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Darrell Steinberg, Mayor
Angelique Ashby, Vice Mayor, District 1
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CORRESPONDENCE
Description of Attached: Correspondence received after publishing the Agenda.
For the Meeting of: Tuesday, November 15, 2022, at 5:00 p.m.
Agenda Item: Public Hearing Item 34
34. Third Party Appeal: Costco Warehouse Natomas (P22-019) (Noticed 11/04/2022) File ID: 2022-01916
Location: 3881 E. Commerce Way, District 1
Recommendation: Conduct a public hearing and upon conclusion, adopt: 1) a Resolution adopting the Addendum to the previously certified Environmental Impact Report (EIR) (Resolution 2009-531; SCH# 2007112088) (no further documentation required pursuant to CEQA Guidelines sections 15162, 15163, 15164, and 15183); and 2) a Resolution adopting project entitlements including a Conditional Use Permit for a Retail Store over 60,000 square feet in size, and Site Plan and Design Review for the construction of a 160,526-square-foot warehouse retail store in the Shopping Center (SC-PUD) zone within the Natomas Crossing Area 3 Planned Unit Development, thereby denying the third-party appeal.
Contact: Jose Quintanilla, Associate Planner, (916) 808-5879, [email protected]; Garrett Norman, Senior Planner, (916) 808-7934, [email protected], Community Development Department
1 California Street - Suite 3050
San Francisco, California 94111 -5432
voice 415.655.8100 - fax 415.655.8099
www.bwslaw.com
Direct No.: 415.655.8115
[email protected]
Los Angeles – Inland Empire – Marin County – Oakland – Orange County – Palm Desert – San Diego – San Francisco – Silicon Valley – Ventura County November 10, 2022
VIA E-MAIL
City of Sacramento City Council
915 I Street
Sacramento CA 95814
Re: Costco Warehouse Natomas (P22-019) – Letter of Support for Project Approval and Opposition to Appeal
Dear Honorable Members of the City Council:
Our firm represents Costco Wholesale (“Costco”) in connection with its application for entitlements to develop a new Warehouse (the “Project”) in the Natomas Crossing Area 3 Planned Unit Development (“Natomas Crossing PUD”), an area of Sacramento that has long been planned to accommodate large retail uses. We write to express support for the City’s Planning and Design Commission’s unanimous Project approval and staff’s recommendations for the same. We also wish to offer additional analysis and information that augments and amplifies the work that the City and its consultants have already done to comply with the requirements of the California Environmental Quality Act (“CEQA”).1
As discussed in more detail below, the City has fully complied with CEQA in connection with the Project. When the City adopted the Natomas Crossing PUD, it certified an environmental impact report (“EIR”) that fully analyzed and disclosed impacts based on more commercial development than the Project currently proposes.
As documented in the Addendum to the Natomas Crossing PUD EIR that the City prepared in connection with the Project (“Project Addendum”), implementation of the Project under current conditions would not result in any new or more severe impacts than originally analyzed in the EIR. Moreover, the Project Addendum demonstrates that the Project is consistent with the project site’s zoning and that the Project would not result in any impacts that are “peculiar” to the Project or the Project site as compared with the Natomas Crossing PUD EIR. Contrary to the claims raised in the appeal, the
1 Pub. Res. Code § 21000 et seq. and 14 CCR § 15000 et seq. (the “CEQA Guidelines”).
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November 10, 2022
Project Addendum demonstrates that there is no basis to require additional CEQA review.
Accordingly, we respectfully request that the appeal be denied and that the City Council (1) adopt the Addendum to the previously-certified EIR; (2) find that the Project is exempt from CEQA pursuant to CEQA Guidelines § 15183; and (3) approve a conditional use permit and site plan and design review for the Project.
I. CEQA Allows Subsequent Environmental Review Only In Limited Circumstances.
After the City has certified an EIR for a project, “no subsequent or supplemental [EIR] shall be required” unless specific events have occurred. (Pub. Res. Code § 21166 (emphasis added).) Specifically, no new EIR shall be prepared unless the City determines that (1) substantial changes are proposed in the project; (2) substantial changes have occurred with respect to the project’s circumstances; or (3) new information of substantial importance, which was not known and could not have been known when the EIR was certified becomes known, and the changes or information show that the project would result in new or substantially more severe environmental effects than disclosed in the original EIR. (CEQA Guidelines § 15162(a).) As explained by the California Supreme Court, CEQA “generally prohibits the agency from requiring a subsequent or supplemental EIR” unless any of the above conditions have occurred and new significant environmental effects or a substantial increase in the severity of previously identified significant effects would result. (Friends of Coll. of San Mateo Gardens v. San Mateo Cnty. Cmty. Coll. Dist. (2016) 1 Cal.5th 937, 957.) Subsequent environmental review must be limited to “environmental impacts not considered in the original environmental document” and should not “revisit environmental concerns laid to rest in the original analysis.” (Id. at 949.) When some changes to an original EIR are warranted but none of the triggers outlined above are met, CEQA provides that the City “shall prepare an addendum” rather than a subsequent or supplemental EIR. (CEQA Guidelines § 16164(a).) An addendum may be used to document minor technical changes or additions to the original EIR. (Id. at § 16164(b).) It can also be used to document why the three conditions that require additional CEQA review summarized above have not occurred. (Id. at § 16164(e).) An addendum, rather than a subsequent or supplemental EIR, is appropriate if the resulting environmental impacts were covered in the previous EIR. (See Committee for Re-Evaluation of the T-Line Loop v. San Francisco Mun. Transp.
Agency (2016) 6 Cal.App.5th 1237 [changes in neighborhood near project did not
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constitute a change in circumstances that would require further EIR when effects of those changes were anticipated and analyzed in a prior EIR].) Here, the Project does not represent a change from what was studied in the Natomas Crossing PUD EIR. As discussed on page 2-13 of the Project Addendum, the Natomas Crossing PUD designated the Project site as Shopping Center Planned Unit Development, which is a commercial designation that allows large-format retailers such as Costco. This zoning designation allows for a maximum of 404,580 square feet of regional retail uses, which included a Lowe’s Home Improvement retail center in its original configuration. The Project’s proposed 160,526 square feet of retail uses replaces the previously-anticipated Lowe’s and is well within the envelope of retail uses studied in the original EIR. Accordingly, the Natomas Crossing PUD EIR assumed large format retail uses would develop, and it fully analyzed the effects associated with this style of development.
The Project itself does not change any of the details of the project analyzed in the Natomas Crossing PUD EIR, and therefore there are no changes to the Project necessitating further review.2 Because there were no changes, CEQA did not require the City to even prepare the Project Addendum; the City could have simply relied on the EIR’s original analysis. However, the City conservatively prepared a very detailed addendum that verified – topic by topic – that the Project would not result in new or more severe impacts as compared with the Natomas Crossing PUD EIR. The Project Addendum therefore provides substantial evidence that none of conditions that require additional CEQA have occurred. (See CEQA Guidelines § 16164(e).) II. Changes in Law or Regulations Do Not Necessitate Additional CEQA Review.
The appeal correctly notes that Sacramento County adopted Transportation Analysis Guidelines that direct new EIRs to analysis transportation impacts using a vehicle miles traveled (“VMT”) threshold to comply with SB 743, state legislation that eliminated the use of Level of Service as an environmental impact for CEQA purposes.
However, the appeal is incorrect that this means the Project’s impacts could differ from those in the Natomas Crossing PUD EIR or that a new EIR is required. Likewise, the appeal incorrectly asserts that revised Sacramento Metropolitan Air Quality Management District (“SMAQMD”) air quality regulations are a basis for additional
2 The appeal claims that Costco would result in new traffic patterns that were not previously analyzed.
However, because the Natomas Crossing PUD EIR anticipated the traffic patterns associated with new commercial development, Project traffic is not a new condition requiring additional analysis under CEQA.
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CEQA review. Both of these claims contradict well-established law that the promulgation of new significance thresholds or the addition of new environmental impact topics to CEQA does not trigger subsequent or supplemental environmental review. (See Citizens Against Airport Pollution v. City of San Jose (2014) 227 Cal.App.4th 788, 808; Concerned Dublin Citizens v. City of Dublin (2013) 214 Cal.App.4th 1301, 1319.)
In the San Jose case, the City certified an EIR in 1997 and a supplemental EIR in 2003 related to its Airport Master Plan. (Id. at 792.) The City adopted subsequent updates to the Master Plan accompanied by various addenda; the eighth addendum was challenged following its adoption in 2010. (Id.) In the 13 years between the original EIR and the eighth addendum, CEQA was amended to expressly include greenhouse gas emissions as an environmental topic, and project opponents argued that the City could no longer rely on the original EIR because it did not analyze greenhouse gas emissions. (Id. at 807.) The court rejected this argument, because environmental impacts from greenhouse gas emissions were known or could have been known when the original EIR was certified. (Id.) Therefore, the evolution of CEQA to require specific analysis of greenhouse gas emissions was not “new information” that required additional environmental review. (Id. at 808.)
A similar argument was brought against the City of Sacramento’s General Plan EIR after CEQA Guidelines section 15064.3 was adopted to require the use of VMT analysis for transportation impacts. (Citizens for Positive Growth & Pres. v. City of Sacramento (2019) 43 Cal.App.5th 609, 625.) There, the Court of Appeal upheld the City’s EIR and did not require recirculation of the EIR to address VMT impacts because the EIR was prepared and certified before CEQA Guidelines section 15064.3 took effect. (Id. at 626.) The court held that the City was not obligated to reopen the analysis in its EIR to incorporate VMT criteria. (Id.) Likewise, an air district’s adoption of new thresholds for establishing significant environmental effects does not require supplemental environmental review when the original EIR applied applicable air district thresholds at the time it was prepared and certified. (Concerned Dublin Citizens, 214 Cal.App.4th at 1319.)
Each case above is directly relevant here and demonstrate why, as a matter of law, the appeal’s claims are unfounded. As an initial matter, because the EIR was prepared and certified before CEQA Guidelines section 15064.3 took effect, projects that are consistent with the EIR need not prepare a new EIR simply to address new VMT thresholds. (Citizens for Positive Growth & Pres., 43 Cal.App.5th at 625.) In any event, VMT and its relationship to air quality were documented in the original EIR. As explained on page 33 of the Project Addendum, the Natomas Crossing PUD EIR
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included VMT figures in its original analysis. Therefore, the addition of VMT criteria to the CEQA Guidelines after the Natomas Crossing PUD EIR was certified is not “new information” or a “changed circumstance” that would reopen the EIR because the environmental effects of VMT were known when the Natomas Crossing PUD EIR was certified. Accordingly, VMT impacts cannot now be the basis for additional CEQA review. (Citizens Against Airport Pollution, 227 Cal.App.4th at 808.) For similar reasons, SMAQMD’s newly adopted air quality thresholds are not relevant. As shown in Table 4.5-2 of the Project Addendum, the Project would comply with SMAQMD’s air quality thresholds as they existed when the City certified the Natomas Crossing PUD EIR. Accordingly, SMAQMD’s later-enacted thresholds are not relevant to determining if the Project would result in new or more severe impacts as compared with the original EIR. (Concerned Dublin Citizens, 214 Cal.App.4th at 1319.) When relevant impacts have already been analyzed in an EIR, “however legally characterized, the [environmental topic] would be affected the same as before” and “the environmental review and mitigation measures that had already been completed focused on the real effects of the project.” (Id. at 1320.) CEQA Guidelines sections 15162 through 15164 necessarily focus on the changes from the analysis in an EIR in order to assess whether current activities result in new or greater impacts than found in the EIR. The only way to meaningfully make this comparison is to use the same standards as in the EIR. Because the Project does not increase effects or exceed standards of significance as compared with the air quality analysis contained in the Natomas Crossing PUD EIR, there is no obligation to apply SMAQMD’s later-enacted thresholds to the Project.
III. The Project Would Result in Less Severe Impacts than Previously Analyzed.
When the City approved the Natomas Crossing PUD in 2009, it assumed 404,580 square feet of retail development would occur in Quad C, where the Project is located.3 As detailed in Attachment 1 to this letter, four parcels consisting of 16,153 square feet in Quad C have already been developed with retail uses. A fifth parcel, which includes approximately 19% of the land available in Quad C, has been developed with residential uses. Assuming a 19% reduction from the initial 404,580 square feet of
3 The PUD allows for up to 432,300 square feet of development. However, given the site plan considered in 2009, which assumed restaurants with large surface parking requirements, only 404,580 square feet were projected to be constructed. To be conservative, the analysis in this letter uses the smaller assumed retail allocation as the basis for its calculations.
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retail development, and deducting 16,153 square feet of built retail, leaves an allocation of approximately 311,557 square feet of retail uses in Quad C.
The Project would develop 160,526 square feet of retail uses. According to the Quad C property owner, approximately 51,500 square feet of retail space is proposed for the remaining properties in Quad C. Therefore, even with the development of Costco and the remaining retail parcels, the final build out of Quad C would result in approximately 228,179 square feet of retail, nearly 100,000 square feet below the retail space analyzed in the Natomas Crossing PUD EIR as reduced to account for residential development. In other words, with approval of the Project and reasonably foreseeable future retail development, Quad C would develop at approximately 70% of the retail capacity originally studied.
This information augments the Project Addendum’s conclusions. Even without conducting this level of analysis, the Project Addendum concluded that the Project would not result in additional VMT as compared with the EIR’s assumptions. The Project Addendum also demonstrated that the Project would be below each of SMAQMD’s air quality thresholds employed in the EIR. Therefore, the Project Addendum correctly concluded that the Project would not result in new or more severe environmental effects than had already been analyzed. As shown by this additional data, however, based on the reduction in retail development compared with the Natomas Crossing PUD EIR, the Project would very likely result in less severe impacts than had been disclosed previously, regardless of which thresholds were applied.
Therefore, no additional CEQA review is required.
It should also be noted that when Costco identifies locations for new Warehouses, it does so in part by identifying locations where its existing members are forced to drive relatively long distances to existing Costco Warehouses. The Natomas Crossing site is centrally located and a shorter distance to many Costco members’ homes as compared to existing Warehouse locations. Therefore, the Project is expected to result in shorter trips for members, which would correspond with reduced VMT and a smaller amount of air pollutant and greenhouse gas emissions compared with not only the EIR, but with existing baseline conditions.
Therefore, even if VMT were required to be analyzed in connection with the Project’s approval, no new transportation impacts would result. Likewise, reductions in air quality emissions compared to the levels analyzed in the Natomas Crossing PUD EIR cannot constitute a new impact regardless of what significance criteria is applied.
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IV. The Addendum Also Demonstrates that the Project is Exempt from CEQA.
Public Resources Code Section 21083.3 and CEQA Guidelines section 15183 provide that proposed projects that are consistent with a community plan or zoning designation for which an EIR was certified is exempt from CEQA, “except as might be necessary to examine whether there are project-specific significant effects which are peculiar to the Project or its site.” CEQA Guidelines section 15183(c) specifies that “if an impact is not peculiar to the parcel or to the proposed Project, has been addressed as a significant effect in the prior EIR, or can be substantially mitigated by the imposition of uniformly applied development policies or standards…, then an EIR need not be prepared for the project solely on the basis of that impact.” In other words, projects consistent with the zoning designations that were analyzed in an EIR are exempt from subsequent CEQA review unless they would result in project-specific impacts. Here, the City certified the Natomas Crossing PUD EIR when it adopted the Shopping Center Planned Unit Development zoning designation applicable to the Project site. The City has also determined that the Project is consistent with that zoning designation. The Project Addendum demonstrates that the Project’s impacts are entirely within the effects previously covered in the original EIR, and that any potential impact can be reduced to a less than significant level through the imposition of uniformly applied development standards (such as General Plan policies, zoning requirements, previously-adopted EIR mitigation measures, and standards from other plans).
Therefore, the Project Addendum demonstrates that the Project is exempt from CEQA under CEQA Guidelines section 15183, and this exemption provides a separate and independent basis for the City to conclude that no new CEQA document (e.g., a Mitigated Negative Declaration or and EIR) is required. Accordingly, the appeal should be dismissed.
***
As discussed above, the Project Addendum establishes that the Project would not result in new or more severe impacts as compared with the Natomas Crossing PUD EIR. The purported changed circumstances the appeal claims have occurred are precisely the types of circumstances that courts have ruled do not trigger a new EIR.
In addition, substantial evidence, both in the Project Addendum and in this letter, demonstrates the Project would result in less severe impacts than those identified in the
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Natomas Crossing PUD EIR. Moreover, the Project Addendum provides evidence to support the conclusion that the Project is CEQA exempt.
Therefore, no subsequent or supplemental environmental review is required (or even allowed), and the appeal should be denied in its entirety.
Sincerely,
Anna C. Shimko
ATTACHMENT 1
Comparative Retail Square Footage Analysis
Parcel Use Net
Acreage
Approved
Retail
Square
Footage
Project
Retail
Square
Footage
Future
Retail
Square
Footage
Total
Retail
Square
Footage
1 Chipotle 1.020 2,325 -- -- 2,325
2 Wendy’s 0.828 3,135 -- -- 3,135
3 Starbucks 0.863 3,933 -- -- 3,933
4 Chevron/Carwash 1.466 6,760 -- -- 6,760
5 Proposed Future
Retail 0.671 -- -- 4,000 4,000
6 Proposed Future
Retail 0.978 -- -- 8,000 8,000
7 Proposed Future
Retail 0.956 -- -- 8,000 8,000
8 Proposed Future
Retail 1.231 -- -- 8,500 8,500
9 Proposed Future
Retail 1.972 -- -- 18,000 18,000
10 Residential 7.009 n/a -- -- --
12 Costco
2.411 --
160,526
--
160,526 13 13.908 -- --
14 3.105 -- --
15 Proposed Future
Retail 0.795 -- -- 5,000 5,000
TOTAL 37.2 ac 16,153 160,526 51,500 228,179
Notes:
432,300 square feet of retail approved in Natomas Crossing PUD; assumed to develop at 404,580 square feet based on site configuration and proposed uses. Approximately 19% of net acreage developed as residential uses. Assuming a straight-line reduction from 404,580 square feet, the remaining retail allocation would be 327, 710 square feet.
Including Costco and proposed future retail development, approximately 228,179 square feet of retail will exist in Quad C at buildout. Current development plans, including Costco, represent approximately 98,530 square feet of unused retail allocations at buildout as compared with the Natomas Cross PUD EIR.