EVER WONDER HOW CVS HAPPENED?

HERE'S THE WHOLE STORY!

Thanks to Jane Nielson, Helen Shane, and Paul-Andre Schabracq

CVS Chase Project: Anatomy of a Flawed City Process

The CVS project, consisting of a CVS store and Chase Bank building on the abandoned Pellini Chevrolet site, is the most recent project to strain the Sebastopol Community, but we hope it will never be repeated. To learn from the experience, the undersigned have investigated the process and present the results of that investigation in the following, along with suggestions for future improvement.

1. The City Process

Jack Griffin

According to the City Manager, his predecessor, Jack Griffin,  was in "full control of all staff decision-making."  Griffin could have decided that the CVS project's CEQA document would be a Mitigated Negative Declaration. We do not have a record to establish whether the Planning Director initially recommended an MND vs. an EIR or if this decision was revised by Griffin.

Kathleen Shaffer

According to our records, on June 14, 2011, Sebastopol's Planning Commission (PC) voted 4-2 to reject the CEQA document prepared for the proposed project. A principal concern behind that vote was the traffic study for the traffic-generating project at the intersection of two busy highways in the City's Core district. The traffic study had omitted consideration of the City's largest proposed project, only a short distance from the Pellini site. We are not informed whether Griffin or Planning Director Kenyon Webster had made the decision to omit The Barlow project from this study.


The CVS-Chase CEQA process went into failure mode because no findings were prepared or submitted to the City Council to explain the bases for the lopsidedly negative PC vote. In a digital recording of that 6/14/11 PC meeting, the vote's aftermath sounds chaotic; no order is imposed by the PC chair (Colin Doyle). One Planning Commissioner can be heard pleading for the chair to recognize her motion to have "comments" on the vote submitted for the City Council to consider. Neither the PC chair, the vice-chair (Bob Greene, husband of then-City Councilmember Kathleen Shaffer), nor Planning Director Kenyon Webster responded to that Commissioner's motion, or her statements about the need for comments (the required findings.)

Sarah Glade Gurney

Preparing those findings was the City Planning Department's responsibility. No explanation has ever been proffered for the Planning Director's failure to prepare findings that the Commission could forward to the City Council as required by the Government Code.
At the next City Council (CC) meeting (July 5, 2011 and continuing to early the next morning) four Council members (Guy Wilson, Michael Kyes, Kathleen Shaffer, and Patrick Slayter) rejected pleas from Councilmember Sarah Glade Gurney and members of the public, to send the issue back to the PC, with a request for findings to explain the vote. The CC instead overturned the PC recommendations and approved the project's Mitigated Negative Declaration on a 3-2 vote. The Mitigated Negative Declaration was based on a perception that the project's environmental impacts would not warrant a full-blown Environmental Impact Report. During the break at that meeting, the AeCOM traffic consultant informed Helen Shane that the Planning Director had designated which street intersections were to be studied.

The Council granted the project a permit, but requested modifications to the design and retained jurisdiction over final design details.

During August, the City's Design Review Board (DRB) rejected the project's design, largely due to the inclusion of a drive-through window at both the pharmacy and bank, which raised severe questions about the safety of its parking lot entrances and exits. At that same DRB meeting, panel members brought up the subject of submitting findings to explain their vote. This time, Planning Director Webster quickly asserted that the Planning Department staff would prepare findings from their notes of the debate, and present them to the DRB for approval or modifications.

Later in 2011, during a City Council hearing on the DRB finding that the proposed CVS project does not meet its guidelines based on General Plan policies, City Councilmember Shaffer opined that the General Plan is only an aspirational document, and the City Council must follow the zoning code, which is the actual law. Ms. Shaffer appealed to Planning Director Webster, asking him to confirm her opinion. Mr. Webster responded that the Zoning Code states and implements City policies, which did appear to affirm Shaffer's statement.

Kenyon Webster

Mr. Webster's assertion dodged the fact that the state of California has established General Plans as the controlling documents for development of its cities and counties, however - guidelines on State websites confirm that whatever form of zoning a community adopts, that ordinance must be consistent with the General Plan, and if the Zoning Code is inconsistent with the General Plan, it is the Zoning Code that is invalid.

2. The Legal Tangle

Michael Kyes

August, 2011, a group called Committee for Small Town Sebastopol sued CVS-Chase, charging the Mitigated Negative Declaration was invalid because it had been based on a flawed traffic study that did not consider The Barlow or traffic beyond High Street to the east, and Fanning to the south on Hwy 116. By that time, Councilmember Michael Kyes had changed his stance on the project. Having heard the recording of the June 14 PC meeting, Kyes declared that he had been misled about the lack of findings.

During May of 2012, CVS began the process of applying to CalTrans for an encroachment permit to allow access to and from the project site. The permits would have allowed left turns across oncoming traffic at the corner formed by the intersection of CA State Highways 12 and 116.

CalTrans

Small Town Sebsatopol (STS) urged local residents to contact CalTrans and oppose the encroachment, stating that traffic would be further exacerbated by the many left turns close to that corner. Cal Trans had to assign a Community Outreach officer to respond to everyone who sent in a complaint. STS also began to communicate its own concerns to CalTrans, which then sent a team to evaluate the situation. They queried CVS representatives and asked for more details.

John Eder, Kathleen Shaffer

Evidently, CVS did not fully satisfy CalTrans because the permits were never issued.
In the 2012 election, one pro-CVS Council member declined to run, and Shaffer was defeated. In 2013, the newly elected Council imposed a temporary moratorium on drive-thru windows for downtown businesses. On December 24, CVS filed a suit against the moratorium in California Superior Court, but subsequently withdrew that suit and filed again in Federal District Court, claiming that it discriminates against the project proponents, and so violates their civil rights.

In May, 2013, the City Council passed an ordinance requiring solar photovoltaic energy systems on new or substantially remodeled commercial projects. Notified of the ordinance and the requirement that they must comply, CVS claimed that the ordinance could not be applied retroactively.

During the year 2013, 13 different court hearing dates were scheduled for the STS lawsuit, but each was postponed at the request of CVS/Long's Drugs. Without ever having a formal hearing, the suit eventually went into settlement talks, as did the Federal CVS/Long's Drugs lawsuit. Chase Bank pulled out of the project during this interval of settlement negotiations.
Eventually the City of Sebastopol, CVS/Long's Drugs, Armstrong Development Properties Inc., and STS hammered out a legal settlement. On October 6, 2014, the Sebastopol City Council voted unanimously to accept the framework for a settlement to end the 2011 STS suit over the flawed CEQA process, along with the 2012 suit filed by CVS/Longs Drugs against Sebastopol's temporary moratorium on drive-thru windows.

3. The End Game

At the regular City Council meeting on October 7, 2014, the CC voted to approve the settlement of the lawsuit that CVS/Longs had brought against the City, due to the improvements that Mr. Webster said that project proponents had promised. The Council put off the vote on a formal resolution accepting the settlement until October 9, when the Community would have a final chance to comment.

Concessions supposedly agreed to by CVS included abandoning the drive-thru and drive-up windows, adopting more refined building designs with larger, more numerous windows and variable roof heights; extensive landscaping and site design improvements; prohibitions on left turns into and out of the project site; installation of rooftop solar panels, and provision of five electric-vehicle charging stations.

On October 9, 2014 the Council voted 3-2 for a resolution accepting the settlement. Mayor Robert Jacob voted against the settlement, acknowledging that the City could not afford to prolong the lawsuit but expressing a concern that CVS/Longs Drugs had not been negotiating in good faith. Drawings that the City had requested repeatedly from CVS arrived just minutes before the start of the October 7 meeting, the first public hearing on the settlement. The plans did not show a two-story building, but a single-story retail store with high exterior walls and false windows that only suggest the presence of a second floor. CVS representatives did not attend the October 9 meeting, and a representative from CVS's agent, Armstrong Development, did not address the council.

4. Analysis

Why has Sebastopol experienced so many struggles over proposed projects? Could it be that Sebastopol lacks a well-defined process, one that is understood by PC, Design Review Board, and CC members alike, allowing them to easily review a project and make the decisions?
If so, how can Sebastopol establish a more transparent and defined process, to avoid more failed processes?

The Best Management Practice for processing highly controversial projects is to ensure thorough, comprehensive analyses of significant environmental impacts, and identify impacts that can be mitigated. The jurisdiction starts with an Initial Study Checklist for deciding whether to require a Mitigated Negative Declaration (MND) or an Environmental Impact Report (EIR), subject to public review and appeal.

A City's Planning Director is responsible for Planning Department decisions and actions. S/he is the City's environmental coordinator, with the responsibility for ensuring that work products from CEQA consultants are adequate, and to fully inform the public, Planning Commission, and City Council of the significant impacts and necessary mitigations for proposed projects. But Planning Directors' decision making can have backups.

Many jurisdictions have adopted comprehensive CEQA Guidelines, which supplement State procedures and provide officials and citizens alike with an overview of the process. Marin County has created an excellent CEQA Guideline that City Agencies and Departments can use for carrying out their responsibilities, see:

http://www.marincounty.org/~/media/files/departments/cd/planning/environmental-impact/erguide1994.pdf.

To assure completeness and a high standard, California counties and cities also may require peer review of all technical reports (including traffic reports) by independent consultants, with costs borne by the project proponent. Any deficiencies identified in the original draft reports are revised.

Having full disclosure of environmental documents serves all stakeholders. The public and the City's decision makers can have confidence in the process.  The information provided will allow for evidence-based project review, and the opportunity to identify all significant impacts and implement feasible mitigating measures. Well-founded CEQA documents reduce the level of public controversy during the review process, and protect both lead agencies and project proponents from CEQA lawsuits.

To assure completeness and a high standard, California counties and cities also may require peer review of all technical reports (including traffic reports) by independent consultants, with costs borne by the project proponent. Any deficiencies identified in the original draft reports are revised.

Having full disclosure of environmental documents serves all stakeholders. The public and the City's decision makers can have confidence in the process.  The information provided will allow for evidence-based project review, and the opportunity to identify all significant impacts and implement feasible mitigating measures. Well-founded CEQA documents reduce the level of public controversy during the review process, and protect both lead agencies and project proponents from CEQA lawsuits.

As Sebastopol's experience shows, obfuscation only exacerbates potential pitfalls, creating costly delays and legal problems.

Assembled from public and personal records of: Jane Nielson, Helen Shane, and Paul-Andre Schabracq.