Bridge Development Partners, the real party in interest in the lawsuit brought by Upland Community First against the City of Upland challenging the April 2020 approval of the one-fifth of a million square foot warehouse/distribution center that was to be developed for Amazon, has appealed Judge David Cohn’s ruling upholding that challenge.
Upland Community First, the citizens interest group which raised multiple environmental issues in objecting to the project and prevailed on the single point of the inadequate assessment of the greenhouse gasses to be generated at the facility once it is inhabited by its presumed tenant, indicated it will file a cross appeal to match and counter Bridge Development’s objection to the court ruling. That cross appeal will seek to persuade the appellate court that not only should Judge Cohn’s finding be sustained with regard to inadequate quantification and mitigation for the excessive greenhouse gas emissions that will come about as a consequence of the truck traffic-intensive operations that will become a daily reality in western Upland if the on-line retail behemoth locates a distributorship there, but assert that Judge Cohn erred in not recognizing that the city failed to adequately consider other impacts from the project that require further mitigation.
On April 1, 2020, the Upland City Council, over the protests of 22 residents who went on record as being opposed to the warehouse/distribution center project during a remotely held city council meeting to consider the project, gave 4-to-1 approval of Bridge Development Partners’ 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.
In approving the project proposal, the city council accepted the terms of a $17 million development agreement offered by Bridge Development Partners. Some city residents saw that as a show of generosity on Bridge Development’s part. Others, taking stock of the consideration that the city would realize no sales tax revenue from the project because of Amazon’s non-California-based internet sales model, felt that the deal was a bad one since the impacts of the Amazon operation, which would remain in place for at least 50 years per the ground lease Bridge Development had for the 50-acre site and perhaps a full century if the lease was renewed, would far exceed $17 million when wear and tear on the city’s roads and other infrastructure demands of the project were considered.
From the time the project had been proposed, it was steeped in controversy. It was originally previewed to the community by Bridge Development’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 certification documentation for the project was posted on December 16, 2019, it came in the form of a mitigated negative 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.
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.
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, while a commissioner not present previously, Alexander Novikov, registered his opposition to the undertaking.
Less than five weeks later, the city council recorded its 4-to-1 vote to approve the project.
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 the emission of greenhouse gasses had to be done over, but his order did not include a requirement that a full-blown environmental impact report had to be completed. The city could rather utilize the mitigated negative declaration process once more, as long as it did a more thorough assessment and cataloging of mitigations, he ruled.
Judge Cohn’s findings let stand the other portions of the environmental certification that were contained in the original mitigated negative declaration, and he sided with the city in rejecting Upland Community First’s contention that the mitigated negative declaration:
* underestimated traffic counts anticipated from the distribution center;
* misdefined the project as a high-cube parcel hub warehouse instead of classifying it as a fulfillment center;
* failed to recognize the project was in conflict with Upland’s general plan and zoning code;
* mistakenly allowed a distribution center to be built in an area zoned for commercial/industrial mixed-use;
* failed to recognize that the project was an impermissible use where it was located;
* inadequately defined the project;
* was improperly ratified during a meeting which was not publicly held but rather conducted remotely and electronically and therefore did not give Upland residents adequate opportunity to provide input with regard to the project.
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.
The victory Upland Community First and its attorney, Briggs, notched proceeded from Judge Cohn’s acceptance of their assertion 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.”
Upon the city revisiting the greenhouse gasses analysis for the warehouse project, Judge Cohn said, it would have the discretion to choose an appropriate “threshold of significance” and to determine under that standard whether an environmental impact report is required, or it might reconduct a more comprehensive study and analysis and redraft the mitigated negative declaration accordingly, one that would presumably include a description of how the operations at the distribution facility would need to be altered to mitigate or offset the impacts/damages from the generation of greenhouse gasses there.
The defendant in the suit was the city. Bridge Development Partners had agreed to indemnify the city over any litigation it became involved in as a consequence of the project approval. The city, represented by Ginetta Giovinco, appeared purposed to comply with Judge Cohn’s order and intensify the environmental certification process and, ultimately, recertify the redrafted mitigated negative declaration.
It appears that Bridge Development Partners was dissatisfied with that approach, believing the city was not being aggressive enough in seeking to be vindicated in its April 2020 decision. In addition, Bridge Development Partners anticipates that Upland Community First would ultimately legally challenge the redraft of the mitigated negative declaration once it was completed, and it is no longer interested in playing patty cake with those who are opposed to the project. By issuing the appeal, Bridge Development Partners removes the matter from Judge Cohn’s courtroom to the California State Court of Appeal, Fourth Appellate District Division Two in Riverside, which has reversed Judge Cohn’s rulings on four separate occasions in the past.
Meanwhile, Upland Community First and Briggs, confident that the challenge of the greenhouse gas assessment as it was made in the original mitigated negative declaration will be upheld in Riverside, believe the appellate court can be convinced that Judge Cohn was not aggressive enough in holding the city to account for the inadequate impact offsets related to other issues laid out in the mitigated negative declaration for the project accepted in April 2020. Their intention is to convince the appellate court that the mitigated negative declaration format for addressing a project such as the Amazon warehouse/distribution center is inadequate to the task of assessing let alone redressing its impacts, and that more properly, an environmental impact study at the least should be done, and preferably, a comprehensive environmental impact report should be completed before the project is given go-ahead.
-Mark Gutglueck