Little more than a fortnight after Big Bear Lake officials blindsided those living within one of the city’s residential districts by undertaking the construction of a garbage dump in their neighborhood, residents have struck back, hitting the city manager and senior city administrators with a series of moves they did not anticipate.
Over the weekend of October 11/12, word was spreading among a handful of residents in Big Bear Lake that the city was closing out its Clean Bear Site #2, located at 39690 Big Bear Boulevard, and was going to replace it with one to be sited on two lots owned by the city near the corner of Lark and Cienega roads, adjacent to an existing residential neighborhood.
The Clean Bear program in the City of Big Bear Lake provides drop-off locations for residents and tourists – that is tenants and guests of owners of residential properties within the city – who cannot use curbside trash service. The sites accept household refuse, recycling, green/yard waste, pine needles, E-waste and ashes.
That the city properties adjoining Lark and Cienega roads was jarring to those who lived in the neighborhood, which included the aforementioned Lark Road and Cienega Road, as well as Cienega Court, Moab Lane and the area around the Sacred Heart Camp and Retreat. Residents of the area had not been alerted to any items on the city’s planning commission and city council agendas referencing development projects in the area or mention of an alteration of the city’s zoning maps or codes that would have presaged development in the general or specific area. As their had been no hint of any development proposal, including those in compliance with the area’s residential zoning or proposals of any other type, dismay and panic ensued.
One resident in particular, Sue Ellis, who lives with her family on Lark Road proximate to the parcel at the corner of Cienega Road and Lark Road, initiated phone calls to City Hall and then drove there. She reported that over a period of four days, consisting of October 13, 14, 15 and 16 when City Hall was open, she was unable to find anyone in place at the civic center who had any direct knowledge about the circulating rumor. Any city employees working in either city administration or the city’s planning/land use divisions who knew anything about the project, she was told, were out in the field or in meetings, such that they could not be disturbed.
On October 20, those in the Cienega/Lark neighborhood were awakened to the sound of trees being felled, heavy equipment rumbling into place and base for paving being unloaded onto the city’s two parcels. That day, she composed a formal letter to the city, requesting veracity and clarity with regard to the work that was starting at the site. This brought a response from the city’s director of economic development, Kelly Tinker, who acknowledged that the project was under way. She shared Tinker’s response with one of her neighbors, Seth Feldman, who contacted another Big Bear Lake resident, Peter Ciulla.
Both Feldman and Ciulla were alarmed at the city’s action and agreed to look into the matter
Ciulla initiated an in-depth examination of the action the city was taking, extending to the zoning on the property in question, the city’s approval process or lack thereof for the project, the city’s regulations with regard to project’s including the city code and Big Bear Lake’s development code and state environmental regulations as pertain to development.
Feldmen penned a letter outlining his concerns about the city’s actions.
In making his inquiries, Ciulla had queried Tinker about what was going on at the property. On October 27, Tinker had emailed him, informing him that the property was being prepared for use as a “temporary staging area” without specifying what the city’s long-term goal with regard to the property was.
On October 28, Ciulla responded by sending a letter via email to both Tinker and Big Bear City Manager Eric Sund, stating in the body of the email that Sund, Tinker and other city officials should deem him to be writing “On behalf of myself and other concerned residents in the area.”
While thanking Tinker for her October 27 email, Ciulla lamented that “far from clarifying the city’s intent, confirms that the city’s current actions are procedurally improper and legally void. This letter serves as a formal demand that the City of Big Bear Lake immediately cease and desist all work, grading, and use of any and all city-owned parcels on Cienega Road, including, but not limited to, APNs 030721218 and 030721215, for a ‘temporary staging area’ or any other purpose not explicitly permitted by the parcels’ R-1 (Single-Family Residential) zoning.”
The city’s actions are unlawful, Ciulla contended, because a temporary use permit in this circumstance is legally invalid because “The subject parcels are zoned R-1 (Single-Family Residential) [and] er the Big Bear Lake Development Code (e.g., Table 17.25.030.A), a ‘public works staging area’ or ‘waste facility’ is not a permitted or conditionally permitted use. It is, by omission, a prohibited use.”
Furthermore, Ciulla’s missive holds that “The temporary use permit ordinance (Section 17.03.290) requires the city to make a finding that the temporary use is ‘compatible with surrounding land uses’ [and] It is a legal impossibility for an administrative body to ‘find’ a use to be ‘compatible’ when the city council, in its legislative capacity, has already deemed that exact use incompatible by prohibiting it in the zoning code. The temporary use permit is a legal fiction that cannot authorize a prohibited use.”
In moving to construct a trash dump or trash holding facility, temporary or permanent, on property zoned solely for residential use and proximate to existing residential uses, according to Ciulla, violates both the City of Big Bear lake’s development code and State of California’s environmental law.
In pursuing the project, Ciulla contended, the city knowingly misapplied its conditional use permitting process. “[Y]our suggestion that a permanent facility can be authorized by a ‘conditional use permit process’ is a demonstrable misrepresentation of the development code. A conditional use permit is an administrative tool that can only be used for uses already listed as conditional in the R-1 zone. A waste facility is not. The city’s correct zone for this industrial use is the C-5 (Commercial-Industrial) zone, which explicitly lists ‘waste management facilities, and utility yards’ as a permitted use. The city is fully aware that its only legal path to place a C-5 use on R-1 land is via a high-barrier, legislative general plan amendment and zone change. The city’s claim of a ‘conditional use permit’ path appears to be an intentional effort to bypass this required, more rigorous, and more public legislative process.”
Ciulla asserted that “[T]he city is in clear violation of the California Environmental Quality Act.”
Under the California Environmental Quality Act, an examination of the environmental impacts of a project must be made. Some discretion is left to the governmental decision-making body that oversees land use issues and possesses approval and/or denial authority over a development project as to what type of analysis of the environmental issues is to be carried out and what mitigations of the impacts are to be required.
A simple negative declaration is the least exacting type of development impact assessments and a mitigated negative declaration is the second-least stringent type of development impact assessments. Both a negative declaration and a mitigated negative declaration utilize a cataloging of the environmental impacts referred to as an initial study. On the other end of the scale, an environmental impact report is the most involved and exhaustive type of environmental analysis and certification there is, followed by an environmental impact study, then an environmental impact assessment, then a mitigated negative declaration and a negative declaration. An environmental impact report consists of an in-depth 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. An environmental impact report specifies in detail what measures can, will and must be carried out to offset those impacts. An environmental impact study is somewhat less exacting and an environmental impact assessment less stringent still. A mitigated negative declaration is a statement by the ultimate land use authority – either the city council or the planning commission – that any identified impacts from the project will be mitigated or offset by the conditions of approval for the project. A negative declaration, the least exacting type of certification there is, merely states that the initial study done by city staff or a paid consultant sufficiently identified any environmental issues and that there are no environmental problems of consequence involved in the proposed project.
According to Ciulla, “The city’s choice to use a discretionary temporary use permit —which requires subjective findings on ‘compatibility’ and ‘noise impacts’—definitively establishes this project as a ‘discretionary project’ under the California Environmental Quality Act. The city’s immunity from its own zoning (under Government Code § 53090) does not provide immunity from state law. The city has a non-delegable duty to comply with the California Environmental Quality Act. The city’s failure to perform, at a minimum, an initial study (IS) before approving the temporary use permit and before beginning any work on the site is a clear and fatal violation of state law.”
Declaring that “An environmental review is not a formality,” Ciulla told Sund and Tinker, “The project has obvious potential for significant environmental impacts that the city is now attempting to conceal, which include, but are not limited to incompatible land use, public safety & traffic [and] environmental sensitivity.”
The city is the project proponent and what it is undertaking to do is to relocate the current recycling transfer station, which is known as the Clean Bear Site #2 from Highway 18 at 39690 Big Bear Boulevard into the setting of the residential neighborhood at the corner of Lark Road and Cienega Road. As a consequence of the project, dump trucks and tourist traffic would be routed off the two-lane highway and onto the narrow, underdeveloped one-lane road, which entails dangerous blind corners and congestion when tourists come into the area.
With regard to the issue of incompatible land use, Ciulla asserted, “The introduction of an industrial operation (heavy trucks, waste, noise, odor) into an area zoned R-1 (Single-Family Residential) and directly adjacent to areas zoned R-L (Residential-Low)… is fundamentally incompatible with the entire residential fabric of the neighborhood and is immediately adjacent to sensitive receptors including the Sacred Heart Retreat Center.”
Ciulla said the project would endanger public safety and create traffic hazards. “Funneling heavy trucks and tourist traffic onto Cienega Road, a narrow, substandard residential street creates an indefensible public safety hazard and a critical bottleneck at Big Bear Boulevard.
Ciulla encapsulated the environmental sensitivity of the project by noting, “The grading and development of a heavily wooded lot located within a California Department of Forestry and Fire Protection-designated Very High Fire Hazard Severity Zone (VHFHSZ) demands, not avoids, environmental scrutiny.”
In his missive to Sund and Tinker, Ciulla made a “demand for immediate action. We are not interested in a meeting to ‘discuss… temporary operations.’ The temporary operations are unlawful. We formally demand that the City of Big Bear Lake immediately cease and desist all operations, grading, and use of the Cienega Road parcels that are not permitted by the parcels’ R-1 (Single-Family Residential) zoning; immediately rescind the illegal temporary use permit; and provide written assurance within five business days that all work has stopped and that no further action will be taken on this site without full compliance with the Development Code (via a general plan amendment/zone change) and the California Environmental Quality Act.”
Ciulla said he and other residents in the neighborhood “are fully prepared to take all necessary actions to protect our community and enforce the law. This includes, but is not limited to, seeking an immediate injunction to halt all activity and filing a writ of mandamus for the city’s clear and willful violation of the California Environmental Quality Act.”
Simultaneous to the reception of Ciulla’s letter to Sund and Tinker, what Ellis referred to as a coalition had formed to stop the project, manifesting in an informational campaign involving flyers and social media postings, describing and decrying the activity that was taking place, questioning its legality while explaining that the city was the project proponent that had utilized its authority to defy the law and calling for citizen protest and counteraction in response.
Direct manifestations of these were a letter writing campaign aimed at elected city officials and City Hall staff to impress on them the dim view residents have taken with regard to the project, as well as a telephone call blitz to convince city officials they should rethink what they are doing. There is now an effort underway to prompt citizen participation at the Wednesday, November 5 Big Bear Lake Planning Commission meeting to be held at the unusual time of 1:15 p.m. and the regular city council meeting scheduled for Thursday, November 6 at 4 p.m.
City officials were as taken aback by the resident reaction and Ciulla’s letter as the residents were thunderstruck by the city’s clearing of the property, removal of trees, grading, the pouring of base and initiation of construction activity on the lot at the confluence of Lark and Cienega Roads.
Indeed, Sund came across as having been put into a state of paralysis by the developing resistance to the project.
The Sentinel this week made multiple attempts to reach him at his office at City Hall to no avail. Thereafter, it sent an email to both his personal and city email address. In the email the Sentinel sought to determine if the residents’ widespread perception that the parcel owned by the city in the environs of the 39000 block of Lark Road was being altered for the purpose of holding trash, i.e., essentially replacing the function of the current facility at 39690 Big Bear Boulevard, whether there were some inaccuracies in the presumptions of the residents of that neighborhood and whether he could provide the Sentinel’s readership a concise, cogent and accurate size-up of what is actually occurring.
The Sentinel inquired of Sund as to whether he could refute the residents’ contention that the activity taking place on the lot at Lark and Cienega roads and what was to be established there is incompatible with the nature and tenor of their neighborhood and the predominantly residential uses in that neck of the woods. The Sentinel noted the residents’ assertion that the use of the property in question is confined, by law, to residential use only, and that the city cannot legally rezone the property and it cannot develop the property for anything other than residential use. Moreover, it was pointed out that the residents specifically objected, in the most adamant of terms, that the site in question could be transformed into a trash dump, trash holding station or trash transfer station. The Sentinel asked if the residents were right about what is going onto the property and if not what the property is going to become. The Sentinel inquired whether the city’s intended use of the property matches the zoning and, if the use does not match the zoning, what process of adaptation was made or is to be made to allow a nonresidential use on that property.
The Sentinel referenced the widespread perception on the part of the residents living proximate to the project that the city blindsided them by initiating the project without any warning. The Sentinel asked if the project or the alteration of the Clean Bear Program was previewed to the public and then discussed in a public hearing and voted upon, either by the city council or the planning commission. The Sentinel requested that Sund cite those meeting dates, agendas and minutes that document the proper notification of the project and its approval took place. The Sentinel asked Sund to explicate how it is that those most directly impacted by this project or the Clean Bear Program alteration learned of it only after they detected physical activity/preparations on the property in question. The Sentinel asked Sund what his response is to the complaints and contentions of those living in the Cienega Road/Lark Road neighborhood that they were not afforded the opportunity to offer their input with regard to the project/program alteration before the city committed to proceeding with it and if it is now his belief that the City of Big Bear Lake got ahead of itself in moving forward with a project/program that was not given adequate citizen review. The Sentinel offered Sund the opportunity to explain how the activity the city is undertaking on the property at the juncture of Cienega and Lark roads falls entirely within the rights of the city as a municipal agency and will be of betterment to the entire community.
Sund made no response to the Sentinel’s email.