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2022-03-02 City Council Item No. 11.1 and 11.2 Public Comment - Nicholson Regular MEETING - Additional Meeting MaterialsMarch 2, 2022 Mayor Bill Zimmerman and Members of the City Council City of Menifee 29844 Haun Road Menifee, CA 92586 Re: City Council Agenda Item 11.1: Amendment to MMC Title 9 City Council Agenda Item 12.2: Industrial Good Neighbor Policies Mayor Zimmerman and Members of the City Council: As a follow up to my letter to the Council yesterday, I have been asked to expand on my comments on the CEQA determinations for Agenda Items 11.1 (the “Zone Change”) and 12.2 (the “Good Neighbor Policies”) of tonight’s City Council agenda (together, the “Proposed Regulations”). The specific sections of the CEQA Guidelines relied upon by Staff are Guidelines Sections 15378(a), 15378(b)(5), 15061, and 15061(b)(3). Initially, no matter what the Staff Report says, the Proposed Regulations are more than a textual change. If the purpose of the Proposed Regulations is not to change the uses allowed in certain areas of the City from what is presently permitted, then what is it? Land use is driven by two primary factors: market demand and zoning. When zoning changes and forces a particular market-driven use from one location in the city to another, development in the “receiving” area has the potential to intensify. This would be true even if the receiving area already allowed the market-driven use because the demand would now be forced into one location rather than divided between two. The Proposed Regulations, on their faces, are called a zone change and “policies,” respectively. The Agenda will confirm that. As noted in yesterday’s letter, however, if the policies are actually applied to property and become the equivalent of zoning development standards, they are, in reality, zoning masquerading as policies. Please ask yourself as you consider your vote tonight whether you think that (i) the Proposed Regulations will keep certain currently-permitted uses out of some areas and (ii) the “policies,” though “outside the Municipal Code,” actually will place controls on development. The Staff Report’s sections on CEQA compliance treat the Proposed Regulations as just a change in “text” with no possible effect on the environment. Is that really what you think you’re voting on tonight? Are you prepared to tell the community that the Proposed Regulations clarify a few words, but will change VIA EMAIL: Bill Zimmerman (bzimmerman@cityofmenifee.us) Lesa Sobek (lsobek@cityofmenifee.us) Matthew Liesemeyer (mliesemeyer@cityofmenifee.us) Bob Karwin (bkarwin@cityofmenifee.us) Dean Deines (ddeines@cityofmenifee.us) Mayor Bill Zimmerman and Members of the City Council City of Menifee March 2, 2022 Page 2 nothing else? To be clear, every zone change is a text change. But as with all zone changes, much more changes than just a few words. With that background, here’s a discussion the CEQA Guidelines referenced in the Staff Report: A. The Zone Change 1.Section 15378(a). This Section reads as follows, with my emphasis added to the relevant portions: (a) “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and that is any of the following: (1) An activity directly undertaken by any public agency including but not limited to public works construction and related activities clearing or grading of land, improvements to existing public structures, enactment and amendment of zoning ordinances, and the adoption and amendment of local General Plans or elements thereof pursuant to Government Code Sections 65100–65700. Agenda Item 11.1 is entitled “Menifee Municipal Code Title 9 Change of Zone Ordinance Amendment.” The proposed action indisputably is the amendment of a zoning ordinance. Since that amendment specifically qualifies as a “project,” the question becomes whether the Zone Change “has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.”Staff says there is no such potential. Yet, it is clear that permitted uses will change within various planning areas and the market demand for those uses potentially will shift as noted above. That potential for resulting impacts have been disregarded. But perhaps most indicative of the fact that there is a potential for environmental change is the proposed ordinance itself which says that the Zone Change will, among other things, “Buffer sensitive land uses, such as residences, schools, care facilities, and recreation areas from major air pollutant emission sources, including freeways, manufacturing, hazardous materials storage, and similar uses.” Although stated in the positive, these are changes in the environment. Section 15378(a) does not refer to “adverse” changes in the environment. The Zone Change is a project under CEQA. 2.Section 15378(b)(5). This relevant portions of this Section reads as follows, with emphasis added: “(b) Project does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.” The analysis here is the same as above. 3.Section 15061. The relevant portions of Section 15061 read as follows, with emphasis added: “(a) Once a lead agency has determined that an activity is a project subject to CEQA, a lead agency shall determine whether the project is exempt from CEQA. (b) A project is exempt from CEQA if: Mayor Bill Zimmerman and Members of the City Council City of Menifee March 2, 2022 Page 3 (3) The activity is covered by the common sense exemption that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.” The Staff Report’s position appears to be “as a textural [sic] change to the Municipal Code,” the Zone Change “can be seen with certainty to have no possibility of a significant effect upon the environment.” As discussed above, every change to the Municipal Code involves a change in text. That does not exclude every change in the Municipal Code from CEQA evaluation. The requirements of Section 15061(b)(3) require “certainty” and “no possibility,” yet there is nothing in the record to argue for that certainty and impossibility other than the disingenuous statement that this Zone Change is just a meaningless change in a few words in the Municipal Code. The common sense exemption is, by its nature, somewhat of an imprecise “smell test.” Staff’s use of the common sense exemption simply doesn’t pass that smell test. B.The Good Neighbor Policies. The rationale for avoiding environmental review of the Good Neighbor Policies is generally the same as for the Zone Change, so I will avoid repetition. But it should be noted that the Staff Report says, among other things, that the Good Neighbor Policies will address “environmental issues” related to warehouses, logistics, and distribution facilities. Yet, to avoid environmental review, you are asked to find that there is no potential for the Good Neighbor Policies to “have the potential for resulting in a direct or indirect physical change in the environment.” Similarly, the proposed Resolution states that these policies are merely “an administrative activity.” As with the rationale for avoiding environmental review of the Zone Change, the rationale for avoiding environmental review of the Good Neighbor Policies is basically that the policies will not affect the environment, even though affecting the environment is at the core of their purpose. This doesn’t pass the smell test. Thank you, Tim Paone COX, CASTLE & NICHOLSON, LLP cc: Armando Villa, City Manager (avilla@cityofmenifee.us) Sarah Manwaring, City Clerk (smanwaring@cityofmenifee.us)