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August 16, 2017 VIA E-MAIL and U.S. MAIL David Belmer Planning

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August 16, 2017 VIA E-MAIL and U.S. MAIL David Belmer Planning www.msrlegal.com Sean Marciniak August 16, 2017 VIA E-MAIL AND U.S. MAIL David Belmer Linda N. Andal, CMC Planning Director City Clerk City of Anaheim City of Anaheim Planning and Building Department Planning and Building Department 200 South Anaheim Boulevard 200 South Anaheim Boulevard Anaheim, California 92805 Anaheim, California 92805 Email: [email protected] Email: [email protected] Re: Response to February 9, 2017 letter re Disneyland Resort Eastern Gateway Project and request for information under the California Public Records Act Dear Mr. Belmer and Ms. Andal: Thank you for your responses to our Public Records Act request of March 5, 2017 regarding the Disneyland Resort’s1 proposed Eastern Gateway Project (“Project”). We have had an opportunity to review the documents that you provided (the “Responses”), and respectfully request that the City disclose further information and documents that were identified in the Responses, but never released for our review. This information includes: Information about the City’s decision not to prepare a health risk assessment of the Project, which would evaluate the Project’s cancer and non-cancer disease risks to nearby residents and other sensitive receptors. We requested a full air quality study in our letter of January 2, 2017, and at least one of the City’s environmental consultants also proposed such a study. Traffic and noise studies that the Project applicant prepared, and that the City peer-reviewed. Such studies are not subject to the exemptions and privileges listed in your letter of March 30, 2017. Additional materials concerning impacts of the Project on historic resources. The City’s analysis of the Project’s potential to harm historic resources appears to consist of a single inventory of historic structures that 1 The applicant is Walt Disney Parks and Resorts, U.S., Inc. BDAL\53913\1270545.1 Offices: Walnut Creek / San Francisco / Newport Beach David Belmer. Linda Andal August 16, 2017 Page 2 does not include any site-specific analysis. A bridge comprising part of the Project, meanwhile, will entail demolition of the Carousel Inn, a 60-year-old structure, and place a modern use directly adjacent to structures that have existed for roughly the same time. As the City’s plans indicate, 50 years is the standard measure of time for evaluating a building’s potential historic significance, and this threshold should be applied consistently to the Project. All emails, texts, and other electronic correspondence between Disney personnel and City decisionmakers. Based on a recent decision by the California Supreme Court, this class of documents should include messages sent and received from personal email accounts, devices, and servers used by City decisionmakers in the course of City business, and not just those accounts, devices, and servers issued or maintained by the City. Separate and apart from our plea for more documents, we renew our request that the City evaluate the Project, or any future permutation of the Project, as part of an Environmental Impact Report (“EIR”). The Responses, even though incomplete, only confirm that any major redevelopment of the Harbor Boulevard area warrants an in-depth analysis, requiring either a subsequent or supplemental EIR to the Disneyland Resort and Anaheim Resort Specific Plan EIRs. Decision not to study cancer and non-cancer disease risk. As discussed in our letter of January 2, 2017, there are thousands of sensitive receptors in the vicinity of the Project site who, due to the proximity of Interstate 5, are already exposed to poor air quality. Accordingly, we requested a full air quality study, which would include a health risk assessment to determine the cancer and non-cancer disease risks associated with relocating the Project applicant’s transportation center to its proposed location. It appears we were not alone in our thinking. In responding to the City’s request for proposals to prepare a CEQA addendum for the Project, the environmental firm BonTerra Psomas recommended that the City consider preparing a health risk assessment, which would evaluate toxic air contaminants emitted in the course of Project operations and their impacts to public health. (BonTerra Psomas Scope of Work for Addendum to EIR 311 and EIR 340, p. A-4 (August 16, 2016).) When City staff questioned why a health risk assessment might be necessary, BonTerra Psomas indicated that perhaps a health risk assessment was not necessary, since Anaheim Resort Transportation buses were converting to non-diesel engines. (See Email correspondence from Jennifer Marks to Christin Saunders (August 25, 2016).) Respectfully, this reasoning is flimsy and unsupported by substantial evidence. First, vehicle traffic accessing the Project’s transportation center would not consist solely of ART buses. Second, many thousands of cars and trucks — all equipped with gas and diesel engines producing diesel particulate matter and other contaminants — would use the 6,800-space, seven-story parking garage every single day. BonTerra Psomas’ first instinct, to prepare a health risk assessment, BDAL\53913\1270545.1 David Belmer. Linda Andal August 16, 2017 Page 3 was a good one, and we respectfully request that the City release any further emails or other correspondence concerning the City’s decision not to prepare this study. To the extent the Project applicant was consulted on this issue or otherwise provided input, any resultant correspondence should also be disclosed. The health of residents, guests, and employees are a paramount concern, and the public should not be kept in the dark about the Project’s potential to increase cancer and non-cancer disease risks. While health risk assessments require money and time to prepare, they often disclose mitigation measures that can reduce health risks to less-than-significant levels. Thus, in addition to our supplemental request for more documents, we reiterate our demand that a health risk assessment be performed for the Project as part of an EIR. Missing environmental reports. In various documents comprising the Responses, there are references to an acoustic study and a traffic impact analysis that were sent to the City by the Project applicant’s attorney on November 3, 2016. (See Email correspondence from Kathleen Truman to Elaine Thienprasiddhi.) The City later commissioned BonTerra Psomas to peer review the acoustic study, and it appears the City’s principal traffic engineer reviewed the traffic impact analysis. In your letter of March 30, 2017, you indicated that certain, unidentified documents qualified for a litany of privileges and exemptions from disclosure. It is difficult to know if you intended to extend these protections to the aforementioned acoustic and traffic studies. If so, such an action would be improper. Environmental studies prepared by project applicants, once sent to a public agency, are not eligible for privileges and exemptions that would justify their nondisclosure. In the latest court decision concerning the common interest doctrine, which protects certain communications between a public agency and developer from disclosure, the court held a “fundamental tension between the agency's interest in objective environmental analysis and the applicant's interest in obtaining approval of the proposed project prevents those interests from being aligned before the project is approved. Both have an interest in producing a legally adequate EIR, but as we have said, the agency cannot share the applicant's interest in an EIR that supports the project as proposed until the environmental review process is complete.” (Citizens For Ceres v. Superior Court (2013) 217 Cal.App.4th 889, 921.) Therefore, the common interest doctrine would not apply, and any privileges attaching to documents exchanged between the agency and the applicant are waived. (Id.) But privileges do not apply to such environmental reports for a separate and independent reason. Federal jurisprudence provides that when a client’s ultimate goal is not legal advice, but rather to procure advice on accounting, medical, or environmental determinations, the attorney-client privilege does not apply. (Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., No. 1:14-cv-00006-RLM-SLC, 2017 WL 1361308 (N.D. Ind. April 14, 2017.) Therefore, while legal comments from a city attorney on the CEQA implications of an environmental study may be subject to BDAL\53913\1270545.1 David Belmer. Linda Andal August 16, 2017 Page 4 privilege (so long as the study was prepared by the city), the environmental conclusions in that environmental report would not qualify for protection. Finally, to the extent the City is withholding the noise and traffic studies on the basis that they are notes and/or drafts protected under Government Code section 6254(a), this basis is unsound. Notes and drafts are protected only so long as “the public interest in withholding those records clearly outweighs the public interest in disclosure.” (Gov. Code, § 6254(a).) Here, traffic counts have a direct correlation with toxic air emissions, which speak to a project’s cancer and non-cancer disease risks. High noise levels, meanwhile, have also been shown to have effects on the physical health of sensitive receptors. As early as possible, then, it is important that the public be able to take a hard look at the data and assumptions underlying these studies, especially if the City still intends to attempt using a CEQA addendum to satisfy state environmental rules, which does not offer the same transparencies and review opportunities as an EIR. For the foregoing reasons, the public interests here bode in favor of disclosure. Even if, for the sake of the argument, some exemption or privilege did apply, the fact that parts of a requested document fall within the terms of an exemption or privilege would not justify withholding the entire document. (Los Angeles County Board of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 292.) Given the above, we respectfully request that you disclose all acoustic and traffic studies that the Project applicant prepared and transmitted to the City.
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