RES-10204 Adopting Mitigated Negative Declaration 1485 N. Tustin St.RESOLUTION NO. 10204
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF ORANGE ADOPTING MITIGATED
NEGATIVE DECLARATION NO. 1786-07,
AND APPROVING CONDITIONAL USE PERMIT
NO.2647-07 AND DESIGN REVIEW
COMMITTEE NO.4214-07 TO ALLOW THE
REMODEL OF AN
EXISTING COMMERCIAL STRUCTURE INCLUDING RELATED
SITE IMPROVEMENTS TO CREATE A 52-BAY
SERVICE FACILITY AS AN ANCILLARY USE
TO AN EXISTING TOYOTA AUTOMOTIVE SALES
BUSINESS ON A PARCEL LOCATED AT
1485 NORTH TUSTIN STREET.
APPLICANT: Sauers Construction, Inc.WHEREAS, Conditional Use Permit No. 2647-07
and Design Review Committee No.4214-07 were filed by the applicant in accordance with the
provisions of the City of Orange Municipal Code (OMC) requesting approval to expand
the existing Toyota of Orange business to include a property directly east of the existing
business across Tustin Street by remodeling the existing structure located at 1485 North Tustin Street, for
use as a service facility in conjunction with the established automotive sales business
located at 1400 North Tustin Street;WHEREAS, OMC Section 17.10.030.C
requires the Planning Commission to hear applications of all Conditional Use Permits with the
exception of those requiring City Council or
Zoning Administrator review and approval; and WHEREAS, OMC Section 17.10.080 requires
that the project be reviewed in accordance with California Environmental Quality Act (
CEQA) provisions and the City
of Orange Environmental Review Guidelines; and WHEREAS, OMC Section 17.08.020
establishes the reviewing bodies for various discretionary applications and provides that the
authority rests with the Planning Commission for final determinations on combined applications
involving a Conditional Use Permit, Design
Review and Mitigated Negative Declaration; and WHEREAS, the application for Conditional
Use Permit No. 2647-07 and Design Review Committee No. 4214-07 was processed in
the time and manner prescribed by law; and WHEREAS, on February 14,
2007, the Staff Review Committee reviewed the project including Mitigated Negative
Declaration No. 1786-07 and recommended that the project proceed subject to conditions and
concurred that the proposed project could
not have a significant effect on the environment; and WHEREAS, on March
7, 2007, the Design Review Committee considered the design of the buildings and landscaping
plan associated with the project and recommended
WHEREAS, on May 7, 2007, the Planning Commission conducted a duly advertised
public hearing, at which time interested persons had an opportunity to testify either in support
of or opposition to Conditional Use Permit No. 2647-07 and Design Review Committee
No.4214-07 and at the end of such hearing the Planning Commission approved the
project; and WHEREAS, the City Council has considered the information contained
in Mitigated Negative Declaration No. 1786-07, including any comments received during
the public review period, and has found that the project will not cause significant adverse
impacts upon the environment
or wildlife; and WHEREAS, GVD Commercial Properties, Inc. (Appellant) timely filed
an appeal of the Planning Commission'
s decision; and WHEREAS, the City Council conducted one duly advertised public
hearing on June 12, 2007, to consider the appeal, along with Mitigated Negative
Declaration No. 1786-07,Conditional Use Permit No. 2647-07 and Design Review Committee
No. 4214-07 to allow the remodel of an existing commercial structure including related
site improvements to create a 52-bay service facility as an ancillary use to an
existing Toyota automotive sales business
upon property generally described as follows:PARCEL 1, AS PER MAP FILED IN BOOK 79,
PAGES 16 AND 17 OF PARCEL MAPS, IN THE OFFICE OF
THE COUNTY RECORDER OF ORANGE COUNTY;WHEREAS, the City Council heard
approximately two hours of extensive testimony,reports and comments from
both the Appellant and Applicant; and WHEREAS, the Appellant is an
adjacent commercial property owner which contended that an Environmental Impact Report was required for
the project and contended, among other things, that the project would have a significant impact
on global warming, on local and regional air quality, traffic, parking, and noise and
that the Planning Commission failed to exercise independent judgment and Appellant's
due process rights were violated; and WHEREAS, the Appellant was the only member of the
public that appeared at the City Council
meeting to oppose the project; and WHEREAS, based on a review of the administrative
record as a whole the City Council finds as is morespecifically described in Section I - Findings
below, that there is not substantial evidence in the record to support a finding that the
project may have a
significant impact on the environment.NOW, THEREFORE, BE IT RESOLVED that the City
Council of the City of Orange adopts Mitigated Negative Declaration No.
1786-07, and approves Conditional Use Permit No. 2647-07 and Design Review Committee No.
4214-07 to allow the remodel of an existing commercial structure including
related site improvements to create a 52-bay service facility as an ancillary use to
an existing
Toyota
SECTION 1 - FINDINGS A.
Mitigated Negative Declaration A
mitigated negative declaration is appropriate for a project when the initial study has identified
potentially significant effects on the environment but revisions made to the project would
avoid the effects or mitigate the effects to a point where clearly no significant on the environment
would occur and there is no substantial evidence in the record that the project may
have a significant effect on the environment.I.
Parking Appellant'
s legal counsel contended that parking problems existed from the Applicant's employees
parking on Van Owen and on its neighboring property, but no evidence was brought forth
to support that contention, not even a declaration of the property owner. In contrast, City staff
presented evidence that neither its code enforcement or police parking enforcement had received
any calls over the last year concerning traffic and parking on Van Owen.Notwithstanding
this, a condition was added which requires the Applicant to adopt an enforceable
administrative policy that requires its employees to park on site. In addition, the project
requires the Applicant to provide all parking required by the OMC for the proposed use and
to correct an existing parking deficiency of approximately 23 parking spaces on the automobile
dealership lot.2.
Traffic Impacts on Van Owen Appellant'
s legal counsel contended that the project would cause significant traffic impacts on Van
Owen, but again no evidence was brought forth to support that contention. In contrast, the record
contained evidence that Van Owen has a capacity of ten thousand vehicles a day and that
using the worst case scenario post-project, traffic on Van Owen would only be 2,628
vehicles a day or about 25% of its capacity. Van Owen operates at a Level of Service (LOS) A
and the traffic analysis concluded it will continue to operate at LOS A post project.
3. Noise Studv
Appellant contended a noise study was not done for the project, but the record includes a clear
and lengthy description of a noise study and in addition, includes 10 noise mitigation measures.
4. Cumulative Traffic Impacts
The Appellant submitted a critical review of the MND's traffic analysis from Craig
Neustaedter (TEP Report). The TEP Report contained several errors, including the conclusion
that a recently approved Arco gas station expansion project on Katella Avenue would "add
approximately 2400 vehicle trips per day" and thus, that a cumulative traffic impact study
acknowledging those trips was required. The evidence established conclusively that the 2400
trips related to the total number of trips to and from the expanded Arco gas station; that an
Arco gas station already existed on the site and as such, many of the estimated 2400 post-
expansion trips already existed; that the total number of trips to the expanded Arco gas station
was actually estimated at between 1200 and 2400 per day; and that gas stations, including this
3
one, were not destination points, i.e., users of the Arco gas station were typically comprised of
traffic that would be passing by the gas station in route to a different destination. In any event,
even assuming that the Arco project did generate additional traffic trips in the area, they were
accounted for by the traffic study's I % per year traffic growth rate that was applied to every
turning movement at each ofthe study intersections.
5. Land Use Categorv to Calculate Traffic Generation
The TEP analysis criticizes the traffic impact study for using the category of Automobile Care
Center in determining the project's trip generation rates and concludes that the category of new
car sales should be used instead. Of the two categories, substantial evidence was received that
that Automobile Care Center describes the project much more accurately than new car sales.
The project site is already used for storage of new car inventory and no expansion of new car
sales was proposed for the project nor was any evidence submitted that the project would even
increase new car sales.
6. Local Emissions
Appellant's attorney leveled several criticisms of the assumptions in the air quality analysis but
provided no expert testimony to support his critique. One such criticism was that the
assumption that construction vehicles would operate only seven hours a day understated the
number of hours construction vehicles would actually operate. Appellant's criticism was based
solely on the arguments of Appellant's attorney without any supporting qualified expert or
other substantial evidence. However, substantial evidence was submitted by the environmental
consultant that the assumptions in the air quality analysis were appropriate which evidence
included restrictions on hours of operation imposed by the Orange Municipal Code.
Appellant's attorney voiced a concern about the localized emission from the project's estimated
one thousand and forty additional daily trips, but provided no substantial evidence that the
project would exceed the applicable SCAQMD significance thresholds. It was pointed out that
48,000 daily vehicle trips currently pass by the Appellant's property on Katella Avenue alone.
The air quality analysis presented substantial evidence that there was no significant impact on
localized emissions thresholds as established by SCAQMD.
7. Regional Emissions/Global Warming
Appellant's legal counsel contended that off-site emissions related to delivery/haul truck
trips and construction worker commute trips were not accounted for. However, the MND
clearly states, "regional emissions included localized
emissions."Appellant claims that no analysis was done of global warming and that the project would
have a significant impact on global warming. Initially, Jones & Stokes, the
environmental consultant for the project did analyze the project's impact on global warming in response
to this contention and noted that the most likely source of greenhouse gas emissions (which
many scientists believe causes global warming) from the project would be from vehicle
miles traveled. The environmental consultant noted that the project would provide a new
service repair facility and in all likelihood, if anything, reduce the number of vehicle miles
traveled
based on the fact that people need to get their cars serviced somewhere and this facility would
offer another choice. It is common knowledge that convenience is a significant factor in where
people get their cars serviced and it would follow that another alternative for service repair
would reduce, rather than increase, the number of miles people will drive to have their cars
serviced. Other than state that the Jones & Stokes analysis was faulty, Appellant did not
produce any expert opinion, facts or fact-based assumptions to support its contention that
this conclusion was faulty or that the project would otherwise cause greenhouse gases to
increase.There are currently no significance thresholds or criteria for establishing what constitutes
a significant effect on global warming and trigger the need for an environmental impact
report.However, the air quality analysis concluded that the project would not have a significant
effect on mass regional emissions finding that they would be below the SCAQMD's
daily significance thresholds for new development. Based on this, it is simply not credible that
this project, which does not have a significant effect on mass regional emissions and may
actually reduce greenhouse gases from automobiles, would have a significant effect on
global
emiSSIOns.8. Credibilitv of
Appellant Appellant contended that the project should be denied because of an unfounded allegation
that a noise study required of the Toyota of Orange dealership when it first opened 20 years ago
had not been completed. Such unreasonable contentions by Appellant, along with Appellant'
s shotgun and shifting presentation that was peppered with misstated facts, allegations of
studies not done that were clearly done, often completely unsupported contentions, and
overreaching,evidenced a willingness to contrive and mislead which undermined the credibility of
the
presentation.B. Conditional Use
Permit 1. A Conditional Use Permit shall be granted upon sound principles of land use and
in response to services required by the
community.The Land Use Element of the City's General Plan encourages a
well-balanced community be provided one which provides a broad range of housing
and business opportunities as well as recreational, institutional and cultural activities that
enhance the overall living environment. The proposal to expand the existing
Toyota Automotive Sales and Related Service Activities type of business by remodeling
an existing commercial structure that is currently unoccupied will provide an
enhanced business opportunity within this portion of the City's Redevelopment Project
Area. The proposal is consistent with the City's
General Plan.2. A Conditional Use Permit shall not be granted if it will cause
deterioration of bordering land uses or create special problems for the area in which it
is located.The proposed use will occur entirely within an enclosed space within
an existing structure without any openings related to the actual service repair areas
facing towards the east, where an existing multiple-family residential
development exists, minimizing the potential for problems associated with sound from the service
activities that are being conducted indoors. Further, the primary business location will
not
the more westerly located property with all its associated customer interaction occurring
at that site, with only employees accessing the subject site. The proposal is consistent
with the City's General Plan.
3. A Conditional Use Permit must be considered in relationship to its effect on the
community or neighborhood plan for the area in which it is located.
The existing neighborhood consists of an urban environment and the proposal is
consistent with the General Plan designation of General Commercial with an existing
0.24 FAR, where a maximum of 0.50 FAR is allowed. Further, this designation allows
for a wide range of retail and service commercial types of uses recognizing the ready
access that these areas have to major circulation routes. Parking has been distributed
between the primary business location and the ancillary portion, with a greater number
provided where customers will arrive to either make a purchase or obtain repairs,
minimizing their interface with the multiple-family residential development located
to the east or the other surrounding commercial businesses because parking and
access will be controlled. The proposal is consistent with the City's General
Plan.4. A Conditional Use Permit, if granted, shall be made subject to those
conditions necessary to preserve the general welfare, not the individual welfare of any
particular
applicant.Conditions have been included to ensure that the use of the subject site
remains ancillary to the existing Automotive Sales and Related Service Activity use to
preserve the general welfare of the immediately surrounding businesses, and to the
residential neighborhood to the east. Operational characteristics are also conditioned to
minimize impacts. The proposal is consistent with the City's General
Plan.C. Design
Review The project design upholds community aesthetics through the use of an
internally consistent, integrated design theme and is consistent with all adopted specific plans,
applicable design standards and their required findings in that the project to remodel the existing
building includes upgrades to landscaping that compliments the overall project design; new
signage compatible with the building design and colors; and satisfies the objectives of the Tustin
Street Design Standards for Automotive
Establishments.SECTION 2 - ENVIRONMENTAL REVIEW
The Initial Study for Mitigated Negative Declaration No. 1786-07 was prepared
in conjunction with Conditional Use Permit No. 2647-07 and Design Review
Committee No.4214-07. After examining the Initial Study and Mitigated Negative
Declaration, the City Council finds that the proposed project could not have a significant effect
on the environment.There is no evidence before the City of Orange that the proposed project
will have any potentially adverse environmental impacts, either individually or
cumulatively, on wildlife resources or the habitat upon which
the
SECTION 3- CONDITIONS OF APPROVAL
BE IT FURTHER RESOLVED that the following conditions are imposed with
approval:
General
I. Within two (2) days of final approval of this project, the applicant shall deliver to the
Planning Division either a cashiers check payable to the County Clerk in an amount
required to fulfill the fee requirements of Fish and Game Code Section 711.4( d)(2) and
the County administrative fee, or an approved no effect finding form from Fish and
Game along with the County administrative fee, to enable the City to file the Notice of
Determination required under Public Resources Code 21152 114 Cal Code Regulations
15075. The amount of the fee shall be based on the current fee structure as shown in
Section 711.4( d) for both the Fish and Game fee and the County Administrative fee.
2. All construction shall conform in substance and be maintained in general conformance
with plans labeled Exhibit A (date stamped May 7, 2007, and made part of the file for
Appeal 0518-07), and any supplemental exhibits presented to and as approved by
the City
Council.3. The applicant agrees to indemnify, hold harmless, and defend the City, its
officers,agents and employees from any and all liability or claims that may be brought
against the City arising out of its approval of this permits, save and except that caused by
the City's active
negligence.4. The applicant shall comply with all federal, state, and local laws, including all
City regulations. Violation of any of those laws in connection with the use will be cause
for revocation of this
permit.5. Prior to occupancy of the remodeled structure, all parking lot and
landscaping improvements shall be completed according to the approved plans and to
the satisfaction of the Community Development Director, or
designee.6. All the conditions listed in City Council Resolution No. 10204 shall be reprinted on
the cover sheet or first page of construction plans, including any grading
plans.Mitie:ation
Measures 7. The Mitigation Measures as outlined in Chapter 4 - Mitigation Monitoring Report, of
Mitigated Negative Declaration No. 1786-07, noted as Nos. 8.1, 11.1 thru 11.10 shall
be incorporated into the project per the established time frame and
implementation monitoring schedule, and compliance shall be verified by the noted
responsible monitoring
agency.
Demolition
8. The contractors shall employ measures to reduce the amount of construction-
generated waste by developing a specific construction waste reduction plan prior to
construction.The plan shall be coordinated with the recycling coordinator of the City of Orange
and shall be approved by the Community Development Director prior to the issuance of
a grading and/or demolition
permits.9. Efforts to reduce construction and demolition waste shall include consideration
of deconstruction, rather than wrecking demolition, and shall include efforts to
recycle,sell, or otherwise salvage usable building
materials.Buildine:
Division 10. The applicant/contractor shall comply with all applicable AQMD standards
and requirements during construction activity. Evidence of AQMD compliance shall
be provided to the Building Division prior to the issuance of building
permits.II. Developer shall pay all applicable fees prior to issuance of building permits such
as:City sewer connection
fee Orange County Sanitation District connection
fee Transportation System Improvement fee (
TSIP)Police Facility
fee Fire Facility
fee Community Services
Department 12. Provide note for linear root barriers for trees planted within five feet of buildings
or
hardscape.13. Provide City required Landscape & Irrigation Inspection Notes on
plans.Desie:n Review
Committee 14. The applicant may store inventory overstock at the site in either tandem rows of
two-car or
three-car deep.15. The applicant is prohibited from using a public address system on
the subject site.16. The applicant shall submit a line-of-sight detail for
the installation of any mechanical equipment on the roof to be verified at the time of building
plan-check to ensure that it is
not visible from the public right-of-way.17. The applicant shall provide palms as noted
that have between an
eight
18. The applicant shall submit final landscape and irrigation plans to the Community
Services Department of the City for review and approval.
Fire Department
19. An approved fire sprinkler system must be installed throughout the building per O.M.C.
15.32.070 Section 1001.10. The system shall be designed per N.F.P.A. 13, U.B.c.
Chapter 9, U.B.C. Standards 9-1 and 9-2. The sprinkler system
requires
24-hour superviSIOn.20. The fire department connection shall not be affixed to the building.
The fire department connection must be located at least 40 feet away from the building, within 40
feet of a fire hydrant and on the address side of the building, unless otherwise
determined by the Fire Department. The hydrant shall be located on the same side of the street
as the
fire department connection.21. Provide on-site fire hydrant(s) and mains capable of supplying
the required fire flow.The hydrant model and on-site location shall be approved
by the Fire Department and have a three (3) foot minimum clearance around the
circumference of the fire hydrant.The on-site hydrants shall not be controlled by the control
valve (P.I.V.) for the sprinkler system so that water flow to the hydrants
is not impaired should the sprinkler system be shut down for any reason. (U.F. C. Sections 903
and 100 I. 7) The fire department connection shall not pressurize a hydrant.
Plans must
be submitted to the Building Department.22. The number and location of hydrants shall
be
determined by Fire and Water Departments.23. Prior to issuance of a fire service (detector
check) the required water supplies for hydrants and fire sprinkler systems shall be determined
and the water supplies shall
be approved by the Fire Department.24. Every building shall be accessible to fire department
apparatus by an access roadway of not less than 20 feet of unobstructed width having a minimum
of 13 feet 6 inches of vertical clearance. The access roadway shall be extended
to within 150 feet of all portions of the exterior walls of the first story of any building.
U.
F.C. Sections 901 and 902.25. The installation of gates, traffic calming methods and
speed humps or bumps shall be reviewed by
the Fire Department prior to installation.26. All streets less than 36 feet wide shall be marked and
signed as a fire lane. The marking and signs shall be provided and installed
per the City of
Orange
27. The fire department access roadway shall be an all-weather driving surface capable
of supporting the imposed loads of fire apparatus, 60,000 pounds. The access shall
be designed for a three-axle vehicle. U.F .C. Section 902.2.
2.2.28. The fire department access roadway shall be provided with adequate turning
radius for fire department apparatus. (A 45 foot outside and 25 foot inside radius.) U.F.
C. Section 902.2.
2.3.29. All mechanical gates shall be provided with a key-operated override
switches per City of Orange Ordinance 9-84. In the case of power failure the gate shall
fail in the open position and shall be operable with
out any special tools.30. A Fire Department approved key box for fire department access shall
be installed on the address side of the building near the main entrance or fire control room at
a height of 5 feet above finished grade. The Knox box shall contain keys to
gain access to each building. U.F.
C. Section 902.4.31. All roof coverings installed on any new or existing building or
structure, shall be fire retardant U.L. listed Class A. (O.M.
C. 15.36.
030)Plan nine: Division 32. Use of the subject site located 1485 North Tustin Street is limited
to being ancillary to the primary Automotive Sales and Related Service Activities
business located at
1400 North Tustin Street.33. Direct customer access is restricted at the subject site. Only
employees of the primary Automotive Sales and Related Service Activities business located
at 1400 North Tustin Street shall access and/or conduct business on the subject site
located at
1485 North Tustin Street.34. All lighting on the premises shall be directed, controlled, screened or
shaded in such a manner as to not shine directly
onto any
surrounding properties.City Council 35. Implement and enforce a written administrative policy
requiring employees to park their vehicles on the Toyota of Orange property and not on Van
Owen and submit such policy to the Community Development Director for approval prior
to issuance
of any building permits.36. No auto bodywork or painting that would
constitute AUTOMOBILE REPAIR, MAJOR as defined by the Orange Municipal
Code,
Public Works/Water Ouality
37. Prior to the issuance of any permit, the applicant shall submit a Project Water Quality
Management Plan (WQMP) for review and approval to the Public Works Department
that:
a. Addresses Site Design Best Management Practices (BMPs), as applicable, such
as minimizing impervious areas, maximizing permeability, minimizing directly
connected impervious areas, creating reduced or zero discharge areas, and
conserving natural areas. The front landscape area should be utilized as much as
possible to treat the runoff prior to discharging into the public storm drain
system.
b. Incorporates the applicable Routine Source and Structural Control BMPs as
defined in the Drainage Area Management Plan (DAMP).
c. Incorporates Treatment Control BMPs as defined in the DAMP.
d. Describes the long-term operation and maintenance requirements for
structural and Treatment Control
BMPs.e. Identifies the entity that will be responsible for long-
term operation,maintenance, repair and or replacement of the structural and
Treatment
Control BMPs.f. Describes the mechanism for funding the long-term
operation and maintenance of all structural and
Treatment Control BMPs.38. Prior to the issuance of certificates for use of occupancy,
the applicant shall demonstrate the following to the
Public Works Department:a. That all structural BMPs described in the Project WQMP
have been constfllcted and installed in conformance with the approved
plans and specifications,b. That applicant is prepared to implement all non-
structural BMPs described
in the Project WQMP,c. That an adequate number of copies of the project'
s approved final Project WQMP are available
for the future occupiers,39. Prior to the issuance of certificates for use of occupancy the
applicant shall submit an Operation and Maintenance (O&M) Plan for review and approval
for all structural and treatment control BMPs to the Public Works Department. The O&
M Plan
shall include the following:a. A description of the structural and treatment control
BMPs identified in the Project's WQMP that are to be inspected and maintained
as specified in
the approved project WQMP.b. Specific maintenance
activities to be performed.c. The employees responsible for maintaining the BMPs
and their training that qualifies them to operate
and maintain the BMPs.d. The operating and maintenance schedules contained in
the
approved
e. A copy of the forms to be used in conducting maintenance and inspection
activities.
f. Record keeping requirements (forms to be kept for 5 years).
g. A copy of the form to be submitted annually by the project owner to the Public
Works Department that certifies that the projects structural and treatment BMPs
are being inspected and maintained in accordance with the project's WQMP.
h. Deposits with the Public Works Department a Cash Bond in the amount equal to
the annual cost of maintenance and inspection of all of the structural and
treatment control BMPs identified in the approved Project WQMP.
Code Provisions
The following Code provisions are applicable to this project and are included for information
only. This is not a complete list and other Code provisions may apply to the project:
Prior to issuance of building permits, the applicant shall pay all applicable development fees,
including but not limited to: City sewer connection, Orange County Sanitation District
Connection Fee, Transportation System Improvement Program, Fire Facility, Police Facility,
Sanitation District, School District, and Eastern Foothill Transportation Corridor, as
required.
Expiration-If not utilized, this project approval expires two years from the approval date.
An extension of time may be permitted upon a written request, if received before the
expiration
deadline.ADOPTED this 26th day of June,
2007
ATTEST:d/ d^--<- [{~Mary
E. M, City Clerk, Ci I,
MARY E. MURPHY, City Clerk of the City of Orange, California, do hereby certify that
the foregoing Resolution was duly and regularly adopted by the City Council of the City of Orange
at a regular meeting thereof held on the 26th day of June, 2007, by the following vote:AYES:
NOES:
ABSENT:
ABSTAIN:
COUNCILMEMBERS:
Cavecche, Dumitru, Bilodeau COUNCILMEMBERS:
None COUNCILMEMBERS:
Smith COUNCILMEMBERS:
Murphy tv.
Mary
E.12