In an impactful reversal, a three-member panel of the California State Court of Appeal, Fourth Appellate District Division Two in Riverside has set aside the 2021 ruling of San Bernardino County Superior Court Judge David Cohn that has prevented a the construction of a warehouse in Upland that which was to serve as the center for online retail behemoth Amazon’s distribution efforts in western San Bernardino County and eastern Los Angeles County.
While the basis for Cohn’s ruling suspending the project had been what he had determined to be insufficient recognition, and inadequate mitigation, of the anticipated air quality impacts of the proposed project, the delay had provided the community an opportunity to focus on what a substantial cross section of Uplanders felt was city officials’ failure to insist upon the company providing adequate offsets in terms of financing and offsite/infrastructure improvements to balance the downsides of the massive operation.
With the Court of Appeal panel’s tentative ruling, which is likely to be finalized in June or shortly thereafter, the legal and practical leverage a group of activists had previously seemed to have secured toward imposing further conditions on the company building the warehouse now appears to have vanished.
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 the Bridgepoint Distribution Center, 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 on property owned by the Biogiovani Family Trust. Bridge Development was to lease the property from the trust for 50 years, subject to an option to extend the lease another 50 years.
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 committed group of city 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, with Commissioner Alexander Novikov absent, 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 Novikov, on this occasion present, registering 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 in an effort to challenge that approval, 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. In its filing, Upland Community First named the City of Upland and its council as defendants and Bridge Development Partners as a real party in interest.
As a consequence of the Upland Community First legal filing, any action toward the completion of the project, including site grading, was suspended.
The case was assigned to San Bernardino Superior court Judge David Cohn.
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 members, skeptical that Velto could guarantee that Bridge Development would ever deliver on its offer, requested Velto to have Bridge Development Partners put the offer in writing. Velto was unable to get Bridge Development to do so.
Inquiries by the Sentinel with Bridge Development corporate officers in late December 2020/early January 2021 produced a denial from Bridge Development’s First Vice President for Development, Heather Crossner that the company was willing to up the combination of development fees, infrastructure damage/impact offset fees and fees in lieu of sales tax from the $17 million referenced in the documentation considered by the city council when it ratified the development agreement and gave go-ahead to the project in April 2020.
“We cannot comment on any confidential settlement discussions that may or may not be happening, because any such discussions would be confidential under the California Civil Code,” Crossner said at the time, as was quoted in the January 8, 2021 edition of the Sentinel. “We can comment that dollar figures referenced in your questions [$38 million to $40 million] are wholly inaccurate.”
Instead, Crossner in her statement indicated that the best the city could hope to get out of the project was the $17 million the documentation presented to the city council at the April 1, 2020 meeting appeared to promise.
Upland Community First spurned the successive $38 million and $40 offers, insisting that the matter be resolved though the writ of mandate proceeding.
In July 2021, when Judge Cohn finalized his analysis of Upland Community First’s contentions and the city’s responses, he rejected 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; and that 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. Furthermore, 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, most particularly that Bridge Development Partners and Amazon intended at some indefinite point in the future to expand the project from 201,096 square feet to as much as 977,000 square feet, were speculative.
Nevertheless, Judge Cohn entered a finding that the mitigated negative declaration the city council made to clear the way for the project to proceed was inadequate. According to Judge Cohn, Upland Community First and its attorney, Briggs, were correct in 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.
Judge Cohn concluded that the ten thousand metric ton maximum allowable limit of carbon dioxide used by the city in its mitigated negative declaration was on the order of 333 percent of the three thousand metric ton maximum allowable limit of carbon dioxide it should have been.
“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.
Judge Cohn ordered 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.
Though Judge Cohn’s ruling against the city was done on on relatively narrow grounds – that being over the issue of the project’s impact on air quality – it delayed the project and gave those with misgivings about the project time and an opportunity to revisit in a public fashion through social media postings and word of mouth the longterm problems the project would entail.
According to Upland Community First members and others who had analyzed all that the Amazon operation at the BridgePoint Distribution Center was to entail, the city stood to sustain a $160 million liability over the 50-year life of the Bongiovanni Family Trust’s lease of the 50-acres in question to Bridge Development Partners in terms of the loss of sales tax revenue, the destruction or deterioration of the road infrastructure, covering the cost of reducing the production of harmful air pollutants and redressing any other untoward impacts of the project. Upland Community First members said they hoped the lawsuit they had brought would force city officials to take stock of that reality and they would therefore insist on reconsidering the April 2020 approval of the project. In doing so, Upland Community First Members said, they wanted the city to incorporate conditions of approval of a revamped project and development agreement that would involve Bridge Development Partners entering into a community benefit agreement that would require state of the art machinery and vehicles be used as the center to reduce air pollution. In addition, Upland Community First wanted Bridge Development Partners/Amazon to cover the cost of repairing damage to the city’s roadways from the truck traffic generated by the center’s operation. Lastly, Upland Community First members felt city officials should insist that the City of Upland receive from Amazon payments in lieu of sales tax on all merchandise distributed from Amazon’s Upland Distribution Center equivalent to the 1 percent in sales tax the city receives from retail sales that take place in the city.
While Upland city officials were at that point ready to go back to the drawing board and reconsider the project approval, Bridge Development Partners took up the gauntlet and filed an appeal of Judge Cohn’s ruling. The city, initially, did not join in that appeal.
Subsequently, in the November 2022 election, the lone member of the Upland City Council who had voted to oppose the project in April 2020, Janice Elliott, was voted out of office. The presence of her replacement, James Breitling, on the council changed that panel’s dynamics, and in 2023 the council voted to have the city join with Bridge Development Partners in its appeal to the Fourth District Court of Appeal in Riverside.
When Bridge Development Partners had raised its objections to Judge Cohn’s ruling against the city on the lone issue of air quality, Upland Community First utilized the opportunity to revisit the issues it had raised in the writ of mandate upon which Judge Cohn had ruled against it.
The Court of Appeal has now entered a tentative ruling in which it reversed Cohn’s lone finding in favor of Upland Community First.
In that tentative ruling, the Court of Appeal panel summarizes the history of the project proposal and its approval and covers the issues raised in the writ of mandate. With regard to the pertinent issue of of the excessive greenhouse gas emissions that will result from the completion of the project, the panel wrote, “As the California Environmental Quality Act requires, the city performed an initial study of the project to determine whether it may have significant environmental effects. On December 16, 2019, the city circulated the draft initial study and proposed mitigated negative declaration to the public for review and comment. As indicated, the draft mitigated negative declaration analyzed the project as a larger, 276,350-square-foot warehouse, not as the 201,096-
square-foot warehouse Bridge was proposing. The draft mitigated negative declaration concluded that, with mitigation, all environmental impacts of the project would be less than significant. The draft mitigated negative declaration analyzed potential impacts from the project’s greenhouse gas emissions using (1) a quantitative comparison to the 10,000 [metric tons] threshold, which, according to the draft was recommended by the South Coast Air Quality Management District (the SCAQMD), and (2) a qualitative evaluation of the consistency of the project’s greenhouse gas emissions with the Upland 2015 general plan update and climate action plan. Comments on the draft mitigated negative declaration indicated the 10,000 threshold was too high for a mixed-use commercial/industrial warehouse project, and urged the city to use a 3,000 threshold that the South coast Air quality Management District had proposed lead agencies use for all land use projects, and for ‘mixed-use’ commercial/industrial projects in particular.”
The panel’s narrative continues, “In response, and following further working group sessions with the city planning commission, Bridge further refined the project by adding sustainability features ‘to reduce the project’s greenhouse gas emissions even further so that they would be less than 3,000 metric tons of [carbon dioxide equivalent] per year.’ The added sustainability features include solar panels to allow the building to operate with ‘net-zero’ electricity consumption; EV [electric vehicle ]-ready parking spaces and charging stations; and additional landscaping. The city also completed a ‘supplemental greenhouse gas analysis of the project’s emissions, showing that, with revised (increased) baseline emissions, and the added sustainability features, the project would generate 2,904 [metric tones of carbon dioxide each year], less than the 3,000 threshold.’ Like the original greenhouse gas analysis in the draft mitigated negative declaration, the supplemental greenhouse gas analysis assumed the project would be a 276,250-square foot warehouse building. Two peer review entities evaluated and confirmed the city’s supplemental greenhouse gas analysis.”
The panel wrote that Judge Cohn “questioned whether the city ‘relied on’ the 3,000 threshold, given that the supplemental greenhouse gas analysis stated that it was prepared ‘for informational purposes only’ and the city ‘continued to assert’ that the 10,000 threshold ‘was the threshold that applied.’ In sum, the court concluded the city prejudicially abused its discretion in failing ‘to provide substantial evidence to justify the quantitative method used as the greenhouse gas threshold.’ The court also ruled an environmental impact report was not necessarily required; the city could still ‘establish an appropriate threshold of significance’ for greenhouse gas emissions and conclude an mitigated negative declaration was appropriate.”
According to the panel, “a lead agency has substantial discretion in determining the appropriate threshold of significance to evaluate the severity of a particular impact, and the agency’s choice of threshold will be upheld if it is ‘founded on substantial evidence.’ Substantial evidence shows that the 3,000 threshold is an appropriate numerical threshold for measuring the significance of the project’s greenhouse gas emissions. Substantial evidence shows that screening nonindustrial projects for whether their greenhouse gas emissions fall above or below the 3,000 threshold is a reasonable way to screen such projects for cumulatively considerably greenhouse gas emissions.
Substantial evidence also supports the City’s use of the 3,000 threshold in evaluating the significance of this project’s greenhouse gas emissions, after the project was revised during the public comment period to add the sustainability features.”
According to the panel, “The use of the 3,000 threshold use for this project was conservative-it tended to underestimate a reasonable level of greenhouse gas emissions for this project, which a mixed use commercial and industrial project. The record indicates that industrial projects and mixed use commercial and industrial projects tend to have higher greenhouse gas emissions than mixed use commercial and residential projects, commercial projects, and residential projects. But this project, despite its industrial component, is projected to have greenhouse gas emissions below the 3,000 threshold. Thus, the city did not abuse its discretion in concluding the project’s greenhouse gas emissions would not be cumulatively considerable because they will be below the 3,000 threshold. Substantial evidence supports the City’s determination, in its resolution adopting the mitigated negative declaration, that the project, with the added sustainability features and related greenhouse gas-related mitigation measures, will not have significant impacts on greenhouse gas emissions.”
According to the panel, “[T]he city’s resolution adopting the final mitigated negative declaration is supported by substantial evidence, including the supplemental greenhouse gas analysis, which concluded that the project’s greenhouse gas impacts would not be cumulatively considerable because they would not exceed the 3,000 threshold.”
The panel continued, “Upland Community First suggests the supplemental greenhouse gas analysis does not constitute sufficient evidence to support the city’s resolution adopting the mitigated negative declaration because the supplemental greenhouse gas analysis states that it was prepared ‘for informational purposes only.’ As Bridge points out, however, Upland Community First cites no authority that ‘discounts’ the supplemental greenhouse gas analysis ‘as substantial evidence.’ In sum, the city’s resolution adopting the final mitigated negative declaration is supported by the supplemental greenhouse gas analysis and the record as a whole, which show that the project’s net greenhouse gas emissions will not be cumulatively considerable as they will not exceed the 3,000 threshold.”
Moreover, according to the panel, “In its appeal, Upland Community First claims its petition should have been granted on an additional ground, namely, (1) the city performed a legally inadequate analysis of the project’s traffic impacts, and (2) the city’s analyses of the project’s impacts on air quality and greenhouse gas emissions are also inadequate because they relied in part on the city’s deficient traffic analysis. We find no merit to this claim; thus, we reject Upland Community First’s appeal.”
According to the Fourth District Court of Appeal panel, “Upland Community First claims “there is a fair argument that the project will have significant transportation impacts” because the mitigated negative declaration ‘severely understates’ the number of vehicles and vehicle trips the project would generate. As we explain, no substantial evidence shows that the mitigated negative declaration underestimated the number of vehicles or vehicle trips the project would generate.”
Furthermore, the panel stated, “Upland Community First has not shown that the City, in the mitigated negative declaration, the traffic impact analysis, or the vehicle miles travelled analysis, undercounted the “vehicles and vehicle trips” daily passenger car equivalent trips attributable to the project. More broadly, Upland Community First has pointed to no substantial evidence supporting a fair argument that the project could have significant traffic or transportation impacts, based on a vehicle miles travelled methodology or any other analysis.”
In total, Upland Community First fell short in supporting its claim the city’s mitigated negative declaration overlooked significant environmental impacts that will result from the project, the Court of Appeal panel maintains.
Upland Community First’s claim that the project could have significant impacts on air quality and greenhouse gas emissions is based solely on Upland Community First’s unsupported claim that the project could have significant impacts on transportation,” according to the panel. “Because there is no merit to Upland Community First’s claim that the project could have significant transportation impacts, there no merit to Upland Community First’s claim that the project could also, by extension, have significant impacts on air quality and greenhouse gas emissions. The judgment is reversed. The matter is remanded to the superior court with directions to enter a new judgment denying Upland Community First’s writ petition in its entirety.”