A group of residents this week appealed the November 18 Upland Planning Commission’s environmental certification of a warehouse project on 11th Street on the city’s west side in close proximity to a nearly completed residential project of 318 single family dwelling units and another residential project consisting of 192 town homes and condominiums.
That appeal of the planning commission’s acceptance of a mitigated negative declaration for Yellow Iron Development’s 92,275-square foot warehouse building, which is to include 11 truck bays and two other truck loading facilities as well as parking spaces for 202 vehicles, presumably for those to be employed at the warehouse, signaled the intention of those opposed to the project to sue the city over its acceptance of the project. That lawsuit, the Sentinel was informed, will be based in some measure on city officials’ refusal of citizen requests that a full-blown environmental impact report on the project be carried out.
The Yellow Iron Development warehouse project is the third highly controversial land use decision that is being passed without a full-blown environmental impact report being completed in the past year. Instead, like Bridge Development Partners’ Amazon warehouse project and the Villa Serena residential development, both approved in April, the project approved on November 18 was given environmental certification by means of a mitigated negative declaration. A mitigated negative declaration utilizes the city’s elected officials in the form of the city council or the appointed members of the planning commission to sign off on an assurance that the consequences of the project will not adversely impact the district wherein those projects are to be placed nearby neighborhoods or the city overall, nor overwhelm the infrastructure and utilities serving the area.
In the case of both the Amazon facility, consisting of a 201,096-square-foot warehouse to include 1,486 parking spaces for delivery vans and cars and 25 dock high loading bays for 18-wheeler trucks located on 50 acres north of Foothill Boulevard and south of Cable Airport, and the Villa Serena project, which is to entail a residential subdivision consisting of 65 single family detached residential units on 9.2 acres within a 20.3-acre site at the juncture of 15th Street and 13th Avenue within the Foothill Knolls neighborhood, residents banded together and filed suit against the city, challenging what they said was the disregard the city had shown for the California Environmental Quality Act and the inadequate conditions imposed on those projects to shield adjoining landowners from the impacts of those developments.
Projections were that with the Amazon warehouse, there would be roughly 50 deliveries made to the facility each day by 18-wheeler trucks bringing merchandise in and approaching 2,000 van or delivery vehicle trips per day with roughly or slightly fewer than 187 trips per hour in the morning rush between 6 a.m. and 10 a.m. and 171 trips per hour in the evening rush between 4 p.m. and 7 p.m.
The Villa Serena project was to be constructed on 9.2 acres within a 20.3-acre site previously committed to serve as a stormwater detention basin, an intrinsic element of an elaborate flood control network serving as a repository for water that during a deluge is channeled away from properties to the north, including the Colonies at San Antonio subdivision, as well as other surrounding properties on the city’s northeast side.
The density of the proposed Villa Serena project is roughly 1.75 times the density of the surrounding neighborhood, meaning that within the incoming development, seven houses would be placed onto an acre whereas in the nearby existing portion of the same neighborhood there were roughly four homes per acre. In addition, the height of the two-story homes included in the Villa Serena project created a circumstance in which the mountain vistas of many of the existing homes adjacent to the project are to be partially blocked, cut off or obliterated, and the privacy of those living in the existing residences invaded, as the second story perches of the houses to be built will allow their occupants in many cases to see right into the existing homes.
In the case of the Bridge Point/Amazon project, which was given approval by the city council with Mayor Debbie Stone, councilmen Bill Velto and Rudy Zuniga and then-Councilman Ricky Felix prevailing and Councilwoman Janice Elliott dissenting, a group of citizens, convinced that the city’s planning division including Development Services Director Robert Dalquest had fallen short of protecting the city’s residents from the onerous elements and consequences of the project and its impacts, formed a public action committee dubbed Upland Community First. Upland Community First then sued the city, entailing a petition for a writ of mandamus, seeking an injunction against the the Bridge Point project proceeding. The suit sought the voiding of the project’s approval, and that the city and applicant be required to complete a comprehensive environmental impact report first if the project is to again be considered. That legal action prevented Bridge Development Partners from moving forward on the project, and as pretrial legal skirmishing between the two parties has been waged, Bridge Development Partners and Amazon failed to achieve the goal of completing a sufficient portion of the distribution center to allow Amazon to carry out a significant percentage of its Southern California delivery operations from the Upland location.
With respect to the Villa Serena project, which was given approval at the April 13 city council meeting, again with Stone, Velto, Zuniga and Felix in support and Elliott in opposition after 22 city residents, most of whom live in the immediate environs of the project, expressed opposition to the subdivision’s approval, another grassroots organization, the Friends of Upland Wetlands formed and is now pursuing a lawsuit against the city relating to its approval of the Villa Serena project, including the filing of a writ of mandamus and a petition for an injunction to halt the project.
Prior to the Yellow Iron Development warehouse project reaching the public hearing stage, there was already a widespread perception among city residents that city staff, in particular its land use and planning specialists, Development Services Director Robert Dalquest foremost among them, were being neglectful of looking after the interests of the city’s residents and were allowing project proponents to proceed with developments that were incompatible with the city’s zoning and the character of the neighborhoods or sections of the city onto which they were being sited.
As the city planning division – that being the development services division which Dalquest heads – took up the application by Yellow Iron Development to construct a warehouse on 11th Street between Central Avenue and Monte Vista Avenue, a cross section of residents already had misgivings that city officials with discretion over the matter would evince greater concern for the developer and for their political masters – the mayor and certain members of the city council who had previously committed to supporting the project – than they had for the residents of the area. When the approval of the project was delegated to the planning commission, an appointed rather than an elected body, the distrust of city officials and Dalquest heightened.
During the November 18 public hearing for the warehouse project, the planning commission as a whole did little to allay that concern, though a two-member minority of that panel – Gary Schwary and Christine Caldwell – gave indication they were sensitive to the land use incompatibility represented by a warehouse being located within shouting distance of more than 500 homes.
On the meeting agenda for that evening was staff’s presentation of the project, including its recommendation that the project be given go-ahead, a public hearing in which city residents and any others could be heard with regard to the issue, a vote which was to include members of the Airport Land Use Committee with regard to a finding that the project is consistent with the Cable Airport Land Use Compatibility Plan, a vote to make a mitigated negative declaration finding that the project is in compliance with the California Environmental Quality Act and a vote to approve the development plan for the project.
Entirely foreclosed was the possibility that a comprehensive environmental impact report for the project would be completed. Indeed, during the public hearing, Yellow Iron Development’s principal, Tony Spinrad, asserted his initial position that no environmental study of any sort was needed for the project.
“This is not a 50-acre site,” Spinrad said. “There are not 1,400 parking spots on here. There are 11 truck positions, and so this isn’t going to be thousands of vehicles on the streets. This is going to be what we’ve studied. It’s a relatively small site. It’s under five acres. The building is less than a hundred thousand square feet. So initially, we came in and we were hoping to do a CEQA [California Environmental Quality Act] exemption, and [Upland Associate Planner] Joshua Winter, Bob [Dalquest] and the city, they felt it was important to do the studies, and so, I think they’ve done a great job, and I appreciated working with them this year.”
In Spinrad’s parlance, the term “studies” meant data assembled for the planning commission to make its mitigated negative declaration, rather than an actual environmental impact report.
After Upland Land Use Committee Member Ronald Campbell joined with the planning commission in making a finding that the project is consistent with the Cable Airport Land Use Compatibility Plan, the commission moved its focus to whether making a mitigated negative declaration was sufficient to give the project environmental certification.
Two of the commission’s members, Gary Schwary and Christine Caldwell, opposed providing the project with a negative declaration. In her comments, Caldwell voiced the view that a warehouse proximate to the existing Harvest subdivision with its 318 dwelling units and the approved-but-yet-to-be-initiated Enclave development, with 192 condominiums and townhomes, was an incompatible use.
It was during his interchange with Spinrad that Schwary locked onto what for many is a very troubling aspect of the warehouse project, that being the lack of definition with regard to the project itself.
“We don’t know exactly who our tenant is going to be yet,” Spinrad told the planning commission. “We have been talking to [prospective] tenants.”
In that respect, the inexactitude of the eventual use has proven disconcerting for more than a smattering of civic activists. The zoning on the property is light industrial, which, according to city officials, would allow the warehouse, once it is completed, to house various types of operations, including manufacturing and a distribution facility, although some city residents dispute the latter, and an incident earlier this year suggests that Dalquest himself and the current city attorney, Steven Flower, are not themselves fully convinced that a distribution facility is allowable under the city’s light industrial designation. During the November 18 meeting, Steve Bierbaum, an Upland resident, suggested that the city’s light industrial zoning did not square with that of a warehouse facility, from which dozens, scores or even hundreds of vehicles might be dispatched on a daily basis, and to which large trucks, including 18-wheelers, would be making frequent deliveries. Dalquest offered a statement to indicate that the city’s light industrial zoning description could be stretched or be interpreted to permit warehouse uses.
At issue is the intensity of use that will take place in the facility once it is built. Based on the city staff report and Spinrad’s statements, the eventual use is to relate to some order of a distribution operation rather than a manufacturing one.
A representation made at the November 18 planning commission hearing was that the total vehicle trips into and out of the facility per day would be limited to no more than 250. According to statements made during the course of the meeting, the “equivalent total” of vehicles anticipated at the warehouse is 214 daily, including 130 involving passenger cars and 34 involving trucks, specifically six two-axle trucks, eight three axle trucks and a quantity of 20 four-axle trucks, the last of these presumed to be 18-wheelers. How Spinrad could make that claim without knowing at the present time who the eventual tenant will be was not made clear.
The 214-vehicle/34-truck limitation evolved out of an apparent concern with regard to the facility’s proximity to the Harvest and Enclave subdivisions. That proposed limitation was given with the caveat that if the operations at the warehouse could not confine themselves to the 250 vehicle trips per day limit, either Yellow Iron Development or the tenant would be required to return to the planning commission to seek clearance, which might not necessarily be granted, to increase that truck activity. This immediately struck many of those in attendance as implausible, and a manipulation of the approval process that was intended to allow a far more onerous degree of activity that would be incompatible with the project’s surroundings than was being openly acknowledged at the meeting. The developer was seeking approval of a project in which the exact nature of the operation and the precise or even approximate number of vehicles it would entail was unknown.
An analysis of known and indefinite factors relating to the project and the property upon which it is proposed to stand indicates that the eventual tenant will be called upon to spend roughly $92,000 in basic rent per month or $1.1 million per year to occupy the proposed building, based upon a $1 per square foot per month rental cost, which falls within the average rate in Southern California. Leasing would only be a percentage of a warehouse’s operating costs. In addition, other cost elements to open the doors of a warehouse or distribution facility and make it operational would be involved, including but not limited to the provision of utilities, purchase of and debt service for the acquisition of equipment, vehicles and furnishings, plant maintenance, insurance, taxes and personnel. These combined costs could zoom to as much as $500,000 per month. In order to meet this financial burden, an energetic and intensive warehouse operation will be required, entailing trucks flowing in and out all day long, perhaps in three shifts per day. Yet, based upon what was said at the November 18 meeting, the eventual tenant will be prevented, from the outstart, from operating more than a very small number of trucks, including those engaged in bringing merchandise into the warehouse and then vehicles loaded with merchandise being dispatched from the warehouse for either wholesale or retail delivery. This limitation would seem to reduce considerably the number of entities that would be willing to locate on the property, since the ability to generate sufficient income as a going concern involved in warehousing and delivery would likewise be diminished, perhaps to below that which would be profitable.
That consideration has led some in the community to conclude that Yellow Iron Development and Spinrad were purposefully under-representing the intensity of the future use of the property in an effort to obtain an entitlement for Yellow Iron Development to proceed. The perception is that Dalquest is far too sophisticated to not understand or have missed that reality, and that he and city staff were knowingly going along with the misrepresentation as to the intensity of use at the proposed warehouse, knowing that once operations were at full swing there, vehicle trips into and out of the facility will approach or exceed a thousand per day.
Among those addressing the planning commission on November 18 with regard to the Yellow Iron warehouse proposal was Carlos Garcia, who was elected earlier this month to fill the vacant position on the city council representing Upland’s Third District, in which the Yellow Iron Development warehouse project and the Harvest and Enclave subdivisions are located.
Speaking as an Upland resident rather than in his role as councilman-elect, Garcia said, “This does affect our community,” pointing out that the Harvest subdivision is nearing full completion with residents already living there, and the Enclave project will soon be under way. Garcia, who will be sworn into office on December 14 and complete the term of former Councilman Ricky Felix who resigned in May to move to Utah, expressed the view that the warehouse as proposed does not fit the light industrial business park description contained in the city’s zoning code and, as such, is an incompatible use adjacent to a residential neighborhood. He said the truck traffic the warehouse will generate will prove problematic. “There is one way in and one way out,” Garcia said, noting, “We have already seen 18 wheelers on 11th Street.” The addition of the warehouse will exacerbate that problem, he said. He further alluded to the mystery relating to who will actually occupy the warehouse once it is built, saying Yellow Iron Development was “creating a project there, but do we have a tenant? There is nothing solid or concrete. There is nothing to tell us what is actually moving in there, so we can know the impact.”
Subtly, and without being confrontational about it, Planning Commissioner Schwary alluded to the disconnect between what Spinrad was saying he was proposing and how the project would eventually prove out once it was built. In this respect, Dalquest appeared to be providing Yellow Iron a certain degree of wiggle room by saying that if it turned out in the future that the eventual tenant needed to utilize the property with a greater degree of intensity than was being conceded that evening, the tenant would be obliged to return to the planning commission to seek permission to intensify the use.
Schwary dryly stated that such under-representations had been made to the planning commission in the past. “We’ve kind of had a crash course on this recently,” Schwary said. He then gave indication that there was, for him, too much vagary in what Spinrad and Yellow Iron were offering, which the eventual tenant at the warehouse would be able to drive, literally, scores or even hundreds of Mack trucks through on a daily basis.
“I think that what needs to be done is to give a clearer, more definitive number for the residents on how many trucks are going to come in,” Schwary said.
Politely, Schwary referenced the somewhat absurd suggestion Spinrad had made in seeking to minimize the intensity of use at the 92,275-square foot warehouse building by referring to it as a “mom and pop” operation, obliquely indicating his skepticism.
“I understand when you don’t have a tenant you don’t know that, but then I hear mom and pop,” Schwary said. “We need to go beyond that.”
Schwary reacted to Spinrad’s statement that he would be able to get the eventual tenant to erect signs near or at the exit from the warehouse property instructing truck drivers not to transit through the nearby residential neighborhoods or the streets adjacent to them.
“You can put ups signs all you want, but we know that truck drivers will just want to get to where they go quickly,” he said. Schwary then asked of the city’s legal counsel, “Can we fine the tenant if these trucks don’t go the route?” That did not provoke a definitive response. Schwary then said, “There is no need for any residents to have trucks go through their neighborhood. I want to see a limit on the amount of trucks, but we can’t do that until we know what kind of tenant you have You might not know what kind of tenant you have until you have it built, so it’s a chicken or the egg theory.”
Though the commission did sign off on the mitigated negative declaration for the project, with Commissioners Robin Aspinall, Carolyn Anderson, Thomas Grahn, Serge Mayer and Patrick Shim outvoting Scwary and Caldwell on that issue, the actual decision to allow Yellow Iron to proceed was postponed until the December 9 planning commission meeting, at which time Spinrad is supposed to provide firmer numbers with regard to the truck traffic and other particulars with regard to the warehouse’s anticipated eventual use so conditions can be layered into the approval the commission is to give to the project.
Even before that hearing is to be held next Wednesday, a city resident, Alipio De Veyra, represented by attorney Cory Briggs, came forward to appeal the commission’s approval of the mitigated negative declaration for the project. Ensuing from that appeal are a host of further of considerations and implications.
In 2018, a differently composed city council under the leadership of Mayor Debbie Stone raised the fee for filing an appeal of a planning commission decision from $680 to $6,800, a ten-fold increase. The city’s rationale in that change was to make a development-friendly gesture, one that would prevent what some pro-development city officials and many in the building industry considered to be frivolous obstructions of projects in the city. An unintended consequence of that, however, is that for those who are not engaged in frivolity and who feel there is legitimate grounds to challenge a planning commission decision, the appeal process became expensive, and in some cases, prohibitively expensive. For those determined to make an issue of decisions by the planning commission they felt were flawed, ill-based or wrong, they on occasion moved to other options. One of those was taking legal action to challenge such decisions. In such cases, a first expense is that of filing the suit at the courthouse. The lawsuit filing fee in San Bernardino County is $450. There is no standard cost for retaining an attorney. A typical retainer runs in the $5,000 range. Thus, a person displeased with a planning commission decision can go to court for somewhere in the neighborhood of $5,450, which compares favorably with $6,800. The services of certain lawyers can be had for a retainer of $2,500 or even less. In some cases, if a lawyer is convinced of the validity of a potential lawsuit, he or she will agree to take on the case for no cost, banking on the prospect of prevailing in the matter, in which case the losing party – in the instant cases that being the City of Upland – must defray the prevailing party’s legal fees.
At present, the City of Upland is a defendant in 55 legal cases brought against it.
The Sentinel is reliably informed that shortly after next Wednesday’s planning commission hearing at which it is anticipated that panel will give go-ahead to Yellow Iron Development’s warehouse proposal on 11th Street, an appeal of that decision will be made, and thereafter, the city will be hit with a 56th lawsuit targeting the approval of the project without it being subjected to a full-blown environmental impact report.
The representative of one of the several newly-formed citizens activist groups expressed determination to bring to a halt the City of Upland’s pattern of giving environmental certification to substantial development projects in the city using the far less stringent mitigated negative declaration process in lieu of more comprehensive environmental impact reports. Lois Sicking Dieter told the Sentinel that she believes the city is abusing the option of using mitigated negative declarations on projects that should be thoroughly evaluated for their environmental consequences, and that this is occurring with unacceptable frequency in the City of Gracious Living as the economy accelerates into permanent recovery mode from the seven-year-long economic downturn that began in 2007 and subsided in 2014 and it is now moving beyond the hiccoughs accompanying the coronavirus pandemic.
The defeat of Mayor Debbie Stone in the November 3 election presented what some city residents felt was an opportunity for the city’s various grassroots organizations to dialogue with the city on changing its policy with regard to eschewing intensive environmental impact examination standards on development proposals. Nevertheless, Stone is being replaced with Councilman Bill Velto, who is recognized as being even more positively disposed toward the development community than Stone. With Velto fresh off his electoral victory in which he was heavily backed by the building industry, the prospect that Velto will respond positively to requests that the city intensify its environmental certification procedure is dim, those activists believe. Thus, they are set on pursuing a strategy of litigating in every instance in which they believe the environmental examinations for projects approved in the city were inadequate. Their theory is that as the city’s costs in defending such suits mount, taken together with the success of at least some of those suits where the city will be forced to rescind the project approvals already given and undertake a more comprehensive environmental certification process, city officials will eventually evolve to a policy of paying greater attention to the concerns of residents with regard to the projects being proposed in the city.
-Mark Gutglueck