REPORT TO COUNCIL
SUBJECT
Title
Written Petition submitted by Amrit S. Kulkarni requesting the City Council hear appeals regarding permit and environmental process determinations regarding three Use Permit Applications for Bloom Fuel Cell Power System projects filed for 2960 Corvin Drive, 2970/3000 Corvin Drive, and 2200 Mission College Boulevard
Report
COUNCIL PILLAR
Enhance Community Engagement and Transparency
BACKGROUND
Council Policy 030 - Adding an Item on the Agenda (Attachment 1) sets forth the procedure for written petitions. Any member of the public may submit a written request raising any issue or item within the subject matter jurisdiction of the Council. Per the policy, the written request will be submitted on the agenda, in the form substantially provided by the requestor, without any staff analysis, including fiscal review, legal review and policy review. If a majority of the City Council supports further study of the request, then a full staff analysis shall be prepared within thirty (30) days, unless otherwise directed by the City Council.
The City Clerk’s Office received three Written Petitions for Council consideration from legal counsel for Bloom Energy, Mr. Amrit S. Kulkarni, each dated April 27, 2021 (Attachments 2-4) requesting the City Council hear appeals of “the City’s April 1, 2021 letter” regarding Bloom’s three Use Permit applications filed for 2960 Corvin Drive, 2970/3000 Corvin Drive, and 2200 Mission College Boulevard.
DISCUSSION
The appeals concern three use permit applications filed by Bloom Energy to install natural gas fuel cells at 2960 Corvin Drive, 2970/3000 Corvin Drive, and 2200 Mission College Boulevard. On April 25, 2019 and October 17, 2019, Bloom Energy applied for building permits to install fuel cells at two of the three locations listed above. On several occasions between February 2020 and May 2020, the City informed Bloom that it would be unable to grant the requested building permits, because conditional use permits are required by the City Code. The proposed natural gas fuel cells meet the definition of electric power plants in the City Code, and the relevant zoning districts of each site require use permits for electric power plants.
Bloom has repeatedly objected to the City’s determination that a use permit is necessary for the fuel cell installations, beginning with a letter dated February 18, 2020 and again in a letter dated September 24, 2020. In response, the City Attorney’s Office provided a letter dated November 18, 2020 (Attachment 5), which shared the specifics of the permit process determination with Bloom’s legal representation.
Bloom submitted applications for the required conditional use permits on February 23, 2021; however, the requisite processing fees were not received until March 17, 2021. Upon receipt of the processing fees, the City commenced review of the materials provided by Bloom and determined that Initial Studies were required to be prepared for the Use Permits in accordance with the California Environmental Quality Act (CEQA). On March 19, 2021, the City’s Outside Counsel, Thomas Law Group, provided a letter (Attachment 6) informing Bloom that the projects were not categorically exempt from review under CEQA, and that the City would need to prepare Initial Studies and potentially Mitigated Negative Declarations to process the applications.
Pursuant to the City’s standard processing procedures, the Project Clearance Committee reviewed the applications for completeness, and on April 1, 2021, in three separate letters (one for each project site), City staff informed Bloom that the applications were incomplete (Attachment 7). (This is the “April 1, 2021 letter” to which Mr. Kulkarni’s written petitions respond.)
The written petitions are accompanied by two separate letters from Mr. Kulkarni, dated April 27, 2021. The first, addressed to Planning Manager Reena Brilliot, largely makes the same assertions that Bloom’s legal counsel made on September 24, 2020: that Bloom should not have to obtain a use permit, and that no CEQA review should be required. The second, addressed to City Clerk Hosam Haggag, states that the written petitions are being filed pursuant to CEQA, pursuant to California Building Code Section 1.8.8.3, and pursuant to City Code section 15.15.010.
Scattered across these various documents, Bloom Energy raises four grounds for their petitions:
1. Appeal of the April 1, 2021 incompleteness determination: The written petition states, “we submit this written petition and the supporting April 23, 2021 letter (with attachments) to the City in response to the City’s April 1, 2021 letter.” The April 1 letters, again, were a determination that each of the use permit applications were incomplete; those letters were accompanied by an exhaustive list of the missing details. The Permit Streamlining Act (PSA), Government Code § 65943, authorizes appeals of such incompleteness determinations, but only after the developer responds to the incompleteness letter and the City again finds it complete. Here, Bloom has not done so. Moreover, neither the petitions, nor the letter to City Clerk Hosam Haggag, nor the letter to Planning Manager Reena Brilliot, make any claims that the incompleteness determination was in error. Because Bloom has not complied with PSA procedures and has not provided any evidence or even a claim that the incompleteness determination was erroneous, the appeal should be denied.
2. Appeal pursuant to California Building Code section 1.8.8.3 and City Code section 15.15.010: these provisions authorize appeals by anyone adversely affected by a City decision, order, or determination relating to the application of Building Code requirements. Here, the only action has taken under the Building Code was the denial of the building permits in February, April, and May, 2020, when the City informed Bloom that a CUP would first be required. Under City Code § 2.115.050, the time to challenge the denial of a permit is 30 days, and that period expired more than a year ago.
3. The February 11, 2020 determination that a use permit would be required: City Code interpretations are administrative determinations, not subject to appeal. The relevant city review process determined for the work proposed by Bloom, the Use Permit, has an appeal process as specified in Sections 18.110.060 & 18.110.070 of the Santa Clara City Code. Use Permits are decided upon by the Planning Commission and the Planning Commission decision is appealable to the City Council.
4. The March 19, 2021 determination that an Initial Study would be required: City staff have determined than an initial study (IS) and an anticipated mitigated negative declaration (MND) are required for the projects. Neither CEQA nor the Santa Clara City Code permit City staff’s determination regarding the appropriate level of CEQA review for a project to be appealed separately from applicable decisionmakers’ decision on a proposed project. Where a project is subject to approval by a nonelected decisionmaker (here the projects are subject to Planning Commission approval), the Planning Commission’s decision on the project, including the CEQA action, will be appealable to the City Council pursuant to Section 18.110.070 and Public Resources Code section 21155(c).
The subject Written Petitions for Council requesting the City Council agendize hearings for the appeal of the City review and environmental review process determinations are an improper attempt to advance appeals to City Council. Due process requires potential appellants to follow the administrative procedures in place for the sequencing and hearing of appeals. Therefore, invocation of Council Policy 030 is improper, and staff advises Council to not agendize these requests for appeal for discussion at a future City Council meeting.
ENVIRONMENTAL REVIEW
The action being considered, whether to agendize Bloom’s appeal on a future agenda, does not constitute a “project" within the meaning of the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines section 15378(b)(5) in that it is a governmental organizational policy making or administrative activity that will not result in direct or indirect changes in the environment.
FISCAL IMPACT
There is no fiscal impact associated with considering the request to be placed on a future agenda except for staff time.
COORDINATION
This report was prepared in coordination with the City Attorney’s Office.
PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email clerk@santaclaraca.gov <mailto:clerk@santaclaraca.gov>.
RECOMMENDATION
Recommendation
Staff recommends that no action be taken.
Staff
Reviewed by: Andrew Crabtree, Director, Community Development Department
Approved by: Deanna J. Santana, City Manager
ATTACHMENTS
1. Policy and Procedure 030 - Adding an Item on the Agenda
2. Written Petition regarding Use Permit Application filed for 2960 Corvin Drive
3. Written Petition regarding Use Permit Application filed for 2970/3000 Corvin Drive
4. Written Petition regarding Use Permit Application filed for 2200 Mission College Blvd
5. City Attorney’s Office letter, dated Nov 18, 2020 regarding Use Permit determination
6. Thomas Law Group letter, dated March 19, 2021, regarding Initial Study determination
7. April 1, 2021 Letters to Bloom Energy re Incomplete Applications