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HomeMy WebLinkAboutCC Minutes 1993-07-28SRCC MINUTES (Special) 7/28/93 Page 1 IN COUNCIL CHAMBERS OF THE CITY OF SAN RAFAEL, WEDNESDAY, JULY 28, 1993, AT 7:00 PM Special Meeting: Present: Albert J. Boro, Mayor Dorothy L. Breiner, Councilmember Paul M. Cohen, Councilmember Michael A. Shippey, Councilmember Joan Thayer, Councilmember Absent: None Also Present: Gary T. Ragghianti, City Attorney Jeanne M. Leoncini, City Clerk PUBLIC HEARINGS 1. PUBLIC HEARING - Z90-5, TS91-5, DA92-1, UP91-36, AND ED91-99- CERTIFICATION OF FINAL ENVIRONMENTAL IMPACT REPORT (FEIR) FOR SHORELINE CENTER, A 42+ ACRE BUSINESS PARK, INCLUDING AN APPROXIMATELY 102,190 SQUARE FOOT BULK RETAIL BUILDING WITH A GARDEN CENTER (Pl) - File 10-3 x 5-5 x 10-2 x 10-5 x 10-7 Mayor Boro explained the procedure to be followed. He stated he had spoken to both Planning Director Pendoley and attorney Al Bianchi prior to the meeting and they had agreed upon the procedure to be followed. He stated that the Planning Director and the representative of the applicant will have between them, collectively, 45 minutes to make their presentation to the Council. After that Mr. Bianchi will have 45 minutes for him and his associates to make their presentation to the Council. He added that at that point it should be approximately 9:00 PM and the Council will then take testimony from the public. He stated the Council will try to conclude the meeting by about 10:30 PM. Mayor Boro then declared the Public Hearing opened, on the Certification of the Final EIR for Shoreline Center. Planning Director Pendoley informed the Council that his report will be in several portions. He will begin with a description of the project itself, and the give an overview of the environmental review process. He stated that the consultant who prepared the EIR will give a presentation on the principal issues in the document. Following that, Lloyd Strom, Assistant Public Works Director, will comment on aspects of the traffic analysis which have been at issue. Sheila Delimont from the Planning Department will speak briefly about setbacks, which are an important aspect of the biologic issues in the EIR. Mr. Pendoley reported he will conclude with an explanation of the EIR's response to comments on the economic issues. Mr. Pendoley first gave a description of the project, stating that the property owner is proposing a Master Plan for the development of a 42 -acre property which he is calling the Shoreline Center. The proposal is that it would be a business park. The project includes approximately 102,000 square feet of warehouse retail store space, with another 22,000 square feet of garden center. Mr. Pendoley pointed out that this is the Home Depot part of the project. An additional 88,000 square feet is proposed for specialty retail for which there are no tenants at this time, plus 373,600 square feet of light industrial, 93,400 square feet of office, and possibly another 45,000 square feet of office space. Mr. Pendoley explained that the applications which are the subject of this report include a rezoning, use permit, tentative map, environmental and design review and a Development Agreement. Mr. Pendoley gave an overview of the process, stating that the original application was submitted early in 1991. In September of 1991 the City Council authorized a contract with our environmental consultants, the firm of CH2M Hill. On November 26, 1991, the Planning Commission held a Public Hearing to scope the EIR, and identify issues which should be included in the EIR. After that hearing, the issue was turned back over to the consultant and one year later, on November 23, 1992, the Draft EIR was completed and circulated for public comment. Mr. Pendoley explained that the Planning Commission's hearing on the Draft EIR (DEIR) occurred on January 12, 1993. After that hearing, at which many comments were received, the consultant was directed to respond to all comments in writing and they produced another document called the Draft Final EIR (DFEIR). Mr. Pendoley stated that in order to make that document convenient and understandable, particularly in light of the sheer size of the report, it was produced in two volumes. One was a collection of the actual comments received and response to those comments. The second was a DFEIR, which included all of the original material from the DEIR, as well as all the changes which were generated by comments. Mr. Pendoley noted that the Planning Commission had held two Public Hearings on the draft, one on May 11, and one on May 25, 1993. The Planning Commission met a third time on the DFEIR in June, and voted to recommend certification. Mr. Pendoley pointed out that, although it is not the subject of this hearing, the Commission also held hearings on the rezoning, on June 15 and 29, 1993, and a final discussion meeting was held on July 13, 1993 when the Planning Commission voted to SRCC MINUTES (Special) 7/28/93 Page 1 SRCC MINUTES (Special) 7/28/93 Page 2 recommend the rezoning. He noted it is the action on the rezoning, as well as the certification, which brings the issues to the Council tonight. He stated that the purpose of tonight's meeting is to determine the adequacy of the FEIR. With respect to the definition of 'adequacy', he explained that the State in its guidelines to planning departments and the public has said that an EIR should be prepared with a sufficient degree of analysis to provide you, the decision makers, with enough information to enable you to intelligently evaluate and review possible environmental consequences. He explained the evaluation does not have to be exhaustive, and disagreements among experts do not make an EIR inadequate. He added that the courts do not look for perfection, but for adequacy, completeness and a good faith effort at full disclosure. Mr. Pendoley concluded by recommending that the Council urge the speakers to focus their comments on the adequacy of the EIR. The issue before the Council this evening is whether the EIR is adequate and not whether the project should be approved. The issue of the approval of the project will be the subject of the rezoning hearings, which are also scheduled for this evening. He noted that because the Council cannot take action on the rezoning until the EIR has been certified, they may not wish to open these hearings but hold them in abeyance until they have completed their action on the EIR. He added that is the customary way of proceeding. Mr. Pendoley stated that staff will respond in writing to all of the comments received tonight. He noted this item has been scheduled for further discussion at next Monday evening's meeting, but given the size of the crowd and staff's past experience studying this issue, we will expect there will be more comments than staff can respond to in the next two working days. In that case, staff will recommend that the hearing be carried over to August 16, 1993. Terry Babich of CH2M Hill, who has supervised most of the preparation of the EIR, addressed the Council. She explained she will give a presentation focusing on three issues. The first issue is the development assumptions which were used in the EIR impact analysis. The second issue is the determination of levels of significance which were developed to evaluate the potential impact in the EIR. Third, she will talk about a summary of some of the major issues of concern which were raised in the impact analysis. Ms. Babich explained that this summary focuses on the environmental topics: Traffic, biological resources, and issues of human health and safety. Ms. Babich addressed the development assumptions which were built into the EIR. She noted that the impact assessment in the EIR addresses project impacts at two levels. First, they address overall impacts associated with full buildout of the project site, pursuant to standards set forth in the Shoreline Center Master Plan. Second, the EIR addresses specific impacts attributable to the Home Depot project on Parcel 1, at the project site. The first issue is that specific projects at the Shoreline Center, other than the Home Depot project, have not been proposed at the project site, and individual site plans will not be available until future tenants are identified. She explained that to identify potential impacts resulting from full buildout, under implementation of the Master Plan, a set of development assumptions were established in the EIR to evaluate feasible worst case conditions which might happen under full development of Shoreline Center. Ms. Babich stated that the EIR assumes that all future projects at Shoreline Center will have the following general characteristics: 1) All projects must conform to minimum Master Plan development standards, such as building heights and building setbacks; 2) Buildings would be located within the building envelopes defined by building setbacks prescribed in the Master Plan; 3) Areas not covered by buildings, required landscaping, or building setbacks, would be covered and paved with impervious surface; 4) Building foundation construction and utility installation would require some penetration of the landfill cap; 5) Conceptual operating procedures and occupational safeguards which have been proposed to mitigate landfill gas impacts for Home Deport would be included in the Master Plan for future onsite development; 6) Visual impacts of future development would be similar to the proposed Home Depot project in terms of appearance, and future proposals would be required by the City to obtain an environmental and design review permit at a later date. Ms. Babich addressed the issue of levels of significance, specifically how do you determine what is a significant impact. She explained the methodology for determining levels of significance for evaluating potential impacts depends on the environmental topic. In some cases quantitative standards can be used, which have been promulgated by other agencies; in other cases more qualitative standards must be used. She gave the air quality impact analysis in the EIR as an example, stating that impacts are regulated by quantitative standards which have been promulgated by the Bay Area Air Quality Management District (BAAQMD) for criteria for pollutant concerns in the Bay Area. She explained that impacts on surface and ground water quality were compared to the U.S. EPA's national ambient water quality criteria for protection of salt water aquatic life. She noted that in other cases, she had to turn to the law, and rely on CEQA (California Environmental Quality Act) guidelines, to make a determination of what a significant effect is. Ms. Babich stated that the summary of significant impacts identified for the project is SRCC MINUTES (Special) 7/28/93 Page 2 SRCC MINUTES (Special) 7/28/93 Page 3 identified in the staff report before the Council. Ms. Babich addressed the issue of traffic proposed for the full buildout of Shoreline Center which would contribute to traffic congestion in the vicinity. She stated they had determined that the traffic caused by Home Depot would not cause significant deterioration in Levels of Service at intersections in the project vicinity. She added that independent analysis of Home Depot's potential traffic impacts were conducted by a second traffic consultant, and the separate analysis confirmed the levels of service predicted in the EIR traffic analysis for Home Depot and, in fact, predicted better levels of service than projected in the EIR. She stated that in response to public comments additional analyses were conducted as part of the traffic study for the EIR. Specifically, they looked at Home Depot's traffic effects on I-580 as well as U.S. 101. The results show that with implementation of the Home Depot project levels of service for all freeway segments will remain the same as the levels of service under present conditions, with the exception of eastbound I-580. The change for that freeway segment would move from Level of Service (LOS) B under present conditions to LOS C under project conditions. However, this change in LOS in not considered significant. Ms. Babich stated that concerns were also expressed regarding Home Depot's traffic impacts on the San Quentin Peninsula. She explained that based on existing traffic counts on local street and freeway facilities, and assuming worst case conditions, it was projected that 10 inbound and 10 outbound Home Depot project trips would use Sir Francis Drake Boulevard. She noted that the daily variance in PM peak hour traffic on any given facility in the project area street network is about equal to, or greater than, these 20 trips. Therefore, the traffic impact for Home Depot on this facility is considered negligible. Ms. Babich noted that Phase II of this development will need to compete with other projects through the PPP (Priority Projects Procedure) in order to ensure that there is available roadway capacity before projects can be approved for future development. Additional roadway improvements, such as the extension of Kerner Boulevard, and the Bellam/I-580/US-101 Interchange improvements, will also be required before full buildout of the project site can occur. Ms. Babich next addressed issues regarding biological resources, specifically the project's impacts on adjacent wetlands and pond habitat, particularly the marsh habitats located immediately north of the project site at the Canalways marsh. She reported that the project could indirectly cause degradation of these potential off-site habitats through increased lighting, increased vehicle and human activities, and increased discharges of storm water. The project also could isolate habitats to the north and south of the site, at the Canalways marsh and the MMWD pond, and impede wildlife movement between these habitats across the site. She noted that many mitigations in the EIR focus on establishing landscaping and setback standards around the sensitive edges of the project site. For example, landscaping is proposed along the edges of Parcels 1 and 6 adjacent to the City pond and Canalways marsh. Ms. Babich noted that the project applicant is responsible for landscaping 25 feet within the 50 foot building setback from the property line. The project applicant is also responsible for revegetating City -owned property adjacent to the northern and western borders of Parcel 1 and the norther border of Parcel 6. She stated that compared to existing conditions this landscaping would have a beneficial impact by providing a substantial increase in the value of existing degraded habitat at the perimeter and adjacent to the site. She added if the project site were not developed adjacent marsh areas would remain with low habitat value. She stated that implementation of proposed storm water quality and runoff control measures recommended in the EIR would also reduce the potential impacts to adjacent sensitive marshes attributed to storm water discharge from the project site. She noted that specific mitigation measures include installation of small oil and grease separators in parking lots to collect potential pollutants in the storm water, as well as implementation of a storm water prevention plan to control accidental spills at the project site. Ms. Babich stated that additional mitigation in the Biological Resources section of the EIR addresses the issue of the wildlife corridor and recommends an increase in the minimum width of the landscape buffer along the eastern edge of Parcel 6, and 10 to 371-� feet. She explained that this buffer migration corridor would be planted with native shrubs, grasses and other plants to provide cover and a food source for wildlife. She stated the corridor is adequate for the types of species which are predicted to use the buffer area and will provide a more protective movement corridor compared to what currently exists at the site and what is proposed at the San Rafael Shoreline Park. She noted that the California Department of Fish & Game has been consulted regarding these setbacks and landscaping requirements and they concur that the proposed buffers and setback areas are adequate. Ms. Babich addressed human health and safety concerns, specifically those issues associated with development over a closed landfill; primarily risk of upset from potential landfill gas emissions and water quality impacts resulting from potential degradation and migration of leachate from the landfill. She explained that these issues are associated with the site's former landfill operation, as well as its closure and post -closure SRCC MINUTES (Special) 7/28/93 Page 3 SRCC MINUTES (Special) 7/28/93 Page 4 maintenance activities and, as such, they fall under the regulatory purview of the appropriate responsible landfill agencies. She noted these agencies include the California Integrated Waste Management Board, the Regional Water Quality Control Board, and the Marin County Department of Health and Human Services. Under these agencies' regulatory purview the site is extensively monitored and is subject to the regulatory standards and requirements specified in the California Code of Regulations, the waste discharge requirements issued specifically for the site by the Regional Board, and a stipulated Order of Compliance and Agreement which has been entered into by the local enforcement agency and the project applicant. She explained that the project applicant is required to comply with all performance standards and regulatory requirements stipulated under Post -Closure Land Use Requirement and the Stipulated Order. In order to ensure that post -closure activities will not cause a potential threat to public health and safety, and the environment, all post -closure development at the project site must be reviewed and approved by the appropriate landfill closure agencies to demonstrate compliance with these regulations. Ms. Babich added that compliance with these regulations, in addition to implementation of the prescribed mitigation measures, could reduce potential impacts associated with health and safety concerns at the project site to a less than significant level. Ms. Babich concluded by stating that all potentially significant impacts identified in the EIR can be mitigated to less than significant level, with the exception of one impact related to air quality emissions. She explained that projected increases in local ambient PM10 attributable to traffic operations and automobile generation at full buildout of the Shoreline Center cannot be mitigated to levels below the BAAQMD's significance criteria. She stated that PM10 is extremely fine dust particles with a small diameter in size. She noted that common sources of PM10 include road dust, diesel soot, and tailpipe exhaust. No toxic substances would be present in PM10 emissions at the project site, because the landfill is covered with a soil and clay cap which does not contain hazardous constituents. Therefore, the fact that the site is a former landfill will not affect projected PM10 emissions at the site. The proposed project is no different than any other development which involves construction activity in terms of the quantity and quality of PM10 emissions. She noted that PM10 emissions are a common problem in the Bay Area, and in much of California. Home Depot's projected PM10 emissions alone would be less than BAAQMD's significance criteria, and therefore are considered less than significant. Mr. Pendoley stated he would like to ask Lloyd Strom to briefly discuss the relationship between these traffic analyses and traffic planning in San Rafael. Mr. Strom informed the Council that the traffic analysis for the Home Depot project was prepared by CH2M Hill, but Public Works Department played an important role to oversee the traffic analysis. He stated that this analysis is a very technical exercise and he had done his best to put it in laymen's terms in Comment No. 1. He stated that what is most important at this point is to emphasize the role Public Works played, which included reviewing the work to assure that it was within engineering standards and procedures and consistent with the requirements of the City's General Plan. Mr. Strom reported the City staff also took great care to see that the work which was done was consistent with existing conditions in the East San Rafael area, and did their own individual checking to make sure the figures were accurate. The City staff made sure that this analysis was consistent with the process being used in San Rafael for 15 years and has proven it is, in that the traffic at the intersections is consistent with our projections. To further ensure the consistency, former City Traffic Engineer John Rumsey who has developed many of the criteria used, was retained to return to San Rafael, and spend a day with the consultant to ensure that the figures were correct. Mr. Strom stated that the Public Works staff, as well as the Planning staff checked the figures very carefully, and as a result of this analysis the recommendation was that Home Depot itself did not have a significant impact unless they would cause an LOS below Mid-level D. He added that with the mitigation in the report and the analysis which has been done, Public Works staff feels it will be consistent with the General Plan. Principal Planner Delimont informed the Council that the setbacks proposed for the project have been a major issue. With the aid of the overhead, she explained about the berms and gave a walk-through of the proposed setbacks. She pointed out the north side of the project site, with the City pond with the access road and the bank which goes up approximately 10 feet, up to the Home Depot site. She stated that it definitely affects the separation from the habitat, and that 160 feet is the closest the project will get to the wetlands. There will be a berm, and adequate mitigation measures will be provided. Ms. Delimont pointed out the other side of the site, stating that fencing and vegetation will provide adequate setback, with a 100 foot setback and the fencing and adequate landscaping. Ms. Delimont pointed out the 37;,� foot wildlife corridor and the 100 foot Shoreline Park setback which total 137 feet, which is adequate for the type of animals in that area, although there will be human activities in the Shoreline Park. Fish and Game said there are no definitive studies as to what is adequate for a wildlife corridor, but given the type of animals which are in this area they feel that the 37;,� feet is adequate. SRCC MINUTES (Special) 7/28/93 Page 4 SRCC MINUTES (Special) 7/28/93 Page 5 She noted that on the south side of the property there will be the Shoreline Park development, and pointed it out on the overhead. She explained the park is going to have a parking lot, a playground, and pathways, so it will have reduced habitat values. She noted it is between the project site and the MMWD pond and the 25 foot buffer is adequate and also the fencing. She pointed out Parcel 5 on the drawing, and reported that the applicant is proposing 10 foot landscaping with fencing. Fish and Game said that was adequate as long as the slope is vegetated. She noted there is a elevation change at that point. She pointed out the area where the EIR recommended berming, but staff would recommend that the fencing extend on the south boundary as well. Ms. Delimont noted that Parcel 1 is proposing 10 feet of landscaping and pointed out that in this area also there is the separation, with the City property and roadway, with the separation being approximately 50 feet in this area. She stated that Fish and Game feels the 10 foot setback is adequate and the building setback is adequate because of the separation. They would like mature landscaping any time we substitute fencing for the landscaping berms, but that given the habitat values it provides adequate mitigation. However, the Fish and Game recommended that if the City could abandon some of the access road which is currently used by the City for maintenance purposes, it could be landscaped and be enhanced habitat. Ms. Delimont noted this is not being required as a mitigation measure. She stated she will meet with Public Works and the environmental groups, and will report back to the Council, but noted that this is not an EIR issue. Mr. Pendoley addressed the issue of economic impacts. He stated that during the Planning Commission hearings the issue was raised that entry of Home Depot into the San Rafael market could result in loss of sales volumes to local competitors. Concern was expressed that this in turn would result in store closures and/or relocations, and this in turn would lead to vacant retail buildings resulting and finally physical blight. He noted that the EIR recommends that there is no factual data to support this statement. Mr. Pendoley reported that the vacancy rate for retail space in San Rafael ranges from 5% to 7%. If one business were to close there are many others waiting to take its place. Office and industrial uses occupy 5% of the City's land area, and our General Plan provides another 3% of the City's land area for retail services and shopping. In terms of sales, in 1991 volumes within the City limits were over $912 million. If you include the pool sales the figure is slightly more than $1 billion in gross sales. Home Depot is projected to generate $30 Million in gross sales per year, and this is approximately 3% of the total gross sales. He stated these facts, the vacancy rate, total amount of retail and light industrial space, and the overall sales rates, indicate that there is a relatively fast turnover in vacant retail space and that we have a broad retail sales base. Mr. Pendoley noted that even though Home Depot is a high tax generating use, their sales are projected at only 3% of Citywide gross sales. If there were any displacements they would be less than the 3% amount and would be insignificant used within the context of the overall Citywide retail base and the overall developed area of the City. Councilmember Cohen noted that Mr. Strom, in General Comment 1, and in his verbal report, described background conditions and said that they "take existing traffic counts and add to them estimated additional traffic generated by all those projects in the area which have been approved but not yet built". He inquired, do the background conditions include projects which have received priority under the City's PPP but have not yet received final approval? Mr. Strom responded it only considers those projects which have actually been approved and are not currently built, so they use the estimated traffic volumes from those, and they were added to the existing count so there is a baseline onto which this project is added. Councilmember Cohen then inquired of Mr. Pendoley, are there significant projects which are currently in the queue under PPP which have not yet completed their process? He noted that Orchard Supply was one of the most significant projects, and obviously that has now opened, and asked are there other projects. Mr. Pendoley responded that Toys R Us has been built, and presumably showed up in the Public Works background check. He added that the one remaining project which will affect this part of town is the unbuilt portion of Baypoint Lagoon, which is about 35% complete at this time. Mr. Cohen responded, has not Baypoint Lagoon received final approval, so it had been considered? Mr. Pendoley responded in the affirmative. Mr. Cohen inquired is there a project out there which has been given priority which somehow had not been built? Mr. Pendoley responded there is the Honda project, which has been approved but not built. Mr. Strom indicated that project was approved in the background figure. Councilmember Cohen stated he would like to understand the setback issue more clearly, under General Comment 2. He stated that is terms of reading the topographic map, there is a number indication in the second paragraph of General Comment 2 which is not entirely clear to him. It states that "...Fish and Game considers the 0-2 foot elevation to be edge of marsh habitat". He asked if that means they take range from the 0 to the 2 foot elevation, and somewhere in there is the edge of habitat? Ms. Delimont responded that in this particular site they said that 0 was appropriate. She noted that all of this information was FAX'd to Department of Fish and Game, and they said that was appropriate. Mr. Cohen stated this would be the more conservative point to measure from, and Ms. SRCC MINUTES (Special) 7/28/93 Page 5 SRCC MINUTES (Special) 7/28/93 Page 6 Delimont responded not exactly, because 0 in this case would be somewhat smaller. It is a lower elevation. Mr. Cohen verified that the Fish and Game Department had seen the map and is satisfied with the numbers. Ms. Delimont confirmed that fact. Councilmember Thayer inquired, how many trips would be remaining at the Bellam Interchange which would reduce it below LOS Mid -D; in other words, would this project take up all of the remaining trips in conjunction with the projects which have already been approved through the PPP? Mr. Pendoley responded he will have to check in order to give the exact count, but with the approved projects this is basically it. Ms. Thayer inquired what are the other projects, and Mr. Pendoley replied the remaining unbuilt project is Honda, and there are portions of Baypoint Lagoon, which have been taken into account. Councilmember Thayer inquired about Phase II of this project, which is extensive and is much larger since Home Depot is only about 250 of the entire area. She noted the remainder of the project requires extensive traffic mitigation efforts, and she asked if those mitigation mechanisms will be in place prior to the remainder of the project being built. Mr. Pendoley replied that basically they would have to be, under the policies in the General Plan. He added there could be room for extremely low trip rates, low volume projects such as storage yards or warehousing which generate almost no traffic. It is conceivable that one could be designed which would meet the available traffic capacity and General Plan standards, but it would have to be something very low volume. Councilmember Thayer inquired if some of the traffic studies will have to be redone in the future, since some of them are getting a bit old, and circumstances have changed. She asked if they would be done at the time of Phase II? Mr. Pendoley responded there is additional study work going on right now, which would be available before we would expect to see any Phase II projects. The East San Rafael Downtown Model is being restudied, and the new model is being updated. Also, the Planning Commission has recommended, as part of the rezoning, which is not the subject of this hearing, that provision be made to require additional traffic studies on certain types of projects which could come in in Phase II. Councilmember Thayer asked Ms. Delimont to go over once again why the 37;W2 foot wildlife corridor was considered sufficient for the surrounding area. Ms. Delimont explained that there are no definitive studies as to what is an adequate wildlife corridor, and in this case we have some birds of prey and rabbits and other small animals which would be using the corridor. Fish and Game said there is no definitive standard, but given the types of animals on the site, they felt that 371,� feet was adequate since it would be a protected area and would not have human activity. It would be landscaped and that would provide sufficient habitat cover. Also, this is adjacent to the Shoreline Park Band, which will have some native vegetation as well. Councilmember Thayer remarked that Parcel 3, with the 10 feet because of the embankment raises a question whether fences or berms would be better. She asked what is the effect of light from parking areas on that particular site. Ms. Delimont replied that the Department of Fish and Game said their primary concern with impacts on the marsh are from headlights, so they want the screening. Either the fencing or the berm could provide the needed screen, as long as the fence is at least 5 feet in height. They would want mature landscaping in front of the fence as well, and then they would want the revegetation of the City property as well. They said if that was done so that you had the revegetated slope down to the City road, the mature landscaping on top of that with the fencing which would go at the edge of the landscaping buffer which would be the 10 feet, that would provide the mitigation because the headlights would not go over that 5 foot fence. Councilmember Thayer addressed the particulate matter issue, noting that there is a portion of the EIR which indicates that during construction reclaimed water would be used to dampen the areas. Yet, in another portion of the EIR it stated that it was conceivable that reclaimed water would not be available for ongoing maintenance of the landscaping. Mr. Pendoley stated staff does not have a response at this time. Councilmember Cohen stated he thinks there is a distinction to be made between the watering during construction and the dust control. Reclaimed water during construction is available because they can truck the water in from the source. However, the other reference was ongoing use of reclaimed water for landscaping, and there are some questions about the amount and availability of reclaimed water for that kind of use. He stated that has to do with water quality as well as piping. He noted those are two separate issues and that is why there is a difference. Councilmember Thayer stated that for ongoing maintenance reclaimed water might not be applicable or suitable because of the saline content, and yet it would be used in terms of dust control. She wondered if that would have some sort of environmental impact. Mr. Pendoley responded that it would not. He added that the concern with the potential salinity of reclaimed water is just that many plants are not saline -tolerant, so that before you make a decision to apply reclaimed water you have to make a detailed study to determine whether the exact source you have generates water which is suitable. He added that the use of reclaimed water for dust control does not have any potential adverse SRCC MINUTES (Special) 7/28/93 Page 6 SRCC MINUTES (Special) 7/28/93 Page 7 impacts. It has very low salinity, and is used in areas where there is no landscaping, where there is grading being done. Very small amounts of water are used and they evaporate quickly, so there is nothing to impact. Councilmember Breiner stated she is wondering is there a long history that would show the effectiveness of the grease and oil separators which would be used in the parking lots. Also, she saw reference to an on-site recycling depot in the Planning Commission minutes, but no further reference in the staff report about one at the Home Depot site. She noted that is an issue which could generate a lot of traffic. Mr. Pendoley stated staff will bring technical information back on grease and oil separators. With regard to recycling, staff has asked that question and Home Depot does not plan to have a recycling operation. Councilmember Shippey stated there are a couple of areas in which there is ongoing monitoring being required because of environmental concerns. One of them was for the grease and oil separators. Another one which concerned him was with the potential for landfill gases, such as methane. He inquired, are we satisfied with the ongoing monitoring efforts which are being proposed in the EIR, in both of these areas? Mr. Pendoley responded that the monitoring for the potential ground and surface water pollution is within the purview of Regional Water Quality Control Board (RWQCB) and they have set a standard which they are empowered to do. Their performance is generally judged to be adequate. He added that the EIR recommends that all such reports be filed with the City so that we can do a second check to be sure that the agency is keeping an eye on this. He added that we would have the County Environmental Health Services available to also follow it. Mr. Pendoley added that basically the same pattern holds true for the gas emissions. He stated that the issue is methane gas, which is closely regulated in landfills by the California Integrated Waste Management Board (CEWMB). They set a standard and they prescribe monitoring standards. Mr. Pendoley added that the EIR has also recommended a condition of project approval, if the project is approved, be that these reports be filed with the City so the City could keep an eye on the regulators. Councilmember Shippey referred to landscape buffers, page 3.5-2, stating he understood there would be landscaped berms in areas between tops of slopes and building setbacks, but he heard staff refer to fences substituted in some areas. Ms. Delimont explained that was an issue raised by the applicant. She noted that the EIR itself in discussing the potential impact indicated that berms or another measure should be used to screen the human activity. She added that the mitigation measure specifically said berms. She stated that the applicant would like the flexibility of being able to use fencing in some areas, so when she met with Fred Botti from Fish and Game on the site she asked if fences would be a suitable substitution and could they be used, his response was that either fencing or berming would be adequate in those areas. Mr. Botti felt that the berming is needed on the north side of the site next to the Canalways site, because that is a more sensitive habitat area. Adjacent to the Shoreline Park, near the MMWD pond, it is not a sensitive habitat and either one will suffice. In the other area discussed, Parcel 3, it is not a sensitive area and there are a number of industrial uses along Kerner Boulevard, and he felt that fencing could be substituted; and also on the west side of the Home Depot property where it was not adjacent to the pond. Councilmember Shippey addressed the traffic impact question, noting that Section 3.6-5 mentions potential impacts in reference to the traffic and roadway situation. He stated that one would be extending Kerner Boulevard and one would be constructing the Irene Street Overpass. He stated he thought that neither of those improvements were considered in the traffic model. Mr. Strom responded that is correct, the model and analysis done for the Home Depot did not consider those two improvements. He added that from what we know in the regional planning they have done in that area, those two improvements would be necessary for the ultimate buildout of the entire project. Mr. Shippey stated he feels that some improvement needs to be made with the current situation, from personal experience. He asked if there could be some estimate of the timing for the construction of these improvements. Mr. Strom stated that for the Irene Street Overcrossing the City had retained TAMS consultant to do an alternatives analysis, because that improvement is essentially shown in the General Plan. As a result of that analysis, we came up with a superior alternative and have not brought it back to the Council yet because we are waiting for FHWA concurrence that they would allow us to build that, because I-580 is a Federal route. Staff has been waiting for almost a year now for them to get back to us, and they have said that tentatively they are going to approve it, but there is nothing in writing yet. As soon as staff receives that, we will be getting instructions from CalTrans to proceed on our own to start that process. Mr. Strom stated he is hoping we will be getting the approval within the next few months and he would expect we could start on the process. He pointed out how long it takes to design such a project, and to get it through all of the approvals - and it is still not fully funded at this time - that it could be about five years on the Overcrossing. Mr. Strom reported that the Kerner Boulevard Extension is in a slightly different state, because it crosses sensitive wetland areas and there will need to be a rather extensive EIR. There has been an engineering study done, looking at possible alternatives, just to SRCC MINUTES (Special) 7/28/93 Page 7 SRCC MINUTES (Special) 7/28/93 Page 8 generate what some of the costs would be. The project would consist of building some sort of causeway which would have minimal amount of fill necessary to build it. Mr. Strom stated he does not have a time line on that but since it would not involve any CalTrans or Federal Highways Administration approvals, it probably would go faster depending on how fast we could internally process an EIR and develop the funding, since there is currently no funding available for that project. Mayor Boro inquired about potential future use of reclaimed water for the site, which eventually would come out of the Central Marin Sanitation District, which has yet to start the reclaimed water project. He stated he would assume that when the landscaping for this project was approved it would anticipate that happening at some point, and would require landscaping that would work with reclaimed water, if and when it comes about. Regarding traffic, Mayor Boro stated that as he understands the outline given earlier by Mr. Pendoley on the EIR, it is the total EIR for this site, but there are phases of it which are required for this particular proposal before the Council in Phase I, and there are ultimate improvements needed to be made in order to complete it. He stated that he recalls the General Plan speaks of timing of improvements and Levels of Service (LOS) and the whole process that the PPP planning process is predicated on is that if you do not have the improvements in place and our traffic LOS goes below Mid -D the project will not go forward unless we have those improvements. He stated he understood Mr. Strom to say that the proposal for the first phase for Home Depot will not bring us below that LOS and therefore those improvements are not necessary for the first phase. Mr. Pendoley responded that is correct. He added that the traffic analysis shows, as it has since this project was originally proposed in 1990, that construction of the first phase, the Home Depot phase, would not bring Levels of Service below Mid -D, which is prescribed by the General Plan. He stated it seems likely that the development of Phase II would require improvements such as the Irene Street Overcrossing and/or the Kerner Boulevard Extension. Mayor Boro responded, assuming that is the case, and assuming that the time frame described by Mr. Strom is accurate, we are saying that realistically the additional phases will not be developed until those improvements are in place. Mr. Pendoley responded that is correct, and the only potential exception would be if a very, very low traffic generating use, such as a storage use, were proposed which would generate less than one critical move at the interchange. Mayor Boro noted that the staff report speaks of significant impacts which cannot be avoided, and of PM10, the particles in the air, and he understands that is not an issue for this phase, but potentially an issue in the long-term buildout of the site. He noted that staff and the consultant have said there can be no mitigation we know of for that. He asked that staff get back to the Council on the question of, where they talk about a Statement of Overriding Considerations, he would be interested in knowing if we have done this on any other project in the City, and how we have done it. He explained, not necessarily for this particular point to be mitigated, but just the concept of the Overriding Considerations. Mr. Pendoley stated he will report back. He added that the Council has routinely made findings of Overriding Consideration. Councilmember Cohen stated he has a question which does not require an answer tonight, but can be responded to when staff answers the other questions. He noted there are a number of places in Table 1-1 from the FEIR which refer to the need to develop and utilize erosion and sediment control measures during construction. He stated he would like to see some way they could get pulled together and noted there are comments in 3.2-1(a) referring to the need to develop an erosion and dust control plan; 3.2-7 which speaks to the grading and the need for excavation and compaction. He stated the point about that is, there is going to be a more extended grading process on this project than you would have on some other project. Mr. Cohen noted that 3.3-2(c) talks about potential for erosion and the need for sediment control during construction. He noted other references are 3.5, 14, 15, 16 and 20, all speak to potential for impact during construction on the surrounding areas. He explained there will be water runoff from construction activities. Mr. Cohen cited 3.7-2 which goes into more discussion on these issues. He noted one comment, that the contractor or builder should designate a person to monitor the dust control program and order increased watering if necessary to prevent transport of dust off-site. That person would respond to citizens' complaints. Mr. Cohen stated the comment to which he would like a response, it seems to him there is enough potential for impact here during construction on all of these aspects, that a monitor would need to be designated for all procedures. He recalled the construction at Smith Ranch Parcel 3 where there was potential for impact on the City -owned pond at Smith Ranch Road, and the City required implementation of some measures there to prevent potential for runoff during construction for increased sedimentation into the pond, and fuels and oils from the construction equipment, etc. He stated there is a potential here for the same kind of risk, and he feels we need to be sure that somebody is watching over it, and it might even be appropriate to have someone designated by the City, and he would like staff's response to that issue. SRCC MINUTES (Special) 7/28/93 Page 8 SRCC MINUTES (Special) 7/28/93 Page 9 Mr. Cohen noted there has been much discussion on an ongoing basis about the impact of runoff on the surrounding properties and discussion that the Home Depot project needs an engineered storm drainage system. At another location in the EIR there is discussion of the need for the Shoreline Center Master Plan to coordinate carefully with the Shoreline Park improvements. He noted the timing of that gets more critical with Phase II than it does with this project, and it seems to him that the coordination of all three of those would be fairly critical. If not, he would like an explanation from staff as to why they do not need to be coordinated. He stated that if they do, he would like to see some kind of time line which lays out design and implementation of the drainage plan for Phase I, Phase II, and the City's Shoreline Park Band, so we can understand how they tie together. Councilmember Breiner referred to page 3.F-1, Response to Marin Conservation League, regarding the site-specific Best Management Plan being required for the area. It does not say who would develop that. Mr. Pendoley responded he will get back on that question. Councilmember Thayer stated he would like a copy of the Development Agreement, since she felt that was a very important issue. Mr. Pendoley stated he will furnish one, if he has not already. He noted it has not been reported out of the Planning Commission yet. Councilmember Thayer cited 3.3-1 of Table I, along with 3.3-3(a), stating part of it has to do with the oil and grease separators, and the prior section which she cited has to do with excavating sediment from the pond. She asked who is responsible for it, who will pay for it, and who will monitor it? Mayor Boro then called upon Jay Paxton, attorney for the applicant, and Mr. Paxton stated that attorney Jeffrey Johnson will address the Council. Mayor Boro informed him that the applicants have 15 minutes left for their presentation. Jeffrey Johnson stated that his law firm specializes in land use environmental and real estate law, and they have been retained by the landowner to help them through the process and be sure that as best as they can, and as best the City can, that we have a so-called "bullet proof" EIR. He stated it is in their interest that they have a complete and adequate environmental process to protect the approvals which will be hopefully forthcoming, both for the Home Depot project and for the rest of the site should that occur. He stated that his whole firm specialized in land use and environmental law, and have done that for over 20 years, and have seen many projects and EIR's. He noted this is one of the more complex and controversial projects, and is also one of the most thoroughly completed CEQA processes in which they have been involved. He stated that the firm of CH2M Hill was consciously chosen by the City because of its expertise in areas having to do with landfill and some of the other issues involved in this project, and he feels that they and the City staff have done a very good job. He added it is noteworthy that even thought CEQA does not mandate that there be public hearings, there have been many public hearings concerning the environmental issues in this project. He stated there have been at least three at the Planning Commission level, and the Planning Commission recommended on a unanimous basis that the EIR be certified. He stated that was true even though there was not necessarily a unanimous recommendation that the project, on the merits, be approved. He stated that some of the people on the Planning Commission are well noted for being watchdogs of the environmental process and environmental concerns, and those people in particular pointed out that the EIR was very thoroughly done but they felt the process was one which involved a complete airing and disclosure and treatment of all of the issues which have been raised by everyone. He stated we know that in this kind of controversial setting that we cannot please everybody and that ultimately we have to get to the end and make a decision to go forward. Particularly, they know that the environmental laws are used by some to try to kill projects, and in anticipation of 45 minutes of Mr. Bianchi's presentation, he would like to call to the Council's attention some recent language in a case decided by the California Supreme Court, Citizens of Goleta Valley vs. the Board of Supervisors case. He stated this case was similar to the matter here, in that the plaintiffs were challenging the adequacy of the environmental process, but the court finally concluded that their real motive had nothing whatsoever to do with the environmental issues. He read the last sentence of that decision, a unanimous decision without any separate concurring opinions or any dissenting opinion, of the California Supreme Court. He noted this statement was not necessary to the decision, but was a message being sent to the Appellate Court and the Trial Court, and people who would use the environmental process for something other than advancing environmental concerns. He quoted, "Concurrently we caution that rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic or recreational development in advancement". Mr. Johnson stated he thinks the court is tired of seeing cases and dealing with cases over and over again, which really to not have to do with environmental issues. He added he thinks that the environmental issues in this matter have been thoroughly aired and dealt with, and mitigated, and, on behalf of the applicant, he would ask that the Council, as soon as they feel comfortable doing so, close the hearings and certify the EIR as complete so we can move on to the merits of the project. Mr. Johnson added that Mr. Jim Lyon, a representative of Home Depot, may have some comments. SRCC MINUTES (Special) 7/28/93 Page 9 SRCC MINUTES (Special) 7/28/93 Page 10 Mr. Jim Lyon, real estate manager for Home Depot, stated he has no new information to add to the assessment of environmental issues. He added he has personally been involved in about 25 projects throughout the State which have required full EIR's, and he has not been involved in one which has resulted in a more thorough and complete assessment of environmental issues. He stated, on behalf of his company, that they believe that this particular EIR has very thoroughly addressed the environmental issues and believe it is in condition to be certified, and hope that will be the result of this hearing. Mayor Boro then called upon attorney Al Bianchi for his presentation. Mr. Al Bianchi, stated he was representing Jackson's Hardware which is opposed to the project before the Council this evening. He stated it is his understanding that his comments tonight must be limited, at least during this phase of the presentation, to circumstances involving only the adequacy or inadequacy of the "bullet-proof" EIR which Mr. Johnson has assured the Council they have produced. He stated he is going to show the Council that the "bullet-proof" EIR would not work because they failed to wear their flak vest, and it has holes in it that would puncture it. He stated he does not, and hopes not, feel that Mr. Johnson is suggesting to the Council that simply because the California Supreme Court has said that in certain instances you must not use the attack on an EIR as a guise to oppose a project, that the Council should therefore ignore the existing State laws passed by the legislature which are binding upon the Council, upon us, and upon the Supreme Court. He added that if this EIR is invalid, as he will show that it is, then it is the Council's duty under the law to find that EIR to be inadequate and to fail, and refuse to certify its adequacy. Mr. Bianchi stated that the City of San Rafael, and the tenor of the discussion this evening, including the reports from staff, from the outset before there was ever a Public Hearing has tended to favor this application, and has tended to show that there is at the upper levels of the hierarchy of the City of San Rafael, some preordained favoritism at some levels among certain people, that would suggest that this program which is being brought before the Council has a head start over those of us who oppose it. He stated that as a small measure to counteract that, and in addition to the large number of people here this evening in opposition to this application, he would like to submit a very brief petition signed by 1,273 people of this community in which they say they are against the proposal to build a Home Depot in East San Rafael. It would destroy many businesses of long standing and alter the local community which they helped to build and continue to support. He stated he wants to make that a part of the administrative record, and would also request that every document which is in the files of the City of San Rafael be made a part of the administrative record so that we have a full and complete record of everything that the City has considered, including those statements that from the outset and before any Public Hearing ever occurred, indicated a bias on the part of some people within the official City family in favor of the Home Depot application. Mr, Bianchi then addressed the issues. He stated that what the Council has before them tonight is not the simple question of whether or not Home Depot should, or should not, exist in the City of San Rafael, but a far more pervading issue. He added the real issue is not whether there is a critical turn on a certain intersection, or whether there is a micron of PM10 dust which enters the air. He stated those are items which relate to the EIR and there are defects in both of those which he will discuss in a moment. He stated that the real core issue, the reason the Council is there as our elected representatives, is: Should we destroy the physical appearance and the financial character and personality of San Rafael; should we drive out many of the small businesses now located here; and should we surrender the town's economy to a multimillion dollar national retailer headquartered in Atlanta, Georgia? In short, the question is, do you want to sell out our town for a fistful of anticipated sales tax dollars? He stated that is the bottom line. He stated that if the Council thinks that is an overstatement, it is not. It was not made for its impact or effect, but that has happened in other communities, and is one of the reasons he suggested that the entire record and all of the documents within the City records be made a part of the administrative record because there is documentation in those records to show that precisely that has happened in numerous other communities where Home Depot has come into a healthy environment. Mr. Bianchi stated he happens to believe in what he is espousing here this evening. He added he is being paid to be here, but he also lives and votes in this town, and he happens to believe in items he is bringing before the Council and the points he is raising. Mr. Bianchi discussed the approach to the issue. He noted that the local daily newspaper recently in a couple of editorials urged the City to treat this project as it would any other project, just do it as a Planning exercise, to look at the Ordinances and the laws, regulations and policies, and let the chips fall where they may. Mr. Biamchi urged the Council to do the same thing, because if they do that, this project must fail. He then discussed the legal parameters which City Attorney Ragghianti has provided to us, and which all of us will have to work with in addressing the pros and cons of this project. He explained that the City Attorney in a memo dated June 9, 1993, said (he reminded the SRCC MINUTES (Special) 7/28/93 Page 10 SRCC MINUTES (Special) 7/28/93 Page 11 Council we are dealing here with what is supposed to be in the EIR), you cannot deny the application "solely on asserted claimed adverse impacts". Mr. Bianchi pointed out Mr. Ragghianti is not saying you have to exclude considerations of adverse economic impacts, but is simply saying you cannot use that as the only reason for turning down the project. Mr. Bianchi added that you do not have to ignore that, and can take it into account as one of the reasons or bases for turning down the project. You can consider, for example, whether the project will or will not generate substantial sales tax revenues as claimed by the applicant. He noted they have made the claim - and he is going to disprove that claim when it comes to the hearing on the merits - that somehow in a community whose population is static, in a county whose population has grown at a rate of .2 of 10 over the last decade, and therefore is not increasing in terms of numbers of prospective purchasers, that somehow they are going to generate $300,000 or $350,000 and that this is going to benefit the City of San Rafael without depriving the existing businesses of those exact same tax dollars, taking it out of their pocket, putting it in Home Depot's pocket where the profit is then siphoned off to Atlanta, Georgia. Mr. Bianchi stated that the Council is entitled to consider the validity of their claims in support of their application, and that is one of their claims. Mr. Bianchi asked how does this apply to the EIR? He stated it applies because the State law mandates an economic study as part of the EIR in this case. He pointed out that the Council does not have an EIR which contains an economic study prepared by an independent EIR consultant; they have fragments of information, and speculation from the Planning Director, and representations from the applicant who could hardly be expected to give adverse information. Mr. Bianchi added that the Council also has three letter reports from Sedway & Associates consultants that we, as the opponents, have retained. He pointed out that none of these are independent, so the Council does not have in the EIR an independent study by a knowledgeable organization or individual regarding the economic impact. Mr. Bianchi pointed out that he rarely comes to a Council meeting to plead and argue law to the Council, because this is not a legal forum, but this point is so simple and the decision of the courts on it is so clear, that you do not have to be a lawyer to understand it. You only have to be able to read. He stated that one of the cases, with which the City Attorney is familiar because he (Mr. Bianchi) had referred to it in a letter dated July 21, 1993 and which he wants to be part of the administrative record, detailing the numerous court rulings which mandate an economic study, which has not been made in this case, is called "Citizens for Quality Growth" for the City of Mount Shasta. He stated that the law which this case established is crystal clear. He noted the City of Mount Shasta is in the mountains of Northern California, and there was a parcel of undeveloped property there consisting of 35 acres. He noted we have 43 or 43 acres in the Shoreline Center project, so we have roughly the same size piece of land. He explained that the City of Mount Shasta, over the objections of some of its citizens, rezoned that property to commercial and related uses. The trial court said that was OK, and approved it. The California Court of Appeal, however, reversed that ruling and Mr. Bianchi read excerpts from the decision of the court. He read, "Although the EIR noted possible economic harm to the existing business community from the proposed project, the City failed to consider how those economic problems might translate into environmental changes. The potential economic problems caused by the proposed project could conceivably result in business closures and physical deterioration of the downtown area". Mr. Bianchi noted that has a familiar ring to it, since it has been said three times, in the report from the Sedway office and hearing him say it, and seen it in the minutes of the Planning Commission. Mr. Bianchi noted the court went on the say, "Therefore the City should consider these problems to the extent that the potential is demonstrated to be an indirect environmental effect of the proposed project. In summary, the City failed to consider the possible physical deterioration of the downtown area resulting from the project. We must, therefore, reverse the judgment". Mr. Bianchi stated, show me where, in the EIR for the Shoreline Center project, there is a study by an independent third party, that considered the possible physical deterioration of the downtown area which would result from the project. He stated, the answer is that there is no such study and the Council does not have the information. He added that the interesting part to him, as a lawyer, is that in the Mount Shasta case the Court of Appeal awarded attorneys fees to the challengers who successfully took on the City of Mount Shasta in approving that project under those circumstances. He stated that the irony of all of that is that the only reason in the first place, that Home Depot is here, insofar as the regulations of the City of San Rafael are concerned, is because Home Depot was able to convince the City during the PPP process that they met one and only one criteria which would entitle them to be hear. They met no criteria except the criteria that they would bring additional retail sales tax dollars to the City, and would bring economic benefits to the City. He asked, does Council not find it ironic that a project which is before them solely on the basis of the excuse that they claim they are going to bring economic benefits to the City, is not studied in terms of an economic analysis within the EIR? He stated they are here because they claim economic benefits and yet they oppose an economic analysis. He added that the staff opposes an economic analysis, and thus far we do not have an economic analysis. He stated that a court, however, will tell any city under these circumstances that without that economic analysis the EIR is inadequate and cannot be certified. Therefore, the Council cannot act on this application beyond this point. Mr. Bianchi stated he will conclude shortly and will not take the entire 45 minutes, but SRCC MINUTES (Special) 7/28/93 Page 11 SRCC MINUTES (Special) 7/28/93 Page 12 would like to reserve some time in case there is need for final comment at the end of the hearing. He then addressed the question of the PM10. According to the environmental consultants hired by the City, and who prepared the EIR, PM10 are particles of dust. He stated they are more than particles of dust. The definition is that they are small suspended dust particles of less than 20 microns in diameter and they contain whatever it is they may contain. He noted the staff report says that the FEIR concludes that those PM10 concentrations which are attributable to traffic generated by operation of the Shoreline Center cannot be mitigated to a level of insignificance. He pointed out that means that, although they find this by-product of the area out there to exist, there is nothing you can do to mitigate it. You cannot change it - it is there. Mr. Bianchi stated you have to bear that in mind and put it in the context of the PM10 concentration associated with this product, and the EIR says it is a significant impact which cannot be avoided. Mr. Bianchi stated, we say it can be avoided. The method of avoidance is so simple that it defies logic not to be able to see it. All you need to do to avoid it, is turn down the project or, if you do not want to do that, you can reduce the size of the project and thereby reduce the size of the danger. He noted there have been recent studies and surveys which have been published which say that particles less than 10 microns have been the cause of 50,000 deaths per year, mostly among "children with respiratory problems, people of all ages with asthma, the elderly with illnesses such as bronchitis, emphysema and pneumonia". He repeated, 50,000 deaths a year, according to the experts. He noted that what the Planning Director has suggested to the Council is, no problem - all you have to do is adopt and sign what they call a Statement of Overriding Considerations. He stated the overriding considerations means that, notwithstanding that you cannot solve the problem contributing to these 50,000 deaths per year, you sign a statement and say there are overriding considerations. Those overriding considerations are the fistful of retail tax dollars we think we can get for the City of San Rafael. Mr. Bianchi asked the Council, do they want to be the signatory, the person who signs that Statement of Overriding Considerations? He stated he does not envy the Council, sitting where they are. He would not sign that kind of statement, and he does not think the Council would either. He suggested that the other way to resolve that problem, is to say that we do not have any objection to Home Depot coming into San Rafael if they want to fight fair on an even playing field. He noted that the largest operation similar to Home Depot in San Rafael of that type, is 50,000 square feet, and there is only one of those. The others are 40,000 square feet and under. He noted that 40,000 square feet is going to produce far less microns of the PM10 variety which killed 50,000 people a year, than the 124,000 square feet they are planning. He asked the Council to bear in mind that the 124,000 square feet is a footprint, and if you have been to a Home Depot store you know that they stack everything three stories high. So, instead of talking 124,000 square feet you are talking 200,000 square feet; and according to their own statements published in the newspaper, their regional manager Mr. Buz Smith says that in their Rohnert Park store they have 60,000 to 70,000 cars going in and out of there every month. He stated it should be cut down to a number which allows fair competition and reduces the PM10 microns which have caused the deaths reported, and you have a situation that perhaps we can live with. Mr. Bianchi noted that is a factor which is not covered adequately in the EIR. Mr. Bianchi stated that when the Council turns this down when they see that the EIR is inadequate and send it back to the Planning Commission and ask them to do a correct job on it, and the Planning Commission does it, it may never come back to the Council on the merits, but he hopes that it does because he has so many other things which are blatant defects to which he would like to call the Council's attention. He noted this is not the time to do that. He added he wanted to address one more aspect of the inadequacy of the EIR. He stated there are many more in the administrative record he has asked the Council to include in their record here. Some were prepared by Karlena Palomares, the planning consultant, and other people with expertise. He stated he will only speak about one of them at this time, with regard to traffic. He noted if you listen to the proponents, which include the EIR consultants and the staff, you would think there is no traffic out there and the 60,000 to 75,000 additional cars a month is not going to effect anyone and you would be able to ride you bicycle down the middle of the white lane on I-580 with no risk whatsoever at the peak hour of their business. Mr. Bianchi reported he had provided the City Clerk with a letter dated July 27, 1993 from Robert Harrison, who at Mr. Bianchi's request had done a study and an overview of the traffic information. This letter is also to be made a part of the record. Mr. Harrison was told, in preparing the study, to simply give the facts and call it the way it is. Mr. Bianchi read parts of the letter, since it is quite lengthy, having to do with the fallacious view of the traffic situation in that area which will be caused if this project is approved. He stated he would like to tell the Council up front that the methodology which was used to arrive at the information which is contained about traffic in the EIR does not meet the City's standards, policies, Ordinance or requirements. They did not use the methodology which the City's General Plan, which we are all bound by, specifies. He stated first of all, they erroneously calculated the actual number of traffic trips. He read, "The Home Depot DEIR trip generation is based on a survey of a Home Depot located in San Carlos, California". He assumed that was picked out at the instigation of Home Depot. He read, "Application of this rate trip generation brings about a count of 400 vehicle trips". He explained that what the EIR consultant and staff are telling the Council is that there SRCC MINUTES (Special) 7/28/93 Page 12 SRCC MINUTES (Special) 7/28/93 Page 13 are 400 of these particular kinds of trips. However, Mr. Harrison's report states, "If the project were evaluated as a typical building materials and lumber store with a garden center, it would generate 410 peak hour trips. If the project were assumed to be more, like a typical hardware or paint store with a garden center, the peak hour trip generation would be 571 peak hour trips". He stated that, in other words, the likelihood is that we are talking about an error in the traffic count analyis by the consultants, of some 430. Mr. Bianchi stated he has not even yet come to the part where they used the wrong standards to get there. He noted that Mr. Harrison tells us it appears that rather than using a higher than typical trip generation rate, the EIR has used a rate near the low end of trip generation rates, to give them every break they can. Mr. Bianchi stated it is recommended by Mr. harrison that the trip generation rate used in the DEIR be reviewed with an eye to the CEQA (California Environmental Quality Act) requirement that a reasonable worst case analysis should be presented in all environmental impact evaluations, and they have not done that. He stated the Council should send them back, or send somebody else who will approach this fairly and will not be coached from one direction or another and who will do a calculation that is correct. Mr. Bianchi added, also on the subject of traffic, Mr. Harrison points out that the DEIR ignores trips from southern Marin, and estimates that there will be no afternoon peak hour traffic generated by the project from any location south of the City of San Rafael. He noted there will be the huge delivery trucks coming to Home Depot at any time. Mr. Bianchi noted that Mr. Harrison stated that is not a reasonable assumption, and he recommends that the DEIR be re-evaluated in terms of the trip distribution assumptions which appear to have excluded 34.40 of the Marin County population which lives south of San Rafael. Mr. Bianchi questioned where those people will go - to San Francisco or the Home Depot in Richmond? Mr. Biachi stated that his final point with respect to the inadequacy of the traffic study is that the EIR fails to compute the trips by the method which is specified and required by your General Plan. In failing to do that, they have not produced an adequate EIR. Mr. Bianchi noted that Mr. Harrison had explained it, by stating that the intersection LOS as calculated in the Home Depot DEIR and the subsequent analysis prepared by TJKM transportation consultants (which is with the same group which produced the EIR) has used the operational analysis method from the Highway Capacity Manual. This method, which is based on the amount of delay experienced at intersections, is different from the method recommended in the San Rafael General Plan. The General Plan recommends what they call a Circular 212 LOS methodology be used because it is "more effective for defining future traffic conditions". It also states that "the plan states that the intersection delay does not provide a useful tool for planning application". Mr. Bianchi stated that therefore, someone picked out a method which differs from what is recommended in the City's General Plan as the means for determining traffic counts. Mr. Harrison concludes that the two methods produce service level results which are significantly different for the existing conditions. Mr. Bianchi stated that what they are doing is continuing the process of advocating instead of analyzing the Home Depot application. They find the best method for calculating traffic and they use that, even though the City's General Plan calls for a different methodology. Mr. Bianchi stated that concludes his presentation, except for one remark. He has for a long time been an admirer of Mayor Boro, as have many people in the audience. He reads the things Mayor Boro says, and takes them to heart. He noted there was one quote which was carried in the newspaper on June 5, 1993, quoting Mayor Boro in reference to the so- called parcel or household tax, Measure K, making this statement: "I think what this is all about, is whether the people of San Rafael want to take control of their own destiny" Mr. Bianchi stated this is what it is all about. The people of San Rafael want you to help us take control of our destiny and not allow this town to become a "big box" retailer. Laura Blair of Sedway & Associates stated her firm was retained to look at the projected economic impacts which Home Depot could potentially have on existing retail stores in San Rafael. She noted they have forwarded numerous reports and findings to the Council and Planning Commission, so she will be brief. She stated basically what their analysis found is that there really is no need for an additional hardware store, home improvement store, in San Rafael. The market in that category is currently oversupplied and, in fact, the performance sales on a per capita basis are well in excess of what you would expect for a community of this size, with this income level and this amount of employment. She stated the lack of demand for the Home Depot will be exacerbated by the fact that the Orchard Supply store just opened, as well as the virtual lack of growth which is forecast for the County in the coming decade. There is a forecasted growth of about 1% in the next ten years. She noted Home Depot's opening will definitely have a significant negative impact on existing retailers, many of whom may be forced to close or relocate outside of the City. This will leave storefronts vulnerable to long-term vacancies. Ms. Blair noted that while the EIR noted that the retail vacancy rate in San Rafael is between 5% and 70 overall, a survey her firm conducted of retail brokers and also property owners, found there is very weak demand for the larger spaces which are currently most typical of the home improvement and hardware stores. She cited as examples Oshman's, Macy's and the former City Lights, which have sat for a long time with limited activity. She feels it is SRCC MINUTES (Special) 7/28/93 Page 13 SRCC MINUTES (Special) 7/28/93 Page 14 reasonable to say that to the extent that stores close their doors it is likely that it will result in a detriment to the City's physical environment and contribute to a sense of overall economic decline and blight. Ms. Blair explained that there are numerous examples of communities in which big box retailers are a tremendous benefit to city coffers as well as to local residents. She noted her firm has supported such uses in different contexts. She noted that as an example, Home Depot has mentioned their success in Oceanside in San Diego County, in terms of contributing sales tax to the city. She stated that before Home Depot went into the city the per capita sales were $93, in 1985, compared to an average in the County of $326 per capita, so they were grossly under -served by hardware stores prior to Home Depot's coming in. She noted that San Rafael has approximately 13 home improvement and hardware stores, and a population of about 60,000. Oceanside has a population of about 100,000 and had one hardware store, and an electrical and a tile shop before Home Depot came in. Also, following Home Depot's arrival the city grew by 43% from 1986 to 1992. Home Depot really made a dramatic impact in that sales in the city rose to a level which was more in keeping with the countywide average. She noted there is insufficient pent up demand in San Rafael to minimize the impact on existing retailers, and she feels that a significant amount of the sales which are conducted at Home Depot will be transfers of sales. She stated that the amount of revenue to San Rafael will likely be less than is forecasted. Ms. Blair gave Vallejo as another example. She stated they had a new Home Depot opening in July of 1992 and, once again, this was a community which was under -served relative to the county. There was $380 per capita spending before Home Depot came in, compared to $470 average countywide. Sales did increase by an absolute amount of $12 million; so if we assume that the store would generate $30 to $35 million in sales we would suggest that more than half of the sales are really coming from the stores in the city limits. She stated she had a discussion with the Economic Development Director in Vallejo who indicated that, while he could not reveal the specific store names nor the actual figures because it is proprietary, that sales declined pretty much across the board, by 10o to 200 for all hardware stores and home improvement stores in Vallejo following Home Depot's entry. Ms. Blair stated she feels there is compelling evidence that in this instance approval of Home Depot will have a significant detrimental effect on existing retailing, and the economic benefits to be derived by the City are over -stated. Mr. Bill Loskutoff, Vice President and General Manager of Jackson's Hardware, stated that as a voting resident and businessman of the City of San Rafael he is opposed to the construction of Home Depot in our City. He noted the argument has been raised that the EIR need not consider the economic impact on existing businesses and the business community in looking at the home Depot project, but the City must consider those issues. He referred to page 1-2 of the DEIR for Shoreline Center, dated November 1992, and quoted, "The City determined that Home Depot would generate approximately $300,000 from annual sales tax revenue for the City". He noted that in an article in the May 31, 1987 addition of the Independent -Journal about a possible auto center to be built on this site, "The City officials are excited about the project since the car dealerships would bring an estimated $300,000 a year in sales tax revenue". He noted that the $300,000 a year in sales tax revenue which the Home Depot may produce appears to be a figure which is being used for various projects which have been considered for the San Quentin Disposal site. He added that when you look at any Home Depot which has been proposed throughout the State of California including Sacramento at this time, they use that same number. Mr. Loskutoff stated that the independent economic study he has taken, through the "yellow pages" for the County, indicates that the City of San Rafael already enjoys 600 or better of all the businesses that would comprise home improvements, including lumber yards and not lumber aisles. Since the City already enjoys that, and the majority of the business in Marin County, the $300,000 in tax revenue appears to be money which is transfer dollars, not new money. The potential of the devastation to the business community is great. The existing business community has been active in supporting many organizations in our City, such as the drug free programs at the local high school, drug and alcohol awareness program, little league, soccer, Marin Symphony, Marin Ballet, and Bobbie Sox, and many others. He stated that San Rafael and Marin County are small communities and the loss of any of the businesses which have supported and built this community up over the many years, would be greatly felt. Mr. Loskutoff reported that Home Depot has 12 stores in the Bay Area, plus many more to be built soon. He noted that at a meeting at the San Rafael Redevelopment Agency Advisory Committee on May 6, 1993, the real estate manager for Home Depot said at that time that they would probably build another store between San Rafael and Rohnert Park within the next 3 or 4 years. He stated that means the total saturation of the entire area, and the obvious focus of the saturation will be to destroy all competition. He noted that this morning's I -J contained a quote from Bob Bartlett, a retail consultant which states that Home Depot will be devastating to small retailers and independent merchants are now in danger. He added that the City of San Rafael does not need this type of business, it does not fit our General Plan, it does not fit our Vision Plan for the Downtown area. It just does not fit. SRCC MINUTES (Special) 7/28/93 Page 14 SRCC MINUTES (Special) 7/28/93 Page 15 Mayor Boro inquired if the Council has any questions of anyone who has spoken. Councilmember Shippey stated he has a question for City Attorney Ragghianti. He noted that Mr. Bianchi had raised the question of legal adequacy of our economic review. He noted we have an economic review but he indicated we need an independent analysis, and cited a court case. He asked Mr. Ragghianti for an opinion on whether that is required legally in the EIR. Mr. Ragghianti responded that there are three decisions by the California Court of Appeal, and there have only been two decided on this issue. One is the case Mr. Bianchi mentioned, involving the City of Mt. Shasta, and the other is a case involving Inyo County and the City of Bishop. He noted the general rule, as set forth in the CEQA guidelines, is that economic and social impacts resulting from a project are not considered significant and need not be analyzed. He explained that there is an exception to that created not only in the statutes, in this case the guidelines, although it is hardly a model of clarity in the way it is stated, but by these court opinions. He stated the exception involves a circumstance when an economic and/or social impact in turn causes a subsequent physical change in the environment, in his opinion. He explained that loss of sales by existing merchants or closure of businesses as a result of the initiation of a use or the approval of project are not, in and of themselves, the types of impacts which would require this analysis. He added the type of analysis which is required involves only a physical change which causes blight. Furthermore, he thinks that the facts involved in the City of Mount Shasta case are markedly different than the facts involved here, and at the appropriate time when the Public Hearing is closed, he hopes to be able to respond fully to the arguments which have been made and would be happy to do so. Mayor Boro stated he has a question for Ms. Blair, following her comments about the saturation of the hardware market in this County and the fact that the population growth has basically held constant over the last ten years. He stated he is curious, when he thinks of other businesses, and the evolution of change which has evolved as a result of marketing strategies and, in turn, the buying public's habits, regarding theaters, drug stores and gas stations for example. He asked has Ms. Blair factored in, not only the saturation of the marketplace, but the change in marketing strategy in this particular field, and what that impact might be in the long term, both here and elsewhere. Ms. Blair asked if Mayor Boro was referring to big box retailers coming into the market place, and he responded he is referring to individual businesses and the change we have seen. He noted there used to be corner hardware stores and now we have a few big ones. Also, we used to have about 60 gas stations a few years ago, and now we have about 20. Also, regarding theaters, we used to have one on Fourth Street and hopefully will again soon, but we have gone to multi -type theaters. He noted there has been a change in strategy in certain areas, and there has obviously been a change in big box strategy and what is does. He inquired had Ms. Blair looked at that and figured what the impact of that might be in San Rafael, assuming this kind of use is already happening in the area, and what the impact would be on the sales tax. Ms. Blair responded they did not analyze that in detail, but there could be cases where businesses were driven out because they were not competitive any more. She noted that Jackson's per square feet sales volume is higher than Home Depot, on a square foot basis. She noted it is a 30,000 square foot store generating $12 million per year. She added she knows of a contractor in the East Bay who comes here to Jackson's because of the service he gets. Mr. Bianchi stated that the reference to fewer gas stations than there were 20 years ago, brings a good illustration of the kind of problem we are talking about. He asked, would you pay less where there is no competition? He stated that in the merits part of the process he will show the Council how Home Depot drives out the smaller retailers. Mayor Boro explained his question was regarding the change in marketing strategies. There was a 10 minute recess, after which the Public Hearing continued, and Mayor Boro asked for comments from the public. He asked that comments be limited to 3 minutes, and that people speak to the issue before us, which is the adequacy of the EIR. He noted there are people here who are in favor of the project, as well as those not in favor, and he would like to hear both sides intermittently. He also asked that speakers give their name and where they are from. Ron Goodman, who has lived in San Rafael for 16 years, stated he can relate to some of the problems discussed by Mr. Bianchi. He stated he had multi stores in the East Bay, and moved to San Rafael for its uniqueness, but worked in San Leandro. His stores were building materials stores and he did quite a substantial business with hundreds of employees. Then Home Depot came in between two of his stores, and within five years they made a dramatic and devastating impact on his business. Mayor Boro asked Mr. Goodman to please address the EIR issues. SRCC MINUTES (Special) 7/28/93 Page 15 SRCC MINUTES (Special) 7/28/93 Page 16 Mr. Goodman reported that a local manufacturer is hanging on by a thread, because the small businesses he supplied are no longer there. The local printer is in the same situation, because Home Depot does not advertise in local papers, but on radio and TV. He stated he can tell from his own experience what will happen if Home Depot comes here, and the Council should stick to the Vision we have for San Rafael and he would like to see it retained. Chris Craiker, local architect, stated he has gone through the EIR, and feels that Home Depot will have a significant draw from the East Bay and does not think it will have the affect on the Bellam interchange which has been mentioned. He added he thinks the "big box" can be mitigated through the design review process, and he would like to see it done. He stated he will not go into the merits of the project other than to say the small home owner deserves Home Depot in order to get better prices. Irving "Whitey" Litchfield, stated that tonight the Council is seeing the backbone of San Rafael, the old timers who are fighting to stay alive and live in Marin County. He noted the attorney told a complete story of what will happen in San Rafael. He stated he has been here 50 years, and listed the stores which were here then. He stated that everyone is leaving and Downtown is in a mess. He noted the Council was told by the City Attorney that they have to do something for Home Depot. He stated they should tell Home Depot to get lost, get out unless they come up 2,400 parking spaces on their place. He stated he had to close Bermuda Palms with two buildings because he has to have 400 parking spaces. He referred to Section 14.02.020 of the San Rafael Municipal Code, which states that zoning regulations are applicable to all of the land within the City of San Rafael, and no land shall be used and no structure shall be constructed or occupied, enlarged, altered or moved, in any zoning district except in accordance with the provisions of this title. He stated yet he is told he has to have 400 parking spaces, and the Council denied his appeal. Mayor Boro thanked Mr. Litchfield and told him his time is up. Steven Hossfeld read a letter from his father who could not be present, expressing his concern about the traffic which would be generated by the addition of Home Depot. He wrote that he has been employed in the area for nine years and presently uses East Francisco Boulevard as his access to the business where he is employed. He gave a detailed tour of his commute, commencing with 8:00 AM on his way to work; at lunch time driving through the area to lunch; about 2:14 PM on a trip to the bank at Montecito Plaza, at 5:00 PM going home through heavy traffic, and a description of the Friday night traffic situation. He concluded by writing that to add to the traffic from a large business facility would only serve to choke the movement of vehicles in this area and, in the case of an emergency, produce total gridlock. He asked that the application be denied. Carol D'Alessio of Marin Conservation League (MCL) paraphrased her letter in the interest of time. She pointed out that the Shoreline Center is adjacent to wetlands or Bay on three sides. She stated that MCL cannot recommend that the EIR be certified at this time, since MCL does not know the location of the buffers to the wetland area or on the slope, since the EIR states only that the buffer should begin at the property line. She noted there are some unfortunate examples in existence today along the San Rafael bayfront where residential building was planned too close to the top of a bank, and no one wants to see additional large industrial buildings looming up over a wetland or a shoreline park. Ms. D'Alessio stated that at the Planning Commission meeting of July 19, 1993, we talked about optimum buffers and it was agreed it would be at the top of the bank. She added that at the May 11 and June 29 Planning Commission meetings it was suggested that for a buffer to be effective for wildlife, the buffer area should span at least 25 feet from the top of the bank toward the building. She noted the EIR simply states that the buffer should begin at the property line, but does not show where the property line is. Ms. D'Alessio noted that MCL has been requesting cross-sections be included in the EIR for parcels 1, 2, 5 and 6 because the topography is entirely different, and those parcels are adjacent to wetlands. MCL would like to know where the slopes are and the buffers, berms and fences, and the planting area. She stated only then can the Planning staff, Fish and Game, and interested members of the public decide where to setbacks are in relation to the slope and determine whether this is a quality project. She recommended that the cross- sections be included in the Shoreline Center FEIR. Joe Walsh, a resident of Lagunitas and publisher of the Classified Gazette with an office at Fourth and Lincoln, stated that staff has done a great job pursuing their needs as they see them, and that is to fill the gap of an ever -widening funding problem. He stated that the Council was elected to preserve the long-term economic situation in the City of San Rafael. He stated he does not see this as a conflict between Jackson's Hardware and Home Depot, but it is so enormous it will affect every business in San Rafael. He noted the "big box" does not advertise in newspapers like his, or the I -J. They use TV and radio. They will not use local lawyers or suppliers, but will use national ones. He stated it is his considered opinion that maybe the decision will be made that the economic impact does SRCC MINUTES (Special) 7/28/93 Page 16 SRCC MINUTES (Special) 7/28/93 Page 17 not have to be studied, but perhaps it does, and the Council should make a decision on it. He stated he does not think the Council will be forced to make a decision that the free market is served. He stated he does not think a project of this size fits the General Plan, nor the zoning, because the Council is thinking of changing it. It does not fit the Vision. All of the surface roads are already impacted, and three cars per minute is not realistic. Richard Harris read a letter he had written to the Council, stating he has already attended three sessions of the Planning Commission on the Home Depot issue, and is adamantly opposed to Home Depot locating on the former dump site. He reported he is founder and president of Goodman Building Supply Company in Mill Valley which he started with Mr. Goodman in 1955. He stated his two main subjects are toxic waste and increased traffic. He noted he has spent over $50,000 in engineering and attorneys fees and has barely scratched the surface in resolving the problem of the toxics on property he owns adjacent to Montecito Plaza. He asked how can the Planning Commission minimize the effects of the toxic problems at the dump site while he and other owners of toxic infected properties are put through years of testing and analysis? Regarding increased traffic, Mr. Harris noted that Home Depot has estimated they will create approximately 2,000 transactions per day, which would mean 2,000 more cars a day, and he feels this figure is grossly understated. It does not calculate the number of employees' cars, vendor vehicles, large delivery trucks, and cars from shoppers who do not make a purchase. He noted that Home Depot stores contain approximately 125,000 square feet of retail selling space. His store in Mill Valley has approximately 16,000 square feet of selling space, and they average about 1,200 cars per day. He noted that Home Depot store is about eight times the size of Goodman Building Supply, and by using that ratio Home Depot could average some 8,000 cars a day. Mr. Harris stated he hopes the Council votes against allowing Home Depot to locate on the dump site. Barbara Salzman of Marin Audubon Society, stated that many of her concerns have been expressed by Mr. Bianchi. She stated she has the distinct feeling that the EIR has been favorable to the project. She stated she has concerns about many of the mitigation measures, the water quality and air quality, and the buffer problem which was addressed by MCL. She stated one need is to differentiate between a setback and a buffer zone, noting this has been an ongoing problem. Areas they thought were for the protection of wildlife are allowing adjacent parking lots and other development. She noted there is also the subject of the fences, which were never explained in the drawings. She feels strongly that a 100 foot buffer as measured from the top of the slope is necessary. Mr. Salzman stated she was disappointed that Audubon Society was not included in the discussions with the Fish and Game people, although they had been very clear about their concerns. Regarding the small oil and grease traps, she stated it is unclear what they mean, but they need oil and grease separators that will do the job. She stressed the need for a baseline study test regarding leachate, because there are other elements also involved. She noted they are going to have to start somewhere, and should test up the testing procedure. Ms. Salzman noted they had asked for a reduced project alternative, and they would like to have a better sense of what we are dealing with. She stated she would like to see them start with an adequate buffer and determine how much of a reduced project they should have in order to preserve the wetlands. Larry McFadden, a Fairfax resident and President of Fairfax Lumber and Hardware, stated he is Chairman of the Marin Economic Commission which was formed with no budget and no staff and was given the Countywide Economic Element charge, although tonight he is speaking for himself. He stated one thing the Commission has been doing is preparing for an economic conference of Marin County, to determine exactly what the economic vitality is in our County if, in fact, there is any. He noted there are divergent opinions as to the health of the economy in the County. The intent of the conference on September 28, 1993, to which the Council will be invited, as are members of the public, is to ascertain some validity on the observations on the economy. He stated that part of the revelation which came about in the last two days of conferences he has been attending, is the funding crisis which is facing all jurisdictions. He added that in some 16 different focus groups, and meeting with every Mayor and Administrator with few exceptions, was the fact that development is no longer a feasible endeavor for local jurisdictions because the State has taken away all the property tax. That is why we are all facing budget crises within our jurisdictions. He stated that the bad news for his was, if no one is going to build anything, what will we sell at Fairfax Lumber and Hardware. He noted that indicative within the interviews he has been conducting was that, contrary to development, draining a local economy is a drain on the local jurisdictions. He stated that due to the fact that the State is draining the property tax monies off, in order to recoup the cost that goes into just infrastructure changes, how does the local jurisdiction recoup those normal expenses of development, since they are not going to be recouping through property taxes any more? He stated that it is a negative drain for jurisdictions to have SRCC MINUTES (Special) 7/28/93 Page 17 SRCC MINUTES (Special) 7/28/93 Page 18 development. He noted there is a bill introduced to try to correct that. He stated it causes him to question, when any development comes in to our jurisdiction, how do we recoup the cost? He noted we could talk about the economic aspects of the project, as he has heard tonight, there is some $300,000 in sales tax. He stated that although he has not studied it, he would think there would be approximately $175,000 in dislocated sales tax from other places within the jurisdiction. He also stated the City is not accounting for sales tax revenue which would be lost due to the "inconvenience factor". He stated for anyone who drives Francisco Boulevard, they know how difficult it is to even get into the car wash. So, if you are talking about heavy traffic on Francisco Boulevard you have to consider the impact and the loss of sales of people who will not go to the businesses along there. He stated that could be another $25,000 to bring the total to $200,000. He added his question is, and not from a competitive aspect, can you afford to allow Home Depot to build in this jurisdiction, given your economic situation as a City? He stated he thinks that is a very appropriate question, given the information he has been hearing. Mr. McFadden stated he must mention, as someone who is a former Planning Commission member and someone who has dealt with a great many EIR's and traffic studies, he knows what the statistics say and would never question the integrity of staff or anyone in putting together this study, but he really cannot accept the traffic impact study on faith, because if that is so, Home Depot should come out and take lessons in merchandising from his humble little operation which has been there since 1912, because we generate almost that much traffic, and are in a very small community. He stated he finds the stretch of the traffic impact report somewhat astounding. In conclusion, Mr. McFadden stated he thinks it is a relevant issue, given the funding source changes which are coming about in the State. He stated he would hope that San Rafael, Novato and Corte Madera do not become piranhas on those of us in other jurisdictions. He stated he knows the dilemmas with sales tax, and everyone is faced with cutting services, but he thinks we are a community and a County, and if the jurisdictions he named are going to survive based upon draining the economic life out of the others by going into box retailing with a vengeance, he suggests that you, not we, will pay the price ultimately, by the sacrifice of your own community. He thanked the Council for the extra time he was allowed. Mayor Boro stated he was in one of the focus groups yesterday, and a person was complaining about this very issue, and announced that at a certain project in another city they were only going to build 800 homes, but 750,000 square feet in commercial and retail space on that site. John Kelly, a Petaluma resident, formerly of San Rafael, states he works in San Rafael on Pelican Way, at a 900 angle from Francisco Boulevard. He stated the traffic in that area is busy at any time during the day, and Bellam and Francisco is extremely heavy. He stated he does some shopping in Rohnert Park and the amount of people going in and out of Home Depot is phenomenal. The freeways are not close enough to this site, and the ways to get in and out are not conducive to attract people. He noted that the Home Depot in Rohnert Park has access to 101, but his area is not set up for the large construction of Home Depot. Richard Rubin of Terra Linda stated there are solutions to the problem. He stated before the Council votes on the project which will be all of three stories high, go home and think about how big this place will be. He noted there will be merchandise 30 feet in the air. On traffic, the way to solve it is to make it a 30,000 square foot sales floor, or ask for $3 or $4 million for the overpass the City is going to need. He stated that CalTrans should not have to pay for a cloverleaf to help people from Atlanta. Mr. Louis DiGiorgio, a local contractor, stated he does not think anything should ever be built on the San Quentin Dump site. He referred to page 2.29 of the EIR, regarding the methane gas and referring to monitoring programs. He noted that on page 3.81, it refers to the landfill gas as being a byproduct of waste stabilization through anaerobic decomposition of refuse. He stated, the site has methane gas. he then turned to page 3.8-8, explaining he had identified the item and then was searching to see if it has been mitigated. He referred to the second paragraph, where it says that "Over half of the potential methane generated by the Shoreline Center landfill should therefore be generated within 15 years of closure. At the current measured generation rate of 10 liters/minute, gas generation would extend for approximately 62 years (from 1967..." Mr. DiGiorgio noted that the site has not been closed that long, and we do not know what is there. Mr. DiGiorgio then referred to Significant Impacts, page 3.8-18, Exposure of Construction Workers to Landfill Gas During Penetration of Landfill Cover. He read, "Pile foundation could expose construction workers to landfill gas release during penetration of the final cover. The existing final cover is five feet thick and minimizes direct exposure to landfill gas. During construction of the pile foundation, the final cover will be breached and workers could be exposed to high concentrations of landfill gas". He stated you have a site which has gas. People and visitors are going to go there, and he looked SRCC MINUTES (Special) 7/28/93 Page 18 SRCC MINUTES (Special) 7/28/93 Page 19 to see how to mitigate it. He referred to page 3.8-22, and at this point it tells you how to mitigate the gas. Under paragraph 3.8-22a, it requires the contractor who is not even on the scene yet, who has not gone there and does not have an engineer's degree in mitigating these things, he is going to submit a plan to the Marin County Department of Health. Mr. DiGiorgio recommended taking a little yellow canary and going to the site, and start to drive piles. When the project is underway, the canary dies. So, if the City is going to have a park on this site, call it Canary Park. You stop at the gate, get your little canary and go on, and you see if it lives or not. He stated that the exposure that the City is getting into with this gas is a bigger issue than anything else he has heard tonight. He stated the Council only needs to consider this, to vote against the project. Bill Boyle from San Anselmo. He asked that the Council listen to the presentation on the methane gas, and to the "bird lady", and take care of their needs. He stated that once they have done that the Council should stop listening and make a decision. He noted that this store is going to go somewhere, either in our town or in someone else's town, but it will affect our market. He stated the decision is where it is going to happen. Regarding the traffic, TJKM is one of the two or three best engineering firms in Northern California, and did the job they were assigned to do and do not care what is decided. They say what should be built and how much it will cost, but they have no further interest in the project. He noted that what they said was true, but the main thing to understand is that they have no bias in this and they are just an outside resource. He stated that no matter how long the meeting takes, it will come down to where the store is going to be built, and he would just as soon have it here and have those tax dollars going to this town rather than someone else's town. Jim Sasse spoke in favor of the wildlife which is always in jeopardy around the Bay and is constantly encroached upon. He noted that the buffer zone the Audubon Society has made is much too small, and should be 75 yards from the Bay. He noted everyone uses the word "mitigate", which Webster interprets as: "To make mild, or soft, or tender". He stated these points raised tonight should not be mitigated at all. Let's not mitigate, let's not deviate from these issues. He stated let's be heard, let's anticipate sensible growth in San Rafael. Should we have a hardware store for every ten people in Marin? Let's concentrate, let's say "No" to Home Depot in Shoreline Center. Robert Kane from Kentfield, a local general contractor, stated he would like to rebut someone who said Home Depot will just build someplace else and that will take away your tax revenue. He reminded the Council that one of the biggest problems he faces as a general contractor is not having to go up to Novato or Santa Rosa to buy his products, but rather can he get around San Rafael? He explained that when he goes down to Bellam and tries to get through the corridor and is stuck at a stop light for 20 minutes, this is the major problem with which he is faced. Ron Leach of Rafael Floor Covering, spoke noting they have been located on Francisco Boulevard since 1957. He lives in Novato, and suggested that the person who stated Home Depot may be built in Novato should read today's Novato Advance, where the City officials are saying they are second-guessing the shopping center because they are having to put some extra effort to resuscitating the businesses downtown. He referred to the speaker who coined the phrase, "Inconvenience Factor". He stated they put a lot of money into their store and people are asking if we can bring samples to their home, since they do not want to come to the store because of traffic. He added that people from outside the area are beginning to learn of the Inconvenience Factor. He stated that making a left turn out of his parking lot, which is by Office Depot, is impossible. Patti Thayer of Bret Harte, agreed with the potential impact on San Rafael. She also expressed concern about the toxics issue, stating there is very little discussion in the EIR about the toxics on the site and the material supposedly on the site is innocuous. She read a letter from Julia Kendall on this issue, stating her concerns regarding the material which was dumped at the San Quentin dump site in the 1970's, where anyone could drive in, pay a fee, and dump whatever they had in their vehicle. The fees were based on size of the load, and there was no question about the contents. Ms. Thayer added she is very concerned about the environmental consultant's statement that no toxic substances will be emitted because of the clay pack. She noted clay packs leak. Also, regarding PM10, she appreciates the fact that the consultants were straightforward in saying that it could not be mitigated. She stated that people do not want to acknowledge that toxics are part of our life. John Charbonneau stated he lives and has a business in San Rafael. He gets supplies on Belvedere Street in San Rafael, and uses a print shop on Kerner Boulevard. He gets mail at a post office box on Bellam. He stated that he goes down to the area several times a week during peak hours, and does not need to read all of the reports to know about the traffic. All you have to do is go there. He stated he supports all of the local businesses and, in turn, they support him. He stated that Home Depot will suck everything out of the County. Deborah Paolino, who lives and works in San Rafael, asked about the "magic number", SRCC MINUTES (Special) 7/28/93 Page 19 SRCC MINUTES (Special) 7/28/93 Page 20 $300,000. She asked how much is it in dollars. She noted Home Depot has said they take 3%. The San Jose Business Journal said they have already taken 29% out of the market, and we should figure the dollar amount from all the different businesses in the building trades in San Rafael. She stated she thinks this is a valid question, because that is the reason the project is where it is today. She would like that discussed in the next meeting in public, so everybody hears. Mayor Boro stated that 19 people have spoken, and unless someone has something to add he will close the hearing. He noted that all questions will be answered. Steve Blumenthal stated he has been in business for 25 years and is now retired. He said he has heard that these meetings are just a formality and everything has been decided, but he does not believe it. He spoke of the American Dream, and how people realize it, with a little luck. He stated this is not a Jackson's problem alone, but affects any other business in the area. He stated that Home Depot's great prices are not true, they are buying customers. They have many stores in the East Bay and down the Peninsula, and they admit the prices are not the same in all of the stores. The prices in the new stores are low and when they knock out the competition they go higher. He noted that Costco and Price Club are merging, after knocking out the small stores. Mr. Blumenthal stated that when these big companies build up their debt, the people who are at the top get off with a few million dollars and everyone else is left with nothing. He added that you do not need experts to work on the traffic, and the taxpayers will have to bail out by building overpasses. He noted that the Planning Department has not been kind to business owners in the past, and trying to get a permit from these people is an act of God. He stated he does not know George Dexter personally, but he is one of our biggest auto dealers. Mr. Blumenthal explained that Mr. Dexter was taking on a new line, Infiniti, and wanted a small sign which said "Entrance". The City had made Mr. Dexter plant trees years ago and he had to resort to begging to get a little sign. He stated that this is what makes people move, and the staff should concentrate on making it easier for businesses to come in and to improve their properties. He told the Council that they have a chance to show they care about the community. He noted you can have economic misery without having earthquakes, floods and fire. Vickie Gruber stated she has heard a lot about methane gas. She asked what happens if it leaks too much, and would they close the site down? She stated if she wanted to live in a town which looks like Fremont she would have bought her home there, instead of in San Rafael. J. D. Sullivan, President of Bank of Marin, stated this project would have a long term impact on the quality of life. He stated that San Rafael has a history of most businesses being home owned and managed. The local businesses buy and sell to one another. The recirculation of money is the strength of the economy. Mr. Sullivan noted that Home Depot sells locally, but does not buy locally, and the profits they generate will not be invested in San Rafael. They expect sales for a San Rafael delivery point. He noted that the manager will have $5,000 for community expenditures which is 1/100 of 1% of gross sales for the operation. He noted that Bank of Marin is home -owned, and gives far more than 1% back to the community. He questioned whether Home Depot employees will show up at City meetings. Mr. Sullivan reported that Bank of Marin employees have given almost 4,000 hours of personal service to the community. Mr. Sullivan asked, would Home Depot have a positive, long term effect on the people in San Rafael, and on the quality of life in San Rafael? He stated, if you can answer "Yes", it should be approved. If not, it should be denied. John Lundberg, owner of Lundy's Wood Products, Inc., which has been in his family since 1955, and is located on Simms Street, stated he owned two lots on Kerner Boulevard. One corner of the lot had a sewer main, which he wanted moved. He finally got approval after a year and a half and by that time the cost to do the project had more than doubled. He stated he hopes that if Home Depot comes here they get the same scrutiny he was given. Mr. Lundberg stated he agrees with Ron Leach, that a lot of people will not come down to that area of the City and ask him to deliver. He stated he sells plywood and formica, and prefab cabinets. He noted that many local cabinet makers are having a hard time, and he would not want to see this project hurt the businesses who are doing the best they can at this time to make money. There being no further public input, the Public Hearing was closed. Mayor Boro asked if the Council has additional questions. He stated he will ask staff to address in writing all issues raised here tonight by the Council, the applicant, the opponents, and by members of the audience, and have them ready for the regular Council meeting on August 16th. He added that the written responses will be ready, and the Council will accept testimony that night on the questions which had been raised. Mayor Boro explained that any testimony that night will be on the questions raised as a result SRCC MINUTES (Special) 7/28/93 Page 20 SRCC MINUTES (Special) 7/28/93 Page 21 of those questions. Mr. Bianchi inquired about having the written responses ahead of time so they could study them. He asked could they have them a week ahead of time so they could study them and possibly prepare responses. Mr. Pendoley stated staff would not be able to do that. Mayor Boro asked when can staff have the answers back out, both to the Council and to the public? Mr. Pendoley stated it would have to be on the usual publication date, which is the Thursday before the Monday meeting. Mayor Boro pointed out that would be the 12th. Councilmember Breiner stated she felt we will need another special meeting, because there is the rezoning as well as the responses from tonight. She recommended that be considered. Mr. Bianchi inquired why the 16th, and why could it not be at the next meeting, to give people all the time they need to work on it. Mayor Boro stated he would frankly tend to agree with Councilmember Breiner about another meeting, but we will not set it here tonight. He stated it seems to him that there were a number of questions raised which will cause other questions to be asked and discussed. Also, we do have the hearing on the other item, which we have not yet started, and will not start tonight. So, rather than be under the pressure of a regular Council meeting, he would suggest that staff work with the Council and come up with a meeting sometime toward the end of August when the full Council can be here. Mayor Boro added we will get word out to all interested parties. he asked if that is satisfactory to the Council. Councilmember Shippey stated he is not eager for an extra meeting, but he feels we should give staff and the applicants and other members of the public time to respond and if that cannot be done by the 16th he would support a later date. Councilmember Cohen stated that business will take him out of town probably the last two weeks of August, so he would not be available. Mayor Boro noted that also runs into vacation time as well. Mr. Pendoley stated that at next Monday's meeting he could have a short report suggesting some options for subsequent meeting dates, rather than try to figure it out at this time. Mayor Boro agreed. Mr. Bianchi stated they need more time than the Thursday before the meeting. Mayor Boro responded he will make sure that the information will be available for the public a week before the meeting, along with the applicant and the Council. Mr. Paxton informed the Council that it is very important to the project sponsors that these hearings be held as soon as possible so they can move forward. He stated that moving it to September would be a detriment, since the project will have to go back to the Planning Commission again after the Council takes its action. Mayor Boro stated that they will do the best they can, and he understands the project sponsors' concerns, as well as Mr. Bianchi's concerns; also the Council has its own concerns as well, and they have to be balanced out. Councilmember Breiner stated she would like to be sure that some of the issues are definitely going to come back, because she does not know how much detail staff has picked up. She stated that first of all, she would like to know in connection with some baseline studying and monitoring of the adjacent poind, what would be involved if the Council wanted to monitor the water quality in the pond. She stated that is in reference to the Planning Commission meeting of May 11, 1993, at the bottom of page 10 of the Minutes. She noted it was brought up by Barbara Salzman, and has been a question of hers ever since she started reading the project. Another issue is consideration of oversight from start to finish by a Clerk of the Works, something along the lines discussed in connection with Loch Lomond, and how that might operate if we were to go along with the project. She stated she also wondered who maintains the pond years out; if it is dredged at this point and there are problems later on who pays for the continued maintenance of the pond after many years? Ms. Breiner asked if we could have anything back from Home Depot on the variation in size of the different facilities they have, and if they all have garden centers in connection with them. She stated she assumes we will get the information about cross-sections of parcels 1, 2, 5 and 6, and the necessary information as suggested by the speaker (MCL). She asked what are the hours of Home Depot, what is being proposed. She stated she would assume we will be reviewing the traffic issues raised by the letter read by Dick Harris and mentioned by Larry McFadden and some other people. Mayor Boro stated he would assume that the staff has taken complete notes, but if the Council has any issues they do not feel staff may have taken it could be mentioned now. Councilmember Shippey inquired of Mr. Ragghianti if he will get back on the question of the independent economic analysis? He stated he wants to make sue that is addressed. He added he is not sure we do not need one, from a legal standpoint. Mr. Shippey stated his SRCC MINUTES (Special) 7/28/93 Page 21 SRCC MINUTES (Special) 7/28/93 Page 22 second concern is reassurance on the traffic report, since he has heard a lot of people say they do not believe what they read in the traffic report. He suggested there are some concerns about the assumptions used in the peak hour generation trips. Third, the true economic return. He would like once again to see how that $300,000 figure was generated because if you know that, anyone can calculate the percentage. Fourth, do clay caps leak? He stated he did not hear anything addressing that. Councilmember Thayer stated she was very interested in what the MCL had to say about the relative distance, dealing with the property line in relationship to the wetlands, and where setbacks actually are. She stated that was a very well -presented letter. She also has some concerns about the architecture and the different architectural types which are used by Home Depot. She has some concerns about the piling and the clay cap, and also how to measure runoff in the pond. For example, there could be an increase in oil and grease into the pond, in spite of the oil and grease traps. She stated that is something that would be measurable and distinguishable from that which is in the landfill. Ms. Thayer stated she has some economics concerns with regard to local suppliers. She hears that economic issues cannot be the sole issue and should not figure into evaluating this project, but she is interested in local business. She stated she would also like to know the cost to the City, if there is any projection, for infrastructure for such a large operation. She stated she had asked previously who would be doing the maintenance of the oil and grease traps, and what types of costs could there be to the City for ongoing maintenance to this project. She said she realizes we would be providing basic City services to them, and would like to know what is going to come out of the City's pocket in this process. Councilmember Cohen stated he would assume that staff got excellent notes, and there is recording going on. He remarked that regarding comments tonight, we have in past reviews seen the kind of section drawings MCL had asked for. He thinks that in this project they would be helpful and if there is a reason staff does not feel that way he would want to hear that. He stated it would help, since he found it difficult to analyze the maps which were presented, and sections would be helpful in making that clearer. Mr. Cohen noted there was a question raised which was somewhat addressed in the Response to Comments in Comment 1 on traffic, in the DFEIR. The issue was raised about trip generation, not trip distribution, and perhaps this does need a finer analysis or more detail as to how the numbers were arrived from, just so we have more evidence based on the questions which have been raised. Mr. Cohen stated another question came up, which might deserve analysis, and that is the question of off-peak hours traffic generation. He stated he feels that deserves a moment's look for a project like this. There might be contractors doing their purchasing early in the morning when you have AM peak traffic, and we should take a look to see if we have the tools to analyze that. As a general observation, Mr. cohen stated he wants to hear the City Attorney's responses to legal issues raised about the EIR obligation to do an economic analysis. He stated it seems to him, without prejudging that issue, that it would be best joined when discussing the merits of the project and not as part of the EIR review. He explained he is not saying that he is not prepared to evaluate the economic impacts of the project at the appropriate time, but he remains to be convinced that it is appropriate to fold that into the CEQA process. He stated he would like the City Attorney's response to a legal challenge on that issue, which was raised by Mr. Bianchi. Mayor Boro stated that in asking the City Attorney to pursue that, he would think that the whole issue of the Council's role in economic determination as part of a planning process, is something in which he would be interested in the City Attorney's opinion on, above and beyond the EIR. Mayor Boro noted that a question was asked about traffic mitigation fees, and how much are they. Another issue was the question brought up about the $300,000 and the basic question was, what is the net gain to the City, with the difference being a loss to the people who are here. He stated he would be interested in learning what the estimated net loss would be to the City if Home Depot locates elsewhere in Marin County. Councilmember Cohen stated he has one more response he would like to see, in response to Mr. DiGeorgio's comments about mitigating the methane gas, and would like to see a little more as to mitigating the necessary penetration of the cap during construction, and the occupational safety issues. He stated he does not know that it is sufficient to be content with this; he understands that other agencies have regulatory authority over this and he would assume we cannot be "breaking new ground" on this. Someone else addressed the issue of penetrating the cap on landfill closures, and we should not just say that a plan is going to be submitted later on and we will look at the safety issues. He recommended getting it up front as part of the environmental review. Councilmember Breiner stated that in terms of ongoing maintenance she is a little concerned that some of the review process is with the County, and they are short staffed. She asked how diligently can that be carried out? Can we be assured it would get the proper review? SRCC MINUTES (Special) 7/28/93 Page 22 SRCC MINUTES (Special) 7/28/93 Page 23 Councilmember Shippey asked could staff come back with responses in two weeks with some of the questions so we could prepare for August 16th? Mayor Boro responded that Mr. Pendoley will present a recommended plan of action to the Council. He then asked for a motion to continue the Public Hearing to a date to be determined. Councilmember Cohen moved and Councilmember Shippey seconded, to continue the Public Hearing on this item to a date to be determined. AYES: COUNCILMEMBERS: Breiner, Cohen, Shippey, Thayer & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 2.PUBLIC HEARING - Z90-5 - REZONING FROM THE PD (PLANNED DEVELOPMENT) DISTRICT AND LI/O (LIGHT INDUSTRIAL/OFFICE) DISTRICT TO A PD (PLANNED DEVELOPMENT) DISTRICT FOR THE DEVELOPMENT OF A 42+ ACRE BUSINESS PARK (SHORELINE CENTER), INCLUDING AN APPROXIMATELY 102,190 SQUARE FOOT RETAIL BUILDING WITH A GARDEN CENTER (Pl) - File 10-3 x 5-5 x 10-2 x 10-5 x 10-7 Mayor Boro declared the Public Hearing opened and continued the hearing to a date to be announced. There being no further business, the meeting adjourned at 11:50 PM. JEANNE M. LEONCINI, City Clerk APPROVED THIS DAY OF , 1993 MAYOR OF THE CITY OF SAN RAFAEL SRCC MINUTES (Special) 7/28/93 Page 23