By Donna Beth Weilenman
Staff Reporter

For want of proper notification, Benicia City Council was forced Tuesday to delay until Jan. 21 its decision on a bus hub near Benicia Industrial Park.

If the Council doesn’t approve the project that night, the city loses the $1.25 million in Regional Measure 2 (bridge toll) money and other funding that would underwrite the project.

Others who might be affected by the project received ample formal notice about the project or its mitigated negative declaration, City Attorney Heather McLaughlin said.

But the names of Antonio and Graciela Barragan, who own the 1-acre parcel on Industrial Way and Park Road where the city wants to build the bus hub, were not on the list city staff used to mail those notices.

The oversight led to an apology by City Manager Brad Kilger, who said that he re-examined city employees’ efforts to reach the Barragans after a Dec. 3 meeting of the City Council.

He found, he said, that “Staff could have done more. I apologize.”

On the other hand, he said, the continuance would provide “time for all the issues to be examined.”

But the delay means Jan. 21 will be a do-or-die date for the project.

Kilger said he spoke with Daryl Halls, executive director of the Solano Transportation Authority that the Council wants to be the leader in negotiating the land purchase.

The city manager also called the Metropolitan Transportation Commission, which would be awarding the bridge toll grant.

Both agencies advised Kilger that if the Council doesn’t approve the project at its Jan. 21 meeting, the grant would be allocated to another project Feb. 4.

The project has been described as a way to promote transit use, particularly by those traveling to and from Fairfield and Suisun via Transit Route 40 and Bay Area Rapid Transit in Contra Costa County, and as a way to reduce transportation-related greenhouse gas emissions.

Its design also would straighten a roadway curve, provide buses a better place to stop and give food trucks and motor vehicles a better place to park. The proposed bus hub site is where the Barragans have operate their El Ranchero Taco Truck for 21 years.

The property owners said they received no notice of the Dec. 3 meeting at which the Council intended to vote on the mitigated negative declaration and the go-ahead for the bus hub project, said both McLaughlin and the Barragans’ attorney, John Gardner.

At that meeting, he Council continued the matter until Tuesday after hearing the Barragans were adamant against selling their land, insisting they had received no notification about the project.

Since that time, Kilger confirmed that despite other property owners receiving letters about the project, the Barragans had received none.

The Council agreed Tuesday to recirculate the mitigated negative declaration, a document required by the California Environmental Quality Act (CEQA) to examine how to compensate for any environmental harm caused by the project.

In addition, the Barragans’ son, Hector, submitted six points for the Council to address if his family is to consider selling its land.

Among the items on his list was a new city ordinance that would govern mobile food vendors, such as his family’s truck.The new law would need to be in place by the date of the land sale, he wrote. Family members concurred Tuesday that the new ordinance was a high-priority goal.

To accommodate the land sale, the family would acquire other property in the Industrial Park and move their mobile food vendor business, he wrote.

At the same time, the Barragans would retain right of first refusal to operate their food truck at the bus hub if it’s designed to accommodate such vehicles.

Hector Barragan wrote that city officials must help the family obtain any necessary permits for its vendor business, including waiving application, permitting or processing fees for a new site for five years.

The city also would provide the family any engineering needed for the business’s new site at no cost to the Barragans, he wrote.

If a Valero parcel is bought, the city would provide any required sidewalks, gutters and curb cuts at no cost to the family, nor would it assess any fees or additional costs, he wrote.

Hector Barragan wrote that his family would agree to the use of their land for the bus hub and would cooperate with transferring the property to the city if the conditions were accepted.

Gardner wrote an 18-page letter dated Tuesday, accompanied by 15 pages of addresses for Industrial Park company owners and tenants.

“This failure to provide legally mandated notice deprived Barragan of the opportunity to review the document and submit comments on any possible inadequacies prior to its adoption,” Gardner wrote. That also violated CEQA and constitutional due process requirements, he wrote.

Gardner contended the mitigated negative declaration didn’t comply with CEQA requirements “and cannot be relied upon to support a decision by the city to approve the project.”

He reminded the Council that city employees had contacted his clients twice about the city’s proposal to buy their land, “yet staff failed to provide them the required notice. Instead, just two days before the Dec. 3, 2013, City Council meeting, our clients were informed of the IS (initial study) and MND (mitigated negative declaration) by other business owners within the Industrial Park.”

He said the city didn’t publish a notice in any newspaper of general circulation, nor did it post any notice on or off the 1-acre parcel. Instead, it chose to issue the notice through direct mailing, as specified in the Public Resources Code.

City employees later said the list used didn’t have the Barragans’ address, and that the defective list is being replaced.

“When a lead agency chooses this method of providing notice, it must do the job right,” Gardner wrote. Otherwise, any subsequent decision could be reversed in court “as a prejudicial abuse of discretion.”

Gardner called for a full Environmental Impact Report to examine the project’s impact, saying the mitigated negative declaration was an “expedited environmental review” that inadequately addressed multiple areas, such as lighting, air quality, impact on wildlife, soil and groundwater contamination, population growth and traffic.

However, at Tuesday’s meeting Gardner used a more conciliatory tone. “It happens,” he said of the city’s error.

He told the Council he wanted to work with the city on the CEQA documentation, and handed the panel a traffic study and other supplemental materials. “I’m looking forward to working with the Council and staff toward a resolution.”

Vice Mayor Tom Campbell wanted assurances that the Council was delaying the decision for reasons other than Gardner’s letter, which arrived too late to be included in the meeting packet.

He explained that he was responsible for provisions that let the Council continue an agenda item if “substantial material” that can’t be absorbed quickly arrives after the packet is published.

Some began abusing that provision shortly after it was adopted, handing over late documents that forced a previous Council to delay its decision, only to discover the information had little to do with the topic, Campbell said.

McLaughlin assured him the most important reason for postponing the decision was in to make sure the mitigated negative declaration document was recirculated.

Councilmember Christina Strawbridge reminded the panel that it had discussed appointing a subcommittee that would further represent the city in negotiations, and recommended Mayor Elizabeth Patterson and Councilmember Mark Hughes for those duties.

Hughes and Patterson expressed optimism that the delay could be put to good use.

“I am not pleased we didn’t notify the property owner,” Hughes said, “but I’m pleased we have five more weeks to work with the property owner.”

Patterson called the extension “the silver lining,” though in meetings with McLaughlin and the Barragan family, “my heart sank with the error on notification.”