By Roger Straw, March 18, 2016

Valero’s delay request – what will happen on April 4?

As of this writing, there is much confusion over Valero’s March 15 request at City Council to delay consideration of their appeal of the Planning Commission’s unanimous rejection of their Crude by Rail proposal.

Earlier today, several independent inquiries were sent to City staff asking what will happen next. City Attorney Heather McLaughlin responded to all in a single email, in which she attempted to give some direction to the public. Her answers left much still to be determined. We may learn more later, as she wrote, “Staff will be preparing a staff report for the April 4 [City Council] meeting. We hope to publish it by close of business on March 28.” [Staff reports and Council packets can be found on the City’s City Council page.]

McLaughlin listed questions and gave her answers in bold, below:

1. Could you please tell me if the City’s code describes the situation of a request for a delay of an appeal by an appellant contesting planning commission decisions  made under a CEQA review of a project?  If so, what are the rules governing such a request? If there are no rules that address such a request, what authority does the council have to either approve or ignore Valero’s request for delay in a hearing process?  Section 1.44.040 (F) of the Benicia Municipal Code allows the City and the appellant to agree to extend the time for hearing an appeal.  The City’s agreement would have to be made at a public meeting if the appeal, like here, is to a person or body that holds regular meetings.  Regular meeting rules would apply like public comment before taking action. 
2. Would Valero’s request for delay constitute an action under the purview of CEQA, since the CBR Project is still under CEQA review via Valero’s appeal at this point?  No CEQA review would be required for delaying the project. 
3. If the City Council agrees to Valero’s requested delay, would this mean that the public hearings and all submissions/comments under CEQA would be continued into the indefinite future until such time as Valero receives whatever word on preemption from the Surface Transportation Board? This decision would be up to the Council. Staff does not have a recommendation at this time. 
4. Would information from the STB on preemption be considered “new information”, and if so, would that response from STB have to be incorporated in a revised FEIR under CEQA?  Depending on what an STB decision might say, the City may or may not decide to revise the FEIR.  The City Council will make this decision after considering any STB decision. 
5. If the Council continues the hearings and takes public testimony on previously scheduled days (April 4th, 6th, 19th), would future hearings be held after Valero receives info from the STB? In other words, how would the public be informed of new information rec’d, (if any)?  The City Council will have to take any future action on the project at one or more noticed meetings.  There will be opportunity for public comment until the public hearing is closed.
6. Will the City Council hold two public hearings on the project to receive public comments – one regarding Valero’s request for a continuance and another on the project? The City Council will determine the process.  Staff does not have a recommendation at this point. 
7. Will the City Council first consider Valero’s request to delay the appeal before the public hearing on the appeal begins?  Please see the answer to 6RK above.
8. Will the public have the opportunity to comment on Valero’s request for delay of the appeal? Yes.  Public comment will be allowed before the Council decides. 
9. If the request to delay the appeal is granted, will the scheduled public hearing on the appeal be cancelled?  Please see response 3MB above. 
10. If the request to delay the appeal is denied, will the public hearing then proceed as scheduled? Yes.

My summary:  Every time the City Attorney says Council will decide and staff has no recommendation at this time, it means staff will probably confer (with Council members?) and make a more or less decisive staff recommendation, which the public will not know until March 28. This applies to questions 3, 4, 5, 6, 7, and 9. So – my opinion – there’s not much information here.

What we DO learn, without much surprise, is that:

1. Question 1: The City attorney upholds Valero’s right under city code to request a delay. See item F: “The time limits in this section may be extended if the applicant(s) and appellant(s) agree.”
2. Question 2: The City attorney holds that “no CEQA review would be required for delaying the project.” It might be good to get a CEQA expert’s opinion.
3. Question 8: Public comment will be allowed on the delay.
4. Question 10: If the delay is denied, hearings on the appeal will proceed as planned.

SO … It seems clear that significant important decisions will be made at the City Council hearing on April 4.  Plan to attend – our Council members need to know how we feel about health and safety here in Benicia.  You can RSVP on Eventbrite or on Facebook.