Judge David Cohn has postponed once again the hearing he is to conduct for oral arguments following the written briefings relating to multiple points in a citizen group’s lawsuit contesting the Upland City Council’s approval of Bridge Development Partners’ distribution center for online retail behemoth Amazon.
It is anticipated that following those arguments, either immediately or sometime thereafter if he chooses to take the matter under submission, Judge Cohn will make a determination of whether the plaintiffs’ request for the vacation of the project approval will be granted, denied or whether the matter will be considered at trial.
Cohn was initially scheduled to hold the much-delayed hearing on March 12, 2021. Just prior to that date, the hearing was rescheduled for April 23. Thereafter, Judge Cohn rescheduled the hearing for May 7. An unspecified emergency required that Judge Cohn postpone the hearing again until next Monday, May 17. Word now has come that the hearing has been extended once more, and is to be held on Monday June 14, 2021 at 1:30 p.m. in the San Bernardino Justice Center at 247 West Third Street in San Bernardino.
The project has now been on hold for more than 13 months. In giving Bridge Development Partners go-ahead on the project by a 4-to-1 margin on April 1, 2020, the Upland City Council used a less exacting mode of environmental certification, referred to as a mitigated negative declaration, than a comprehensive environmental impact report for the 201,096-square foot building to be located north of Foothill Blvd. south of Cable Airport.
A citizens group calling itself Upland Community First formed and sued, seeking to have the project approval rescinded, and an EIR, an environmental impact report, the most comprehensive type of environmental impact evaluation, carried out in conjunction with the city council’s reconsideration of the project.
The city, supported by Bridge Development Partners, has asserted that the city and the developer fulfilled all of the requirements for project approval under the law, and that the project complies with all environmental regulations.
Upland Community First contends the testimony of several experts with regard to land use and environmental impacts put into the record at the April 1, 2020 meeting and previous planning commission meetings made it incumbent upon the city to consider specific elements of the project proposal and undertake a more comprehensive evaluation of the project or deny it outright.
Upland Community First wants Judge Cohn to consider in particular statements made by four people considered to be land use or environmental issue experts.
One of those, Roger Stephenson, a civil engineer, said the city had not put into the record all of the correspondence related to the project submitted by the public and that the development agreement considered by the city council was different from the one recommended to the planning commission.
Stephenson said at the April 1, 2020 hearing that the development agreement left “too much open for interpretation or misinterpretation” and that “revisions incorporated this late in the approval process indicate the city realizes that the mitigated negative declaration and supporting documents are inadequate. The terms within the city approval documents are not mitigation measures under the California Environmental Quality Act.”
Another of those experts, Dr. Brinda Sarathy, a professor of environmental science at Pitzer College, said a full environmental impact report was essential to maintain the integrity of the city’s planning process.
“The city’s claim that the project is a warehouse permissible under the commercial/industrial mixed-use zoning is a significant misrepresentation of the actual operations of the project, which is not a mere warehouse for the primary storage of commercial goods but rather a soon-to-be node in a delivery station network characterized by the ongoing and continuous sorting and distribution of goods on a 24/7 basis,” Sarathy stated. “It is not a currently permitted land use under the existing general plan.”
A third expert, Lois Sicking Dieter, an engineer with the California Environmental Protection Agency, decried the “incomplete hydrology and incomplete water quality analysis in the mitigated negative declaration,” saying its “findings are inaccurate because the city relied upon a flawed methodology, outdated software, generalized conclusions based on erroneous data, undefined calculations causing misleading results and analysis, lack of detail and inaccuracies in the city’s data input.” She asserted that the analysis and conclusions of the entire declaration are misleading, as they understate the environmental impact of the proposed project. She said the city’s claim to having obtained similar data and to have arrived at the same conclusion after downdating the software from a 1999 version to a 2016 version was “physically impossible.”
The stormwater system at the site would not be able to capture or contain water flow from rain events, Sicking-Dieter said, after the project is completed. She said the city was further ignoring the historic nature and features of Route 66 – Foothill Boulevard – in its consideration of the placement of the project at that location.
A fourth expert, California State University at San Bernardino economics professor Eric Nilsson, said “I took a close look at the air quality assessment and a close look at the greenhouse gas emissions assessment, and frankly I did not like what I saw. To not mince words, the studies are so poorly done they need to be set aside as inadequate. There needs to be a full scale environmental impact study performed. There are mathematical errors in some of the tables. The tables refer to appendices that do not have material that is supposed to support the material in the tables. So, someone revised these reports and failed to actually make things synchronize. It is pretty shoddy work. As one example of questionable assumptions that are included in the air quality assessment and the greenhouse gas assessment: Built into the model that the consultants generated was the assumption that when a vehicle leaves the warehouse to deliver something, the average number of miles they go is going to be 6.9 miles. 6.9 miles for an Amazon delivery? It takes that long to get to La Verne, but then once the truck gets to La Verne, it drives around for a couple of hours delivering packages, racking up sixty miles more above the 6.9. That is just one error out of many, or one questionable assumption of many. The implication of that is the air quality assessment reports and the greenhouse gas assessment reports grossly underestimate the number of miles that will be driven by vehicles associated with their warehouse. By grossly underestimating the number of miles that will be driven by those vehicles, they grossly underestimate the greenhouse gas emissions and other sort of noxious fumes that will be generated by those vehicles.”
The input from Stephenson, Sarathy, Sicking-Dieter and Nilsson is contained within the 7,000 pages of the administrative record relating to the project that has been presented to the court by the plaintiffs.
The city, represented by Ginetta Lorraine Giovinco of the law firm Richards Watson & Gershon, maintains that the Upland met all of the procedural requirements under California law to approve the project and that the city council, which has the ultimate land use authority in the City of Upland, was acting entirely within its lawful discretion to utilize a mitigated negative declaration as opposed to a full environmental impact report to carry out the environmental certification of the project.
Project proponents say that Upland Community First is standing in the way of progress, and that traditional brick and mortar retail establishments are giving way to on-line sales operations such as Amazon. They say that Bridge Development was willing to offset the impacts of the project at the time of approval by agreeing to put up $18 million in project impact fees, and has since more than doubled that offer to upwards of $39 million. By not agreeing to drop its lawsuit against the project, they say, Upland Community First is risking the city not receiving more than $21 million in project impact offsets beyond the $17 million that Bridge Development agreed to in April 2020.
Those obstructing the project are a bunch of limp-wristed, quiche-eating tree-huggers and environmental activists who would be content to prevent any further development from taking place everywhere in California, those in favor of the project say.
Eric Gavin, a Upland resident, said the project opponents were nothing more than a backward-looking “angry say-no-to-everything crowd.”