YOLO SUN NEWS REPORT :
Woodland City Council and Paul Petrovich have a very big court date.
During the planning process leading up to municipal approval for Petrovich’s latest proposed development project, several allegations and objections were raised about unlawful city council conduct concerning this approval.
Two days after city council approval of Petrovich’s project in September, Davis-based California Clean Energy Committee, through its attorney Eugene Wilson, filed a dense and detailed legal challenge to this project alleging various forms of failure to comply with state environmental law.
Thus, Paul Petrovich’s biggest-yet development project, 60+ acres of wide open, general commercial (C-2) zoning set to be annexed into Woodland, adjacent to his Gateway 1 development, alongside another 90+ acres of farmland Petrovich also owns (which because of this (Gateway 2) project would become inclined toward eventual development) — as well as political credibility of a majority of Woodland City Council — is now set for a key judicial hearing on a Petition for Peremptory Writ Of Mandate in Yolo County Superior Court on March 29, 2012.
It’s well worth noticing that this hugely significant lawsuit will be proceeding toward its conclusion (absent appeal) during a period of time coinciding with the political campaign for Woodland’s next city council election (June 5, 2012).
____ SEVERAL SETTLEMENT EFFORTS FAILED ____
On October 11, Wilson by law served formal notices to “all responsible and trustee agencies,” the identities of which the city was legally obligated to provide to him, informing these public agencies that a petition for a peremptory writ of mandate had been filed against the Gateway 2 project. These agencies included: Yolo County Local Agency Formation Commission (which must approve project annexation), State Department of Transportation, State Department of Fish and Game, and relevant air and water quality boards.
When a public agency is sued under the California Environmental Quality Act (CEQA), it must within 20 days initiate a legal process for potential settlement. City of Woodland, acting on October 12 — at edge of that time limit — initially set such a conference to occur on October 24, 2011, but this date was cancelled — likely for the reason that the City suddenly decided to employ the very best attorneys money can buy for this legal action.
Petrovich is supposed to pay such a legal bill for the city, but it’s unclear whether he has to pay up-front or later reimburse the city.
Experienced observers declare that — if the city was going to hire such a top-shelf, specialized law firm to defend against (potential) litigation, this move clearly should have been done — prior to city council action approving the Gateway 2 project — not following an already scheduled settlement conference defending such approval from a writ of mandate.
____ BEST ATTORNEYS MONEY CAN BUY ____
On November 3, 2011, attorneys for City of Woodland in defense of Petrovich’s Gateway 2 project became Remy, Thomas, Moose and Manley — a relevantly famous law firm, which has for decades published the ultimate litigation (reference) guide involving CEQA.
Whitman Manley, the firm member handling this matter for City of Woodland, actually lives within it.
Manley then renewed the city’s legal obligation to convene a settlement conference, which was set to occur on December 2.
Wilson by law had only 90 days (from Sept. 22) within which to request a judicial hearing on his petition.
For reasons which aren’t yet entirely clear — Wilson actually filed a request — on November 30 — for the court to set a hearing date on his petition for a peremptory writ of mandate — two days prior to the scheduled settlement conference on December 2.
Perhaps, Wilson simply filed his request early (anticipating a failure to settle this case) and there still occurred this scheduled settlement conference — at which apparently no settlement was reached.
Anyway, Yolo County Superior Court Judge, Daniel P. Maguire, issued his order setting this (March 29, 2012) hearing date — on the very same day the settlement conference was scheduled to occur: December 2.
____ NATURE OF PETITION ____
Wilson has petitioned the court for a peremptory writ of mandate directing City of Woodland to vacate and set aside: its certification of the (CEQA-based) Environmental Impact Report (EIR), its approval of the project and the related approvals of the mitigation monitoring and reporting plan, its statement of overriding considerations and findings of fact for the project, because of numerous and significant failures to comply with CEQA.
Sections of this petition concern: urban decay and conversion of prime farmland (both “significant and unavoidable” and “irreversible”), elevated greenhouse-gas emissions, failure to follow regional (governmental association) planning imperatives, failure to recirculate the project EIR, inadequate mitigation and monitoring of adverse environmental impacts, and more.
____ RESULTS OF FURTHER YOLO SUN INVESTIGATION ____
Yolo Sun investigation of various matters centrally involved in Gateway 2 project approval has revealed an enormously startling series of very serious legal problems for City of Woodland.
Wilson has included in this petition by California Clean Energy Committee, some of these specific matters, but also raised numerous additional items of alleged CEQA noncompliance. These added matters will be the topic of a future Yolo Sun news article.
Below are the currently available, detailed results of this Yolo Sun investigation.
____ PROJECT OBJECTIVES VIOLATE CITY POLICIES ____
Several “Project Objectives” plainly violate key City policies contained within its General Plan (GP) and Downtown Specific Plan (DSP): “The City shall ensure that Downtown remains the sole central business district for Woodland.” (DSP: 1.F.2.) “The City shall intensify Downtown Woodland as the principal retail, cultural restaurant and commercial district of the city and region.” (DSP: 9.C. 1.) “[R]evitalize the downtown district as the heart of the city[,] to retain and enhance Woodland’s quality of life, its separate identity, and small-town characteristics.” (Woodland General Plan: 2 – 2.)
By quite distinct contrast, the initial Gateway 2 project “Objective” is:
“To facilitate the development of a regional commercial center [at the municipal periphery] to better capture leakage of sales from uses not already served within the community;” while, another Objective is: “Ensure that the downtown remains the primary focus in the City for entertainment and specialty retail uses.” A third Project Objective related to this subject is vague and nonsensical: “Ensure that existing commercial centers within the City are not significantly negatively harmed through completion [sic] from neighborhood based retail uses.”
“[R]egional commercial center” is undefined, as is “commercial center” and “neighborhood based retail uses.” “[L]eakage of sales” related to such a development proposal is undefined, unanalyzed and not supported by any substantial evidence in this project (planning) record.
“[E]ntertainment and specialty retail uses” is totally undefined, yet obviously in direct conflict with city policies (above) which clearly guarantee a much broader scope of commerce within Woodland’s downtown district, as: “principal retail [and] commercial district of the city.”
Presently, downtown merchants engage commerce in: clothing, shoes, furniture, appliances, food, motor vehicles, drugs, pet-supplies, and other mainstream (non-”specialty”) aspects of retail business.
Nowhere in the Gateway 2 project Final EIR is this — currently broad spectrum — of downtown commerce duly recognized and included within the scope of planning process for this project. .
Project mitigation for admittedly: “significant and unavoidable,” “irreversible,” “urban decay impacts,” vaguely and loosely states — only — that eventual city planning processes should — “primarily” — disallow “entertainment and other uses,” which would compete with businesses in Woodland’s downtown district (Final EIR: 2 -124.); while in contrast, a more generalized portion (#9) of the lawfully required Statement of Overriding Considerations generally states: “The Project will provide competition between retail tenants in Woodland.”
Apparently, there exists no viable mitigation mechanism attaching to the Gateway 2 project, to ensure crucial municipal planning policies regarding Woodland’s downtown area (above) are obeyed.
Project mitigation elements (Master Conditional Use Permit processes, Market Feasibility Study, etc.) will require an extraordinary amount of city staff time and effort to implement, as well as only partially fund various (vaguely defined) studies of the admittedly unmitigated, adverse commercial / community planning consequences of this project.
____ FLAWED ANALYSIS OF OFF-SITE ALTERNATIVES ____
Findings of Fact for the Gateway 2 project (at p. 76) state that: “the Off-Site Alternative is dismissed from further analysis” (Draft EIR: 6 – 5,6), based upon the quantity of acreage proposed by the — unrevised — project (“150 acres”), rather than the actual quantity of acreage of the revised Project (“61.3 acres”).
Predicating the above decision is only Woodland City Council’s assertion / opinion that such: “Off-Site locations that would achieve a majority of the stated project objectives and still reduce environmental impacts do not exist in the Woodland vicinity.”
To the contrary, it would seem that all valid and relevant Project Objectives and Overriding Considerations obviously may be achieved by potentially feasible and environmentally superior, Off-Site Alternatives within an accurate and lawful process of EIR recirculation considering a suitably reconceived and disaggregated project.
Off-Site Alternatives for locating certain (non-regionally, but locally oriented) components / elements of the initially proposed Project were promptly “dismissed” by Woodland City Council at the outset of its project EIR processes and were (prejudicially) never reconsidered upon the proper basis of the — hugely reduced acreage — of the revised project.
“Findings of Fact” in the Gateway 2 EIR by Woodland City Council that Off-Site Alternatives appear infeasible and/or would not achieve most of the Project Objectives are not supported by any (much less, substantial) evidence, just the plain claim of City Hall.
These fatal legal flaws — if state law was followed — should have clearly required EIR recirculation of the revised project (please see CEQA Guidelines, sections 15126.6 and 15088.5).
But — the majority of the Woodland City Council was against it and the City is now in court.
____ PHONY AUTO-ZONING OF GATEWAY 2 PROJECT ____
Acreage of the revised Project, at 61.3 acres, includes — 20 acres — pre-zoned for the automobile dealers which city hall is already assisting with a reduction of developmental impact fees and (so-far) informal consultation — to locate elsewhere: on 12 acres of beautifully freeway-exposed property at the end of Freeway Drive — directly across the freeway from Petrovich’s existing Gateway development.
These automobile dealers have for several years flatly stated that they would never locate at a Gateway 2 project.
Their inclusion as relocating to roughly a third of total project acreage is seemingly designed for purposes of eventually converting the considerable dimension of zoning of this acreage to completely generalized commercial uses.
This planning result is a clear benefit to Paul Petrovich, to the (obvious, eventual yet irreversible) detriment of Woodland’s downtown area.
Why is this phony auto-zoning happening?
Because these 20 acres may later be flipped from its designation for “auto uses,” to general commercial uses, substantially increasing the presently stated limitation of 340,000 square feet of new commercial development.
Petrovich, himself, may never even develop this project; he may simply sell it to another developer. Such phony “auto uses” zoning could possibly be some sort of ‘wild-card’ playing into project implementation and eventual build-out by another developer.
____ BOGUS “BIG-BOX” GLOSS ____
The Statement of Overriding Considerations within the project EIR contains an assertion that: “The Project will provide large acreage parcels demanded by modern retail tenants that require large buildings and sites that cannot locate in the Downtown or in other commercial areas due to the limitation of parcel sizes in those areas.”
While this situation may exist with regard to “big-box” businesses (Costco, Target, etc.), many smaller retail / commercial tenants also clearly intended to occupy this project are not inherently adhered to it, for this reason — but rather — for Petrovich’s plain benefit — expanding his project dimensions.
Already, there exist many such smaller tenants — which directly compete with downtown merchants — within the Gateway I development.
Experienced observers have noted that the existing Gateway development project already has (undeveloped) room enough to locate another big-box retail store.
____ DISMISSING ALTERNATIVES VIOLATED STATE LAW ____
One possible project option was locating a few “big-box” regionally oriented businesses on (for example) 20 acres at the project site, adjacent to the existing Gateway I development, while examining within EIR recirculation the feasibility of Off-Site Alternatives for smaller, more locally oriented retail tenants.
“[L]eakage of sales,” to whatever unknown extent it may exist is not best or only to be plugged — on the municipal periphery.
Woodland City Council (by its declining of project EIR recirculation) in its official records and process has fraudulently and prejudicially mischaracterized the actually valid size of the project (61 acres, contrasted with 154 acres), apparently attempting to best avoid any and all public review of and consideration and comment upon Off-Site Alternatives.
Potentially feasible (Off-Site) options for locating certain relevant components / elements of the revised project, legitimately sized at 41.3 acres — were thus never identified or evaluated by Woodland City Council within its EIR processes nor made available by it for any form of public review and comment.
This situation is clearly a violation of state law.
Woodland City Council has, therefore, deprived the public of a meaningful opportunity to comment upon a substantive environmental effect of Petrovich’s project and a feasible way to mitigate or avoid such an effect, by “dismiss[ing]” from this EIR process — at its very outset — any and all consideration of potentially feasible, environmentally superior (Off-Site) alternatives which are by this means unlawfully circumvented and declined adoption.
Several citizen requests that a suitable remedy be provided for this fatal legal and civic flaw were totally disregarded. No opportunity to identify and evaluate such project options was made available to the public.
Woodland City Council has thus clearly and intentionally violated key requirements of the California Environmental Quality Act (CEQA) Guidelines, sections 15126. 6 and 15088.5.
____ INVALID STATEMENTS ABOUT PROPERTY OPTIONS ____
At page 76 of the EIR Findings of Fact, Woodland City Council asserts that: “[T]he applicant does not own a comparable property within the City of Woodland.” The City Council is directly aware that “the applicant” owns several parcels of key property within the City’s downtown area, as well as being very familiar with his development of various other commercial properties within the City (Rite-Aid, Burger-King).
CEQA does not require applicants to already own property being considered as options to relevant projects. Woodland City Council has thus (perhaps intentionally) invalidly interpreted state law with this statement, to insulate Petrovich from such legitimate consideration of project options.
The project applicant (Petrovich) has formidable access to a surfeit of vacant and available commercial zoning within the CIty (276 vacant acres / 250,000 square feet of vacant buildings; this data was included in the associated staff report at personal request of the chairperson of Woodland Planning Commission, who voted against the project).
Woodland City Council has thus unlawfully “dismissed” relevant Off-Site Alternatives on the (improper) basis of prejudicially and fraudulently inflating Project acreage, as well as by refusing to create any form of EIR recirculation process for public review, consideration and comment upon the community planning prospect of reasonably disaggregating this project.
___ MISREPRESENTATION OF ALTERNATIVES COMPARISON ___
At page 78 of the EIR Findings of Fact, Woodland City Council asserts that “[I]t should be noted that the revised project description would result in even fewer impacts as compared to the Reduced Intensity Alternative because the revised project would develop commercial uses only 61.3 acres and would retain 92.7 acres of agricultural uses.”
However, the Project anticipates — 340,000 square feet — of commercial uses, as compared with only 295.000 square feet proposed by the Reduced Intensity Alternative.
Increasing dimension and intensity of commercial uses in this way, even on somewhat smaller acreage (realistically, on 41.3 acres instead of 92.7 acres), usually results in more and different environmental impacts, not: “even fewer impacts,” as is stated in Woodland City Council’s Final EIR.
____ IMPROPER CONNECTION TO EXISTING DEVELOPMENT ____
Project Objectives (at p. 75 of relevant Findings of Fact) and Overriding Considerations (#3) list: “Facilitate completion of Gateway I” as inherently bound / essential to occur through the development of a “Gateway II.”
No substantial evidence in the record or any other public form conceptual support is provided for such a sly postulation — there is only the bare assertion of Woodland City Council that: “[T]he uses at Gateway I and Gateway II are intended to support one another. The goal is to provide a comprehensive retail/commercial experience[,]” which is totally undefined and directly at odds with key municipal policies (above).
Undefined, as well, are the actual commercial uses which would occupy the Gateway 2 project, indicating that the purportedly tangible concept of a “comprehensive retail/commercial experience” is — in legal reality — only a loose and serviceable slogan — seemingly inspired to help actualize Petrovich’s interests, above / against the public interest.
____ FARMLAND CONVERSION PARADOX ____
The (revised) Gateway 2 project leaves an adjacent 92.7 acres of the original project in agricultural use; however, because Woodland City Council will afford no EIR recirculation process, its Final EIR possesses — in principle — possess no capacity for the public to review, analyze and offer comment on the subject of reasonable mitigation of undeniably significant and unavoidable environmental consequences of this potentially conflictive land use relationship, unreasonably increasing certain developmental pressures for conversion of this agricultural land to commercial uses.
Buffer zones to help maintain agricultural uses in the original project have been eliminated or greatly modified in the revised project.
Petrovich owns this 92.7 acres and clearly would receive a significant yet tacit benefit involving its potential development value from the project, whether he keeps it or sells it to another developer.