction.

The governmental agency with authority over the operations of the fuel station – including the operator, construction, permitting, and transfers of permits (among many others) is solely within the jurisdiction of the Sacramento Metropolitan Air Quality Management District (“Air District”). This is clearly reflected in the applicable laws and clearly addressed within the City Staff report. For instance:

• “[T]he proposed fuel island project is a ‘stationary source’ that is subject to the regulatory authority of [Sacramento Air District],” and as such the Air District is the Responsible Agency (see CEQA Guidelines, Section 15096) with jurisdiction to approve construction and operations permits within the City and County of Sacramento. (See City Staff Report, pgs 9 – 10; Sacramento Air District Rules and Regulations, Rule 201).

• “The health risk assessment prepared in connection with the Addendum was prepared according to the protocols established by” the Air District… based on their “thresholds and evidence supporting such thresholds. CEQA Guidelines section 15064.7(c).” (See Staff Report, pgs 9 – 10).

P e t r o v i c h D e v e l o p m e n t C o m p a n y , LLC 825 K S t r e e t , S a c r a m e n t o , CA 95814

• The Air District has sole authority to review and approve the transfer of any permit due to a change in ownership or name. (Sacramento Air District Rules and Regulations, Rule 201).

As such, there are clear limits to the City’s power on conditioning the operations of the fuel station. These limitations include the City’s conditioning the permit on a specific operator, which is solely determined by the Air District.

2. Conditioning the CUP on the Specific Operator Would be Unduly Burdensome.

The purpose of the CUP is to impose reasonable conditions on an otherwise compatible use of the property in order to offset potential i ssues that may arise such as architectural design, noise, traffic, or congestion. Notably, the 8 8 other conditions of approval proposed for the CUP more than adequately address those types of issues. However, as addressed above, the City’s authority over a gas station is limited and cannot impede on matters expressly delegated to the Air District. Doing so would unduly burden the project and property while also creating unnecessary legal disp utes going forward. The following provides some of our concerns:

• The Air District has well defined regulations and procedures for dealing with permit applications as well as transfers related to change in name and ownership.

• While the condition C.10 all ows for modification, it can only be done so via the Planning Commission – which requires a public hearing. In this regard, the time and expense of proceeding with any modification – that may result from the sale of a company, delegation of rights under the lease, or even a simple name change requires a public hearing that the City does not have authority to approve.

• It further creates a potential for unnecessary legal disputes and costs if the Planning Commission denied the modification over a matter that would be approved by the Air District.

Howard, on a practical side, over the past six years the court process has taken place, Safeway has gone from being a publicly traded company based out of Pleasanton since the 1920s , to a privately held company (Cerebus) and then was acquired by Albertson’s based out of Boise Idaho, a publicly traded company. Safeway’s management has for the most part been eliminated and replaced with Albertson’s and their culture. They may want to rebrand all their stores to Albertson’s as happens many times in the retail world (e.g., you might remember Thrifty and Payless both became Rite Aid).

Another possibility, as Raley’s has done, these gas stations get sold to Shell and Raley’s got out of the fuel business. Lastly, if Safeway rejects this lea se (they signed it in 2013 ), the City should want to give me as much flexibility as possible to mitigate these damages. Staff should be able to verify that a t hird party operator would have fewer impacts than a Safeway fuel station by not being tied to Safeway.

In Summary, between all the legal reasons above, the practical side needs to be taken into account. I know of no other approval of a site’s entitlements being tied to a specific tenant. That again puts me in the Class of One category, which is one of the most damning reasons the court based their rulings on to overturn the unlawful City upholding of the appeal back on November 17, 2015. I ask that you take the leadership role with Staff and the City Attorney in guiding this hearing to its logical, unbiased conclusion.

P e t r o v i c h D e v e l o p m e n t C o m p a n y , LLC 825 K S t r e e t , S a c r a m e n t o , CA 95814

Thank you for your consideration of this matter . Should you or City staff wish to discuss this further, please contact me at your convenience at 916-834-4600.

Sincerely,
Petrovich Development Company, LLC

Paul Petrovich
CEO and Founder
December 21, 2021
Stacia Cosgrove
Principal Planner
Community Development
City of Sacramento
300 Richards Blvd. 3rd Floor
Sacramento, CA 95811

Dear Ms. Cosgrove:

I understand the City is considering an application for the addition of a fueling center to the Curtis Park Village. The City of Sacramento has requested SACOG's thoughts and assistance with this project dating back to 2005 and we have appreciated the City’s consideration of the regional implications of the project in its land use and transportation decision-making. SACOG’s position has not changed on this matter: we find the addition of a fueling center to be inconsistent with Blueprint principles.

For your reference, all of the prior communications from SACOG to the City are attached, including letters that assess the consistency of various versions of the project plan with SACOG's adopted Blueprint Growth Principles. These letters are dated:

• March 22, 2005
• June 26, 2008
• May 28, 2009
• August 6, 2009
• October 7, 2009
• November 20, 2014
• May 13, 2015

We appreciate the opportunity to provide comment and hope the City finds this information useful in its decision-making process. If you have additional questions, please feel free to contact me.

Sincerely,

James Corless
Executive Director

Cc: Marcus Adams, Senior Planner
Greg Sandlund, Planning Director

March 22, 2005

Lauren Hammond
Councilmember/SACOG Director
City of Sacramento
730 I Street, Suite 321
Sacramento, CA 95814

Dear Director Hammond:

I am writing this letter in response to your request for review of the Curtis Park Village Project. Thank you for the invitation to comment on this unique smart growth project.

The proposed site plan for the Curtis Park Village is clearly in the spirit of the Blueprint growth principles, and even surpasses the Blueprint Scenario in acres of parkland, jobs/housing balance and travel performance. In addition to these aspects of the plan, we think there are four potential enhancements to the site plan that would increase the travel benefits for the area:

• The site presents a great opportunity for more attached housing, particularly in the mixed-used area and on the westernmost portion of the site, where student housing would be very beneficial.
• In designing the employment and mixed-use centers consider making them more urban than suburban. As part of the design for these areas, structured parking could be explored. If this is not feasible in the short term, the site plan could be designed to anticipate future structured parking when it becomes economically feasible.
• We hope the site plan will preserve the ability to add a pedestrian/bike bridge from the center of the site to the college. We understand such a bridge would be a significant cost and are willing to work with the city to explore funding possibilities if short term funding is not available.
• We encourage the city to continue the grid pattern of the existing residential neighborhood as much as possible into the site to gain maximum travel benefit. In particular, we support incorporation of the 5 th Avenue and
Donner Way extensions of Site Option 1 and the 10th Avenue extension of Site Option 2 into the final site plan.

SACOG BLUEPRINT TECHNICAL ANALYSIS

To initiate the Blueprint project SACOG prepared a 50-year Base Case Scenario for the region. This planning alternative estimated how the region would grow through 2050 if development patterns typical of the late 1990’s and early part of this century continued without change. These development patterns are typified by low residential densities and a separation of housing and employment land uses.

Sacramento Area
Council of
Governments
1415 L Street,
Suite 300
Sacramento, CA
95814
tel: 916.321.9000
fax: 916.321.9551
tdd: 916.321.9550
www.sacog.org

Lauren Hammond

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March 22, 2005

BLUEPRINT SCENARIO BUILDING

The Blueprint regional scenario building was done on a parcel specific basis for the approximately 800,000 parcels in the six county region. However, for large infill sites such as the Curtis Park rail yards, Blueprint did not do the kind of site planning that is illustrated in the Curtis Park Village Plan. Rather, Blueprint used a more generalized technique that could be termed a capacity analysis. The entire site was analyzed for its relation to major transportation infrastructure (i.e. proximity to highways, major arterials, transit).

CURTIS PARK VILLAGE BLUEPRINT PREFERRED SCENARIO FUTURE LAND USES

The key land use characteristics for the Blueprint Preferred Scenario in Curtis Park are as follows:

Total dwelling units: 775
Total employees: 249

CURTIS PARK VILLAGE BLUEPRINT PREFERRED SCENARIO FUTURE TRAVEL MODEL

PERFORMANCE

Household Travel Statistics Adopted Scenario 2050
Total VMT 15,100
VMT/HH 19.5
Total Vehicle Trips 3,600
VT/HH 4.7
Mode Share
Auto 90.9%
Transit 3.1%
Bike/Pedestrian 6.0%

TRANSPORTATION RELATED ASSUMPTIONS FOR CURTIS PARK VILLAGE BLUEPRINT PREFERRED

SCENARIO AND PROPOSED SITE PLAN

The transit system in Curtis Park for the Preferred Alternative scenario and the proposed site plan includes a mix of Light Rail, Bus Rapid Transit and regular buses. The transit system reflects the Blueprint principle of transportation choices for all urban areas. Both peak and mid-day service levels are generally less than 30-minute headways for most busses and 10 or 15-minute service for LRT. The pedestrian “friendliness” is assisted by an average block size of 400 feet and a predominately grid street pattern. In an additional model run, the proposed site plan was also analyzed with a pedestrian bridge connecting to Sacramento City College and the light rail station.

CURTIS PARK VILLAGE PROPOSED SITE PLAN LAND USES

The proposed Curtis Park Village site plan varies somewhat from the Blueprint Scenario, which is expected in a site plan. However, its mix of higher density housing and employment fully embody the Blueprint growth principles.

The key land use characteristics for the proposed Curtis Park Village site plan are as follows:

Total dwelling units: 549
Total employees: 7331

1 Estimate based on commercial square footage proposed in site plan: 150,000 sq. ft. in commercial center; 50,000 sq. ft. in mixed-use center.

Lauren Hammond

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March 22, 2005

CURTIS PARK VILLAGE PROPOSED SITE PLAN TRAVEL MODEL PERFORMANCE

Household Travel Statistics Developer Site Plan2
Total VMT 9,100
VMT/HH 16.5
Total Vehicle Trips 2,400
VT/HH 4.4
Mode Share without pedestrian bridge
Auto 88.2%
Transit 3.8%
Bike/Pedestrian 8.0%
Mode Share with pedestrian bridge
Auto 87.5%
Transit 3.8%
Bike/Pedestrian 8.7%

CURTIS PARK TRAVEL PERFORMANCE IN A REGIONAL CONTEXT

Given that the rail yards site was the only growth area in Curtis Park, these travel indicators represent the effect of the rail yards land uses on the entire Curtis Park neighborhood. The key travel indicators all significantly improve for total travel and on a per unit basis for the proposed site plan compared to the Preferred Blueprint Scenario. This superior travel performance is due primarily to the higher residential densities, a higher jobs/housing balance, and assumed street and block system that uses small blocks and a grid system to promote connectivity that benefits pedestrians and bicyclists, and shortens car trips. The addition of a pedestrian/bike bridge to the site plan increased the bike/pedestrian mode share an additional 8% from the Preferred Scenario. Both total automobile trips and automobile trips by household are lower due to a better balance of jobs and households. The vehicle miles traveled by household is lower due to lower average trip length. Overall VMT for the proposed site plan is 40% lower than in the Blueprint Scenario. Vehicle emissions will also be lower since VMT is the primary source of vehicle emissions.

Overall, the developer proposed site plan outperforms the Blueprint Preferred Scenario. We congratulate the City of Sacramento and the applicant on such a good site plan. Thank you for your consideration.

Sincerely,

MIKE MCKEEVER
Execute Director

MM:KL:ts
Enclosure

S:\Projects 04-05\0601-Blueprint\Hammondltr032205.doc
2 The addition of a pedestrian bridge made no significant difference in VT and VMT when the developer site plan was modeled .

Sacramento Area Council of Governments

The Sacramento Area Council of Governments (SACOG) is comprised of six counties and 22 cities in the region, including the City of Sacramento. SACOG’s primary responsibility is developing and implementing the Metropolitan Transportation Plan (MTP), a document that establishes transportation spending priorities throughout the region. The MTP must be based on the most likely land use pattern to be built over the 25-year planning period, and it must conform with federal and state air quality regulations.

The MTP must effectively address two, linked, challenges. Current land use patterns, transportation funding levels, and transportation investment priorities are projected to lead to an increase in vehicle miles traveled that exceeds population growth, an increase in congestion levels of 50%, and increases in mobile source emissions, particularly carbon dioxide and particulates

1. To attempt to solve these challenges two and one-half years ago the SACOG Board initiated the Blueprint project, an extensive study of the linkages between transportation, land use and air quality. The study has examined a number of growth alternatives at the neighborhood, county and regional scales and reached several important conclusions, including:
• The region will experience strong growth for the next 50 years, approximately doubling the number of jobs, people and houses;
• The structure of the population will change significantly, with two-thirds of the growth in households 55 years and older, and only 21 percent of the growth in households with school aged children;
• Older households have different housing needs and preferences than younger households – over two-thirds of today’s householders over 55 express housing preferences for what might be termed non-traditional products in this marketplace – homes on small lots and attached housing;
• The rapid increase in housing prices in the region in the past few years has priced many people out of the home-buying market, emphasizing the need for alternative products such as small lot single family and attached housing that can be priced in a range that more people can afford;
• There is a strong connection between land use patterns, travel behavior and air quality;
• Specific land use patterns that lead to increased walking, biking and transit use and shorten the length of automobile trips include higher density housing and employment, locating jobs and housing near each other, and providing strong connectivity in the design of street and bicycle/pedestrian systems.

1 SACOG Metropolitan Transportation Plan, 2002

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SIERRA CURTIS

NEIGHBORHOOD ASSOCIATION
±
SIERRA 2 CENTER

FOR THE ARTS & COMMUNITY
December 29, 2021
RE: Curtis Park Village Fuel Center (P14-036)
Honorable Mayor Steinberg and members of the Council:

In 2015, the Sacramento City Council, in a 7 to 2 vote, denied the application to construct a 16 nozzle fuel center in Crocker Village. The Council's findings cited several reasons for denying the application, including that a fuel center would be inconsistent with a number of the City's policy priorities, such as:
• The City's commitment to reducing vehicle miles traveled and curbing the negative impacts of climate change;
• The City's support for pedestrian and transit-oriented development; • The need to act consistently with a multi-million-dollar infrastructure investment that created a pedestrian/bike bridge connecting light rail and Sacramento City College, and encouraging foot rather than car traffic; and
• The City's desire to see infill growth strengthen existing neighborhoods, not weaken them.

In 2018, the Sacramento Superior Court ordered the City Council to hold a new hearing on the application based solely on a procedural issue related to one of the seven votes to deny the application. The Court's action had nothing to do with the merits of the Council's decision. The reasons the Council voted to reject the application in 2015 remain relevant-and arguably more so now. (Attachment 1)
• Over the Last Six Years, the Council's Actions Have Further Amplified the Importance of These Policy Priorities.

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SIERRA CURTIS

NEIGHBORHOOD ASSOCIATION
t
SIERRA 2 CENTER

FOR THE ARTS & COMMUNITY
• The Currently Proposed Location is Not a New Idea.

The proposed southwest corner location of the fuel center was discussed as an option by the applicant and Council at the hearing in 2015. Nevertheless, the Council denied the application.

As the Council correctly noted then, relocating the fuel center does not remedy the numerous problems with the application. The flaw is in the siting of a fuel center in a smart growth infill development, regardless of where within the development it is placed. • The Applicant's Main Argument for Insisting on a Fuel Center Is Now Moot.

At the 2015 hearing, Safeway representative Todd Paradise told Mayor Johnson and the Council that a fuel center at the future Raley's store on Freeport Boulevard would competitively disadvantage Safeway's new store at Crocker Village. Mr. Paradise argued that Safeway should be allowed a fuel center to mitigate this competitive disadvantage. He insisted that the fuel center was absolutely necessary to bring Safeway to Crocker Village, and that the store would not open without the City's approval of a fuel center. This turned out not to be true. Safeway opened its Crocker Village store in March 2019, without a fuel center.

The new Raley's store also opened without a fuel center. This Council, in December 2018, unanimously passed the Transit Oriented Development Ordinance that, among other things, prohibits fuel centers on parcels that are: (1) near a light rail stop, (2) more than 500 feet from a freeway interchange, or (3) not on a six-lane street. This ordinance prohibits a fuel center from ever being constructed on the Raley's site, thus permanently removing the "competitive disadvantage" repeatedly cited by Safeway as a reason for approving the application. The Council created a win-win situation for the appellants and the applicant. • There is No Shortage of Gas Near this Neighborhood (Twenty-Two Gas Stations Within a Two-Mlle Radius of the Proposed Site).

The neighborhoods surrounding the proposed Fuel Center are saturated with existing gas stations. There are 22 gas stations within a two-mile radius. Between them there are 94 gas dispensers, with 188 nozzles. Four are Chevron stations that offer a $0.20/gallon gasoline discount for Safeway reward points. The Chevron discount is reasonably equivalent to the proposed Safeway fuel center discount for most customers. Safeway points can also be used for direct discounts on food and other grocery items at Safeway. Grocery discounts, which surveys indicate most customers prefer, are equal to or exceed gas savings. (Attachment 3) • Whether the Council Applies 2015 Code or 2021 Code, the Application Cannot Stand.

Council should consider current regulations in its decision. In the past six years, the City has made great strides in its efforts to encourage smart infill and to combat climate change.

Grandfathering in applications inconsistent with the City's current regulations does not serve either of these laudable goals. Under current regulations (specifically the Transit Oriented Development Ordinance) the application would be prohibited. However, even if the Council decides to apply 2015 code, a denial is still appropriate for all the same reasons it was back in

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SIERRA CURTIS

NEIGHBORHOOD ASSOCIATION
I
SIERRA 2 CENTER

FOR THE ARTS & COMMUNITY
2015. Remember, the merits of the Council's 2015 denial were never questioned, and the Council's reasons for denying the application in 2015 apply just as strongly today. • The City's Broad Discretion to Deny a Conditional Use Permit Application is Well- Established Law.

The law states that the City has broad discretion to deny a Conditional Use Permit application for any of the designated conditionally permitted uses in a shopping center zone. The applicant's position on this Issue (that the City has no discretion to deny the project) is wrong, and SCNA is confident that the City Attorney will confirm the broad scope of the Council's legal authority in this regard. To highlight the error in applicant's argument, we have attached a list of all the uses the City has the discretion to approve or deny conditionally in this zone. The list includes an amusement center, drive-in theater, correctional facility, and golf course and many other uses for which, obviously, the City Council would rightfully want to exercise its appropriate discretion to approve with conditions or deny the application. (Attachment 4) Certainly, applicant cannot seriously argue that City Council has no discretion to deny an application to put, for example, Epcot Center in Crocker Village. While this point seems obvious, considering the applicant's repeated false (not to mention illogical) legal assertion, it is unfortunately necessary to make it.
• Applicant's Argument that SCNA and the Sacramento Area Council of Governments Knew About the Fuel Center Before He Applied for a Permit is False.

SCNA and the City helped secure a grant of $9.1 million from the State Transit Oriented Development Housing Infrastructure Grant Program to support on-site infrastructure in Crocker Village. They also helped secure an additional $6.963 million of Sacramento Area Council of Governments' regional transportation funds to construct the pedestrian/bike bridge in Crocker Village. They secured funding based on the applicant's and the City's assurances that the project would be an exemplary transit and pedestrian-oriented infill project that promoted transit ridership as opposed to vehicle traffic. The City described Curtis Park Village as the region's pre eminent Transit Oriented Development in its 2013 Resolution confirming the grant of State funds to the developer. A gas station is antithetical to these goals and would jeopardize future funding from these and likely other sources. (Attachments 5 and 6)

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SIERRA CURTIS

NEIGHBORHOOD ASSOCIATION
1 SIERRA 2 CENTER

FOR THE ARTS & COMMUNITY
SCNA is proud of its consistent support for smart- growth in Crocker Village. Throughout the planning process SCNA strongly advocated for a fully connected street and pedestrian network to link old and new neighborhoods. We advocated for greater density and onsite affordable housing, and against the applicant's proposal to move the affordable housing off-site. SCNA worked for the successful award of millions of dollars of public infrastructure investment to support what, at the time, was being marketed by the applicant as a transit-oriented development. We believe we have been good partners with the City in advancing these important citywide public policy priorities, and we respectfully request that the City continue this healthy partnership by denying the application before it.

Very truly yours,
Sierra Curtis Neighborhood Association Board of Directors Cc (via email):

Mayor Darrell Steinberg c/o {[email protected]) Vice Mayor Jay Schenirer {[email protected]) Councilmember Angelique Ashby ([email protected]) Councilmember Sean Loloee ([email protected]) Councilmember Jeff Harris ([email protected]) Councilmember Katie Valenzuela (kvalenzuela @cityofsacramento.org) Councilmember Eric Guerra ( [email protected]) Councilmember Rick Jennings, II ([email protected]) Councilmember Mai Vang ([email protected]) c/c ([email protected]) Marcus Adams, Senior Planner ([email protected]) Leslie Walker, Senior Deputy City Attorney ([email protected]) Attachment 1: City Council Findings Denying Requested Conditional Use Permit in 2015 Attachment 2: City Council Actions 2015 through Current Attachment 3: Map and Listing of 22 Gas Stations within Two Miles of Crocker Village, Including Chevron Rewards Stations
Attachment 4: Shopping Center Zoning Conditional Use Policy from 2015 Council Hearing Attachment 5: Award of $9.1 Million Transit Oriented Development Infrastructure Grant to Crocker Village Documentation
Attachment 6: Award of $6.962 Million SACOG Regional Transportation Funds for Pedestrian and Bike Overcrossing in Crocker Village Documentation

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January 17, 2022

SENT VIA EMAIL
([email protected]; [email protected])

Mindy Cuppy
City Clerk
City of Sacramento
915 I Street, 5th Floor
Sacramento, CA 95814

RE: Crocker Village Fuel Station Appeal Rehearing P14-036 Appellants’ Request for Continuance

Dear Ms. Cuppy:

This letter responds to a letter dated December 20, 2021, by the law firm Rutan & Tucker on behalf of an unspecified client (“Rutan Letter) concerning above-referenced matter.1 The Rutan Letter purports to respond to our prior letter dated November 29, 2021 (“SMlaw Letter”).

The Rutan Letter’s analysis is premised on repeated false representations of applicable law, which is consistent with its prior false and misleading claims regarding the City’s review authority over the proposed fuel station. Rutan & Tucker previously argued that the City did not possess lawful authority to deny the requested CUP, stating in relevant part:

It is undisputed that the SC Zoning for the project expressly allows gas stations as a permissible use, subject only to conditions to be adopted by the Planning Commission via a CUP. (SCC § 17.216.51 OB.)

This characterization is unquestionably false. The proposed fuel station is not “subject only” to “conditions to be adopted.” It is also subject to denial of the requested

1 While we are aware that Rutan & Tucker previously represented Petrovich Development corporation concerning the proposed fuel station for Crocker Village, the letter’s failure to identify a client is conspicuous and unusual. Rutan & Tucker’s client for purposes of the Rutan Letter may actually be Safeway, Inc., which Rutan directly represented in its failed attempt to develop a similar mega-fuel station in the city of Petaluma.

Mindy Cuppy, City Clerk
City of Sacramento
January 17, 2022

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conditional use permit in the exercise of the Council’s discretion applying the health and welfare standard. (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 336- 337; Harris v. City of Costa Mesa (1994) 25 Cal.App.4th 963, 973 (Harris); SP Star Enterprises, Inc. v. City of Los Angeles (2009) 173 Cal.App.4th 459, 476.) Rutan & Tucker has never acknowledged its prior false claims regarding the City’s approval authority over the proposed fuel center, much less disavowed use of such misrepresentations going forward. Instead, we see more of the same.

First, the Rutan Letter fails to offer a consistent position regarding the law that applies to the Council’s approval of the proposed fuel center. The Rutan Letter first asserts, “This Soluri argument, however, overlooks the fact that the City is properly applying the existing law . . .which directs the use of an addendum to the EIR.” (Rutan Letter, p. 2, underline in original.) The Rutan Letter immediately thereafter contradicts itself in the next paragraph, stating, “The applicable rule on the facts of this case requires the Council to consider only the laws in effect at the time of the prior hearing.” (Rutan Letter, p. 2.) These two assertions are patently inconsistent, and thereby fail to establish an articulable legal position. The SMlaw Letter, by contrast, sets forth the proper rule:
“[T]he law to be applied is the law in existence at the time, and the narrow exception for ‘bad faith’ local agency enactments that are inapplicable on rehearing because they are designed to frustrate a developer’s plans.” (SMlaw Letter, p. 3.)

Having failed to articulate a consistent position, it is unsurprising that the Rutan Letter also fails to provide adequate supporting legal analysis. The Rutan Letter boldly asserts, “[T]here is no question that the City Council must apply the local laws as they existed at the time of the prior hearing on the application,” but then cites only to Gabric and Ross as supporting authority. (Rutan Letter, p. 2.) Such reliance is fatal to the Rutan Letter’s position because neither case supports this position. Our prior letter set forth an extensive block quote from Ross squarely refuting the Rutan Letter’s characterization of that case. (SMlaw Letter, pp. 2–4.) Indeed, Ross could not be more clear:

But this is not all Selby Realty had to say on the subject. In a footnote, the court acknowledged the existence of two lines of seemingly inconsistent California cases concerning applications for building permits when the law changes before a decision on appeal. The court reconciled the two lines by noting the cases holding the new law “inapplicable” did so because the new “enactment stemmed from an attempt to frustrate a particular developer’s plans.” (10 Cal.3d at p. 126, fn. 11, 109 Cal.Rptr. 799, 514 P.2d 111; see also Atlantic Richfield Co. v. Board of Supervisors (1974) 40 Cal.App.3d 1059, 1064, fn. 3.)

Mindy Cuppy, City Clerk
City of Sacramento
January 17, 2022

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A similar idea is contained in the latest edition of the Anderson treatise, which acknowledges a “bad faith” exception to the general rule of applicability of the law as it exists at the time of the appellate decision:
“Courts that normally apply the law as it exists on the day of final decision will not apply an amendment adopted in bad faith or for the purpose of delay.” (4 Anderson, American Law of Zoning (3d ed. 1986) § 27.38, p. 595, fns. omitted, italics added.)

(Ross v. City of Yorba Linda (1991) 1 Cal.App.4th 954, 968–970 (Emphasis added).)

The Rutan Letter’s mischaracterization of Ross is disappointing but, unfortunately, not surprising. Truly perplexing is the Rutan Letter’s citation to Gabric, which includes the following parenthetical: “city may not apply newly-enacted ordinances or policies that would frustrate a land use application on remand.” (Rutan Letter, p. 2 [emphasis added].) Thus, the Rutan Letter’s parenthetical description of Gabric contradicts its own argument by showing that the prohibition on subsequently-enacted local ordinances is limited to “ordinances or policies that would frustrate a land use application on remand.” Nevertheless, and contrary to both Ross and Gabric, the Rutan Letter doggedly clings to its false position that that all subsequently-enacted local ordinances must be ignored by the Council – even those with no intention to “frustrate a particular developer’s plans.” (Rutan Letter, p. 2.)

Further forfeiting credibility, the Rutan Letter appears to later reverse itself on this issue. (Rutan Letter, pp. 7-8.) In a particularly confused discussion, the Rutan Letter later seemingly concedes that subsequently-enacted ordinances not adopted to frustrate a particular development’s plan will apply a later agency decision. (Ibid.) While conceding the point, the Rutan Letter quibbles that the rule is not a “narrow” exception and does not “depend solely on a showing of bad faith.” (Ibid.) As to both these cavils, one need only refer to the Ross decision, which the Rutan Letter conspicuously ignores on pages 7 and 8. (Ross, supra, 1 Cal.App.4th at 968–970.)

Further, the Rutan Letter conspicuously fails to address the California Supreme Court’s actual holding in Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 125–126, which expressly found a subsequently-enacted local ordinance to be applicable to the agency’s rehearing: “Thus, the amended version of section 8323 is applicable to plaintiff’s request for a permit even though the ordinance was amended after the permit was denied.” While it is correct that an appellate court later asserted, “There are other circumstances which should be considered” in applying the exception, that court’s description of the relevant “consideration” includes in relevant part:

Mindy Cuppy, City Clerk
City of Sacramento
January 17, 2022

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The new ordinance cannot be used as a rationale or means to affirm a wrong decision. It was wrong for the City to deny appellant the permit.

The record is clear that the City denied the permit in an effort to prevent Gabric building under the existing ordinance and to compel compliance with an ordinance not yet then in effect but which City only contemplated enacting in the future.

(Gabric v. City of Rancho Palos Verdes (1977) 73 Cal.App.3d 183, 202.) Setting aside that the actions described are not substantively different than attempts “to frustrate a particular development’s plan,” this in no way helps PDC’s position here. The Rutan Letter tellingly makes no attempt to identify any subsequently-enacted City ordinance fitting this description, and we are aware of none.

In short, the Rutan Letter’s confused and internally inconsistent argument regarding applicable law is wholly without merit. The Council’s consideration of the proposed fuel station application is based on current state law and all subsequently- enacted City ordinances that were not adopted in an attempt to frustrate PDC’s plans.

Very truly yours,

SOLURI MESERVE
A Law Corporation

By:

Patrick M. Soluri

PMS/mre

Leslie Walker, Deputy City Attorney ([email protected])

January 18, 2022

SENT VIA EMAIL
([email protected]; [email protected])

Mindy Cuppy
City Clerk
City of Sacramento
915 I Street, 5th Floor
Sacramento, CA 95814

RE: Crocker Village Fuel Station Appeal Rehearing P14-036 Comments to EIR Addendum

Dear Ms. Cuppy:

This letter, submitted on behalf of appellants Sierra Curtis Neighborhood Association, Andrea Rosen and Eric Johnson, provides comments to the Revised Addendum (November 2021) to an Adopted Environmental Impact Report on Rehearing (“Addendum”) prepared for the proposed fuel center (“Fuel Center”).

An Addendum can only be used where there are no additional significant impacts or substantial increase in the severity of previously identified significant impacts.

Further, substantial evidence must support the agency’s determination that these triggers have not been met by changes in the proposed project, surrounding circumstances or new information. As described more fully below, the record is inadequate to support a determination that an Addendum is appropriate here. A supplemental EIR is required to address the Fuel Center’s impacts associated with hazardous materials as well as transportation and pedestrian safety.

1. The Addendum fails to address the increased risk from handling hazardous materials.

Reinforcing its inappropriate location within Crocker Village, the proposed Fuel Center would substantially increase the risk of exposing residents to releases of hazardous substances. On this issue, the CPV EIR identified the following relevant thresholds of significance:

Mindy Cuppy, City Clerk
City of Sacramento
January 18, 2022

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 “Substantially increase the risk of exposure of site occupants to inadvertent or accidental releases of hazardous substances to the environment from non-residential uses during project occupancy; and/or

 Substantially increase the risk of exposure of site occupants to inadvertent or accidental releases of hazardous substances transported on adjacent roadways and rail lines within the project area.”

(CPV DEIR, p. 5.8-7.)

The CPV EIR found these impacts less than significant without the need for any mitigation. (DEIR, p. 5.8-15.) The DEIR’s entire discussion of the issue provides:

The proposed project would include residential, commercial, and open space/park uses. These land uses would not involve the routine use, transport, or disposal of hazardous materials. In addition, the truck routes designated for the commercial uses would not utilize the proposed residential roadways. Therefore, the proposed project would not increase the risk of exposure of site occupants to inadvertent or accidental releases of hazardous substances from non-residential uses or substances transported on adjacent roadways, resulting in a less than significant impact.

Mitigation Measure(s): None required.

(Ibid. (Emphasis added).)

The proposed Fuel Center dramatically alters this analysis. Not only would the Fuel Center involve both the routine use and transport of large quantities of a hazardous substance, but such use and transport would occur in extremely close proximity to residential dwellings. Specifically, the Fuel Center would be located literally across the street from homes, and petroleum tanker trucks will be travelling on the same street as these dwellings within merely 15 to 20 feet of their doorsteps. What is more, the transport would occur on Crocker Drive, a residential roadway. Thus, the CPV EIR’s analysis of this issue is completely inapplicable to the proposed Fuel Center, and will need to be revised in its entirety.

The Addendum fails to adequately address these new impacts. The Addendum obliquely suggests recognition of these impacts, but fails to address them in a manner that CEQA allows. CEQA requires that the City acknowledge the existence of the new potentially significant impacts, and then propose all feasible mitigation measures that Mindy Cuppy, City Clerk
City of Sacramento
January 18, 2022

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would reduce the impact to less than significant. Rather than take this approach, the Addendum asserts, “The proposed project would be required to operate in compliance with all applicable federal, state, and local requirements which substantially reduces the potential for these impacts.” (Addendum pp. 5 – 6.) After reciting a bullet-point list of “regulations,” the Addendum concludes, “Regulation substantially reduces the risk of exposure and risk of upset. The operation of a fuel station as proposed in the project would not result in a substantial risk of exposure to accidental release or upset events, and would not result in a new significant effect.” (Addendum p. 7.)

There are two fatal defects in the Addendum’s approach. First, an agency may not merely rely on regulatory compliance to dismiss an impact. (Ebbetts Pass Forest Watch v. California Dept. of Forestry and Fire Protection (2008) 43 Cal.4th 936, 957 [error to conclude that compliance with pesticide restrictions precludes significant impact]; Californians for Alternatives to Toxics v. Department of Food & Agriculture (2005) 136 Cal.App.4th 1, 16.) Second, “By compressing the analysis of impacts and mitigation measures into a single issue, the [Addendum] disregards the requirements of CEQA.” Lotus v. Department of Transportation (2014) 223 Cal.App.4th 645, 656.) Conflating these analyses makes it “impossible to determine whether mitigation measures are required or to evaluate whether other more effective measures than those proposed should be considered.” (Ibid.)

Since a Fuel Center was never contemplated and thus not analyzed in the CPV EIR, a supplemental EIR addressing new impacts related to the transport and use of hazardous materials is necessary to adequately protect Curtis Park residents.

2. The Addendum fails to address potential transportation and pedestrian hazards created by the Fuel Center’s circulation plan.

The Addendum also fails to adequately analyze the Fuel Center’s internal circulation. As a result, potentially significant transportation hazards, namely vehicle- pedestrian conflicts within the Safeway parking lot and on the roadways, have not been adequately analyzed.

The Addendum notes, “A transportation Analysis was prepared by DKS for the original Crocker Drive location proposed by the applicant.” (Addendum, p. 10.) Further, “[T]he Traffic Analysis also examined onsite circulation and queuing, which are recognized elements of a traffic analysis for such an operation.” (Addendum, p. 11.) Incredibly, however, no such analysis was prepared for the Fuel Center’s new location.

This omission is fatal because the prior report for the original location on the corner of Crocker Drive and 10th Avenue “identified several elements of the proposed site that Mindy Cuppy, City Clerk
City of Sacramento
January 18, 2022

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presented challenges.” The draft 2015 Addendum identified several mitigation measures necessary to address safety issues at the corner of Crocker Drive and 10th Avenue. (Addendum, p. 11.)

The new location has significantly more constrained access, and thus even more pedestrian safety concerns. The original location would have been accessed directly from two public streets. The new location, by contrast, would require ingress through a crowded parking lot currently used by pedestrians who will be walking between their cars and Safeway and other stores. Despite this significantly more “challenging” situation, the Addendum includes no “onsite circulation and queuing” analysis, even though these analyses “are recognized elements of a traffic analysis for such an operation.” The Addendum fails to explain why no such analysis was prepared.1

Without any “onsite circulation and queuing” analysis from the applicant, the Addendum explains that “Department of Public Works staff reviewed the project proposal.” That staff review was limited, however, to whether the location “would not impact City streets,” and further does not appear to be memorialized in a written report or even include a circulation figure. (Addendum, p. 11.) There is no indication that this informal staff review analyzed (i) how extensive the queues would be within the Safeway parking lot resulting from the additional 2,752 daily vehicles using the Fuel Center, or (ii) whether extensive queuing would result in potentially significant transportation hazards due to conflicts with pedestrians.2

Rather than engage in an analysis against an identifiable significance standard as CEQA requires, the Addendum provides:

To improve traffic operation within the fuel center site, the traffic evaluation for the Buchannan Street/10th Avenue location recommended the project install on-site signage directing vehicles to fuel center; provide standard signing and striping (One-Way and Do Not Enter signage, as well as stop bar) at the exit of the fuel area/driveway on Buchannan Street/10th

1 Prior correspondence between the City and PDC indicates that PDC refused to prepare this analysis.
2 CEQA does not allow an agency to deploy its thresholds of significance to foreclose consideration of substantial evidence supporting a fair argument of significant impact. (Visalia Retail, LP v. City of Visalia (2018) 20 Cal.App.5th 1, 13; Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1108–09.) As there is substantial evidence of a fair argument of significant transportation and pedestrian hazards within the Safeway parking resulting from the Fuel Center, then City may not avoid analysis merely by pointing to CEQA thresholds not directly addressing that impact.

Mindy Cuppy, City Clerk
City of Sacramento
January 18, 2022

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Avenue and utilization of personnel (fuel ambassadors) to help direct traffic at the fuel station area during busy periods.

(Addendum, p. 12.)

There are several compounding problems with this analysis. First, the above- quoted discussion is intended “to improve traffic operation without the fuel center site,” but fails to articulate whether unmitigated operations are significant in relation to the City’s adopted significance standard. (Lotus, supra, 223 Cal.App.4th at 656.) Presumably unmitigated conditions are potentially significant, which is why the described measures are proposed. However, the Addendum does not comply with CEQA’s mandate to identify these as mitigation measures, and further does not provide information regarding their effectiveness in relation to the identified significance standard. (Ibid.) Put simply, the Addendum’s one-sentence discussion “precludes both identification of potential environmental consequences arising from the project and also thoughtful analysis of the sufficiency of measures to mitigate those consequences.” (Id. at 658.)

Many neighbors have already expressed, and will likely continue to express, concern about the proposed circulation strategy and the hazard it presents to pedestrians within the parking lot. Such fact-based opinions by residents, based on personal experiences, constitute substantial evidence of significant transportation and pedestrian safety impacts. (Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129, 1151 - 1152 [layperson comments regarding traffic and traffic safety impacts are substantial evidence “even if they contradict the conclusions of a professional traffic study”].)

These pedestrian safety concerns are reinforced by the incomplete “Truck Route Exhibit” set forth in Attachment 12 to the staff report. The Truck Route Exhibit conspicuously fails to explain how tanker trucks would reach the Fueling Center. The staff report indicates that the Fuel Center’s driveway onto Buchannan is for egress only. (Addendum, p. 11.) If so, this means that tanker trucks will also need to navigate through the Safeway parking lot in order to access the Fuel Center along with the predicted 2,752 daily Fuel Station vehicles and parking lot pedestrians. While unaddressed in the Addendum, the potentially significant safety hazard is obvious. A supplemental EIR is

Mindy Cuppy, City Clerk
City of Sacramento
January 18, 2022

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necessary to address this new significant transportation hazard impact resulting from the Fuel Center.

Very truly yours,

SOLURI MESERVE
A Law Corporation

By:

Patrick M. Soluri
PMS/mre
Leslie Walker, Deputy City Attorney ([email protected])

CHARTER OFFICERS
Mindy Cuppy, City Clerk
Susana Alcala Wood, City Attorney
Jorge Oseguera, City Auditor
Howard Chan, City Manager
John Colville, City Treasurer

FINAL CORRESPONDENCE

Description of Attached: Correspondence received after publishing the Agenda.

For the Meeting of: Tuesday, January 18, 2022, at 5:00 p.m.

Agenda Item: Public Hearing Item 16

Contact: Marcus Adams, Senior Planner, (916) 808-5044,
[email protected]
, Community Development Department

From: Ted Frink <[email protected]>
Sent: Tuesday, January 18, 2022 3:26 PM
To: Mindy Cuppy <[email protected]>; clerk <[email protected]> Cc: agrosen8 <[email protected]>; [email protected]; [email protected]; [email protected]; Hal <[email protected]>; Kathleen <[email protected]>; Cheri Davis <[email protected]>; Jordan Lang <[email protected]> Subject: 16. Rehearing-Third Party Appeal: Curtis Park Village Fuel Center - comment letter OPPOSE

City Council staff,
Please accept this letter of comment related to the hearing on the Curtis Park Village Fuel Center application for a CUP. Please distribute this letter to all Council members and the SCNA representatives for consideration and discussion to vote on the CUP. I am a member of the SCNA in Curtis Park.

thank you,
-Ted Frink

CityCouncil Fuel Center Comment letter Jan 18

Sacramento City CouncilJanuary 18, 2022

Sacramento City Council
January 18, 2022