City sued over Cheese Factory approval

The long vacant Cheese Factory on Sonoma Plaza will remain empty for a while longer while a lawsuit is resolved over the project’s approval by the Sonoma City Council. Filed on Monday by Attorney Rachel Mansfield-Howlett on behalf of the citizen association Protect Our Plaza, the “Petition for Writ of Mandamus” challenges “the discretionary decision made by the Sonoma City Council to vest a 15-year old use permit and overturn the Planning Commission’s careful deliberation that the old permit had long been abandoned and had expired….”

In addition, the suit alleges, “The City Council also erred in reinterpreting the 2004 use permit to allow multi-tenant restaurant uses to be built instead of the development of a retail shopping center as proposed by the 2004 permit.” That, says Howlett, violates CEQA (California Environmental Quality Act) because it is, in effect, too great a change in use from that approved in 2004. The City granted a categorical exemption from CEQA, but the lawsuit claims it does not qualify.

The Cheese Factory has been vacant for over a year while the owner, The Viviani Trust, has proposed and withdrawn various development proposals. As noted in the petition, “Resurrecting an old permit to allow new uses in a sensitive setting presented unusual circumstances that perplexed both the Planning Commission and City Council members. Mayor Amy Harrington stated that a much more straightforward approach to resurrecting the 2004 use permit, was to present a new application to planning so that the City could be apprised of what is being proposed; trying to “shoehorn” multi-tenant food businesses into a 15 year-old permit for use identified as retail does not work. The Mayor stated she would love to see an Oxbow type development in this location but that cannot be achieved through the resurrection of the 2004 permit. Planning Commission members stated similarly — any multi-tenant restaurant use cannot be said to be encompassed via the 2004 permit, whether it had vested or not. Council Member Rachel Hundley concluded that you can’t have a 10-year lapse without doing anything and have a valid permit.”

The 3-2 vote to approve the vesting of the old permit, with Harrington and Hundley dissenting, appeared to resolve matters, but this recent lawsuit has brought the issue back before the courts to decide. Don’t hold your breath.

The full text of the lawsuit appears below:

Rachel Mansfield-Howlett/SBN 248809
PROVENCHER & FLATT, LLP
823 Sonoma Ave.
Santa Rosa, CA 95404
707.284.2387   Fax: 707.284.2378
Rhowlettlaw@gmail.com

Attorney for Petitioner

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SONOMA

Protect Our Plaza, an unincorporated association;   Petitioner, v.   City of Sonoma and City Council of the City of Sonoma;   Respondents,   _____________________________/   Comerica Bank & Trust N.A., Trustee of the Lawrence P. Viviani and Jacquelyn R. Viviani Trust FBO Nina T. Respicio UAD 02/22/1983 and the Lawrence P. Viviani and Jacquelyn R. Viviani Trust FBO Maria Ann Viviani UAF 02/22/1983 (“The Viviani Trust”); Nina T. Respicio; Maria Viviani; Does 1-10;   Real Parties in Interest.   _____________________________/

Case No.     Petition for Writ of Mandamus     California Environmental Quality Act [CEQA]

Petitioner alleges:

Introduction

1. Protect Our Plaza, an unincorporated association, brings this mandamus action in the public interest to enforce the California Environmental Quality Act (CEQA) regarding the expansion of the Cheese Factory operations on the historic Sonoma Plaza National Historic District, also designated as a National Historic Landmark, without conducting environmental review.

Protect Our Plaza challenges the discretionary decision made by the Sonoma City Council to vest a 15-year old use permit and overturn the Planning Commission’s careful deliberation and determination that the old permit had long been abandoned and had expired, pursuant to Chapter 19.56.040 of the Sonoma Municipal Code, and that a new project application would be necessary.

The City Council also erred in reinterpreting the 2004 use permit to allow multi-tenant restaurant uses to be built instead of the development of a retail shopping center as proposed by the 2004 permit. The testimony of Planning Commissioners and City Council Members confirm that the interpretation of the permit to allow restaurant uses has the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, thus constituting a project under CEQA that requires environmental review be conducted. Related environmental impacts of this change of use include direct, indirect, and cumulative impacts to, inter alia: parking and traffic on the congested National Historic Plaza Landmark and surrounding streets, pedestrian safety, impacts to historic resources, and greenhouse gases.

Resurrecting an old permit to allow new uses in a sensitive setting presented unusual circumstances that perplexed both the Planning Commission and City Council members. Mayor Amy Harrington stated that a much more straightforward approach to resurrecting the 2004 use permit, was to present a new application to planning so that the City could be apprised of what is being proposed; trying to “shoehorn” multi-tenant food businesses into a 15 year-old permit for use identified as retail does not work. The Mayor stated she would love to see an Oxbow type development in this location but that cannot be achieved through the resurrection of the 2004 permit. Planning Commission members stated similarly — any multi-tenant restaurant use cannot be said to be encompassed via the 2004 permit, whether it had vested or not. Council Member Rachel Hundley concluded that you can’t have a 10-year lapse without doing anything and have a valid permit.

The City Council’s findings and later actions are also inconsistent and unlawful. The City Council resolution adopting the project claimed the City’s actions relative to the 2004 Use Permit were ministerial and did not constitute a project under CEQA. After the City Council’s final hearing on the matter, the City adopted a Notice of Exemption for a categorical exemption under CEQA Guideline 15301, never considered in the extensive testimony before the Planning Commission and City Council. Since categorical exemptions are only applicable to discretionary projects subject to CEQA, the City’s action adopting the categorical exemption nullifies their prior claims that their action was ministerial and not a project under CEQA.

While there is no requirement under CEQA for an agency to provide notice or hold a hearing before adopting a categorical exemption, the undeniable result is that the City has not provided any rationale or bases for the adoption of the claimed categorical exemption — the City did not state how the project fits within the scope of the exemption or consider whether exceptions apply. Furthermore, since there was no opportunity to be heard, Protect Our Plaza was relieved from its exhaustion requirement. Providing notice and a hearing would have allowed citizens to put the City on notice of the legal deficiencies of its actions.

The project does not qualify for a categorical exemption for several reasons. The project exceeds the scope of the claimed exemption for an Existing Facility exemption under CEQA Guidelines section 15031 because the area in which the project is located is environmentally sensitive and the project poses greater than “negligible or no expansion” of use, as defined by the exemption. Furthermore,  exceptions to the exemption apply, under CEQA Guidelines sections 15300.2 (a) location within a sensitive resource, (b) cumulative impacts of successive projects of the same type in the same place are significant over time (c) significant environmental effects due to unusual circumstances, inter alia, site-specific and cumulative impacts relating to traffic, parking, cultural and historic resources, and pedestrian safety, among other impacts supported by evidence in the administrative record; and (f) direct and indirect impacts to historic resources.

Since the project is outside the scope of the claimed exemption, the fair argument standard applies to the issue of whether an EIR must be prepared. As a matter of law “an EIR is required ‘whenever it can be fairly argued on the basis of substantial evidence that [a] project may have significant environmental impact.’ [citation].” (Friends of the San Mateo Gardens v. San Mateo Community College District (2016) 1 Cal. 5th 937, 957, 959 “Gardens I”; Pub. Resources Code §§ 21082.2(a), 21100, 21151; Guidelines, §15064(f)(1); No Oil v. City of Los Angeles (1974) 13 Cal.3d 68, at 75; Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 111-112.) “May” means a reasonable possibility. (League for Protection of Oakland’s Architectural Resources v. City of Oakland (1997) 52 Cal.App.4th 896, 904-905; Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, at 309.)

Protect Our Plaza, thus respectfully asks for this Court’s peremptory writ to set aside the Council’s decision and order the City to prepare an EIR for the Cheese Factory expansion.

 

Jurisdiction

2. This Court has jurisdiction under Public Resources Code section 21168 and CCP section 1094.5. The parties and site are located in the County of Sonoma.

Parties

3. Petitioner, Protect Our Plaza, is an unincorporated association formed in the public interest in 2018. Protect Our Plaza’s purpose is to protect the historic nature and character of the Sonoma Plaza. Members of Protect Our Plaza include community residents and concerned citizens who enjoy and appreciate the Plaza’s eminently important historical resources. Protect Our Plaza brings this petition on behalf of all others similarly situated that are too numerous to be named and brought before this Court as petitioners. Protect Our Plaza objected to the project and the City’s actions regarding vesting and exhausted administrative remedies. Since the City of Sonoma adopted a categorical exemption after the last hearing on the project and did not conduct a hearing on the exemption or provide any notice of its intention to adopt a categorical exemption, Protect Our Plaza had no legal duty to exhaust remedies on this issue.
4. Respondents, City of Sonoma and the City Council of Sonoma (collectively, the “City”) is the governmental body that approved the action that would make way for the Cheese Factory expansion and adopted the categorical exemption under CEQA.
5. Real parties in interest, Comerica Bank & Trust N.A., Trustee of the Lawrence P. Viviani and Jacquelyn R. Viviani Trust FBO Nina T. Respicio UAD 02/22/1983; the Lawrence P. Viviani and Jacquelyn R. Viviani Trust FBO Maria Ann Viviani UAF 02/22/1983 (“The Viviani Trust”); Nina T. Respicio; and Maria Viviani (collectively, the “Trust”) are the applicants and recipients of the approval as named in the Notice of Exemption
6. Does 1 to 10 are fictitiously named real parties in interest whose true names and capacities are currently unknown to Protect Our Plaza. If and when their true names and capacities are known, Protect Our Plaza will amend this petition to assert them. If any individual is deemed not an indispensable party, Protect Our Plaza will consider dismissing them from the litigation.
7. The paragraphs below refer to and rely on information in documents relating to this action, all of which will be filed with this Court as part of the record of proceedings and are here incorporated by reference.

General Allegations

8. The Cheese Factory is located at 2 West Spain Street and is a designated historic resource eligible for listing on the California Register of Historic Places; the Cheese Factory is located on the Sonoma Plaza National Historic District which is also designated as a National Historic The Plaza includes these iconic National Landmarks: Bear Flag Monument, Blue Wing Inn, Mission San Francisco Solano de Sonoma, Presidio of Sonoma (Sonoma Barracks), and the Swiss Hotel. The National Historic Landmarks program is the highest level of designation for historic and cultural resources. It is reserved for buildings, sites, structures, objects, and districts that demonstrate exceptional value, quality, and significance in illustrating the heritage of the United States.
9. In 2004, the Planning Commission approved a use permit with conditions of approval to convert the use of the Cheese Factory building to retail use and subdivide the building into nine tenant spaces for a multi-tenant retail center. The May 2004 City staff report confirms the intent of the permit was to “devote the entire building to retail use …” Based on staff’s calculations the operation would result in a deficit of 9 parking spaces.
10. In 2014-2015 and 2018, the Viviani Trust applied for and received discretionary use permits to expand the operations of the Cheese Factory that were not based upon the 2004 use permit. The 2014/2015 project application was never acted upon and expired. The 2018 project application entailed the adoption of a mitigated negative declaration and was appealed to the Council due to unaddressed impacts to historic resources, among other things, but the appeal was not calendared to be heard for over a year.
11. In November of 2018, during the pendency of the appeal of the 2018 project, the City brought the 2004 permit to the Trust’s attention. Shortly, thereafter, the Trust advanced a new theory claiming that the Trust had vested rights to proceed with another project at the same location under the 2004 permit. The Trust asked the Planning Commission to make a determination as to whether the 2004 permit had expired or was still valid.
12. The Planning Commission considered the matter at the February 21, 2019 and 25, 2019 public hearings. Planning Commissioners objected to the unusual nature of resurrecting a 15 year-old permit while another project was also pending on appeal with the City at the same location. Commissioners also objected to the failure of the Trust to divulge that it had already been working with a developer well known for advancing Oxbow type multi-tenant restaurant developments, after having repeatedly asked what type of restaurant uses the Trust had planned, and had been told by the Trust and its representatives that there were no current plans.
13. In February 2019, the Planning Commission adopted Resolution #3-2019, applying Chapter 19.56 of the Sonoma Municipal Code, relative to the abandonment and expiration of a use permit, and determined that the 2004 use permit had expired before a building permit related to the creation of multiple tenant spaces to establish a commercial shopping center had issued, and making six findings: (1) the applicant did not submit timely building permit applications to establish multiple tenant spaces before the use expired in May of 2005;  (2) the permits were not related to the work authorized by the use permit to create spaces for multiple tenants as a commercial retail shopping center;  (3) the applicant has not applied for or received any permits or approvals for improvements as shown on the conceptual plans in 2004;  (4) the applicant has not established more than an original use, the Cheese Factory retail and deli use;  (5) the applicant has not created the main structural elements of a retail shopping center with links to the Plaza and streets to the common parking areas; and (6) the building permits have only demonstrated improvements and expansion to the existing space and have not created capacity with respect to the occupancy of individual tenant spaces.
14. In March 2019, the Viviani Trust appealed the Planning Commission’s findings to the City Council, claiming that the permit had not expired.
15. In June 2019, the Trust withdrew the 2018 project application.
16. In June and August, 2019 the Council held public hearing hearings to consider the Trust’s appeal. In August 2019, counsel for Protect Our Plaza submitted an extensive letter requesting the Council uphold the Planning Commission’s determination regarding the abandonment and expiration of the 2004 permit and informing the Council that their counsel had used the wrong criteria to assess the validity of the old permit; evidence of a single tenant’s improvements did not provide evidence of the intention to build out a multi-tenant retail use, which was a central premise of the 2004 permit. And even if the permit was considered valid, the project would vest as allowing the expansion of retail uses, consistent with the stated intention of the 2004 permit. Protect Our Plaza also laid out the reasons why the City’s proposed action was a discretionary decision subject to CEQA, not a ministerial action as proposed by the Council, and urged the Council to study the environmental effects of expanded restaurant uses, not contemplated by the 2004 permit. Considering the sensitive setting of the project that includes the National Historic Plaza Landmark and the Sonoma Barracks, and due to conceded impacts relative to parking and traffic on the chronically congested Plaza, as well as pedestrian safety and greenhouse gases impacts, environmental review was required to be conducted.

Mayor Harrington and Council Member Hundley, like the Planning Commissioners before them, stated that the use authorized by the 2004 permit was for the expansion of retail use, not restaurant use, and pressed the Trust for specifics about what kinds of restaurant uses would be proposed. They reminded the Trust that the 2004 permit resulted in a deficit of parking places on a now greatly congested Plaza and the new intensified uses would result in greater impacts. Mayor Harrington and Council Member Hundley urged the Trust to relinquish their efforts to resurrect the 2004 permit and put forward a clear project application that could be fairly reviewed. Further, no seats inside the Cheese Factory building had ever been approved, therefore, to adopt a certain number of seats, as the Council proposed, would exceed the scope of the 2004 permit and constitute a discretionary decision to approve an expanded use. When asked by the Council what the Trust thought the revival of the permit would entitle them to do, counsel for the Trust proclaimed that it was their understanding that they would be allowed to develop “food, deli, restaurant, you name it” under the revived permit.

Protect Our Plaza pointed out that the City’s findings claiming that — its decision was not a project under CEQA, and even if it were considered to be a project, “no impacts have been identified that have not already been analyzed”— was nonsensical since no environmental review had ever been conducted for the expansion of the Cheese Factory under the 2004 permit. In 2004, the permit was supposedly deemed exempt from environmental review even though no Notice of Exemption was ever filed and no document named a categorical exemption accompanied any of the staff reports or the final resolution. Circumstances have clearly changed in the 15-year time frame; traffic, parking, circulation, and pedestrian problems have all intensified in the interim period.

Protect our Plaza explained that pursuant to CEQA, all phases of a project must be considered as the “whole” action; redefining the 2004 permit outside of its original parameters is the first step in allowing multiple projects to proceed and therefore it must be accompanied by environmental review; and a fair argument of impacts has been established requiring preparation of an EIR.

17. The Council approved the project via resolution on August 19, 2019, reversing the Planning Commission’s decision; finding that the 2004 Use Permit had vested; that the decision was a ministerial action not subject to CEQA; and setting parameters on the nature of the project, including the number of seats allowed for restaurant uses.
18. Thereafter, on August 26, 2019, the City filed a Notice of Exemption (NOE) claiming that the City’s action was ministerial and not a project under CEQA while also filing a categorical exemption under CEQA Guidelines section 15301 applicable to discretionary projects subject to CEQA. The City did not provide notice or an opportunity to be heard regarding their intention to adopt a categorical exemption, therefore citizens had no duty to exhaust administrative remedies related to the categorical exemption.
19. The categorical exemption was unlawfully adopted for the following reasons: the project exceeds the scope of the exemption because the area in which the project is located is environmentally sensitive and the project poses greater than “negligible or no expansion” of use, as defined by the exemption. And exceptions to the exemption apply, under CEQA Guidelines sections 12 (a) location within a sensitive resource; (b) cumulative impacts of successive projects of the same type in the same place are significant over time; (c) significant environmental effects due to unusual circumstances, inter alia, site-specific and cumulative impacts relating to traffic, parking, cultural and historic resources, pedestrian safety, and greenhouse gases, among other impacts supported by evidence in the administrative record; and (f) direct and indirect impacts to historic resources.
20. This action is timely filed within the statutory 35 days from the date of the filing of the NOE.
21. Protect Our Plaza has served a copy of this Petition on the Attorney General.
22. Protect Our Plaza has no adequate remedy at law. Absent the relief prayed for in this Petition, the project will proceed with significant irreparable and irreversible environmental impacts to the Sonoma environment and residents. The City has the ability to correct its violations of law but has failed and refused to do so.

Violations of the California Environmental Quality Act

23. Petitioner incorporates all previous paragraphs as if fully set forth.
24. The City abused its discretion and failed to act in the manner required by law in approving the Cheese Factory expansion project. According to proof following certification of the administrative record of proceedings:
25. The City unlawfully adopted a project as ministerial when the record shows that the City’s actions were discretionary and subject to CEQA;
26. The City unlawfully claimed their actions did not constitute a project under CEQA where the record shows the City’s action relative to the 2004 Use Permit was discretionary and has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, which constitutes a project under CEQA;
27. The City failed to consider the ‘whole’ action and unlawfully engaged in ‘piecemealing’ environmental review when it allowed development to go forward under the 2004 Use Permit, which failed to consider the environmental impacts of the foreseeable expansion of the Cheese Factory;
28. The City unlawfully approved a project under CEQA categorical exemption section 15301, for Existing Facilities, when the project exceeds the scope of the exemption because the area in which the project is located is environmentally sensitive and the project poses greater than “negligible or no expansion” of use, as defined by the exemption.
29. The City unlawfully approved a project outside the scope of the claimed exemption and failed to conduct environmental review when the record contains substantial evidence of a fair argument of potentially significant impacts such that an EIR is required to be prepared due to, inter alia: site-specific and cumulative impacts relating to traffic, parking, cultural and historic resources, and greenhouse gasses, among other impacts supported by evidence in the administrative record;
30. The City unlawfully approved a project under a categorical exemption when exceptions to the exemption apply, under CEQA Guidelines sections 12 (a) location within a sensitive resource, (b) cumulative impacts of successive projects of the same type in the same place are significant over time (c) significant environmental effects due to unusual circumstances, inter alia, site-specific and cumulative impacts relating to traffic, parking, cultural and historic resources, among other impacts supported by evidence in the administrative record; and (f) direct and indirect impacts to historic resources;
31. The City’s findings and determinations are not supported by substantial evidence and the City failed to make findings that the project fit within the scope of the claimed categorical exemption and no exceptions apply.

WHEREFORE, Protect Our Plaza prays:

1. That the Court issue a peremptory writ of mandate ordering the City to set aside and void their approval relating to the 2004 Use Permit for the Cheese Factory and to refrain from further consideration of the project until it fully complies with CEQA by preparing an EIR that fully considers the project’s direct, indirect, and cumulatively significant impacts and proposes mitigation measures and alternatives to the project that substantially lessen those impacts;
2. That the Court enjoin the City and real parties in interest and their employees and agents from all construction and pre-construction activities relating to the implementation of the 2004 Use Permit while this petition is pending;
3. For Protect Our Plaza’s costs and attorney fees pursuant to Code of Civil Procedure section 1021.5; and
4. For other and further relief as the Court finds proper.

September 28, 2019                      PROVENCHER & FLATT, LLP

___________________________________

Rachel Mansfield-Howlett

Attorney for Petitioner, Protect Our Plaza