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HomeMy WebLinkAbout10/28/2008 Public Hearing Correspondence 1 of 2 ; FIORE RACOBS & POWERS A PROFESSIONAL LAW CORPORATION ORANGE COUNTY OFFICE DENNIS M. BURKE' 38 TECHNOLOGY DRIVE, SUITE 250 RICHARD S. FIORE' MINDY L.JOSLIN 6820 INDIANA AVE., SUITE 140 IRVINE, CALIFORNIA (9499) ) 7 727 -31 1 1 DAVID A.KLINE RIVERSIDE, CALIFORNIA 92506 - 7202 FAX (949) 727 -3311 JOHN R. MACDOWELL' JESSE W.J. MALE TELEPHONE (951) 369 -6300 ERIN A. MALONEY* FAX (951) 369 -6355 AMANDA N. OWEN" ALEJANDRO PORTALES COACHELLA VAI I EY OFFICE JANETL.S. POWERS' WORLD WIDE WEB SITE 74 -361 HIGHWAY III, SUITE I CHESTER A.PUCHALSKI HTTP: / /WWW.FIORELAW.COM PALM DESERT, CALIFORNIA 92260 PETER E. RACOBS' (760) 776-6511 SARAH M. REED FAX (760) 776-6517 PAUL M VARGAS MARGARET G. WANGLER' October 27, 2008 REPLY TO Riverside 'DENOTES SHAREHOLDER File No. 62873 -01 "OF COUNSEL FEDERAL EXPRESS Hon. Daryl Hickman, Mayor 13W0 S 1111 �J IJ1�'1 Ms. Genie Kelley, Mayor Pro Tem /�d Mr. Thomas Buckley, Councilman 9001 130 Mr. Robert Schiffner, Councilman Mr. Robert "Bob" Magee, Councilman City of Lake Elsinore �� _ 130 South Main Street Lake Elsinore, CA 92530 Re: Mitigated Negative Declaration No. 2008 -07 Conditional Use Permit No. 2008 -01 Tentative Parcel Map No. 36066 Commercial Design Review No. 2008 -01 Subject: Objections to the Above - Referenced Mitigated Negative Declaration, CUP, and Tentative Parcel Map My Client: Canyon Lake Property Owners Association Honorable Mayor and Council Members: This letter is provided on behalf of the Canyon Lake Property Owners Association ( "POA "). As explained below, the above - referenced project requires a full Environmental Impact Report ( "EIR "), not a Mitigated Negative Declaration ( "MND "). AN EIR IS LEGALLY REQUIRED An EIR is required for any project that a public agency proposes to carry out or approve that may have a significant effect on the environment. [Pub. Resources Code § §21100(a), 21151(a).] The EIR is recognized as the "heart of CEQA" and is intended to "inform the public and its responsible officials of the environmental consequences of their decisions before they are R0119315.1 FIORE RACOBS & POWERS A PROFESSIONAL LAW CORPORATION Hon. Daryl Hickman, Mayor Ms. Genie Kelley, Mayor Pro Tem Mr. Thomas Buckley, Councilman Mr. Robert Schiffner, Councilman Mr. Robert "Bob" Magee, Councilman October 27, 2008 Page 2 made." (Laurel Heights Improvement Assn. v. Regents of the University of California (1993) 6 Ca1.4th 1112, 1123, emphasis in original.) An MND, by contrast, may be prepared and adopted in lieu of an EIR "only if project revisions would avoid or mitigate the potentially significant effects identified in an initial study 'to a point where clearly no significant effect on the environment would occur, and ... there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment. ' [Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 331, quoting Public Resources Code Section 21064.5 and citing Public Resources Code Section 21080(c)(2).] This legal standard reflects CEQA's preference for EIRs over Negative Declarations. "There is 'a low threshold requirement for preparation of an EIR' (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 84), and a 'preference for resolving doubts in favor of environmental review' (Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1316- 1317)." (Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 580 -581.) In fact, an EIR must be prepared whenever it can be "fairly argued" on the basis of substantial evidence that the project may have a significant environmental impact, even if there is substantial evidence to the contrary. (Arviv Enterprises, Inc. v. South Valley Area Planning Comm. (2002) 101 Cal.App.4th 1333, 1346.) THE PLANNING COMMISSION STAFF REPORT IGNORES THE LEGAL OBLIGATIONS OF THE CITY AND THE APPLICANT The Planning Commission Staff Report dated October 7, 2008, asserts that: City staff and the applicant have done their best to provide amenities for the Canyon Lake residents, and have expended considerable effort in doing so, including attending a meeting at Canyon Lake on September 2, 2008, in an attempt to resolve issues raised by the Canyon Lake staff and POA. Canyon Lake staff has reviewed recommendations by Urban Crossroads to provide traffic control measures at the north gate for the purposes of safety. These measures include appropriate signage and gate exit treatments, and do address the concerns of Canyon Lake staff. Unfortunately, the Canyon Lake staff and POA continue to be R0119315.1 FIORE RACOBS & POWERS A PROFESSIONAL LAW CORPORATION Hon. Daryl Hickman, Mayor Ms. Genie Kelley, Mayor Pro Tem Mr. Thomas Buckley, Councilman Mr. Robert Schiffner, Councilman Mr. Robert "Bob" Magee, Councilman October 27, 2008 Page 3 unwilling to implement any of the appropriate measures as recommended. (Emphasis added.) The City staff and the applicant have recognized that the project will create safety problems at the POA's north gate. However, neither the City staff nor the applicant have addressed the adverse impacts created by the applicant's project. Instead, they want to shift the burden of addressing the project's impacts onto an existing conforming use outside the boundaries of the project and your City, a use that has been in place for 40 years. There is no legal basis for the City to expect the POA to redesign and reconstruct its north gate to mitigate this project. "There are two things an agency cannot do: It cannot acknowledge a significant impact, refuse to do or find anything else about it, and approve the project anyway. And it cannot acknowledge a significant impact and approve the project after imposing a mitigation measure not shown to be adequate by substantial evidence." (Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 724.) The attitude reflected in the City Staff Report, that the POA and Canyon Lake are seeking some "amenities," is entirely misplaced.' For 40 years, Canyon Lake residents and other area residents have lawfully used trails in the vicinity of and crossing the project site. The applicant proposes to reroute those trails along the eastern boundary of the project, effectively creating an alleyway which will lead to a blind crossing of Greenwald Avenue immediately adjacent to the exit lane of the POA's north gate. As the POA's consulting engineer, Albert A. Webb Associates, pointed out in a memorandum dated September 2, 2008, directed to Wendy Worthey, your Principal Environmental Planner, to avoid the blind crossing, the trail crossing should be relocated as far west as possible from the POA's gate "to minimize or eliminate potential hazards from this blind crossing." The POA's engineer pointed out that a trail and equestrian crossing at the intersection of Dowling Street and Greenwald Avenue would be an appropriate alternative. Your City's staff characterization of this issue as "amenities for Canyon Lake residents" overlooks the fact that the trails in this area are part of the county's regional trail system. These multiuse trails are used by hikers, bicyclists, golf carts and dirt bikes. The users of this trail system come from your City, other cities, as well as the unincorporated area of the county. This trail system is not a Canyon Lake amenity. R0119315.I FIORE RACOBS & POWERS A PROFESSIONAL LAW CORPORATION Hon. Daryl Hickman, Mayor Ms. Genie Kelley, Mayor Pro Tem Mr. Thomas Buckley, Councilman Mr. Robert Schiffner, Councilman Mr. Robert "Bob" Magee, Councilman October 27, 2008 Page 4 The POA's engineer also pointed out the need for the City to anticipate customer traffic from a number of the approximately 2,400 golf carts within the POA who will be drawn as customers to the site. Setting speed limits and adopting the appropriate ordinances to allow golf cart use within the public streets of the project will help safely accommodate this source of customer traffic in the project. The mitigation measures suggested by the POA are not onerous or unreasonable. They are steps that would mitigate serious safety issues created by the current proposed design of the proj ect. CONCLUSION For all of the above reasons, as well as those set forth in your City's file on this project, including the above - referenced memorandum of the POA's engineer; the September 2, 2008, letter from Mario Suarez, City Planner for the City of Canyon Lake; and those placed on the record at public hearings, we ask that an EIR be required for this project in accordance with California law. Very truly yours, FIORE, RACOBS & POWERS A Pr• - - ,ional Law Corporation i eteE. frac obs PER:cin cc: Board of Directors, Canyon Lake Property Owners Association (via e-mail) Mr. Tom Weiner, Acting Director of Community Development, Lake Elsinore (via fax) Mr. Ed Sauls (Applicant) Mr. George Filios (Owner) Elizabeth Martyn, City Attorney, Canyon Lake (via e-mail) R0119315.1 i x CITY OF CANYON LAKE �+— � Pao RgTED DECO° D L \V October 28, 2008 Mayor and City Council Members OCT 31 2008 City of Lake Elsinore CITY CLERKS OFFICE 130 South Main Street Lake Elsinore, CA. 92530 RE: Objections to Mitigated Negative Declaration No. 2008-07, CUP No. 2008-02 and TPM No. 36066 Dear Mayor and Council Members: This letter is provided on behalf of the City of Canyon Lake ( "Canyon Lake ") as evidence for the requirement for an EIR to provide for additional review of the matters set out here. We have attached letters from Thomas Wheat, P.E., RK Engineering Group, Inc. and Canyon Lake Traffic Engineer; and Anne Schneider, Willdan Engineering and Canyon Lake Building Official. Additionally there are other project related letters and testimony that further support the City of Canyon Lake's position. Further letters include but may not be limited to comments from the Canyon Lake Property Owners Association (CLPOA) and their corporate engineer (Exhibits A and B) and testimony from October 7, 2008. All of these specifically are made part of the record of this hearing along with this letter. The major problem here is the same one which Canyon Lake has discussed with Lake Elsinore repeatedly: the location of the multi-purpose trail. To date Lake Elsinore staff and Planning Commissioners have taken the position (as set out in the staff report at pages 5 and 6 of 66-Exhibit C), that the trail will not in any way benefit anyone in Lake Elsinore or this commercial development, but that it is only for Canyon Lake residents. That position has led to the following problems: 1) apparently the trail has been located in its current location because the applicant already has a different "no build" easement in that area, not because it is the appropriate location for such a trail; 2) the trail is part of an overall County system for public benefit as indicated in the Elsinore Area Trails and Class I Bikeway System Figures 2.6 and 2.7 (Exhibits D and E); 3) the trail system is identified as a Lake Elsinore General Plan goal for public benefit and thus the project is not in compliance with the general plan; 4) the City has refused to consider relocation of the trail even though the current location constitutes traffic 31516 Railroad Canyon Road, Canyon Lake, CA 92587.951/244 -2955 • FAX 951/246 -2022 admin @cityofcanyonlake.com • www.cityofcanyonlake.com Objections to Mitigated Negative Declaration October 28, 2008 Page 2 hazards in both cities; 5) the proposed mitigation for traffic impacts is unenforceable because it is on private property; 6) Lake Elsinore failed to notice Canyon Lake residents who live adjacent to the proposed project or to adequately mitigate impacts on them. Lake Elsinore's position apparently is based upon a misunderstanding of the trail. The importance of multipurpose trails including the connection of this trail to the Countywide system of trails and open space is confirmed in the Lake Elsinore General Plan as Goal No. 24.1 (Exhibit F), "Encourage public and private systems that interface with other existing and proposed trails (i.e., bikeways) assuring links with City, County of Riverside, and state recreational facilities." Similarly the Riverside County General Plan by Policy No. C 15.3 (Exhibit G) states: "Develop a trail system which connects County parks and recreation areas while providing links to open space areas, equestrian communities, local municipalities, and regional recreation facilities (including other regional trail systems)." The purpose of the trail system is to provide recreational opportunities for all County residents, not simply those in Canyon Lake. This letter is provided to explain why this project requires, at a minimum, a focused EIR for the traffic impacts. The purpose of such an EIR would be to allow an examination of the alternative sites for trail placement so that the Lake Elsinore City Council, as the final decision maker, has before it all appropriate information. At the same time, preparation of that document would allow additional time for proper noticing of Canyon Lake residents who in some cases are within 60 feet of the commercial building on Parcel 4 of Tentative Parcel Map No. 36066, and whose interests have not been considered by Lake Elsinore. An EIR, not a mitigated negative declaration ( "MND "), is required here pursuant to Section 15073.5(d) of the CEQA guidelines. The legal reasons for that requirement are discussed in this letter. Additional evidence supporting such reasons is or will be contained in the record of this hearing. The reasons for the City of Canyon Lake's continued objections to this project as designed are based on CEQA as well as other concerns and include: • Lack of specific notice to Canyon Lake residents, the City of Canyon Lake and the Canyon Lake Property Owners Association. • Inconsistency with the Lake Elsinore General Plan. • An EIR is legally required for the project. • Traffic safety impacts from the present location of the trail were not addressed in the project traffic study prepared by Urban Crossroads. • No discussion of the impacts of climate change for the project. Objections to Mitigated Negative Declaration October 28, 2008 Page 3 • Residents' personal observations constitute valid evidence. • The negative declaration does not adequately address response by police and fire services. • Lack of appropriate mitigation of construction related impacts. Non -CEQA Concerns I. Lack of Notice - Residents were not notified of the project This dispute is not about a few individuals opposed to a project because it impacts their property. This is about the traffic (including safety), noise and air quality impacts on an entire community of over 11,000 resident, where those impacts have been ignored because the people live in a neighboring community. It is unclear how or if Lake Elsinore notified Canyon Lake residents of the development other than by posting signage on site, despite the fact that the City of Canyon Lake provided Lake Elsinore with mailing addresses for the three residents immediately adjacent to the site. At a minimum, the CUP here requires mailed notice to surrounding residents. Because the City of Canyon Lake is gated does not mean that negative impacts from this project stop at the gate. Ironically, Lake Elsinore will be happy to obtain business from Canyon Lake residents, but will do nothing to insure that their environment is preserved. II. Inconsistency with the Lake Elsinore General Plan The Lake Elsinore general plan provides as follows: The condition for this trail fails to implement that statement in the general plan, and instead leaves the trail "up to the developer." Therefore, the project is not consistent with the general plan and, as such, cannot be approved. CEQA Concerns III. An EIR legally is required for this project now. A public agency approving a project independently must certify a CEQA document which contains complete information about the project. (See, for example, Burbank-Glendale-Pasadena Aizport Authority v. Hensler (1991) 233 Cal. App. 577). In fact, the burden is on the City to support the MND by showing that significant impacts will not occur. (Sundstrom v. County of Mendocino (1988) 202 Cal. App. 3d 296). Objections to Mitigated Negative Declaration October 28, 2008 Page 4 It is important to remember what CEQA requires: "CEQA compels an interactive process of assessment of environmental impacts and responsive project modification which must be genuine. It must be open to the public, premised upon a full and meaningful disclosure of the scope, purposes, and effete of a consistently described project, with flexibility to respond to unforeseen insights that emerge from the process." (Burbank - Glendale, supra, quoting Mira Monte Homeowners Assn. v. County of Ventura (1985) 165 Cal. App. 3d 357, 366). If a fair argument can be raised on the basis of "substantial evidence" in the record that the project may have a significant adverse environmental impact - even if evidence also exists to the contrary - then an EIR is required. (Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal. App. 4th 1170). There is or will be substantial evidence in the record of this City Council hearing that supports such a fair argument. In addition, as the City already agrees, there is "public controversy" in addition to substantial evidence, as this project is opposed by the Wildlife Agencies, the City of Canyon Lake, members of the County Trails Committee and various area residents, and the Regional Water Quality Control Board. "The decision-making body of the lead agency shall adopt the proposed negative declaration only if it finds on the basis of the whole record before it (including the initial study and any comments received), that there is no substantial evidence that the project will have a significant effect on the environment. (Guidelines Section 15074(b)). Prior to carrying out or approving a project for which a negative declaration has been adopted, the lead agency shall consider the negative declaration together with comments that were received and considered. (Id.). The Agency must prepare an environmental impact report (EIR) if it is presented with a fair argument that a project may have a significant effect on the environment, even where it is also presented with other substantial evidence that the project will not have a significant (Guidelines Section 15064(.0(1)). This is because an EIR is the key to environmental protection under the California Environmental Quality Act (Emphasis added). (Lighthouse Field Beach Rescue, supra). IV. The Traffic Study fails to analyze the traffic impacts of the present trail location. Objections to Mitigated Negative Declaration October 28, 2008 Page 5 A careful examination of the Traffic Study and supporting documentation shows that the end location of the trail on Greenwald, next to the Canyon Lake North exit gate never was considered until Canyon Lake raised the issue in a letter dated September 2, 2008 (Exhibit H). The response to that letter shows that rather than actually examine the issue and revise the traffic study — or relocate the trail - Lake Elsinore put it aside by saying the trail was of no benefit to those outside Canyon Lake and the developer should not be charged for mitigation. Rather the City of Canyon Lake and the Canyon Lake Property Owners Association was furnished with a letter from Urban Crossroad, August 22, 2008 (Exhibit I), listing improvements that would have to be made to the Community's north gate, as a result of the proposed project, prior to the project being occupied in order to mitigate for the safety of trail riders. The Canyon Lake Traffic Engineer, Thomas Wheat, has provided evidence of the need for additional study in his letter dated October 28, 2008 (Exhibit J). Traffic hazards following alternatives at a minimum must be studied: • Locating the trail crossing at the proposed intersection of Greenwald Avenue and Dowling Road, • having the trail crossing underground next to the proposed culvert, and, • locating the trail on the western edge of the development. An EIR is required here so that the alternatives to the current placement of the trail may be analyzed and considered by the decision maker. An EIR must describe a reasonable range of alternatives to the proposed project, or to its location, that would feasibly attain most of the project's basic objectives while reducing or avoiding any of its significant effects. Pub. Resources Code section 21100(b)(4), 14 CCR section 15126.6(a). It should also briefly identify alternatives rejected as infeasible and explain why they were rejected. 14 CCR section 15126.6(c). We have not located Lake Elsinore's guidelines, if any, for locating such trails. By way of example, Section C 16.6 of Chapter 4 in the Riverside County General Plan specifies guidelines for siting a trail in a new development. The guidelines are attached as Exhibit G. These guidelines state that when a trail is to be reserved through the development approval process, based the precise trail alignments on the physical characteristics of the property, assuring connectivity through adjoining properties. Canyon Lake staff presented the proposed County trail system, to Lake Elsinore, prior to and at the Planning Commission meeting. As can be seen on Exhibits K and L, the current location of the trail along the far east side of the Objections to Mitigated Negative Declaration October 28, 2008 Page 6 proposed site does not connect to the remainder of the regional trail system, despite Goal No. 24.1 in the Lake Elsinore General Plan. The proposed trail on the east side of the property is not the appropriate width per the County standards. The trail is shown at eight feet and the County minimum per the attachment is 14 feet. The trail placement at the east side of the project adjacent to a residential area, an eight foot high wall and adjacent to a seven foot densely planted landscape area which is to serve as additional buffer between the proposed project and the existing Canyon Lake residents seems like an afterthought. Additionally the proposed trail does not have a barrier between it and the parking lot instead the proposed eight feet of trail includes the curb which is part of a driveway that is also shared by a loading zone. Trail experts and trail riders have repeatedly expressed concern with mixing riders and horses with delivery trucks and golf carts in a parking lot as the horses stand a chance of getting spooked which will ultimately not be good for the rider or the owner of the proposed project. V. The MND fails adequately to mitigate up to three years of air quality and noise impacts during construction and the impacts on residents within 60 feet of a commercial development that includes a gas station, drive-through and loading docks. The Canyon Lake Building Official, Anne Schneider, has identified the following problems with the mitigation measures in the MND in her letter dated October 28, 2008 (Exhibit M): • Refusal to consider alternative trail locations, i.e. the conditions provide for an underground wildlife culvert but not one for riders and horses. • Failure to mitigate noise and glare from truck deliveries adjacent to Canyon Lake residents which are allowed up to 10 :00 p.m. at night under the CUP; the proposed loading zone is only 41 feet from adjacent Canyon Lake residential properties. • Lack of evidence that the eight foot noise barrier will mitigate noise. • No specific requirement for shielding light from residential properties. • Approval of a height variance for 40 foot towers that are structurally unnecessary and adjacent to residential property. • Inadequate mitigation for almost three years of ongoing construction related impacts. • Inadequate monitoring during construction. • Inadequate screening of equipment from view for all residential areas as five feet may not be enough. Objections to Mitigated Negative Declaration October 28, 2008 Page 7 There is no discussion of PM 2.5. PM 2.5 is fine particulate matter that primarily impacts infants, children, the elderly and those with cardiopulmonary disease. The California Air Resources Board and EPA have set state and federal standards for PM 2.5. Despite the proximity to existing residential development, there is no analysis of PM 2.5. The MND inadequately addresses possible future changes in the project. For example Condition Nos. BI-3, 4 &5, for example, say if the scope of the project changes in the future, no further CEQA review is required. Instead, the applicant only will be required to get any applicable permits. This is not permissible. If the project changes, the City, as the lead agency, must assess the nature of the change based upon new facts and determine if an addendum, supplemental or subsequent EIR is required. VI. The MND fails to adequately address police and fire response times. The MND does not adequately address response by police and fire services. The Cities of Canyon Lake and Lake Elsinore are both served by contracts with Riverside County Fire Department (Cal Fire) and the Riverside County Sheriffs Department. The MND section XIII. a and b, references response to the proposed project would be by Station No. 10 engine located on Graham Avenue in Lake Elsinore. Further the MND text states that response time would be three to five minutes after dispatch. The MND fails to reference the proximity of Canyon Lake Station No. 60 to the site. Station 60 is located approximately one-quarter (1/4) mile from the site on Greenwald/Vacation Drive and would have a response time of one minute after dispatch. Currently if there were a call from the site Canyon Lake Station 60 would be directly dispatch. This information was provided by Captain Brent Carter of Cal Fire. Captain Carter has over 23 years of fire experience from the Air Force and from his position with Cal Fire. He is the primary Captain assigned to Station No. 60. Likewise the MND section XIII. b. refers to Sheriff response from Limited Avenue in Lake Elsinore and notes that the location is approximately 3.7 miles from the site. The actual response time if the officer is coming from the station would be much greater as the route would be from the west side of I-15 to SR 74 into Meadowbrook onto Greenwald .Road to reach the site. Canyon Lake substation is located in the Canyon Lake Towne Center at Canyon Lake Drive North and Railroad Canyon Road, response time from the station to the north gate is three to five minutes, Code 3 (with normal driving time from eight to 10 minutes). Objections to Mitigated Negative Declaration October 28, 2008 Page 8 It is not clear why the City of Lake Elsinore is unwilling to recognize the existence of automatic aid they have with the City of Canyon Lake especially when it relates to life safety. This section of the MND needs to be amended with consideration of the existing facilities and automatic aide. VII. The MND fails to address the impacts of climate change. Under "Air Quality" factor of the Initial Study, a full analysis of AB-32 (Global Warming Act of 2006) must be addressed. This includes short and long term implications of the project like dust from construction and construction vehicles, vehicle trips from project as depicted in the Traffic Impact Analysis mitigation measures recommended to address potential impacts. The project site is located adjacent to single family residential development that will be impacted by short term impacts of the project such as construction and long term impacts such as delivery trucks parked in loading areas adjacent to existing homes in the City of Canyon Lake. VIII. Residents' personal observations constitute valid evidence. Several individuals and users of the equestrian trails throughout the County have pointed out that the information used to justify the mitigated negative declaration overlooked practical impacts. This testimony should be considered in light of the obvious flaws on the face of the studies relied upon here, as explained below. Resident testimony based upon personal observation constitutes substantial evidence for requiring an EIR. Members of the public hold a "privileged position" in the CEQA process." (Concerned Citizens of Costa Mesa v. 32nd District Agricultural Association (1986) 42 Cal. 3d. 429). "Scientific or expert studies are not required to provide substantial evidence to support a fair argument the project may have significant environmental impacts." (Arviv Enterprises v. South Valley Area Planning Commission (2002) 101 Cal. App, 4th 1333, 147). "The administrative record ordinarily is very limited where there is only an initial study and no EIR. Project opponents who challenge a negative declaration often have no expert studies to rely on. Recognizing this, courts have held that the absence of expert studies is not an obstacle because personal observations concerning nontechnical matters may constitute substantial evidence under CEQA. (citing Arviv, supra)." Mejia v. City of Los Angeles (2005) 230 Cal. App. 4th 322, 339. For all of these reasons, as well as those placed in the record at public hearings, we ask that an EIR be required for this project. Objections to Mitigated Negative Declaration October 28, 2008 Page 9 Very truly yours, Lori Moss City Manager Cc: Canyon Lake City Council. Canyon Lake Property Owners Association Board Members Regional Water Quality Control Board Riverside County Regional Conservation Authority Elizabeth Martyn, City Attorney Pete Racobs, POA Corporate Attorney Mario Suarez, City Planner Anne Schneider, Building Official Habib Motlagh, City Engineer Thomas Wheat, City Traffic Engineer FIORE RACOBS & POWERS -A PROFESSIONAL LAW CORPORATION ORANGE COUNTY OFFICE DENNIS M. BURKE' 38 TECHNOLOGY DRIVE, SUITE 250 RICHARD S. FIORE' MINDY L. JOSLIN 6820 INDIANA AVE., SUITE 140 IRVINE, CALIFORNIA 92618.2301 (949) 727-311 1 DAVID A, KLINE RIVERSIDE, CALIFORNIA 92506-7202 FAX (949) 727 -33i 1 JOHN R, MACDOWELL' JESSE W.J,MALE TELEPHONE (951) 369-6300 ERIN A. MALONEY' FAX (95 1) 369 -6355 AMANDA N. OWEN" ALEJANDRO PORTALES COACHFI LA VALLEY OFFICE JANET L.S. POWERS' WORLD WIDE WEB SITE 74.361 HIGHWAY III, SUITE I CHESTER A. PUCHALSKI HTTP: / /WWW.FIORELAW.COM PALM DESERT. CALIFORNIA 92260 PETER E. RACOBS' (760) 776-6511 SARAH M. REED FAX (760) 776 -6517 PAUL M VARGAS 2008 00 MARGARET G. WANGLER' October 27, 20 REPLY TO Riverside 'DENOTES SHAREHOLDER File No. 62873 -01 "OF COUNSEL FEDERAL EXPRESS Hon. Daryl Hickman, Mayor Ms. Genie Kelley, Mayor Pro Tem Mr. Thomas Buckley, Councilman Mr. Robert 'Schiffiner, Councilman Mr. Robert "Bob" Magee, Councilman City of Lake Elsinore 130 South Main Street Lake Elsinore, CA 92530 Re: Mitigated Negative Declaration No. 2008 -07 Conditional Use Permit No. 2008-01 Tentative Parcel Map No. 36066 Commercial Design Review No. 2008 -01 Subject: Objections to the Above - Referenced Mitigated Negative Declaration, CUP, and Tentative Parcel Map My Client: Canyon Lake Property Owners Association Honorable Mayor and Council Members: This letter is provided on behalf of the Canyon Lake Property Owners Association ( "POA "). As explained below, the above - referenced project requires a full Environmental Impact Report ( "EIR "), not a Mitigated Negative Declaration ( "MND "). AN EIR IS LEGALLY REQUIRED An EIR is required for any project that a public agency proposes to carry out or approve that may have a significant effect on the environment. [Pub. Resources Code § §21100(a), 21151(a).] The EIR is recognized as the "heart of CEQA" and is intended to "inform the public and its responsible officials of the environmental consequences of their decisions before they are R0119315.1 EXHIBIT A FIORE RACOBS & POWERS -A PROFESSIONAL LAW CORPORATION - Hon. Daryl Hickman, Mayor Ms. Genie Kelley, Mayor Pro Tem Mr. Thomas Buckley, Councilman Mr. Robert Schiffner, Councilman Mr. Robert "Bob" Magee, Councilman October 27, 2008 Page 2 made." (Laurel Heights Improvement Assn. v. Regents of the University of California (1993) 6 Ca1.4th 1112, 1123, emphasis in original.) An MND, by contrast, may be prepared and adopted in lieu of an EIR "only if project revisions would avoid or mitigate the potentially significant effects identified in an initial study 'to a point where clearly no significant effect on the environment would occur, and ... there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment.'" [Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 331, quoting Public Resources Code Section 21064.5 and citing Public Resources Code Section 21080(c)(2).] This legal standard reflects CEQA's preference for EIRs over Negative Declarations. "There is 'a low threshold requirement for preparation of an EIR' (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 84), and a 'preference for resolving doubts in favor of environmental review' (Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1316- 1317)." (Bowman v. City of Berkeley (2004). 122 Cal.App.4th 572, 580 -581.) In fact, an EIR must be prepared whenever it can be "fairly argued" on the basis of substantial evidence that the project may have a significant environmental impact, even if there is substantial evidence to the contrary. Arviv Ente Irises Inc. v. South Valle Area Plannin! Comm. (2002) 101 Cal.App.4th 1333, 1346.) THE PLANNING COMMISSION STAFF REPORT IGNORES THE LEGAL OBLIGATIONS OF THE CITY AND THE APPLICANT The Planning Commission Staff Report dated October 7, 2008, asserts that: City staff and the applicant have done their best to provide amenities for the Canyon Lake residents, and have expended considerable effort in doing so, including attending a meeting at Canyon Lake on September 2, 2008, in an attempt to resolve issues raised by the Canyon Lake staff and POA. Canyon Lake staff has reviewed recommendations by Urban Crossroads to provide traffic control measures at the north gate for the purposes of safety. These measures include appropriate signage and gate exit treatments, and do address the concerns of Canyon Lake staff. Unfortunately, the Canyon Lake staff and POA continue to be R0119315.1 FIORE RACOBS & POWERS ----A PROFESSIONAL LAW CORPORAT7ON- Hon. Daryl Hickman, Mayor Ms. Genie Kelley, Mayor Pro Tem Mr. Thomas Buckley, Councilman Mr. Robert Schiffner, Councilman Mr. Robert "Bob ". Magee, Councilman October 27, 2008 Page 3 unwilling to implement any of the appropriate measures as recommended. (Emphasis added.) The City staff and the applicant have recognized that the project will create safety problems at the POA's north gate. However, neither the City staff nor the applicant have addressed the adverse impacts created by the applicant's project. Instead, they want to shift the burden of addressing the project's impacts onto an existing conforming use outside the boundaries of the project and your City, a use that has been in place for 40 years. There is no legal basis for the City to expect the POA to redesign and reconstruct its north gate to mitigate this project. "There are two things an agency cannot do: It cannot acknowledge a significant impact, refuse to do or find anything else about it, and approve the project anyway. And it cannot acknowledge a significant impact and approve the project after imposing a mitigation measure not shown to be adequate by substantial evidence." (Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 724.) The attitude reflected in the City Staff Report, that the POA and Canyon Lake are seeking some "amenities," is entirely misplaced.' For 40 years, Canyon Lake residents and other area residents have lawfully used trails in the vicinity of and crossing the project site. The applicant proposes to reroute those trails along the eastern boundary of the project, effectively creating an alleyway which will lead to a blind crossing of Greenwald Avenue immediately adjacent to the exit lane of the POA's north gate. As the POA's consulting engineer, Albert A. Webb Associates, pointed out in a memorandum dated September 2, 2008, directed to Wendy Worthey, your Principal Environmental Planner, to avoid the blind crossing, the trail crossing should be relocated as far west as possible from the POA's gate "to minimize or eliminate potential hazards from this blind crossing." The POA's engineer pointed out that a trail and equestrian crossing at the intersection of Dowling Street and Greenwald Avenue would be an appropriate alternative. 'Your City's staff characterization of this issue as "amenities for Canyon Lake residents" overlooks the fact that the trails in this area are part of the county's regional trail system. These multiuse trails are used by hikers, bicyclists, golf carts and dirt bikes. The users of this trail system come from your City, other cities, as well as the unincorporated area of the county. This trail system is not a Canyon Lake amenity. 80119315.1 FIORE RACOBS & POWERS -A PROFESSIONAL LAW CORPORATION - Hon, Daryl Hickman, Mayor Ms. Genie Kelley, Mayor Pro Tem Mr. Thomas Buckley, Councilman Mr. Robert Schiffner, Councilman Mr. Robert "Bob" Magee, Councilman October 27, 2008 Page 4 The POA's engineer also pointed out the need for the City to anticipate customer traffic from a number of the approximately 2,400 golf carts within the POA who will be drawn as customers to the site. Setting speed limits and adopting the appropriate ordinances to allow golf cart use within the public streets of the project will help safely accommodate this source of customer traffic in the project. The mitigation measures suggested by the POA are not onerous or unreasonable. They are steps that would mitigate serious safety issues created by the current proposed design of the project. CONCLUSION For all of the above reasons, as well as those set forth in your City's file on this project, including the above - referenced memorandum of the POA's engineer; the September 2, 2008, letter from Mario Suarez, City Planner for the City of Canyon Lake; and those placed on the record at public hearings, we ask that an EIR be required for this project in accordance with California law. Very truly yours, FIORE, RACOBS & POWERS A Pr ional Law Corporation eter E. acobs PER:cin cc: Board of Directors, Canyon Lake Property Owners Association (via e-mail) Mr. Tom Weiner, Acting Director of Community Development, Lake Elsinore (via fax) Mr. Ed Sails (Applicant) Mr. George Filios (Owner) Elizabeth Martyn, City Attorney, Canyon Lake (via e-mail) R0119315.1 ALBERT A. WEBB ASSOCIATES Ref. W.O. 95 -0220 Consulting Engineers File No. 4330.00 MEMORANDUM TO: Wendy Worthey, Principal Environmental Plane- 'ty of Lake Elsinore FROM: Scott R. Hilde brandt, P.E., Vice Presi c .. -4 SUBJECT: Comments on Mitigated Negative Declaration (MND) No. 2008-07 Commercial Design Review No. 2008 -01 Tentative Parcel. Map No. 36066 Conditional Use Permit No. 2008 -01 DATE: September 2, 2008 Albert A. Webb Associates is the Corporate Engineer for the Canyon Lake Property Owners Association (POA). As such, we have been asked to review the above referenced project on behalf of the POA to ensure that there are no impacts to the POA or its residents. While we believe we have resolved most issues affecting the Property Owners Association, we are still concerned with the following: The City of Lake Elsinore Planning and Engineering staff, City of Canyon Lake Planning and Canyon Lake Property Owners Association Operations Manager met with us today to go over concerns with the latest proposed Greenwald Commercial Center development plans. The following comments are still of a concert to the POA: Greenwald Avenue - The proposed access located along the eastern boundary has limited visibility and creates a blind crossing that should be addressed in the planning prbcess. One of the alternatives discussed at our meeting today is to relocate the entry as far west possible from the City's gated entry to minimize or eliminate potential hazards from this blind crossing. An alternative to the proposed access is to allow golf carts to access the proposed commercial property from the street and have an equestrian crossing at the intersection of Dowling Street and Greenwald Avenue. There are approximately 2,400 street legal golf carts in the gated residential community that comprises the POA. Several of the residents in the area of the proposed project would use this mode of transportation to travel to the project, Please consider adopting the appropriate ordinances to allow golf cart use within the public streets of the proposed Greenwald Commercial Center. G:\1995\95- 0220\Corrrments on Mitigated Neg Dec 2008- 07.doc EXHIBIT B • In order to address the street transition area located along Greenwald Avenue from the POA boundary to Dowling Street, the City of Lake Elsinore Traffic Engineer indicated that the City of Lake Elsinore could stripe the street to address the street transition issues. The City of Lake Elsinore Traffic Engineer did not want to consider a transition of the curb and gutter that would transition from the eastern boundary of the project on Greenwald Avenue traveling in a western direction to Dowling Street as this would not allow for a right -hand turn pocket in the Center. Our concern is that the drainage appears to flow from east to west along Greenwald Avenue. The project will need to perpetuate the drainage pattern so that runoff does not pond within the street. Future Comments: The Canyon Lake Property Owners Association reserves the right to provide additional comments based on revised plans or public hearings held for the project. Please provide this office and the POA with notice of any future hearings of the project proposal and copies of staff reports with attachments. cc Lori Moss, City Manager, City of Canyon Lake Mario Suarez, City Planner, City of Canyon Lake Paul Johnson, CLPOA G:\i995\95 -0220 \Comments on Mitigated Nag Dec 2008- 07.doc PLANNING COMMISSION STAFF REPORT MND 2008 -07, C2008 -01, CUP 2008 -01, TPM 36066 OCTOBER 7, 2008 therefore may not represent ideal conditions from a reserve design standpoint. However, the overall width of the Linkage will not be compromised, nor will the goals and objectives of the MSHCP as it relates to this Linkage. To minimize edge effects, the City has required the project incorporate Urban Wildlands Interface Guidelines as defined in Section 6.1.4 of the MSHCP. It should also be noted that not only can the project be considered consistent with the MSHCP based upon its own merits, this project was one of an overall group of projects that was considered consistent with the MSHCP on a cumulative basis at the time the City was considering whether or not to participate in the MSHCP. Because the project completed the JPR process as required, and was determined consistent with the MSHCP, no further analysis as it pertains to CEQA is required. Further, payment of mitigation fees and compliance with Section 6.0 is intended to provide full mitigation under CEQA. As such, an MND was and continues to be the appropriate CEQA document for the Greenwald project because all impacts can be mitigated to less than significant levels. An EIR is not required for this project pursuant to CEQA Guidelines Sections 15006 and 15070. City of Canyon Lake In response to those commenting on behalf of Canyon Lake, the primary issue has and continues to be the location of the multi - purpose trail. During the early phases of project design, the applicant and City of Lake Elsinore (City) staff worked together to include amenities, specifically golf cart access and an equestrian trail based upon requests by City of Canyon Lake staff [Canyon Lake and the Property Owners Association (POA)]. Although these amenities do not benefit the citizens of Lake Elsinore, these amenities were agreed upon in good faith for the Canyon Lake residents. At the request of the Canyon Lake staff because of their concerns regarding their own liability, the amenities are being modified. The existing easement along the eastern edge of the proposed project was preserved by the applicant with the intent that the area would be used as a multi - purpose trail. Canyon Lake staff expressed concern over the trail's location due to its proximity to the north gated entrance of Canyon lake. They suggested the trail be relocated to the west side of Dowling Road away from the gated entry. There are considerably more conflicts associated with the Dowling location. These conflicts are related to safety such as sight distance issues and a lack of intersection control in this area. Traffic would be moving at higher speeds at Dowling than at the gated entryway. The City does not believe that the applicant should bear the financial burden associated with installation of a traffic signal at this Dowling location when technical analysis provided evidence that there are no significant traffic impacts associated with the project as proposed. In addition, the intent at Dowling would be to direct trail users to the south across Greenwald over to another proposed commercial area. Currently there are no existing rights of access to this commercial area. Furthermore, running the trail through the proposed project along Page 5 of 7 EXHIBIT C Agenda Item No. L Page6 of } PLANNING COMMISSION STAFF REPORT MND 2008 -07, C2008 -01, CUP 2008 -01, TPM 36066 OCTOBER 7, 2008 Dowling may not in itself warrant any additional regulatory permitting process; however, additional expense would have to be borne by the applicant to ensure that the horses do not venture off the trail and into sensitive protected areas. In summary, City staff and the applicant have done their best to provide amenities for the Canyon Lake residents, and have expended considerable effort in doing so, including attending a meeting at Canyon Lake on September 2, 2008 in an attempt to resolve issues raised by the Canyon Lake staff and POA. Canyon Lake staff has reviewed recommendations by Urban Crossroads to provide traffic control measures at the north gate for the purposes of safety. These measures include appropriate signage and gate exit treatments, and do address the concerns of Canyon Lake staff. Unfortunately, the Canyon Lake staff and POA continue to be unwilling to. implement any of the appropriate measures as recommended. The Canyon Lake staff and POA continue to request that the entire burden of expense and liability be placed upon the City of Lake Elsinore and the applicant for whom the benefits do not apply. The successful incorporation of the amenities for Canyon Lake residents requires participation by the City of Canyon Lake staff and POA. The City of Lake Elsinore respectfully continues to make the opportunity available for Canyon Lake to participate in the steps necessary to provide the desired amenities for their residents. Staff has determined that the Mitigated Negative Declaration for the Project is adequate and has been completed in accordance with CEQA, the State CEQA Guidelines, and the City's procedures for implementation of CEQA. RECOMMENDATION Staff recommends that the Planning Commission adopt resolutions recommending to the City Council of the City of Lake Elsinore that they adopt or approve: 1) Findings of Consistency with the Multiple Species Habitat Conservation Plan, and 2) Mitigated Negative Declaration No. 2008 -07 and the Mitigation Monitoring and Reporting Program appertaining thereto, and 3) Tentative Parcel Map No. 36066. • Staff recommends that the Planning Commission adopt resolutions approving: 1) Commercial Design Review No. 2008 -01, and 2) Conditional Use Permit No. 2008 -01. Page 6 of 7 Agenda Item No. Z Page (, of jdo N 0 CO • O (C N u) N g W.. _ = LL —i d)) O o :<"�4 V - \ ). - ,,• , ..13:4i - 19A t sae... ' ,. , � s m it, ? $ 2NWUF -U6. P • , :. AV, ,., ,. - ,..,.:(.. ,,, , . io . .f . . . Illit ,... ,,,,... , , , ; : i 3 G ' ,, i ,, N# o. /0„ ,..; to cc Q h N CO F CO O Z U U U N n CD • A D Cip ckl a ci) v 4' a o � \ a LL `" EXHIBIT D • ELSINORE AREA TRAILS AND CLASS 1 BIKEWAY SYSTEM _ v `. , U i4714';', 4x" a r '' • a < v wiz ,n 40 , �" ru° w ° r ah � ",� I 4 t ,a h , .,z9 r . goo r ry .$ „iiiigr iff4, A, 1ff , , , t* Z, ',it, , , 11 it, l''' 4-4 i ‘i ' it' ..* i . 4401) ,.. 4 ",k; '' = #,..' oN, '1, ,,,,,, t .„ „0,4, iA � � � �; r"" ' �yx� . " % "mss ,a � e.r.: 7K If ilill a �` s , - /,,, p Via+ -3, f. 4 4,,k, i.„ 7 '' ' jl Ala s ' n ,,, ". Hinton Kefti •d . N s a � ✓ ' r > v f" rem a + 4 ,,-; item". ■ ' " x * , a z � ., f. "� f , ' y' ,, r k y , c "� ' o-a .it '` y A Q 4 ,. 2 0 9 0 l✓ i c y '..r `► r b: r or, �`b *'� 9 ¢ 7 'Jo r P ✓ N A il HISTORIC TRAIL REGIONAL PARKS x N CLASS 1 BIKE PATH /REGIONAL TRAIL PUBLIC /QUASI - PUBLIC LANDS OW m e REGIONAL TRAIL WA TER a s A J COMMUNITY TRAIL ��� CITY ';'• Al AREA PLAN BOUNDARY c‘r CLASS I BIKE PATH T. �� / o t o NATIONAL FOREST or PARK /BLM TRAIL ( a is" LAKE LOOP TRAIL CONCEPT w 0 O W • Figure provided by Urban Crossroads W City E lsinore Area Trails and Biof kewLake Elsinore ay System aSSS Jones & Stokes Figure 2.7 EXHIBIT E CITY OF CHAPTER 2 LADE 6, LS IIYOR lir DREAM EXTREME 23.5 Explore public - private partnerships, corporate sponsorships, and leasing agreements for the provision of additional parks and recreational facilities and programs including cooperation with applicable school districts to allow joint use of facilities. 23.6 Consider amending Resolution No. 91 -42 in order to allow private park acreage to fulfill a portion of the public park dedication requirement for residential projects, when a private park complies with City public park standards. 23.7 Consider the addition of a centralized forum for community activities such as a convention center, amphitheater, cultural arts center, or waterfront promenade. 23.8 Continue to work with the Lake and Aquatics Resources Department to develop public beach lands and recreational facilities such as campgrounds, boat launch areas, and Diamond baseball stadium to complement the state and county recreation system. 23.9 Encourage the development of private recreational facilities within residential and mixed - use developments. 23.10 Ensure that recreation facilities are accessible to the elderly, children, and persons with disabilities as set forth in the Americans with Disabilities Act including increased wheelchair access, height variations on drinking fountains, and any other requirements necessary to service these individuals. Goal 24 Establish a primary trail network of equestrian and hiking trails. Policies 24.1 Encourage public and private systems that interface with other existing and proposed trails (i.e., bikeways) assuring links with the City, County of Riverside, and state recreational facilities. 24.2 Encourage the placement of equestrian boarding centers in locations that can easily access the trail system, and ensure that all equestrian boarding centers are required to meet all minimum public health standards for food, shelter, and hygiene. 2.9 Historic Preservation s �wt1 2.9.1 Introduction A city cannot attempt to understand its present or to forecast its future if it fails to recognize its past. By tracing its past, a city can gain a ' clear sense of the process by which it achieved its present form and '` - substance. Lake Elsinore's rich and varied historical C I T Y O F L A K E E L S I N O R E GENERAL PLAN 2 -68 EXHIBIT F 11