2021-12-15 City Council Item No. 12.1 Public Comment - Nicholson Regular MEETING - Additional Meeting Materials
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Cox, Castle & Nicholson LLP
3121 Michelson Drive, Suite 200
Irvine, California 92612-5678
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Tim Paone
949.260.4655
tpaone@coxcastle.com
December 14, 2021
City of Menifee City Council
29844 Haun Road
Menifee, CA 92586
Re: Menifee Crossroads Project – Agenda Item 12.1 / December 15, 2021
Members of the City of Menifee City Council:
This Firm represents Menifee Crossroads, LLC (“Crossroads”), the applicant for the Menifee
Crossroads Project at the intersection of Newport Road and Bradley Road (“Property”).
Crossroads is asking the City Council to eliminate all Conditions of Approval requiring a raised
median (the “Raised Median”). For the reasons set forth below, if Council is inclined to require
the Project to construct the Raised Median, Crossroads respectfully requests the opportunity to
withdraw its application prior to a final Council vote on the Project.
Staff presents the need for the Raised Median as a “safety” issue which, of course, makes the
issue on its face appear to be straightforward. The safety issue, however, as defined by Staff is in
the context of increased queuing. Staff’s rationale for its safety argument ignores the specific
findings of the Project’s queuing studies and, worse yet, directly contradicts the findings of those
studies. Staff offers only unsupported conjecture for its view. We will address these serious
discrepancies in this letter and in our presentation tomorrow night.
The Project is a 103,274 square-foot high-quality retail and professional office center featuring a
national specialty grocery anchor with strong community appeal. Economic projections show the
Project generating more than 200 construction and 340 operational jobs, over $10 million in
annual compensation to workers, over $45 million in annual taxable sales, and over $734,000 in
annual property tax. Exhibit 1 provides a “before and after” look, featuring a current photo of the
Property and a rendering of the Project. A Chronology of the actions culminating in this Council
hearing is attached as Exhibit 2.
As proposed by Crossroads, the Project includes a painted median. Unfortunately, the Staff
Report treats Crossroads’ Project as an “alternative” and Staff’s preference for the Raised Median
as if it is the Applicant’s project proposal. That’s backwards. The Project before you tomorrow
night for your consideration is Crossroad’s proposal, not Staff’s proposal. The Raised Median
requirement is found in Staff’s proposed Conditions of Approval. While Crossroads is neutral on
the issue of whether there should be a Raised Median, for reasons that we hope you will come
to understand, Crossroads cannot accept Conditions of Approval requiring a Raised Median.
City of Menifee City Council
December 14, 2021
Page 2
Newport Plaza has left no doubt that it will sue the City to stop the Project if it includes a Raised
Median. Newport Plaza’s litigation will cost Crossroads its anchor tenant, thus rendering the
Project infeasible. Special anchor tenants make special projects possible, but they typically don’t
wait around to see how years of litigation will unfold.
Earlier this year, in a spirit of collaboration, Crossroads acquiesced to Staff’s late demand to install
the Raised Median, not because traffic studies provided legal justification, but simply because
Staff insisted. Given Newport Plaza’s legal threat Crossroads cannot accept a Condition of
Approval requiring the construction of the Raised Median. In addition to its practical
implications for the Project, such a requirement would not be legally justifiable because:
The City cannot legally treat a Staff-created alternative as the actual Project. The Project, as
proposed by the Applicant, does not include the Raised Median. While Crossroads, at Staff’s
insistence, acquiesced to include the Raised Median earlier in the year before Newport
Plaza’s litigation threats were known, Crossroads withdrew its acquiescence prior to the
October Planning Commission hearing.
Similarly, the fact that the Raised Median is evaluated as part of the Project by the Project’s
Mitigated Negative Declaration (the “MND”) does not make it part of Crossroads’ proposed
Project. See Exhibit 3 for a discussion of the Raised Median with respect to CEQA and the
MND. With inclusion of the language in Exhibit 3 in the Council Resolution adopting the MND,
the MND will be legally defensible. We understand that might require a continuance.
The Staff Report incorrectly suggests that because 63% of the Project’s traffic will utilize
Bradley Road, the Project will increase queuing and cause a safety issue. Whatever surface
appeal Staff’s statement may have, it is not credible. The Staff Report completely ignores the
proposed design of the southbound lanes of Bradley, making its contention a total non
sequitur. The Staff Report should address the Project as proposed, not as reconfigured by
Staff without the Applicant’s permission in order to allow Staff to inappropriately assert that
a safety issue exists. Quite simply, Crossroads is not proposing the intersection design that
the Staff Report says will lead to safety issues.
On the other hand, looking at what Crossroads actually is proposing, Urban Crossroads, the
Project’s traffic engineer, analyzed queuing and determined that the Project will not cause
additional queuing because as designed and proposed it will allow queuing to occur in the
middle southbound lane of Bradley where queuing cannot occur today.
No court would consider the Staff Report’s position to constitute legitimate expert opinion.
Expert opinion must be supported by reference to specific relevant facts. (See Rominger v.
County of Colusa (2014) 229 Cal.App.4th 690.) Here, Staff’s position not only runs counter to
the only facts and analysis in the record, but is based upon a project design that is not even
proposed. Staff’s statement is simply a conclusion without any support in the record.
City of Menifee City Council
December 14, 2021
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To the extent that Staff is attempting to have this Project solve an existing safety concern
presented by the Newport Plaza driveway, the law does not allow the City to impose that
obligation on this Project. Prior to the Planning Commission hearing, Staff had made repeated
comments, many in the record, indicating their belief that there was an existing safety
problem that, in effect, this Project needed to solve. Once counsel for Crossroads explained
that it is the City’s duty to correct existing safety problems, the unsupported queuing safety
issue suddenly emerged, even though all analysis shows that there is no basis for Staff’s
speculative contention.
Conditioning the Project to install the Raised Median is an unreasonable and arbitrary
exaction. Case law is clear that exactions are justified only if they are limited to the cost of
increased services made necessary by virtue of the development. (Boatworks, LLC v. City of
Alameda (2019) 35 Cal. App. 5th 290; Shapell Industries, Inc. v. Governing Board (1991) 1
Cal.App.4th 218.) In order to require the Raised Median, the City must establish that (1) the
need to construct the Raised Median is directly related to the impacts of the Project and (2)
the total cost of the Raised Median imposed on the Project is roughly proportional to the
Project’s fair share based upon its contribution to that need. (Ehrlich v. City of Culver City
(1996) 12 Cal.4th 854.) A reasonable relationship must exist between the specific amount of
the exactions and the cost of the public facilities attributable to a Project. (Govt C §66001(b).)
The Staff Report provides none of that for one simple reason. None of that is true in this case.
As to reimbursement, pursuant to the Mitigation Fee Act the City cannot require Crossroads
to construct the Raised Median even if there is guaranteed reimbursement from future
property owners that will contribute traffic to Bradley Road. Here, a very speculative
proposed reimbursement Condition of Approval does not even guarantee reimbursement.
Condition 148 of the Project’s Plot Plan reads as follows:
Reimbursement Agreement – The developer may enter into a Development Impact
Fee (DIF) Credit and Reimbursement Agreement with the City for reimbursement
of the construction cost of improving Bradley Road fronting the project, in
excess of the DIF credit. The developer shall be responsible for drafting the
agreement consistent with City Ordinances and Codes, and it shall be reviewed and
approved by the City prior to any certificate of occupancy. The agreement shall
include a benefit cost analysis identifying future developments that will benefit
from the constructed improvements, and the future developments’ share.
To summarize, the City has no rational basis to require Crossroads to construct the Raised
Median. The Staff Report tries to establish that construction of the Raised Median is required to
mitigate the safety impacts of the Project, but does so by stating the Project to be something that
it clearly is not. Requiring construction of the Raised Median when fees are sufficient to mitigate
the traffic impacts of the Project shifts the burden of such improvements unfairly to Crossroads
and is therefore not permitted by law.
City of Menifee City Council
December 14, 2021
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To avoid the loss of the Project, deliver an exceptional project to the community, and provide a
Raised Median on Bradley Road, the City should take the following “Win-Win” approach:
Approve the Project without the Raised Median.
Require Crossroads to pay its fair share for the Raised Median when and if the City constructs
the Raised Median.
Approve the Raised Median as a City CIP project and install it by June 2023, the anticipated
date of the Crossroads’ Grand Opening.
With this “Win-Win” approach, the Project will open with the Raised Median in place. This is
exactly the outcome Staff desires.
To reiterate, Crossroads’ position with respect to the Raised Median is:
Crossroads does not agree to and will not accept as a Condition of Approval the
construction of the Raised Median as part of the Project.
Crossroads would accept a condition to pay its fair share of the Raised Median if and when
the City constructs it.
Crossroads does not agree to and will not accept as a condition of approval the
indemnification of the City for the costs of any litigation brought by Newport Plaza related
to the Raised Median.
Once again, Crossroads prefers to withdraw its application rather than be approved with a Raised
Median condition and would appreciate the opportunity to do so if the Council is inclined to
require the Raised Median.
Sincerely,
COX, CASTLE & NICHOLSON LLP
By: Tim Paone
Partner
City of Menifee City Council
December 14, 2021
Page 5
Exhibit 1
Before
After:
City of Menifee City Council
December 14, 2021
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Exhibit 2
Chronology
1. 2020: Crossroads proposed the Project without the Raised Median.
2. September 28, 2020: First written comments from City Traffic Engineer noting that
“driveway on Bradley for the existing Newport Plaza commercial site is an operation and
safety concern,” noting “active and vocal” nature of Newport Plaza businesses.
3. October 22, 2020: Scoping Agreement signed. Raised Median not requested by City’s Traffic
Engineer in Scoping Study or Scoping Agreement.
4. November 6, 2020: Staff provided comments on Crossroads’ application, including a
requirement to study and discuss the “driveway on Bradley for the existing Newport Plaza,”
stating:
“The driveway on Bradley for the existing Newport Plaza commercial site is an operation
and safety concern. Currently, southbound traffic backs up from the Bradley/Newport
traffic signal past the first driveway of the proposed development. Keeping that left turn
out access of the existing commercial site is a safety concern especially with the increased
traffic from the proposed development.”
5. December 23, 2020: Urban Crossroads prepared Traffic Analysis without Raised Median.
a. Added to existing: Additional left turn capacity and split phasing traffic signal operations
while maintaining full access to the existing Newport Plaza development.
b. Met City’s LOS requirements.
c. Staff reviewed and approved.
d. Concluded that with recommended design features, Project would not cause
operational traffic issues at Bradley Road and Newport Road and would in fact improve
intersection operations.
e. Included a queuing analysis that considered the existing Newport Plaza driveway and
did not disclose any operational issues arising from the Project.
f. Did not identify any queuing issues resulting from Project.
g. When recommended improvements applied to existing traffic configuration, concluded
queuing on Bradley Road would be reduced.
6. January 21, 2021: Staff provided additional comments on the plan for the Project, including:
“Project Driveways along Bradley Road: It is noted that a traffic signal does not appear
necessary based on traffic volumes, however, the City is aware of on-going issues with
stacking from the traffic signal at Bradley/Newport. Considering the offset driveway for the
existing shopping center from project Driveway 2, the left turns for Driveway 2 should be
restricted due to safety and operational concerns. Driveway 2 shall be restricted to right-
in/right out.”
City of Menifee City Council
December 14, 2021
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7. March 17, 2021: Revised Traffic Analysis prepared by Urban Crossroads.
a. Raised Median not included or required.
8. April 14, 2021: City commented on revised Traffic Analysis:
a. “The proposed geometrics do not address the City’s concerns with safety and
operations on Bradley Rd.
“a. City will require adding raised median . . . .”
9. Between January 21 and June 15, 2021: Staff expressed a concern over existing safety issues
on Bradley Road at Newport Plaza shopping center driveway. Staff offered to reimburse
Crossroads 100% of the cost of installation of the Raised Median.
10. June 15, 2021: Urban Crossroads updated Traffic Analysis to include Raised Median.
a. Raised Median still not needed to meet City’s LOS standards.
11. August 25, 2021: At Planning Commission hearing, Staff said there are current safety issues
that exist involving stacking of traffic northbound and southbound on Bradley Road and that
considering current traffic volumes, the Raised Median was the solution.
12. Since August 25, 2021: Staff now claims the safety concerns do not yet exist but will arise with
the Crossroads Project.
13. October 18, 2021: Staff acknowledged that the corner line of sight for queued southbound
drivers on Bradley does not meet City standards.
14. October 27, 2021: At the Planning Commission hearing, Newport Plaza’s counsel strongly
reiterated Newport Plaza’s opposition to the Raised Median. Crossroads conveyed that it was
neutral on the Raised Median but opposed its attachment to the Project. Crossroads stated
there was no legal basis to require the Project to provide the Raised Median and that the Raised
Median should be a City project. Crossroads informed the Planning Commission that litigation
over the Raised Median would cost the Project its premier tenant, thus killing the Project.
Nonetheless, the Planning Commission approved the Project with the Raised Median condition
included. Thereafter, Crossroads and Newport Plaza appealed the Planning Commission’s
decision.
City of Menifee City Council
December 14, 2021
Page 8
EXHIBIT 3
The California Environmental Quality Act (“CEQA”) Mitigated Negative Declaration (“MND”)
for the Project states in its Project Description that the project proposes a Raised Median. The
Applicant did not propose a Raised Median as part of the Project. Therefore, the MND should
not have stated that a Raised Median was part of the Project. To remedy this issue and comply
with CEQA, the City should include the following language in its Resolution adopting the MND,
which will be supported in the administrative record for the Project by this letter.
“After the Draft MND was circulated for public review, the following text changes were made to
the Project Description on Page 2 through Page 3:
Access and Circulation Vehicular access to the site will be provided via one access
point on Newport Road, two access points on Bradley Road, and one access point on
Park Avenue. Primary access would be from Bradley Road. The project proposes
improvements to Bradley Road and Park Avenue. Upon project completion, Bradley
Road would typically be comprised of two 12 to 13-foot-wide travel lanes in each
direction separated by a 10-foot-wide raised median. A pork chop will be installed at
Driveway 2 on the Project site to prevent left turns from Driveway 2 onto Bradley Road.
Six-foot-wide Class II bike lanes would border the 13- foot-wide outside lanes. Six-foot-
wide sidewalks would be located adjacent to the bike lanes with an outside landscape
strip. Curb and gutter would be provided between the travel lanes and sidewalks. Park
Avenue would typically be comprised of one 12-foot-wide travel lane in each direction
with 8-foot-wide outside shoulders. Six-foot-wide sidewalks would be located adjacent
the outside shoulders with an outside landscape strip. Curb and gutter would be provided
between the outside shoulders and sidewalks. Newport Road is currently built out to its
ultimate roadway half-section. No additional roadway improvements to Newport Road
would occur. However, curb, gutter, sidewalk, and landscaping improvements would
occur to accommodate site access along the Project’s frontage for Driveway 4 consistent
with the City’s standards.
In addition, the following revisions were made on Page 81:
COA-TRAN-12: Bradley Road is a north‐south oriented roadway located on the Project’s
western boundary. Project to construct Bradley Road to its ultimate half section width as
a modified Secondary Arterial designation between Newport Road and Park Avenue. The
required improvements shall include construction and restriping for one additional
northbound through lane, a left turn pocket for access to the church driveway (opposite
project site), and an 8 foot bike lane. Appropriate transitions shall be provided as
approved by the City Traffic Engineer. The design shall be finalized during review of
City of Menifee City Council
December 14, 2021
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final construction drawings. Project to construct a full raised median on Bradley Road
from Newport Road past Driveway #2 to restrict access to right-in-right-out only. The
median design shall include lengthening of the southbound left turn lane at Newport
Road to 350 feet. Restriping of the southbound left turn lane and both through lanes may
be required to accommodate the median. Appropriate transitions for the median shall be
provided as approved by the City Traffic Engineer. The design shall be finalized during
review of final construction drawings.
The March 2021 Traffic Impact Assessment (“TIA”) prepared by Urban Crossroads, attached
hereto, analyzed the Project without a Raised Median and shall be incorporated into the Final
MND as adopted by the City. The March 2021 TIA showed that traffic conditions would
improve at the intersection of Newport and Bradley and along Bradley Road at the Project’s
driveway and at Newport Plaza’s driveway. No Raised Median was recommended or required in
the TIA.
None of the revisions above to the MND require recirculation.
Recirculation is not required when the changes merely clarify, amplify, or make insignificant
modifications to an adequate CEQA document. (Id. at p. 1130; see CEQA Guidelines
§15088.5(b).) Recirculation is required only when “significant new information” is added after
the public review period but before adoption. (14 Cal. Code Regs. (“CEQA Guidelines”)
§ 15088.5, subd. (a).) The addition of new information is not “significant” unless the CEQA
document is changed in a way that deprives the public of a meaningful opportunity to comment
upon a substantial adverse environmental effect of the project or a feasible way to mitigate or
avoid such an effect (including a feasible project alternative) that the project's proponents have
declined to implement. (Laurel Heights Improvement Ass’n v. Regents of Univ. of Cal. (1993) 6
Cal.4th 1112, 1129.)
Recirculation is required, for example, when new information added to a CEQA document
discloses: (1) a new substantial environmental impact resulting from the project or from a new
mitigation measure proposed to be implemented (cf. Guidelines, § 15162, subd. (a)(1),
(3)(B)(1)); (2) a substantial increase in the severity of an environmental impact unless mitigation
measures are adopted that reduce the impact to a level of insignificance (cf. Guidelines, § 15162,
subd. (a)(3)(B)(2)); (3) a feasible project alternative or mitigation measure that clearly would
lessen the environmental impacts of the project, but which the project's proponents decline to
adopt (cf. Guidelines, § 15162, subd. (a)(3)(B)(3), (4)); or (4) that the draft CEQA document was
so fundamentally and basically inadequate and conclusory in nature that public comment on the
draft was in effect meaningless (Mountain Lion Coalition v. Fish & Game Com. (1989) 214
Cal.App.3d 1043, 263 Cal.Rptr. 104).
All of the revisions noted above are minor clarifications and insignificant modifications to an
adequate and legally defensible MND. None of the revisions result in any new substantial
environmental impacts or increase the severity of an environmental impact. None of the revisions
City of Menifee City Council
December 14, 2021
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constitute significant new information requiring recirculation pursuant to CEQA (Public
Resources Code Section 21092.1) or the CEQA Guidelines (14 California Code of Regulations
Section 15088.5).
In addition, the proposed revisions do not affect the stability of the MND’s Project Description.
Settled case law provides that a Project Description must provide the lead agency and the public
with enough information to ascertain the project’s environmentally significant effects, assess
ways of mitigating them, and consider project alternatives. (Sierra Club v. City of Orange
(2008) 163 Cal.App.4th 523; Save Found Valley Alliance v. County of Inyo (2007) 157
Cal.App.4th 1437.) A project description is stable if it contains key geographic components, a
written description of the project, maps depicting the extent of the project’s sphere of influence,
project boundaries, and other information needed for evaluation and review of environmental
impacts. (Id.; Guidelines, § 15124.) In other words, it is stable unless it omits integral
components. (Santiago County Water Dist. v. County of Orange (1981) 118 Cal.3d 818.)
The proposed modifications are minor and do not meaningfully change the Project Description.
The Project Description in the MND was and remains sufficient to evaluate the environmental
impacts of the Project. The minor modifications identified above do not change the “integral
components” of the Project under CEQA. As described above, these modifications also do not
change the MND’s environmental analysis or result in new or potentially increased
environmental impacts.”