Upland Residents Hit Back Against Amazon Facility Approval With Writ Of Mandate

A writ of mandamus is being prepared by an attorney working on behalf of a recently-formed citizens group to force the City of Upland to revisit its environmental certification of the controversial Bridge Point development proposal and rescind the approval of that project based upon flaws in that certification as well as what those citizens maintain was an inadequate public hearing process for the undertaking, the Sentinel has learned.
Beginning in early 2018, Bridge Development Partners initiated backroom discussions with planning division employees and senior management with the City of Upland with regard to a massive distribution facility for on-line retail giant Amazon.
In June 2019, during a so-called workshop involving city officials and Bridge Development Partners, the project was previewed as a proposal for a three-building warehouse complex involving 977,000 square feet under roof. Over the next several months, as objections to the scope of the proposal manifested, the tentative site plan was modified several times until in October, a revamped conception of the project was presented, one that was reduced to a single structure of 276,250 square feet. When the environmental review documentation for the project was posted on December 16, 2019, it came in the form of a negative mitigated declaration as opposed to an environmental impact report. In that documentation, the project was shown as a 201,096-square-foot distribution center to be located north of Foothill and south of Cable Airport. After feedback from the public was accepted in conjunction with the processing of the negative mitigated declaration, which some residents said was marred by the city’s failure to post all of the public input and commentary submitted with respect to it, the planning commission, with Commissioner Alerxander Novikov absent, met on February 12 to consider the project. A total of 57 people, 33 of them Upland residents, addressed the commission with regard to the project during the five-hour meeting. Thirty of those residents expressed opposition to the project, while three voiced support of it. The majority of the 24 others who went on record, consisting of construction workers, representatives of the construction industry, construction union members or others who had a financial interest in the proposal proceeding, expressed project support.
Preparatory to its other votes, the planning commission first took up whether the Bridge Point project was compatible from a land use standpoint with the city’s Cable Airport Land Use Compatibility Plan. On that item, Airport Land Use Committee members Ronald Campbell and Howard Bunte participated in the decision, which ended with a unanimous 7-0 finding that the project was in keeping with the plan’s parameters.
Thereafter, the five present members of the planning commission voted 4-to-1, with Commissioner Yvette Walker dissenting, to recommend that the city council accept the environmental certification for the project, in the form of a mitigated negative declaration; 4-to-1, with Walker dissenting, to recommend that the city council approve a lot line adjustment for the project; and 3- to-2, with Walker and Commissioner Gary Schwary in opposition, to recommend approval of the development agreement. The most significant vote of the evening was a 3-to-2 vote to recommend that the city council reject the site plan, with Schwary, Walker and Commissioner Linden Brouse prevailing and commissioners Robin Aspinall and Carolyn Anderson dissenting.
Thereafter, the members of the commission were subjected to considerable pressure by lobbyists working on behalf of Bridge Development Partners and other advocates for the project. A fortnight after its first February meeting, the planning commission convened on February 26. Without any notice to the public that it was going to reconsider the matter, the panel that night took up its already concluded recommendation against acceptance of the site plan. In a vote unprecedented in Upland history, the planning commission reversed itself, with Brouse and Scwhary changing their advocacy that the city council reject the proposed physical form of the project to an endorsement of the proposal, such that the commission’s final vote on the matter, including the participation of the at-that-point present Novikov, was a 4-to-2 endorsement of the site plan, with Aspinal, Anderson, Schwary and Brouse prevailing over Walker and Novikov.
Well established at that point was the Bridge Point project was a controversial one.
As March dawned, Bridge Development Partners was engaged in a full-court press to expedite the final approval for the project, hopeful that ground for the distribution center could broken by mid-spring, such that the project, or a significant portion of it, could be completed and ready for occupancy by late October or November, in time for Amazon to be operating from the facility during the 2020 Christmas shopping season. Prior to the city council considering the project in the forum of a public hearing, city staff recommended that Bridge be facilitated in achieving its goal, and comments by members of the city council indicated that the project was one that was viewed favorably.
Before March had run its course, the COVID-19 health crisis descended across the nation and California, and with it mandates on social distancing and restrictions on public gatherings. Accompanying the precautions against the rampant spread of the virus was the prospect that any construction activity would be delayed for several months. With the number of Upland residents opposed to the project burgeoning, City Hall found itself inundated with citizen requests that the council postpone its consideration of the project until the ban on traditional public hearings was lifted so the council could be presented with, and take stock of, the various perspectives on the development proposal before passing judgment on it. The council at one point was purposed to hold a public hearing to consider the project and potentially vote with regard to whether it should be allowed to proceed at its March 23 regularly scheduled meeting, the first convocation of the council at which the traditional open meeting format for such events was suspended.
Given the public discomfiture the concept of holding a non-public meeting provoked, city officials canceled the hearing. Pressured by Bridge Development Partners, city officials in short order called for holding a special meeting on April 1 at which the sole order of business would be for the council to consider staff’s recommendation to proceed with the project.
At the March 23 meeting and again at a specially called March 31 meeting to consider city action in the face of the coronavirus crisis, there was an outpouring of public sentiment against considering the project in any sort of forum in which the public’s ability to participate was limited, which was matched by similar expressions from council members Bill Velto and Janice Elliott. Those requests did not avail from the full council any action to postpone the consideration of the project.
At the specially-called April 1 meeting, Mayor Debbie Stone officiated over the proceedings from her office at City Hall and the four council members participated by means of a remote video/audio hook-up from their homes, with city staff present electronically. The public was not granted physical access to the meeting. Those residents/members of the public who did participate, did so telephonically and without an opportunity to make any sort of visual displays.
At the video conference meeting, the council ultimately voted 5-to-0 to accept a lot line adjustment for the project site and 5-to-0 to accept a development agreement with Bridge Development Partners that committed the company to providing the city with $17 million in fees, much of it intended as money provided in lieu of sales tax to make up for the consideration that Amazon’s internet sales model does not entail the collection of sales tax as normally occurs from businesses retailing merchandise.
The council also voted 4-to-1 with Councilwoman Elliott dissenting, in regard to the issues critical to the approval of the project, those being accepting the mitigated negative declaration for the project and the approval of the project’s site plan.
The vote provided Bridge Development Partners with an entitlement to proceed, putting the ball into the court of the project’s opponents to take legal action if they were to follow through on their stated determination to prevent the project from going forward.
And indeed, over the two weeks following the meeting, a group of residents rallied and launched an entity, Upland Community First, which, the Sentinel has learned, retained attorney Cory Briggs to represent it.
Under the California Environmental Quality Act, those with standing can contest the approval of a project, but must do so within thirty days of the approving agency recording a document known as a “notice of determination,” which in most cases is filed within a week after the vote giving the project approval.
There was a lack of clarity, at that point, as to whether the current state of affairs with regard to the suspension of court activity in the State of California extended that deadline. On April 22, Governor Gavin Newsom issued an order that suspended for 60 days the public filing requirements relating to the California Environmental Quality Act. By earlier this week, Briggs had assembled a draft petition for writ of mandate and complaint for declaratory and injunctive relief which cited both the California Environmental Quality Act, California’s Public Resources Code, California’s Planning and Zoning Law, and the Upland Municipal Code.
In the draft writ, Briggs contends that those making the petition – the members of Upland Community First – as well as other members of the Upland community opposed to the project had their fair hearing and due process rights violated.
“As a result of stay-at-home orders related to COVID-19, the city council meeting on the project occurred via teleconference despite one city councilwoman’s motion to delay the meeting (which was rejected by the other councilmembers) to encourage full public participation,” the draft writ of mandate states. “The decision to conduct the meeting by teleconference, along with respondent’s actions leading up to the meeting, deprived the public of a full and fair opportunity to be heard on the project. The notice of public hearing for the project informs the public that anyone who wishes to comment on the project ‘may do so in writing between the date of this notice and the public hearing; or, may appear and be heard at [Upland City Hall].’ There is nothing in the notice regarding meeting by teleconference. Contrary to the notice, the public was unable to attend the meeting, as it was held by teleconference. In order to comment on the project, any member of the public had to register two hours in advance by sending an email to respondent’s city clerk containing the subject line ‘public comment,’ including the caller’s name and telephone number so that the caller could be telephoned when it was his or her turn to speak at the meeting. Among other things, people who registered to comment on the project were never telephoned to comment; the teleconference connection was choppy and participants’ comments cut in and out during the meeting; and at least one person who wanted to provide visual aids regarding the project’s traffic impacts was not given the opportunity to do so. The decision to hold the meeting by teleconference assumed that everyone who opposed the project had telephone or internet service to participate in the meeting, when in fact at least one person who would have participated in person was precluded from doing so based on the technological barriers imposed by respondents. The decision to hold the meeting in the midst of a pandemic ensured significantly decreased public participation, which is at odds with the well-established public policy of full government transparency and citizen participation in government decision-making. Petitioner’s fair hearing and due process rights were violated as a result of respondent’s failure to provide a fair hearing on the project.”
The draft writ of mandate asserts that the defects plaguing the project approval went beyond the manner in which the public was unable to fully weigh in with regard to its perspective on its impacts on the community to the actual impacts of the project themselves and what the writ characterizes as the incomplete documentation of those impacts and the inadequate safeguards against them, based on the use of a mitigated negative declaration for the project as opposed to a full-blown environmental impact report.
“Whenever a project proposed to be carried out or approved by a lead agency has the potential to cause an adverse environmental impact, the California Environmental Quality Act prohibits the agency from relying on a negative declaration,” the draft writ of mandate states. “Instead, the California Environmental Quality Act requires the preparation of an environmental impact report to identify and analyze the significant adverse environmental impacts of a proposed project, giving due consideration to both short-term and long-term impacts, providing decision-makers with enough information to enable them to make an informed decision with full knowledge of the likely consequences of their actions, and providing members of the public with enough information to participate meaningfully in the project’s approval and environmental-review process. The California Environmental Quality Act also requires every environmental impact report to identify and analyze a reasonable range of alternatives to a proposed project. The California Environmental Quality Act further requires every environmental impact report to identify and analyze all reasonable mitigation measures for a proposed project’s significant adverse environmental impacts. An environmental impact report must be prepared for a proposed project if there is a fair argument, supported by substantial evidence in the administrative record, that the project may have an adverse environmental impact; stated another way, a negative declaration may not be used unless the lead agency determines with certainty that there is no potential for the project to have an adverse environmental impact.”
The draft writ of mandate continues, “There is a fair argument that the project will have significant environmental impacts. By way of example and without limitation, the administrative record is replete with evidence that the project will result in significant traffic, air quality, and noise impacts, among other environmental impacts. The project will also result in cumulative impacts unaccounted for in the mitigated negative declaration. The project’s significant direct, indirect, or cumulative adverse impacts on the environment give rise to respondent’s legal obligation to prepare an environmental impact report. Respondent’s failure to prepare an environmental impact report is a violation of the California Environmental Quality Act.”
In seeking to convince the city council to deny the project approval, several city residents at the April 1 meeting had dwelt upon the consideration that the zoning at the project site, located north of Foothill Boulevard sightly to the east of Central Avenue, is for mixed commercial industrial use, which they asserted is incompatible with a distribution facility. The only property in the city zoned for such use, they said, was south of Foothill Boulevard.
The draft writ of mandate states, “The California Planning and Zoning Law prohibits the approval of any project that is not consistent with the applicable general and specific plans and their components. The project authorizes land uses and activities that are in some ways inconsistent with the general and specific plans and their components. As a result of respondent’s violation of the California Planning and Zoning Law, petitioner, its members, and the general public have been harmed insofar as respondent has approved a project that is inconsistent with the land-use rules designed to protect the public from harmful development.”
Also, according to the draft writ of mandate, “The project violates the Upland Municipal Code. The Upland Municipal Code permits the approval of a development agreement only if it will provide clear and substantial benefits to the city and its residents. The project’s development agreement authorizes land uses and activities that are in some ways inconsistent with the requirements of the Upland Municipal Code. Respondent failed to make the findings required to support approval of the project’s development agreement. Respondent has approved a project that is inconsistent with the land-use rules designed to protect the public from harmful development.”
The draft writ of mandate calls upon the court to render a judgment or order determining or declaring that the city failed to fully comply with the California Environmental Quality Act and other applicable laws as they relate to the project such that the approval given to the project at the April 1 meeting is rendered null and void.
-Mark Gutglueck

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