HomeMy WebLinkAbout- - OCFEC Lease Rehearsal - 9/21/2010CITY COUNCIL AGENDA REPORT
MEETING DATE: SEPTEMBER 21, 2010
ITEM NUMBER:
SUBJECT: REQUEST FOR A REHEARING OF CITY COUNCIL ADOPTION ON AUGUST 24, 2010
OF RESOLUTION NUMBER 10-62 FINDING THE PROPOSED LEASE AGREEMENT
FOR THE ORANGE COUNTY FAIR AND EVENT CENTER TO BE CATEGORICALLY
EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
DATE: SEPTEMBER 9, 2010
FROM: DEVELOPMENT SERVICES DEPARTMENT
PRESENTATION BY: KIMBERLY BRANDT, AICP, DIRECTOR
FOR FURTHER INFORMATION CONTACT: KIMBERLY BRANDT (714) 754-5270
RECOMMENDATION:
Provide direction.
BACKGROUND:
On August 30, 2010, Sandra L. Genis filed the attached application for a rehearing of City
Council's adoption on August 24, 2010 of Resolution 10-62 that found the proposed
lease agreement for the Orange County Fair and Event Center to be categorically
exempt from the California Environmental Quality Act. The August 24th meeting was a
special joint meeting of the Costa Mesa City Council and Orange County Fairgrounds
Authority.
Costa Mesa Municipal Code Section 2-304(3) states the following regarding a rehearing
request.
"(3) To justify a rehearing the applicant must show in the application that there is new, relevant
evidence which, in the exercise of reasonable diligence, could not have been produced, or which was
improperly excluded, at the earlier hearing, or that the person or body failed to comply with the law,
which contention was not asserted at the earlier hearing. The person or body may in its discretion
decide whether to hear additional evidence than what is contained in the application. The decision
whether to grant the rehearing is final and may not be appealed or reheard."
Also attached for Council review is a copy of the adopted Resolution, staff report, and
correspondence received for the August 24, 2010 meeting.
KIMBERLY BRANDT, AICP
Development 86rvices Director
DISTRIBUTION: City Manager
City Attorney
Assistant City Manager
Public Services Director
Transportation Svs. Manager
City Clerk (2)
Staff (4)
File (2)
Sanda L. Genis
1586 Myrtlewood
Costa Mesa, CA 92626
ATTACHMENTS: 1 Application for Rehearing
2 Council Resolution
3 August 24, 2010 Staff Report
4 Correspondence
File Name: 0921100CFECLeaseRehear I Date: 091610 1 Time: 1:01 p.m.
2
ATTACHMENT 1
CITY OF COSTA MESA
P. 0. Box 1200
fi Costa Mesa, CA 92628-1200 FEE• $ lob loo 00
AUG 3RPILI AON FOR REVIEW, APPEAL OR REHEARING
GGSTA, Phi
App ic. t NJ me Sandra L. Genis
Address 1586 Myrtlewood St.
Phone (714) 754.0814 Representing* Self and Orange County Fairgrounds Preservation 'Society
REQUEST FOR: ❑ REVIEW** APPEAL REHEARING
Decision-ofwhich-review,-appeal-orreh-earing-is-requested:-(give number ofYezone, zone exception, ordinance, etc.—, i
applicable, and the date ofthe decision, if known.) Agenda Item VIII. 1. a. Auqust 24, 2010, joint meeting of
the Costa Mesa City Council and OCFA, Resolution of the City Council of the City of Costa Mesa
California, Finding the Proposed Lease Agreement for the Orange County Fair and Event Center to
be Categorically Exempt from the Califomia Environmental Quality Act
Decision by:
City Council _ Reasons for requesting review, appeal or rehearing: The City Council improperly found the
proposed project to be categorically exempt. As detailed in the August 24, 2010 letter submitted by Sandra
L. Genis, the proposed prosect has the potential to and most likely will result in significant environmental
impacts. As stated in public comments, the proposed approach, looking at future proposals on an individual
basis could result in a piecemeal approach. Later comments by decision makers and Mr. Guy Lemmon
representative of the proposed lessee, during the August 24 2010 meeting specifically indicate the intent to
address future activities, proiects, and therefore impacts on a piecemeal basis, confirming that on which one
could only speculate as the City council addressed the categorical exemption. In addition, a presentation
later in the meeting provided information regarding historical structures on the site which was not available
and not anticipated as the City Council addressed the categorical exemption (partial transcript attached). 'As
noted in the presentation, two of the three structures identified are under 5,000 square feet in area and as
noted previously could, under lease provisions, be demolished without further discretionary review subject to
CEQA Staff and decision makers also indicated that they had not had time to adequately review or consider
the letter submitted by Genis, which was admittedly not submitted until the meeting. However, documents
were not released to citizens or decision makers until shortly before the meeting, rendering it difficult, if not
impossible for citizens to prepare and submit comments in advance of the meeting.
Date: Auqust 30.2010 Signature:
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For office use only — do not write below this Tine
SCHEQULED FOR THE CITY COUNCIUPLANNING COMMISSION
MEETING OF: If review, appeal or rehearing is for person or body other
than City Council/Planning Commission, date of hearing of review,
appeal or rehearing:
*
Ifyou are serving as the agent for another person, please identify the person you represent and provide
proof of agency. Review may be requested only by City Council or City Council Member
Excerpt of the presentation of the Planning Director on August 24, 2010;
All three of these buildings [Farm building, Baja Blues Building, and Memorial Gardens Building]
contribute to the significance of the site being a historic district. Our City Code has a Historic
Resources Preservation Ordinance. However, inclusion on a local register is purely voluntary by
the property owner. We do not mandate it within out City ordinance. So at this time, the Orange
County Fairgrounds is not listed on our local register nor any of the three buildings that I just
identified on our register as well.
When the fairgrounds did conduct their 2003 environmental impact report the conclusion of their
consultant at that time was that the buildings on the property had been moved from their original
location,—that-theyhave-been altered significantly -and -therefore -decreased -their -historic -significance.
But again, I think that significance is in the eye of the beholder and these stili are remnant of the air
base operations from World War II despite the fact that they have been altered.
ATTACHMENT 2
RESOLUTION NO. 10-62
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
COSTA MESA FINDING THE PROPOSED LEASE
AGREEMENT FOR THE ORANGE COUNTY FAIR AND
EVENT CENTER TO BE CATEGORICALLY EXEMPT FROM
THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
THE CITY COUNCIL OF THE CITY OF COSTA MESA HEREBY RESOLVES- AS
WHEREAS, Final Program Environmental Impact Report (EIR) No. 1049 (State
Clearinghouse Number 200031120) was prepared by the City of Costa Mesa for the
2000 General Plan and certified by City Council in January 2002;
WHEREAS, Final Program EIR for the 2000 General Plan addresses a full range
of environmental issues associated with the 20 -year planning horizon of the 2000
General Plan (2020). All impacts resulting from implementation of the 2000 General
Plan were minimized to a level of significance with the exception of impacts related to
transportation/circulation, air quality, and noise,
WHEREAS, - the City Council of the City of Costa Mesa adopted the 2000
General Plan on January 22, 2002. The General Plan is a long-range, comprehensive
document that serves as a guide for the orderly development of Costa.Mesa;
WHEREAS, the Fair Board of Directors of the ' 32nd District Agricultural
Association (DAA) adopted a 1.0 -year strategic Master Plan and Final EIR in 2003. In
conjunction with the City's General Plan EIR, this document served as environmental
documentation for General Plan Amendment GP -09-01, which was adopted. by City
Council on February 16, 2010;
WHEREAS,- the -City of Costa Mesa 2000 General Plan designates the project
site at 88 Fair Drive as Fairgrounds, a General Plan designation that recognizes the
unique land uses associated with the 150 -acre Orange County Fair and Event' Center
property (OCFEC);
WHEREAS, on June 22, 2010 the City Council and the Orange County
Fairgrounds Joint Powers Authority (JPA) approved a Purchase and Sales Agreement.
with the State of California for the OCFEC;
.S
WHEREAS, all of the documents referenced above are hereby incorporated by
reference and are on file and available for public review in the City of Costa Mesa
Development Services Department located at 77 Fair Drive, Costa Mesa;
WHEREAS, the JPA is proposing to enter into a ground lease agreement of the
OCFEC with OC Fair and Event Center, L.P. (OC Fair);
WHEREAS, the proposed lease agreement with OC Fair would help achieve the
City of Costa Mesa's goal of preserving the Fairgrounds in Costa Mesa;
WHEREAS, pursuant to the California Environmental Quality Act (CEQA), CEQA
Guidelines, and City's environmental processing procedures, the proposed. activity
qualifies for the following five categorical exemptions:
1. CEQA Guidelines Section 15301, Class 1, Existing Facilities because
activity involves the leasing of existing facilities with no expansion of the
use beyond that existing at the time of the issuance of the exemption.
2. CEQA Guidelines Section 15323, Class 23, Normal Operations of
Facilities for Public Gatherings because the activity involves the
continuation of the normal operations of the existing facility for public
gatherings for which the facility was designed, and that there is a past
history of approximately 60 years of the facility being used for fair and
event purposes.
3. CEQA Guidelines Section 15325, Class 25, Transfers of Ownership of
Interest in Land To Preserve Existing Natural Conditions because the
activity involves a ground lease' agreement in order to preserve the
existing fair and event center operations which are a significant
recreational resource in the City of Costa Mesa and County of Orange;
furthermore the activity facilitates preservation of the open space at the
Fairgrounds, obligates the operator to continue the existing agricultural
uses at Centennial Farms; and requires compliance with the Costa Mesa
Municipal Code before eny "Cultural Resources" can be modified.
4. CEQA Guidelines Section 15302, Class 2, Replacement or Reconstruction
because this activity identifies that some of the existing facilities have
suffered from deferred maintenance. and repair work may need to be
undertaken, and that these repairs should not change the purpose of the
N
facilities being replaced, or should not expand the capacity of these
structures. The ground lease also provides that no such repairs can be
undertaken until all Applicable Laws have been complied with, including
CEQA.
5. CEQA Guidelines section 15061(b)(3) because the activity does not
authorize any physical change in the environment.
BE IT RESOLVED that, based on the evidence in the record, the City Council of
the City of Costa Mesa does hereby find the proposed lease agreement between the
Orange County Fairgrounds Joint Powers Authority and OC Fair for the use of the
OCFEC property for fair and event uses to be categorically exempt from the California
Environmental Quality Act.
PASSED AND ADOPTED this 24th day of.August, 2010.
ATTEST:
J' ie Fol611 , City Clerk
Allan R. Mansoor, Mayor
APPROVED AS TO FORM:
Kimberly Mall Barlow, City Attorney
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
I, JULIE FOLCIK, City Clerk of the City of Costa Mesa, DO HEREBY .
CERTIFY that the above and foregoing is the original of Resolution No. 10-62
and was. duly passed and adopted by the City Council of the City of Costa Mesa
at a regular meeting - held on the 24 h day of August, 2010, by the following * roll
call vote, to wit:
AYES: COUNCIL MEMBERS: MANSOOR, LEECE, BEVER, FOLEY, MONAHAN
NOES: COUNCIL MEMBERS: NONE
ABSENT: COUNCIL MEMBERS: NONE
IN WITNESS WHEREOF, I have hereby set my hand and affixed the seal
of the City of Costa Mesa this 25th day of August, 2010.
IE rOLCIK, CITY CLERK
(SEAL)
ATTACHMENT 3
CITY .COUNCIL AGENDA REPORT
MEETING DATE: AUGUST 24, 2010 ITEM NUMBER:
SUBJECT: CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION FOR THE ORANGE
COUNTY FAIR AND EVENT CENTER LEASE AGREEMENT
DATE: AUGUST 19, 2010
FROM: DEVELOPMENT SERVICES DEPARTMENT
PRESENTATION BY: KIMBERLY BRANDT, AICP, DIRECTOR
FOR FURTHER INFORMATION CONTACT: KIMBERLY BRANDT (714) 754-5270
RECOMMENDATION:
By adoption of the attached resolution, determine that the proposed lease agreement
between the Orange County Fairgrounds Joint Powers Authority (JPA) and OC Fair and
Event Center, L.P. is exempt from the California Environmental Quality Act.
BACKGROUND:
The JPA is considering whether to authorize execution of a ground lease with OC Fair
and Event Center, L.P. (OC Fair) for the 150 -acre Orange County Fair and Event
Center (OCFEC) located at 88 Fair Drive. The JPA's decision is a discretionary one,
triggering the need for the City of Costa Mesa, as the lead agency, to comply with the
California Environmental Quality Act (CEQA).
The OCFEC's operations have been exhaustively studied by both the City and the 32 d
District Agricultural Association (DAA) over the years. In 2002, the City certified its
2000 General Plan Final Program Environmental Impact Report (EIR) which examined
the OCFEC's operations and impacts at a programmatic level. In 2003, the DAA
certified an EIR in connection with approval of its Master Plan. This project -level EIR
analyzed the impacts associated with its expansion plans for the fairgrounds. Since the
State adopted legislation in 2009 authorizing the sale of the OCFEC, the City has
pursued the acquisition of the property.
In December 2009, the Planning Commission adopted a resolution (PC -09-42) that
found the City's proposed purchase, acquisition, and use of the OCFEC property to be
in conformance with the City's 2000 General Plan and that the proposed acquisition is
categorically exempt from CEQA.
In February 2010, Council adopted Resolution Number 10-12 approving General Plan
Amendment GP -09-01 which amends the "Fairgrounds" land use designation to further
describe the existing land use and traffic context and permitted and prohibited land
uses. Additionally, Council determined that the City's 2000 General Plan Final Program
EIR and DAA's OCFEC Master Plan Final EIR constituted the required environmental
documentation for the proposed amendment.
A
All of the documents referenced above are on file in the City of Costa Mesa
Development Services Department located at 77 Fair Drive, Costa Mesa.
ANALYSIS:
Although the proposed lease agreement is subject to CEQA, there are five exemptions
to CEQA which are applicable, as discussed below. The JPA's approval to execute the
ground lease will not lead to a change in the physical environment, as the ground lease
consists of a conveyance of a leasehold interest from the JPA to OC Fair. The ground
lease does not obligate or commit the JPA or OC Fair to undertake any activity which
could lead to a change in the physical environment. Under the provisions of the ground
lease, any possible subsequent action undertaken by either party to the ground lease
cannot occur without compliance with all federal, state, and local laws and regulations,
including CEQA. Further, the JPA has no permitting authority over any development
applications which could be submitted. The ground lease specifically provides that it
does not authorize any uses beyond what presently exists at the OCFEC, and any
intensification of the authorized uses are subject to City review and approval and any
other responsible public agency.
Exemptions:
1. CEQA Guidelines section 15301; Class 1, Existing Facilities. This exemption
is applicable, to the leasing of public or private structures or facilities,
involving negligible or no expansion of the use beyond what is existing at the
time of the lead agency's determination. If the JPA authorizes the execution
of the agreement, it would allow the lease of public structures and facilities to
OC Fair. There would be negligible or no expansion of the use, as the
ground lease does not authorize any changes to the OCFEC uses or
facilities. No such changes can occur without City authorization, subject to
subsequent compliance with CEQA and the City's normal regulatory
processes. Therefore, this exemption is applicable to the proposed lease
agreement.
2. CEQA Guidelines section 15323, Class 23, Normal Operations of Facilities
for Public Gatherings. This exemption consists of the normal operation of
existing facilities for public gatherings for which the facilities were designed,
where there is a past history (at least 3 years) of the facility being used for the
same or similar kind of purpose, and that there is a reasonable expectation
that future occurrences would not represent a change in the operation of the
facility. Examples of such facilities include racetracks, amphitheaters, and
amusement parks. Possible execution of the ground lease does not
authorize a change in the normal operation of the OCFEC (certainly an
example of an existing facility for public gatherings), and the OCFEC has
been used as a fairgrounds for approximately 60 years. There is also a
reasonable expectation that there will not be a change in the future operation
of the facility, as the City's 2000 General Plan designates the OCFEC as
"Fairgrounds" which is the overarching regulation for the property. Any future
change in operations must be found consistent with the General Plan.
Additionally, any future General Plan amendments regarding the Fairgrounds
designation shall require a public vote for adoption.
A0
3. CEQA Guidelines section 15325, Class 25, Transfers of Ownership of
Interest in Land to Preserve Existing Natural Conditions. This exemption
consists of transfers of ownership interests in land to preserve open space,
agricultural, and historical resources. If the JPA approves authorization of the
ground lease, the JPA would transfer an ownership interest in the OCFEC to
OC l=air. Among other things, based upon the terms of the ground lease, this
approval would facilitate preservation of the open space at the fairgrounds, as
the site will remain a fairgrounds, the ground lease obligates OC Fair to
continue the existing agricultural uses at Centennial Farms, and the ground
lease requires compliance with the Costa Mesa Municipal Code before any
"Cultural Resources" can be modified.
4. CEQA Guidelines section 15302, Class 3, Replacement or Reconstruction.
This exemption applies to replacement or reconstruction of existing structures
and facilities where the new structure will be located on the same site as the
structure replaced and will have substantially the same purpose and capacity
as the structure repaired. Examples include replacement or reconstruction of
existing utility systems, and replacing or reconstruction of public facilities to
create earthquake resistant structures. The ground lease provides that some
of the existing facilities have suffered from deferred maintenance, and also
repair work may need to be undertaken, based upon a pending lawsuit
against the State, where it is.alleged that some of the Fairground facilities do
not comply with the Americans with Disabilities Act (ADA). Although presently
the scope and the magnitude of these required ADA and other repairs have
not been determined, these repairs should not change the purpose of the
facilities being replaced, or should not expand the capacity of these
structures. The ground lease also provides that no such repairs can be
undertaken until all Applicable Laws have been complied with, including
CEQA.
5. CEQA Guidelines section 15061(b)(3), the "Common Sense" Exemption. The
CEQA Guidelines include a general rule exemption which states that CEQA
only applies to projects which have the potential for causing a significant
effect on the environment. For this exemption to apply, Council must
determine that it can be seen with certainty that there is no possibility that the
authorization to execute the ground Iease may have a significant effect on the
environment. As discussed above, the proposed agreement conveys a
ground lease interest from the JPA to OC Fair. The ground lease does not
authorize any physical change in the environment. Physical change in the
environment only may occur after there is compliance with all applicable
federal, state, and local laws and regulations, including subsequent CEQA
compliance.
Exceptions to the Exemptions:
The CEQA Guidelines include several exceptions to the application of the CEQA
Categorical Exemptions to a proposed project. There are four potentially applicable
exceptions, but as discussed below, staff has determined that they do not apply to the
JPA's authorization of the proposed ground lease.
I . Cumulative impact. If the cumulative impact of successive projects of the
..same type, in the same place, over time, is significant, a CEQA exemption
cannot be used. There is no such cumulative impact here, since the project,
approval of execution of a ground Pease, is unlikely to recur in the future.
Also, as discussed above, execution of the ground lease)is unlikely to result
in any change in the physical environment.
.2. Significant effect. A CEQA exemption cannot be used if there is a reasonable .
possibility that the activity will' have a significant effect on the environment
due to unusual circumstances. Approval of execution of the ground lease is
unlikely to have a significant effect on the environment, and there are no
unusual circumstances present.
3. Hazardous waste sites. A CEQA exemption cannot be used for a project
located on any state -designated list of hazardous waste sites. The OCFEC is
not on any such list.
4. Historical resources. A CEQA exemption cannot be used for a project which
may cause a substantial adverse change in the significance of a historical
resource. The ground lease does not mandate any modification of any
historical structures at the fairgrounds. Rather, the ground lease prohibits any
modification of "Cultural Resources" without compliance with Costa Mesa
Municipal Code Section 13-200 et seq., which is Costa Mesa's cultural
resources protection ordinance.
.ALTERNATIVES CONSIDERED:
Council's adoption of the attached resolution allows the JPA to authorize execution of
the proposed ground lease agreement. Should Council not take action on the
resolution, the JPA would not be able to take any action on the lease agreement.
FISCAL REVIEW:
This determination does not require any fiscal review.
LEGAL REVIEW:
The City Attorney's Office has reviewed the resolution and approved it as to form.
CONCLUSION:
CEQA authorizes the use of multiple exemptions in connection with approval of a
project. Staff recommends that Council determine that a decision by the JPA to
authorize execution of the ground lease for the OCFEC is exempt. pursuant to five
CEQA exemptions, by adoption of the attached resolution.
y
KIMBERLY BRAN AICP
Development Servic s Director
M
DISTRIBUTION: City Manager
City Attorney
Assistant City Manager
Public Services Director
Transportation Svs. Mgr.
City Clerk (2)
Staff (4)
File (2)
Fife Name: 082410CEQAOCFEC I Date: 081910 1 Time: 10:45 a.m.
13
ATTACHMENT 4
SANDRA GEMS
1586 MYRTLEWOOD COSTA MESA, CA. 92626 PHONE/FAX (714) 754-0814
August 24, 2010
Mayor Allan Mansoor and Costa Mesa City Council
Costa Mesa city Hall
77 Fair Drive
Costa Mesa, Ca.
Subject: CEQA determination for OCFEC lease
Dear Mayor Mansoor and Members of the City Council:
The Costa Mesa City council proposes to adopt a finding that the proposed lease between the
Orange County Fairgrounds Authority (OCFA) and OC Fair and Event Center, LP for lease of
the property known as the Orange County Fair and Events Center is categorically exempt from
the provision of the California Environmental Quality Act (CEQA). I believe that is
inappropriate in this case.
Lead Agency
It is peculiar that the City of Costa Mesa is acting as the lead agency in this case, inasmuch as the
City of Costa Mesa is not and will not be the owner of the property in question nor a party to the
lease. The only action contemplated on the August 24, 2010 agenda will betaken by OCFA, and
approval of the lease does not appear to be subject to the City of Costa Mesa as a separate and
distinct agency.
Section 15051 of the Guidelines for the Implementation of CEQA (Guidelines) provides that:
Where two or more public agencies will be involved with a project, the determination of
which agency will be the Lead Agency shall be governed by the following criteria:
(a)If the project will be carried out by a public agency, that agency shall be the
Lead Agency even if the project would be located within the jurisdiction of
another public agency....
(c)Where more than one public -agency equally meet the criteria in subdivision
(b), the agency which will act first on the project in question shall be the Lead
Agency. [emphasis added]
In this case, not only is OCFA the first public agency to act on the lease, it is the only local
public agency with authority to approve or deny the lease. Thus, OCFA must act as the lead
Page 1 of 7
agency. It is inappropriate for an agency with no authority to approve, deny, review, or revise
the lease act as the lead agency.
Lease an Action Pursuant to CEQA
As stated in CEQA Section 21001(g), it is the intent of the California legislature to:
Require governmental agencies at all levels to consider qualitative factors as well as
economic and technical factors and long-term benefits and costs, in addition to short-term
benefits and costs and to consider alternatives to proposed actions affecting the
environment.
In accordance with Section 15004 (a) of the Guidelines for the Implementation of CEQA
(Guidelines):
Before granting any approval of a project subject to CEQA, every Lead Agency or
Responsible Agency shall consider a final EIR or Negative Declaration or another
document authorized by the Guidelines
Guidelines Section 15378 defines project as follows:
(a)"Project" means the whole of an action, which has a potential for resulting in either a
direct physical change in the environment, or a reasonably foreseeable indirect physical
change in the environment, and that is any of the following:
(1)An activity directly undertaken by any public agency ...
(3) An activity involving the issuance to a person of a lease [emphasis added],
permit, license, certificate, or other entitlement for use by one or more public
agencies.
Guidelines Section 15352 defines approval as follows:
a) "Approval" means the decision by a public agency which commits the agency to a definite
course of action in regard to a project intended to be carried out by any person....
(b)With private projects, approval occurs upon the earliest commitment to issue or the issuance
by the public agency of a discretionary contract, grant, subsidy, loan, or other form of financial
assistance, lease [emphasis added], permit, license, certificate, or other entitlement for use of the
project.
Thus, approval of the proposed lease is clearly a project subject to CEQA review.
Previous Environmental Documentation
As noted in the City staff report:
Page 2 of 7
The OCFEC's operations have been exhaustively studied by both the City and the 32nd
District Agricultural Association (DAA) over the years. In 2002, the City certified its
2000 General Plan Final Program Environmental Impact Report (EIR) which examined
the OCFEC's operations and impacts at a programmatic level. In 2003, the DAA certified
an EIR in connection with approval of its Master Plan. This project -level EIR analyzed
the impacts associated with its expansion plans for the fairgrounds.
While one might take issue with use of the term "exhaustively" in this regard, nonetheless
Environmental Impact Reports (EIRs) were certified for the projects as described.
The EIR for the Costa Mesa General Plan Update Program (SCH # 2000031120) is identified as
a Program EIR (p. 1-2). Pursuant to Guidelines Section 15168:
A program EIR is an EIR which may be prepared on a series of actions that can be
characterized as one large project and are related either:
(1)Geographically,
(2)A logical part in the chain of contemplated actions,
(3)In connection with issuance of rules, regulations, plans, or other general criteria to
govern the conduct of a continuing program, or
(4)As individual activities carried out under the same authorizing statutory or regulatory
authority and having generally similar environmental effects which can be mitigated in
similar ways.
In accordance with Guidelines Section 15168 (c):
Subsequent activities in the program must be examined in the light of the program EIR to
determine whether an additional environmental document must be prepared.
(1) If a later activity would have effects that were not examined in the program EIR, a
new Initial Study would need to be prepared leading to either an EIR or a Negative
Declaration.
(2)If the agency finds that pursuant to Section 15162, no new effects could occur or no
new mitigation measures would be required, the agency can approve the activity as being
within the scope of the project covered by the program ETR, and no new environmental
document would be required.
(3)An agency shall incorporate feasible mitigation measures and alternatives developed
in the program EIR into subsequent actions in the program.
(4)Where the subsequent activities involve site specific operations, the agency should
use a written checklist or similar device to document the evaluation of the site and
the activity to determine whether the environmental effects of the operation were
covered in the program EIR.
In any case, Section 8 of the General Plan Update EIR identified significant, unavoidable
impacts to traffic, noise and air quality from both construction emissions and increases in vehicle
miles traveled and stationary source emissions.
Page 3 of 7
16
The 2003 EIR for the Orange County Fair and Exposition Center Master Plan (SCH #
1989010088) identified significant unavoidable impacts on air quality (Section 8.0). The Master
Plan EIR also identified potentially'significant impacts on air quality, cultural and scientific
resources, earth resources and topography, hydrology and water quality, noise, public services
and utilities, and traffic and circulation. The EIR identified twenty two measures to be used to
mitigate impacts of the Master Plan.
Categorical Exemption
Article 9, Section 15300 et seq provides a list of classes of projects which have been determined
not to have a significant effect on the environment and which are, therefore, exempt from the
provisions of CEQA. The City of Costa Mesa and, presumably, OCFA propose to declare the
lease exempt from the environmental review provisions of CEQA. This is wholly inappropriate
as discussed below.
It is suggested that the proposed lease should be categorically exempt under Per Guidelines
Section 15301, Class 1, Existing Facilities. Class 1 consists ofthe operation, repair, maintenance,
permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities,
mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that
existing at the time of the lead agency's determination.
The lease contemplates the expansion of use beyond that currently existing. Specifically, the
lease stated that
Tenant may increase intensity of use as to non -fair events, to the level contemplated in
the [OCFEC master plan] EIR., and may make re -use of the existing amphitheater, to the
level contemplated in the EIR and subject to the noise mitigation measures set forth in the
EIR (Section 6.1).
The Master Plan EIR, however, also identified other impacts associated with use of the
amphitheater, including a long-term adverse impact on air quality which is both significant and
unavoidable.
In addition, the revenue projections anticipated under the lease represent a significant increase
from what is occurring now. In order to achieve that level of revenue, the facility would have to
either increase the number of events or drastically increase fees. An increase in parking fees
would undoubtedly result in increased parking in neighborhoods, with associated impacts due to
noise and trash.
The Guidelines specifically state that:
and:
An economic or social change by itself shall not be considered a significant effect
on the environment. (Guidelines Section 15382)
Page 4 of 7
Economic or social effects of a project shall not be treated as significant effects on
the environment. (Guidelines Section 1513l(a))
At the same time, economic and social effects, such as an increase in parking fees cannot be
dismissed entirely. Sections 15064(e), 15382, and 15131 (b) all recognize the importance of
social and economic effects in determining the significance of a project's actual physical effects
on the environment.
In accordance with Guidelines Section 15131(a):
An EIR may trace a chain of cause and effect from a proposed decision on a
project through anticipated economic or social changes resulting from the project
to physical changes caused in turn by the economic or social changes.
and Section 15064(e):
Where a physical change is caused by economic or social effects of a project, the
physical change may be regarded as a significant effect in the same manner as any
other physical change resulting from the project.
This is stated more strongly in Citizens Assn. for Sensible Development of Bishop Area v. County
oflnyo (1985) 172 Ca1.App.3d 151 [217 Cal.Rptr. 893], a case in which the plaintiffs contended,
among other points, that decision makers should consider whether a new shopping center would
draw business from the downtown shopping district, leading to business closures and eventual
physical deterioration of the downtown area. The appellate court held that:
...the lead agency shall consider the secondary or indirect environmental
consequences of economic and social changes, but may find them to be
insignificant. Such an interpretation is unequivocally consistent with the mandate
that secondary consequences of projects be considered... subdivision (f) [of
Guidelines Sec. 15064, since re -enumerated] expressly gives the agency
discretion to determine whether the consequences of economic and social
changes are significant, which is not the same as discretion to not consider
these consequences at all. [emphasis added] Indeed, the physical change caused
by economic or social effects of a project may be regarded as a significant effect
in the same manner as any other physical change resulting from the project may
be regarded as a significant effect.
Thus, the Court very clearly required that the public agency address the potential that physical
blight in the downtown area would be caused by the proposed shopping center.
Similarly, in Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal.App.3d 433,
441 [243 Cal.Rptr. 727], also addressing downtown blight, the court stated:
The potential economic problems caused by the proposed project could
conceivably result in business closures and physical deterioration of the
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downtown area. Therefore, on remand, City should consider these problems to the
extent that potential is demonstrated to be an indirect environmental effect of the
proposed project.
The lease permits uses allowed under both the Costa Mesa General Plan and the OCFEC Master
Plan. These include restaurant uses and equestrian uses which, if newly added or expanded
could result in impacts on water quality. Certain actions, such as demolition of a structure less
than 5,000 square feet in area which has not yet been officially declared of historic value, could
happen by right. Issuance of a demolition or building permit is generally a ministerial action, not
subject to CEQA review. In any case, as noted above both the General Plan and Master Plan
EIRs identified significant unavoidable adverse impacts associated with implementation of the
respective planning programs.
The City also suggests that the proposed lease should be categorically exempt per Guidelines
Section 15303, Class 3, New Construction or Conversion of Small Structures.
Class 3 consists of construction and location of limited numbers of new, small facilities or
structures; installation of small new equipment and facilities in small structures; and the
conversion of existing small structures from one use to another where only minor modifications
are made in the exterior of the structure. Section 6.1 specifically gives the lessee the right to
relocate and re -size certain uses and add new uses. Thus, it cannot be stated that only limited
numbers of new, small facilities or structures would occur.
The City also suggests that the proposed lease should be categorically exempt per Guidelines
Section 15323, Class 23, Normal Operations of Existing Facilities for Public Gatherings. AS
stated in Section 15323:
For the purposes of this section, "past history" shall mean that the same or similar kind of
activity has been occurring for at least three years and that there is a reasonable
expectation that the future occurrence of the activity would not represent a change in the
operation of the facility.
In this case, the amphitheater has not been utilized outside of the annual fair for over a dozen
years. There is a reasonable expectation that the future occurrence of activities on-site would
represent a change in operation of the facility in that Lease Section 6.1 allows the lessee to
program on-site facilities absent review of OCFA and further contemplates increased use of the
amphitheater. In addition, revenue projections included in Article 3 of the lease clearly
anticipate significantly increased use of the facility.
The City also suggests that the proposed lease should be categorically exempt per Guidelines
Section 15325, Class 25, Transfers of Ownership of Interests in Land in Order to Preserve Open
Space, Habitat, Or Historical Resources. This exemption does not apply. The existing general
plan already establishes a ceiling on floor area ratio for the site of 0.1. Thus, the proposed lease
does nothing to preserve open space. No habitat has been identified on the site. The lease gives
the lessee the right to demolish smaller structures by right, and it is the smaller structures that are
most likely to retain some historic value.
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Finally, the City suggests that the proposed lease should be categorically exempt under the
"common sense" exemption. Guidelines Section 10565(b)(3) provides that a project is exempt
from CEQA review if
The activity is covered by the general rule that CEQA applies only to projects which have
the potential for causing a significant effect on the environment. Where it can be seen
with certainty that there is no possibility that the activity in question may have a
significant effect on the environment, the activity is not subject to CEQA.
That is clearly is not the case here. As noted above, numerous impacts could occur as a result of
the rights conferred by the lease. The staff report designed to justify the exemptions has
identified previous environmental documents that found significant adverse impacts associated
with implementation of the planning programs cited in the proposed lease. Section 6.1 of the
lease specifies certain action which the lessee can take by right. Where remaining approvals are
non -discretionary, such as issuance of a building permit or a demolition permit, no
environmental review would occur. In accordance with Section 6. 1, OCFA would have no
oversight on facility programming, which could result in impacts on traffic and noise.
It is not enough to expect future investigations to eliminate all impacts. Such review may or may
not occur and may not result in mitigation of all impacts to a level of insignificance. In any case,
environmental documents are to be prepared as early as possible in the planning process in
accordance with Guidelines Section 15004(b. Per Laurel Heights Improvement Association of
San Francisco, Inc. v. The Regents of the University of California (1988 ) 47 Cal. 3d 376:
...the later the environmental review process begins, the more bureaucratic and
financial momentum there is behind a proposed project, thus providing a strong
incentive to ignore environmental concerns that could be dealt with more easily at
an early stage of the project. This problem may be exacerbated where, as here, the
public agency prepares and approves the EIR for its own project.
The categorical exemption should not be approved as it would be contrary to the requirements
laid out in the Public Resources Code (CEQA) and the Guidelines (Title 14).
Yours truly,
Sandra L. Genis
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