San Bernardino Superior Court Judge David Cohn has finalized his decision which upholds a crucial element of a challenge a citizens’ group made to the approval of a 201,096-square foot distribution facility for online retail sales behemoth Amazon near the western end of Upland just north of the Foothill Boulevard/Route 66 corridor.
On June 14, 2021 Judge Cohn issued a tentative ruling granting a petition filed by Upland Community First for a writ of mandate against the City of Upland based on what that group contended were shortcomings in the environmental certification of the Amazon distribution center project, for which Bridge Development Partners was given go-ahead last year. This week, on Monday, July 19, Judge Cohn finalized that decision.
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.
On April 1, 2020, the Upland City Council, over the protests of 22 residents who went on record as being opposed to the warehouse during a remotely held city council meeting to consider the project, gave 4-to-1 approval of Bridge’s request to construct 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.
From the outset, the project was steeped in controversy. It was originally previewed to the community by Bridge’s corporate representatives in June 2019 as three buildings comprising 977,000 square feet.
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 2019, 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. In that documentation, the project was shown as a having been reduced once more to a 201,096-square-foot distribution center, with 1,438 parking spaces contained on the project grounds.
The city allowed the project to proceed toward approval without being subject to a comprehensive environmental impact report, which many Upland residents believed should have been 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. Suspicion remained that the project would 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, nor did it remunerate 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 voted 3-to-2 to recommend that the city council not approve project. Two weeks later, on February 26, 2020, the commission met again, and in a move unprecedented in Upland’s history, reversed itself, voting 4-to-2 to recommend that the city council approve the project, with two of the members who had voted against the project on February 12, Linden Brouse and Gary Schwary, changing their votes.
On April 1, 2020, the Upland City Council by a 4-to-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.
As a consequence of the Upland Community First legal filing, any action toward the completion of the project, including site grading, was 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.
While ultimately, Judge Cohn, who considered the petition for a writ of mandate, entered a finding that the mitigated negative declaration the city council made to clear the way for the project to proceed was inadequate, he did so on relatively narrow grounds. His order was that the mitigated negative declaration with regard to one aspect of the project had to be done over, but his order did not include a requirement that the environmental certification on that aspect of the project, relating to the emission of green house gasses, be carried out as part of a full environmental impact report. His findings let stand the other portions of the environmental certification that were contained in the original mitigated negative declaration.
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 he took issue with the citizen group’s assertion that the city should not have described the project as a high-cube parcel hub warehouse and rather should have classified it as a fulfillment center.
Cohn rejected Upland Community First’s contention that the project was in conflict with Upland’s general plan and zoning code, specifically that distribution centers are not allowed in an area zoned for commercial/industrial mixed-use, and are only allowed in industrial zones. “Allowable uses within this land use category include commercial and industrial” development,” Judge Cohn wrote.
He set aside 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. [T]he 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. [T]hat the project is not a permitted use is not substantial evidence in support of a fair argument of environmental impacts.”
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.
Judge Cohn 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.
Greenhouse gasses are those such as carbon dioxide and chlorofluorocarbons, which create a “greenhouse” effect, that is, causing the atmosphere to increase in temperature through the constant absorption of infrared radiation.
“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.”
Upland Community First and the project’s opponents were able to notch a victory in that they proved the contention they had all along that the mitigated negative declaration was inadequate. They now have an assurance that the city will need to revisit the environmental certification of the project, as well.
Still, the terms of the victory achieved are relatively modest compared to what had been the stated intention of the legal action, which was to force the City of Upland to carry out a full-fledged environmental impact report for the entirety of the project.
Cohn wrote in his decision that “the petition for writ is granted based on the city’s failure to establish an appropriate threshold of significance to apply to the greenhouse gasses analysis for this warehouse project, where the primary sources of emissions is mobile. Once information necessary to set the appropriate threshold is provided, the city may determine whether a mitigated negative declaration or an environmental impact report is appropriate.”
Though Cohn unequivocally established that the city’s finding of no significant effect on the environment with respect to greenhouse gas emissions was unsupportable, his ruling does not mean, necessarily, that an environmental impact report is required. The city has discretion to choose an appropriate “threshold of significance” and to determine under that standard whether an environmental impact report is required.
The council has undergone change since the April 2020 vote, with two of its members, then-Councilman Ricky Felix and then-Mayor Debbie Stone, having departed. The two council newcomers – First District Councilwoman Shannan Maust and Third District Councilman Carlos Garcia – appear to be more empathetic to the issues raised by Upland Community First than were Stone and Felix or the other two members of the council who joined with them in approving the project, then-Councilman and now-Mayor Bill Velto and Councilman Rudy Zuniga.
Though Upland Community First might have gotten some but not all of what it wanted by pursuing the writ of mandate, a byproduct of that effort was that the project was put on hold. That delay, which has been ongoing for a period of more than 14 months, may have convinced Bridge to simply give up on the Upland project. This spring, Bridge Development Partners approached the City of Rancho Cucamonga about constructing in that city two new contemporary warehouse buildings with a combined building area, including 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.
Were Amazon to establish a fulfillment center in neighboring Rancho Cucamonga with very close freeway access, it is likely that Amazon’s need to operate a smaller facility in Upland would diminish.
-Mark Gutglueck