CRA - 104RESOLUTION NO. CRA-104
A RESOLUTION OF THE CYPRESS REDEVELOPMENT AGENCY
APPROVING THE MITIGATED NEGATIVE DECLARATION FOR
THE WALKER-KATELLA RETAIL PROJECT
WHEREAS, the Cypress Redevelopment Agency will be considering alternative plans
for the possible acquisition and development of an approximately 18-acre site at the northwest
comer of Walker Street and Katella Avenue, located in the City of Cypress, which activity is
known and has been referred to as the Walker-Katella Retail Project (the "Project"); and
WHEREAS, the Cypress Redevelopment Agency determined to evaluate the potential
environmental effects of the proposed Project in order to comply with the requirements of the
California Environmental Quality Act; and
WHEREAS, an Initial Study/Environmental Checklist and Mitigated Negative
Declaration, a copy of which is attached hereto as Exhibit A, have been prepared for the
proposed Project in accordance with the provisions of the California Environmental Quality Act,
the State CEQA Guidelines, and the implementing regulations adopted by the Cypress
Redevelopment Agency; and
WHEREAS, the Initial Study/Environmental Checklist for the proposed Project has
determined that although the proposed Project could have a significant adverse impact on the
environment, there would not be a significant effect in this case because appropriate mitigation
measures were made a part of the Mitigated Negative Declaration; and
WHEREAS, the Cypress Redevelopment Agency circulated the Initial Study/
Environmental Checklist and Mitigated Negative Declaration for the proposed Project for review
by the public, and by the City of Los Alamitos in compliance with the California Environmental
Quality Act, the State CEQA Guidelines, and the implementing regulations adopted by the
Cypress Redevelopment Agency; and
WHEREAS, the Cypress Redevelopment Agency published a notice of the preparation of
the Initial Study/Environmental Checklist and Mitigated Negative Declaration for the proposed
Project in The Event Newspaper on March 29, 2002, May 3, 2002, and again on May 10, 2002,
as well as, the News Enterprise Newspaper on March 27, 2002, May 1, 2002, and again on May
8, 2002, which informed persons of the preparation of the documents, the availability of the
documents for public review, and the ability to submit written comments on the documents; and
WHEREAS, on April 29, 2002, the Cypress Redevelopment Agency circulated by mail a
notice of the preparation of the Initial Study/Environmental Checklist and Mitigated Negative
Declaration for the proposed Project directly to the owner of the site on which the proposed
Project would be located, the owner's attorneys, the owner of the adjoining real properly,
informing them of the preparation of the documents, the availability of the documents for public
review, and the ability to submit written comments on the documents;
WHEREAS, written comments on the Initial Study/Environmental Checklist and
Mitigated Negative Declaration for the proposed Project were received during the specified
comment periods on behalf of Cottonwood Christian Center, Los Alamitos Race Course, and the
City of Los Alamitos, copies of which are attached hereto as Exhibit 13; and
WHEREAS, the staff of the Cypress Redevelopment Agency have provided members of
the Agency with a report regarding the Initial Study/Environmental Checklist and Mitigated
Negative Declaration for the proposed Project; and
WHEREAS, the Cypress Redevelopment Agency duly conducted a noticed public
meeting on May 28, 2002, concerning the Initial Study/Environmental Checklist and Mitigated
Negative Declaration for the proposed Project; and
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WHEREAS, prior to or during the consideration by the Cypress Redevelopment Agency
of the Initial Study/Environmental Checklist and Mitigated Negative Declaration for the
proposed project, an opportunity was provided for interested persons and organizations to
present oral communications; and
WHEREAS, after receiving oral communications, and all of the documentation relating
to the Initial Study/Environmental Checklist and Mitigated Negative Declaration for the
proposed Project, the Cypress Redevelopment Agency deliberated regarding the Initial Study/
Environmental Checklist and Mitigated Negative Declaration for the proposed Project, and duly
considered all of the information and evidence presented, including written and oral comments;
NOW, THEREFORE, BE IT RESOLVED, THAT THE CYPRESS REDEVELOPMENT
AGENCY, HEREBY DOES FIND, DETERMINE, AND DECLARE, BASED UPON
EVIDENCE PRESENTED TO IT, AS FOLLOWS:
Section 1. The Cypress Redevelopment Agency has independently reviewed and
considered the information contained in the Initial Study/Environmental Checklist and Mitigated
Negative Declaration for the proposed Project.
Section2. The Cypress Redevelopment Agency finds that the Initial Study/
Environmental Checklist and Mitigated Negative Declaration for the proposed Project have been
prepared and processed in compliance with the California Environmental Quality Act, the State
CEQA Guidelines, and the implementing regulations adopted by the Cypress Redevelopment
Agency.
Section3. The Cypress Redevelopment Agency finds that the Initial Study/
Environmental Checklist and Mitigated Negative Declaration for the proposed Project
adequately describe and address the environmental effects of the proposed Project and that,
based upon the Initial Study/Environmental Checklist and Mitigated Negative Declaration for the
proposed Project, the comments received thereon, and the entire administrative record of the
proceedings, them is no substantial evidence in light of the whole record that there may be
significant adverse environmental effects as a result of the approval of the proposed Project by
reason of the incorporation of the mitigation measures identified in the Mitigated Negative
Declaration into the proposed Project, which measures mitigate any potential significant effect to
a point where no significant environmentaI effects will occur as a result of the proposed Project.
Section 4. A mitigation monitoring program, a copy of which is attached hereto as
Exhibit C, is hereby adopted pursuant to California Public Resources Code section 21081.6 in
order to assure compliance with the mitigation measures during implementation of the proposed
Project.
Section 5. The Cypress Redevelopment Agency has fully considered the written
comments received on the Initial Study/Environmental Checklist and Mitigated Negative
Declaration for the proposed Project (Exhibit B), and adopts the responses to those comments
attached hereto as Exhibit D.
Section6. Based on the Initial Study/Environmental Checklist and Mitigated
Negative Declaration for the Project and the entire administrative record of the proceedings,
them is no substantial evidence that the proposed Project has any potential for adverse effects on
wildlife resources or the habitat on which the wildlife depends pursuant to California Fish and
Game Code section 711.2. (See Public Resources Code section 21089(b) and title 14, section
753.5 of the California Code of Regulations.)
Section7. The Mitigated Negative Declaration for the Project reflects the
independent judgment and analysis of the Cypress Redevelopment Agency.
Section 8.
adopted.
The Mitigated Negative Declaration for the Project is hereby approved and
Section 9. The location of the documents that constitute the record of proceedings
upon which the decision of the Cypress Redevelopment Agency is based is Cypress City Hall,
5275 Orange Avenue, Community Development Department, City of Cypress, Cypress,
California, 90630, and the custodian of those records is Mr. David Belmer, Director of the
Community Development Department, City of Cypress.
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Section 10. The Secretary of the Cypress Redevelopment Agency shall certify to the
passage of this Resolution.
Section 11. The Director of the Community Development Department, City of
Cypress, shall cause to be filed with and posted by the County Clerk a Notice of Determination
pursuant to California Public Resources Code section 21152 and section 15075 of the State
CEQA Guidelines
PASSED AND ADOPTED by the Cypress Redevelopment Agency at a regular meeting
thereof held on the 28th day of May, 2002.
VICE CHAIRMAN ~
CYPRESS REDEVELOPMENT AGENCY
ATTEST:
1
yCpRETAR~Y
RESS REDE¥ ZOPMENT A ENCY
STATE OF CALIFORNIA )
) SS
COUNTY OF ORANGE )
I, Jill R. Ingram-Guertin, Secretary of the Cypress Redevelopment Agency, California,
DO HEREBY CERTIFY that the foregoing Resolution was adopted at a regular meeting of the
Cypress Redevelopment Agency held on the 28th day of May, 2002, and was carried by the
following roll call vote:
AYES: 4
NOES: 0
ABSENT: I
AGENCY MEMBERS: Keenan, McGill, Piercy and McCoy
AGENCY MEMBERS: None
AGENCY MEMBERS: Sondhi
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CITY OF CYPRESS
5275 Orange Avenue
Cypress, California 90630
NEGATIVE DECLARATION
In accordance with the requirements of Resolution No. 4363 of the City of Cypress regardhig the
adoption of objectives, criteria and procedures implementing the California Environmental Quality
Act as amended, the Assistant Community Development Director of the City of Cypress, acting as
the Responsible Official, has prepared the following Negative Declaration:
1. Nature and Description of Project
Walker/Katella Retail Project
2. Findings
This project will not have a significant effect on the environment since:
This project should not create a substantially adverse physical change within the
affected area, including land, air, water, minerals, flora, fauna, ambient noise, and
obi ects of historic or aesthetic significance.
Mitigation measures will be incorporated into the conditions of approval for any
project approved under this document that will eliminate potential negative impacts
to surrounding properties in the areas of Aesthetics, Air Quality, Geology and Soils,
Hazards and Hazardous Materials, Hydrology and Water Quality, Land Use and
Planning, Noise, Transportation/Traffic, and Utilities and Service Systems.
C. The project is consistent with the development standards contained in the Cypress
Business and Professional Center Specific Plan and the Cypress General Plan
~ (2001).
lly submitted,
'--DATED: March 28, 2002
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PL-44 - Rev. 3/97
PUBLIC NOTICE OF AVAILABILITY
MITIGATED NEGATIVE DECLARATION
PROJECT: WalkedKatella Retail Project
DESCRIPTION: Pursuant to the California Environmental Quality Act (CEQA),
the Cypress Redevelopment Agency has prepared a Mitigated Negative
Declaration of Environmental Impact to evaluate the environmental impacts
resulting from the development of the WalkedKatella Retail Project on an
approximately eighteen (18) acre site at the northwest corner of Walker Street
and Katella Avenue. Four (4) separate proposals are studied in the Mitigated
Negative Declaration. They are:
The Business Park Alternative: 470,448 square feet of Business Park
development currently shown in the existing Cypress Business and Professional
Center Specific Plan;
Retail Alternative A: 163,000 square feet of Discount Club, a members-only
fuel station, and two 7,000 square foot restaurants;
Retail Alternative B: 146,300 square feet of shopping center, and two 7,000
square foot restaurants; and
Retail Alternative C: 172,900 square feet of shopping center, and two 7,000
square foot restaurants.
LOCATION: The site is located at the northwest corner of Walker Street and
Katella Avenue within the City of Cypress. The site would be accessed by
Walker Street, Katella Avenue and Winner's Circle.
The Mitigated Negative Declaration examines the potential impacts generated by
the proposed alternatives in relation to the following CEQA checklist categories:
Aesthetics, Agricultural Resources, Air Quality, Biological Resources, Cultural
Resources, Geology and Soils, Hazards and Hazardous Materials, Hydrology
and Water Quality, Land Use and Planning, Mineral Resources, Noise,
Population and Housing, Public Services, Recreation, Transportation/Traffic, and
Utilities and Service Systems.
The Mitigated Negative Declaration discusses and analyzes potential impacts
and mitigation measures in the areas of Aesthetics, Air Quality, Geology and
Soils, Hazards and Hazardous Materials, Hydrology and Water Quality, Land
Use and Planning, Noise, Public Services, Transportation/Traffic and Utilities and
Service Systems, and includes a Traffic Analysis.
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The purpose of this notice is to inform local residents, institutions and other
interested parties about the availability of the draft Mitigated Negative Declaration
during the PuNic Comment period of March 28, 2002 through April 18, 2002.
Should you decide to challenge this project, you may be limited to issues raised
during the public review period. Written comments on the draft Mitigated
Negative Declaration must be received no later than 5 p.m. on April 18, 2002.
Submit written comments to Ted J. Commerdinger, Assistant Community
Development Director, City of Cypress Community Development Department,
5275 Orange Avenue, Cypress, CA 90630.
REVIEWING LOCATION: Copies of the draft Mitigated Negative Declaration are
available for public review at the City of Cypress Community Development
Department offices during regular business hours (Monday through Friday 8:00
a.m. to 5:00 p.m.)
PROJECT LOCATION MAP:
PAR. 4
'.
1.527
PAR. 5
PAR. 6
298-15
.& V£NUE --
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POSTED
CITY OF CYPRESS
5275 Orange Avenue
Cypress, California 90630
APR30 20O2
NOTICE OF INTENT TO ~LE A ~TIGATED ~GAT~ DECL~TION
This is to advise that the Assistant Community Development Director of the City of Cypress, acting
as the Responsible Official and in conformance with Resolution No. 4363 of the City of Cypress
regarding the adoption of objectives, criteria and procedures implementing the California
Environmental Quality Act as amended, hereby notifies kis intention to file a Mitigated Negative
Declaration with respect to:
PROJECT TITLE/CASE NUM]BER: Walker/Katella Retail Project
LEAD AGENCY:
City of Cypress
CONTACT PERSON:
Ted J. Commerdinger
PHONE NUM]3ER: (714) 229-6720
PROJECT DESCRZPTION: The 18-acre project site is located on the northwest corner of Katella
Avenue and Walker Street. The project applicant, the Cypress Redevelopment Agency, has
extended owner participation opportunities and is considering the development of a retail project
that would include approximately 150,000 to 180,000 square feet of retail/commercial use. Three
alternatives have been developed for the project.
No effects on the environment are anticipated that cannot be reduced to a level ofinsign/ficance as a
result of this project, therefore, a Mitigated Negative Declaration has been prepared in accordance
with the California Environmental Quality Act.
The Initial Study/Environmental Checklist and all doctnnents referenced therein that support this
determination along with a copy of the draft Mitigated Negative Declaration are on file at the
Cypress Community Development Department located at 5275 Orange Avenue, City of Cypress.
The public is invited to comment on the draft Mitigated Negative Declaration during the minimum
twenty (20) day public review period beg/nning April 30, 2002. The Cypress City Council and the
Cypress Redevelopment Agency will consider the project and the enviromnental determination at a
public meeting on May 28, 2002, to be held at 7:00 p.m. in the City Council Chambers, located at
57~venue, City of Cypress.
ubmitted,
~nt Director Dated: April 29, 2002
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'POSTED
CITY OF CYPRESS
5275 Orange Avenue
Cypress, California 90630
MITIGATED NEGATIVE DECLARATION
In accordance with the requirements of Resolution No. 4363 of tt~e Cit~, of Cypress ;egarding the
adoption of objectives, criteria and procedures implementing the Californ/a Environmental Quality
Act as amended, the Assistant Community Development Director of the City of Cypress, acting as
the Responsible Official, has prepared the following Mitigated Negative Declaration:
I. Nature and Description of Proiect
Walker/Katella Retail Project: The 18-acre project site is located on the northwest comer of
Katella Avenue and Walker Street. The project applicant, the Cypress Redevelopment Agency, has
extended owner participation opportunities and is considering the development of a retail project
that would include approximately 150,000 to I80,000 square feet of retail/commercial use. Three
alternatives have been developed for the project.
2. Initial Study
The Initial Study/Environmental Checkhst prepared for the project is attached hereto as
Exhibit A.
3. Find/n~s
T/tis project will not have a significant effect on the environment because:
This project should not create a substantially adverse physical change within the
affected area, including land, air, water, minerals, flora, fauna, ambient noise, and
objects of historic or aesthetic sigrfificance.
Mitigation measures will be incorporated into the conditions of approval for any
project approved under this document that will eliminate potential negative impacts
.to surromnding properties in the areas of Aesthetics, Air Quality, Geology and Soils,
Hazards and Hazardous Mater/als, Hydrology and Water Quality, Land Use and
Planning, Noise, Transportation/Traffic, and Utilities and Service Systems. These
mitigation measures are attached hereto as Exhibit B.
The project is consistent with the development standards contained in the Cypress
Bus/ness and Professional Center Specific Plan and the Cypress General Plan
(2001).
PL-44 - Rev. 3/97
A-6
AMENDED
PUBLIC NOTICE OF AVAILABILITY
MITIGATED NEGATIVE DECLARATION
PROJECT: Walker/Katella Retail Project
DESCRIPTION: Pursuant to the California Environmental Quality Act (CEQA),
the Cypress Redevelopment Agency has prepared a Mitigated Negative
Declaration of Environmental Impact to evaluate the environmental impacts
resulting from the development of the Walker/Katella Retail Project on an
approximately eighteen (18) acre site at the northwest corner of Walker Street
and Katella Avenue. Four (4) separate proposals are studied in the Mitigated
Negative Declaration. They are:
The Business Park Alternative: 470,448 square feet of Business Park
development currently shown in the existing Cypress Business and Professional
Center Specific Plan;
Retail Alternative A: 163,000 square feet of Discount Club, a members-only
fuel station, and two 7,000 square foot restaurants;
· Retail Alternative B: 146,300 square feet of shopping center, and two 7,000
square foot restaurants; and
Retail Alternative C: 172,900 square feet of shopping center, and two 7,000
square foot restaurants.
LOCATION: The site is located at the northwest corner of Walker Street and
Katella Avenue within the City of Cypress. The site would be accessed by
Walker Street, Katella Avenue and Winner's Circle.
The Mitigated Negative Declaration examines the potential impacts generated by
the proposed alternatives in relation to the following CEQA checklist categories:
Aesthetics, Agricultural Resources, Air Quality, Biological Resources, Cultural
Resources, Geology and Soils, Hazards and Hazardous Materials, Hydrology
and Water Quality, Land Use and Planning, Mineral Resources, Noise,
Population and Housing, Public Services, Recreation, Transportation/Traffic, and
Utilities and Service Systems,
The Mitigated Negative Declaration discusses and analyzes potential impacts
and mitigation measures in the areas of Aesthetics, Air Quality, Geology and
Soils, Hazards and Hazardous Materials, Hydrology and Water Quality, Land
Use and Planning, Noise, Public Services, Transportation/Traffic and Utilities and
Service Systems, and includes a Traffic Analysis.
A-?
The purpose of this notice is to inform local residents, institutions and other
interested parties about the availability of the Mitigated Negative Declaration
during the Public Comment period of April 30, 2002 through May 20, 2002.
Should you decide to challenge this project, you may be limited to issues raised
during the public review period. Written comments on the draft Mitigated
Negative Declaration must be received no later than 5 p.m. on May 20, 2002.
Submit written comments to Ted J. Commerdinger, Assistant Community
Development Director, City of Cypress Community Development Department,
5275 Orange Avenue, Cypress, CA 90630. The Cypress City Council and the
Cypress Redevelopment Agency will consider this matter at a regularly
scheduled public meeting on Tuesday May 28, 2002 at 7:00 p.m. in the
Council Chambers at 5275 Orange Avenue, City of Cypress.
REVIEWING LOCATION: Copies of the Mitigated Negative Declaration, and
any documents referenced in the Mitigated Negative Declaration, are available
for public review at the City of Cypress Community Development Department
offices during regular business hours (Monday through Friday 8:00 a.m. to 5:00
p.m.).
PROJECT LOCATION MAP:
1.577
~ ~f ?~S L L A
6. S52 AC.
(~ 298-15
3.257 .4C.
~VENU~ ~
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INITIAL STUDY/ENVIRONMENTAL CHECKLIST
Walker/Katella Retail Project
(Northwest Corner of Katella Avenue and Walker Street)
Cypress Redevelopment Agency
INITIAL STUDY HAS ALREADY Ramk~N DISTRIBUTe3
March 29 2002
(213) 617-5565
jcurfis~:sheppardmuJ3an corn
ATTORNEYS AT LAW
FORTY-EIGHTH FLOOR
333 SOUTH HOPE STREET
LOS ANGELES, CALIFORNIA 90071-1448
TELEPHONE 213'620'7780
FACSIMILE 213'620' 1398
WWW.SHEPPARDMU LLIN.COM
Aprill8,2002
APR 2 2 2002
Cypress Redevelopment Agency
5275 Orange Avenue
Cypress, California 90630
Attn: Mr. Ted J. Commerdinger,
Assistant Community Development Director
HAND DELIVERED
Re~
Cottonwood Christian Center's Objections to the Alleged
Walker/Katella Retail Proiect Mitigated Negative Declaration
and Initial Study/Environmental Checklist dated March 29, 2002.
Cypress Redevelopment Agency:
We represent Cottonwood Christian Center ("Cottonwood"), the owner of six
individual parcels (the "Cottonwood Property") located within the LART Redevelopment Project
Area (the "LART Redevelopment Area"). We xvrite to set forth Cottonwood's comments and
objections to the alleged Walker/Katella Retail Project Mitigated Negative Declaration ("MND")
and Initial Study/Environmental Checklist dated March 29, 2002 ("Initial Study"). Due to the fact
that a draft MND has not yet been prepared or made available for public review (a fatal flaw by
itself)y, and that numerous flaws are contained in the Initial Study, all of which are discussed
below, the Cypress Redevelopment Agency ("Agency") is compelled to start its process over again
with the preparation ora new Initial Study. Even though the current Initial Study is fatally flawed
and wholly lacking of adequate analysis and information, it is apparent that the Agency must
prepare, and we hereby request that it prepare, a full Environmental Impact Report ("EIR") under
the California Environmental Quality Act ("CEQA") for the Walker/Katella Retail Project (the
"Proiect").
On or about January 15, 2002, Cottonwood filed a Verified Complaint and Verified
Petition for Peremptory Writ of Mandate against both the Agency and the City of Cypress in both
the United States District Court, Central District of California and the Superior Court of the State
We were informed by Mr. Commerdinger, and also confirmed by review of the official
Agency file for the proposed MND, that no draft MS'CD has been prepared or circulated.
Thus, objections herein are based upon the Initial Study and apply equally to any proposed
MND hereinafter prepared by the Agency.
kT~IIBIT "B"
LOS ANGELES · SAN FRANCISCO · ORANGE COUNTY · SAN D~EGO · SANTA BARgARA · WEST LOS ANGELES · DEL MAR HEIGHTS
ATTORNEYS A1 LAW
Cypress Redevelopment Agency
April 18, 2002
Page 2
of California for the County of Orange (collectively, the "Complaint and Petition"), for violations
of, among other th/ngs, the United States and California Constitutions, the Religious Land Use and
Institutionalized Persons Act and other laws, including the California Environmental Quality Act
and California's Community Redevelopment Law.
The adoption of the Initial Study, and any proposed MN-D, by the Agency are
merely unlawful acts in furtherance of the violations set forth in the Complaint and Petition. As
such, each of Cottonwood's prior objections and the City's and Agency's violations of the United
States and California Constitutions and other laws as stated in the Complaint and Petition are
hereby restated and incorporated herein by this reference as though set forth fully herein.
THE INITIAL STUDY IS INADEQUATE AND ANY MITIGATED NEGATIVE,
DECLARATION WOULD NOT BE IN COMPLIANCE WITH THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT7 AN ENVIRONMENTAL IMPACT REPORT
MUST BE PREPARED.
The Agency Must Prepare and Certify an EIR for the Proposed Project.
1 Overview of CEQA. CEQA was enacted in response to the well-documented
failure of state and local governmental agencies to consider fully the environmental implications
of their actions. Selmi, The Judicial Development of the Califorrda Environmental Quality Act,
18 U. C D.L. Rev. 197 (1984).-v The California Supreme Court has repeatedly affirmed that CEQA
must be interpreted liberally "to afford the fullest possible protection to the environment within the
reasonable scope of the statutory language." Laurel Heights Improvement Assn. v. The Regents
of the University of California ("Laurel Heights 1"), 47 Cal.3d 376, 390 (1988), quotin~ from
Friends of Mammoth v. Board of Supervisors, 8 Cal.3d 247, 259 (1972).
Three of the central purposes of CEQA are to (i) inform governmental decision
makers and the public about the potential significant environmental effects ora proposed project,
(ii) identify ways that environmental damage can be avoided or significantly reduced and (iii)
disclose to the public the reasons why a governmental agency approved the project in the manner
the agency chose ifsigrdficant environmental effects are involved. Guidelines §§ 15002(a) (1), (2)
and (3).
The Office of Planning and Research has promulgated guidelines to implement CEQA.
14 Cal. Code of Regs. § 15000 et seq. (the "Guidelines").
B-2
ATTORNEYS AT LAW
Cypress Redevelopment Agency
April 18, 2002
Page 3
The EIR is the heart of CEQA. Guidelines § 15003 (a). As noted by the California
Supreme Court, the EIR:
"is the primary means of achieving the Legislature's considered declaration
that it is the policy of this state to 'take all action necessary to .protect,
rehabilitate, and enhance the environmental quality of the state.' (§ 21001,
subd. (a).) ... Because the EIR must be certified or rejected by public
officials, it is a document of accountability. If CEQA is scrupulously
followed, the public will know the basis on which its responsible officials
either approve or reject environmentally significant action, and the public,
being duly informed, can respond accordingly to action with which it
disagrees. [Citations]. The EIR process protects not only the environment
but also informed self-government." Laurel Heights I, 47 Cal.3d at 392.!/
CEQA provides for a three-tiered environmental analysis. First, the lead agency
determines whether the project is exempt from CEQA review. Guidelines § 15061. If the lead
agency concludes that the project is not exempt from CEQA, the lead agency then conducts an
initial study to ascertain whether to prepare an EIR or a negative declaration in connection with
the project. The lead agency may only adopt a "negative declaration" or a "mitigated negative
declaration" when the initial study concludes that "[t]here is no substantial evidence ... that the
project may have a significant effect on the environment" and further CEQA review is unnecessary.
Cal. Pub. Res. Code § 21080(c)(1).-4/ As further explained by § 15070 of the Guidelines, "[al
public agency shall prepare... [a] mitigated negative declaration for a project subject to CEQA
when.. (b) the initial study identifies potentially significant effects, but (1) revisions in the project
plans or proposals made by, or agreed to by the applicant before a proposed mitigated negative
declaration and initial study are released for public review would avoid the effects or mitigate the
effects to a point where clearly no significant effects would occur..."
An EIR serves "to demonstrate to an apprehensive citizenry that the agency has in fact
analyzed and considered the ecological implications of its action." No Oil, Inc. v. City of
Los Angeles, 13 Cal.3d 68, 86 (1974). An EIR also allows the public to "determine the
environmental and economic values of their elected and appointed officials, thus allowing
for appropriate action on election 'day should a majority of the voters disagree." People
v County of Kern, 39 Cal. App. 3d 830, 842 (1974). "The report ... may be viewed as an
environmental 'alarm bell' whose purpose it is to alert the public and its responsibl'e officials
to environmental changes before they have reached ecological points of no return."
County ofln¥o v. Yort¥, 32 Cal. App. 3d 795, 810 (1973).
For a discussion of "mitigated negative declarations", see below
B-3
ATTORNEYS AT LAW
Cypress Redevelopment Agency
April 18, 2002
Page 4
CEQA applies only to "discretionary projects." Cal. Pub. Res. Code §§ 21080(a)
and (b)(1); Guidelines § 15268(a). A discretionary project is one which "requires the exercise of
judgment or deliberation when the public agency or body decides to approve or disapprove a
particular activity, as distinguished from situations where the public agency or body merely has to
determine whether there has been conformity with applicable statutes, ordinances, or regulations.
Guidelines § 15357.
2. Fair Argument Test Requires an EIR. If the administrative record contains
substantial evidence that any aspect of a Project "may have a significant effect on the
environment," the lead agency must prepare an EIR. Cal. Pub. Res. Code § 21100; Guidelines
§§ 15002(0(1), 150630)(1) and 15064(a)(1)fi/ Put another way,
"... ifa Lead Agency is presented with a fair argument that a project may
have a significant effect on the environment, the Lead Agency shall prepare
an EIR even though it may also be presented with other substantial
evidence that the project will not have a significant effect. (No Oil, Inc. v.
City of Los Angeles (1974), 13 Cal. 3d 68)." Guidelines § 15064(g)(1).
(emphasis added). See also Friends of "B" Street v. City ofHavward, 106
Cal. App. 3d 988, 1002 (1980).
A trial court is entitled to independently review an agency's determination that there
was no evidence upon which a fair argument could be made that an EIR was required. As the
court stated in Friends of "B" Street, supra:
"if there was substantial evidence that the proposed project might have a
significant environmental impact, evidence to the contrary is not sufficient
to support a decision to dispense with preparation of an EIR and adopt a
Negative Declaration, because it could be 'fairly argued' that the project
might have a signlScant environmental impact. Stated another way, if the
trial court perceives substantial evidence that the project might have such
an impact, but the Agency failed to secure preparation of the required EIR
the Agency's action is to be set aside because the agency abused it~
discretion by failing to proceed 'in a mariner required by law'. (Cal. Pub.
Res. Code § 21168.5.)" 106 Cal. App.3d at 1002. (Emphasis added).
Professor Selmi pointed out that one of the reasons that courts are permitted to closely
examine CEQA decisions is that public agencies "are subject to political pressure to avoid
the full E1R process" which is certainly the case here. Selmi, supra, at 227.
B-4
ATTORNEYS AT LAW
Cypress Redevelopment Agency
April 18, 2002
Page 5
Under the fair argument standard, deference to the lead agency's determination is
not appropriate and its decision not to require an EIR can be upheld "only when there is no
credible evidence to the contrary." Sierra Club v. County of Sonoma, 6 Cal. App. 4th 1307,
1317-18 (1992). Emphasis added. The fair argument standard requires the reviewing court to
employ "a certaLn degree of independent review of the record, rather, than the typical substantial
evidence standard which usually results in great deference being given to the factual determinations
of the agency." Quail Botanical Gardens Foundation, Inc. v. City of Encinitas, 29 Cal. App. 4th
1597, 1602 (1994).
The Supreme Court has concluded that the interpretation of CEQA "which will
afford the fullest possible protection to the environment is one which will impose a low thresholds
requirement for preparation of an EI:P,." No Oil, Inc. v. City of Los Angeles, supra, 13 Cal 3d at
84.
As explained below, Cottonwood has presented a compelling argument, based on
overwhelming evidence, that the Project will have a significant adverse impact on the environment.
Therefore, the Agency should prepare an EIR.
The Mitigated Negative Declaration Fails to Provide An Accurate Proiect Description
The Project description must be accurate and consistent throughout a mitigated
negative declaration. A mitigated negative declaration circulated for public review shall include,
among other things, a description of the project. 14 Cal. Code Regs. § 15071(a). California
courts have consistently emphasized the importance of accurate project descriptions. In fact, "[a]n
accurate, stable and finite project description is the sine qua non of an informative and Iegally
sufficient E1R." County ofln¥o v. City of Los Angeles 71 Cal. App. 3d 185, 193 (1977) (italics
in original). The County ofln¥o further stated, "[al curtailed or distorted project description may
stultify the objectives of the reporting process. Only through an accurate view of the project may
affected outsiders and public decision-makers balance the proposaPs benefit against its
environmental costs, consider mitigation measures, assess the advantage of terminating the
proposal.., and weigh other alternatives in the balance." The Agency must in good faith make
any MND prepared in the future by the Agency (and the Initial Study used to prepare) as complete
and comprehensible as possible. Long Beach Savings & Loan Association v. Lon~ Beach
Redevelopment Agency, 138 Cal. App. 3d 249 (1986).
Here, the Initial Study is fundamentally flawed because it does not provide an
adequate Project description. The Initial Study minimally describes three theoretical alternative
projects instead of acknowledging that the intended development of the Project is a Costco
Warehouse by Costco Wholesale Corporation ("Costco"). The Project, as developed by Costco,
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ATTORNEYS AT LAW
Cypress Redevelopment Agency
April 18, 2002
Page 6
shall sometimes be referred to herein as "a Costco." In fact, the Agency has been involved in back-
room negotiations with Costco for many months and has signed various negotiation agreements
with Costco,6/in contravention of its own Rules Governing Participation and Preferences by
Owners and the California Community Redevelopment Law, each of which requires that the
Agency give preference to proposals submitted by owners of the subject property, and not to third
parties In addition, the Initial Study fails to discuss, at ali, the extension of owner participation
opportunities to Cottonwood. The Initial Study needs to identify in detail the owner pa/ticipation
opportunities that have been extended and how such opportunities relate to the project
alternatives identified in the Initial Study.
The Initial Study only focuses on one of the theoretical alternatives for purposes
of the environmental analysis contained in the Initial Study. However, the Initial Study fails to
discuss how the Agency decided on those three particular alternatives, nor does the Initial Study
discuss the analysis used to reach the conclusion that Alternative C is the "worst-case scenario,"
and thus, should be the focus of the Initial Study. Interestingly, the Project alternative chosen for
the Initial Study analysis is the one most unlike the Costco development proposal, despite the fact
that the Agency has officially approved moving forward with Costco's development proposal for
the Project. Also, Alternative C, which is described as involving 186,000 square feet of
retail/commercial square footage, exceeds the development intensity being contemplated by the
Agency Furthermore, without any explanation, the Initial Study boldly asserts that any alternative
would be built in one phase.
CEQA requires that an environmental document foster informed public partici-
pation and informed decision-making. By failing to identify the intended occupant of the Project,
which has special operational and impact generation potential (some facts of which are detailed
in the correspondence concerning the Project at the April 8th Agency hearing), the Agency has
intentionally violated an essential tenet of CEQA. The only reason for the Agency not revealing
these vital pieces of information is to preclude an accurate and complete discussion of the Project's
potential environmental impacts, thereby undermining CEQA. Because the Project is really a
Costco, and not one of the three theoretical alternatives scantily mentioned in the Initial Study, the
On April 8, 2002, the Agency considered Costco's development proposal, took certain
actions in furtherance therewith and rejected Cottonxvood's project proposal, including any
right to owner participation. All resolutions, documents and other matters related to this
action by the Agency and all prior actions by the Agency, and the City in any way relating
to Costco, the Costco project and/or Cottonwood are hereby incorporated herein by this
reference.
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Cypress Redevelopment Agency
April 18, 2002
Page 7
project description should include significant additional information to ensure that potential
impacts of the Project can be fully assessed and mitigated.
Vital information is missing from the Initial Study environmental analysis due to
the inaccuracy of the project description. For example, in order to begin to properly analyze
possible environmental impacts, it is critical to know, among other things: the hours of operation,
peak weekday and weekend times for customer visits, the likely number of customers, the level
of customer activity throughout the day, evening and weekend on an hourly average, availability
of parking, plan for ingress and egress and the management of congestion at these points, delivery
schedules, the number and types of delivery trucks traveling to the Project each day and possible
delivery routes. Also missing from the Initial Study project description is information regarding
building dimensions. This omission makes an analysis of the Project's visual compatibility with
surrounding uses impossible to evaluate. The Project description should include a drawing of the
proposed building and some information about materials, windows, rooftop equipment, etc. Such
information is readily available to, or is already in the possession of, the Agency. The Agency
simply does not have a valid excuse for misrepresenting the true nature of the Project or for failing
to disclose key information relating to the Project. The public must have an opportunity to truly
examine the potential significant adverse impacts of the Project with the Project clearly defined as
a Costco. For example, a Costco gas station is likely to produce tremendous traffic trips due to
the discount nature of gas services. Similarly, the Costco automotive service will likely have
unique noise and pollution impacts. Here, the impact of the Project on the environment is not fully
known and will not be known until an EIR is prepared.
C. Notice For The Mitigated Negative Declaration Was Inadequate
Period For Public Review Should Be 30 Days The public review period for a
Mitigated Negative Declaration submitted to the State Clearinghouse for review by state agencies
shall not be less than 30 days. Guidelines § 15105 (b). Mitigated Negative Declarations are
submitted for review by state and other agencies when the project has statewide sigrfificance.
Here, the Agency claims that the public review period is 20 days. This
interpretation of the Guidelines is wrong because the Project, if properly described, would have
statewide significance.
2 Draft Mitigation Negative Declaration Has Not Been Prepared A Mitigated
Negative Declaration circulated for public review shall include, among other things, a proposed
finding that the project will not have a significant effect on the environment and an attached copy
of the initial study documenting reasons to support the finding. Guidelines § § 15071 (c) and (d).
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Cypress Redevelopment Agency
April 18, 2002
Page 8
The Agency has only circulated a document titled "Initial Study/Environmental
Checklist." In fact, the Initial Study concludes by stating, "Based on the information and
environmental analysis contained in the Initial Study/Environmental Checklist, we recommend that
the Cypress Redevelopment Agency prepare a mitigated negative declaration for the
Walker/Katella Retail Project proposal." Initial Study, 78. An MTND has not yet been prepared,
as also confirmed by a conversation with a City representative and a review of the City's official
file for the "MND" The Initial Study does not take the place ora properly circulated Mitigated
Negative Declaration.
3. Public Agencies With Jurisdiction By Law Over Resources Affected By The Project
Were Not Properly Noticed.
According to Guideline § 15072 (e), if a project is of statewide, regional, or
areawide significance, the lead agency shall provide notice of the Mitigated Negative Declaration
to transportation planning agencies and public agencies which have transportation facilities within
theirjurisdictionswhichcouldbe affected bythe project. Transportation Facilities include: "major
local arterials and public transit within five miles of the project site and freeways, highways and
rail transit service within 10 miles of the project site." Id
The Agency has failed to meet this particular notice requirement. The Initial Study
fails to Est the agencies that require notice under Guideline § 15072. The public has no way of
knowing whether such agencies were ever properly noticed, including the City of Los Alamitos
and Caltrans.
4 Copies of Documents Referenced In The Initial Study Were Neither Readily
Available Nor Properly Summarized The notice of intent to adopt a Mitigated Negative
Declaration shall specify where copies of all documents referenced in the Mitigated Negative
Declaration are available for review. Guidelines § 15072 (0(4). Furthermore, Guidelines § 15150
(c) requires that".., where an ELR or negative declaration uses incorporation by reference, the
incorporated part of the referenced document shall be briefly summarized where possible or briefly
described if the data or information cannot be summarized. The relationship between the
incorporated part of the referenced document and the EI~ shall be described."
The Agency has made it truly impossible for the public to review the documents
referenced in the Initial Study for several reasons.
First, despite assurances from Agency representatives that copies of documents
would be given to us in a timely manner for our review in connection with the Initial Study, these
documents have not been given to us or otherwise made available.
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ATTORNEYS AT LAW
Cypress Redevelopment Agency
April 18, 2002
Page 9
Second, although CEQA permits the incorporation by reference of other
documents, the Initial Study incorporates so many documents that it is virtually impossible for the
public to understand the basis of the analysis for the Project. For example, the Initial Study
incorporates four full EIR's, three of which are ten years old, and three Initial Studies, in addition
to the General Plan, Zoning Code, Specific Plan and Redevelopment Plan. As used by the Agency,
this technique undermines full disclosure of the environmental consequences of the Project and
thereby impedes informed decision making as mandated by CEQA
Third, the Agency fails to adequately list and summarize the documents referenced
in the Initial Study. Section 4.18 (References) fails to provide a complete list of the documents
referenced in the Initial Study. This section only offers the public a partial list of documents
referenced. Moreover, the Initial Study fails to adequately summarize and explain the exact
relationship between the referenced document and the Initial Study. In fact, certain documents
which are listed in Section 4.18 are not discussed at all in the body of the Initial Study, and certain
documents which are briefly referenced in the body of the Initial Study are not listed in Section
4.18, making it virtually impossible to even commence a process of review.
Based upon the unavailability of potentially relevant documents and the voluminous
nature of the documents, we reserve the right to make further comments to the Initial Study. If
the Agency were to properly follow CEQA, it should prepare an EIR at this time.
The Initial Study Fails to Provide Evidence That the Proposed Proiect Will Not Have Any
Significant Environmental Effects.
An initial study must disclose the data or evidence upon which the "person(s)
co~ducting the study relied .... Mere conclusions simply provide no vehicle for judicial review?'
Citizens Assn. for Sensible Development of the Bishop Area v. Count,/oflnvo, 172 Cal. App. 3d
151, 170 (1985). One of the primary purposes of an initial study is to "[p]rovide documentation
of the factual basis for the finding in the Negative Declaration that a project will not have a
significant effect on the environment." Guidelines § 15063(c)(5). An initial study must document
reasons to support the finding that a project will not have any significant environmental effects.
Guidelines § 15071(d).
The Initial Study includes an "Initial Study Checklist" (the "Checklist") which
includes approximately 88 questions regarding the potential environmental impacts of the proposed
Project With respect to each question, the Initial Study concludes either that (a) the questioned
impact will not occur at all, (b) the impact will occur, but it will not be significant, or (c) the
impact will be significant, but proposed conditions will mitigate the impact below a level of
significance. However, the Initial Study includes little or no explanation for many of these
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Cypress Redevelopment Agency
April 18, 2002
Page 10
negative responses, and it fails to properly summarize and take into account the numerous studies
that have been or are being prepared for the LART Redevelopment Area. Moreover, many of the
mitigation measures listed in the Initial Study contain no timJng for implementation nor do they
identify the responsibility of City Staff to ensure compliance. Therefore, many of the mitigation
measures are inadequate in etcsuring that potential environmental effects are actually mitigated.
This problem is compounded as some mitigation measures are identified as "recommended" rather
than required.
In fact, where there is an explanation, the explanation often offers no baseline
condition or reason to believe that a significant adverse impact will not occur. For example, the
traffic study fails to point out that there will be an unavoidable significant adverse impact at the
intersection of Cerritos Avenue and Walker Street. Omission of such information seriously
undermines the credibility of both the traffic study and the Initial Study. In addition, the traffic
study merely estimates the number of anticipated trips based upon an inaccurate project description
and concludes that the adjacent streets will handle the impact. A more detailed analysis of the
traffic study is found in a letter dated April 18, 2002, from Linscott, Law, & Greenspan, Engineers
to Mr. Mel Malkoff, attached hereto as Exhibit B.
There is also minimal analysis as to aesthetics or the impact of light, glare and
noise. Neighbors must merely trust that the Project will not be visible from their homes and that
light and noise will not impact them, even though the Initial Study acknowledges that there will
be new sources of light and that the ambient noise level will increase In addition, to further
aggravate the conclusionary nature of these statements, there is__no discussion as to the unique
traffic and noise that will be created by the Costco gas station and automobile service or tire
facility.
Certainly, further study is required with respect to potential impacts arising from
traffic, parking, air quality (potential odors and fumes from delivery tracks, etc.), aesthetics, light
and glare, noise, hazardous materials and cumulative impacts from other projects, particularly
when the Project is properly described as a Costco. In addition, the Agency has failed to meet the
standard mandated by Guidelines § 15070 (b) (1) which states that a mitigated negative declaration
shall be prepared when "It]he initial study identifies potentially significant effects, but [r]evisions
in the project plans or proposals made by, or agreed to by the applicant before a proposed
mitigated negative declaration and initial study are released for public review would avoid the
effect or mitigate the effects to a point where clearly no significant effects would occur..."
(emphasis added). The Agency has failed to meet this burden. The Agency has not clearly
demonstrated that clearly no significant effects would occur in connection with the Project.
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ATTORNEYS AT LAW
Cypress Redevelopment Agency
April I8, 2002
Page 11
The Initial Study, itself, is defective on a number of fronts. In particular, it contains
inaccurate information in the sections discussing Land Use and Planning, Traffic, Aesthetics, Air
Quality, Hazard and Hazardous Materials, Noise, Population and Housing, Public Services,
Recreation and References. A detailed discussion of the inadequacies in the Initial Study is set
forth in Exhibit A attached hereto.
E. Tiering Is Improper Under the Circumstances
The use of tiering is intended to allow agencies to avoid repetitiveness, wasted
time, and unnecessary premature speculation, by preparing a series of ErRs or an EIR and later
negative declarations on related projects. Cal. Pub Res. Code § § 21068.5, 21093 (a); Guidelines
§ 15152. "Tiering is a process by which agencies can adopt programs, plans, policies, or
ordinances with ErRs focusing on "the big picture," and can then use streamlined CEQA review
for individual projects that are consistent with such... [first tier decisions] and are consistent with
local agencies' governing general plans and zoning." Koster v. County of San Joaquin. 47 Cal
App. 4th 29 (1996). PuNic Resource Code Section 21068.5 defines "tiering" as
"the coverage of general matters and environmental effects in an
environmental impact report prepared for a policy, plan, program or
ordinance followed by narrower or site-specific environmental impact
reports which incorporate by reference the discussion in any prior
environmental impact report and which concentrate on the environmental
effects which (a) are capable of being mitigated, or (b) were not analyzed
as significant effects on the environment in the prior environmental impact
report."
The later EIRs are excused by the tiering concept from repeating the analysis of broad
environmental issues examined in the general plan ELR. It is important to note that not ali site-
specific projects can take advantage of tiering. To qualify for the use of tiering, later projects
must: (i) be consistent with the program, plan, policy, or ordinance for which an ErR has been
prepared and certified, (ii) be consistent with applicable local land use plans and zoning of the city,
county, or city and county in xvhich the later project would be located and (iii) not trigger the need
for a subsequent ErR or supplement to and ErR. Cal. Pub. Res. Code § 21094 (b). These criteria
thus limit the kinds of projects that can benefit from the use of tiering; projects requiring general
plan amendments and most kind ofrezones will not qualify. Also, Guideline Section 151 ~2(a)(3)
reqmres the preparation of a subsequent ErR if" . .. significant effects previously examined will
be substantially more severe than shown in the previous EIR."
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ATTORNEYS AT LAW
Cypress Redevelopment Agency
April ] 8, 2002
Page 12
Here, the Agency may not use the tiering concept for several reasons. First, the
Project described in the Initial Study is not consistent with the applicable plans and zoning
associated with the location oftheProject. Retail projects, such as the Project described in the
Initial Study, are not permitted uses under current plans and zoning for the Project. A more
thorough discussion of the inconsistency of retail use with the current zoning for.the Project is set
forth in Exhibit A attached hereto. Because retail is not a permitted use,' development of the
Project will necessitate amendments to the Cypress General Plan, the City of Cypress Zoning
Ordinance and the Cypress Business & Professional Center Specific Plan, which will, in turn,
require preparation of an EIR. Second, the Project, when properly described as a Costco, will
immediately trigger the need for an EIR. The very nature of a Costco necessarily invalidates the
accuracy of the impact analysis in the previous EIRs. For this reason alone, the Initial Study's
reliance on previous analysis and conclusions is questionable. The proposed Costco project will
undoubtably have greater impacts than would the typical retail or office use that was contemplated
under the analysis of the prior El:Rs. The fact that the Project is in actuality a Costco is significant
new information of substantial importance that could not have been known at the time the EIRs
were certified. For example, the traffic impacts of a Costco are greater than those anticipated in
the EIRs. In turn, air quality and noise impacts will also be greater. This could lead to new
significant impacts, an increased severity of previously identified impacts, and new mitigations that
must be considered. Also, many of the significant effects examined in the EIRs prepared over ten
years ago are likely to be substantially more severe today. These circumstances require full
examination in a supplemental EIR, not a Mitigated Negative Declaration.
The Proposed Mitigation Measures Will Not "Clearly "Mitigate the Proiect's
Significant Environmental Impacts.
A lead agency can approve a project with potentially significant environmental
effects by adopting a mitigated negative declaration, only under the following circumstances:
"An initial study identifies potentially significant effects on the
environment, but (A) revisions in the project plans or proposals made by,
or agreed to by, the applicant before the proposed negative declaration and
initial study are released for public review would avoid the effects or
mitigate the effect on the environment would occur, and (B) there is no
substantial evidence, in light of the whole record before the lead agency,
that the project, as revised, may have a significant effect on the
environment." (Emphasis added) Cal. Pub. Res. Code § 21080(c)(2); see
also Cal. Pub. Res. Code § 21064.5.
ATTORNEYS AT LAW
Cypress Redevelopment Agency
April 18, 2002
Page 13
Since the Agency has prepared the Initial Study, it is expressly acknowledging under CEQA that,
in the absence of clearly effective mitigation, the Project will have a significant, adverse
environmental effect. In fact, several Statements of Overriding Considerations in connection with
the LART Redevelopment Area were adopted in the past to address some of these significant
effects. In particular, a Statement of Overriding Considerations was prepared in connection with
the Cypress General Plan EIR for the following impacts: transportation/circulation, air quality and
parks/recreation. A/so, a Statement of Overriding Considerations was prepared in connection with
the Cypress Business and Professional Center Specific Plan EIR for the following impacts:
circulation and traffic, land use and relevant planning, aesthetics and air quality.
The mitigation measures attached to the Initial Study will not "clearly" mitigate
certain aspects of the Project, as admitted by the Agency in the Initial Study. The Agency cannot
adopt the Initial Study unless the mitigation measures reduce the impacts of the Project below the
threshold of significance set forth in CEQA. In this case, the mitigation measures must eliminate
the possibility ora substantial adverse change in the significance of the Project. Section 3.3 of the
Initial Study describes "potentially significant impact unless mitigated" as follows, "[t]he
development will have the potential to generate impacts which may be considered as a significant
effect on the environment, although mitigation measures or changes to the development's physical
or operational characteristics can reduce these impacts to levels that are less than significant."
However, the Agency fails to address the criteria by which a potential environmental impact is
determined. The Initial Study not only fails to analyze whether the stated mitigation measures will
prevent a "substantial adverse change," it does not even cite the appropriate threshold.
Moreover, the Agency cannot simply rely on past EIR's and Statements of
Overriding Considerations for the purpose of avoiding an ELR for the Project. Those past
documents will not automatically shield the current Project from analysis, particularly when the
Project is significantly different from the uses that were contemplated under the previous EI~Rs and
Statement of Overriding Considerations. Furthermore, the Initial Study fails to discuss, in any
meaningful way, the relationship between the referenced documents and the Project.
The Adoption of the Negative Declaration Would Unlawfully Defer Environmental
Review.
CEQA requires that environmental review and the formulation of appropriate
mitigation measures occur at the earliest feasible state in the planning process. Cal. Pub. Res.
Code § 21003.1. CEQA provides further that a proposed negative declaration should only be
prepared for a project when "revisions in the project plans or proposals made by or agreed to by
the applicant before the proposed negative declaration is released for public review would avoid
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A T T O R N E Y S AT LAW
Cypress Redevelopment Agency
April 18, 2002
Page 14
the effects or mitigate the effects to a point where clearly no significant effect on the environment
would occur ..." Cal. Pub. Res. Code § 21080(c)(2).
The case of Sundstrom v. County of Mendocino, 202 Cal. App. 3 d 296 (1988),
illustrates these principles. In Sundstrom, the public agency approved a use permit for a motel and
restaurant that included a private sewage treatment plant. The initial study did not analyze the
environmental impacts of the treatment plant, but instead required that the developer prepare a
hydrological study a~er the approval of the negative declaration. The study was to provide a basis
for establishing additional mitigation measures for the project.
The court held that the public agency violated CEQA by including a condition that
contemplated revisions to the project alter the final adoption of the negative declaration. The
court further held that the deferral of environmental review for the treatment plant ran counter to
CEQA policy, which required envirorm~ental review at the earliest feasible change in the planning
process. The court also noted that any mitigation measures added by the administrative staff as
a result of this study would be exempt from public scrutiny since the public agency had already
approved the negative declaration.
Several proposed mitigation measures for the Project under the Initial Study are
examples of unlawful deferral of environmental review. For example one condition requires that
a geologic and soils report be prepared at a later date. The Initial Study determines that potential
geological impacts associated with the Project could be potentially significant, unless mitigated.
Neither the impacts nor the proposed conditions for mitigation are discussed. Similarly, geologic
and soils reports, circulation plans, and a parking study are all deferred to another day.
There is also no discussion as to the type or amount of mitigation required for the
potential impacts associated with the service station proposed under one of the alternatives. See
Initial Study, 4.7.
Existence of Public Controversy. Coupled with SubstantialEvidence ora Significant Effect
on the Environment, Underscores the Need for an EIR. Guidelines Section 15064(0(4)
provides as follows:
"The existence of public controversy over the environmental effects of a
project will not reqUire preparation of an EIR if there is no substantial
evidence before the agency that the project may have a significant effect on
the environment."
ATTORNEYS AT LAW
Cypress Redevelopment Agency
April 18, 2002
Page 15
There is no doubt that there exists a public controversy over the Project. In fact,
over six hundred concerned citizens attended the April 8, 2002 Agency meeting regarding the
subject property to express their concerns and opposition to the Project. Also, there exists
sufficient evidence suggesting that the Project will have a significant effect on the environment.
The Agency has received or will receive voluminous testimony from a variety of
noted citizens, City groups, and other experts that the Project will likely have a significant, adverse
effect on the environment, and that the proposed mitigation measures will in no way mitigate the
impacts of the Project. In contrast, the only potential "expert" testimony which supports the
adoption of the Initial Study are the inadequate studies which ignore the real nature of the Project.
Of course, this is not a "marginal" case at all. The Agency's position is entirely
unsupported. However, even if the reports upon which the Initial Study is based could be
considered unbiased expert testimony, the disagreement among experts suggests that the
preparationofanEIRwouldaddressthemanydoubtscreatedbytheProject Infact, somecourts
have stated:
"In such cases, an EIR - an impartial, detailed and factual analysis of the
Project's effect - can perform an invaluable service in aiding the agency's
resolution ora dispute .... 'The very uncertainty created by the conflicting
assertions made by the parties ... underscores the necessity of the EIR to
substitute some degree of factual certainty for tentative opinion and
speculation.'" SeeNo Oil, Inc. v. City of Los Angeles, 13 Cal. 3d 68, 85
(1974); City of Carmel-By-The-Sea v. Board of Supervisors, 183 Cal.
App. 3d 229, 249 (1986); see also Sundstrom v. County of Mendocino,
202 Cal. App. 3d 296, 313 (1988).
I. The Agency Has Unlawfully "Split" The Proiect for Purposes of Environmental Review.
The term "project" has been broadly defined under CEQA. "Project" means "the
whole of an action, which has the potential for resulting in a physical change in the environment...."
Guidelines § 15378(a). All phases of project planning, implementation and operation must be
considered in the initial study for a project. Guidelines § 15063(a)(1). The term "project" refers
to the activity which is being approved and which may be subject to several discretional approvals
by governmental agencies. The term "project" does not mean each separate governmental
approval Guidelines § 15378(c).
Under CEQA, a project must be fully analyzed in a single environmental document.
An agency may not split a project into two or more segments with mutually exclusive
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ATTORNEYS AT LAW
Cypress Redevelopment Agency
April 18, 2002
Page 16
environmental documents. Citizens Assn. for Sensible Development of Bishop Area v. County of
Invo, 172 Cai. App. 3d 151, 165 (1985). Similarly, an agency cannot overlook a project's
cumulative impacts by separately focusing on isolated parts of the whole. McQueen v. Board of
Directors, 202 Cal. App. 3d 1 ~36, 1144 (1988).
In Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo,
supra, a county split a shopping center project into two segments, the first part consisting of
general plan amendments and zoning classifications, and the second part involving a tentative map
approval and road abandonment. The public agency prepared a separate negative declaration for
each project segment. Because the project applicant had requested related discretionary approvals
at different times, the county had failed to understand that it was dealing with a single project. The
court overtured the negative declarations and the project approvals, holding that an agency cannot
prepare mutually exclusive environmental documents for a single project. 172 Cal. App. 3d at
165-67
The project description in a CEQA document must include:
"an analysis of the environmental effects of future expansion or other
action if: (1) it is a reasonable foreseeable consequence of the initial
project; and (2) the future expansion or action will be significant in that it
will likely change the scope or nature of the initial project or its
environmental effects." Laurel Heights I, supra, 47 Cal. App. 3d 376, 396
(1988).
In Laurel Heights I, the Regents proposed the relocation ora biomedical research
facility to a portion of a building located in the residential neighborhood. The EIR for the project
failed to analyze the cumulative impacts of the anticipated full use of the building as a biomedical
facility within a few years. The California Supreme Court rejected the Regent's argument that,
because the proposed expansion had not been formally approved, the EIR's analysis could be
limited to the project in its initial form. Evidence in the record indicated that, despite the lack of
a formal approval, the Regent's ultimate plans were clear. Therefore, because the expansion was
reasonably foreseeable, and was likely to change the scope or nature of the initial project or its
environmental effects, the EIR should have discussed at least the general effects of the reasonably
foreseeable future uses and the anticipated measures for mitigating those effects. Id. at 396-398.
"The fact that precision may not be possible ... does not mean that no analysis is r~quifed." Id. at
399.
Another case that illustrates this principle is Whitman v. Board of Supervisors 88
Cal. App. 3d 397. In Whitman_, an EIR was prepared in connection with an application to drill an
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ATTORNEYS AT LAW
Cypress Redevelopment Agency
April 18, 2002
Page 17
exploratory oil and gas well, which omitted discussion of a contemplated pipeline if the well
proved productive. The court found the EI~R inadequate and explained that "It]he record before
us reflects that the construction of the pipeline was, from the very beginning within the
contemplation of[the] overall plan for the project and could have been discussed in the EIR in at
least general terms." Id. at 414-!5 (emphasis added)
Under the current circumstances, the Project suffers from the same problems that
occurred in Laurel Heights I and Whitman. First, there is absolutely no discussion whatsoever as
to the impacts associated with other projects within the LART Redevelopment Area. Second, the
agreement between the Agency and Costco is completely ignored. There is no discussion of
condemnation activities by the Agency against Cottonwood and the relocation and other impacts
related thereto nor of the proposed Disposition and Development Agreement between the Agency
and Costco, despite the fact that this agreemem would directly affect the Project. In conclusion,
the Agency needs to examine all of these issues in an EIR.
The Initial Study Fails to Have Any Cumulative Analysis of the Project's Environmental
hnpacts.
An envirorLmental document must discuss "cumulative impacts" when they are
cumulatively considerable. Guidelines § 15130(a). However, even if a cumulative impact is not
deemed significant, the document must explain the basis for the conclusion. Citizens to Preserve
the Oiai v. County of Ventura, 176 Cat. App. 3d 421, 429 (1985). "Cumulative impacts" are
defined under the Guidelines as two or more individual effects which, when considered together,
are considerable or which compound or increase other environmental impacts. Guidelines
§ 15355
The Initial Study fails to have any analysis of any potential "cumulative impacts."
Potential related projects for cumulative analysis are simply not listed in the Initial Study.
This comprehensive analysis on related projects and the associated cumulative
impacts must be done before approval of the Project. To ignore the Project's interrelationship,
consistency or inconsistency and impact on the LART Redevelopment Area and other projects
within the area improperly segments the Project from the LART Redevelopment Area and ignores
a proper cumulative analysis under CEQA, all to the detriment of the citizens of Cypress and
proper long-term planning efforts for the LART Redevelopment Area.
Given the related projects and the related environmental analyses that the Agency
is undertaking, the Initial Study should not be approved because further studies are in process and
have been admitted to be necessary. This is especially tree given the substantial public funds which
B-17
ATTORNEYS AT LAW
Cypress Redevelopment Agency
April 18, 2002
Page 18
would be committed to the Project. Furthermore, as discussed above, this type of analysis cannot
be deferred to a later day.
CONCLUSION
Given the foregoing, on behalf of all of our client, we request that the Cypress
Redevelopment Agency reject both any proposed MND hereinafter prepared and the Initial Study,
and that a full EIR be required.
for SHEPPARD, MULL/N, RICHTER & HAMPTON LLP
CC: William W. Wynder, Esq.
Dan Slater, Esquire
Pastor Bayless Conley
Rev. Michael Wilson
Marshall Tanner, Esq.
Andrew J. Guilford, Esq.
Sean O'Connor, Esq.
Maricruz Mendoza, Esq.
Mr. Mel Malkoff
Ms. Mary Urashima
B--18
EXHI]BIT A
The Initial Study is flawed for the following reasons:
Proiect Setting: This section is too vague. The brief narrative fails to give any sense of the
immediately surrounding uses or a larger sense of the nearby community. At the very least, the
Initial Study should have included a land use map labeling the surrounding uses and identifying
sensitive uses in the area that could be affected by the project or uses with special operational
characteristics that may conflict with the Costco operations.
Aesthetics: The Initial Study does not provide a basis for its conclusion that the Project would
be compatible with existing uses surrounding the project site. In addition, it fails to provide for
adequate information regarding the dimensions of the proposed building or any visual aids which
would enable the public to adequately analysis this category.
The Initial Study concludes that impacts related to project construction would
cause temporary aesthetic nuisances. These aesthetic nuisances are determined to be less than
significant because they are temporary. It is erroneous to conclude that impacts are less than
significant base on their duration. In the short-term, aesthetic impacts related to construction
nuisances may be significant.
AirQuality: Thelnitial Study statesthefollowing: "The proposed project is above the thresholds
established by SCAQMD with respect to size, as well as for operational emissions." However,
the Initial Study concludes that the project generated emissions "would not result in significant air
quality impacts on a local or regionai basis". The basis for this conclusion is that EIR's prepared
for the General Plan and the Specific Plan account for site development. This conclusion is
erroneous. In essence, it asserts that as long as a previous EIR identifies a range of potential
impact of future development, no project-specific impacts need be identified. Also, it must be
noted that the previous EIRs did not contemplate a Costco in the subject site. Thus, any Air
Quality assessments made in those documents would not adequately address the impacts
associated with the development of a Costco. Because there would be unavoidable cumulative
air quality impacts, an EIR would need to be prepared.
Air quality information contained in the Initial Study concludes that during
construction~ the demolition, grading and preparation of the site for development could result in
minor short-term air quality impacts. No calculations are provided in order to substantiate the
conclusion of"minor" short-term impacts. The Initial Study fails to state whether the impacts are
significant under the thresholds established in the SCAQMD CEQA Air Quality Handbook.
The Project is required to comply with Mitigation Measure #54 of the Cypress
Business and Professional Center Specific Plan EIR. Since 1990, the requirements of the
SCAQNrkD have undergone major revisions. These requirements should be accounted for as part
of the Walker/Katella Retail Project.
B--19
The Initial Study concludes that air quality impacts related to odors from heavy-
duty equipment exhaust would be less than significant because they would be short term in nature.
It is erroneous to conclude that impacts are less than significant based on their duration. In the
short-term, these air quality impacts may be significant.
Cultural Resources: The Initial Study determines that there will be "no impacts" associated with
archaeological and paleontological resources. However, as these cultural resources are often
located below grade level, this conclusion is correct. It is possible that cultural resources will be
uncovered during the grading and site preparation process. Mitigation measures are, therefore,
required, and the impact cannot be determined to be nonexistent.
Geology: The Initial Study determines that potential geological impacts associated with the
proiect could be potentially significant, unless mitigated. Rather than defining these impacts, the
Initial Study postpones mitigation by requiring that a geologic and soils report be prepared at a
later date. Decision-makers cannot make an informed decision on the Walker/Katella Retail
Project in the absence of this information.
Hazards and Hazardous Materials: The Project Description defined Alternative C as the worst-
case scenario and stated that, therefore, this "alternative" will be discussed in the Initial Study.
However, the discussion under the Hazards and Hazardous Materials section states that potential
impacts associated with a service station (considered only under Alternative A) may occur. These
impacts, however, are not identified, nor is mitigation provided If there are impacts associated
with a service station, they should be identified as part of the Initial Study.
Measure HM1 requires that hazardous waste generated on-site be transported to
an appropriate disposal facility, yet it provides no mention of a monitoring system. If its
implementation cannot be assured, it cannot be stated that it will mitigate potential environmental
impacts
Hydrology and Water Quality: The Hydrology and Water Quality discussion fails to mention, let
alone evaluate, the new regulations that were recently adopted by the Regional Water Quality
Control Board [Santa Ana Region].
Land Use and Planning: The Project is not consistent with the Cypress General Plan (the
"General Plan"), the City of Cypress Zoning Ordinance (the "Code"), the Cypress Redevelopment
Agency Los Alamitos Race Track and Golf Course Redevelopment Project Redevelopment Plan
(the "Redevelopment Plan") or the Cypress Business and Professional Center Specific Plan (the
"Specific Plan"). The General Plan, the Code, the Redevelopment Plan and the Specific Plan shall
be collectively referred to herein as the "Plans."
B-20
The General Plan
Consistency with Land Use DesignationZ The Project is designated Specific Plan
under the General Plan. Because the Project is not consistent with the Specific
Plan, as explained below, it is not consistent with the General Plan.
Consistency with Goals and Policies. Due to the fact that the Agency has failed to
make available the General Plan, among other documents, an adequate analysis of
the goals and objectives of the General Plan is impossible. Thus, we will provide
an analysis of such consistency when the General Plan becomes available to us.
The Initial Study contains blatantly false information in the section discussing the
supposed consistency with the General Plan. The Initial Study boldly states,
"While specific users for the proposed retail space have not been identified at this
time, it is the intent of Walker/Katella Retail Project to attract high quality
businesses to the City." Initial Study, Appendix A, 1.2.2. The truth is that the
Agency has already entered into negotiation agreements with Costco in connection
with the Project and chose the Costco project to the exclusion of all others on
April 8, 2002 (see discussion above). In fact, the Agency has already officially
adopted Costco's development proposal for the Project.
Consistency Conclusion. The Project is not consistent with the General Plan
because the anticipated use for the Project is not consistent with the permitted uses
allowed under the Code and Specific Plan. We are unable to comment on the
Project's consistency with the goals, objectives, and policies of the General Plan
for the reason stated above.
The Specific Plan and Code.
Consistency with Land Use Designations. Through the Initial Study, the Agency
claims that the Project is a permitted use, subject to a CUP, under Section 11 of
a previous version of the Code ("Old § 11"). When the Code was amended, Old
§ 11 became new Section 13 ("New § 13") of the Code. Thus, the Agency argues
that New § 13 (Industrial Zones), which is primarily concerned with Business Park
and Industrial Light zoning designations, controls when analyzing permitted uses
for the Project, despite the fact that the subject property is zoned Planned Business
Park, and not Business Park, under the Code. The Initial Study offers no
explanation for this contradiction.
The current Code was adopted in May 11, 1998. New Section 11 ("New § 11 ")
is now concerned with "Commercial Zones." Office Professional Zone OP- 10000
is one of the zoning designations under Commercial Zones and is consistent with
the Specific Plan's designation of Professional Office for the subject property.
13--21
Retail use is not a permitted use under the Office Professional Zone designation.
The City's decision to move the Industrial Zones section from Old § 11 to New §
13 of the Code makes sense because the Industrial Zones section is not consistent
with the Specific Plan's Professional Office designation. Had the City intended
otherwise, it would have amended the Specific Plan to reference New § 13. The
City did not do this because the reference to New § 11 (Office Professional Zone)
of the Code in the Specific Plan made sense and was consistent with the Specific
Plan's designation of Professional Office for the subject property. Thus, there was
simply no need to amend the Specific Plan.
As noted above, the subject property is designated Planned Business Park
on the Zoning Map and under the Code. The Plam~ed Business Park
permitted uses are covered in § 15 of the Code. Retail is not a permitted
use under this designation.
Close study of the Agency's explanation in the Initial Study regarding land
use consistency reveals the inherent weakness of the claim. The Agency
would like the public to focus on Old § 11 (New ~ 13) for validation of its
unlawful Project. However, the Agency's argument simply does not work.
Close examination of New § 13 of the Code reveals that the uses described
in that section are not meant to apply to the subject properly. The uses
permitted under New § 13 are specific to the Business Park zoning
designation, not the Planned Business Park zoning designation which is the
correct zoning for the subject property. New § 13 is primarily concerned
with the zoning designations of "Business Park Zone BP-20000" and
"Industrial Light Zone ML-10000." These designations are inconsistent
with both the Specific Plan's Professional Offices designation and the
Coders Planned Business Park designation. Why would the 1998 Code
bother zoning the subject land Planned Business Park if, as the Agency
argues, the Specific Plan really meant to point to Old § 11 of the Code
which is primarily concerned with the Business Park zone, not the Planned
Business Park designation.
Moreover, in order for the Agency's argument to have some merit, we
would have to completely ignore both the Zoning Map which designates the
subject property as Planned Business Park and § 15 of the Code which
directly addresses the uses permitted under the Planned Business Park
designation. The Agency has failed to explain why § 15, which does not
permit retail use, should be completely overlooked. The Agency has no
way of explaining § 15 away. Directing the public's attention to the old
Code will not help it, in this respect. The Agency is simply hoping that no
B-22
one will notice that the Code has a section specifically addressing the
perrmtted uses for the Planned Business. Park zone.
New ~ 11 of the Code, as itnow stands, and § 15 of the Code go hand-in-
hand and are completely consistent with the General Plan, the
Redevelopment Plan and the Specific Plan. Interpreting the Code and the
Specific Plan as they no~v stand is logical· There is no need for convoluted
arguments to explain the permitted uses for the subject property. There is
no need to completely ignore certain sections of the Code. If we read the
Specific Plan (Professional Offices), New § 11 (Office Professional Zone),
§ 15 (Planned Business Park Zone) and the Zoning Map (Planned Business
Park), as they pertain to the Property, we can only come to one conclusion
·.. retail is not a permitted use under any of these documents. Thus, the
Project is not consistent with either the Specific Plan nor the Code.
Consistency Conclusion. The Project is not consistent with either the Specific Plan
nor the Code. Retail, the anticipated use of the Project, is not a permitted use for
the subject property.
The Redevelopment Plan·
Consistency with Goals. The Project is incgnsistent with the following specific
redevelopment objectives of the Redevelopment Plan:
Objective B: "The development ofproperty within a creative, coordinated
!and use pattern of residential, commercial, open space, and public facilities
~n the Project Area consistent with the goals, policies, objectives,
standards, guidelines and requirements as set forth in the adopted General
Plan and Zoning Ordinance."
This objective requires that all projects within the project area be
consistent with the General Plan and the Zoning Ordinance. As discussed,
above, this Project is inconsistent with those plans.
Objective E: "The development of a more efficient and effective
circulation system·"
Because the Initial Study fails to describe the Project as a Costco, the
circulation system has not been adequately analyzed. It is impossible to
assess how the circulation system will be affected by the Project. Thus, the
Project, does not promote a more efficient and effective circulation system
B-23
Proposed Actions under the Redevelopment Plan. The Project is contrary to the
following proposed action under the Redevelopment Plan:
"Extending reasonable preference to persons who are engaged in business
in the Project Area to.reenter businesses within the Project Area provided
that said business reehtry conforms with this Plan, the General Plan, and
the Municipal Code." § 301
The analysis of the Project did not take into account the participation
opportunities extended to the owners of the subject site. There was no
discussion in the Initial Study regarding the relationship between the
Project and any owner development proposals. Omission of this analysis
directly contradicts the mandates of the Redevelopment Plan.
Project Is Inconsistent With Permitted Uses. The land use permitted by the
Redevelopment Land for a particular parcel is the land use permitted by the
General Plan, the Zoning Code, the Specific Plan, and all applicable laws, for such
parcel. As discussed above, the proposed Project use in not permitted under the
Plans.
Consistency Conclusion. Because the Project is not consistent with either the
General Plan nor the Specific Plan, as discussed above, the Project does not
conform to, is not consistent with, and does not implement the goals of the
Redevelopment Plan. Furthermore, the Project is inconsistent with two of the
objectives set forth in the Redevelopment Plan.
Noise: The Initial Study states that "... the proposed project would create on-site noise; however,
the noise levels are not considered to be significant." The Initial Study fails to explain how this
conclusion was reached.
Population and Housing: The Initial Study concludes that "...the increase in employment
opportunities would not result in significant population growth impacts within the City of
Cypress." The Initial Study states that the project is to be defined to include its secondary effects.
Retail development often relies on part-time employees who are paid minimum wage (see Costco
communication to the Agency which states that hail of their employees will be part time), or close
to mirdmum wake salaries. Future employees may, in fact, relocate to the City of Cypress to
reduce their commute costs. These indirect effects of the project have to be evaluated.
Public Services: Fire protection and police protection impacts of the project are determined to
be "less than significant." The rationale for this conclusion is that the increase in demand f~or these
public services was "... addressed in the EIRs for both the General Plan and the Cypress Business
and Professional Center Specific Plan." Therefore, no mitigation measures are required.
However, the project must be evaluated on its own merits. The Agency cannot blindly rely on past
B-24
El2~s where the Project that will be ultimately built will have significant environmental impacts that
are greater than those analyzed in past EIRs.
Under the fire protection discussion, it is stated that the Orange County Fire
Authority will "...review and comment on the site plan prior to project approval." The Initial
Study fails to mention whether the Orange County Fire Authority was contacted as part of the
preparation of the Environmental Assessment.
The analysis on schools determines that no mitigation measures are required
because payment of state-mandated school impact fees would "... offset any cumulative effects of
employees' children who may attend the public schools in Cypress." However, the Agency fails
to address the secondary or indirect effects of future employees moving to the City of Cypress.
Furthermore, no information is provided as to xvhether the relevant school districts were consulted
regarding the determination that school impacts would be less than significant.
Transportation/Traffic: The transportation/circulation discussion identifies six intersections as
being selected for analysis. The Initial Study fails to discuss how these particular intersections
were selected to be part of the analysis. No reason is given as to why the intersection of
Bloomfield Street and Katella Avenue was omitted from the analysis, especially since the other
three intersections that surround the project site were included. Also, intersections selected for
impact analysis were limited to those that occur in the City of Cypress. Since the project directly
abuts the City of Los Alamitos, intersections within that City's jurisdiction should also have been
included. The list should include all intersections for which the project could potentially have a
significant impact on transportation/traffic. The analysis failed to do so.
Existing traffic counts were taken on a Wednesday and a Thursday. As most
retail/commercial traffic would occur on the weekends, the analysis underestimates actual traffic
impacts related to the project.
Exhibit 7, "Existing Peak Hour Traffic Volumes", does not account for any traffic
leaving the project site at its northern boundary with Walker Street. This mid-block link should
be analyzed.
Page 57 states that a "... detailed discussion of trip generation estimates for each
of the study scenarios is contained in the Phase I report." This reference to another document
is inadequate because the document is not properly described. It is not dated and it does not state
who prepared the report. In addition, the Phase I report was not listed in the References section
of the Initial Study.
Page 57 states the following: "Comparing the three Retail alternatives, Alternative
A, the Discount Club and Gas Station alternative... ". The identification ora discount club as part
of Alternative A is contrary to the project description that provided information on generic retail
and commercial development. The Agency, for the first time, is admitting that Alternative A
B-25
corresponds with a Discount Club. However, the Agency fails to clarify that fact that the Discount
Club is a Costco.
Table 8, Summary of Trip Generation for Project Alternatives, shows that the PM
peak hour traffic for Alternative C results in 738 trips. Table 8 also identifies the PM peak hour
traffic related to the business park development that was included in the Cypress Business and
Professional Center Specific Plan (upon wi'rich the City's General Plan traffic model is based), as
resulting in 453 trips. The increase in 285 trips, which is over a 60% increase, was not accounted
for in the traffic model upon which the General Plan and therefore, the Specific Plan is based.
Page 58 states that the trip distribution assumptions for the Business Park were
modified "slightly" for the retail alternatives. However, the Initial Study fails to detail what the
basis for this "slight" modification was. Trip distribution patterns may be significant different for
these two land uses.
Table 10, Summary of Intersection Operations - Buildout Conditions With and
Without Proposed Project, shows that all of the project alternatives result in a decrease in the PM
peak hour level of service at Katella Avenue and Walker Street from "D "to "E". The
"recommended", not required, improvement is to add a westbound right-turn lane at this
intersection. No information on whether there is right-of-way available to implement this
improvement or when this improvement will occur is provided. The Agency is improperly
deferring the analysis of this mitigation action to a later date.
Further discussion regarding the deficiencies associated with the Initial Study's
traffic analysis is found in a letter dated April 18, 2002, from Linscott, Law, & Greenspan,
Engineers to Mr. Mel Malkoff, attached hereto as Exhibit B.
The Initial Study determines that the Project would not result in inadequate parking
capacity, and therefore, no mitigation is required. This bold conclusion is reached despite the fact
that there is no defined project against which to determine parking requirements.
Utilities and Service Systems:
Project impacts with respect to wastewater are not quantified; however,
conclusions are reached regarding the projects impacts. Conclusions are being reached without
accurate data to base them on.
Sewage system mitigation measures are provided; however, these mitigation
measures are based on the project's contribution to the system, and do not reflect cumulative
impacts.
Mitigation Measure UTIL8 is "recommended" to "ensure that water impacts
remain at or below existing levels." However, this mitigation measure is inadequate because it
B--26
does not accomplish anything. The text of the mitigation measure simply states that voluntary
water conservation will be "encouraged."
The Initial Study states that solid waste impacts of the proposed project on landfill
capacity is a "potentially significant impact unless mitigated." However, the conclusion is then
that "no mitigation measures are required." The text then goes on to list several mitigation
measures that have no relationship to ensuring that the identified potentially significant impact is
mitigated The potentially significant impact was simply never analyzed.
Mandatory Findings of Significance: With respect to the Project, the Initial Study concludes that
there "...would be no impact that would be individually limited, but cumulatively considerable
beyond those previously analyzed in the Cypress General Plan EIR". This conclusion is inade-
quate for the following reasons: 1) cumulative analyses were not conducted for any impact
except traffic; and 2) the findings of the traffic analysis show a 60% increase in PM peak hour
traffic volumes above those contemplated by the Cypress General Plan.
B-27
EXItlBIT B
(see attached letter)
B-28
ENGINEERS
Philip M, Linscot~ P.E. (I 924 2000)
ENGINEERS & PLANNERS · TRAFFIC, TRANSPORTATION, PARKING
1580 Corporate Ddve, Sui[e 122 · CosLa Mesa, California 92626
April 18, 2002
Mr. Mel Malkoff
MALKOFF AND ASSOCIATES
18456 Lincoln Circle
Villa Park, California 92667
LLG Reference; 2.02,2344.1
SUBJECT:
TRAFFIC ENGINEERING REVIEW OF TI-IE TRAFFIC IMPACT
ANALYSIS FOR TIlE PROPOSED WALKEP./KATELLA
RETAIL DEVELOP1ViENT IN THE CITY OF CYPRESS
Cypress, California
Dear Mr. Malkoff:
Linscott, Law & Greenspan, Engineers (LLG) is pleased to submit the following review of the
Traffic Impact Analysis, prepared by Kimley-Hom and Associates, Lac., dated March, 2002, for
the Proposed Walker/Katella Retail Development project The proposed project site is located
north of Katella Avenue and west of Walker Street in the City of Cypress. The following
comments are provided:
Our review was solely based upon the generic description of the uses without the benefit
of any specific user that may have a greater or lesser trip generation potential because of
the type operation, hours of operation and rammer of use.
Based on our review the traffic impact study, the traffic forecasting methodology is
acceptable and the analysis is accurate regarding the peak hotu- traffic impact of the
project on existhag conditions and a long-term (General Plan Build-out) basis, with the
exception of the analysis prepared for each alternative at the intersection of Walker Street
and Cerritos Avenue.
Project Study ~4rea: It is not clear how the list of key study intersections and project study
area was detem, ined. The six intersections that were evaluated are all located witkin the
City' of Cypress. We suggest that the "1% measurable impacX criteria" as defxned in the
Cour~ty of Orange Trat~5portat~on [mplementation Manual (TIM) guidelines be applied to
the conftrrn thc sphere of impact/study area is adequate.
Pasadena (,26 796 2322 , San Diego- 619 299-~090 · Las Vegas - 702 451-1920 , Founded 1966 · An LG2WB Company
Mr. Mel Malkoff
MALKOFF & ASSOCIATES
April 18, 20O2
Page 2
Bloomfield Street at Katella Avenue: Given the trip generation of each alternative and
project trip d/str/butSon, we recommend that the intersection of Bloomfield Street and
Katella Avenue, witkin the City of Los Alamitos be analyzed. Tliis intersection currently
operates at LOS E (ICU = 0.95) during the PM peak commute hottr and with up to 20%
of retail project trips assigned to Katella, west of the project site, it is possible that the
Bus/ness Park Alternative or either of retail project alternatives will have an adverse
impact on the operating conditions of this intersection.
g/alker Street at Cerritos Avenue: The intersection of Walker Street and Cerritos Avenue
currently operates as a split-phase traffic signal on Walker Street. Review of the
ICU/LOS calculation sheets included in Appendix B of the traffic study indicates that the
cun'ent "split-phase" signal operation is not accurately represented in the intersection
capacity analysis prepared for this study intersection. For intersection approaches with
split phasing, the approach movement with the greatest V/C ratio is considered to be
critical.
As such, the addltton of westbound right-turn, lane on Cerritos Avenue recommended to
mitigate the impact of build-out traffic as well as the addition of traffic generated by any
o£ the development alternatives will not be sufficient to improve projected adverse PM
peak how service levels to the City's desired LOS D standard.
Based on our evaluation of"build out plus project traffic" conditions, the Cerdtos/Walker
intersection is forecast to operate at LOS E or F with the implementation of recommended
mitigation measures (See Table 1, attached to this let,:er report).
We appreciate the opportunity to provide this review for Malkoff & Associates. If you have any
questions regarding this letter or need additional traffic eng/neering support, please call me at
(714) 641-1587.
Sincerely,
LINSCOTT, LAW, & GREENSPAN~ ENGINEERS
Richard E. Barretto, P.E.
Associate Principal
Attachment
No,
Exp,
B-30
ENGINEERS
TABLE
SUMMARY OF INTERSECTION OPERATION
AT THE INTERSECTION OF CERRITOS AVENUE AND WALKER STREET
VCITIt R-ECOM[1V[ENDED IMPROYEMIgNTS~
(1) ' (2)~ ;:- : (3):
Build-OUt:~;ith
Buila.ont .Build-Out ~ith :i: ?vdlee:~.::
without · Project .. : Aiternati~e;~
~ime ' Pro~eet ': ~lter~fii{ve~ : Trfif~caa~
Project Alternative/ Perio~ Traffic : T~affi~ : ~p~d~emenf2
Traffic., S~enarioi.. ICU LOS ICU.: ::.LOS ~ ~tC~:~ ~:LOS
· Build-out Wifl: Bus~s ~ 0.737 C 0.803 C 0.792 C
P~k Altemafive PM 1.114 F 1.231 F 1.116 F
· ~uild-out With Retail ~ 0.737 C 0.751 C 0.741 C
__ ~lematlvc A PM 1.114 F 1.143 F 1.072 F
· Build-oat With Retail ~ 0.737 C 0.750 C 0,740 C
~temative B PM ~.114 F 1.150 F 1.079 F
Build out With Rct<l AM 0.737 C 0.750~ C 0.741 C
Alternative
C
PM 1.114 F 1.152 ~ F 1,081 F
ICU/LOS calculation accom~ts for split-please operation on Walker Street, Mifigahon Measure consists o£addLng
a westbound fight-turn lane on C~rritos Avenue.
B-31
CITY
Ronald Bates
Council Members:
Alice B Jempsa
Arthur DeBolt
City Manager:
Robert C. Dominguez
3T91 Kotella Avenue
Los Alamitos, CA
90720-5600
Telephone:
(562) 431-3538
FAX (562) 493 1255
www cf Los-Alamitos CA US
~ RECYCLABLE
OF LOS ALAMITOS
April 18, 2002
BY FACSIMILE AND U.S. MAIL
Ted J. Commerdinger, AICP
Assistant Community Development Director
City of Cypress Community Development Department
5275 Orange Avenue
Cypress, CA 90630
Re: Walker/Katella Retail Project
Dear Mr. Commerdinger:
We appreciate the opportunity to comment on the Initial Study and Envirommental
Checklist prepared for the Walker/Katella Retail Project. We have limited our
comments to those issues that are of principal concern to the City of Los
Alamitos. In particular, we are concerned that the proposed Retail Project is not
consistent with the Cypress Business and Professional Center Specific Plan and
will have both direct and cumulative impacts beyond what was contemplated in
the 1990 E~R for the Specific Plan. Consequently, the Project has the potential to
violate the terms and conditions of the Cypress Business and Professional Center
Traffic Mitigation Agreement our cities entered in 1990: We offer these
comments with the hope and expectation that our concerns can be addressed in
the cooperative manner that has characterized the historic relationship between
our cities.
Lack of Notice
We first express our disappointment that the Notice of Determination for the
~mitial Study and proposed Mitigated Negative Declaration was not sent to the
City of Los Alamitos. As you know, Public Resources Code § 21092.4 requires
that notification and copies be provided to those agencies and jurisdictions that
will be affected by the proposed action. Fortunately, a concerned citizen brought
to our attention the posted notice on the site, and we xvere able to purchase a copy
of the document for $25.00. Unfortunately, our ability to evaluate particular
traffic impacts has been impaired by the lack of adequate notice of the proposed
Mitigated Negative Declaration. We request that Los Alamitos be notified of all
future action concerning this Project or any other part of the Cypress Business and
Professional Center. ~ '
Potential Land Use _Impacts '
Appendix A purports to analyze the Project's consistency with the Cypr'ess
General Plan, the Cypress Business and Professional Center Specific Plan, and the
Cypress Redevelopment Plan. Appendix A should also recognize and show
consistency with the Traffic Mitigation Agreement referenced above. While this
B-32
Ted J. Commerdinger, AICP
Assistant Community Development Director
April 18, 2002
Page 2 of 2
Agreement is referenced as a mitigation requirement in the traffic and circulation
section of the Study, there is no discussion of whether the Project complies with
the limitations set forth in that Agreement.
While the Initial Study concludes that the Project is consistent with the Specific
Plan, the discussion does not reflect the basis for this conclusion. As recognized
in the Study, Planning Area 5 of the Center is designated for Professional Office
development "intended to accommodate the development of professional and
administrative offices that complement the Hotel Center within the Specific Plan
area." Appendix A, p. 6. Although the underlying zoning ordinance technically
allows many different kinds of uses, either with or without a conditional use
permit, the Initial Study does not address how the proposed Project is consistent
with the overall purpose and intent of the Specific Plan. First, it is telling that all
of the uses contemplated by the Project require conditional use permits under the
Specific Plan. Second, the Initial Study fails to discuss the impacts associated
with the replacement of professional office space with a large "discount club"
retailer. As referenced above, there is no discussion of whether the "big box"
retail uses contemplated by the Project would "complement the Hotel Center
within the Specific Plan area." Both with respect to this Project, therefore, as
well as cumulatively, the implementation of a "big box" retail project instead of
the forecast office uses may result in an unbalanced plan that could disrupt the
biability of the hotel use already under construction. We note that the Specific
Plan goals of golf course revitalization and hotel use were planned to be
supported by the potential customer base associated with the development
contemplated by the Specific Plan. Similarly, development of the hotel was
induced by the stated goals of the Specific Plan for Planning Area 5.
The Proposed Project is also inconsistent with the alternatives discussion set forth
in the 1990 CBPC EIR. The Project described in that EIR is laid out in the
Specific Plan and expressly provided for professional offices in Planning Area 5.
The EIR expressly rejected intensive retail development based on the concern that
such development "does not meet the basic project objectives for revitalization of
the golf course, professional office, mixed-use business park and hotel uses."
EIR, p. 170. Nevertheless, despite the plain intent of the CBPC EIR and the
Specific Plan, the Project was narrowly defined here to call only for "big box"
retail projects. Thus, the narrow definition adopted in the project description has
de facto prevented the consideration of other viable projects, including projects
more consistent with the intent of the CBPC EIR and the Specific Plan.
Traffic and Circulation Impacts
We first observe that, contrary to the Initial Study's conclusions, the 1990 EIR
acknowledges that traffic, air quality, and noise impacts associated with retail
projects are far greater than those associated with professional office
development. EIR, p. 169. Further, the Initial Study does not adequately discuss
circulation impact from the Project, which potentially var/es from the circulation
patterns identified in the Specific Plan. Notably, the Traffic Mitigation
9--33
Ted J. Commerdinger, AICP
Assistant CommunityDevelopment Director
Aphl18,2002
Page3 of 3
Agreement not only caps traffic volume, but was also intended to require
circulation solutions that reduce impacts on Los Alamitos. These issues are
critical in that the City of Los Alamitos would prefer access to the Project to be
directed through Walker Street and to route traffic out of the Project to arterials
other than Katella. Without further analysis of circulation, the impacts of the
potential distribution of traffic (access/parking) cannot be evaluated.
The Initial Study also does not adequately identify traffic generation rates for the
various uses in terms of vehicles per 1000 square feet of development, for
comparison against data from the original ErR. Further, the standards used in the
Study are not adequate to quantify traffic impacts within the highly-developed
Southern California region. Appendix A evaluates Retail Alternative A (the
recommended alternative) under ITE standards, which are standards based upon
national traffic data. While ITE data may provide adequate statistics for general
comparisons, we recommend that the same analysis be conducted using
SANDAG standards, which are based upon traffic data drawn specifically from
Southern California. Moreover, while it is public knowledge that Costco is the
intended retailer for the Project, the Initial Study does not appear to have made
any inquiry regarding Costco-specific traffic data. Costco is widely recognized as
one of the highest intensity retail uses ~vithin the Southern Califorrfia market and
will generate substantially more traffic than other retail uses, including other
discount clhb uses. Costco has numerous locations in southern California that
could provide a more precise picture of the traffic situation for the Alternative A
scenario. Further, it is our perception that a Costco with a gasoline station is a far
greater traffic generator than the estimates provided for by the combined ITE
standards.
The Initial Study does not appear to consider consistency with the Specific Plan
for the added conditions and considerations that are required under Section 7,
"Application." Specific Plan, p. VI-12.
Appendix B, Traffic Impact Analysis (page 31), fifth paragraph...appears to
transpose figures for Alt. A and Alt. C.
Cumulative Impacts
The concerns identified above about potential direct impacts apply equally to the
Project's cumulative impacts. We were surprised to see that the Initial Study
concludes that there is little potential for cumulative impacts, especially in light of
the change from the contemplated use under the Specific Plan and the high
volumes of traffic generated by discount clubs in general, and particularly by
Costco. As explained above, we are concerned that the synergy of development
contemplated by the Specific Plan will be undermined by a separate, unitary retail
commercial development of little interest to business professionals, including
travelers who are intended to use the hotel services.
B-34
Ted J. Commerdinger, AICP
Assistant Community Development Director
April 18, 2002
Page 4 of 4
We also believe that the Project will radically accelerate traffic impacts and
threaten the limits imposed under the Traffic Mitigation Agreement, assuming
they are not already exceeded. Development of these 18 acres in this intense
manner leaves few options for development of other parcels under the governing
documents, including the CBPC EIR, the Specific Plan and Traffic Mitigation
Agreement. Assuming Cypress intends to encourage professional office
development on the remaining portion of Area 5, the Costco traffic impacts will
pose cumulative impact problems for that future development.
In particular, the buildout figures assumed in the Study already show
unacceptable levels for at least one intersection. We remind you that "buildout" is
a relative term based on development plmmed within Cypress alone that may not
accurately reflect actual future uses or impacts and may not adequately account
for impacts at regional arterials from neighboring jurisdictions. In fact, virtually
every intersection along Katella has already been affected by development of the
Bixby Ranch project. The 1990 EIR recognized the potential impacts on
intersections farther along Katella, including the intersections at Los Alamitos and
Bloomfield. There is no indication in the Initial Study that these regional
developments have been considered for the cumulative impacts analysis.
We remain ready and willing to discuss these and other impacts with you. We
hlso ask that you include us in the future as an affected jurisdiction for any action
taken under the Specific Plan. And, when revisions and comments to the Initial
Study have been addressed and completed, we would like to receive a copy.
Please address the copy to John Godlewski, AICP, Cormnunity Development
Director, at the above address. Should you have any questions regarding this
response please do not hesitate to contact me or Mr. Godlewski.
Sincerely,
John Godlewski, AICP
Community Development Director
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(213) 617-5565
j cur tis~sh eppar dmullLn corn
ATTORNEYS AT LAW
FORTY-EIGHTH FLOOR
333 SOUTH HOPE STREET
LOS ANGELES, CALIFORNIA 90071-1448
TELEPHONE 213'620'1780
FACSIMILE 213'620' 1398
WWW.SHEPPARDMULUNCOM
May 20, 2002
2002
Cypress Redevelopment Agency
5275 Orange Avenue
Cypress, California 90630
Attn: Mr. Ted J. Commerdinger,
Assistant Community Development Director
HAND DELIVERED
Cottonwood Christian Center's Obiections to the Walker/Katella Retail
Proiect Mitigated Negative Declaration dated April 29, 2002 and Initial
Study/Environmental Checklist dated March 29, 2002.
Cypress Redevelopment Agency:
We represent Cottonwood Christian Center ("Cottonwood"), the owner of six
individual parcels (the "Cottonwood Property") located within the LART Redevelopment Project
Area (the "LART Redevelopment Area"). We write to set forth Cottonwood's comments and
objections to the Walker/Katella Retail Project Mitigated Negative Declaration ("MND") dated
April 29, 2002 and Initial Study/Environmental Checklist dated March 29, 2002 ("Initial Study").
Due to the fact that numerous flaws are contained in the MND, all of which are discussed below,
the Cypress Redevelopment Agency ("Agency") is compelled to start its process over again with
the preparation of a new MND. Even though the current MND is fatally flawed and wholly
lacking of adequate analysis and information, it is apparent that the Agency must prepare, and we
hereby request that it prepare, a full Environmental Impact Report ("EIR") under the California
Enviromnental Quality Act ("CEQA") for the Walker/Katella Retail Project (the "Project").
In addition, we hereby object to the manner in which the City has handled the public
review process in connection with the MND. On or about March 29, 2002, the City made
available for public review an alleged mitigated negative declaration. However, only the Initial
Study was made available for public review. In fact, a negative mitigated declaration had not been
prepared at that point in time. Our comment letter to the Agency dated April 18, 2002, pointed
out this fatal flaw, among other things, and the Agency responded by circulating the MND and
recirculating the March 29, 2002 Initial Study without any changes. The Initial Study
recirculation, without any changes or any response to comments received during the initial public
comment period, unnecessarily confuses the public. For example, the Agency failed to clearly
note on its April 29, 2002 Amended Public Notice of Availability that the Initial Study was being
circulated for a second time. Similarly, the Agency failed to mention that the Initial Study being
LOS ANGELES · SAN FRANCISCO · ORANGE COUNTY . SAN DIEGO . SANTA BARBARA · WEST LOS ANGELES · DEL MAR HEIGHTS
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 2
circulated was identical to the one previously circulated. Furthermore, the Agency does not alert
the public to the fact that it did not cure any of the Initial Study deficiencies commented upon
during the previous public comment period. In fact, the Agency does not even acknowledge the
fact that it received any comments.
On or about January 15, 2002, Cottonwood filed a Verified Complaint and Verified
Petition for Peremptory Writ of Mandate against both the Agency and the City of Cypress in both
the United States District Court, Central District of California and the Superior Court of the State
of California for the County of Orange (collectively, the "Complaint and Petition"), for violations
of, among other things, the United States and Califurrfia Constitutions, the Religious Land Use and
Institutionalized Persons Act and other laws, including the California Environmental QCality Act
and California's Community Redevelopment Law.
The adoption of the MND by the Agency is merely another unlawful act in
furtherance of the violations set forth in the Complaint and Petition. As such, each of
Cottonwood's prior objections and the City's and Agency's violations of the United States and
California Constitutions and other laws as stated in the Complaint and Petition are hereby restated
and incorporated herein by this reference as though set forth fully herein.
THE MND IS INADEQUATE AND IS NOT IN COMPLIANCE WITH THE,
CALiFORNIA ENVIRONMENTAL QUALITY ACT; AN ENVIRONMENTAl ,
IMPACT REPORT MUST BE PREPARED.
A. The A~enc¥ Must Prepare and Certif~ an EIR for the Proposed Project.
1 Overview of CEQA. CEQA was enacted in response to the well-documented
failure of state and local governmental agencies to consider fully the environmental implications
of their actions. Selmi, The Judicial Development of the California Environmental Quality Act,
1 § U C.D L Rev. 197 (1984)? The California Supreme Court has repeatedly affirmed that CEQA
must be interpreted liberally "to afford the fullest possible protection to the environment within the
reasonable scope of the statutory language." Laurel Heights Improvement Assn. v. The Regents
of the University of California (*'Laurel Heights I"), 47 Cal.3d 376, 390 (1988), quoting from
Friends of Mammoth v. Board of Supervisors, 8 Cal3d 247, 259 (1972).
The Office of Planning and Research has promulgated guidelines to implement CEQA.
14 Cal. Code of Regs. § 15000 et seq. (the "Guidelines").
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ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 3
Three of the central purposes of CEQA are to (i) inform governmental decision
makers and the public about the potential significant environmental effects of a proposed project,
(ii) identify ways that environmental damage can be avoided or significantly reduced and (iii)
disclose to the public the reasons why a governmental agency approved the project in the manner
the agency chose ifsignificant environmental effects are involved. Guidelines§§ 15002(a)(1),(2)
and (3).
The EIR is the heart of CEQA. Guidelines § 15003(a). As noted by the California
Supreme Court, the EIR:
"is the primary means of achieving the Legislature's considered declaration
that it is the policy of this state to 'take all action necessary to protect,
rehabilitate, and enhance the environmental quality of the state.' (§ 21001,
subd. (a).) ... Because the EIR must be certified or rejected by public
officials, it is a document of accountability. If CEQA is scrupulously
followed, the public will know the basis on which its responsible officials
either approve or reject environmentally significant action, and the public,
being duly informed, can respond accordingly to action with which it
disagrees. [Citations]. TheEIRprocessprotectsnotoniytheenvironment
but also informed self-government." Laurel Heights I, 47 Cal.3d at 392.~-/
CEQA provides for a three-tiered environmental analysis. First, the lead agency
determines whether the project is exempt from CEQA review. Guidelines § 15061. If the lead
agency concludes that the project is not exempt from CEQA, the lead agency then conducts an
initial study to ascertain whether to prepare an EIR or a negative declaration in connection with
the project. The lead agency may only adopt a "negative declaration" or a "mitigated negative
declaration" when the initial study concludes that "It]here is no substantial evidence ... that the
project may have a significant effect on the environment" and further CEQA review is unnecessary.
An EIR serves "to demonstrate to an apprehensive citizenry that the agency has in fact
analyzed and considered the ecological implications of its action." No Oil, Inc. v. City of
Los Angeles, 13 Cal.3d 68, 86 (1974). An EIR also allows the public to "determine the
environmental and economic values of their elected and appointed officials, thus allowing
fur appropriate action on election day should a majority of the voters disagree." People
v. County of Kern, 39 Cal. App. 3d 830, 842 (1974) "The report ... may be viewed as an
environmental 'alarm bell' whose purpose it is to alert the public and its responsible officials
to environmental changes before they have reached ecological points of no return."
County ofln¥o v. Yorty, 32 Cal. App. 3d 795, 810 (1973)
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 4
Cal. Pub. Res. Code § 21080(c)(1)fi-/ As further explained by 9 15070 of the Guidelines, "Ia]
public agency shall prepare... [a] mitigated negative declaration for a project subject to CEQA
when... (b) the initial study identifies potentially significant effects, but (1) revisions in the project
plans or proposals made by, or agreed to by the applicant before a proposed mitigated negative
declaration and initial study are released for public review would avoid the effects or mitigate the
effects to a point where clearly no significant effects would occur..."
CEQA applies only to "discretionary projects." Cal. Pub. Res. Code 9§ 21080(a)
and (b)(1); Guidelines 9 15268(a). A discretionary project is one which "requires the exercise of
judgment or deliberation when the public agency or body decides to approve or disapprove a
particular activity, as distinguished from situations where the public agency or body merely has to
determine whether there has been conformity with applicable statutes, ordinances, or regulations."
Guidelines 9 15357.
2. Fair Argument Test Requires an EIR. If the administrative record contains
substantial evidence that any aspect of a Project "may have a significant effect on the
environment," the lead agency must prepare an EIR. Cal. Pub. Res. Code § 21100; Guidelines
§9 15002(0(1), 15063(b)(1) and 15064(a)(1).-4/ Put another way,
"... if a Lead Agency is presented with a fair argument that a project may
have a significant effect on the environment, the Lead Agency shall prepare
an EIR even though it may also be presented with other substantial
evidence that the project will not have a significant effect (No Oil, Inc. v.
City of Los Angeles (1974). 13 Cal. 3d 68)." Guidelines 9 15064(g)(1).
(emphasis added). See also Friends of"B" Street v. City of Hayward. 106
Cal. App. 3d 988, 1002 (1980).
A trial court is entitled to independently review an agency's determination that there
was no evidence upon which a fair argument could be made that an EIR xvas required. As the
court stated in Friends of "B" Street, supra:
"if there was substantial evidence that the proposed project might have a
significant environmental impact, evidence to the contrary is not sufficient
For a discussion of "mitigated negative declarations", see below.
Professor Selmi pointed out that one of the reasons that courts are permitted to closely
examine CEQA decisions is that public agencies "are subject to political pressure to avoid
the full EIR process" which is certainly the case here. Selmi, supra, at 227.
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A T T O R N E Y $ AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 5
to support a decision to dispense with preparation of an EIR and adopt a
Negative Declaration, because it could be 'fairly argued' that the project
might have a significant environmental impact. Stated another way, if the
trial court perceives substantial evidence that the project might have such
an impact, but the Agency failed to secure preparation of the required ELK,
the Agency's action is to be set aside because the agency abused its
discretion by failing to proceed 'in a manner required by law'. (Cal. Pub.
Res. Code § 21168.5.)" 106 Cal. App.3d at 1002. (Emphasis added).
Under the fair argument standard, deference to the lead agency's determination is
not appropriate and its decision not to require an EIR can be upheld "only when there is no
credible evidence to the contrary." Sierra Club v. County of Sonoma, 6 Cal. App. 4th 1307,
1317-18 (1992). Emphasis added. The fair argument standard requires the reviewing court to
employ "a certain degree of independent review of the record, rather than the typical substantial
evidence standard which usually results in great deference being given to the factual determinations
of the agency." Quail Botanical Gardens Foundation, Inc. v. City of Encinitas, 29 Cal. App. 4th
1597, 1602 (1994).
The Supreme Court has concluded that the interpretation of CEQA "which will
afford the fullest possible protection to the environment is one which will impose a low thresholds
requirement for preparation of an EIR." No Oil, Inc. v. City of Los Angeles, supra, 13 Cai. 3d at
84.
As explained below, Cottonwood has presented a compelling argument, based on
overwhelming evidence, that the Project will have a significant adverse impact on the environment.
Therefore, the Agency should prepare an EIR.
B. The Mitigated Negative Declaration Fails to Provide An Accurate Project Description.
The Project description must be accurate and consistent throughout a mitigated
negative declaration. A mitigated negative declaration circulated for public review shall include,
among other things, a description of the project. 14 Cal. Code Regs. § 15071(a). California
courts have consistently emphasized the importance of accurate project descriptions. In fact, "[a]n
accurate, stable and finite project description is the sine qua non of an informative and legally
sufficient EIR." County oflnvo v. City of Los Angeles. 71 Cal. App. 3d 185, 193 (1977) (italics
in original). The County ofln¥o further stated, "[al curtailed or distorted project description may
stultify the objectives of the reporting process. Only through an accurate view of the project may
affected outsiders and public decision-makers balance the proposal's benefit against its
environmental costs, consider mitigation measures, assess the advantage of terminating the
B-~0
A T T O R N E Y S A T L A W
Cypress Redevelopment Agency
May 20, 2002
Page 6
proposal.., and weigh other alternatives in the balance." The Agency must in good faith make
the MND (and the Initial Study used to prepare the MND) as complete and comprehensible as
possible. Long Beach Savings & Loan Association v. Long Beach Redevelopment Agency, 138
Cal. App. 3d 249 (1986).
Here, the MND is fundamentally flawed because the Project description is
inadequate and internally inconsistent. Project descriptions must be consistent throughout a
mitigated negative declaration in order for the impact analysis to be meaningful and serve as a
vehicle for intelligent decision-making. For example, the Amended Public Notice of Availability
presents Alternative A as" 163,000 square feet of Discount Club, a members-only fuel station, and
two 7,000 square foot restaurants." Then, the M'ND at page 11 refers to Alternative A as "a major
anchor retail tenant of approximately 130,000 to 160,000 square feet of retail in conjunction with
a gas station and one or two free-standing restaurants." The description of Alternative A is
inconsistent throughout the MND. It goes without saying that a mitigated negative declaration
must contain uniform project descriptions.
Furthermore, the Project description does not include all relevant aspects of the
Project, including reasonable foreseeable future activities, and minim/zes Project impact. The
.M2xrD minimally describes three theoretical alternative projects instead of acknowledging that the
intended development of the Project is a Costco Warehouse by Costco Wholesale Corporation
("Costco"). The Project, as developed by Costco, shall sometimes be referred to herein as "a
Costco." In fact, the Agency has been involved in back-room negotiations with Costco for many
months and has signed various negotiation agreements with Costco,S/ in contravention of its own
Rules Governing Participation and Preferences by Owners and the California Community
Redevelopment Law, each of which requires that the Agency give preference to proposals
submitted by owners of the subject property, and not to third parties. In addition, the MND fails
to discuss, at all, the extension of owner participation opportunities to Cottonwood. The MND
needs to identify in detail the owner participation opportunities that have been extended and how
such opportunities relate to the project alternatives identified in the MND.
On April 8, 2002~ the Agency considered Costco's development proposal, took certain
actions in furtherance therewith and rejected Cottonwood's project proposal, including any
right to owner participation. Ail resolutions, documents and other matters related to this
action by the Agency and all prior actions by the Agency, and the City in any way relating
to Costco, the Costco project and/or Cottonwood are hereby incorporated herein by this
reference.
A T T O R N E Y 5 A T L A W
Cypress Redevelopment Agency
May 20, 2002
Page 7
The MND only focuses on one of the theoretical alternatives for purposes of the
environmental analysis contained in the MND. However, the MND fails to discuss how the
Agency decided on those three particular alternatives, nor does the MND discuss the analysis used
to reach the conclusion that Alternative C is the "worst-case scenario," and thus, should be the
focus of the MND. Interestingly, the Project alternative chosen for the MND analysis is the one
most unlike the Costco development proposal, despite the fact that the Agency has officially
approved moving forward with Costco's development proposal for the Project. Also, Alternative
C, which is described as involving 186,000 square feet of retail/commercial square footage,
exceeds the development intensity being contemplated by the Agency. Furthermore, without any
explanation, the MND boldly asserts that any alternative would be built in one phase.
CEQA requires that an environmental document foster informed public partici-
pation and informed decision-making By failing to identify the intended occupant of the Project,
which has special operational and impact generation potential (some facts of which are detailed
in the correspondence concerning the Project at the April 8~' Agency hearing), the Agency has
intentionally violated an essential tenet of CEQA and has undermined the validity of the MND.
The inadequate project description effects the credibility of the analysis purportedly performed on
all of the CEQA checklist categories. The only reason for the Agency not revealing these vital
pieces of information is to preclude an accurate and complete discussion of the Project's potential
environmental impacts, thereby undermining CEQA. Because the Project is really a Costco, and
not one of the three theoretical alternatives scantily mentioned in the MND, the project description
should include significant additional information to ensure that potential impacts of the Project can
be fully assessed and mitigated.
Vital information is missing from the MND environmental analysis due to the
inaccuracy of the project description. For example, in order to begin to properly analyze possible
environmental impacts, it is critical to know, among other things: the hours of operation, peak
weekday and weekend times for customer visits, the likely number of customers, the level of
customer activity throughout the day, evening and weekend on an hourly average, availability of
parking, plan for ingress and egress and the management of congestion at these points, delivery
schedules, the number and types of delivery trucks traveling to the Project each day and possible
delivery routes. Moreover, there is essentially no analysis in the MND of the aesthetics, light and
glare impacts of the Project, but merely conclusory statements wholly unsupported by facts.
Also, information regarding building dimensions is completely ignored in the MND.
This omission makes an analysis of the Project's visual compatibility with surrounding uses
impossible to evaluate. The Project description should include a drawing of the proposed building
and some information about materials, windows, rooftop equipment, etc. Such information is
readily available to, or is already in the possession of, the Agency. The Agency simply does not
I3-42
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 8
have a valid excuse for misrepresenting the true nature of the Project or for failing to disclose key
information relating to the Project.
The public must have an opportunity to truly examine the potential significant
adverse impacts of the Project with the Project clearly defined as a Costco. The Agency must
examine data available from existing Costco facilities and must apply that data to the Project. The
Agency simply has no excuse for failing to use readily available data and for, consequently, failing
to conduct an accurate analysis. Data from Costco facilities is extremely critical to a proper
analysis and examination of the Project-~/. For example, a Costco gas station is likely to produce
tremendous traffic trips due to the discount nature of gas services. Similarly, the Costco
automotive service will likely have unique noise and unavoidable regional air quality impacts. A
Costco would add significant air quality emissions from tanker trucks fueling the proposed
gasoline facility that would likely drive up environmental costs. Here, the impact of the Project
on the environment is not fully known and will not be known until an E1R is prepared.
C. Notice For The Mitigated Negative Declaration Was Inadequate.
1. Period For Public Review Should Be 30 Days. The public review period for a
Mitigated Negative Declaration submitted to the State Clearinghouse for review by state agencies
shall not be less than 30 days. Guidelines § 15105 (b). Mitigated Negative Declarations are
submitted for review by state and other agencies when the project has statewide significance.
Examination of several Costco initial studies, mitigated negative declarations and EIRs
reveals that a Costco store involves unique circumstances that must be thoroughly
examined. Reliance on generic data, such as that obtained from the Institute of
Transportation Engineers (ITE) Trip Generation, 6th Edition, xvill not suffice. Such
generic data, if relied upon at all, must be used in conjunction with data from existing
Costco facilities. The EIR for Costco Wholesale Development dated September, 1999
prepared in connection with a Costco facility in the City of Concord, California, is an
example of a thorough analysis of the development of a Costco store and is hereby
incorporated by reference as though set forth fully herein. The study conducted was
detailed and, more importantly, it was tied to the unique circumstances involved in the
development and operation ora Costco store. The study included a thorough discussion
of other Costco facilities, expected employee numbers, number and size of delivery trucks,
number and size of fuel trucks, expected delivery routes, operation of the tire center and
general operation of the Costco store.
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May 20, 2002
Page 9
Here, the Agency claims that the public review period is 20 days. This
interpretation of the Guidelines is wrong because the Project, if properly described, would have
statewide significance.
2. Pertinent Documents and Agreements Affecting the Pro~rect Were Not Analyzed
in the MND. The Agency not only failed to analyze pertinent documents affecting the Project, it
failed to make any mention of them in the MND. For example, the Agency did not analyze the
affects of the following documents on the Project: (1) that certain Cypress Business and
Professional Center Development Agreement No. 90-1, dated as of May 24, 1990, executed by
and between the City and Cypress Development, a California general partnership ("Cypress
Development"), (2) that certain Grant of Drainage Easement, recorded on September 11, 1990,
executed by and between Cypress Development and Los Alamitos Racecourse, (3) that certain
Cypress Business and Professional Center Traffic Mitigation Agreement, dated as of August 20,
1990, executed by and among the City of Los Alamitos, the City, and Cypress Development, (4)
that certain Mitigation Monitoring Compliance Agreement Pursuant to Public Resources Code
Section 21081.6 for the Cypress Business and Professional Center Project, dated as of October 15,
1990, executed by and among the City, Cypress Development, Los Alamitos Racecourse, and FJC
U SA., Inc, and (5) that certain Reciprocal Utilities Easement Agreement recorded on July 31,
1991, in favor of Cypress Development, Los Alamitos Racecourse and FJC U.S.A., Inc.
3. Public Agencies With JurisdictionBv Law Over Resources Affected By The Proiect
Were Not Properly Noticed.
According to Guideline § 15072 (e), if a project is of statewide, regional, or
areawide significance, the lead agency shall provide notice of the Mitigated Negative Declaration
to transportation planning agencies and public agencies which have transportation facilities within
theirjurisdictionswhichcould be affected bythe project. Transportation Facilities include: "major
local arterials and public transit within five miles of the project site and freeways, highways and
rail transit service within 10 miles of the project site." I~d.
The Agency has failed to meet this particular notice requirement. The MND fails
to list the agencies that require notice under Guideline § 15072. The public has no way of
knowing whether such agencies were ever properly noticed, including the City of Los Alamitos
and Caltrans.
4. Documents Referenced In The MND Were Not Properly Summarized. Guidelines
§ 15150 (c) requires that" . . . where an EIR or negative declaration uses incorporation by
reference, the incorporated part of the referenced document shall be briefly summarized where
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Cypress Redevelopment Agency
May 20, 2002
Page 10
possible or briefly described if the data or information cannot be summarized. The relationship
between the incorporated part of the referenced document and the E[R shall be described."
The Agency has made it truly impossible for the public to review the documents
referenced in the MSNrD for several reasons.
First, although CEQA permits the incorporation by reference of other documents,
the MND incorporates so many documents that it is virtually impossible for the public to
understand the basis of the analysis for the Project. For example, the MND incorporates four full
EIR's, three of which are ten years old, and three Initial Studies, in addition to the General Plan,
Zoning Code, Specific Plan and Redevelopment Plan. As used by the Agency, this technique
undermines full disclosure of the environmental consequences of the Project and thereby impedes
informed decision making as mandated by CEQA.
Second, the Agency fails to adequately list and summarize the documents
referenced in the MND. Section 4.18 (References) fails to provide a complete list of the
documents referenced in the MND. This section only offers the public a partial list of documents
referenced Moreover, the MND fails to adequately summarize and explain the exact relationship
between the referenced document and the MND. In fact, certain documents which are listed in
Section 4 18 are not discussed at all in the body of the M2qD, and certain documents which are
briefly referenced in the body of the 1VfND are not listed in Section 4.18, making it virtually
impossible to even commence a process of review.
The MND Fails to Provide Evidence That the Proposed Project Will Not Have Any
Significant Environmental Effects.
A mitigated negative declaration must disclose the data or evidence upon which the
"person(s) conducting the study relied .... Mere conclusions simply provide no vehicle for judicial
reviexv." Citizens Assn. for Sensible Development of the Bishop Area v. County oflnyo. 172 Cal.
App. 3d 151, 170 (1985). One of the primary purposes of an initial study is to "[p]rovide
documentation of the factual basis for the finding in the Negative Declaration that a project will
not have a significant effect on the environment." Guidelines § 15063 (c)(5). An initial study must
document reasons, to support the finding that a project will not have any significant environmental
effects. Guidelines § 15071(d).
The MND includes an "Initial Study Checklist" (the "Checklist") which includes
approximately 88 questions regarding the potential environmental impacts of the proposed Project.
With respect to each question, the Initial Study concludes either that (a) the questioned impact will
not occur at all, (b) the impact will occur, but it will not be significant, or (c) the impact will be
B-4b
A T T O R N E Y S A T L A W
Cypress Redevelopment Agency
May 20, 2002
Page 11
significant, but proposed conditions will mitigate the impact below a level of significance.
However, the Initial Study includes little or no explanation for many of these negative responses,
and it fails to properly summarize and take into account the numerous studies that have been or
are being prepared for the LART Redevelopment Area. Moreover, many of the mitigation
measures listed in the Initial Study contain no timing for implementation nor do they identify'the
responsibility of City Staffto ensure compliance. Therefore, many of the nfitigation measures are
inadequate in ensuring that potential environmental effects are actually mitigated. This problem
is compounded as some mitigation measures are identified as "recommended" rather than required
In fact, where there is an explanation, the explanation often offers no baseline
condition or reason to believe that a significant adverse impact will not occur. For example, the
trar21c study fails to point out that there will be an unavoidable significant adverse impact at the
intersection of Cerritos Avenue and Walker Street. Omission of such information seriously
undermines the credibility of both the traffic study and the Initial Study. In addition, the traffic
study merely estimates the number of anticipated trips based upon an inaccurate project description
and concludes that the adjacent streets will handle the impact. A more detailed analysis of the
traffic study is found in a letter dated April 18, 2002, from Linscott, Law, & Greenspan, Engineers
to Mr. Mel Malkoff, attached hereto as Exhibit B.
There is also minimal analysis as to aesthetics or the impact of light, glare and
noise. Neighbors must merely trust that the Project will not be visible from their homes and that
light and noise will not impact them, even though the Initial Study acknowledges that there will
be new sources of light and that the ambient noise level will increase. In addition, to further
aggravate the conclusionary nature of these statements, there is no discussion as to the unique
traffic and noise that will be created by the Costco gas station and automobile service or tire
facility.
Certainly, further study is required with respect to potential impacts arising from
traffic, parking, air quality (potential odors and fumes from delivery tracks, etc.), aesthetics, light
and glare, noise, hazardous materials and cumulative impacts from other projects, particularly
when the Project is properly described as a Costco. In addition, the Agency has failed to meet the
standard mandated by Guidelines § 15070 (b) (1) which states that a mitigated negative declaration
shall be prepared when "It]he initial study identifies potentially significant effects, but [r]evisions
in the project plans or proposals made by, or agreed to by the applicant before a proposed
mitigated negative declaration and initial study are released for public review would avoid the
effect or mitigate the effects to a point where clearly no significant effects would occur..."
(emphasis added). The Agency has failed to meet this burden. The Agency has not clearly
demonstrated that clearly no significant effects would occur in connection with the Project.
13-,t6
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 12
The Initial Study, itself, is defective on a number of fronts. In particular, it contains
inaccurate information in the sections discussing Land Use and Planning, Traffic, Aesthetics, Air
Quality, Hazard and Hazardous Materials, Noise, Population and Housing, Public Services,
Recreation and References. A detailed discussion of the inadequacies in the Initial Study is set
forth in Exhibit A attached hereto.
E. Tiering Is Improper Under the Circumstances.
The use of tiering is intended to allow agencies to avoid repetitiveness, wasted
time, and unnecessary premature speculation, by preparing a series of EIRs or an EIR and later
negative declarations on related projects. Cal. Pub. Res. Code § § 21068.5, 21093 (a); Guidelines
§ 15152 "Tiering is a process by which agencies can adopt programs, plans, policies, or
ordinances with EIRs focusing on "the big picture," and can then use streamlined CEQA review
for individual projects that are consistent with such... [first tier decisions] and are consistent with
local agencies' governing general plans and zoning." Koster v. County of San Joaquin. 47 Cai
App. 4th 29 (1996). Public Resource Code Section 21068.5 defines "tiering" as
"the coverage of general matters and environmental effects in an
environmental impact report prepared for a policy, plan, program or
ordinance followed by narrower or site-specific environmental impact
reports which incorporate by reference the discussion in any prior
environmental impact report and which concentrate on the environmental
effects which (a) are capable of being mitigated, or (b) were not analyzed
as significant effects on the environment in the prior environmental impact
report."
The later EIRs are excused by the tiering concept from repeating the analysis of broad
environmental issues examined in the general plan EI2~. It is important to note that not all site-
specific projects can take advantage of tiering. To qualify for the use of tiering, later projects
must: (i) be consistent with the program, plan, policy, or ordinance for which an EIR has been
prepared and certified, (ii) be consistent with applicable local land use plans and zoning of the city,
county, or city and county in which the later project would be located and (iii) not trigger the need
for a subsequent EIR or supplement to and EIB.. Cal. Pub. Res. Code § 21094 (b). These criteria
thus limit the kinds of projects that can benefit from the use of tiering; projects requiring general
plan amendments and most kind ofrezones will not qualify. Also, Guideline Section 15162(a)(3)
requires the preparation of a subsequent EIR if".., significant effects previously examined will
be substantially more severe than shown in the previous EIR."
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 13
Here, the Agency may not use the tiering concept for several reasons. First, the
Project described in the MND is not consistent with the applicable plans and zoning associated
with the location of the Project. Retail projects, such as the Project described in the MND, are
not permitted uses under current plans and zoning for the Project. A more thorough discussion
of the inconsistency of retail use with the current zoning for the Project is set forth in Exhibit A
attached hereto. Because retail is not a permitted use, development of the Project will necessitate
amendments to the Cypress General Plan, the City of Cypress Zoning Ordinance and the Cypress
Business & Professional Center Specific Plan, which will, in turn, require preparation of an EIR.
Second, the Project, when properly described as a Costco, will immediately trigger the need for
an EIR The very nature of a Costco necessarily invalidates the accuracy of the impact analysis
in the previous EIRs. For this reason alone, the MND's reliance on previous analysis and
conclusions is questionable. The proposed Costco project will undoubtably have greater impacts
than would the typical retail or office use that was contemplated under the analysis of the prior
EIRs The fact that the Project is in actuality a Costco is significant new information of substantial
importance that could not have been known at the time the ELKs were certified. Fo) example, the
traffic impacts of a Costco are greater than those anticipated in the EIRs. In turn, air quality and
noise impacts will also be greater. This could lead to new significant impacts, an increased severity
of previously identified impacts, and new mitigations that must be considered. Also, many of the
significant effects examined in the EIRs prepared over ten years ago are likely to be substantially
more severe today. These circumstances require full examination in a supplemental EIR, not a
Mitigated Negative Declaration.
The Proposed Mitigation Measures Will Not "Clearly "Mitigate the Project's
Significant Environmental Impacts.
A lead agency can approve a project with potentially significant environmental
effects by adopting a mitigated negative declaration, only under the following circumstances:
"An initial study identifies potentially significant effects on the
environment, but (A) revisions in the project plans or proposals made by,
or agreed to by, the applicant before the proposed negative declaration and
initial study are released for public review would avoid the effects or
mitigate the effect on the environment would occur, and (B) there is no
substantial evidence, in light of the whole record before the lead agency,
that the project, as revised, may have a significant effect on the
environment." (Emphasis added) Cal. Pub. Res. Code § 21080(c)(2); see
also Cal. Pub. Res. Code § 21064.5.
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ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 14
Since the Agency has prepared the MND and the Initial Study, it is expressly acknowledging under
CEQA that, in the absence of clearly effective mitigation, the Project will have a significant,
adverse environmental effect. In fact, several Statements of Overriding Considerations in
connection with the LART Redevelopment Area were adopted in the past to address some of these
significant effects. In particular, a Statement .of Overriding Considerations was prepared in
connection with the Cypress General Plan EIR for the following impacts:
transportation/circulation, air quality and parks/recreation. Also, a Statement of Overriding
Considerations was prepared in connection with the Cypress Business and Professional Center
Specific Plan EIR for the following impacts: circulation and traffic, land use and relevant planning,
aesthetics and air quality.
The mitigation measures attached to the Initial Study will not "clearly" mitigate
certain aspects oftheProject, as admitted by the Agency in the MND and the Initial Study. The
Agency cannot adopt the MND unless the mitigation measures reduce the impacts of the Project
below the threshold of significance set forth in CEQA. In this case, the mitigation measures must
eliminate the possibility of a substantial adverse change in the significance of the Project. Section
3.3 of the Initial Study describes "potentially significant impact unless mitigated" as follows, "[t]he
development will have the potential to generate impacts which may be considered as a significant
effect on the environment, although mitigation measures or changes to the development's physical
or operational characteristics can reduce these impacts to levels that are less than significant"
However, the Agency fails to address the criteria by which a potential environmental impact is
determined. The Initial Study not only fails to analyze whether the stated mitigation measures will
prevent a "substantial adverse change," it does not even cite the appropriate threshold.
Moreover, the Agency cannot simply rely on past EIR's and Statements of
Overriding Considerations for the purpose of avoiding an EIR for the Project. Those past
documents will not automatically shield the current Project from analysis, particularly when the
Project is significantly different from the uses that were contemplated under the previous ETRs and
Statement of Overriding Considerations, Furthermore, the Initial Study fails to discuss, in any
meaningful way, the relationship between the referenced documents and the Project.
The Adoption of the Negative Declaration Would Unlawfully Defer Environmental
Review.
CEQA requires that environmental review and the formulation of appropriate
mitigation measures occur at the earliest feasible state in the planning process. Cal. Pub. Res.
Code § 21003. I. CEQA provides further that a proposed negative declaration should only be
prepared for a project xvhen "revisions in the project plans or proposals made by or agreed to by
B-49
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 15
the applicant before the proposed negative declaration is released for public review would avoid
the effects or mitigate the effects to a point where clearly no significant effect on the environment
would occur ...." CaL Pub. Res. Code § 21080(c)(2).
The case of Sundstrom v. County of Mendocino, 202 Cal. App. 3d 296 (1988),
illustrates these principles. In Sundstrom, the public agency approved a use permit for a motel and
restaurant that included a private sewage treatment plant. The initial study did not analyze the
environmental impacts of the treatment plant, but instead required that the developer prepare a
hydrological study after the approval of the negative declaration. The study was to provide a basis
for establishing additional mitigation measures for the project.
The court held that the public agency violated CEQA by including a condition that
contemplated revisions to the project after the final adoption of the negative declaration. The
court further held that the deferral of environmental review for the treatment plant ran counter to
CEQA policy, which required environmental review at the earliest feasible change in the planning
process. The court also noted that any mitigation measures added by the administrative staff as
a result of this study would be exempt from public scrutiny since the public agency had already
approved the negative declaration.
Several proposed mitigation measures for the Project under the MND and the
Initial Study are examples of unlawful deferral of environmental review. For example one
condition requires that a geologic and soils report be prepared at a later date. The MND
determined that potential geological impacts associated with the Project could be potentially
significant, unless mitigated. Neither the impacts nor the proposed conditions for mitigation are
discussed. Similarly, circulation plans and a parking study are all deferred to another day.
There is also no discussion as to the type or amount of mitigation required for the
potential impacts associated with the service station proposed under one of the alternatives. See
Initial Study, 4.7.
Existence of Public Controversy, Coupled with Substantial Evidence ora Significant Effect
on the Environment, Underscores the Need for an EIR. Guidelines Section 15064(0(4)
provides as follows:
"The existence Of public controversy over the environmental effects of a
project will not require preparation of an EIR if there is no substantial
evidence before the agency that the project may have a significant effect on
the environment ."
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A T T O R N E Y 5 A T L A W
Cypress Redevelopment Agency
May 20, 2002
Page 16
There is no doubt that there exists a public controversy over the Project. In fact,
over six hundred concerned citizens attended the April 8, 2002 Agency meeting regarding the
subject property to express their concerns and opposition to the Project. Also, there exists
sufficient evidence suggesting that the Project will have a significant effect on the environment.
The Agency has received or will receive voluminous testimony from a variety of
noted citizens, City groups, and other experts that the Project will likely have a significant, adverse
effect on the environment, and that the proposed mitigation measures will in no way mitigate the
impacts of the Project. In contrast, the only potential "expert" testimony which supports the
adoption of the MND are the inadequate studies which ignore the real nature of the Project.
The Agency's position is entirely unsupported. However, even if the reports upon
which the MI,rD is based could be considered unbiased expert testimony, the disagreement among
experts suggests that the preparation of an EIR would address the many doubts created by the
Project. In fact, some courts have stated:
"In such cases, an EIR - an impartial, detailed and factual analysis of the
Project's effect - can perform an invaluable service in aiding the agency's
resolution of a dispute .... 'The very uncertainty created by the conflicting
assertions made by the parties .: underscores the necessity of the EIR to
substitute some degree of factual certainty for tentative opinion and
speculation.'" SeeNo Oil, Inc. v. City of Los Angeles, 13 Cal. 3d 68, 85
(1974); City of Carmel-By-The-Sea v. Board of Supervisors, 183 Cal.
App. 3d 229, 249 (1986); see also Sundstrom v. County of Mendocino,
202 Cal. App. 3d 296, 313 (1988).
I. The Agency Has Unlawfully "Split" The Project for Purposes of Environmental Review.
The term "project" has been broadly defined under CEQA. "Project" means "the
whole of an action, which has the potential for resulting in a physical change in the environment...."
Guidelines § I5378(a). All phases of project planning, implementation and operation must be
considered in the initial study for a project. Guidelines § 15063(a)(1). The term "project" refers
to the activity which is being approved and which may be subject to several discretional approvals
by governmental agencies. The term "project" does not mean each separate governmental
approval Guidelines § 15378(c).
Under CEQA, a project must be fully analyzed in a single environmental document.
An agency may not split a project into two or more segments with mutually exclusive
environmental documents. Citizens Assn. for Sensible Development of Bishop Area v. County of
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ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 17
In¥o, 172 Cal. App. 3d 151, 165 (1985). Similarly, an agency cannot overlook a project's
cumulative impacts by separately focusing on isolated parts of the whole. McQueen v. Board of
Directors, 202 Cal. App. 3d 1136, 1144 (1988).
In Citizens Assn. for Sensible Development of Bishop Area v. County of In¥o,
supra, a county split a shopping center project into two segments, the first part consisting of
general plan amendments and zoning classifications, and the second part involving a tentative map
approval and road abandonment. The public agency prepared a separate negative declaration for
each project segment. Because the project applicant had requested related discretionary approvals
at different times, the county had failed to understand that it was dealing with a single project. The
court overturned the negative declarations and the project approvals, holding that an agency
cannot prepare mutually exclusive environmental documents for a single project. 172 Cal. App.
3d at 165-67.
The project description in a CEQA document must include:
"an analysis of the environmental effects of future expansion or other
action if: (1) it is a reasonable foreseeable consequence of the initial
project; and (2) the future expansion or action will be significant in that it
will likely change the scope or nature of the initial project or its
environmental effects." Laurel Heights I, supra, 47 Cal. App. 3d 376, 396
(1988).
In Laurel Heights I, the Regents proposed the relocation of a biomedical research
facility to a portion ora building located in the residential neighborhood. The EIR for the project
failed to analyze the cumulative impacts of the anticipated full use of the building as a biomedical
facility within a few years. The California Supreme Court rejected the Regent's argument that,
because the proposed expansion had not been formally approved, the EIR's analysis could be
limited to the project in its initial form. Evidence in the record indicated that, despite the lack of
a formal approval, the Regent's ultimate plans were clear. Therefore, because the expansion was
reasonably foreseeable, and was likely to change the scope or nature of the initial project or its
environmental effects, the EIR should have discussed at least the general effects of the reasonably
foreseeable future uses and the anticipated measures for mitigating those effects. Id. at 396-398.
"The fact that precision may not be possible ... does not mean that no analysis is required." Id. at
399 --
Another case that illustrates this principle is Whitman v. Board of Supervisors, 88
Cal. App 3d 397. In Whitman., an EIR was prepared in connection with an application to drill an
exploratory oil and gas well, which omitted discussion of a contemplated pipeline if the well
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ATTORNEYS AT LAW
Cypress Redevelopment Agency
May20,2002
Page 18
proved productive. The court found the EIR inadequate and explained that "[t]he record before
us reflects that the construction of the pipeline was, from the very beginning within the
contemplation of [the] overall plan for the project and could have been discussed in the EIR in at
least general terms." Id. at 414-15. (emphasis added)
Under the current circumstances, the Project suffers from the same problems that
occurred in Laurel Heights I and Whitman. First, there is absolutely no discussion whatsoever as
to the impacts associated with other projects within the LART Redevelopment Area. Second, the
agreement between the Agency and Costco is completely ignored. There is no discussion of
condenmation activities by the Agency against Cottonwood and the relocation and other impacts
related thereto nor of the proposed Disposition and Development Agreement between the Agency
and Costco, despite the fact that this agreement would directly affect the Project. In conclusion,
the Agency needs to examine all of these issues in an EIR.
The MND Fails to Have Any Cumulative Analysis o£the Proiect's Environmental
Impacts.
An environmental document must discuss "cumulative impacts" when they are
ctnnulatively considerable. Guidelines § 15130(a). However, even ifa cumulative impact is not
deemed significant, the document must explain the basis for the conclusion. Citizens to Preserve
the Ojai v. County of Ventura, 176 Cal. App. 3d 421,429 (1985). "Cumulative impacts" are
defined under the Guidelines as two or more individual effects which, when considered together,
are considerable or which compound or increase other environmental impacts. Guidelines
The MND fails to have any analysis of any potential "cumulative impacts."
Potential related projects for cumulative analysis are simply not listed in the M2'4D.
This comprehensive analysis on related projects and the associated cumulative
impacts must be done before approval of the Project. To ignore the Project's interrelationship,
consistency or inconsistency and impact on the LART Redevelopment Area and other projects
within the area improperly segments the Project from the LART Redevelopment Area and ignores
a proper cumulative analysis under CEQA, all to the detriment of the citizens of Cypress and
proper long-term planning efforts for the LART Redevelopment Area..
Given the related projects and the related environmental analyses that the Agency
is undertaking, the M2ND should not be approved because further studies are in process and have
been admitted to be necessary. This is especially true given the substantial public funds which
B-53
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 19
would be committed to the Project. Furthermore, as discussed above, this type of analysis cannot
be deferred to a later day.
CONCLUSION
Given the foregoing, on behalf of all of our client, we request that the Cypress
Redevelopment Agency reject the MND, and that a full EIR be required.
for SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
William W. Wynder, Esq.
Dan Slater, Esquire
Pastor Bayless Conley
Rev. Michael Wilson
Marshall Tanner, Esq
Andrew J. Guilford, Esq.
Sean O'Connor, Esq.
Maricmz Mendoza, Esq.
Mr. Mel Malkoff
Ms. Mary Urashima
B--$4
EXHIBIT A
The MND and the accompanying Initial Study are flawed for the following reasons:
Proiect Setting: This section is too vague. The brief narrative fails to give any sense of the
imxnediately surrounding uses or a larger sense of the nearby community. At the very least, the
Initial Study should have included a land use map labeling the surrounding uses and identifying
sensitive uses in the area that could be affected by the project or uses with special operational
characteristics that may conflict with the Costco operations.
Aesthetics: The Initial Study does not provide a basis for its conclusion that the Project would
be compatible with existing uses surrounding the project site. In addition, it fails to provide for
adequate information regarding the dimensions of the proposed building or any visual aids which
would enable the public to adequately analysis this category.
The Initial Study concludes that impacts related to project construction would
cause temporary aesthetic nuisances. These aesthetic nuisances are determined to be less than
significant because they are temporary. It is erroneous to conclude that impacts are less than
significant based on their duration. In the short-term, aesthetic impacts related to construction
nuisances may be significant.
Air Quality: The lnitial Study states the following: "The proposed project is above the thresholds
established by SCAQMD with respect to size, as well as for operational emissions." However,
the Initial Study concludes that the project generated emissions "would not result in significant air
quality impacts on a local or regional basis". The basis for this conclusion is that EIR's prepared
for the General Plan and the Specific Plan account for site development. This conclusion is
erroneous. In essence, it asserts that as long as a previous EIR identifies a range of potential
impact of future development, no project-specific impacts need be identified. Also, it must be
noted that the previous EtRs did not contemplate a Costco in the subject site. Thus, any Air
Quality assessments made in those documents would not adequately address the impacts
associated with the development ora Costco. Because there would be unavoidable cumulative
air quality impacts, an E1R would need to be prepared.
Air quality information contained in the Initial Study concludes that during
construction, the demolition, grading and preparation of the site for development could result in
minor short-term air quality impacts. No calculations are provided in order to substantiate the
conclusion of "minor" short-term impacts. The Initial Study fails to state whether the impacts are
significant under the thresholds established in the SCAQMD CEQA Air Quality Handbook.
The Project is required to comply with Mitigation Measure #54 of the Cypress
Business and Professional Center Specific Plan EYR. Since 1990, the requirements of the
SCAQMD have undergone major revisions These requirements should be accounted for as part
of the Walker/Katella Retail Project.
B-55
The Initial Study concludes that air quality impacts related to odors from heavy-
duty equipment exhaust would be less than significant because they would be short term in nature.
It is erroneous to conclude that impacts are less than significant based on their duration. In the
short-term, these air quality impacts may be significant.
Cultural Resources: The Initial Study determines that there will be "no impacts" associated with
archaeological and paleontological resources. However, as these cultural resources are often
located below grade level, this conclusion is correct. It is possible that cultural resources will be
uncovered during the grading and site preparation process. Mitigation measures are, therefore,
required, and the impact cannot be determined to be nonexistent.
Geology: The Initial Study determines that potential geological impacts associated with the
project could be potentially significant, unless mitigated. Rather than defining these impacts, the
Initial Study postpones mitigation by requiring that a geologic and soils report be prepared at a
later date. Decision-makers cannot make an informed decision on the Walker/Katella Retail
Project in the absence of this information.
Hazards and Hazardous Materials: The Project Description defined Alternative C as the worst-
case scenario and stated that, therefore, this "alternative" will be discussed in the Initial Study.
However, the discussion under the Hazards and Hazardous Materials section states that potential
impacts associated with a service station (considered only under Alternative A) may occur. These
impacts, however, are not identified, nor is mitigation provided. If there are impacts associated
with a service station, they should be identified as part of the Initial Study.
Measure HM1 requires that hazardous waste generated on-site be transported to
an appropriate disposal facility, yet it provides no mention of a monitoring system. If its
!mplementation cannot be assured, it cannot be stated that it will mitigate potential environmental
~mpacts.
Hydrology and Water Quality: The Hydrology and Water Quality discussion fails to mention, let
alone evaluate, the new regulations that were recently adopted by the Regional Water Quality
Control Board [Santa Ana Region].
Land Use and Planning: The Project is not consistent with the Cypress General Plan (the "General
Plan"), the City of Cypress Zoning Ordinance (the "Code"), the Cypress Redevelopment Agency
Los Alamitos Race Track and Golf Course Redevelopment Project Redevelopment Plan (the
"Redevelopment Plan") or the Cypress Business and Professional Center Specific Plan (the
"Specific Plan"). The General Plan, the Code, the Redevelopment Plan and the Specific Plan shall
be collectively referred to herein as the "Plans."
B-56
The General Plan
Consistency with Land Use Designation. The Project is designated Specific Plan
under the General Plan. Because the Project is not consistent with the Specific
Plan, as explained below, it is not consistent with the General Plan.
The Initial Study contains blatantly false information in the section discussing the
supposed consistency with the General Plan. The Initial Study boldly states,
"While specific users for the proposed retail space have not been identified at this
time, it is the intent of Walker/Katella Retail Project to attract high quality
businesses to the City." Initial Study, Appendix A, 1.2.2. The truth is that the
Agency has already entered into negotiation agreements with Costco in connection
with the Project and chose the Costco project to the exclusion of all others on
April 8, 2002 (see discussion above). In fact, the Agency has already officially
adopted Costco's development proposal for the Project.
Consistency Conclusion. The Project is not consistent with the General Plan
because the anticipated use for the Project is not consistent with the permitted uses
allowed under the Code and Specific Plan.
The Specific Plan and Code.
Consistency with Land Use Designations. Through the Initial Study, the Agency
claims that the Project is a permitted use, subject to a CUP, under Section 11 of
a previous version of the Code ("Old § 11 "). When the Code was amended, Old
§ 11 became nexv Section 13 ("New ~ 13") of the Code. Thus, the Agency argues
that New § 13 (Industrial Zones), which is primarily concerned with Business Park
and Industrial Light zoning designations, controls when analyzing permitted uses
for the Project, despite the fact that the subject property is zoned Planned Business
Park, and not Business Park, under the Code. The Initial Study offers no
explanation for this contradiction.
The current Code was adopted in May 11, I998. New Section 11 ("New § I 1")
is now concerned with "Commercial Zones." Office Professional Zone OP- 10000
is one of the zoning designations under Commercial Zones and is consistent with
the Specific Plan's designation of Professional Office for the subject property.
Retail use is not a permitted use under the Office Professional Zone designation.
The City's decision to move the Industrial Zones section from Old § 11 to New
§ 13 of the Code makes sense because the Industrial Zones section is not
consistent with the Specific Plan's Professional Office designation. Had the City
intended otherwise, it would have amended the Specific Plan to reference New
§ 13. The City did not do this because the reference to New § 11 (Office
Professional Zone) of the Code in the Specific Plan made sense and was consistent
B-57
with the Specific Plan's designation of Professional Office for the subject property.
Thus, there was simply no need to amend the Specific Plan.
As noted above, the subject property is designated Planned Business Park on the
Zoning Map and under the Code. The Planned Business Park permitted uses are
covered in § 15 of the Code. Retail is not a permitted use under this designation.
Close study of the Agency's explanation in the Initial Study regarding land use
consistency reveals the inherent weakness of the claim. The Agency would like
the public to focus on Old § 11 (New § 13) fo? validation of its unlawful Project.
However, the Agency's argument simply does not work. Close examination of
New § 13 of the Code reveals that the uses described in that section are not meant
to apply to the subject property. The uses permitted under New § 13 are specific
to the Business Park zoning designation, not the Planned Business Park zoning
designation which is the correct zoning for the subject property. New § 13 is
primarily concerned with the zoning designations of "Business Park Zone
BP-20000" and "Industrial Light Zone 1VflL-10000." These designations are
inconsistent with both the Specific Plan's Professional Offices designation and the
Code's Planned Business Park designation. Why would the 1998 Code bother
zoning the subject land Planned Business Park if, as the Agency argues, the
Specific Plan really meant to point to Old {} 11 of the Code which is primarily
concerned with the Business Park zone, not the Planned Business Park
designation?
Moreover, in order for the Agency's argument to have some merit, we would have
to completely ignore both the Zoning Map xvhich designates the subject property
as Planned Business Park and § 15 of the Code which directly addresses the uses
permitted under the Planned Business Park designation. The Agency has failed to
explain why § 15, which does not permit retail use, should be completely
overlooked. The Agency has no way of explaining § 15 away. Directing the
public's attention to the old Code will not help it, in this respect. The Agency is
simply hoping that no one will notice that the Code has a section specifically
addressing the permitted uses for the Planned Business Park zone.
New § 11 of the Code, as it now stands, and § 15 of the Code go hand-in-hand and
are completely consistent with the General Plan, the Redevelopment Plan and the
Specific Plan. Interpreting the Code and the Specific Plan as they now stand is
logica!. There is no need for convoluted arguments to explain the permitted uses
for the subject property. There is no need to completely ignore certain sections of
the Code. If we read the Specific Plan (Professional Offices), New § 11 (Office
Professional Zone), § 15 (Planned Business Park Zone) and the Zoning Map
(Planned Business Park), as they pertain to the Property, we can only come to one
conclusion..., retail is not a permitted use under any of these documents. Thus,
the Project is not consistent with either the Specific Plan nor the Code.
13-58
Consistency Conclusion. The Project is not consistent ~vith either the Specific Plan
nor the Code. Retail, the anticipated use of the Project, is not a permitted use for
the subject property.
The Redevelopment Plan.
Consistency with Goals. The Project is inconsistent with the following specific
redevelopment objectives of the Redevelopment Plan:
Objective B: "The development of property within a creative, coordinated
land use pattern of residential, commercial, open space, and public facilities
in the Project Area consistent with the goals, policies, objectives,
standards, guidelines and requirements as set forth in the adopted General
Plan and Zoning Ordinance."
This objective requires that all projects within the project area be
consistent with the General Plan and the Zoning Ordinance. As discussed,
above, this Project is inconsistent with those plans.
Objective E: "The development of a more efficient and effective
circulation system."
Because the Initial Study fails to describe the Project as a Costco, the
circulation system has not been adequately analyzed. It is impossible to
assess how the circulation system will be affected by the Project. Thus, the
Project, does not promote a more efficient and effective circulation system.
Proposed -\ctions under the Redevelopment Plan. The Project is contrary to the
following proposed action under the Redevelopment Plan:
"Extending reasonable preference to persons who are engaged in business
in the Project Area to reenter businesses within the Project Area provided
that said business reentry conforms with this Plan, the General Plan, and
the Municipal Code." § 301
The analysis of the Project did not take into account the participation opportunities
extended to the owners of the subject site. There was no discussion in the Initial
Study regarding the relationship between the Project and any owner development
proposals. Omission of this analysis directly contradicts the mandates of the
Redevelopment Plan.
Proiect Is Inconsistent With Permitted Uses. The land use permitted by the
Redevelopment Plan for a particular parcel is the land use permitted by the
General Plan, the Zoning Code, the Specific Plan, and all applicable laws, for such
B-59
parcel. As discussed above, the proposed Project use in not permitted under the
Plans.
Consistency Conclusion, Because the Project is not consistent with either the
General Plan nor the Specific Plan, as discussed above, the Project does not
conform to, is not consistent with, and does not implement the goats of the
Redevelopment Plan. Furthermore, the Project is inconsistent with two of the
objectives set forth in the Redevelopment Plan.
Noise.: The Initial Study states that "... the proposed project would create on-site noise; however,
the noise levels are not considered to be significant." The Initial Study fails to explain how this
conclusion was reached.
Population and Housing: The Initial Study concludes that "...the increase in employment
opportunities would not result in significant population growth impacts within the City of
Cypress." The Initial Study states that the project is to be defined to include its secondary effects.
Retail development often relies on part-time employees who are paid minimum wage (see Costco
com~nu, nication to th~ Agency which states that haif of their employees will be part time), or close
to mmnnum wage salaries. Future employees may, in fact, relocate to the City of Cypress to
reduce their commute costs. These indirect effects of the project have to be evaluated.
Public Services: Fire protection and police protection impacts of the project are determined to be
"less than significant." The rationale for this conclusion is that the increase in demand for these
public services was "... addressed in the EIRs for both the General Plan and the Cypress Business
and Professional Center Specific Plan." Therefore, no mitigation measures are required.
However, the project must be evaluated on its own merits. The Agency cannot blindly rely on past
EIRs where the Project that will be ultimately built will have significant environmental impacts that
are greater than those analyzed in past EIRs.
Under the fire protection discussion, it is stated that the Orange County Fire
Authority will "...review and comment on the site plan prior to project approval." The Initial
Study fails to mention whether the Orange County Fire Authority was contacted as part of the
preparation of the Environmental Assessment.
The analysis on schools determines that no mitigation measures are required
because payment of state-mandated school impact fees would "... offset any cumulative effects of
employees' children who may attend the public schools in Cypress." However, the Agency fails
to address the secondary or indirect effects of future employees moving to the City of Cypress.
Furthermore, no information is provided as to whether the relevant school districts were consulted
regarding the determination that school impacts would be less than significant.
Transportation/Traffic: The transportation/circulation discussion identifies six intersections as
being selected for analysis. The Initial Study fails to discuss how these particular intersections
were selected to be part of the analysis No reason is given as to why the intersection of
B--60
Bloomfield Street and Katella Avenue was omitted from the analysis, especially since the other
three intersections that surround the project site were included in the study and such intersection
is an obvious route. Also, intersections selected for impact analysis were limited to those that
occur in the City of Cypress. Since the project directly abuts the City of Los Alamitos,
intersections within that City's jurisdiction should also have been included. The list should include
all intersections for which the project could potentially have a significant impact on
transportation/traffic. The analysis failed to do so.
Existing traffic counts were taken on a Wednesday and a Thursday. As most
retail/commercial traffic would occur on the weekends, the analysis underestimates actual traffic
impacts related to the project. A weekend traffic analysis should be included in the traffic study.
Exhibit 7, "Existing Peak Hour Traffic Volumes", does not account for any traffic
leaving the project site at its northern boundary with Walker Street. This mid-block link should
be analyzed.
Page 57 states that a "... detailed discussion of trip generation estimates for each
of the study scenarios is contained in the Phase I report." This reference to another document is
inadequate because the document is not properly described. It is not dated and it does not state
who prepared the report. In addition, the Phase I report was not listed in the References section
of the Initial Study.
Page 57 states the following: "Comparingthe three Retail alternatives, Alternative
A, the Discount Club and Gas Station alternative... ". The identification ora discount club as part
of Alternative A is contrary to the project description that provided information on generic retail
and commercial development. The Agency, for the first time, is admitting that Alternative A
corresponds with a Discount Club. However, the Agency fails to clarify that fact that the Discount
Club is a Costco.
Table 8, Summary of Trip Generation for Project Alternatives, shows that the PM
peak hour traffic for Alternative C results in 738 trips. Table 8 also identifies the PM peak hour
traffic related to the business park development that was included in the Cypress Business and
Professional Center Specific Plan (upon which the City;s General Plan traffic model is based), as
resulting in 453 trips. The increase in 285 trips, which is over a 60% increase, was not accounted
for in the traffic model upon which the General Plan and therefore, the Specific Plan is based.
Page 58 states that the trip distribution assumptions for the Business Park were
modified "slightly" for the retail alternatives. However, the Irfitial Study fails to detail what the
basis for this "slight" mo-dification was. Trip distribution patterns may be significant different for.
these two land uses.
Table i 0, Summary of Intersection Operations - Buildout Conditions With and
Without Proposed Project, shows that all of the project alternatives result in a decrease in the PM
peak hour level of service at Katella Avenue and Walker Street from "D" to "E". The
13-61
"reconmnended", not required, improvement is to add a westbound right-turn lane at this
intersection. No information on whether there is right-of-way available to implement this
improvement or when this improvement will occur is provided. The Agency is improperly
deferring the analysis of this mitigation action to a later date.
Further discussion regarding the deficiencies associated with the Initial Study's
traffic analysis is found in a letter dated April 18, 2002, from Linscott, Law, & Greenspan,
Engineers to Mr. Mel Malkoff, attached hereto as Exhibit B.
The Initial Study determines that the Project would not result in inadequate parking
capacity, and therefore, no mitigation is required. This bold conclusion is reached despite the fact
that there is no defined project against which to determine parking requirements.
Utilities and Service Systems'
Project impacts with respect to wastewater are not quantified; however,
conclusions are reached regarding the projects impacts. Conclusions are being reached without
accurate data to base them on.
Sewage system mitigation measures are provided; however, these mitigation
measures are based on the project's contribution to the system, and do not reflect cumulative
impacts
Mit~ganon Measure UTIL8 ~s recommended to ensure that water ~mpacts remmn
at or below existing levels." However, this mitigation measure is inadequate because it does not
accomplish anything. The text of the mitigation measure simply states that voluntary water
conservation will be "encouraged."
The Initial Study states that solid waste impacts of the proposed project on landfill
capacity is a "potentially significant impact unless mitigated." However, the conclusion is then that
"no mitigation measures are required." The text then goes on to list several mitigation measures
that have no relationship to ensuring that the identified potentially significant impact is mitigated.
The potentially significant impact was simply never analyzed.
Mandatory Findings of Significance' With respect to the Project, the Initial Study concludes that
there ".. would be no impact that would be individually limited, but cumulatively considerable
beyond those previously analyzed in the Cypress General Plan EIR". This conclusion is inadequate
for the following reasons: 1) cumulative analyses were not conducted for any impact except
traffic; and 2) the findings of the traffic analysis show a 60% increase in PM peak hour traffic
volumes above those contemplated by the Cypress General Plan.
B-62
EXItlBIT B
(see attached letter)
B-433
ENGINEERS & PLANNERS · TRAFFIC, TRANSPORTATION, ~ARKING
April 1 g, 2002
Mr. Mel Malkoff
MALKOFF AND ASSOCIATES
18456 Lincoln Circle
Villa Park, California 92667
SUBJECT:
LLG Reference: 2.02.2344.1
TRAFFIC ENGINEERING REVIEW OF TILE TRAFFIC INIPACT
ANALYSIS FOR TIlE PROPOSED WALKEP,/KATELLA
RETAIL DEVELOPiV[ENT IN THE CITY OF CYPRESS
Cypress, California
Dear Mr. Malkoff:
Linscott. Law & Greenspan, Engineers (LLG) is pleased to submit the following review of the
Traffic Impact Analysis, prepared by Kimley-Horn mad Associates, inc., dated March, 2002, for
the Proposed Walker/Katella Retail Development project. The proposed project site is [ocated
north of Katella Avenue mid west of Walker Street in the City of Cypress. The following.
comments are provided:
Our review was solely based upon the generic description of the uses without the benefit
of any specific user that may have a greater or lesser trip generation potential because of
the type operatio~, hours of operation and mariner of use.
Based on ou~ review the traffic impact study, the traffic forecasting methodology is
acceptable and the analysis is accurate regarding the peak hour traffic impact of the
project on existh~g conditions and a long-term (General Plan Build-out) basis, with the
exception of the analysis prepared for each alternative at the intersection of Walker Street
and Cerritos Avenue.
Project Stud),/trea: It is not clear how the list of key study intersections and project study
area was detem~ined. The six intersections that were evaluated are ail Iocated with/n the
City of Cypress. We suggest that the "1% measurable impact cr/te~ia" as de£tned in the
Co~O; qf Orange D'a/~sflo'totio~ hnpleme~latio~ g~a~ual (TIM) guidelines be applied to
the column the sphere of impact/study area is adequate.
P~tsadcna 26796-2322 · SanDi%o-619299dog0 ~ LasVegas- 7~32451-1920 , Founded 1966 · ^n LG2WgCompany
B-64
Mr. Mel Malkoff
MALKOFF & ASSOC!AFES
April 18, 2002
Page 2
~lootT!fidd Street at l~atel]a .4venue: Oiven the trip generation of each alternative and
project trip distribution, we recommend that the intersection of Bloomfield Street a~d
KateIla Avenue~ within the City of Los Alamitos be analyzed. Tkis intersection currently
operates at LOS E (ICU = 0.95) during the PM peak commute hour and with up to 20%
of retail project trips assigned to Katella, west of the project site, it is possible that the
Business Park Alternative or either of retail project alternatives will have all adverse
impact on the operating conditions of this intersection.
F~alker Street at Cerritos Avenue: The intersection of Walker Street and Cerritos Avenue
currently operates as a split phase traffic signal on Walker Street. Review of the
ICU/LOS calculation sheets included in Appendix B of the traffic study indicates that the
curt'cut "split-phase' signal operation is not accurately represented in the h~tersection
capacity analysis prepared for this study intersection. For intersect/on approaches with
split phasing, the approach movement with the greatest V/C ratio is considered to be
chtical.
As such, the addition of westbound right turn, lane on Cerritos Avenue recommended to
nfiligate the impact of build-out traffic as well as the addition of traffic generated by any
of the development alternatives will not be sufficient to improve projected adverse PM
peak hour serwce levels to the City's desired LOS D standard.
Based or~ our evaluation of"budd out p us project traffic" conditions, thc Cerritos/Walker
intersection is forecast to operate at LOS E or F with the implementation of recommended
mitigation measures (See Table 1, attached to this lel"cer report).
We appreciate the opportunity to provide this review for Malkoff & Associates. If you have any
questions regarding this letter or need additional traffic cngdneer/ng support, please call me at
(714) 641-1587.
Sincerely,
LINSCOTT, LAW, & GREENSPAN, ENGINEERS
Richard E. Barretto, P.E.
Associate Pnncipal
A tlachm ent
B--65
rAW OF,Fi'CF.$ OF
ELLIOTT I). CJ'fftEL,PEGIAN'
May 20, 2002
PLEASE DELIXrER THh; FOLLOWING PAGE(S) TO:
Firm:
Ted J. Commerdinger
City of Cypress Community
Development Department
Telephone Number: {714)
Telacopier Number: (714)
229-6720
229-0154
THIS TRANSMISSION IS BEING SENT FROM:
Re:
Page (s):
Michael S. Chielpegian
Draft Mitigated Negative Declaration
Walker/Katella Retail Project
5 (including cover page)
Please refer to the attached letter dated P~ay 20, 2002.
Thiu facsimile transmis~imn may contain conf!duntial informatl~ belonging =o the sender, and is
B-66
ELLIOTT D. CI-II;ELFEGIAN
May 20, 2002
Ted f. Cormmerdinger
Assistant Community Development Director
City of Cypress Community Development Department
5275 Orange Avenue
Cypress, California .90630
Re: Draft Mitigated Negative Declaration
Walker/Katella Retail Project
Dear Mr. Co~lraerdinger:
We are attorneys for Los Alamitos Race Course, Burlington
National Insurance Co., and Rolling A Ranch, LLC, and on behalf of
our clients, we submit herewith our comments to the above-
referenced draft Hitigated Negative Declaration and the associated
Initial Study/Environmental Checklist dated March 29, 2002 (the
~initial Study").
For the reasons set forth herein, we object to the
recommendation that a Mitigated Negative Declaration for the
project should be adopted and request that the Cypress
Redevelopment Agency (the ~Agency") and the City of Cypress (the
"City") reject the recommendation and direct that an Environmental
Impact Report be prepared.
The Initial Study's fundamental defect is that it
improperly defines the project under the California Environmental
Quality Act ("CEQA") in a piecemeal fashion. As the Agency and the
City are aware, on Marck 19, 2002, Robert Hillison wrote a letter
to the City which explained that it was improper to ignore the
Costco project while analyzing and adopting the Second Amendment to
the Redevelopment Plan for the Los Alamitos Race Track and Golf
Course Redevelopment Project (the "Second Amendment-)~ The Agency
and the City disregarded this objection and proceeded to adopt a
negative declaration and the Second Amendment. At this point, our
clients were forced to file two (2) separate lawsuits to protect
their rights, as well as those of the p~blic. The draft Mitigated
Negative Declaration in the Walker/Katella Retail Project proves
our case. The Agency and the City's desire to build a Costco is
B-67
Ted J. Commerdinger
May 20, 2002
Page 2
one project, and therefore should have been analyzed as such under
CECA.
The initial Study is similarly flawed because it purports
to cover three (3) distinct proposals, but analyzes only one
proposal, Alternative C. If the Mitigated Negative Declaration
purports to cover three (3) distinct proposals, then CEQ3% requires
that all three (3) proposals be analyzed. By its own admission,
the Initial Study covers only Alternative C (173,000 square feet of
retail and 14,000 square feet of restaurant uses}. The~
justification for this decision is an unsupported assumptio~ that
Alternative C will involve the greatest amount of daily vehicle
trips. Even if this assumption is true, Alternative C is clearly
not the worst-case scenario as for checklist items other than
traffic. For example, Alternative A involves a large gas station.
The gas station in Alternative A may pose a greater threat to the
environment under the checklist item of Hazards & Hazardous
Materials than the retail and restaurant uses ~der Alternative C.
Moreover, the City's recent actions show that Alternative A is a
more likely scenario. For instance, on February 11, 2002, the City
approved an exclusive negotiation agreement with Costco and on
April 8, 2002, the City actually accepted the Costco proposal. In
short~ the Initial Study is flawed because it completely and
admittedly fails to analyze Alternatives A and B which it purports
to cover.
In Section 1.2, the Initial Study recognized that Section
15063 of the CEQA Guidelines requires "an examination of whether
the project is compatible with existing zoning, plans and other
applicable land controls..." The applicable Specific Plan
designates the LART Project ~Lrea for use as a business park, golf
course and race track. A review of the description of the three
(3) alternatives under the Walker/Katella Retail Project leads to
the irrefutable Conclusion that changes in the Specific Plan, land
use designations and zoning are netessary to implement the proposed
Walker/Katella Retail Project. Because we know that today, an EIR
is rec~ired now.
There are also many specific flaws in the analysis of the
Initial Study. In several instances, the Initial Study fails' to
compare the proposed development against the current use of the
property as a parking lot. The Initial Study also completely fails
to compare the three (3) Alternatives under the Walker/Katella
B-68
ELLIOTT D. GI-IIiELPIE~I~-
Ted J. Co~erdinger
May 20, 2002
Page 3
Retail Project to the business park development currently shown in
the existing Cypress Business and Professional Center Specific
Plan.! Likewise, the Initial Study is fatally flawed because it
fails to compare the three (3) projects to the proposal by
Cottonwood Christian Center. For instancet there are undisputed
aesthesic differences between a church and a big-block retail
development like Costco.
According to CEQA, as well as the City's own guidelines
(e.g., Resolution No. 4363), tke Initial Study must take into
account the whole action involved including off-site, cumulative,
and indirect impacts. The Initial Study is also recfaired to
consider construction, as well as operational impacts. In this
case, the Initial Study fails to (i) adequately consider the
operational impacts and (ii') adequately design mitigation measures
to address operational impacts. For instance, Section 4.3 (Air
Quality) only address construction related impacts such as dust
control. Tkere are no proposed mitigation measures related to air
quality impacts which will be generated by the increased traffic in
this area after the project is completed.
The Initial Study is invalid and its recoramendation to
adopt Mitigated Negative Declaration should be rejected because it
fails to recognize several areas of potentially significant impacts
and the mitigation measures chosen to address the areas of
potentially significant impact unless mitigated are insufficient.
For instance, the mitigation measures in Section 4.3 (Air Quality)
fail to address the potentially significant impacts created by the
traffic which is generated by a retail project of this size.
Sections 4.7 {Hazards and Hazardous Materials) and 4.8 (Hydrology
and Water Quality) are also inadequate because they effectively
ignore the gas station component of Alternative A. Section 4.13
(Public Services) fails to recognize the obvious and significant
impacts created by a retail project of this size. Section 4.15
(Transportation/Traffic) is inadequate for several reasons,
including but not limited to the fact that there are no mitigation
~We also object to the fact that the Asaended Public Notice
of Availability-Mitigated Negative Declaration incorrectly states
that the draft Mitigated Negative Declaration studies the
Business Park alternative in addition to the three (3) retail
alternatives.
B-69
Ted J. Co~erdinger
May 20, 2002
Page 4
measures proposed for Katella Avenue. We dispute the findings of
the traffic impact analysis prepared by Kimley-Horn and A~sociates,
Inc. dated March 2002 as self-serving and conclusory. In several
instances, including but not limited to Section 4.16 (Utilities and
Service Systems), the Initial Study improperly relies on the
General Plan EIR and the Cypress Business and Professional Center
specific Plan FIR. As mentioned above, this type of retail project
has never been considered before and in fact is hOE even allowed
under the current zoning. Finally, Section 4.17 (Mandatory
Findings of Significance) incorrectly concludes that such a large
retail project, with a gas station, does not have ~the potential to
degrade the quality of the enviroru~ent~'.
We hereby incorporate by reference the objections made by
all other interested parties in the above-referenced matter.
As you are aware, CEQA reqllires an environmental impact
report if it is arguable that any aspect of the project maV cause
a significant environmental effect. Given the type and size of the
Walker/Katella Project, significant environmental impacts are not
merely possible, they are certain to occur.
On behalf of the Los Alamitos Race Course, Burlington
National Insurance Co., and Rolling A Ranch, LLC, we respectfully
requesE that the Mitigated Negative Declaration be rejected, and
instead, an EIR be prepared.
Very truly yours,
CASWELL, BELL & HILLISON, LLP
LAW OFFICES OF ELLIOTT D. CHIELPEGIAN
Hichael S. Chielpegian
MSC:dam
cc: Los Alamitos Race Course
Burlington National Insurance Co.
Rolling A Ranch, LLC
B-?0
C-3
C-4
C-?
EXHIBIT "D"
(RESPONSE TO COMMENTS)
WILL BE PROVIDED AT
THE CITY COUNCIL MEETING
EXHIBIT '~"
CITY OF CYPRESS
INTEROFFICE MEMORANDUM
TO:
FROM:
SUBJECT:
DATE:
City Manager and City Council
Ted J. Commerdinger, Assistant Community Development Director
Response to Comments- Walker/Katella Retail Project
May 24, 2002
Attached are the responses to comments generated by the City of Los Alamitos
and Cottonwood Christian Center during the first review period on the Walker-
Katella Retail Project Initial Study and Environmental Checklist.
Staff, our environmental consultant, and our environmental attorney have drafted
these responses. All these parties will be in attendance at the May 28, 2002
meeting to respond to questions.
Further, responses to comments generated by the Los Alamitos Race Track and
Cottonwood Christian Center during the second review period will be provided on
May 28th. These responses to comments will not be as voluminous as those
attached as the second set of comments largely are restatements of those
attached to this memo.
rdinger, AICP~
~ssis%Community Develop. merit Director
Attachment
EXHIBIT
Walker/Katella Retail Project
APPENDIX D
COMMENTS AND RESPONSES
C1, INTRODUCTION
The Mitigated Negative Declaration (MND) and Initial study/Environmental Checklist (IS/EC)
have been prepared pursuant to the requirements of the California Environmental Quality Act
(CEQA) (see Public Resources Code Sections 21082, 21082.1, 21091, 21092, 21092.2, 21093,
and 21094), as well as the State CEQA Guidelines (see Title 14 of the California Code of
Regulations, Sections 15070, 15071, 15072, 15073, and 15074).
The MND and IS/EC were made available for public review and comment pursuant to CEQA
Guidelines Section 15070. An initial public review period lasted from March 28, 2002 to April
18, 2002. A second public review was conducted from April 30, 2002 through May 20, 2002. In
addition, copies of the MND and IS/EC were made available for public review at the City of
Cypress Community Development Department, located at 5275 Orange Avenue.
During the public review period, comments were received on the MND and IS/EC from the
public and from interested public agencies. In accordance with CEQA Guidelines Section
15074, the Cypress Redevelopment Agency, acting as Lead Agency, has evaluated comments
on environmental issues received from the persons, firms, or agencies who reviewed the MND
and IS/EC. CEQA Guidelines Section 15074 (b) states:
"Prior to approving a project, the dec/sion making body of the lead agency shall
cons/der the proposed negative declaration or mit/gated negative declaration
together with any comments received during the public review process..."
Even though CEQA and the CEQA Guidelines do not require a Lead Agency to prepare
written responses to comments received on a negative declaration, as contrasted with a
Draft Environmental Impact Report (see CEQA Guidelines Section 15088), the Cypress
Redevelopment Agency has elected to prepare the following written responses in the spirit of
conducting a comprehensive and meaningful evaluation of the proposed project.
The following is a list of the persons, firms, or agencies that submitted comments on the MND
and IS/EC during the public review periods:
A. City of Los Alamitos, dated April 18, 2002 (attached as Letter A); and
B. Sheppard, Mull/n, Richter & Hampton, LLP, dated April 18, 2002 (attached as Letter B).
Following each comment letter are responses to the environmental issues raised in the letters.
The letter-number designations in the responses are correlated to the bracketed and identified
portions of each comment letter.
JN r0-102089 C-I Comments and Responses
C2. COMMENTS AND RESPONSES
Walker/Katella Retail Project
JN ~0-102089 C'2 Comments and Responses
CITY OF l.OS .ALA. MITOS
April 18, 2002
BY FA.C_S_~LE AND U,S. MAIL
Ted 3. Commerd~er, AICP
Assistant Community Development Dke~tor
C{ [~ 0 f Cypre~ Commuan/ty Devel~menI Department
$275 Orate Avenue
Cypress, CA 90630
Re: Walker/Katella Retail Projeat
Dear M_r, Commerdinger:
We appreciate the opportunity to comment on the In/rial Study and Environmental
Checldist prepared for the Walker/Katella Retail Project. We have limited ollr
comments to those issues that are of principal concern to the City of Los
Alamitos. In particular, we are concerned that the proposed Retail Project is not
consistent with the Cypress Business and Professional Center Specific Plan and
will have both direct and cmulative impacts beyond what was contemplated in
the I990 EIR for the Specific Plan. Consequently, the Pr6ject h,~ the potential to
violate the terms and conditions of the Cypress Business and Professional Center
Traffic Mitigation Agreement our c!ties entered in 1990. We
comments with the hope and expectanon that our concerns can be addressed in
the e??perat~ve manner that has characterized the historic relationship between[
OUr ¢ItlC.~.
LAck of Notice
We first e~prcss our disappointment that the Notice of Determination for ~-~e
Initial Study and proposed Mitigated Negative Declaration was not sent to the
City of Los Alamitos. As you know, Public Resour, es Code § 21092.4 requires
that notificatio~ and cooiea be prohd~l to those agencies and jurisdictions that
will be affeo~ed by the proposed avtion. Fortunately, a concerned citizen brought
to our attention the posted notice on the site, andWe were able to purchase a copy
of the document for $25.00. Unformrmtely, our ability to evaluate particular
traffic impacts has been impaired by [he lack of adequate notice of the proposed
Mitigated Negative Declaration. We request that Los Alamitos be notified of all
future action concerning this Project or any other part of the Cypress Business and
Professional Center. ,
Potential £onfl U;:e Impacts
Appendix A purports to m~e ~he Project? eoasisteacy with the C'ypress-~
C~neral Plan, the Cypress Business and Professional c*nter Specific Plan, and the
Cypress Redevelopment Plan. Ap. pendix A should also reCogn/ze' and show
consist-e~cy ~ihh the TrM'fiC MitigahOn Agreement referenced above. While th/s
Ted J. Commerdinger, AICP
Assis~t Community Development Dinsctor
Apri~ 18, 2002
Page 2 of 2
Agreeraent is referenced as a mitigation requirement in the traffio and circulation
section of the Study, there i~ no discussion of Whether the Project complies with
the limitations set forth in that Agreement. ..
While thc Initia~ Study concludes that the Project is consistent with the Specific--
Plan, the discussion does not reflect the basis for tbi_~ conclusion. As rose, i-ed
in the Study, Planning Area 5 of the Center is designated for Professional Office
development "intended to accommodate the development of professional and
adrninisu~five offices that complement the Hotel Center within the Specific Plan
areaJ' Appendix A, p. 6. Although the underlying zoning ordinance tecbxffcally
allows many different kinda of uses. either with or without a conditional use
permit, the Initial Study does not ~,'/&e. ss how the proposed Project is consistent
with the overall purpose and intent of the Specific Plan. Fkst, it is tetEug that all
of the uses contemplated by the Project require conditional use permits under the
Specific Plan. Second, the Initial Study falls to discuss the impacts associated
with the replacement of pro£essicma] office space with a large "discount club"
retailer. As referenced above, there is no discussion of whether the "big box"
retail uses contemplated by the Project would "complement the Hotel Center
within the Specific Plan area." Both with respect to tlfis ProjeCt, therefore, as
well a~ cumulatively, the knpIementation of a "big box" retail project instead of
the forecast office use~ may result in aa unbalanced plan that could disrupt the
salability of the hotel use already under construction. We note that the Specific
Plan goals of golf course revitalization and hotel use were plagued to be
supported by the potential customer base asmciated with the development
contemplated by the Specific Plan. Similarly, development of the hotel was
induced by the stated goals of the Specific Plan for Planning Area 5.
The Proposed Project is also inconsistent with the alternatives discussion set ~
in the 1990 CBPC EIR. Th~ Project described in that EIR is laid out in the
Specific PJan and expressly provided for professional offices in Planning Area 5.
The EIR expressly rejected intensive retell development based on the oonoern that
such development "does not meet the basic project objectives for revitalization of
EI~ p. 170. NeVertheless, despite the plain intent o~ the'CBPC'EI:R and the
Specific Pla~ the Project was narrowly flefined here to call orfly for "big box"
retail projeots. Thus, the narrow defi,~tion atiopted in the project description has
de facto prevented the cO~iderat~on of other viable projects, in¢iuai,,g projects
more consistent with the intent o£the CBPC FIR mad the Spec/fie Plan.
.Tral~¢ o~tl Circulotiot~..[ra~.oe~ ' /
We first observe that, contrary to the Initial Study's conclusions, the 1990
acknowledges that traffic, air quality, and noise impacts a~ociatccI with retail
projects are far greater than those ~.ssociated with profesaional office
development. Bn~ p. I69. Further, the Initial Study does not adequately discus$
circulation impact fi`om the Project, which potentially varies flora thc circulation
patterns identified hl the Specific Plan. Notably, the Traffic Mitigation
Ted J. Commcrdinger, AI~
Assistant CommuEty Development Director
AFrll 18, 2002
Pa~e 3 o£3
Agreement not only caps traffic volume, but was also intended tn require
circulation solutions that reduce impacts on Los Alarnitos. These issues are
critical in that thc City of Los Al~mJtos would prefer access to the Project to be
direct~ through walker Street and to route trdfic out of thc Project to arterials
other ,h~n Katolla. Without further analysis of circulation, the impacts of the
potential distribution of traffic (access/parking) cannot be evaluated. ..___._____._
The Initial Study ~lso does not adequately identify traffic generation~ ra~es for th~-
various uses in t~i,ns of vehicles p~ 1000 square feet of development, for
comparison against data from the original EI1L Further, the standard~ used in the
Study are not adequate to qua.utify traffic impacts within the highly-developed
Southern California region. Appendix A evaluates Retail Alternative A (the
recommended alternative) under rte standards, which are stanehrds based upon
tmtional traffic data. While ITE data may provide adequate statistics for general
comparisons, we recommend that the same analysis be conducted using
SANDAG standards, which are based upon traffic data drawn specifically from
Southern California. Moreover, while it is public knowledge that Costco is the
intended retailer for the Project, the Initial Study does not appear to have made
any inquiry regazding Costco-specific traffic data. Costco is widely recognized as
one of the highest intensity reta.il uses within_ the Southern California market and
will generate substantially more traffic than other retail uses, including other
discount club uses. Costco 'ttas numerous locations in southern California that
could provide a mc;re precise picture of the traffic situation for the Alternative A
scenario. Further, it is our perception that a Costco with a gasoline station is a far
greater traffic g~nerator than the estimales provided for by the combined ITE
standards, ~
The Initial Study d?.es not appear to consider consistency with the Specific PI~--~ ~ ~-
for the added conditions and considerations that are require4 under SeCtion 7, I ~-~ .-
"Appl/cafion." Specific Plan, p VI-12 ' ~?_~TV
Appendix B, Traffic impact ,AnalysB (page 31); fifth paragraph...appeaxs th
transpose figures for Alt. A ~nd Alt. C.
Cumulative Impacts
The concerns identified above about potential direct impacts apply equally to the
Project's cumulative impacts. We were surprised t~ see that the Iaitial Study
conoludes that there is little potential for cumulative impacts, especially in light of
the change from the contemp!at~ use u~der the Specific Pla~ and the high
volumes of traffic generated by discount clubs ha general, and particularly by
Costco. As explained above, we are concerned that the synergy of development
comemplated by the Specific Plan will be und;.,uined by a separate, unitary retail
commercial development of little interest to business professionals, including
Ixavelers who are intended to use the hotel services.
Ted .I. Corn~erdinger, .ale?
Assistant Community Development Direztor
April 18, 2O02
Page 4 o£ 4
We also believe that the Project will radically accelerate traffic impacts and
threat, an the limits imposed under the Traffic Mitigalion Agreement, assuming
they are not already exceeded. Development of these 18 acres in this intense
manner leaves few options for development of other parcels under the governing
documents, including the C~PC ElK, the Specific Plan a~d TraffiC. Mitigation
Agreement. Assuming Cypress intends to encourage profe~s/orml office
development on thc remaining portion of Area 5, the Costco ~affie impacts.~
pose cumulative impact problems for that future development.
In particular, the buildout figures assumed in the Study already ~
unaa:eptable levels for at least one intersection. We remind you that "buildout" is
a relative term based on development planned within Cypress alone that may not
accuratelY reflect actual future uses or impacts and may not adequately account
for impaet~ at regional a~erials from neighboring jurisdictions. In fact, vlrtaally
every intersection along Katella has already been affected by development af the
Bixby Ranch project. The 1990 EIR recogn/zed the potential impacts on
intersections farther along Katella, including the intersections at Los Alamitos and
Bloomfield. There is no indication in thc Initial Study that these regional
clevelopments have been considered for the cumulative impacts analysis.
We rems. in ready and willing to discuss these and other impacts with you.
also ask that you include u~ in the future as an affected ~urisdicffon for any action
taken under the Specific Plan. And, when rcv~slons and comments to the Initial
Study have been addressed anti completed, we would like to receive a ex~y,
Please address the copy to John Godlewski, AICp, Commul]itY Development
Dir~tor, at the above address. ShouId you have any questions regarding this
response please do not hesita(e to contact me or Mr. Godlewski.
Sincerely,
3~ohn Godlew.~ki, AICP
Community Development Director
A. RESPONSES TO COMMENTS FROM JOHN GODLEWSKI, AICP, COMMUNITY
DEVELOPMENT DIRECTOR, CITY OF LOS ALAMITOS, DATED APRIL 18, 2002.
A'I. Comment acknowledged. Responses to the specific comments of the City of Los
Alamitos on the Walker/Katella Retail Project Mitigated Negative Declaration and Initial
Study/Environmental Checklist are contained in Responses A2 through A12 below.
A2. CEQA Noticing
The Cypress Redevelopment Agency relied on Sections 15072(a), 15381 and 15386 of
the CEQA Guidelines (see Title 14 of the California Code of Regulations) to determine
the list of agencies that were required to receive the Notice of Intent to File a Negative
Declaration. These three relevant sections of the CEQA Guidelines are cited below.
Section 15072(a) of the CEQA Guidelines states:
"(a) A lead agency shall provide a notice of intent to adopt a negative
declaration or mitigated negative declaration to the pubfic, responsible
agencies, trustee agencies, and the county clerk of each county within
with the proposed project is located, sufficiently prior to adoption by the
lead agency of the negative declaration to allow the pubfic and agencies
the review period provided under Section ~ 5 ¢ 05~"
Section 15381 of the CEQA Guidelines provides the definition of a responsible agency:
"'Responsible agency' means a pubfic agency which proposes to carry
out or approve a project, for which lead agency is preparing or has
prepared an EIR or negative declaration. For the purposes of CEQA,
the term responsible agency ~ncludes ali public agencies other than the
lead agency which have discretionary approval power over the project."
Section 15386 of the CEQA Guidelines provides the definition of a trustee agency:
"'Trustee agency' means a state agency having jurisdiction by law over
natural resources affected by a project which are held in trust for the
people of the State of California. Trustee agencies include:
(a) The California Department of Fish and Game with regard, to the
fish and wildlife of the state, to designated rare or endangered native
plants, and to game refuges, ecological reserves, and other areas
administered by the department.
(b) The State Lands Commission with regard to state owned
sovereign land such as the beds of navigable waters and state school
lands.
(c) The State Department of Parks and Recreation with regard to
units of State Park System.
(d) The University of California with regard to sites within the Natural
Land and Water Reserves System."
JN '10-102089 C-7 Comments and Responses
Walker/Kate/ia Retail Project
Under the definitions provided in CEQA Guidelines Sections 15381 and 15386, the City
of Los Alamitos is neither a responsible agency nor a trustee agency. Thus, the Cypress
Redevelopment Agency was not required to provide the City of Los Alamitos with a
notice of intent to adopt a mitigated negative declaration. In any event, the City of Los
Alamitos had actual knowledge of the pendency of the proposed mitigated negative
declaration, and availed itself of the opportunity to timely provide comments to the
Cypress Redevelopment Agency.
Projects of Statewide, Regional or Areawide Significance
Public Resources Code Section 21092.4 specifically addresses consultation with
transportation planning agencies and requires such consultation for projects of
statewide, regional, or a~'eawide significance.
"21092.4 (a) For a project of statewide, regional, or areawide
significance, the lead agency shall consult with transportation planning
agencies and public agencies which have transportation within their
jurisdiction which could be affected by the projecL Consultation shaft be
conducted in the same manner as for responsible agencies pursuant to
this d/vision, and shall be for the purpose of the lead agency obtaining
information concerning the project's effect on major local arterials, public
transit, freeways, highways, and rail transit service within the jurisdiction
of a transportation planning agency or a public agency which is consulted
by the lead agency. A transportation planning agency or public agency
which provides information to the lead agency shall be notified of, and
provided with copies of, environmental documents pertaining to the
project."
CEQA Guideline Section 15206(b) defines the types of projects that qualify as projects of
statewide, regional or areawide significance:
"15206 (b) The load agency shaft determine that a proposed project is
of statewide, regional, or areawide significance if the project meets any of
the following criteria:
(1) A proposed local genera/p/an, element, or amendment thereof for
which an E/R was prepared. If a negative declaration was prepared for
the p/an, element, or amendment, the document need not be submitted
for review.
(2) A project has the potent/al for causing significant effects on the
environment extending 'beyond the city or county in which the project
would be located. Examples of the effects include generating significant
amounts of traffic or interfering with the attainment or maintenance of
state or national air quafity standards. Projects subject to this subsection
include:
(A) A proposed resident/al development of more than 500 dwelling
units.
(B) A proposed shopping center or business establishment employing
more than 1,000 persons or encompassing more than 500,000 square
feet of floor space.
JN 10-102089 C-8 Comments and Responses
Walker~Kate/la Retail Project
(C) A proposed commercial office building employing more than
1, O00 persons or encompassing more than 250,000 square feet of floor
space.
(D) A proposed hotel/mote/development of more than 500 rooms.
(E) A proposed industrial, manufacturing, or processing plant, or
industrial park planned to house more than 1, O00 persons, occupying
more than 40 acres of land, or encompassing more than 650,000 square
feet of floor area."
Section 2.4 (Project Character/st/cs) of the Initial Study/Environmental Checklist provides
a description of the three retail alternatives proposed for the project site. As shown in
Table 2 (Project Alternatives) on page 11, Alternative A proposes 177,000 square feet,
Alternative B proposes 160,300 square feet, and Alternative C proposes 186,900 square
feet. All three alternatives are significantly below the statewide, regional, or areawide
significant threshold of 500,000 square feet for a shopping center. As such, the noticing
requirements cited by the City of Los Alamitos are not pertinent to the proposed project.
Future Noticing
The Cypress Redevelopment Agency acknowledges the request of the City of Los
Alamitos to be notified of future action concerning the Walker/Katella Retail Project or
other projects within the Cypress Business and Professional Center Specific Plan area.
The Cypress Redeveropment Agency will transmit this request to the City of Cypress as
well.
A3. Cypress Business and Professional Center Traffic Mitigation Agreement
On August 20, 1990, the City of Los Alamitos, the City of Cypress, and Cypress
Development (a California general partnership) entered into the Cypress Business and
Professional Center Traffic Mitigation Agreement. The agreement addresses property
that is included with Specific Plan No. 89-1, approved by the City of Cypress on April 17,
1990, and the Cypress Business and Professional Center Development Agreement No.
90-1 between the City of Cypress and Cypress Development, approved on May 24,
1990.
The parties agreed to the following measures:
1. Full Mitiqation. Execution of the agreement would result in full compensation
for and mitigation of any traffic impacts in the City of Los Alamitos from development
within the Specific Plan area.
2. Material Amendments to Specific Plan. The agreement specified that material
amendments would occur when cumulative new development within the Specific Plan
area exceeds 1,827,754 square feet, or increases traffic impacts of development within
the Specific Plan area or on particular roadways to and from the Specific Plan area
beyond the traffic figures cited in the Final Cypress Business and Professional Center
Specific Plan Environmental impact Report, dated June 1990.
3. Katella Avenue Maintenance Payment. The City of Cypress agreed to pay
$10,000 a year for 20 years to the City of Los Alamitos, which sum shall be used to
maintain and repair the portion of Katella Avenue that is within the City of Los Alamitos.
JN 10-102059 C-9 Comments and Responses
Walker/Kate/la Retail Projec~
A4.
4. Traffic Mitiqation Contribution. Developers of new construction within the
Specific Plan area shall be required to pay to the City of Los Alamitos a mitigation fee of
$1.00 per square foot.
Page 65 of the Mitigated Negative Declaration and Initial Study/Environmental Checklist
provides an overview of the traffic 'mitigation agreement and includes payment of the
traffic mitigation contribution fee as a mitigation measure T4. The proposed
Walker/Katella Retail Project shall comply with the traffic mitigation agreement and
mitigation measure T4.
Since the Specific Plan was adopted in 1990, five projects have been approved within
the Specific Plan area and are either under construction or have been constructed.
Those projects include: Cypress Corporate Park, Ushio America, 10801 Walker Street
office building, Marriott Residence Inn Hotel, and Grace Church and School. With the
proposed WalkedKatella Retail Project, a total of 793,068 square feet has been
proposed or developed on 52.83 acres, with an overall Floor Area Ratio (FAR) of 0.35
(refer to Table A of these responses). As shown on Table A, development within the
Specific Plan area is well below the potential development capacity anticipated in the
Specific Plan.
Given that the Walker/Katella Retail Project shall comply with mitigation measure T4,
and that development within the Specific Plan area is well below the potential
development capacity, the WalkedKatella Retail Project is consistent with the Cypress
Business and Professional Center Traffic Mitigation Agreement. A consistency
discussion with the Cypress Business and Pro~essional Center Traffic Mitigation
Agreement need not be added to Appendix A.
See Response A5 for the consistency of the WalkedKatella Retail Project with both the
intent and the goals, objectives and policies of the Cypress Business and Professional
Center Specific Plan.
Section 1.2 of the Initial Study/Environmental Checklist provides an explanation of the
purposes and contents of the document. The environmental analysis and contents of the
Walker/Katella Retail Project Initial Study/Environmental Checklist are consistent with
stated purposes in Section 1.2.
Section 2.2.2 of the initial Study/Environmental Checklist provides a description of
surrounding land uses to the north, south, east, and west. Section 4.9a (page 42 of the
Initial Study/Environmental Checklist) provides an analysis of the
compatibility/consistency of the project with surrounding land use and states:
"The area surrounding the project site has been developed with business park,
commercial, office or industrial. The proposed project is consistent with the
surrounding land uses."
The proposed WalkedKatella Retail Project is compatible with the range of business
park, commercial, office or industrial uses surrounding the project site.
As shown on Table A, maintaining a balance of land uses within the Specific Plan area is
reflected in the approved and/or proposed projects.
JN 10-102089 C-lO Comments and Responses
Insert Table A
Walker/Kate/la Retail Proje¢l
JN 10-102089 C-11 Comments and Responses
Walker/Kate/la Retail Proje¢~t
A5.
With respect to the hotel, the hotel will not only serve business park, office or industrial
users within the .Cypress Business and Professional Center Specific Plan, but will serve
businesses within the entire Cypress Business Park and the City, as well as visitors to
the City.
The 1990 Specific Plan EIR included the No Development Alternative, the No
Project/Existing Zoning Alternative, Residential Only' AlternatiVe, Retail Commercial
Center Alternative, Reduced Density Alternative, and Alternative Site Altei'native. Under
the Retail Commercial Center Alternative, a total of 1,829,520 square feet of retail
commercial uses would be permitted Jn Planning Areas 2, 3, 4, 5 and 6. The conclusion
regarding this alternative is restated below from page 170 of the 1990 Specific Plan EIR.
"It is anticipated that tax revenues (especially sales tax) would be greater
than the proposed project. This alternative does not meet the basic
project objectives for revitalization of the golf course, professional office,
mixed-use business park and hotel uses."
It is important to note that only retail uses were proposed under this alternative and that
an all retail alternative would not meet the project objectives. However, the proposed
Walker/Katella Retail Project would encompass approximately 18 acres, which
represents only 54 percent of Planning Area 5 and 2.4 percent of Planning Areas 2, 3, 4,
5, and 6.
Section B on Page 11-2 of the 1990 Specific Plan sets forth a discussion of the purpose
and intent of the Specific Plan, including the following pertinent language: ~
"It is the intent of this Specific Plan to establish development regulations
and design guidelines that will ensure a quality development in the project
area that contributes to the City's office/commercial employment base,
retains the goff course and race track uses, is consistent with the goals,
objectives and policies of the Cypress General Plan, and is compatible
with adjacent land uses."
The proposed WalkedKatella Retail Project would contribute to the City's
office/commercial employment base, is consistent with the goals, objectives and policies
of the Cypress General Plan, and is compatible with adjacent land uses. Thus, the
proposed Walker/Katella Retail Project is consistent with both the purpose and intent of
the Cypress Business and Professional Center Specific Plan.
Section 2.4 (Project Characteristics) of the Initial 'Study/EnvironmentaL. Checklist
describes the three retail alternatives for the project. The three alternatives proposed for
the WalkedKatella Retail Project are consistent with the intent of the Specific Plan as
described above. In addition, Section 4.9b of the Initial Study/Environmental Checklist
(at pages 42 through 45) provides a synopsis of the land use consistency analysis
contained in Appendix A. The WalkedKatella Retail Project is consistent with the goals
and policies of the .Cypress General Plan Land Use Element; the goals, objectives, and
policies of the Cypress Business and Professional Center Specific Plan, and with the
goals of the Los Alamitos Race Track and Goff Course Redevelopment Pla,. In
addition, the WalkedKatella Retail Project implements the goals, objectives, and policies,
as applicable, of these three policy documents.
JN 10.102089 C-12 Comments and Responses
Walker/Kate/la Retail Project
A7.
A8.
A6,
Page 169 of the 1990 Specific Plan EIR acknowledges that business park uses generate
more peak hour traffic, while commercial uses generate more overall traffic on a daily
basis. This is consistent with the statement in the Initial Study/Environmental Checklist
that "It]he Business Park would generate the least amount of traffic on a daily basis, but
would generate the greatest amount of morning peak hour traffic."
The traffic analysis contained in the Initial Study/Environmental Checklist assumes site
access provisions consistent with the Cypress Bus/ness and Professional Center
Specific Plan, which in turn assumes the installation of signalized entrances at Winners
Circle on Katella Avenue, and at the north edge of the Planning Area (Planning Area 5)
on Walker Street, as well as secondary entrances on both streets. More detailed
analysis of site access and on-site circulation through the parking fields would be
conducted at the site plan level, when an actual project plan is submitted.
The traffic analysis contained in the Initial Study/Environmental Checklist demonstrates
that the retail alternatives would generate less traffic in the morning peak hour, with
slightly more traffic in the evening peak hour and more overall traffic on a daily basis.
Traffic patterns associated with retail uses also tend to be less heavily directional in the
peak hours, compared to commute-hour traffic patterns associated with employment
uses.
While the total number of trips associated with retail uses is higher than employment
uses, two aspects of retail traffic offer mitigating circumstances. First, retail uses draw
traffic from the existing, passing traffic stream, and do not represent all new trips to the
area street system. Second, the location within the Cypress Business and Professional
Center Specific Plan area offers the opportunity for interaction and sharing of trips
between employment and commercial uses.
Costco is not necessarily the final or intended user, as no agreement is in place.
Therefore, a predisposal of that use is presumptive at best. The trip generation rates
used in the Cypress Business and Professional Center EIR (1990) were based on the
Institute of Transportation Engineers (ITE) Trip Generation Manual, 4th Edition, which is
the edition that was current at the time the EIR was' prepared. The traffic analyses for
the 1994 and the 2001 updates to the City of Cypress General Plan were also conducted
using ITE trip generation rates. The ITE manual is consistently used throughout Orange
County cities, is the recommended source in the Orange County Congestion
Management Plan, and is the accepted trip generation source for the City of Cypress.
The trip generation rate utilized for Retail Alternative A was ITE Land Use Category 861,
Discount Club, which is based specifically on discount stores "where shoppers pay a
membership fee in order to take advantage of discounted prices on a wide variety of
items such as food, clothing, tires, and appliances." A separate trip generation
assumption was applied to the members-only gas station, with a reduction taken for
combined gas station and discount club store trips.
This comment references one of the subsections under the General Retail Commercial
land use designation discussion in the Cypress Business and Professional Center
Specific P/an. Section 7 (Application) states:
"The general retail commercial uses may be established anywhere in the
Specific Plan area so long as the development has arterial highway
JN 10-102089 C- ~ 3 Comments and Responses
Walker~Kate/la Retail Projecl
A9.
Al0.
frontage and is adequately integrated into the adjacent, existing or
planned development as determined by site p/an review. Considerations
in establishing acceptable design integration include:
Cons/stent with application of design guidelines
. CootTdinated access andpark/ng
· LOgical combina'tion of uses"
The Walker/Katella Retail Project is consistent with the Professional Office land use
designation for Planning Area 5, and is not proposing a land use designation change.
Thus, Section 7 of the Specific Plan is not applicable, because it pertains only to the
General Retail Commercial land use designation.
This comment is correct· The sentence will be revised accordingly.
Section 15152(0 of the CEQA Guidelines provides guidance regarding the discussion of
cumulative impacts in second- or third-tier EIRs or negative declarations.
"15¢52(f)(1) Where a lead agency determines that a cumulative effect
has been adequately addressed/n the prior E/R, that effect/s not treated
as significant for purposes of the later E/R or negative declaration, and
need not be discussed/n detail.
15152(0(3) Significant environmental effects have been "adequately
addressed" ff the lead agency determines that:
(A) they have been mitigated or avoided as a resufl of the prior
environmental impact report and findings adopted in connection with that
prior environmental report,-
(B) they have been examined at a sufficient level of detail in the prior
environmental impact report to enable those effects to be mitigated or
avoided by site specific revisions, the imposition of conditions, or by other
means in connection with the approval of the later project; or
(C) they cannot be mitigated to avoid or substantially lessen the
significant impacts of the project proponent's willingness to accept all
feasible mitigation measures, and the only purpose of including analysis
of such effects in another environmental impact report would be to put the
agency in a position to adopt a statement of overriding considerations
with respect to the effects:"
Section 4.17b of the Initial Study/Envbonmental Checklist addresses the cumulative
impacts question. The analysis on page 71 states:
"There would be no impact that would be individually limited, but
cumulatively considerable beyond those previously analyzed in the
Cypress General Plan EIR, September 200¢, for the environmental
issues analyzed in this Initial Study/Environmental Checklist. Therefore,
the proposed project would not result in a significant impact in this
regard."
JN 10-102089 C-'14 Comments and Responses
Walker/Kate/la Retail Proje~;I
A11.
The conclusion in the Initial Study/Environmental Checklist is therefore fully consistent
with the determination necessary under Section 15152(f)(3)(A).
The Retail Alternative A would generate 2,131 more trips on a daily basis than the trips
associated with the allowed square footage for professional office use, with 226 fewer
trips in the morning peak hour, and 125 more trips in the evening peak hour. The
difference in morning peak hour traffic is the equivalent of developing 215,238 fewer
square feet of Business Park. The difference in the evening peak hour trips represents
129.938 square feet of Business Park.
Aisc, refer to Response A3.
A12, Analysis of two additional intersections has been added to the analysis: Katella Avenue
and Bloomfield Street, and Katella Avenue and Los Alamitos Boulevard.
[NOTE TO TED AND PHIL- THIS RESPONSE WILL BE EXPANDED ONCE SERINE
RETURNS NEXT WEEK] [incorporate or refer to B817]
A13. Comment acknowledged. Referto Response A2.
JN 10-102089 C-15 Comments and Responses
(213) 617-5565
ATTO R~E¥$ AT tAW
I:OrtTY.I:!~ ffr~ r4.o o II
~ SOUTM MOPE mEET
LO~ A~r-~LE~, CALIFORNI,~ 900~.1~4~
April 1 g, 2002
Cypress IKedevelopment Agency
52'/5 Orange Avenue
Cypress, Call£omia 906~0
Artn: Mr. Ted .T. Commerdinger,
Assistant Community Development Director
IIAND DELIVERED
Cott0r~woo_4 Christian Center's Oblecrions tg. ~e Alleged
W~alker/'KateIla_R~ail Proje~ MitiRated .N. egafive Declaration
and Initial Study/Environmental Checklist dated Ma, cb, :29. 2.002
Cypress Redevelopment Agency:
We represent Cottonwood Christian Center ("Cottonwood"). thc owner of six
/ndiv/duaI parcels [the "Cottonwood Pro.-err. ") located within the LART Redevelopment Project
Area (the "L...SRT Redcvelog.ment AreR"). We write to set forth Cottonwood's comment~ an~-
objections to the alleged Walker/I~tella Retail Project Mitigated Negative Declaration
and Initial Study/~w/ronmental Checklist dated March 29, 2002 ("Initial Stud_y"). Due to the fact
that a drat~ MND has not yet been prepared or made available for public review (a fatal flaw by
itself~, and that numerous flaws are c~ntained in the In~fial Study, all of which are discussed
below, the Cypress Red evelopment Agency ("Ag.~l~") is COmpelled to start its process over again-
with the prcparation o£a new Initial Study. Eve. a though the current lnitial Study is fatally flawe'~
and wholly lacking of adequate analysis and ird'ormation, it is apparent that the Agency must
prepare, and we hereby request that it prepare, a full Environmental Impact ReporI ("EIR") under
the California Environmental Quality Act ('~'CEQ^"1 for the Walker/Kat¢lla Retail Project (the
"Proi~t").
On or about.January 15, 2002, Cottonwood filed a Verified Complaint and Verifi~-----~
Petition for Perempto~ Walt of Mandate against both tho Agency and the City of Cypress in both I
the Llnked States District Court, Central District of California ~nd thc Superior Court of'the State[
Wc were informed by Mr. Commerdinger. and also confirmed by review of the ol~fic/al
Agency file for the proposed MND, that no draft MND has been prepared or circulated.
Thus. oojectionS herein are based upon the Initial Study and apply equally To a~y proposed
MND hereinafter prepared by the Agency.
C ^r'ronN £vs
ypress Redevelopment Agency
April 18, 2002
Page 2
of. Cahfornia for the County o.f Orange (co!lectiv~ly, tho "Com~l~,,), for violatio~
et, among other things, the United States and C~i£o,,~a Constitutions, the Religious Land Use and
InstitutionaHz~ Persons Act and other laws, including the C'dliforn a Environmental u '
and Cal~formas Communiv/Redevelopment Law. Q al~ti~
The adoption of the Initial Study, and any proposed MND the
~UCr~, e~lr~rl O1'/GOttot~Wood,s rifler r~M~,~: ..... .~ .t. ,.~-_. , "",t',~,,, ~nu r~luorl.
¢ .......... . .... ,- . -,-~,*,~,, ,u~u me t, lrys a~a Agency's v/elations of the Urfited
hereby restated and mco,',,orato,~ ~-~--:- ,- --- ~ . p and Petition ~ /
,~[~c~ a~ne ca~roml.a uonst~tutlons and other lam as stated in the Corn
· v ,,,~ .~.t~m oy rras re~erence ~ though set forth fully herein.
DE__~I.O.N wOU~LD NOT, BE IN cOM~_LIAlqCE WI'IF/TI-~E CALIF0gI?IA
~, AQT; AN E_NVIR_O~NMENTAL IMPACT REPORT
A. _The Agency Must Pre are d C__erti~ an EIR for the Pro¢osed Proieq.
!. Overview o~ C_.q_C~E~. CEQA was enacted in response to the wdl-documentec
failure of~ate and local governmental agencies re cons[der ~ully the environmental imptication,~
of :he/r a~ons. Selmi, Thee Jud~c al Dcvelonrnerlt q{the.,Calif0rnia E. rMrqr~memal Quality Act
18 U C.D.L. Rev. 197 (1984).-~ The Galifom/a SUpreme Cour~ has repeatedly affirmed that CEQA
mst be interpreted libera/ly "to ~t'ord the fUllest possible protection to the environment with/n the
reasonable scope of the statutory language." _Laurel. H~ight~ Improvernellt Asm. v. The R. egent~
.o..f'the University o,t.. Callfgr0ia. (~~,,), 47 Cai. Sd 376, 390 (19g$), ~
Friends ofN~mmmh v. Bo~cl of S.uperv/sors, 8 Cal.'id 247, 2.59 (1972).
Thru: of the central purposes of CEQA are to (i) inform governmental decision
makers and the public ab°ut the potent'al $igraficant env/ronmen~ effects o£a proposed project,
(i~) identify ways that env/ronmental damage can be avoided or significantly reduced and (iii)
disclose to the public the reasons why a governmental agency approved Ihe project in the manner
the agency chose if~ignifioant env~ronment~l effects are involved. Guidelines § § 1 $0o2(a) (1), (2)
and (3).
The Office of Planntng and Research has promulgated guidelines to implement CEQA.
14 Cal. Code of Regs. § 15000 ~eq. {'the "Cmideline~").
Cyp l~d Ag ^T~o,~s ^~ L^w
tess evelopmem ency
April ]g, 2902
Page 3
The SIR is the heart of CEQA. Guidelines § 15003(a), As noted by [he Ca.Hforrda
Supreme Corot, the EIR:
"is the primary means ofachiev~ng the Leg~lalure's considered declaration
that it is the policy ofth~ statB to 'take ail ac[ion necessary to protec%
rehabUkate, and enhance the emvironmental quality of the state.' (§ 21
subd. (a).) ... Because the EIR mum be cm-tified or rejected by public
officials, it is a document of accountability. If CEQA is scrupulously
followed, the public will know the basis on which its responsible
~ther approve o reJeCt environmentally s~gn~ficant action, ~"~d the public,
being doly informed, can respond accord~ng}y to action with wl'dch it
d~sagrees, [Citations]. ThcEIRproc~ssprotectsnotonIytheenvironme.nt
but aisc informed ~elf-government." Laurel l-Ie[~bi$ I, 47 Cai.3 d at
CEQA provides for a three-tiered en~iromnental ~alysis. First, the lead agency
determines whether the project is e×emp~ from CEQA review. Guidelines § 15061. if the lead
agancy concludes that the project is not exempt from CEQA, the lead agencY then conducts an
initial study to ~scertain whether to prepare aa EIX or a negative declaration in connection with
the project. The lead agency may only adopt.a "negative declaration" or a "mitigated negative
declaration" when the initial study concludes that "it]here is no substantial evidence ... that the
p eject may have a mgmficant effect on the environment" and further CEQA rev/ewis unnecessary.
Cai. Pub. Res. Code § 21080(c)(i)._~ As further explained by § 15070 of the Guidelines,
public agency shall prepare.., ia] m/figated negative den!an, trion for a project subject to CEQA
when... (b) the init/al study identifies potentially significant effects, but (1) rev/sions in the project
plans or proposals made by, or agreed to by the applicant before a proposed mitigated negative
dedarat/ou and init/al study are released for public review would avoid the effects or mitigate the
effects ~o a point where clearly no significant effects would occur..
An EIR serves "to demonstrate to ~n apprehensive citizenry that the agency has in faa
analyzed and considered ~e ec~logicaI implicat/ons of its action," ~f
~ 1~ Cal.3d dS, g6 (1974), An EIR ~dso allows the public to 'determine the
envirorunental and e~onomi¢ v~ues of their ejected ~.nd appointed officials, thus allowing
for appropriate action on elec-ti0n day should a majority of the voters diSagree.,'
v. County of Kenl, 39 Cal. App. 3d 830, 842 (197zl). "The report ...
environmental 'al .... . may be viewed a.s an
arm bed whose purposett is to alert the pubhc and its responsible officials
to environmental changes before thc-y have reached ecolog/cal points of' no return."
C_o~n[¥ elf In¥o v. Yorty, 2t2 Cal. App. 3d 795, 810 (1973).
For a discussion of' "mitigated negative declarations", see below.
A?YO R N Ey$ AY
Cypress ~edevelop~ent
April 1 g, 2002
Page 4
CEQA applies only to "discretionary projects." Cal. Pub. Res. Code §§ 21080(a)
and (bXl); Guidelines § 15268(a). A discretionary project is one which "requires the exercise of'
judgment or deliberation when the public agency or body decides to approve or disapprove a
particular activity, as distinguished from situations where the public agency or bo dy merely has to
det=,,,fine whether there has been conformity with applicable statutes, ordinance,s, or regulations.
Guidelines § 15357.
2. F..air Argument Test Requires an EIR. If the administrative mcmd contains
substantial evidence that any aspect of a ProjeCt "may have a significant effect on the
environment," the icad agency must prepare aa EIR, Cal. Pub. Re~. Code § 2I I00; Guidelines
§§ 15002(0(1), 15063Co)(1) and 15064(a)(1).g Put another way,
".,. ifa L~ad Agency is presented with a fair argument that a project may
have a significant effect on the environment, the Lead Agency shall prepare
an EIR even though it may also be presented with other substantial
evidence that the project w/ll not have a signitica~t effect, ~
City_of Los Angeles (1974), 13 Cal. 3d 68)." Guidelines § 15064(g)(1).
(emphasis added). SeealsoFfiCrtdsof"B" Street v...Cjty, of Hayward. 106
Cai. App. 3d 988, 1002 (1980).
A trial court is entitled to i ndepeadently review an agency's determination that there
wa~ no evidence upon which a fair aromament could be made that an EiR was required, As the
court stated in Friends o['"B" Street, $1~ta:
"if there was substantial evidence that the proposed project might have a
sigxfificant environmental impact, evidence to the cOn.fy is not st~i~ient
to support a decision to dispeme w~ preparation of an EIR and adopt a
Negative Declaration, because it could be 'fairly argued' that the project
might have a significant environmental impact. Staied another way, it~he
trial court ~o~rceives substantial; ,ey/dence that be ~roject mie. h~ ila.v.e such
.a,..jmpact, but the A~en .~. failed to secure ~re~arati.on 0fthe required EIR.
.the Aeencv's act_ion is to be set aside~ because the agency abused its
discretion by failing to proceed 'in a manuer required by law'. (Cal. Pub.
Res. Code § 21168.5.)" 106 Cal. App.3d at 1002. (Emphafis added).
Professor Selmi pointed out that one of the reasons that courts are peai,itted to closely
examine CEQA decifions is that pablic agencies "are subject to political pressure to avoid
the full EIK process" which is certa/nly the case here. Selmi, supra, au 227.
A T T C) ~ ~ a ¥ ~ AT LAW
Cypress ~edevelopnnen~
April lg, 2002
Page 5
Under the fair argument standard, deference to the lead agency's determination is
not approp~ate and its decision not to requi~e an Ell{ can be uphMd "o.ly when ~here is no
credible evidence to the contrar~Y Sierra.Club v, CounW ofS. on~m_~ 6 Ca/. App. 4th 1307,
1~17-18 (1992). Emphasis added. The Er argument stans~d requires the reviewing court to
employ "a certain degree of independent review of the record~ rather than the typical substantial
ev/dence stand~rd which usually results in great deference being given to the factual determ/nations
of the agency." Ouail Bota~cal Crarden~ Foundat/o~, Iac. v~_Citv 0fEncinit&~ 29 Cal. App. 4th
1597, 1602
'l'h~ Supreme Court has concluded that the inteq~retation of CEQA "which will
afford the fullest possible protection to the environment is one which will impose a low thresholds
requirement for preparation of an Er'R.~ i In~~, supra. 13 Cal. 3d at
84. .
~ llha e.sign~¢a~t~dverse mPaetontheenMronment.~ ~
Therefore, the Agency should prepare an ELR_
B. The M~i~ated .Negative Declarat/on Fails ~0 Pro_v/.'de An Accurate P,roi~!t D~s~cription.
The Project description must be accurate and consistent throughout a mifigate'~'
negative declaration. A rnitigaled negative declaration circuia:ed for pubfic re,dew sh~ll include,
among other things, a deser/ption of the project. 14 Cai. Code Regs. § I$071(a). California
courts · · ·
have conm~tentIy emphasized thc ~mportance of accurate project deScriptions. In fact, "[a]n
accurate, stable and finite project escnpt~on ~s the sine qua non of an informative and Iegal]y
sufficient EIR." ~Countv of~n¥o v~ City of Los Angd.,e~ 71 Cal. App. 3d 185, 193 0977) (italics
ia original). ' "
The.C.0untv qfllnyo further stated, "Iai curtailed or distorted project description may
stultify the objectiv, es of the reporting process. Only through an accurate view o£the project may
affected outsiders and public decision-makers balance the proposal's benefit against its
environmental costs, consider mitigation measures, assess ~he advantage of terminating the
proposal... ~nd weigh other alternatives in the balance." The Agency must in good faith make
any MN'D prepared in the fum~e by the Agency (and the Initial ~dy used to prepare) as complete
~nd comprehensible as possibIe. Lo~ ,B.each Savlr~q$ ~ ..~.an Asso. c. lation v Lone Beach
-Redevelopm~:t.A-gency, 13g C~I. App. 3d 249 (1986).
C~ A~ ^ T T 0 [~ N I~ ¥ S A T L A W
r¢~s [~d~velopm~t ency
Page 6
shall sometimes be referred to herein as "a Costco." In fact, the Agency h~ been evolved in back-
room negotiations with Costco for many months and has signed various negotiation agreements
with Costco? in contrzvention of' its own Rules Goverr, mg Pa-~cipation and Preferences by
Owners and the California CommuniBt Redevelopment Law, each of which requires that the
Agency give preference to proposals submitt~ by owners of thc subject property, and not to third
parties. In addition, the Initial Study fails to discuss, at all, the ertension of owner partidpation
opportunities to Cottonwood. The Initial Study needs to identify in detail the owner participation
opportunities that have been extended and how such opporttm/ties relate to the project
al:err~tives identified in the Initial Study. .. J
The L~tiE Study only foetuses on one of the theoretical alternatives t-or purpose'-~-
of the environmental analysis contained in the Initial Study. However, the Initia/Study fails to
d/scuss how the Agency decided on those three particular alternatives, nor does the Initial Study
discuss the analysis used to reach the conclusion that Alternative C is the "Worst-~ase scenario,"
and thus, should be the focus of the Initial Study. Interestingly, the Project alternative chosen for
the Initial Study analysis is the one mOS: unlike the Costco development proposal, despite the fact
that the Agency has officially approved moving forWard with Costco's development proposal for
the Project. Also, Alternative C, which is described as involving 186,000 square feet of
retail/commercial square footage, exceeds the development iatensity being contemplated by the
Agency. Furthermore, without any explanation, the Initial Study boldl,, asserts that an-. -'----- ~'
would be built in one phase, a .~ mtmnt~uve
CEQA requires that an environmental document foster informed public partici-~
pa:ion and informed decision-making. By failing to idenfi~ the intended occupant of the Project,
which has special operational and impact generation potential (some facts of which are detailed
in the correspondence concerning the Project at the April 8~ Agency heating), The Agency has
intent!onal? v~ola!ed ~ es.sent!al tenet of CEQA. 'line only rea~n for the Asency not revealing
these v~tal p~eees o .finformanon ~s to preclude an accurate and complete discussion of'the Project's
potential environmental impac'ts, thereby undermining CEQA. Because the Project i~ really a
Costco, and not one of the three theoretical altemadYes scantily mentioned in the Initial Study} the
On April 8, 2002, the Agency considered Costco's development proposal, took certain
a. ct~ons m l~rtheranee thereanth and rejected Cottonwood's project propoSal, including any
ngl~. t to owner participation. All resolutions, documents and other matters related to this
action by the Agency and all prior actions by the Agency, and the City in any way relating
to Costco, the Costco project and/or Cottonwo0d are hereby incorpOrated herein bY this
reference.
^ T'T 0 I~ ~£ ¥ $ A T L A W
Cypress Redevelopment Agency
April 18, 2002
Page 7
project description should include sigr~¢ant additional in"on'nation to ensure that polential____~ ~f~
impacts of the Project can be fully assessed and mitigated.
Vital information is missing from the Initial Study environmental ;malysis due
the inaccuracy of the project description. For example, in order to begin to properly analyze
possible env/ronmental impacts, it is critical to know. among other thhags: the hours of operation,
peak weekday and weekend times for customer visits, the likely number of customers, the level
of customer activ/ty th.rougho,~t the day, evening and weekend on an hourly average, availabilh'y
of parking, plan for ingress and egress and the management of congestion at these points, delivery
· g e mtttal Stucly project descr/ption is information regarding
building dimensions. This omission makes aa anaiysis of the Project's visu~ compatibility with
surrounding uses impossible to evaluate. Ihe Project description should include a drawing of the
proposecl building and some information about materials, windows, rooftop equipment, etc. Such
information is readily available to, or is already in the posse,sion of. the Age. ney. The Agency
simply does not have a valid e~cuse for raisrepres~ting the ~e nature of the Project or for faiI[ng
to disclose key information relating to the Project. The public mast have an opportunity to truly
examine the petentia/sign/ficant adverse impacl's of'he Project with the Project clearly defined as
a Costco. For example, a Costco gas station is I/kely to produce tremendous traffic trips due to
the discount nature of gas services. Similarly, the Costco automotive service will likely have
unique noise and pollution impacts. Here, the impact ortho Project on the environment is not fully
known and will not be known until an ErR is prepared.
C ,Notice For Tile NFaliea£.ed ~e~ativ. e Declaration Was Inadcquat,~
l. ~er~od FQr_Publ.i.c Review Should Be 30 D. av~. The public reMew period for a
Mitigated Negative Declaration submitted To the State Clearinghouse for rcviewby state agencies
shall not be le,s than 30 days. Guidelines § 15105 Co). Mitigated Negative Declarations are
submitted for revieW* by state and other agencies when the project has storewide significance.
Here, the Agency claims that the public review period is 20 days. This
interpretation of the Croidelines is wrong because the Project. if properly described, would have
storewide significance.
2. Dral~ Mitigation Negative D..eeJaration Has Not Been Prepared A Miti ated
?e,g. ativ.e De.c. larati.on glreulaIed for publin review shall include, amon~ other: ii'es ~ nrn~2~e~d~
nnmng ttmt the project will not have a significant effect on the environment and an attached co~
of the mma~ study documenting reasons to support the finding. Guidelines ~ § 15071 (c) and (
The Agency has only circulated a document titled "Initial Study/Environmental
Checklist." In fact, the Initial Study concludes by stating, "Ba~ on the information and
environmental ~nMysJs cont a/ned in the Initial Study/Env/ronm~tal Checklist, we recommend that
the Cypress Redevelopment Agency prepare :[ mitigated negative, declaration for the
Walker/'Katella Retail Project proposal." Initial Study, 78. An IvlND ha~ not yet been prepared,
as also confirmed by a conversation with a City represantative and a review of the Clips official
file for the "MND." The Initial Study does not take the place cfa properly cimulated Mitigated
Negative Declaration.
3. PublicAgencie, WithJurisdiedonB~La.wOverRe~o.qLces .AffeetedByThe. Proiect
Were No~ Pro, er ¥ N. ot c~
According to Guideline ~ 15072 (e), ifa project is of statewide, re~onal,
areaw/de significance, the lead agency shall prov/de notice of the Mitigated Negative Declaration
to transportation planning agencies and public agencies which have transportation facilifiesLw/th/n
their jurisdictions which could be affected by the project. Transportation Facilities include: major
Inca[ art?als arid publ!c transff w/th/n five miles of'the project site and freeways, highways and
ra/l transit servme within 10 miles of the project ~ite." Id.
The Agency has failed to m¢¢¢ th/s particular notice requirement. The Initial
fails t,o list the agencie~ that require notice under Guideline § 15072. The pub! c has no way of{
knowing whether such agencies were ever properly noticed, including the City of Los Alamitos
and Caltran~. ~s~
4. Co~ies.. o,C.Document$ Referenced Iq. The:Initial S.t.ud¥ Were Ne/ther Rmd~
~lable Nor Pr~ly Sum~a~z~ The nofi~ ;f ~mt to adopt a ~figated Ne~dv~ ]
Deci~tio~' ~ 'sp~i~ where Co~i~s of ~1 do<m~s r~ in ~e ~fi~t~ Negative {
D~larafion ~e av~l~le for renew. ~id~ines ~ 15072 (0(4). Funh~ore, ~idelihes ~ 15150
(c) requk~ t~t "... wh~e ~ E~ or negative decl~ion u~s inco,o~tion ~ refer~ the
ineo~orat~ pa~ ofthe.ref¢rmced dommmt s~{ be bd~y mmm~z~ where Potable or briefly
~cnbed iF the data or infomafion c~ot be m~ Ih* r~ati0ns~n belwe~ ,h,
:nco¢omtcd p~ of the referenced domment ~d the E~ ' - n r ......
sh~ be described. ~
The Agency tus made it truly impossible for the public to rev;ew the document~-
refer=ced in the Initial Study for several reasons.
First, desp[te assurances from Agency reprefentatives that copi~ of documents
would be given to us in a timely manner for our review in connection with the Initial StUdy, these
documents have not been given to us or other~se made available.
A ¥ T 0 R N ~ ¥ .~ A'? L A W
Cypress Redevelopment Agency
Apsl 18, 2002
Page 9
Second, although CEQA Po. trots the incorporation by r~fezenc~ of other
documents, · ' - .
the Inz*aal Study mc°rpo~at~s so many docum~nu that it is victuallyimpos~ible for the ~.~
public ro understand the basis of the aualysis for the Project. For ~xample~ the Initial Study
incorporates four full EIR's, three of which are ten years old, and three Initial Studies, in addition
to the General Plan, Zoning Code, Specific Plan andRede-vMopment Plan. A~ used by the Agency,
this technique undermines full disclosure of the envkonmental consequences of the Project and
thereby impedes informed decision making as mandated by CEQA.
Third, t-be Agency f~s to adequately l[~t and summazize the documents reference-~--
in the Initial Study. Section 4.15 (References) falls to provide a complete list of the documents
referenced in the Initial Study. This section only offers the public a partial list of documents
referenced. Moreover, the Ir~fial Study fails to adequately summarize and explain the exact
relationship between the referenced document and the Initial Study. In fact, certain documents
wklch ate listed in Section 4. i $ ar~ not discussed at all in the body of the Initial Study, ~.nd
documents which are briefly referenced in the body of the In~fiaI Study are not listed in Section
4.18, m~ing it v~rtually impossible to even commence a process of~e~iew.
Based upon the unavailability ofpot~fiallyre/evant documents and the vo]urninous
n. amre of the documents, we reserve the right to make further comments to the I,,;,;~
the Agency Were to properly follow CEn~ ;,. ~,~-~-~ - _, ......... ~,. L~'~
-~, ,, ,, ~,,oum prepare an ~,IR at this time. ,,~ ~'
D. The Initial Stud Fail~oP o' eEvidenceThatthePro_~osedProie~lW, ilINOtHav, e. An~
Sfi_v~fi cantEnvk_e nment al Effects.
An initial study must d~close the data or evidence upon wkich the "person(s)
conducting the study re ed .... Mere conclusions simply Provide no vehicle for judicial review."
Cifigeas Assn, for Sensible Dave[®
- · merit oftheBishop~ 172 Ca~ App 3d
151, 170 (1985). One of the primary purposes of an initial study is to "[p]rovlde documentation
of the factual bzsi~ for the fmfiing in the NegatiVe Declaration that a project will not have a
significant effect on the environment., Guidelines§ 15063(c)(5). Aninitialstudymustdocument
reasons_ to support the finding that a project will not have any significant environmental effects.
Guidelines ~; 150Il(d).
The Initial Study includes an "Initial Study Checklist" (the "Checklist") which
' clu. desa. pproximatelySSquestiovaregardingthepotentialenviroamentali ...... ... .
v'l"nrojcct, with re~ ecl to ea - . . mp,~;,soltrlepro osco
~mpact not occur at ali. (b) the impact will occur, but it will not be significant, or (c) the
. P ch question, the lin/mi Study concludes either that (a) the ques'tiPo~nedwill
impact will be significant, but proposed conditions w/Il mitigate the impact below a level of
significance. However, the Initial Study includes little or no explanation for many o£ these
Cypress Redevelopment
April lg, 2002
Page 10
negative responses, and it
that have b~en or are be/rig prepped for thc LART Redevelopment Area, Mor~vee, many of the
mitigation measur~ listed in the Initial Study contai/l no timing for/mplementation nor do they
identify the responsibility ofCiW Staffto ensure eomplhnce. Therefore, many of the mitigation
rne~ures ~e imadequate in ensuring that potenfizl environmental eft'cc'ts are ~c~ally mitigated.
This pr°blem is c°mpounded as some mitigafion measures are identified as recommended rather
than required. "
In fact, where there is afl ex~lm~ation, thc ex.placation often offers no b~e~
condition or r~on to beli~e that a si~fioant advise impa~ ~11 not oc~r. For ~plc.
tra~c study f~ls lo point out that lhere ~1 be an unavoidable sight ~verse ~pa~ at the
intefsection of Ce~tos Argue an8 W~ker S:~et. O~ssion of ~ch ~o~ation s~ous/y
unsexes ~e ~edibiliW of both ~he ~c study ~d ~e INtiai Study. ~ additio~ thc
sm ~y re=ely ~t~at~ the nmber of~ficipaled trips b~ upon ~ inzcoura~e proj~t description
~d concludes ~t thc adSacent s~r~s ~11 ~e ~e impact. A more dot.led a~ysls of the
tr~c s~dy is found in a Icier date~ April 18, 2002, flora Linsey, Law, & ~sp~ Engine.s
Io Mr. M~ Malko~ attached h~o ~ E~bit B.
There is ~so mi~ analysis as o ~eslhe~s or ~e ~pact of ligh~ gt~e ~d
noise. Nei~bo~ must m~ely trust that ~e ~oje=t ~11 not bc ~ible ~om ~r hom~ ~d
light ~d noise ~II not impa~ th~, ~en ~ou~ the I~fiM Study a~owledges that thee
be new sourc~ of light ~d tMt the ~bi~t noise ~ ~11 hor~e. In ad~tio~ to
a~ra~ ~e ~nclo~onaW rotate of~e statem~ts, there is ~ dis~ssion ~ to the ~que
t~c ~d noise that will be cre~t~ by ~e Costco gas ~ation ~fl automobile s~ce or tire
~iliW,
Certainly, further study is required with respocl to potential im acts arran fi-om
traffic, parking, air qua[ky (potential odors and ~'-~' e_ ...... , P ' ' g n-~
· ~'--~ -o111 ~¢u~'y tracxs otc aest ' '
and glare, noise, hazm-dous rnateriflS and cu.~- ,--- . . - . , .), heues, light
u~u~tx~lYe lm~oa~l:$ l'rom' O[tl~l' ' ·
whenrheProjec~isproperIydcscribed~aCo~t~n ~..a~... _, . .proj_o~._, parhcularly
...... · , ,uumon, me t~4gen=y 8as failed to meet t~
standard mandated by Guidelines § 15070 Co) (I) which states tha! a mitigated negative declaration
shall be prepared when "~t]he inifia/study identifies potentially significant effems, but [rJevislons
in the project plans or proposals rn~:le by, or agreed to by the applicant before a proposed
mitigated negative declaration and nrtial sludy are released for publiv review would avoid the
effect or mitigate the effects to a poim where ~.eaHy no ~gnificant effects would occur..."
(emphasis added). The Agency has f~i!ed to meet this burden. The Agency has not clearly
demonstrated that clearly no significant effects would occur in connection with the Project.
Cyp Ag ^rro~u~vs ay Law
tess Redevelopment eacy
Apr/l 18. 2002
Page 11
ama Ma2aro0US Materials, No,se, Population and Hoosia& Public Serv/ces /
.,~ auacn¢o hereto.
E. Tiering. Is Improp. er Under the C~rcumstaners.
The use of tiering is intended to allow asencies to avoid repetitiveness, wasted
time, and unnecessary premature speculation, by preparing a series of E/'R,s or ,,n EIR and later
negative declarations on related projects. Cai. -Pub. Res. Code § § 21068,5. :2 i093 (a); Cruideli~es
§ 15152. "TJeri. is a rocess w ' '
ng p by hich agenc~e.s can adopt ~ro~am~
Ordinances ' · ,, .
w~th EIR5 focusing on the bi,, "icture "~.a _ _ ,~. .... -- '
a v , ~,,u ~,,~ men use streaxmmed CEQA review
for individual projects that are consistent with suuh... [first tier decisions] and are consistent with
local agenc./es' governing general plans and zor6ng." Ko_~ster v. County Of San Yoaquin~ 47 Cai
App. 4th 29 (1996). PubEc Resource Code Section 21068,5 defines "tiering" as
"the coverage of general matters a~d environmental cff~c~ in an
eu'aronmental impact report prepared for a policy, plan. program or
ordinance followed by narrower or $it~-specific environmental impact
reports whi~:h incorporate by reference the discussion in any prior
envlrom-nental impact report and Which conce~trate on the environmental
eff'e~~ which (a) are oapable of being mitigated, or Co) Were not analyzed
as stgnifieamt effects on the environment in the prior environmental impact
Ihe later EIRs are excused by the tiering concept from repeating the analysis of broad
environmental issues exarrJned in the genera/plan EIR_ It is important to note that nm ail site-
spec/fie projects c~ take advantage of tiering. To qualify for the use ofiiering, later projects
must: (i) be consiszent with th~ program, plan, policy, or ordinance for which an EIR has been
prepared and certified, (ii) be consistent with applicable loc. a/land Use plans and zon/ng of the city,
county, or city and county in which the later projec~ would be located and (ii/) not trigger the ne. cd
fol' a subsequent EIR or supplemem ~o and EIR. Cal. Pub. Res. Code § 21094 (b). These criteria
thus limit the kinds of projects that can benefit from the use oftierlng; projects requiring general
plan ~.mendments and most kind ofrezoaes will not qualify. Also, Guideline Section 15162(a)(3)
requires the preparation ora Subsequent ErR if" ... significant effects prev/ously examined will
be substantially more severe than sh0um in the previous EIR.~
ATT O R ~ E Y ~ AT L'AW
Cypress Redevelopment Agency
April 18, 2002
Page 12
P Here, the Age. ney may not use the tiering concept for several reasons. Firs:, th~
roj~ described in the Initial Study is not consi~ent ~ the aFPli~ble pl~as .~.d zoni~ I
associated with the location of the Project. Retail projects, ~ach as the Project described in the
initial Study, are not pe~-mitted uses under c~rrent plans and zoning for the Project. A more
thorough discussion o£the inconsistency off, ail use with the ~rrent z~ning for the Project is set
forth in Exhibi: A attached beret9. Because retail is not a permitted use, development of the
Project will necessitate amendm, en:s to the Cypre~ General Plan, the C
Ord hence m~d the Cypress Business & ProfeSSional Center Specific Plan, which will, in tur. m_J
requtre prepazafion of an EIR. Second, the Project, when properly described as a Costco,
immediately trigger the ne~d for an EIK The very n~mre cfa Costco necessarily inva/idates the
accuracy of the impact analysis in the !0r~Mous EIRs. For this re, son alone, the Initial S:udy's
reliance on previous analysis and conclusions is questionable. The proposed Costco project will
undoubtabiy have greater impacts than would the typical retail or office use that was contemplated
under the analysis of the prior EII~. The ~act that the Project is in actuality a Costco is significant
new information of substantial im?ort~n~e that could not have been known at the time the EIRs
were certified. For example, the traffic impacts o£a Costco ~re greater than those ~nticipated in
the EI.P,s. In mm, ~ir quality ~d noise impacts will also be greater. This could lead to new
significan: impacts, an increased severity ofprevlously identified impact~, and new mitigations that
must be considered. Also, many of the significant effects examined in the
years ago are likely to be substa~tially more severe today. These circumstances require full
exaanirmtion in a supplemental EIR, not a Mitigated Negative Declaration.
F. The Propgsed .Mi!i..e~tlon ~a~:,res Will Nor "Clearly "MitiKate the Proiect's
.Significant Environmental.Imparts
A lead agency can approve a project with potentially ~ignificant environmewa~
effects by adopting a mitigated negative declaration, only under the following circumstances:
"An' initial, study identifies potentially signifi¢~t effects on the
environment, but (A) revisions in the project plums or propos~ made by,
or a~e~d to by, the applicant before the proposed nesative declaration and
initial study are released roi public review would avoid the effects or
mitigate the effect on the ~nvironment would occur, and ('B) there is no
substantial evidence, in light of the whole record before the lead agency,
that the project, as revised, may have ~ significant eff~t on the
environment." (Emphasis added) Cai: Pub. Res. Code § 21080(c)(2); see
also Cai, Pub. Re~. Code § 21064.5.
Cypress Redevelopment Agency
April 18, 2002
Page 13
.Since the Agency has prepared the InbJM Study, it is expressly acknowledging ~der CEQA th~'.
m the ab~nce of clearly effective mkiga~ion, the Project W/II ~ve a ~gnifieant, advise
environmental effect. In fa~t, several Statements of Overriding Considerations in connection with
the LART Redevelopment Area were adopted in the past to address some of these significant
effe~s. In particular, ~ Statement o£Oven*iding Considerations was prepared in connection
the Cypress General Plan EIR for the following impa~ts: transportationYcir~lation, dr quMky and
parks/recreation. Also, a Statement o£Overfiding Considerafion~ was prepared in connection whh
the Cypress Business and Pro~e~sional Center Specific Plan EI.R for the :following impa~s:
circulation and tr~ic, land use an~ relevant pl~nning~ aesthetics ~nd zir quality.
Thc mitigation menu,res at, ached ~o the Initial Study w/Il not "clearly" m~
certain aspects of the Project, az admltxed by thc Agency in the lnitia Study The .4.gen~ cannot
adopt the Initial Study unless the mitigation measures :ieduce lhe impacts of the Project below the
threshold of significance set forth in CEQA In this rase, the mitigation measures must eliminate
th posstbd~ty ofa substantmI adverr~ ch~ge in the significance of the Proj e~. Section 3.3 ofthe
Initial Study describes 7potentially significant impact ualess mitigated" as follows, "it]he
development will have the pO~ential to geaerate impacts wh/ch may be considered a~ a s/grfificant
effect on the en ~ronment, although mitigation measures or change~ to the development's phyxical
er operational character/st/cs can reduce these impacts to level~ that are less than signhqc~nt/'
However, the Agency fails to address the criteria by which a potential enviromnental impact is
determmed. Tbelnitial Study not only fails to analyzewhetherthestmtedmitigafionmeasureswill
prevent a ~$ub.qantial adverae change," it doe~ not even cite the appropriate threshold.
Moreover, the Agency cannot simply rely on past ErR's ~nd St~tement~ of
Overriding Con~iderations for the purpose of avoiding an EIP, for the Project. Tho.~e pa~t
documents W/ll not automatically ~h/eld the current Project fi.om analysis, partimlarly when the
Project ~s mgnificantly d~fferent from the uses that were contemplated under the previous EI1Ls and
Statement of Overriding Conslderatlons. Furthermore, the In/rial Study fails to di~ctm% in any
meaningful way, the relationship between the referenced documenu and the Project.
G. The Adoptio;q of the NeRative Declaration Would UnLa~wfully Defer Env romnental
CEQA requires ti'mt environmental review and the formulation of appropriate
mitigation measure~ occur at the earliest fearn'hie state in the planning proce~. Cal. Pub. Res.
2 '
Code ~; I00_~_1~ CEQA provide~ further that a proposed negative declaration ~hould only be
prepped for a project when 'revisions in the project plan~ or proposals made by or agreed to by
the applicant before the proposed negative declaration is released for public review would avoid
Cypress Redevelopmen: Agency
April 18, 2002
Page 14
~he effects or mitigate the effects to a point where clearly no significant effe~ on the environment
would om:ur ...." Cal. Pub. Res. Code § 21080(c)(2).
The case o£ 8Pndstrom v. Count¥_ofMmdocino. 202 Cal. App. 3d 296 (1988),
illustrates thcs e principles. In.Sun dstrom, the public agoncy approv~ a use pmanit for a mote/and
restaurant that included a private sex~t~tge treatment pl~t The initial study did not anMYzc the
environmental impacts of the treatment plant, but instead required tlw~ the developer prepare a
hydr°l°~cal study-~' er the appr°val °fthe negative declaration The study w'as to provide a basis
for establishing additional mitigation measures for the project
Yhe court held that the public agency violated CEQA by including a condition that
contemplated revisions to the project after thc final adoption of'the negative declaration. The
court ~rther held that the deferral of environmental review for the treatment Plant ran counter to
CEQA policy, which required environmental tm,Jew at the earliest feasible change in the planning
process. The court also noted that any mitigation measures added by the adminis~tive staffas
a result of this study would be exempt from public scrutiny sine, the public agency had already
approved the negative declaration.
Several proposed mitigation measures for the Proj~t under the Initial
examples otunlawfi~l def'crral otenvironm~ntal review_ For example one condition requires that
a geoloo~c and soils report be prepared at a later date. The Initial Study determines that potential
geological impacts associated with the Project could be potentially significant, unless mitigated.
Neither the impacts nor the proposed conditions for mitigation ate discussed. Similarly, geologic
and soils reports, circulation plan% and a parking study are all deterred to another day.
-o,e-.:-' :---Zh~re is.~ no..,di.s.cussion, as to t.be type or amount of mitigation required for the~
.~Z.. --,, ,,,,~ assocatea ~m me sennce stauon proposed under one of the alternatives. See
lmhal Study 4.7.
H. E~dstm~ce of Public Corltrover~y, Coupled with SUb~la~nfial Evidence ora
pa the Envi.'r. onment, Underscores the Need,fog an E.~. Guidelines Section 15064(0(4)
provides a~ follows: ' '
existence of public controversy over the environmental effects of a
project will not requite preparation of an ]{:_FR. if there is no substantial
evidence before the agency that the project may have a significant effect on
the environment."
ATTO R N'E ¥S AT LAw
Cypress Redevelopment Agency
April 18, 2002
Page 15
There is no doubt that there exists a pub, lic controversy over the Project. In fact,
oyez six hundred conccnmd citizens attended the April 8, 2002 Agency meeting regarding the
subject preperty to express their concem.s, and apposition to the Project. Also, there exis:s
sufficient evidence suggesting that the Project will have a si,qmifieant effect on the environment.
The Agency has received or will receive voktminous testimony fi.om a variety o~'--
noted citizens, City ~roups, and other expels that the Projcc:t will likely have a significant, adverse
effec~ on the environment, and that the proposed mitigation measures Will in no way mitigate thc
impacts of the Project. In con[east, the only potential "expert" testimony which supports the
· h°
adoption of the l'nitial Study are the inadequate studies whm ~gnore the real nature oftheProjcct.
Of course, this is not a "ma~g/aal" case at all. The Agency's position is entire¥
unsupported. However, even if the repons upen which the Initial Staciy is based could be
considered unbi~ed expert testimony, the disagreement ~raong experts suggests that the
prepa.ration of an EEq. would address the many doubts created by the Project. In fact, some courts
have stated:
"Iu such cases, an E~. - an impartS, derailed and factual analysis of the
Project's effect ~ can perform an invaluable service in aiding the ~gency's
resolution cfa dispute .... 'The veay uncertainty created by the conflicting
assertions made by the parties ... underscores the necessity of the EIR to
substitute some degree of factual certainty for tentative opinion and
speculation.'" See N'o Oil, ~c, v. City of Los Angeles 13 Cal. 3d 68, 85
(1974); City_of Carnlel-By-The-$ea v. Board of Supervisors, l g3 Cal.
App. 3d 229, 249 (1986); see a~o _Sun~dstrom v. County of Mendocino~
202 Cal. App. 3d 296, 313 0988).
The A~cncy Has Unlawfully "Split" The Proiect for Pu~os~fEnylimnmenta] Review.
The term "project" has been broadly defined under CEQA. "Project" means "the
whole of an action, which has the potential for reSUlting ia a physical Change in the environment..,."
Guidelines § 15375(a). All phases of project planning, implementation and operation must be
considered in the initial study for a project. Guidelines § 15063(a)(1 ), The term 'project" refers
to the activity which is being approved and which may be subject to several discretiore~ approvals
by governmental agencies. The term "projecx" does not mean each separate governmental
approval. Guidelines § 15378(c).
Under CEQA, a project must be fully analyzed in a .single env/ronmental document.
An agency may not split a project into two or more segments with mutually exclusive
Cypress Kedeve[opment
April ~8, 2002
Page l 6
environmental documents. CitizensAssn. for Senxible Developmem of Bishop Area. v. C, ountv of
In¥o, 172 Cal. App. 3d 151, 165 (1985). Similarly, an agency cannot overlook a project's
cumulative impacts by separately focusing on isolated parts of the whole, lv[c0ueen v. Bo.a.rd of
Dircc~o.r.% 202 Cal. App. 3d 1136, 1144 (1988).
in Citizens Assn. fo~: Sensible Develot~ment of Bisho~ Area v. Counw of lnYn,
su~ECa~ a county split a shopping center project into two segments, the first part consisting of
gener~t plan amendments a~d zoning ct~ifications, and the second part involving a tentative rnzp
approval and road abandonment. The public agency prepared a sep~rae negative declaration for
each project segment. Because the project applicant had reque=ed related discretionary approv~3s
at different times, the c6unty had failed to understand that it was dealing with a single projea. The
court overtur~ the negative declarations and the project approvals, holding that an agency cannot
prepare mutually exclusive environmental documents for a single project. 172 Cal. App. 3d at
165-67.
The projec~ description in a CEQA document must include:
"an analysis of the environmental effects of furore ex'paP. Sion or other
action if: (1) it is a reasonable foreseeable consequence o£ the initial
project; and (2) the future expansion or a~on will be signifir,~nt in that it
wig llkedy change the scope or nature of the initial project or its
environmental effe~s." Laurel Heights ~, supr~ 47 CR[. App. 3d 376, 396
In Laurel Heights I the Regen~ proposed the relocation ora biomedical reseaxch
facility to a portion ora building located in the residential neighborhood. The EIR for the project
failed to an~dyze the Cumulative ~rnp~cts of the anti'pared fuI~ use of the building as a biomedical
facility within a f' .eye years. The California Supreme COurt rejevted the Regent!s argument that,
because the proposed eacpan~ion had not been formally approved, the ELR's analysis could be
lin ted to the projee in its initial form. Evidence in the record indicated that despite the lack of
a formal approval, the Regent's ultimate plans were dear. Therefore, ber, au~e the expansion
reasonably foreseeable, and was likely to change the scope or ~ature of the initial project or its
environmental effects, the EIR ~hould have discussed at leas! lhe general effects of the reasonably
foreseeable future uses and the anticipated measures for mifigafingthose effects. Id. at 396-398.
h f~ct that preasmn may not be possible _. does not mean that no analysis is required." ~ at
399.
Another ease that illustrates th~s principle is ~Whih--mm v. Board et'Supervisors, 8g
Cal. App. 3d 397. In Whitmaq, a~ £1R was prepared in connection with an application to drill ;an
Cypre.~ Redevelopment Agency
April 18, 2002
Page 17
exploratory oil and gas well, which omined discussion of a ceniemplated pipeline if the well
proved productive, The court found the ELK inadequate and explained that "ltl he record before
us r~ects that the construction of tM pipeline was, from the very beginning within the
contemplation of[the] overell plan for the project and could have been discussed in the ELK Jn at
~." l_~d, at 414--15. (emphasis added)
Under the current circumstances, the Project suffers from the same problems that
occurred in Laurel Heights I. and Whitman. First. there is absolutely no discussion whatsoever as
t° theimpacts associa'mdwith otherprojects wlthin theLARTRedevelopment A.rea. Second, the
agreement bet'ween Se Agency and Costco is campIetely ignored. There is no discussion of
condemnation activities by the Agency against Cottonwood and the relocation and other impacts
relazed thereto nor of the proposed Disposition and DeveIopment Agreement between the Agency
and Costco, despite the fact that this agreement would .dir. ee.tly affect the Project. In conclusiov,
the Agency needs to oxon'aide ~11 of these issues in an ELK. ~-
The Initial Study Fails tO Have Any Cumulative Analz~is of the Project's
I.~mpacts. "
An envkonmenral document must discuss "cumulative impacts" when they are
c 'umulatNely considerable. Guidelines § 15130(a). However, even ifa cunm[ative impact is not
deemed significant, the document must explain the basis for the conclusion..Citizens to Preserve
the O al v. County ot'V_enB [~a, 176 Cal. App. 3d 421,429 (1985). "Cumulative kmpacts" are
defined under the GuideI/nes as two or more indiv/dual effects wh/ch, when cons/tiered together,
are considerable or wh/ch compound or increase other env/ronmental impacts. Guidelines
§ 15355.
The Init/&/Study f~Is to ~ve any analysis of any potentlal ~cumulafive impacts. 7-
Potential related pr. ojeets for cumulative an~/ysi5 ate simply not listed in the Initial Study.
This comprehensive analysis on related proj~s and the associated cumulative
impacts must be done before approval of the Project. T° ignore the Project's Lnterrelationship,
consistency or inconsistency and impact on the LAKT Redevelopment Area and other projects
within the area improperly segments the Project from the LART Redevelopment .Area and ignqres
a proper cumulative analysis under CEQA. all to the detriment of the citizens of Cypreas and
proper long-term planning efforts for the LART Redevelopment Area.
Given the related projects and the related env/ronmental analy~es that thc Agency
is undenaldng the Initial Study should not be approved becau~ fiarther studies are in process and
have been admitted to be necess~_ry. This is especially true given the substantial public funds wblch
Cypress Kedevelopment Agency
April 18, 2OO2
would be committed to the Project. Furthermore, a~ discussed above, ins type of analysis cannot2 ~
be deferred to a later day.
.~CLUSiON
Given the foregoing, on behalf of all of our 'client, we request that the Cypress~
Redevelopment Agency reject both any proposed M~ND hereinafter prepared and the Initial Study,
and that ~ fUll ErR be required. ~
cc: William W. Wyader, Esq.
Dan Slater, .Esquire
Pastor Bayles~ CoNey
Rev. Michael Wilson
Marshall Tanner, Esq.
Andrew $, Guilford, Esq.
Sean O'Connor, Esq.
Maricmz Mendoza, Esq.
Mr. Mel Malkoff
Ms, Ma~ Uraxhima
k~JonatL :. Curtis
for SHEPPARD, MULLIN, RICHTER & HA.M~TON u~
F_3~n~IT A
The Initial Study is flawed for the £ollo-~ng reasons:
Proiec~,. Se, Ring: TM.s, section is too vague. The brief n~rratjve falB to give any sense of the'~
imm. eOiately surrounding uses or a larger ser~e of the nearby cOmmunity. At the very lea~t, the
Iniual Study should have included a l~nd use map labeling the surrounding uses and identif34ng I
sensitive use~ in the area that could be affected by the project or uses with special oPerational[
chara~teri~r~ that may conflict with the CostcO operations.
Ae.slhetics~: The Initial Study does not provide a ba~s for its conclusion that the Project would
be compatible with existing uses surrounding the project site. In ~ddition. it fails to provide for
adequate information regarding the dimensions of the proposed building or any visual aids wh/ch
would enable the publlo to ~dequately analysis this category.
The initial Study concludes that impacts related to project construction would
cause temporary aesthetic nuisances. These aesthetic nuisances are determined to be less thaa
significant because they are temporary. It is erroneous to conclude that impacts are less than
significant base on their duration. In the short-term, aesthetic impacts related to con~tructien
nuisances may be signi~cant.
Air Quality: The Initial Study states the following: "The proposed project is above the thresho[d'~
established by SCAQMD with respect to size, as well as for operational emissions." Howev~,
the Initial Study concludes that the project geaerated emissions "would nat result in significant air
quality impacts on a local or regional basic". The basis for this conclusion is that EIR's prepared
for the General Plan and the Specific Plan account for ~ite development. This conclusion is
erroneous. In essence, it asserts that as long as a previous EI~ identifies a range of potential
impact of future development, no project-specific impacts need be identified. Also, it must he
noted that the previous E/Rs did not cOntemplate a Costco in the subject site. Thus, any Air
Quality assessments made /n those documents would nol adequately address the impacts
a~soclated with the development ora Costco. Because there would be unavoidabIe cumulative
air quality impacts,, an P~rR would need to be prepared.
Air quality imeormation contained in the Initial Study concludes that dUring
construction, the demolition, grading and preparation of the site for development could result in
minor short-term air quality impacts. No calculations ~re prov/ded in order to substamiate the
conclusion or'minor~ ~hort-term impacts. The Initial Study falls to state whether the impacts are
Sign/fieant under the thresholds established in the SCAQMD CEQ^ Air Qaality HandboOk.
The Project is required to comply with Mitigation Measure 854 ofxhe Cypress
Business and Professional Center Specific Plan EIR. Since 1990, the requirements of the
$CAQMD have undergone major revi~ons. These requirements should be accounted for as parr
of the Walker/Katella Retail Project.
Thc Initial Study concludes thai ~ir quality impacts related to odort from heavy-
dut1 equipment exhaus! wou/d be [e~s than significant because they would be short term in nature.
It is erroneous to conclude that impacts are less than sign~fi¢in£ based on their duration_ In the
short-tern.6 '.-h~se ifir quality impa~ts may be ~gnifioant. .~
arcnaeo~og~ea~ and paleontological resources. How.ev,~, as these cultural resource~ are o~
lo.ted below wade Ievfl, ~s eoneI~on is co~e~ It ~s potable ~ ~k~ ~o~ces ~11 be
uncover~ dunng the Va~ng ~d site prep~tion pro.ss. ~fig~on me~es ~ ~efore~
required, ~d ~e ~pact ~ot ~ dete~n~ to be
~: The Initial Study det~ ~t portugal geologicfl ~pa~ ~soc~ted ~ the
proj~ ~ould be Potenfi~y fi~fi~t ufle~ ~g~ted, ~th~ t~ d~ning ~ese imp~ts, the
~itifl Study ~pones relegation by req~ t~ ~ geolo~c md ~ogs repo~ be pr~d at &
lat~ date, Dedsion-m~ c~ot m~e ~ info.ed d~ision on the W~tell~ Re~
Proje~ in the ~sence of~is ifformation.
H~ds and ~dous ~terials: ~ Proj~t D~cfipfion d~ed ~t~five C as ~e wor~-
~ter~ve ~ be d~s~ssed m the Inlti~ Study.
Howev~. the ~mssion ~der the H~ds ~d H~dous ~t~als s~on gtat~ ~at potentJel
~mpacts assodated Mth a seize stain (~id~ only ruder Mt~afive A) may o~r
mpazts, however, ~e not idenfifi~ nor is ~fi~fion prohd~, ff~e are impac~ ~sociated
~th a s~ce 5~fio~ th~ should be ~tifi~ as p~ o~e ~tifl S~dy.
Measure ~1. req~r~ ~at ~dous wine gmmted on-site be ~5po~ed to
~ approp~ate d~pos~ hcih~. ~t ~t provides no mention of a mo~toring sync. ff its ]
~2~Z~tation cannot be ~r~. it c~ot be stat~ ~t it ~ ~figate potenfi~
Hydrolo~' and Water 0u~ty: The Hydrology and Water Quality discussion fails to mention, let
~onc e.v_aluate.,.t_he new regtflations that were recently adopted by the R.e, ionai Water quality
contro~ ~oara [~anta Aha Region]. ~
~: Th'e Project is not consistent with the Cypress General Plan (th'~
General_Plag"), the City of Cypress Zonin,. Ordinance '-~- .~' ' ,, .....
~ ~, [mc _~_oae ), thc cypress l,~edevelOpme, nt
Agency Los AJamitos l~ce Track and Golf Course Redevelopment Project Redevelopme~t Plan
(the "~,,) or the Cypress Business and Professional Center Specific PIan (the
The General Plan, the Code, the Redevelopment Pla= and the Specific Plan shall
be col}ectively referred £o herein as the "Plans.."
~onsist~n.c¥ w~t~ La~d,,Use ~j~adon. The Projem is de~ated Specific
U~def the ~al p]~. B~use the Proje~ ~ not ~st~ ~:h the Spe~c
PI~ ~ ~pl~ b~o~, k ~s not co~[~t ~ t~e ~n~ Plan~
C,on~sten~ ~1~ ~ Pol~. Due to th~ ~t ~b~t ~e ~cy has ~led
~ke a~[~ble the ~ PI~ ~ong oth~ aocum~, ~ adequate ~sJs of
~e goals ~d eb~e~[ves of~e ~er~ P~ is impo~ble. Thus, we ~I] pro.dc
~ ~ysis of~ch cons~ when the ~n~r~ P~ b~mes av~lable to us.
The ~ Study cont~ blat~tly ~se i~omfion in the se~ion disusing the
supposed ~nsist~cy ~h ~e ~ pl~. The I~ Study boldly states,
"~le Sp~c ~s for ~e proposed re~l spa~ ~ nm be~ ifl~tified at ~s
time= it is the intent of W~kev~at~a ~t~l Projem to a~mct ~gh qu~
businesses to ~e C~ty." I~ Study, App~dk ~ 1.2.2. The troth ~ t~t the
~ h~ ~ready entered ~to nego~ation ~gvem~ ~th Costco ~ co~e~on
~th the Projem ~d chose ~e Costco proje~ to ~e e~clu~on of ali others on
April 8, 2002 (see d~cusfion above). In fa~ ~e ~ea~ ~ ~dy
adopted Cestco's dev~opm~t p~po~[ for the Proj~_
Co sisten Conc]u ~ n. The Projea is not consider wi~ ~e ~n~ P~
bemuse the anticipated use for the Project ~s not ~nsist~ ~ the p~ us~
alJowed under ~e Code ~d Spe~c PI~. We me ~le to co~t on the
Proj~'s conslstea~ ~ the go~, objecdves, ~d polices of the ~e~ PI~
for the r~ sm[ed above.
~e Sp~fic Plan ~ Code
C. Qqn~i~enc~, with Land Use Der~gll3lj_9~' ThroUgh the Initial Study, the Agency
c/hms, that the Project is a permitted use, subject to a CUP, under Section l I of
a prevmus version of the Code ("~,,). When the Code was amended, Oki
~ 1 ! became new Section 13 ("New ~; 13") of the Code. Thus, the Agency argues
that New § 13 Omdustri~l Zones), which is primarily COncerned with B usiness Park
~d Industrial Light Zoning designations, controls when armlyzing Perm/tted uses
for the Project, despite the fact that the ~ubject property is zoned Planned Business
Park, and not Bminess Park, under the Code. The Initial Study offers no
explanation for this contradiction.
.The current Cede was adopted ~n May I I, 1998. New Section 11 (" w~.~.~l.l")
!s now concerned with "Commercial Zones." Office Profe~slonal Zone OP-10000
Is one of the zonLng designations under Commercial Zones and is consistent with
the Specific Plan's designation of Professional Office for the subject property.
Retail use is not a permitted use under the Oi~ce ProFessional Zone desi~ation.
The City's decision to move the Industrial Zones section from Old ~ ] ] to New §
13-of the Code makes ser~e because the Ind~trial Zones section is not cons/stent
with the Specific Plan's Professi0~a~ Office designation. Had the City intended
otherw/se, it would have amended the Specific PI~n to re£ere~ce New § ~3. The
City did not do this because the reference to New ~; 11 (Off/ce PrOfessional Zone)
of the Code in the Specific Plan made sense and was consistent with the Spec;ftc
Plan's designation of Professlona] Office for the subject property. Thus, there was
s~mply no need to amend the Spedfie Plan.
As noted above, the subject property is designated planned Business Park
on the Zoning Map and under the Code. The Planned Business Park
permitted uses arc covered in § 15 of the Code. Retail is not a permitted
use trader this desisnation.
Close sm. dy of the Agency's explanation in the Initial Study regarding land
use consistency reveals the inherent weakness of the claim. The Agency
would like thepublic to focus on Old § 11 (New § 13) for validation of its
unlawful Project. However, the Agency's argument simply does not work.,
· Close examination of New § 13 of the Code reveals that the uses described
in that section are not meant to apply to the subject property. The uses
permitted under New § 13 are specific to the Business Park zoning
designation, not the Planned Business Park zoning designation which is the
correct zoning for the subject property. New § 13 is primarily concerned
with the zoning designations of "Business Park Zone BP-20000" and
"Industrial Light Zone ML-10000.~ These designations are inconsistent
with both the Specific Plau's Professional OfSces desiguation and the
Code's Planned Business Park designation. Why would the 1998 Code
bother zo~ug the subject la~d P!s~ned Business Park if, as the Agency
agues, the Specific Plan really meant to point to Old § 11 of the Code
which is primarily concerned with the Business Park zone, not the Planned
Business Park designation.
Moreover, in order for the Agen~s argument to have some merit, we
would have to completelYignore both the Zonlng Map which desi~ ~tes the
subject property as Plsraed Business Park and § 15 of the Code which
directly addresses the uses permitted ttuck, r the Planned Business Park
designation. The Agency has failed to expla/n why § 15. Which does not
permit retail use, should be completely overlooked. The Agency has no
way of explaining § 15 away. Directing the pubIic's attention to thc old
Code will not help it, in this respect. The Agency is simply hoping that no
one will notice that the Code has a section specifically addressing the
perm/ned uses for the Planned B~siness Park zoue.
New § 11 of the Code, as it uow stanclg mad § 15 of the Code go hand-in-
h~d md are completely consistent with the Genera] Pt~, the
Redevelopmem Plm and the 5:!0ecific Plm. Iuterpreting the Code and the
Specific Plan as they now stand is logic/ti. There is no need for convoluted
arguments to e~lmn the permitted uses for the subject property. There is
no need to completely ignore cert~ sec~ns o£the Code. Lfwe read the
Specific Plan ('Pro£esSi0ual Offices), New § I 1 (Office Profe~si°nal Zone,
§ 15 (Pla~ed Bt~iness Park Zo~ .~a .~.- .-. . - - ~ )
Park3 as tho..~,~.:_ ._ .~__ ,~ ,,,~,~,~u m~ z~omng .Map (Planned Business
,, . -~ ~,~,~u tu me x'roperty, we can osd- corae tO ....' '
· , .r uuc uOIIClUSIOI1 /
-.. rctm~ XS not a permitte.d use under any o£these documents. Thus ~
Project is not cons/stent wtth iither the Spccif/c Pi~ nor the Code. ' th
~' ThePro3ectisnotconsistentwith~thertheS ecl- ~' /
~or me Code. Retail, thc anticipated u~- ,~,u~ ,,__:__ ..P nc rlan !
the subject property. ,- -~ ~,-,-~ r,ujecg is not a permitted use ~
The R. edeveIo~tllent PJan
~edevetopmem obi %tiv~ of the ~ed evelopm~ t Plan:
Objective B: "]'he development ofproperty wSthin a creative, coordinated
!and use part'em ofreside~fia/, commercial, open space, and public hcillties
m the Project Area eonslstent with the goals, policies, objective~,
stand.-ds, guid~nes and requirements as ~'t forth in the adopted General
Pla~ and Zon~g Ordinaucc."
.This objective requires that all projects within the project area be
consistent with the Genera/Plan and the Zoning Ordinance. As d/scussed,
above, this Project is inCOnsistent with those plans.
Objective E: "The development of a more efficient and effective
circuhfion system.';
Because the Initial Study fa~s to describe/he Proje~ as a CostCO, the
c'rcu~aUon system has not been adequately analyzed. It is L'npossible to
assess how the circulation system will be affected by the Project.
Project, does not promote a more efficient Thus, the
and effective circulation system,
Prp~osed Actio~-~ urine4- the Redevelopment pimp. The P~oj~ Js cont~ to thc
foll0~ng proposed ~on ~ ~e Red~elopm~t PI~:
~ng ~aso~ble pr~ to p~ who ~e ~gaged in b~s
~ ~e Proje~ ~ to reent~ bu~s~ ~ the P~j~ ~ pro~ded
~at ~d b~e~ r~ confo~ ~ ~s PI~ the G~ PI~ ~d
the Mu~dp~ Code." ~ 301
The ~Mys~ of the Projea did not t~e into accost the pmicipation
oppo~Mfi~ ~<d~ ~ ~ o~s of the subj~ ~te. There w~ no
d~cassion M the ~ Study reg~g the rel~io~ip bet~ ~e
Proj~ ~d ~y o~er d~elopm~t proposes. OmisSion offs ~sk
dlma~ contradicts ~e m~dat~ of~e R~ev~opm~t Pl~.
PJoiect ~ Iucomaten ~th P ~ed Uses. The I~d use pe~u~ by ~e
Kedev~opm~t Mud for a paaic~ p~c~ i$ the land ~e p~ned by the
~eml PI~ the 2o~ng Code. ~ Specie PIa~ ~d all applicable laws, for Sach
Plus. ~ d:s~ssed, ~ove, ~e proposed ~o~ use in not pe~ed und~ ~e
~<~ Conclusion. Became the Proj~ ~ not ~n~stmt ~ ~ the
co~o~ to, is not ~nsist~t ~ ~d do~ not ~pIement ~e go~ of~e
~d~elopment PI~. Fu~ore, ~e Pro'ca is ~c '
~ ons~s~ent ~ ~o
obj~ves ~et fo~ ~ the Rede~lopm~t PI~.
~o~e: The Init1 Study rotes ~hat" ~e uro~os~ -r~:ec....- ,~ .
'" r .r ,e ~J , wuma create on-site noise; howler,
t~e noise l~els ~e not ~n~d~ to be ~g~fi~nt, ' The ~ti~ Study ~ls to ~]ain how this
~nclu~an ~ r~ ~
PO~~o~ing: The ~ S~dy ~ncludes ~at "., .the incr
~ppo~umtl~ would cot r~t ~ si~ifi~nf .~.,,~.~ .... ~ . ~e m
c~on to ,~" s ....... ,::~ .... e,--T-:~:~.~,o ~e p~ ~ ~ge (see Cost~ //~7
~o ~um wage ~es Fu~rc em~-.~ - . ~ ~,,,~xc~ ~ oep~ brae) or close /
. ' e,~ my, m Tact, r~o~te to the City of ~press to
reduce ~e[r ~ute costs. Thee md]~ effems ortho proj~ ~ve to be e~uated.
~c S~s: F~e ~ote~on ~d ~[ice prot~on imams of the '
be lesstMnsi~fi~t ~erafiOn~efo--~-: , . 5 . proJ~ ~ det~
- . ' . s tins conclusion ~s t~t ~elncr~ in d~ fo
pubhc se~s ~ ...addressed m th~ ~t~ e~. ~_.~., ~ r th~ [
no~er, lhenroS~mus.~ .... , .... a_ · ~-~? .,~ ~u~uon me. res ~e ~ uired
~ ' '~*mu~teuoaltsownmen~ TheA- .......... ~,' ~, , q fired. ~
. ' ~"~ ~mo, onnmyre~yonpa~ I
EIY, s where the Pro[ecl that will be ultimately built will l~ve fignificant environmental impacts that
are greater tt,~ those analyzed in past EIRa.
Under the fii'e p otemon dlscusston,'lt i~ xtated that the Orange County Fire
Authority will "., ,review and comment On the site plan prior to projea approval." The Initial
Study fails to mention whether the Orange County Fire Authority was c, onta~ted ~s part of the
preparation of the £nvlronmemtal Asse~ment.
The analysis on schools determines that no mitigation measures are required
because paymem of state-mandated school impart fees would "...offset any cumulative effects of'
employees' children who may attend the public sehools in Cypress." However, the Agency fails
t~o address the se=onda~, or indirect effects of future employees moving to the City of Cypre~.
~rtation/Traffic: The tra~portatinn/c/rc-ulation di*cut.~ion identifies six intersections~s
being selected for armlygis. The Initial Study fails to di~c'u.ts how these particular intersections
were selected to be part of the analyxls. No reason is given as to why the intersection of'
BIoomfield Street and Katella Avenue was omitted fi.om the analysis, especially since the other
three intersections that surround the project site were included. Also, intersections selemed far
impact analysis were limited to those that occur in the City of C~ress. Since the project directly
abuts the City of Los AlamJtos, intersections within that City's juri~:l~ction should also have been
included. The list should include all intersections for which fl~e project could potentially h~ve a
si~ificant impact on transportation/traffic_ The analysis failed to do so.
.... ,E,x~.' ti~.ng traffi,c, couuts were taken on a Wednesd, ay and a Thursday, As most
ImpacB related to the project.
Exhibit 7, "Existing Peal< Hour Traffic Volume~", does ri.or ar-count for any tr-affi'~c ' r>
leaviag the project s~te at sts north~-n boundary with Walker Street, This m/d-blOck link should
be ~nalyzed. -~-J
Pag~ 57 state~ that a "...detailed dis~ion of trip generation ~timates for eac..b.
of the study sceaarios i, contained in the Pha~e I r~ort." This referen~ to another document
is inadequate because the document is not properly described. It is not dated and it does not state
who prepared the report. In addition, the Phase I report wa~ not lhted in the References se¢fio~
of the Initial Study.
Page 57 stat~ the following: "Comparing thc three Retail alternatives, Alternafiv~e
A, the Discount Club and Gas Station ultra'native... ". Thc identification o£a discount club az part
of'Alternative A is contrary to the proj°Ct de~c. ription that provided infomnation on generic re~t~rt' / ~(~'~
and commercial development. The .~4genc3,, for the first time, i~ admitting that Alternzti~__.~Al ~
corresponds'with aDiscount Club. However, the Agency ~ to clm'-ify that fact that the Discount I~
Club is a Costco. . _/ 12.~?
Table $, Sumfrmry blT-tip Generation for Project Akemafive% mows that the PM
peak hour traffic for Alternative C results in 738 trips. Table 8 also identifie,~ the PM peak hour
traffic related To the business park development that was included in the Cypress Business and
Professional Center Specific Plan (upon which the City's G~eral Plan traffic model is based), as
resulting in 453 trips. The increase in 285 trips, which is over a 60% increase, was not accounted
for in the tr~fic ntodet upon which the General PIan and therefore, the Specific Plan is based.
Page 5g states that the trip distribution assumptions for the Business Park werere-~
modified shghtly for the retml alternatives. However, the Imtaal Study fails to detail what the
basis for th/s "slight" modification was. Trip distribution patterns may be si~ificant differentf;~]
these two land uses. _j
T/ale 10, SumJna~ of Intersection Operations -Buildout COnditions With a~d
Without Proposed Projec't, shows that all of the project alternatives result in a decrease in the PM
peak hour level of service at Katella Avenue and Walker Street front "D" to "E". The
"recontmemded', not requ/red, improvement is to add a westbound right-mm lane at this
intersection. No information on whether there is rightLof-way ava/iable to implement this
improvement or when this improvement will occur is provided. The Agency is improperly
deferring the analT~ of this mitigation action to a later date.
Further discussion regarding the deficiencies associated with the Inkial Smdy's
traffic anaiy~ is found in a letter dated April 18, 2002, f~ont Linscott, Law, & Greenspan,
Eng/neers to Mr. Md Malko~ attached hereto as Exhibit B.
' The lnkial Study determines that ~e P'roject w°uld n?t result in inadequate ?arkin--g-~g
c.apac~ty, and therefore, no m~gation is required. This bold conc. luston is reached despite
that there is no defined project aga/nst which to determine p~rking requirements.
Utilitie~ and $~'vlce Syslem,s:
ProjeCt impacts w/th respect to ,.wa$tewater are not quantified; however,-~
conclu,ions are reached regtrding the projects impacts. Conclusions are being reached without
accurate data to ba~e them on.
Sewage system mitigation measures are provided; however, these mitigafi~h]
meamres are b~sed on the project's contribution to the system, and do not reflect cumulative
impacts.
Mitigation Measure UTIL8 is ~rccommended" to "ensure that water impacis
remain at or below e~ci~ting levels." However, this mitigation measure is inadequate bemuse it
does not accomplish anything. Thc tcrt of the n'dtigat~on measure 'simply mates that voluntary [
water conservation will be ~encouraged." .
· The Initial Study ~tates that solid waste impacts of the proposed project on
capacity is a "potentially significant imp~t unless mitigated" However the c~n~lu~;o,, ;~ ,~
that "no mitigation measures are required." The tex~then' go es on to' list' several~rmuga~,o,, ? '~'
meamres that have no relationship to eamring that the identified potentia/ly ~ignificam impact is
mitigated. The potentially significant impact wa~ simply never analyzed.
Mandatory Findings of Significance.: With respect to the Project, the Initial Study concludes'th~
there "...would be no impact that would be individually limited, but cumulatively considerable
beyond those prex4ously analyzed in the Cypress Cmneral Plan EIIL". This conclusion is inade-
quate for the follo~.4ng reasons: 1) cumulative analyses were not conducted for any impacl
except traffic; and 2) the l~nding$ o~'the traffic analysis show a 60% increase in PM peak hour
traffic volumes above tho~e contemplated by the Cypree~ General Plan.
EX-mIT B
(see attached letter)
E NC~ N E E R S
MALKOFF AND ASSOCIATES
18456 I2ncoIn C~cle
ViUa Park, Califora£a 92667
SUBJECT;
LLG Reference: 2,02.2344.1
TRAFFfC ENGINEERING REVIEW OF TIEE TRAFI;ZC EMPACT
A-NALYSLS FOR T~ PROPOSED WAL~~A
~T~L DE~LOP~NT ~ T~ CI~ OF C~SS
C~r~s, California
Dear Mr. MaLkoff:
Linsco~ Law & Greca~'pan, Eag/neel~ (LLG) is pleased to submit dae follow~ng review of the
Traffic Impact Analysis, prepared by Kimley-Hom and Associates, Inc., dared March, 2002, for
the Proposed Walker/Kate/la R~tai] Development projezt The proposc~d project sit~ is located
nort~ of Katella Avc-uue gad west of Watlccr Street in the City of Cypress. The
corarne~ts are provided:
· Oux review was solely b~sed Upon thc generic descri don of' '
of any ~'pemfie u-~er that may , .__ p_u. the
~ haw a greater or le~zr mp gencratmn potential because
t~e type operation, hours ofoperat/on and m.v~er of use.
- Based on our review the 'tra.ffi~ irn-act
projc~ on :xisb~rl~ conditions and . I .... -~ .~._~ the pcak hour traf~c impact of the
and Cerritos Avenue." r'~r~"~ tot ea:a altcrnanve atthe mter~e~Iaon Of Wal'ker'~tr~e~_~
· Project Slwd2/lrea: It is not clear how the list of~y study/n-tersect/ons and project study
area was determSued. The six intersections that were eval
City of Cypress. We sueoes~ tl~, m. ',o/ .. . uated are all located w/tl:dn
County of Oranee Tran,~.- --' · .,-,~, , ~4 rneasuea~le ~apacr
~c c°afa'm ~c spher~ of impact/study area is ad~luat~' ------/
I'a~na. b2b 736-2)22 · San D}ego - 61 g 299-3090 · La~ Vesa~ . 702 4.~1.1920 · Founded 1966 · An LL"~.WR Ca~'~p,lny
Mr. Me] Malkoff
M^LKOFF & AS SOCIATES
April 18, 2002
Page 2
Bloot~eld Street at Karella Xvtmu,., Given t~ ~p g~fion of ea~ altmti~ ~d
project ~p ~budou, ~ ~o~d ~t ~e h~on of Bio.eld S~et ~d
~re!la Argue, ~t~n ~e Ci~ offs ~tos be ~al~. Tbs ~r~c~on ~ly
op~tm at ~S ~ GCU = 0.95) d~ ~ PM p~ co~uw ha~ ~d ~ up m 20%
of re~il pmj~ ~p, ~si~ to ~11~ we~t of ~, prQ:~ itc, it ~ possible ~at ~e
B~ P~k Al~five or ei~ of m~l proje~ altetzmdves ~I1 ~ve an a~e
~pa~ on ~e ope~ting co~ifio~ ~is (nm~ec~.
FFal£er Street az Ctrritos Av~nut., The in~ction of Walker Street and Cc-rrltos Avanu~
currently opera~:s a~ a gl/t-phase traffic signal on Walker Stnxet Kc'view of the
ICU/LOS calculation sfrmets i~cluded in Appendix B of the traftle study indicate~ that the
cmTent "spl~t-phase' signal operation is nor accurately repre~enmd ~n the in;er~ecrion
capacity analysis prepared far thi~ study interse~on. For intersection approaches with
split phasing, the approach movement with the gr~test V/C mrio is considered to be
er/fie'al.
As suah, the addition of we~ollnd right-turn, lane on Cerritos Avenue recommended
mitigate ttm impact of build-ou: traffic as well as the adddfion of traffi: generated, by any
of the develapmmt aIm~afives will not be sufficient to improve projec-md adverse PM
peak hour s~;rviee levels to tko City's desired LOS D standard_
Based on our evaluation of"build-out plu~ project traffic" conditions, :~ Cerr/tosAValker
intersection is forecast to operate at LOg E er F w/th tb, e implmuenradon of recommended
mitigation mcasurei (See Table 1, a~-,ched to this loiter ~.port).
We appreciate the °PP°rumity to provide this review fol- Malkoff & Assoeiate~. Il'you have any
questior~ regarding this letter or need additional lraffic mgineet/ng support:, please call hie at
(714) 641-I587,
S/ncerely,
LINSCO'FT, L&W, & GREENSPAN, ENGINEERS
Richard E. Barrette, P,E,
Associate Principal
TABLE I
IC'U/LOS calcL.d,u.~en a,c. cou~ I'or spLk,ph~se opemtio~ on Walker
RESPONSES TO COMMENTS FROM JONATHON C. CURTIS, SHEPPARD, MULLIN,
RICHTER & HAMPTON, LLP, DATED APRIL 18, 2002.
B1.
B2.
B3.
Declaratory statement. This comment states the objection of Cottonwood Christian
Center (Cottonwood) to the Mitigated Negative Declaration (MND) and Initial
Study/Environmental Checklist (IS/FC) for the Walker/Katella Retail Project. No specific
envrronmental issues are raised in this comment, thus no further response is necessary.
A Mitigated Negative Declaration, along with the Initial Study/Environmental Checklist,
has been prepared for the Walker/Katella Retail Project. The City of Cypress responded
to this specific concern in a letter to Mr. Jonathon Curtis of Sheppard, Mullin, Richter &
Hampton, LLP, dated April 18, 2002. A copy of the City's letter and the Mitigated
Negative Declaration are included at the end of the responses to the comments from
Sheppard, Mullin, Richter & Hampton, LLP (Letter B).
The MND and IS/EC have been prepared pursuant to the requirements of the California
Environmental Quality Act (CEQA) (see California Public Resources Code Sections
21082, 21082.1, 21091, 21092, 21092.2, 21093, and 21094), as well as the State CEQA
Guidelines (see Title 14 of the California Code of Regulations, Sections 15070, 15071,
15072, 15073, and 15074).
The MND and IS/EC were made available for public review and comment pursuant to
CEQA Guidelines Sections 15070-15073. The initial public review period lasted from
March 28, 2002.to April 18, 2002. A second public review was conducted from April 30,
2002 through May 20, 2002. Copies of the M~,ID and IS/EC were made available for
public review at the City of Cypress Community Development Department, located at
5275 Orange Avenue. The Cypress Redevelopment Agency has complied with the
applicable sections of CEQA and the CEQA Guidelines regarding the process for
negative declarations.
This comment does not provide specific details regarding the "numerous flaws" in the
Initial Study/Environmental Checklist, thus it is not possible to respond to the lack of
environmental issues raised in the comment.
Section 1.2 (Purpose) in the IS/EC describes the purpose of an IS/EC, as well as cites
the specific disclosure requirements for inclusion in an Initial Study pursuant to Section
15063 of the CEQA Guidelines.
Section 15063(c)(5) of the CEQA Guidelines states in pertinent par[:
"(5) Provide documentation of the factual basis for the finding in a
negative declaration that a project wi//not have a significant effect on the
environment,'"
The IS/EC for the Walker/Katella Retail Project provides the necessary documentation,
including the environmental analysis found in Section 4.0 and the technical appendices,
for the Cypress Redevelopment Agency to make the determination found in Section 7.0
(Lead Agency Determination).
JN 10-102089 C-47 Comments and Responses
Walker/Katella Retail Project
B4,
B5.
BC.
B7.
BB.
The following determination is recited on page 79 of the IS/EC:
"/f/nd that a/though the proposal could have a significant effect on the
environment, there wi//not be a sign/f/cant effect in this case because the
m/t/gat/on measures described in Section 3.0 have been added. A
NEGATIVE DECLARA T/ON wifl be prepared."
This determination includes a typographical error insofar as the reference to Section 3.0
should be to Section 4.0. This will be corrected in the Final IS/EC.
Declaratory statement. This comment states that Cottonwood has filed a Verified
Complaint and Verified Petition for Peremptory Writ of Mandate against both the Cypress
Redevelopment Agency and the City of Cypress in both the United States District Court,
Central District of California and the Superior Court of the State of California for the
County of Orange (collectively referred to as the Complaint and Petition). No
environmental issues pertinent to the IS/EC for the Walker/Katella Retail Project are
raised in this comment, thus no further response is necessary.
Section 1.3 (Incorporation by Reference) in the IS/EC identifies the documents that have
been incorporated by reference and are utilized as "Tier 1" environmental documents
upon which to tier the Walker/Katella Retail Project IS/EC and MND. The "Tier 1"
documents include the Cypress Genera/ Plan (2001), the Cypress Genera/ P/an EIR
(2001), and the .Cypress Business and Professional Center Spec/ftc P/an EIR (1990)~
The Complaint and Petition do not challenge the approval or validity of these documents
(indeed, any such challenge would be time-barred), thus the adoption of the MND and
IS/EC as proposed is not precluded or even implicated by the Complaint and Petition.
Declaratory statement. This comment purports to provide an overview of CEQA,
including references to court decisions. No environmental issues pertinent to the
Walker/Katella Retail Project IS/EC are raised in this comment, thus no further response
is necessary.
Declaratory statement. This comment provides background on the so-called "fair
argument test" relating to the preparation of an EIR when a project may have a
significant effect on the environment. No environmental issues pertinent to the
Walker/Katella Retail Project IS/EC are raised in this comment, thus no further response
is necessary.
This comment asserts that the project will have a significant adverse impact on the
environment, and that the'Redevelopment Agency therefore m~st prepare an EIR. The
Redevelopment Agency does not concur with the assertion that an EIR must be
prepared. Refer to Response B3, which restates the Agency's conclusions and findings
that the project with the incorporation of mitigation measures would not have a significant
impact on the environment, and that the preparation of a Mitigated Negative Declaration
is the appropriate CEQA document for the proposed project.
Responses to specific comments on the WalkedKatella Retail Project Mitigated Negative
Declaration and Initial Study/Environmental Checklist are contained in Responses B9
through B82 below.
JN 10-102089 C-48 Comments and Responses
Walker/Katella Retail Proje~, I
Bg.
The comment states that "a stable project description is the sine qua non of CEQA,"
referring to the court decision in County of Inyo v. City of Los Angeles (1977) 71
CaI.App.3d 185.
Section 2.0 (Project Description) of the IS/EC provides a detailed narrative of the Project
Location, Environmental Setting, including on-site land use uses and surrounding land
uses, Existing Zoning and General Plan, and Project Characteristics. To the extent that
the commentor's concerns for detail and stability within the project description are based
on the decision in County of Inyo, that decision obviously has no factual nexus to the
proposed project. In this case, the project description is accurate and consistent
throughout the IS/EC, which serves as the basis for the Mitigated Negative Declaration.
In the County of Inyo case, an EIR drafted by the City of Los Angeles referred to the
project in question differently in different parts of the document. The project that the city
was supposed to be analyzing, pursuant to an earlier court order (see County of Inyo vs:
Yorty (1973) 32 CaI.App.3d 795), was a proposal to increase the City's extraction of
groundwater from the Owens Valley for export to Los Angeles. The document that
resulted, however, did not focus its analysis on that proposal. In one portion of the ELF(,
the project was incorrectly defined include only the extraction of groundwater for use on
City-owned lands located in Inyo and Mono Counties. In other parts of the document,
however, the City defined the project far more broadly. At one point, it was defined, in
the court's words, as "one part of the larger operation of the Los Angeles Aqueduct
System." Later, the project was Characterized as the whole of the Los Angeles Aqueduct
System.
According to the court, the primary harm caused by "the incessant shifts among different
project descriptions" was that the inconsistency confused the public and commenting
agencies, thus vitiating the usefulness of the project "as a vehicle for intelligent public
participation." The court added that "Iai curtailed, enigmatic or unstable project
description draws a red herring across the path of public input."
The purpose of the IS/EC and MND here is to present an analysis of the potential
environmental effects resulting from implementation of the WalkedKatella Retail Project.
Three retail alternatives are proposed; and, consequently, because detailed site planning
characteristics, such as the exact number of parking spaces or height of the buildings,
are unknown at this time, potential environmental impacts are addressed in either
general terms, such as for parking, or in terms a worst-case scenario, which has been
defined as the retail alternative with the most 'square footage and generating the greatest
amount of traffic of the three alternatives.
The comment also states that "the Agency must in good faith make any MND...as
complete and comprehensive as possible," referring to the court decision in Long Beach
Savings and Loan Association v. Long Beach Redevelopment Agency (1986) 138
Call.3d 249.
In that case, a writ of mandate was sought to set aside a negative declaration adopted
by a redevelopment agency in connection with its approval of a development agreement
allowing a landowner to construct an office, retail, and entertainment complex in a
downtown redevelopment area. The superior court denied the petition and the court of
appeal affirmed.
JN I0-102089 C-49 Comments and Responses
Wa/ker/Katella Retail Project
The court rejected the petitioner's argument that the agency should have prepared a full
Elk to analyze the impacts of the development agreement. Citing the section of CEQA
requiring that all public and private activities or undertakings associated with a
redevelopment plan be treated as a single project, and noting that the agency had
already prepared an Elk for the redevelopment plan itself, the court upheld the agency's
decision not to prepare a subsequent Elk for the development agreement. Contrary to
the rule applicable to an 'agency's decision Whethe? to prepare an initial Elk for a project,
the rule governing the decision whether to prepare a subsequent document does not
depend on whether a "fair argument," based on substantial evidence, can be made that
significant effects might occur. Rather, the question is only whether substantial evidence
exists in the record as a whole to support the agency's decision that the project will not
cause such impacts.
BI0.
Regarding the preparation of environmental documentation that is as complete and
comprehensive as possible, the IS/EC and MND have been prepared pursuant to the
requirements of the California Environmental Quality Act (CEQA) (see California Public
Resources Code Sections 21082, 21082.1, 21091, 21092, 21092.2, 21093, and 21094),
as well as the State CEQA Guidelines (see Title 14 of the California Code of
Regulations, Sections 15070, 15071, 15072, 15073, and 15074). The IS/EC and MND
meet the requirements of CEQA and the CEQA Guidelines, and the test set forth in the
Long Beach Redevelopment Agency decision, in that the IS/EC and MND are as
complete and comprehensive as possible.
As noted in Response B9, the project description is accurate and consistent throughout
the IS/EC. The traffic analysis is refined for the purposes of analyzing the three retail
alternatives. The folloWing text appearing on' page 51 of the IS/EC illustrates the
assumptions used for the traffic analysis.
ne analysis focuses on the traffic-related impacts associated with the
following four development scenarios:
Specific Plan Alternative - 470, 448 square feet of Business Park;
Retail Alternative A - f63,000 square feet of Discount Club, a
members-only Gas Station, and 14,000 square feet of
Restaurants (two 7, O00-square-foot restaurants);
Retail Alternative B - 146,300 square feet of Shopping Center,
and 14,000 square feet of Restaurants (two 7,000-square-foot
restaurants);
Retail Alternative C- ~ 72,900 square feet of Shopping Center,
and 14,000 square feet of Restaurants (two 7,000-square-foot
restaurants)."
As noted above, Retail Alternative A identifies 163,000 square feet of Discount Club use,
but does not mention a Costco Warehouse as the proposed use. Nor is there a
reference to a Costco Warehouse in the MND, IS/EC, or IS/EC technical appendices.
The IS/EC and associated technical reports do not include the mention of a Costco
Warehouse,. simply because the Cypress Redevelopment Agency is considering the
development of a retail project within a range of possible square footages and
configurations, as illustrated in the three alternatives (Exhibits 4,5 and 6 in the IS/EC),
JN I0-I02089 C-50 Comments and Responses
Walker/Kate/la Retail Project
Bll.
B12.
and no specific uses have been fixed at this time. No such DDA agreement exists, and
no documents have been executed that commit the Cypress Redevelopment Agency to
a particular project or fixed tenant or user.
Section 2.4 (Project Description) of the IS/EC does note that the Cypress
Redevelopment Agency has extended owner participation opportunities. The details of
the owner participation opportunities are confidential, and do not modify the project
description or environmental analysis as detailed Jn the IS/EC. With respect to the
extension of owner participation opportunities to Cottonwood, the IS/EC for the
Walker/Katelta Retail Project analyzes the environmental impacts associated with three
retail alternatives; and it is not required to analyze the impacts related to any proiect that
might be proposed by Cottonwood. A separate environmental document would be
required for a Cottonwood project, and that document could describe and analyze the
impacts associated with the owner participation opportunities.
The IS/EC notes in several Places why Alternative C was selected as the "worst-case
scenario" for purposes of the environmental analysis. Section 2.4 (Project
Characteristics), on page 12 of the IS/EC explains the decision to use Alternative C as
the "worst-case" scenario.
"For purposes of the environmental analysis, contained in Section 4.0 of
this Initial Study/Environmental Checklist, a worst-case scenario for the
Walker/Kate/la Retail Project was assumed. The worst-case scenario is
defined as Alternative C, which proposes approximately 173, 000 square
feet of retail and '/4, 000 square feet of restaurant uses. Alternative C was
selected for the Worst-case scena'rio over the other two retail alternatives
(Alternative A and Alternative B), given that it proposes the greatest
amount of retail square footage. In addition, Alternative C is projected to
generate the greatest amount of daily vehicle trips, as well as morning
and evening peak hour trips of the three retail alternatives."
In addition, similar text is included on page 26 at the beginning of Section 4.0
(Environmental Analysis).
Section 2.4.1 (Phasing) of the IS/EC states that any one of the three alternatives would
be constructed in one phase. The Cypress Redevelopment Agency has determined that
the Walker/Katella Retail Project would be constructed in one phase. No additional
support is required for the Agency!s decision regarding project phasing.
The assertion that the project is a Costco Wholesale is false. Refer to Response B 10.
Section 2.4 (Project Characteristics) of the IS/EC notes a range of retail alternatives
without mentioning specific tenants. The Cypress Redevelopment Agency is evaluating
the environmental impacts of the uses associated with three retail alternatives, Specific
tenants or site users will be determined until a later date.
The comment claims that "the Project is really a Costco, and not one of the three
theoretical alternatives...in the initial Study." As noted in Response B10, the project is
not a Costco Wholesale, but is one of the three retail alternatives described in Section
2.4 of the IS/EC. The impacts of the three retail alternatives have been fully analyzed
JN 10-102089 C-61 Comments and Responses
Walker/Katella Retail Project
and mitigation measures have been proposed to mitigate impacts to a less than
significant level.
B13, Refer to Responses B3, B9, B10, Bll, and B12.
B14. CEQA Noticing
The Cypress Redevelopment Agency relied on Sections 15072(a), 15381 and 15386 of
the CEQA Guidelines (see Title 14 of the California Code of Regulations) to determine
the list of agencies that were required to receive the Notice of Intent to File a Negative
Declaration. These three relevant sections of the CEQA Guidelines are cited below.
Section 15072(a) of the CEQA Guidelines states:
"(a) A lead agency shall provide a notice of intent to adopt a negative
declaration or mitigated negative declaration to the public, responsible
agencies, trustee agencies, and the county clerk of each county within
with the proposed project is located, sufficiently prior to adoption by the
lead agency of the negative declaration to allow the public and agencies
the review period provided under Section 15105."
Section 15381 of the CEQA Guidelines provides the definition of a responsible agency.
Responsible agency means a public agency which proposes to carry
out or approve a project, for which lead agency is preparing or has
prepared an EIR or negati~/e declaration. For the purposes of CEQA,
the term "responsible a "' · . '
gency includes a/I pubfic agencies other than the
lead agency which have discretionary approval power over the project."
Section 15386 of the CEQA Guidelines provides the definition of a trustee agency.
"'Trustee agency' means a state agency having jurisdiction by law over
natural resources affected by a project which are held in trust for the
people of the State of Califomia. Trustee agencies include:
(a) The California Department of Fish and Game with regard to the
fish and wildlife of the state, to designated rare or endangered native
plants, and to game refuges, ecological reserves, and other areas
administered by the department.
(b) The State Lands Commission with regard to state owned
"sovereign" land such as the beds of navigable waters and state school
lands.
(c) The State Department of Parks and Recreation with regard to
units of State Park System.
(d) The University of California with regarc~ to sites within the Natural
Land and Water Reserves System."
Utilizing the definitions provided in CEQA Guidelines Sections 15381 and 15386, the
Cypress Redevelopment Agency determined that there are no responsible or trustee
agencies, and thus no state or other agency review is required.
JN fO-f02089 C-52 Comments and Responses
B15.
B16.
Projects of Statewide, Regional or Areawide Significance
With respect to projects of statewide significance, CEQA Guideline Section 15206(b)
defines the types of projects that qualify as projectS of statewide, regional or areawide
significance.
"15206 (b) The lead agency shall determine that a proposed project is
of statewide, regional, or areawide significance if the project meets any of
the following criteria:
(1) A proposed local general plan, element, or amendment thereof for
which an EIR was prepared. If a negative declaration was prepared for
the plan, element, or amendment, the document need not be submitted
for re vie w.
(2) A project has the potential for causing significant effects on the
environment extending beyond the city or county in which the project
would be located. Examples of the effects include generating significant
amounts of traffic or interfering with the attainment or maintenance of
state or national air quafity standards. Projects subject to this subsection
include:
(A) A proposed residential development of more than 500 dwelling
units.
(B) A proposed shopping center or business establishment employing
more than 1, 000 persons or encompassing more than 500, 000 square
feet of floor space.
(C) A proposed commercial office building employing more than
¢,000 persons or encompassing more than 250,000 square feet of floor
space.
(D) A proposed hotel/motel development of more than 500 rooms.
(E) A proposed industrial, manufacturing, or processing plant, or
industrial park planned to house more than 1,000 persons, occupying
more than 40 acres of'land, or encompassing more than 650, 000 square
feet of floor area."
Section 2.4 (Project Characteristics) of the IS/EC provides a description of the three
retail alternatives proposed for the project site. As shown in Table 2 (Project
Alternatives) on page 11 of the IS/EC, Alternative A proposes 177,000 square feet,
Alternative B proposes 160,300 square feet, and Alternative C proposes 186,900 square
feet. All three alternatives are significantly below the statewide, regional, or areawide
significant threshold of 500,000 square feet for a shopping center. As such, the review
period requirements cited in the comment are not pertinent,
Refer to Response B2.
Public Resources Code Section 21092.4 specifically addresses consultation with
transportation planning agencies. This section notes that the consultation is required for
projects of statewide, regional, or areawide significance. Subdivision (a) of the statute
reads:
"21092.4(a) For a project of statewide, regional, or areawide
significance, the lead agency shall consult with transportation planning
agencies and public agencies which have transportation within their
JN 10-102089 C-53 Comments and Responses
Walker/Kate/la Retail Project
B17.
B18.
B19.
B20.
jurisdiction which could be affected by the project. Consultation shall be
conducted in the same manner as for responsible agencies pursuant to
this division, and shall be for the purpose of the lead agency obtaining
information concerning the project's effect on major local arterials, pubfic
transit, freeways, highways, and rail transit service within the jurisdiction
of a transportation planning agency or a public agency which is consulted
by the. lead agency. A transportation planning agency or pubfic agency
which provides information to the lead agency shall be notified of, and
provided with copies of, environmental documents pertaining to the
project."
Also, refer to Response B14. The noticing requirements cited in the comment are not
pertinent.
Refer to Responses B14 and B16.
The Notice of Intent to File a Negative Declaration, which is included at the end of the
responses to Letter B, does indeed note that the Initial Study and all documents
referenced therein are available for public review at the Cypress Community
Development Department, located at 5275 Orange Avenue. Further, all documents
referenced were previously provided to the Cottonwood's representatives pursuant to a
Public Records Act request and litigation disocvery demands.
With respect to documents incorporated by reference, Section 1.3 of the IS/EC notes
that the "documents were utilized throughout this Initial Study/Environmental Checklist
and are available for review at the Ci "
ty of Cypress. This is further supported by the
numerous references to the documents incorporated by reference in Section 4.0
(Environmental Analysis).
Refer to Responses B2 and B18. In addition, the City of Cypress responded to this
specific concern in a letter to Mr. Jonathon Curtis of Sheppard, Mullin, Richter &
Hampton, LLP, dated April 18, 2002. A copy of the City's letter is included at the end of
the responses to the comments from Letter B.
Section 1.3 (Incorporation by Reference) cites the following documents: _Cypress
General P/an (2001), C_ypress General Plan EIR (2001), Cypress Business and
Professional Center Specific Plan EIR (1990), _Cypress Downs EIR (1988), and Cypress
Plaza EIR (1986). The Zoning Code, Specific Plan and Redevelopment Plan are
reference documents utilized for the environmental analysis in Section 4.0, but are not
documents that were incorporated by reference. The age ef the documents is irrelevant
if mitigation measures, development standards or conditions are still applicable to the
project area.
The IS/EC complies with Section 15150 of the CEQA Guidelines (Incorporation by
Reference). Sections 15150(a) and (b) are restated below.
"(a) An EIR or negative declaration may incorporate by reference aft
or portions of another document which is a matter of public record or is
generally available to the public. Where ali or part of another document is
incorporated by reference, the incorporated language shall be considered
to be set forth in fuft as part of the text of E/R or negative declaration.
JN 10-102089 C-54 Comments and Responses
B21.
B22.
B23.
B24.
(b) Where part of another document is incorporated by reference,
such other document shall be available to the public for inspection at a
pubfic p/ace or public building. The EIR or negative declaration shaft
state where the incorporated documents shaft be made available to the
public in an office of the lead agency in the county where the project
would be carried out or in one or more buildings such as county offices or
public I/brai/es if the lead agency does not have an office in the county."
As noted in Responses B2, B18, and B19, the Cypress Redevelopment Agency has
complied with these requirements and has facilitated full disclosure of the environmental
impacts associated with the proposed project.
The following documents will be added to the list of documents referenced in Section
4.18 of the Final IS/EC and MND:
~ Redevelo ment Pro/ect Redevelo ment P/an,
June 25, 1995.
1990, first amendment January 9,
~J2end/x I, Zon/n.q, of the Cypre_s.s Municipal Cod~';, April 23, 1979.
A~G99_ndix I, Zoning, of the Cypress___Mun/c/_pal Cod , May 11, 1998.
_Cypress___Bus/ness and Professional Co~p/an, April 17, 1990, prepared by
Robert Bein, William Fro~& As~ooc'iates.
The docur~ents listed above, as well as those listed in Section 4.18 were utili:~ed
throughout Section 4.0 of the IS/EC. The addition of these documents to Section 4.18
does not change the conclusions in Section 4.0 of the IS/EC.
All of the documents incorporated by reference, as well as the documents listed in
Section 4.18, including the documents listed above, have been available for review at the
City of Cypress Community Development Department.
Refer to Responses B2, B3, B20, and B21.
Refer to Responses B2, B3, and B9. In addition, Section 4.0 of the IS/EC provides both
an environmental analysis and conclusion regarding the significance level of the project's
impacts with respect to the 88 questions raised in the Initial Study Checklist. Also, the
Mitigated Negative Declaration (attached at the end of the responses to Letter B)
includes findings regarding he project s environmental impacts.
Refer to Response B23.
A Mitigation Monitoring and Report Checklist has been prepared for the Walker/Katella
Retail Project. Public Resources Code Section 21081.6 states:
"(a) When making the findings required by paragraph (1) of
subdivision (a) of Sect/on 2108¢ or when adopting a m/t/gated negative
declaration-pursuant to paragraph (2) of subdivision (c) of Section 21080,
the fo/lowing requirements shall apply:
JN 10-102089
C-55
Comments and Responses
(f) The public agency shall adopt a reporting or monitoring program
for the changes made to the project or conditions of project approval,
adopted in order to m/t/gate or avoid sign/f/cant effects on the
environment. The reporting or monitoring program shall be designed in
order to ensure compliance during project implementation...."
The Mitigation Monitoring and Reporting Checklist lists each mitigation measure
in the IS/EC, the monitoring milestone, the party responsible for monitoring, and
verification of compliance.
B25. Both the Traffic Analysis (ai page 23) and the IS/EC (at page 64) conclude that the
intersection of Cerritos Avenue and Walker Avenue would operate at an acceptable level
of service with implementation of mitigation measure T1.
B26. The IS/EC analyzed Alternative C, given that it proposes the greatest amount of retail
square footage and is projected to generate the greatest amount of daily vehicle trips.
Also, refer to Responses B10, Bll, B12, and B23.
B27. As noted in Response B12, the WalkedKatella Retail Project is not a Costco Wholesale
or any other fixed user or tenant. Future retail users/tenants would be subject to
applicable City permit processes and conditions and associated environmental review
req uirements.
B28.
The IS/EC and MND dearly identify that all environmental impacts associated with the
Walker/Katella Retail Project are: (a) potentially significant impacts unless mitigated, and
mitigation has been included; (b) less than significant; or (c) have no impact. Also, refer
to Response B3.
B29.
This comment contains general remarks regarding the information in the IS/EC. Refer to
Responses 850 through B77 for responses to the specific Comments set forth in Exhibit
A to Letter B.
B30.
Declaratory statement. This comment purports to provide an overview of tiering under
CEQA, including references to court decisions. No environmental issues pertinent to the
Walker/Katella Retail Project JS/EC are raised in this comment, thus no further response
is necessary.
B31.
As noted on page 44 of the IS/EC, the proposed retail uses are permitted subject to a
conditional use permit. Thus, no amendments, to the Cypress General Plan, Cypress
Zoning Ordinance or Cypress :Business and Professional Center Specific Plan are
required.
B32.
B33.
Refer to Responses B3, B8, B12, and B31.
The C~y~ress General Plan EIR, certified in 2001, provided an update of existing
conditions throughout the City and analyzed the impacts associated with buildout of the
City. The buildout condition included buildout of the Cypress Business Park, as well as
other vacant and underutilized land in the City. Section 3.0 (Project Description) of the
C__F. press General Plan EIR~ provides an environmental setting, statement of objectives,
assumptions for environmental analysis, general plan assumptions, and project
characteristics. The Cypress General Plan EIR_ provided the City with both current
JN 10-102089
C-56
Comments and Responses
Walker/Kate~la Retail Pro. iect
B34.
B35.
B36.
B37.
conditions, and buildout impacts for land use; population, employment and housing;
transportation/circulation; air quality; noise; geologic and seismic hazards; hydrology and
drainage; public services and utilities; parks and recreation; and public health and safety
based upon the current conditions.
Also, refer to Responses B3, B8, B12, and B31.
Refer to Responses B3 and B28.
The mitigation measures included in the IS/EC will effectively reduce project impacts to a
less than significant level.
The IS/EC clearry states (at pages 2 and 5) that a statement of overriding consideration
was adopted for the General Plan EIR and for the Cypress Business and Professional
Center Specific Plan EIR.
]-he City of Cypress responded to this specific concern in a letter to Mr. Jonathon Curtis
of Sheppard, Mullin, Richter & Hampton, LLP, dated April 18, 2002: A copy of the City's
letter is included at the end of the responses to Letter B
The IS/EC and MND concluded that the proposed Walker/Katella Retail Project would
not result in any significant and unavoidable impacts. Thus, that statements of overriding
considerations were adopted for the Cypress General Plan EIR and the Cypress
Business and Professional Center Specific Plan EIR is inconsequential. As noted in
Response B35, the mitigation measures included in the IS/EC will effectively reduce
projects impacts to a less than significant level.
B38. Refer to Responses B3 and B35.
This comment purports to provide an overview of the court decision in Sundstrom v.
County of Mendocino (1988) 202 CaI.App.3d 296. No environmental issues pertinent to
the Walker/Katella Retail Project IS/EC are raised in this comment, thus no further
response is necessary.
B39. There is no reference in the IS/EC of deferring circulation plans or parking studies to a
later date. With respect to mitigation measures GEO1, GEO 2, and GEO4, these are
standard conditions of approval that are applied to all projects in the City.
B40. The mitigation measures included on page 37 of the IS/EC (specifically, HM1, HM2, and
HM3) would apply to any hazardous material user or generator, including a service
station.
B4t. Declaratory statement. This comment purports to provide an overview of CEQA
Guidelines Section 15064. No environmental issues pertinent to the Walker/Katella
Retail Project IS/EC are raised in this comment, thus no further response is necessary.
B42. As noted in Responses B3 and B35, all project-related impacts can be mitigated to a less
than significant level. Given that no significant and unavoidable impacts would result
from project implementation, an EIR is not required. Thus, the reference in the comment
to CEQA Guidelines Section 15064(0(4) is not pertinent.
JN 10-102089 C-57 Comments and Responses
Walker/Kate/la Retail Projec./
B43,
B44.
B45.
B46.
Refer to Response B3.
The disagreement among experts is limited only to traffic impacts. Refer to Responses
B78 through B82.
Declaratory Statement. This comment purports to provide a definition of"project" under
CEQA, citing court cases. No environmental issues pertinent to the Walker/Katella
Retail Project IS/EC are raised in this comment, thus no further response is necessary.
As noted in Response B9, a more relevant court decision is the Long Beach Savings and
Loan Association v. Long Beach Redevelopment Agency 1986 court case. In that case,
the savings and loan sought a writ of mandate to set aside a negative declaration
adopted by a city redevelopment agency in connection with its approval of a
development agreement allowing a landowner to construct an office, retail, and
entertainment complex in a downtown redevelopment area. The superior court denied
the petition and the Court of Appeal affirmed.
The court rejected the petitioner's argument that the agency should have prepared a full
EIR to analyze the impacts of the development agreement. Citing a section of CEQA
requiring that all public and private activities or undertakings associated with a
redevelopment plan be treated as a single project, and noting that the agency had
already prepared an EIR for the redevelopment plan itself, the court upheld the agency's
decision not to prepare a subsequent EIR for the development agreement. Contrary to
the rule applicable to an agency's decision whether to prepare an initial EIR for a project,
the rule governing the decision whether to prepare a subsequent document does not
depend on whether a "fair argument," based on substantial evider~ce, caa be made that
significant effects might occur. Rather, the question on appeal in only whether
substantial evidence exists in the record as a whole to support the agency's decision that
the project will not cause such impacts.
Regarding the preparation of a MND and IS/EC that is as complete and comprehensive
as possible, the Mitigated Negative Declaration (MND) and Initial Study/Environmental
Checklist (IS/EC) have been prepared pursuant to the requirements of the California
Environmental Quality Act (CEQA) Sections 21082, 21082.1, 21091, 21092, 21092.2,
21093, and 21094, as well as CEQA Guidelines Sections 15070, 15071, 15072, 15073,
and 15074. The MND and IS/EC meet the requirements of CEQA and the CEQA
Guidelines and the test in the Long Beach Savings court case, that the MND and IS/EC
are as complete and comprehensive as possible.
As- noted in Response B10, ho DDA agreement with Costco exists or has been
executed.
B47. Declaratory statement. This comment purports to provide an overview of cumulative
impacts relative to CEQA Guidelines Sections 15130(a) and 15355, and a ~ourt case is
cited. No environmental issues pertinent to the WalkedKatella Retail Project IS/EC are
raised in this comment, thus no further response is necessary.
B48. Section 15152(0 of the CEQA Guidelines provides guidance regarding the discussion of
cumulative impacts in second- or third-tier EIRs or negative declarations.
JN 10-102089 C-58 Comments and Responses
Wa/ker/K~tel/a Retail Project
B49.
BS0.
"15~52(f)(¢) Where a lead agency determines that a cumulative effect
has been adequately addressed in the prior E/R, that effect is not treated
as significant for purposes of the later E/R or negative declaration, and
need not be discussed in detail
¢5152(0(3) Significant environmental effects have been "adequately
ad '·
dressed ff the lead agency determines that:
(A) they have been mitigated or avoided as a result of the prior
environmental impact report and findings adopted/n connection with that
prior enwronmenta/ report;
(B) they have been exam/ned at a sufficient level of detail in the prior
environmental impact report to enable those effects to be mitigated or
avoided, by site specific revisions, the imposition of conditions, or by other
means ~n connection with the approval of the later project; or
(C) they cannot be m/t/gated to avoid or substantially lessen the
significant impacts of the project proponent's willingness to accept afl
feasible mitigation measures, and the only purpose of including analysis
of such effects/n another environmental impact report would be to put the
agency in a posit/on to adopt a statement of overriding considerations
with respect to the effects."
Section 4.17b of the IS/EC addresses the issue of cumulative impacts. The analysis on
page 71 of the IS/EC states:
"There would be no impact that would be individually limited, but
cumulatively considerable beyond those previously analyzed in the
Cypress General Plan EIR, September 200~, for the environmental
issues analyzed in this Initial Study/Environmental Checklist. Therefore,
the proposed project would not result in a significant impact in this
regard."
The conclusion in the IS/EC is consistent with the determination necessary under CEQA
Guidelines Section 15152(0(3)(A).
The Cypress Redevelopment Agency stands by the conclusions reached in the IS/EC
and MND. (Refer to Response B3.) As noted in Response B35, the mitigation
measures included in the IS/EC will effectively reduce project impacts to a less than
significant level. Thus; an EIR is not war~"anted.
Section 2.2 (Environmental Setting) in the IS/EC provides a description of both existing
on-site land uses and existing surrounding land uses. Exhibit 2 (Local Vicinity) in the
IS/EC utilizes the City's Zoning Map as the base. This exhibit, along with the
descriptions provided in Section 2.2, provide the reader with sufficient information to
understanding the existing uses, both on-site and immediately surrounding the site.
Also, as noted in Response B12, the Walker/Katella Retail Project is not a Costco
Wholesale, but instead is one of the three retail alternatives described in Section 2.4
(Project Character/st/cs) of the IS/EC.
JN 10-102089 C-59 Comments and Responses
Walker/Kate/la Retail Projecl
B51.
B52.
At this time, the Cypress Redevelopment Agency is evaluating the environmental
impacts of the three retail alternatives. A detailed site plan has not been prepared (and
is not now being proposed for approval) and specific site users/tenants have not been
fixed. As noted in Response B27, future retail users/tenants would be subject to all
applicable City permit processes and conditions and associated environmental review
requirements.
As noted above in Response B50, Section 2.2 provides a description of surrounding land
uses. Uses immediately surrounding the project site include business park, commercial,
office, and industrial uses. These types of land uses are not considered sensitive land
uses, such as residential uses, schools or hospitals. Thus, the surrounding land uses
would not be significantly impacted by the short-term aesthetic impacts related to
construction. This is consistent with the conclusion stated on page 26 of the IS/EC.
As noted in Response B12, the Walker/Katella Retail Project is not a Costco Wholesale,
but instead is one of the three retail alternatives described in Section 2.4 (Project
Characteristics) of the IS/EC.
Also, as noted in Response B33, the Cypress General Plan EIR (2001) provided an
update of existing conditions throughout the City and analyzed the impacts associated
with buildout of the City. The buildout condition included buildout of the Cypress
Business Park, as well as other vacant and underutilized land in the City. The Cypress
General Plan EIR provided the City with both current conditions and buildout impacts for
land use; population, employment and housing; transportation/circulation; air quality;
noise; geologic and seismic hazards; hydrology and drainage; public services and
utilities; parks and recreation; and public health and safety based upon the- current
conditions.
The cOnclusions reached on page 30 of the IStEC regarding air quality impacts are valid
and are restated below.
"Project generated emissions would not result in significant air quality
impacts on a local or regional basis for the following reasons:
The EIR prepared for the Specific Plan analyzed anticipated
emissions from development on-site, which are accounted for in both
local and regional air quality projections;
The EIR prepared for the General Plan analyzed anticipated
emissions from development Within tt~e City, which is accounted for in
both local and regional air quality projections; and
The proposed project would not create additional pollutants beyond
those anticipated for the site in both local and regional plans.
The air quality impacts of development within Planning Area 5 have been
previously addressed in both the Cypress Business and Professional
Center Specific Plan EIR and the General Plan EIR. The proposed
project is consistent with the conclusions reached in both EIRs, and
would not result in additional significant impacts to air quality."
JN 10-102089 Ct60 Comments and Responses
Walker/Katella Retail Project
B53.
B54.
B55.
B56.
With regard to mitigation measure #54 identified in the Cypress Business and
Professional Center Specific Plan EIR, mitigation measure AQ1 on page 31 of the IS/EC
acknowledges that there may have been changes by the South Coast Air Quality'
Management District (SCAQMD) to Rule 403 since 1990, and the currently
recommended mitigation measure is phrased to reflect the most current practices by
both the SCAQMD and the City of Cypress. Mitigation measure AQ1 reads:
Construction shall comply with SCAQMD Rule 403, as revised.
The developer shall also obtain approval of a dust control plan
from the Building Division prior to issuance of each grading or
building permit. Dust-reducing measures shall include regular
watering of graded surfaces, restriction of all construction
vehicles and equipment to travel along established and regularly
watered roadways, and suspending operations that create dust
during windy conditions (winds greater than 25 mph). (Source:
Mitigation Measure #54, page 132, Cypress Business and
Professional Center Specific Plan EIR.)"
Section 4.5 (Cultural Resoumes) of the IS/EC notes that cultural resources analyses
have been conducted for the Cypress Business and Professional Center Specific Plan
area, and that no such resources on-site were found. The conclusions stated in Section
4.5 are valid, and no mitigation measures are required.
Refer to Response B39.
The potential impacts relating to'a service station are identified on page 37 of the IS/EC.
The impact analysis regarding a service station states:
"However, under Alternative A, the project proposes ~2 fueling stations.
Service stations are conditionally permitted uses under the Professional
Office designation in the Specific Plan. Thus, under Alternative A
underground storage tanks are proposed and this alternative may also
involve limited amounts of use, storage, transport and/or disposal of
hazardous materials related to the fueling stations. Use of these
materials shall be subject to local, State and Federal regulations."
As noted in the analysis above, a service station would be subject to local, State and
Federal regulations, including monitoring. It is not necessary to include a separate
mitigation when regulations already are in plage to address tha! specific issue.
The California Regional Water Quality Control Board, Santa Aha Region, adopted Order
No. R8-2002-0010, NPDES No. CAS618030, Waste Discharge Requirements for the
County of Orange, Orange County Flood Control District and the Incorporated Cities of
Orange County Within the Santa Ana Region Areawide Urban Storm Water Runoff,
Orange County on January 18, 2002.
The Order specifies a number of requirements, including general requirements for new
development, including significant re-development.
Several pertinent General Requirements are listed below:
JN 10-102089 C-61 Comments and Responses
':' By July 1, 2002, the permittees shall establish a mechanism to ensure that all
construction sites that are required to obtain coverage under the State's General
Storm Water Permit for construction sites have filed with the St, ate Board a Notice
of Intent to be covered by the general permit.
o:* By December 19, 2002, the permittees shall review their planning procedures and
CEQA document preparation processes to ensure that urban run-off related
issues are properly considered an;d addressed. The findings of this review and
the actions taken by the permJttees shall be reported to the Regional Board by
January 2, 2002.
· :' By July 1, 2004, the permittees shall review their,watershed protection principles
and policies in the General Plan and related documents (such as Development
Standards, Zoning Codes, Conditions of Approval, Development Project
Guidance) to ensure that these principals and policies are properly considered
and are incorporated into these documents. The findings of this review and the
actions taken by the permittees shall be reported to the Regional Board by
November 15, 2004.
4° By July 1, 2003, the permittees shall review and, as necessary, revise their
current grading/erosion control ordinances in order to reduce erosion caused by
new development or significant re-development projects.
· :* The permittees shall continue to implement the new development BMPS (DAMP,
Appendix G) and BMPs for public works construction (DAMP, Appendix H).
The City of Cypress has been and will continue taking actions to comply with Order No.
R8-2002-0010, NPDES No. CAS618030. The City will be working to complete the
necessary action items by the specified deadlines. At this time, the City and County's
existing processes are in effe'cti~)e and applicable to the I:Yroposed project as described
on page 39 of the IS/EC.
B$7. This comment states that the WalkedKatella Retail Project is not consistent with the
~/press General P/an., the .Cypress Zoning Ordinance, the Cypress Redevelopment
Agency Los Alamitos Race Track and Golf Course Redevelopment Pro/ecl
Redevelopment Plan and the C_ypres~-B~siness and Professional Center Specific Plu~
Refer to Response~ B59 through B60 for specific comments s'et forth regarding th~
project's inconsistency with the aforementioned documents.
B58. The Cypress Redevelopment Agency does not concur with the comment. Refer to
Responses B10 and B12. The Cypress Redevelopment Agency concurs with
determination made regarding the consistency of the WalkedKatella Retail Project with
the General Plan as described on page 43 of the IS/EC and Section 1.2 of Appendix A.
B59. The Cypress Redevelopment Agency does not concur with the comment. The Cypress
Redevelopment Agency concurs With determination made regarding the consistency of
the WalkedKatella Retail Project with the Cypress Business and Professional Center
Specific Plan and Zoning Code as described on pages 43 and 44 of the IS/EC and
Section 2.2 of Appendix A.
The following text has been excerpted from Ordinance No. 809, Ordinance No. 848, and
Section 15 of the Zoning Code to further elaborate on the conclusions reached in the
IS/EC. Text with bold has been added for emphasis.
JN 10-102089
C-62
Comments and Responses
Walker/Katella Retail Project
Ordinance No. 809
Ordinance No. 809: An Ordinance of the City of Cypress Amending
"Appendix / Zoning" of the Code of the City of Cypress by the Addition of
Section 12.10.0 to 12.10.8 Establishing the Planned Business Park -
25A Zone (November 28, 1988).
Section 12. 10-1 Purposes.
C. To provide for a zone encompassing various types of land uses
such as educational, professional and administrative offices, commercial
centers, industrial parks, open space, or any public or semi-public use or
combination of uses through: ....
2. The adoption of a specific plan and text materials which set
forth land use relationships and development standards.
Section 12. 'I0-2 Uses Permitted in the PBP 25A Zone.
Those uses designated in the specific plan for the particular
PBP-25A Zone, as approved by the City Council and which
are consistent with the General Plan, The Spec/ftc P/an shall
/dent/fy which uses are permllted and which uses are subject to a
conditional use permit pursuant to Section 17. 1 of the Zoning
Appendix. The continuance of all land uses which existed in the
zone at the time of adoption of the specific plan. Said existing
land uses shall either be incorporated as part of the specific plan
or shall terminate in accordance with a specific abatement
schedule submitted and approved as a part of the specific plan.
Ordinance No. 848
Ordinance No. 848: An Initiative Ordinance of the City of Cypress
Amending the General Plan and Approving a Zone Change from PS
to BP and PBP25A Respectively for a Portion of the Los Alamitos
Race Track and Adjoining Property; Repealing Hollywood Park's 1986
Specific Plan, and Making Technical and Conforming Amendments to the
City's Zoning Ordinance (Ratified by Vote of the People on April 24,
1990).
Section VI. Amendments to the "PBP25 A, "Planned Business Park
Zone.
Section 12.10-6, "Adoption of Specific Plan," of Appendix I,
"Zoning" of the Code of the City of Cypress, as enacted by
Ordinance No. 809, is hereby amended to read as follows:
"Any specific plan approved for use in the PBP25A Zone shall
be adopted by resolution of the City Council. Thereafter, the
ordinance rezoning any property to PBP25A shall be
amended by the City Council to incorporate by reference the
JN 10.102089 C-63 Comments and Responses
Walker/Katella Retail Project
B60,
B61.
B62.
B63.
B64.
adopted specific plan as the development standards and
regulations for that PBP25A zoned property."
Section 15 of Zoning Code
Zoning Section 15. Special Purpose Zones.
~5. 1 Purpose
Planned Business Park Zone (PBP-25A). The Planned Business
Park (PBP-25A) zone is established to allow for the
comprehensive, integrated development of compatible and
complementary educational, professional, and administrative
office, commercial centers, industrial park, open space, or any
public or semi-public uses or combination of uses in a campus-like
setting.
~5.3 Permitted Uses.
The continuance of all land uses which existed in a Special
Purpose zone at the time of adoption of a specific
development plans shall be allowed. Ex/sting land uses shaft
either be incorporated as part of the development plan or shall
terminate in accordance with a specific abatement schedule
submitted and approved as part of the development plan.
The Cypress Redevelopment Agency does not concur with the comment. Refer to
Responses B9, B10, and B12. The Cypress Redevelopment Agency concurs with
determination made regarding the consistency of the Walker/Katella Retail Project with
the Redevelopment Plan as described on page 44 of the IS/EC and Section 3.2 of
Appendix A. Also, refer to Responses B59 and B60.
Page 47 of the IS/EC notes that the proposed retail project would generate on-site noise,
and mitigation measure N2 requires that on-site uses shall meet applicable exterior and
interior noise standards, including standards in the City's Comprehensive Noise
Ordinance.
Refer to Responses B9, B10, and B12. In addition, page 48 of the IS/EC notes that
employment calculations for development in the Specific Plan area have been previously
addressed in the Cypress General Plan and the Cypress Business and Professional
Center Specific Plan, and their associated EIRs.
As noted in Response B27, future retail users/tenants would be subject to ail applicable
City permit processes, including site plan review and conditions and associated
environmental review requirements. Standard City processes would include site plan
review by the Orange County Fire Authority.
Analysis of two additional intersections has been added to the analysis: Katella Avenue
and Bloomfield Street; and Katella Avenue and Los Alamitos Boulevard. [add summary
and conclusions?] [incorporate or refer to B817]
JN '~ 0- I 02089 C-64 Comments and Responses
Walker/Katella Retail
B65.
B66.
B67.
B68.
B69.
BT0.
The traffic analysis was conducted to identify project traffic impacts when the local street
system is carrying its peak traffic volumes -- specifically, the morning and evening peak
hours. Since the area is predominantly emproyment oriented, the background traffic
volumes will be substantially less on the weekend when retail uses generate their peak
traffic.
The Existing Peak Hour Traffic Volumes exhibit presents turning movement volumes
during the peak hours at the study intersections. Existing traffic turning into or out of the
existing developments within the Cypress Business & Professional Center on Walker
Street will be reflected in the existing peak hour volumes shown at either of the two
intersections flanking the site: either Walker Street at Cerritos Avenue, or Walker Street
at Katella Avenue.
The Phase I document that is referenced in this comment is included in the Technical
Appendices as Appendix A, Walker/Katella Retail Project - Land Use Consistency and
Traffic Analyses.
Refer to Responses B10 and B33.
The precise purpose of the analysis for the Retail Alternatives was to identify the change
in traffic levels that would occur if the site were to be developed as Retail, rather than
Business Park, as assumed in the Specific Plan EIR (1990) and the General Plan
Update and EIR (2001).
Trip distribution assumptiOns for the Retail Alternatives reflect a more local draw from
area residences and businesses, compared to a more regional draw for an employment
center, consistent with industry practice.
B71. The improvement discussed was actually proposed for the intersection of Walker Street
and Cerritos Avenue. This improvement is consistent with the future lane configurations
presented for this intersection in the Cypress Business & Professional Center EIR, which
shows one westbound left-turn lane, two through lanes, and a right-turn lane. The traffic
analysis, which is contained in its entirety in Appendix B, indicates that this improvement
is achievable with widening on the north side of Cerritos Avenue, which would narrow the
landscaped median that separates the street from the parallel frontage road.
B72. As noted in Response B27, future retail users/tenants would be subject to all applicable
City permit processes, including site plan review and cOnditions, and associated
environmental review requirements. And as noted on page 66 of the IS/EC, the
proposed project must satisfy City parking standards.
B73.
B74.
B75.
Page 67 of the IS/EC estimates that the proposed project would generate approximately
51,624 gallons of wastewater per day. The conclusions on page 67 of the IS/EC and the
mitigation measures included on pages 67 and 68 are based upon the wastewater
estimates noted in the previous sentence.
Refer to Responses B33 and B48.
Refer to Response B24. The Cypress Redevelopment Agency has included all
"recommended" or otherwise required mitigation measures cited in the IS/EC into a
Mitigation Monitoring and Reporting Checklist, and future site users/tenants will be
JN I0-102089 C.65 Comments and Responses
B76.
B77.
B78.
B79.
B80.
B81.
required to comply with all mitigation measures cited in the IS/EC and Mitigation
Monitoring and Repoding Checklist.
The statement under f) on page 70 that "No mitigat on measures are required" will be
deleted from the Final IS/EC to reflect the actual analys s Mitigation measures UTIL9
through UTIL11 will reduce so d waste impacts to a less than significant level.
Refer to Response B48.
Comment acknowledged. No specific environmental issues are raised in this comment,
thus no further response is necessary.
Refer to Response B82.
The Congestion Management Program (CMP) study area methodology was applied and
is outlined in the traffic analysis, which is contained in its entirety in Appendix B. Also,
refer to Response B81.
Analysis of two additional intersections has been added to the analysis: Katella Avenue
at Bloomfield Street, and Katella Avenue at Los Alamitos Boulevard.
Existing conditions with and without each of the project alternatives are summarized on
Table A.
TABLE A
SUMMARY OF INTERSECTION OPERATION
EXISTING CONDITIONS - WITHOUT AND WITH PROJECT
Scenario
Existing Conditions
Existing Plus
Business Park Alternative
Existing Plus
Retail Alternative A
Existing P/us
Retail Alternative B
Existing Plus
Retail Alternative C
Peak
Hour
AM--
PM
AM
PM
AM
PM
AM
PM
AM
PM
K~atella / Los Alamitos
ICU LOS
0.790 C
__ 0.833 D
0.801 D
0.844 D
0.794 C
0.850 D
0.794 C
0.853 D
0.794 C
0.855 D
Katella
ICU
0.927
0.809
0.939
0.828
0.934
0.823
0.933
__ 0.825
0.934
0.827
Bloomfield
LOS
E
D
E
D
E
E
The intersection of Katella Avenue and Los Alamitos Boulevard is shown to be operating
at LOS "C" in the morning peak hour and LOS "D" in the evening peak hour. The
intersection of Katella Avenue and Bloomfield Street is operating at LOS "E" in the
morning peak hour and LOS "D" in the evening peak hour.
The addition of project traffic from each of the development scenarios is also shown on
Table A. The addition of the Business Park alternative traffic would cause the morning
peak hour to worsen to LOS "D" at the intersection of Katella/Los Alamitos. With each of
the retail development alternatives, the intersection would continue to operate at LOS
"C" in the morning peak hour. The morning peak hour at the intersection of
JN 10-I02089
C-66 Comments and Responses
.... Walker/Katella Retail Project
B82.
Katella/Bloomfield would continue to show LOS "E" conditions under all development
scenarios.
Current Build-out projections were not available from the City of Los Alamitos, however,
staff has indicated that the City is largely built Out. The CypressBusiness & Professional
Center £1R indicated that both of these intersections were projected to operate at LOS
"F" in both peak hours under Build-out conditions. To mitigate the project's contribution
to these projected over-capacity conditions, the Cities of Cypress and Los Alamitos
entered into a Traffic Mitigation Agreement.
The split phase operation of the north/south approaches of the intersection of Walker
Street and Cerritos Avenue is acknowledged. However, the results contained in the
comment could not be duplicated. The analysis was re-run assuming split phase
operation on Walker Street approaches, and the results with and without the westbound
right-turn lane improvement are provided on the attached table.
The sprit phase operation of the north/south approaches of the intersection of Walker
Street and Cerritos Avenue is acknowledged. The intersection analysis was re~'un for all
conditions assuming split phase operation, and the results are summarized on the
fo/lowing tables.
TABLE B
SUMMARY OF INTERSECTION OPERATION
AT THE INTERSECTION OF WALKER STREET AND CERRITOS AVENUE
EXISTING CONDITIONS - WITHOUT AND WITH PROJECT
Scenario Peak ~_ Existing-Conditions Existing Plus Project
Hour ICU I LOS ICU LOS
Business Park Alternative AM 0.660 B 0.755 C
PM 0.809 D 0.859 D
Retail Alternalive A AM 0.660 B 0.699 B
PM 0.809 D 0.839 D
Relail Allernative B AM 0.660 B 0.695 B
-- PM 0.809 D 0.844 D
Retail Alternative C AM 0.660~ lB 0.697 B
__ PM 0.809 D 0.847 __ D
The intersection is shown to operate at an acceptable Level of Service under Existing
and Existing Plus Project conditions for alt development scenarios.
JN 10-102089
C-6Z Comments and Responses
Walker/Katella Retail Projec l
TABLE C
SUMMARY OF INTERSECTION OPERATION
AT THE INTERSECTION OF WALKER STREET AND CERRITOS AVENUE
BUILD-OUT CONDITIONS - WITHOUT AND WITH PROJECT
Build-out Build-out Plus Build-out Plus Project-
Scenario Peak Without Project Pro'ecl with Improvement ®
Hour ICU LOS .:' ICU LOS ICU LOS
Business Park Alt. AM 0.751 C 0.847 D 0.767 C
PM 0.928 E 0.978 E 0.870 D
Retail Alternative A AM 0.751 C 0,786 C 0.709 C
PM 0.928 E 0.957 E 0.839 D
Retail Alternative B AM 0,751 C 0.786 C 0.709 C
PM 0.928 E 0.962 E 0.843 D
Retail Alternative C AM 0.751 C 0.788 C 0.709 C
' PM 0.928 E 0.966 E 0.846 D
{:~ On northbound approach, provide 2 left-turn lanes, 2 through lanes, and one right-turn lane.
Under Build-out conditions, without the project, the intersection would operate at LOS
"C" in the morning peak hour, and LOS "E" in the evening peak hour. The addition of the
Business Park alternative traffic would cause the morning peak hour to worsen to LOS
"D". With each of the retail development alternatives, the intersection would continue to
operate at LOS "C" in the morning peak hour. The evening peak hour would continue to
show LOS "E" conditions under all development scenarios.
The add/t/on of one lane on the northbound approach to the intersection, and restriping
the intersection to provide 2 left-turn lanes, 2 through lanes, and one right-turn lane
would provide LOS "D" or better conditions under all development scenarios. This
improvement is consistent with the Future Intersection Configurations shown in the
Cypress Business & Professional Center Specific Plan EIR. This improvement ia not
needed under Existing Conditions, and is not projected to be needed under Existing Plus
Project Conditions for any of the development scenarios.
JN 10-102089 C-68 Comments and Responses
CITY OF CYPRESS
5275 Orange Avenue
Cypress, California 90630
NEGATIVE DECLARATION
In accordance with the requirements of Resolution No. 4363 of the City of Cypress regarding the
adoption of objectives, criter/a and procedures implementing the California Environmental Quality
Act as amended, the Assistant Community Development Director of the City of Cypress, acting as
the Responsible Official, has prepared the ~following Negative Declaration:
1. Nature and Description of Project
Walker/Katella Retail Project
2. Findings
Th/s project will not have a sign/ficant effect on the environmeut since:
Tl~s project should not create a substantially adverse physical change within the
affected area, including land, air, water, minerals, flora, fauna, ambient noise, and
objects 6fhistor/c or aesthetic significance.
Mitigation measures will be incorporated into the conditions of approval for any
project approved under tiffs document that will eliminate potential negative impacts
to surrounding properties in the areas of Aesthetics, Air Quality, Geology and Soils,
Hazards and Hazardous Materials, Hydrology and Water Quality, Land Use and
Plann/ng, Noise, Transportation/Traffic, and Utilities and Service Systems.
C. The project is consistent with the development standards contained in the Cypress
Business and Professional Center Specific Plan and the Cypress General Plan
(20OD.
lly submitted,
"-DATED: March 28, 2002
PL-44 - Rev. 3/97
CITY OF CYPRESS
5275 Orange Avenue
Cypress, California 90630
NOTICE OF INTENT TO FILE A NEGATIVE DECLARATION
This is to advise that the Assistant Community Development Director of the City of Cypress, acting
as the Responsible Official and in conformance with Resolution No. 4363 of the City of Cypress
regarding the adoption of objectives, criteria and procedures implementing the California
Environmental Quality Act as amended, hereby notifies his intent/on to file a Negative Declaration
with respect to:
PROJECT TITLE/CASE NUMBER:
LEAD AGENCY:
CONTACT PERSON:
PROJECT DESCRYPTION:
Walker/Katella Retail Project
City of Cypress
Ted J. Commerdinger PHONE NI_FMBER: (714) 229-6720
No e,,ffec_ts .on the. environment are anticipated that cannot be reduced to a level ofinsign/ficance as a
result o~this project, therefore, a Mitigated Negative Declaration has been prepared in accordance
with the California Environmental Quality Act.
The Initial Study and all documents referenced which support this determination along with a copy
of the draft Negative Declaration are on file at the Cypress Community Development Department
located at 5275 Orange Avenue. The public is invited to comment on the Draft Negative
Declaration during the m/n/mum twenty (20) day Public review period beginrfing March 28, 2002.
The Cypress City Council w/Il consider the project and the environmental determinat/on at its
meeting of May 13, 2002, to be held at 7:00 p.m. in the City Council Chambers.
'~{'~J. Commerdinger, AICP
2,~sP4~t Coramun/ty Development Director
Dated: March 28, 2002
229-6G~0
CITY of CYPRESS
5275 Orange Avenue, Cypress, California 90630
April 18, 2002
Mr. donathan Curtis
Sheppard Mullin Richter and Hampton, LLP
333 South Hope Street, 48u~ Floor
Los Angeles, CA 90071-14-48
Subject: Letter of April 17, 2002
Dear Mr. Curtis:
Thank you for your faxed letter of' yesterday evening that was
received by this office this morning.
To the extent that your reference to "adopted thresholds of
significance" is intended to mean the general standards of
application described in Section 15064 of the State CEQA
Guidelines, then you are correct in your understanding that neither
the City nor theRedevelopment Agency has adopted a separate
definition for this term.
You are incorrect in your understanding that a "draft Mitigated
Negative Declaration" has not yet been prepared, The prepared
initial Study/Environmental Checklist does, as we discussed,
incorporate a Mitigated Negative Declaration. in fact, notices of the
preparation of the Mitigated Negative DeClaration previously have
been published, posted and mailed both to you and your client
under separate cover. While it is true that the final Mitigated
Negative Declaration will not be prepared (as discussed with you
yesterday) until any action is taken by the appropriate
. governmental bodies, the proposed Mitigated Negative.Declaration
nevertheless has been prepared and available for your review,
Finally, yOU als0 are incorrect in your understanding that only
certain limited documents are availab{e for public review. The
initial Study/Environmental Checklist, which (as noted above)
incorporates the proposed Mitigated Negative Declaration, and all
of the supporting and referenced documents have been and are
available to you and any interested persons.
Lydia Sondhi, Mayor
Frank S. McCoy, Mayor Pro Tern Mike McGilL Council Membcr
This letter should provide clarification to the matter.
questions as needed.
",,..._~s~sta'n-t Director
Community Development Department
Cc: WilJiam Wynder, City Attorney
Please feel
TOTRL P.
WALKER/KA TELLA RETAIL PROJECT
INITIAL STUDY/ENVIRONMENTAL CHECKLIST
RESPONSE TO COMMENTS
SECOND COMMENT PERIOD
APRIL 30 TO MAy20, ,2002
EXHIBIT D-2
ELLIOTT D. CI-'IIELZ'.I~GZAN
May 20, 2002
Ted J. Commerdinger
Assistant Community Development Director
City of Cypress Community Development Department
5275 Orange Avenue
Cypress, California .90630
Re:
Draft Mitigated Negative Declaration
Walker/Katella Retail Project
Dear Mr. Coakraerdinger:
We are attorneys for Los Alamitos Race Course, Burlington
National Insurance Co., and Rolling A Ranch, LLC, and on behalf of
our clients, we submit herewith our comments to the above-
referenced draft Hitigated Negative Declaration and the associated
Initial Study/Environ-mental Checklist dated March 29, 2002 (the
~Initial Study"}~
For the reasons set forth herein, we object to the
reco~t~nendation that a Mitigated Negative Declaration for the
project should be adopted and request that the Cypress
Redevelopment Agency (the ~Agency~) and the City of Cypress (the
'~City") reject the recommendation and direct that an Environmental
Impact Report be prepared.
The Initial Study's fundamental defect is that it
improperly defines the project under the California Enviror~mental
Quality Act ("CEQA') in a piecemeal fashion. As the Agency and the
city are aware, on March 19, 2002, Robert Hillison wrote a letter
to the CiSy which explained that it was improper to ignore the
Costco project while analyzing and adopting the Second Amendment to
the Redevelopment Plan for the Los Alaraitos Race Track and Golf
Course Redevelopment Project (the "Second Amendment'}. The Agency
and the City disregarded this objection and proceeded to adopt a
negative declaration and the Second Amendment~ At this point, our
clients were forced to file two {2) separate lawsuits to protect
their rights, as well as those of the phtblic. The draft Mitigated
Negative Declaration in the Walker/Katella Retail Project proves
our case. The Agency and the City's desire to build a Costco is
3E3~LIOTT D.
Ted J. Com~erdinger
May 20, 2002
Page 2
one project, and therefore should have been analyzed as such under
The Initial Study is similarly flawed because it purports
to cover three (3) distinct proposals, but analyzes only one
proposal, Alternative C. If the Mitigated Negative Declaration
purports to cover three (3) distinct proposals, then CEQA requires
that all three (3) proposals be analyzed. By its own admission,
the Initial Study covers only Alternative C (173,000 square feet of
retail and 14,000 square feet of restaurant uses). The'
justification for this decision is an unsupported assumption that
Alternative C will involve the greatest amount of daily vehicle
trips. Even if this assumption is true, Alternative C is clearly
not the worst-case scenario as for checklist items other than
traffic. For example, Alternative A involves a large gas station.
The gas station in Alternative A may pose a greater threat to the
environl~ent under the checklist item of Hazards & Hazardous
Materials than the retail and restaurant uses under Alternative C.
Moreover, the City's recent actions show that Alternative A is a
more likely scenario. For instance, on February tl, 2002, the City
approved an exclusive.negotiation agreement With Costco and on
April 8, 2002, the City actually accepted the Costco proposal. In
short~ the Initial Study is flawed because it completely and
a~,ittedly fails to analyze Alternatives A add B which it purports
~o cover.
In Section 1.2, the Initial Study recognized that Section
15063 of the CEQA Guidelines recs/ires "an examination of whether
the project is compatible with existing zoning, plans and other
applicable land controls...~ The applicable Specific. Plan
designates the LAi~T Project Area for use as a business park, golf
course and race track. A review of the description of the three
(3) alternatives under the Walker/Katella Retail Project leads to
the irrefutable .conclusion tkat changes in the Specific Plan, land
use designations and zoning are netessary to implement the proposed
Walker/Katella Retail Project. Because we know that today, an EIR
is required now.
There are also many specific flaws in the analysis of the
initial Study. In several instances, the Initial Study fails to
compare the proposed development against the current use of the
property as a parking lot. The Initial Study also completely fails
to compare the three (3) Alternatives under the Wa!ker/Katella
ELLIOTT 1D. GI-II3ELI~EOI~-
Ted J. Co~merdinger
May 20, 2002
Page 3
Retail Project to the business park development currently shown in
the existing C!;press Business and Professional Center Specific
Plan.: Likewise, the Initial Study is fatally flawed because it
fails To compare the three (3) projects to the proposal by
Cottonwood Christian Center. For instance, there are undisputed
aesthetic differences between a church and a big-block retail
development like Costco.
According to CEQA, as well as the City's own guidelines
(e.g., Resolution No. 4363), the Initial Study must take into
account the whole action involved including off-site, cumulative,
and indirect impacts. The Initial Study is also recfaired to
consider construction, as well as operational impacts. In this
case, the Initial Study fails to (i) adequately consider the
operational impacts and (ii) adequately design mitigation measures
to address operational impacts. For instance, Section 4.3 (Air
Quality) only address construction related impacts such as dust
control. There are no proposed mitigation measures related to air
quality impacts which will be generated by the increased traffic in
this area after the project is completed.
The Initial Study is invalid and its recommendation to
adopt Mitigated Negative Declaration should be rejected because it
fails to recognize several areas of potentially significant impacts
and the mitigation measures chosen to address the areas of
potentially significant impact unless mitigated are insufficient.
For instance, the mitigation measures in Section 4.3 (Air Quality}
fail to address the potentially significant impacts created by the
traffic which is generated by a retail project of this size.
Sections 4.7 (Hazards and Hazardous Materials) and 4.8 (Hydrology
and Water Quality) are also inadequate because they effectively
ignore the gas station component of Alternative A. Section 4.13
{Public Services) fails to recognize the obvious and significant.
impacts created by a retail project of this size. Section 4.15
{Transportation/Traffic) is inadequate for several reasons,
including but not limited to the fact that there are no mitigation
=We also object to the fact that the Amended Public Notice
of Availability-Mitigated Negative Declaration incorrectly states
that the draft Mitigated Negative Declaration studies the
Business Park alternative in addition to the three (3) retail
alternatives.
3ELLIOT2? 19.
Ted J. Coramerdinger
May 20, 2002
Page 4
measures proposed for Katella Avenue. We dispute the findings of
the traffic impact analysis prepared by Kimley-Horn and Associates,
Inc. dated March 2002 as self-serving and conclusory. In several
instances, including but not limited to Section 4.16 (Utilities and
Service Systems), the Initial Study improperly relies on the
General Plan EIR and the Cypress Business and Professional Center
Specific Plan EIR. As mentioned above, this type of retail.p~oject
has never been considered before and in fact is not even allowed
under the current zoning. Finally, Section 4.17 (Mandatory
Findings of Significance) incorrectly concludes that such a large
retail project, with.a gas station, does not have ~the potential to
degrade the quality of the environment".
We hereby incorporate by reference the objections made by
all other interested parties in the above-referenced matter.
As you are aware, CEQA requires an environmental impact
report if it is arguable that any aspect of the project may cause
a significant environmental effect. Given the type and size of the
Walker/Katella Project, significant envirornnental impacts are not
merely possible, they are certain to occur.
On behalf of the Los Alamitos Race Course, Burlington
National Insurance Co., and Rolling A Ranch, LLC, we.respectfully
request that the Mitigated Negative Declaration be rejected, and
instead, an EIR be prepared.
Very truly yours,
CASWELL, BELL & HILLISON, LLP
LAW OFFICES OF ELLIOT]? D. CHIEL?EGIAN
Michael S. Chielpegian
MSC:dam
cc: Los Alamitos Race Course
Burlington National Insurance Co.
Rolling A Ranch, LLC
Walker/Katella Retail Project
RESPONSES TO COMMENTS FROM MICHAEL S. CHIELPEGIAN, CASWELL,
BELL & HILLISON, LLP, LAW OFFICES OF ELL1OTT D. CHIELPEGIAN, DATED
MAY 20, 2002.
Page 1, Paragraph 3
Proiect Description
The project description is accurate and consistent throughout the Initial Study/Environmental
Checklist (IS/EC). Section 2.0 (Project Description) of the IS/EC provides a detailed narrative of
the Project Location, Environmental Setting, including on-site land use uses and surrounding
land uses, Existing Zoning and General Plan, and Project Characteristics. The traffic analysis is
refined for the purposes of analyzing the three retail alternatives. The following text appearing
on page 51 of the IS/EC illustrates the assumptions used for the traffic analysis.
"The analysis focuses on the traffic-related impacts associated with the
following four development scenarios:
Specific Plan Alternative - 470,448 square feet of Business Park;
Retail Alternative A - 163,000 square feet of Discount Club, a members-
only Gas Station, and 14,000 square feet of Restaurants (two 7,000-
square-foot restaurants);
Retail Alternative B - ¢46,300 square feet of Shopping Center, and
14,000 square feet of Restaurants (two 7,000-square-foot restaurants);
Retail Alternative C - ¢72,900 square feet of Shopping Center, and
14, 000 square feet of Restaurants (two 7, O00-square-foot restaurants)."
As noted above, Retail Alternative A identifies 163,000 square feet of Discount Club use, but
does not mention a Costco Warehouse as the proposed use. Nor is there a reference to a
Costco Warehouse in the Mitigated Negative Declaration (MND), IS/EC, or IS/EC technical
appendices. The IS/EC and associated technical reports do not include the mention of a Costco
Warehouse, simply because the Cypress Redevelopment Agency is considering the
development of a retail project within a range of possible square footages and configurations, as
illustrated in the three alternatives (Exhibits 4,5 and 6 in the IS/EC), and no specific uses have
been fixed at this time. No such DDA agreement exists, and no documents have been
executed that commit the Cypress Redevelopment Agency to a particular project or fixed tenant
or user.
Section 2.4 (Project Description) of the IS/EC does note that the Cypress Redevelopment
Agency has extended owner participation opportunities. The details of the owner participation
opportunities are confidential, and do not modify the project description or environmental
analysis as detailed in the IS/EC. With respect to the extension of owner participation
oppodunities to Cottonwood, the IS/EC for the WalkedKatella Retail Project analyzes the
environmental impacts associated with three retail alternatives; and it is not required to analyze
the impacts related to any project that might be proposed by Cottonwood. A separate
environmental document would be required for a Cottonwood project, and that document could
describe and analyze the impacts associated with the owner participation opportunities.
JN 10-~02089 Comments and Responses
Walker/Katella Retail Project
Second Amendment to Redevelopment Plan
Declaratory statement. This comment states that Los Alamitos Race Course has filed two
lawsuits regarding the "Second Amendment" to the Los Alamitos Race Track and Golf Course
Redevelopment Project Redevelopment Plan. For the commentor's reference, the IS/EC
utilized the Los Alamitos Race Track and Golf Course Redevelopment Proiect Redevelopment
Plan, June 25, 1990, first amendment January 9, 1995, as a reference document for the
environmental analysis contained in Section 4.0 of the IS/EC.
Page 2, Paragraph
Worst-Case Assumption for Environmental Analysis
The IS/EC notes in several places why Alternative C was selected as the "worst-case scenario"
for purposes of the environmental analysis. Section 2.4 (Project Characteristics) on page 12 of
the IS/EC explains the decision to use Alternative C as the "worst-case" scenario.
"For purposes of the environmental analysis, contained in Section 4.0 of this
Initial Study/Environmental Checklist, a worst-case scenario for the
Walker/Katella Retail Project was assumed. The worst-case scenario is defined
as Alternative C, which proposes approximately 173,000 square feet of retail and
~4,000 square feet of restaurant uses. Alternative C was selected for the worst-
case scenario over the other two retail alternatives (Alternative A and Alternative
B), given that it proposes the greatest amount of retail square footage. In
addition, Alternative C is projected to generate the greatest amount of daily
vehicle trips, as well as morning and evening peak hour trips of the three retail
alternatives."
In addition, similar text is included on page 26 at the beginning of Section 4.0 (Environmental
Analysis).
Costco
The assertion that the project is a Costco Wholesale is false. Costco is not necessarily the final
or intended user, as no agreement is in place. Therefore, a predisposition or commitrflent to
that use is speculative at best.
Page 2, Paragraph 2
Section 2.4 (Project Characteristics) of the Initial Study/Environmental Checklist describes the
three retail alternatives for the project. The three alternatives proposed for the WalkedKatella
Retail Project are consistent with the intent of the Specific Plan as described above. In addition,
Section 4.9b of the Initial Study/Environmental Checklist (at pages 42 through 45) provides a
synopsis of the land use consistency analysis contained in Appendix A. The WalkedKatella
Retail Project is consistent with the goals and policies of the Cypress General Plan Land Use
Element; the goals, objectives, and policies of the Cypress Business and Professional Center
Specific Plan, and with the goals of the Los AIamitos Race Track and Golf Course.
Redevelopment Plan. In addition, the WalkedKatella Retail Project implements the goals,
objectives, and policies, as applicable, of these three policy documents.
JN 10-'i02089 Cerements and Responses
Walker/Katefla Retail Project
Page 2, Paragraph 3
Refer to the previous response under page 1, paragraph 3 regarding the project description.
Page 3, Paragraph
The Cypress General Plan EIR (2001) provided an update of existing conditions throughout the
City and analyzed the impacts associated with buildout of the City. The buildout condition
included buildout of the Cypress Business Park, as well as other vacant and underutilized land
in the City. The Cypress General Plan EIR provided the City with both current conditions and
buildout impacts for land use; pqpulation, employment and housing; transportation/circulation;
air quality; noise; geologic and seismic hazards; hydrology and drainage; public services and
utilities; parks and recreation; and public health and safety based upon the current conditions.
The conclusions reached on page 30 of the IS/EC regarding air quality impacts are valid and
are restated below.
"Project generated emissions would not result in significant air quality
impacts on a local or regional basis for the following reasons:
The EIR prepared for the Specific Plan analyzed anticipated emissions
from development on-site, which are accounted for in both local and
regional air quality projections;
The E/R prepared for the General Plan an.a/yzed anticipated emissions
from development within the City, which is accounted for in both local
and regional air quality projections; and
The proposed project would not create additional pollutants beyond
those anticipated for the site in both local and regional plans.
The air quality impacts of development within Planning Area 5 have been
previously addressed in both the Cypress Business and Professional Center
Specific Plan EIR and the General Plan EIR. The proposed project is
consistent with the conclusions reached in both EIRs, and would not result in
additional significant impacts to air quality."
Page 3, Paragraph 2 through Page 4, Paragraph 2
This comment asserts that the proposed project will have a significant adverse impact on the
environment, and that the Redevelopment Agency therefore must prepare an EIR. The
Redevelopment Agency does not concur with the assertion that an EIR must be prepared.
Refer to the paragraphs below, which restate the Agency's conclusions and findings that the
proposed project with the incorporation of mitigation measures would not have a significant
impact on the environment, and that the preparation of a Mitigated Negative Declaration is the
appropriate CEQA document for the proposed project.
JN 10-102089 Comments and Responses
Walker/Katella Retail Project
Section 1.2 (Purpose) in the IS/EC describes the purpose of an IS/EC, as well as cites the
specific disclosure requirements for inclusion in an Initial Study pursuant to Section 15063 of the
CEQA Guidelines.
Section 15063(c)(5) of the CEQA Guidelines states in pertinent part:
"(5) Provide documentation of the factual basis for the finding in a negative
declaration that a project will not have a significant effect on the environment;"
The IS/EC for the WalkedKatella Retail Project provides the necessary documentation,
including the environmental analysis found in Section 4.0 and the technical appendices, for the
Cypress Redevelopment Agency to make the determination found in Section 7.0 (Lead Agency
Determination).
The following determination is recited on page 79 of the IS/EC:
"1 find that although the proposal could have a significant effect on the
environment, there will not be a significant effect in this case because the
mitigation measures described in Section 3.0 have been added. A NEGATIVE
DECLARATION will be prepared."
This determination includes a typographical error insofar as the reference to Section 3.0 should
be to Section 4.0. This will be corrected in the Final IS/EC.
JN 10-102089 Comments and Responses
(213) 617-5565
j c~qis ~shepp ar dmu~tin c om
ATTORNEYS AT LAW
FORTY-EIGHTH FLOOR
333 SOUTH HOPE STREET
LOS ANGELES, CALIFORNIA 90071-1448
TELEPHONE 213'620.1780
FACSIMILE 213'620-1398
WWYV.SHEPPARDMULLIN.COM
May 20, 2002
MAY 20 2002
Cypress Redevelopment Agency
5275 Orange Avenue
Cypress, California 90630
Attn: Mr. Ted J. Commerdinger,
Assistant Community Development Director
HAND DELIVERED
Cottonwood Christian Center's Objections to the Walker/Katella Retail
Project M/tigated Negative Declaration dated April 29, 2002 and Initial
Study/Environmental Checklist dated March 29, 2002.
Cypress Redevelopment Agency:
We represent Cottonwood Christian Center ("Cottonwood."), the owner of six
individual parcels (the "Cottonwood Property") located witkin the LART Redevelopment Project
Area (the "LART Redevelopment Area"). We write to set forth Cottonwood's comments and
objections to the Walker/Katella Retail Project Mitigated Negative Declaration ("MgCD") dated
April 29, 2002 and Initial Study/Environmental Checklist dated March 29, 2002 ("Initial Study").
Due to the fact that numerous flaws are contained in the M2XrD, all of which are discussed below,
the Cypress Redevelopment Agency ("Agency") is compelled to start its process over again with
the preparation of a new MND. Even though the current MND is fatally flaxved and wholly
lacking of adequate analysis and information, it is apparent that the Agency must prepare, and we
hereby request that it prepare, a full Environmental Impact Report ("EIR") under the California
Environmental Quality Act ("CEQA") for the Walker/Katella Retail Project (the "Project").
In. addition, we hereby obi ect to the mariner in which the City has handled the public
review process m connection with the MND. On or about March 29, 2002, the City made
available for public review an alleged mitigated negative declaration. However, only the Initial
Study was made available for public review. In fact, a negative mitigated declaration had not been
prepared at that point in time. Our comment letter to the Agency dated April 18, 2002, pointed
out this fatal flaw, among other things, and the Agency responded by circulating the MND and
recirculating the March 29, 2002 Initial Study without any changes. The Initial Study
recirculation, without any changes or any response to comments received during the initial public
cormnent period, unnecessarily confuses the public. For example, the Agency failed to clearly
note on its April 29, 2002 Amended Public Notice of Availability that the Initial Study was being
circulated for a second time. Similarly, the Agency failed to mention that the Initial Study being
LOS ANGELES · SAN FRANCISCO · ORANGE COUNTY . SAN DIEGO · SANTA BARBARA . WEST LOS ANGELES · DEL MAR HEIGHTS
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 2
circulated was identical to the one previously circulated. Furthermore, the Agency does not alert
the public to the fact that it did not cure any of the Initial Study deficiencies commented upon
during the previous public comment period. In fact, the Agency does not even acknowledge the
fact that it received any comments.
On or about January 15, 2002, Cottonwood filed a Verified Complaint and Verified
Petition for Peremptory Writ of Mandate against both the Agency and the City of Cypress in both
the United States District Court, Central District of California and the Superior Court oftlie State
of California for the County of Orange (collectively, the 'Complaint and Petition"), for violations
of, among other things, the United States and California Constitutions, tlie Religious Land Use and
Institutionalized Persons Act and other laws, including the California Environ.mental Quality Act
and California's Community Redevelopment Law.
The adoption of the MND by the Agency is merely another unlawful act in
furtherance of the violations set forth in the Complaint and Petition. As such, each of
Cottonwood's prior objections and the City's and Agency's violations of the United States and
California Constitutions and other laws as stated in the Complaint and Petition are hereby restated
and incorporated herein by this reference as though set forth fully herein.
THE MND IS INADEQUATE AND IS NOT IN COMPLIANCE WITH THE,
CALiFORNIA ENV1RONM]ENTAL QUALITY ACT; AN ENVIRONMENTAl,
EViPACT REPORT MUST BE PREPARED.
A. The Agency Must Prepare and Certify an ErR for the Proposed Proiect.
1. Overview of CEQA. CEQA was enacted in response to the well-documented
failure of state and local governmental agencies to consider fully the environmental implications
oftheir actions. Selmi, The JudicialDevelopment ofthe California Environmental Quality Act,
18 U.C.D.L. Rev. 197 (1984).-u The California Supreme Court has repeatedly affirmed that CEQA
must be interpreted liberally "to afford the fullest possible protection to the environment within the
reasonable scope of the statutory language." Laurel Heights Improvement Assn. v. The Regents
of the University of California ("Laurel Heights I"), 47 Cal.3 d 376, 390 (1988), quoting from
Friends of Mammoth v. Board of Supervisors 8 Cal.3d 247, 259 (1972).
The Office of Planning and Research has promulgated guidelines to implement CEQA.
14 Cal. Code of Regs. § 15000 et seq. (the "Guidelines").
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 3
Three of the central purposes of CEQA are to (i) inform governmental decision
makers and the public about the potential significant environmental effects of a proposed project,
(ii) identify ways that environmental damage can be avoided or significantly reduced and (iii)
disclose to the public the reasons why a governmental agency approved the project in the manner
the agency chose ifsigrfificant environmental effects are involved. Guidelines §§ 15002(a) (1), (2)
and (3).
The EI:R is the heart of CEQA. Guidelines § 15003 (a). As noted by the California
Supreme Court, the EIR:
"is the primary means of achieving the Legislature's considered declaration
that it is the policy of this state to 'take all action necessary to protect,
rehabilitate, and emhance the environmental quality of the state.' (§ 21001,
subd. (a).) ... Because the EIR must be certified or rejected by public
officials, it is a document of accountability. If CEQA is scrupulously
followed, the public will know the basis on which its responsible officials
either approve or reject environmentally significant action, and the pt~blic,
being duly informed, can respond accordingly to action with which it
disagrees. [Citations]. TheEIRprocessprotectsnotonlytheenvironment
but also informed self-government." Laurel Heights I, 47 Cah3d at 392.-2/
CEQA provides for a three-tiered environmental analysis. First, the lead agency
determines whether the project is exempt from CEQA review. Guidelines § 15061. If the lead
agency concludes that the project is not exempt from CEQA, the lead agency then conducts an
initial study to ascertain whether to prepare an EIR or a negative declaration in connection with
the project. The lead agency may only adopt a "negative declaration" or a "rrdtigated negative
declaration" when the initial study concludes that "[t]here is no substantial evidence ... that the
project may have a significant effect on the environment" and further CEQA review is unnecessary.
An EIR serves "to demonstrate to an apprehensive citizenry that the agency has in fact
analyzed and considered the ecological implications of its action." No Oil, Inc. v. City of
Los Angeles, 13 Cal.3d 68, 86 (1974). An EIR also allows the public to "determine the
environmental and economic values of their electefl ~.nd appointed officials, thus allowing
for appropriate action on election day should a majority of the voters disagree." People
v County of Kern, 39 Cal. App. 3d 830, 842 (1974). "The report ... may be viewed as an
environmental 'alarm bell' whose purpose it is to alert the public and its responsible officials
to environmental changes before they have reached ecological points of no return."
County oflnvo v. Yortv, 32 Cal. App. 3d 795, 810 (1973).
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 4
Cal. Pub. Res. Code § 21080(c)(1))/ As further explained by § 15070 of the Guidelines, '[al
public agency shall prepare... Ia] mitigated negative declaration for a project subject to CEQA
when... (b) the initial study identifies potentially significant effects, but (1) revisions in the project
plans or proposals made by, or agreed to by the applicant before a proposed mitigated negative
declaration and initial study are released for public review would avoid the effects or mitigate the
effects to a point where clearly no significant effects would occur..."
CEQA applies only to "discretionary projects." Cal. Pub. Res. Code § § 21080(a)
and (b)(1); Guidelines § 15268(a). A discretionary project is one which "requires the exercise of
judgment or deliberation when the public agency or body decides to approve or disapprove a
particular activity, as distinguished from situations where the public agency or body merely has to
determine whether there has been conformity with applicable statutes, ordinances, or regulations."
Guidelines § 15357.
2. Fair Argument Test Requires an EIR. If the administrative record contains
substantial evidence that any aspect of a Project "may have a signiScant effect on the
environment," the lead agency must prepare an EiR. Cal. Pub. Res. Code § 21100; Guidelines
§§ 15002(f)(1), 15063(b)(1) and 15064(a)(1).-4/ Put another way,
"... ifa Lead Agency is presented with a fair argument that a project may
have a significant effect on the environment, the Lead Agency shall prepare
an EIR even though it may also be presented with other substantial
evidence that the project will not have a significant effect. (No Oil, Inc. v.
City of Los Angeles (1974), 13 Cal. 3d 68)." Guidelines § 15064(g)(1).
(emphasis added). See also Friends of"B" Street v. City of Hayward. 106
Cal. App. 3d 988, 1002 (1980).
A trial court is entitled to independently review an agency's determination that there
was no evidence upon which a fair argument could be made that an EIR was required. As the
court stated ha Friends of "B" Street, supra:
"if there was substantial evidence that the proposed project might have a
significant environmental impact, evidence to the contrary is not sufficient
For a discussion of "mitigated negative declarations", see below.
Professor Selmi pointed out that one of the reasons that courts are permitted to closely
examine CEQA decisions is that public agencies "are subject to political pressure to avoid
the full EIR process" which is certainly the case here. Selmi, supra, at 227.
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 5
to support a decision to dispense with preparation of an ElK and adopt a
Negative Declaration, because it could be 'fairly argued' that tl~e project
might have a significant environmental impact. Stated another way, if the
trial court perceives substantial evidence that the proiect might have such
an impact, but the Agency failed to secure preparation of the required
the Agency's action is to be set aside because the agency abused its
discretion by failing to proceed 'in a manner required by law'. (Cal. Pub.
Res. Code § 21168.5.)" 106 Cal. App.3d at 1002. (Emphasis added).
Under the fair argument standard, deference to the lead agency's determination is
not appropriate and its decision not to require an EIX can be upheld "only when there is no
credible evidence to the contrary." Sierra Club v. County of Sonoma, 6 Cal. App. 4th 1307,
13 I7-I8 (1992). Emphasis added. The fair argument standard requires the reviewing court to
employ "a certain degree of independent review of the record, rather than the typical substantial
evidence standard which usually results in great deference b eing given to the factual determinations
of the agency." Quail Botanical Gardens Foundation, Inc. v. City of Encinitas, 29 Cal. App. 4th
t597, 1602 (1994).
The Supreme Court has concluded that the interpretation of CEQA "which will
afford the fullest possible protection to the environment is one which will impose a low thresholds
requirement for preparation of an EIR." No Oil, Inc. v. City of Los Angeles, supra, 13 Cal. 3d at
84.
As explained below, Cottonwood has presented a compelling argument, based on
overwhelming evidence, that the Project will have a significant adverse impact on the environment.
Therefore, the Agency should prepare an Eli*,.
B. The Mitigated Negative Declaration Fails to Provide An Accurate Proiect Description.
The Project description must be accurate and consistent throughout a mitigated
negative declaration. A mitigated negative declaration circulated for public review shall include,
among other things, a description of the project. 14 Cal. Code Regs. § 15071(a). California
courts have consistently emphasized the importance ofaccurate project descriptions. In fact, "[a]n
accurate, stable and finite project description is the sine qua non of an informative and legally
sufficient EIR." County of lnyo v. City of Los Angeles, 71 Cal. App. 3d 185,193 (1977)(italics
in original). The County oflnyo further stated, "[al curtailed or distorted project description may
stultify the objectives of the reporting process. Only through an accurate view of the project may
affected outsiders and public decision-makers balance the proposal's benefit against its
environmental costs, consider mitigation measures, assess the advantage of terminating the
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 6
proposal.., and weigh other alternatives in the balance." TEe Agency must in good faith make
the MND (and the Initial Study used to prepare the M2XJD) as complete and comprehensible as
possible. Long Beach Savings & Loan Association v. Long Beach Redevelopment Agency, 138
Cal. App. 3d 249 (1986).
Here, the MND is fundamentally flawed because the Project description is
inadequate and internally inconsistent. Project descriptions must be consistent throughout a
mitigated negative declaration in order for the impact analysis to be meaningful and serve as a
vehicle for intell/gent decision-making For example, the Amended Public Notice of Availability
presents Alternative A as "163,000 square feet of Discount Club, a members-only fuel station, and
two 7,000 square fuot restaurants." Then, the MND at page 11 refers to Alternative A as "a major
anchor retail tenant of approximately 130,000 to 160,000 square feet of retail in conjunction with
a gas station and one or two free-standing restaurants." The description of Alternative A is
inconsistent throughout the MND It goes without saying that a mitigated negative declaration
must contain uniform project descriptions.
Furthermore, the Project description does not include all relevant aspects of the
Project, including reasonable foreseeable future activities, and minimizes Project impact. The
M2NT) minimally describes three theoretical alternative projects instead of acknowledging that the
intended development of the Project is a Costco Warehouse by Costco Wholesale Corporation
("Costco"). The Project, as developed by Costco, shall sometimes be referred to herein as "a
Costco." In fact, the Agency has been involved in back-room negotiations with Costco for many
months and has signed various negotiation agreements with Costco? in contravention of its own
Rules Governing Participation and Preferences by Owners and the California Comrnunity
Redevelopment Law, each of which requires that the Agency give preference to proposals
submitted by owners of the subject property, and not to third parties. In addition, the MND fails
to discuss, at all, the extension of owner participation opportunities to Cottonwood. The MND
needs to identify in detail the owner participation opportunities that have been ertended and how
such opportunities relate to the project alternatives identified in the MND.
On April 8, 2002, the Agency considered Costco's development proposal, took certain
actions in furtherance therewith and rejected Cottonwood's project proposal, including any
right to owner participation. Ail resolutions, documents and other matters related to this
action by the Agency and all prior actions by the Agency, and the City in any way relating
to Costco, the Costco project and/or Cottonwood are hereby incorporated herein by this
reference.
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 7
The MND only focuses on one of the theoretical alternatives for purposes of the
environmental analysis contained in the MEND. However, the MND fails to discuss how the
Agency decided on those three particular alternatives, nor does the M2'JI) discuss the analysis used
to reach the conclusion that Alternative C is the "worst-case scenario," and thus, should be the
focus of the MND. Interestingly, the Project alternative chosen for the MND analysis is the one
most unlike the Costco development proposal, despite the fact that the Agency has officially
approved moving forward with Costco's development proposal for the Project. Also, Alternative
C, which is described as involving 186,000 square feet of retail/commercial square footage,
exceeds the development intensity being contemplated by the Agency. Furthermore, without any
explanation, the MND boldly asserts that any alternative would be built in one phase.
CEQA requires that an environmental document foster informed public partici-
pation and informed decision-making. By failing to identify the intended occupant of the Project,
which has special operational and impact generation potential (some facts of which are detailed
in the correspondence concerning the Project at the April 8t~ Agency hearing), the Agency has
intentionally violated an essential tenet of CEQA and has undermined the validity of the M2ND.
The inadequate project description effects the credibility of the analysis purp?rtedly performed on
all of the CEQA checklist categories. The only reason for the Agency not revealing these vital
pieces of information is to preclude an accurate and complete discussion of the Project's potential
environmental impacts, thereby undermining CEQA. Because the Project is really a Costco, and
not one of the three theoretical alternatives scantily mentioned in the MND, the project description
should include significant additional information to ensure that potential impacts of the Project can
be fully assessed and mitigated.
Vital information is missing from the MND environmental analysis due to the
inaccuracy of the project description. For example, in order to begin to properly analyze possible
environmental impacts, it is critical to know, among other things: the hours of operation, peak
weekday and weekend times for customer visits, the likely number of customers, the level of
customer activity throughout the day, evening and weekend on an hourly average, availability of
parking, plan for ingress and egress and the management of congestion at these points, delivery
schedules, the number and types of delivery trucks traveling to the Project each day and possible
delivery routes. Moreover, there is essentially no analysis in the MND of the aesthetics, light and
glare impacts of the Project, but merely conclusory statements wholly unsupported by facts.
Also, information regarding building dimensions is completely ignored in the MND.
This omission makes an analysis of the Project's visual compatibility with surrounding uses
impossible to evaluate. The Project description should include a drawing of the proposed building
and some information about materials, windows, rooftop equipment, etc. Such information is
readily available to, or is already in the possession of, the Agency. The Agency simply does not
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 8
have a valid excuse for misrepresenting the true nature of the Project or for failing to disclose key
information relating to the Project.
The public must have an opportunity to truly examine the potential significant
adverse impacts of the Project with the Project clearly defined as a Costco. The Agency must
examine data available from existing Costco facilities and must apply that data to the Project. The
Agency simply has no excuse for failing to use readily available data and for, consequently, failing
to conduct an accurate analysis. Data from Costco facilities is extremely critical to a proper
analysis and examination of the Project6-/. For example, a Costco gas station is likely to produce
tremendous traffic trips due to the discount nature of gas services. Similarly, the Costco
automotive service will likely have unique noise and unavoidable regional air quality impacts. A
Costco would add significant air quality emissions from tanker trucks fueling the proposed
gasoline facility that would likely drive up environmental costs. Here, the impact of the Project
on the environment is not fully known and will not be known until an EIR is prepared.
C. Notice For The M/tigated Negative Declaration Was Inadequate.
1. Period For Public Review Should Be 30 Days. The public review period for a
M/tigated Negative Declaration submitted to the State Clearinghouse for review by state agencies
shall not be less than 30 days. Guidelines § 15105 (b). Mitigated Negative Declarations are
submitted for review by state and other agencies when the project has statewide significance.
Examination of several Costco initial studies, mitigated negative declarations and EIRs
reveals that a Costco store involves unique circumstances that must be thoroughly
examined. Reliance on generic data, such as that obtained from the Institute of
Transportation Engineers (ITE) Trip Generation, 6th Edition, will not suffice. Such
generic data, if relied upon at all, must be used in conjunction with data from existing
Costco facilities. The EIR for Costco Wholesale Development dated September, 1999
prepared in connection with a Costco facility in the City of Concord, California, is an
example of a thorough analysis of the development of a Costco store and is hereby
incorporated by reference as though set forth fully herein. The study conducted was
detailed and, more importantly, it was tied to the unique circumstances involved in the
development and operation of a Costco store. The study included a thorough discussion
of other Costco facilities, expected employee numbers, number and size of delivery trucks,
number and size of fuel trucks, expected delivery routes, operation of the tire center and
general operation of the Costco store.
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 9
Here, the Agency claims that the public review period is 20 days. This
interpretation of the Guidelines is wrong because the Project, if properly described, would have
statewide sigrfificance.
2. Pertinent Documents and Agreements Affecting the Proiect Were Not Analyzed
in the 1ViNT).. ri'he Agency not only failed to analyze pertinent documents affecting the Project, it
failed to make any mention of them in the MND. For example, the Agency did not analyze the
affects of the following documents on the Project: (I) that certain Cypress Business and
Professional Center Development Agreement No. 90-1, dated as of May 24, 1990, executed by
and between the City and Cypress Development, a California general partnership ("Cypress
Development"), (2) that certain Grant of Drainage Easement, recorded on September 11, 1990,
executed by and between Cypress Development and Los Alamitos Racecourse, (3) that certain
Cypress Business and Professional Center Traffic Mitigation Agreement, dated as of August 20,
1990, executed by and among the City of Los Alamitos, the City, and Cypress Development, (4)
that certain Mitigation Monitoring Compliance Agreement Pursuant to Public Resources Code
Section 21081.6 for the Cypress Business and Professional Center Project, dated as of October 15,
1990, executed by and among the City, Cypress Development, Los Alamitos Racecourse, and
U.S.A, Inc., and (5) that certain Reciprocal Utilities Easement Agreement recorded on July 31,
1991, in favor of Cypress Development, Los Alamitos Racecourse and FJC U.S.A., Inc.
3. Public Agencies With J'urisdiction By Law Over Resources Affected By The Proiect
Were Not Properly Noticed.
According to Guideline § 15072 (e), if a project is of statewide, regional, or
areawide significance, the lead agency shall provide notice of the Mitigated Negative Declaration
to transportation planning agencies and public agencies which have transportation facilities within
their jurisdictions which could be affected by the project. Transportation Facilities include: "major
local arterials and public transit within five miles of the project site and freeways, highways and
rail transit service within 10 miles of the project site." I_d.
The Agency has failed to meet this particular notice requirement. The MND fails
to list the agencies that require notice under Guideline § 15072. The public has no way of
knowing whether such agencies were ever properly noticed, including the City of Los Alamitos
and Caltrans.
4. Documents Referenced In The MND Were Not Properly Summarized Guidelines
§ 15150 (c) requires that" . . . where an EIR or negative declaration uses incorporation by
reference, the incorporated part of the referenced document shall be briefly summarized where
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 10
possible or briefly described if the data or information cannot be summarized. The relationship
between the incorporated part of the referenced document and the EIR shall be described."
The Agency has made it truly impossible for the public to review the documents
referenced in the MND for several reasons.
First, although CEQA permits the incorporation by reference of other documents,
the MND incorporates so many documents that it is virtually impossible for the public to
understand the basis of the analysis for the Project. For example, the MND incorporates four full
EIR's, three of which are ten years old, and three Initial Studies, in addition to the General Plan,
Zoning Code, Specific Plan and Redevelopment Plan. As used by the Agency, this technique
undermines full disclosure of the environmental consequences of the Project and thereby impedes
informed decision making as mandated by CEQA.
Second, the Agency fails to adequately list and summarize the documents
referenced in the MND. Section 4.18 (References) fails to provide a complete list of the
documents referenced in the MND. This section only offers the public a partial list of documents
referenced. Moreover, the MND fails to adequately summarize and explain the exact relationship
between the referenced document and the MND. In fact, certain documents which are listed in
Section 4 18 are not discussed at ail in the body of the MND, and certain documents which are
briefly referenced in the body of the M-ND are not listed in Section 4.18, making it virtually
impossible to even commence a process of review.
The MND Fails to Provide Evidence That the Proposed Proiect Will Not Have Any
Significant Environmental Effects. ..
A mitigated negative declaration must disclose the data or evidence upon which the
"person(s) conducting the study relied .... Mere conclusions simply provide no vehicle for judicial
review." Citizens Assn. for Sensible Development of the Bishop Area v. County ofln¥o, 172 Cal.
App. 3d 151, 170 (1985). One of the primary purposes of an initial study is to "[p]rovide
documentation of the factual basis for the finding in the Negative Declaration that a project will
not have a significant effect on the environment." Guidelines § 15063(c)(5). An initial study must
document reasons to support the finding that a project will not have any significant environmental
effects. Guidelines § 15071(d).
The MND includes an "Initial Study Checklist" (the "Checklist") which includes
approximately 88 questions regarding the potential environmental impacts of the proposed Project.
With respect to each question, the Initial Study concludes either that (a) the questioned impact will
not occur at all, (b) the impact will occur, but it will not be significant, or (c) the impact will be
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 11
significant, but proposed conditions will mitigate the impact below a level of significance.
However, the Initial Study includes little or no explanation for many of these negative responses,
and it fails to properly summarize and take into account the numerous studies that have been or
are being prepared for the LART Redevelopment Area. Moreover, many of the m/tigation
measures listed in the Initial Study contain no timing for implementation nor do they identify the
responsibility of City Staffto ensure compliance. Therefore, many of the mitigation measures are
inadequate in ensuring that potential environmental effects are actually mitigated. This problem
is compounded as some mitigation measures are identified as "recommended" rather than required.
In fact, where there is an explanation, the explanation often offers no baseline
condition or reason to believe that a significant adverse impact will not occur. For example, the
traffic study fails to point out that there will be an unavoidable significant adverse impact at the
intersection of Cerritos Avenue and Walker Street.: Omission of such inforfnation seriously
undermines the credibility of both the traffic study and the Initial Study. In addition, the traffic
study merely estimates the number of anticipated trips based upon an inaccurate project description
and concludes that the adjacent streets will handle the impact. A more detailed analysis of the
tratT~c study is found in a letter dated April 18, 2002, from Linscott, Law, & Greenspan, Engineers
to Mr. Mel Malkoff, attached hereto as Exhibit B. ~
There is also minimal analysis as to aesthetics or the impact of light, glare and
noise. Neighbors must merely trust that the Project will not be visible from their homes and that
light and noise will not impact them, even though the Initial Study acknowledges that there will
be new sources of light and that the ambient noise level will increase. In addition, to further
aggravate the conclusionary nature of these statements, there is n~o discussion as to the unique
traffic and noise that will be created by the Costco gas station and automobile service or tire
facility.
Certainly, further study is required with respect to potential impacts arising from
traffic, parking, air quality (potential odors and fumes from delivery trucks, etc.), aesthetics, light
and glare, noise, hazardous materials and cumulative impacts from other projects, particularly
when the Project is properly described as a Costco. In addition, the Agency has failed to meet the
standard mandated by Guidelines § 15070 (b) (1) which states that a mitigated negative declaration
shall be prepared when "[t]he initial study identifies potentially significant effects, but [rlevisions
in the project plans or proposals made by, or agreed to by the applicant before a proposed
mitigated negative declaration and initial study are released for public review would avoid the
effect or mitigate the effects to a point where dearll, no significant effects would occur..."
(emphasis added). The Agency has failed to meet this burden. The Agency has not clearly
demonstrated that clearly no significant effects would occur in connection with the Project.
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 12
The Initial Study, itself, is defective on a number of fronts. In particular, it contains
inaccurate information in the sections discussing Land Use and Planning, Traffic, Aesthetics, Air
Quality, Hazard and Hazardous Materials, Noise, Population and Housing, Public Services,
Recreation and References. A detailed discussion of the inadequacies in the Initial Study is set
forth in Exhibit A attached hereto.
E. Tiering Is Improper Under the Circumstances.
The use of tiering is intended to allow agencies to avoid repetitiveness, wasted
time, and unnecessary premature speculation, by preparing a series of EIRs or an EIR and later
negative declarations on related projects. Cal. Pub. Res. Code § § 21068.5, 21093 (a); Guidelines
§ 15152. "Tiering is a process by which agencies can adopt programs, plans, policies, or
ordinances xvith El/Ks focusing on "the big picture," and can then use streamlined CEQA review
for individual projects that are consistent with such... [first tier decisions] and are consistent with
local agencies' governing general plans and zoning.". Koster v. County of San Joaquin, 47 Cal
App. 4th 29 (1996). Public Resource Code Section 21068.5 defines "tiering" as
"the coverage of general matters and enviromn4ntal effects in an
environmental impact report prepared for a policy, plan, program or
ordinance followed by narrower or site-specific environmental impact
reports which incorporate by reference the discussion in any prior
environmental impact report and which concentrate on the environmental
effects which (a) are capable of being mitigated, or (b) were not analyzed
as significant effects on the environment in the prior environmental impact
report."
The later EIRs are excused by the tiering concept from repeating the analysis of broad
environmental issues examined in the general plan EIR. It is important to note that not all site-
specific projects can take advantage of tiering. To qualify for the use of tiering, later projects
must: (i) be consistent with the program, plan, policy, or ordinance for which an E1R has been
prepared and certified, (ii) be consistent with applicable local land use plans and zoning of the city,
county, or city and county in which the later project would be located and (iii) not trigger the need
for a subsequent EIR or supplement to and EIR. Cal. Pub. Res. Code § 21094 (b). These criteria
thus limit the kinds of projedts that can benefit from the use of tiering; .p~rojects requir!ng general
pIan amendments and most kind ofrezones will not qualify. Also, Guideline Section 15162(a)(3)
requires the preparation of a subsequent EIR if" . . . significant effects previously examined will
be substantially more severe than shown in the previous EIR."
ATT O R N E ¥ S AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 13
Here, the Agency may not use the tiering concept for several reasons. First, the
Project described in the MND is not consistent with the applicable plans and zoning associated
with the location of the Project. Retail prQects, such as the Project described in the MND, are
not permitted uses under current plans and zoning for the Project. A more thorough discussion
of the inconsistency of retail use with the current zoning for the Project is set forth in E>~hibit A
attached hereto. Because retail is not a permitted use, development of the Project will necessitate
amendments to the Cypress General Plan, the City of Cypress Zoning Ordinance and the Cypress
Business & Professional Center Specific Plan, which will, in turn, require preparation of an EIR.
Second, the Project, when properly described as a Costco, will immediately trigger the need for
an EIR. The very nature ora Costco necessarily invalidates the accuracy of the impact analysis
in the previous EIRs. For this reason alone, the M2ND's reliance on previous analysis and
conclusions is questionable. The proposed Costco project will undoubtably have greater impacts
than would the typical retail or office use that was contemplated under the analysis of the prior
ErRs. The fact that the Project is in actuality a Costco is significant new information of substantial
importance that could not have been known at the time the ErRs were certified. For example, the
traffic impacts ora Costco are greater than those anticipated in the ErRs. tn turn, air quality and
noise impacts will also be greater. This could lead to new significant impact~, an increased severity
of previously identified impacts, and new mitigations that must be considered. Also, many of the
significant effects examined in the ErRs prepared over ten years ago are likely to be substantially
more severe today. These circumstances require full examination in a supplemental EIR, not a
M/figated Negative Declaration.
The Proposed Mitigation Measures Will Not "Clearly "Mitigate the Proiect's
Significant Environmental Impacts.
A lead agency can approve a project with potentially significant environmental
effects by adopting a mitigated negative declaration, only under the following circumstances:
"An initial study identifies potentially sigrfificant effects on the
environment, but (A) revisions in the project plans or proposals made by,
or agreed to by, the applicant before the proposed negative declaration and
initial study are released for public review would avoid the effects or
mitigate the effect on the environment would occur, and (B) there is no
substantial evidence, in light of the whole record before the lead agency,
that the project, as revised, may have a significant effect on the
environment." (Emphasis added) Cal. Pub. Res. Code {} 21080(c)(2); see
also Cal. Pub. Res. Code § 21064.5.
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page I4
Since the Agency has prepared the MND and the Initial Study, it is expressly acknowledging under
CEQA that, in the absence of clearly effective nfitigation, the Project will have a signiScant,
adverse environmental effect. In fact, several Statements of Overriding Considerations in
connection with the LART Redevelopment Area were adopted in the past to address some of these
significant effects. In particular, a Statament-of Overriding Considerations was prepared 'in
connection with the Cypress General Plan EIR for the following impacts:
transportation/circulation, air quality and parks/recreatinn. Also, a Statement of Overriding
Considerations was prepared in connection with the Cypress Business and Professional Center
Specific Plan EIR for the following impacts: circulation and traffic, land use and relevant planning,
aesthetics and air quality.
The mitigation measures attached to the Initial Study will not "clearly" mitigate
certain aspects of the Project, as admitted by the Agency in the MND and the Initial Study. The
Agency cannot adopt the MND unless the mitigation measures reduce the impacts of the Project
below the threshold of significance set forth in CEQA. In this case, the mitigation measures must
eliminate the possibility ora substantial adverse change in the significance of the Project. Section
3 3 of the Initial Study describes "potentially significant impact unless mit!gated" as follows, "It]he
development will have the potential to generate impacts which may be cc;nsidered as a significant
effect on the environment, although mitigation measures or changes to the development's physical
or operational characteristics can reduce these impacts to levels that are less than significant."
However, the Agency fails to address the criteria by which a potential environmental impact is
determined. The Initial Study not only fails to analyze whether the stated mitigation measures will
prevent a "substantial adverse change," it does not even cite the appropriate threshold.
Moreover, the Agency cannot simply rely on past EIR's and Statements of
Overriding Considerations for the purpose of avoiding an E1X for the Project. Those past
documents will not automatically shield the current Project from analysis, particularly when the
Project is significantly different from the uses that were contemplated under the previous EIRs and
Statement of Overriding Considerations; Furthermore, the Initial Study fails to discuss, in any
meaningful way, the relationship between the referenced documents and the Project.
The Adoption of the Negative Declaration Would Unlawfully Defer Environmental
Review.
CEQA requires that environmental review and the formulation of appropriate
mitigation measures occur at the earliest feasible state in the planning process. Cal. Pub. Res.
Code § 21003.1. CEQA provides further that a proposed negative declaration should only be
prepared for a project when "revisions in the project plans or proposals made by or agreed to by
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 15
the applicant before the proposed negative declaration is released for public review would avoid
the effects or mitigate the effects to a point where clearly no significant effect on the environment
would occur ..." Cal. Pub. Res. Code § 21080(c)(2).
The case of Sundstrom v. County of Mendocino, 202 Cal. App. 3d 296 (1988),
illustrates these principles. In Sundstrom, the public agency approved a use permit for a motel and
restaurant that included a private sewage treatment plant. The initial study did not analyze the
environmental impacts of the treatment plant, but instead required that the developer prepare a
hydrological study after the approval of the negative declaration. The study was to provide a basis
for establishing additional mitigation measures for the project.
The court held that the public agency violated CEQAby including a condition that
contemplated revisions to the project after the final adoption of the negative declaration. The
court further held that the deferral of environmental review for the treatment plant ran counter to
CEQA policy, which required environmental review at the earliest feasible change in the planning
process. The court also noted that any mitigation measures added by the administrative staff as
a result of this study would be exempt from public scrutiny since the public agency had already
approved the negative declaration.
Several proposed mitigation measures for the Project under the MND and the
Initial Study are examples of unlawful deferral of environmental review. For example one
condition requires that a geologic and soils report be prepared at a later date. The MND
determined that potential geological impacts associated with the Project could be potentially
significant, unless mitigated. Neither the impacts nor the proposed conditions for mitigation are
discussed. Similarly, circulation plans and a parking study are all deferred to another day.
There is also no discussion as to the type or amount of mitigation required for the
potential impacts associated with the service station proposed under one of the alternatives. See
Initial Study, 4.7.
Existence of Public Controversy, Coupled with SubstantialEvidence of a Significant Effect
on the Environment, Underscores the Need for an ElR. Guidelines Section 15064(0(4)
provides as follows:
"The existence of public controversy over the environmental effects of a
project will not require preparation of an ErR if there is no substantial
evidence before the agency that the project may have a significant effect on
the environment ."
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 16
There is no doubt that there exists a public controversy over the Project. In fact,
over six hundred concerned citizens attended the April 8, 2002 Agency meeting regarding the
subject property to express their concerns and opposition to the Project. Also, there exists
sufficient evidence suggesting that the Project will have a significant effect on the environment.
The Agency has received or will receive voluminous testimony from a variety of
noted citizens, City groups, and other experts that the Project will likely have a significant, adverse
effect on the enviromnent, and that the proposed mitigation measures will in no way mitigate the
impacts of the Project. In contrast, the only potential "expert" testimony which supports the
adoption of the MND are the inadequate studies which ignore the real nature of the Project.
The Agency's position is entirely unsupported. However, even if the reports upon
which the MND is based could be considered unbiased expert testimony, the disagreement among
experts suggests that the preparation of an EIR would address the many doubts created by the
Project. In fact, some courts have stated:
"In such cases, an EIR - an impa~rtial, detailed and factual analysis of the
Project's effect - can perform an invaluable service in aiding the agency's
resolution of a dispute .... 'The very uncertainty created by the conflicting
assertions made by the parties .:. underscores the necessity of the EIR to
substitute some degree of factual certainty for tentative opinion and
speculation.'" See No Oil, Inc. v. City of Los Angeles 13 Cal. 3d 68, 85
(1974); City of Carmel-By-The-Sea v. Board of Supervisors. 183 Cal.
App. 3d 229, 249 (1986); see also Sundstrom v. County of Mendocino,
202 Cal. App. 3d 296, 313 (1988).
I. The Agency Has Unlawfully "Split" The Proiect for Purposes of Environmental Review.
The term "project" has been broadly defined under CEQA. "Project" means "the
whole of an action, which has the potential for resulting in a physical change in the environment...."
Guidelines § I5378(a). All phases of project planning, implementation and operation must be
considered in the initial study for a project. Guidelines § 15063(a)(1). The term "project" refers
to the activity which is being approved and which may be subject to several discretional approvals
by governmental agencies. The term "project" does not mean each separate governmental
approval. Guidelines § 15378(c).
Under CEQA, a project must be fully analyzed in a single environmental document.
An agency may not split a project into two or more segments with mutually exclusive
environmental documents. Citizens Assn. for Sensible Development of Bishop Area v. County of
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 17
Inyo, 172 Cal. App. 3d 151, 165 (1985). Similarly, an agency cannot overlook a project's
cumulative impacts by separately focusing on isolated parts of the whole. McQueen v. Board of
Directors, 202 Cai. App. 3d 1136, 1144 (1988).
In Citizens Assn. for Sensible Development of Bishop Area v. County of
supra, a county split a shopping center project into two segments, the first part consisting of
general plan amendments and zoning classifications, and the second part involving a tentative map
approval and road abandonment. The public agency prepared a separate negative declaration for
each project segment. Because the project applicant had requested related discretionary approvals
at different times, the county had failed to understand that it was dealing with a single project. The
court ove~1urned the negative declarations and the project approvals, holding that an agency
cannot prepare mutually exclusive environmental documents for a single project. 172 Cal. App.
3d at 165-67.
The project description in a CEQA document must include:
"an analysis of the environmental effects of future expansion or other
action if: (1) it is a reasonable foreseeable consequence of the initial
project; and (2) the future expansion or action will be significant in that it
will likely change the scope or nature of the initial project or its
environmental effects." LaureI Heights I. supra, 47 Cal. App. 3d 376, 396
(1988).
In Laurel Heights I, the Regents proposed the relocation ora biomedical research
facility to a portion of a building located in the residential neighborhood. The EIR for the project
failed to analyze the cumulative impacts of the anticipated full use of the building as a biomedical
facility within a few years. The California Supreme Court rejected the Regent's argument that,
because the proposed expansion had not been formally approved, the EIR's analysis could be
limited to the project in its initial form. Evidence in the record indicated that, despite the lack of
a formal approval, the Regent's ultimate plans were clear. Therefore, because the expansion was
reasonably foreseeable, and was likely to change the scope or nature of the initial project or its
environmental effects the EIR should have discussed at least the general effects of the reasonably
foreseeable future uses and the anticipated measures for mitigating those effects. Ld. at 396-398.
"The fact that precision may not be possible ... does not mean that no.analysis is required." I~d. at
399.
Another case that illustrates this principle is Whitman v. Board of Supervisors, 88
Cal. App. 3 d 397. In WNtman~ an EIR was prepared in connection with an application to drill an
exploratory oil and gas well, which omitted discussion of a contemplated pipeline if the well
A T T O R N E Y S A T L A W
Cypress Redevelopment Agency
May 20, 2002
Page 18
proved productive. The court found the EI~ inadequate and explained that "[t]he record before
us reflects that the construction of the pipeline was, from the very beginning within the
contemplation of [the] overall plan for the project and could have been discussed in the El:R in at
least general terms." Id. at 414-15. (emphasis added)
Under the current circumstances, the Project suffers from the same problems that
occurred in Laurel Heights I and Whitman. First, there is absolutely no discussion whatsoever as
to the impacts associated with other projects within the LART Redevelopment Area. Second, the
agreement between the Agency and Costco is completely ignored. There is no discussion of
conderm~ation activities by the Agency against Cottonwood and the relocation and other impacts
related thereto nor of the proposed Disposition and Development Agreement between the Agency
and Costco~ despite the fact that this agreement would directly affect the Project. In conclusion,
the Agency needs to examine all of these issues in an EI2~.
The MND Fails to Have Any Cumulative Analysis of the Project's Environmental
Impacts.
An environmental document must discuss "cumulative impacts" when they are
cumulatively considerable. Guidelines § 15130(a). However, even if a cumulative impact is not
deemed sigrhficant, the document must explain the basis for the conclusion. Citizens to Preserve
the Oiai v. County of Ventura, 176 Cal. App. 3d 42I, 429 (1985). "Cumulative impacts" are
defined under the Guidelines as two or more individual effects which, when considered together,
are considerable or which compound or increase other environmental impacts. Guidelines
§ 15355.
The M'ND fails to have any analysis of any potential "cumulative impacts."
Potential related projects for cumulative analysis are simply not listed in the MND.
This comprehensive analysis on related projects and the associated cumulative
impacts must be done before approval of the Project. To ignore the Project's interrelationship,
consistency or inconsistency and impact on the LART Redevelopment Area and other projects
within the area improperly segments the Project from the LART Redevelopment Area and ignores
a proper cumulative analysis under CEQA, all to the detriment of the citizens of Cypress and
proper long-term planning.efforts for the LART Redevelopment Area.
Given the related projects and the related environmental analyses that the Agency
is undertaking, the MND should not be approved because further studies are in process and have
been admitted to be necessary. This is especially true given the substantial public funds which
ATTORNEYS AT LAW
Cypress Redevelopment Agency
May 20, 2002
Page 19
would be committed to the Project. Furthermore, as discussed above, this type of analysis cannot
be deferred to a later day.
CONCLUSION
Given the foregoing, on behalf of all of our client, we request that the Cypress
Redevelopment Agency reject the MND, and that a full E1R be required.
for SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
CC: William W. Wynder, Esq.
Dan Slater, Esquire
Pastor Bayless Conley
Rev. Michael Wilson
Marshall Tanner, Esq.
Andrew J. Guilford, Esq.
Sean O'Connor, Esq.
Maricmz Mendoza, Esq.
Mr. Mel Malkoff
Ms Mary Urashima
EXHIBIT A
The MND and the accompanying Initial Study are flawed for the following reasons:
Proiect Setting: This section is too vague. The brief narrative fails to give any sense of the
immediately surrounding uses or a larger sense of the nearby community. At the very least, the
Initial Study should have included a land use map labeling the surrounding uses and identifying
sensitive uses in the area that could be affected by the project or uses with special operational
characteristics that may conflict.with the Costco operations.
Aesthetics: The Initial Study does not provide a basis for its conclusion that the Project would
be compatible with existing uses surrounding the project site. In addition, it fails to provide for
adequate information regarding the dimensions of the proposed building or any visual aids which
would enable the public to adequately analysis this category.
The Initial Study conbludes that impacts related to project construction would
cause temporary aesthetic nuisances. These aesthetic nuisances are determined to be less than
significant because they are temporary. It is erroneous to conclude that impacts are less than
significant based on their duration. In the short-term, aesthetic impacts related to construction
nuisances may be significant.
Air Quality: The Initial Study ~tates the following: "The proposed project is above the thresholds
established by SCAQMD with respect to size, as well as for operational emissions." However,
the Initial Study concludes that the project generated emissions "would not result in significant air
quality impacts on a local or regional basis". The basis for this conclusion is that El2~'s prepared
for the General Plan and the Specific Plan account for site development. This conclusion is
erroneous. In essence, it asserts that as long as a previous EIR identifies a range of potential
impact of future development, no project-specific impacts need be identified. Also, it must be
noted that the previous El:Rs did not contemplate a Costco in the subject site. Thus, any Air
Quality assessments made in those documents would not adequately address the impacts
associated with the development ora Costco. Because there would be unavoidable cumulative
air quality impacts, an EIR would need to be prepared.
Air quality information contained in the Initial Study concludes that during
construction, the demolition, grading and preparation of the site for development could result in
minor short-term air quality impacts. No calculations are provided in order to substantiate the
conclusion of"minor" short-term impact s. The Initial Study fails to state whether the impacts are
significant under the thresholds established in the SCAQMD CEQA Air Quality Handbook.
The Project is required to comply with Mitigation Measure #54 of the Cypress
Buskness and Professional Center Specific Plan EIR. Since 1990, the requirements of the
SCAQMD have undergone major revisions. These requirements should be accounted for as part
of the Walker/Katella Retail Project.
The Initial Study concludes that air quality impacts related to odors from heavy-
duty equipment exhaust would be less than significant because they would be short term in nature.
It is erroneous to conclude that impacts are less than significant based on their duration. In the
short-term, these air quality impacts may be significant.
Cultural Resources: The Initial Study determines that there will be "no impacts" associated with
archaeological and paleontological resources. However, as these cultural resources are often
located below grade level, this conclusion is correct. It is possible that cultural resources will be
uncovered during the grading and site preparation process. Mitigation measures are, therefore,
required, and the impact cannot be determined to bd nonexistent.
Geology: The Initial Study determines that potential geological impacts associated with the
project could be potentially significant, unless mit/gated. Rather than defining these impacts, the
Initial Study postpones mitigation by requiring that a geologic and soils report be prepared at a
later date. Dec/sion-makers cannot make an informed decision on the Walker/Katella Retail
Project in the absence of this information.
Hazards and Hazardous Materials: The Project Description defined Alternative C as the worst-
case scenario and stated that, therefore, this !'alternative" will be discussed in the Initial Study.
However, the discussion under the Hazards and Hazardous Materials section states that potential
!mpacts associated with a service station (considered only under Alternative A) may occur. These
~mpacts, however, are not identified, nor is mitigation provided..!fthere are impacts associated.
with a service station, they should be identified as part of the Initial Study.
Measure HM1 requires that hazardous waste generated on-site be transported to
an appropriate disposal facility, yet it provides no mention of a monitoring system. If its
implementation cannot be assured, it cannot be stated that it will mitigate potential environmental
impacts.
Hydrology and Water Quality: The Hydrology and Water Quality discussion fails to memion, let
alone evaluate, the new regulations that were recently adopted by the Regional Water Quality
Control Board [Santa Ana Region].
Land Use and Planning: The Project is not consistent with the Cypress General Plan (the "General
Plan!'), the City of Cypress Zoning Ordinance (the "Code"), the Cypress Redevelopment Agenc3~
Los Alamitos Race Track and Golf Course Redevelopment Project Redevelopment Plan (the
"Redevelopment Plan") or the Cypress Business and Professional Center Specific Plan (the
"Specific Plan"). The General Plan, the Code, the Redevelopment Plan and the Specific Plan shall
be collectively referred to herein as the 'IPlans."
The General Plan
Consistency with Land Use Designation. The Project is designated Specific Plan
under the General Plan. Because the Project is not consistent with the Specific
Plan, as explained below, it is not consistent with the General Plan.
The Irfitial Study contains blatantly false information in the section discussing the
supposed consistency with the General Plan. The Initial Study boldly states,
"WI'file specific users for the proposed retail space have not been identified at this
time, it is the intent of Walker/Katella Retail Project to attract high quality
businesses to the City." Initial Study, Appendix A, 1.2.2. The truth is that the
Agency has already entered into negotiation agreements with Costco in connection
with the Project and chose the Costco project to the exclusion of all others on
April 8, 2002 (see discussion above). In fact, the Agency has already officially
adopted Costco's development proposal for the Project.
Consistency Conclusion. The Project is not consistent with the General Plan
because the anticipated use for the Project is not consistent with the permitted uses
allowed under the Code and Specific Plan.
The Specific Plan and Code.
Consistency with Land Use Designations. Through the Initial Study, the Agency
claims that the Project is a permitted use, subject to a CUP, under Section 11 of
a previous version of the Code ("Old ~ 11"). When the Code was amended, Old
§ 11 became new Section 13 ("New ~ 13 ") of the Code. Thus, the Agency argues
that New § 13 (Industrial Zones), which is primarily concerned with Business Park
and Industrial Light zoning designations, controls when analyzing permitted uses
for the Project, despite the fact that the subject property is zoned Planned Business
Park, and not Business Park, under the Code. The Initial Study offers no
explanation for this contradiction.
The current Code was adopted in May 11, 1998. New Section 11 ("New § 1 I")
is now concerned with "Commercial Zones." Office Professional Zone OP- 10000
is One of the zoning designations under Commercial Zones and is consistent with
the Specific Plan's designation of Professional Office for the subject property.
Retail use is not a permitted use under the Office Professional Zone designation.
The City's decision to move the Industrial Zones s~ction from Old § 11 to New
§ 13 of the Code makes sense because the Industrial Zones section is not
consistent with the Specific Plan's Professional Office designation. Had the City
intended otherwise, it would have amended the Specific Plan to reference New
§ 13. The City did not do tiffs because the reference to New § 11 (Office
Professional Zone) of the Code in the Specific Plan made sense and was consistent
with the Specific Plan's designation of Professional Office for the subject property.
Thus, there was simply no need to amend the Specific Plan.
As noted above, the subject property is designated Planned Business Park on the
Zoning Map and under the Code. The Planned Business Park permitted uses are
covered in § 15 of the Code. Retail is not a permitted use under this designation.
Close study of the Agency's explanation in the Initial Study regarding land use
consistency reveals the inherent weakness of the claim. The Agency would like
the public to focus on Old § 11 (New § 13) for validation of its unlawful Project.
However, the Agency's argument simply does not work. Close examination of
New § 13 of the Code reveals that the uses described in that section are not meant
to apply to the subject property. The uses permitted under New § 13 are specific
to the Business Park zoning designation, not the Planned Business Park zoning
designation wh/ch is the correct zoning for the subject property. New § 13 is
primarily concerned with the zoning designations of "Business Park Zone
BP-20000" and "Industrial Light Zone ML-10000." These designations are
inconsistent with both the Specific Plan's Professional Offices designation and the
Code's Planned Business Park designation. Why would the 1998 Code bother
zoning the subject land Planned Business Park if, as the Agency argues, the
Specific Plan really meant to point to Old § 11 of the Code which is primarily
concerned with the Business Park zone, not the Planned Business Park
designation?
Moreover, in order for the Agency's argument to have some merit, we would have
to completely ignore both the Zoning Map which designates the subject property
as Planned Business Park and § 15 of the Code which directly addresses the uses
permitted under the Planned Business Park designation. The Agency has failed to
explain why § 15, which does not permit retail use, should be completely
overlooked. The Agency has no way of explaining § 15 away. Directing the
public's attention to the old Code will not help it, in this respect. The Agency is
simply hoping that no one will notice that the Code has a section specifically
addressing the permitted uses for the Planned Business Park zone.
New § I 1 of the Code, as it now stands, and § 15 of the Code go hand-in-hand and
are completely consistent with the General Plan, the Redevelopment Plan and the
Specific Plan. Interpreting the Code and the Specific Plan as they now stand is
logical. There is no need for convoluted arguments to explain the permitted uses
for the subject property. There is no need to completely ignore certain sections of
the Code. If we read the Specific Plan (Professional Offices), New § 11 (Office
Professional Zone), § 15 (Planned Business Park Zone) and the Zoning Map
(Planned Business Park), as they pertain to the Property, we can only come to one
conclusion.., retail is not a permitted use under any of these documents. Thus,
the Project is not consistent with either the Specific Plan nor the Code.
Consistency Conclusion. The Project is not consistent with either the Specific Plan
nor the Code. Retail, the anticipated use of the Project, is not a permitted use for
the subject property.
The Redevelopment Plan.
Consistency with Goals. The Project is inconsistent with the following specific
redevelopment objectives of the Redevelopment Plan:
ObjectiveB: "Thedevelopmentofpropertywithinacreative, coordinated
land use pattern of residential, commercial, open space, and public facilities
in the Project Area consistent with the goals, policies, objectives,
standards, guidelines and requirements as set forth in the adopted General
Plan and Zoning Ordinance."
This objective requires that all projects within the project area be
consistent with the General Plan and the Zoning Ordinance. As discussed,
above, tiffs Project is inconsistent with those plans.
Objective E: "The development of' a more efficient and effective
circulation system."
Because the Initial Study fails to describe the Project as a Costco, the
circulation system has not been adequately analyzed. It is impossible to
assesshowthe circulation system will be affectedbytheProject. Thus, the
Project, does not promote a more efficient and effective circulation system.
Proposed Actions under the Redevelopment Plan. The Project is contrary to the
following proposed action under the Redevelopment Plan:
"Extending reasonable .preference to persons who are engaged in business
in the Project Area to reenter businesses within the Project Area provided
that said business reentry conforms with this Plan, the General Plan, and
the Municipal Code." § 301
The analysis of the Project did not take into account the participation opportunities
extended to the owners of the subject site. There was no discussion in the Initial
Study regarding the relatignship between the Project and any owner development
proposals. Omission Of this analysis directly contradicts the mandates of the
Redevelopment Plan.
Project Is Inconsistent With Permitted Uses. The land use permitted by the
Redevelopment Plan for a particular parcel is the land use permitted by the
General Plan, the Zoning Code, the Specific Plan, and all applicable laws, for such
parcel. As discussed above, the proposed Project use in not permitted under the
Plans.
Consistency Conclusion. Because the Project is not consistent with either the
General Plan nor the Specific Plan, as discussed above, the Project does not
conform to, is not consistent with, and does not implgment the goals of the
Redevelopment Plan. Furthermore, the Project is inconsistent with two of the
objectives set forth in the Redevelopment Plan.
Noise: Thelnitiai Study statesthat"...theproposed project would create on-site noise; however,
the noise levels are not considered to be significant." The Initial Study fails to explain how this
conclusion was reached.
Population and Housing: The Initial Study concludes that "...the increase in employment
opportunities would not result in significant population growth impacts within the City of
Cypress." The Initial Study states that the project is to be defined to include its secondary effects.
Retail development oiSen relies on part-time employees who are, paid minimum wage (see Costco
communication to th~ Agency which states that half of their employees will be part time), or close
to minimum wage salaries. Future employees may, in fact, relocate to the City of Cypress to
reduce their commute costs. These indirect effects of the project have to be evaluated.
Public Services: Fire protection and police protection impacts of the project are determined to be
"less than significant." The rationale for this conclusion is that the increase in demand for these
public services was "... addressed in the El]Ks for both the General Plan and the Cypress Business
and Professional Center Specific Plan." Therefore, no mitigation measures are required.
However, the project must be evaluated on its own merits. The Agency cannot blindly rely on past
lEIRs where the Project that will b e ultimately built will have significant environmental impacts that
are greater than those analyzed in past EIRs.
Under the fire protection discussion, it is stated that the Orange County Fire
Authority will "... review and comment on the site plan prior to project approval." The Initial
Study fails to mention whether the Orange County Fire Authority was contacted as part of the
preparation of the Environmental Assessment.
The analysis on schools deterrrdnes that no mitigation measures are required
because payment of state-mandated school impact fees would "... offset any cumulative effects of
employees' children who may attend the public schools in Cypress." However, the Agency fails
to address the secondary or indirect effects of future employees moving to the City of Cypress.
Furthermore, no information is provided as to whether the relevant school districts were consulted
regarding the determination that school impacts would be less than significant.
Transportation/Traffic: The transportation/circulation discussion identifies six intersections as
being selected for analysis. The Initial Study fails to discuss how these particular intersections
were selected to be part of the analysis. No reason is given as to why the intersection of
Bloomfield Street and Katella Avenue was omitted from the analysis, especially since the other
three intersections that surround the project site were included in the study and such intersection
is an obvious route. Also, intersections selected for impact analysis were limited to those that
occur in the City of Cypress. Since the project directly abuts the City of Los Alamitos,
intersections within that City's jurisdiction should also have been included. The list should include
all intersections for which the project could potentially have a significant impact on
transportation/traffic. The analysis fa/Ied to do so.
Existing traffic counts were taken on a Wednesday and a Thursday. As most
retail/commercial traffic would occur on the weekends, the analysis underestimates actual traffic
impacts related to the project. A weekend traffic analysis should be included in the traffic study.
Exhibit 7, "Existing Peak Hour Traffic Volumes", does not account for any traffic
leaving the project site at its northern boundary with Walker Street. This mid-block link should
be analyzed.
Page 57 states that a "... detailed discussion of trip generation estimates for each
of the study scenarios is contained in the Phase I report." Th/s reference to andther document is
inadequate because the document is not properly described. It is not dated and it does not state
who prepared the report. In addition, the Phase I report was not listed in the References section
of the Initial Study.
Page 57 states the following: "Comparing the three Retail alternatives, Alternative
A, the Discount Club and Gas Station alternative... ". The identification ora discount club as part
of Alternative A is contrary to the project description that provided information on generic retail
and commercial development. The Agency, for the first time, is admitting that Alternative A
corresponds with aDiscount Club. However, the Agency fails to clarify that fact that the Discount
Club is a Costco.
Table 8, Summary of Trip Generation for Project Alternatives, shows that the PM
peak hour traffic for Alternative C results in 738 trips. Table 8 also identifies the PM peak hour
traffic related to the business park development that was included in the Cypress Business and
Professional Center Specific Plan (upon which the City's General Plan traffic model is based), as
resulting in 453 trips. The increase in 285 trips, which is over a 60% increase, was not accounted
for in the traffic model upon which the General Plan and therefore, the Specific Plan is based.
Page 58 states that the trip distribution assumptions for the Business Park were
modified "slightly" for the retail alternatives. However, the Initial Study fa/Is to detail what the
basis for this "slight" modification was. Trip distribution patterns may be significant different for
these two land uses.
Table 10, Summary of Intersection Operations - Buildout Conditions With and
Without Proposed Project, shows that all of the project alternatives result in a decrease in the PM
peak hour level of service at Katella Avenue and Walker Street from "D" to "E". The
"recommended", not required, improvement is to add a westbound right~turn lane at this
intersection. No information on whether there is right-of-way available to implement this
improvement or when this improvement will~ occur is provided. The Agency is improperly
deferring the analysis of this mitigation action to a later date.
Further discussion regarding the deficiencies associated with the Initial Study's
traffic analysis is found in a letter dated April 18, 2002, from Linscott, Law, & Greenspan,
Engineers to Mr. Mel Malkoff, attached hereto as Exhibit B.
The Initial Study determines that the Project would not result in inadequate parking
capacity, and therefore, no mitigation is required. This bold conclusion is reached despite the fact
that there is no defined project against which to determine parking requirements.
Utilities and Service Systems:
Project impacts with respect to wastewater are not quantified; however,
conclusions are reached regarding the project~ impacts. Conclusions are being reached without
accurate data to base them on.
Sewage system mitigation measures are provided; however, these mitigation
measures are based on the project's contribution to the system, and do not reflect cumulative
impacts.
Mitigation Measure UTEL8 is "recommended" to "ensure that water impacts remain
at or below existing levels." However, this mitigation measure is inadequate because it does not
accomplish anything. The text of the mitigation measure simply states that voluntary water
conservation will be "encouraged."
The Initial Study states that solid waste impacts of the proposed project on landfill
capacity is a "potentially significant impact unless mitigated." However, the conclusion is then that
"no mitigation measures are required." The text then goes on to list several mitigation measures
that have no relationship to ensuring that the identified potentially significant impact is mitigated.
The potentially significant impact was simply never analyzed.
Mandatory Findings of Significance: With respect to the Project, the Initial Study concludes that
there "... would be no impact that would be 'individually limited, but cumulatively considerable
beyond those previously analyzed in the Cypress General Plan EIR". This conchision is inadequate
for the following reasons: 1) cumulative analyses were not conducted for any impact except
traffic; and 2) the findings of the traffic analysis show a 60% increase in PM peak hour traffic
vohimes above those contemplated by the Cypress General Plan.
EXItI~IT B
see attached letter)
E N G i N E E R S loM^ So~r~,p~
ENGINEERS & PLANNERS · TRAFFIC TRANSPORTATION PARKING
1580 Coqmrate D'Jve, Suite 122 · Costa ,Mesa, California 92626
April 18, 2002
Mr, Mel Malkoff
MALKOFF AND ASSOCIATES
18456 Lincoln Circle
Villa Park, California 92667
SUBJECT:
LLG Reference: 2.02.2344.1
TRAFFIC ENGINEERING REVIEW OF THE TRAFFIC IIVIPACT
ANALYSIS FOR THE PROPOSED WALK:ER]KATELLA
RETAIL DEVELOPiVIENT IN THE CITY OF CYPRESS
C)qpress, California
Dear Mr. Malkoff:
Linscott. Law & Greenspan, Engineers (LLG) is pleased to submit the following review of the
Traffic hnpact Analysis, prepared by Kimley-Horn and Associates, ~c., dated March, 2002, for
the Proposed Walker/Katella Retail Development project. The proposed 'project site is located
north of Katella Aveuue rind west of Walker Street in the City of Cypress. The f'ollowing
comments are provided:
Our review was solely based upon the generic description of the uses without the beuefit
of any spec/fie user that may have a greater or lesser trip generation potential because of
the type operation, hours of operation and rammer of use.
Based on our review the traffic impact study, the traffic forecasting methodology is
acceptable and the analysis is accurate regarding the peak hmtr traffic impact of the
project on exisih~g conditions and a long-term (General Plan Build-out) basis, with the
exception of the analysis prepared £or each alternative at the intersect/on of Walker Street
arid Cerr/tos Avenue.
£roj'ect Satdy Area: It is not clear bow the list of key study intersections and project study
area was detem~ined. The six intersections that were evaluated are all located within the
City of CYpress. We suggest that the "1% measurable impact criteria" as de£tned in the '
Cou~O' qf Orange Transportation ~npfementatio. Mm~ual (TIM) gm/delines be applied to
the comC~rn the sphere oflmpactJsmdy area is adequate.
Pasadcna-626,96-2~~.. · SanDiego 619299-3[~90 , Las Vegas - 702 451-1920 . FoLmded1966 · An tG2WB Company
Mr. Mol MaIkcef
MALKOFF & A$$OC!AI'ES
Ap~dl 18, 2002
Page 2
)~/oo,~field Szreet at Katel/a Avenue: Cdven the tt~p generation of each alternative and
project trip dis~but/on, we recommend that the intersect/on of ]Bloorrdield Street and
Katella Aveml¢, within the Cjty of Los Alamitos be analyzed. T~s intersection currc-ntly
operates at LOS E (ICU ~ 0.95) du,rLng the PM peak commute hour and with up to 20%
of retail project trips assigned to Katella, west of the project site, it is possible that the
Business Park Alternative or either of retail project alternatives will have an adverse.
impact on the operating conditions o£ this intersection.
~alker Street at Cerritos -4venue: The intersection of Walker Street and Cerritos' Avenue
currently operates as a split-phase traffic signal on Walker Street. Review of the
ICU/LOS calculation sheets included in Appendix B of the traffic study indicates that the
cmTent "split-phase" signal operation is not accurately represented in the h:tersection
capacity analysis prepared for this study intersection. For intersect/on approaches with
split phasing the approach movement with the greatest V/C ratio is considered to be
crdtical.
As such, the addition of westbound right-turn, lane on Cerr/tos Avenue recormnended to
mitigate the impact of build-out traffic as well as the addition of n-affic generated by any
of the development alternatives will not be sufficient to improve projected adverse PM
peak hour service levels to the City's des/red LOS D standard.
Based on our evaluation of"build Out plus ' ' '
project traffic" condmons, the Cerfitos/Walker
intersection is forecast to operate at LOS E or F with the implementation of recommended
mitigation measures (See Table 1, attached to this let°ret report).
We appreciate the oppornmity to provide this review for Mai/cog & Associates. If you have any
questions regarding this letter or need additional traffic engineer/ng support, please call me at
(714) 641-1587.
S/ncerely,
L1NSCOTT, LAW, & GREENSPAN~ ENGinNEERS
Richard E. Barretto, P.E.
Associate Pnncipal
Atlachn~ent
Walker/Katella Retail Project
RESPONSES TO COMMENTS FROM JONATHON C. CURTIS, SHEPPARD,
MULLIN, RICHTER & HAMPTON, LLP, DATED MAY 20, 2002.
Page 1, Paragraph 1
Declaratory statement. This comment states the objection of Cottonwood Christian Center
(Cottonwood) to the Mitigated Negative Declaration (MND) and Initial Study/Environmental
Checklist (IS/EC)for the Walker/Katella Retail Project.
The objections raised in this paragraph are the same objections raised in the April 18, 2002
comment letter from Sheppard, Mullin, Richter & Hampton, LLP, which have previously been
responded to in Responses B2 and B3. Responses B2 and B3 are restated below.
B2.
A Mitigated Negative Declaration, along with the Initial Study/Environmental Checklist,
has been prepared for the Walker/Katella Retail Project. The City of Cypress responded
to this specific concern in a letteF to Mr. Jonathon Curtis of Sheppard, Mullin, Richter &
Hampton, LLP, dated April 18, 2002. A copy of the City's letter and the Mitigated
Negative Declaration are included at the end of the responses to the comments from
Sheppard, Mullin, Richter & Hampton, LLP (Letter B).
The MND and IS/EC have been prepared pursuant to the requirements of the California
Environmental Quality Act (CEQA) (see California Public Resources Code Sections
21082, 21082.1, 21091,21092, 21092.2,21093, and 21094), as well as the State CEQA
Guidelines (see Title 14 of the California Code of Regulations, Sections 15070, 15071,
15072, 15073, and 15074).
The MND and IS/EC were made available for public review and comment pursuant to
CEQA Guidelines Sections 15070-15073. The initial public review period lasted from
March 28, 2002 to April 18, 2002. A second public review was conducted from April 30,
2002 through May 20, 2002. Copies of the MND and IS/EC were made available for
public review at the City of Cypress Community Development Department, located at
5275 Orange Avenue. The Cypress Redevelopment Agency has complied with the
applicable sections of CEQA and the CEQA Guidelines regarding the process for
negative declarations.
This comment does not provide specific details regarding the "numerous flaws" in the
Initial Study/Environmental Checklist, thus it is not possible to respond to the lack of
environmental issues raised in the comment.
B3.
Section 1.2 (Purpose) in the IS/EC describes the purpose of an IS/EC, as well as cites
the specific disclosure requirements for inclusion in an Initial Study pursuant to Section
15063 of the CEQA Guidelines.
Section 15063(c)(5) of the CEQA Guidelines states in pertinent part:
"(5) Provide documentation of the factual basis for the finding in a
negative declaration that a project will not have a significant effect on the
environment;"
JN 10-102089 Comments and Responses
Walker/Katella Retail Project
The IS/EC for the Walker/Katella Retail Project provides the necessary documentation,
including the environmental analysis found in Section 4.0 and the technical appendices,
for the Cypress Redevelopment Agency to make the determination found in Section 7.0
(Lead Agency Determination).
The following determination is recited on page 79 of the IS/EC:
"1 find that although the proposal could have a significant effect on the
environment, there will not be a significant effect in this case because the
mitigation measures described in Section 3.0 have been added. A
NEGATIVE DECLARATION will be prepared."
This determination includes a typographical error insofar as the reference to Section 3.0 should
be to Section 4.0. This will be corrected in the Final tS/EC.
Page ~, Paragraph 2
The Cypress Redevelopment Agency elected to hold a second 20-day public review period to
ensure that it fully complied with the requirements of CEQA Guidelines Section 15073. The
Redevelopment Agency did not amend the Mitigated Negative Declaration (MND) or Initial
Study/Environmental Checklist (IS/EC), or receive comments during the first 20-day public
review period that required modifications to and/or recirculation of the MND and IS/EC pursuant
to CEQA Guidelines Section 15073.5.
Page 2, Paragraph 1 through Paragraph 2
The objections raised in these paragraphs are the same objections raised in the April 18, 2002
comment letter from Sheppard, Mullin, Richter & Hampton, LLP, which have previously been
responded to in Responses B4 and B5. Responses B4 and B5 are restated below.
B4,
Declaratory statement. This comment states that Cottonwood has filed a Verified
Complaint and Verified Petition for Peremptory Writ of Mandate against both the Cypress
Redevelopment Agency and the City of Cypress in both the United States District Court,
Central District of California and the Superior Court of the State of California for the
County of Orange (collectively referred to as the Complaint and Petition). No
environmental issues pertinent to the iS/EC for the Walker/Katella Retail Project are
raised in this comment, thus no further response is necessary.
B5.
Section 1.3 (incorporation by Reference) in the IS/EC identifies the documents that
have been incorporated by reference and are utilized as "Tier 1" environmental
documents upon which to tier the Walker/Katella Retail Project IS/EC and MND. The
"Tier 1' documents include the Cypress General Plan (2001), the Cypress General Plan
EiR (2001), and the Cypress Business and Professional Center Specific Plan EIR
(1990). The Complaint and Petition do not challenge the approval or validity of these
documents (indeed, any such challenge would be time-barred), thus the adoption of the
MND and IS/EC as proposed is not precluded or even implicated by the Complaint and
Petition.
JN '[0-f02089 Comments and Responses
Walker/Kate/la Retail Projecl
Page 2, Roman Numeral I. Through Exhibit B, Table 1
The objections raised in the remainder of this letter are the same objections raised in the April
18, 2002 comment letter from Sheppard, Mullin, Richter & Hampton, LLP, which have previously
been responded to in Responses B6 through B82. Please refer to Response B6 through B82.
JN ~0-102089 Comments and Responses