analysis of bingo parlor use_loewke report_070810

8/9/2019 Analysis of Bingo Parlor Use_Loewke Report_070810

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R I C H A R D T. L O E W K E, A I C PU R B A N & E N V I R O N M E N T A L P L A N N I N G

547 Wycombe Ct., San Ramon CA 94583 Phone 925.831.8016 FAX: 925.831.8019 www.LoewkeAICP.com

July 8, 2010

Craig F. AndersenAndersen, Bonnifield & RoschaOne Corporate Centre

1320 Willow Pass Road, Suite 500Concord, CA 94520-5269

SUBJECT: Analysis of Bingo Parlor Use, 1505 Willow Pass Road, Concord, Calif.

Dear Mr. Andersen,

This report provides a summary of the key findings and conclusions from my independentanalysis of the City of Concord's administrative decision to authorize establishment of abingo gaming use within a currently vacant building located at 1505 Willow Pass Road(original Fox Theater Building). This analysis includes a review of current General Plan

policies, pertinent Municipal Code Sections, and previously issued permits for the subjectproperty, in order to identify the procedural and substantive requirements for establishmentof a bingo gaming use on the property. The analysis includes an independent examinationof the applicability of the California Environmental Quality Act and Guidelines (CEQA) to theproposed change of use, in light of the current and historical uses of the property, and theoperational characteristics and scale of the proposed Pop's Bingo World gaming use (the"Project"). Also included is a review of City file documentation for the property and theProject, as provided by Andersen, Bonnifield & Roscha via a public records request of theCity of Concord, including the originalJune 2, 2010 and amendedJune 2, 2010 staff reportsto the Planning Commission, as well as the most recent July 13, 2010 staff report to the CityCouncil, and all related supporting packet documentation as provided to the Commission

and Council.

The foregoing City file documentation, Municipal Code Sections, General Plan Policies andCEQA regulations were analyzed with respect to the subject property in order to determine:

(a) Whether the staff-level administrative determination of April 16, 2010 (#AA 10-010, asaffirmed with findings by the Planning Commission on June 2, 2010) is consistent withapplicable ordinances and policies and correctly applied to this Project;

(b) Whether CEQA is applicable to the Project, and if so what mechanism is prescribed forevaluation of its potential effects on the environment; and

(c) What actual physical effects the Project is likely to have in light of substantial evidencecurrently contained in the public record or gathered as part of this analysis.

This analysis and my conclusions reflect my opinions as an urban and environmentalplanner with over 35 years of professional experience in the State of California, and as amember of the American Institute of Certified Planners (AICP).


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Craig F. Andersen / Analysis of Bingo Parlor Use at 1505 Willow Pass RoadJuly 8, 2010Page 2

1.0 Location and Environmental Context of Subject Property

The subject property (APN# 126-300-043) is depicted on the following Assessor's Map. TheCounty Assessor has identified the subject property as consisting of 1.065 acres.

Figure 1: Contra Costa County Assessor's Map

The Subject Property is located on the north side of Willow Pass Road, at the easterly endof Enea Circle, approximately 700 feet north of Waterworld Parkway. Although fronting onWillow Pass Road, vehicular access to the site is exclusively from Enea Circle. Parking lots

within the adjoining office complex were observed as being full, or nearly full duringbusiness hours. The street frontages along both segments of Enea Circle were alsoobserved as being substantially full with parked automobiles. Parking for the office buildingimmediately west of the Subject Property was observed to be utilizing approximately 10 ofthe 66 available on-site parking spaces serving the vacant building on the Subject Property.

Although situated west of Highway 242, the Subject Property is located within short walkingdistance of a large residential neighborhood (approximately 1,200 feet or less than 1/4 mile)at the southeast corner of Market Street and Clayton Road. Planned office and industrialuses extend to the north and south of the Subject property.


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Figure 2: Aerial View of Property

A Use Permit was issued by the Planning Commission for a change of use from "theater" to"health club" on the Subject Property in December of 1978, subject to the requirement for 75parking spaces. As documented in the originalJune 2, 2010 Staff Report and supportingownership documentation, the 18,744 square foot building on the Subject Property was

constructed in 1968 and first used as a theater. It has been vacant since 2008 when thelast operating health club (Velocity Sports) closed.

According to both the supplementalJune 2, 2010 Planning Commission and July 13 CouncilStaff Reports, a Preliminary Development Plan (PDP 1-79) was approved for an officecomplex on the adjoining parcels (APN 126-300-23, 30, 35, 44 & 47) along Enea Circle in1979 -- the year following conversion of the theater use to a health club. The completedEnea Square office complex consists of two and three-story buildings housing primarilyprofessional and administrative offices.


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2.0 Classification and Operational Characteristics of Proposed Use

The following analysis provides an objective summary of how "bingo parlor" uses areclassified and distinguished from "health clubs" by the US Government. This distinction issupported by clear differences in the operational characteristics of two land use types.

2.1 NAICS North American Industry Classification System. NAICS is the nationallyrecognized authority for classification of land uses and businesses; it replaced the StandardIndustrial Classification (SIC) system several years ago. The NAICS website describes thecurrent system as the standard used by Federal statistical agencies in classifying businessestablishments for the purpose of collecting, analyzing, and publishing statistical datarelated to the U.S. business economy. The Official 2007 NAICS Manual makes a cleardistinction between Health Clubs and Bingo Parlors, and assigns different codes for eachuse. Health Clubs have a code of 713940, while Bingo Parlors have a code of 713290.Census.gov defines overall group 713 as Amusement, Gambling, and RecreationIndustries. It then distinguishes between 7132 Gambling Industries and 7139 OtherAmusement and Recreation Industries. A specific further distinction is made between code71394 Fitness and Recreational Sports Centers (including "Health Clubs"-code 713940),and code 713290 Other Gambling Industries (including "Bingo Parlors"-code 713290).These are therefore different uses, and must be treated as such under any Use Permit.

Based on the NACIS system and the US Census methodology, the proposed Pop's BingoWorld is a "Bingo Parlor" which falls within the broader class of uses known as "Gambling

Industries". In contrast, the use authorized by Permit UP65-78 in 1978 was a "Health Club"which is a category of "Fitness and Recreational Sports Centers" land use.

2.2 ITE Institute of Transportation Engineers. The ITE publishes trip rates fordifferent uses available in their manual Trip Generation, which is currently in its 8 th edition.Health Clubs have a ITE code of 492 and generate 3.53 peak hour trips per 1000 squarefeet of gross building area. Bingo Parlors fall under code 473 for Casino / Video LotteryEstablishment and generate 13.43 trips per 1000 square feet of gross building area. Basedon a gross building area of 18,744 square feet1, the previous Health Club use would havegenerated 66 peak hour trips, while the Bingo Parlor would generate 252 peak hour trips.

Based on the documented objective measurements outlined by ITE, the proposed BingoParlor gambling use would therefore generate 252 peak hour vehicle trips, or almost 4 timesas many as the Health Club fitness center use. The implications of such a significantchange in peak period traffic have not been evaluated or considered as part of thepermitting process to date.

1Documentation presented in the Ownership Documentation materials in the City file indicates that the

building has a gross square footage of 18,744 square feet, whereas the June 2, 2010 originalStaff Report andApplicant Statement indicate that the building contains only 15,280 square feet.


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2.3 Parking Needs. Concord Municipal Code Sections 122-845 establishes the numberof parking spaces required for these two land use types. Sub-Section 122-845(2)(e) statesthat the approving body shall determine the number of parking spaces for commercialrecreation uses on a case-by-case basis according to the characteristics and location of theuse, plus parking demands of ancillary uses. Sub-Section 122-845(6)(a) prescribes asfollows: Assembly areas with fixed seats (including church sanctuaries, funeral chapels,auditoriums, theaters, and sports arenas): One parking space for each three seats.. The1978 use permit required per Section 122-845(2)(e) that the Health Club provide 75 parkingspaces. According to page 2 of the Zoning Compliance Fact Sheet SupplementalResponses, the proposed Bingo Parlor use would have seating for 378 customers (at 63separate gambling tables), and would be staffed by an undisclosed number of staff. Based

on a conservative estimate of 400 total people present at any given time, application ofSection 122-845(6)(a) would require that the Bingo Parlor provide 134 parking spaces.Since the Concord municipal Code does not include a prescriptive formula for gamblinguses, it is unclear whether 134 parking spaces would be sufficient. In their April 16, 2010Administrative Determination (Condition #7) City Staff called for both 74 assigned parkingspaces supported by shared parking accommodations within the office business park.

The peak occupancy capacity of the proposed Bingo Parlor has been documented as beingon the order to 400 or more people, whereas that of the former health club use was only 75,or less than 20% as large. Evidence therefore suggests that then in full operation, the 62on-site spaces will not be sufficient to accommodate people parking their cars to visit theBingo Parlor. As a result, the unstudied overflow parking is likely to spread throughout theentire office park along Enea Circle, and beyond. According to the aerial map in Figure 2,customers and employees would need to walk as far as 700-800 feet to reach an accessiblesupply of parking -- assuming that no other business park employees or visitors werepresent. The Zoning Compliance Fact Sheet and Administrative Determination provide foroperation of the Bingo Parlor weekdays beginning at 4:00 PM. This operational periodoverlaps with the highest parking demand period from the adjoining offices, creating a clearpotential for significant shortfalls in available parking.

2.4 Service Area and Orientation. The 18,744 square foot Bingo Parlor, with its designoccupancy for 400 or more customers is a commercial "gambling industry" use which isoriented to the community as a whole. In contrast, the former Health Club use was a"fitness and recreational sports center" use with an occupancy one-fifth the size of the BingoParlor, and a peak vehicular trip rate one-fourth as great. The smaller Health Club useserved a finite local business and neighborhood residential population. Health club usesfrequently locate in business parks in order to provide a daytime support service for localemployers and employees, while also being accessible to surrounding neighborhoodsduring off-peak periods. Numerous Health Clubs can be found throughout Concord in bothbusiness park and commercial settings. In contrast, a Bingo Parlor of this scale will need todraw from a residential population base of at least 100,000 (as evidenced by the distribution


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of similarly-sized facilities in the Bay Area). The proposed Bingo Parlor use would notprovide any essential service or trade to the surrounding business park or its employees.

In summary, a Health Club is a locally business and neighborhood oriented use whichtypically draws from a combined employment and residential population of under 10,000. Incontrast, a Bingo Parlor is a community or regionally oriented use which draws exclusivelyfrom a residential population of 100,000 or more.

3.0 Applicability of Concord General Plan

The Concord 2030 Urban Area General Plan land Use Element identifies the SubjectProperty as being within the "Downtown Mixed Use" classification. The Plan states that thisclassification "is intended for high density mixed-use development in Central Concord, eastof Walnut Creek. It allows for a mix of uses that balances jobs and housing opportunities,including offices, commercial development, hotels, public/quasi public, and residential usesup to 100 units per net acre. The maximum FAR is 6.0."

Figure 3: City of Concord General Plan Land Use Diagram


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3.1 Applicable General Plan Policies. The Downtown Mixed Use District is identifiedon page 3-32 of the Plan as one of several important employment districts serving the City.Policy LU-6.1.4 calls for the City to "Restrict retail in office and business park areas towholesale, bulk retail, and small-scale uses serving local employees." This policyunderscores the City's priority of preserving and enhancing the attractiveness and viability ofemployment centers such as that within which the Subject Property is located.

As further discussed in the following sections of this report, the 1978 establishment of a"health club" use by Use Permit on the Subject Property was consistent with employment-oriented Policy LU-6.1.4, because it provided an essential service in support of employersand employees within the surrounding business park. At this location, the health clubfunctioned as a business service use. The currently proposed change of use frombusiness-compatible, business-supporting "health club" to "bingo parlor" would not beconsistent with Policy LU-6.1.4, because the bingo parlor would not provide any essentialservice or trade to the surrounding business park or its employees. The 18,744 square footbingo parlor, with its design occupancy for 400 or more customers is a commercialrecreational use which is oriented to the community as a whole, and which (as furtherdiscussed below) raises a number of potentially serious compatibility issues withprofessional offices and nearby residential uses.

4.0 Applicability of Zoning Ordinance Chapter 122

As shown in Figure 4, the Subject Property is zoned Planned District (PD). The PD Districtextends to all of the properties in the adjoining business park and nearby industrial park tothe north, south and west of the Subject Property. These uses are classified on the GeneralPlan Diagram as either Downtown Mixed Use or West Concord Mixed Use, and represent asignificant component of the City's employment base.

As required pursuant to State Law, each discretionary land use entitlement adopted by theCity must be consistent with the General Plan. The originalJune 2, 2010 and July 13, 2010Staff Reports (and the corresponding Resolutions) find that the proposed bingo parlor usewould be consistent with the Downtown Mixed Use General Plan classification andsupporting policies by "promoting Central Concord as the City's social center byencouraging, among other things, mixing entertainment uses with office, commercial, andresidential uses." However, this summary conclusion is not supported by any evidenceshowing the need for or compatibility of a bingo parlor within the business park where thesite is located. A closer examination of the characteristics of the Project show that the bingoparlor use would not provide any essential service or trade to the surrounding business parkor its employees. Rather, the bingo parlor would draw its estimated 400 or more peakperiod customers from the entire Concord community and surrounding area for non-business purposes.


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4.1 Sec. 122-683. General Requirements. Sub-Section 122-683(a) requires that aPreliminary Development Plan is required as a prerequisite for rezoning of property (with theexception of hillside areas) to the PD District. Sub-Section 122-683(b) provides that aPreliminary Development Plan is again required for all new development of property alreadyzoned PD, and further requires concurrent "discretionary action ... usually in the form of ause permit considered by the Planning Commission." Sub-Section 122-683(b) also providesthat where a Zoning Administrator's review and approval is required, the Planning Managermay authorize use of a Zoning Administrator's Permit, and further that "minor,noncontroversial matters may be considered administratively." In those cases whereproperty is already zoned PD and is substantially developed, but no PDP has beenapproved, Sub-Section 122-683(c) provides that a PDP "shall not be required prior to action

under the jurisdiction of the Zoning Administrator or Planning Commission related to theexisting development." Further, Section 122-683(c) states that "Whether or not a preliminarydevelopment plan is required, a project sponsor must obtain approval of all otherdiscretionary actions required by the city."

Section 122-683 is the basis for the City's requirements as to when and under whatcircumstances either a PDP, Use Permit or other Zoning Administrator or administrativeaction is required for proposed development on property in the PD District. Where no newdevelopment is proposed, other sections of the code apply to use changes.

4.2 Sec. 122-684. Preliminary Development Plan. According to discussion in the June2, 2010 Staff Report (as repeated in the July 13, 2010 Staff Report) on the Bingo Worldappeal, the PDP filed in 1979 for the Enea Court Office Development (PDP 1-79) "did notinclude this site" (meaning 1505 Willow Pass Road). The Staff Report confirms that thedocuments on file for the 1979 Enea Court Office Development "clearly indicate that thePDP approval is for the development of office buildings on the adjacent properties."

Therefore, the subject property represents "substantially developed" property that is alreadyzoned PD, and therefore subject to the requirements of Section 122-683(c) prior toapplication of Section 122-684. As shown above, this section requires separatediscretionary action by either the Planning Commission or the Zoning Administrator, andregardless of whether a PDP is ultimately required for modifications to the existingdevelopment on the property, the "project sponsor must obtain approval of all otherdiscretionary actions required by the city" prior to establishing a new land use.

Nevertheless the very first mandatory submission requirement for consideration of a PDP asrequired under Section 122-684(a) is an analysis which includes the "Proposed land usesand density, including building coverage, employee count, and parking areas." Otherrequirements include analysis of the "Relationship of the proposed project to existing andproposed circulation" serving the project site", and how the Project "complies with thepolicies set forth in the General Plan".


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Therefore, Section 122-684(a) requires that the PDP review and approval process be usedto determine the appropriateness of proposed land uses, as well as the physicalimprovements intended to accommodate them. Where the provisions of Section 122-684are applied, the Planning Commission and City Council are required to consider the landuse component of the project.

4.2 Sec. 122-685. Subsequent Permits. This section provides that subsequent torezoning to the PD District, where proposed changes in land use and or physical facilitiesare proposed, "a subsequent permit application shall be submitted for all development in thePlanned District. A permit application may be submitted and the Zoning Administrator orPlanning Commission may take action on the subsequent permit application within 30 daysof the City Council's adoption of the rezoning, but such action shall not be effective until therezoning becomes effective."

4.4 Conditional Uses in the Planned District. The Planned District (PD) zone does notspecifically provide for Conditional Uses. The process prescribed in the Municipal Codeinvolves Preliminary Development Plans and Subsequent Permits to provide fordiscretionary approval of all land uses, as discussed above in sections 4.1 and 4.2.Pursuant to Section 122-683(b) a use permit is the specific method prescribed forconsideration of new or modified uses on property where no PDP exists, and where nomajor physical changes are proposed to existing facilities. This is the process which wasfollowed by the City in 1979 with the issuance of UP 65-78 for change of use from Theaterto Health Club on the Subject Property. A Use Permit is again required pursuant to Section122-683(b) for change of use from a business and neighborhood-oriented Health Club"fitness and recreational sports center" use to a Bingo Parlor "gambling industry" use whichis oriented to the community as a whole. However, as discussed in Section 3.1 above,inconsistency with General Plan Policy LU-6.1.4 would preclude issuance of a new UsePermit for the Bingo Parlor at this location because it would not provide any essentialservices in support of employers and employees within the surrounding business park, andwould create an incompatibility with office uses and available parking in the park.

4.5 Sec. 122-74 Use Permits Term. Municipal Code Section 122-74 states that If theuse of a building or property approved under a use permit ceases for a period of six monthsor more, the use permit shall be considered abandoned and void. Documentationprovided in the originalJune 2, 2010 Staff Report verifies that the former Velocity SportsHealth Club used closed in 2008 and that the building has been vacant for the past 2 years.

The current Use Permit is therefore "abandoned and void", and may not be relied upon toauthorize re-occupancy by a new Health Club or other substantially similar use. Asdiscussed in Sections 2 and 4.4 above, a currently valid Use Permit may not be


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administratively used to authorize establishment of a new use with different classificationand operational characteristics. Nevertheless, because UP 65-78 is not longer in effect, itmay not be relied upon to authorize the establishment of any new business, regardless ofsimilarity to the abandoned former use.

4.6 Sec. 122-3 & 122-6 & 122-7- Compliance with Chapter, Enforcement &Penalties. Section 122-3 states that No building or structure shall be erected,reconstructed, or structurally altered in any manner, nor shall any building or land beused for any purpose, other than as permitted by and in conformance with this chapterand all ordinances, laws, and maps referred to therein(emphasis added). Because theUse Permit has expired (see 4.5 above), in order to comply with the Concord ZoningSection 122-3, the building and land cannot be used for any purpose without prior issuanceof a new Use Permit. Section 122-6 states All departments, officials, and public employeesof the city, vested with the duty or authority to issue permits or licenses, shall conform to theprovisions of this chapter, and shall issue no permit or license for uses, buildings, orpurposes in conflict with the provisions of this chapter; andany such permit or licenseissued in conflict with the provisions of this chapter shall be null and void(emphasisadded).

Therefore, since the Use Permit 65-78 is abandoned and void pursuant to application ofSection 122-74 (see 4.5 above), Section 122-3 precludes the establishment of any new useon the Subject Property without first obtaining a new Use Permit. Neither the June 2 or July

13, 2010 Staff Report addresses this issue.

The foregoing zoning provisions are enforceable through application of Section 122-7,which provides that Any person, firm, or corporation, whether as principal, agent,employee, or otherwise, violating or causing the violation of any of the provisions of thischapter shall be deemed guilty of a misdemeanor punishable pursuant to section 1-23 ofthis Code.

5.0 Application of CEQA & Claim of Class 1 Categorical Exemption

Guidelines Section 15061 prescribes the process by which the load agency shall determinewhether a project is exempt from CEQA. It states that a project may only be found to beexempt (among other qualifications) if: (1) "The project is exempt by statute"; (2) "Theproject is exempt pursuant to a categorical exemption and the application of that categoricalexemption is not barred by one of the exceptions set forth in Section 15300.2" (see section5.4 below); and (3) "...it can be seen with certainty that there is no possibility that the activityin question may have a significant effect on the environment." Section 15061 specificallyprovides that any the determination to exempt a project by any non-elected official ordecisionmaking body of a local agency "may be appealed to the local agency's electeddecisionmaking body, if one exists."


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The originalJune 2 and July 13, 2010 Staff Reports presents the following conclusion whichis not supported by further analysis in the public record: "The proposed bingo use will utilizean existing facility and does not involve any development, expansion or any other work thatwould result in a significant physical change to the existing conditions or environment.Therefore, the project is categorically exempt from further environmental review underGuidelines Section 15301, Class 1, Existing Facilities, which applies to projects involving the'operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existingpublic or private structures, facilities...involving negligible or no expansion of use'."

The following analysis shows that the staff's summary conclusion, as endorsed by the PlanningCommission, is based on a partial and incorrect reading of only one of the applicable statutes,

and that a discretionary approval for change of use involving different classification andoperational characteristics may not be found to be exempt from the provisions of CEQA.

5.1 Discretionary Project Not Statutorily Exempt. Guidelines Section 15268 providesa limited statutory exemption for "ministerial projects" which do not require any discretionary

judgment on the part of the local agency, as follows:

"(a) Ministerial projects are exempt from the requirements of CEQA. The determination ofwhat is ministerial can most appropriately be made by the particular public agencyinvolved based upon its analysis of its own laws, and each public agency should make suchdetermination either as a part of its implementing regulations or on a case-by-case basis.(b) In the absence of any discretionary provision contained in the local ordinance or otherlaw establishing the requirements for the permit, license, or other entitlement for use, thefollowing actions shall be presumed to be ministerial:(1) Issuance of building permits.(2) Issuance of business licenses.(3) Approval of final subdivision maps.(4) Approval of individual utility service connections and disconnections.(c) Each public agency should, in its implementing regulations or ordinances, provide anidentification or itemization of its projects and actions which are deemed ministerial underthe applicable laws and ordinances.(d) Where a project involves an approval that contains elements of both a ministerial actionand a discretionary action, the project will be deemed to be discretionary and will be subjectto the requirements of CEQA."

On page 3 of the July 13, 2010 Staff Report it is suggested that this Project is statutorily exempHowever, Section 15002 provides that CEQA applies to projects "where a governmental agenccan use its judgment in deciding whether and how to carry out or approve a project. A projectsubject to such judgment is called a 'discretionary project'." It is therefore clear that both theoriginal Use Permit action to authorize the Health Club and the proposed determination on theBingo Parlor are "Discretionary Actions" which are subject to CEQA.


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5.2 Class 1 Categorical Exemption Not Applicable. The application for the BingoParlor involves establishment of a new use within an existing building of 18,744 sq. ft. whereno use currently exists or has existed for the past two years. As noted above, the StaffReport summarily concludes that the new Bingo Parlor qualifies for a Class 1 categoricalexemption because the new use would: "...utilize an existing facility and does not involveany development, expansion or any other work that would result in a significant physicalchange to the existing conditions or environment." However, Section 15301 specificallylimits Class 1 exemptions to "minor alteration of existing public or privatestructures,facilities, mechanical equipment, or topographical features, involving no expansion ofuse beyond that existing at the time of the lead agency's determination" (emphasis added).The staff analysis fails to consider the underlying qualification in Section 15301 for use of a

Class 1 exemption: "The key consideration is whether the project involves negligible or noexpansionor change of use" (emphasis added).

The proposed community or regionally-oriented Bingo Parlor "gambling industry" use differssubstantially from the business and neighborhood-oriented Health Club "fitness andrecreational sports center" use last operating on the Subject Property two years ago (seesections 2, 3 and 4.4 above). Moreover, because the Health Club use is conclusively"abandoned and void", the Bingo Parlor constitutes an entirely new land use activity and istherefore inappropriate for application of a Class 1 exemption. Class 1 is reservedexclusively for minor changes to the physical facilities which house or accommodate anunaltered operating use.

5.3 Class 3 Categorical Exemption Applicable to Smaller Land Use Changes.Section 15303 of the CEQA Guidelines provides a class of categorical exemption expresslyfor the conversion of existing small structuresfrom one use to anotherwhere only minormodifications are made in the exterior of the structure (emphasis added). However, Sub-Section 15303(c) prescriptively limits the size of any individual structure qualifying for thischange of use exemption to 2500 sq. ft., or 10,000 sq. ft. total for up to 4 structures.

It is therefore the conclusive determination of CEQA that changes of land use from oneactivity to another shall only be exempted from analysis where their size is relatively smalland where no unusual circumstances dictate further analysis. Because the Bingo Parloruse would occupy a single structure 7 times larger than the exemption threshold, it isdisqualified and must be evaluated under CEQA.

5.4 Projects with Potential for Significant Effect Not Exempt Regardless of Cat. Ex.Section 15300.2 provides exceptions to disqualify the application of categorical exemptionswhere because of location or other circumstances the project could otherwise present thepotential for a significant environmental effect. Sub-Section 15300.2(a) provides thatClasses 3, 4, 5, 6, and 11 are disqualified from application where the project could have a


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significant effect due to the "sensitive environment" in which it is to be located. Further,Sub-Section 15300.2(c) expressly stipulates as follows: "A categorical exemption shall notbe used for any activity where there is a reasonable probability that the activity will have asignificant effect on the environment due to unusual circumstances."

The proposed Bingo Parlor "gambling use" with its distinctive operational characteristics(see sections 2.0, 2.1, 2.2, 2.3 and 2.4 above) might not have a significant effect on alarger site, in a commercial location, with ample parking, and where professional businessare not surrounding it, or where extensive residential uses are within short walking distance.However, in this particular location it would operate:

(1) On a relatively small site with a grossly inadequate parking supply (62 spaces for adesign occupancy of 400 or more customers);

(2) Within facilities served by a large open parking area which is poorly illuminated andconcealed from view from all public streets, facilitating loitering and difficulties forpolicing;

(3) Facing directly onto a major City thoroughfare where curb-side parking is not allowed;

(4) Within a professional and administrative office park, the sustained quality and occupancylevels of which could be irreversibly harmed by an incompatible gambling use, andwhere as a result: (a) loss of jobs could occur; (b) building occupancy and maintenance

could deteriorate; and, over time, physical blight could manifest;

(5) At the end of a local business park street where overflow parking demand wouldcoincide with the peak operating period of offices, and where as a result customerswould be forced to walk significant distances (with cash in pocket) to find parking;

(6) Within 1/4 mile walking distance of a large residential neighborhood, where overflowparking, loitering, and very late noise impacts could extend; and

(7) Using extended hours of operation, bring more than 400 people to this site duringperiods running as late as 3:15 AM on Fridays (Saturday morning) and Saturdays

(Sunday mornings).

If located at this particular site, the proposed Bingo parlor use would have a clear potentialfor several significant adverse effects on the environment, as summarized above. Thesummary conclusion presented on page 3 of the July 13, 2010 Staff Report notwithstanding,no actual analysis of the foregoing reasonably foreseeable significant impact issues hasbeen prepared by the City. Therefore, regardless of qualification for application of a Class 1or 3 categorical exemption, the this project is clearly subject to the requirement for reviewunder CEQA.


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The Subject Property fronts on Willow Pass Road but has exclusive vehicular access fromEnea Circle. Employees and visitors of the adjoining offices currently utilize street parkingalong Enea Circle. As shown in this photo, parking demand for existing nearby officescurrently overflows onto the west side of the Subject property at 1505 Willow Pass Road.

According to the June 2, 2010 Staff Report, the building was occupied as a "theater" in the1960's. A Use Permit (#65-78) was issued in 1978 for change of use to a "health club";however, the Staff Report documents the fact that this building has been vacant since 2008when the last operating health club (Velocity Sports) closed. According to Code Sec. 122-74,the Use Permit was "abandoned and void" six months following cessation of use.

Figure 5a: Photographs of Building from Enea Circle & Willow Pass Road


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Rear (east) side of site contains a majority of the 62 total parking spaces serving the building;unlike the adjoining office parking lots, it lacks ground-mounted lighting. Parking in this area ishidden from view from both Enea Circle and Willow Pass Road. This area is thereforeinherently susceptible to loitering and difficult to police.

The Subject Property faces Willow Pass Road, where it has pedestrian access, but no directvehicular access. The three west-bound travel lanes along this section of Willow Pass Roadafford no room for curb-side parking; peak travel demand and overflow parking from the 400 ormore customers generated by the proposed bingo use during peak periods could thereforecreate a significant traffic impact within the office park and along Willow Pass Road.

Figure 5a: Photographs of Rear of Building & Willow Pass Road Frontage


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5.5 Prescribed Method for Evaluation of Projects with Potentially Significant Effect.Section 15060(b) provides that "the lead agency shall begin the formal environmentalevaluation of the project after accepting an application as complete and determining that theproject is subject to CEQA." Section 15060(d) provides that "If the lead agency candetermine that an EIR will be clearly required for a project, the agency may skip furtherinitial review of the project and begin work directly on the EIR process described in Article 9,commencing with Section 15080. In the absence of an initial study, the lead agency shallstill focus the EIR on the significant effects of the project and indicate briefly its reasons fordetermining that other effects would not be significant or potentially significant."

Section 15063 provides that the "Lead Agency shall conduct an Initial Study to determine if

the project may have a significant effect on the environment. If the Lead Agency candetermine that an EIR will clearly be required for the project, an Initial Study is not requiredbut may still be desirable." Finally Section 15063 provides in this case that "If the agencydetermines that there is substantial evidence that any aspect of the project, eitherindividually or cumulatively, may cause a significant effect on the environment, regardless ofwhether the overall effect of the project is adverse or beneficial, the Lead Agency shall"either "Prepare an EIR", or make use of a previously certified EIR.

Finally, the discussion on page 3 of the July 13, 2010 Staff Report incorrectly quotes Section15060(c)(2) of the CEQA Guidelines as follows: "Where it can be seen with certainty that thereis no possibility that the activity in question may have a significant effect on the environment,the activity is not subject to CEQA." Rather, this quotation reflects the language of above-referenced Section 15061(b)(3) (see above section 5.0 where it has been demonstrated withsubstantial evidence above that this project has the potential for several very seriousenvironmental effects). The actual language of staff-quoted Section 15060(c)(2) states that anactivity is exempt if: The activity will not result in a direct or reasonably foreseeable indirectphysical change in the environment. As demonstrated in the analysis under section 5.0through 5.4, several profound direct and indirect physical changes would result from theproject, including for example a 4-fold increase in peak hour vehicular trips and a 5-foldincrease in parking demand for which no unused available supply is provided.

Based on the foregoing evidence, it is clear that the project may have several significanteffects, and CEQA requires that the City therefore proceed with preparation of a full EIR, oralternatively first conduct an Initial Study to further scope the extent of topics to beaddressed in the EIR.

Sincerely,

______Richard T. Loewke, AICP

cc: Austin Weaver

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