CC/RDA/CUA REG MIN JUL 18 - Laserfiche WebLink

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STAFF RESPONSE TO PUBLIC COMMENT: Attorney Jennifer Buckman, Environmental Counsel from Best, Best and Krieger, responded to the legal points raised. As the staff report indicates, there was no environmental review completed for this application as it was initially determined by staff that a categorical exemption from the California Environmental Quality Act was appropriate so this is not a project for which a initial study to determine whether a negative declaration or environmental impact report is appropriate. There were statements made and legal argument that perhaps the statements did not constitute substantial evidence of this project having the potential to have a significant environmental impact. There are numerous cases that have been published under the California .Environmental Quality Act which state that comments made by members of the public may be considered to be substantial evidence. Consequently, it is up for this council to determine whether the comments that are raised tonight are significant and sufficiently supported to constitute substantial evidence. For the council's assistance in making this determination council was reminded that substantial evidences under the California Environmental Quality Act are facts, reasonable assumptions based on facts or expert opinions that are predicated on facts. It is up to the council to determine whether the engineer that spoke earlier is qualified as an expert. In addition, Colton Iron & Metal submitted a plan for soil, monitoring and disposal. The submittal of this plan could be viewed as substantial evidence that Colton Iron & Metal sees a reasonable possibility of environmental impact related to the application. Pursuant to the 2004 Court of Appeal a decision that came out of the First Appellate District Salmon Protection Action Network versus County of Marin, it is inappropriate for the City council to rely on a categorical exemption when mitigation measures are used to bring the project to the environmental impact down below the level of significance. If the city council views the soil plan that was submitted as a mitigation measure intended to address a possibility of a significant environmental impact it would be legally appropriate to send the matter back for further environmental review. REBUTTAL: Attorney John Bowman, legal counsel for Hugo Neu Proler, responded to comments by Legal Counsel. Mr. Bowman explained that his client believed there was no evidence of environmental contamination on this project and the only disturbance of soil as a result of the approval of the project would be for the excavation for footings for the proposed wall. He clarified that the proposed soil monitoring program was a demonstration of the proposed soil monitoring if contamination encountered, however, this was no admission of an environmental impact. He further explained that the scale house was installed by the client without their consultation or appropriate permits and client was prepared to comply and remedy the situation. On the issues of the six foot high wall, permits were issued by the City and his client is prepared to comply to the eight foot high regulations, and allegation of smelter on the site, there is not evidence of a lead smelter only the storage of plastic casings from batteries which have been removed. Motion/second by CM Hernandez/Ramos to close public hearing. Unanimous vote. Discussion continued with CM Suchil suggesting that they deny appeal and uphold planning commission decision and return this to the Planning Commission to address the environmental concerns that have been presented, and that Colton Iron & Metal comply with all changes and conditions of the CPU; and made a request this return to the Planning Commission for 2006 JULY 18 REG CC/RDA/CUA MEETING -5-