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CITY COUNCIL AGENDA ITEM NO. 39

Meeting Date: November 13, 2007

Subject/Title: Public hearing on an amendment to condition of approval number 23 of City Council Resolution No. 2007-70 for an approved tentative subdivision map (TSM 8446) in regard to property located at 1060 Minnesota Avenue (APN 017-080-007).

Prepared by: Debbie Hill, Associate Planner

Submitted by: Howard Sword, Community Development Director

RECOMMENDATION
Staff recommends that the City Council approve an amendment to the conditions of approval for approved Tentative Subdivision Map 8446 modifying condition of approval number 23 of City Council Resolution No. 2007-70 regarding soil sampling for and remediation of hazardous materials on the project site.

PREVIOUS ACTIONS
• Planning Commission denial of an appeal filed by D. Bailey Neff of the Community Development Department’s decision that the application for TSM 8446 was incomplete on October 3, 2006.
• City Council denial of an appeal filed by D. Bailey Neff of the Planning Commission’s denial of an appeal of the Community Development Department’s decision that the application for TSM 8446 was incomplete on October 24, 2006.
• Planning Commission approval of TSM 8446 on March 6, 2007.
• City Council denial of an appeal filed by D. Bailey Neff of the Planning Commission’s approval of TSM 8446 on April 10, 2007.

BACKGROUND
On March 6, 2007, the Planning Commission approved a tentative subdivision map (TSM 8446) filed by D. Bailey Neff of Minnesota Rentals to subdivide his property located at 1060 Minnesota Avenue into 8 lots. This approval included various conditions of approval to which Mr. Neff objected. Mr. Neff filed an appeal of this approval to the City Council, which was heard at their April 7, 2007, meeting. The City Council upheld the Planning Commission action and left the conditions of approval on the tentative subdivision map as originally conditioned.

Subsequent to the above action, Mr. Neff filed a lawsuit against the City, and the City agreed to hold a public hearing in order to consider a change to one condition of approval for TSM 8446, specifically condition of approval number 23 in regard to soil sampling for and remediation of hazardous materials on the project site.

ANALYSIS
Condition of approval number 23 for TSM 8446 requires the developer to conduct what is called a Phase II Environmental Site Assessment which would include test borings on the project site for any hazardous materials or contaminants that could be within the project soils. At the time of processing the tentative map application, the City received a Phase I Environmental Site Assessment as part of the application submittal materials. Environmental site assessments for residential projects are routinely required by the City to ensure that no soil contamination, and possibly groundwater contamination, is on the project site. The document required by the City and prepared by Quest Geosystems Management concluded that no further investigation of the site appeared warranted. However, one of the appendices to this report was a prior site assessment prepared by Engeo Incorporated dated February 7, 1989. The Engeo report specifically cited an interview with Dick Mello, then Deputy Agricultural Commissioner of the Contra Costa Department of Agriculture, that three regulated pesticides (Parathion, Supracide, and Thiodan) were presently registered on the project site, as well as his concerns over the possibility of Diazinon and lead arsenate, copper sulfate or other chemicals being on the project site due to the historic agriculture use (apricot orchard), as well as possible petroleum product contamination caused by equipment refurbishing activities. The recommendation was that additional research should be undertaken and that soils samples should be analyzed.

Another appendix to the Quest document is a statement by Mr. Neff indicating how and where soil samples were taken and accompanying testing documents. Proper soil sampling documentation should have been conducted by an outside, uninterested party, following proper chain-of-command protocol to ensure actual samples from the project site are used and to ensure accurate testing results.

At that time, City staff discussed the discrepancy between the recommendations of the two documents with Eric Garcia of Quest Geosystems Management, but could not obtain a satisfactory response as to why there were two differing recommendations for the project site and as to why his recommendation was partly based on improper testing protocol of the soils samples. Generally, any type of possible soil contamination results in a “red flag” on the Phase I report, thereby triggering the need for a Phase II report which includes the soil testing. Therefore, condition of approval number 23 was added to the conditions of approval requiring that a Phase II Environmental Site Assessment be completed by an outside licensed professional in order to ensure any contamination of the site would be identified and mitigated.

Condition of approval number 23 currently reads as follows:

“Developer shall conduct a Phase II Environment Site Assessment by a qualified professional which shall include test borings on the project site to determine if there are any contaminants in the soil or groundwater due to pesticides, lead, asbestos or petroleum/fuel products prior to final map approval to the satisfaction of the Director of Public Works/City Engineer. Test borings completed shall follow normal chain-of-command protocol to ensure accuracy. Any hazardous materials or contaminants identified on the site shall be remediated at the developer’s expense to the satisfaction of the director of Public Works/City Engineer prior to final map approval.”

However, after the hearing, staff agreed to hear alternatives proposed by Mr. Neff’s counsel. With some amendments by staff, staff was comfortable with the following:

“Prior to the final map or any other approval, Developer shall provide an additional environmental assessment by a qualified professional, such as a licensed geotechnical engineer, as determined and approved by the City. The assessment shall consist of additional samples, the number and site locations of which shall be determined by the Environmental Health Department of Contra Costa County (“CCC EHD”) in coordination with the City of Brentwood. Site selection for the samples shall be representative of the entire site and shall include various locations and depths, including but not limited to the following specific locations identified in the Phase I Environmental Site Assessment: the contaminated soil from a leaking heating oil tank that has already been removed, the vicinity of the asbestos from furnace ducts and the area surrounding an existing water well that must be properly abandoned. The samples shall be tested for contaminants, including but not limited to, pesticides, lead, asbestos and petroleum/fuel products, subject to the review and approval of the Director of Public Works/City Engineer or his designee and CCC EHD. Test samples shall follow normal chain-of-command protocols to ensure accuracy. Any hazardous materials or contaminants identified on the site, including the asbestos noted above, shall be remediated at the developer’s expense to the satisfaction of CCC EHD and the Director of Public Works/City Engineer or his designee prior to final map approval or the issuance of a grading permit. Developer will indemnify and hold harmless City and its officers, agents, employees and volunteers from and against all claims, damages, losses and expenses, including attorney fees, arising out of the environmental condition of the property.”

In essence, the revised condition will accomplish the City’s intent to insure that no hazardous materials will remain on the project site. The difference between the two conditions is the elimination of the background record search that usually accompanies a Phase II report and simply requires proper soils testing and remediation of any contamination found before final map approval. It is the opinion of staff that the background information on the site which was included in the previous Phase I reports along with this required soil testing would accomplish the goals of the City to insure no contamination remains on the site.

FISCAL IMPACT
None.

Attachments:
1. Resolution approving revised condition of approval number 23 for Tentative Subdivision Map 8446
2. Vicinity Map
3. Tentative Subdivision Map 8446

CITY COUNCIL RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD MODIFYING CONDITION OF APPROVAL NUMBER 23 OF RESOLUTION NO. 2007-70 FOR TENTATIVE SUBDIVISION MAP 8446 (TSM 8446) IN REGARD TO SOIL SAMPLING AND REMEDIATION FOR HAZARDOUS MATERIALS ON THE PROJECT SITE IN REGARD TO PROPERTY LOCATED AT 1060 MINNESOTA AVENUE (APN 017-080-007).

WHEREAS, Bailey Neff of Minnesota Rentals, Inc., the applicant had previously appealed a decision of the Planning Commission regarding the Community Development Department’s determination regarding the completeness of his application for Tentative Subdivision Map 8446; and

WHEREAS, the City Council held an appeal hearing on October 24, 2006, considered the staff report and supporting documentation, public testimony, and all appropriate information that had been submitted with the proposed project and voted 4-0, with Mayor Swisher absent to deny the appeal filed by Bailey Neff in regard to the Community Development Department’s determination regarding the completeness of an application for Tentative Subdivision Map 8446 based on their determination that a formal application did not exist as fees were not paid at the time of filing of the tentative map; and

WHEREAS, the Planning Commission approved TSM 8446 on March 6, 2007; and

WHEREAS, Bailey Neff of Minnesota Rentals, Inc., the developer, had appealed the Planning Commission decision approving his application for Tentative Subdivision Map 8446, a request for an 8-lot tentative subdivision map; and

WHEREAS, the City Council held an appeal hearing on April 10, 2007, considered the staff report and supporting documentation, public testimony, and all appropriate information that had been submitted with the proposed project and voted 4-0 with Councilmember Richey absent to deny the appeal filed by Bailey Neff of the Planning Commission’s approval of Tentative Subdivision Map 8446; and

WHEREAS, Bailey Neff filed a petition for writ of mandate and complaint for inverse condemnation on May 7, 2007, in the Contra Costa County Superior Court; and

WHEREAS, Bailey Neff proposed a modification to condition of approval number 23 of City Council Resolution No. 2007-70 approving Tentative Subdivision Map 8446 which was acceptable to staff; and

WHEREAS, the City Council has considered the staff report, supporting documents, public testimony, and all appropriate information that has been submitted with the proposed project; and

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Brentwood:

A. Hereby modifies condition of approval number 23 of City Council Resolution No. 2007-70 as follows:

“Prior to the final map or any other approval, Developer shall provide an additional environmental assessment by a qualified professional, such as a licensed geotechnical engineer, as determined and approved by the City. The assessment shall consist of additional samples, the number and site locations of which shall be determined by the Environmental Health Department of Contra Costa County (“CCC EHD”) in coordination with the City of Brentwood. Site selection for the samples shall be representative of the entire site and shall include various locations and depths, including but not limited to the following specific locations identified in the Phase I Environmental Site Assessment: the contaminated soil from a leaking heating oil tank that has already been removed, the vicinity of the asbestos from furnace ducts and the area surrounding an existing water well that must be properly abandoned. The samples shall be tested for contaminants, including but not limited to, pesticides, lead, asbestos and petroleum/fuel products, subject to the review and approval of the Director of Public Works/City Engineer or his designee and CCC EHD. Test samples shall follow normal chain-of-command protocols to ensure accuracy. Any hazardous materials or contaminants identified on the site, including the asbestos noted above, shall be remediated at the developer’s expense to the satisfaction of CCC EHD and the Director of Public Works/City Engineer or his designee prior to final map approval or the issuance of a grading permit. Developer will indemnify and hold harmless City and its officers, agents, employees and volunteers from and against all claims, damages, losses and expenses, including attorney fees, arising out of the environmental condition of the property.”

B. Hereby mandates that Resolution No. 2007-70 and all other conditions of approval contained in City Council Resolution No. 2007-70 remain in full force and effect.

PASSED by the City Council of the City of Brentwood at its regular meeting of November 13, 2007, by the following vote:



 
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