Permitting Deception - An Open Letter to the Vallejo City Council
The Vallejo Marine Terminal applicants will no doubt attempt to convince members of our City Council to disregard our City staff recommendation and overturn the Planning Commission decision to deny the VMT and Orcem permits based on the size of their investment in a botched application process. But no amount of money was ever going to buy consistency with the Bay Plan, or bring back break bulk cargo as the basis for a viable business plan. The applicants simply conflated use designations in the Bay Plan when they developed their project application. As a result they spent millions on an environmental review process for a project that the Bay Conservation and Development Commission was never going to permit, and was never economically feasible to begin with. While some may sympathize with the applicants over what has proven a costly and ultimately futile investment, they have no-one to blame but themselves.
A series of communications with the BCDC staff reveals what the abortive draft Final Environmental Impact Report tries to downplay. The VMT permit application our Planning Commissioners will be asked to revive describes a project that fell apart some time ago. The Bay Commission staff has made it clear there is no longer demand for the port operation the VMT permit application describes, and an amendment to the Bay Plan that would allow it is not going to be possible. The most that the BCDC staff has been able to offer is a possibility the Commission may allow the cargo handling operation that the permit application describes in such glowing terms for a temporary period of five to ten years.
The applicants have told the BCDC that they would need to be able to move cargo like aggregate and transformers on a temporary basis, while they look for more industrial tenants to replace three quarters of the total project operation they described in their application. As examples of the kind of water-related industries that would fit with the current Bay Plan designation as additional tenants for the VMT site, the BCDC staff cites petroleum refining, chemical processing, and steel mills. The permit applications and the circulated draft EIR presented a finite project subject to comprehensive evaluation for public review and comment. The project as it sits today is open-ended, and would set in motion a process of heavy industry development in a location no longer appropriate given the character of the surrounding neighborhoods.
These kinds of changes to a project are not allowed midway through the environmental review process, as the statutes and subsequent court interpretations make abundantly clear. The Discussion under California Environmental Quality Act Section 15124 talks about the importance of stable project descriptions and objectives in fulfilling the function of CEQA to provide information to the public and decision-makers. It specifically notes that: "The state court of appeal declared that an accurate, stable, finite project description is an essential element of an informative and legally sufficient EIR under CEQA."
Regardless of how much money the applicants have spent on this process, they have failed to meet either the intent or requirements of CEQA. Dropping Phase 2 of the VMT project was not done in the interest of reducing impacts, as the applicants continue to suggest. The BCDC was not going to allow it since it would only serve the proposed port use. The real reason for the change carries significant long term implications that dwarf any short term effect on environmental impacts.
Our three year general plan update process produced a preferred planning scenario with broad public support that would shut out heavy industry development on the south Vallejo waterfront, and would require amending the Bay Plan to conform. Mr. Loewke, the VMT/Orcem consultant, has tried to convince our Planning Commission that a Bay Plan amendment reflecting the preferred scenario would be far too difficult or expensive. His claims in this regard are ludicrous, and easily refuted by findings in recent BCDC decisions as well as direct quotes from the BCDC staff. His contention rests mainly on the mistaken assumption that sites sharing the Sperry designation for water-related industry under the current Bay Plan are in such short supply that the loss would constitute a significant impact under CEQA, and an amendment from the Commission is out of the question.
In reality the BCDC fully understands that their Bay Plan requires updating, just like Vallejo’s general plan. They’re open to making changes to their plan that reflect changes in local zoning. The Commission demonstrated that willingness in 2011 with significant amendments to the Bay Plan that dropped 2,400 acres formerly reserved for water-related industry at Collinsville. Solano county had amended their general plan to change the zoning on most of the property designated for water-related industry, rendering the county zoning out of conformance with the Bay Plan. The findings in support of the Commissions’s decision to amend the Bay Plan to conform with the County’s zoning adjustments give the lie to Mr. Loewke’s outlandish characterizations of some kind of scarcity:
“...there has been a significant change in the regional economy since the Collinsville water-related industrial site was initially designated in 1969. Increasingly, the region’s economy is based on financial services, technology, innovation and an information-based economy and has become less reliant on the manufacturing, heavy industry and the water-related industrial sectors. This transformation has reduced regional demand for waterfront locations for industrial uses."
The BCDC kept only two hundred acres of vacant riverfront property at Collinsville in the industrial use classification against any future need for such sites. Far from any critical shortage of water-related industry sites, the demand has largely evaporated along with any demand for the break bulk and bulk cargo shipping terminal described in the permit application. The cargo report issued in 2014 explains that demand for break bulk cargo has literally vanished, with no movement reported through any Bay port since 2006. There is also significant over-capacity for bulk cargo at current Bay area ports, and the Commission is not going to amend the Bay Plan to permit a port use for which there’s no demand.
The BCDC staff responded directly to questions from the public about Mr. Loewke’s dire assessment of the prospects for a Bay Plan amendment to reflect a change in the local general plan. Again, they paint a picture markedly different from that portrayed by the project consultant:
“We understand some statements were made at a public meeting by Mr. Loewke, representative for the Vallejo Marine Terminal/ORCEM project about the priority use designation in the San Francisco Bay Plan of the former General Mill site in the City of Vallejo as "water-related industry." No BCDC personnel were at the meeting, but the members of the public claim that Mr. Loewke gave the impression that BCDC would not be amenable to changing this designation in the Bay Plan and also speculated on the cost of any Bay Plan amendments.”
“The priority use designations in the Bay Plan were intended to reserve specific areas along the shoreline for particular Bay-related uses and usually reflect the local government's zoning for a particular site. The designations can be changed through a Bay Plan amendment. If the City decided to change the zoning or general plan so that the site could no longer be used for a water-related industrial use, BCDC would likely have to engage the City in a Bay Plan amendment process. As far as I know, no one from BCDC staff has had any discussion with the City about removing the water-related industry designation, but we would be happy to engage the City to discuss the planning process that would be required.”
Vallejo has engaged in this type of cooperative planning effort with BCDC in the past for the White Slough Specific Area Plan - as Benicia has done to change zoning for port-designated property - and as has Solano county recently did at Collinsville. It isn’t unusual or difficult at all. Mr. Loewke’s cherry-picked quotes from an outdated Bay Plan document represent a transparent attempt to mislead the members of the Planning Commission and the public about constraints on local control. Don’t be fooled - we have every right and indeed an obligation to plan for our future. We’re not held prisoner by legacy land use policies that no longer fit surrounding neighborhoods. Mr. Loewke has been thoroughly disingenuous in presenting this case to the Planning Commission, which should call his credibility into question when he now lobbies members to act in opposition to the recommendation of our City staff, who have come to know him well.
There is also little doubt the protestations over all the money they’ve spent on the process will be accompanied by veiled or explicit threats of legal action to recover damages. While they can always try, the applicants have scant reason to hope the effort will go anywhere. They took a business risk when they applied for use permits and funded the subsequent EIR. In hindsight it was an extremely poor risk, since they neglected to develop a viable business plan and are still groping for one today. The EIR tells us that the project wouldn’t be economically feasible without Orcem, which would only use a quarter of the terminal capacity. They lost fully three quarters of what little operational economic feasibility there might have been with the news from the BCDC that the port operation would only be permitted for a short time, if allowed at all. There’s a price to pay when you don’t do your homework, and in this case it rightly falls on the applicants and not the residents of south Vallejo, who played no part in making these terrible decisions.
Our public planning process, the health of our children, and the character of our neighborhoods are not for sale. The citizens of Vallejo will no longer accept this kind of sorry excuse for land use planning, as the 2,600 comments on the draft EIR demonstrate. The VMT/Orcem applicants are not the only ones who can talk about consequences, and they will soon be gone. We aren’t going anywhere, and we will not forget. Our City Council should be prepared to reap the whirlwind if they fail to do what is so obviously in the best interest of our City and generations of Vallejoans who follow.
Our City staff knows intimately the relative merits of this project and where responsibility lies for the sorry state of these permit applications. They have acted properly and provided the members of our decision-making bodies with the recommendations and reasons they require to do the same. All our Council members need do when the matter comes before them is act responsibly, follow the staff recommendations, and deny the appeal of the Planning Commission's decision.