I am forwarding an email I sent to the Santa Monica City Council and Planning Commission Members concerning a development proposed in our neighborhood. For more than a year, my neighbors and I have voiced our opposition to the project because of its many troubling aspects (mass, density, lack of conformity, health and safety, and traffic). Our neighborhood will be appealing the approval of this project on April 22nd before the Planning Commission. Because city staff has deemed this project ministerial (or conforming), we are not able to voice our opposition on some of the most concerning aspects of this project as they stand outside of the purview for approval. Therefore, I see the press as my only opportunity to air my concerns. The public should be informed on how city staff has treated its constituents. I welcome the opportunity to discuss this project further with you. This email to the city represents one of several I intend to write before the appeal hearing, and I will forward all to you for your consideration. Email me or call if you care to discuss this further.
Dear City Council & Planning Commission Members,
My name is Rachel Kelley and I am writing you regarding the proposed development referred to as 2919 Lincoln Blvd./802 Ashland Ave. which is scheduled for an appeal hearing before the Planning Commission on April 22nd. My husband and I are 20-year Santa Monica homeowners and the 70′ rear yard lot line of our property shares a portion of the 120′ eastern boundary of the property on which the planned 10-unit apartment complex is proposed to be built. Our house is situated directly downwind of the proposed project and, due to the hillside at this location, there are nearly constant (often strong) ocean breezes blowing in our direction.
Since March 17th, 2014 when this project first appeared before the ARB for review, a group of neighbors have been speaking out against its approval because of numerous safety and non-compliant zoning issues that we feel have not been adequately responded to by the Planning Department as well as other city departments.
Today, specifically, I want to once again inform city staff of the presence of translite (asbestos) shingles littered about the subject property on the soil surface and just below. It appears that at some time in the (distant) past, someone dumped construction debris on the property and shallowly covered it with dirt. Time and weather have slowly revealed some of the trash over the years. These shingles are especially dangerous because they are deteriorating and friable. (Please see attachment ‘Asbestos_litter’).
Although I have repeatedly reported the presence of hazardous waste on the project site at the ARB meetings, my concerns have been ignored or minimized by city staff. Last spring, assistant planner Rachel Dimond said that any “issues” such as this would be “handled” during the inspection phase once the project was approved!
It is apparent to me that city staff are not taking my concerns seriously. The 2919 Lincoln Blvd./802 Ashland Ave. proposed development is designated as a “Preferred Permitted” project, and the Planning Department maintains that the project is ministerial due to its size and scope, and that since their claim is that it conforms to code, it stands outside of CEQA review citing exemptions from sections 15268 and 15061(b)(3) of the CEQA guidelines. However, the University of California CEQA Handbook states the following in Section 2.1.1 -Project Definition:
Defining the Project
CEQA applies to all “discretionary projects.” The term discretionary refers to situations in which a governmental agency can exercise its judgment in deciding whether and how to approve or carry out a project. The term project refers to the whole of an action that has the potential, directly or ultimately, to result in a physical change to the environment (CEQA Guidelines Section 15378). This includes all phases of a project that are reasonably foreseeable, and all related projects that are directly linked to the project.
For the University of California, typical projects that could have a significant effect on the environment include capital construction projects, LRDPs, leases, acquisition of property, substantial changes in the use of facilities, and series of actions such as seismic renovation or asbestos removal. Real estate transactions such as leases and acquisitions of property may be considered projects that could have a significant effect on the environment. The proposed location for the project is also essential as it is frequently the site of a project that determines the type, intensity and extent of the environmental impacts. [emph. added].
Moreover, land use attorney John Murdock in a May 30, 2014 letter addressed to the ARB speaks to air quality issues and CEQA requirements:
“….This letter is presented on behalf of Rachel Kelley in furtherance of the reasons and the evidence previously provided by her and other residents in opposition to this project, which has improperly been given an exemption from CEQA review and therefore cannot be approved in any city discretionary action until CEQA has been satisfied by way of a Negative Declaration, Mitigated Negative Declaration, or full EIR. Which one of those choices will be proper depends on an analysis which has not yet been done because staff has determined the project is exempt. The grounds for the exemption are somewhat of a moving target, which is a red flag telling you this is an unusual case and not a proper one for any of the stated grounds.
Since in this case no environmental review under CEQA was undertaken, due to initial staff reliance on a categorical exemption under State Guidelines Section 15332, the lower threshold standard was whether Petitioner presented evidence supporting a fair argument that there may be adverse impacts in need of review and mitigation. See, Azusa Land Reclamation Co v. Main San Gabriel Basin Watermaster (2d Dist. 1997) 52 Cal. App 4th 1165, 1202.
However, staff apparently abandoned this exemption when it was pointed out that it does not apply, due to the limitation in subd.(d), which reads as follows:
15332. IN-FiLL DEVELOPMENT PROJECTS: Class 32 consists of projects characterized as in-fill development meeting the conditions described in this section.
(d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality.
(14 Cal. Code Regs. 15332(d); emph. supplied).
Further, the standard of review here must also take into account the prohibition embodied in State CEQA Guideline 15300,2(c), adopted in reliance on the Supreme Court’s decision in Wildlife Alive v. Chickering (1976) 18 Cal. 3d L90,1 and other cases cited by the Agency, providing that the party opposing the exemption need
only show a “reasonable possibility” for significant effects:
[c) Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.
[14 CaL Code Regs., L5300.2[c); emph. added).
…..As we see fairly often in CEQA cases, city staff doesn’t always get it right
and the Boards, Commission, and Councils who make the decisions to approve or deny
a project cannot simply rubber-stamp what staff presents to them. It is equally
clear in the present case, where there was no attempt at mitigating the acknow-
ledged impacts, that it would be error for the Board to rely upon the cited categorical exemption.
Section 15061[b)[3), also apparently cited (more recently) by city staff is the so-called “common sense” exemption, i.e., no CEQA review is required when it is so obvious under anyone’s reading of common sense there will be no impacts from a project. However, it cannot be used as an excuse for an exemption here because it does not meet the criterion of that section, to wit, it only applies “Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment”. [emph. added). Here there is most certainly more than a “possibility” of a significant effect on the environment….
…State law commands that no discretionary approvals can be given by any city for
a project that does not have proper CEQA review. This project does not have proper CEQA review, it has a claimed exemption that does not fit the facts on the ground. Hence, we respectfully submit that the proper course of action for this Board is to deny any approval whatsoever and hold the matter over until city staff has conducted the proper review and presented it to you again with the application for approval.”
(Please see attachment 3-Letter).
Last Spring I observed from my backyard fence that many of the visible asbestos shingles were no longer present on the soil surface. Later that day, I saw a few piles of shingles stacked on a concrete gutter behind the former Ozar Brothers Tire Store that fronts on Lincoln Blvd and shares a boundary line at the 802 portion of the property. That was the first time I observed asbestos in that location, and it seemed obvious to me that they had been collected from the hill and stashed there. (Please see attachment ‘Asbestos_pile’).
Because of the dismissive attitude I experienced from the Planning Department, in August 2014 I reported the asbestos to the AQMD, and based on what I described, Inspector John Anderson came out to my address. He made a finding of hazardous waste in the form of translite asbestos shingles based on observations made from my rear yard and the property gate at Ashland Ave. He told me to report to the AQMD any further action of removal or commencing of construction as his findings absolutely required a hazardous waste abatement.
The EPA establishes National Emission Standards for Hazardous Air Pollutants (NESHAP) whereby regulated asbestos-containing material (RACM) means (a) Friable asbestos material. No one in the Santa Monica Planning Department can possibly know the quantity or volume of RACM present below the soil surface behind my house without a proper environmental review. To minimize the reported presence of a known and federally regulated carcinogen is an untenable position for city staff to take. The fragile condition of the visible asbestos on the hillside indicates a high probability of finer particles dispersed in the soil. Common sense and the law require nothing less than a proper investigation by the appropriate authorities. Regarding the proposed project at 2919 Lincoln/802 Ashland, the casual attitude Santa Monica Planning Department has demonstrated regarding public health and safety is unconscionable.
Before the flush of spring growth on the lot, I noticed that some of the remaining “uncollected” asbestos shingles were no longer visible, suggesting another “pass” at removing them had been made. However, I have eyewitnesses, photographs, and the report by the AQMD inspector not to mention federal and state law that says that the proposed project 2919 Lincoln Blvd/802 Ashland cannot be approved in any city discretionary action until CEQA has been satisfied by way of a Negative Declaration, Mitigated Negative Declaration, or full EIR. The health and safety of our neighborhood demands that the city act lawfully and appropriately.
Thank you for your attention,