Patrick Prescott, Community Development Director By: David L. Kriske, Assistant Community Development Director

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1 DATE: April 26, 2016 TO: FROM: Ron Davis, Interim City Manager Patrick Prescott, Community Development Director By: David L. Kriske, Assistant Community Development Director SUBJECT: Modification of two Intersection Mitigation Measures for the Burbank Empire Center, Recertification of a Final Environmental Impact Report as Revised by the Supplemental Environmental Impact Report, Adoption of Findings and a Revised Mitigation Monitoring and Reporting Program, and Introduction of an Ordinance Amending Planned Development 97-3 RECOMMENDATION A. Adopt A RESOLUTION OF THE COUNCIL OF THE CITY OF BURBANK RECERTIFYING THE FINAL ENVIRONMENTAL IMPACT REPORT (STATE CLEARINGHOUSE NO ) FOR THE BURBANK EMPIRE CENTER AS REVISED BY THE SUPPLEMENTAL ENVIRONMENTAL IMPACT REPORT RELATED TO PLANNED DEVELOPMENT NO AND ADOPTING FINDINGS AND ADOPTING A REVISED MITIGATION MONITORING AND REPORTING PROGRAM (Exhibit A). B. Introduce AN ORDINANCE OF THE COUNCIL OF THE CITY OF BURBANK APPROVING A MINOR AMENDMENT TO PLANNED DEVELOPMENT NUMBER 97-3, BURBANK EMPIRE CENTER, TO MODIFY MITIGATION MEASURE 7.2 (BUENA VISTA ST. AND VICTORY BLVD.) AND REMOVE THE UNBUILT REMAINDER OF MITIGATION MEASURE 7.6 (BUENA VISTA ST. AND EMPIRE AVE.) OF THE BURBANK EMPIRE CENTER PLANNED DEVELOPMENT (Exhibit B). BACKGROUND The Burbank Empire Center was approved by the City Council in September The purpose of the project was to redevelop approximately 101 acres of vacant Lockheed Aircraft industrial land into a regional shopping center that included a mix of big box and other retail, office, hotel, and restaurant uses. Many of the Empire Center s project objectives were economic, and included enhancing economic vitality, providing increased sales and property taxes, bringing vacant land into economically productive use, and helping to fund transportation improvements serving the site. The Empire Center was constructed on the former Lockheed Plant B-1 and B-199 aircraft factories

2 and encompassed an area generally bounded by Empire Avenue, Buena Vista Street, Victory Place, the Union Pacific / Metrolink Coast Rail Line, and Victory Boulevard. Prior to approval of the Empire Center Planned Development, the City produced an Environmental Impact Report (EIR) (Exhibit C) that documented all the effects the project would have on the environment in various categories including Land Use, Air Quality, Noise, Water Resources, Public Services, Traffic, and other areas. The Empire Center Final EIR devoted significant study of the project s potential traffic impacts on streets and freeways in the project area. Many of these traffic impacts were mitigated to less than significant through a variety of roadway improvements that were constructed prior to the opening of the Empire Center. Other traffic impacts were mitigated by construction of regional transportation improvements most notably the Empire Avenue Interchange that were expected to be constructed after the Empire Center was developed. However, there were some traffic impacts that could not be mitigated. In those cases, the City Council decided to make certain findings that the overall benefits of the Empire Center project met the economic and other objectives of the City and outweighed the traffic impacts that could occur with development of the project. The transportation improvements that the City was required to construct as part of the Empire Center included several roadway and freeway improvements, including: Realigning 5-points intersection Improving Five City Intersections Building several signalized and un-signalized project access points Widening Burbank Boulevard Bridge Constructing the Empire Interchange and Buena Vista Rail Grade Separation Many development projects are required to pay Transportation Development Impact Fees, which are fees assessed to pay for the traffic mitigations needed to offset project traffic. However, the Empire Center was not required to pay these fees 1. The City did, however, require the developer to make a $10 million payment towards construction of these transportation improvements. These fees were used to pay for the first three improvements identified above, which were completed prior to the opening of the Empire Center. The fees were also used to partially pay for widening Burbank Boulevard Bridge and to fund ongoing project development activities for the Empire Interchange and Buena Vista Rail Grade Separation. For the large regional bridge and interchange improvements, the fees were combined with outside funding received through the Metropolitan Transportation Authority and Caltrans. 1 The City s Development Impact Fee Ordinance allows project developers to receive a credit against their fees for any buildings demolished after January 1, 1990 per Burbank Municipal Code The Empire Center received a full credit for all the former industrial buildings demolished on the B-1 and B-199 sites. 2

3 While the Five City Intersections widened as part of the Empire Center were built prior to project opening, widening elements of two intersections were deferred. These partially-widened intersections were: Buena Vista / Victory (Empire Center Mitigation Measure 7.2) Buena Vista / Empire (Empire Center Mitigation Measure 7.6) Full widening at these locations required the City to take substantial private property through eminent domain. The City widened these intersections to the maximum extent possible within City right-of-way and deferred action on further right-of-way acquisition until adjacent parcels redeveloped 2. Table 1 shows the requirements of the original mitigation measure, what was actually completed, and what elements were deferred. Exhibit D illustrates a conceptual engineering layout of mitigation measures (MM) 7.2 and 7.6 as compared to the mitigation measures that have been completed as of today. Table 1 Status of Mitigation Measure 7.2 and 7.6 MM 7.2 MM 7.6 Improvement in EIR What was Built What was Deferred The City Shall provide two left The City provided two lanes The City deferred providing a turn lanes on the eastbound on the eastbound approach second left turn lane in the and southbound approaches. only. southbound approach. The City shall provide three left turn lanes on the westbound approach (and three southbound departure lanes), two left turn lanes on all other approaches, and an exclusive right turn lane on all approaches. The City provided two left turn lanes on all approaches and an exclusive right turn lane on the northbound approach. Subsequently, the City provided a right turn lane in the eastbound direction and constructed three southbound departure lanes. The City deferred providing the third westbound left turn lane, the southbound right turn lane, and the westbound right turn lane. As shown on Exhibit D, the unbuilt portions of both mitigation measures require right-ofway acquisition that would affect several properties. For MM 7.2 at Buena Vista / Victory, acquisition and partial building demolition would be required at the northwest corner affecting a mini-mall and the front yard of a single-family residence. For MM 7.6 at Buena Vista / Empire, substantial demolition of several city blocks would be required along the north side of Empire Avenue between just west of Lincoln Street to just west of Buena Vista Street. This acquisition would displace several industrial and post production businesses and a neighborhood restaurant. It would also affect off-street parking for a construction firm and would require demolition of the landscaped buffer for the Empire Center along the south side of Empire Avenue. It would also leave shallow, remnant parcels along Empire Avenue that would likely not be developable. It is estimated that construction of the remainder of MM 7.2 and 7.6 would cost around $15 million. Subsequent to approval of the Empire Center and through the next 10 years, the City adopted a policy to minimize taking right-of-way through eminent domain that 2 An opportunity to take more property did in fact occur with development of the Empire Landing residential project in the mid-2000s, at which point the City widened portions of Empire and Buena Vista to help accommodate the full build-out of Mitigation Measure

4 substantially impacts adjoining properties. This practice was later formalized when it was included in the Burbank2035 General Plan Mobility Element adopted in The City has continued to monitor intersection performance by taking traffic counts and measuring Level of Service at these and other major city intersections as part of its ongoing intersection monitoring program and as part of traffic studies for subsequent new development projects. This monitoring showed that deferring full widening at these intersections has not caused vehicle delay to exceed the City s thresholds for adequate intersection operations. Both intersections currently operate within acceptable service levels (defined as Level of Service D or better). The City s delay in implementing the remaining elements of MM 7.2 and 7.6 was a component of the 2013 Appeals Court Ruling in the Walmart case (Shanna Ingalsbee et. al. v. City of Burbank, et. al, Walmart Real Party in Interest). In that decision, the Appeals Court judge ruled that the Empire Center Final EIR did not permit the City to delay these improvements while monitoring congestion levels. Instead, the City must either build them now or conduct further environmental review to show the effects of modifying or removing them. DISCUSSION As required by the Appeals Court ruling, staff has completed a Supplemental Environmental Impact Report (SEIR) (Exhibit E) that focuses specifically on the remaining unbuilt elements of the traffic mitigation measures for Buena Vista / Victory and Buena Vista / Empire. The SEIR specifically examines the traffic and land use consequences of either constructing the full widening as identified in 2000, modifying the improvements, or removing the remaining widening elements from the Empire Center Conditions of Approval altogether. The SEIR asks the following questions about the unbuilt mitigation measures: Does the City still need these improvements to address traffic congestion? If so, are there any new environmental impacts caused by these improvements? What would happen if the City elected not to build these improvements? Are there any alternatives the City could build instead? In completing the SEIR, staff with the help of hired transportation and land use consultants gathered updated traffic and land use information for the area around the Empire Center and conducted additional traffic and land use analysis at the two intersections. In particular, the SEIR conducted traffic counts at the two locations to assess current conditions, and then forecasted how that traffic would change with the opening of Walmart. The SEIR also forecasts how the traffic would change over the next 20 years if Burbank develops as contemplated in the Burbank2035 General Plan. Finally, the analysis incorporates roadway changes like the Empire Interchange and increases in regional traffic expected over the next 20 years. The SEIR makes the following findings: 3 Mobility Element Policy 3.4, Page 4-3: All street improvements should be implemented within the existing right of way. Consider street widening and right of way acquisition as methods of last resort. 4

5 The two unbuilt improvements are not justified based on today s traffic The improvements are not needed when Walmart opens later in 2016 The improvements might be needed by the year 2035 if development occurs as forecasted in the Burbank2035 General Plan The improvements have significant land use impacts to adjacent properties and conflict with the goals and policies of Burbank2035 Building the remaining improvements would cost at least $15 million Both MM 7.2 and 7.6 have unavoidable land use impacts by creating excessively wide streets with inhospitable pedestrian facilities, displace productive businesses, are incompatible with Burbank2035, and carry a high cost that could not be paid for with the City s current balance of Transportation Development Impact Fees. For both locations, staff believes the land use, right-of-way, and economic impacts are substantial and outweigh the potential benefit of reduced traffic congestion at some point in the future. Thus, staff does not recommend that the remainder of MM 7.2 and 7.6 be implemented. Because the original mitigation measures have significant land use impacts under Burbank2035 and are costly to construct, the SEIR identifies alternative mitigation measures at both intersections that could be implemented to reduce future (cumulative) traffic impacts. These alternate mitigation measures are illustrated on Exhibit F. For MM 7.2 at Buena Vista / Victory, the SEIR identifies a striping improvement that would reduce significant cumulative impacts by adding a left turn lane in the westbound direction instead of the southbound direction. This alternate improvement does not require right-of-way and the cost to implement it is nominal. Because of this, it would not have land use impacts under Burbank2035. Staff recommends the City Council approve this alternate improvement. For MM 7.6 at Buena Vista / Empire, the SEIR identified a lesser widening improvement that would implement a third left turn lane in the westbound direction, but would omit the other unbuilt turn lanes. This alternate improvement requires right-of-way but does not require demolition of existing businesses. However, this improvement would still be incompatible with the goals and policies of Burbank2035. It would eliminate mature landscaping and trees along Empire Avenue, would leave an inhospitable narrow sidewalk along Empire Avenue wedged between the street and the Empire Center parking lot, would create an excessively wide street relative to surrounding land uses, and would be incompatible with the scale and design of existing infrastructure and adjoining land uses. It would also still be relatively costly at approximately $1 million. Staff does not recommend the City Council implement this alternate improvement. The SEIR concludes that there are either land use or transportation impacts caused by nearly all choices to build, modify, or remove the mitigation measures originally identified in the original Empire Center SEIR. Nearly all choices require a tradeoff between General Plan land use impacts, traffic impacts, right-of-way, and cost. Thus, it is recommended that the City Council make decisions about implementing mitigation and alternatives that weigh tradeoffs between land use policies and traffic circulation. 5

6 Should the City Council wish to modify the original mitigation measures as recommended above, the City Council would need to approve a minor modification to the Empire Center Planned Development (PD) 97-3 Conditions of Approval (Exhibit G) that currently require the full implementation of MM 7.2 and 7.6. The proposed minor changes to the Conditions of Approval for PD 97-3 are included as Exhibit H. CONSISTENCY WITH BURBANK2035 Building the remainder of MM 7.2 and 7.6 would be incompatible with Burbank2035 because it would be contrary to several land use and mobility goals and policies. Building the alternate improvement to MM 7.2 would reduce cumulative traffic impacts in a way that would be compatible with Burbank2035. However, there is no alternative physical improvement identified for MM 7.6 that could reduce the expected traffic impact while still remaining consistent with Burbank2035. Staff believes the SEIR findings for MM 7.6 (and the alternate improvement) show that the land use impacts of building the mitigation measures are too great and outweigh the relatively inconsequential traffic impacts of doing nothing. This process to weigh competing community values through a policy screening is consistent with Burbank2035. ENVIRONMENTAL REVIEW When a Final Environmental Impact Report (FEIR) has been certified for a project, the California Environmental Quality Act (CEQA) and the State CEQA Guidelines define standards and the procedure for additional environmental review. Section of the CEQA Guidelines state that a SEIR may be prepared if: (a)(1) substantial changes would occur with respect to the circumstances under which the project is undertaken due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects (pursuant to Section 15162(a)(2) of the State CEQA Guidelines); and (a)(2) only minor additions or changes would be necessary to make the previous EIR adequately apply to the project in the changed situation. In this instance, (a)(1) refers to how the implementation of MM 7.2 and 7.6 cause new significant land use impacts. Because only minor changes are necessary to make the previous Empire Center FEIR adequately apply to the project in the changed situation; the SEIR has been prepared in compliance with the CEQA Act of 1970 and the State CEQA Guidelines (California Code of regulations Section et seq.). When the California Court of Appeals issued its decision, staff commenced with the preparation of the SEIR to document the environmental effects of building, modifying or removing the remaining portions of MM 7.2 and 7.6. On December 17, 2015 staff issued a Notice of Completion / Notice of Availability of the Draft SEIR, which was published in the Burbank Leader and was noticed by mail to all property owners and tenants within 1,000 feet of the Burbank Empire Center as well as the two intersections. Staff solicited public comment on the document during a 45-day public review period that ended on February 4, During that public review period, staff held a community meeting on January 20, 2016 to solicit additional comments. A total of 27 written and verbal comments were received on the Draft SEIR. Once the public 6

7 comment period closed, staff prepared a Final SEIR that included responses to all comments received. Notice of the completion of the Final SEIR and the City Council Public Hearing was again noticed in the Burbank Leader and mailed to nearby residents and property owners. FISCAL IMPACT The fiscal impact to the City as a result of building, modifying, or removing MM 7.2 or 7.6 varies based on the action taken by the City Council. Should the City Council approve staff s recommendation described above, there would be nominal fiscal impact. However, should the City Council wish to implement MM 7.2 and 7.6 as originally described in the Empire Center FEIR, the fiscal impact on the City would be substantial. The costs (less business relocation and goodwill) would likely equal or exceed $15 million, and there are currently insufficient transportation funds available to pay for these improvements. The City would be required to identify additional funding from the City s General Fund or other sources to pay for the required land acquisition and construction costs identified. CONCLUSION While substantial transportation improvements were constructed in support of the Empire Center, portions of two intersection widenings were deferred because they required that the City take private property and displace businesses. While ongoing intersection performance monitoring shows that these deferred improvements are not currently necessary, the California Court of Appeals ruled that the City must either commence with building the remaining widenings or conduct additional environmental analysis to modify or remove these improvements. A SEIR was produced to satisfy this directive that showed the original improvements are not needed today, would not be needed once Walmart opens, but might be needed in 20 years if forecasted development occurs. The original improvements would require substantial private property, would be incompatible with Burbank2035, and would be costly. Because the original mitigation measures have substantial negative effects and would improve a traffic problem that only might occur in the future, staff recommends that the City Council modify and remove the remaining mitigation measures from the Empire Center FEIR and modify PD 97-3 as described in Exhibit G of this report. EXHIBITS Exhibit A: Resolution Exhibit B: Ordinance Exhibit C: Original Final Environmental Impact Report (web link) Exhibit D: Conceptual Layout and Property Requirements for MM 7.2 and 7.6 Exhibit E: Supplemental Environmental Impact Report Exhibit F: Conceptual Layout and Property Requirements for Alternate Mitigation Measures Exhibit G: Planned Development 97-3 for Burbank Empire Center Exhibit H: Changed Proposed to Conditions of Approval for Planned Development