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Article: The Battle between CVS and Sebastopol
by Helen Shane
Updated 10/12/14
On June 14, 2011, Sebastopol's Planning Commission voted 4-2 to reject the proposed CVS Project. No findings were submitted to the City Council to explain the bases for this lopsided vote.
In a digital recording of that meeting, the vote's aftermath was chaotic. A Planning Commissioner can be heard pleading for the PC Chair to recognize the need for the Commission to provide "comments" for transmission to the City Council. Neither the PC chair Colin Doyle nor Planning Director Kenyon Webster responded to that Commissioner's series of requests. (Note: the Vice Chair of the Commission, who co-chaired that meeting, is married to Kathleen Shaffer, one of the Council members who supported the project),
At the City Council meeting of July 5, 2011, that continued to early the next morning four Council members (Guy Wilson, Kathleen Shaffer, Michael Kyes and Patrick Slayter) rejected pleas to send the issue back to the Planning Commission with a request for findings to explain the vote. During a break in that meeting, I approached the traffic study consultant and challenged the fact that The Barlow’s impacts were not properly factored into the study. He told me that the Planning Director set the geographic parameters of the study, and since The Barlow had not yet applied for a permit, it did not have to be considered.
“CEQA Guidelines for Cumulative and Indirect Impacts” state: Section 15355"Cumulative impacts" refers to two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts.
(a) The individual effects may be changes resulting from a single project or a number of separate projects.
(b) The cumulative impact from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects. Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time"
(emphasis added).
The CC instead overturned the PC recommendations and approved a Mitigated Negative Declaration (MND) on a 3-2 vote. Gurney and Kyes dissented and requested modifications to the design and retained jurisdiction over final design details. The MND was based on the false premise that the project's environmental impacts were not sufficient to warrant a full-blown environmental impact report.
John Kramer and I felt that the CEQA Guidelines were clear and unambiguous and that a bona fide EIR would result in a finding of “no project”. On August, 2011, we formed the group “Committee for Small Town Sebastopol” and sued the CVS proponents, charging that the Mitigated Negative Declaration was invalid because it had been based on a flawed traffic impact study that did not consider impacts of The Barlow or the traffic beyond High St. to the west, and Fanning to the south on Hwy 116.
Also during August the project was rejected by the City's Design Review Board, largely due to problems with the parking lot entrance and exit safety, with the inclusion of a drive-through window at both the pharmacy and bank. At that meeting, Design Review Board members brought up the subject of findings. The Planning Director quickly intervened, saying that the Planning Department staff would prepare findings from their notes of the vote debate, which would be presented to the DRB for modifications. Small Town Sebastopol provided material to DRB members to assist them in that effort.
Later in 2011, during a City Council debate about the Design Review Board's finding that the proposed CVS project did not meet the Board's guidelines, City Councilmember Shaffer stated that the General Plan is only an aspirational document. The City Council must follow the zoning code, which is the actual law, she said. She asked Planning Director Kenyon Webster to back up that statement.
Mr. Webster calmly affirmed Shaffer's statement, saying that the Zoning Code is the document that states and implements City policies. This assertion dodged the fact that the State of California established General Plans as the controlling documents for development of its cities and counties. Guidelines on State websites confirm that “Whatever form of zoning a community adopts, its zoning ordinance must be consistent with the General Plan, and if the Zoning Code is inconsistent with the General Plan, the Zoning Code is invalid.”(emphasis added).
In the 2012 Council election, Wilson declined to run and Shaffer was defeated. In 2013 the new Council imposed a temporary moratorium on drive-thrus. On Christmas Eve, December 24, the City was served the CVS suit in California Superior Court; they subsequently withdrew that suit and filed again in Federal District Court claiming the ban discriminated against the project proponents and violated their civil rights. (Citizens’ United – July 18, 2008- Supreme Court ruled “corporations are people”).
In May, 2012 CVS began the process of applying to CalTrans for an encroachment permit to allow access to and from the project site at the two State Highway, 12 and 116, via left turns that would allow traffic to cross oncoming traffic at that corner. Small Town Sebastopol contacted CalTrans and, in addition, urged people to contact them as well and oppose the encroachment, citing that traffic impacts would be further exacerbated by such left turns. The people wrote and called CalTrans; subsequently CalTrans assigned a Community Outreach officer to respond to everyone who had complained.
CalTrans sent a team to evaluate the situation. They queried CVS and asked for more details. Evidently CVS could not satisfy CalTrans. To date, such permits had not been issued.
In May, 2013, the City Council passed an ordinance requiring solar photovoltaic energy systems on new or substantially remodeled commercial projects. Notified of the ordinance and the requirement that they must comply, CVS claimed an exemption.
During 2013-2014 more than 13 different hearing dates for the Committee for Small Town Sebastopol lawsuit were scheduled, but each was postponed at the request of CVS/Long's Drugs.
In May of this year CVS requested settlement talks to encompass both their suit against the City, and the STS suit against CVS. There never was a formal hearing on the merits of either case.
Eventually a legal settlement was hammered out between the City of Sebastopol, CVS/Long's Drugs, Armstrong Development Properties Inc. and the Committee for Small Town Sebastopol.
On October 6, 2014, the Sebastopol City Council voted unanimously to accept the framework for a settlement to end the two lawsuits — the one filed in 2011 by the Committee for Small Town Sebastopol over the flawed CEQA process, and the other filed by CVS/Longs Drugs in 2012 against the city for adopting a temporary moratorium on drive-thru windows. Chase Bank had pulled out of the project during the interval of lawsuits and settlement negotiations.
At the regular City Council meeting on October 7, 2014, the City Manager/Attorney and Planning Director Kenyon Webster, and I, for Small Town Sebastopol, urged approval of the settlement, considering the improvements supposedly promised by the project proponents. The Council put off the vote on a formal resolution accepting the settlement until October 9, when the Community would have a final chance to comment.
Concessions supposedly agreed to by CVS included abandoning the drive-thru and drive up; adopting more refined building designs with larger, more numerous windows and variable roof heights; a second story and increased setbacks for the CVS building itself; extensive landscaping and site design improvements; prohibitions on left turns into and out of the project site; installation of rooftop solar panels and installation of five electric vehicle charging stations.
On October 9, 2014 the Council voted 3-2 for the resolution accepting the settlement. Mayor Robert Jacob and Councilmember John Eder voted against the settlement, acknowledging that the City could not afford to prolong the lawsuit; both expressed beliefs that CVS/Longs Drugs had not negotiated in good faith. Drawings that the City had requested repeatedly from CVS earlier arrived minutes prior to the October 7 meeting, the first public hearing on the settlement. They did not show a two-story building, but a single-story retail store with high exterior walls and false windows that only suggest the presence of a second floor. CVS technical representatives did not attend either the October 7 or 9 meetings. Their attorney was present at both meetings.
Given the concessions in the settlement, primarily the withdrawal by CVS of the drive-ins/drive thrus, the prohibition of all left turns and the increased setbacks, I feel this is the best deal that could be made without piling up more legal bills and relying on a jury or jurist to decide in our favor.
“Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it's the only thing that ever has." Margaret Mead.
And, Ben Franklin advises: ”It is the first responsibility of every citizen to question authority.”
My personal thanks to all who hung in there all these years, and the late John Kramer, with me from the start, whose intellect and humor were at the core of the process.
Helen Shane
Data for this report was compiled by Jane Nielson from reports, minutes, newspaper stories and other documents. Thank you, Jane.
