Lawyers for both the City of Upland and Bridge Development Partners this week provided cryptic signals possibly indicating that the proposal to construct a 201,096-square foot distribution center for on-line retail behemoth Amazon at the western end of Upland approved by city officials last year but stridently opposed by a citizens group is dead in the water.
On June 14, San Bernardino Superior Court Judge David Cohn held a thrice-delayed hearing on a petition for a writ of mandate challenging the approval of the project. The hearing came after Judge Cohn issued a tentative ruling granting the petition on relatively narrow grounds. Monday’s proceeding provided the city and Bridge Development Partners a last opportunity to present a rationale for Cohn to reverse or otherwise depart from his tentative decision, which would require that the city rescind its approval of the project granted last year and that it be required to perform a more thorough environmental analysis of the project than was completed for the undertaking before it is to be reconsidered by the city.
Paralleling, and perhaps more significant than, the legal sparring between the two sides on the warehouse development project is Bridge Development Partners’ resolve to pursue in neighboring Rancho Cucamonga a warehouse ten times the size of the one it proposed in Upland but so far has not been able to proceed with.
Indeed, the tea leaves at the bottom of the cup seem to indicate Bridge Development Partners is abandoning the Upland project proposal. Bridge has made no confirmation of that, however.
After first being previewed to the community in June 2019 as three buildings comprising 977,000 square feet, what was dubbed the Upland Bridge Point Project was downscaled from what was originally proposed to be a single 201,096-square foot facility involving 25 dock high loading bays for 18-wheeler trucks, another 32 bays for delivery vans and trucks, along with 1,438 parking spaces around the building. The facility was slated for a 50-acre site in Upland north of Foothill Boulevard slightly east of Central Avenue and south of Cable Airport.
Controversy dogged the project early on. The city allowed the project to proceed toward approval without being subject to a comprehensive environmental impact report, which many Upland residents believe should be carried out for a project of such size, intensity and complexity. Rather, the city elected to use a mitigated negative declaration to complete the environmental review process.
An environmental impact report is an involved study of the project site, the project proposal, the potential and actual impacts the project will have on the site and surrounding area in terms of all conceivable issues, including land use, water use, air quality, potential contamination, noise, traffic, and biological and cultural resources. It specifies in detail what measures can, will and must be carried out to offset those impacts. A mitigated negative declaration is a far less exacting size-up of the impacts of a project, by which the panel entrusted with the city’s ultimate land use authority, in this case the city council, issues a declaration that all adverse environmental impacts from the project will be mitigated, or offset, by the conditions of approval of the project imposed upon the developer.
A cross section of the city’s residents disputed the city council’s declaration that all impacts from the project had been adequately mitigated, based both on the magnitude of the project and the consideration that the city council lacked land use and environmental expertise. There were questions as well as to whether the zoning at the project site would allow a distribution facility to be established there. Moreover, many people found it highly disturbing that Bridge Development Partners consistently refused to officially acknowledge that Amazon was to be the eventual tenant at the warehouse for the initial 50-year life of the completed project. Bridge/Amazon has an option to renew the lease on the property for another 50-year period, potentially making the project an issue in the city for the next century. There was and remains a suspicion that the project will be subject to substantial expansion, without any further environmental analysis, perhaps to as large as the 977,000 square feet originally proposed, since 1,438 parking spaces is far in excess of what would normally be needed for a 201,096-square foot warehouse. Another major concern was that the project proposal offered no provision for offsetting the sales tax revenue loss that would come about as a consequence of Amazon’s on-line operational model or remunerating the city for infrastructure damage that would inevitably occur over a 50-year or potentially a 100-year period if the project were to proceed.
On February 12, 2020, the Upland Planning Commission, with three members present, voted 3-to-2 to recommend that the city council not approve project. Two weeks later, the commission met again with six members present and in a move unprecedented in Upland’s history, reversed itself, voting 4-to-2 to recommend that the city council approve the project. Two of the members who had voted against the project on February 12, 2020 changed their votes.
On April 1, 2020, the Upland City Council by a 4-1 vote approved the project, in doing so accepting a $17 million development agreement offered by Bridge Development Partners. That approval included the council’s mitigated negative declaration rather than an in-depth environmental impact report.
Thereafter, a contingent of Upland citizens banded together, taking on the name Upland Community First. The group’s members retained attorney Cory Briggs, who then filed a petition for a writ of mandate, seeking from the court an order that the city revisit the environmental review process for the project, make a determination that the mitigated negative declaration was inadequate and require that a full-blown environmental impact report for the project be carried out before the project is allowed to proceed.
A writ of mandate is a court order to a government agency to follow the law by correcting its prior actions or ceasing illegal acts.
As a consequence of the Upland Community First legal filing, any action toward the completion of the project, including site grading, has been suspended.
In the meantime, Bridge Development Partners seemingly recruited Bill Velto, who voted in April 2020 as a member of the city council to approve the project and who in November 2020 was elected Upland mayor, to serve as its agent in approaching members of Upland Community First in an effort to get that group to end its challenge of the project approval. To that end, Velto indicated via text messages that Bridge Development Partners had expressed a willingness to more than double the $17 million in project impact offsets the company had agreed to pay in the development agreement for the project approved in April 2020 to $40 million. That offer was conditional upon Upland Community First dropping its demand for a comprehensive environmental impact report and accepting an environmental review that would allow the project to proceed, without any of the changes that would typically be required by an environmental impact report. Upland Community First spurned those offers, insisting that the matter be resolved though the writ of mandate proceeding,
On June 7, Judge Cohn delivered his preliminary ruling on the writ of mandate petition. While he rejected outright fifteen of the points that Upland Community First raised in its petition, and placed a third issue in an unresolved category, he made a finding against the city on two points, those being that the city had used an erroneous greenhouse gas threshold meant for stationary sources and did not include mobile sources such as delivery vans in its analysis of what would be permissible emissions at the facility, and that the mitigated negative declaration was therefore flawed and an unacceptable means of providing the project with its environmental certification.
Cohn sided with the city in rejecting Upland Community First’s contention that the mitigated negative declaration underestimated traffic counts anticipated from the distribution center and that the anticipated vehicle trips to the distribution center were understated, and he took issue with the citizen group’s assertion that there is a difference between a high-cube parcel hub warehouse and a fulfillment center, and that the project should have been classified as a fulfillment center.
Cohn further considered Upland Community First’s contention that there is a fair argument the project will have significant land use and planning impacts because the project conflicts with the Upland’s general plan and zoning code. Specifically, Upland Community First argued that distribution centers are not allowed in an area zoned for commercial/ industrial mixed-use, and are only allowed in industrial zones.
Judge Cohn rejected that assertion.
“Upland Community First’s consistency argument amounts to a contention that any zoning ordinance or general plan violation results in an environmental impact because of these general purpose statements about the intent to support environmentally responsible development and reduce greenhouse gases,” Judge Cohn wrote in his tentative decision. “But the California Environmental Quality Act does not provide that ‘any inconsistencies necessarily constitute significant environmental impacts.’ Noncompliance with an existing general plan or a zoning ordinance is not itself substantial evidence in support of a fair argument the project may have a significant impact on the environment.”
Judge Cohn ruled that any conclusions Upland Community First’s members may have drawn based on the number of parking spaces included in the project plans were speculative.
Even if Upland Community First were to establish that the project is inconsistent with the zoning of the property upon which it is to be built, that did not in and of itself establish a violation of the California Environmental Quality Act, he found. “[T]hat the project is not a permitted use is not substantial evidence in support of a fair argument of environmental impacts,” Judge Cohn wrote.
At any rate, Judge Cohn tentatively ruled that according to city documents “Allowable uses within this land use category include commercial and industrial” development.
He rejected Upland Community First’s assertion that the zoning issues relating to the project invalidated the project’s approval and entered “an express finding the project is consistent with the general plan and zoning ordinances as a permissible use.”
Judge Cohn in his tentative decision ruled Upland Community First did not have adequate grounds or authority to dispute the terms of the development agreement the city entered into with Bridge Development Partners and he said the city council had the authority and discretion to enter into that arrangement.
Furthermore, Judge Cohn found, Upland Community First’s contention that the city had failed to adequately define the project was unsupportable, and he ruled that the project as truly defined by the city – a “warehouse/parcel delivery service building” – was an allowed use.
“The city’s conclusion that the project is allowed as warehousing is reasonable and entitled to deference,” Judge Cohn wrote.
Judge Cohn also found unpersuasive Upland Community First’s argument that the mitigated negative declaration should be rescinded because the April 1, 2020 city council meeting at which the project was given go-ahead was conducted in an electronic and remotely-held forum that did not give Upland residents adequate opportunity to provide input with regard to the project.
Nevertheless, Judge Cohn was driven to the conclusion that the city had wrongfully used a greenhouse gas threshold of ten thousand metric tons of carbon dioxide equivalent in calculating emissions from the distribution facility on a yearly basis as a maximum allowable limit. Since the city had sought to use an inoperative maximum threshold for emissions, he said, the mitigated negative declaration was flawed, and had to be done over.
“The failure to provide substantial evidence to justify the single quantitative method used as the greenhouse gas threshold of significance constitutes a prejudicial abuse of discretion,” Judge Cohn ruled. “The public and decision-makers have not been provided sufficient information necessary to understand the threshold or the data used in the analysis establishing the threshold and reason for the significant change in baseline emissions in the subsequent greenhouse gas analysis. Accordingly, the city’s approval of the mitigated negative declaration is set aside.”
Cohn did not, however, accept Upland Community First’s contention that the maximum emission level should be set at three thousand metric tons of carbon dioxide equivalent.
“While Upland Community First has presented sufficient argument and evidence to conclude that substantial evidence does not support the 10,000 MTCO2e used, it fails to provide substantial evidence supporting the use of a 3,000 MTCO2e threshold,” Cohn wrote.
Upland Community First and the project’s opponents indicated that if Judge Cohn abides by his determination in the tentative decision in his final ruling, they will consider that to be a victory.
Still, the terms of the victory might be relatively narrow, as the full-fledged environmental impact report Upland Community First has been gunning for all along might not be forthcoming.
“The court grants Upland Community First’s petition on the sole ground that substantial evidence does not support the ‘threshold of significance’ chosen for greenhouse gas emissions,” Judge Cohn wrote. “As a result, the city’s finding that there will be no significant effect on the environment with respect to greenhouse gas emissions is without adequate support. This does not mean, necessarily, that an EIR [environmental impact report] is required. The city has discretion to choose an appropriate “threshold of significance” and to determine under that standard whether an EIR is required.”
On June 14, Judge Cohn listened to Ginetta Giovinco, the attorney representing the city, Amanda Monchamp, the attorney representing Bridge Development Partners, and Cory Briggs, the attorney representing Upland Community First. Giovinco deferred primarily to Monchamp in letting her seek to dissuade Judge Cohn from finalizing his tentative findings. Briggs, while encouraging Judge Cohn to stay on track with his ruling regarding the proper greenhouse gas threshold for the project, endeavored to move the judge away from his conclusions denying the grounds for the petition with regard to several other issues.
Monchamp’s less than precisely focused argument relating to the greenhouse gas threshold left some with the impression that Bridge Development Partners is losing its commitment to move forward with the Upland warehouse project.
Such a theory has further support in the consideration that Bridge Development Partners is now pursuing an entitlement from the City of Rancho Cucamonga to construct two new contemporary warehouse buildings with a combined building area, including the mezzanine space, of approximately 2,175,000 square feet consisting of 2,134,000 square feet of warehouse uses and 41,000 square feet of ancillary office space. There would be approximately 2,136,200 square feet of ground level floor space and approximately 38,800 square feet of mezzanine in the complex, which is to be built on 91.4 acres located at 12434 4th Street in the City of Rancho Cucamonga, bounded by 4th Street to the south, which is also the jurisdictional boundary between the City of Rancho Cucamonga and the City of Ontario, and 6th Street to the north, and generally located between Etiwanda Avenue to the east and Santa Anita Avenue to the west.
While Bridge has not identified the tenant that will locate into those structures, representing ten times the square-footage proposed in Upland, a logical assumption is the facility is intended for Amazon. Initially, when Bridge undertook its efforts in Upland, it did not identify Amazon as the building tenant.
On June 14, Judge Cohn took the input from Giovinco, Monchamp and Briggs under submission, indicating he will provide his final decision in writing shortly.