DATE: April 14, 2016
TO: Planning Commission
FROM: Planning Manager
SUBJECT
Title
Appeal of Planning Director Decision to Deny an Administrative Use Permit to Establish an Outdoor Concrete and Asphalt Crushing Operation at 30120 Industrial Parkway Southwest in the Industrial (I) District, Frank Sanchez (Applicant)/Steve Navarro, Industrial Parkway LLC (Owner).
Recommendation
RECOMMENDATION
That the Planning Commission denies the appeal and upholds the decision of the Planning Director to deny the administrative use permit for the proposed outdoor concrete and asphalt crushing operation, subject to the Findings for Denial set forth in Attachment I.
Body
SUMMARY
In October 2015, the Planning Director adopted findings for denial of an Administrative Use Permit (AUP) associated with an existing outdoor concrete and aggregate recycling plant that was the subject of a Code Enforcement action. The Planning Director denied the proposed project on the following grounds: the outdoor, heavy industrial use is not in character with the regional commercial center located approximately 300 feet south and west of the site; the use is not necessary for public convenience in that the City has two approved concrete and aggregate recycling plants within the City limits; and the use could be detrimental to public welfare in that it could result in visual, polluting dust and noise impacts on surrounding properties and individuals, among other rationale detailed in Attachment I.
Following the Planning Director’s denial, the applicant filed an appeal of 1) the Planning Director’s determination that an AUP is required for this use in this location; and 2) the Planning Director’s findings related to the denial. Staff believes that the findings stand for the reasons stated in Attachment I and in this staff report and recommends that the Planning Commission deny the appeal and uphold the Planning Director’s decision based on the findings.
BACKGROUND
On November 17, 2011, NorCal Rock Inc. (“NorCal”) submitted a business license application to the City’s Planning Division. The business license application description noted “aggregates/retail.” NorCal is located on the same site as FGY Stone, which obtained a business license in 2005. The business license description for FGY Stone specified that the business consisted of “retail sales of stone/marble/cabinets NO OUTDOOR STORAGE (MAY REQUIRE OBTAINING A PERMIT).” Thus, NorCal’s business license was approved and the use was considered a continuation of the existing retail sales of aggregates on the site in line with FGY Stone’s stated use. There was no mention of the site being used to crush and otherwise process concrete or aggregates, nor did the City approve such a use related to the site (Attachment XIII).
In October 2011, the City received an initial complaint about dirt and gravel being tracked onto Industrial Parkway from contractor vehicles visiting the subject site. At the time, it was inconclusive whether the materials emanated from NorCal or an adjacent aggregate retail sales business. In February 2012, the City received a complaint related to dust emanating from concrete crushing activities at the site; however, Code Enforcement records do not indicate that there was a site visit to verify whether the use was being conducted at the site. Following a third complaint September 2013, Code Enforcement inspected the site and determined that the use at the site was not “aggregates/retail” as described in the business license. Rather, the use was confirmed as an unpermitted outdoor concrete and aggregate recycling operation with major outdoor storage. Following this determination, a Notice of Violation was sent to the business and property owner.
On October 31, 2013, NorCal filed an application for AUP to operate a concrete and aggregate recycling business outside of a building, and the application was deemed incomplete on November 26, 2013. Between November 2013 and May 2014, the applicant failed to make the application complete; however, the business continued to operate without approvals or permits. In addition, the applicant constructed an approximately ten foot tall unengineered concrete block wall between 2013 and 2014 without appropriate permits or approvals, which collapsed onto the adjacent property on at least one documented occasion (Attachment VI).
Following a thorough review of the AUP application materials submitted to the Planning Division up to that date, the AUP was denied on May 9, 2014. On May 16, 2014, the applicant contested the denial pursuant to Hayward Municipal Code (HMC) Section 10-1.2815(d), which requires that an application be deemed complete prior to issuance of a decision. Following review of the application materials, the City rescinded the denial of the AUP and continued processing the application.
Throughout 2014, the applicant provided partial resubmittals related to the project resulting in incomplete status letters dated July 16, 2014 and November 17, 2014. The application remained incomplete because the resubmittals did not adequately address dust suppression, stormwater run-off control and landscaping.
In July 2014, the applicant obtained permits from the Bay Area Air Quality Management District (BAAQMD) to allow stockpiles, screening, and conveying related to a portable crushing plant and diesel generator at the site. The BAAQMD did not contact the City prior to issuing the permits. According to the permits, conditions limited the tonnage processed at the site as well as the hours of operation (no more than 495 hours per year which translates into approximately one and a half hours per day). Condition No. 1a of the BAAQMD Permit to Operate described the crushing plant and diesel generator as “portable” and stated that the equipment shall not be stored or operated at any one location for more than twelve consecutive months. Further, the condition disallows the operator to move the equipment and then return it to the same location in an attempt to circumvent the portable equipment time requirement.
Although the application remained incomplete, the use continued to operate. Recognizing that the continued operation of the unpermitted use was illegal and unsafe, the City’s Code Enforcement Division issued a Notice of Violation on July 28, 2015, and the City of Hayward Division of Stormwater Management and Urban Run-Off Control issued a Warning Notice on August 5, 2015.
On September 16, 2015, following the official notices of warning and violation, NorCal submitted revised plans that addressed the unresolved comments and issues provided in the most recent status letter and in subsequent correspondence between the applicant and Planning staff. On October 5, 2015, Planning staff notified the applicant that the application was deemed complete. On October 27, 2015, the Planning Director administratively denied the AUP.
Other Concrete & Aggregate Recycling Businesses in Hayward - It is essential to note as part of the Background on this project that two other concrete and aggregate recycling businesses were also cited for illegal operation around 2013, and were also notified about the need to apply for and receive AUP approval in order to continue to process concrete and aggregates outside of a building.
In June 2013, A1 Tank submitted an AUP application for outdoor concrete recycling at an approximately one-acre site at 1069-1089 Industrial Parkway West in the Industrial District. Following community opposition from a nearby residential neighborhood, the applicant modified the application to move the concrete crushing operation into a building. Following release of a Negative Declaration for the requisite 20-day public review, the applicant was granted Site Plan Review (SPR) approval for the building and use in February 2015. As of this date, the applicant submitted building permit plans for the site preparation and grading.
In April 2014, Bay Area Concrete Recycling submitted an application for outdoor concrete and aggregate recycling at an approximately seven-acre site at 3898 and 3890 Depot Road in the Industrial District. Following release of a Mitigated Negative Declaration for the requisite 20-day public review, the applicant was granted AUP approval for the use and associated site improvements in May 2015. As of this date, the applicant is exploring a project change to bring the operation into a building or under cover based on potential stormwater run-off issues related to uncovered piles and processing of concrete.
Zoning - The proposed project site is located in the Industrial District, which is intended to provide for and encourage the development of industrial uses in areas suitable for the same, and to promote a desirable and attractive working environment with a minimum of detriment to surrounding properties.
Outdoor concrete and asphalt recycling is not specifically listed as a primary or conditional use in the HMC. Pursuant to HMC 10-1.140, when a use is not specifically listed in the sections devoted to “Uses Permitted,” it shall be assumed that such uses are prohibited unless it is determined by the Planning Director or on appeal, that the use is similar to and not more objectionable or intensive than the uses listed. Other relevant sections of the Municipal Code (HMC Sections 10-1.175 and HMC Sections 10-1.1645) strictly call for all uses and activities to occur entirely within a building.
Pursuant to the authority granted by the Municipal Code, the Planning Director determined that the proposed outdoor concrete and aggregate recycling use would be subject to an AUP based on the fact that the proposed use involved operations, processing and storage of heavy machinery and materials outside of a building, which is more intensive and objectionable than the uses listed as permitted without need for a use permit in the I District.
General Plan - The proposed project site has an Industrial Technology and Innovation Corridor General Plan land use designation where professional offices and corporate campuses, research and development, warehousing and logistics, traditional, advanced and specialized manufacturing and biotechnology and high technology uses are allowed. Various goals and policies support employee intensive uses (Goal LU-6, and Policy LU-6.1); to support upgrading existing sites and buildings to improve the economic viability of properties and to enhance the visual character of the corridor (Policy LU-6.6); and to implement design strategies such as screening areas used for outdoor storage and processing (Policy LU-6.7), among others.
Approximately 300 feet south and west of the project site, there are several properties with a Retail and Office Commercial General Plan land use designation where regional and community shopping centers and professional office developments are identified primary uses.
Proposed Site and Project - The flat, roughly rectangular 2.18 acre project site is accessed from an approximately 35-foot wide driveway from Industrial Parkway SW over the Alameda County Flood Control channel. The driveway extends to an approximately 14,500 square foot access easement which runs along the western portion of the property and provides access and parking for the project site and adjacent parcels. The subject site is partially developed with an approximately 7,430 square foot warehouse that was constructed in the mid-1960s. FGY Stone occupies the warehouse and a small portion of the site.
The proposed concrete and aggregate recycling plant would be located on an approximately 1.5-acre portion of the subject site. The concrete and aggregate recycling area is surrounded by a combination security fence with gate and a perimeter block wall that reaches ten feet tall along the northern, southern and western boundaries of the subject site and approximately seven and a half feet tall along the interior property lines.
There are five or six large uncovered piles of aggregate, processed sand, rock, concrete and asphalt placed around the site. The piles reach roughly fifteen to twenty feet in height and are placed up against the southern boundary wall, a few feet away from the northern property line and about ten feet away from the eastern (rear) property line. All of the truck circulation and processing equipment is placed at the center and rear of the property as shown in Attachment IV (Project Plans). With regard to operations, the AUP application request sought a permit to operate twenty-four hours a day, seven days a week with typical operating hours on Monday through Friday from 6 a.m. to 4 p.m.
Current photos of the site are included as Attachment VII, and videos of the use in operation both from the site and a neighboring property are available for view online <https://www.dropbox.com/sh/egnjd19c6f88hmv/AABAtpuY0c0-macTpt1RVvsYa?dl=0>.
DISCUSSION AND STAFF ANALYSIS
As described in the November 12, 2015 appeal letter (Attachment III), the applicant is appealing two decisions. The first issue on appeal is the Planning Director determination that an AUP is required and the second issue on appeal relates to the denial of the AUP; both issues are discussed in detail below.
Appeal of Planning Director Determination that an Administrative Use Permit is Required - NorCal obtained a business license under the pretense of operating as an aggregate retailer like FGY Stone, which is located on the same site. In light of the exclusionary nature of the City’s Zoning Ordinance as described above, the Planning Director has the authority to require a discretionary approval process if a use proves to be more objectionable or intensive than the primary uses listed in the subject district.
The HMC plainly states that all uses and activities shall be conducted indoors with the exception of minor open storage and based on compatibility with adjoining uses. Thus, any use that involves processing of materials solely outdoors would constitute a significant deviation from standard land use and zoning practice and deserves added scrutiny and consideration of compatibility with surrounding uses.
Primary uses listed in the Industrial District occur within buildings. Thus the proposal to operate a concrete and aggregate crushing operation outdoors is significantly more intensive than the primary uses envisioned for the subject district, and could arguably result in objectionable impacts related to dust and noise, polluted stormwater run-off as well as visual impacts related to large-scale equipment and aggregate piles. In summary, the Planning Director was within the authority granted by the Municipal Code to require that the business apply for and obtain a discretionary administrative use permit to operate.
The appeal letter claims that the concrete and aggregate recycling operation is a continuation of an existing use on the site (i.e. “grandfathered in”); specifically, page 2 of the applicant’s letter states that the prior use on the site involved composting and providing outdoor storage for trucks, freighters and equipment. However, historic aerial photos of the site (Attachment V) show that the site was solely used as a passive truck and equipment storage yard and there was no visible evidence indicating that any active, outdoor processing of any materials was conducted on the site. Further, there are no City records (prior use permit or business license) indicating that such activity occurred on the site.
In summary, there is no evidence indicating that the use was being conducted prior to 2009.
Appeal of Planning Director Denial of Administrative Use Permit for Outdoor Concrete and Aggregate Recycling - The applicant’s appeal states that the findings for denial cannot be supported by and are unrelated to the findings for an AUP as set forth in the HMC. However, staff believes that all of the findings are supported and are underpinned by one significant issue: the land use incompatibility between the proposed use and the surrounding area. Specifically, the proposed use involving concrete and aggregate crushing with large-scale equipment and stockpiling of materials up to twenty feet tall outside of a building is fundamentally incompatible with the nearby retail center commercial uses and the City’s overall long-term vision for the area.
According to HMC Section 10-1.3105, the purpose for requiring an AUP is to assure that certain specified uses are permitted where there is a community need and to assure that said uses occur in maximum harmony with the area and in accordance with official City policies.
With regard to the question of community need, staff does acknowledge that there is a need for such services in the region; however, the City approved two concrete and aggregate recyclers within the City limits. One will operate within a building and the other will operate on a five-acre parcel, surrounded by other heavy industrial uses. According to records provided by the BAAQMD for Alameda and Santa Clara counties, the only jurisdictions with more than one permitted concrete recycler are Oakland (population 413,775 in 2014) and San Jose (population 1,015,785 in 2014), both of which are clearly many times larger than Hayward (population 154,612 in 2014). Thus, there is not a demonstrated community need for a third outdoor concrete and aggregate recycler within the City of Hayward limits, particularly for one that would be located in close proximity to a well-established regional commercial center.
The proposed use is not in maximum harmony with the area. The use is proposed within a few hundred feet of a major regional commercial center, which is described in the City’s General Plan (Land Use Goal LU-5) as an opportunity to “promote attractive and vibrant community and regional centers that provide convenient and enhanced opportunities for shopping, services, entertainment, social interaction and culture.”
Although the project site is located in the Industrial District, the area surrounding the site has changed significantly over the past twenty years and it is continuing to evolve from industrial to light industrial and commercial, retail uses that are consistent with the City’s General Plan vision for the area. In fact, the transformation of the area south and west of the site into a regional commercial and retail center is well-established both in the current and planned development. The approximately one-acre project site is located less than 1,000 feet northeast of retail and commercial uses including a Motel 6, McDonald’s and Denny’s that were built in the 1980’s; a Home Depot and other supporting retail uses constructed in the early 1990s; a large-scale Target store established in the early 2000s; a strip retail center with Panda Express among other commercial uses that was built in 2005; and more recently, a 24-Hour Fitness (2013) and City Health Club along with supporting commercial uses were established in the vicinity of the project site in 2013. In addition, the City is currently processing an application to convert an existing warehouse adjacent to the site into a large scale retail center to expand the regional commercial uses in the area in line with the expansion over the past two decades.
It is true that the immediately adjacent neighboring properties to the project site involve light industrial uses and outdoor storage of materials; however, those uses are primarily passive and do not involve major processing outside of a building as is the case with NorCal. While formal noise, air quality and other environmental studies were not provided for the proposed project, staff visited the site and observed the operation on several occasions. The tall stockpiles and large scale industrial equipment on the site is clearly visible from surrounding streets and commercial sites; and noise is audible on adjacent sites when the use is operating. In addition, based on conversations with adjacent businesses in the multi-tenant building located at 30162 through 30208 Industrial Parkway Southwest and the warehouse building located at 312589 and 31281 Wiegman Road, there is a large amount of dust blown onto adjacent properties, which may be attributable to the site.
Further, the proposed use accepts concrete and aggregate materials from various jobs and contractors and cannot know the chemicals, fillers or other materials mixed with the concrete and aggregate. There is a high potential for windblown contamination from concrete dust containing silica dust, Mercury and polychlorinated biphenyl (PCBs) among other potential contaminants. Dust and chemicals escaping the site will settle on adjacent properties, roadways and cars and will run-off following exposure to rainwater into the City’s storm drain system, and nearby drainages such as the Alameda County flood control channel approximately 100 feet from the site and eventually into the San Francisco Bay. The high potential of polluted runoff from such a proposed use is in direct violation of the City’s Municipal Code Section 11-5.19 and the Municipal Regional Permit (MRP) issued from the San Francisco Regional Water Quality Control Board that regulates the City’s stormwater runoff.
Overall, the proposed project is not consistent with the City’s vision, goals or policies for the Industrial Corridor and the nearby Retail and Office Commercial General Plan land use designations; it is incompatible with the surrounding neighborhood; has high potential to impact air and water quality; and it would not promote a desirable or attractive working environment.
ENVIRONMENTAL REVIEW
Pursuant to California Environmental Quality Act (CEQA) Guidelines Section 15270(a), CEQA does not apply to projects that are disapproved by a public agency. While a formal Initial Study was not completed for the project, staff has observed or is aware of aesthetic, noise, air quality and stormwater related impacts from the ongoing use of the site as an outdoor concrete and aggregate recycling plant.
PUBLIC OUTREACH
In November 2013, an Official Notice of receipt of the use permit application was sent to adjacent property owners and businesses within a 300 foot radius of the proposed project site. Following this notice and throughout 2014 and 2015, staff received numerous complaints from an adjacent neighbor/owner related to dust, air quality impacts, odors and noise (Attachment VIII). Staff met with the neighbor and observed the operation from the adjacent site verifying that there is noise emanating from the operation and dust accumulation on materials stored outdoors, which may be emanating from the proposed use. Staff also visited the adjacent retail center and notified the tenants about the proposed project and appeal of the Planning Director’s decision. The same adjacent neighbor/owner recently submitted the same letter he submitted in 2014 (Attachment IX).
On October 27, 2015, a Notice of Denial was sent to adjacent property owners and businesses within a 300 foot radius of the proposed project site as well as a list of interested parties. An official notice of the applicant’s appeal was not provided to the standard 300 foot mailing list. However, staff visited the nearest commercial tenants and notified them about the appeal.
On April 4, 2016, a Notice of Public Hearing for the Planning Commission meeting was mailed to adjacent property owners and businesses within a 300 foot radius of the proposed project, and to interested parties. At the time this report was written, staff has received correspondence from representatives of the adjacent property (30104 Industrial Parkway SW) urging the Commission to support staff’s recommendation of denial (Attachments X and XI); and, correspondence from the applicant inviting the Commission to visit the site and uphold the applicant’s appeal (Attachment XII).
NEXT STEPS
Should the Planning Commission take action on the appeal at this hearing, the Commission’s decision would begin a 10-day appeal period, where an appeal of the Commission’s action to the City Council could be filed (or call-up to Council by a Council member could be submitted), which would expire at 5:00 p.m. on April 25, 2016.
If the current appeal is upheld, and there is no appeal of the Commission’s action filed within that time period, then the application will come back to Planning staff for environmental analysis. (Per the California Environmental Quality Act (CEQA), environmental impact analysis is not required to be done for projects that are denied.) The applicant would be required to submit formal Air Quality and Noise studies, among other items if deemed necessary, to allow staff to conduct environmental impact analysis and prepare an Initial Study for the proposed use. Following the requisite public review, staff would prepare findings and conditions of approval, including all mitigation measures to reduce environmental impacts for the proposed project. .
If the appeal is denied and no appeal of that action is filed, the decision of the Planning Commission would be final and Code Enforcement would issue a violation letter requiring that the property be cleared of the use within a certain timeframe. If the use continues to operate illegally, Code Enforcement would cloud the title and assess fines until the applicant ceases the use and clears the property.
Staff contact
Prepared by: Leigha Schmidt, Senior Planner
Approved by:
Sara Buizer, AICP, Planning Manager
David Rizk, AICP
Development Services Director
end
Attachments:
Attachment I -Findings for Denial
Attachment II - Area and Zoning Map
Attachment III - Appeal Letter
Attachment IV - Project Plans
Attachment V - Historic Aerial Photos
Attachment VI - Block Wall Collapse
Attachment VII - Site Photos
Attachment VIII - Neighbor Complaints and Photos (2014)
Attachment IX - Correspondence from Andy Liu in Opposition to Project, April 4, 2016
Attachment X - Correspondence from Holder Law Group in Opposition to Project, April 6, 2016
Attachment XI - Correspondence from Soluri Meserve in Opposition to Project, April 7, 2016
Attachment XII - Correspondence from NorCal Rock in Favor of Project, April 7, 2016
Attachment XIII - NorCal Business License Application (2012)