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.
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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,
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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
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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. If there exist notations or other comments on these documents by the City that you believe qualifies for an exemption or privilege, please identify the grounds for nondisclosure and provide us with redacted copies of the aforesaid documents.
Additional materials should be disclosed concerning the Project’s impacts on historic resources; if no site-specific studies have been undertaken, they should be prepared in conjunction with an EIR. We have some concerns that the City did not provide us the full array of information it has collected concerning the Project’s impacts on historic resources. The only document we did receive was a citywide “List of Historic Structures,” attached to a memorandum sent from Christine Nguyen to Elaine Thienprasiddhi on September 6, 2016. While it appears this inventory may have been updated in June 2016, it fails to contain any information about the Carousel Inn, which the Project applicant must demolish in order to construct a proposed bridge over Harbor Boulevard. The Carousel Inn, as its owner discloses on the hotel’s website, enjoys “a rich history as one of the first hotels on Harbor Boulevard, and one of the first to bear the new Anaheim Resort branding.”2 The hotel’s website also provides:
As the Carousel Inn takes its last “merry-go-round” on October 18, the hotel reflects on its unique place in Anaheim history, its heritage and progress
2 See description of hotel provided on http://www.carouselinnandsuites.com/.
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over the past 59 years. The Carousel Inn & Suites, which opened just two years after Disneyland welcomed its first guests, boasts an interesting evolution as one of the longest-tenured residents of the Anaheim Resort area. The Inn drew its name, theme and architectural inspiration from the King Arthur Carrousel, one of the original Opening Day attractions at Disneyland in 1955, inspired by Walt Disney’s visits to Griffith Park where his daughters would ride the merry-go-round. One of the iconic horses from the King Arthur Carrousel stands proudly at the Carousel Inn & Suites. Over the years, The Carousel Inn’s prized location has provided its guests a sweeping view of Disneyland park and Disney California Adventure park with uninterrupted views of Disneyland Resort’s brilliant firework spectaculars.
The demolition of this building, therefore, merits closer scrutiny. First, it is associated with events that made a significant contribution to the City’s history, and even incorporates an iconic piece of the Disneyland Resort (i.e., one of the original horses from the park’s original merry-go-round). Second, the building is almost 60 years old. As detailed in the City of Anaheim Citywide Historic Preservation Plan, “[f]ifty years is the standard measure of time for evaluating a building’s potential historic significance. This period of time is set by the National Register of Historic Places guidelines and widely applied in other such programs at the State and local level.” (CHPP, p. 5.) The 50-year threshold has become particularly relevant with respect to local resources. In suggesting that significant development in the 1970s may not have adequately protected buildings constructed in the 1920s, the City has said that, “[t]oday, building stock from the late 1950s has reached that same age and is often accorded the same lower priority when evaluated for its historical significance.” (CHPP, pp. 5-6.) Therefore, buildings like the Carousel Inn merit special attention.
But it is not just the hotel that warrants further study. Replacing the Carousel Inn with a monolithic, sweeping structure also has the potential to erode and disrupt the character of Harbor Boulevard, which is lined with numerous other structures that have existed since the 1950s and 1960s.
On the foregoing bases, we respectfully request that the City release any further documents it might have that address the site-specific impacts of the Project on historic resources along Harbor Boulevard. If the City has not undertaken this work, it should do so as part of a subsequent or supplemental EIR to the Disneyland Resort and Anaheim Resort Specific Plan EIRs.
Potentially missing emails to and from City decisionmakers. One class of documents we requested in our Public Records Act request of March 5, 2017 was correspondence between the Project applicant and both City Council Members and City Planning Commissioners who led the City in 2016. We were surprised that the City’s Responses did not appear to contain a single email from Disney to these decisionmakers, or from the decisionmakers to Disney.
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We understand that, per your letter of March 30, 2017, you asserted that some unidentified number of documents were subject to the exemptions and privileges favoring their withholding. If there exist communications between Disney and City decisionmakers, it is unclear how such communications would be exempt from disclosure under the Public Records Act request. If such documents contain personal contact information, customer information, or details about critical infrastructure, those details can be redacted. (Los Angeles County Board of Supervisors, supra, 2 Cal.5th at 292.) The same can be said for proprietary information — it to can be easily redacted. Insofar as the City is claiming that communications between City decisionmakers and Disney personnel is subject to the deliberative process privilege, this privilege is intended to afford a measure of privacy to the decisionmakers and their staff advisors. If Disney personnel were charting the future of municipal affairs with City Councilmembers and Planning Commissioners in 2016, and the City’s position now is that the public does not deserve access to this correspondence, such a position would be alarming.
We would also like to direct your attention to the Supreme Court of California’s recent, landmark ruling regarding the Public Records Act, in which the Court held that communications related to the conduct of public business do not cease to be public records merely because they were sent or received using a personal account. (City of San Jose v. Superior Court (Smith) (2017) 2 Cal.5th 608.) The Court’s cogent opinion ensures broad access to public records in all forms and in all locations, including emails and text messages located on private accounts, devices, and servers. We therefore respectfully request that you disclose all emails, texts, and other correspondence between Disney personnel and City decisionmakers, including any communications occurred through private email accounts, devices, and servers.
If there indeed is not a single, Project-related email, letter, or other piece of correspondence between Disney and City decisionmakers in all of 2016, we would appreciate it if you could confirm this fact.
* * *
If the City still believes that an exemption or privilege justifies the withholding of any documents identified above, we respectfully request that the City explain which class of documents are being withheld, the specific exemption or privilege that applies to that class of documents, and the facts supporting the City’s assertions.
It is not the intention of our clients, which include members of the Harbor Boulevard Merchants Coalition, to engage in an adverse relationship with the City. Our clients have operated in the City of Anaheim for decades, and are merely requesting more transparency. To this end, we remain committed to having constructive discussions with you regarding our Public Record Act requests, and our demand that the City evaluate Disney’s Project as part of a subsequent or supplemental EIR to the Disneyland Resource and Anaheim Resort Specific Plan EIRs. Our concern, which
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we believe the City shares, is that the Project applicant’s proposed development remains sensitive to local community concerns.
Very truly yours,
MILLER STARR REGALIA
Sean Marciniak
NLC:srm cc: Nadia Costa, Esq., Miller Starr Regalia Robert “Red” Harbin, Executive Director, Harbor Boulevard Merchants Coalition Anaheim City Attorney’s Office ([email protected])
BDAL\53913\1270545.1 Jennifer L. Hall
Subject: FW: August 16, 2017 ltr. re Supplemental Request by Harbor Boulevard Merchants Coalition on Disneyland Gateway Project Attachments: 2017-08-16 ltr to David Belmer and Linda Andal.PDF
From: Elisa Trees Sent: Wednesday, August 16, 2017 8:34 AM To: David Belmer
This email is sent at the request of Sean Marciniak. Replies may be directed to
Please see the attached letter.
Elisa Trees | Miller Starr Regalia Assistant to Michael Di Geronimo, Brad Scheick, Tori Gyulassy and Timothy Maes
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MILLER STARR REGALIA CONFIDENTIAL COMMUNICATION This electronic mail message and any attachments are intended only for the use of the addressee(s) named above and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If you are not an intended recipient, or the employee or agent responsible for delivering this e-mail to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you received this e-mail message in error, please immediately notify the sender by replying to this message or by telephone. Thank you.
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