2020-05-20 City Council Item No. 11.4 Public Comment - Ramsey (2) Regular MEETING - Additional Meeting MaterialsP: (626) 381-9248 F: (626) 389-5414
E: mitch@mitchtsailaw.com
Mitchell M. Tsai
Attorney At Law
155 South El Molino Avenue Suite 104
Pasadena, California 91101
VIA E-MAIL
May 19, 2020
City Council
City of Menifee
City Council Chambers
19844 Haun Road
Menifee, CA 92586
Ryan Fowler, Senior Planner
City of Menifee
29844 Haun Road Menifee, CA 92586
Email Delivery to: publiccomments@cityofmenifee.us
rfowler@cityofmenifee.us
RE: Comments on Agenda Item 11.4, the Rockport Ranch Project Final
Environmental Impact Report; SCH No. 2017081069 (GPA No. 2016-
287, CZ No. 2016-288, SP No. 2016-286 and TR 37131)
Dear City Council Members and Mr. Fowler,
On behalf of Southwest Regional Council of Carpenters ( “Commenters” or
“Southwest Carpenters”), my Office is submitting these comments on the City of
Menifee’s (“City” or “Lead Agency”) Final Environmental Impact Report (“FEIR”)
(SCH No. 2017081069) for the Rockport Ranch Project (“Project”).
Commenters have previously submitted comments on the Final EIR to the Planning
Commission hearing on April 22, 2020. Commenters have also previously commented
on the Draft EIR: one on October 21, 2019 and a supplemental letter with comments
by expert biologist Scott Cashen on November 1, 2019. As explained in full below,
the City continues to fail to adequately respond to Commenters’ concerns and fails to
make the necessary revisions to correct the deficiencies in the DEIR and FEIR.
City of Menifee – City Council Meeting Agenda Item 11.4: the Rockport Ranch Project FEIR
May 19, 2020
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The Project proposes to construct a mix of single-family homes and single-family
courtyard residential development with open space and trails on a 79.68-acre Rockport
Ranch property, which is located in the City of Menifee, on the southwest corner of
Briggs Road and Old Newport Road (APNs 364-190-004, and 364-190-005). DEIR,
p. 1-1. The Project Site is the location of the former Abacherli Dairy. DEIR, p. 3-9.
The residential development totals 38.4 acres of the Project Site. DEIR, p. 3.2. The
Project proposes 305 residential lots, 96 single-family courtyard residential units and
209 single-family residential units) 20.1-acres of private recreational open space and
trails and 21.18-acres of road and easements. DEIR, p. 3-3.
The Project proposes to implement a General Plan Amendment (GPA No. 2016-287),
Change of Zone (CZ No. 2016-288), Specific Plan (SP No. 2016-286), and Tentative
Tract Map (TR No. 2016-285 also referred to as TR 37131), herein collectively referred
to as the “Project”) to allow development of a Specific Plan subdivision which includes
305 residential units as well as recreation facilities. DEIR, p. 1-1. The proposed GPA
would revise the Land Use Designation from Agriculture (AG) to Specific Plan (SP).
Id.
The Southwest Carpenters is a labor union representing 50,000 union carpenters in six
states, including in southern California, and has a strong interest in well-ordered land
use planning and addressing the environmental impacts of development projects.
Individual members of the Southwest Carpenters live, work, and recreate in the City of
Menifee and surrounding communities and would be directly affected by the Project’s
environmental impacts. Commenters expressly reserve the right to supplement these
comments at or prior to hearings on the Project, and at any later hearings and
proceedings related to this Project. Cal. Gov. Code § 65009(b); Cal. Pub. Res. Code §
21177(a); Bakersfield Citizens for Local Control v. Bakersfield (2004) 124 Cal. App. 4th 1184,
1199-1203; see Galante Vineyards v. Monterey Water Dist. (1997) 60 Cal. App. 4th 1109,
1121.
Commenters incorporate by reference all comments raising issues regarding the EIR
submitted prior to certification of the EIR for the Project. Citizens for Clean Energy v City
of Woodland (2014) 225 Cal.App.4th 173, 191 (finding that any party who has objected
to the Project’s environmental documentation may assert any issue timely raised by
other parties).
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Moreover, Commenter requests that the Lead Agency provide notice for any and all
notices referring or related to the Project issued under the California Environmental
Quality Act (“CEQA”), Cal Public Resources Code (“PRC”) § 21000 et seq, and the
California Planning and Zoning Law (“Planning and Zoning Law”), Cal. Gov’t
Code §§ 65000–65010. California Public Resources Code Sections 21092.2, and
21167(f) and Government Code Section 65092 require agencies to mail such notices to
any person who has filed a written request for them with the clerk of the agency’s
governing body.
I. THE PROJECT WOULD BE APPROVED IN VIOLATION OF THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT
A. Background Concerning the California Environmental Quality Act
CEQA has two basic purposes. First, CEQA is designed to inform decision-makers
and the public about the potential, significant environmental effects of a project. 14
California Code of Regulations (“CCR” or “CEQA Guidelines”) § 15002(a)(1). “Its
purpose is to inform the public and its responsible officials of the environmental
consequences of their decisions before they are made. Thus, the EIR ‘protects not only
the environment but also informed self-government.’ [Citation.]” Citizens of Goleta
Valley v. Board of Supervisors (1990) 52 Cal. 3d 553, 564. The EIR has been described as
“an environmental ‘alarm bell’ whose purpose it is to alert the public and its
responsible officials to environmental changes before they have reached ecological
points of no return.” Berkeley Keep Jets Over the Bay v. Bd. of Port Comm’rs. (2001) 91 Cal.
App. 4th 1344, 1354 (“Berkeley Jets”); County of Inyo v. Yorty (1973) 32 Cal.App.3d 795,
810.
Second, CEQA directs public agencies to avoid or reduce environmental damage when
possible by requiring alternatives or mitigation measures. CEQA Guidelines §
15002(a)(2) and (3). See also, Berkeley Jets, 91 Cal. App. 4th 1344, 1354; Citizens of Goleta
Valley v. Board of Supervisors (1990) 52 Cal.3d 553; Laurel Heights Improvement Ass’n v.
Regents of the University of California (1988) 47 Cal.3d 376, 400. The EIR serves to provide
public agencies and the public in general with information about the effect that a
proposed project is likely to have on the environment and to “identify ways that
environmental damage can be avoided or significantly reduced.” CEQA Guidelines §
15002(a)(2). If the project has a significant effect on the environment, the agency may
approve the project only upon finding that it has “eliminated or substantially lessened
all significant effects on the environment where feasible” and that any unavoidable
City of Menifee – City Council Meeting Agenda Item 11.4: the Rockport Ranch Project FEIR
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significant effects on the environment are “acceptable due to overriding concerns”
specified in CEQA section 21081. CEQA Guidelines § 15092(b)(2)(A–B).
While the courts review an EIR using an “abuse of discretion” standard, “the
reviewing court is not to ‘uncritically rely on every study or analysis presented by a
project proponent in support of its position.’ A ‘clearly inadequate or unsupported
study is entitled to no judicial deference.’” Berkeley Jets, 91 Cal.App.4th 1344, 1355
(quoting Laurel Heights, 47 Cal.3d at 391, 409 fn. 12). Drawing this line and determining
whether the EIR complies with CEQA’s information disclosure requirements presents
a question of law subject to independent review by the courts. Sierra Club v. Cnty. of
Fresno (2018) 6 Cal.5th 502, 515; Madera Oversight Coalition, Inc. v. County of Madera (2011)
199 Cal.App.4th 48, 102, 131. As the court stated in Berkeley Jets, 91 Cal. App. 4th at
1355:
A prejudicial abuse of discretion occurs “if the failure to include relevant
information precludes informed decision-making and informed public
participation, thereby thwarting the statutory goals of the EIR process.
The preparation and circulation of an EIR are more than a set of technical hurdles for
agencies and developers to overcome. The EIR’s function is to ensure that
government officials who decide to build or approve a project do so with a full
understanding of the environmental consequences and, equally important, that the
public is assured those consequences have been considered. For the EIR to serve these
goals it must present information so that the foreseeable impacts of pursuing the
project can be understood and weighed, and the public must be given an adequate
opportunity to comment on that presentation before the decision to go forward is
made. Communities for a Better Environment v. Richmond (2010) 184 Cal.App.4th 70, 80
(quoting Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007)
40 Cal.4th 412, 449 – 450)
B. The FEIR Fails to Adequately Respond to Commenters’ Concerns About
the DEIR’s Failure to Adequately Describe the Project Site’s Existing
Environmental Baseline Condition
In the Staff Report, the City reiterates its earlier response in the FEIR that the DEIR
provided sufficient information regarding project description and baseline conditions
on the site. 5/20/2020 Staff Report, Packet Pg. 1482; see also FEIR, pp. 2-51, 52.
City of Menifee – City Council Meeting Agenda Item 11.4: the Rockport Ranch Project FEIR
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As previously explained in detail in the previous comments, the DEIR provides an
inaccurate and unstable description of the existing condition of the Project Site. There
is no question that the existing conditions of the Project site has been altered as a
result of demolitions that began in July 2016 and was completed on November 10,
2017. DEIR, p. 4.1-4. The DEIR acknowledges that the existing condition of the
Project Site is different for the DEIR from the time when the NOP was first issued.
DEIR, p. 4.1-4. However, the DEIR cannot have it both ways, by using baseline
information from both before and after the October 2016 - November 2017
demolition activity. For example, the methane monitoring results in Table 4.9-1 were
obtained in February 2016 before the illegal demolition and grading began on the
Project Site in October 2016. Also, the burrowing owl surveys were conducted before
the illegal activity began. Thus, as previously explained, these results are outdated and
no longer reflect the actual existing conditions of the Project Site.
First, the City minimizes the significance of the environmental conditions, setting or
baseline of the Project site at the time the NOP is issued. 5/20/2020 Staff Report,
Packet Pg. 1482-83. However, the City is wrong. Environmental conditions must be
described as they exist when the notice of preparation is published or, if a notice of
preparation has not been published, at the time the environmental analysis begins.
CEQA Guidelines §15125(a). These existing physical conditions "will normally
constitute the baseline physical conditions by which a lead agency determines whether
an impact is significant." CEQA Guidelines §15125(a). See Neighbors for Smart Rail v
Exposition Metro Line Constr. Auth. (2013) 57 C4th 439, 448; Communities for a Better Env't
v South Coast Air Quality Mgmt. Dist. (2010) 48 C4th 310, 320. Since the City has already
admitted the Project site conditions has changed from the time before the NOP was
issued, the existing conditions as used in the DEIR simply violates CEQA. For
example, the City presumes without evidence that the Project Site’s methane levels and
conditions regarding burrowing owls are unchanged from pre-demolition to post-
demolition. However, the City cannot assume, without evidence, that such change in
existing conditions doesn’t make a difference, as it did here.
Specifically, the City assumes that Commenter is claiming that the Project site
conditions after the “illegal activity” “were substantially better than after the
demolition” and again assumes that the conditions of the site were “essentially the
same” without any evidence in the record to substantiate such an assumption.
5/20/2020 Staff Report, Packet Pg. 1483. Commenter’s position is not that the Project
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site conditions are better or worse, but that due to the “illegal activity” changing the
site conditions during the preparation of the EIR, the City cannot assume that the site
conditions are either the same or better. There is absolutely no evidence in the record
to support the City’s assumption that the Project site conditions are “essentially the
same,” especially when, for example, no burrowing owl surveys and methane
investigations were repeated after the illegal activity.
Critically, the City erroneously claims that “no burrowing owls were discovered or
impacted” when the survey was conducted before the “illegal” activities. 5/20/2020
Staff Report, Packet Pg. 1483. In fact, the DEIR admits that at least one burrowing
owl and burrow were observed during a survey in 2016. DEIR, p. 4.5-22. Thus, there
is a high likelihood that the illegal activities illegally impacted the burrowing owls even
before any “take” permits were issued.
Moreover, the City’s rationalization that even if the demolition was illegal, that the City
had discretion to treat ongoing unauthorized activity as existing environmental baseline
is unsupported (citing Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270, 1280) and
that a CEQA document does not need to analyze prior illegal activity (citing to
Riverwatch v. County of San Diego (1999) 76 Cal.App.4th 1428). 5/20/2020 Staff Report,
Packet Pg. 1483. But both Fat and Riverwatch are distinguishable and inapplicable to
this case. In Fat, the court made an exception regarding existing conditions because the
airport expansion project was small with minor impacts which were analyzed in a
negative declaration and the proposed expansion and conditional use permit were
applied to as a result of the County’s enforcement efforts regarding the unauthorized
prior expansions. (Fat, supra, 97 Cal.App.4th at 1280-81.) Moreover, the existing
condition of the project site in Fat did not change while the negative declaration was
issued. (Id.) In Riverwatch, the existing condition information set forth in the DEIR was
not changed from the time the NOP was issued. Riverwatch, supra, 76 Cal.App.4th at
1453. Moreover, the Riverwatch court relied on the enforcement actions of the
enforcing agencies like the Army Corps of Engineers and concluded that in that
particular case based on those facts that CEQA did not require any further accounting
for prior illegal activity. Id.
Here, the DEIR and FEIR do not provide any information on whether any
enforcement action was taken regarding the Project Applicant’s prior illegal activity. In
fact, the City, which is also the lead agency for this Project and the DEIR, and also
City of Menifee – City Council Meeting Agenda Item 11.4: the Rockport Ranch Project FEIR
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would be the enforcing agency in this action, appears to take the position that the prior
illegal activity only had “a de minimis impact.” DEIR, p. 4.6-6~7.
Based on the information admitted in the DEIR and FEIR, and the City’s responses to
Commenter’s comments to the Planning Commission and the change in the Project’s
existing condition from the time of the NOP to the DEIR, the DEIR fails to provide
an accurate existing condition of the Project and the City failed to adequately respond
to these concerns raised by Commenters.
C. The EIR Fails to Adequately Disclose and Mitigate the Project’s
Significant Impacts on Biological Resources.
1. The EIR Fails to Adequately Analyze the Project’s Significant Impacts on
Burrowing Owls.
Burrowing owls and their nests and eggs are protected from “take” (meaning
destruction, pursuit possession, etc.) under the Migratory Bird Treaty Act (MBTA) of
1918 and under Sections 3503, 3503.5, and 3800 of the California Fish and Game
Code. The DEIR acknowledges that activities that cause destruction of active nests, or
that cause nest abandonment and subsequent death of eggs or young, may constitute
violations of one or both of these laws.
The DEIR admits that at least one burrowing owl and burrow were observed during a
survey in April 2016. DEIR, p. 4.5-22. However, after the survey was done, the
Project Applicant illegally began demolition of the concrete and fill from the prior
dairy operations in or about October 2016. It was not until September 2017 that the
demolition and grading permits were approved and it was not until October 2017, just
one month before the completion of the demolition and grading, that the construction
BMPs were installed. DEIR, p. 4.1-4~5. No other surveys were conducted after the
illegal demolition and grading were completed in November 2017. For this reason,
Commenters previously commented that the DEIR fails to adequately analyze the
Project’s impacts on burrowing owls.
The City reiterates its responses in the FEIR and claims that a MSHCP 30-day
preconstruction survey was conducted in September 2017 prior to City approved
demolition activities. 5/20/2020 Staff Report, Packet Pg. 1484-5; see also FEIR, p. 2-
54. However, this response ignores the unpermitted demolition activities that occurred
from October 2016 to November 2016 and not only how it could have altered the
Project site but how burrowing owl habitat could have been destroyed long before the
City of Menifee – City Council Meeting Agenda Item 11.4: the Rockport Ranch Project FEIR
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September 2017 preconstruction survey was conducted. The City completely ignores
that the demolition activities predating the September 2017 preconstruction survey
violated the MBTA and constituted a significant impact to burrowing owls and their
habitat.
The City’s responses further demonstrate that it simply doesn’t understand its
obligations under CEQA. The City claims, even if what Commenter says is true, which
they are, “it is unclear what the commenter would have the City do now, as part of the
EIR and Project approval, for impacts that allegedly occurred years before it was
prepared.” 5/20/2020 Staff Report, Packet Pg. 1485. CEQA requires that an EIR
serve its purpose as an informational document. Sierra Club v County of Fresno (2018) 6
Cal.5th 502, 510, 516 (A reviewing court must also determine if the EIR's discussion of
a significant environmental impact fulfills CEQA's informational purpose by including
“sufficient detail to enable those who did not participate in its preparation to
understand and to consider meaningfully the issues the proposed project raises.”)
So, what can the City do to fix this? Since the City asked for guidance of its obligations
under CEQA, here it is: the City must revise its DEIR in its entirety to reflect the facts
in detail that the Project site was illegally changed before the Project was approved,
and any permit issued, re-establish the current Project site conditions, re-analyze the
impacts with the accurate Project site conditions and recirculate the revised EIR.
2. The EIR Improperly Defers Mitigation of the Project’s Significant Impacts on
Burrowing Owls.
As in the FEIR, the City again rebuff’s Commenters concerns that the EIR fails to
adequately mitigate the Project’s significant impacts on burrowing owls by improperly
deferring the adoption of specific performance standards that the mitigation measures
are designed to achieve. 5/20/2020 Staff Report, Packet Pg. 1486; see also FEIR, p. 2-
55.
As previously stated in our comments to the DEIR, section 15126.4(a)(1)(B) of the
CEQA Guidelines states “[f]ormulation of mitigation measures shall not be deferred
until some future time.” While specific details of mitigation measure may be deferred,
an agency is required to (1) commit itself to mitigation, (2) adopt specific performance
standards the mitigation will achieve, and (3) identify the type(s) of potential action(s)
that can feasibly achieve that performance standard and that will be considered,
analyzed, and potentially incorporated in the mitigation measure. See Preserve Wild Santee
City of Menifee – City Council Meeting Agenda Item 11.4: the Rockport Ranch Project FEIR
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v. City of Santee (2012) 210 Cal.App.4th 260, 281; San Joaquin Raptor Rescue Center v.
County of Merced (2007) 149 Cal.App.4th 645, 671.
As explained above, the DEIR admits that at least one burrowing owl and burrow
were observed during a survey. DEIR, p. 4.5-22. There is no question that any “take”
of burrowing owls or their nests and eggs violate the MBTA and the applicable
sections of the California Fish and Game Code.
Moreover, Commenter’s biological expert Scott Cashen also agreed that MM-BIO-1 in
particular is vague and improperly defers the specific actions that will be taken to avoid
negative impacts to burrowing owls. (Exhibit B to 11/1/2019 Supplemental Comment
Letter, pp. 9-10.)
The City again failed to respond to Commenters’ concerns that the DEIR’s biological
resource mitigation measures MM-BIO-1 and MM-BIO-2 are vague and fail to adopt
specific performance standards to ensure mitigation of the Project’s potentially
significant impacts to burrowing owls. 5/20/2020 Staff Report, Packet Pg. 1486. The
City failed to explain why while MM-BIO-1 sets recommendations that no
disturbances should occur within a certain distance during either breeding or
nonbreeding seasons, it does not state for how long such avoidance of impacts must
occur during construction and how much construction could be delayed. DEIR, p. 4.5-
25. The City similarly fail to explain why both MM-BIO-1 and MM-BIO-2 defer the
mitigation of impacts to burrowing owls by failing to specify when and how relocation,
if any, would take place especially given prior occurrence of burrowing owl in the
Project Site. Moreover, relocation appears inevitable since any type of avoidance
buffers cannot be maintained in perpetuity since the entire Project Site will be
completely redeveloped into the Project according to the proposed Specific Plan.
Finally, the City fails to explain why any extent of relocation or disturbance of
burrowing owls or their burrows would not constitute a take. Based on the vague
analyses and improper deferrals contained in MM-BIO-1 and -2, the DEIR’s
conclusion that the Project’s biological impacts would be reduced to an insignificant
level is unsupported and the City has failed to adequately respond to the comments
raising such issues.
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D. The EIR Fails to Adequately Analyze and Mitigate the Project’s
Significant Agricultural Impacts.
1. The City Ignores the Project’s Significant Impacts to Important Farmland.
As previously provided in Commenters’ comments to the DEIR, Appendix G of the
CEQA Guidelines provides that the Project would have a significant impact if it
would: a. Convert Prime Farmland, Unique Farmland, or Farmland of Statewide
Importance (DEIR refers to these types of Farmland as Important Farmland), as
shown on the maps prepared pursuant to the Farmland Mapping and Monitoring
Program of the California Resources Agency, to non-agricultural use. DEIR, p. 4.3-9.
The City does not dispute that the County of Riverside has designated the Project Site
as Farmland of Local Importance, Prime Farmland, and Farmland of Statewide
Importance. DEIR, p. 4.3-10. This mere fact establishes that the Project meets the
CEQA threshold of significance regarding converting Important Farmland to non-
agricultural use and supports a conclusion of a significant cultural impact that requires
mitigation.
The City claims that “the County’s historic designations for the Project site are
superseded by the City’s determinations, the closure of the site for historic agricultural
use due to unsustainability, and the LESA report which provides more detailed
information than what is available from the County.” 5/20/2020 Staff Report, Packet
Pg. 1486. However, the City fails to cite to any legal authority that allows the City to
override the Important Farmland designation.
Despite the clear evidence of significant impact to farmland, the City chose to apply
the LESA Model, which the City claims is an optional methodology to assess
agricultural impacts. Even if this may be an acceptable methodology, the City cannot
choose an optional methodology to avoid a finding of significant impact. A lead
agency's choice of appropriate thresholds of significance must be "based to the extent
possible on scientific and factual data." CEQA Guidelines §15064(b)(1); Cleveland Nat'l
Forest Found. v San Diego Ass'n of Gov'ts (2017) 3 C5th 497, 515. Selection of a threshold
of significance "requires an exercise of reasoned judgment" founded on substantial
evidence. Mission Bay Alliance v Office of Community Inv. & Infrastructure (2016) 6 CA5th
160, 206. When there is evidence an impact might be significant, an EIR may not
adopt a contrary finding without providing an adequate explanation along with
City of Menifee – City Council Meeting Agenda Item 11.4: the Rockport Ranch Project FEIR
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supporting evidence. East Sacramento Partnership for a Livable City v City of Sacramento
(2016) 5 CA5th 281, 302.
Based on Appendix G’s farmland designation and the Project Site’s LESA scoring
mere 2 points away from being considered significant impact (the Final LESA Score
for the project was 40.357, which would have been considered significant impact if
both the LE factors and SA factors were individually greater than 20), the evidence
here showed that one methodology showing significant impact and another optional
methodology showing a very close to significant impact.
As such, the EIR cannot adopt a finding of less than significant impact based on the
evidence it relies on. If the Project site itself is no longer sustainable as a farm land,
then the City must acknowledge the loss of Important Farmland and mitigate such
impacts. The City must disclose and acknowledge the Project’s significant impacts to
loss of Important Farmland and mitigate it to the extent feasible.
2. The EIR Fails to Adequately Analyze and Mitigate the Project’s Cumulative
Agricultural Impacts.
Commenters have previously raised the issue that the DEIR’s cumulative agricultural
impacts analysis was flawed because it was based on the erroneous notion that a
conclusion of a less than significant impact means the Project cannot cause cumulative
impacts to agricultural resources.
In the FEIR, the City previously admitted that Commenters are “correct that stating
that a less than significant project impact can still have an incremental impact that,
when combined with impacts from other projects, could contribute to a significant
cumulative impact.” FEIR, p. 2-56. The City revised its cumulative agricultural impacts
analysis in the FEIR to reflect the erroneous analysis in the DEIR. Id.
In the Staff Report, the City claims that the Commenter failed to “identify a single
other project located outside of the City that should have been included in the EIR’s
analysis of cumulative impacts.” 5/20/2020 Staff Report, Packet Pg. 1487. However,
the DEIR does not even provide a list of related projects for purposes of analyzing the
Project’s cumulative impacts. It’s the City’s job to provide a list of related projects, not
the Commenter’s.
However, the City’s revisions regarding the cumulative agricultural impacts are
erroneous because it artificially and narrowly restricts the “cumulative study area for
agricultural resources” to just within “the City of Menifee” without any explanation.
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FEIR, pp. 2-57, 3-1. The City fails to explain why such a narrow geographic study area
was chosen, especially in light of the fact that the County itself tracks and designates
Important Farmland on a county-wide basis. The EIR must provide an explanation
supported by evidence for the geographic area used in the analysis. CEQA Guidelines
§15130(b)(3); City of Long Beach v Los Angeles Unified Sch. Dist. (2009) 176 CA4th 889,
907 (citing this text). See Bakersfield Citizens for Local Control v City of Bakersfield (2004)
124 CA4th 1184, 1216 (EIR contained no explanation of the criteria for determining
geographic area of impact analysis that ignored similar concurrent project located 3.6
miles away); Kings County Farm Bureau v City of Hanford (1990) 221 CA3d 692, 721 (air
pollution analysis held inadequate for failure to include entire San Joaquin Valley air
basin); Citizens to Preserve the Ojai v County of Ventura (1985) 176 CA3d 421, 430 (EIR
failed to explain reason for limiting analysis of emissions in assessment of cumulative
air quality impacts).
Despite the City revising its errors in the DEIR, the City’s cumulative agricultural
impacts analysis still violates CEQA because the City failed to provide an explanation
for its artificially narrow scope of the cumulative study area.
E. The EIR Fails to Adequately Analyze and Mitigate the Project’s
Significant Hazards Impacts.
1. The EIR Fails to Adequately Analyze and Mitigate the Levels of Methane
Contamination Existing on the Project Site.
As previously commented, the DEIR admits that the Project Site contains significant
methane contamination due to the prior dairy use on the Project Site. According to the
DEIR, for a typical dairy operation, there is variable organic material beneath the
surface due to the significant quantities of manure and urine produced by the livestock.
DEIR, p. 4.9-12. Approximately 85% of the Project site was utilized for previous
livestock activities and will require an evaluation and/or mitigation for methane.
DEIR, p. 4.9-13.
Again, the City reiterates its responses in the FEIR. 5/20/2020 Staff Report, Packet
Pg. 1487-88. The City does not dispute that the DEIR provides methane monitoring
results in Table 4.9-1 which show existing methane levels of up to 50,000 ppm (parts
per million). But as to the “not read” and “fail” readings in DEIR, Table 4.9-1, it
rationalizes that the consultant felt that the available data was representative of the soil
conditions of the site without sufficient evidence and explanation. Moreover, the City
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implies the incomplete results are inconsequential by stating that methane testing will
be repeated 30 days after rough grading, which merely improperly defers the
characterization of the extent of the Project site’s methane contamination. FEIR, p. 2-
57.
The City also attempts to minimize the effect of the demolition, grading and filling
activity that occurred in 2016 to 2017, after the methane monitoring relied on in the
DEIR was conducted in February 2016. FEIR, pp. 2-58, 59. In fact, the DEIR did not
include the full description of the demolition, grading and filling activity that the FEIR
provided in its response to comments, in addition to the admission that there will be
significant methane concentrations that will be found after project approval.
Most significantly, the City included as Appendix H to the FEIR a new Technical
Memorandum dated February 10, 2020, which was previously not included in the
DEIR, which admit that “elevated concentrations of methane will be found in the
testing that will be conducted 30 days after rough grading per Mitigation Measure MM-
HAZ-8. FEIR, p. 2-58. As will be explained below, this is significant new information
requiring recirculation of the FEIR. The City claims that the new addition of Appendix
H is “not significant new information requiring recirculation, but rather supplements
the DEIR’s analysis….” 5/20/2020 Staff Report, Packet Pg. 1489. However, the
2/10/2020 Memo introduces new maximum mitigation measures including a methane
barrier with a permeable vent pipe, solid vent pipes, utility trench dams, et cetera,
which are not even enforceable as they are not included as part of the HAZ mitigation
measures and the mitigation monitoring program. FEIR, p. 2-59.
As a result, the EIR not only fails to adequately analyze the Project’s hazards impacts
but also fails to adequately mitigate such impacts.
2. The DEIR Improperly Defers the Formulation of Hazards Mitigation
Measures.
In response to the prior comments by Commenters that the DEIR improperly defers
the formulation of Hazards Mitigation Measures MM-HAZ-3, -4, -6, -7 and -8, the
City revised these mitigation measures in the FEIR. Not only are these revisions new
information that require the recirculation of the FEIR for public review and comment,
the City has failed to cure the improper deferral of mitigation especially for testing the
methane contamination until after project approval.
City of Menifee – City Council Meeting Agenda Item 11.4: the Rockport Ranch Project FEIR
May 19, 2020
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The City claims that these revised mitigation measures “strengthen” the measures and
are not significant new information. 5/20/2020 Staff Report, Packet Pg. 1489-90.
However, these revisions establish a more severe environmental impacts from
methane releases and new mitigation measures considerably different from the ones
that were previously analyzed.
The City left MM-HAZ-8 unchanged despite Commenters’ comment that MM-HAZ-8
improperly defers methane testing in Area 3 and defers the preparation of a final
report until after project approval. The City claims the measure imposes binding
performance standards and does not defer mitigation, without explaining why.
/20/2020 Staff Report, Packet Pg. 1490. The April 2016 methane monitoring showed
methane concentrations as high as 50,000 ppm in Area 3, where the stock pond and
desilting basin areas are located. As a result of the illegal prior grading and demolition
activity which occurred October 2016 to November 2017, the April 2016 methane
monitoring data, which was already incomplete, is outdated. The methane monitoring
should be done now before Project approval, rather than after.
F. CEQA Requires Revision and Recirculation of an Environmental Impact
Report When Substantial Changes or New Information Comes to Light
Section 21092.1 of the California Public Resources Code requires that “[w]hen
significant new information is added to an environmental impact report after notice
has been given pursuant to Section 21092 … but prior to certification, the public
agency shall give notice again pursuant to Section 21092, and consult again pursuant
to Sections 21104 and 21153 before certifying the environmental impact report” in
order to give the public a chance to review and comment upon the information.
CEQA Guidelines § 15088.5.
Significant new information includes “changes in the project or environmental
setting as well as additional data or other information” 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).” CEQA Guidelines § 15088.5(a). Examples of significant
new information requiring recirculation include “new significant environmental
impacts from the project or from a new mitigation measure,” “substantial increase in
the severity of an environmental impact,” “feasible project alternative or mitigation
measure considerably different from others previously analyzed” as well as when “the
draft EIR was so fundamentally and basically inadequate and conclusory in nature
City of Menifee – City Council Meeting Agenda Item 11.4: the Rockport Ranch Project FEIR
May 19, 2020
Page 15 of 16
that meaningful public review and comment were precluded.” Id.
An agency has an obligation to recirculate an environmental impact report for public
notice and comment due to “significant new information” regardless of whether the
agency opts to include it in a project’s environmental impact report. Cadiz Land Co. v.
Rail Cycle (2000) 83 Cal.App.4th 74, 95 [finding that in light of a new expert report
disclosing potentially significant impacts to groundwater supply “the EIR should have
been revised and recirculated for purposes of informing the public and governmental
agencies of the volume of groundwater at risk and to allow the public and
governmental agencies to respond to such information.”]. If significant new
information was brought to the attention of an agency prior to certification, an agency
is required to revise and recirculate that information as part of the environmental
impact report.
The City has revised the DEIR to include a completely new Technical Memorandum
regarding methane monitoring and revised MM-HAZ-3, -4, -6, and -7 which show a
more severe environmental impacts from methane releases and new mitigation
measures considerably different from the ones that were previously analyzed. As a
result, the City must recirculate the FEIR so that the public can have a chance to
review the significant new information.
II. THE PROJECT IS INCONSISTENT WITH THE CITY’S GENERAL
PLAN
The City minimizes the significance of its General Plan’s Goal OSC-6 and related
Policy OSC-6.1 which states “[h]igh value agricultural lands available for long-term
agricultural production in limited areas of the City” and requires the City to “[p]rotect
both existing farms and sensitive uses around them as agricultural acres transition to
more developed land uses.” DEIR, at p. 4.3-8, 9. Instead, the City states that the
continued agricultural use of the land is economically infeasible and states that the
Project is consistent with other goals and policies of the General Plan.
Moreover, the City trivializes the Commenter’s arguments by stating that (1) the City’s
determination that the Project is consistent with the General Plan is afforded
significant deference and (2) no one particular project is expected to, much less
required to, meet every objective in the General Plan. /20/2020 Staff Report, Packet
Pg. 1490.
City of Menifee – City Council Meeting Agenda Item 11.4: the Rockport Ranch Project FEIR
May 19, 2020
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However, the City fails to provide adequate explanation of why the inconsistencies
with the General Plan should be overlooked. Because it can’t. As stated above, the
Project would convert over 70 acres of Important Farmland to residential uses without
any mitigation or off-site conservation. Moreover, despite the fact that the Project site
is listed as important farmland in the county database, the City used LESA Model, an
optional threshold of significance, which showed that the Project was just below the
threshold of significance significant for agricultural resources.
As a result, with the unsupported finding of no significant impact and without
mitigation, the Project is inconsistent with the General Plan’s Goal OSC-6 and Policy
OSC-6.1.
III. CONCLUSION
Commenters request that the City revise and recirculate the Project’s environmental
impact report to address the aforementioned concerns. If the City has any questions or
concerns, feel free to contact my office.
Sincerely,
__________________________
Mitchell M. Tsai
Attorneys for Southwest Regional
Council of Carpenters