RANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 06/21/2016 AGENDA HEADING: Regular Business

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1 RANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 06/21/2016 AGENDA REPORT AGENDA HEADING: Regular Business AGENDA DESCRIPTION: Consideration and possible action to review options to address community concerns regarding possible soil contamination at PVPUSD s Ladera Linda Fields RECOMMENDED COUNCIL ACTION: (1) Review options to address community concerns about possible soil contamination at the Palos Verdes Peninsula Unified School District s Ladera Linda Fields; and, (2) Provide direction to Staff for further action, if appropriate. FISCAL IMPACT: None Amount Budgeted: Additional Appropriation: Account Number(s): N/A N/A N/A ORIGINATED BY: Kit Fox, AICP, Senior Administrative Analyst REVIEWED BY: Gabriella Yap, Deputy City Manager APPROVED BY: Doug Willmore, City Manager ATTACHED SUPPORTING DOCUMENTS: A. Government Code Section 53094(b) (page A-1) B. May 3 rd Daily Breeze article regarding PVPUSD s Ladera Linda Fields (page B-1) EXECUTIVE SUMMARY: As requested by the City Council at its meeting on June 6, 2016, Staff presented a report on the options available to the City to address community concerns about possible soil contamination at the Palos Verdes Peninsula Unified School District s (PVPUSD s) Ladera Linda Fields. Due to the broad exemptions from local land use and zoning regulations that are afforded to school districts under State law, the options that the City has for exerting meaningful, direct pressure on this issue are limited, short of initiating litigation. This matter is under investigation by the Department of Toxic Substances Control (DTSC), the South Coast Air Quality Management District (AQMD) and other local, State and Federal agencies. BACKGROUND AND DISCUSSION: 1

2 In April 2015, Staff began to receive reports from residents in the Ladera Linda and Seaview neighborhoods about truckloads of dirt being dumped on PVPUSD s Ladera Linda Fields (sometimes also known the Portuguese Bend Fields). At that time, residents were advised that, as provided under Government Code Section 53094(b) (Attachment A), PVPUSD was exempt from the City s land use and zoning regulations. There was a great deal of speculation amongst residents as to the reason for dumping the dirt, its origin and whether or not it had been tested for contamination. In October 2015, Staff was again contacted by Ladera Linda and Seaview residents about the dumped soil. At that time, Staff was able to confirm with PVPUSD that they had authorized AYSO Region 10 (AYSO) to stockpile dirt on the property. The reason given for the stockpiling was that the dirt was needed for the periodic regrading of the soccer fields. AYSO claimed that the dirt came from a site in the City of Torrance, purportedly from residential lots on Sharynne Lane. However, the City of Torrance was not able to confirm this. 1 On October 28, 2015, PVPUSD notified Staff that the soil would be tested and results made public. 2 Staff is not aware of whether or not PVPUSD issued any permit to AYSO or made an environmental determination regarding the placement of soil on the property pursuant to the California Environmental Quality Act (CEQA). Initially, PVPUSD stated that it expected to post the results of the soil testing by Alta Environmental (Alta) on its website by November 18, On that date, however, PVPUSD advised the City and interested parties that the testing was not yet complete. On November 20, 2015, PVPUSD announced that the matter was being turned over to PVPUSD s legal counsel. In early December 2015, PVPUSD apparently met with representatives of the Ladera Linda and Seaview neighborhoods to discuss the matter. On January 5, 2016, PVPUSD and AYSO notified Staff and interested parties that a report prepared by Leymaster Environmental Consulting, LLC (Leymaster), concluded that the soil dumped on the Ladera Linda Fields was clean and safe. The report and a joint statement from PVPUSD and AYSO was posted on PVPUSD s website. On April 27, 2016, Staff was advised by the Lomita Sheriff s Station that soil samples were being collected at the Ladera Linda Fields under the authority of a search warrant. Based upon reports in the local media (Attachment B), Staff learned that the investigation was being led by DTSC and that the AQMD had issued a Notice to Comply (NC) to PVPUSD. In response to the NC, PVPUSD secured, posted and covered the area where AYSO placed the soil at the Ladera Linda Fields. 1 There had also been rumors that the soil came from the residential lots at Trump National Golf Course, but the Trump Organization confirmed that this was not the case. 2 In a related matter, Staff received complaints on October 31, 2015, that AYSO had erected a large sign on the property near the intersection of Forrestal and Intrepid drives. Staff noted that the sign appeared to be located within the public right-of-way of Forrestal Drive. Following a site visit with Staff on November 5, 2015, PVPUSD initially agreed that the sign would be moved back out of the public right-ofway, but eventually PVPUSD directed AYSO to remove the sign completely on November 13,

3 On June 10, 2016, Staff requested a copy of the Alta report and any agreements with AYSO from PVPUSD, but was told that anything having to do with AYSO or the Alta report is part of an active legal investigation so PVPUSD cannot release these items without discussing with their legal counsel first. Because PVPUSD has not produced information in response to Staff s requests, the City filed a Public Records Act (PRA) request with PVPUSD for pertinent documents on June 14, The PRA requests information related to any agreement between PVPUSD and AYSO about the use of the Ladera Linda Fields and the placement of the soil, as well as a copy of the Alta report. City Action/Involvement to Date Staff met with PVPUSD at the Ladera Linda Fields on November 5, 2015, to discuss the soil dumping and the AYSO sign (see Footnote No. 2 above). Staff has not attended any Board of Education meetings at which this matter was discussed, nor has there been any official expression of a City position regarding this matter. When community concerns about this matter have been brought to Staff s attention, residents have been advised that the City has very little or no jurisdiction, and that their concerns should be expressed directly to the Board of Education. Also, as mentioned above, Staff filed a PRA with PVPUSD on June 12, Options for Future City Action/Involvement Given that PVPUSD has acted consistently in the belief that this matter is exempt from local land use and zoning regulations under Government Code Section 53094(b), there are a limited range of options available for the City to try to exert pressure on PVPUSD. Staff has identified several options, which are described briefly below. Option 1: Status Quo The City would continue to take no formal position on the matter and abide by PVPUSD s expectation that it is exempt under Government Code Section 53094(b). Residents would continue to be encouraged to present their concerns directly to the Board of Education. Option 2: Challenge to Section 53094(b) Exemption The City could determine whether PVPUSD s storage of materials on the property makes it subject to a Conditional Use Permit (CUP) under Municipal Code Section (b), requiring a school to obtain a CUP for educational purposes, including ancillary uses and developments which are operated by the educational institution and are part of, and necessary to, the educational program of the institution. Further, given the estimated quantity of 1,100 cubic yards of fill placed on the property, this would involve after-the-fact approval of a grading permit by the Planning Commission at a duly-noticed public hearing. If the after-the-fact grading permit was not approved, PVPUSD would likely be required to remove the soil from the Ladera Linda Fields and restore them to their previous condition and contours. The consideration of the CUP 3

4 and grading permit would also include CEQA review of the grading. In response, PVPUSD could pass a resolution exempting the storage of dirt on the fields from the City s zoning code. Government Code Sections 53094(a) and (b) state (in relevant part) that: [notwithstanding] any other provision of this article, this article does not require a school district to comply with the zoning ordinances of a county or city unless the zoning ordinance makes provision for the location of public schools and unless the city or county has adopted a general plan. [Furthermore, notwithstanding] subdivision (a), the governing board of a school district, that has complied with the requirements of Section of this code and Section of the Public Resources Code, by a vote of two-thirds of its members, may render a city or county zoning ordinance inapplicable to a proposed use of property by the school district. The governing board of the school district may not take this action when the proposed use of the property by the school district is for non-classroom facilities, including, but not limited to, warehouses, administrative buildings, and automotive storage and repair buildings. The City s Zoning Code does make provisions for the location of public schools in the Institutional (I) zoning district, within which the Ladera Linda Fields are located. Should PVPUSD pass a resolution exempting this activity from the City s zoning code, the City could attempt to challenge PVPUSD s determination that this matter is not related to non-classroom facilities under Government Code Section 53094(b). Courts have extended Government Code Section (b) s definition of classroom facilities to the construction of stadium lights and thus exempted such construction from local zoning requirements. (Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (2013) 215 Cal.App.4th 1013; City of Santa Cruz v. Santa Cruz City School Bd. of Education (1989) 210 Cal.App.3d 1.) On the other hand, courts have found swap meets conducted in a school parking lot were not a classroom facility and were not exempt from local zoning. (People ex rel. Cooper v. Rancho Santiago College (1990) 226 Cal.App.3d 1281.). It should also be noted that, in 2002, the City approved a CUP for a proposed cell site at the Ladera Linda Fields as a non-classroom facility (although the cell site was never constructed). It should also be noted that, in this particular instance, PVPUSD is leasing the subject fields to a third party, which might make it more difficult to maintain that this is a classroom facility. The costs of such litigation would probably be borne solely by the City. If successful, the placement of the soil would then be required to comply after the fact with the City s land use and zoning regulations. Similarly, City residents could challenge PVPUSD s presumed determination that it is exempt from the City s zoning code. Option 3: Defer to On-Going Investigations 4

5 As noted above, DTSC, AQMD and other agencies are currently investigating the circumstances surrounding the placement of this soil on the Ladera Linda Fields. It is possible that the outcome of these investigations may result in the removal of the soil and the remediation of any contamination that may be found. If, as a result of these investigations, no contamination is found or any contaminated soil found is removed, the City may then choose to accept this determination as final and take no further action. Option 4: CEQA challenge If PVPUSD has made a determination as to the applicability of CEQA to the placement of soils on the Ladera Linda Fields property, the City or City residents could challenge PVPUSD s CEQA determination. Once Staff has determined what, if any, CEQA determination has been made, Staff can evaluate the City s ability to bring a challenge under CEQA. Option 5: Injunction/Litigation The City may file suit to try to require PVPUSD restore the property to the condition preceding the dumping of the soil. The grounds for such action would need to be determined in consultation with the City Attorney. As a last-ditch effort, this approach might be successful in the short term, but damaging to the City s relationship with PVPUSD in the long term. The costs of such litigation would probably be borne solely by the City. CONCLUSION: In conclusion, there are a number of options that the City Council might pursue in order to compel PVPUSD to address the concerns raised by Ladera Linda and Seaview residents. At best, these options might resolve the issue of the dumped soil, either through direct action by the City or through the action of local, State and Federal environmental agencies that are investigating this matter. 5

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7 5/3/2016 State probes possibly tainted soil at Ladera Linda Park in Rancho Palos Verdes The Daily Breeze ( State probes possibly tainted soil at Ladera Linda Park in Rancho Palos Verdes Multiagency criminal probe looking into safety of imported dirt By Ed Pilolla, The Daily Breeze Monday, May 2, 2016 State investigators are probing whether soil hauled to the Ladera Linda Community Park soccer fields in the spring was contaminated with hazardous waste, raising questions after school and soccer officials earlier this year declared the dirt clean and the issue settled. soil. Details of the criminal investigation remain unknown and under seal. But the state Department of Toxic Substances Control served search warrants last week at the Palos Verdes Peninsula Unified School District and the American Youth Soccer Organization in Torrance for documents related to the Investigators also took dirt samples near the soccer fields for analysis, according to the Department of Toxic Substances Control, which wants to determine if the soil poses a threat to the community and the children who play there. However, a Palos Verdes AYSO official on Monday said she expects the state to verify previous findings that indicated the soil is clean and safe. Since the search warrants were served April 27, a portion of the park near the soccer fields has been closed with yellow caution tape and signs warning of asbestos. Tim Reese, a spokesman for the Department of Toxic Substances Control, said his agency took action in response to complaints. There s no timetable for the soil test results. Because of the ongoing investigation, Reese said he did not anticipate that the test results would be made public but added, If we find any danger, then we will take the appropriate action. Multiagency investigation The Department of Toxic Substances Control is investigating along with the U.S. Environmental Protection Agency, the South Coast Air Quality Management District, the Los Angeles County District Attorney s Office and the Los Angeles County Fire Department s Certified Unified Program Agency, Reese said. Officials for Palos Verdes Peninsula Unified School District did not respond to requests to comment. In a statement on its website, district officials acknowledged receiving a search warrant. B-1 and nature/ /state probes possibly tainted soil at ladera linda park in rancho palos verdes?source=most_v... 1/2

8 5/3/2016 State probes possibly tainted soil at Ladera Linda Park in Rancho Palos Verdes The district fully cooperated with DTSC investigators and will continue to do so in the future, the district s statement said. Our highest priority is to the education, health and well being of the children in the district and across the Palos Verdes Peninsula. The district will continue to cooperate with DTSC in this matter and is hopeful for an appropriate resolution. The search warrants were filed in the Los Angeles Superior Court, Reese said. The probe follows consistent concerns voiced by residents, particularly Ed Hummel, that the school district and AYSO, which leases the soccer fields from the school district, did not properly test the soil and document exactly where it all came from. The 1,100 cubic yards of imported soil came from a basement and swimming pool excavation project on Sharynne Lane in Torrance, school officials said. They had hoped to put the issue to rest when Leymaster Environmental Consulting of Long Beach tested the soil Dec. 14 and found that the dirt was compliant with regulations and safe. DDT detected in tests That testing, along with a previous round of tests by Alta Environmental of Long Beach, indicated the presence of DDT in the soil. Jennifer Taggart, an environmental attorney representing PV AYSO, on Monday said DDT is found throughout California because of its widespread use in the 1970s. Taggart said the presence of DDT in soil is acceptable so long as the level is below the guidelines outlined in the California Human Health Screening Levels. Those are very strict standards, Taggart said. I expect the soil tests to come back clean. There may be some detections. Obviously, there are chemicals present in our environment. But I expect the chemicals detected to be well below any action level. School district officials put up yellow caution tape and signs warning of asbestos in response to the South Coast Air Quality Management District s notice to comply with asbestos testing. Taggart said the complaint charging that the soil is toxic came from one or two residents, but many more are now concerned because of the warning signs up at Ladera Linda. Unfortunately, with the ongoing criminal investigation, it s sort of limited how PV AYSO can respond, Taggart said, adding that the underlying affidavit in the case remains sealed. None of the soil in question was used to level off the soccer fields because of concerns raised last year by residents, Taggart said. The Los Angeles County District Attorney s Office on Monday declined a request to view the search warrants. URL: and nature/ /state probes possibly tainted soil at ladera linda park in rancho palos verdes 2016 The Daily Breeze ( B-2 and nature/ /state probes possibly tainted soil at ladera linda park in rancho palos verdes?source=most_v... 2/2