CITY COUNCIL AGENDA ITEM
Meeting Date: May 28, 2002
Subject: Appeal of Design Review No 01-32, Lone Tree Center, located on Lone Tree Way east of Empire Avenue.
Submitted by: Community Development Department (Oshinsky/Zilm)
Approved by: John Stevenson, City Manager
That the City Council:
1. Certify the Environmental Impact Report as being complete and having been prepared pursuant to CEQA, and
2. Deny the appeal and approve the project by adopting a Resolution.
On April 9, 2002 the City Council voted to overturn the Planning Commission’s approval and grant the appeal of Design Review No. 01-32 denying, without prejudice, the project to construct a 179,500 sq. ft. shopping center. On April 23, 2002 the City Council voted to reconsider this action and bring it back to the Council on May 28, 2002 for further review.
It appears that the major appeal point regarding mutual access between the Lone Tree Center and Albers sites has been resolved to the satisfaction of Council, via the deed restriction for the project site, attached to this report.
The law firm for the unions raised six other appeal points. All these points concern the Environmental Impact Report (EIR) for the project. Each of the appeal points were thoroughly analyzed and researched by a team of qualified experts for the City, including the independent professional environmental and transportation consultant team hired by the City to prepare the EIR. This firm, EIP, has an excellent track record and reputation for the thoroughness and quality of their environmental work in the Bay and Sacramento areas, and throughout the State of California, including a project awarded the Helen Putnam Award for Excellence, by the League of Cities. Other qualified professionals, each with a great many years of relevant experience worked directly with EIP on the following responses to these appeal points, including City Manager John Stevenson, City Attorney Dennis Beougher, City Engineer Bailey Grewal, Community Development Director Mitch Oshinsky, and Senior Planner Jeff Zilm.
In their professional opinions, the City’s independent EIR consultant and City staff are confident that every one of the union attorneys appeal points has been completely addressed in the EIR, as stated below, and that there are no significant unavoidable environmental impacts that have not been adequately mitigated.
Therefore, it is appropriate for the City Council to certify the EIR and approve the Lone Tree Center project.
Appeal Point 1:
The EIR’s analysis of potential traffic impacts and the mitigation measures required by the Planning Commission are inadequate, and the EIR used the wrong trip generation rate.
The EIR’s traffic analysis was based on a trip generation rate specifically selected to match the particular characteristics of the project. The appellant claims that, instead of conducting the trip generation on a “Shopping Center” land use, the Winco Foods portion of the proposed Project should have been analyzed as a “Supermarket.” The appellant further contends that if the analysis had been so conducted, then the morning and evening peak hour trips and related traffic impacts would have been substantially greater than the EIR concluded. Based on this assumption, the appellant claims that the mitigation measures in the EIR are inadequate. Each of these contentions is false.
Traffic analyses start with an estimate of the potential number of vehicle trips the project will generate. Trip generation calculations are based on the Institute of Transportation Engineers Trip Generation Manual (the “ITE Manual”). ITE Manual trip generation rates rely on past studies of existing projects that are organized by land use category. One key to correctly estimating trip generation is determining the ITE Manual land use category that provides the closest similarity to the proposal being evaluated.
Selecting the correct land use category is a matter of matching the operating characteristics of the proposed project with other projects contained in the ITE Manual. Operating characteristics for commercial establishments include times of operation, staff scheduling, visitor arrival and departure peaks, and duration of stay. For the Lone Tree Center, based on the evaluation of the function of the proposed store, the duration of stay associated with that type of store and the size of the proposed store, the traffic consultant to the City concluded, and City staff experts agree, that the “Supermarket” classification would be inappropriate for Winco. Instead, based on the particular characteristics of the Winco Foods store, the consultant concluded that the “Shopping Center” classification used for the entire Project in the Lone Tree Center EIR was best suited for this analysis, due to the following factors:
City staff has visited Winco stores in Elk Grove and Eureka. Based on these site visits, and examination of how these stores operate, we concluded that Winco Foods has unique operating characteristics that differ from those of a typical supermarket. Although it will sell food and food products, Winco Foods will be a regional shopping destination that will not operate like a conventional supermarket or grocery store. Aside from the Shopping Center classification, Winco Foods is more accurately compared to a warehouse store such as Sam’s Club or Costco than to a supermarket. ITE Manual studies of “Warehouse Stores” (ITE Land Use Code 861) indicate that trip generation rates are equal to or even less than for a Shopping Center, which is the classification used in the EIR. (ITE Manual (6th Edition)). For instance, the ITE Trip Generation Manual indicates that a Warehouse Store has an A.M. peak hour trip rate of 0.65 trips per 1,000 square feet as compared to 1.03 trips per 1,000 square feet for a Shopping Center. The P.M. peak hour trip rate for a Warehouse Store is 3.80 trips per 1,000 square feet versus 3.74 trips per 1,000 square feet for a Shopping Center. Thus, if anything, the EIR’s trip generation analysis may have slightly overestimated the number of trips.
Duration of stay:
Winco stores are very large and operate like a warehouse operation in that an average shopper stays for a duration of over one hour. The stores are too large to foster many quick in and out trips for single or a small amount of items. A typical supermarket or grocery store will have many visitors that stay for a much shorter time. For this reason, grocery stores typically offer “express checkout” to facilitate convenience shopping, fostering a quick visit by the consumer. The shorter duration of stay in a grocery store results in more shopper volume (versus product volume) and more trips because of a higher turnover of shoppers in any given time period. Thus again, Winco Foods is not classified as a “Supermarket.”
The application of supermarket trip rates to Winco Foods is also inappropriate because of the difference between the size of a typical supermarket described in the ITE Manual and the proposed Winco Foods. The ITE trip generation rates for a Supermarket are based on limited studies of facilities with an average size of only 40,000 square feet. The Winco Foods facility will be 95,000 square feet, or more than twice the size of the facilities described in the ITE Manual. Given these factors, the doubling of size primarily results in the store containing a great deal more merchandise which means that shoppers generally stay for a good deal longer, and therefore, generate fewer trips because of less shopper turnover. In any case, the trip generation rates are multiplied by the square footage of the facility, so the larger size of the Winco Foods store is accurately reflected in the EIR’s trip generation analysis.
In sum, the inclusion of the Winco Foods portion of the Center in the “Shopping Center” category for the trip generation calculations, which form the basis for the rest of the EIR’s traffic analysis, is based on substantial evidence related to site visits and the actual characteristics of the project. The appellant’s contention to the contrary is inconsistent with the facts of the project.
Because the trip generation rates were correct, the traffic analysis accurately predicted potential traffic impacts from the project and the mitigation measures required by the Planning Commission are appropriate.
Because the appellant’s contentions on trip generation are incorrect, the appellant’s concerns with the remainder of the traffic analysis are also incorrect. The EIR’s calculation of trips and resultant traffic analysis was complete and conservative. The mitigation measures recommended by the EIR in response to that analysis, which were then required by the Planning Commission as, conditions of approval, are appropriate and adequate given those impacts.
Once a Project’s trip generation is calculated, those trips are added to the existing traffic on the existing roadway network to determine potential intersection impacts. In this case, the EIR’s traffic analysis for the Project is compared to the analysis and information contained in the recently certified City of Brentwood General Plan EIR. That information provided a comprehensive and current context for the Project EIR’s conclusions regarding potential traffic impacts.
Since the General Plan EIR assumed full buildout of planned but undeveloped sites throughout the Brentwood Planning Area, the future traffic forecasts to which the Project-generated traffic was compared, represent a foreseeable worst-case condition. This further demonstrates that the Project EIR’s conclusions regarding potential traffic impacts were conservative and appropriate.
The appellant contends that the EIR should have addressed potential impacts from the Union Pacific Railroad (“Mococo”). The railroad was raised in comments on the Notice of Preparation, and, accordingly, the City considered including analysis of the railroad in the EIR. Ultimately, the EIR did not address the railroad for several reasons. First, the rail line currently serves about one freight train per week and no passenger trains. Plans for eBart service are speculative and unfunded, and CEQA rejects speculative analysis. Finally, the relocation of the Fairview intersection with Lone Tree Way 500 feet to the west (part of the Project) and the construction of a separated grade crossing of the railroad at Lone Tree Way (planned and funded) will ensure that any future rail service has no traffic impact on Lone Tree Way.
East County Action Plan:
The appellant alleges that the EIR does not address the East County Action Plan Traffic Service Delay Objective (the “TSDO”). This is incorrect. The TSDO relates peak-period travel time to off-peak period travel time. The EIR did not incorporate this TSDO element because it included a more detailed intersection level of service analysis using CCTA methodology and standards instead. The EIR employed intersection level of service standards taken from the East County Action Plan, which sets the maximum level of service for Lone Tree Way at LOS D (0.85 v/c ratio). This is the same methodology and level of service standards that the City employed in the recently certified Brentwood General Plan EIR.
Impacts and Mitigations:
Year 2005 and 2025 regionally approved roadways and other circulation improvements were factored into future capacity assumptions for the analysis using methods approved by the CCTA. That same methodology was used for the Brentwood General Plan EIR traffic analysis as well as for the Lone Tree Center EIR.
Using that methodology, the Lone Tree Center EIR concludes that two intersections would be impacted at a potentially significant level by the Project:
• Empire Avenue at Neroly Road (LOS F, Year 2005)
• Lone Tree Way at Empire Avenue (LOS E, Year 2005).
These impacts, however, are reduced from significant to less-than-significant levels by the construction of the already planned and funded Highway 4 Bypass, which will substantially increase overall roadway capacity by diverting trips from local roads. Because the Bypass will not be constructed by the time the Center opens, however, the EIR provides mitigation measures to further reduce the v/c ratio at these intersections to address “interim” traffic impacts until the northern leg of the Bypass link is completed (estimated to occur in 2007). These mitigation measures are presented on page 3.2-26 of the DEIR and incorporated into the Mitigation Monitoring Program and the Project’s conditions of approval. They include:
• Install a traffic signal at the Lone Tree Way/Empire Avenue intersection (already completed);
• Install a traffic signal at the intersection of the main Project driveway and Lone Tree Way;
• Allow only right turn in/right turn out driveways from the Project onto arterials, except where signalized;
• Increase the driveway throat depth to allow for additional queuing;
• Ensure sight distance is maintained at the Project’s main driveway on Lone Tree Way;
• Install stop signs within the project to facilitate flow in and out of the Center; and
• Open segment 1 (north leg) of the Route 4 Bypass.
Further, the Final EIR on page 4-5 states:
“Substantial improvement of the operation of the Empire Avenue/Lone Tree Way intersection could be achieved by widening the southbound side of Empire Avenue sufficiently to accommodate separate left and right turn lanes . . .” The City of Antioch and the City of Brentwood have agreed that the City of Brentwood would act as the lead agency to redesign the southbound approaches for this intersection. Both agencies have also agreed to share the total cost, as appropriate.
Accordingly, the Final EIR recommended, and the Planning Commission required, that the Project fund its fair share of this widening project.
In conclusion, the Project’s traffic analysis is complete, appropriate and in compliance with CEQA and all City, County and other regulations. The EIR recommended, and the Planning Commission required, certain mitigation measures that, when implemented, will result in all Project traffic impacts being reduced to less-than-significant levels.
Appeal Point 2:
Since the EIR’s traffic analysis was incorrect, its air quality analysis related to traffic generated pollutants must also be incorrect.
The Project’s potential air quality impacts are almost completely caused by the traffic it would generate. Accordingly, the EIR’s analysis of potential air quality impacts builds on its traffic analysis. As demonstrated above, the traffic analysis was properly done. Accordingly, the air quality analysis for the operation of the Lone Tree Center is also correct. Table S-1 in the Draft EIR shows that Project emissions of reactive organic compounds and gasses (“ROG”), nitrogen dioxide (“NOx”) and particulate matter (“PM10”) would contribute to future air quality impacts at a less-than-significant level. Potential air quality impacts from project operations are reduced further through Mitigation AQ-2.1 (Draft EIR at 3.3-11), which calls for specific measures using alternative travel modes and trip reduction to be implemented by both the Project developers and operators.
Other air quality impacts can occur from dust and fine particulate matter generated during Project construction. The EIR concludes that dust and emissions due to construction would be less-than-significant. (Draft EIR at S-4, Table S-1; see also Bay Area Air Quality Management District (“BAAQMD”) CEQA Guidelines at 12 (stating that “construction-related impacts are generally short-term in duration, but may still cause adverse air quality impacts. Fine particulate matter (“PM10”) is the pollutant of greatest concern with respect to construction activities” )). Given this, the EIR recommends, and the Planning Commission required, enhanced dust and PM10 control measures as described under mitigation measure AQ-1.1 in Table S-2 of the Draft EIR. These measures would reduce such potential impacts to a less-than-significant level.
Appeal Point 3:
Potential impacts from soil contamination that could be released during construction would not be mitigated to a less-than-significant level.
An addendum in support of the appeal letter (the “Fox Addendum”) contends that potential impacts from existing contaminated soil on the Project site being dispersed into the air during construction were insufficiently discussed and mitigated. This is incorrect. The EIR recommends that the mitigation measures contained in the “Phase 1” soils report prepared by ENGEO be implemented prior to issuance of a building permit for the project (Final EIR at 4-3.). Implementation of these measures would remediate any contaminants found to exist on the site before construction began. Accordingly, the potential impact about which Appellant speculates cannot occur.
Appeal Point 4:
The EIR inappropriately addressed potential impacts and health risks from toxic air contaminants.
Potential impacts from diesel exhaust are fully analyzed as required by various agency standards and all such impacts fall within the required thresholds. Accordingly, no additional health risk assessment is required.
The Fox Addendum alleges that potential impacts from toxic air contaminants (“TAC”), specifically diesel air exhaust, were not adequately addressed in the EIR and that emissions of these substances from project construction and operation would exceed significance thresholds established by the BAAQMD potentially causing health risks. Accordingly, the appellant claims that additional mitigation should be required.
There are no BAAQMD standards currently regulating toxics emitted by diesel engines at construction sites or in vehicles making deliveries. The State has adopted various regulations that would reduce diesel emissions in the overall fleet of diesel-fueled vehicles statewide, but there are no standards for individual operations. The State initiative is focused on vehicle characteristics, and not land uses, and includes new standards for diesel fuel, emission standards, and inspection and maintenance requirements. Implementation of these measures is beneficial with respect to the Project, to the extent that they reduce TAC emissions. (See State Air Resource Board (“ARB”) “Risk Reduction Plan to Reduce Particulate Matter Emissions from Diesel-Fueled Engines and Vehicles” (Oct. 2000).) However, the standards that Appellant claims the project would violate do not exist.
The Fox Addendum fails to acknowledge that the major concern with airborne toxics from diesel emissions is along heavily traveled transportation corridors and around permanent facilities such as truck depots with a high, on-going concentration of diesel-fueled vehicles. The Lone Tree Center does not fit this model. The analysis in the Fox Addendum assumes 154 truck trips per day associated with Project operations. This is unsupported. The Fox Addendum’s assumed number of truck trips appears to be calculated by multiplying the statewide ratio of diesel-fueled vehicles to the total fleet of vehicles by the number of vehicle trips that the Appellant erroneously claims the Project will generate (see Section II.A). (See Fox Addendum at 9, Tab. 1.) This calculation, falsely assumes that the project would draw the same ratio of trucks to cars as exists generally statewide. The project, however, is primarily a retail facility, and while it will receive deliveries by diesel truck, the vast majority of vehicle trips associated with the Project will be customer cars. Thus, contrary to Appellant’s claim, given the minimal amount of TAC emissions the project operation will not create health risks.
With regard to construction, sources of air quality impacts are from the disturbance of soil and demolition of buildings, and from the operation of construction equipment. Potential impacts from soil disturbance are addressed in Section II.A and the Project does not include any demolition.
With respect to construction equipment emissions, construction equipment emits carbon monoxide and ozone precursors. (BAAQMD CEQA Guidelines at 12.) However, these emissions are included in the emissions inventory that is the basis for regional air quality plans, and are not expected to impede attainment or maintenance of ozone and carbon monoxide standards in the Bay Area. Accordingly, the BAAQMD CEQA Guidelines state that “if all of the control measures indicated in Table 2 will be implemented, then air pollutant emissions from construction activities would be considered a less than significant impact.” This is the case with the Lone Tree Center Project.
Further, an air quality analysis of construction emissions is not required or expected under the BAAQMD CEQA Guidelines. The BAAQMD makes a distinction between stationary sources of TAC, such as laboratories or manufacturing facilities, and vehicles. It regulates and issues permits on the former, but not the latter. Consistent with this, the BAAQMD CEQA Guidelines state that “the District does not expect Lead Agencies to provide detailed quantification of construction emissions. Similarly, Lead Agencies need not quantify emission reductions from construction-related mitigation measures.” (BAAQMD CEQA Guidelines at 53).
The Fox Addendum notes that a “sensitive receptor” (the La Paloma Continuation High School) is located approximately 100 feet south of the site. What the appellant fails to mention, however, is that the 100-foot distance is measured from the edge of the Project site. The center of the site is 600 feet further north, away from the school. Relatively little construction activity would occur at the southern boundary of the site nearest the school. It is more appropriate to consider impacts on an “average” basis, occurring at the center of the site. When this is done, it is clear that the Project will not have air quality impacts on the High School. Also, the reason schools are generally considered to be a “sensitive receptor” is because certain pollutants affect small children more severely than adults. Small children do not attend high school, therefore the La Paloma Continuation High School’s designation as sensitive receptor is marginal. Nonetheless, the EIR took the conservative approach and so designated the school as a sensitive receptor for analysis purposes. (Draft EIR at 3.3-5.)
The appellant cites Berkeley Keep Jets Over the Bay Committee v. Board of Port Commissioners for its contention that the EIR is inadequate for failing to perform a full health risk assessment related to TAC emissions. (Fox Addendum at 8, Appeal Letter at 9 citing 91 Cal.App.4th 1344 (2001).) This citation is inapplicable here. In Berkeley Keep Jets, there was substantial evidence that the project at issue could have significant air quality impacts, including TAC emissions. In light of that, the court held that the EIR was inadequate for failing to perform a health risk assessment. Here there are no potentially significant air quality impacts including from TACs. Accordingly, a health risk assessment need not be prepared.
The appellant contends that the carbon monoxide (“CO”) emissions from the Project will exceed the regional threshold. The Fox Addendum, however, misstates the application of these values because it uses the overstated trip assumptions refuted in Section II.A, and claims that exceedence of 550 pounds per day of CO constitutes a significant impact. In fact, the BAAQMD identifies 550 pounds per day of CO as the threshold at which localized CO concentrations should be examined. (BAAQMD CEQA Guidelines at 15.) This localized evaluation was performed in the EIR, which ultimately demonstrated that less-than-significant impacts would occur. (Draft EIR at 3.3-12 - 3.3-13).
The Fox Addendum expresses concern over the potential for natural gas to migrate from the Brentwood Oil and Gas Field (the “Field”) and seep into buildings, creating a hazard. This concern is based on speculation that is contrary to the facts. After considering this situation in the Initial Study and determining that it was speculative (Draft EIR, Appendix A (Initial Study) at 20), the EIR properly excluded such analysis because evaluating a speculative occurrence is contrary to CEQA Guideline 15145, and because there is no evidence that such an impact would occur.
The Project site is about 700 feet east of the Field, and gas in the Field is not found near the surface but instead occurs up to several thousand feet below the surface. There are no existing active or abandoned gas wells on the Project site that could provide a pathway for migration of gas to the site and the proposed buildings are on slab foundations built on compacted subsoil. Further, there is no history of this type of problem in the area. For all these reasons, such a hazard is unlikely to occur on the Project site.
Appeal Point 5:
The appeal assumes that making an offer to connect existing adjacent residences that are operating on septic systems into the public sewer system would be growthinducing. This is incorrect because the residences in question already exist (with septic tanks) adjacent to the Lone Tree Center. Connecting existing homes into the public sewer system would not open up new areas for development since the opportunity is being offered only to already developed adjacent properties. Instead, it would only provide an environmentally superior alternative to the existing condition.
Appeal Point 6:
Mitigation Measures were not included in the Conditions of Approval
The appellant is completely wrong. The mitigation measures recommended by the EIR were incorporated into the Project’s conditions of approval. Furthermore, due to the appeals, the City Council is rehearing, and potentially re-approving the proposed Project. Should the City Council approve the Project, the draft conditions of approval include the mitigation measures recommended by the EIR to bring potential project impacts to a less-than-significant level.
Erratum to the Lone Tree Center EIR:
Analysis of cumulative impacts of the Lone Tree Center made use, in part, of the General Plan Update DEIR. During preparation of the Final EIR for the Lone Tree Center, which included revisions to the DEIR text, revisions that had occurred in the General Plan Update DEIR (as part of that document’s FEIR) failed to be included as revisions to the Lone Tree Center DEIR as well.
Consequently, Section 5.4 Cumulative Impacts of the Lone Tree Center DEIR (2001072016), October 16, 2001, erroneously identified three cumulative impacts as Potentially Significant (PS) when they should have been identified as Less Than Significant (LTS). The three cumulative impact topics were air quality, energy consumption, and hydrology and water quality.
All of these topics were addressed in the Brentwood General Plan Update EIR. Indeed, these topics should have been omitted from discussion in the Lone Tree Center DEIR altogether, per CEQA Guidelines Section 15130 (e), which states “if a cumulative impact was adequately addressed in a prior EIR for a community plan, zoning action, or general plan, and the project is consistent with that plan or action, then an EIR for such a project should not further analyze that cumulative impact…”
Brentwood’s Conditions of Approval for projects include requirements for energy efficiency in excess of Title 24, requirements for large developments to have a traffic management strategy to reduce car trips (and air impacts), and requirements for on-site attention to stormwater water quality issues. These all contribute to making these LTS cumulative impacts.
The Brentwood General Plan recognizes the potential significance of cumulative air quality and water quality issues related to development. Additional Recommended Mitigation Measures are presented in the General Plan Update EIR to address these air and water quality impacts, as noted below.
With regard to air quality, additional Recommended Mitigation Measures in the General Plan Update EIR include Mitigation Measures AQ-2.1, 2.2, 2.3, 4.1, and 4.5, at pages 3.5-13 through 17. In addition, the Bay Area Air Quality Management District CEQA Guidelines state that if a project has a LTS impact, then the cumulative impact is also considered LTS.
With regard to water quality, Mitigation Measures include HY-2.1 and 4.1, at pages 3.12-13 and 14 of the General Plan Update EIR. These measures require as part of the conditions for approval that development install certain runoff management devices that reduce water quality impacts. These reduce impacts to a LTS level.
Energy is addressed in the General Plan Update FEIR at page 4-23, where it is determined that energy impacts are LTS because of the City’s adopted Residential Growth Management Program, which, among other factors, requires energy conservation measures over and above those required by California’s Title 24.
Projected Sales Tax $426,000
Projected Property Tax $28,000
Total Revenue to the City $454,000 per year plus 350 jobs which will generate additional direct and indirect economic impact.
Where residential development is a drain on City revenues, commercial projects, like this, generate the revenues necessary to fund vital city services such as, Police and the third Firefighter previously approved by the City Council. The positive cash flow from this project over and above cost of services will be in excess of $400,000 per year.
1. City Council Resolution No. ___
2. Access Agreement
“ATTACHMENT 1 ”
RESOLUTION NO. _____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD TO CERTIFY THE ENVIRONMENTAL IMPACT REPORT AND UPHOLDING THE PLANNING COMMISSION’S APPROVAL BY DENYING ALL APPEALS OF DESIGN REVIEW NO 01-32 AND APPROVE THE PROJECT TO CONSTRUCT A 179,500 SQ. FT. SHOPPING CENTER LOCATED NORTH OF LONE TREE WAY AND EAST OF EMPIRE AVENUE.
WHEREAS, on February 5, 2002, the Planning Commission conducted a public hearing and approved Design Review No. 01-32 to allow for the construction of a 179,500 sq. ft. shopping center; and
WHEREAS, an Environmental Impact Report (EIR) has been prepared for this project in accordance with the California Environmental Quality Act (CEQA) and was considered as a part of the review and approval process. The EIR identified potentially significant environmental effects associated with the proposed project which can be feasibly mitigated or avoided and those mitigated measures were included in the project conditions of approval and would reduce the impacts identified to a less than significant level; and
WHEREAS, the City of Brentwood Planning Commission certified the Final Environmental Impact Report for the Lone Tree Center and approved the Project on February 5, 2002.
WHEREAS, the City Council has held a public hearing and considered all of the appeals, and all oral and written testimony presented at the April 9, 2002, April 23, 2002 and May 28, 2002 Council meeting; and
WHEREAS, various appeals were filed, including two filed by Mayor Michael McPoland on February 11, 2002 and Ms. Lucia Albers, the owner of the adjacent property, on February 13, 2002.of the Planning Commission’s approval of the Lone Tree Center were filed with the City of Brentwood on the basis that additional access should be provided between the Lone Tree Center and adjacent property to the east.
WHEREAS, the Brentwood City Council hereby rejects all appeals that allege inadequate access as there is no evidence in the record to support requiring the dedication of additional access drives between the Lone Tree Center and the adjacent Albers property. Without such justification, the City may not require such a dedication.
WHEREAS, an appeal was filed by the law firm of Adams Broadwell Joseph and Cardozo on behalf of the United Food and Commercial Workers Union (“UFCW”) Local 1179 on February 19, 2002, disagreeing with the conclusions of the Lone Tree Center Environmental Impact Report with regard to traffic and air quality issues.
WHEREAS, the City Council has considered the issues raised in various appeals and the staff’s analysis, and rejects this appeal for the following reasons:
• The traffic analysis in the Lone Tree Center EIR used the appropriate trip generation rate.
• Because the trip generation rates were correct, the traffic analysis accurately predicted potential traffic impacts from the project and the mitigation measures required by the Planning Commission are appropriate.
• The City of Brentwood considered including an analysis of the Union Pacific Railroad (“Mococo”) in the Lone Tree Center EIR, but ultimately excluded it from environmental analysis because the rail line currently serves only about one freight train per week and no passenger trains; plans for eBart service are speculative and unfunded; and the relocation of the Fairview intersection with Lone Tree Way 500 feet to the west (part of the Project) and the construction of a separated grade crossing of the railroad at Lone Tree Way (planned and funded) will ensure that any future rail service has no impact traffic on Lone Tree Way.
• The EIR properly addressed the East County Action Plan because it included a more detailed intersection level of service analysis than the Traffic Service Delay Objective and it employed intersection level of service standards taken from the East County Action Plan.
• The Project’s potential air quality impacts are due primarily to the traffic it would generate. Accordingly, the EIR’s analysis of potential air quality impacts builds on its traffic analysis. Because the EIR’s traffic analysis was correct, the analysis of potential air quality impacts related to traffic generated pollutants is also correct.
• The EIR recommends that the mitigation measures contained in the “Phase 1” soils report prepared by ENGEO be implemented prior to issuance of a building permit for the Project. These measures will minimize the possibility of inadvertently disturbing any existing pollutants in the soil. Therefore, potential impacts from existing soil contamination that could be released during construction will be mitigated to less-than-significant levels.
• Because toxic air contaminant emissions from Project operation (traffic) and construction are de minimis, there is no need to further evaluate the potential health effects of the Project.
• The Bay Area Air Quality Management District identifies 550 pounds per day of carbon monoxide as the threshold at which localized carbon monoxide concentrations should be examined, rather than as a threshold for a significant impact. The Draft EIR included the required examination.
• Appellant’s contentions regarding potential gas migration impacts are unfounded because the Project site is about 700 feet east of the Field, and gas in the Field is not found near the surface but instead occurs up to several thousand feet below the surface. There are no existing active or abandoned gas wells on the Project site that could provide a pathway for migration of gas to the site and the proposed buildings are on slab foundations built on compacted subsoil. Further, there is no history of this type of problem in the area.
• The appeal incorrectly states that offering existing adjacent residents an opportunity to connect into a municipal sanitary sewer system is growth inducing. Connecting existing homes into the public sewer system would not open up new areas for development since the opportunity is being offered only to already developed adjacent properties.
• Contrary to Appellant’s contention, the mitigation measures recommended by the EIR were incorporated into the Project’s conditions of approval.
NOW THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood rejects all appeals of the Planning Commission’s certification of the Lone Tree Center Final EIR and approval of the Project.
NOW, THEREFORE, BE IT FURTHER RESOLVED that the City Council of the City of Brentwood does hereby adopt Resolution No. ____ certifying the EIR, upholding the Planning Commission’s approval of Design Review No. 01-32, denying all of the appeals, and approving the project by making the following findings:
1. The location, design, and operating characteristics of the proposed use as conditioned will not adversely affect abutting properties and the surrounding neighborhood because the proposed shopping center is located within Special Planning Area F envisioned in the General Plan as a future employment center for the city; and
2. The harmony, bulk, and scale of the proposed project is consistent with and compatible with existing and planned land uses around the subject site because the proposed shopping center is zoned Planned Development No. 38 which allows for the development of business parks and commercial uses; and
3. The subject site, as conditioned, and attached hereto will have adequate public facilities and utilities and service access because these improvements will be completed as part of the project; and
4. Pursuant to Section 15090 of CEQA, the Final EIR has been completed in compliance with CEQA. The Final EIR was presented to the City Council and Council reviewed and considered the information contained in the Final EIR prior to approving the project. Pursuant to Section 15168 (c) and 15162 of the CEQA Guidelines, the City Council finds that the project was within the scope of the development levels evaluated in the EIR for the Lone Tree Center. The EIR has further evaluated potential specific impacts to the environment. Based upon the EIR, as more fully set forth in the CEQA Findings attached hereto (Attachment A), the City Council finds that the project will not have any significant environmental impacts that were not studied in the EIR to the project and therefore, since the mitigation measures are incorporated as conditions to the approval of the project, the EIR for the Lone Tree Center is adequate for all approvals relating to the project.
PASSED by the City Council of the City of Brentwood at its regular meeting on the 28th day of May, 2002, by the following vote:
Michael A. McPoland, Sr., Mayor
Karen Diaz, CCM
CONDITIONS OF APPROVAL
TENTATIVE PARCEL MAP MS 362-02
DESIGN REVIEW NO. 01-32
TENTATIVE PARCEL MAP
1. Final maps shall be submitted to the City for review and approval. Maps shall be prepared, wet signed and sealed by a civil engineer or land surveyor, registered in the State of California and licensed to prepare final maps.
2. Underground utilities shall be installed in conformance with existing City policy including without limitation Subdivision and Land Development Ordinance (Section 16.120.120).
3. Meters, hydrants, poles, etc. shall be located clear of the sidewalk and driveways or as determined by the City Engineer. Final locations and the number of such facilities shall be determined at the time the improvement plans are reviewed.
4. All stub end streets planned for future continuation and undeveloped cul-de-sacs shall be temporarily protected with warning barricades and redwood headers to be approved by the City Engineer.
5. Except as shown on the approved Map and as may be modified by the conditions contained herein, all street and thoroughfare or highway improvements shall be constructed as required in the Brentwood Municipal Code and the City Engineering Department’s Standard Plans and Specifications. Any adopted precise section not referenced in the General Plan shall be constructed as directed by the City Engineer.
6. Each lot or parcel shall drain into a street or public drain to the approval of the City Engineer in such a manner that there will be no undrained depressions.
7. Any portion of the drainage system that conveys runoff from public streets shall be installed within a dedicated drainage easement or public street.
8. The developer shall provide joint trenching for telephone, gas, electric, cable TV and fiber optic service for every lot.
9. All improvements, public and private, shall be designed and constructed in accordance with the most recent edition of the Standard Plans and Specifications and the Engineering Procedures Manual of the City of Brentwood and all applicable state and local ordinances, standards and requirements. Should a conflict arise, the governing specification shall be determined by the City Engineer.
10. Developer shall insure finished pad elevations are at a minimum one foot above the 100-year base flood elevation as shown on the latest Flood Emergency Management Association (FEMA) floodplain maps for Contra Costa County, California. The developer shall be responsible for all necessary activities, applications, documentation and costs to amend floodplain maps for their development. (Letter of Map Amendment Revision (LOMAR)).
11. Regional and Subregional Drainage fees shall be paid in an amount acceptable to the Contra Costa County Flood Control and Water Conservation District, and the City Engineer prior to approval of the final map.
12. To the extent applicable, the developer shall have an amended assessment diagram approved by the City Engineer.
13. In accordance with the Community Facilities Element of the City’s General Plan, the environmental review prepared for this map, and the regulations of the applicable school districts, the Developer shall demonstrate that adequate provision is made for school facilities. To the extent permitted by law, this may include the payment of school facility mitigation fees adopted by the applicable school districts, or alternative financial arrangements negotiated by agreement between the Developer and the applicable school districts.
14. All streets and alleys shall be irrevocably offered for dedication and improved to City standards. Street names shall be reflected on the final map and shall be approved by the Community Development Department.
15. Detailed plans reflecting the design and construction of all public infrastructure improvements for street, sewer, water, fiber optics and storm drain, both on- and off-site, shall be in conformance with the adopted Infrastructure Master Plans and as directed by the City Engineer. Developer shall have written approval from the City Engineer for any variations from the City’s Master Plans prior to any final map or plan approval.
16. The Developer shall form or annex into a street lighting and landscape maintenance district, or some alternative financing mechanism acceptable to the City, for maintenance of all street lights and landscaping within or adjacent to the site.
17. In conjunction with the recordation of the map (or by separate instrument), the developer shall provide all necessary easements for streets, alleys, sewer and water facilities, utilities and drainage facilities, irrigation district facilities, fiber optics and other facilities as required by the City or serving utility. Utility easements shall be a minimum of a clear fifteen feet (15’) for one utility and a clear twenty feet (20’) for two or more utilities or as specified by basic engineering design guidelines. Easements shall not be split between property lines unless determined otherwise by the City Engineer. The easement widths identified are minimums and in certain circumstances, additional easement widths may be required as determined by the City Engineer.
18. Subsurface water rights shall be dedicated to the City of Brentwood on the final map.
19. All on and off site development and improvements shall be designed and constructed at the sole expense of the Developer. Developer may apply for reimbursement for those improvements deemed eligible by the City Engineer as oversized in accordance with the City’s laws and the State Subdivision Map Act in effect at the time of the developer’s application for reimbursement to the City Council. Any such application must be presented, if at all, to the City Council on or before the City records the first final map. The City’s method of reimbursement shall not be limited, and may be memorialized through a reimbursement agreement with the Developer.
20. The developer shall comply with Government Code Section 66436(a)(3) before approval of each final map, and shall provide “no objection” letters from the public entity or utility to the satisfaction of the City Engineer.
21. To the extent applicable under the City’s laws, the developer shall participate in the City’s Capital Improvement Financing Plan to finance required infrastructure.
22. With respect to any claim, action of proceeding against the City, its officials, employees or agents relating to the action or inaction of the City in reviewing, approving or denying the tentative or final maps, the Developer shall defend, indemnify and hold harmless the city, its officials, employees and agents from any claim, action or proceeding to attack, set aside, void or annul an approval of the City concerning a subdivision. With respect to all other claims, actions or proceedings relating to or arising from this subdivision, including without limitation those concerning environmental review, subsequent permit decisions, personal injury, death, property damage or inverse condemnation, the Developer shall also defend, indemnify and hold harmless the City, its officials, employees and agents. The City retains the option to employ independent defense counsel at Developer’s expense. The Developer shall bear the litigation expenses of defense, including attorneys’ fees, whether incurred by Developer or the City’s counsel, or awarded to any third party. The City must pre-approve any decision in the action, including settlement, in which the City’s participation or performance is required.
23. The City shall be given an 18” x 26” photo mylar of the recorded map and an electronic file in a form which can be imported into AutoCad, Version 14 and configured as specified in the City’s Engineering Procedures Manual prior to acceptance of public improvements.
24. All activities undertaken in accordance with this parcel map shall comply with the City’s General Plan and Municipal Code. In cases of conflict between the City’s Municipal Code or map-specific conditions of approval, the governing priority shall be, to the extent legally permitted, as follows: 1) map-specific conditions; 2) Municipal Code regulations.
25. In addition to otherwise applicable development fees, if this property is located within an existing or a proposed Benefit District, the Developer shall pay the Benefit District fee as set forth in the Engineers Report for the applicable Benefit District. Fees shall be charged and paid at the time of building permit issuance. The fee may be adjusted over time by an amount equal to the annual rate of inflation set forth in the Engineering News Record Construction Cost Index.
26. If it is determined that the project will impact existing agricultural uses, the mitigation of impacts on these agricultural uses are to conclusively show that there will be no impacts to the satisfaction of the Community Development Director.
27. Any Conditions, Covenants, and Restrictions (CC&R's) are subject to City review and approval. CC&Rs shall also contain language to provide for common area maintenance and shared costs for electricity for parking lot lights, utilities such as water and landscaping and repairs to the property such as asphalt and concrete. Said CC&R’s shall also contain language addressing the times for truck deliveries of the individual buildings, related to Design Review Condition # 5, attached hereto.
28. Developer shall pay the Habitat Conservation Fee, as established by the City Council prior to issuance of any building permit for these lots.
29. Developer shall request the formation of a Habitat Conservation Maintenance District prior to issuance of building permit and/or shall include an annual assessment in the project LLD for this purpose which shall be initially set at $50.00 per lot, per year for residential lots or an equivalent amount based on lot size.
30. Right of way or easement acquisitions necessary to implement any portion of this map, including public improvements, shall be obtained by the Developer at its sole expense prior to the City's consideration of the final map, which encompasses the particular improvement. The developer shall notify the City in writing no more than 120 days and no less than 60 days in advance of filing the final map related to the acquisition if City assistance is needed to complete the acquisition pursuant to Government Code Section 66462.5. Funds in an amount of 100% of the estimated acquisition costs shall be deposited with the City to cover appraisal, right of way agent, and legal fees and costs incurred to secure the necessary property.
31. The applicant shall provide and show on the final map all necessary easements for access, streets, alleys, sewer and water facilities, utilities and drainage facilities, irrigation facilities and other facilities as requested by the City.
32. The final parcel map and all related documents shall comply with all regulations and requirements of the Brentwood Subdivision and Land Development Ordinance.
33. Developer shall dedicate right-of-way for Lone Tree Way 82-feet wide (as shown on TSM 8617 prepared by McGill, Martin, Self dated January 17, 2002) from the centerline of improvements along the entire project frontage within 30 days of approval of the tentative map.
34. The developer shall design and construct a traffic signal in Lone Tree Way at the main entrance to the shopping center to the satisfaction of the City Engineer prior to occupancy of any building. The design construction and maintenance of this facility will be the developer’s financial responsibility. Developer shall provide the necessary easements along the main entrance for operation and maintenance of the traffic signal to the satisfaction of the City Engineer. A prorated share of the design, construction and maintenance costs for this traffic signal, based on building square footage, shall be paid by adjacent developments prior to their building occupancy and shall be to the satisfaction of the City Engineer.
35. Developer shall improve Lone Tree Way, from the realigned Fairview intersection west to the Empire intersection, as an arterial street with full improvements on the north half (including an additional third lane), a complete 16-foot wide median and one eastbound lane on the south side of the median prior to any occupancy or as a portion of the Northwest Quadrant CIFP at the discretion of the City Engineer. All improvements shall be to the satisfaction of the City Engineer. A portion of the cost of these improvements along the property frontage will be fee creditable per the City’s Development Fee Program. The cost of improvements (including the cost of necessary storm drain improvements) beyond the property frontage will be reimbursable through the Northwest Quadrant CIFP within 6 months from the acceptance of improvements by the City Engineer. Right-of-way beyond the project frontage will be obtained by the City.
36. Developer shall install complete irrigation system and landscaping in the median and parkway area along the project’s entire Lone Tree Way frontage to the satisfaction of the City Engineer and the Parks and Recreation Director. The maintenance of these improvements and the costs associated with all street lighting shall be included into the Landscaping and Lighting District for this TSM.
37. Developer shall acquire and dedicate necessary right-of-way and construct DA -30C Storm Drain Line A-4 along the project frontage and connect Line A-3 to the existing 54-inch line on the south side of Lone Tree Way to the satisfaction of Contra Costa County Flood Control and Water Conservation District and the City Engineer prior to issuance of any building occupancy. A portion of the cost of these improvements will be fee creditable or reimbursable as approved by Contra Costa County Flood Control and Water Conservation District.
38. Developer shall acquire necessary right-of-way and construct their fair share of DA -30C detention basin (located on the East side of Fairview Avenue) to the satisfaction of Contra Costa County Flood Control and Water Conservation District and the City Engineer prior to issuance of any building occupancy. A Portion of the cost of these improvements and right-of-way acquisition will be fee creditable/reimbursable as approved by Contra Costa County Flood Control and Water Conservation District.
39. The developer shall include a master drainage plan with the first plan check submittal. The subdivision’s master drainage plan shall show enough detail to address mitigation of impacts on existing agricultural uses or to conclusively show that there will be no impacts to the satisfaction of the City Engineer.
40. Developer shall provide a hydrology study prepared by a registered Civil Engineer (State of California), including recommended drainage improvements consistent with the City’s Master Drainage Plan to the satisfaction of the City Engineer. As a part of, or in addition to, developer shall also accept and address the drainage from upstream properties to the satisfaction of the City Engineer prior to any plan approvals.
41. A portion of the Master Plan Infrastructure constructed, as a part of this development is fee creditable per the current Development Fee Program. Calculations of the exact fee credits will be prepared by the office of the City Engineer, credits will be based on the Development Fee Program as adopted by the City Council and in effect at the time of construction of this project.
42. Developer shall coordinate with property owners along the boundaries of this project for any grading/improvements/fence work to the satisfaction of the City Engineer.
43. The developer shall design and construct the potable water and sanitary sewer lines across this project site to serve the upstream future projects. These lines shall be extended to either the northerly or westerly property line to the satisfaction of the City Engineer. Any maintenance easements necessary for these lines will be dedicated at no cost to the City to the satisfaction of the city Engineer.
44. Developer shall relinquish all access rights along Lone Tree Way to the City of Brentwood, except for the three entrance locations as shown on TSM 8617 prepared by McGill, Martin, Self, Inc. dated January 17, 2002, and as approved by the City Engineer.
45. Developer shall pay the regional drainage fees and the sub-regional drainage fees (equivalent to the regional drainage fees) as required by Contra Costa County Flood Control and Water Conservation District and the City Engineer prior to issuance of building permit.
46. Developer shall install traffic signal interconnect conduit along the project’s Lone Tree Way frontage to connect the signal to be constructed at the main entrance of this project to the signals at Empire Avenue and the realigned Fairview Avenue to the satisfaction of the City Engineer.
47. Developer shall construct the three access connections to Lone Tree Way (as shown on TSM 8617 prepared by McGill, Martin, Self dated January 17, 2002) prior to occupancy of any building. These improvements will be to the satisfaction of the City Engineer.
48. The applicant shall do the following:
Due to the General Plan SPA “F” requirement for proper access among the properties within the SPA “F” boundaries, the abutting properties shall share access across the applicant’s property as shown generally in the approved plan. The precise alignment of the loop roadway from the traffic signal at the intersection of Fairview /Lone Tree Way and the traffic signal at the applicant’s property as shown on in the approved plan shall be determined by the City Engineer. The applicant shall dedicate mutual access easements at least 40 feet wide at a point just north of Lone Tree Way on the east side and at another point on the east side near Building C, as well as at one point at least 40 feet wide on the west side, again as shown in the approved plan for this site.
Applicant shall be required to grant the mutual access easement only if the abutting property owners agree to execute a reimbursement agreement that provides for its pro-rata (based on ADT) share of the traffic signal installations at the central driveway and Lone Tree Way and the traffic signal at Lone Tree and Fairview Avenue. The reimbursement agreement for the mutual access easement shall also provide for the common annual and long term replacement maintenance costs of the private access based upon the pro rata share of the traffic of the private access easement roadway (ADT). If there is a dispute between the two or more properties as to the terms of the reimbursement agreement, the City Manager shall be the final arbitrator of any disputes provision in the reimbursement agreement. The applicant and its successors in interest, assigns, and beneficiaries agree that there shall be no appeal of the City Manager’s determination.
49. At the time of recordation of the Final Map, the applicant shall pay the required agricultural mitigation fee adopted by the City Council. For non-residential projects that the City Council determines important for economic development purposes, some or all of the mitigation requirements of the Zoning Ordinance may be waived.
50. The points of connection to adjacent properties shall be provided as described in the cross access easement Condition of Approval No. 50 and constructed to the satisfaction of the City Engineer.
51. Developer shall fund their fair share of the design, right-of-way acquisition and construction of Storm Drain Line A-3 from the property frontage to DA-30C detention basin prior to building occupancy to the satisfaction of Contra Costa County Flood Control and Water Conservation District and the City Engineer.
52. Developer shall send registered letters to property owners of all adjoining lots without Lone Tree Way frontage, asking if they desire and are willing to pay for sewer and water service to their property. Adjoining owners that respond affirmatively must pay the developer for all costs of construction to extend sewer and water to their property line as well as pay the City sewer and water connection fees. Both costs must be paid to receive service. The developer shall record private utility easements as needed in favor of the adjoining properties requesting and paying for this service. Owners requesting this service shall respond within 30 days of receipt of letter and shall pay for construction of utilities prior to commencement of on-site work by the developer. If no such payments are made as noted within a mutually agreeable timeframe, the developer’s obligation is terminated.
53. Developer shall install oil/water separator (CDS system or equivalent) in the parking lot area immediately upstream of connection to the City’s storm water system to the satisfaction of the City Engineer.
54. The secondary access driveway located on the southeast corner of the property shall be constructed as a 60 foot wide driveway, 30 feet on the applicant’s property and 30 feet on the adjacent property. This driveway shall be constructed to the satisfaction of the City Engineer.
55. The applicant shall install the current technology for IP Video Systems as a portion of the overall security systems/plans. These security plans shall be reviewed and approved by the City of Brentwood’s Police Department (Chief of Police or designee) prior to occupancy. In addition the applicant shall provide, at the request of the Police Department, the installation of IP access point antenna(s) as needed to facilitate IP Video transmission.
56. All large truck deliveries to the Lone Tree Center site shall utilize a signalized intersection on Lone Tree Way for ingress to the site. This can be achieved either via the center signalized intersection on the Lone Tree Center site; or as the northerly extension of Fairview is constructed through to the Lone Tree Center through the Moita and Albers properties, large truck deliveries can utilize this Fairview Extension for ingress. The Community Development Director shall have the authority to approve any minor site plan changes necessary to accommodate this traffic pattern. If the Lone Tree Center and Albers properties develop simultaneously, the applicant shall work with the Community Development Director to enter into the necessary agreements for relocation of the easterly driveway to be a shared driveway with the Albers property. The intent is for the driveway to be centered on the property line.
57. Prior to the occupancy of any building on the parcel or the recordation of a final Subdivision Map, which ever occurs first, the developer shall record utility, emergency vehicle, and vehicle access easements in favor of the property owner to the east (APN 019-010-009).
The easements over this property shall be recorded prior to the occupancy or recordation of the Final Map whether or not the project to the east is approved on that date.
These easements shall contain agreements to share equitably in the maintenance costs of the easements and if there is a dispute about the allocation of costs between or among the parcels benefiting from these easements or other parcels that may utilize the easements, City Manager of the City of Brentwood shall resolve any and all disputes concerning the easements, including but not limited to, location, costs, and maintenance.
1. The Developer shall comply with the standard Conditions of Approval for Commercial Design Review, dated January 2001, hereby incorporated by reference, unless modified by the Planning Commission.
2. A Conditional Use Permit shall be required for any seasonal outdoor sales occurring within this shopping center. The placing of automobiles, within the shopping center site, for the purpose of selling is prohibited. No outdoor storage shall be allowed within this shopping center.
3. The applicant shall construct several evenly spaced benches with a trellis feature along the pedestrian walkway between the two Major buildings and the rest of the shopping center.
4. The project shall be built substantially in conformance with the plans drawn by Nadel Architects Inc. and McGrill, Martin and Self, Inc., dated January 18, 2002, unless otherwise amended by the Conditions of Approval contained herein.
5. All Mitigation Measures and the Mitigation Monitoring Program contained in the Environmental Impact Report are hereby made a part of these Conditions of Approval, except that truck deliveries are permitted in the evening for Winco, since there are no residential uses in proximity to that loading dock.
6. The applicant shall provide to the City a copy of the CCR”s showing the Reciprocal Parking Agreement and the Cross Access Easement prior to occupancy of any of the buildings. Said CC&R’s shall include language dealing with the type of outdoor seating and tables that cannot be used within this shopping center.
7. The maximum height for the freestanding center identification sign is 15 feet.
8. The applicant shall bring back to the Planning Commission, for review and approval, the bench and trellis design that will be used on the pedestrian pathway between the two major buildings and the rest of the center.
9. The applicant shall use a decorative wrought iron fence along the easterly property line between this property and the adjacent property. Said fence design shall come back to the Planning Commission for review and approval. Once the adjacent property to the east develops said fence may be removed.
10. The applicant shall submit to the Community Development Department a complete revised set of plans showing all of the Planning Commission required changes.
11. The applicant shall bring back to the Planning Commission, for review and approval, a new roof design with concrete tile roof material and a better metal roof design so the Commissioners can compare the two roofing material together.
12. The applicant shall pay all outstanding environmental and peer review fees prior to issuance of any building