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7.B. - Page 6 1. Traffic Analysis The Appellant claims there were "errors in approach, statistical analysis and arithmetic" in the 2007 EIR and relies upon a memorandum prepared by Robert L. Harrison in November 2007. The Robert Harrison memorandum was considered as part of the Final EIR for the 2007 project and the City certified the 2007 EIR, which withstood a legal challenge. To the extent the Appellant seeks to invalidate the decision based on the analysis of the 2007 EIR, this is extraneous to the expansion project. For purposes of this proposed Costco Gasoline Station Expansion Project, the City needs to determine only whether any of the grounds for additional environmental review exists; it does not need to recertify the 2007 EIR. The adequacy of the 2007 EIR is not relevant to the City's determination. A previous EIR is conclusively presumed to be valid if it has not been set aside by a court. (Laurel Heights Improvement Ass'n v. Regents of University of California (1993) 6 Cal.4th 1112, 1130.) This presumption precludes reopening the CEQA process on the previous 2007 EIR. During the City's review and consideration of the 2011 Costco Gasoline Station Expansion Project the same November 2007 memorandum was submitted and the City's environmental consultant responded to each issue during the October 16, 2012 Planning Commission public hearing (Attachment 7). This information was considered by the Planning Commission and it was determined that the City had and has sufficient information as documented in the 2007 EIR, Addendum No.1, Addendum No. 2, and in the administrative record; therefore no additional analysis was deemed necessary and the proposed gas station expansion project is not anticipated to generate any new significant impacts. 2. Gasoline Prices The Appellant objects to the fact that the Planning Commission's resolution did not include a condition of approval, which prohibits Costco from selling gasoline to the public below cost, in violation of the California Unfair Practices Act. Condition No. 36 of the Planning Commission Resolution approving the Use Permit (Attachment 3) states, "Applicant shall comply with all City, State and Federal regulations, applicable to the Project." Thus, the Applicant must comply with State regulations such as the California Unfair Practices Act, to the extent it is applicable. Furthermore, it is not within the City's purview to enforce the California Unfair Practices Act. Nevertheless, because of Condition No. 36, should it be determined by a court that Costco has engaged in unfair practices and therefore violated State law, such violation would implicate Condition No. 36 and the City would have the ability to revisit the Use Permit in accordance with Article 42 of the Zoning Ordinance. It should be noted that claims alone are not considered grounds for overturning the approval of the expanded gas station facility.