HomeMy WebLinkAboutStaff Report 457-07City of Palo Alto
City Manager’s Report
TO:HONORABLE CITY COUNCIL
FROM:CITY MANAGER DEPARTMENT: PUBLIC WORKS
DATE:DECEMBER 17, 2007 CMR:457:07
SUBJECT:REQUEST FOR CITY COUNCIL DIRECTION ON AN INTERIM
RELOCATION OF THE PALO ALTO RECYCLING CENTER
8
RECOMMENDATION
Staff recommends that Council provide direction to:
1.Significantly reduce the size and scope of the current Recycling Center facility;
2.Proceed with the relocation of landfill entrance, offices, truck scale, and toll booth;
3.Make minor revisions to the State-approved landfill grading plan for consideration by the
Pat’ks and Recreation Commission (PRC) and the Planning and Transportation
Commission ~TC) as an amendment to the Byxbee Landfill Park Master Plan to be
considered and adopted by Council in July 2008.
4. Begin negotiating a contract amendment with the Palo Alto Sanitation Company
(PASCO), if needed, to address a reduction in Recycling Center revenue; and
5. Investigate cost effective ways to continue diverting recyclable materials from disposal.
BACKGROUND
The Palo Alto Recycling Center is currently located on the Palo Alto landfill in an area that was
used for refuse disposal during the 1950’s. The Recycling Center began its operation in 1972.
The Recycling Center was improved and expanded to its current size via Park Improvement
Ordinance 3165 on November 5, 1979. In 1997, Counci! adopted Ordinance No. 4451 requiring
Palo Alto to maintain a recycling facility within the City boundary. More recently, the Zero
Waste Operational Plan (ZWOP) adopted by Council in 2007, recommends a Recycling Drop-
Off Center with a permanent Household Hazardous Waste (HHW) facility to be developed
locally with further study being required at a later date to determine the specific site location. In
1978, Council approved the original Baylands Master Plan. The Baylands Master Plan and its
1987-88 updates contemplated that much of the refuse disposal area, including the portion where
the recycling center is currently sited, would be filled and eventually converted to pastoral park.
These two separate actions created a location conflict that requires the Recycling Center to be
vacated before the landfill conversion can be completed.
The 1980 Byxbee Park Conversion Plan indicated that the Recycling Center would be eventually
relocated near the Palo Alto Regional Water Quality Control Plant (RWQCP) during an interim
phase of park development and then contemplated it would be removed from the park at
completion of the grading. The Byxbee Park Plan, updated in 1987-88 and in June 1991
identifed a site on the southeast side of the RWQCP for use as a permanent recycling center. A
CMR:457:07 Page 1 of 6
timeline of events relating to the Recycling Center and landfill grading is shown in
Attachment A.
Staff has been exploring interim locations for the Recycling Center and the relocation of the
landfill entrance, scale, tollbooth, and office. In August 2007, staff proposed relocating the
center next to the RWQCP and circulated a Mitigated Negative Declaration for public review-.
This temporary location was objected to by the Baylands Conservation Committee (BCC)
because it is part of dedicated parkland. Attachment B shows the proposed site plan for the
disputed temporary Recycling Center location. The BCC comment letter (Attachment C), was
made in response to the Planning and Transportation Commission (PTC) scheduled review of the
mitigated negative declaration for the relocation. This report summarizes other options for the
interim facility.
DISCUSSION
Staff is requesting direction from Council on how to address the Recycling Center during the
interim period until the landfill is closed. The current facility is the only nearby one-stop
recycling drop-off that accepts styrofoam, blueprints, plastic bags, and aseptic containers (e.g.
milk cartons and juice boxes). Additionally, the current Recycling Center accepts residential
drop-off of used motor oil, oil filters, automobile and household batteries, anti-freeze, computer
monitors, televisions and other video display devices, fluorescent lights, large appliances,
mattresses, electronics, books for reuse, videos for reuse, and Goodwill collection. Lastly,
residents can self haul or drop-off excess recyclables that are eligible to be collected curbside via
the single-s~xeam bins.
The Palo Alto Municipal Code (PAMC) § 5.20.270 requires that Palo Alto maintain a Recycling
Center within the City boundary. The PAMC does not specify the size of the facility or what
materials should be accepted. The current facility is approximately 1.6 acres and as mentioned
above, accepts a wider range of materials than any other neighboring center such as the
Sunnyvale Materials Recovery and Transfer (SMART) Station. The current Recycling Center
also processes recycling material collected at the drop off portion of the Recycling Center.
Some materials are sorted and most of the collected materials are bailed and consolidated for
transportation. This consolidation includes curbside collected hazardous wastes oil, filters, and
household batteries.
However, in order to maintain the timeline for completion of landfill grading to match the intent
of the 1991 Byxbee Landfill Park Master Plan, the current Recycling Center needs to be vacated
by December 2008 so that refuse filling can continue. To meet that deadline, staff identified the
following three scenarios:
1.Shrink and reduce operations at the current Recycling Center location;
2.Close the Recycling Center; or
3.Discontinue Landfill operations and modify the final grading plan.
4.Proceed with current plan for a temporary recycling center
A matrix of these options and their impacts is shown as Attachment D.
CMR:457:07 Page 2 of 6
Option 1: Shrink and Reduce Operations at the Recycling Center
This option would involve the downsizing of the recycling drop-off portion of the Recycling
Center to the far north of the landfill entrance near the entrance gates to the landfill and Byxbee
Park. Staff is recommending this option to Council as it is the only operational choice that does
not require either an interim closure of the Recycling Center or an impact to the schedule of
filling operations at the landfill. There is no longer enough time to permit, design and build a
new equivalent recycling center at an alternate location within Palo Alto. This option would
keep the Recycling Center at roughly the same location, but shrink its size and scope. The
landfill operations would not be impacted because the shnmken site is not planned for furore
landfill filling, although it will need to be vacated and capped to comply with the State closure
permit and Byxbee Park plans.
While the current Recycling Center includes areas for sorting, consolidating and bundling the
materials, these activities are not required to continue a recycling drop off program at the
location. These processes allow for higher revenues from the recycled material such as
cardboard picked up t~om commercial customers and aluminum cans, and provides revenue to
PASCO which helps offset operating expenses. Also, because The Recycling Center bails and
consolidates large amounts of recycled materials, significant transportation costs are eliminated.
Accordingly, any change in recycling revenue could result in additional costs in the contract with
PASCO beginning near the end of 2008.
A reduced-scale Recycling Center will require that some self-hauled materials no longer be
accepted. However, these materials will still be accepted curbside, at the SMART Station or
other nearby drop-off facilities. This may include but not be limited to: large appliances, large
scrap metal, tires, mattresses, computer monitors, Goodwill items, books and videos for re-use.
Drop-off of some of these items may be moved to other parts of the landffil providing that the
landfill operating permit will allow it. Staff will strive to continue to accept recyclable materials
that no other local facilities accept (i.e. aseptic containers, polystyrene, blueprints, and plastic
bags). Attachment E provides a list of materials currently accepted at the Recycling Center.
As part of Option 1, Staff also proposes to relocate the landfill entrance, scale and toll booth and
administration trailer to the area near the former landfill gas co-generation (co-gen) facility. The
relocation procedure will include the removal of the remaining co-gen equipment and the large
earthen berms that served as buffers for that former facility.
Therefore, staff recommends that Council direct staff to make minor revisions to the State-
approved final grading plan for the landfill that softens the steep slopes above the co-gen facility
by extending the fill into that area. In conjunction with that modification, staff also recommends
that Council direct staff to proceed with additional minor grading plan revisions to comply with
recommendations from the 2007 Hargreaves Report. The aforementioned grading plan
revisions, the workplan from CMR 444:07, and the 2007 Hargreaves Report can then be
presented to the Parks and Recreation Commission (PRC) and the Planning and Transportation
Commission (PTC) for consideration as an amendment to the 1991 Byxbee Landfill Park Master
Plan. The amendment would be tentatively scheduled for Council consideration and adoption in
July 2008.
CMR:457:07 Page 3 of 6
Option 2: Close the Recycling Center
This option closes the Recycling Center so that the final Byxbee Landfill Park grades can be
created. This could be either a temporary or permanent closure. As with the other options, a
temporary closure would require a new permanent Recycling Center location to be identified
pursuant to the recommendations laid out in the ZWOP. Further, any closure (either temporary
or permanent) of the Recycling Center will also require a modification of PAMC § 5.20.270.
During this closure, all self-haul materials would be diverted to the SMART Station or other
regional facilities. It is highly likely that some materials such as polystyrene, blueprints plastic
bags, and aseptic containers will no longer be diverted due to the lack of a nearby facility for
drop-off.
Qption 3: Discontinue Landfill operations and modify the final grading plan
This option involves ceasing landfill operations early in order to keep the current level of
Recycling Center services in place until a new Recycling Center can be developed elsewhere.
This option would require a major modification of the 1991 Byxbee Landfill Park Grading Plan
and a major modification of the State-approved grading plan. Landfill capacity would be
affected, and the operations would be discontinued earlier than anticipated. Currently, the last
load of refuse at the landfill is expected in late 2010. Filling cannot be ceased until approval is
obtained from all agencies and an environmental review is performed.
This option could have significant impact on the revenue of the General Fund as it relates to
landfill rent and the amortized rent payment schedule through fiscal year (FY) 2013-14. The
current landfill rent is partially funded by dump fees at the landfill. Closing landfill operations
early will affect these dump fees. Charging refuse customers for that rent could be viewed as
exceeding the cost of its refuse service in violation of Proposition 218 (California Constitution
Articles XIII C and D). In January 2007, Council adopted a new policy on rent charged by the
General Fund to the Refuse Fund on the unopened portions of the landfill. The executed Tolling
Agreement from January 2007 states, "The City Council is in the process of determining what
rental amount should be charged." This as yet undetermined amount may also be affected
because dump fees would no longer be able to be increased to cover the additional rent.
Charging future refuse customers for that back rent may also be viewed as exceeding the cost of
its refuse service in violation of Proposition 218.
This option would keep the current level of service at the Recycling Center for a few- more years.
However, the current Recycling Center is located on historic landfill that must be capped and
closed prior to any long-term use of the property. Therefore, a new permanent Recycling Center
location will still need to be identified per the recommendations laid out in the ZWOP and the
current PAMC requirements.
Qption 4: Proceed with current plan for a temporary_ recycling center
Another alternative to the staff recommendation would be to proceed with the current plan with a
temporary Recycling Center in a disputed location beside the RWQCP. Staff does not
recommend this option due to the high probability that this would result in legal action against
the City. Any such legal action would cause delays that would impact landfill operations and the
closure fimeline. Additionally, the Parks and Recreation Commission formally recommended
against a temporary recycling center on parkland at the Palo Alto Baylands at its meeting on
CMR:457:07 Page 4 of 6
October 23, 2007. Finally, the cost of site preparation and development at this location exceeds
the cost estimates for the shrunken site (Option 1).
RESOURCE IMPACT
The contract with PASCO will end on June 30, 2009, so it is unlikely that current refuse rates
will need to be changed. Staff expects that any additional PASCO contract cost can be absorbed
by the Refuse Fund Rate Stabilization Reserve. Net revenue from the Recycling Center is
known, but PASCO’s costs to operate the current Recycling Center are not. Staff also
anticipates additional costs for hauling of unconsolidated materials to recycling processing
destinations. At the current Recycling Center, low value recyclable materials such as aseptic
containers and polystyrene are consolidated and compacted in volumes large enough that
processors will pick them up for free.
POLICY IMPLICATIONS
Bavlands Master Plan Documents
The Baylands Master Plan developed in 1978 and the 1980 Park Landfill Conversion Plan and
the 1991 revised Byxbee Park Plan provide that when the landfill is closed it will become a
pastoral park. !n the 1980 Byxbee Park Landfill Conversion Plan, the recycling center was to be
relocated near the RWQCP during an interim phase of park development and removed from the
park at completion, with the interim recycling center site converted to a parking lot. The revised
1991 Byxbee Landfill Park Master Plan states that a location for the recycling center may be
provided in Phase IIC of Byxbee Park, and identifies an area between one and two acres in size
adjacent to the Electrical Generation Facility for that purpose.
Natural Environment-Solid and Hazardous Waste Comprehensive Plan
The City’s Comprehensive Plan that was adopted in 1998 contains some ambiguities relating to
long-term planning of solid waste management. The City’s Comprehensive Plan indicates that
after landfill closure, all of the City’s waste will go to the SMART Station. Staff believes that
recyclable materials are not "waste" and therefore would not fall under this Comprehensive Plan
goal. However, recyclable materials are considered waste by the State definition. The following
Comprehensive Plan Policies consistent with a relocated recycling center:
N-34: Reduce the amount of solid waste disposed in the city’s landfill by reducing the
amount of waste generated and promoting the cost-effective reuse of materials that would
otherwise be placed in a landfill.
¯N-53 Continue to develop source separation programs for recyclable solid waste
materials for all waste generators.
¯N-55 Maintain and expand the use of the Recycling Center at the City’s refuse disposal
area.
Palo Alto Municipal Code (5.20.270)
The city will maintain, within the city’s territorial limits, a recycling center that accepts
from residents and non-residents the delivery of recyclable materials.
CMR:457:07 Page 5 of 6
Zero Waste Operational Plan
The ZWOP adopted by Council in 2007, recommends a Recycling Drop-Off Center with
a permanent Household Hazardous Waste ~ facility to be developed locally with
further study being required at a later date to determine the specific site location.
Palo Alto Sustainability Policy
Related sustainability objectives include:
Implement source reduction, reuse, recycling and composting programs that reduce
waste.
Manage hazardous waste in a safe manner with a priority of using recycling and energy
extraction methods first .and landfilling methods last.
ENVIRONMENTAL REVIEW
The recommended option is simply a reduction of existing operations and
categorically exempt from the California Environmental Quality Act (CEQA).
is therefore
ATTACHMENTS
Attachment A:
Attachment B:
Attachment C:
Attachment D:
Attachment E:
Landfill Timeline
Proposed Site Plan for the Disputed Temporary Recycling Center Location
Baylands Conservation Committee Comment Letter
Interim Recycling Center Options MatrLx
List of Materials Currently Accepted at the Recycling Center
PR~PA-P~ED BY:
DEPARTMENT I~_~_~AD:
C!TY MANAGER APPROVAL:
M~a~TTHEW A. RASCHKE
Senior Engineer
GLENN S. ROBERTS
Director of PuNic Works
EMILY ~-’~_4RR!SON
Assistant City Manager
cc: Emily Renzel
CMR:457:07 Page 6 of 6
ATTACHMENT B
ATTACHMENT C
Susan Brandt-Hawley
Paige J. 5wartley
Chauvet House PO Box 1659
Glen Ellen, California 95442
Legal Assistants
Sara Hews
Shannen Jones
September 26, 2007
Chair Karen Holman and Commissioners
Planning and Transportation Commission
City of Palo Alto
by fax and email: (650-329-2154; Planning.Commission@CityofPaloAlto.org)
Mitigated Negative Declaration and Major Site and Design Review
2380 Embarcadero Road; File 07-PLN-00154
Dear Chair Holman and Commissioners:
On behalf of the Baylands Conservation Committee, we ask that you please deny
certification of the Mitigated Negative Declaration and deny approval of Major Site and Design
Review for the landfill alteration and expansion project referenced above.1 The Public
Works/Operations Department proposes to relocate the landfill entrance road, the tollbooth and
scale, administrative offices, and the recycling drop-off centers. The Department also proposes
the "cleating, grubbing, and grading" of 1.4 acres, removing trees, paving the site, and
"ensuring adequate drainage and providing fencing, lighting, landscaping and site security."
(MND, p. 2.) All of this activity is proposed to occur on City parkland, with potentially
significant environmental impacts.
Under the City Charter, any discontinuance of the parkland use would first require a
1 Our statewide practice focuses on citizen enforcement of the California
Environmental Quality Act, and our published cases include Friends of Sierra Madre v. City of
Sierra Madre (2001) 25 Cal.4tu 165 [defeating claimed CEQA exemption] at the California
Supreme Court, and Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4tu
1336 [overtttming inadequate EIR]; Lincoln Place Tenants Assn. and 20th Century
Architectural Alliance v. City of Los Angeles (2005) 140 Cal.App.4th 1391 [enforcing EIR
mitigations for historic buildings]; The Pocket Protectors v. City of Sacramento (2004) 124
Cal.App.4tu 903 [requiring EIR for urban aesthetic impacts]; Architectural Heritage Assn. v.
County of Monterey (2004) 122 Cal.App.4tu 1095 [requiring EIR for proposed demolition of
Old Monterey Jail]; and League for Protection of Oakland’s etc. Historical Resources v. City
of Oakland (1997) 52 Cal.App.4tu 896 [requiring EIR for proposed demolition of unlisted
historic resource], all at the California Court of Appeal.
707.938.3908 ~ 707.576.O198 -" fax 707.576.O175 ," susanbh@econet.org
Letter to Planning and Transportation Commission
September 26, 2007
Page 2 of 9
public vote. The City would also need to prepare an Environmental Impact Report, because the
record contains a fair argument of potentially significant environmental impacts in areas of
land use and aesthetic and biological impacts. We respectfully request that the Commission
therefore require an EIR and then submit the proposed project to a binding public vote.
A. Discontinuance of Park Use Requires a Public Vote
City Charter Article VIII ("Parks") unequivocally states that
All lands owned or controlled by the city which are or will be used for park, playground,
recreation or conservation purposes shall be dedicated for such purposes by ordinance.
No land heretofore or hereafter dedicated for such purposes shall be sold or otherwise
disposed of, nor shall its use be abandoned or discontinued except pursuant to majority
vote of the electorate .... No substantial building, construction, reconstruction or
development upon or with respect to any lands so dedicated shall be made except
pursuant to ordinance subject to referendum.
(Italics added.) The Charter’s mandate is not ambiguous: the City admits that the proposed
relocation site is parkland and admits that it would not be used as parkland for the many years
of the project’s duration. Therefore, the public must be given a vote on the proposal.
1. The Site is Dedicated Parkland. It is undisputed that the proposed relocation
site is dedicated parkland. (Palo Alto Municipal Code § 22.08.020 ["Byxbee Park and the city-
owned Baylands"].) The staff report describes the subject project as a request to "temporarily
relocate the existing landfill facility structures and recycling drop-off center to an area of City
property that is dedicated parkland.. ." (Staff Report, Sept. 26, 2007, p. 2, italics added.) One
of the "key issues" in the staff report is "’Use of Dedicated Parkland," and the report concedes
that "...the proposed site for the relocated facilities is dedicated parkland..." (ld. at p. 4, italics
and underline in original.)
2. Parkland Use Will Be Discontinued~ The City intends to interrupt and
discontinue the site’s present parkland use for a period of years, during which time the City
will use the site for landfill support and recycling rather than as parkland or open space. The
staff report and the MND repeatedly confirm this. For example:
¯"All landfill facilities are to be removed from the site by 2012 and at that time the
area will revert to passive park uses." (Staff Report, p. 2, italics added.)
¯"In order to ensure that the facility is temporary and will return to parkland...this
temporary landfill facility shah be closed and the site shah subsequently be reverted
back to parkland." (Staff Report, p. 2, italics added.)
¯Landscaping must be "planted prior to building final in order to provide sufficient
growth by the time the site reverts back to parkland." (Staff Report, p. 3, italics
Letter to Planning and Transportation Commission
September 26, 2007
Page 3 of 9
added.)
"By 2012 or when the [State]...certifies the landfill closure construction, this
temporary landfill facility shall be closed and the site shall subsequently be reverted
back to parkland." (MND, Attachment A, p. 1, italics added.)
Landscaping must be "planted prior to building final in order to provide sufficient
growth by the time the site reverts back to parkland." (MND, Attachment A, p. 1,
italics added.)
Since the site will "revert back" to parkland after the project is concluded, it will not be
parkland during the project term.
In construing legislation, courts hold that "Where the statute is clear, the ’plain
meaning’ rule applies. The Legislature is presumed to have meant what it said, and the plain
meaning of the language govems .... "(Sutco Construction Company v. Modesto High School
District (1989) 298 Cal.App.3d 1220, 1228.) The plain meaning of"discontinue" is to break
continuity. The dictionary defines "discontinuity" as "lack of continuity; irregularity" or "a
break or gap." (Random House Webster’s College Dictionary (1996), p. 384.) It defines
"discontinue" as "to put an end to; stop; terminate" and "to cease using..." (Ibid.) Here, since
parkland is proposed to be used for landfill operations and recycling for a time, and then to
"revert back" to parkland use in 2012, the parkland use between now and 2012 will have been
"discontinued."
Even if the City argues that the plain meaning of "discontinue" is somehow unclear, the
canons of statutory construction still hold that the City’s plans require a vote. If the plain
meaning is unclear, courts attempt to "determine legislative intent, the first step [of which] is
an examination of the words themselves .... We must construe the statute ’according to the
context and the approved usage of the language; ...’ (Code Civ. Proc., § 16) Effect must be
given to the words according to their usual, ordinary import .... Significance should be given to
every word, phrase, sentence and part of an act in pursuance of the legislative purpose .... "
(Sutco Construction Company, supra, 298 Cal.App.3d 1220, 1228.)
The City Charter requires a vote if the "use" of dedicated parkland is "abandoned or
discontinued." (City Charter, Article V]XI.) These altematives must mean different things. The
only distinction between "discontinued" and "abandoned" is that the former term implies a
temporary condition. If"discontinued" is defined as a permanent thing, it would equate to
"abandonment." Here, the City claims that it does not plan to forever abandon park use, but to
discontinue park use in favor of another use for a period of years. This triggers a public vote.
3. The Charter’s Mandates Cannot Be Ignored. Instead of accepting the "plain
meaning" of the City Charter or relying on canons of statutory construction, to date the City
has ignored the Charter, misconstrued maps and plans, and irrelevantly relied on state laws and
regulations regarding landfill closure. According to the staff report, "[a]lthough the proposed
Letter to Planning and Transportation Commission
September 26, 2007
Page 4 of 9
site for the relocated facilities is dedicated parkland, the City Attorney’s office has determined
that the project would not trigger the voter approval process" because the site allegedly "has
been designated as the preferred site for recycling under the Baylands/Byxbee Park Master
Plan for decades." (Staff Report, p. 4.) This is irrelevant as well as incorrect. Even had the
Master Plan noted a preference to use the subject site for recyling, the Charter still requires a
public vote prior to implementation. And in fact the 1978 Baylands Master Plan map, the
"Byxbee Landfill Park Proposed Plan" from the July 1988 Master Plan, and the "Byxbee
Landfill Park Site Analysis" from the "1991 Byxbee Park Map" do not propose recycling or
any other landfill use on this particular parkland site.
A close look at the maps and plans reveal that the rectangular area to which the City
Attorney appears to refer is within the landfill boundary, across the road from the parkland site
on which this project is currently proposed. Indeed, the City adopted the 1988 map a mere two
years after requiring significant landscaping and irrigation on the subject parkland site in a
1986 permit for the Regional Water Quality Control Plant. The landscaping on the parkland
site, which is between the plant and the landN1, effectively screens the plant from view. If the
City had intended to quickly overturn its own landscaping requirement, surely it would have
merited extensive discussion and a notation on the maps superimposing any potential landfill
expansion onto the landscaped area. Neither of these things occurred.
The staff report also states that "[a]nother basis for allowing the temporary relocation
to proceed without voter approval is that local law cannot legally supersede the City’s
obligation to comply with State laws and regulations applicable to closure of the landfill, once
refuse filling is completed." (Staff Report, p. 4.) This is offpoint. The landfill structures and
recycling center can still be relocated within the landfill lease area, on land that is already
filled. The City has not shown that such an alternative is infeasible, and it should be examined
as part of the EIR that the City must prepare for this proposed project, as explained below. In
the staff report, the City simply states in conclusory fashion that "...the most feasible manner
in which compliance [with closure requirements] can be achieved is to temporarily relocate
certain landfill facilities to the proposed relocation site." (Ibid., italics added.) Finally, even if
relocation somehow turns out to be the only feasible choice, it does not excuse the City from
complying with the mandatory public vote provisions of the City Charter.
4. Unlawful Pattern and Practice. The City has engaged and is engaging in an
unlawfifl pattern and practice of violating City Charter Article VIII. In 2004, the Santa Clara
County Civil Grand Jury investigated a complaint that the City had failed to follow Article VIII
when transferring dedicated parkland to the Palo Alto Unified School District. In 2005, the
Grand Jury concluded that the City had transferred dedicated parkland "by Council Ordinance
instead of by a vote of the electorate as required by the Charter," and recommended that "[t]he
City should adhere to its Charter requiting an affirmative vote by the electorate for any
transfer, disposal, abandonment or discontinuance of use of City parkland. Alternatively, that
provision of the Charter could be modified by a vote of the electorate as prescribed by the
Letter to Planning and Transportation Commission
September 26, 2007
Page 5 of 9
Charter." (2004-2005 Santa Clara County Civil Grand Jury Report, Transfer of Dedicated
Parkland within the City of Palo Alto, April 4, 2005, pp. 1, 6.)
The City Attorney’s May 17, 2005 report to the City Council regarding the Grand Jury’s
findings stated that "[t]he City intends to implement all of the [Grand Jury’s]
recommendations," including the recommendation "involv[ing] compliance with all Charter
provisions concerning the conveyance or cessation of use of parkland." (Report from City
Attorney to City Council RE Response to Grand Jury’s Final Report, Transfer of Dedicated
Parkland within the City of Palo Alto, May 17, 2005, p. 1.) The City’s draft letter to Santa
Clara County Superior Court Presiding Judge Alden E. Danner, responding to the Grand Jury
Report, stated that "[t]he City will follow all Charter requirements for any transfer, disposal,
abandonment or discontinuance of use of City parkland." (Id. at Attachment: Proposed Letter
from Mayor Jim Burch to The Honorable Alden E. Danner, June 2005, p. 3.)
Yet two years later, the City is again poised to violate the exact City Charter provisions
that it agreed to follow in 2005. We respectfully urge the Planning and Transportation
Commission to correct this unlawful pattern and practice, comply with the City Charter, and
submit the proposed project to a public vote.
B. An EIR is Required
California courts "have repeatedly recognized that the EIR is the ’heart of CEQA’" and
the EIR "protects not only the environment but also informed serf-government." (The Pocket
Protectors v. City of Sacramento (2004) 124 Cal.App.4tu 903, 926, citations omitted.) There is
a "low threshold requirement for initial preparation of an EIR [which] reflects a preference for
resolving doubts in favor of environmental review when the question is whether any such
review is warranted." (League for Protection, supra, 52 Cal.App.4t~ 896, 905.) The low
threshold requires an EIR whenever substantial evidence in the record supports a fair argument
that significant impacts may occur, even ifa different conclusion may also be well-supported.
(Friends of "’B’" Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1000-1003.) This
standard markedly differs from the deferential review agencies normally enjoy:
...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.
(Guideline § 15064(f)(1).) Consistently, in Sierra Club v. County of Sonoma (1992) 6
Cal.App.4t~ 1307, the Court held that under the fair argument standard
...the question is one of law, i.e., ’the sufficiency of the evidence to support a fair
argument.’ [Citation.] Under this standard, deference to the agency’s determination is
Letter to Planning and Transportation Commission
September 26, 2007
Page 6 of 9
not appropriate and its decision no to require an EIR can be upheld only when there is
no credible evidence to the contral%
(Id. at 1317-1318, italics added.) CEQA defines substantial evidence to include facts or fact-
based reasonable assumptions or expert opinion of potentially significant impacts. (Pub.
Resources Code § 21080(c).) The record contains substantial evidence of potentially significant
environmental impacts; therefore, as a matter of law, an EIR is required.
1. Inaccurate Environmental Setting. Both the City’s Notice of Intent to adopt the
MND, and the MND itself contain misleading and inaccurate descriptions of the project’s
environmental setting. The CEQA documents must adequately describe the environmental
setting and baseline physical conditions, which would necessarily include the fact that the
project site-is dedicated parkland. (Lighthouse FieM Beach Rescue v. City of Santa Cruz (2005)
131 Cal.App.4th 1170.)
The project location is listed as the "Landfill Site" at 2380 Embarcadero Road, when
instead the location is adjacent City parkland. (Notice of Intent, p. 1.) The project description is
similarly misleading because it fails to inform the public that the site is City parkland when
explaining that the City plans to relocate landfill facility structures and the recycling drop-off
center "to an area of City property between the Water Quality Control Plant (WQCP) and
existing landfill boundary." (MND, p. 2; Notice of Intent, p. 1.) The MND also incorrectly
describes the project site as "adjacent to" parkland instead of being parkland. (MND, p. 2.)
These glaring errors and omissions render the MND inadequate, because the public does not
have the relevant information to make an adequate analysis of project impacts.
2. Potentially Significant Land Use Impacts. Because the MND fails to recognize
that the baseline for considering project impacts is the site’s designation as parkland, it
inescapably fails to analyze the potentially significant impacts of paving over and placing
structures on said parkland. While the staff report at page 4 lists t~ee "key issues," one of
which is "use of dedicated parkland," the MND says nothing about parkland or the City
Charter’s requirements regarding discontinuance of park use. The sum of the MND’s
discussion of land use impacts is that
[t]he landfill facility structures will result in no new impact on the existing land use of
this area. The site [sic] is consistent with planned uses for the site. It is designated as a
Major Institution/Special Facilities site in the Palo Alto 1998-2010 Comprehensive Plan,
and the existing land use is consistent with the Title 18 Zoning Ordinance of the City of
Palo Alto.
(MND, p. 14.) This is both inaccurate and inadequate.
The MND claims "no impact" to the Environmental Checklist question as to whether the
Letter to Planning and Transportation Commission
September 26, 2007
Page 7 of 9
project would "[s]ubstantially adversely change the type or intensity of existing or planned land
use in the area." (Ibid.) The MND fails to acknowledge or discuss whether or how landfill and
recycling activity on current open space and parkland will affect the existing passive park use.
Since the proposed paving and structures are significant changes, CEQA requires a detailed
analysis.
The Checklist also asks whether the project would "[c]onflict with any applicable land
use plan, policy, or regulation of an agency with jurisdiction over the project (including, but
not limited to the general plan, specific plan, local coastal program, or zoning ordinance)
adopted for the purpose of avoiding or mitigating an environmental effect." (’MND, pp. 13-14.)
Again, the MND incorrectly answers "No Impact." (Ibid.) When the Regional Water Quality
Control Plant expanded in 1986, the City required landscaping and automated irrigation as
permit conditions for the work at 2501 Embarcadero, to screen the plant from the future park.
(Permit 86-ARB-29.) In 1986, the City’s Architectural Review Board found that the landscape
mitigations would "minimize the visual impacts" since the facility "will be screened from
neighboring public open space"; further, "all new landscaping [h]as been selected for its
suitability to the baylands environment." (Information Memorandum, Architectural Review
Board, April 3, 1986.) While the irrigation system has not been maintained, the trees planted as
part of that permit have matured over the past 21 years and now screen the plank The currently
proposed project will conflict with the 1986 permit requirements, which do not sunset and
which were "adopted for the purpose of avoiding or mitigating an environmental effect."
(MND, pp. 13-14.) As held in Lincoln Place Tenants Association v. City of Los Angeles, both!
(2005) 130 Cal.App.4t~ !491 and//(September 20, 2007) [citation not yet available],
mitigation measures are not mere expressions of hope, and cannot be eliminated or ignored
without current EIR analysis.
The staff report also lists and briefly analyzes the project’s impact on nine goals and
policies in the Comprehensive Plan, as well as the zoning ordinance and the Byxbee
Park/Baylands Master Plan, but the MND never mentions them. (Staff Report, pp. 4-6.) The
staff report also incorrectly concludes that the project "supports" the "[g]oals, policies and
programs that address open space retention and restoration in the Baylands" because the project
"is a temporary use and will enable restoration of the site for passive park activities after
closure of the landfill." (ld. at 5.) Similarly, the staff report, but not the MND, briefly but
inadequately discusses compliance with the zoning ordinance’s four objectives for Major Site
and Design Review, which this project requires. (Id. at 5-6.) All of this analysis belongs in the
CEQA document, and is inexcusably absent.
The MND’s analysis of land use impacts is inadequate, and an EIR must be prepared
before the City can consider this project.
3. Potentially Significant Aesthetic Impacts. The MND attempts to mitigate the
destruction of 25 Eucalyptus trees, shrubs, and other ground cover, which were planted and
Letter to Planning and Transportation Commission
September 26, 2007
Pa~e 8 of 9
irrigated pursuant to the 1986 permit for the RWQCP permit for the express purpose of
"rninirniz[ing] the visual impacts" of that facility. (MND, p. 4; Information Memorandum,
Architectural Review Board, April 3, 1986.) The MND conclusorily claims that planting a
"tree screen" will "upgrade the existing visual character of the site." (Ibid., italics added.)
There is no analysis to support the claim that destruction of 21 years worth of mature
landscaping, to be replaced by other trees and shrubs, somehow upgrades the site.
Further, Acting Managing Arborist Eric Krebs announced his intention to issue a tree
removal permit based in part on the "nature of the project." (Email from Eric Krebs to Sean
Kennedy re Recycle Center Relocation (Tree Removals), May 10, 2007.) However, Mr. Krebs
was apparently given false information about the project site’s park status, because he wrote:
"[d]ue to the fact that this area will eventually (reportedly in 2012) be designated park land, I
think it is appropriate to wait for the planning stage of Bixby [sic] Park to identify planting
sites for canopy replacement." (Ibid., italics added.) As the staff report concedes, the project
site is already designated parkland; the tree removal permit is based on incorrect information.
The aesthetics analysis never discusses or analyzes the project site’s status as parkland.
The record contains a fair argument that the project may have significant aesthetic
impacts, and an EIR is required.
4. Potentially Significant Biological Impacts. The project site is an important
wildlife corridor between the San Francisco Bay and the Emily Renzel Marsh Area, and
hundreds of animals use it to forage and rest. The MND concedes that the proposed landfill
relocation is "in close proximity to the Palo Alto Baylands Nature Preserve and adjoining tidal
marsh area (Mayfield Slough) home of some special stares plants and wildlife." (Notice of
Intent, p. 2; MND, p. 8.) The MND also concedes that sensitive species of plants and migratory
birds have been identified "in the areas surrounding the site," and that "special status wildlife"
have been found "on site," but claims that "relocation of landfill facility to this site will not
make any significant changes to the existing habitat." (Notice of Intent, p. 2; MND, pp. 8
[Biological Resources], 21 [Mandatory Findings of Significance].) Again, the MND fails to
acknowledge that the project site is dedicated parkland.
How is the destruction of the site’s landscaping not a "significant change" to habitat?
Further, did the biological consultant know the full extent of the proposed project? The letter
report from Wood Biological Consulting is for the "Landfill Access Project...which consists of
temporarily widening an existing access road." (Staff Report, Attachment F, pp. 1, 7.) The
project includes much more than that, and it is unclear whether the consultant’s assessment was
based on incorrect assumptions.
More information is necessary before the MND’s assessment of biological impacts can
be deemed adequate.
Letter to Planning and Transportation Commission
September 26, 2007
Page 9 of 9
5. Potentially Significant Public Services and Recreation Impacts. The MND
incorrectly states that the project "will not impact the City of Palo Alto’s existing public
service provision (including...parks...) to its residents." (MND, p. 17.) The MND does not
acknowledge that the project will pave over and place structures on parkland, removing the
park from public use. The document is flawed and must be revised to include relevant analysis.
Similarly, the MND incorrectly finds no potentially significant recreation impacts, stating that
"[t]he project does not affect in any way the use of existing parks and recreational facilities."
(MND, p. 18, italics added.) This is obviously incorrect, and the analysis must be revised.
6. Cultural Resources Impacts; Geology, Soils and Seismicity Impacts;
Hydrology and Water Quality Impacts. The MND contains numerous inconsistencies and
errors that must be explained before the City can finalize the CEQA review.
The MND states that no cultural resources mitigation measures are required, but
proposed project condition #38 provides typical mitigation for the discovery of archaeological
or human remains found during grading and construction activity. (Staff Report, Attachment A,
#38.) This project requirement should be included in the MND as required mitigation.
The Environmental Checklist asks whether the project would "[r]esult in substantial soil
erosion or the loss of topsoil," and the MND answers "Potentially Significant Unless
Mitigation Incorporated." (MND, p. 10.) However, the MND includes no mitigation measures
for this impact. (Ibid.) The MND is thus inadequate.
Without explanation, the MND checks two different boxes to answer whether the
project would "[p]lace within a 100-year flood hazard area structures which would impede or
redirect flood flows." (MND, p. 12.) This error must be corrected.
We respectfully urge you to require the preparation of an EIR as required by state law
and to submit the proposed project to a public vote as mandated by the City Charter.
Alternatively, we ask you to deny the project. In that event, CEQA recognizes that the
insufficiency of the MND will be irrelevant, and the public vote will be unnecessary.
Thank you for your consideration.
Sincerely,
cc:
Susan Brandt-Hawley
Paige J. Swartley
Gary Baum, Esq.
Steve Emslie, Director of Planning
Zariah Betten
ATTACHMENT E
CITY OF PALO ALTO
Recycling Drop-off Center Materials Accepted
Materials
Mixed Paper
Newspaper
Aluminum & Tin Cans
Glass Bottles & Jars
Plastic Containers - #1 -#7(All containers
MUST have a #1-#7 embedded in a
recycling symbol.)
Plastic Bags
Milk & Juice Cartons
Corrugated Cardboard Boxes
Brown Paper Bags
Magazines
Telephone Books
Scrap Metal
Blueprints
Polystyrene Foam Packing Material
Antifreeze
Motor Oil
Motor Oil Containers(All containers MUST
have a #1-#7 embedded in a recycling
symbol.)
Used Oil Filters
Household Batteries
Auto Batteries
Appliances & Tires
Fluorescent Lights
Palo Alto Non
Residents Residents
X X
X X
X X
X X
X X
X X
X X
X X
X X
X X
X X
X X
X
X
X
X
X X
X
X
X
X
X