Loading...
2022-03-02 City Council Item No. 11.1 Public Comment - Black and Brisbois Regular MEETING - Additional Meeting MaterialsZR LEWISCL? BRISBOIS LEWIS BRISBOIS BISGAARD & SMITH LLP March 2, 2022 VIA ELECTRONIC MAIL Mayor and City Council City of Menifee C/O City Clerk 29844 Haun Road Menifee, CA 92586 Kelly Alhadeff-Black 3 Better World Circle, Suite 100 Temecula, California 92590 Kelly.Alhadeff-Black@lewisbrisbois.com Direct: 951.252.6154 File No. Haun Road Property Re: Public Comments on proposed Change of Zone (CZ) PLN21-0408 - EDC Code Amendment, City of Menifee City Council March 2, 2022 Honorable Mayor and Members of the City Council: Our office represents a group of landowners who control approximately 56.4 gross acres of property located at the southwest corner of Haun Road and Garbani Road. We previously submitted comments in advance of the City Council workshop held on December 9, 2021, a copy of which is attached as Exhibit A and incorporated into this correspondence by reference. We also previously submitted comments to the City’s Planning Commission a copy of which is attached as Exhibit B and incorporated into this correspondence by reference. We are providing these comments to supplement our prior correspondence and we ask that this letter, along with our prior correspondence, be included in the public record for the proposed action. As a threshold matter, and out of curiosity, what is the last time the City of Menifee (the “City”) took action to approve a proposal which received unanimous opposition from both speakers and comment submissions? There were no speakers or comments who supported the City Planning Commission’s action on this matter, and I would venture to say that support for this measure will be sparse, if any, at the City Council. These facts beg a further question: Who are you serving with this action? You have not demonstrated that the citizens of the City want this change, nor have we seen any citizen support or comments that are encouraging this action. If you are not serving the interests of the residents of the City, who are you acting on behalf of and what special interests are you acting for? ARIZONA • CALIFORNIA • COLORADO • CONNECTICUT • DELAWARE • FLORIDA • GEORGIA • ILLINOIS • INDIANA • KANSAS • KENTUCKY • LOUISIANA MARYLAND • MASSACHUSETTS • MINNESOTA • MISSOURI • NEVADA • NEW JERSEY • NEW MEXICO • NEW YORK • NORTH CAROLINA • OHIO OREGON • PENNSYLVANIA • RHODE ISLAND • TENNESSEE • TEXAS • UTAH • VIRGINIA • WASHINGTON • WASHINGTON D.C. • WEST VIRGINIA 4895-1961-0897.1 Honorable Mayor and Members of the City Council City of Menifee Page 2 We continue to reiterate our assertion that the City’s proposal to amend its zoning ordinance to prohibit warehouse and distribution uses in the Southern Gateway Economic Development Corridor (the “Southern Gateway”) and the McCall Boulevard1 area of the City’s Economic Development Corridor (the “McCall Corridor”) is inconsistent with the City’s 2013 General Plan (the “General Plan”). The City’s Southern Gateway land use exhibit specifically contemplates development of up to 70% Business Park uses in the Southern Gateway. The City’s General Plan defines “Business Park uses” to include warehouse and distribution uses. Troubling from an environmental standpoint is the City’s reliance on CEQA’s “common sense” exemption, arguably the weakest of the CEQA exemptions, for this action. This reliance is severely misplaced because there is clear, unequivocal, and substantial evidence that the displacement of warehouse and distribution uses from the Southern Gateway and McCall Corridor will result in a concentration of these uses, and a corresponding concentration of their impacts, in the Northern Gateway area of the City. The “common sense” exemption is appropriate only when “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” 14 California Code of Regulations Section 15061(b)(3). The common sense exemption was adopted to guard against obviously exempt projects that may otherwise be required to needlessly comply with the requirements of CEQA. See Myers v. Board of Supervisors (1976) 58 Cal. App. 3d 413, 425. Keep in mind, the “common sense” exemption involves questions of fact, and the lead agency, in this case the City, bears the burden of proving that this exemption applies. Your staff has not provided any data or study evidence to support its conclusion of a lack of impacts. The California Supreme Court has made this burden clear: “whether a particular activity qualifies for the common sense exemption presents an issue of fact, and the agency invoking the exemption has the burden of demonstrating that it applies.” Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2007) 41 Cal. 4th 372, 386. Put simply: Where’s the proof? This question is even more pressing when, as with the current proposal, City staff has received comments questioning the applicability and efficacy of the common sense exemption. Even more troublesome for you as decision makers should be the absolute lack of justification for this proposed action in either the written or hearing record. As far as the public is aware, no environmental studies, reviews or analyses have been done to verify that this action does not trigger a corresponding environmental impact. During the Planning Commission hearing, when asked, multiple times, if the City Planning Commission could take the requested action, the City Attorney’s response was an unsupported, unsubstantiated, and unexplained “yes.” There are no cited justifications, either in objective reviews and studies or case law, in the public record to justify the recommended action. Given the City’s burden to demonstrate that the “common sense” exemption is applicable and appropriate for the proposed action, the absolute lack of justification or 1 Interestingly, the McCall Corridor does not include a category for business park uses in the General Plan Economic Development Corridor land use table. The McCall Corridor uses include residential, commercial office and commercial retail uses and the existing zoning code allows for general warehousing as a conditionally permitted use, presumably in conjunction with the permitted uses outlined in the Economic Development Corridor land use table. Even more curious is the proposed elimination of laboratories, research and development uses in the McCall Corridor when the City’s only hospital is located in that area. 4895-1961-0897.1 LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com Honorable Mayor and Members of the City Council City of Menifee Page 3 documentation to support this burden should give you, as decisionmakers, pause and concern that the action being taken is not supportable. Disadvantaged Community Impact In addition to the numerous concerns involving both the City’s General Plan and the required compliance with CEQA, there is a new concern that your action will have a disproportionate and significant impact on the most vulnerable citizens and areas of your City. What was once a use that could be distributed throughout the City, such that no one area of the City bore the environmental impacts of warehouse and distribution projects, will now be concentrated in one area of the City and will, inevitably, place a disproportionate burden on the neighbors, business and infrastructure located in and around the Northern Gateway area of the City’s Economic Development Corridor (the “Northern Gateway”). At a minimum, impacts to air quality, greenhouse gas emissions, noise, transportation, aesthetics, land use and planning, hydrology and water quality and utilities and services should all have been studied to look at the impacts that will result from concentrating warehouse and distribution uses to the Northern Gateway area. In approving the proposal before the Council you are going to be expanding and further impacting, on a disproportionate level, an area of the City that is already classified as a disadvantaged community.2 Further highlighting the fact that these actions are not driven by the citizens you were elected to represent is the undeniable impact your actions will have on the most vulnerable population in your City. You are purposefully subjecting your citizens who live and work in and around the Northern Gateway to substantial effects that will result from concentrating warehouse and distribution projects in a small area of the City. The existing disadvantaged community between Rouse Road and Cherry Hills Boulevard on the west side of Interstate 215 (the “Northern Gateway Disadvantaged Community”) already bear a burden that the areas of the Southern Gateway enjoy freedom from. The Northern Gateway Disadvantage Community ranks in the 92nd percentile for PM2.5 particles in the air, in the 96th - 2 A “disadvantaged community” is a community that is considered marginalized, underserved and overburdened by pollution. Interestingly, according to the Climate and Economic Justice Screening Tool, an update of which was recently documented in a February 18, 2022 press release, the City already has a designated disadvantaged community in this area, located between Cherry Hills Boulevard and Rouse Road. Your proposed actions will obviously do nothing to improve the lives, living conditions or situation of those residents who are already feeling the effects of poor planning. Your actions will exacerbate a situation the Federal Government has already flagged as problematic. Also notable is the fact that the Southern Gateway and McCall Gateway areas of the City are not called out as having or being adjacent to designated disadvantaged communities. So, in essence, you are doing that which environmental justice specifically seeks to prohibit: You are saddling an already overburdened area of your City with more impacts, simply because you think the citizens and businesses in that area will stay silent and accept the impacts of your decisions. 4895-1961-0897.1 LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com Honorable Mayor and Members of the City Council City of Menifee Page 4 97th percentile for individuals, 18 years and older, who have been diagnosed with diabetes, in the 99th percentile for individuals, 18 years and older, who have been told that they have heart disease, in the 66th - 73rd percentile for low income residents, in the 94th percentile for households below median income, in the 16th percentile for individuals, 25 years and older, who have achieved less than a high school diploma, and in the 1st percentile for individuals who are enrolled in higher education: Climate change + Clean energy and energy efficiency INDICATOR PERCENTILE (0-100) Energy burden 52nd Average annual energy costs divided by household income PM2.5 in the air g2nd Fine inhalable particles, 2.5 micrometers and smaller Low income 73rd Household income is less than or equal to twice the federal poverty level Higher ed enrollment jq/0 rate Percent of population enrolled in college, university, or graduate school LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com 4895-1961-0897.1 Honorable Mayor and Members of the City Council City of Menifee Page 5 Tur^ood St Thornton Ave Crestone Dr r- Allentown Dr Shadel RdBrandywine Ct North Golf Course McCall Blvd £ Partridge CtRouse Rd Helene Way Rouse Rd Troy Ln nMantle Dr 2 B3 0 Ole Ln ST fi X a. Chambers A Clean energy and energy efficiency INDICATOR PERCENTILE (0-100) Energy burden 54th Average annual energy costs divided by household income PM2.5 in the air 92nd Fine inhalable particles, 2.5 micrometers and smaller Low income ggth Household income is less than or equal to twice the federal poverty level Higher ed enrollment 2% rate Percent of population enrolled in college, university, or graduate school Clean , transoortation Your actions are, in fact, placing an increased burden on the most vulnerable residents in the Northern Gateway Disadvantaged Community area of your City, those residents you are charged to protect. Residents along McLaughlin Road will especially feel the brunt of the City’s lack of foresight and planning and will undoubtedly bear the burdens of these concentrated uses. Even more interesting is the fact that the proposed action will actually benefit the only other disadvantaged community in the City, which is located south of McCall Boulevard and stretches down to Newport Road (the “McCall Disadvantaged Community”). The McCall Disadvantaged Community ranks in the 90th percentile for PM2.5 particles in the air, in the 66th percentile for low income households, in the 6th percentile for individuals who are enrolled in higher education and in the 90th percentile for citizens, 18 years and older, who have heart disease: LEWIS BRISBOIS BISGAARD & SMITH LLP vyww.lewisbrisbois.com 4895-1961-0897.1 Honorable Mayor and Members of the City Council City of Menifee Page 6 Asthma 35th Weighted percent of people who have been told they have asthma Diabetes ggth Weighted percent of people ages 18 years and older who have diabetes other than diabetes during pregnancy Heart disease gQth Weighted percent of people ages 18 years and older who have been told they have heart disease Low life expectancy gth Average number of years a person can expect to live Low income ggth Household income is less than or equal to twice the federal poverty level Higher ed enrollment go/o rate Percent of population enrolled in college, university, or graduate school Your actions, again, beg the question: Why are you only protecting one area of your City to the great detriment of another area of your City, an area which already, and quite demonstrably, bears a greater environmental and socio-economic burden when compared to the remainder of the City? In contrast, the Southern Gateway of the City is neither designated as, nor located near, a disadvantaged community: Menifee LakesLazy Creek Rd Park^v° Country Club Menifee ■ -tJ ■ 4 Climate change + Clean energy and , energy efficiency Clean , Identified as disadvantaged? No Send feedback LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.conn 4895-1961-0897.1 Honorable Mayor and Members of the City Council City of Menifee Page 7 - ... . m© Maobox © ObenStreetMao Improve ihtsfmap State: California Population: 3,233 Identified as disadvantaged? No Send feedback Climate change + Clean energy and energy efficiency + Clean transportation + Sustainable housing + Legacy pollution + Clean water and waste infrastructure + To further highlight the burden your proposed action will have on your most vulnerable citizens, you need only look at a snapshot of the City area to see that the area where you propose to concentrate warehouse and distribution areas is the same area of the City that is least prepared and least capable of bearing the environmental burdens that concentrating these uses will create: Valley Vista $ Scott RdScott Rd o> •r Winchester Eg Diamond Vulicy Lake LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com 4895-1961-0897.1 Honorable Mayor and Members of the City Council City of Menifee Page 8 Conclusion As previously stated, the proposed zoning change does not conform to the General Plan’s land use designation for Southern Gateway. The City would need to first amend its General Plan to prohibit warehouse and distribution use in Southern Gateway before passing this proposed zoning change. In addition, the City will need to study the environmental impact of eliminating warehouse and distribution use in the Southern Gateway and the resulting intensification of such uses in the Northern Gateway areas. Moreover, the City’s action is not and cannot be justified or supported by CEQA’s common sense exemption especially where, as here, there is a complete lack of evidence, in any form, to support the City’s decision. Finally, the City’s action will have the effect of unduly burdening one of the most vulnerable areas of the City, an area that already bears more than its fair share of economic and environmental impacts. Another consequence of the City’s actions which cannot be overstated is the potential impacts these actions will have on land values and development prospects for owners within the Southern Gateway area, many of whom are either currently in discussion with potential buyers or actually in escrow with potential buyers who have relied on the City’s general plan and zoning language to plan projects and end uses. For some landowners, these actions will have an immediate impact in terms of significant diminution in land value and prospects for future development. The proposed zone change has the potential to wipe out feasible and viable economic uses for properties in the Southern Gateway while at the same time unduly restricting the potential for any future development in the area. The resulting loss of tax revenues, job generating uses and income for the City cannot and should not be underestimated or overlooked. The prudent and legally appropriate action would be for the City Council to defer any decision on this proposal until a General Plan Amendment is proposed and the appropriate CEQA review is conducted. In addition, we strongly urge City Staff to actually work with the public and landowners who will be impacted by these decisions. Put simply, the City Staff’s current proposal will have the effect of killing the prospects for job creation and economic usefulness of land in the Southern Gateway and other areas of the City and will undoubtedly expose the City to litigation for lack of conformance to and compliance with the requirements of CEQA. Respectfully Submitted, Kelly M. Alhadeff-Black LEWIS BRISBOIS BISGAARD & SMITH LLP KMAB: Attachments CC (via Electronic Mail):Jeff Bullick Scott Williams, Esq. 4895-1961-0897.1 LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com Honorable Mayor and Members of the City Council City of Menifee Page 9 Exhibit A December 9, 2021 Comment Letter LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com 4895-1961-0897.1 z|l LEWIS<L? BRISBOIS LEWIS BRISBOIS BISGAARD & SMITH LLP December 8, 2021 Kelly Alhadeff-Black 3 Better World Circle, Suite 100 Temecula, California 92590 Kelly.Alhadeff-Black@lewisbrisbois.com Direct: 951.252.6154 File No. Haun Road Property VIA ELECTRONIC MAIL ONLY Mayor B. Zimmerman Councilman B. Karwin Councilman M. Liesemeyer Councilwoman L. Sobek Councilman D. Deines Re: Comments for the December 9, 2021 City Council Workshop - Industrial Development and Good Neighbor Policies Discussions Honorable Mayor and Members of the City Council: Our office represents a group of landowners who control approximately 56.4 gross acres of property located at the southwest corner of Haun Road and Garbani Road as depicted below: ARIZONA • CALIFORNIA • COLORADO • CONNECTICUT • DELAWARE • FLORIDA • GEORGIA • ILLINOIS • INDIANA • KANSAS • KENTUCKY • LOUISIANA MARYLAND ■MASSACHUSETTS • MINNESOTA • MISSOURI ■ NEVADA • NEW JERSEY • NEW MEXICO • NEW YORK • NORTH CAROLINA • OHIO OREGON ■ PENNSYLVANIA • RHODE ISLAND ■ TENNESSEE • TEXAS • UTAH ■ VIRGINIA • WASHINGTON • WASHINGTON D C. • WEST VIRGINIA 4841-8517-4525.1 Honorable Mayor and Members of the City Council City of Menifee Page 2 (the “Property”). The Property is located in the Southern Gateway area of the City of Menifee’s (“City”) Economic Development Corridor (the “EDC”), carries the EDC designation under the City’s general plan1 and is zoned EDC-SG pursuant to the City’s zoning ordinance. Among other uses, the City’s zoning ordinance (the “Code”) lists, as a permitted use, “General warehousing, distribution centers, and storage (except noxious, explosives, or dangerous materials)” as a “Permitted Use” (as opposed to a use that requires a conditional use permit) in the EDC-SG area2. Also listed in the Code as permitted uses are the “Manufacturing, Light Intensity” and “Manufacturing, Medium Intensity” uses. Permitted uses, like these, are subject to review by the City staff via the “Plot Plan” process. Pursuant to the City’s Code, the purpose of the plot plan process is as follows: 9,80.010 Purpose The purpose of this chapter is to define the procedures for review and approval of pennitted uses and the associated site development. Permitted uses are typically considered acceptable uses and may be reviewed in a timely and efficient manner when no impacts are anticipated to result. This chapter establishes a ministerial review process at the administrative level to facilitate permitted uses considered minor in nature while allowing the City to ensure conformance with all applicable local standards, ordinances, and other applicable plans and policies. This chapter also establishes a discretionary review process for review and approval of pennitted uses and the associated site development when projects exceed certain size thresholds as larger projects may require special consideration, which may necessitate discretionary conditions of approval to ensure that uses are designed, located and operated in a manner that is compatible with uses on adjacent and nearby properties. See City Code, Chapter 9.80, Section 9.80.010. While discretionary approval for certain permitted uses is contemplated, the Code clearly specifies the review scope focuses not on the proposed use itself, but more on the siting and physical design characteristics of the project which includes the proposed use3. 1 Any linked materials included in this correspondence should be treated as incorporated into this correspondence and specifically made part of the discussions contained herein. 2 The City’s zoning ordinance may be found here. Notably, out of all of the EDC areas, only the EDC-NG and EDC-SG list the “General Warehousing" use as a Permitted Use. See page 127 of the zoning code. It is also interesting to note that the “General Warehousing” use is conditionally permitted (requires the application for and approval of a conditional use permit) in the EDC-MB (McCall Boulevard) area. The “General Warehouse" use is not permitted in either of the EDC-CC (Community Core) or EDC-NR (Newport Road) areas. 3 Use of the word “located” in the Code section cited logically refers to the physical siting of the use on a particular property and not whether the use itself is proper for the proposed location. The fact that the Code lists certain uses as “Permitted” is indicative that the contemplated use is appropriate for the property that is designated for the “Permitted 4841-8517-4525.1 LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com Honorable Mayor and Members of the City Council City of Menifee Page 3 The Property is presently under evaluation by a prospective purchaser/developer who working with a company that is looking to relocate its business headquarters, warehouse and distribution facilities to the City (the “Development Proposal”). The Development Proposal has already been through the City’s preapplication review process (Preapplication Review No. PR21- 0295) and was discussed during the City’s Development Review Committee meeting on September 28, 2021* * 4. Recall, under the Code, the use proposed as part of the Development Proposal is already listed as permitted and therefore the focus going forward is not on the use itself but on how that use will look and live on the Property. As is expected and anticipated under both the City’s Code and the City’s development process generally the Development Proposal received initial feedback on issues regarding perceived compatibility with neighboring uses which is relevant, especially for the Property, as it does abut the northern border of the EDC-SG area and the properties across Garbani Road from the Property are residential in use and not part of the EDC. Other comments received during the preapplication review of the Development Proposal focused on siting comments (location of truck areas, parking areas, building appearance and height issues, setback issues and other related design comments) all of which can and would be addressed as the Development Proposal is processed and reviewed by City staff5. All of the comments received as part of the Development Proposal process are expected, and all can and would be addressed in continued discussions with City staff as the Development Proposal continued in the planning process6. Use.” If the City had issues about siting particular uses on particular properties, logically the Code would reflect those issues by requiring a conditional use permit for the property or the use. 4 As initially contemplated, the Development Proposal would result in numerous infrastructure improvements for the City, increased property tax revenues for the City (conservatively estimated to be 8x greater than the current property taxes generated by the Property), approximately $10 million in development impact, entitlement and permit fees for the City, the opportunity for additional funding for the City’s new police department and other essential public services and the creation of approximately 700 new skilled and unskilled job opportunities which would contribute to a better jobs-housing balance for the City. 5 Interestingly, and worth mentioning here, the Development Proposal includes an initial plan that would require using approximately % of the maximum allowed floor area ratio ("FAR") specified for the EDC-SG (maximum allowed is 1.0 and the Development Proposal only contemplates a FAR of .43). In addition, the EDC-SG includes a maximum building height of 75 feet and the Development Proposal includes a plan for a building that would not exceed 55 feet in height. These are just the initial numbers included in the Development Proposal. The project applicant fully expects to further adjust the siting and appearance of the project building, and site generally, as the Development Proposal continues through the City staff process. 6 By way of example, through the development process I would anticipate site layout and aesthetics would include a discussion of physical separation (distance and landscape buffering) from the residential uses to the north, truck and emissions concerns would be addressed by requiring electric hookups and limiting idle times, project appearance issues would require architecture review and necessitate articulation and design features to break up the building mass, traffic concerns would include discussion of circulation routes along with recommendations that parking and staging areas for trucks be located away from the residential uses, and overall site design issues and potential project design features (for example amenities like outdoor recreation or dining options for employees or public art pieces to enhance the visual 4841-8517-4525.1 LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com Honorable Mayor and Members of the City Council City of Menifee Page 4 What was not mentioned as part of the Development Proposal comments is the fact that the proposed use which comports with the City’s general plan, one the City Code lists as a “Permitted Use,” may in fact be a use that the City is arbitrarily not willing to consider for the Property. Recently, the Property owner was informed by a City decisionmaker that consideration of projects like the Development Proposal is not encouraged or even advisable in the EDC-SG area. To say this caution is troublesome is putting it mildly, especially given the fact that the use outlined in the Development Proposal is legally and in every other way completely justifiable and warranted for the Property given the City’s general plan and Code language. Moreover, the appearance of interference in a private property transaction between the owner of the Property and the proponent of the Development Proposal raises concerns about the ability of any owner or developer to effectively do business or complete a property transaction in the City. When a developer is looking for a new opportunity some of the first issues discussed are what uses and projects are or are not allowed under the jurisdiction’s governing land use documents (general plan, any applicable specific plan and zoning code). It is perplexing, to say the least, that anyone at the City would foreclose on the possibility of bringing an economic and jobs generating use to the City, a use that is contemplated for a site that is appropriately designated and zoned for that use, simply because they personally don’t like the selected use in a particular area of the City. If developers cannot rely on the land use designations and uses that are permitted for a given property, and if projects are subject to the personal capricious whims of a particular decisionmaker, it is impossible for land transactions to proceed: The uncertainties are too great to warrant the risk of losing time, money and opportunities. Equally troubling is the appearance of pre-judgement that seems to be happening on this and other development projects in the City. Put simply, it appears that no matter how much a developer or landowner works with City staff to process entitlements, certain projects will be rejected outright, regardless of economic benefits, amenities or environmental mitigation, simply because the use outlined in the proposed project does not “fit” with an individual decisionmaker’s ideals. California Code of Civil Procedure Section 1094.5 expressly mandates that there be a fair hearing and, in the context of land use decisions, this means that the decisionmakers come to the hearing prepared to act as impartial and uninvolved reviewers. Unfortunately, given the statements made by the City’s decisionmaker, the owners of the Property now have serious and grave concerns that, even if the Development Proposal was processed through the City, the Development Proposal would actually receive a fair hearing by the City’s decision making boards. Without clarity on the rules of development, clarity that should be provided by the City’s general plan and Code but apparently is not, how are landowners and developers expected to effectively and efficiently process entitlements with any degree of certainty? In our case, the Property carries the requisite general plan and Code designations to support the use outlined in the project described in the Development Proposal. The use proposed complies with the general plan EDC requirements, is permitted under the Code for the EDC-SG zone, the Property is of a sufficient size to accommodate the use outlined in the Development Proposal and the development appearance of the site) would all be subject to consideration and discussion. However, discussion on all these issues, and numerous others, requires a level of certainty that the development being discussed is permitted for the selected site. Without that certainty, why make any investment of time or resources? 4841-8517-4525.1 LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com Honorable Mayor and Members of the City Council City of Menifee Page 5 team is ready to work with City staff to invest the time, resources and efforts in order to refine the Development Proposal and complete the necessary environmental evaluations in advance of a public hearing process. However, if there is no guaranty of a fair hearing, and no guaranty of an impartial decisionmaker, the risks simply outweigh the potential rewards to both the landowner and the City. Our hope is that we can work collaboratively with the City on the Development Proposal and that we can bring to fruition a use that brings both jobs and revenue to the City going forward. We anticipate and look forward to hearing that the City’s decisionmakers, in serving in their capacities as impartial uninvolved reviewers, are willing to consider and hopefully support our efforts towards success for all involved parties. Very truly yours, Kelly Alhadeff-Black of LEWIS BRISBOIS BISGAARD & SMITH LLP KAB:ch cc: Armando Villa, City Manager Jeff Bullick LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com 4841-8517-4525.1 Honorable Mayor and Members of the City Council City of Menifee Page 10 Exhibit B January 26, 2022 Comment Letter LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com 4895-1961-0897.1 ZR LEWISCL? BRISBOIS LEWIS BRISBOIS BISGAARD & SMITH LLP January 25, 2022 Kelly Al hadeff-Black 3 Better World Circle, Suite 100 Temecula, California 92590 Kelly.Alhadeff-Black@lewisbrisbois.com Direct: 951.252.6154 File No. Haun Road Property VIA ELECTRONIC MAIL City of Menifee Attn: Planning Commission 29844 Haun Road Menifee, CA 92586 Re: Public Comments on proposed Change of Zone (CZ) PLN21-0408 City of Menifee Planning Commission, January 26, 2022 Honorable Chair and Members of the Planning Commission: Our office represents a group of landowners who control approximately 56.4 gross acres of property located at the southwest corner of Haun Road and Garbani Road. We previously submitted comments to City staff in advance of the City Council workshop held on December 9, 2021, a copy of which is attached as Exhibit A and incorporated into this correspondence by reference. We provide these comments to supplement our prior correspondence and we ask that this letter be included in the public record for the proposed action. The City of Menifee’s (the “City”) proposal to amend its zoning ordinance to prohibit warehouse and distribution uses in the Southern Gateway Economic Development Corridor (the “Southern Gateway”) is inconsistent with the City’s 2013 General Plan (the “General Plan”) that contemplates development of up to 70% Business Park uses in the Southern Gateway. The term “Business Park uses” as defined in the General Plan, includes warehouses and distribution uses. Not only is the proposed amendment inconsistent with the City’s General Plan, but the City has incorrectly used CEQA’s “common sense” exemption for this action because the City has not studied the environmental impact caused by the displacement of warehouse and distribution uses in Southern Gateway. Inconsistency with the City’s General Plan It is well founded that a city’s general plan is the “constitution for future development” within the city. Lesher Communications Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540. All zoning and land use approvals must be consistent with the general plan in order to be effective. ARIZONA ■ CALIFORNIA • COLORADO • CONNECTICUT • DELAWARE • FLORIDA ■ GEORGIA • ILLINOIS • INDIANA • KANSAS • KENTUCKY • LOUISIANA MARYLAND • MASSACHUSETTS ■ MINNESOTA • MISSOURI • NEVADA • NEW JERSEY • NEW MEXICO • NEW YORK ■ NORTH CAROLINA • OHIO OREGON • PENNSYLVANIA • RHODE ISLAND ■ TENNESSEE • TEXAS • UTAH • VIRGINIA • WASHINGTON • WASHINGTON D.C. • WEST VIRGINIA 4841-8517-4525.1 Honorable Chair and Members of the Planning Commission City of Menifee Page 2 DeVita u. County of Napa (1995) 9 Cal.4th 763, 772. Any subordinate land use regulation like, for example, a zoning regulation, must be consistent with the general plan or it is “invalid at the time it is passed.” Lesher Communications Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 544 (A zoning ordinance that conflicts with a general plan is invalid at the time it is passed. The court does not invalidate the ordinance. It does no more that determine the existence of the conflict. It is the preemptive effect of the controlling state statute, the Planning and Zoning law, which invalidates the ordinance). So the threshold question must be asked: Why is the City proposing to do that which state law specifically says is invalid as of the date of its enactment? The proposed prohibition of warehouse and distribution uses in the Southern Gateway is completely inconsistent with the City’s General Plan. Government Code section 65860(a) requires all zoning changes to be consistent with the City’s General Plan. The City’s current General Plan allows warehouse and distribution use for up to 70% in Southern Gateway. The General Plan allows the following uses: Preferred Mix of Land Uses Residential 10% Commercial Retail 1O% Commercial Office 1O% Business Park 70% Envisioned as business park (predominantly light industrial and office uses) and limited support commercial uses. The EDC area east of the I-215 and north of Scott Road is envisioned to be a mix of commercial uses near the interchange and transitioning to of­ fice and residential extending north toward Mount San Jacinto College. On the west side of I-215, north of Scott Road, the EDC area provides an opportunity for commercial, residential and office uses with a high level of freeway accessibility as a transitional area to the Town Center located to the north. Avoid placement of residential units directly adjacent to the freeway. 4841-8517-4525.1 LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com Honorable Chairand Members of the Planning Commission City of Menifee Page 3 The General Plan defines Business Park use as: Industrial and related uses including warehousing/distribution, assembly and light manufacturing, repair facilities, and business parks, including corporate offices. Employee­ intensive uses, including research and development, technology centers, "clean" industry, and supporting hotel and ancillary retail uses are also permitted. General Plan Exhibit LU-3 Page 2 There is little doubt that the proposed zoning change for Southern Gateway is inconsistent with the General Plan as it would prohibit a use that is currently allowed for up to 70% of the development zone and would violate state law if implemented. If the City wants to implement this zoning change, the City will first need to amend its General Plan to prohibit warehouse and distribution use in Southern Gateway before approving this zoning change as required by Government Code section 65860(a). Failure to Study Environmental Impact of the Displaced Development The City has not studied the environment impact caused by the elimination of warehouse and distribution use in Southern Gateway. Instead, the City incorrectly deemed the zoning change to have no environmental impact and therefore “not a Project” pursuant to CEQA guideline 15378(a) by using CEQA’s “common sense” exemption, which is section 15061(b)(3) of the CEQA guidelines. Use and reliance on the “common sense” exemption requires the lead agency relying on the exemption to make a factual determination that “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” See 14 Cal. Code Regs. Section 15061(b)(3). However, in the case of this proposed zone change, there is a striking lack of factual or legitimate justification for reliance on the “common sense” exemption. Moreover, there is more than a plausible argument that the City’s proposed actions will, in fact, result in several environmental impacts all of which must be evaluated and studied before the proposed zone change can be considered. See Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2007) 41 Cal.4th 372. In the case of Union Of Medical Marijuana Patients, Inc. vs. City of San Diego (2019) 7 Cal.5th 1171, the California Supreme Court soundly rejected using the common sense exemption for a zoning change where the local agency has not studied the impact of displaced development. In the Union Of Medical Marijuana Patients case, the City of San Diego used the common sense exemption for a zoning ordinance which would have capped the amount of marijuana dispensaries to 4 per council district for a total of 36 dispensaries in San Diego. But in reality, the new ordinance would have capped the city at 30 dispensaries because of the ordinance’s restrictions on where the dispensaries could be located. Moreover, city staff concluded that one council district would not have any dispensaries and two other council districts would only have two dispensaries. San Diego 4841-8517-4525.1 LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com Honorable Chair and Members of the Planning Commission City of Menifee Page 4 contended that the proposed zoning change would have no direct or indirect impact to the environment and determined that the zoning ordinance was not a project under CEQA pursuant to section 15061 (b)(3) of the CEQA guidelines. In the Medical Marijuana Patients decision, the California Supreme Court stated that displaced development may cause an indirect environment impact because it “may reasonably anticipate that its placing a ban on development in one area of a jurisdiction may have the consequence, notwithstanding existing zoning or land use planning, of displacing development to other areas of the jurisdiction” Id. at 1196. The Court further explained that an activity is a CEQA Project if: . . .by its general nature, the activity is capable of causing a direct or reasonably foreseeable indirect physical change in the environment. This determination is made without considering whether, under the specific circumstances in which the proposed activity will be carried out, these potential effects will actually occur. Consistent with this standard, a "reasonably foreseeable" indirect physical change is one that the activity is capable, at least in theory, of causing. (Guidelines, § 15064, subd. (d)(3).) Conversely, an indirect effect is not reasonably foreseeable if there is no causal connection between the proposed activity and the suggested environmental change or if the postulated causal mechanism connecting the activity and the effect is so attenuated as to be "speculative." Id. at 1197. The Medical Marijuana Patients decision further clarified that a local agency might be able to use the common sense exemption for zoning ordinance if any potential indirect or direct impact was already studied in a previous environmental impact report for any planning document such as a general or specific plan. The California Supreme Court in Medical Marijuana Patients clarified its prior holding in Muzzy Ranch vs. Solano County Airport Land Use Committee (2007) 41 Cal. 4th 372 which allowed Solano County to use the common sense CEQA exemption for the Travis Air Force Base Land Use Compatibility Plan (TALUP). The court explained the Muzzy Ranch decision by stating that: When approving a project that is consistent with a community plan, general plan, or zoning ordinance for which an environmental impact report already has been certified, a public agency need examine only those environmental effects that are peculiar to the project and were not analyzed or were insufficiently analyzed in the prior environmental impact report." (Citing Muzzy Ranch at pp. 388-389.) In restricting growth in areas of the county affected by overflights, the TALUP merely incorporated limits already imposed by existing general plan and zoning provisions. (Id. at p. 389.) As a result, "any potential displacement the TALUP might otherwise have effected already has been caused by the existing land use policies and zoning regulations to which the TALUP is keyed." (Id.) Medical Marijuana Patients at 1195 4841-8517-4525.1 LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com Honorable Chairand Members of the Planning Commission City of Menifee Page 5 In our case, there is no conceivable way the City can make the factual argument required to support the use of the common sense exemption because the General Plan did not study or contemplate eliminating or otherwise restricting warehouse and distribution uses in Southern Gateway. The loss of additional areas for these uses, and the corresponding intensification of the uses in the Northern Gateway logically will lead to new, intense and potential substantial impacts to the environment in and around the Northern Gateway area of the City. Moreover, restricting all possible warehouse and distribution uses to the Northern Gateway area of the City will result in additional environmental impacts to the adjacent properties in that area of the City as that is now the only area of the City where warehouse uses can locate. Conclusion As previously stated, the proposed zoning change does not conform to the General Plan’s land use designation for Southern Gateway. The City would need to first amend its General Plan to prohibit warehouse and distribution use in Southern Gateway before passing this proposed zoning change. In addition, the City will need to study the environmental impact of eliminating warehouse and distribution use in the Southern Gateway and the resulting intensification of such uses in the Northern Gateway areas. Your proposed zoning changes will require an initial study to be performed to determine the extent of the indirect impact caused to the environment by the displaced development of warehouses in Southern Gateway. Another consequence of the City’s actions which cannot be overstated is the potential impacts these actions will have on land values and development prospects for owners within the Southern Gateway area, many of whom are either currently in discussion with potential buyers or actually in escrow with potential buyers who have relied on the City’s general plan and zoning language to plan projects and end uses. For some landowners, these actions will have an immediate impact in terms of significant diminution in land value and prospects for future development. The proposed zone change has the potential to wipe out feasible and viable economic uses for properties in the Southern Gateway while at the same time unduly restricting the potential for any future development in the area. The resulting loss of tax revenues, job generating uses and income for the City cannot and should not be underestimated or overlooked. The prudent and legally appropriate action would be for the Planning Commission to defer any decision on this proposal until a General Plan Amendment is proposed and the appropriate CEQA review is conducted. In addition, we strongly urge City Staff to actually work with the public and landowners who will be impacted by these decisions. Put simply, the City Staff's current proposal will have the effect of killing the prospects for job creation and economic usefulness of 4841-8517-4525.1 LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com Honorable Chairand Members of the Planning Commission City of Menifee Page 6 land in the Southern Gateway and other areas of the City and will undoubtedly expose the City to litigation for lack of conformance to and compliance with the requirements of CEQA. Respectfully Submitted, KMAB: MMM Kelly M. Alhadeff-Black and Mark M. Mercer LEWIS BRISBOIS BISGAARD & SMITH LLP LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com 4841-8517-4525.1 Honorable Chairand Members of the Planning Commission City of Menifee Page 7 Exhibit A December 9, 2021 Comment Letter LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com 4841-8517-4525.1 ZR LEWIS<L? BRISBOIS LEWIS BRISBOIS BISGAARD & SMITH LLP Kelly Alhadeff-Black 3 Better World Circle, Suite 100 Temecula, California 92590 Kelly.Alhadeff-Black@lewisbrisbois.com Direct: 951.252.6154 December 8, 2021 File No. Haun Road Property VIA ELECTRONIC MAIL ONLY Mayor B. Zimmerman Councilman B. Karwin Councilman M. Liesemeyer Councilwoman L. Sobek Councilman D. Deines Re: Comments for the December 9, 2021 City Council Workshop - Industrial Development and Good Neighbor Policies Discussions Honorable Mayor and Members of the City Council: Our office represents a group of landowners who control approximately 56.4 gross acres of property located at the southwest corner of Haun Road and Garbani Road as depicted below: ARIZONA ■ CALIFORNIA • COLORADO • CONNECTICUT ■ DELAWARE • FLORIDA • GEORGIA • ILLINOIS • INDIANA • KANSAS • KENTUCKY • LOUISIANA MARYLAND • MASSACHUSETTS • MINNESOTA • MISSOURI • NEVADA • NEW JERSEY • NEW MEXICO • NEW YORK ■ NORTH CAROLINA • OHIO OREGON • PENNSYLVANIA • RHODE ISLAND ■ TENNESSEE • TEXAS • UTAH • VIRGINIA • WASHINGTON ■ WASHINGTON D.C. ■ WEST VIRGINIA 4841-8517-4525.1 Honorable Mayor and Members of the City Council City of Menifee Page 2 (the “Property”). The Property is located in the Southern Gateway area of the City of Menifee's (“City”) Economic Development Corridor (the “EDC”), carries the EDC designation under the City’s general plan1 and is zoned EDC-SG pursuant to the City’s zoning ordinance. Among other uses, the City’s zoning ordinance (the “Code”) lists, as a permitted use, "General warehousing, distribution centers, and storage (except noxious, explosives, or dangerous materials)” as a “Permitted Use” (as opposed to a use that requires a conditional use permit) in the EDC-SG area2. Also listed in the Code as permitted uses are the “Manufacturing, Light Intensity” and “Manufacturing, Medium Intensity” uses. Permitted uses, like these, are subject to review by the City staff via the “Plot Plan” process. Pursuant to the City’s Code, the purpose of the plot plan process is as follows: 9.80.010 Purpose The purpose of this chapter is to define the procedures for review and approval of permitted uses and the associated site development. Permitted uses are typically considered acceptable uses and may be reviewed in a timely and efficient manner when no impacts are anticipated to result. This chapter establishes a ministerial review process at the administrative level to facilitate permitted uses considered minor in nature while allowing the City to ensure conformance with all applicable local standards, ordinances, and other applicable plans and policies. This chapter also establishes a discretionary review process for review and approval of permitted uses and the associated site development when projects exceed certain size thresholds as larger projects may require special consideration, which may necessitate discretionary conditions of approval to ensure that uses are designed, located and operated in a manner that is compatible with uses on adjacent and nearby properties. See City Code, Chapter 9.80, Section 9.80.010. While discretionary approval for certain permitted uses is contemplated, the Code clearly specifies the review scope focuses not on the proposed use itself, but more on the siting and physical design characteristics of the project which includes the proposed use3. 1 Any linked materials included in this correspondence should be treated as incorporated into this correspondence and specifically made part of the discussions contained herein. 2 The City’s zoning ordinance may be found here. Notably, out of all of the EDC areas, only the EDC-NG and EDC-SG list the “General Warehousing” use as a Permitted Use. See page 127 of the zoning code. It is also interesting to note that the “General Warehousing” use is conditionally permitted (requires the application for and approval of a conditional use permit) in the EDC-MB (McCall Boulevard) area. The “General Warehouse” use is not permitted in either of the EDC-CC (Community Core) or EDC-NR (Newport Road) areas. 3 Use of the word “located” in the Code section cited logically refers to the physical siting of the use on a particular property and not whether the use itself is proper for the proposed location. The fact that the Code lists certain uses as “Permitted” is indicative that the contemplated use is appropriate for the property that is designated for the "Permitted 4841-8517-4525.1 LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com Honorable Mayor and Members of the City Council City of Menifee Page 3 The Property is presently under evaluation by a prospective purchaser/developer who working with a company that is looking to relocate its business headquarters, warehouse and distribution facilities to the City (the “Development Proposal”). The Development Proposal has already been through the City’s preapplication review process (Preapplication Review No. PR21- 0295) and was discussed during the City’s Development Review Committee meeting on September 28, 2021* * 4. Recall, under the Code, the use proposed as part of the Development Proposal is already listed as permitted and therefore the focus going forward is not on the use itself but on how that use will look and live on the Property. As is expected and anticipated under both the City’s Code and the City’s development process generally the Development Proposal received initial feedback on issues regarding perceived compatibility with neighboring uses which is relevant, especially for the Property, as it does abut the northern border of the EDC-SG area and the properties across Garbani Road from the Property are residential in use and not part of the EDC. Other comments received during the preapplication review of the Development Proposal focused on siting comments (location of truck areas, parking areas, building appearance and height issues, setback issues and other related design comments) all of which can and would be addressed as the Development Proposal is processed and reviewed by City staff5. All of the comments received as part of the Development Proposal process are expected, and all can and would be addressed in continued discussions with City staff as the Development Proposal continued in the planning process6. Use." If the City had issues about siting particular uses on particular properties, logically the Code would reflect those issues by requiring a conditional use permit for the property or the use. 4 As initially contemplated, the Development Proposal would result in numerous infrastructure improvements for the City, increased property tax revenues for the City (conservatively estimated to be 8x greater than the current property taxes generated by the Property), approximately $10 million in development impact, entitlement and permit fees for the City, the opportunity for additional funding for the City’s new police department and other essential public services and the creation of approximately 700 new skilled and unskilled job opportunities which would contribute to a better jobs-housing balance for the City. 5 Interestingly, and worth mentioning here, the Development Proposal includes an initial plan that would require using approximately 14 of the maximum allowed floor area ratio (“FAR”) specified for the EDC-SG (maximum allowed is 1.0 and the Development Proposal only contemplates a FAR of .43). In addition, the EDC-SG includes a maximum building height of 75 feet and the Development Proposal includes a plan for a building that would not exceed 55 feet in height. These are just the initial numbers included in the Development Proposal. The project applicant fully expects to further adjust the siting and appearance of the project building, and site generally, as the Development Proposal continues through the City staff process. 6 By way of example, through the development process I would anticipate site layout and aesthetics would include a discussion of physical separation (distance and landscape buffering) from the residential uses to the north, truck and emissions concerns would be addressed by requiring electric hookups and limiting idle times, project appearance issues would require architecture review and necessitate articulation and design features to break up the building mass, traffic concerns would include discussion of circulation routes along with recommendations that parking and staging areas for trucks be located away from the residential uses, and overall site design issues and potential project design features (for example amenities like outdoor recreation or dining options for employees or public art pieces to enhance the visual 4841-8517-4525.1 LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com Honorable Mayor and Members of the City Council City of Menifee Page 4 What was not mentioned as part of the Development Proposal comments is the fact that the proposed use which comports with the City’s general plan, one the City Code lists as a “Permitted Use,” may in fact be a use that the City is arbitrarily not willing to consider for the Property. Recently, the Property owner was informed by a City decisionmaker that consideration of projects like the Development Proposal is not encouraged or even advisable in the EDC-SG area. To say this caution is troublesome is putting it mildly, especially given the fact that the use outlined in the Development Proposal is legally and in every other way completely justifiable and warranted for the Property given the City’s general plan and Code language. Moreover, the appearance of interference in a private property transaction between the owner of the Property and the proponent of the Development Proposal raises concerns about the ability of any owner or developer to effectively do business or complete a property transaction in the City. When a developer is looking for a new opportunity some of the first issues discussed are what uses and projects are or are not allowed under the jurisdiction’s governing land use documents (general plan, any applicable specific plan and zoning code). It is perplexing, to say the least, that anyone at the City would foreclose on the possibility of bringing an economic and jobs generating use to the City, a use that is contemplated for a site that is appropriately designated and zoned for that use, simply because they personally don’t like the selected use in a particular area of the City. If developers cannot rely on the land use designations and uses that are permitted for a given property, and if projects are subject to the personal capricious whims of a particular decisionmaker, it is impossible for land transactions to proceed: The uncertainties are too great to warrant the risk of losing time, money and opportunities. Equally troubling is the appearance of pre-judgement that seems to be happening on this and other development projects in the City. Put simply, it appears that no matter how much a developer or landowner works with City staff to process entitlements, certain projects will be rejected outright, regardless of economic benefits, amenities or environmental mitigation, simply because the use outlined in the proposed project does not “fit” with an individual decisionmaker’s ideals. California Code of Civil Procedure Section 1094.5 expressly mandates that there be a fair hearing and, in the context of land use decisions, this means that the decisionmakers come to the hearing prepared to act as impartial and uninvolved reviewers. Unfortunately, given the statements made by the City’s decisionmaker, the owners of the Property now have serious and grave concerns that, even if the Development Proposal was processed through the City, the Development Proposal would actually receive a fair hearing by the City’s decision making boards. Without clarity on the rules of development, clarity that should be provided by the City’s general plan and Code but apparently is not, how are landowners and developers expected to effectively and efficiently process entitlements with any degree of certainty? In our case, the Property carries the requisite general plan and Code designations to support the use outlined in the project described in the Development Proposal. The use proposed complies with the general plan EDC requirements, is permitted under the Code for the EDC-SG zone, the Property is of a sufficient size to accommodate the use outlined in the Development Proposal and the development appearance of the site) would all be subject to consideration and discussion. However, discussion on all these issues, and numerous others, requires a level of certainty that the development being discussed is permitted for the selected site. Without that certainty, why make any investment of time or resources? LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com 4841-8517-4525.1 Honorable Mayor and Members of the City Council City of Menifee Page 5 team is ready to work with City staff to invest the time, resources and efforts in order to refine the Development Proposal and complete the necessary environmental evaluations in advance of a public hearing process. However, if there is no guaranty of a fair hearing, and no guaranty of an impartial decisionmaker, the risks simply outweigh the potential rewards to both the landowner and the City. Our hope is that we can work collaboratively with the City on the Development Proposal and that we can bring to fruition a use that brings both jobs and revenue to the City going forward. We anticipate and look forward to hearing that the City’s decisionmakers, in serving in their capacities as impartial uninvolved reviewers, are willing to consider and hopefully support our efforts towards success for all involved parties. Very truly yours, Kelly Alhadeff-Black of LEWIS BRISBOIS BISGAARD & SMITH LLP KAB:ch cc: Armando Villa, City Manager Jeff Bullick LEWIS BRISBOIS BISGAARD & SMITH LLP www.lewisbrisbois.com 4841-8517-4525.1