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City Attorney’s Letter Misrepresents the Law

Below is a Morro Bay stakeholders’  official attorney  summary analysis of a letter originally written by Morro Bay Assistant City Attorney Christopher Neumeyer, dated April 16, 2018, to the Morro Bay Stakeholders.

The subject of the letter is the City’s segmentation, or piecemealing of the environmental review of the development into two parts – site preparation and the residential development. Based on our attorney’s in depth analysis we feel that Mr. Nemeyer’s letter shows a clear misrepresentation of the actual law.

We hope this prompts people to attend the Planning Commission Meeting on Tuesday, June 19, 2018 to urge the Commissioners to not approve the permit without a comprehensive environmental impact report (EIR).

Introduction and overview:

HOW MR. NEUMEYER HAS MISREPRESENTED THE LAWS:

  1. Mr. Neumeyer changed words in the law to pervert its meaning and create the appearance that piecemealing does not exist in this case.
  2. Mr. Neumeyer’s invented “definitive plans” rule must be disregarded because it does not exist in CEQA.
  3. Other cases cited by Mr. Neumeyer are generally not applicable and text is cherry picked.

WHAT THE LAW ACTUALLY REQUIRES:

  1. Environmental review of site preparation must include discussion of the effects of the residential development to satisfy CEQA’s requirements.
  2. Clearing the site will induce growth and the City is required under CEQA to “…evaluate the environmental effects of the most probable development patterns”.
  3.  Site preparation including demolition is routinely reviewed as part of the “whole project” by the City of Morro Bay.
  4. Piecemealing risks pre-commitment to the next phase of a project and loss of open-minded decision-making.

Read the complete analysis below:

Prepared by Cynthia Hawley, Attorney on behalf of the MORRO BAY STAKEHOLDERS on June 14, 2018

6-14-18- Stakeholders’ attorney report-on-neumeyer-letter

Original Letter from Neumeyer to Stakeholders

 

Note for Planning Commissioners, prepared by Betty Winholtz

I want to identify concerns with the staff report for tonight’s meeting:

First, none of the pages are numbered. This makes it difficult to reference sections of the report.
Second, the link provided to the 2018 MND is actually a link to the 2016 MND, as listed on the top of each page.
Third, the staff report refers to the second MND as the February 2018 MND, yet the document has the date June 2018 on each page.
Fourth, project phasing is addressed–metal materials removed, soil testing, concrete removal, site condition review, grading/planting– but omits the final phase: housing development, as first identified in the “Risk-Based Closure Report,” 1996, stated at a Planning Commission meeting as filed with the County Health Department, as is its zoning, and as stated in the staff Report’s CONCLUSION.
Fifth, any tree over a decade old in Morro Bay can be labeled by an arborist as “diseased or dying.” No tree in an ESHA should be cut down. An ESHA is for animal habitat not humans.
Sixth, the serious nature of contamination is downplayed. “The objective of a RBC [risk-based closure] approach is to enable risk managers to determine what chemical concentrations can  remain in the environmental media without posing potential adverse effects on an exposed individual [through skin, injection, inhalation].” The standards the RBC used were based on superfund guidelines. Fortunately, “The  maximum concentration of TPH [total petroleum hydrocarbons] detected from surface to 10 feet  below grade…is also lower than the  risk-based  action level that is protective of a construction worker.” However, the report stopped at a  depth of 10 feet for being safe.

Also, please be aware of the difference between the two labels I italicized from the staff report: “The environmentally sensitive habitat area is comprised of the stream channel and areas of adjacent riparian vegetation, collectively called the “stream corridor” and referred to as ESHA in the Mitigated Negative Declaration.” The buffer is adjacent to that. I believe the Planning Commission should decide if this is an urban or non-urban area in order to identify the buffer width. As taken from the Zoning Ordinance, “Streams. The minimum buffer for streams shall be one hundred feet in non-urban areas and fifty feet in urban areas.” 17.40.040.4b

Respectfully submitted,
Betty Winholtz

Make your voice count – attend the Planning Commission Meeting:

Tuesday, June 19, 2018 – 6:00 p.m.

Veteran’s Memorial Building – 209 Surf Street, Morro Bay, CA

Comments Regarding the 3300 Panorama Drive Mitigated Negative Declaration (MND)

This letter was sent to City staff on March 30, 2018. We will keep you posted on any response.
Sent: Friday, March 30, 2018 11:01 PM
To: nhubbard@morrobayca.gov
Subject: Comments Regarding the 3300 Panorama Drive Mitigated Negative Declaration (MND)

Dear Ms. Hubbard,
Page 3:  (bottom paragraph)  Project Site is NOT “surrounded by high-density residential to the west and south.”   There are existing Single-Family homes, which are one and two-stories.  Please correct.
Page 11: Site Demolition Map fails to show location of Sicily Street and its relation to Project Site.
Page 13:  Security Gates will be located exactly where on Project Site?  Please show on Maps and describe in document.
Page 16:  Why is the property owner spending vast amounts of money to clear the Project site, if he has “ . . . no known or anticipated specific future development plans for Project Site.”?  Please explain.
Page 17:  Map fails to show location of Sicily Street on Map.
Page 19:  Table fails to state number of truck trips per day.
Page 21:  “Environmental Setting and Impacts #18 Utility/Service Systems” should have been checked for “Potentially Significant Impact” because of existing old water & sewer pipes under the streets that may be damaged by the proposed heavy truck loads; and the potential for loss of water/sewer services during their repair or replacement.  The affected streets are Sicily St., Main St., Tahiti St., Yerba Buena, Panorama St.
Page 28: The Project Site property owner must address the possibility of implementing a Single-Family Planned Development on the Project Site.   The Project Mitigated Negative Dec. fails to address this important issue.   This is called “piecemealing of project” under CEQA.  An EIR must include an analysis of the environmental effects of future expansion or other action if it is a reasonably foreseeable consequence of the initial project (a Demolition Project), and the future expansion or action (a Single Family Planned Development) will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.  Please address this issue.
Page 31: Will Highway 41 be the route to haul demolished material to the North County Recycling Center in Paso Robles?  What route will be taken?
Page 73:  Who is responsible for the Before & After Video Inspections water, sewer pipes, street conditions, of proposed truck routes?  How will the Before & After conditions be documented, and by whom?  Where will the videos be on file?
Page 76:  Where will the proposed non-potable water truck get its non-potable water?
Page 77:  The Project has impacts that are cumulatively considerable – the incremental effects of probable future projects such as a Single-Family Planned Development subdivision.  This issue must be addressed.

Despite Objections the City of Morro Bay Rubber Stamps Development

Dear Stakeholder: Please see the linked legal public notice below.

Despite a long list of citizens’ objections, it seems that the City of Morro Bay is once again piece-mealing the Panorama project and skirting around an Environmental Impact Report. This “negative declaration” makes it clear that City officials aren’t willing to respond to citizen concerns in a meaningful and comprehensive manner.

According to the City, stakeholders’ concerns are “less than significant.”

Piece-mealing a project is illegal; this is established California law. Citizens of Morro Bay deserve a complete picture of what is being planned for 3300 Panorama before construction begins. That is why an EIR is critical for to protect the taxpayers, residents, local ecology and the City of Morro Bay for future generations.

Public Notice – February 28, 2018

2-16-18-mitigated-negative-declaration-3300-Panorama

There is a statutory public comment period through March 30, 2018. Now is the time to send your written comments to:

City of Morro Bay
Attn: Nancy Hubbard
955 Shasta Ave.
Morro Bay, CA 93442

January 3, 2017 Planning Commission Meeting

Information presented at the five-and-a-half hour meeting resulted in the Planning Commission’s directive to the City Planning Department:  Issues must be addressed before moving forward with any decision on the project.  As of this posting, no future date has been set for another hearing before the Planning Commission on the tank demolition.

Please view the meeting in its entirety here: https://www.youtube.com/watch?v=w3gQjRlY74I&index=1&list=PLcD1TgCptAOdd4_YaqhkHFSsSQwPiAYM3&t=9328s ; and several of the written statements that were made during the public comment period are shown below:

A meeting of the Stakeholders is scheduled for Monday, January 23, 7:00 pm, 331 Kodiak St., Morro Bay.  We urge you to attend and share your thoughts about our next steps.

Thank You!

-Your Morro Bay Stakeholders Steering Committee

 Related Documents:

cynthia-hawley-presentation


kris-and-don-headland
kris-and-don-headland-publichealthdept-8-8-16-letter
Kris-and-Don-Headland-publichealthdept-11-23-2016-letter


ed-griggs-letter

bob-walker-letter

carol-walker-letter

annie-pivarski-letter
annie-pivarski-related-documents
(documents related to UPO)

carole-truesdale-letter
carol-truesdale-decibel-levels-and-impact
carol-truesdale-nidcd-noise-induced-hearing-loss

Urgent Request for Citizens and Residents of Morro Bay

Citizens and Residents of Morro Bay:

We need your help. There will be an official hearing on January 3rd., 2017. The Community Development Dept. has recommended that the Planning Commission conditionally approve a jet fuel tank demolition project, and has prepared a resolution to that effect for the Planning Commissions signature.

We implore all interested Morro Bay residents to show up at this meeting in force and to state your feelings about this poorly planned, potentially hazardous demolition project.
* * * *
PLANNING COMMISSION OFFICIAL PUBLIC REVIEW  PLEASE ATTEND!
Tuesday, January 3, 2017
6:00pm Vets Hall 208 Surf Street • Morro Bay 

* * * *
Though we continue to approve of the proper, well managed tank demolition, the Steering Committee (Annie Pavarik, Carole Truesdale, Kristen Headland and I) oppose the Conditional Use permit in the strongest possible terms.

• The SLO County Health Agency, Public Health Department sent the applicant a letter on November 23, informing Mathys that he was deficient in a litany of issues in the Demolition Plan. They sent the applicant a letter in October stating what is required, and he failed to comply with any of those requirements.

The City Staff has failed to notify the public properly about the public Planning Commission Hearings; changed the scope of the project repeatedly; failed to notify the community about changes in actions of PC meetings; consistently dumped new information about the project just before public hearings, causing us to scramble to read the new information, formulate responses in a very limited space of time.

• The Environmentally Sensitive Habitat Area has not been properly defined in writing or in the maps that have been provided.

• They are trying to conduct demolition activities in the nesting season (February September 15th.

Failed to define the noise levels, and therefore, are not able evaluate them in the Mitigated Negative Declaration. And since they cannot define them have offered not mitigation(s).

Failed to recognize the potential impacts of the unstable slopes above the project area.

• We hope that the Planning Commission will allow the applicant a limited scope of work of work (removal of the tanks, pipes, pumps) complete the required soil testing and analysis, and then, if the applicant is able to complete those elements of the project, apply for another permit to remove the concrete, shot-crete, etc.

Still no proof of insurance. If the Conditional Use application is approved, the Morro Bay Stakeholders will be at the mercy of the Community Development Department to approve the all of the conditions, with no input from the public or the Planning Commission.

So far, the Community Development Department has in every way possible ignored, obfuscated, blown off and otherwise failed to represent the citizens that will be impacted by the demolition. We have absolutely no trust in their ability to deal with demolition project.

Neighbors, MB Stakeholders, please join your stakeholders and step up to the plate. Attend the meeting and protect our precious Morro Bay natural habitat, insure our public health, and preserve our crumbling infrastructure. 

Thank You,
Your Morro Bay Stakeholders

* * * *
PLANNING COMMISSION OFFICIAL PUBLIC REVIEW  PLEASE ATTEND!
Tuesday, January 3, 2017
6:00pm Vets Hall 208 Surf Street • Morro Bay 

* * * *

Letter from Morro Coast Audubon Society to Morro Bay Planning Commission

December 22, 2016

City of Morro Bay
Planning Commission
955 Shasta Avenue
Morro Bay, CA 93442

Re: Case No. UPO-440, CPO-500. Demolition of Jet Fuel Storage Tanks at 3300 Panorama Dr.

Dear Planning Commissioners,

The Morro Coast Audubon Society, MCAS, appreciates this opportunity to provide written comments regarding the demolition project at 3300 Panorama Dr. On the whole, MCAS is not opposed to this project. However, one component of the project causes us concern – as that component conflicts with the MCAS Mission Statement “to promote the appreciation, conservation, and restoration of ecosystems focusing on the biological diversity of birds, other wildlife, and their habitats.”

The mature Monterey cypress and pine trees throughout the project site offer valuable canopy and structure for nesting raptors including the Coopers Hawk, a California Dept. of Fish and Wildlife ‘watch list species’.

As stated in the Terra-Verde Biological Assessment letter dated November 17, 2016 – impacts to nesting birds, including those protected by Fish and Game Code and the Migratory Bird Treaty Act may occur if demolition and removal, ground disturbance, or vegetation removal occur during the typical nesting period (February 1 to September 15).

Mitigation measures are recommended in the Biological Assessment, and required in the City’s Staff Report to the Planning Commission, to avoid both direct and indirect impacts to special-status and nesting bird resources. Mitigation Measure BR-6 states that demolition and removal activities, earth disturbance, and vegetation clearing shall be avoided during the typical nesting season (February 1 to September 15) . . . to the extent feasible.

MCAS urges you to focus on the words “shall be avoided”, and remove the following four words in the mitigation measure “to the extent feasible”. The term “feasible” invites opening up a loophole that may tip the scale in favor of the applicant at the expense of the City’s nesting bird resources.

In Mitigation Measure BR-6, the wording “shall be avoided” adds some teeth to this measure to lessen environmental impacts from this project, while the words “to the extent feasible” considerably weakens this mitigation, and again, may create a loophole for the applicant to disregard the city’s sensitive natural resources.

We respectfully request that you deny any variance that the applicant may apply for to start demolition, earth disturbance, and vegetation clearing during the nesting season at the project site. Working outside this nesting period runs less risk of destroying active nests – but care is needed at all times to avoid harm.

In conclusion we would hope that the City of Morro Bay would place a high priority on its environmental resource policy that avoids implementing activities that result in the loss of active birds’ nests, including both direct loss and indirect loss through abandonment.

MCAS asks that you, as decision makers, consider the wildlife on site when making planning decisions.

Respectfully submitted,

Douglas Tait

Doug Tait, Conservation Chair
Morro Coast Audubon Society

City Planners Set to Approve Project

Speak now or forever hold your peace, seems to apply. On January 3, the Morro Bay Community Development Department will likely approve the application for a vastly expanded demolition project in North Morro bay. Many last minute changes were made to the plan, leaving little time for Morro Bay stakeholders to fully evaluate the added risk(s) this project entails.

Notice that the City plans to use the “Mitigated Negative Declaration” process as a means of approval. It’s basically a blank check to sign off on a project that might otherwise not be a candidate for approval. The dozens of “mitigations” required for the project may be well beyond the scope of the applicant and or the City to properly manage during the months long project.

Are you concerned that this project will complete on time, on budget and without undue burden to residents? Do you worry that sensitive environmental areas will be disturbed? Are you fully comfortable with the applicant’s reputation? Will public property such as streets and sewers be protected? And what if toxic materials are encountered during the removal of the military jet fuel tanks?

Please bring your concerns to the January 3 meeting.
Public Hearing, January 3, 2017, 6:00 p.m.
Veteran’s Memorial Building
209 Surf Street – Morro Bay, CA

See you there!

Open Letter to the City of Morro Bay Planning Commission

City of Morro Bay Organizational Chart

December 5, 2016

To:  Morro Bay Planning Commission

Chairperson Robert Tefft
Chairperson Gerald Luhr
Commissioner Michael Lucas
Commissioner Richard Sadowski
Chairperson Joseph Ingraffia

RE: PUBLIC HEARINGS

B-1 Case #: CP0-550, UP0-440

Site Location: 3300 Panorama Drive

Project Title: Demolition of Tanks and Associated Structures

Good Evening Honorable Commissioners, and Community Development Staff,

I am Annie Pivarski, resident and homeowner in North Morro Bay; and a Morro Bay Stakeholder.  For me, the latest iteration of this project comes down to TRUST:

The word has been flung high and low nationally; and here it is in our own community.  I think expectation has a lot to do with trust.  Having the expectation that someone will do right and be right towards you also ties in to feeling safe.  To me, trust is most visible via actions.

From the outset of this project, trust has been lacking:  Of the System and of the Applicant and associated LPs and LLC’s.  I believe the City has been naïve about the magnitude of and overall effect this project will have on its citizens, the environment, and infrastructure.

Now, the scope of the project has changed with impacts far greater than what was originally proposed.  Yet, according to the applicant in a written response to our concerns dated December 1, he states, “There are no changes.”  Trustworthy?  I think not.  Regarding the Insurance Guaranty required as a condition of approval, the response: “We have already committed to the insurance and the indemnification for the neighborhood in the event of damages.  We will provide you with the insurance certificate.”  To date, there is no certificate.  I would expect it to be secured in time for this meeting.  Trust is most visible via actions.

Regarding this project and-any other for that matter-my expectation is that the City of Morro Bay follows its own “ORGANIZATIONAL CHART,” which is included with this statement and is for F/Y 2015/16.  At the top of the chart, “CITIZENS OF MORRO BAY.”  Reporting to the “CITIZENS,” the MAYOR AND CITY COUNCIL, followed by City ADMINISTRATION and various departments falling under it.

My current property taxes are $4,470.56 a year.  For the amount of money we pay to live here I am not feeling safe with the current proposed plan which was released a week ago today.

Commissioners, I trust you to hear our concerns and make your decision based on the “CITIZENS OF MORRO BAY,” along with thorough review and scrutiny of all applicable documentation.

Thank You.