Last Friday, Feb. 25, 2022, attorneys representing Discovery Builders and their Faria new home development requested a new trial for the lawsuit by Save Mount Diablo, following a judge’s decision in favor of the environmental group to stop the project. As previously reported, on March 30, 2021, Save Mount Diablo filed a lawsuit challenging the City of Pittsburg’s approval of the 1,650-unit Faria project, on the ridgeline between Pittsburg and Concord. According to the agenda item documents, the master plan overlay district encompasses approximately 607 acres of land. (See related article)
Save Mount Diablo Says Motion for New Trial “Should Be Denied”
Asked about the motion for a new trial, Save Mount Diablo Executive Director, Ted Clement responded, “Regarding the Seeno companies/Pittsburg request for a new trial, the Court has already rejected their arguments for reasons fully set forth in its decision. Their Motion for New Trial does not question the adequacy of the administrative record on which the Court properly based its decision (and which the City itself prepared) or suggest there was any other irregularity or unfairness in the hearing. Instead, they seek a second bite of the apple.”
“Their Motion reargues issues that were fully briefed and addressed in the Court’s Decision,” he continued. “They also seek to introduce irrelevant and improper extra-record evidence, violating black letter law that CEQA actions must be decided on the record that was before the agency when it made its decision.”
“Because their Motion provides no basis for this Court to order a new trial solely on the issues decided adverse to them, it should be denied,” Clement concluded.
CONTRA COSTA COUNTY — On February 10, 2022, the Contra Costa County Superior Court handed Save Mount Diablo a major victory in its legal challenge to the City of Pittsburg’s approval of the 1,650-unit Faria/Southwest Hills Project.
According to the ruling, the city’s environmental review was inadequate in numerous ways. Faria was proposed by Seeno companies/Discovery Builders, Inc./Faria Investors LLC on the spectacular and highly visible major ridgeline between Pittsburg and Concord and could include grading and houses visible across the ridge.
As a result, the City of Pittsburg is required to overturn approvals for the project and correct environmental review. The city and Seeno/Discovery Builders will also be required to pay Save Mount Diablo’s legal fees.
It remains to be seen whether the developers, Discovery Builders, Inc. and Faria Land Investors, LLC, or the City of Pittsburg will appeal the decision.
The Pittsburg City Council—then-Mayor Merl Craft; then–Vice Mayor Holland Barrett White; and Councilmembers Shanelle Scales-Preston, Juan Antonio Banales, and Jelani Killings—all voted to approve the proposal in February 2021. (The mayor and vice-mayor designations rotate among the councilmembers.) They ignored hundreds of letters and public comments that opposed the project. Save Mount Diablo filed a lawsuit challenging the project’s approval in March 2021.
If the project had moved forward, it would have meant the development of a major, new residential subdivision on 606 acres of ridgeline and hillside grazing land in what is currently unincorporated Contra Costa County, immediately south of the City of Pittsburg.
The biologically rich site supports sensitive wildlife species and rare plants and is in one of the most visible and most environmentally constrained areas of the county. The Faria project would have fragmented open space and damaged wildlife corridors.
The proposed housing development would have changed the beautiful green hills forever by annexing the property to the City of Pittsburg and locating 1,650 new residences far from jobs, transit, and services.
The Faria project would have also impacted the new East Bay Regional Park District (EBRPD) Thurgood Marshall Regional Park – Home of the Port Chicago 50 at the Faria site’s southwestern edge, formerly part of the Concord Naval Weapons Station. Save Mount Diablo and its partners advocated for the creation of this new park over many years. The Faria project would have been located directly above the new park on a ridgeline, degrading views from surrounding areas.
The Contra Costa Superior Court ruled that the City of Pittsburg’s environmental review of the project was inadequate in four major ways:
It failed to analyze any impacts that would results from the 150 accessory dwelling units that were added by the City of Pittsburg at the last minute. This is important because the number of units affects every part of environmental review from traffic to water supply to schools, etc. and will make correcting the environmental review complicated;
It failed to include a baseline description of biological resources that could be impacted by the project, specifically special-status plant species;
It failed to consider the water supply impacts of adding 1,650 new housing units in the area, which is especially important given years of drought and increasing fire danger; and
It failed to adequately disclose or mitigate the project’s air quality impacts, including greenhouse gas impacts, without which development will continue to make the climate crisis much worse.
“The court’s decision says to developers: ‘You don’t get to kick the can down the road. You have to do a thorough analysis of your project’s impacts before you lock in project approvals,’” said Winter King, Save Mount Diablo’s attorney from Shute, Mihaly & Weinberger. “The court got it right.”
The court’s ruling means that the City of Pittsburg’s approval of the project is null and void.
The court also noted that additional impacts—such as geologic hazard impacts resulting from grading and filling, and impacts on streams and agricultural lands—would need to be addressed in more detail.
Save Mount Diablo Executive Director Ted Clement said, “Throughout the East Bay, residents have worked hard to protect our ridges and views, flora and fauna, and to defend our parks. In this case that was just decided in our favor, Save Mount Diablo had to stand up against some very powerful interests to help further the work of protecting these treasured resources, which add so much to our collective quality of life.”
“Although I’ve worked for Save Mount Diablo on this issue, I’m also a Concord resident,” said Juan Pablo Galván Martínez, Save Mount Diablo’s Senior Land Use Manager. “This project infuriated me as an open-space lover, a wildlife enthusiast, and someone who is deeply worried and taking action to stop catastrophic climate change. Since this affects both cities, I want both city councils to work together to protect the hills and ridgeline.”
“This is a major victory for Pittsburg’s hills,” stated Save Mount Diablo Land Conservation Director Seth Adams. “Open space, habitat for wildlife, and the community’s scenic views have won the day, and poorly planned development will not go forward, for now. We are very happy with the court’s decision.”
“On the other hand,” said Adams, “while our victory is costly for the city and Seeno/Discovery Builders in time and money, it does not stop the project forever. After correcting environmental documents, the Pittsburg City Council can approve Seeno’s huge project again if they choose. But now they have a second chance to make it better by protecting the ridgeline and neighboring regional park. We don’t have to argue about protecting ridgelines in other cities. The Pittsburg City Council should do the right thing.”
Save Mount Diablo
Save Mount Diablo is a nationally accredited, nonprofit land trust founded in 1971 with a mission to preserve Mount Diablo’s peaks, surrounding foothills, watersheds, and connection to the Diablo Range through land acquisition and preservation strategies designed to protect the mountain’s natural beauty, biological diversity, and historic and agricultural heritage; enhance our area’s quality of life; and provide educational and recreational opportunities consistent with protection of natural resources. To learn more, please visit www.savemountdiablo.org.
The corporate interests desperate to salvage an ill-conceived waterfront slag cement mill application, now staggering on its last legs under appeal, will attempt to pull off a sly last minute magic trick. Like most magic tricks, it relies on misdirection to draw the observer’s attention away from what they should really be looking at. Instead of talking about community values and our aspirations for the future character of our city for decades to come, the applicants want us to focus on the arcane intricacies of a technical environmental review process.
It’s a cynical calculated strategy designed to take a process intended to inform decision-makers and the public and turn it into an inaccessible debate among “experts” — impossible for the general public to follow or critically evaluate. Just check out the EIR analysis of traffic impacts from all the heavy diesel truck and crosstown freight train trips the project would generate at various intersections. See if you can make heads or tails of how they arrive at their numbers. Likewise for the modeling of the impacts to air quality from all the various pollutants the project would release. One more version of an environmental report and re-hash of emissions thresholds and mitigations adds nothing useful to the discussion, but the applicants are determined to create the illusion that the decision should hinge on nothing else.
The city staff who worked on this project application for years recommended that the permits be denied, not because the project crossed this or that threshold of significance in the environmental review, but because a heavy industry project in that location is fundamentally incompatible with the surrounding neighborhood land uses. The city commission primarily responsible for making rational decisions about land use compatibility and planning overwhelmingly agreed, and voted to deny the permits. The city’s general plan update process conducted at a cost of millions of dollars with broad public participation over a period of years resulted in a very different vision for a walkable connected waterfront, in line with the Bay Commission’s public access guidelines.
Why should we pay any attention to one more round of technical environmental analysis? If a deep-pockets corporation can pay experts-for-hire to come up with greatly improved numbers at this late date, it only goes to show what those numbers are really worth. It’s particularly galling after years of trying to avoid and game the environmental review process that the applicant’s would now so desperately cling to it as their last hope.
Former City officials and some members of the lead agency repeatedly demonstrated impermissible pre-approval of the project over a period of years prior to environmental review, beginning with the resurrection and transfer of a lease for public trust land with amendments that anticipate major impactful development. A one-vote majority of the Vallejo City Council colluded in secret with the applicants in a private planning initiative, and explicitly tied the goals of their ad hoc committee with approval of the project before even a first draft EIR was ready. CEQA requires that the public be allowed to evaluate and comment on an environmental analysis based on a stable project description. All the talk of trying to approve a final version of a radically altered project now without re-circulating a new draft EIR for public comment is not at all realistic and will never fly.
This decision is not about thresholds of significance or mitigation measures, it’s about what we value as a community and consider worth preserving and protecting. Residents in the proposed project impact zone already suffer some of the highest rates of pollution-related health effects in the state, including low birth weight babies and heart and lung diseases. No matter what a final EIR and the mercenary experts have to say, it won’t change the fact that instead of an accessible walkable waterfront, local residents would get heavy neighborhood truck traffic and another load of particulate and gas pollutants on top of the unfair burden they already carry.
Let’s ignore the magical misdirection and expert dog and pony shows masquerading as participatory public forums, and keep our attention focused where it belongs. The quality of economic development matters, and the old take-whatever-comes-along approach to city planning is completely irrational. The council is under no legal obligation to wait for another version of the EIR, and I’m sorry — the applicant’s fairness argument is laughable. This project was never worth anywhere near the resources and effort the city put into it, and the costs in terms of political division and acrimony continue to pile up. Time to pull the plug and turn out the lights on this magic show.
Joining Trend, NY Suspends Review of Oil Train Terminal Permit
Another fight over energy infrastructure ramps up, as state regulators require company to address environmental justice, safety and climate change concerns.
By Zahra Hirji, September 23, 2016
New York environmental regulators have suspended their review of two proposals to renew and expand operations at a Port of Albany oil terminal until Global Partners LP addresses a laundry list of concerns over environmental, public health, safety and climate change.
limiting the oil terminal’s odors and emissions from toxic pollutants, such as benzene
addressing high noise levels and safety risks associated with oil trains coming to the facility
reducing the terminal’s climate footprint, among other issues.
DEC also informed Global Partners that it is combining the company’s renewal and expansion proposals and treating it like an application for a new project. This dramatic step means even after the company provides the extra information requested by the state, the application will undergo a public comment period and be considered for a comprehensive environmental and climate impact review.
The full review process could take years.
Environmentalists, Albany residents and county officials celebrated the decision, having spent more than two years raising concerns about the oil terminal’s current and proposed operations and fighting it in court.
This case joins a national trend of green and grassroots activism helping to delay and cancel dozens of proposals for new and expanding fossil fuel infrastructure, from oil sands and natural gas pipelines to oil terminals and coal mines. Earlier this month, construction of part of the Dakota Access oil pipeline was halted by the Obama administration in North Dakota, following months of protests led by the Standing Rock Sioux tribe objecting to the project’s potential threat to its drinking water and sacred sites.
“What is so gratifying about the DEC letter is that it requires Global to address every single issue we have raised since 2014,” said Chris Amato, an Earthjustice lawyer who represents the tenants association for Ezra Prentice Homes, a low-income housing development located next to the rail yard associated with the oil terminal. According to Amato, the community “is really, really happy that at long last Global is going to have to…examine the impacts.”
Ezra Prentice Homes is among the communities in the south end of Albany at risk from air pollution and potential train fires. “They are literally at the fence line” of the train tracks, Amato said. “Twenty feet separate the closest homes from oil tankers on the track.”
People in Albany’s South End, which is largely African American, had repeatedly complained to state officials about bad odors wafting from the facilities, among other concerns, since 2012.
“This is a victory for the people of the Ezra Prentice Homes and for the people in the county who live in fear of oil trains every day,” Albany County Executive Daniel McCoy said in a statement.
In response to DEC’s recent letter, Global defended its record. “We disagree with the New York DEC’s decision and believe that we have fully complied with the required permit application process,” said Mark Horan of Rasky Baerlein Strategic Communications, which represents the company. “Global has always been particularly vigilant about the safety of our neighbors wherever we operate and we will continue to work with the Albany community on these issues.”
Global Partners filed a permit request to state officials in 2011 seeking to overhaul its operations to handle more oil. The facility went from handling more than 18 million gallons of oil that year to more than 460 million gallons in 2012, according to the DEC. The facility’s oil capacity peaked in 2014 at more than 1.1 billion gallons of oil, but it has since declined as the oil market has slumped.
The source of the oil and how it traveled to the facility also changed during that time. Initially, the oil coming in was refined; it arrived from barges that came up the Hudson River and was then trucked out regionally. The company began handling unrefined, more volatile (and potentially explosive) crude arriving on trains from North Dakota.
Global sought to expand its operations further in 2013, submitting a permit modification request to add seven boilers to the site. Boilers are critical equipment for handling and storing Canadian tar sands; the thick crude is so viscous it must be heated before it can be transferred from a train car to a storage tank.
The company’s initial expansion plan flew under the radar of Albany residents and the environmental community. Global’s 2013 proposals, however, were loudly protested. And regulators responded by installing a permanent air monitor near the Ezra Prentice community in 2015. According to officials, the air showed elevated levels of benzene. Regulators cited these findings in their recent letter.
“The DEC has monitored higher-than-expected benzene levels in the vicinity of the facility that may be attributable, in part, to the storage and processing of petroleum products at the Global facility,” regulators wrote. “Global must address what measures it intends to take to limit, to the maximum extent practicable, any benzene emissions attributable to the facility.”
DEC has identified Albany’s South End, which includes Ezra Prentice Homes,as an “environmental justice” community associated with Global’s operations. In 2013, the DEC updated its environmental justice policy to include more public participation requirements for projects with potential impacts on such communities. In the recent letter, DEC specifically orders Global to take these steps.
Another task for Global, identified by DEC, is to devise a plan to limit any climate impacts associated with the future handling of oil sands, a crude that generates especially high emissions during extraction and processing.
“New York is the most aggressive state in the nation in pursuing action to ensure the public and the environment are protected from risks associated with the federally regulated transport of crude oil,” DEC spokeswoman Erica Ringewald wrote in an email.