Council Agenda - City of Burbank

Tuesday, October 12, 2004

Agenda Item - 7


 

 

 

DATE: October 12, 2004
TO: Mary J. Alvord, City Manager
FROM:

Susan M. Georgino, Community Development Director

via Art Bashmakian, Assistant Community Development Director/City Planner

by Michael D. Forbes, Senior Planner

SUBJECT:

Comment Letter on the Airport Authority�s Mitigated Negative Declaration for the Airport Development Agreement and Related Actions


PURPOSE:

 

The purpose of this meeting is for the City Council to provide input regarding the City�s comment letter on the Mitigated Negative Declaration (�MND�) prepared by the Burbank-Glendale-Pasadena Airport Authority (�Authority�) for the proposed development agreement between the Authority and the City of Burbank (�City�).  Staff will prepare a comment letter to the Authority regarding the MND, and seeks direction from Council regarding the letter and authorization to send the comment letter to the Authority.  This meeting also provides the City Council with the ability to become familiar with the MND at the earliest possible point in the process and provide feedback about the document before it is approved by the Authority.  When the Council considers the MND at the time that it considers the proposed agreement and related actions, the Council will have already had the opportunity to provide input on the document.

 

The public is welcome and encouraged to provide comments to the City Council regarding the MND for the Council�s consideration.  However, it is important to note that the City is not the lead agency for this MND, meaning that the City did not prepare the document, will not approve the document, and is not in a position to accept comments regarding the document.  As such, comments provided at this meeting or to the City in general, whether verbal or written, cannot be considered official comments on the MND.  The City will not forward comments submitted to the City to the Authority.  The City Council will be required to consider the final approved document before making a decision on the development agreement and related actions.  However, at that time the comment period will have ended and the document will have already been approved by the Authority.  All persons wishing to submit official comments regarding the MND must do so directly to the Authority by or before October 18, 2004.  Comments must be submitted in writing to:

 

                                    Dan Feger, P.E.

                                    Deputy Executive Director

                                    Burbank-Glendale-Pasadena Airport Authority

                                    2627 Hollywood Way

                                    Burbank, California  91505

 

The intent of this meeting is to discuss the environmental document only and not to discuss the merits of the development agreement itself or any of the actions related thereto.  Questions about the development agreement will not be answered at this meeting.  City staff and the Authority�s environmental consultant will provide a brief description of the development agreement and related actions and a summary of the MND and its analysis and findings. The development agreement and related actions are described in detail in the project description of the environmental document attached hereto and are not discussed in this report.

 

The Council will not make any decision at this meeting regarding the environmental document or the development agreement itself.  The Authority will hold its own public hearing on Monday, October 25, 2004 to consider adoption of the MND.  The Planning Board and City Council will both hold public hearings later this year to consider the development agreement and related project approvals.

 

DISCUSSION:

 

Lead vs. Responsible Agency

On September 23, 2004, the Authority released an initial study and notice of intent to adopt an MND for the proposed development agreement and related actions (attached as Exhibit A) pursuant to the California Environmental Quality Act (CEQA).  As the public agency primarily responsible for carrying out the projects included within the agreement, the Authority is acting as the lead agency responsible for preparing and approving the environmental document.  Section 15051(a) of the State CEQA Guidelines provides:

 

If the project will be carried out by a public agency, that agency shall be the lead agency even if the project would be located within the jurisdiction of another public agency.

 

The Airport is located within the jurisdiction of other public agencies, the cities of Burbank and Los Angeles.  However, because the Authority is the public entity that will ultimately carry out the project, CEQA dictates that it serve as the lead agency and conduct the environmental review.  Although the Authority is serving as lead agency, the City is also a public agency with the responsibility of approving the development agreement and related actions.  Any public agency other than the lead agency that has discretionary approval authority over a proposed project is considered a �responsible agency� under CEQA.  As such, the City is acting as a responsible agency.  The role and responsibilities of a responsible agency are discussed further below.

 

It is important to note that this situation is very different from the City�s usual role with environmental documents.  For example, the Planning Board has hosted public comment meetings for the Draft Environmental Impact Reports (EIRs) for the Burbank Media Center/Platt and Home Depot projects.  Typically, as with these two projects, the City is the lead agency responsible for preparing the Negative Declaration, Mitigated Negative Declaration, or EIR for a proposed project.  This is because only public agencies are responsible for implementing CEQA, and typically project applicants are private parties.  Because the City was the lead agency for the Platt and Home Depot EIRs, the Planning Board comment meetings were used as an opportunity for the public to provide official comments to the City regarding the EIRs.  Although comments are often required to be submitted in writing, City staff and the City�s environmental consultant carefully documented all verbal comments and responded to them in the Final EIRs along with the received written comments.  As the lead agency, the City was responsible for responding to all comments and ultimately deciding whether or not to approve the environmental documents.

 

In this case, however, the City is not responsible for preparing or approving the document, or responding to comments regarding the document.[1]  As a responsible agency, the City itself must submit comments to the lead agency along with other agencies and members of the public.  The City cannot accept comments on behalf of the lead agency or respond to submitted comments.  All comments must be submitted directly to the Authority as the lead agency.  Similarly, the City is not in a position to provide a forum for, or facilitate the submittal of, comments to the lead agency.  As stated above, the purpose of this meeting is to provide the Council with an opportunity to provide comments to the Authority on the proposed MND.  The public forum provides an opportunity for the public to give input to the Council members for their consideration.  Again, any comments submitted by the public will not be considered official comments and will not be forwarded to the Authority, unless the Council directs staff to include any specific comments in the City�s own comment letter.

 

Role of Responsible Agency

Section 15096 of the State CEQA Guidelines (attached as Exhibit B) identifies the role of a responsible agency in the CEQA process.[2]  Because a responsible agency does not prepare its own environmental document, it must rely upon the lead agency�s environmental analysis and make its own determination regarding the adequacy of the document.  Generally, the responsible agency�s responsibilities are as follows:

  • Consult with lead agency: The lead agency must consult with any responsible agencies during the preparation of the environmental document.  The responsible agency is charged with assisting the lead agency in determining what type of environmental document is appropriate (Negative Declaration, MND, or EIR) and preparing a document that adequately identifies the possible environmental impacts of a project such that the responsible agency may rely upon its analysis.  Consultation by a responsible agency may include attending meetings with lead agency staff to discuss the scope and content of the environmental document.  City staff met on several occasions with Authority staff and their environmental consultant to discuss the scope and content of the proposed MND.

  • Comment on document: A responsible agency submits comments to the lead agency regarding the proposed document.  A responsible agency�s comments are limited to those aspects of the project over which the agency has discretionary approval authority.  Based upon input from the Planning Board and City Council, staff intends to submit a comment letter to the authority regarding the proposed MND.  As part of its comments, a responsible agency may identify additional environmental impacts that were not identified in the document, and may suggest mitigation measures that it deems appropriate to address those impacts.  The responsible agency is limited to identifying impacts and related mitigation measures for those aspects of the project that are under its jurisdiction.

  • Determine adequacy of document: The responsible agency must make a determination regarding the adequacy of the environmental document in evaluating the possible environmental impacts of the project.  If the agency�s comments are sufficiently addressed by the lead agency in the final document and the document is deemed adequate, the responsible agency must rely upon the document when making its own decisions regarding the project.  If the responsible agency�s comments are not adequately addressed by the lead agency and the responsible agency determines that the document is inadequate, the responsible agency generally must pursue an immediate legal challenge to the document or waive all claims regarding adequacy of the document.  Aside from legal challenge, there are several options available to the responsible agency, as discussed in the attached excerpt from the CEQA Guidelines; however these other options are applicable under very limited circumstances.  For example, one option available to a responsible agency is the preparation of a subsequent environmental document, but this option only applies in very specific situations as outlined in Section 15162 of the CEQA Guidelines (Exhibit C).

  • Consider document and impacts: Before making any decision on the proposed project, the responsible agency must consider the environmental impacts of the project, just as it would consider the impacts of any project for which it is the lead agency.  Similar to a lead agency, a responsible agency may require changes to a project in order to avoid or mitigate environmental impacts and may disapprove a project in order to avoid an environmental impact that would have resulted from the project (CEQA Guidelines Sections 15041(b) and 15042).  However, the responsible agency is limited to changing or disapproving a project based only upon impacts that would result from those portions of the project over which the agency has jurisdiction.

Planning Board Consideration

The Planning Board held a public comment meeting on the proposed MND on October 4, 2004 (draft minutes attached as Exhibit D).  The Board provided a variety of comments about the document, some of which staff recommends be incorporated into the City�s comment letter as appropriate.  The Board�s comments are summarized below.  Staff�s response or comment is shown in italics after each Board comment.

  • In the project description, what is meant by no �development� of a terminal?  Does this term refer only to actual construction of a terminal, or does it include the study, planning, and application stages of the process?  The project description should contain additional details on this matter.

The answer to this question is the subject of ongoing negotiations for the proposed development agreement, but this issue is important to clarify.  Staff recommends that this issue be included in the comment letter.  Staff notes that CEQA requires analysis only of physical actions that could result in an impact on the environment.  Planning for a terminal and most related actions prior to the actual start of construction would not necessarily impact the environment.

  • The MND indicates that off-Airport rental car companies may move from their current locations into the proposed consolidated rental car center on the A-1 property.  Additional information should be provided about which rental car agencies are possible candidates, where their current facilities are located, and how many cars they would be moving from their current locations.  When these rental car companies vacate their current off-Airport facilities, there would be some subsequent use made of those sites.  As such, it may also be necessary to study the impacts of these subsequent projects that would indirectly result from this project.

Staff agrees that this issue should be addressed in the MND and recommends that this issue be included in the comment letter.

  • The air quality analysis assumes the use of diesel powered shuttle buses which results in adverse air quality impacts.  An appropriate mitigation measure would be to require the use of compressed natural gas (CNG) shuttle buses to reduce the air quality impacts.

Mitigation is required only when a potentially significant environmental impact is identified.  Although the use of CNG buses could decrease the air quality impacts resulting from the proposed project, the impacts have been identified by the Authority as less than significant, and mitigation would not be required.

  • A Metrolink commuter rail station is located next to the Airport in proximity to the A-1 site.  The traffic analysis should analyze how this can be used as an opportunity to reduce vehicle trips to the Airport.

Staff agrees that this issue should be addressed in the MND and recommends that the issue be included in the comment letter.  However, staff notes that no significant traffic impacts were identified by the Authority, and as such no mitigation would be required.

  • The draft development agreement is not yet available.  However, it should be ensured that all �projects� (as that term is used by CEQA) that are authorized by the proposed development agreement are disclosed and analyzed in the MND.

Staff agrees that this concern should be addressed in the MND and recommends that the issue be included in the comment letter.

  • The document should study the economic effects of 1) reduced competition in the market for Airport parking by the Authority�s acquisition of the A-1 site, and 2) the removal of the purchased portion of the A-1 site from the property tax rolls due to ownership by a public agency.

As noted above, CEQA requires analysis only of actions that could have an impact on the physical environment.  CEQA provides that analysis of economic impacts, including those related to taxes, should not be included in an environmental document except to the extent that those impacts could lead to physical environmental impacts.  This issue may be appropriate to discuss when the development agreement and related approvals are considered, but it is not an issue that is necessarily related to the environmental impact analysis in the MND.

  • Comments have been heard from the public that an EIR should be prepared for this project.  However, if you look at the proposed project and the relatively small amount of actual development that would occur, the resulting impacts are not significant and there is no information to support the need for an EIR.

Staff concurs with this assessment and does not believe that an EIR is warranted for the proposed development agreement and related actions.

 

The Board asked additional questions about the proposed project and MND that were addressed by the Authority staff and their consultant at the meeting.  The answers provided by the Authority are shown in italics.

  • Would the extension of Taxiway D increase nighttime flights at the Airport?

  • No, the extension of Taxiway D would not increase nighttime flights or increase the capacity of the Airport in any way.  The Airport�s capacity is determined by the number and configuration of the runways, and further by the number of passenger gates in the case of commercial airline traffic.

  • Would the project include an increase in the number of parking spaces for general aviation aircraft?

  • No, no additional space would be provided for general aviation aircraft.

  • The MND identifies only temporary environmental impacts during construction.  Are there no long-term operational impacts that would result from the proposed project?

Correct, there are no environmental impacts identified in the MND other than short-term temporary impacts related to construction activities.

  • Is the purchase of the A-1 property an inducement for the Authority to retain the existing terminal building for a longer period of time before seeking to build a new terminal on the B-6 site?

Yes, the Authority�s investment in the A-1 would be an incentive to keep the terminal at its current location.  However, the Authority anticipates that the existing terminal will continue to operate for a considerable period of time.  The Authority is unable at this time to predict its future needs for a passenger terminal.

 

In addition to the above comments and questions, several Board members asked about the issue of �piecemealing,� or whether the proposed MND should analyze additional projects or actions that might occur during the term of the agreement or projects or actions that could potentially occur after the end of the proposed development agreement.  CEQA provides that an environmental document must analyze the entirety of a proposed project and that a project may not be broken into smaller pieces and analyzed in separate environmental documents for the purpose of minimizing environmental impacts.

 

However, CEQA only requires that an environmental document study those actions that are �reasonably foreseeable,� or can be reasonably expected or anticipated to occur.  CEQA does not require environmental analysis of actions that are not planned to occur or cannot be foreseen, and does not require analysis of other actions that may occur in the future but are unrelated to the project at hand.  In the case of the proposed development agreement, the MND is required to analyze only those actions that are expressly permitted by the agreement and the related approvals and are planned to occur.  Although the agreement would not preclude the Authority from seeking approval for projects other than those listed in the MND project description, no such projects are planned or expected to occur.  Because there are no known projects to analyze, the MND is not required to include speculation about what the impacts may be if some project were proposed.  If the Authority wishes to seek approval of any projects not explicitly approved by the agreement, it would be required to conduct its own environmental analysis under CEQA at that time.  Although the agreement is proposed to be in place for seven years, with the prohibition on a new or expanded terminal being effective for ten years, it is not known at this time what if any actions will be taken by the City or the Authority at the end of the seven and ten year periods.  As such, there are no actions or projects to be analyzed.

 

Further, CEQA requires that an environmental document analyze only physical actions that may result is some change to the environment.  Some Planning Board members inquired about the cooperation between the City and Authority in preparing the proposed agreement, and the idea of the two agencies working together to seek nighttime noise relief, and why these concepts were not addressed in the MND.  These aspects of the agreement, although important to the agreement itself, are not physical projects and would not in and of themselves result in any physical changes to the environment.  The proposed MND must look at all projects and actions from the proposed agreement and related approvals that may cause an impact on the environment.  It is not necessarily required to examine every aspect of the proposed agreement.

 

Next Steps in CEQA Process

The public comment period for the MND will end on October 18, 2004.  Based upon direction from the City Council, staff will prepare the City�s comment letter and send it to the Authority by or before the October 18 deadline.  The Authority intends to hold a public hearing on October 25, 2004 to consider adoption of the MND.  At that time, the Authority and its consultant will have reviewed the comments submitted during the public comment period and will provide responses to those comments or will have modified the document in response to comments as appropriate.  Once approved by the Authority, the Planning Board and City Council will rely upon the document in its consideration of the project, or if the approved document is determined by the City to be inadequate, the City could take appropriate alternative action as provided in the CEQA Guidelines.

 

RECOMMENDATION:

 

Staff recommends that the City Council provide direction to staff regarding comments or concerns to be included in the City�s comment letter and authorize staff to prepare the letter accordingly and forward it to the Authority.

 

 

LIST OF EXHIBITS:

 

Exhibit A          Proposed Mitigated Negative Declaration

 

Exhibit B          State CEQA Guidelines Section 15096 (role of responsible agency)

 

Exhibit C          State CEQA Guidelines Section 15162 (circumstances required for preparation of subsequent environmental document)

 

Exhibit D          Draft excerpt of minutes of Planning Board meeting of October 4, 2004 (not yet approved by Planning Board)


 


[1] Staff notes that CEQA does not require a lead agency to respond in writing to any written or verbal comments for an MND.  Responses are required only for an EIR.  However, the Authority�s past practice has been to provide written responses to all comments received, and they have indicated their intent to do the same with this MND.

[2] This section of the CEQA Guidelines discusses the role of a responsible agency when a Negative Declaration is prepared and when an EIR is prepared.  Discussion about roles and responsibilities specific to an EIR are not applicable in this case because an EIR was not prepared.

 

 

 

 

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