R I C H A R D T.

L O E W K E, A I C P
U 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

July 8, 2010

Craig F. Andersen
Andersen, Bonnifield & Roscha
One Corporate Centre
1320 Willow Pass Road, Suite 500
Concord, 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 independent
analysis of the City of Concord's administrative decision to authorize establishment of a
bingo 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 subject
property, in order to identify the procedural and substantive requirements for establishment
of a bingo gaming use on the property. The analysis includes an independent examination
of the applicability of the California Environmental Quality Act and Guidelines (CEQA) to the
proposed change of use, in light of the current and historical uses of the property, and the
operational 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 the
Project, as provided by Andersen, Bonnifield & Roscha via a public records request of the
City of Concord, including the original June 2, 2010 and amended June 2, 2010 staff reports
to the Planning Commission, as well as the most recent July 13, 2010 staff report to the City
Council, and all related supporting packet documentation as provided to the Commission
and Council.

The foregoing City file documentation, Municipal Code Sections, General Plan Policies and
CEQA 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, as
affirmed with findings by the Planning Commission on June 2, 2010) is consistent with
applicable ordinances and policies and correctly applied to this Project;

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

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

This analysis and my conclusions reflect my opinions as an urban and environmental

planner with over 35 years of professional experience in the State of California, and as a
member of the American Institute of Certified Planners (AICP).

547 Wycombe Ct., San Ramon CA 94583  Phone 925.831.8016  FAX: 925.831.8019  www.LoewkeAICP.com
Craig F. Andersen / Analysis of Bingo Parlor Use at 1505 Willow Pass Road
July 8, 2010
Page 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. The
County 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 end
of Enea Circle, approximately 700 feet north of Waterworld Parkway. Although fronting on
Willow 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 during
business hours. The street frontages along both segments of Enea Circle were also
observed as being substantially full with parked automobiles. Parking for the office building
immediately west of the Subject Property was observed to be utilizing approximately 10 of
the 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 walking
distance 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 industrial
uses extend to the north and south of the Subject property.
Craig F. Andersen / Analysis of Bingo Parlor Use at 1505 Willow Pass Road
July 8, 2010
Page 3

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 75
parking spaces. As documented in the original June 2, 2010 Staff Report and supporting
ownership 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 the
last operating health club (Velocity Sports) closed.

According to both the supplemental June 2, 2010 Planning Commission and July 13 Council
Staff Reports, a Preliminary Development Plan (PDP 1-79) was approved for an office
complex on the adjoining parcels (APN 126-300-23, 30, 35, 44 & 47) along Enea Circle in
1979 -- the year following conversion of the theater use to a health club. The completed
Enea Square office complex consists of two and three-story buildings housing primarily
professional and administrative offices.
Craig F. Andersen / Analysis of Bingo Parlor Use at 1505 Willow Pass Road
July 8, 2010
Page 4

2.0 Classification and Operational Characteristics of Proposed Use

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

2.1 NAICS – North American Industry Classification System. NAICS is the nationally
recognized authority for classification of land uses and businesses; it replaced the Standard
Industrial Classification (SIC) system several years ago. The NAICS website describes the
current system as “the standard used by Federal statistical agencies in classifying business
establishments for the purpose of collecting, analyzing, and publishing statistical data
related to the U.S. business economy.” The Official 2007 NAICS Manual makes a clear
distinction between Health Clubs and Bingo Parlors, and assigns different codes for each
use. 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 Recreation
Industries”. It then distinguishes between 7132 “Gambling Industries” and 7139 “Other
Amusement and Recreation Industries”. A specific further distinction is made between code
71394 “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 Bingo
World 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 for
different uses available in their manual “Trip Generation”, which is currently in its 8th edition.
Health Clubs have a ITE code of 492 and generate 3.53 peak hour trips per 1000 square
feet of gross building area. Bingo Parlors fall under code 473 for “Casino / Video Lottery
Establishment” and generate 13.43 trips per 1000 square feet of gross building area. Based
on a gross building area of 18,744 square feet1, the previous Health Club use would have
generated 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 Bingo
Parlor gambling use would therefore generate 252 peak hour vehicle trips, or almost 4 times
as many as the Health Club fitness center use. The implications of such a significant
change in peak period traffic have not been evaluated or considered as part of the
permitting process to date.

1
Documentation 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 original Staff Report and
Applicant Statement indicate that the building contains only 15,280 square feet.
Craig F. Andersen / Analysis of Bingo Parlor Use at 1505 Willow Pass Road
July 8, 2010
Page 5

2.3 Parking Needs. Concord Municipal Code Sections 122-845 establishes the number
of parking spaces required for these two land use types. Sub-Section 122-845(2)(e) states
that the “approving body shall determine the number of parking spaces for commercial
recreation uses on a case-by-case basis according to the characteristics and location of the
use, plus parking demands of ancillary uses.” Sub-Section 122-845(6)(a) prescribes as
follows: “Assembly areas with fixed seats (including church sanctuaries, funeral chapels,
auditoriums, theaters, and sports arenas): One parking space for each three seats.”. The
1978 use permit required per Section 122-845(2)(e) that the Health Club provide 75 parking
spaces. According to page 2 of the Zoning Compliance Fact Sheet Supplemental
Responses, the proposed Bingo Parlor use would have seating for 378 customers (at 63
separate 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 of
Section 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 gambling
uses, it is unclear whether 134 parking spaces would be sufficient. In their April 16, 2010
Administrative Determination (Condition #7) City Staff called for both 74 assigned parking
spaces supported by shared parking accommodations within the office business park.

The peak occupancy capacity of the proposed Bingo Parlor has been documented as being
on 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 62
on-site spaces will not be sufficient to accommodate people parking their cars to visit the
Bingo Parlor. As a result, the unstudied overflow parking is likely to spread throughout the
entire 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 accessible
supply of parking -- assuming that no other business park employees or visitors were
present. The Zoning Compliance Fact Sheet and Administrative Determination provide for
operation of the Bingo Parlor weekdays beginning at 4:00 PM. This operational period
overlaps with the highest parking demand period from the adjoining offices, creating a clear
potential for significant shortfalls in available parking.

2.4 Service Area and Orientation. The 18,744 square foot Bingo Parlor, with its design
occupancy for 400 or more customers is a commercial "gambling industry" use which is
oriented 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 Bingo
Parlor, and a peak vehicular trip rate one-fourth as great. The smaller Health Club use
served a finite local business and neighborhood residential population. Health club uses
frequently locate in business parks in order to provide a daytime support service for local
employers and employees, while also being accessible to surrounding neighborhoods
during off-peak periods. Numerous Health Clubs can be found throughout Concord in both
business park and commercial settings. In contrast, a Bingo Parlor of this scale will need to
draw from a residential population base of at least 100,000 (as evidenced by the distribution
Craig F. Andersen / Analysis of Bingo Parlor Use at 1505 Willow Pass Road
July 8, 2010
Page 6

of similarly-sized facilities in the Bay Area). The proposed Bingo Parlor use would not
provide 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 which
typically draws from a combined employment and residential population of under 10,000. In
contrast, a Bingo Parlor is a community or regionally oriented use which draws exclusively
from 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 Subject
Property as being within the "Downtown Mixed Use" classification. The Plan states that this
classification "is intended for high density mixed-use development in Central Concord, east
of 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 uses
up to 100 units per net acre. The maximum FAR is 6.0."

Figure 3: City of Concord General Plan Land Use Diagram

Craig F. Andersen / Analysis of Bingo Parlor Use at 1505 Willow Pass Road
July 8, 2010
Page 7

3.1 Applicable General Plan Policies. The Downtown Mixed Use District is identified
on 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 to
wholesale, bulk retail, and small-scale uses serving local employees." This policy
underscores the City's priority of preserving and enhancing the attractiveness and viability of
employment 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 employers
and employees within the surrounding business park. At this location, the health club
functioned as a business service use. The currently proposed change of use from
business-compatible, business-supporting "health club" to "bingo parlor" would not be
consistent with Policy LU-6.1.4, because the bingo parlor would not provide any essential
service or trade to the surrounding business park or its employees. The 18,744 square foot
bingo parlor, with its design occupancy for 400 or more customers is a commercial
recreational use which is oriented to the community as a whole, and which (as further
discussed below) raises a number of potentially serious compatibility issues with
professional 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 District
extends to all of the properties in the adjoining business park and nearby industrial park to
the north, south and west of the Subject Property. These uses are classified on the General
Plan Diagram as either Downtown Mixed Use or West Concord Mixed Use, and represent a
significant component of the City's employment base.

As required pursuant to State Law, each discretionary land use entitlement adopted by the
City must be consistent with the General Plan. The original June 2, 2010 and July 13, 2010
Staff Reports (and the corresponding Resolutions) find that the proposed bingo parlor use
would be consistent with the Downtown Mixed Use General Plan classification and
supporting policies by "promoting Central Concord as the City's social center by
encouraging, among other things, mixing entertainment uses with office, commercial, and
residential uses." However, this summary conclusion is not supported by any evidence
showing the need for or compatibility of a bingo parlor within the business park where the
site is located. A closer examination of the characteristics of the Project show that the bingo
parlor use would not provide any essential service or trade to the surrounding business park
or its employees. Rather, the bingo parlor would draw its estimated 400 or more peak
period customers from the entire Concord community and surrounding area for non-
business purposes.
Craig F. Andersen / Analysis of Bingo Parlor Use at 1505 Willow Pass Road
July 8, 2010
Page 8

The licensed gambling activity conducted within a bingo parlor provides commercial
recreational services for the residential community rather than support services for the
employment center in which the site is located, and would therefore be inconsistent with
Policy LU-6.1.4. In addition, as discussed below under CEQA Issues, the proposed bingo
parlor would generate far more parking demand than available on or near the Subject
Property, would generate a significant volume of traffic which may exceed the available
capacity of local streets and intersections, would generate significant external noise
inconsistent with a professional business park, and is likely to lead to public safety concerns
associated with loitering, very late operation and exposure of people carrying large amounts
of cash over great distances from their cars to the facility.

Figure 4: City of Concord Zoning Districts In Vicinity of Subject Property

Craig F. Andersen / Analysis of Bingo Parlor Use at 1505 Willow Pass Road
July 8, 2010
Page 9

4.1 Sec. 122-683. General Requirements. Sub-Section 122-683(a) requires that a

Preliminary Development Plan is required as a prerequisite for rezoning of property (with the
exception of hillside areas) to the PD District. Sub-Section 122-683(b) provides that a
Preliminary Development Plan is again required for all new development of property already
zoned PD, and further requires concurrent "discretionary action ... usually in the form of a
use permit considered by the Planning Commission." Sub-Section 122-683(b) also provides
that where a Zoning Administrator's review and approval is required, the Planning Manager
may authorize use of a Zoning Administrator's Permit, and further that "minor,
noncontroversial matters may be considered administratively." In those cases where
property is already zoned PD and is substantially developed, but no PDP has been
approved, 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 the
existing development." Further, Section 122-683(c) states that "Whether or not a preliminary
development plan is required, a project sponsor must obtain approval of all other
discretionary actions required by the city."

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

4.2 Sec. 122-684. Preliminary Development Plan. According to discussion in the June
2, 2010 Staff Report (as repeated in the July 13, 2010 Staff Report) on the Bingo World
appeal, the PDP filed in 1979 for the Enea Court Office Development (PDP 1-79) "did not
include this site" (meaning 1505 Willow Pass Road). The Staff Report confirms that the
documents on file for the 1979 Enea Court Office Development "clearly indicate that the
PDP approval is for the development of office buildings on the adjacent properties."

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

Nevertheless the very first mandatory submission requirement for consideration of a PDP as
required under Section 122-684(a) is an analysis which includes the "Proposed land uses
and density, including building coverage, employee count, and parking areas." Other
requirements include analysis of the "Relationship of the proposed project to existing and
proposed circulation" serving the project site", and how the Project "complies with the
policies set forth in the General Plan".
Craig F. Andersen / Analysis of Bingo Parlor Use at 1505 Willow Pass Road
July 8, 2010
Page 10

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

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

4.4 Conditional Uses in the Planned District. The Planned District (PD) zone does not
specifically provide for Conditional Uses. The process prescribed in the Municipal Code
involves Preliminary Development Plans and Subsequent Permits to provide for
discretionary 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 for
consideration of new or modified uses on property where no PDP exists, and where no
major physical changes are proposed to existing facilities. This is the process which was
followed by the City in 1979 with the issuance of UP 65-78 for change of use from Theater
to Health Club on the Subject Property. A Use Permit is again required pursuant to Section
122-683(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 which
is 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 Use
Permit for the Bingo Parlor at this location because it would not provide any essential
services in support of employers and employees within the surrounding business park, and
would 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 the
use of a building or property approved under a use permit ceases for a period of six months
or more, the use permit shall be considered abandoned and void.” Documentation
provided in the original June 2, 2010 Staff Report verifies that the former Velocity Sports
Health 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 to
authorize re-occupancy by a new Health Club or other substantially similar use. As
discussed in Sections 2 and 4.4 above, a currently valid Use Permit may not be
Craig F. Andersen / Analysis of Bingo Parlor Use at 1505 Willow Pass Road
July 7, 2010
Page 11

administratively used to authorize establishment of a new use with different classification

and operational characteristics. Nevertheless, because UP 65-78 is not longer in effect, it
may not be relied upon to authorize the establishment of any new business, regardless of
similarity 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 be
used for any purpose, other than as permitted by and in conformance with this chapter
and all ordinances, laws, and maps referred to therein” (emphasis added). Because the
Use Permit has expired (see 4.5 above), in order to comply with the Concord Zoning
Section 122-3, the building and land cannot be used for any purpose without prior issuance
of a new Use Permit. Section 122-6 states “All departments, officials, and public employees
of the city, vested with the duty or authority to issue permits or licenses, shall conform to the
provisions of this chapter, and shall issue no permit or license for uses, buildings, or
purposes in conflict with the provisions of this chapter; and any such permit or license
issued in conflict with the provisions of this chapter shall be null and void” (emphasis
added).

Therefore, since the Use Permit 65-78 is “abandoned and void” pursuant to application of
Section 122-74 (see 4.5 above), Section 122-3 precludes the establishment of any new use
on 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 this
chapter shall be deemed guilty of a misdemeanor punishable pursuant to section 1-23 of
this Code”.

5.0 Application of CEQA & Claim of Class 1 Categorical Exemption

Guidelines Section 15061 prescribes the process by which the load agency shall determine
whether a project is exempt from CEQA. It states that a project may only be found to be
exempt (among other qualifications) if: (1) "The project is exempt by statute"; (2) "The
project is exempt pursuant to a categorical exemption and the application of that categorical
exemption is not barred by one of the exceptions set forth in Section 15300.2" (see section
5.4 below); and (3) "...it can be seen with certainty that there is no possibility that the activity
in question may have a significant effect on the environment." Section 15061 specifically
provides that any the determination to exempt a project by any non-elected official or
decisionmaking body of a local agency "may be appealed to the local agency's elected
decisionmaking body, if one exists."
Craig F. Andersen / Analysis of Bingo Parlor Use at 1505 Willow Pass Road
July 8, 2010
Page 12

The original June 2 and July 13, 2010 Staff Reports presents the following conclusion which
is not supported by further analysis in the public record: "The proposed bingo use will utilize
an existing facility and does not involve any development, expansion or any other work that
would result in a significant physical change to the existing conditions or environment.
Therefore, the project is categorically exempt from further environmental review under
Guidelines Section 15301, Class 1, Existing Facilities, which applies to projects involving the
'operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing
public 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 Planning
Commission, 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 and
operational characteristics may not be found to be exempt from the provisions of CEQA.

5.1 Discretionary Project Not Statutorily Exempt. Guidelines Section 15268 provides
a 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 of
what is “ministerial” can most appropriately be made by the particular public agency
involved based upon its analysis of its own laws, and each public agency should make such
determination 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 other
law establishing the requirements for the permit, license, or other entitlement for use, the
following 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 an
identification or itemization of its projects and actions which are deemed ministerial under
the applicable laws and ordinances.
(d) Where a project involves an approval that contains elements of both a ministerial action
and a discretionary action, the project will be deemed to be discretionary and will be subject
to the requirements of CEQA."

On page 3 of the July 13, 2010 Staff Report it is suggested that this Project is statutorily exempt.
However, Section 15002 provides that CEQA applies to projects "where a governmental agency
can use its judgment in deciding whether and how to carry out or approve a project. A project
subject to such judgment is called a 'discretionary project'." It is therefore clear that both the
original Use Permit action to authorize the Health Club and the proposed determination on the
Bingo Parlor are "Discretionary Actions" which are subject to CEQA.
Craig F. Andersen / Analysis of Bingo Parlor Use at 1505 Willow Pass Road
July 8, 2010
Page 13

5.2 Class 1 Categorical Exemption Not Applicable. The application for the Bingo
Parlor involves establishment of a new use within an existing building of 18,744 sq. ft. where
no use currently exists or has existed for the past two years. As noted above, the Staff
Report summarily concludes that the new Bingo Parlor qualifies for a Class 1 categorical
exemption because the new use would: "...utilize an existing facility and does not involve
any development, expansion or any other work that would result in a significant physical
change to the existing conditions or environment." However, Section 15301 specifically
limits Class 1 exemptions to "minor alteration of existing public or private structures,
facilities, mechanical equipment, or topographical features, involving no expansion of
use 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 no
expansion or change of use" (emphasis added).

The proposed community or regionally-oriented Bingo Parlor "gambling industry" use differs
substantially from the business and neighborhood-oriented Health Club "fitness and
recreational sports center" use last operating on the Subject Property two years ago (see
sections 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 is
therefore inappropriate for application of a Class 1 exemption. Class 1 is reserved
exclusively for minor changes to the physical facilities which house or accommodate an
unaltered 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 expressly
for “the conversion of existing small structures from one use to another where only minor
modifications 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 this
change 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 one
activity to another shall only be exempted from analysis where their size is relatively small
and where no unusual circumstances dictate further analysis. Because the Bingo Parlor
use would occupy a single structure 7 times larger than the exemption threshold, it is
disqualified 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 exemptions
where because of location or other circumstances the project could otherwise present the
potential for a significant environmental effect. Sub-Section 15300.2(a) provides that
Classes 3, 4, 5, 6, and 11 are disqualified from application where the project could have a
Craig F. Andersen / Analysis of Bingo Parlor Use at 1505 Willow Pass Road
July 8, 2010
Page 14

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 not
be used for any activity where there is a reasonable probability that the activity will have a
significant 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 a
larger site, in a commercial location, with ample parking, and where professional business
are 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 a
design occupancy of 400 or more customers);

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

(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 occupancy
levels of which could be irreversibly harmed by an incompatible gambling use, and
where 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 would
coincide with the peak operating period of offices, and where as a result customers
would 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 overflow
parking, loitering, and very late noise impacts could extend; and

(7) Using extended hours of operation, bring more than 400 people to this site during
periods 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 potential
for several significant adverse effects on the environment, as summarized above. The
summary conclusion presented on page 3 of the July 13, 2010 Staff Report notwithstanding,
no actual analysis of the foregoing reasonably foreseeable significant impact issues has
been prepared by the City. Therefore, regardless of qualification for application of a Class 1
or 3 categorical exemption, the this project is clearly subject to the requirement for review
under CEQA.
Craig F. Andersen / Analysis of Bingo Parlor Use at 1505 Willow Pass Road
July 8, 2010
Page 15

The Subject Property fronts on Willow Pass Road but has exclusive vehicular access from
Enea Circle. Employees and visitors of the adjoining offices currently utilize street parking
along Enea Circle. As shown in this photo, parking demand for existing nearby offices
currently 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 the
1960'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 2008
when 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
Craig F. Andersen / Analysis of Bingo Parlor Use at 1505 Willow Pass Road
July 8, 2010
Page 16

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 is
hidden from view from both Enea Circle and Willow Pass Road. This area is therefore
inherently susceptible to loitering and difficult to police.

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

Figure 5a: Photographs of Rear of Building & Willow Pass Road Frontage
Craig F. Andersen / Analysis of Bingo Parlor Use at 1505 Willow Pass Road
July 8, 2010
Page 17

5.5 Prescribed Method for Evaluation of Projects with Potentially Significant Effect.
Section 15060(b) provides that "the lead agency shall begin the formal environmental
evaluation of the project after accepting an application as complete and determining that the
project is subject to CEQA." Section 15060(d) provides that "If the lead agency can
determine that an EIR will be clearly required for a project, the agency may skip further
initial 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 shall
still focus the EIR on the significant effects of the project and indicate briefly its reasons for
determining 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 can
determine that an EIR will clearly be required for the project, an Initial Study is not required
but may still be desirable." Finally Section 15063 provides in this case that "If the agency
determines that there is substantial evidence that any aspect of the project, either
individually or cumulatively, may cause a significant effect on the environment, regardless of
whether 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 Section
15060(c)(2) of the CEQA Guidelines as follows: "Where it can be seen with certainty that there
is 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 with
substantial evidence above that this project has the potential for several very serious
environmental effects). The actual language of staff-quoted Section 15060(c)(2) states that an
activity is exempt if: “The activity will not result in a direct or reasonably foreseeable indirect
physical change in the environment”. As demonstrated in the analysis under section 5.0
through 5.4, several profound direct and indirect physical changes would result from the
project, including for example a 4-fold increase in peak hour vehicular trips and a 5-fold
increase 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 significant
effects, and CEQA requires that the City therefore proceed with preparation of a full EIR, or
alternatively first conduct an Initial Study to further scope the extent of topics to be
addressed in the EIR.

Sincerely,

______
Richard T. Loewke, AICP

cc: Austin Weaver