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- - JPA Rehearing Resolution No. 10-2 - 10/5/2010
E oI ORANGE �2 z FAIRGROUNDS A I a AGENDA f,. MEETING DATE: OCTOBER 5, 2010 ITEM NUMBER: SUBJECT: REQUEST FOR A REHEARING OF THE JPA ADOPTION ON SEPTEMBER 7, 2010 OF RESOLUTION NUMBER 10-2 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 23, 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 September 14, 2010, Sandra L. Genis filed the attached application for a rehearing of the Orange County Fairgrounds Authority's adoption on September 7, 2010 of Resolution 10-2 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 September 7th meeting was a special joint meeting of the Costa Mesa City Council and Orange County Fairgrounds Authority. Attached for the Authority's review is a copy of the adopted Resolution, staff report, and correspondence received for the September 7, 2010 meeting. KIMBERLY BRA T, AICP Development Se ices Director DISTRIBUTION: Executive Director Authority Attorney Assistant City Manager Public Services Director City Clerk (2) Staff (4) File (2) ATTACHMENTS: 1 Application for Rehearing 2 JPA Resolution 3 September 7, 2010 Staff Report 4 Correspondence He Name: 100510JPARehearReso10-2 I Date: 092310 Time: 1:15 p.m. ATTACHMENT 1 Orange County Fairgrounds Authori� 1'�::; P. 0. Box 1200 .::., ; Costa Mesa, CA 92628-12 APPLICATION FOR REVIEW; APPEAL 01�0 k•€3 Applicant NameSandraL. Genis Phone (714)754-0814 Representing*_ Self and Orange County Fairgrounds Preservation Society REQUEST FOR: 13 REVIEW" APPEAL © REHEARING Decision of which review, appeal or rehearing is requested: (give number of rezone, zone exception, ordinance, etc., if applicable, and the date of the decision, if known.) Agenda Item V. 1 September 7 2010 meeting of the Orange Countv Fairgrounds Authority A Joint Powers Authority 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: Orange County Fairgrounds Authority A Joint Powers Authority Reasons for requesting review, appeal or rehearing: The OCFA improperly found the proposed prolect to be categorically exempt. As detailed in the September 7 2010 letter submitted by Sandra L Genis the proposed project has the potential to and most likely will result in significant environmental impacts Subsequent comments by decision makers during the discussion of Item V 2 at the September 7 2010 meeting indicate the clear intent to address future activitiesprojects and therefore impacts on a piecemeal basis, contrary to the purposes of CEQA In addition the OCFA incorporated previously prepared environmental documents into the record for the proiect but failed to incorporate all measures identified in those documents for the ourpose of miti atin-q potentiallysignificant innipacts into the lease creating the ,,Potential that impacts could remain unmitigated In addition those documents identify significant unavoidable .impacts which would occur due to development pursuant to the planning programs covered in the documents, i.e. the Costa Mesa General Plan and the Orange Countv Fair and Events Center Master Plan which development would be pursued in accordance with the lease documents Further, the Cit Attorney/Authority counsel incorrectly stated that demolition of the potentially historic structures existing on the property would require future CEQA review though clear terms of the lease permit demolition of the two historic structures less that 5.000 square feet in area by right and absent discretionary review which would trigger CEQA review. For" office use only — do not write below this line SCHEDULED' 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: ATTACHMENT 2 RESOLUTION NO. O.C.F.A. 10-2 A RESOLUTION OF THE BOARD OF THE ORANGE COUNTY FAIRGROUNDS AUTHORITY, A JOINT POWERS AUTHORITY FINDING THE PROPOSED LEASE AGREEMENT FOR THE ORANGE COUNTY FAIR AND EVENT CENTER TO BE CATEGORICALLY EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT THE BOARD OF THE ORANGE COUNTY FAIRGROUNDS AUTHORITY, A JOINT POWERS AUTHORITY, HEREBY RESOLVES AS FOLLOWS: WHEREAS, Final Program Environmental Impact Report (EIR) No. 1049 (State Clearinghouse Number 200031120) was prepared by the City of Costa Mesa for 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 10 -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; 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), and CEQA Guidelines, 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 any "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 Y suffered from deferred maintenance and repair work may need to be undertaken, and that 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) because the activity does not authorize any physical change in the environment. BE IT RESOLVED that, based on the evidence in the record, the Board of the Orange County Fairgrounds Authority, a Joint Powers Authority 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 7t" day of September, 2010. ATTEST: ALLAN MANSOOR, Chair, Orange County Fairgrounds Authority APPROVED AS TO FORM: AUTHORITY SECRETARY AUTHORITY ATTORNEY 1 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss CITY OF COSTA MESA ) I, JULIE FOLCIK, City Clerk of the City of Costa Mesa and Secretary of the Orange County Fairgrounds Authority, DO HEREBY CERTIFY that the above and foregoing is the original of Resolution No. OCFA 10-2 and was duly passed and adopted by the Board of the Orange County Fairgrounds Authority at a special meeting held on the 7th day of September, 2010, by the following roll call vote, to wit: AYES: BOARD MEMBERS: MANSOOR, LEECE, BEVER, FOLEY, MONAHAN NOES: BOARD MEMBERS: NONE ABSENT: BOARD MEMBERS: NONE IN WITNESS WHEREOF, I have hereby set my hand and affixed the seal of the Orange County Fairgrounds Authority this 10th day of September, 2010. (SEAL) JULIE FOLCIK, AUTHORITY SECRETARY G SUBJECT: ATTACHMENT 3 ORANGE COUNTY FAIRGROUNDS AUTHORITY .:...' AGENDA ItgpORT . MEETING DATE: SEPTEMBER 7, 2010 .. ITEM NUMBER:� OCFA V-1 CALIFORNIA ENVIRONMENTAL QUALITY ACT -DETERMINATION -FOR THE ORANGE' COUNTY FAIR AND EVENT CENTER LEASE AGREEMENT DATE: AUGUST 30, 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 Farand.., Event Center, L.P. is exempt from the California Environmental Quality Act. BACKGROUND: The JPA has authorized 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, subject to the completion of certain exhibits and negotiation on some remaining lease provisions. The JPA is considering the revised lease between the JPA and OC Fair and Event Center, L.P. The JPA's decision is a discretionary- one, triggering the need to comply with the California Environmental Quality Act (CEQA). The City Council previously adopted a resolution finding the approval of the lease to,be categorically exempt on a number of grounds from further environmental review under CEQA. Staff believes that the City of Costa Mesa was properly identified as the lead agency in connection with this determination; however, a member of the public has asserted that the JPA should have- been the lead agency even. though it has no permitting authority over any development or expansion which may occur at the site. • In the exercise of caution, staff recommends that the JPA Board adopt a resolution finding the lease categorically exempt. 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. 7 In December 2009, the Planning Commission adopted a resolution (PC -09-42) that found the City's proposed"pgrchase, acquisition, and use of the OCFEC property to. be'. in conformance with the City's 2000 General Plan and that the proposed acquisition is categgricallyexe.mpt:from CEQA`. . ,� :. . .. In Feb ruary..2010,,.,C.ouncil adopted Resolution Number 10-12 approving G.eneral.;Plan :.... Amendment G.P�09-01- whish. 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: . ANAUY-SIS 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..th.e ground.:lease consists of a conveyance ofa* leasehold iriterest'from the -JPA to; OC Fair.. The ground...: lease does* riot obligate' or commit 1156 JPA"oe 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-1ederali, 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 Ri 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 "Fairgrourds" which is the overarching regulation for the property. Any -future change -iri 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. 3.. CEQA - Guidelines - section 15325, Class 25, Transfers of Ownership •-of -Interest'Jn `Land to Preserve Existing Natural Conditions: This -exemption .- consists of transfers of ownership interests in land to preserve open space, agr-icuftur-al,-and-historical-r-esou.r-ees-1-f-the J -P -A -aper -oyes -authorization -of -the— —�— ground lease, the JPA would transfer an ownership interest in the OCFEC. to OC Fair. - Among other things, based upon the terms of the ground lease.,this- approVal would facilitate, preservation of-thb� open, space at the fairgro.unds,: as-'' the site will remain a fairgrourids,` the, ground lease obligates OC Fair to - ..:coriti u-0'. tho-exist'iirfg- agricultbral'-uses --at' Centennial- Farms, and , the -ground le.ase..requires..cornplienob. with the 'Costa :Mesa Municipal Code before Oy. "'Cultural Resources" can be modified. 4. .CEQA Guidelines section 15302, .Class -2,. 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 s.hould 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, the JPA must .determine that it can be seen with certainty that there is no possibility that the authorization to execute the ground .lease 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. 0 Exceptions to the Exemptions: The CEQA Guidelines 'include"several . dxcep.tion's 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. A. Cumulative impact. -If the cumulative impact of successive projects of ,the same type, iri the. same place,- over time.,. is:significant, a CEQA exemption cannot be -Used. There is no .such. cumulative impact here, since the project,- approval, roject;approval, of execution -of a ground lease; 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.*ACEQA,-eXemption:carmot:be used if there is a reasonable possibility that -the activity. will- have "a significant effect on- the environment dud*.to,unusual-circurn8taffces: Approval of*-eXocution of the ground.4oase. 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 for. 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: The Board's -adoption of the -attached-resolution allows the -JPA to authorize- execution of the proposed ground lease agreement and avoids any claim that the wrong agency served as lead agency ,in the original Council action. Should the Board not take action on the resolution, the categorical exemption and resulting lease would potentially be vulnerable to legal challenge: FISCAL REVIEW: This determination does not require any fiscal review LEGAL REVIEW: The Authority's Attorney has reviewed the resolution and approved it as to form. /D CONCLUSION: CEQA. , authorizes -the use . sof multiple exemptions in connection, with approval .of a project. Staff -recommends that the JPA Board determine.that a decision by,the JPA to authorize:execution.of the ground lease for the OCFEC is exergpt pursuant.:to-five CEQA exemptions, by adoption of the attached resolution. . KIMBERLY BRAND Development-S-ervic s -Director. DIS1"RIBUTI:O.N:.:. Executive.Directo.r: AuthorityAtto.rney :...:.:,...Assistant City..Manager...,... , ...,Public Services. Director, City Clerk (2) Staff (4) • , • .. • • _ File (2): • - ... .... ATTACHMENTS: -1 Draft Atithafity Beg-, 1-1490 File Name: 090710CEQAOCFEC Date: 083110 Time: 9:00 a.m. SANDRA GENIS 1586 MYRTLEWOOD COSTA MESA, CA. 92626 Mayor Allan Mansoor and Costa Mesa City Council Costa Mesa city Hall 77 Fair Drive Costa Mesa, Ca, Subject: CEQA determination for OCFEC lease OCFA PHONE/FAX (714) 754-08141VA September 7, 2010 ATTACHMENT 4 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. This letter is submitted by me as an individual and as a member of the Orange County Fairgrounds Preservation Society. The Lease Is an Action Pursuant to CEOA 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. Page 1 of 9 /pi 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 Identified Significant Unavoidable Impacts Due to OCFEC Activities As noted in the City staff report: 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. Page 2 of 9 /3 (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 EIR, 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. 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. I hereby request that the EIR for the Costa Mesa General Plan Update Program (SCH # 2000031120) and the 2003 EIR for the Orange County Fair and Exposition Center Master Plan (SCH # 1989010088) be incorporated into the record for this item by reference. OCFA Improperly Proposes to Find the Lease Categorically Exempt 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. However, the in accordance with Section 15300.2 the exemptions do not apply under the following circumstances: (b) Cumulative Impact. All exemptions for these classes are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant. (c)Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. (d)Scenic Highways. A categorical exemption shall not be used for a project which may result in damage to scenic resources, including but not limited to, trees, historic buildings, rock outcroppings, or similar resources, within a highway officially designated as a state scenic highway. This does not apply to improvements which are required as mitigation by an adopted negative declaration or certified EIR. Page 3 of 9 /Y (e)Hazardous Waste Sites. A categorical exemption shall not be used for a project located on a site which is included on any list compiled pursuant to Section 65962.5 of the Government Code. (f)Historical Resources. A categorical exemption shall not be used for a project which may cause a substantial adverse change in the significance of a historical resource. OCFA proposes to declare the lease exempt from the environmental review provisions of CEQA. This is wholly inappropriate as discussed below. The Lease Contemplates Changes in Uses and Facilities The staff report repeatedly states that: 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. On the contrary, the ground lease does indeed authorize changes in to uses and facilities. Article 11 of the lease authorizes demolition of structures less than 5,000 square feet in area and alteration of other structures without further approval of OCFA. Although building permits would be needed from the city of Costa Mesa, it is not at all clear that any discretionary review subject to CEQA compliance would be required. Even the requirement that Municipal Code requirements regarding historical structures rings hollow when considering that the ordinance applies only to structures formally listed with the permission of the property owner, regardless of their historic value. Thus, pursuant to (f) above, a categorical exemption would not be appropriate, even if the listed exemptions applied, which they don't. Under Article 6, the lessee would have the right to re -locate and re -size uses. It is not at all clear that future changes in use would require any sort of discretionary approval and associated environmental review. For example, Pacific Amphitheater has not been used as a stand alone facility for many years. Thus the existing environmental baseline for amphitheater operations would reflect a very low level of activity. Would additional discretionary approval be required for additional concert series? The lease repeatedly refers to intensification of activities. It is not clear what sort of discretionary review, if any would be required for such intensification. CEQA Requires That Environmental Documents Be Prepared as Early as Possible in the Planning Process 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 Page 4 of 9 1-51- 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 Proposed Course of Action Will Result in Piecemeal Review Further subjecting future actions to further review on an individual basis will result in a piecemeal approach to analysis. CEQA mandates "... that environmental considerations do not become submerged by chopping a large project into many little ones --each with a minimal potential impact on the environment --which cumulatively may have disastrous consequences." (Bozung v. Local Agency Formation Com., supra, 13 Ca1.3d at pp. 283-284, 99 Ca1.Rptr. 745, 492 P.2d 1137). As noted in [San Franciscans for Reasonable Growth v. City and County of San Francisco ((1984) 151 Cal.App.3d 61, 198 Cal.Rptr. 634) analyzing only "piecemeal development would inevitably cause havoc in virtually every aspect of the urban environment". Yet that appears to be what is contemplated here. In fact, that appears to be what is contemplated through the application of the various categorical exemptions. One cannot find a way to make a toxic waste dump exempt by including a small structure (Class 3) or adding an information gathering function (Class 6) to an otherwise noxious use. Yet, OCFA proposes to find the lease agreement exempt because several of its various parts may fall under a given exemption, attempting to piggyback in the overall project which is clearly not exempt. In any case, the proposed exemptions are not applicable to the Orange county Fairgrounds lease agreement. The Specific Exemptions Proposed Are Not Applicable 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). Page 5 of 9 /�p 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) Economic or social effects of a project shall not be treated as significant effects on the environment. (Guidelines Section 15131(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 Ca1.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 Page 6 of 9 iI 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 Ca1.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 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. As the City has experienced in past years: The higher the fee for parking at OCFEC, the greater the problem with parking in nearby neighborhoods, resulting in physical impacts related to noise, trash, and traffic.. 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/OCFA suggests that the proposed lease should be categorically exempt per Guidelines Section 15302, Class 2, 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 replaced. 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 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 replaced. The City/OCFA 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: Page 7 of 9 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 about fifteen 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/OCFA 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. 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 repeatedly stated that proposed activities would be carried out in accordance with the City of Costa Mesa General Plan and the Orange County Fair and Events Center Master Plan. However, as noted above, 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 8 of 9 �9 In addition, 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. Not all of these have been incorporated into the lease. Even if all mitigation measures had been incorporated, the unavoidable impact on air quality would remain. Thus, the record does not support a finding that "there is no possibility that the activity in question may have a significant effect on the environment." 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 Page 9 of 9 ota