The item is an appeal of a decision by the Planning Commission to approve a Use Permit and other applications for a proposed gas station in Esparto. On October 12, 2017, the Planning Commission held a public hearing to consider the applications and Negative Declaration prepared for the project. The Commission voted to approve the project and the Negative Declaration, exclude the requested fast food restaurant and requiring diesel to be sold (6 for approval, 1 against, 0 recused, 0 absent).
The Yocha Dehe Wintun Nation filed a timely appeal on October 26, 2017. As per County Code Section 8-2.225, a timely filing of a notice of appeal nullifies the decision of the Planning Commission, whose decision shall serve as a recommendation to the Board.
Staff has carefully reviewed the issues raised in the appeal and has determined that, based on the traffic study submitted by the Tribe after its appeal (and not available to the Planning Commission), a court may conclude that further environmental review is required on the topic of traffic. Staff therefore recommends that the Board direct further environmental review and return to the Board at a future hearing date.
BACKGROUND
For a thorough project description and project discussion, see the environmental review document (Initial Study/Negative Declaration, Attachment D) and the October 12, 2017 Planning Commission staff report (Attachment E).
The proposed gas station and final Parcel Map are consistent with the Commercial Local (CL) land use designation of the 2007 Esparto General Plan and 2009 Yolo Countywide General Plan, and with the Local Commercial (C-L) zoning.
Commercial improvement of the 1.6-acre site is required by the terms of a Development Agreement for the Orciuoli subdivision, approved by the Board of Supervisors in April, 2008. The requirement is contingent upon County issuance of any permits or other entitlements that are required, and the Development Agreement does not oblige the County to issue a use permit for the gas station. However, the requirement to develop the 1.6 acre site extinguishes if the use permit is denied or conditions of approval make the gas station uneconomical. In that case, staff would likely revisit those requirements as part of the ongoing negotiations related to amendments to the Development Agreements in Esparto.
The applicant previously received approval of a non-discretionary Site Plan Review and Tentative Parcel Map in 2008, to subdivide a parcel and construct a gas station/mini-mart and two-story office building. The previous Site Plan Review approval expired after one year when the project did not begin construction. Since, the Zoning Code has been amended to now require a major use permit for any gas station, rather than the non-discretionary site plan review allowed under the prior code. However, the Vesting Tentative Parcel Map approval is still active. The proposed final Parcel Map is in substantial compliance with the originally approved Tentative Parcel Map and is ready for submittal and acceptance by the County.
Regarding the accompanying request for an ABC use permit and letter of Public Convenience or Necessity (PCN), the sale of beer and wine is a customary activity at most gas stations and mini-markets, and is often a major contributing factor for the economic viability of a gas station. Alcohol sales have the potential to support the efforts of community businesses to expand the local economy, and will generate increased revenue for the County. All projects requiring a PCN determination must also satisfy an additional set of criteria as set forth in the County ABC Ordinance and the attached Findings and Conditions of Approval specific to the sale of alcohol have been also made a part of this project.
ISSUES IN THE APPEAL AND STAFF RESPONSES
The Yocha Dehe Wintun Nation (the Tribe) filed a timely appeal (Att. A). The appeal states:
[T]he Initial Study and Proposed Negative Declaration ("IS/ND") prepared for the commercial development is legally deficient, failing to meaningfully assess, let alone mitigate, the Project's potentially significant impacts. Relatedly, the placement of a gas station/convenience store so close to the Esparto High School - and soon-to-be-constructed aquatic and recreational facility - creates unnecessary risks to pedestrians, many of whom would likely be students and young people. If the town of Esparto needs a gas station to satisfy its fuel needs, then we submit another location should be selected - one not so close to the school and planned park and pool facility.
The appeal raises the following specific issues, each of which has been responded to by staff.
Appeal: The project would contribute little in the way of improving Esparto, or contributing to sustainable economic growth within the community. Far from enhancing the main street character and aesthetic, it would do the opposite. In addition, a fundamental concern is the risk of harm the gas station/convenience store would create for Esparto' s youth and pedestrians, by creating traffic impacts to the nearby intersection, providing easy access to unhealthy foods, and generating air pollution.
Staff response: Staff disagrees. The proposed Use Permit to permit the construction of a gas station supports the strategic plan goal of economic development and commercial revitalization of rural downtown centers throughout the county, including downtown Esparto. Staff has repeatedly been told by the residents of Esparto, through the Esparto Citizens Advisory Committee and others, that the most desired new business in the town would be a gas station. Residents do not want to travel to Woodland or to the Casino to purchase gas, and some residents do not care to patronize the small station in Madison. The overwhelming desire for a gas station voiced by the residents of Esparto is the main reason that the Development Agreement for the Orciuoli subdivision, approved in 2007, requires the developer to construct such a gas station at this site.
Regarding the possibility of finding another site for the gas station in Esparto, see the discussion in the final “Staff Response,” below.
Appeal: The school parking lot is just 290 feet away from the Project site, and the school just beyond that. Notably, the California Air Resources Board recommends a minimum 300-foot separation distance between gas stations and sensitive land uses such as residences, schools, daycare centers, playgrounds, or medical facilities"…. The US EPA recommended screening school sites for potential health risk when located within 1,000 feet of a high-volume gas station… Here, no analysis of these pollution impacts has even been conducted.
Staff response: Staff disagrees. The Initial Study/Negative Declaration analyzed this issue on page 16:
The CARB has established recommendations for siting new sensitive land uses to address the potential exposure of sensitive populations to toxic air contaminants (TACs). These recommendations are implemented through Action CO-106 of the General Plan, which states:
Regulate the location and operation of land uses to avoid or mitigate harmful or nuisance levels of air emissions to the following sensitive receptors: residential uses, hospitals and nursing/convalescent homes, hotels and lodging, schools and day care centers and neighborhood parks. New development shall follow the recommendations for siting new sensitive land uses consistent with the CARB’s recommendation as shown in Table IV.D-8.
Table IV.D-8 recommends that sensitive uses be located at least 500 feet from a freeway and at least 300 feet from a large gas station (defined as having a throughput of more than 3.6 million gallons per year). The proposed gas station project is a small five pump gas facility with a small convenience store which will sell much less than the threshold of 3.6 million gallons. The average convenience store in 2011 sold roughly 128,000 gallons of motor fuels per month, or approximately 4,000 gallons per day (National Association for Convenience & Fuel Retailing, 2017). This is equivalent to 1.5 million gallons per year.
The nearest sensitive land use that could be affected by diesel particulate matter emissions is the Esparto High School, located on the east side of SR 16 (Yolo Avenue) approximately 500 feet to the northeast of the project site. The proposed project would be located well in excess of the minimum setbacks recommended by CARB (300 feet) to address the exposure of sensitive uses to potential TACs. Therefore, the health risks from exposure to DPM are considered a less-than-significant impact
Appeal: The Project Fails To Satisfy CEQA … An EIR must be prepared whenever there is substantial evidence supporting a fair argument that a project may have a significant impact on the environment. (Cal. Pub. Res. Code§§ 21100, 21151.) …The Tribe is concerned that the County appears to have decided not to prepare an EIR despite substantial evidence that the Project may have significant environmental impacts. This Project should undergo the same type of rigorous, public environmental review to which other substantial projects in the Capay Valley have been subject. Respectfully, the Tribe submits that a different standard of review is being applied to this project, compared to the rigorous environmental reviews and regulatory compliance the Tribe has undertaken, whether pursuant to the Tribal-State Compact for gaming-related projects on federally-owned trust land, or pursuant to county regulation for projects on its fee land.
Staff response: Staff disagrees with the assertion that “a different standard of review is being applied to this project, compared to the rigorous environmental reviews and regulatory compliance the Tribe has undertaken.” The level of review for this small 1-acre gas station, a Negative Declaration, is the same level of review that the County has required for other similarly sized Tribal projects on its fee lands. For example, the 13,000 square foot Seka Hills olive oil production facility and tasting room in Brooks was approved by the County in 2011 with a Negative Declaration serving as the appropriate CEQA document. Another similar sized project, the Ravine Sports Bar and Grill in Esparto proposed by a Tribal member, is pending approval and is being processed with a Negative Declaration. The hotel expansion project -- which will create the largest hotel in the Sacramento area -- does not serve as a valid comparison in terms of environmental impacts and the associated environmental review.
Appeal: 1. Project Description Improper Segmentation and Failure to Properly Consider Cumulative Impacts. The IS/ND improperly assumes that the Project is limited to a gas station, convenience store, and parking lot. These features are inextricably linked to the Orciuoli subdivision (which does not yet have a final map), to an adjacent office/retail development, and to stormwater and transportation improvements…. All components of this interdependent development plan must be fully evaluated together…. This failure to address the full scope of the Project infects every section of the IS/ND, rendering the entire document inadequate.
Staff response: Staff disagrees that the alleged “failure to address the full scope of the Project infects every section of the IS/ND, rendering the entire document inadequate.” The Initial Study discusses the potential future office/retail use of the adjacent 0.66-acre parcel and impacts for the entire 2.3-acre site in several parts of the document, including in the Project Description (page 3), and in the analysis of Biological Resources (page 18). There is no development proposed on the adjacent parcel at the current time, so there is no larger project to analyze.
Appeal: 2. Failure to Properly Address Traffic Issues. Relying in large part on a traffic study prepared for the Tribe by Kimley-Horn, the IS/ND concludes that the Project would pose no traffic impacts. The Tribe has no quarrel with the Kimley-Hom study; however, the study does not support the IS/ND's conclusion of no impact. Indeed, Kimley-Horn's own peer review of the IS/ND (see Attachment A) demonstrates that the Project would have significant, unmitigated impacts on at least two nearby intersections. Both the State Route 16/County Road 89 intersection and the State Route 16/County Road 21A intersection would operate at unacceptable levels if the Project is built. The IS/ND does not identify any potential mitigation for these problems.
Kimly-Horn's peer review also explains that the Project is likely to pose a threat to pedestrian safety absent substantial mitigation. This is another issue that is largely ignored in the IS/ND, which dismisses the topic in two short, conclusory sentences. In doing so, it fails to account for the significance of the Project's traffic impacts, the fact that the Project will be located within 290 feet of the school parking lot, and the future development of a community aquatic facility nearby, all of which significantly increase the Project's risk to pedestrians. This safety risk should be of the utmost concern to all. Removing the restaurant from the gas station, as the Commission did in its decision, does not eliminate this risk.
Staff response:
The appeal correctly notes that the traffic analysis of the proposed gas station in the Initial Study/Negative Declaration relied on a traffic study prepared for the Tribe by Kimley-Horn which analyzes impacts of the Cache Creek Hotel Expansion Project (Kimley Horn, 2016). The study analyzes the traffic impacts of adding 399 hotel rooms, a new restaurant, and a new ballroom to the existing Cache Creek Casino. The study indicates that all intersections in the Esparto area along SR 16 listed below are currently operating at acceptable levels during peak periods and, with the addition of the casino improvements, the same intersections will continue to operate at acceptable levels, at either level of service A, B, or C.
Kimley-Horn subsequently prepared a peer review study of the IS/ND for the Tribe. The new study was not submitted by the Tribe to the Planning Commission or as part of the appeal letter, however, the report was provided to County staff after a request was made. The text portion of the peer review study (nine pages) that analyzes the Esparto gas station project is included in Attachment A. The report also includes over 100 pages of level of service and other calculations, which have not been included in Attachment A, but are available upon request.
The conclusion of the Kimley-Horn peer review study states (p. 5):
The Esparto Gas Station project traffic is expected to result in two significant impacts that require mitigations to return the facilities back to their operating conditions without the project. These impacts occur at the following two locations:
Intersection #3: SR16/County Road 89 (#3)
Intersection #6: SR16/County Road 21A (#6)
The addition of traffic signal control should be considered as appropriate mitigation for both of these impacts. It should be noted that the recommended mitigation signalization at the SR16/County Road 21A intersection (Intersection #6) would further improve safety for pedestrians. The proposed project site plan contained in the IS/ND depicts the addition of crosswalks along two intersection approaches. Signalization will provide protected movements for pedestrians to cross both intersection legs. “
Caltrans has programmed the State Route 16 Improvement Project which will result in significant improvements through Esparto (the Caltrans webpage for the project is at: http://www.dot.ca.gov/d3/projects/subprojects/0C470/index.html). The work includes a traffic signal to be installed at the State Route 16/CR 21A intersection, and a roundabout at the State Route 16/CR 89 intersection. Caltrans is tentatively scheduled to advertise for bids on the project in February 2018, with construction beginning in September 2018 and completion in November 2020. Thus, no mitigation by the applicant is required at the State Route 16/CR 21A intersection or at the State Route 16/CR 89 intersection, since a traffic signal and a roundabout will be constructed by Caltrans. The Initial Study/Negative Declaration has been amended to add text noting these planned improvements (Attachment D).
As for the other intersection in Madison at the SR 16/CR 89 stop signs, the peer review study claims the operations at the intersection will be degraded by the gas station project from a peak hour level of service (LOS) on Friday evenings from C to E. The study indicates that the existing LOS at the intersection on Saturday evenings is already at F (which represents very congested or gridlock conditions during the periods when customers are traveling to concerts at the Casino). This analysis and the conclusion appears to be based on adding gas station trips to the “existing” traffic conditions, which are defined as 2016 traffic counts. Notably, neither the “existing” or “existing plus project” calculations take into account trips added from the Cache Creek Hotel Expansion Project (adding 399 hotel rooms plus a new ballroom), which is now under construction, and yet were determined by Kimley-Horn not to result in unacceptable service levels. Further, the traffic study does not consider the reduction of long-distance trips of people who currently travel to Woodland or the Tribe’s casino for gas station services. In view of these defects, Staff does not consider the peer review to be substantial evidence supporting a fair argument of possible traffic-related impacts.
Notwithstanding these deficiencies in the Tribe's late-filed memorandum, there is a possibility that a court might find that further environmental review is required. A Negative Declaration is subject to challenge when substantial evidence supports a fair argument that the project might have a significant impact on the environment. A court might conclude that there is a fair argument that the project would significantly impact the SR16/CR89 and SR16/CR21A intersections, and that the memorandum is substantial evidence supporting such an argument. To avoid the potential waste of' resources, staff therefore recommends that the Board direct staff to conduct further environmental review of potential traffic impacts, and return to the Board at a future date.
Regarding the threat to pedestrian safety due to the proximity of the proposed gas station to the high school and the proposed Esparto Aquatic Center to the project site, the “Additional Information” to the Initial Study includes appropriate references to the Aquatic Center that have been added to the “Project Description,” “Air Quality,” and “Noise” sections of the Initial Study. Additional discussion has also been added to the “Traffic” analysis section referencing the Caltrans project to construct a traffic signal at the State Route 16/CR 21A intersection, which will include a safe pedestrian crossing feature. The additional discussion does not affect the conclusions about environmental impacts.
Appeal: 3. Additional Environmental Concerns
A. Cultural Resources. The Project involves significant excavation in an area known to contain significant cultural resources, including burial sites. The IS/ND fails to fully address the issue, saying only that significant impacts would be avoided through compliance with state laws governing unanticipated discoveries of human remains. This analysis fails to account for the sensitivity of the Project site. In light of that sensitivity, compliance with state law governing unanticipated discoveries is necessary but not sufficient to eliminate the possibility of significant effect. Alternative locations for the Project should be considered.
Staff response: Staff is not aware of any evidence that the area of the proposed gas station is “known to contain significant cultural resources, including burial sites.” As required by State law (AB 52, codified in Sec. 21080.3.1 of the Public Resources Code), Yolo County notified the Tribe prior to the release of the Initial Study to invite formal consultation. The Tribe did not respond to the request.
The Initial Study includes the following discussion on page 20:
No human remains are known or predicted to exist in the project area. However, the potential exists during any future construction to uncover previously unidentified resources. Section 7050.5 of the California Health and Safety Code states that when human remains are discovered, no further site disturbance shall occur until the County coroner has determined that the remains are not subject to the provisions of Section 27491 of the Government Code or any other related provisions of law concerning investigation of the circumstances, manner and cause of any death, and the recommendation concerning the treatment and disposition of the human remains have been made to the person responsible for the excavation, in the manner provided in Section 5097.98 of the Public Resources Code. If the coroner determines that the remains are not subject to his or her authority and the remains are recognized to be those of a Native American, the coroner shall contact the Native American Heritage Commission within 24 hours.
The above text is a standard requirement generally applied to all approved development projects in Yolo County. Accordingly, it has been included as a Condition of Approval.
B. Stormwater. The discussion of stormwater in the IS/ND is limited to a statement that "drainage will be collected in an on-site parking area pond which will then be metered into the existing storm drainage system collected along Yolo Avenue and conveyed to Lamb Valley Slough." There is no mention of measures to prevent stormwater pollution during construction or operation, a fatal flaw given the obvious risks posed by the gas station component of the Project. Will the gas station contain features capable of eliminating contaminated runoff? Will the on-site pond be lined? The IS/ND provides no information. These are not minor omissions: Lamb Valley Slough drains into a series of sloughs that ultimately flow to the Yolo Bypass, which provides valuable wetland habitat for hundreds of wildlife species within Yocha Dehe's ancestral territory.
The Project Description in the IS/ND describes the gas station as 0.99 acres; however, it fails to factor in the adjacent 0.66-acre office/retail development. The entire 1.65-acre development should be considered as one project site, and thus subject to a Stormwater Pollution Prevention Plan ("SWPPP") for construction.
Staff response: The Initial Study notes on page 28 that “All drainage plans will be subject to review and approval by the County Engineer, in accordance with the requirements of the Yolo County Improvement Standards.” The details related to the storm drainage improvements that will be required to be constructed are included in several Conditions of Approval for the project, which require compliance with applicable State laws and the Yolo County Improvement Standards. For example, a condition requires an engineered drainage study for review and approval by the Public Works Division to demonstrate that post-development flow rates during 10-year, 1 hour event do not exceed current flow rates, and that the site shall be designed and graded in a manner that provides onsite storage for that volume of storm water which the parcel generates in the 10-year, 2 hour event to ensure storm water is captured and treated.
Another condition requires installation of an oil/water separator for storm water discharge from service stations per Section 11 of the County of Yolo Improvement Standards. To ensure all site drainage passes through the oil/water separator, the site shall be graded so that it drains to onsite drain inlets and the oil/water separator before flowing to the public right-of-way. A third condition requires that all applicable permanent post-construction storm water pollution controls for new development (Section 11 of the County of Yolo Improvement Standards) shall be included in the site design. Plans and supporting drainage calculations shall be signed and sealed by a civil engineer licensed in the State of California.
Regarding a Storm Water Pollution Prevention Plan (SWPPP), a separate Condition of Approval for the project requires preparation of a SWPPP.
Appeal: C. Flood Zones. The Project would add a considerable amount of impervious surface to an area with known flooding issues. The IS/ND does not squarely address this issue. Nor does it explain whether or how flooding problems might be mitigated. This is hardly an immaterial omission given the serious flooding problems in the area, with respect to which the Tribe, County and Yolo County Flood Control & Water District are collectively working to find a solution.
Staff response: Flooding issues have been addressed in the Conditions of Approval noted above.
Appeal: 4. Alcoholic Beverages & Unhealthy Foods. As noted, the Tribe also opposes the location of a gas station/convenience store that would sell wine and beer, all near a high school parking lot that is less than 290 feet away. The convenience store would be yet another source of junk food for nearby students. Assuming the gas station in nearby Madison is insufficient to meet the Esparto community's needs for fuel, the facility should not be sited so close to the school. Another location should be found. There already is a concentration of convenience stores selling alcohol in Esparto. This would add yet another source of alcohol, and even closer to the high school students. Yolo Avenue's current and planned establishments that serve alcohol are not of real or practical concern as they provide sit-down eating amenities, and fit within existing uses and activities in the community.
Staff response: This issue was discussed in the Planning Commission staff report of October 12, 2017 (Attachment E). Within Esparto there are currently four other locations that sell alcohol. The Esparto Supermarket located at 17343 Fremont Street, and the Esparto Grab & Go located at 16814 Fremont Street, both sell beer, wine, and liquor under a Type 21 license. The Dollar General store located at 26875 State Highway 16, and the El Toro Foods market located at 16939 Yolo Avenue, sell beer and wine under a Type 20 license. Rose’s Island, a bar/cocktail lounge located at 16867 Yolo Avenue, across the street from the former Hog Canyon Store, is no longer in operation and has been demolished, although an application is pending to construct a new bar and grill.
The State Department of Alcoholic Beverage Control (ABC) maintains the authority to approve or deny any alcohol license application. According to the ABC website, “The law says ABC may deny any retail license located (a) within the immediate vicinity of churches and hospitals, or (b) within at least 600 feet of schools, public playgrounds and nonprofit youth facilities.” Esparto High School is located approximately 500 feet to the northeast of the proposed gas station, while the Esparto Aquatic Center will be constructed directly across Yolo Avenue (Highway 16) from the gas station.
The proposed Use Permit and letter of public convenience or necessity for a Type 20 license supports the strategic plan goal of economic development and commercial revitalization of rural downtown centers throughout the county, including downtown Esparto. The addition of beer and wine sales at the proposed gas station would provide a financial benefit for the business owner, which would help sustain the service station market in a recovering local economy. The sale of
beer and wine would also benefit the public convenience, as the market would serve local residents of Esparto. Staff does not believe that the proposed license would create any significant safety concerns. Additionally, the sale of alcohol is strictly regulated by the State Department of Alcoholic Beverage Control.
Appeal: We respectfully submit that the proposed gas station/convenience store - a source of unhealthy foods and alcohol - should be sited at a more appropriate location, farther from Esparto High School.
Staff response: The issue of relocating the proposed gas station to another site in Esparto has been considered by staff and the applicant, and is not feasible. Staff is unaware of, and the Tribe has not proposed, other readily available and feasible one-acre sites located along State Route 16 that are zoned for highway service uses.
The most obvious alternative locations for a gas station are at the north end of Yolo Avenue (SR 16) where the state highway turns left to leave the town. In fact, there was a gas station located at the southeast corner of the Yolo Avenue/Woodland Avenue intersection in the past. (The old gas station building has been converted and is now occupied by the Hog Canyon Deli.) Unfortunately, the previous gas station leaked fuel and seriously contaminated the underground water supply. Data from monitoring wells required and maintained by Yolo County and the Central Valley Regional Water Quality Control Board indicate that the plume of contamination is extensive in the area, affecting both sides of the intersection
Because of the legal ramifications of purchasing a lot that is subject to major remediation costs, it is unlikely that another gas station could be feasibly located at the intersection. In addition, locating a gas station at the Yolo Avenue/Woodland Avenue intersection could potentially raise some of the same issues as the proposed project, since 80 units of affordable housing apartments are located directly across the street.
The only other locations suitable for a gas station are along the south side of Route 16 before you enter the town, adjacent to the Dollar General store. The properties east of Dollar General are planned for mixed uses that could potentially accommodate a gas station. However, the properties have been recently sold to a farmer who has planted permanent trees on the site. The site is also not currently served by the Esparto Community Services District and would require annexation into the CSD.
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