Agenda packet, regular meeting, third session — Banning City Council, September 10, 2024 (part 3 of 6)

1027 (invalidated city council decision on appeal of land use application when council member appealing planning commission decision showed bias and violated local procedures); Golden Day Schools v. Dept. of Education (2000) 83 Cal.App.4th 695, 709 (“initial decision-maker may not sit on review board”). “Fair process and due process require both actual fairness and the appearance of fairness.” Id., citing Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 94 (“due process violation when lawyer, advocate for defendant city, later acted as advisor to the judge of administrative appeal”).
“Comments made by an agency member before hearing may constitute evidence of an unacceptable probability of actual bias such that the member could not act as a ‘reasonably impartial, non-involved reviewer.’” Id., citing Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 484. “A personal interest or involvement in the outcome of a matter, or with any participant, that is unrelated to the merits requires disqualification.” The California Municipal Law Handbook (Cal. CEB 2023) § 2.167; see Mennig v. City Council (1978) 86 Cal.App.3d 341, 351. “This rule does not preclude holding opinions, philosophies, or strong feelings about issues or specific projects; it also does not proscribe expression of views about matters of importance in the community, particularly during an election campaign.” Id. City of Fairfield v. Superior Court (1975) 14 Cal.3d 768, 780-782. “The decisionmaker's actions, however, must not ‘cross the line into advocacy’ for or against a project.” Id., citing Petrovich Development Co., LLC v. City of Sacramento (2020) 48 Cal.App.5th 963, 974. Proof of actual bias is not necessary; “it is sufficient to invalidate a decision if ‘an unacceptable probability of actual bias’ by the municipal decision-maker is established.” Id., citing Woody's Group, 233 Cal.App.4th at 1022.
“There is a presumption that administrative adjudicators are unbiased. In the absence of financial or other personal interest, and when rules mandating an agency's internal separation of functions and prohibiting ex parte communications are observed, the presumption of impartiality can be overcome only by specific evidence demonstrating actual bias or a particular combination of circumstances creating an unacceptable risk of bias.” Id., citing Morongo Band of Mission Indians v. State Water Resources Control Board (2009) 45 Cal.4th 731, 741; Petrovich, 48 Cal.App.5th at 973 (“requiring ‘concrete facts’ establishing bias”). “The party asserting bias has the burden of establishing a disqualifying interest.” Id., citing Sweeney v. California Regional Water Quality Control Board (2021) 61 Cal.App.5th 1093, 1144.
606

SUPERIOR COURT OF CALIFORNIA, COUNTY OF RIVERSIDE
Historic Court House
Ruling on Matter Submitted
03/15/2024
8:08 AM
Department 1
CVRI2201482
PASS ACTION GROUP vs CITY OF BANNING
Honorable Harold W. Hopp, Judge
E. Escobedo, Courtroom Assistant
Court Reporter: None

Page 3 of 11 ends

Petitioner contends that three council members made statements demonstrating bias. The Court finds that they have met their burden as to one of the three.

Council member Mary Hamlin emailed Petitioner’s president, stating that “project appears to be good for the whole community and in the long run will lift the entire community.” AR 13051. The email included an attached information sheet that stated the project would have a positive impact on new housing, new businesses and continued growth that would “far outpace” any adverse impact on property values. AR 13054. The information sheet indicated that it would be a mistake for the City to deny approval. AR 13051, 13054. Council member Hamlin also distributed a document on the second day of a Planning Commission hearing on the Project. The document stated that the Project was not a “distribution center” and would have only three large trucks per hour, that she would have opposed it if the Project were a distribution center with hundreds of trucks. AR 17080-17085. In fact, the project is anticipated to have as many as 296 truck trips per day. AR 592. The following day, Hamlin emailed the managing principal of Real Party Creation Equity, congratulating him on the Planning Commission’s approval. AR 19736. She asked to be involved in leasing discussions for the project to do damage control and “repair the negativity” to her reputation with constituents. AR 19723-19736.

The following week, she further suggested contacting a reporter to correct the record and help her repair her damaged image. AR 17615.

Council member Alberto Sanchez twice posted to social media commenting favorably on the Project before the City Council held a hearing. One post called the Project “great,” bringing jobs and tax revenue, reducing homeless population and that that retail aspect “looks great as well.” AR 13056.

Another added that traffic is being mitigated and that this would be growth, which Banning residents want. AR 19728.

Council member Colleen Wallace, then Mayor, gave a state of the city address in October, 2021, stating that building in Banning is needed to encourage children who grew up in Banning to return and invest. AR 13042-13043.

Council member Sanchez moved for approval of the Project and council member Wallace seconded the motion. However, even with that context, their statements do not overcome the presumption that 607

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they are unbiased. There has been no showing of a financial or personal interest in the Project and no specific evidence demonstrating actual bias or a particular combination of circumstances creating an unacceptable risk of bias, in the language used by the Court in the Morongo Band of Mission Indians case. 45 Cal.4th at 741.

Councilmember Hamlin, however, demonstrated a personal interest in the success of the Project, rehabilitating her reputation with her constituents. Further, her statements clearly advocate a position in favor of the Project. She not only made statements in favor of the Project, she circulated information that inaccurately understated the number of truck trips the Project would generate, contrary to the final traffic study. AR 592. She stated that the warehouse was not a distribution center but was more like an industrial office building, which is clearly incorrect. AR 13052. While review of the Project was pending, she asked to be involved in leasing discussions. She encouraged the principal of Creation Equity to seek positive press releases and to engage in an “aggressive campaign” to support the Project. AR 17615, 19742. These actions are similar to the “coaching” found in Petrovich, 48 Cal.App.5th at 974-976 (council member took affirmative steps to assist project proponents, acting as an advocate, not as a neutral). That she stated at the hearing that she was unbiased and ultimately voted against its approval does not show her to be unbiased.

City of Fairfield, on which the City relies, is a different situation. As the Supreme Court noted, the “proceedings did not turn upon the adjudication of disputed facts” or applying standards to facts, “the few factual controversies were submerged into the overriding issue of whether the construction of the shopping center would serve the public interest.” 14 Cal.3d at 779-780. Moreover, many of the statements made by council members in City of Fairfield were made during election campaigns. The Supreme Court stated that such statements “do not disqualify the candidate from voting on matters which come before him after his election.” 14 Cal.3d at 781.

These factors are not present here. The City Council was making a determination as to whether the facts required a subsequent or supplemental Environmental Impact Report or whether an addendum to the Project Environmental Impact Report would be sufficient. Council member Hamlin’s statements were not made during an election campaign. Her participation in the City Council’s discussion and decision to approve the Project requires the Court to grant the petition. Woody’s Group, Inc., 233 Cal.App.4th at 1031 (remedy for participation of biased council member is to grant writ and send 608

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matter back to city council with instructions to reconsider the matter without the participation of the biased council member).

Although the Court is not required to go farther, having found sufficient basis to grant the writ, it will briefly explain its view on the remaining issues. In summary, it does not find that Petitioner has carried its burden of proof on any remaining issue and would not grant the writ but for the fair hearing issue.

There was substantial evidence to support the Council’s decision not to prepare a supplemental EIR.

Petitioner contends that the City failed to comply with CEQA because it merely prepared an addendum to the Program EIR and did not prepare a supplemental or subsequent EIR for the Project addressing cumulative impacts from the Project and the Sunset Crossroads project, which is currently under environmental review. The Sunset Crossroads project would include 5.5 million square feet of warehouse space and would be located not far from the Project.

Whenever a further discretionary approval by the lead or responsible agency is required for a project for which an EIR or a negative declaration has been certified or adopted, the agency has to consider whether a subsequent or supplemental EIR should be required for that further approval. Kostka & Zischke, Practice Under the CEQA (CEB 2022-2023) § 19.2. “To give a degree of finality to the results, CEQA includes a presumption against requiring any further environmental review once an EIR has been prepared for a project.” Id., citing Cal. Pub. Res. Code § 21161; Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal. 5th 937, 949; see also CEQA Guidelines § 15162.

As the court explained in the leading case of Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1073: “[S]ection 21166 comes into play precisely because in-depth review has already occurred, the time for challenging the sufficiency of the original EIR has long since expired [§21167(c)], and the question is whether circumstances have changed enough to justify repeating a substantial portion of the process.” Once a project has been approved, no additional steps to comply with CEQA are required, unless a further discretionary approval of the project is necessary. Id. citing Martis Camp Community Ass'n v. County of Placer (2020) 53 Cal.App.5th 569, 604. New information appearing after a project approval does not require that the approval be reopened (CEQA Guidelines 609

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§ 15162(c)), but if another discretionary approval is needed, “the agency considering that approval must determine whether further CEQA review is required due to changes in the project, changes in circumstances, or new information.” Id. citing CEQA Guidelines § 15162(a), (c); Willow Glen Trestle Conservancy v. City of San Jose (2020) 49 Cal.App.5th 127, 131.

There are three formats available to add to or amend the EIR depending on the circumstances. If major changes are required to make a previous EIR adequate, a subsequent EIR is required. Kostka & Zischke, Practice Under the CEQA (CEB 2022-2023) § 19.4.

A supplemental EIR may be prepared by the agency if any of the conditions requiring a further EIR exist, “but only minor additions or changes would be necessary to make the previous EIR adequately apply to the project in the changed situation.” Kostka & Zischke, Practice Under the CEQA (CEB 2022-2023) §19.5; CEQA Guidelines §15162(a). CEQA Guidelines do not define “minor additions or changes” however, a supplement only has to have the information necessary to make the previous EIR adequate. Id.; CEQA Guidelines §15163(b). “Thus, an EIR supplement need respond only to the project changes, changes in circumstances, or new information that triggered the need to prepare a further EIR ….” Id. The discretionary decision to prepare a supplemental EIR as opposed to a subsequent EIR “is tested under a reasonableness standard, with the focus on ‘the substance of the EIR, not its nominal title.” Id.; City of Irvine v. County of Orange (2015) 238 Cal.App.4th 526, 540.

An addendum to a previously certified EIR must be prepared “when changes or additions to the EIR are necessary but none of the conditions in” CEQA Guidelines §15162 that trigger preparation of a subsequent or supplemental EIR have occurred. Kostka & Zischke, Practice Under the CEQA (CEB 2020-2021) §19.6; citing Friends of the College of San Mateo Gardens, 1 Cal.5th at 946. “Preparation of an addendum is thus a way to make minor corrections to an EIR without recirculating the EIR for further review.” Id. at §19.6; CEQA Guidelines §15164(c). “An addendum may also be used to evaluate changes to a project, changes in circumstances, or new information, and to document the agency’s determination that a subsequent or supplemental EIR is not required. Id.; CEQA Guidelines §15164(e). “The agency's decision-making body must consider the addendum along with the final EIR before making a decision on the project.” Ibid.

Where the agency finds “that impacts resulting from changes to the project do not differ significantly 610

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from those described in the prior EIR, a further EIR is not required.” Id. at § 19.13 citing Bowman v.

City of Petaluma (1986) 185 Cal.App.3d 1065, 1079 (following a change in access to a project site, an updated traffic report’s conclusions were substantially identical to those in the original EIR, which were not considered substantial so, no further EIR was required); see Citizens Against Airport Pollution v. City of San Jose (2014) 227 Cal.App.4th 788, 802 (an addendum’s analysis showing that noise and air pollution impacts from airport operations would decrease in the future, supported agency's determination that changes would not result in new significant impacts or substantially different impacts from what was described in prior EIRs); Fund for Environmental Defense v. County of Orange (1988) 204 Cal.App.3d 1538, 1548 (subsequent EIR not required for change in source of water for project because addendum to EIR concluded that impacts were same as those assessed in project EIR even though provider of water service changed).

There is no dispute but that the differences between the original project and the current version of the Project do not result in new significant environmental impacts. Indeed, the current version of the Project is significantly smaller than the original project.

Have there been substantial changes “with respect to the circumstances under which the project is being undertaken which would require major revisions to the environmental impact report”? Cal. Pub.

Res. Code § 21166(b); CEQA Guidelines § 15612(a)(2) (adds “due to the involvement of new significant, environmental effects or a substantial increase in the severity of previously identified significant effects.”) If there are such changes, a subsequent or supplemental EIR is required only if:
1) the change in circumstances is substantial; 2) the change involves new or more severe significant environmental impacts; 3) the change will require major revisions to the previous EIR on the new or more severe impacts; and 4) the impacts were not covered in the previous EIR. Kostka & Zischke, Practice Under the CEQA (CEB 2022-2023) § 19.14.

Third, has new information that “was not known and could not have been known at the time the environmental impact report was certified as complete" become available? Id. at § 19.18 citing Cal.

Pub. Res. Code §21166(c). The CEQA Guidelines explain that the new information could not have been known with the exercise of reasonable diligence and must be of “substantial importance.” Id. citing CEQA Guidelines § 15162(a)(3).
611

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Petitioner argues that both the second (substantial changes to the circumstances under which the Project is being undertaken) and third (new information that could not have been known has become available) conditions exist because of the Sunset Crossroads project.

Petitioner asserts that three months after the PEIR was certified, the City issued a notice of preparation for thee Sunset Crossroads project. AR112944-12961. Sunset Crossroads involves over 500 acres and, as noted above, would include 5.5 million square feet of industrial/logistics use. AR 12944, 12950, 12956. It requires an amendment of the City’s general plan for much of the acreage, a specific plan creating 19 distinct planning areas, a parcel map and vesting tract map, and a preannexation and development agreement. AR 12944-12945. The Sunset Crossroads would be about half a mile away from the Project at the closest point. The Sun Lakes senior community is between the projects. AR 8580, 12954. The Sunset Crossroads would include an extension of Sun Lakes Boulevard, which trucks from the Project could use to access the nearby freeway (although as City points out, there would be a much shorter access to the freeway without using the extension of Sun Lakes Boulevard).

Petitioner is correct, of course, that the PEIR and the addendum do not analyze the cumulative impact of the Project and Sunset Crossroads. However, City argues that Petitioner has not shown that the changed circumstances compel the conclusion that the significant environmental effects will be different or more severe than those previously identified and that “major revisions” to the PEIR are necessary. The Project is smaller—about 30 percent smaller—than what was contemplated by the PEIR. Would the Project have cumulatively considerable incremental effects? CEQA Guidelines § 15130(a). If not, the effect is not so significant as to require a subsequent or supplemental EIR. Id. If other projects by themselves would have significant cumulative impacts—something that is highly likely true for Sunset Crossroads—that “does not constitute substantial evidence that the proposed project’s incremental effects are cumulatively considerable.” CEQA Guidelines § 15064(h)(4).

City asserts that it relied on SCAQMD methodology in concluding that if the project-specific impacts exceed SCAQMD’s local and regional thresholds of significance, only then would the impact be cumulatively considerable. The City determined that the Project would comply with the Air Quality Management Plan, and would not exceed regional or local significance levels. AR 135-138, 224-226, 5861, 2760.
612

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City also argues that the Sunset Crossroads project is too uncertain to constitute a change in circumstances that would require assessing the cumulative impact of the Project and Sunset Crossroads.

To the extent that it is certain, the Sunset Crossroads project if approved would involve far more land, a much larger construction, and a general plan amendment, a specific plan creating 19 distinct planning areas, a parcel map and vesting tract map, and a pre-annexation and development agreement. It would no doubt have far more significant environmental impacts than the Project. If other projects by themselves would have significant cumulative impacts—which seems clearly the case here—that is not substantial evidence that the proposed project’s incremental effects are cumulatively considerable. CEQA Guidelines § 15064(h)(4). Accordingly, the Court concludes that substantial evidence supported the City’s decision not to include cumulative impacts from the Project and Sunset Crossroads in the environmental documents for the Project and to prepare an addendum instead of a supplemental or subsequent EIR for the Project.

Substantial evidence supported the City’s project approval findings. Petitioner argues that there is no guarantee that the office and retail space that is to serve as a buffer between the existing housing and the warehouse element of the Project will be built in time to serve as a buffer and may never be built. City found the tentative map and design review consistent with the general plan and the specific plan amendment.
“Courts will defer to an agency's decision on consistency with its own plan unless, on the basis of evidence before the decision-making body, a "reasonable person" could not have found the project to be consistent.” Kostka & Zischke, Practice Under the CEQA (CEB 2023) § 12.33 citing The Highway 68 Coalition v County of Monterey (2017) 14 Cal.App.5th 883, 896 (a determination of consistency between a project and a “general plan can be reversed only if it is based on evidence from which no reasonable person could have reached the same conclusion”); Clover Valley Foundation v City of Rocklin (2011) 197 Cal.App.4th 200, 239 (“no reasonable person would have determined that the project was inconsistent with the general plan”).

Notably, perfect conformity between a project and the general plan is not required, only compatibility 613

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with the general plan’s objectives and policies is needed. That determination is subject to a highly deferential standard of review. It is Petitioner’s burden to establish inconsistency. California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 638. The Court will not substitute its judgment for the City’s; the City’s determination “comes to this court with a strong presumption of regularity.” Ibid. This is because courts recognize that “the body which adopted the general plan policies in its legislative capacity has unique competence to interpret those policies when applying them in its adjudicatory capacity” and “the governmental agency must be allowed to weigh and balance the plan’s policies when applying them.” Naraghi Lakes Neighborhood Preservation Assn. v. City of Modesto (2016) 1 Cal.App.5th 9, 18-19.

City’s conclusion that the Project is consistent with the general plan and specific plan amendment is supported by substantial evidence. The City found that the Project will not unreasonably interfere with use and enjoyment of neighboring properties because the warehouse is to be built up against the I-10 freeway and the railroad away from residences; it will back up against Sun Lakes Village Shopping Center buildings away from residences to the south and east; and the retail and offices uses will provide screening/buffering from these residential uses “in the future.” AR 81 (emphasis added by Petitioner.) However, as argued by the City, there is nothing in its findings that required the retail and office elements (R&S District) would be built before or concurrently with the warehouse or would change the findings if the retail and office space were developed later. That an alternative condition could be proposed to address Petitioner’s screening concerns—requiring the landscaping—and was adopted supports the City’s finding. City could and did find that landscaping is a reasonable alternative for buffering to the construction of the office and retail space.

Project does not conflict with the noise element of the general plan. Petitioner argues that the Project approval authorizes heavy truck use on Sun Lakes Boulevard, which violates the noise element of the general plan because that street is not designated as a truck route. Program 4.A provides that other than traffic providing location-specific services and deliveries, construction and delivery trucks are limited to designated truck routes, which does not include Sun Lakes Boulevard. The City is within its discretion to interpret its general plan. Naraghi Lakes Neighborhood Preservation Assn. v. City of Modesto (2016) 1 Cal.App.5th 9, 18-19. Its determination is within that discretion.

For the foregoing reasons, the Petition is granted in part. Petitioner to prepare a proposed Writ and to 614

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circulate it in the manner required by Rule 3.1312 of the California Rules of Court.

Notice to be given by Clerk.

Minute entry completed.
615

SUPERIOR COURT OF CALIFORNIA, COUNTY OF RIVERSIDE
Historic Court House
4050 Main Street, Riverside, CA 92501
Case Number: CVRI2201482
Case Name: PASS ACTION GROUP vs CITY OF BANNING

GINETTA LORRAINE GIOVINCO
350 S. Grand Avenue, 37th Floor
Los Angeles, CA 90071

CERTIFICATE OF MAILING
I certify that I am currently employed by the Superior Court of California, County of Riverside, and that I am not a party to this action or proceeding. In my capacity, I am familiar with the practices and procedures used in connection with the mailing of correspondence. Such correspondence is deposited in the outgoing mail of the Superior Court. Outgoing mail is delivered to and mailed by the United States Postal Service, postage prepaid, the same day in the ordinary course of business. I certify that I served a copy of the foregoing notice on this date, by depositing said copy as stated above.

Notices Mailed: Ruling on Submitted Matter-Petition for Writ of Mandate/Complaint for Injunctive Relief Dated: 03/15/2024 JASON B. GALKIN,
Court Executive Officer/Clerk of the Court
by:

E. Escobedo, Deputy Clerk
CW-CCM
(Rev. 08/24/17)
616

SUPERIOR COURT OF CALIFORNIA, COUNTY OF RIVERSIDE
Historic Court House
4050 Main Street, Riverside, CA 92501
Case Number: CVRI2201482
Case Name: PASS ACTION GROUP vs CITY OF BANNING

PAIGE HOPKINS GOSNEY
2010 Main Street, 8th Floor
Irvine, CA 92614

Notices Mailed: Ruling on Submitted Matter-Petition for Writ of Mandate/Complaint for Injunctive Relief Dated: 03/15/2024 JASON B. GALKIN,
Court Executive Officer/Clerk of the Court
by:

E. Escobedo, Deputy Clerk
CW-CCM
(Rev. 08/24/17)
617

SUPERIOR COURT OF CALIFORNIA, COUNTY OF RIVERSIDE
Historic Court House
4050 Main Street, Riverside, CA 92501
Case Number: CVRI2201482
Case Name: PASS ACTION GROUP vs CITY OF BANNING
GABRIEL M.B. ROSS
396 HAYES STREET
San Francisco, CA 94102

Notices Mailed: Ruling on Submitted Matter-Petition for Writ of Mandate/Complaint for Injunctive Relief Dated: 03/15/2024 JASON B. GALKIN,
Court Executive Officer/Clerk of the Court
by:

E. Escobedo, Deputy Clerk
CW-CCM
(Rev. 08/24/17)
618

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Notice has been printed for the following Firm/Attorneys or Parties: CVRI2201482 ROSS, GABRIEL M.B.
396 HAYES STREET
San Francisco, CA 94102

GIOVINCO, GINETTA LORRAINE
350 S. Grand Avenue, 37th Floor
Los Angeles, CA 90071

GOSNEY, PAIGE HOPKINS
2010 Main Street, 8th Floor
Irvine, CA 92614

619
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
2010 Main Street, 8th Floor | Irvine, CA 92614-7214
Telephone: 949.553.1313 | Facsimile: 949.553.8354
www.allenmatkins.com
K. Erik Friess
E-mail: [email protected]
Direct Dial: 949.851.5478 File Number: 391960.00003/4858-2106-2609.7 Allen Matkins
Via Email/U.S. Mail
July 25, 2024
Honorable Mayor and City Councilmembers
City of Banning
Attn: Toni Calderon, City Clerk
99 E. Ramsey Street
Banning CA 92220
Re: Banning Point Project (“Project”)
Honorable Mayor and City Councilmembers:

We represent Sun Lakes Highland, LLC (“SLH”)1, owner of the property comprising the Project. The above-referenced Banning Point Project involves the subdivision and development of an approximate 47.11 acre site located within the Sun Lakes Specific Plan area for a 619,959 sf industrial warehouse with 10,000 sf of associated office space and six commercial/retail buildings totaling approximately 34,000 sf. You are undoubtedly intimately familiar with the Project and its long and complex entitlement and litigation history.

As discussed in detail below, it is clear that two City Councilmembers, Flynn and Happe, are biased against SLH and the Project, and must recuse themselves from all future City Council hearings on the Project. Either one of their involvement in future City Council hearings will deprive SLH of its constitutional right to due process. Further, Councilmember Flynn misled the City, other City Councilmembers and SLH by lying about her involvement in a July 3, 2024 Pass Action Group (“PAG”) meeting. At the July 9 City Council hearing, Councilmember Flynn asserted that while she had attended the July 3 PAG meeting, she was “ an observer only”. However, as discussed below, Councilmember Flynn clearly advocated her opposition to the Project at this PAG meeting, further tainting the City Council’s decision and process on the Project.

If either Councilmember Flynn or Happe refuse to recuse themselves, the City will be exposed to liability and significant damages, in excess of $25 million, and in addition, SLH’s legal fees, under Section 1983 of the Federal Civil Rights Act. Therefore, SLH hereby requests that both Councilmembers recuse themselves from all future hearings on the Project. 1 MIG and LGE acted as consultants for SLH, and were the applicants on the various entitlement applications, but neither entity has an ownership interest in the Project property. 620
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
Honorable Mayor and City Councilmembers
July 25, 2024

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Also, as is clear from all of the documentation of the administrative record, the Project is in conformity with the General Plan, Specific Plan and Zoning Code, and the City cannot legally make the findings necessary to deny the Project’s Design Review application. The fact that the City had to continue the public hearing on the Project, due to the paucity of substantial evidence, to try to gin up evidence and findings to support a denial of the Design Review application, provides further proof of the Project’s consistency with all City rules and regulations. The Project will provide tremendous public benefits to the City, its residents and the region, SLH requests that the remaining City Councilmembers deny the PAG appeal of the Planning Commission approval of the Project, and approve the Project entitlements at the Project’s next City Council hearing.

1. Summary
On July 9, 2024, concerning Agenda Item 7.1, the City Council voted 3-2 to direct staff to prepare resolutions and findings for consideration at a future City Council hearing regarding the granting of the appeal of PAG, regarding the denial of Design Review No. 21-7008 and the accompanying CEQA Addendum to the Sun Lakes Specific Plan EIR (Amendment No. 5) (collectively, “Denial”). Councilmembers Flynn, Minjares and Happe voted in favor of the Denial and Mayor Sanchez and Councilmember Wallace were opposed. The Council also voted 5-0 to direct staff to prepare findings and a resolution solely for approval of the Project’s Tentative Parcel Map No. 38164. The final hearing on the Project entitlements and associated resolutions has not yet occurred but it is presently anticipated for August 27, 2024.

The purpose of this letter is to bring to your attention new information concerning statements made and actions taken by Councilmembers Flynn and Happe that demonstrate an “unacceptable probability” of their respective predisposition and bias against the Project such that they could not – and cannot – act as “reasonably impartial, non-involved reviewer[s]” of the Project. (Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 484.) The effect of Councilmember Flynn’s biased participation in the July 9 hearing was to deprive SLH of its fundamental right to a fair hearing and, among other things, violate SLH’s procedural and substantive due process rights under the Fourteenth Amendment to the U.S. Constitution and the federal Civil Rights Act set forth in 42 U.S.C. section 1983. The pre-hearing statements and actions of Councilmember Flynn and the post-hearing statements made by these two Councilmembers unquestionably establish the existence of a predisposition, commitment and bias against the Project that tainted the July 9 hearing and, if these Councilmembers are allowed to continue to participate, would further taint all future hearings on the Project. Finally, the facts identified by Councilmembers Flynn, Happe, and Minjares to justify the proposed resolution of Denial are woefully inadequate and fall far short of the thresholds necessary to support denial of the Project and to withstand future legal scrutiny.

As outlined more fully below, if allowed to stand, the City’s actions in permitting Councilmember Flynn to participate in the July 9 hearing, and if Councilmembers Flynn and Happe do not recuse themselves and choose to consider and vote on the Project entitlements in any future 621
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
Honorable Mayor and City Councilmembers
July 25, 2024

Page 3 ends

hearing, will expose the City to significant monetary and other liability, including damages in excess of $25,000,000 as well as the responsibility for all of SLH’s attorneys’ fees and costs incurred in connection with any resulting litigation. SLH demands that the City (i) vacate and set aside all action taken and direction given by the City Council to staff regarding the Denial, including the direction to have staff prepare a resolution for Denial of the Design Review component of the Project entitlements; and (ii) approve the Project after a City Council hearing, without the participation of Councilmembers Flynn and Happe. These steps are necessary to ensure that the City Council hearing on the Project entitlements is not tainted by bias caused by the improper participation of Councilmembers Flynn and Happe in the proceedings.

In the event that the City refuses this demand and declines to conduct a new, fair, and unbiased hearing on the Project consistent with California law, including Judge Hopp’s March 13, 2024, order on PAG’s bias and fair-hearing claims regarding the 2022 approval of the Project, as well as SLH’s substantive and procedural due process rights under the state and federal constitutions, SLH will have no choice but to proceed with litigation against the City. Please be advised that SLH will assert all available claims, both legal and equitable, and take all actions necessary to protect, preserve, and vindicate SLH’s ownership and development rights in the Banning Point property and the Project. SLH strongly urges the City to consider its next steps carefully.

2. California Law Require Local Governments to Hold Fair Hearings, Without the Participation of Biased Decisionmakers; Failure to Do So is a Constitutional Violation and Requires the Biased Decision Makers to Recuse Themselves A. Trial Court Decision
As outlined in the trial court’s March 15, 2024, decision, “‘[Q]uasi-judicial’ or ‘administrative’ hearings are subject to the fair process requirements of Code of Civil Procedure section 1094.5(b) and, when a vested property or liberty interest is implicated, to the due process requirements of both the federal and state constitutions.” (The California Municipal Law Handbook (Cal. CEB 2023) § 2.56 citing Today’s Fresh Start, Inc. v Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212.) “The decision-maker must be fair and impartial.” (Id. citing, Woody’s Group, Inc. v. City of Newport Beach (2015) 233 Cal.App.4th 1012, 1027 [invalidated city council decision on appeal of land use application when council member appealing planning commission decision showed bias and violated local procedures]; Golden Day Schools v. Dept. of Education (2000) 83 Cal.App.4th 695, 709 [“initial decision-maker may not sit 622
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
Honorable Mayor and City Councilmembers
July 25, 2024

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on review board”].) “Fair process and due process require both actual fairness and the appearance of fairness.” (Id., citing Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 94 [“due process violation when lawyer, advocate for defendant city, later acted as advisor to the judge of administrative appeal”).

The City is undoubtedly familiar with these principles and laws given the trial court’s recent determination that former Councilmember Hamlin (even though she voted against the Project) was improperly biased in favor of the Project at the time of its approval in 2022. The fact that the City Council, at its July 9 hearing, would repeat a similar mistake, and allow the biased participation of Councilmember Flynn, whose conduct was and is far more egregious than the conduct of Councilmember Hamlin, is incredible and defies both reason and logic.

B. Pre-hearing Comments Can Constitute Evidence of Bias Numerous reported decisions have reinforced the long-standing rule that decisionmakers must be unbiased, and that evidence of bias need not only be found based upon a decisionmaker’s conduct at the hearing itself.

As discussed in Nightlife Partners: “Comments made by an agency member before hearing may constitute evidence of an unacceptable probability of actual bias such that the member could not act as a ‘reasonably impartial, non-involved reviewer.’” (Id., citing Nasha v.

City of Los Angeles (2004) 125 Cal.App.4th 470, 484 [emphasis added] [unacceptable probability of bias shown where a decisionmaker “advocate[s] a position” for or against a project].) Further, “[a] personal interest or involvement in the outcome of a matter, or with any participant, that is unrelated to the merits requires disqualification.” (The California Municipal Law Handbook (Cal. CEB 2023) § 2.167; see Mennig v. City Council (1978) 86 Cal.App.3d 341, 351.) While decisionmakers can hold strong feelings about issues or specific projects, “[t]he decisionmaker’s actions, however, must not ‘cross the line into advocacy’ for or against a project.” (Id. [emphasis added], citing Petrovich Development Co., LLC v. City of Sacramento (2020) 48 Cal.App.5th 963, 974.) Also, there is no requirement of demonstrating actual bias; “it is sufficient to invalidate a decision if ‘an unacceptable probability of actual bias’ by the municipal decision-maker is established.” (Id., citing Woody’s Group, supra, 233 Cal.App.4th at p. 1022 [emphasis added].) As will be discussed below, Councilmember Flynn’s actions clearly and unequivocally demonstrate bias.

C. Participation by a Biased Decisionmaker Invalidates the Decision Even though three City Councilmember votes would be needed to approve the Denial, meaning that Councilmember Flynn and Happe themselves could not, and cannot, approve the Denial, any decision of the City Council including their participation would be tainted, resulting in invalidation of any action the City Council would take if they participate. “[T]he prehearing bias of one [decision-maker is] enough, by itself, to invalidate [that agency’s] decision.” (Woody’s Group, 623
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supra, 233 Cal.App.4th at p. 1016.) Where a decision-maker demonstrates an unacceptable probability of bias, the court must set aside the agency’s decision even if the ultimate outcome would have been the same without the biased decision-maker’s participation. (See, e.g., Nasha, supra, 125 Cal.App.4th at pp. 478, 484 [invalidating 3-1 planning commission decision denying project approval where only one commissioner was biased); Woody’s Group, supra, 233 Cal.App.4th at pp. 1019, 1031-32 [invalidating 4-1 decision denying project approval where only one city council member was biased]; Petrovich, supra, 48 Cal.App.5th at pp. 971, 976 [invalidating 7-2 decision denying project approval where only one city council member was biased].)
Thus, due to the bias of both Councilmembers Flynn and Happe, any decision of the City Council, if they participate in the decision, would be invalid, and as discussed below, would expose the City to liability under the Federal Civil Rights Act.

D. Participation of Biased Decisionmakers Violates an Applicant’s Constitutional Right to Procedural Due Process, Resulting in Liability Under the Federal Civil Rights Act
The Fourteenth Amendment to the U.S. Constitution provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law....” SLH’s ownership of the project property constitutes a protected property interest within the context of the Fifth Amendment of the U.S. Constitution and Article 1, sections 7 and 19 of the California Constitution, and compensation must be made for its taking or damaging by a public entity. (Bd. of Regents of State Colleges v. Roth (1972) 408 U.S. 564, 571-72.) Thus, SLH’s rights in the property may not be infringed upon without constitutional rights of due process.

Although a decision-maker does not have to be completely indifferent to the general subject matter of the issue or project presented in order to be impartial (Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 790, 171), “‘[a]“fair trial in a fair tribunal is a basic requirement of due process...’” (Bullock v. City and County of San Francisco (1990) 221 Cal.App.3d 1072, 1091 [abrogated on unrelated grounds in Griset v. Fair Pol. Pracs. Comm’n (2001) 25 Cal.4th 688, 698]; Nasha, supra, 125 Cal.App.4th at pp. 482-483.) A biased decisionmaker is constitutionally unacceptable. (Bullock, supra.) “The right to a fair procedure includes the right to impartial adjudicators.” (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1448.)
42 U.S.C. section 1983 is a statutory mechanism that allows for the recovery of damages by private citizens whose constitutionally protected civil rights and property interests are violated and/or unlawfully infringed upon by the government. If either Councilmember Flynn or Happe participate in future City Council hearings on the Project, the City, acting under the color of state law, will violate SLH’s civil rights under the United States and California Constitutions, and 42 624
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U.S.C. section 1983 by depriving SLH of its fundamental due-process right to a fair hearing before an unbiased decisionmaker. (Galland v. City of Clovis (2001) 24 Cal.4th 1003, 1031, 1034 [“[t]he Due Process Clause is intended to prevent government officials from abusing [their] power or employing it as an instrument of oppression”].)
As a result of the City’s actions in allowing Councilmember Flynn to participate in the July 9 hearing despite the clear and unequivocal evidence of her pre-hearing bias and commitment to oppose the Project, and if Councilmembers Flynn or Happe participate in any future hearings on the Project, SLH has suffered and will continue to suffer significant monetary damages that, at present, are in excess of $25,000,000. Moreover, in the event that litigation becomes necessary, please be advised that SLH is and will be entitled to recover all of its reasonable attorneys’ fees and costs incurred in connection with the claim for violation of its procedural and substantive due process rights. (See 42 U.S.C. section 1988.) SLH will exercise all available rights and pursue all available legal and equitable remedies in order to protect, preserve, and defend its rights guaranteed under the U.S. and California constitutions.

3. Councilmember Flynn’s Pre-and Post-Hearing Actions Demonstrate Bias, Requiring Invalidation of the July 9 Denial, and Requiring Her to Recuse Herself From All Future Hearings on the Project
Councilmember Flynn, who is a resident of the neighboring Sun Lakes community and, as she has admitted, is a former longtime former volunteer PAG Board Member, Vice President, and co-chair of PAG’s Legal/Environmental Impact Committee. As is clear, and as discussed below, she has consistently and vehemently opposed the Project, both before she was elected as a Councilmember and after she was elected.

A. Activities Before Elected to City Council
Councilmember Flynn vigorously opposed the original 2022 approval of the Project and appeared at numerous Planning Commission and other public hearings to register her opposition. In fact, Councilmember Flynn expressly campaigned for the City Council on the basis of not approving any new industrial facilities in the City and touted her involvement in the efforts to recall former Councilmember Hamlin, whom the trial court found to be biased in favor of the Project (despite her “no” vote). Councilmember Flynn signed the verification for the lawsuit filed by PAG against the City and SLH after the original 2022 approval of the Project entitlements, and has continued to act on behalf and in furtherance of PAG’s efforts to undermine and oppose the Project since taking her seat on the City Council.

Councilmember Flynn was an active member of the PAG committee which was involved in the litigation. On January 24, 2022, PAG’s lawyers submitted a 428-page letter to the City, appealing the City Planning Commission’s approval of the Project. Ms. Flynn was cc’d on this letter. In March 2022, the City, PAG and SLH entered into a tolling agreement, tolling the statute 625
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of limitations for PAG to file a lawsuit against the City and SLH. Ms. Flynn signed this tolling agreement on behalf of PAG, listing her title as “Pass Action Board Member”. 2 Clearly, Councilmember Flynn was not acting as an unbiased mediator, but as one of the leaders of PAG.

B. Activities After Elected to City Council
Councilmember Flynn provided extensive pre-hearing statements at a July 3 PAG meeting which occurred before the July 9 City Council hearing, explaining how PAG members could oppose the Project. 3 She urged the PAG members to attend the July 9 meeting, she cajoled them to send letters to the City Council and she instructed the PAG members how to ensure that their comments were included as part of the record of proceedings.

For example, Flynn stated:
“I just wanted to comment on when you go to speak, uh, in January the City Council went to action minutes only, so if you go to speak and you do not send it in by email or by mail, whatever you want to send in, it will not be placed in the minutes and it will not be recorded. So you must also speak but also turn whatever you speak into a city clerk by 5 pm preferably the day before but you can get it in as late as 5 pm the day of and I just want to make sure everyone knows that because you’ll go up there and speak and there will be no record of it other than a video that you would have to watch. No verbatim. Verbatim is no longer being used. It is action minutes it only records in the minutes what action was finally taken. The votes and what action was finally taken.

The votes and what anyone says or even whether you’re for or against something is not even recorded. So be sure to send in your comments ahead of time [emphasis added].

So, on the 9th, you should send in to make sure it gets to the City Clerk by the 8th but she should still accept them by 5 pm on the 9th. To the City Clerk. You must mail it to the City Clerk which is Caroline Patton. So its [email protected].

Not only do I have an obligation to let people know where I stand, I have a duty to let people know where I stand. And so I am not going to recuse myself. [Emphasis added.] [Applause] And I think I have a lot of valuable information to give, and that is why I’m not recusing myself. And I do not have to recuse myself.” [Emphasis added.] During the July 9 hearing, Councilmember Flynn read from a pre-prepared list of questions and statements that, not coincidentally, were identical to and consistent with the claims and allegations raised by PAG in the underlying litigation. Councilmember Flynn went so far as to 2 Because both of these documents are City documents, they are not attached to this letter. SLH can provide copies of these documents to the City if so requested.
3 This meeting was videotaped, and can be accessed here: https://www.youtube.com/watch?v=HExxFKyfSNE. The following discussion of Councilmember Flynn’s actions at this meeting is based upon this video. 626
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question SLH’s representative, Josh Zemon, about a “rumor” that SLH had contributed $4,000,000 into a City “housing authority fund” in 2019 (years in advance of approval of the Project entitlements) that was the alleged basis for former Councilmember Hamlin’s statements that the Project would generate an approximate equivalent amount of revenue for the City. The clear intent of this line of questioning – based upon admittedly nothing more than mere “rumor” and speculation – was to imply that SLH was improperly (and indirectly) attempting to “buy” councilmember votes for the project in advance of the 2022 hearing through the alleged housingfund contributions. Although he had no responsibility or obligation to respond to such an unsupported inflammatory question, Mr. Zemon stated unequivocally that no such payment or donation had ever been made either by or on behalf of SLH. However, the damage caused by Councilmember Flynn’s question and the associated implication was already done.

Finally, in a social media post following the hearing on July 9 but before the pending final vote on the project entitlements, Councilmember Flynn hailed the actions taken by the City Council as a “step in the right direction.” (Emphasis added.) The outcome of her final vote on the Project is undoubtedly certain; evidence of her bias could not be clearer.

C. Councilmember Flynn Must Recuse Herself Due to the Overwhelming Evidence of Her Bias
SLH and its team were not aware of Councilmember Flynn’s attendance at the July 3 PAG Board meeting or the biased statements that she made to the group indicating her clear predisposition and opposition to the Project. Nor was SLH aware of Councilmember Flynn’s active efforts to solicit and encourage public opposition to the reapproval of the Project and to line up City Council votes in advance of the July 9 hearing on the Project. At the July 9 City Council hearing, Councilmember Flynn stated simply that she attended a PAG Board meeting simply “as an observer”, but the irrefutable, publicly available video evidence makes clear that this statement was a lie. Such a bad faith disclosure is sufficient evidence of Councilmember Flynn’s bias.

The statements made and actions taken by Councilmember Flynn at the July 3 PAG meeting prior to the July 9 initial hearing on the Project unquestionably show the existence of an unacceptable probability of bias. This “prehearing bias” is “enough by itself to invalidate” the City Council’s action and direction at the July 9 hearing. (Woody’s Group, supra, 233 Cal.App.4th at p. 1016.) In Woody’s Group, the court disregarded a biased councilmember’s “self-serving comment at the hearing” that he had no bias and concluded that he “should not have been part of the body hearing the appeal” at all. (233 Cal.App.4th at p. 1023.) Here, Councilmember Flynn’s comments at the hearing that her attendance at the July 3, PAG Board meeting was “as an observer only” are contradicted by the video itself and cannot cure her prehearing bias. Like the councilmember’s statement in Woody’s Group, whatever 627
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Councilmember Flynn said or did at the City Council hearing cannot dispel the pre-hearing bias that legally prohibited her from appearing at the hearing in the first instance.

In Petrovich Development Co., LLC v. City of Sacramento (2020) 48 Cal.App.5th 963, the court found that a councilmember demonstrated a “prehearing commitment to” vote against a project where the councilmember was “counting – if not securing –votes” against it and stated he was “confident he had a majority” to deny the project. (Petrovich, supra, 48 Cal.App.5th at pp. 974-75.)
In Nasha, supra, the court found that a planning commissioner was biased due to his writing a newsletter, which attacked a project, before the planning commission held a hearing on the project. The court held that the mere preparation of this newsletter constituted bias, requiring the planning commissioner’s recusal. Nasha, supra, 125 Cal.App.4th at p. 484.

Similar to the biased decisionmakers in Petrovich and Nasha, Councilmember Flynn engaged in a myriad of activities to thwart approval of the Project. She repeatedly publicly opposed the Project, engaged in behind-the-scenes advocacy and provided technical support to PAG members. She exhorted PAG members that “community pressure and peer group pressure… could change [the other Councilmembers’] minds…”. clearly demonstrated her “prehearing commitment” to do everything possible to ensure the project’s denial.

To that end, Councilmember Flynn’s actions during the July 3 PAG Board meeting closely resembles the “coaching” of the project appellant by the biased councilmember in Petrovich. There, the councilmember texted the project appellant asking him “to put a few heads together to talk thru” the project; elements of the councilmember’s “Talking points” related to the project also ended up in the appellant’s presentation before the Council. (Petrovich, supra, 48 Cal.App.5th at pp. 974-

76.) The appellate court endorsed the trial court’s characterization of this evidence as showing the councilmember was “coaching [the project appellant] on how to prosecute the appeal.” (Id. at p. 975.)
Here, as quoted above, Councilmember Flynn’s pre-hearing statements at the July 3 PAG meeting advising, directing, and urging PAG members how to attend the July 9 meeting, send letters to the City Council (except for Councilmember Flynn), and ensure that their comments are included as part of the record of proceedings demonstrate that Councilmember Flynn was “coaching” the PAG Board and community members on how to oppose the project to the City Council.

Further, Councilmember Flynn’s comments at the July 9 City Council hearing were clearly pre-prepared and corresponded directly with the unsuccessful claims and arguments asserted by PAG in the underlying litigation. The statements made by Councilmember Flynn and the PAG members show that they considered themselves a singular, cohesive team whose mission was to generate opposition to the Project. In fact, the PAG members expressly stated that Councilmember 628
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Flynn was “on our team” in advising that no letters opposing the project need to be sent to her attention prior to the July 9 meeting – a statement that Flynn did not (and does not) contradict.

Further, to be clear, Councilmember Flynn attended the PAG meeting – not the Sun Lakes Community Master Association regular meeting or some other uninvolved community group. PAG is the Petitioner in the lawsuit against the City and SLH regarding the Project and is actively and vehemently opposed to the Project. The PAG website confirms that the group was formed for one singular purpose – to oppose the Project – and thus Councilmember Flynn’s incitement and encouragement and advice to the members about how to ensure that their comments and concerns are timely and included in the record was clearly intended to generate as much opposition to the Project as possible.
“The Pass Action Group was formed in late 2022 in opposition to a proposed warehouse being developed on Sun Lakes Blvd. in Banning, CA…. We have banded together to oppose the construction this warehouse that will bring an unacceptable number of daily truck traffic, noise and all related pollution. Senior citizens are sensitive receptors to this pollution and the Pass Action Group is determined to protect all citizens from the inherent pitfalls of this project.”4 The PAG Mission Statement is even clearer:
“The fundamental mission and purpose of the Pass Action Group (PAG) is to prevent the development of the Banning Point Warehouse. This mission will use all means necessary to preserve the quality of life and property values of those living in the general vicinity of the Banning Point project, especially the protected class of citizens currently living immediately adjacent to the planned project.

This will be accomplished by the development and implementation of a multifaceted strategic plan constructed to ensure all reasonable and available public, political, and legal means necessary are undertaken.” In sum, like the councilmember in Petrovich, Councilmember Flynn “took affirmative steps to assist [opponents] of the [project],” acting as an “advocate, not a neutral and impartial decision maker, and should have recused [herself] from voting” at the hearing on July 9. (Petrovich, supra, 48 Cal.App.5th at p. 976.) Not only did she refuse to recuse herself she was defiant in her comments to the PAG members as to her unwillingness to do so. Councilmember Flynn’s failure to recuse herself and her continued participation in the July 9 hearing on the Project, despite her clear and unequivocal pre-hearing bias against the Project, requires the City Council’s actions to be set 4 See https://passactiongroup.org/history-1.
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aside. Given her obvious bias, Councilmember Flynn must recuse herself from all future City Council hearings on the Project.

4. Councilmember Happe’s Public Statements Following the July 9 Hearing Clearly Indicate an Unacceptable Probability of Actual Bias Requiring His Recusal from all Future Hearings on the Project
Following the July 9 hearing, Councilmember Happe issued a lengthy statement on social media to his supporters in which he attempted to justify his prior vote to approve the Project in 2022 and subsequent vote directing staff to prepare resolutions for denial. Although the final vote on the Project entitlements remains pending and no final determination has been made or final vote been taken, Councilmember Happe made a number of misrepresentations and statements indicating his opposition to and feelings towards the Project. For example, Councilmember Happe’s message included:
“As I stated earlier, the project has already had a negative impact on the neighborhood before it was even built, before even one truck rolled through the neighborhood, before one truck was unloaded… [and] The harm is more tangible to people than mitigation efforts that will fall far short… While I believe the developers are sincere in wanting to create a valuable and quality project for the community, I cannot ignore the fact that the location of this project is landlocked by a retirement community an assisted living facility and a shopping center that they use on a daily basis by the local community. This conflict of land use goes against good sense and the vision for a livable city—a Blue Zone city, a most desirable city, a clean city. Unfortunately, there was no remedy for the council on the specifics of the plan without it being sent back to the drawing board… I hope you can understand that given the second chance I could not support a project that is not in the best long term interest of our city.” (Emphasis added.) As above, Councilmember Happe’s statements demonstrate an unacceptable probability of “prehearing bias” that is “enough by itself to invalidate” the City Council’s action and direction at the July 9 hearing. (Woody’s Group, supra, 233 Cal.App.4th at p. 1016.)

5. The Facts Identified by the City Council During the July 9 Hearing to Support the Proposed Resolution of Denial of the Project Are Inadequate and Cannot Justify Denial of the Project
In addition to the foregoing, the factual bases articulated by Councilmembers Flynn, Happe, and Minjares in support of their request that City Staff prepare a resolution of denial of the Design Review component of the Project entitlements are patently insufficient and inadequate to support or 630
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justify the denial action that is proposed to be taken. Despite nearly five hours of public presentations and testimony, Councilmembers Flynn, Happe, and Minjares struggled mightily to identify and provide facts to support the proposed denial of the Project, and, at one point, Councilmember Flynn exclaimed to the City Attorney that she could not reasonably be expected to identify the grounds for denial “on the spot” at the July 9 hearing. One of the reasons these Councilmembers likely struggled to marshal facts to support the Denial is that the Project is consistent with the General Plan, the Specific Plan and Zoning Code, and there has been no substantial evidence proffered which concludes otherwise.

Ultimately, Councilmembers Flynn, Happe, and Minjares directed staff to prepare a resolution of denial based upon the following “facts”:
• The Project is inconsistent with the City’s General Plan5 because: (i) “the circulation
element of their design sucks…”; (ii) “the project will not provide a nonpolluting industrial use and will not provide jobs for city residents” (literally the conclusory inverse of language included in July 9 proposed Resolution No. 2024-114, § 4(A)(2)); and (iii) the Project “does not protect residential neighborhoods from potentially significant sources of community noise”;
• The Project will unreasonably interfere with the use and enjoyment of neighboring existing or future development and will not result in vehicular or pedestrian hazards6 because “there are no protections for pedestrians or golf carts using Sun Lakes Boulevard and connecting it to the Project or the project to Sun Lakes”; and, • The Project is incompatible with the character of the surrounding neighborhood7 because: (i) “its proximity to sun lakes, its only 800 ft from residential”; (ii) the project site is “landlocked by residential”; and (iii) “the easterly parcel will not be provided with substantial screening and buffering of the residential and assisted living uses to the east of the building.”
Where an administrative agency is required to make findings to support a quasi-judicial decision, the findings must “bridge the analytic gap between the raw evidence and ultimate decision.” (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515; see also Healing v. California Coastal Com. (1994) 22 Cal.App.4th 1158, 1167.) The findings must be “sufficient both to enable the parties to determine whether and on what basis they should seek review and, in the event of review, to apprise a reviewing court of the basis for the [Council’s] action.” ( Id., at p. 514.) The facts identified by Councilmembers Flynn, Happe and Minjares fall far short of accomplishing this goal.
5 See Mun. Code, § 17.56.050(A).
6 See Mun. Code, § 17.56.050(C).
7 See Mun. Code, § 17.56.050(D).
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For example, with respect to the General Plan consistency findings, the City Council provided unfounded opinion –not facts – to support its determination, and whether a circulation plan “sucks” is not sufficient grounds for Project denial. Councilmember Minjares expressly stated at the City Council hearing that there were no facts to support inconsistency with the General Plan or Specific Plan or that would justify denial of the Project’s tentative parcel map. The findings necessary to approve the Design Review are virtually identical to those required for approval of the tentative parcel map. Furthermore, with respect to unreasonable interference with the use and enjoyment of surrounding properties, Councilmembers Flynn, Happe, and Minjares completely disregarded and ignored the crosswalks, traffic light, and other improvements that the Project would be conditioned to construct as well as the internal golf cart pathway voluntarily proposed by SLH to connect the Sun Lakes community to the Sun Lakes Village commercial shopping center to the west of the Project site. SLH revised its circulation plan before the Project was originally approved at the request of PAG. Nonetheless, the Project’s addendum extensively analyzed the Project’s circulation impacts. Finally, the Project site is not landlocked by residential (e.g., the Sun Lakes Village commercial shopping center is a neighbor of the Project site), but the industrial component of the Project has been pushed back against the Interstate 10 freeway far away from the residential uses to the south and east and extensively buffered with landscaping and other screening measures to reduce impacts to adjacent uses.

Finally, to the extent that the City takes the position that the “general discussion” by Councilmembers Flynn, Happe, and Minjares of the Project’s perceived impacts to the quality of life of the surrounding neighborhood and their disagreement with the existing, City-approved zoning for the site that expressly contemplates and allows for the exact uses proposed by the project, that is not sufficient to justify the denial of Design Review. (See Pacifica Corp. v. City of Camarillo (1983) 149 Cal.App.3d 168, 179 [“Council debate … is not the equivalent of Topanga findings.”].) Thus, “the evidence [does not] support the [proposed] findings” (Healing, supra, 22 Cal.App.4th at 1167), and the City Council failed to provide adequate facts to “bridge the analytic gap between the raw evidence and ultimate decision.” (Topanga, supra, 11 Cal.3d at p. 515). The bottom line is that City Staff, including the City Attorney, concluded that the Project recommended approval of the Project, and the City Council’s attempt to now disregard the detailed and comprehensive analysis undertaken by City Staff is unsupportable.

Conclusion
In sum, the City’s actions in permitting Councilmember Flynn to participate in the hearing and to consider and vote on the Project entitlements effectively deprived SLH of its fundamental right to a fair hearing and, among other things, violated SLH’s procedural- and substantive-dueprocess rights under the Fourteenth Amendment to the U.S. Constitution and the federal Civil Rights Act set forth in 42 U.S.C. section 1983. The pre-hearing statements and actions by Councilmember Flynn and the post-hearing statements made by both Councilmembers unquestionably establish the existence of their predisposition and bias against the Project, the effect 632
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of which was to fatally taint the July 9 hearing and, if these Councilmembers are not forced to recuse themselves, would further taint all future hearings on the Project.

In addition, and notwithstanding the foregoing, the facts identified by the City Council to justify the proposed resolution of denial are woefully inadequate and fall far short of the threshold necessary to support denial of the project and withstand legal scrutiny. Councilmembers Flynn, Happe, and Minjares provided mere unfounded opinions – not facts or evidence – to support their opposition to the Project and ignored the multitude of Project-design features and improvements that refused and contradicted their unsupported opinions and beliefs that the Project would be inconsistent with and adversely impact the surrounding community.

For the reasons outlined above, if the actions taken at the July 9 hearing are allowed to stand, the City will be exposed to significant monetary and other liability, including damages in excess of $25,000,000 as well as the responsibility for all of SLH’s attorneys’ fees and costs incurred in connection with any resulting litigation. SLH demands that the City (i) vacate and set aside all action taken and direction given by the City Council to staff at the July 9 hearing regarding Agenda Item 7.1, including the direction to have staff prepare a resolution for denial of the Design Review component of the Project entitlements; and (ii) reschedule the Project for a new hearing at which the City Council will reconsider the Project entitlements without the participation of Councilmembers Flynn and Happe. These steps are critical to ensuring that the City Council’s consideration of the Project entitlements is fair and not “tainted” by bias attributable to the improper participation of Councilmembers Flynn and Happe.

In the event that the City refuses this demand and declines to conduct a new, fair, and unbiased hearing on the project consistent with California law, including Judge Hopp’s March 15, 2024, ruling as well as SLH’s substantive-and procedural-due-process rights under the U.S. and California Constitutions, SLH will not hesitate to proceed with litigation against the City and take all actions necessary to protect, preserve, and vindicate SLH’s ownership and development rights in the Banning Point property. It remains our sincere hope that such litigation and further adversarial proceedings will not be necessary.

Please contact me if you wish to discuss this matter in further detail.

Very truly yours,
K. Erik Friess
KEF
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cc: Doug Schulze, City Manager
Serita Young, City Attorney
Emery Papp, Senior Planner
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396 HAYES STREET, SAN FRANCISCO, CA 94102
T: (415) 552-7272 F: (415) 552-5816
www.smwlaw.com
KEVIN P. BUNDY
Attorney
[email protected]

SHUTE MIHALY
WEINBERGER llp
August 29, 2024
Via Electronic Mail
Mayor Alberto Sanchez
Members of the City Council
City of Banning
99 E. Ramsey St.

Banning, CA 92220
E-Mail: [email protected]
Emery J. Papp
Senior Planner
Community Development Department
City of Banning
99 E. Ramsey St.

Banning, CA 92220
E-Mail: [email protected]
Serita Young
City Attorney
City of Banning
99 E. Ramsey St.

Banning, CA 92220
E-Mail: [email protected]
Sandra Calderon
Development Project Coordinator
City of Banning
99 E. Ramsey Street
Banning, CA 92220
E-Mail: [email protected]
Re: Banning Point Project:

Response to Applicants’ Litigation Threats and Discussion of Support for Findings of Denial for the Design Review and Tentative Parcel Map
Dear Mayor Sanchez, Councilmembers, Mr. Papp, Ms. Young, and Ms. Calderon:

As you know, this firm represents the Pass Action Group in matters related to the proposed Banning Point Project (the “Project”). This letter responds to certain arguments and assertions in a July 25, 2024 letter from the Project applicants’ counsel threatening litigation against the City.1

The Applicants’ Letter does not establish that the City Council must reconsider or set aside any action taken regarding the Project at its July 9, 2024 meeting due to the 1 Letter from K. Erik Friess, Allen Matkins Leck Gamble Mallory & Natsis LLP, to Mayor and Members of the Banning City Council (July 25, 2024) (“Applicants’ Letter”). 635
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Emery J. Papp
Serita Young
Sandra Calderon
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alleged prehearing bias of certain Council members. Moreover, the Applicants’ assertion that the City Council’s actions could give rise to $25 million in liability for damages under federal civil rights law is unsupported and meritless. Finally, clearly established law and substantial evidence in the record support this Council’s adoption of findings of denial for both design review and the tentative parcel map.

I. The Applicants’ Litigation Threats Lack Merit.

A. The Applicants Have Not Shown that the Council’s July 9 Decisions Must Be Set Aside.

1. Councilmember Happe Has Not Exhibited an Unacceptable Probability of Actual Bias Against the Project.

The Applicants’ Letter takes issue with a social media post from Councilmember Happe wherein he summarized comments he made during the Council’s July 9, 2024 meeting, after the public hearing on the Project had closed. The Applicants claim that this social media post demonstrates an unacceptable probability of bias requiring Councilmember Happe’s recusal from any further action on the Project. The Applicants focus on two statements in particular:

As I stated earlier, the project has already had a negative impact on the neighborhood before it was even built, before one truck rolled through the neighborhood, before one truck was unloaded.

I hope you can understand that given the second chance I could not support a project that is not in the best long term interest of our city.2 Neither of these statements requires reconsideration of the Council’s July 9 actions. The purpose of the rule against bias in quasi-judicial decisions is to prevent decision-makers from weighing the applicable facts and forming an opinion on a project before the facts are presented in a formal hearing. See Petrovich Development Co., LLC v. City of Sacramento (2020) 48 Cal.App.5th 963, 973 (decision maker must not have “prejudged the specific facts of the case”). Councilmember Happe’s social media post simply summarized statements he made from the dais, after the close of the public 2 Applicants’ Letter at 11.
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hearing on the Project, at the July 9 meeting (“As I stated earlier…”). The timing of these statements shows Councilmember Happe properly waited to form an opinion on the Project until he was presented with all the facts and testimony at the July 9 public hearing. His summarization of statements he made after the close of the public hearing does not establish pre-hearing bias.

Nor must Councilmember Happe now recuse himself from further action on the Project based on these social media statements. Again, Councilmember Happe reached a conclusion on July 9, based on the law and the facts presented during the public hearing, that City staff should be directed to return to the Council with draft findings of denial of the design review component of the Project. The public hearing on the Project is now closed and will not be reopened when the City Council meets again to consider the draft findings.3
The Council will not be adducing any new or different facts about the Project when it meets again to consider the draft resolutions it directed staff to prepare. None of the cases cited in the Applicants’ Letter provides any basis for an assertion that Councilmember Happe’s post-hearing comments establish pre-hearing bias.

2. The Applicants’ Letter Does Not Establish that the Council’s July 9 Decisions Must Be Reconsidered Due to Councilmember Flynn’s Participation.

The Applicants’ Letter contends that the Council’s July 9 decisions should be set aside or reconsidered based on Councilmember Flynn’s participation. However, the letter cites no evidence that the Applicants objected to Councilmember Flynn’s participation prior to the July 9 public hearing and discussion regarding the Project.

The Applicants certainly could have raised their objections prior to July 9. The Applicants’ Letter complains of Councilmember Flynn’s association with Pass Action Group years ago, prior to her election to the City Council, but the letter cites no evidence that the Applicants objected to Councilmember Flynn’s participation on July 9 prior to the agenda item being called or the close of the public hearing. Indeed, although the Applicants and their representatives spoke at length during the hearing, they never stated 3 E-mail from Caroline Patton, Administrative City Clerk, to Kevin Bundy, Shute, Mihaly & Weinberger LLP (Aug. 13, 2024, 11:33 AM) (“The public hearing for the Project is closed and therefore will not be reopened or continued at a future meeting of the City Council.”).
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any objection to Councilmember Flynn’s participation. Nor does it appear that the Applicants lodged any written objection to her participation in the July 9 hearing.4 Any
objection to Councilmember Flynn’s participation on the basis of her past association with Pass Action Group is therefore arguably waived.

The Applicants’ Letter also discusses Councilmember Flynn’s attendance at a Pass Action Group meeting on July 3, 2024, that was open to the Sun Lakes community and the public at large.
5 But the Applicants have not shown that Councilmember Flynn’s statements during the Pass Action Group meeting clearly established an unacceptable risk of prehearing bias. Bias and prejudice are “never implied,” but must be shown through “concrete facts” and “clear averments.” Petrovich, 48 Cal.App.5th at 973. The statements quoted in the Applicants’ Letter fall short of this standard. Indeed, the statements show only that Councilmember Flynn provided information about how to engage in the City’s public process (for example, by submitting comments in writing in addition to speaking), not information about what members of the public should say. Unlike the substantive “talking points” prepared for project opponents by the council member in Petrovich (see id. at 975), or the statements and posts from former Councilmember Hamlin cited in the 4 Publicly available responses to a Public Records Act request for “copies of all comments submitted for the 7/9/24 public hearing on the Banning Point project,” which includes the documents attached to the City Council’s minutes for the meeting, do not contain any such objection. See City of Banning Public Records Requests, Request 24- 299 (July 12, 2024), at https://city-of-banning.nextrequest.com/requests/24-299 (accessed August 27, 2024); City of Banning, City Council Meeting Minutes – Regular Meeting – July 9, 2024, at https://portal.laserfiche.com/Portal/DocView.aspx?id=3638704&repo=redac489c (accessed August 27, 2024). 5 This objection may have been waived as well. The letter claims that the Applicants and their “team” were “not aware” of Councilmember Flynn’s attendance at the meeting, but the letter does not clearly state when the Applicants did become aware of her attendance.

See Applicants’ Letter at 8. The YouTube video of the July 3 meeting discussed in the Applicants’ Letter was posted that same day—six days before the Council’s July 9 meeting. The Applicants’ Letter thus does not conclusively establish that an objection could not have been raised, with an exercise of due diligence, before the July 9 meeting. 638
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Applicants’ Letter, Councilmember Flynn’s comments did not provide “coaching” on specific points to raise in opposition to the Project.
6 For all of these reasons, the Applicants’ Letter does not establish that the Council must revisit the actions taken on July 9. Nor does the letter provide a sound basis for its demand that Councilmembers Happe and Flynn recuse themselves from consideration of post-hearing draft findings of denial for the Project at a future Council meeting.

B. Even if the Applicants Could Establish Bias, There Is No Basis for the Applicants’ Threat to Seek $25 Million in Damages.

The Applicants’ Letter is a blatant—but baseless—attempt at intimidation. The Applicants threaten to sue the City under federal civil rights law (42 U.S.C. § 1983, or “Section 1983”) for damages in excess of $25 million. They assert that the participation of Councilmembers Flynn and Happe in a future Council meeting on the Project would deprive them of their “property” without “due process of law.” But even if Applicants were somehow able to show disqualifying bias with respect to one or both councilmembers—which they have not shown—they would not be able to state a valid claim for monetary damages under Section 1983. Under clearly established case law, Applicants have no protected property interest in approval of their development application by the City Council. Their threatened claim for $25 million in damages under Section 183 is thus without any legal support.
6 Other objections raised in the Applicants’ Letter similarly lack merit. For example, the letter claims Councilmember Flynn was “defiant” in stating that she would not recuse herself from participating in the hearing. Applicants’ Letter at 10. On the contrary, Councilmember Flynn simply conveyed her own conclusion that she did not have to recuse herself, citing advice she sought from the Fair Political Practices Commission and Supreme Court case law regarding statements made prior to an official’s election. The Applicants’ Letter also complains that a member of the public attending the meeting described Councilmember Flynn as “on our team.” Id. at 9-10. But the letter identifies no authority for treating pre-hearing statements by other people as sufficient to establish an elected official’s bias. Finally, the letter accuses Councilmember Flynn of “efforts . . . to line up City Council votes in advance of the July 9 hearing” (id. at 8), but fails to cite any facts supporting this accusation.
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Section 1983 authorizes suits against public agencies who have deprived a person or entity of a right secured by the United States Constitution or a federal statute. This includes the Fourteenth Amendment of the U.S. Constitution, which prohibits the deprivation of “life, liberty, or property, without due process of law.” Where, as here, a plaintiff asserts a public agency has deprived them of property without due process of law, the first inquiry made by a court is “whether the plaintiff has been deprived of a protected interest in ‘property.’” K.W. ex rel. D.W. v. Armstrong (9th Cir. 2015) 789 F.3d 962, 972 (quotations omitted).

Even if the Applicants could show that the July 9 public hearing on the Project was tainted by a decision maker’s bias—which, as discussed above, they have not shown—this would not automatically establish a valid claim for damages. Both federal and California courts have consistently held that an unfair hearing, by itself, does not create a valid claim under Section § 1983. See, e.g., Shanks v. Dressel (9th Cir. 2008) 540 F.3d 1082, 1092 (“Absent a substantive property interest in the outcome of procedure, [a project applicant] is not constitutionally entitled to insist on compliance with the procedure itself”); Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1178 (“A state law requirement that a public entity conduct hearings in a fair manner does not automatically implicate the federal due process clause … if no [protected property] interest is involved, then the procedural protections of the due process clause do not come into play”).

Crucially, the relevant “property” interest here is not the Applicants’ ownership of the land where they would like to build the Project. See Applicants’ Letter at 5. Rather, the relevant “property” interest Applicants must demonstrate is an interest in approval of the development application that is protected by the Fourteenth Amendment. The Applicants’ Letter does not even attempt to demonstrate such an interest here.

Federal courts have developed a sizeable body of case law addressing whether a project applicant has a “protected” property interest in a development application. An applicant has a property interest protected by the Fourteenth Amendment only where: (1) applicable law (for example, a state statute or a local ordinance) significantly restricts the discretion of the local agency by delineating a set of criteria that, if satisfied, requires the agency to approve the application; and (2) the applicant satisfies all criteria required to obtain approval. Jacobson v. Hanniffin (9th Cir. 1980) 627 F.2d 177, 180; Groten v.

California (9th Cir. 2001) 251 F.3d 844, 850; Bateson v. Geisse (9th Cir. 1988) 857 F.2d 1300, 1305; Thornton v. City of St. Helena (9th Cir. 2005) 425 F.3d 1157, 1164-65. Here, 640
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the Applicants cannot satisfy either requirement because the City has broad discretion in reviewing the Applicants’ request for approval of a tentative parcel map and design review. See Thornton, 425 F.3d at 1165 (protected property interest arises only where criteria for approval of application do not “involve the exercise of discretion by the reviewing body”).

Neither state law nor the Banning Municipal Code requires the City to approve a tentative parcel map application if certain standards are met. Rather, the findings required for approval of a tentative parcel map under state law are highly discretionary. California Subdivision Map Act and the Development Process (2d ed. Cal. CEB 2023) §9.1 (“Although guidelines in the Subdivision Map Act describe grounds for approval and denial of the tentative map, the local agency has considerable discretion in making that decision.”); see also generally Gov. Code §§ 66473.5, 66474; Banning Mun. Code ch.

16.08. For example, in order to approve a tentative parcel map, the City Council must find the map and the design and improvement of the subdivision proposed therein consistent with the City’s General Plan. See Gov. Code § 66474(a), (b). Cities have especially broad discretion in making findings “regarding general plan policies, which reflect competing interests.” Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1192.

Similarly, the Municipal Code grants the City very broad discretion in determining whether to approve a design review application. Municipal Code section 17.56.050 requires the City to “determine that the project adequately meets adopted City performance standards and design guidelines” prior to making a determination, based upon four findings: (1) the proposed project is consistent with the General Plan; (2) the proposed project is consistent with the Zoning Ordinance, including the development standards and guidelines for the district in which it is located; (3) the design and layout of the proposed project will not unreasonably interfere with the use and enjoyment of neighboring existing or future development, and will not result in vehicular and/or pedestrian hazards; and (4) the design of the proposed project is compatible with the character of the surrounding neighborhood. California courts have consistently held that such ordinances convey broad discretion to deny a project due to incompatibility with surrounding uses, even if the project is allowable under a parcel’s land use designation.

See, e.g., Wesley Inv. Co. v. County of Alameda (1984) 151 Cal.App.3d 672, 678.

In sum, the Applicants’ arguments gravely misstate the law governing claims brought under Section 1983. The Applicants’ ownership of the project site does not create 641
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a cognizable claim under Section 1983, and denial of the Project will not “deprive” the Applicants of their ownership interest in the property itself. Nor do the Applicants have any constitutionally protected property interest in approval of their development application.7
If the City denies the Project, the Applicants will not have a valid claim for monetary damages under Section 1983, even if they could somehow demonstrate prehearing bias on the part of Councilmembers Flynn and Happe. The City should not allow the Applicants’ baseless threats to affect its decision-making.

II. The City Council Should Adopt Findings of Denial for Both Design Review and the Tentative Parcel Map.

A. The City Has Broad Discretion in Determining Whether the Project Is Consistent with the General Plan, Specific Plan, and Municipal Code.

In order to approve the Project, the City Council must find both the tentative parcel map and the design review consistent with the City’s General Plan, the Sun Lakes Village North Specific Plan, and the zoning ordinance. Conversely, the Council cannot 7 Cases cited in the Applicants’ Letter (at 5-6) provide no support for a Section 1983 claim. The letter cites Board of Regents of State Colleges v. Roth (1972) 408 U.S. 564, 571-72, for the proposition that “compensation must be made” for the “taking or damaging” of private property under the United States and California Constitutions. Roth, however, had nothing to do with the taking or damaging of private property under either constitution. Rather, the Supreme Court in Roth rejected a Wisconsin State University professor’s claim that his termination without a hearing following expiration of his oneyear teaching contract violated his liberty interests. Id. at 569. Roth is inapposite here. If anything, Roth confirms that the range of “liberty” and “property” interests protected by the Due Process Clause “is not infinite.” Id. at 570. Similarly, neither Galland v. City of Clovis (2001) 24 Cal.4th 1003 (considering whether unreasonable costs imposed on mobile home park landlords seeking rent increases may violate due process) nor Bullock v. City and County of San Francisco (1990) 221 Cal.App.3d 1072 (considering claims related to rezoning and conversion of an existing residential hotel) addressed whether a development application gives rise to a constitutionally protected property interest for purposes of Section 1983. And Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, which concerned a doctor’s challenge to a hospital’s suspension of his clinical privileges, did not discuss Section 1983 at all.
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approve the tentative parcel map or design review if it finds any inconsistency between the Project and the General Plan, Specific Plan, or zoning ordinance.

The Council has wide latitude to adopt findings of denial based on such inconsistencies. Courts accord “great deference” to a local agency’s determination of general plan or specific plan consistency “because the body which adopted the general plan policies in its legislative capacity has unique competence to interpret those policies when applying them in its adjudicatory capacity.” Save Our Peninsula Comm. v Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 142. Courts will not “micromanage” consistency determinations, but rather will look only to whether officials considered applicable policies, made appropriate findings, and supported those findings with substantial evidence. Sequoyah Hills Homeowners Ass’n v City of Oakland (1993) 23 Cal.App.4th 704, 719. As discussed below, findings of denial are readily supportable here.

This rule, however, also has a corollary: the City Council lacks discretion to disregard or balance away General Plan policies that are fundamental, mandatory and clear. See, e.g., Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 782-83; Families Unafraid to Uphold Rural El Dorado County v.

Board of Supervisors (1998) 62 Cal.App.4th 1332, 1341-42. Nearly all of the General Plan policies discussed below are phrased in mandatory terms, using the word “shall” to direct City decision-making. Where the Project conflicts with such mandatory policies, the Council must adopt findings of denial.

B. The Law and the Evidence in the Record Support Findings of Denial for the Design Review.

The City has broad discretion under its design review ordinance to find that the Banning Point Project is inappropriately sited and incompatible with the surrounding neighborhood. Banning Mun. Code § 17.56.050. Even where a use is permitted under local general plan and zoning regulations, but subject to local development review, “the local agency has the power to determine that a particular development is not suitable for a particular location and to deny an application on such basis.” 1 Longtin’s California Land Use § 3.25[2], p. 270. “The fact that the site in question is in a zone where a [use] may be lawfully maintained does not diminish the [local government’s] power to determine that a particular development is not suitable for that location.” Wesley Inv. Co. v. County of Alameda (1984) 151 Cal.App.3d 672, 678 (italics in original). 643
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Judicial review of a discretionary design review denial is highly deferential and “will be upheld as long as the denial substantially advances legitimate governmental interests and is supported by substantial evidence.” Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 176. Public testimony regarding a project’s incompatibility with surrounding uses constitutes substantial evidence to support a denial.

Id. at 176-77 (noting that because a determination of “incompatibility with the neighborhood does not require expert testimony[,] the opinions and objections of neighbors can provide substantial evidence to support rejection of a proposed development.”; see also Ideal Boat & Camper Storage v. County of Alameda (2012) 208 Cal.App.4th 301, 319-20 (holding county properly relied on public testimony in finding conflict between proposed project and initiative measure); Linborg-Dahl Investors, Inc. v.

City of Garden Grove (1986) 179 Cal.App.3d 956, 962 (holding city council “properly relied on evidence generated by public testimony” in evaluating site plan review); Wesley, 151 Cal.App.3d at 679 (holding county did not abuse its discretion by crediting public testimony that proposed convenience store was inconsistent with “orderly, attractive, and harmonious development”).

The Council can and should deny design review based on each of the four findings required by Municipal Code section 17.56.050.

1. The Project Is Inconsistent with the General Plan.

The City Council can—and should—find the Project inconsistent with the General Plan on numerous grounds.8

a. Community Development Element
The Project is inconsistent with several goals and policies in the General Plan’s Community Development Element. The element’s overall goal is “[a] balanced, well 8 Some of the grounds for denial discussed herein were raised by Council members at the July 9 hearing. However, in preparing proposed findings, staff is not limited to the specific grounds or supporting facts identified by Council members. As with staff’s proposed findings of approval presented on July 9—which staff prepared independently of Council direction—staff’s proposed findings of denial should address all grounds on which the Project does not satisfy the Municipal Code’s findings requirements and all supporting facts in the record.
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planned community including businesses which provides a functional pattern of land uses and enhances the quality of life for all Banning residents.” General Plan at III-12.9 Policy
3 requires that “[d]evelopment in all land use categories shall be of the highest quality.” Id. at III-13. Policy 5 mandates that “[a]ll land use proposals shall be consistent with the goals, policies, and programs of this General Plan, and with the Zoning Ordinance.” Ibid.

In addition, the goal of the Community Development Element’s industrial land use provisions is “[a] balanced mix of non-polluting industrial land uses which provide local jobs for the City’s residents.” Id. at III-19 (italics added). Industrial Policy 7 provides that “[t]he land use map shall include sufficient industrial lands for manufacturing, warehousing and distribution, while carefully considering compatibility with adjacent lands.” Id. at III-20 (italics added).

Facts in the record support findings of inconsistency with these goals and policies.

As Councilmember Minjares pointed out during the July 9 meeting, public testimony and other evidence presented at the public hearing indicate that the Project undermines the Community Development Element’s most fundamental goal: enhancing quality of life for all Banning residents. The Council also should find that the Project is not “of the highest quality,” and therefore is inconsistent with Policy 3, because it lacks features necessary to protect nearby residents and surrounding uses from adverse impacts.

Moreover, the Council should find the Project inconsistent with the Community Development Element’s industrial land use goals and policies. The Project is not a “nonpolluting” land use, and thus contravenes a fundamental General Plan goal. Moreover, the Project does not advance Industrial Policy 7, which requires careful consideration of compatibility with adjacent lands. As multiple Councilmembers stated during the July 9 meeting—and as supported by ample testimony from neighboring residents and others— the Project is starkly incompatible with adjacent residential and health care-oriented land uses.
9 Citations to the “General Plan” are to City of Banning, General Plan (Jan. 31, 2006), at https://www.banningca.gov/803/Planning-Resource-Documents (accessed Aug. 26, 2024).
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b. Circulation Element
The Council should find the Project inconsistent with the General Plan’s Circulation Element. The overall goal of the Circulation Element is “[a] safe and efficient transportation system.” Revised Circulation Element at III-16.10 Councilmembers and community members alike pointed out that the Project will have unacceptable on-site and off-site circulation impacts. On site, trucks will create safety hazards for pedestrians and golf carts accessing the existing Sun Lakes Village shopping center from the south via Sun Lakes Village Drive. Off site, Project trucks will create and exacerbate hazards on City roadways. Numerous residents testified and commented on safety concerns related to additional large trucks on Highland Springs Avenue and the I-10 interchange.

Councilmembers and members of the public also pointed out that trucks will likely park along Sun Lakes Boulevard and Highland Springs regardless of no-parking signage, creating additional circulation and other hazards. Finally, Councilmembers and members of the public recognized that the proposed Sunset Crossroads development is a significant change in circumstances, one that will combine with this Project to create new and asyet-unstudied traffic and transportation hazards on Sun Lakes Boulevard following its extension to Sunset Avenue.
c. Noise Element
The Council should find the Project inconsistent with the General Plan’s Noise Element.

The element’s overall goal is “[a] noise environment that complements the community’s residential character and its land uses.” General Plan at V-54. Noise Policy 1 requires that “[t]he City shall protect noise sensitive land uses, including residential neighborhoods, schools, hospitals, libraries, churches, resorts and community open space, from potentially significant sources of community noise.” Ibid. In furtherance of this policy, Noise Program 1.C mandates that “[t]he City shall use the development review process to assure the use of buffers between sensitive receptors and incompatible land uses.” Id. at V-55 (italics added). And Noise Policy 8 specifies that “[t]he City shall impose and integrate special design features into proposed development that minimize 10 Citations to the “Revised Circulation Element” are to City of Banning, General Plan Circulation Element, Res. No. 2013-34 (March 26, 2013), Exhibit A, at https://www.banningca.gov/DocumentCenter/View/4418 (accessed Aug. 26, 2024). 646
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impacts associated with the operation of air conditioning and heating equipment, on- site traffic, and use of parking, loading and trash storage facilities.” Id. at V-56 (italics added).

The Project is starkly inconsistent with these goals, policies, and programs. Truckrelated noise associated with a warehouse does not “complement” the residential character of nearby neighborhoods. Nor do the current Project plans adequately protect nearby noise sensitive land uses—including The Lakes memory care facility and the Sun Lakes community—from noise. One key reason for this lack of protection is the absence of “buffers,” which Noise Program 1.C affirmatively requires the City to “assure” through the development review process. There is no buffer at all between the truck circulation lane on the east side of the warehouse and the immediately adjacent residences and memory care facility. Nor does the Project contain any “special design features”—which Noise Policy 8 specifically requires—to minimize impacts on The Lakes of truck circulation on the east side of the warehouse.

The Project also provides an inadequate buffer, in terms of both distance and sound-attenuating features or structures, between truck loading/unloading activities on the south side of warehouse and residences across Sun Lakes Boulevard. As referenced in public comments and the appellant’s presentation during the July 9 hearing, the Applicants’ consultants modeled noise impacts south of the Project based on the presence of a 14-foot sound wall. The Project plans presented for design review, however, include only an eight-foot wrought-iron fence south of the docks on the warehouse’s south side.

Moreover, although the Applicants have claimed that retail and commercial buildings south of the warehouse will provide a screen and a buffer, there is no requirement in the Specific Plan or Project plans to build the retail buildings contemporaneously with the warehouse—or to build them at all. The Project thus lacks the buffers and special design features the Noise Element affirmatively requires.

The Project also conflicts with specific Noise Element provisions designed to minimize truck noise. Noise Policy 4 provides that “[t]he City shall maintain a General Plan Circulation Map and assure low levels of traffic within neighborhoods by assigning truck routes to major roadways only.” General Plan at V-56. Under Noise Program 4.A, “[t]he City shall review designated primary truck routes and ensure they are clearly marked throughout the community. Except for traffic providing location-specific services and deliveries, construction trucks and delivery trucks shall be limited to designated truck routes, including: Ramsey Street, and those portions of Lincoln Street, Highland Springs 647
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Avenue, Hathaway Street, Sunset Avenue, Eighth Street, San Gorgonio Avenue and Hargrave Street so designated.” Ibid. Finally, Noise Program 4.B specifically mandates that “[t]he City shall discourage development projects that result in through-traffic in residential neighborhoods.” Ibid.

The Project (alone and in combination with Sunset Crossroads) would violate these policies and programs. Sun Lakes Boulevard is not a designated truck route, which renders the Project inconsistent with Noise Policy 4 and Program 4.A. The Council should expressly find Noise Program 4.A’s exception for “location-specific services and deliveries” inapplicable here; that exception should be interpreted as applying only to services and deliveries incidental to another land use. Land uses like warehouses, which are defined by and entirely dependent on truck traffic, should be located exclusively on truck routes.

The Project’s conflict with Noise Program 4.B is even more stark. This aspect of the General Plan is specific and mandatory—the City “shall discourage” projects “that result in through-traffic in residential neighborhoods.” The Banning Point Project is incompatible with Noise Program 4.B because it will result in through truck traffic along Sun Lakes Boulevard, through the heart of the Sun Lakes residential community, after Sun Lakes Boulevard is extended to Sunset. The Project also will contribute to cumulatively considerable truck through-traffic impacts along Sun Lakes Boulevard when combined with the closely related impacts of Sunset Crossroads. Design review can and should be denied on all of these grounds.
d. Wildland Fire Hazards Element
The Project also appears to lack the “Fire Protection Plan” required by the General Plan’s Wildland Fire Hazards Element. The Project is located in a “High” fire threat zone. General Plan at V-64, Ex. V-10. Under Wildland Fire Hazards Program 3.C, “[t]he City shall adopt standard requirements for all development proposal in High Fire Hazard Areas, including requirements for the preparation of Fire Protection Plans prior to the approval of Tentative Tract Maps, Tentative Parcel Maps, or other land use permits.” However, it does not appear that any document clearly designated as a “Fire Protection Plan” has been prepared for this Project.

For all of these reasons, the City Council can and should find the Project inconsistent with the General Plan.
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2. The Project Is Inconsistent with the Specific Plan.

During the July 9 meeting, the City Attorney told the Council that in her view, the Project is consistent with the zoning ordinance. The City Attorney therefore did not try to elicit any facts from the Council to support a finding that the design review is inconsistent with the Specific Plan.
11 However, there are persuasive arguments in the
record—supported by public testimony and other record evidence—that the Project does conflict with the Specific Plan.

According to an email from community member Kathleen Dale delivered to the Council on the morning of July 9, both the tentative parcel map and the proposed design of the Project conflict with the Specific Plan’s land use map and semi-truck access provisions. The land use map in the Specific Plan depicts a “panhandle” as part of the Office & Professional District that extends southward along the east side of the Business & Warehouse District; this “panhandle” provides access from Sun Lakes Boulevard to the Office & Professional District, which would otherwise be landlocked. Specific Plan at 8 (Fig. 4). The tentative parcel map for the Project, however, depicts this “panhandle” as part of Parcel 2—the proposed warehouse parcel. The warehouse parcel thus occupies a portion of the Office & Professional District; moreover, by converting the “panhandle” to a semi-truck drive aisle, the Project would devote that portion of the Office & Professional District to warehousing uses. Warehousing and distribution uses are expressly prohibited in the Office & Professional District. Specific Plan at 12 (Table 1:

Allowable Land Uses). The subdivision design shown on the tentative parcel map is thus inconsistent with the land use categories in the Specific Plan and the zoning ordinance.

Use of this “panhandle” for semi-truck access conflicts with other Specific Plan provisions as well. Again, according to the tentative parcel map and the design review plans, trucks will use the roadway along the east side of the warehouse to access truck loading and unloading bays on the north side of the warehouse. Under the Specific Plan, however, semi-truck access is limited to the Business & Warehouse District, and is provided only via Sun Lakes Village Drive. Specific Plan at 13 (§ 2.2.1), 14 (Fig. 5), 15- 16 (§ 2.2.6). The Specific Plan also prohibits semi-truck traffic (other than for incidental 11 Citations to the “Specific Plan” are to the Sun Lakes Village North Specific Plan Amendment No. 5, adopted pursuant to Resolution No. 2020-141 (Dec. 8, 2020), available at https://banningca.gov/documentcenter/view/10498 (accessed Aug. 29, 2024). 649
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deliveries) in the Office & Professional District, which includes the “panhandle” along the east side of the warehouse.
12 Ms. Dale cites additional inconsistencies with Specific Plan provisions requiring that the plan’s three land use districts be connected by pedestrian links integrated with stormwater management features. See Specific Plan at 15, 20 (§§ 2.2.5, 3.2.1). As Ms.

Dale points out, neither the tentative parcel map nor the design review plans provide the required pedestrian links.13
Accordingly, the City Council can and should find that both the design review and the tentative parcel map are inconsistent with the Specific Plan.

3. The Design and Layout of the Project Will Unreasonably Interfere with the Use and Enjoyment of Neighboring
Development and Will Create Pedestrian and Vehicular
Hazards.

As discussed above, even if the Project were consistent with the General Plan and Specific Plan—which it is not—the City Council would still have broad discretion to deny design review for the Project based on its interference with neighboring uses and its creation of pedestrian and vehicular hazards. See Wesley Inv. Co., 151 Cal.App.3d at 678.

Councilmembers pointed out that the Project contains inadequate protections for pedestrians and golf carts, that increased truck traffic will interfere with enjoyment of the neighborhood, and that the cumulative impacts of this Project in combination with the impacts of Sunset Crossroads will be substantial. Community members also provided extensive written and oral testimony regarding dangerous interactions with trucks and the lack of enforcement of truck parking restrictions along Highland Springs, the Project’s exacerbation of already intolerable traffic by adding more trucks to the roadway, and threats to health and safety caused by longer emergency response times and increased air pollution. Any or all of these facts would be sufficient to support a finding that the 12 The Specific Plan contemplates only passenger vehicle access to the Business & Warehouse District using the Office & Professional District driveway entrance from Sun Lakes Boulevard. Specific Plan at 13-16 (§§ 2.2.2, 2.2.6). 13 Ms. Dale cited additional points of inconsistency between the Project and the Specific Plan in an email dated July 8, 2024 (forwarding prior comments to the City Council). 650
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Project will unreasonably interfere with the use and enjoyment of neighboring development and create pedestrian and vehicular hazards.

4. The Design of the Project is Incompatible with the Character of the Surrounding Neighborhood.

This last finding conveys perhaps the broadest discretion of all—and it captures the fundamental concerns of both a majority of the Council and the public. This Project simply does not belong in a residential neighborhood. The warehouse would be just over 100 feet from The Lakes assisted living facility and only about 800 feet away from residences to the south in Sun Lakes. Moreover, as discussed above, neighboring uses to the east will not be provided with any screening or buffering from trucks using the drive aisle on the east side of the warehouse building. Sun Lakes residential uses to the south will not be screened or buffered either, because the proposed retail buildings need not be constructed contemporaneously with the warehouse and may never be built at all.

The character of the neighborhood is predominantly residential, with some neighborhood-serving existing commercial uses in Sun Lakes Village. A large warehouse with hundreds of truck trips per day is contrary to the neighborhood’s character. The Council could readily support a finding of denial on this ground.

C. The City Council Also Must Deny the Tentative Parcel Map The City Council should deny the tentative parcel map for many of the same reasons that support denial of design review.

The City’s subdivision ordinance requires a tentative parcel map for subdivisions of four or fewer parcels. See generally Banning Mun. Code ch. 16.08. Any action by the City Council on a tentative parcel map “shall be supported by the findings required by Sections 66427.1, 66473.5, 66474, 66474.1 and 66474.6 of the California Government Code.” Banning Mun. Code § 16.14.050(B). Draft Resolution No. 2024-114, presented to the Council at the July 9 meeting, states that that the findings required by sections 66473.5, 66474, and 66474.6 apply here.

Government Code section 66473.5 requires a finding that a tentative or parcel map is “compatible with the objectives, policies, general land uses, and programs specified” in the local general plan and any applicable specific plan. Section 66474 sets forth several 651
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findings that require denial of a tentative or parcel map, including findings of inconsistency with general plans or specific plans.14 Section 66474.6 requires findings related to compliance with waste discharge requirements for community sewer systems.

As a threshold matter, we disagree with some of the City Attorney’s statements regarding the tentative parcel map at the July 9 hearing. The City Attorney suggested that the tentative parcel map had nothing to do with the proposed warehouse development, but rather was solely concerned with subdivision of the larger parcel into three smaller parcels so they could be sold. However, the tentative parcel map itself depicts the overall design, buildings, circulation patterns, easements, and other improvements associated 14 Government Code section 66474 reads as follows:

A legislative body of a city or county shall deny approval of a tentative map, or a parcel map for which a tentative map was not required, if it makes any of the following findings:
(a) That the proposed map is not consistent with applicable general and specific plans as specified in Section 65451.
(b) That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans.
(c) That the site is not physically suitable for the type of development. (d) That the site is not physically suitable for the proposed density of development. (e) That the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat.
(f) That the design of the subdivision or type of improvements is likely to cause serious public health problems.
(g) That the design of the subdivision or the type of improvements will conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. In this connection, the governing body may approve a map if it finds that alternate easements, for access or for use, will be provided, and that these will be substantially equivalent to ones previously acquired by the public. This subsection shall apply only to easements of record or to easements established by judgment of a court of competent jurisdiction and no authority is hereby granted to a legislative body to determine that the public at large has acquired easements for access through or use of property within the proposed subdivision.
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with the Project. Moreover, state law requires the City Council to make findings addressing not only the map itself, but also the design or improvement of the subdivision shown on the map. Gov. Code § 66474(b)-(g). Even the Applicants concede that the findings required to approve a tentative parcel map are overlapping, and in some cases identical, to the findings required for design review approval. See Applicants’ Letter at

13. The tentative parcel map cannot be separated so easily from the design review.

As discussed above, there is ample evidence to support findings that the Project as a whole—including the tentative parcel map—is inconsistent with the General Plan and Specific Plan, and that the design and improvements associated with the Project are incompatible with the surrounding neighborhood. Indeed, given that the Project as a whole is inconsistent with the General Plan and the tentative parcel map itself is inconsistent with the Specific Plan’s land use map (see sections II.B.1 and II.B.2, above), the City Council must deny the map. Gov. Code § 66474(a). Other facts discussed above—including public testimony related to transportation and safety hazards, the lack of buffers and screening between the warehouse and neighboring uses—further support findings that the site is not suitable for the type and density of development proposed.

Gov. Code § 66474(c), (d).

Findings for the tentative parcel map and design review should be consistent. For example, the City Council cannot simultaneously find that the Project is inconsistent with the General Plan for purposes of design review, but consistent with the General Plan for purposes of the tentative parcel map. Moreover, an approved tentative parcel map in the absence of design review approval would have little practical utility for either the Applicants or prospective purchasers, because it would depict a design and improvements that the City has already rejected. It would be better for the community and the Applicants if the tentative parcel map were also denied, so the Applicants can fully consider an alternative project based on some combination of the numerous other uses allowable for this parcel under the Specific Plan. See Specific Plan at 9-12 (Table 1).

For all of these reasons, both the tentative parcel map and design review should be denied. To facilitate expeditious consideration of the tentative parcel map, moreover, staff should prepare alternative findings of denial prior to the next City Council meeting.

If staff does not prepare such findings, the Council should direct staff to do so for presentation at a future meeting.
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III. The City Council Should Direct Staff to Conduct a Thorough Analysis of the Project’s Cumulative Impacts in Relation to Sunset Crossroads Before Taking Any Approval Action.

The tentative parcel map should be denied for another critical reason: approval of the map based on the current record will commit the City to an inadequate analysis of cumulative impacts under the California Environmental Quality Act (“CEQA”).

The City Attorney correctly stated at the July 9 meeting that environmental findings under CEQA are required to approve a tentative parcel map. But a majority of the Council—also correctly—expressed concern during that same meeting that the proposed Sunset Crossroads project represents a major change in the circumstances surrounding the Banning Point Project. Moreover, Councilmembers stated—again correctly—that the cumulative impact of Banning Point in relation to Sunset Crossroads has never been adequately evaluated. The CEQA documents prepared for the Project thus far are inadequate to support approval.15
Because both the tentative parcel map and design review are discretionary actions that may affect the physical environment, the City must comply with CEQA before approving any portion of the Project. The Council should not make any findings based on (or otherwise adopt or certify) the current CEQA documentation, which indisputably lacks a cumulative impact analysis that includes both Banning Point and Sunset Crossroads. Rather, before taking any action to approve any part of this project, the Council should direct staff to prepare the thorough cumulative impacts analysis that the current Addendum and Program Environmental Impact Report lack. If this new analysis indicates that the Project’s contribution to cumulative impacts may be considerable, then the City must prepare a subsequent or supplemental EIR before the Project can be approved.

15 See also Letter from Kevin P. Bundy, Shute Mihaly & Weinberger LLP, to Mayor Alberto Sanchez et al., Re: Banning City Council July 9, 2024 Agenda Items 6.2 and 7.1:

Appeal and proposed reapproval of Banning Point Project (Tentative Map No. 38164 and Design Review No. 21-7008) (July 9, 2024), incorporated herein by reference. 654
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Please include this letter in the record of proceedings for this matter. Thank you, as always, for your consideration of Pass Action Group’s views in this matter.

Very truly yours,

SHUTE, MIHALY & WEINBERGER LLP
Kevin P. Bundy
cc: Caroline Patton (via email: [email protected])
1819652.3
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MEMORANDUM
To: HonorableMembersof theCity Councilof theCity ofBanning,California From: SunLakesHighland,LLC
Re: Banning Point Project (“Project”)
Date: September 4, 2024,
This memo is intended to address many of the comments in opposition the Project made at the City Council hearing in early July 2024 and prior hearings/meetings. 656
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1. Claim 1: Creation/Vaulter (“CREV”) “Bait & Switched” the Sun Lakes residents and the site plan has materially changed since the Sun Lakes Community meeting in March 2020. a. False-Not only do the exhibits from the 2020 presentation prove this claim untrue, changing the site plans would have jeopardized the CEQA document and the Project’s review.
b. The site plan presentation drew a standing ovation from the Sun Lakes residents.

In fact, during the December 2021 Planning Commission meeting and City Council hearing CREV presented the two site plans side-by-side specifically to prove this point. See next page... 657
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2. Claim 2: Traffic-The Project creates more traffic than other uses such as multi-family units and commercial retail.
a. False - Empirical data from the Project Traffic Engineers (Urban Crossroads) proves this untrue.
b. Comparing the alternative land uses below, the Project generates the lowest amount of traffic (daily trips).
i. Nearly 1,000 LESS than Multi-familyUnits
ii. Nearly 7,000 LESS than Office
iii. Nearly 16,000 LESS than Retail/Commercial
The following diagram was also presented at the Planning Commission and City Council hearings.

See next page…
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3. Claim 3: Land Uses/Traffic-The Project overloads the site with industrial use which in turn creates enormous amounts of traffic.
a. False-CREV also outlined this topic in previous presentations. In fact, the site plan contemplates approximately 258,000 LESS Industrial square footage than allowed per the Specific Plan Amendment
b. Additionally, overall,this site plan is significantly less intense than allowed underthe Specific Plan Amendment resulting in 1,658 LESS daily trips.

See below from previous CREV presentation to Planning Commission and City Council. 661
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4. Claim 4: Traffic Circulation-CREV has not done anything to improve traffic circulationdesign. a. False-CREV has made many costly concessions to the Sun Lakes residents in order to alleviate concerns.

1. CREV removed developable land area to add a truck lane on Sun Lakes Village Dr. PER SUN LAKES’ REQUEST. Sun Lakes residents wanted this in order to reduce trucks driving across the community on Sun Lakes BLVD to enter the site on the east side.

2. CREV Extended left turn pocket on San Lakes BLVD to enter on Sun Lakes Village Dr. a) Added new signal light at the intersection

3. Sun Lakes Community Entrance
a) CREV added new 150’ left turn lane
b) CREV added new signal light atintersection
c) CREV added designated golf cart path and crossing to offer easy access to the shopping center for Sun Lakes residents.

The following diagram was also presented to the Planning Commission and Council. See next page… 663
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5. Claim 5: Air Pollution-The Project, specifically industrial, will exceed Air Emission Thresholds. a. False-CREV’s air quality analysis empirically proved this to be untrue. b. Result-Per the air quality engineers, the Project actually produces LESS emissions than SCAQMD thresholds in ALL SIX CATEGORIES.

The following diagram has also been presented at Planning Commission and Council. 665
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6. Claim 6: Air Pollution-The Project, produces greater Air Emissions (lbs./day) than alternativeuses. a. False-CREV’s air quality analysis empirically proved this to be untrue. b. Result-The Project was found to produce LESS emissions in 5 out of 6 categories.

Commercial/Retail use is shown to produce the highest emissions.

The following diagram has also been shown to City Staff, PC, and Council. 666
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7. Claim 7: Noise Pollution-The Project produces inordinate noise for adjacentowners. a. False-CREV also engaged engineers to study Noise Pollution based on the site plan. Based on location of buildings, building height, and high screen walls, the nearest noise sensitive receiver will experience “barely perceptible” noise level increase of less than 3 dBA Leq The following diagram has also been presented to Planning Commission and Council. 667
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Sun Lakes Highland, LLC

8. Claim 8: Financial Benefit-The Project does little to financially benefit the City of Banning both in the immediate future and in the long term.
a. False-DPFG’s Economic Benefit Analysis estimated in 2020 the Project would generate over $4,100,000 in short-term fee revenue and approximately $325,000/Year in recurring revenue to Banning and create over 700 full-time jobs at full build-out.

The following diagram has also been presented to Planning Commission and Council. 668
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9. Claim 9: Project History-Sun Lakes Residents and PAG claims that CREV has not attempted to pursue other land uses aside from industrial.
a. False- Vaulter (formally McRae Gomez Companies) purchased the property 13 years ago(2011). For the 1st 8 years of ownership all other uses besides industrial were pursuedthrough:
i. 4 different marketing strategies
ii. 3 national commercial brokerage/real estate marketing firms (Lee & Associates twice).

1. In one two-year period, the property was reviewed for housing & commercial retail (mixed-use) and was declined by nearly 70 major development companies
b. CREV even provided direct quotes from listing brokers during this time period.

The following diagram has also been presented to Planning Commission andCouncil. 669
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RESOLUTION 2024-149
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, (1) APPROVING TENTATIVE PARCEL MAP NO. 38164, ALLOWING THE SUBDIVISION OF APPROXIMATELY 47 GROSS ACRES OF VACANT LAND INTO THREE PARCELS; (2) AFFIRMING THE PLANNING COMMISSION’S APPROVAL OF DESIGN REVIEW NO. 21-7008

AND DENYING AN APPEAL OF THAT DECISION AND PERMITTING THE CONSTRUCTION OF A PROPOSED 619,959 SQUARE FOOT INDUSTRIAL WAREHOUSE BUILDING, INCLUDING 10,000 SQUARE FEET OF OFFICE SPACE AND A COMBINED 34,000 SQUARE

FEET OF RETAIL/COMMERCIAL BUILDINGS, ON REAL PROPERTY LOCATED WITHIN THE BOUNDARIES OF THE SUN LAKES VILLAGE NORTH SPECIFIC PLAN AREA (APN: 419- 140-057); AND (3) ADOPTING AN ADDENDUM UNDER THE CALIFORNIA

ENVIRONMENTAL QUALITY ACT (CEQA) AND MAKING FINDINGS IN SUPPORT THEREOF,

INCLUDING FINDING OF CONSISTENCY WITH THE CERTIFIED ENVIRONMENTAL IMPACT REPORT PREPARED FOR AMENDMENT NO. 5 TO THE SUN LAKES VILLAGE NORTH SPECIFIC PLAN (SCH # 2020029074)
WHEREAS, on December 8, 2020, the City Council certified the Final Environmental Impact Report (EIR) (SCH #2020029074) prepared for, and approved, Amendment No. 5 to the Sun Lakes Village North Specific Plan (SLVNSP) (Ordinance 1571 for Zone Change 20-3501).

Amendment No. 5 revised the Specific Plan Land Use Plan from Retail Commercial (Auto Dealer) to Business Park & Warehouse (BW), Office & Professional (OP), and Retail & Service (RS), and revised the permitted land uses, development standards (including maximum building height, setbacks, open space, landscaping, parking, and signage), and design guidelines for the development and implementation provisions of the SLVNSP; and WHEREAS, the EIR for Amendment No. 5 to the SLVNSP is now final, beyond challenge, and is conclusively presumed to comply with CEQA; and
WHEREAS, in furtherance of the interests of Sun Lakes Highland, LLC (Applicant), an application was submitted for approval of proposed Tentative Parcel Map No. 38164 (TPM 21- 4001) to subdivide approximately 47.11 acres of vacant real property into three commercial and industrial parcels, and for Design Review No. 21-7008, to construct a 619,959 square-foot industrial warehouse building with 10,000 square feet of office space, and six retail/commercial buildings totaling 34,000 square feet and associated utility, parking, roadway, and landscaping improvements (all together, the “Project”), on real property identified as APN 419-140-057; and WHEREAS, on October 19, 2021, and December 1, 2021, the Planning Commission conducted duly noticed public hearings on the Project, at which time interested persons had an opportunity to testify in support of or in opposition to the Project. At the conclusion of the public hearing on December 1, 2021, the Planning Commission adopted Resolution No. 2021-16, approving Tentative Parcel Map No. 38164 and approving Design Review No. 21-7008, including conditions of for approval of the Project. Pursuant to Banning Municipal Code Chapter 16.14, the Planning Commission’s decision has been interpreted by City Staff and the City Council as a recommendation to the City Council for approval of Tentative Parcel Map No. 38164; and WHEREAS, pursuant to Banning Municipal Code Section 17.68.100, three applications seeking to appeal the Planning Commission’s decision on the Project were received during the appeal period following the Planning Commission’s action; and 671
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WHEREAS, an appeal application was received from Golden State Environmental Justice Alliance and was subsequently rejected as being incomplete because it did not state the grounds or reasons for its appeal, did not request a specific action, and incorrectly described the project; and
WHEREAS, an appeal application was received from Supporters Alliance For Environmental Responsibility (SAFER), who subsequently withdrew its appeal on January 18, 2022, and announced its support for the Project; and
WHEREAS, on December 7, 2021, the law firm of Shute, Mihaly & Weinberger submitted an appeal on behalf of Appellant, Pass Area Action Group (PAG), and a three-page letter on behalf of Appellant, which was supplemented by a 428-page letter submitted via email on January 24, 2022 (the “Appeal”); and
WHEREAS, the public hearing on Tentative Parcel Map No. 38164 and the Appeal hearing on Design Review No. 21-7008 was scheduled for January 31, 2022, and in compliance with applicable law, the City provided public notice of the public hearing by advertising in the Record Gazette newspaper on January 21, 2022, and by mailing notices to all property owners within 1,000 feet of the subject site; and
WHEREAS, the City subsequently received requests from both Pass Area Action Group and the Applicant to continue the Appeal hearing to allow for additional time to review the materials related to the Project; and
WHEREAS, in recognition of the requests from both Appellant and Applicant for a continuance of the public hearing, at the regularly scheduled City Council meeting held on January 25, 2022, the City Council voted to cancel the Appeal hearing previously noticed January 31, 2022, and to reschedule the public hearing to February 17, 2022; and WHEREAS, the City provided public notice of the rescheduled public hearing on Tentative Parcel Map No. 38164 and the Appeal hearing on Design Review 21-7008 by advertising in the Record Gazette newspaper on February 4, 2022, and by again mailing (on February 3, 2022) notices to property owners within a 1,000-foot radius of the subject site; and WHEREAS, on February 17, 2022, the City Council of the City of Banning conducted a duly noticed public hearing on the Appeal, at which time all interested persons, including Appellant and Applicant, were given an opportunity to speak and to present both oral and written evidence in support of and in opposition to the Appeal. At the conclusion of the public hearing on February 17, 2022, the City Council adopted Resolution No. 2022-14, approving Tentative Parcel Map No. 38164, approving Design Review 21-7008 and denying the Appeal, including Conditions of Approval of the Project, and adopting an Addendum to the certified EIR prepared for Amendment No. 5 to the Sun Lakes Village North Specific Plan (SCH # 2020029074); and WHEREAS, on April 18, 2022, PAG filed a Petition for Writ of Mandate and Complaint for Injunctive Relief (“Petition”) with the Riverside County Superior Court (Case No. CVRI2201482), challenging the City of Banning’s approval of the Project; and WHEREAS, the lawsuit alleged that the City failed to provide a fair hearing due to alleged bias by Councilmembers Hamlin, Sanchez, and Wallace. The lawsuit also contended that the City violated CEQA and the City’s General Plan in approving the Project, and that the findings in support of the Project were not supported by substantial evidence; and 672
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WHEREAS, following briefing and a hearing on the merits, the trial court issued a ruling finding only that the City did not provide a fair hearing based on the court’s conclusion that thenCouncilmember Hamlin was biased in favor of the Project. The court rejected all claims of bias as to Councilmember Wallace and Councilmember Sanchez, stating in its ruling that “their statements do not overcome the presumption that they are unbiased. There has been no showing of a financial or personal interest in the Project and no specific evidence demonstrating actual bias or a particular combination of circumstances creating an unacceptable risk of bias….” The court also rejected in its entirety all of PAG’s substantive challenges, finding that the City fully complied with CEQA, that the Project is consistent with the City’s General Plan, and that the City’s findings were supported by substantial evidence, as discussed further below. As the court concluded in its ruling, the court “does not find that Petitioner [PAG] has carried its burden of proof on any remaining issue and would not grant the writ but for the fair hearing issue.”; and WHEREAS, the court entered judgment and issued a writ of mandate directing the City to set aside and vacate the prior approval and to reconsider the Project without the participation of Councilmember Hamlin; and
WHEREAS, the City provided public notice of a public hearing on the Project by advertising in the Record Gazette newspaper on June 28, 2024, and by mailing (on June 25, 2024) notices to property owners within a 1,000-foot radius of the Project site; and WHEREAS, on July 9, 2024, the City Council of the City of Banning conducted a duly noticed public hearing on the Project, at which time all interested persons, including Appellant and Applicant, were given an opportunity to speak and to present both oral and written evidence in support of and in opposition to the Project. Following the public hearing, City Council directed Staff to prepare a resolution for the City Council’s consideration at a later date that approves Tentative Parcel Map No. 38164 but denied Design Review 21-7008, and makes findings in accordance with CEQA; and
WHEREAS, on September 10, 2024, the City Council of the City of Banning continued their deliberation on the Project, at which time all interested persons, including Appellant and Applicant, were given an opportunity to speak and to present both oral and written evidence in support of and in opposition to the Project; and
WHEREAS, all legal prerequisites prior to the adoption of this Resolution have occurred; and
WHEREAS, the City Council has considered all information related to this matter, as presented at the public meetings of the City Council identified herein, including supporting reports by City Staff, written materials timely received by the City, and information provided during public meetings.

NOW THEREFORE, the City Council of the City of Banning does hereby resolve, determine, find, and order as follows:

SECTION 1: Recitals. This Council hereby specifically finds that all of the facts set forth in the Recitals above are true and correct, and are incorporated herein.

SECTION 2: Environmental Findings.

A. The Project has been reviewed in connection with the requirements of CEQA (Pub. 673
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Resources Code, § 21000\ et seq.) and the State CEQA Guidelines (14 C.C.R. § 15000 et seq.). Based upon all of the applications, plans, submittals, and evidence presented to the Planning Commission on October 19, 2021 and December 1, 2021, the additional submittals from the Appellant and the Applicant, the City Council public hearing held on July 9, 2024, and the City Council’s continued deliberation on September 10, 2024 (including written and oral staff reports and supporting documentation, together with public testimony), and in the exercise of its independent judgment based upon the whole of the record and the evidence presented to it, this Council hereby specifically finds and concludes, as provided in the succeeding subsections of this Section 2, as follows with respect to environmental review related to the Project.

B. The EIR prepared for Amendment No. 5 to the SLVNSP analyzed the potential development of 877,298 square feet of industrial and warehouse uses, 52,065 square feet of medical office uses, and 37,189 square feet of retail uses. The EIR analyzed the potential environmental impacts from this type of development in the areas of: aesthetics, air quality, biological resources, cultural resources, energy, geology and soils, greenhouse gas emissions, hydrology and water quality, land use and planning, noise, transportation, tribal cultural resources, and utilities and service systems. The EIR concluded that Amendment No. 5 to the SLVNSP had the potential to result in a net increase of building square footage and that certain air quality, greenhouse gas emissions, and traffic impacts would be significant and unavoidable even after the imposition of mitigation and regulatory compliance. The City Council determined that the benefits of Amendment No. 5 outweighed the Amendment’s environmental impacts, and adopted a Statement of Overriding Considerations on December 8, 2020. The EIR was certified on December 8, 2020, and was never challenged. It is now final, beyond challenge, and conclusive in all respects.

C. Amendment No. 5 to the SLVNSP was adopted on December 8, 2020, by way of City Council Resolution No. 2020-141. Its text was added into the City’s Zoning Code portion of the Municipal Code by way of Ordinance No. 1571, which was introduced on December 8, 2020, adopted on January 12, 2021, and became effective on February 11, 2021. It was never challenged and is now final, beyond challenge, and in effect for all purposes.

D. The Project proposes a smaller development than that analyzed in the EIR. The Project proposes 619,959 square feet of industrial use (split between 75% [or 464,969 square feet] of high-cube fulfillment center warehouse use and 25% [or 154,990 square feet] of highcube cold storage warehouse use), and 34,000 square feet of retail uses, along with associated utility, parking, roadway, and landscaping improvements. The Project does not include development of any of the office uses analyzed in the EIR.

E. The Project is found to be consistent with the Multi-Species Habitat Conservation Program (MSHCP). The Project is located outside of any MSHCP criteria area and mitigation is provided through payment of the MSHCP Mitigation Fee.

F. The mitigation measures imposed as part of the prior EIR remain valid and applicable to the Project and are identified in the Mitigation Monitoring and Reporting Program, Section 5, Pages 97 through 109 of the Banning Point/Sun Lakes Village North Specific Plan EIR Addendum/Consistency Checklist. The same benefits described in the Statement of Overriding Considerations for Amendment No. 5 to the SLVNSP remain applicable to the Project.
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G. The prior EIR, which was a “Program EIR,” has been reviewed to determine if the Project is within the scope of what was analyzed in the EIR. Based on this review and analysis, an Addendum/Consistency Checklist, entitled “Banning Point Addendum to the Sun Lakes Village North Specific Plan Amendment No. 5 Environmental Impact Report” (updated version dated February 10, 2022) (“Addendum”) has been prepared pursuant to Public Resources Code Section 21166 and CEQA Guidelines Sections 15162, 15164, and 15168(c). CEQA Guidelines Section 15164(a) provides that the lead agency “shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in Section 15162, calling for preparation of a subsequent EIR, have occurred.” CEQA Guidelines Section 15164(c) further provides that an “addendum need not be circulated for public review but can be included in or attached to the final EIR” and CEQA Guidelines Section 15164(e) provides that a “brief explanation of the decision not to prepare a subsequent EIR pursuant to Section 15162 should be included” in the addendum, the agency’s findings, or elsewhere in the administrative record.

H. The Addendum evaluated the Project’s potential environmental effects in light of those effects previously disclosed in the prior EIR to determine whether any of the conditions described in CEQA Guidelines Section 15162 calling for subsequent CEQA review have occurred.

I. The City Council has considered whether additional environmental review is required for the Project beyond what was analyzed and disclosed in the now-final EIR and in the Addendum. All environmental impacts of Amendment No. 5 to the SLVNSP (including those impacts related to the development of industrial and warehouse uses and retail uses, such as those proposed by the Project) were analyzed, disclosed, and mitigated as set forth in the EIR (SCH# 2020029074) that was certified on December 8, 2020; this conclusion is supported by the detailed Addendum and its supporting technical reports and data. Therefore, any potential environmental impacts resulting from the types of land development proposed by the Project already have been analyzed and disclosed in the certified EIR that is now final in all respects and is beyond challenge. Furthermore, a subsequent EIR is not required as discussed below.

J. Public Resources Code Section 21166 and the corresponding CEQA Guidelines Section 15162 provide that no subsequent EIR shall be prepared for a project unless, on the basis of substantial evidence in the light of the whole record, “major revisions” of the EIR are needed to reflect (i) substantial changes to the project involving new significant environmental effects or a substantial increase in the severity of previously identified significant effects; (ii) substantial changes to the circumstances under which the project is undertaken involving new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or (iii) new information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete, showing that the project will have one or more significant effects not discussed in the previous EIR, or significant effects previously examined will be substantially more severe than shown in the previous EIR, or mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative, or mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant 675
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effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. At this point in the process, “in-depth review has already occurred, the time for challenging the sufficiency of the original EIR has long since expired, and the question is whether circumstances have changed enough to justify repeating a substantial portion of the process.” (Bowman v. City of Petaluma (2008) 185 Cal.App.3d 1065, 1073- 1074.) As a result, any issues with the earlier EIR that were raised or could have been raised are barred from further consideration. (Comm. for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 50.)
K. No information has been presented to the City demonstrating that any of the criteria set forth in Public Resources Code Section 21166, or CEQA Guidelines Sections 15162 or 15163, are present.
(1) No information has been presented to the City to demonstrate that any substantial changes have occurred with respect to the Project involving new significant environmental effects or a substantial increase in the severity of previously identified significant effects. Rather, the Project proposes the same type of land uses analyzed in the EIR and approved as part of Amendment No. 5 to the SLVNSP, but it is smaller in scope. The Project therefore serves to implement the vision for the commercial and industrial core of Highland Springs Avenue and the Interstate 10 freeway, which is described in detail within Amendment No. 5 to the SLVNSP, and is consistent the land use envisioned in the SLVNSP and its accompanying EIR. Furthermore, the Addendum comprehensively analyzed the Project in comparison to the EIR in each environmental impact area and concluded that there are no new or substantially greater impacts than those previously disclosed, analyzed, and mitigated (to the extent feasible) in the EIR. The City Council finds that the Addendum, including its supporting technical reports, constitutes substantial evidence in support of this conclusion. (2) No information has been presented to the City to demonstrate that any substantial changes have occurred with respect to the circumstances under which the Project is undertaken involving new significant environmental effects or a substantial increase in the severity of previously identified significant effects. The Project remains consistent with the project described in the prior EIR for Amendment No. 5 to the SLVNSP and is smaller in scope than the development anticipated in that document and approved in Amendment No. 5 to the SLVNSP. There have been no changes to the SLVNSP area that would alter the ability of the Project to remain consistent with the SLVNSP and the environmental impacts analyzed in the prior EIR.
(3) No information has been presented to the City to demonstrate that there is any new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete showing that the Project will have any significant or more severe effects than those discussed in the prior EIR, or that additional mitigation measures or alternatives would substantially reduce any significant effects on the environment disclosed in the prior EIR. No information, let alone substantial evidence, has been presented to suggest that the current Project has environmental impacts beyond those previously analyzed, disclosed, and mitigated as set forth in the EIR. No information regarding any purported greater 676
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environmental impacts, or the need for additional mitigation or alternatives, has been presented.
(4) The court concurred with the conclusions above in Paragraphs (K)(1)-(3) of this Section 2. As the court stated in its ruling, “There is no dispute but that the differences between the original project [that described in Amendment No. 5 to the SLVNSP] and the current version of the Project do not result in new significant environmental impacts. Indeed, the current version of the Project is significantly smaller than the original project.” The court thus found that “substantial evidence supported the City’s decision … to prepare an addendum instead of a supplemental or subsequent EIR for the Project.”
L. The Appellant’s contention in its January 24, 2022, letter that preparation of a programlevel EIR for Amendment No. 5 to the SLVNSP was not proper is a time-barred attack on that EIR. The EIR was never challenged and is lawful, valid, and conclusive for all purposes. Furthermore, the SLVNSP is a Specific Plan and therefore is a legislative enactment and environmental review at the program, or plan, level was appropriate.

M. The Appellant’s contention in its January 24, 2022, letter that the Project constitutes a “new” project not within the scope of that studied in the EIR is unfounded. As shown in the Addendum, and its supporting technical reports in the areas of air quality, greenhouse gas emissions, health risk assessment, trip generation memorandum, and vehicle miles traveled (VMT) analysis, Project impacts are not greater or more impactful than previously disclosed, analyzed, and approved in connection with Amendment No. 5 to the SLVNSP, including considering the addition of 154,990 square feet of high-cube cold storage warehouse use within the overall 619,959 square feet of industrial use. The Addendum and its supporting documentation expressly considered the use of high-cube cold storage industrial uses and found impacts to be within the scope of those analyzed in the EIR. The City Council expressly finds that the analysis contained in the Addendum and its supporting technical reports is credible, supported by facts, and constitutes substantial evidence.

N. The Appellant’s contention in its January 24, 2022 letter that the EIR’s analysis in the areas of transportation, air quality, greenhouse gas emissions, and noise is insufficient to apply to the Project is unfounded. The City Council finds that several of Appellant’s contentions, including those set forth in the technical memoranda attached to their letter, are unfounded; rely on flawed assumptions (including but not limited to those related to horsepower, emission factors, and trip generation rates) leading to incorrect conclusions; are speculative (such as unsupported assumptions about the use of emergency diesel generators); or amount at most to a disagreement among experts, including over issues such as trip generation and trip lengths that were settled in the EIR and are now beyond challenge. A disagreement among experts is not a sufficient reason to set aside an EIR and a lead agency such as the City may choose to accept the determinations and conclusions in the EIR if they are supported by substantial evidence. (CEQA Guidelines Section 15151.) The City Council further finds that other of Appellant’s contentions, such as that no vehicle miles traveled (VMT) analysis or noise impacts analysis have occurred, are factually incorrect and therefore lack foundation. The City Council also finds that other contentions, including those regarding the efficacy of mitigation measures imposed as part of Amendment No. 5 to the SLVNSP and its accompanying EIR, are time-barred and an impermissible collateral attack on the prior EIR. The City Council expressly finds that substantial evidence supports the conclusions in the certified EIR, and that no new 677
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information has been presented to invalidate these conclusions.

O. The Appellant’s contention in its January 24, 2022 and August 29, 2024, letters that a new cumulative impacts analysis was required is incorrect. The prior EIR included a cumulative impacts analysis; no such analysis is also required as a separate, standalone component of a determination that a subsequent EIR is not required.

P. The Appellant’s contention in its January 24, 2022, letter that the City was required to separately notify South Coast Air Quality Management District (SCAQMD) and the California Air Resources Board of the Project is incorrect. There is no obligation to notify other public agencies of an addendum or a determination that a project does not require additional environmental review. Furthermore, other public agencies were properly notified of the preparation of the prior EIR and then subsequently had the opportunity to comment on it. SCAQMD provided a comment on the notice of preparation of the EIR and then did not submit any comments on the EIR.

Q. The City Council finds, in the exercise of its independent judgment and based on substantial evidence in the whole of the record, that no further environmental review is required, including pursuant to Public Resources Code Section 21166, or CEQA Guidelines Sections 15162 or 15163, because (i) the Project will not have new or substantially more severe impacts than what was disclosed in the EIR; (ii) all applicable mitigation measures in the EIR remain applicable to the Project and are imposed on the Project as a condition of approval; and (iii) the Project will not require any new mitigation measures, all as documented in the Addendum. The Addendum and its supporting technical reports and memoranda constitute substantial evidence in support of the City Council’s conclusion and findings. The City Council hereby adopts the Addendum.

R. The Community Development Director shall cause to be a filed a Notice of Determination for the Project in accordance with CEQA.

S. The custodian of records for the documents that constitute the record of proceedings upon which the City Council’s decision is based is the City Clerk of the City of Banning. Those documents are available for public review in the Planning Division located at 99 E. Ramsey Street, Banning, California, 92220.

SECTION 3: Tentative Parcel Map Findings. Subsection (B) of Section 16.14.050 of the Banning Municipal Code provides that any action taken by the City Council with respect to Tentative Parcel Map No. 38164 shall be supported by the findings required by Sections 66427.1, 66473.5, 66474, 66474.1 and 66474.6 of the California Government Code and Section 21100 of the California Public Resources Code.

A. Applicable Findings. The City Council finds that Sections 66427.1 does not apply because this Project does not involve the conversion of residential real property into a condominium project, a community apartment project, or a stock cooperative project. The City Council also finds that Section 66474.1 does not apply because the City Council’s action in this matter relates to a Tentative Parcel Map and not a Final Parcel Map. The City Council finds that the other sections noted in the introductory paragraph of this Section do apply to Tentative Parcel Map No. 38164. The following subsections are intended to provide the required findings in accordance with Government Code Sections 66473.5, 66474, and 66474.6 and Public Resources Code Section 21100. 678
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B. Tentative Parcel Map No. 38164 is consistent with the goals, policies and programs of the City’s General Plan and with the Sun Lakes Village North Specific Plan Amendment No. 5.
(1) The General Plan land use designations for the site are General Commercial and Business Park with a Specific Plan Overlay. The Specific Plan designations for the site are Business & Warehouse District and Retail and Service District. The Community Development Element of the General Plan provides that Specific Plan land use designations become the General Plan overlay land use designations in the Specific Plan area.
(2) Tentative Parcel Map No. 38164 will divide the existing 47.11-acre property into three parcels consistent with the land uses proposed to be developed on the site and consistent with the General Plan and Specific Plan land use designations, as more fully explained in the succeeding subsections below. The subsections provided in this Subsection (B) provide the findings required by Government Code Sections 66473.5 and 66474(a).
(3) The proposed Project consists of the development of an industrial warehouse building of 619,959 square feet of gross floor area, which includes 10,000 square feet of office and a separate parcel containing six (6) retail/commercial buildings totaling 34,000 square feet to the south varying in size from 1,600 square feet to 8,400 square feet.
(4) The Community Development Element of the General Plan contains goals, policies, and programs for the development of industrial, commercial, and residential uses. With respect to the industrial uses, the General Plan specifies the general goal that “A balanced mix of non-polluting industrial land uses which provide local jobs for the City’s residents.” The Project will provide a non-polluting industrial use and provide jobs for City residents. Specifically, the industrial portion of the Project is not an industrial factory and the uses within the buildings and the warehouse operation are subject to several mitigation measures that require the use of electrical hookups at loading docks (AQ- 3), truck idling limitations (AQ-4), the use of electric or natural gas service equipment to reduce fuel consumption and emissions (AQ-5) and a minimum of three (3) electric-vehicle charging stations. In addition, other mitigation measures are imposed on the Project during the grading and construction of the site, including the use of low VOC paint (AQ-1) and limitations on grading activities to ensure emissions do not exceed SCAQMD’s significance thresholds. With these mitigation measures, the Project will not exceed local significance thresholds for emissions and ensure that the Project satisfies the non-polluting goal for industrial uses as provided in the General Plan. (5) The Community Development Element of the General Plan contains several policies applicable to industrial development projects including: Policy 6 that provides that the land use map shall include sufficient industrial lands for manufacturing, warehousing and distribution, while carefully considering compatibility with adjacent lands; Policy 8 that provides that industrial lands shall be located on major roadways with good access to Interstate 10, to assure that potential traffic impacts associated with tractor-trailers are minimized; and Policy 10 that provides that the Zoning Ordinance shall include principles, design standards and guidelines which encourage development of high quality industrial 679
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projects.” The Project is consistent with Policy 6 because the size of the portion of the site designated for business and warehouse uses is relatively large (30.22 acres) and is appropriately located immediately adjacent to the I-10 freeway and the Southern Pacific Railroad line to the north of the Project site. In addition, the warehouse use is located on the portion of the site that will be screened and buffered from residential uses to the south and east by the retail and service buildings to be located in the Retail and Services District that exists between the residential uses in Sun Lakes to the south of Sun Lakes Boulevard and the industrial building and by the Office and Professional District uses in the future that will exist between the warehouse uses and the residential and assisted living uses to the east of the Project site. The Project is consistent with Policy 8 because it will be immediately adjacent to Interstate 10 on the north, and the lot configuration and access points into and out of the site are designed to provide for the minimum amount of travel distance on Sun Lakes Boulevard to Highland Springs Avenue and then onto Interstate 10 and eventually from Sun Lakes Boulevard to the Sunset Avenue and onto Interstate 10 when the Sun Lakes Boulevard extension is completed. Finally, the Project, as more fully explained in connection the Project’s consistency with the Specific Plan includes a variety of design elements, setbacks, landscaping features that will provide a high quality industrial project. (6) The Economic Development Element of the General Plan provides the goal for a balanced, broadly based economy that provides a full range of economic and employment opportunities, while maintaining high standards of development and environmental protection. The Project will increase the availability of job opportunities for not only warehouse employees but also retail and service based business opportunities. The Applicant has asserted that the Project would create as many as 722 local jobs in the City of Banning. The proposed development and buildings will improve the City’s property tax base, boost sales tax, provide jobs and revenue for the City’s economy. The Applicant has asserted that the Project would generate approximately $4,119,780 to the City in Development Impact Fees and as much as $325,000 in annual tax revenues to the City. The Project is also consistent with the following applicable Economic Development Element Policies:

Policy 2 for the City to take a proactive role in the recruitment of new businesses that will generate and broaden employment opportunities, increase discretionary incomes and contribute to City General Fund Revenues; Policy 3 to encourage infill development that will increase the efficiencies of new utilities, infrastructure and public services; and Policy 9 which require development to be responsible for its fair share of on-site and off-site improvements. The Project will provide physical space for a large business or businesses to conduct warehouse uses in the City and spaces for up to six new retail and service uses to serve the immediate community and the City. These new businesses will provide a wide range of different job opportunities from warehouse jobs to office, retail and services jobs and thereby create the diverse job opportunities in the City that will provide opportunities for residents to find new jobs to increase their discretionary incomes.

Overall, through property tax, economic activity and job creation, the Project is anticipated to contribute to the City’s General Fund revenues in an amount of approximately $325,000 per year. The Project is an infill project using a longstanding vacant site for land uses on lots configured and planned to be appropriately sited between other existing uses and already served by existing streets, utilities and infrastructure. Finally, the project includes design features to 680
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ensure all on-site amenities consistent with the City’s development standards are paid for by the applicant and that fair share contributions in the form of payment of the City’s applicable development impact fees are collected from the development.
(7) The Sun Lakes Village North Specific Plan Amendment No. 5 specifies Guiding Objectives for the development in the Specific Plan Area. Those Objectives are as follows: (1) Allow for a range of land uses that reflects current market conditions given the trend away from brick-and-mortar retail; (2) Respond to an increase in ecommerce, especially driven by the coronavirus pandemic; (3) Promote highquality development to safeguard the existing asset of Sun Lakes Country Club and other development in the vicinity; (4) Locate and design truck courts and semi-truck circulation to minimize impacts on surrounding land uses and development; and (5) Expand access to restaurants, shopping, and services for the nearby Sun Lakes Country Club Community. The proposed Project accomplishes all these Objectives by reflecting current real estate market trends toward more e- commerce uses which necessarily includes warehouse uses as a key component of the supply chain required for the storage, shipping and availability of e-commerce goods. The lot configuration locates truck courts and semi-truck circulation towards the interior and northerly portion of the site next to the Southern Pacific Railroad line and Interstate 10 and away from the residential uses in the Sun Lakes Country Club.

The design elements and project conditions will ensure that the landscape features and design elements projects a high quality development to safeguard the quality of development within the Sun Lakes Country Club community. Finally, the Project will provide up to six sites and buildings for restaurants, shopping and services for the Sun Lakes Country Club Community within the Retail and Service District of the Project site that is located immediately north of Sun Lakes Boulevard and convenient to that Community.
(8) Tentative Parcel Map No. 38164 is consistent with the following goals, policies, and/or programs of the Noise Element of the City’s General Plan:
(a) Policy 1 states that the City shall protect noise sensitive land uses, including residential neighborhoods, from potentially significant sources of community noise. The certified Program Environmental Impact Report (“PEIR”) prepared for the Sun Lakes Village North Specific Plan Amendment No. 5 (“SLVNSP”) states that the maximum base ambient noise level in Municipal Code Section 8.44.050 applicable to the Project is 75 dB(A) while existing ambient noise levels in the vicinity of the site range from 60.4 to 66.2 dB(A). The PEIR determined that construction noise from the Project site could be significant for the closest noise sensitive uses, which are the single-family homes located east of the Office & Professional District of the SLVNSP planning area and the senior apartments/assisted living/memory care residential facility located east of the planning area. The PEIR recommended Mitigation Measure NOI-1 to reduce this impact to less than significant levels. To minimize noise impacts of the proposed Tentative Parcel Map No. 38164, the applicant has been conditioned to implement Mitigation Measure NOI-1. PEIR Table 4.10-5 demonstrates that the proposed Tentative Parcel Map No. 38164 would not have significant operational traffic-related noise impacts on surrounding land uses.
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(b) Program 1.B. states that the City shall maintain and enforce its Noise Control Ordinances that establish community-wide noise standards and identify measures designed to resolve noise complaints. The applicant has been conditioned to comply with the City’s noise ordinances. (9) The design and improvement of the subdivision proposed under Tentative Parcel Map No. 38164 is consistent with the Noise Element of the City’s General Plan. (a) Program 1.A. states that the City shall require building setbacks, the installation of wall and window insulation, soundwalls, earthen berms, and/or other mitigation measures in areas exceeding the City’s noise limit standards for private development projects as they occur. As indicated in Table 13 (Operational Noise Level Compliance) of the Urban Crossroads Noise Study prepared for PEIR Addendum/Consistency Analysis, the proposed Tentative Parcel Map No. 38164 will not exceed the City’s noise limit standards for private development projects.
(b) Policy 4 states that the City shall assure low levels of traffic within neighborhoods by assigning truck routes to major roadways only. The proposed Project will construct two (2) new access driveways on Sun Lakes Boulevard, which will be constructed to meet City standards and will have direct access to/from Interstate 10 via Highland Springs Avenue, a major roadway. The future extension of Sun Lakes Boulevard to the east may also provide for future access to/from Interstate 10 via Sunset Avenue, another major roadway. Exhibit 4 from the Urban Crossroads Traffic Assessment for the project, below, indicates truck trip distribution based on current truck route conditions:
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C. The design and improvement of the subdivision proposed under Tentative Parcel Map No. 38164 is consistent with the City’s General Plan and the Sun Lakes Village North Specific Plan Amendment No. 5.
(1) The Tentative Parcel Map covers an area of approximately 47.11 acres and proposes to divide that area into three parcels to be consistent with the proposed land uses to be allowed on each of those parcels. Based on the findings contained in the subsections below, the design and improvement of the subdivision is consistent with the General Plan and the Sun Lakes Village North Specific Plan Amendment No. 5. The findings in the following subsections are intended to provide the analysis for approval of the Tentative Parcel Map under Government Code Section 66474 (b).
(2) The largest proposed parcel is 30.22 acres and is in the northwestern portion of the Map and is adjacent to backside of the Sun Lakes Village Shopping Center, the Southern Pacific Railroad and the Interstate-10 Freeway. This parcel is proposed for a warehouse building of approximately 619,959 square feet along with associated truck parking, loading, landscaping and other uses. The design of the subdivision to locate this large parcel closest to the Southern Pacific Railroad line and to Interstate 10 and then have this parcel improved with a warehouse and associated uses is consistent with the General Plan Policies 7 of the City’s Industrial Land Use Goal which provides that there shall be sufficient lands for manufacturing, warehousing and distribution, while carefully considering compatibility with adjacent lands. Creating a parcel of 30.22 acres sufficient to accommodate the proposed warehouse building while at the same time placing that parcel closest to commercial uses to the west, a railroad line and Interstate 10 to the north, a future office building to the east and a new grouping of commercial retail and service buildings to the south, allows for the warehousing proposed uses farthest away from residential uses to the south and complies with this Policy of carefully considering compatibility with adjacent land uses. In addition, designing this subdivision to accommodate a warehouse building is consistent with Policy 8 which provides that industrial lands shall be located on major roadways with good access to Interstate 10, to assure that potential traffic impacts associated with 683
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tractor- trailers are minimized. The design provides for access into and out of the site from Sun Lakes Boulevard to Highland Springs Avenue and onto Interstate 10. (3) The second largest parcel is approximately 10.06 acres and is located on the eastern portion of the side and adjacent to an assisted living facility and residential units designed on smaller lots that are part of the Sun Lakes Country Club active adult/golf course community. On this lot, offices and professional uses are intended to be located but no development is currently proposed. This parcel is sufficient in size in terms of depth and width to accommodate a variety of building configurations that could be proposed on the site and meet all required development standards as set forth in Table 2 of the Sun Lakes Village North Specific Plan Amendment No. 5.
(4) The third and smallest parcel is approximately 6.83 acres and is located on the southern edge of the Map and adjacent to Sun Lakes Boulevard. On this lot, retail stores, restaurants and service uses are proposed as contemplated by the Sun Lakes Village North Specific Plan Retail and Service District designation for the site. This lot design will provide for up to six separate retail and service uses to not only serve the needs of the residential neighborhood to the south, but also provide a buffer and screen between those residential uses and the warehouse building north of that parcel.
(5) The Tentative Parcel Map is designed to meet City standards which provide satisfactory pedestrian and vehicular circulation, including emergency vehicle access. Specifically, Section 2.2.1.(Semi-Truck Access) of the Specific Plan identifies Sun Lakes Village Drive as an access point for semi-trucks to the Business & Warehouse District. Currently, the Sun Lakes Village Shopping Center utilizes Sun Lakes Village Drive for truck deliveries in both eastbound and westbound directions. Project’s access points along Sun Lakes Boulevard have been evaluated and necessary driveway widening, adequate truck maneuvering, and signalized intersections have been provided as conditions of approval (See Street Improvement/Right of Way Conditions of approval, including Condition 27.) Additionally, the Project is located near Interstate 10 freeway which allows for ideal access to industrial-type lands and helps minimize potential traffic impacts, which is consistent with General Plan Policy Nos. 8 for the Industrial Goal of the Community Development Element.

D. The subject site is physically suitable for the type of development proposed under Tentative Parcel Map No. 38164.
(1) The Tentative Parcel Map covers an area of approximately 47.11 acres and proposes to divide that area into three parcels to be consistent with the proposed land uses to be allowed on each of those parcels. Based on the findings contained in the subsections below, the site contained within the boundaries of the Tentative Parcel Map is physically suitable for the type of development proposed pursuant to Tentative Parcel Map No. 38164. The findings in the following subsections are intended to provide the findings required by Government Code Section 66474(c). (2) The largest proposed parcel is 30.22 acres and is in the northwestern portion of the Map and is adjacent to backside of the Sun Lakes Village Shopping Center, the Southern Pacific Railroad and the Interstate-10 Freeway. This parcel is 684
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approximately 1,316,349 square feet in size, exceeds the minimum parcel size of 10,000 square feet, has a lot depth of 876 feet that exceeds the minimum required depth of 100 feet, has a lot width of 1,270 feet which exceeds the minimum lot width of 70 feet, and is large enough to accommodate the proposed development of a 619,959 square-foot warehouse building with associated truck access and parking areas, loading docks, employee parking and landscape areas. The proposed floor area ratio will be 47% of the site and less than the 55% maximum allowed for the parcel. The development will be set back 10 feet from the north and west property lines of the site, consistent with required development standards, and allow for building setbacks to far exceed the required setbacks from the rear (185 feet when 20 feet is required) the side (70 feet when 20 feet is required) and front (185 feet when 20 feet is required). The parcel is also sufficient to provide for 402 parking spaces when 360-362 parking spaces are required by the Specific Plan and Banning Municipal Code Chapter 17.28.
(3) The second largest parcel is approximately 10.06 acres and is located on the eastern portion of the side and adjacent to an assisted living facility and residential units designed on smaller lots that are part of the Sun Lakes Country Club active adult/golf course community. On this lot, offices and professional uses are intended to be located but no development is currently proposed. This parcel is sufficient in size in terms of depth and width to accommodate a variety of building configurations that could be proposed on the site and meet all required development standards as set forth in Table 2 of the Sun Lakes Village North Specific Plan Amendment No. 5.
(4) The third and smallest parcel is approximately 6.83 acres and is located on the southern edge of the Map and adjacent to Sun Lakes Boulevard. On this lot, retail stores, restaurants and service uses are proposed. This parcel is approximately 297,492 square feet in size, exceeds the minimum parcel size of 6,000 square feet, has a lot depth of 200 feet that exceeds the minimum required depth of 100 feet, has a lot width of 1,300 feet which exceeds the minimum lot width of 60 feet, and is large enough to accommodate the proposed development of six commercial buildings ranging size from 1,600 square feet to 8,400 square feet for a total of 34,000 square feet, along with associated utility, parking roadway, and landscaping improvements. The proposed floor area ratio will be approximately 11% of the site and less than the 60% maximum allowed for the parcel. The development will satisfy the 20 foot and 10-foot landscape setbacks from Sun Lakes Boulevard and the west project boundary, respectively, and allow for building setbacks to exceed the required setbacks from the rear (30 feet when 20 feet is required) the side (80 feet when 20 feet is required) and front (100 feet when 10 feet is required).

The parcel is also sufficient to provide for 289 parking spaces (16 for the drive-thru and 273 for the retail) when a total of 146 are required by the Specific Plan. (5) All three of the parcels are relatively flat and are designed to take vehicular access from access points along Sun Lakes Boulevard that are adequate in location, design and configuration for truck traffic into and out of the warehouse parcel, the office parcel and the retail and service use parcel. All three parcels are adjacent to Sun Lakes Boulevard to provide water, sewer and electricity to the site.

E. The site is physically suitable for the proposed-density of development under Tentative Parcel Map No. 38164.
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(1) As noted in the preceding section D above, the Tentative Parcel Map covers an area of approximately 47.11 acres and proposes to divide that area into three parcels to be consistent with the proposed land uses to be allowed on each of those parcels. Based on the findings contained in the subsections below, the site contained within the boundaries of the Tentative Parcel Map is physically suitable for the density of development proposed pursuant to Tentative Parcel Map No. 38164. The findings in the following subsections are intended to provide the findings required by Government Code Section 66474(d).
(2) The largest proposed parcel is 30.22 acres and is in the northwestern portion of the Map and is adjacent to backside of the Sun Lakes Village Shopping Center, the Southern Pacific Railroad and the Interstate-10 Freeway. This parcel is approximately 1,316,349 square feet in size and is large enough to accommodate the proposed development of a 619,959 square- foot warehouse building with associated truck access and parking areas, loading docks, employee parking and landscape areas. The proposed floor area ratio will be 47% of the site and less than the 55% maximum allowed for the parcel. The development will include landscape setbacks 10 feet from the north and west property lines of the site, consistent with required development standards, and allow for building setbacks to far exceed the required setbacks from the rear (185 feet when 20 feet is required) the side (70 feet when 20 feet is required) and front (185 feet when 20 feet is required). The parcel is also sufficient to provide for 402 parking spaces when 360-362 parking spaces are required by the Specific Plan and Banning Municipal Code Chapter 17.28. By achieving or exceeding all development standards, the density of the proposed development is suitable for the proposed site.
(3) The second largest parcel is approximately 10.06 acres and is located on the eastern portion of the side and adjacent to an assisted living facility and residential units designed on smaller lots that are part of the Sun Lakes Country Club active adult/golf course community. On this lot, offices and professional uses are intended to be located but no development is currently proposed. This parcel is sufficient in size in terms of depth and width to accommodate a variety of building configurations that could be developed up to the 60% floor area of the site allowed on the parcel and large enough so that it could meet all required development standards as set forth in Table 2 of the Sun Lakes Village North Specific Plan Amendment No. 5.
(4) The third and smallest parcel is approximately 6.83 acres and is located on the southern edge of the Map and adjacent to Sun Lakes Boulevard. On this parcel, retail stores, restaurants and service uses are proposed. This parcel is approximately 297,492 square feet in size and is large enough to accommodate the proposed development of six commercial buildings ranging size from 1,600 square feet to 8,400 square feet for a total of 34,000 square feet, along with associated utility, parking roadway, and landscaping improvements. The proposed floor area ratio will be approximately 11% of the site and less than the 60% maximum allowed for the parcel. The development will satisfy the 20 foot and 10- foot landscape setbacks from Sun Lakes Boulevard and the west project boundary, respectively, and allow for building setbacks to exceed the required setbacks from the rear (30 feet when 20 feet is required) the side (80 feet when 20 feet is required) and front (100 feet when 10 feet is required). The parcel is also sufficient to provide for 289 parking spaces (16 for the drive-thru and 273 for the retail) when a total of 686
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146 are required by the Specific Plan.

F. The design of the subdivision and improvements proposed under Tentative Parcel Map No. 38164 are not likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. (1) As previously discussed in the findings contained in Subsection B of this Section 3, Tentative Parcel Map No. 38164 is consistent with the Sun Lakes Village North Specific Plan Amendment No. 5. That Specific Plan was analyzed in the previously certified EIR for the Sun Lakes North Specific Plan Amendment No. 5. As previously discussed in Section 2 of this Resolution, which findings are incorporated herein by this reference as if fully set forth herein, and as demonstrated by the Addendum referred to in that Section, the EIR disclosed and evaluated all potential environmental impacts related to the development of the Project site with the current land uses. The EIR found no significant and unavoidable impacts to any biological resources, and the Addendum found that no new or substantially greater impacts would occur pursuant to the Project. A condition of the Tentative Map approval imposes all mitigation measures set forth in the Mitigation Monitoring and Reporting Program that was adopted with the Sun Lakes Village North Specific Plan Amendment No. 5. Based on the imposed mitigation measures, the environmental impacts arising from the design and improvement of the Tentative Parcel Map will be mitigated to a level less than significance to not cause substantial environmental damage within the meaning of subsection (e) of Government Code Section 66474 and Public Resources Code Section 21100.
(2) The site is currently vacant and does not contain any significant vegetation or habitat for wildlife. The site is not located within any Multiple Habitat Conservation Plan (MSHCP) Criteria Cell or subunit which indicates that this site contains no endangered, threatened, or listed species of plant or animal, or its habitat, on the site. The site is not mapped within an area where additional surveys are required for any amphibian, mammal or other criteria species. There is no evidence that vernal pool complex, similar bodies of water, or conditions suitable for forming such bodies of water exist on the site. The site is not within or adjacent to any MSHCP Conservation Areas. The site is mapped within a Borrowing Owl required habitat and a pre-construction Burrowing Owl Survey and a Nesting Bird Survey are imposed as mitigation measures for this Project (BIO-1 and BIO-2). Finally, the site is mapped within a Narrow Endemic Plant Species required habitat suitability assessment survey area and an assessment was performed that determined that the site did not provide suitable habitat for the San Diego ambrosia, Brand’s phacelia and the San Miguel Savory. In addition, the site does not show any existing trees on site, but even it if did, BIO-3 would require replacement of such trees. Therefore, based on these findings and with the imposition of BIO-1 through BIO-3, potential impacts to biological resources will be mitigated to less than significance so as not to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat within the meaning of subsection (e) of Government Code Section 66474 and Public Resources Code Section 21100.

G. The design of the subdivision and improvements proposed under Tentative Parcel Map No. 38164 are not likely to cause serious health problems. 687
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(1) Based on the warehouse building proposed to be developed on the site, and pursuant to Mitigation Measure AQ-7,a diesel health risk assessment was prepared which is attached to the Addendum document as Appendix B to that document.

That analysis evaluated the potential mobile source health risk impacts to receptors (residents or workers) associated with the development of the Project. Health risk exposures were modeled in accordance with the guidelines in the SCAQMD’s Health Risk Assessment Guidance for Analyzing Cancer Risks from Mobile Source Diesel Idling Emissions for CEQA Air Quality Analysis. SCAQMD recommends using the Environmental Protection Agency’s (U.S. EPA’s) AERMOD model which has been employed accordingly. Risk calculations were conducted consistent with the Office of Environmental Health Hazards Assessment (OEHHA)’s 2015 Risk Assessment Guidelines. Detailed health risk modeling results are presented at Appendix B to this Memorandum. The analysis also evaluated potential health risk impacts that could result from exposure to Toxic Air Contaminants (TACs), including diesel particulate matter (DPM) generated by heavy-duty diesel trucks from on-site idling, on-site travel, and off-site travel. The modeled source area is shown in Exhibit D to the Appendix B of the Addendum Document. At the maximally exposed individual receptor (MEIR), the maximum incremental cancer risk attributable to the Project is estimated at 1.32 in one million, which is less than the SCAQMD threshold of 10 in one million. At this same location, non-cancer risks were estimated to be <0.01, which would not exceed the applicable SCAQMD threshold of 1.0. As such, the Project will not cause a significant human health or cancer risk at any potentially affected receptors within the meaning of subsection (f) of Government Code Section 66474.
(2) As noted in prior subsections, the design of proposed Tentative Parcel Map No. 38164 is in conformance with the City’s General Plan, the Sun Lakes North Specific Plan Amendment No. 5 and the certified EIR. The Project has been conditioned to comply with all applicable Specific Plan requirements and requirements of the City’s ordinances, codes, and standards including, but not limited to, the California Uniform Building Code, the City’s Ordinances relating to Stormwater runoff management and controls. In addition, the design and construction of all improvements for the subdivision has been conditioned to be in conformance with adopted City street and public works standards. Based on the project design and its conformity to these standards, the design of the subdivision and its improvements are not likely to cause serious health problems within the meaning of subsection (f) of Government Code Section 66474.

H. The design of the subdivision and improvements proposed under Tentative Parcel Map No. 38164 will not conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision.

Other than easements for City of Banning water, sewer and electrical utilities, Southern California Edison, no easements of record or easements established by judgement of a court of competent jurisdiction for public access across the site have been disclosed in a search of the title records for the site and the City does not otherwise have any constructive or actual knowledge of any other such easements. Accordingly, the Parcel Map will not conflict with easements or access through the property within the meaning of subdivision (g) of Government Code Section 66474.

I. The design of the proposed Tentative Parcel Map No. 38164 provides, to the extent feasible, for future passive or natural heating or cooling opportunities in the 688
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subdivision.

Tentative Parcel Map No. 38164 does not propose any design features that would conflict with future passive or natural heating or cooling opportunities.

J. The discharge of waste from the proposed subdivision into an existing community sewer system would not result in a violation of existing requirements imposed by the California Regional Water Quality Control Board.

The discharge of sewage from the site will occur through a sewer connection within Sun Lakes Boulevard and proceed through a series of sewer pipes to the City’s wastewater treatment plant in the southeast corner of the City. In connection with the approval of the Project, the applicant is required to obtain all necessary clearances and permits from the California Water Quality Control Board for the Colorado River Basin (Condition 20 (d)). With the design of the Project and Map and compliance with this condition, the discharge of waste into the City’s sewer system will not result in a violation of Regional Water Quality Control Board requirements within the meaning of Government Code Section 66474.6.

SECTION 4: Design Review Approval Findings. Section 17.56.050 of the City of Banning Municipal Code requires that applications for Design Review approval satisfy certain specified findings and criteria. The City Council makes the following findings to approve Design Review 21-7008:

A. The proposed project is consistent with the General Plan. (1) The General Plan land use designations for the site are General Commercial and Business Park with a Specific Plan Overlay. The Specific Plan designations for the site are Business & Warehouse District and Retail and Service District. The Design Review application seeks approval of buildings and improvements for development of an industrial warehouse building of 619,959 square feet of gross floor area, which includes 10,000 square feet of office and a separate parcel containing six (6) retail buildings totaling 34,000 square feet to the south varying in size from 1,600 square feet to 8,400 square feet.
(2) The Community Development Element of the General Plan contains goals, policies and programs for the development of industrial, commercial and residential uses.

With respect to the industrial uses, the General Plan specifies the general goal that “A balanced mix of non-polluting industrial land uses which provide local jobs for the City’s residents.” The project will provide a non-polluting industrial use and provide jobs for City residents. Specifically, the industrial portion of the project is not an industrial factory and the uses within the buildings and the warehouse operation are subject to several mitigation measures that require the use of electrical hookups at loading docks (AQ- 3), truck idling limitations (AQ-4), the use of electric or natural gas service equipment to reduce fuel consumption and emissions (AQ-5) and a minimum of three (3) electric-vehicle charging stations. In addition, other mitigation measures are imposed on the Project during the grading and construction of the site, including the use of low VOC paint (AQ-1) and limitations on grading activities to ensure emissions do not exceed SCAQMD’s significance thresholds. With these mitigation measures the project will not exceed local significance thresholds for emissions and ensure that the Project satisfies the 689
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non-polluting goal for industrial uses as provided in the General Plan. (3) The Community Development Element of the General Plan contains several policies applicable to industrial development projects including: Policy 6 that provides that the land use map shall include sufficient industrial lands for manufacturing, warehousing and distribution, while carefully considering compatibility with adjacent lands; Policy 8 that provides that industrial lands shall be located on major roadways with good access to Interstate 10, to assure that potential traffic impacts associated with tractor-trailers are minimized; and Policy 10 that provides that the Zoning Ordinance shall include principles, design standards and guidelines which encourage development of high quality industrial projects.” The Project is consistent with Policy 6 because the size of the portion of the site designated for business and warehouse uses is relatively large (30.22 acres) and is appropriately located immediately adjacent to the I-10 freeway and the Southern Pacific Railroad line to the north of the Project site. In addition, the warehouse use is located on the portion of the site that will be screened and buffered from residential uses to the south and east by the retail and service buildings to be located in the Retail and Services District that exists between the residential uses in Sun Lakes to the south of Sun Lakes Boulevard and the industrial building and by the Office and Professional District uses in the future that will exist between the warehouse uses and the residential and assisted living uses to the east of the Project site. The Project is consistent with Policy 8 because it will be immediately adjacent to Interstate 10 on the north, and the lot configuration and access points into and out of the site are designed to provide for the minimum amount of travel distance on Sun Lakes Boulevard to Highland Springs Avenue and then onto Interstate 10 and eventually from Sun Lakes Boulevard to the Sunset Avenue and onto Interstate 10 when the Sun Lakes Boulevard extension is completed. Finally, the Project, as more fully explained in connection the Project’s consistency with the Specific Plan includes a variety of design elements, setbacks, landscaping features that will provide a high quality industrial project. (4) The Economic Development Element of the General Plan provides the goal for a balanced, broadly based economy that provides a full range of economic and employment opportunities, while maintaining high standards of development and environmental protection. The Project will increase the availability of job opportunities for not only warehouse employees but also retail and service based business opportunities. The proposed development and buildings will improve the City’s property tax base, boost sales tax, provide jobs and revenue for the City’s economy. The Project is also consistent with the following applicable Economic Development Element Policies: Policy 2 for the City to take a proactive role in the recruitment of new businesses that will generate and broaden employment opportunities, increase discretionary incomes and contribute to City General Fund Revenues; Policy 3 to encourage infill development that will increase the efficiencies of new utilities, infrastructure and public services; and Policy 9 which require development to be responsible for its fair share of on-site and off- site improvements. The Project will provide physical space for a large business or businesses to conduct warehouse uses in the City and spaces for up to six new retail and service uses to serve the immediate community and the City. These new businesses will provide a wide range of different job opportunities from warehouse jobs to office, retail and services jobs and thereby create the diverse job 690
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opportunities in the City that will provide opportunities for residents to find new jobs to increase their discretionary incomes. Overall, through property tax, economic activity and job creation, these Project will contribute to General Fund revenues.

The Project is an infill project using a long- standing vacant site for land uses on lots configured and planned to be appropriately sited between other existing uses and already served by existing streets, utilities and infrastructure. Finally, the project includes design features to ensure all on-site amenities consistent with the City’s development standards are paid for by the applicant and that fair share contributions in the form of payment of the City’s applicable development impact fees are collected from the development.
(5) The proposed project is consistent with the following goals, policies, and/or programs of the Noise Element of the City’s General Plan:
(a) Policy 1 states that the City shall protect noise sensitive land uses, including residential neighborhoods, from potentially significant sources of community noise. The certified PEIR prepared for the SLVNSP states that the maximum base ambient noise level in Municipal Code Section 8.44.050 applicable to the Project is 75 dB(A) while existing ambient noise levels in the vicinity of the site range from 60.4 to 66.2 dB(A). The PEIR determined that construction noise from the Project site could be significant for the closest noise sensitive uses, which are the single-family homes located east of the Office & Professional District of the SLVNSP planning area and the senior apartments/assisted living/memory care residential facility located east of the planning area. The PEIR recommended Mitigation Measure NOI-1 to reduce this impact to less than significant levels. To minimize noise impacts of the proposed Tentative Parcel Map No. 38164, the applicant is conditioned to implement Mitigation Measure NOI-1. PEIR Table 4.10-5 demonstrates that the proposed Tentative Parcel Map No. 38164 would not have significant operational traffic-related noise impacts on surrounding land uses.
(b) Program 1.A. states that the City shall require building setbacks, the installation of wall and window insulation, soundwalls, earthen berms, and/or other mitigation measures in areas exceeding the City’s noise limit standards for private development projects as they occur. As indicated in Table 13 (Operational Noise Level Compliance) of the Urban Crossroads Noise Study prepared for PEIR Addendum/Consistency Analysis, the proposed Tentative Parcel Map No. 38164 will not exceed the City’s noise limit standards for private development projects.
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(c) Program 1.B. states that the City shall maintain and enforce its Noise Control Ordinances that establish community-wide noise standards and identify measures designed to resolve noise complaints. The approval of the proposed project has been conditioned to comply with the City’s noise ordinances.
(d) Policy 4 states that the City shall assure low levels of traffic within neighborhoods by assigning truck routes to major roadways only. The proposed Project will construct two (2) new access driveways on Sun Lakes Boulevard, which will be constructed to meet City standards and will have direct access to/from Interstate 10 via Highland Springs Avenue, a major roadway. The future extension of Sun Lakes Boulevard to the east may also provide for future access to/from Interstate 10 via Sunset Avenue, another major roadway. Exhibit 4 from the Urban Crossroads Traffic Assessment for the project, below, indicates truck trip distribution based on current truck route conditions:

B. The proposed project is consistent with the Zoning Ordinance, including the development standards and guidelines for the district in which it is located. (1) The Sun Lakes Village North Specific Plan Amendment No. 5, which was incorporated into the Zoning Ordinance as Section 17.96 by way of Ordinance No. 1591, provides the development standards and guidelines for the proposed Project site. The Specific Plan provides Guiding Objectives for the development in 692
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the Specific Plan Area. Those Objectives are as follows: (1) Allow for a range of land uses that reflects current market conditions given the trend away from brick-andmortar retail; (2) Respond to an increase in e-commerce, especially driven by the coronavirus pandemic; (3) Promote high quality development to safeguard the existing asset of Sun Lakes Country Club and other development in the vicinity; (4) Locate and design truck courts and semi-truck circulation to minimize impacts on surrounding land uses and development; and (5) Expand access to restaurants, shopping, and services for the nearby Sun Lakes Country Club Community. The proposed Project accomplishes all these Objectives by reflecting current real estate market trends toward more e- commerce uses which necessarily includes warehouse uses as a key component of the supply chain required for the storage, shipping and availability of e-commerce goods. The proposed Project locates truck courts and semi-truck circulation towards the interior and northerly portion of the site next to the Southern Pacific Railroad line and Interstate 10 and away from the residential uses in the Sun Lakes Country Club. The design elements and project conditions will ensure that the landscape features and design elements projects a high quality development to safeguard the quality of development within the Sun Lakes Country Club community. Finally, the Project will provide up to six sites and buildings for restaurants, shopping and services for the Sun Lakes Country Club Community within the Retail and Service District of the Project site that is located immediately north of Sun Lakes Boulevard and convenient to that Community.
(2) As proposed, the Project meets all required development standards as outline in Section 3.1 (Development Standards) of the Sun Lakes Village North Specific Plan (SLVNSP). These include such requirements as setback, height, landscaping, parking, etc. Additionally, the Project meets those Design Guidelines outlined in Section 3.2 of the SLVNSP with regard to such elements as architectural articulation, blended use of building materials, and fenestration treatment.

Therefore, the Project meets the City’s Zoning Ordinance development standards and design guidelines, as more fully explained in the following subsections. (3) The warehouse building is proposed to be located on a 30.22- acre parcel located in the northwestern portion of the Project site and is adjacent to backside of the Sun Lakes Village Shopping Center, the Southern Pacific Railroad and the Interstate-10 Freeway. This parcel is entirely within the Business and Warehouse District of the Specific Plan which allows for a variety of warehouse uses as permitted uses in that District. The parcel on which the warehouse building will be located is approximately 1,316,349 square feet in size and is large enough to accommodate the proposed development of a 619,959 square- foot warehouse building with associated truck access and parking areas, loading docks, employee parking and landscape areas. The proposed floor area ratio will be 47% of the site and less than the 55% maximum allowed for the parcel. The development will include landscape setbacks 10 feet from the north and west property lines of the site, consistent with required development standards, and allow for building setbacks to far exceed the required setbacks from the rear (185 feet when 20 feet is required) the side (70 feet when 20 feet is required) and front (185 feet when 20 feet is required). The parcel is also sufficient to provide for 402 parking spaces when 360-362 parking spaces are required by the Specific Plan and Banning Municipal Code Chapter 17.28. By achieving or exceeding all development 693
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standards, the proposed warehouse component of the Project satisfies the finding that the Project is consistent with the applicable development standards. (4) The retail and service buildings are proposed to be located on an approximate 6.83- acre parcel that is located on the southern edge of the Project Site and adjacent to Sun Lakes Boulevard. This parcel is entirely within the Retail and Service District of the Specific Plan which allows for a variety of retail, restaurant and service uses as permitted uses in that District. On this parcel, retail stores, restaurants and services buildings are proposed. This parcel is approximately 297,492 square feet in size and is large enough to accommodate the proposed development of six commercial buildings ranging size from 1,600 square feet to 8,400 square feet for a total of 34,000 square feet, along with associated utility, parking roadway, and landscaping improvements. The proposed floor area ratio will be approximately 11% of the site and less than the 60% maximum allowed for the parcel. The development will satisfy the 20 foot and 10-foot landscape setbacks from Sun Lakes Boulevard and the west project boundary, respectively, and allow for building setbacks to exceed the required setbacks from the rear (30 feet when 20 feet is required) the side (80 feet when 20 feet is required) and front (100 feet when 10 feet is required). The proposed Project will provide for 289 parking spaces (16 for the drive-thru and 273 for the retail) when a total of 146 are required by the Specific Plan.
(5) The proposed project is consistent with the Noise Ordinance. As detailed in the Urban Crossroads Noise Study prepared for PEIR Addendum/Consistency Analysis, the proposed project will not exceed an ambient noise level of 75 dB(A), as required under Banning Municipal Code (“BMC”) Section 8.44.050. As detailed in the Urban Crossroads Noise Study prepared for PEIR Addendum/Consistency Analysis, the proposed project will not exceed the maximum exterior noise levels required of nonresidential uses. Further, the project has been conditioned to comply with all applicable noise standards set forth in BMC Section 8.44.090 and the Sun Lakes North Village Specific Plan Amendment No. 5 and mitigation measures imposed under the PEIR.

C. The design and layout of the proposed project will not unreasonably interfere with the use and enjoyment of neighboring existing or future development and will not result in vehicular and/or pedestrian hazards.
(1) The design and layout of the proposed Project places the warehouse use on the largest of the three parcels (30.22 acres) and appropriately locates that parcel and warehouse building and associated uses immediately adjacent to the I-10 freeway and the Southern Pacific Railroad line to the north of the Project site. In addition, the warehouse use is located on the portion of the site that will be screened and buffered from residential uses to the south and east by the retail and service buildings to be located in the Retail and Services District that exists between the residential uses in Sun Lakes Golf Course Community that lies south of Sun Lakes Boulevard and the industrial building and by the Office and Professional District uses in the future that will exist between the warehouse uses and the residential and assisted living uses to the east of the Project site. In addition, the warehouse building will back up against the rear of the Sun Lakes Village Shopping Center buildings rather than facing those Shopping Center buildings. By this design of the location of the warehouse building, the Project is not anticipated to unreasonably 694
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interfere with the use and enjoyment of neighboring uses and future development. (2) The proposed Project locates truck courts and semi-truck circulation towards the interior and northerly portion of the site next to the Southern Pacific Railroad line and Interstate 10 and away from the residentialuses in the Sun Lakes CountryClub.

The lot configuration and access points into and out of the site are designed to provide for the minimum amount of travel distance on Sun Lakes Boulevard to Highland Springs Avenue and then onto Interstate 10 and eventually from Sun Lakes Boulevard to the Sunset Avenue and onto Interstate 10 when the Sun Lakes Boulevard extension is completed. Sun Lakes Boulevard is a Major Highway between Highland Springs Avenue to Highland Home Road with adequate capacity for truck and automobile traffic volumes for commercial and industrial purposes.

Signalized intersections are proposed to be installed at Highland Springs/Sun Lakes Boulevard and at Sun Lakes Boulevard/Country Club Drive to ensure safe pedestrian and vehicular crossing along Sun Lakes Boulevard. For these reasons, the development will not result in vehicular or pedestrian hazard.

D. The design of the proposed project is compatible with the character of the surrounding neighborhood.
(1) As explained in Subsection (C) above, the warehouse building and associated uses will be surrounded by compatible uses. The entire northern boundary of the site on which the warehouse building will be located is bounded by the Southern Pacific Railroad line and then Interstate 10. Locating a warehouse building up against that rail line and freeway corridor is entirely appropriate and compatible with transportation uses that occur on that rail line and freeway corridor. To the west of the warehouse building is the backside of the Sun Lakes Village Shopping Center. This is commercial development project that will shield the warehouse building from persons coming to and from that Shopping Center. Locating the warehouse building behind a commercial shopping center building will not interfere with the use of that Shopping Center and is compatible with that use. To the south of the warehouse building is the Retail and Service District of the Specific Plan. On that site there will be shops, restaurants and services businesses along with a parking lot. Located the warehouse to the rear of and on the backside of these retail and service buildings will not interfere with those retail and service business and is compatible with those uses. Finally, most of the easterly side the warehouse parcel will be adjacent to a currently vacant parcel that is proposed for office and professional uses. That future office and professional development on that easterly parcel will provide substantial screening and buffering of the residential and assisted living uses to the east of the warehouse building. In addition, a landscape buffer along the entire easterly edge of the Project site will further screen the warehouse use from those other easterly uses. Finally, the placement of the warehouse building and associated uses on this site will mean that the warehouse building and truck uses on that site will be more than 800 feet from the northern boundary of the Sun Lakes Country Club residential community. For all these reasons, the design of the project to place and develop a warehouse building and use on the rear of the Project site and as buffered by the other buildings and uses surrounding that site, provides that it will be compatible with the character of the surrounding neighborhood.
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(2) As noted in part (1) of this Subsection (D) above, the proposed retail, restaurant and service buildings to be located on the southerly parcel of the proposed development will be situated between Sun Lakes Boulevard on the south and the industrial warehouse building on the north. In addition, to the proposed landscaping along the frontage of Sun Lakes Boulevard, these retail, restaurant and service buildings and uses will function as a visual and physical buffer from the Sun Lakes Country Club residents on the south side of Sun Lakes Boulevard, the closest of which is approximately 800 feet away from the proposed industrial building. These proposed retail, restaurant and services uses in proximity of existing adjacent residential uses will also be similar to the uses in the existing commercial/retail uses in the Sun Lakes Village Shopping Center. These buildings and uses will provide needed retail, restaurant and service uses for the residents of the Sun Lakes Country Club community. For these reasons, the Project’s proposed uses on the Retail and Service District parcel will be compatible with the surrounding neighborhood.

SECTION 5: Project Approval and Denial of Appeal. Based upon the findings and conclusions set forth in Sections 1 through 4 above, and all of the evidence (both written and oral) in the record, this City Council hereby approves Tentative Parcel Map No. 38164; denies the Appeal of the Planning Commission’s approval of Design Review No. 21-7008, thereby upholding approval of Design Review No. 21-7008; and imposes all of the Conditions of Approval set forth on Exhibit A to this Resolution, which are hereby incorporated herein by this reference.

SECTION 6: Certification. The City Clerk shall certify to the adoption of this Resolution.

SECTION 7: Effect. This Resolution shall take effect immediately upon its adoption.

SECTION 8: Judicial Review. The time within which judicial review, if available, of this decision must be sought is governed by California Code of Civil Procedure Section 1094.6, unless a shorter time is provided by other applicable law. The City Clerk shall mail by first class mail, postage prepaid, a certified copy of this Resolution and a copy of the affidavit or certificate of mailing to the Appellant, Applicant, and any other persons or entities requesting notice of determinations related to the decision.

PASSED, APPROVED AND ADOPTED this 10th day of September 2024.

Alberto Sanchez, Mayor
City of Banning
ATTEST:

Caroline Patton, Administrative City Clerk
City of Banning
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APPROVED AS TO FORM:

Serita R. Young, City Attorney
Richards, Watson & Gershon
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CERTIFICATION:

I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-149, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 10th day of September 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Administrative City Clerk
City of Banning, California
698
City of Banning
Community Development Department
Conditions of Approval
PROJECT: Design Review No. 21-7008 & Tentative Parcel Map No. 38164 (TPM 21-4001) SUBJECT: Conditions of Approval (City Council Resolution 2024-149) APPLICANT: Pamela Steele, MIG, Inc.

LOCATION: North of Sun Lakes Boulevard, east of Highland Springs Avenue, south of Interstate 10, and west of Highland Home Road in the Sun Lakes Village North Specific Plan (APN 540-180-055)

EXHIBIT A
To City Council Resolution 2024-149
* All fair share agreements, covenant agreements and agreements subject to recordation will be subject to review and approval by the City Attorney and will include appropriate enforcement provisions by the City and be properly securitized.

Community Development Department
A. GENERAL REQUIREMENTS:

1. The project shall always comply with all federal, state, County and City laws, codes, regulations, and standards, including those that relate to hazardous materials.

2. All activities undertaken in connection with the development and operation of the project that is approved by Tentative Parcel Map No. 38164 and Design Review No. 21-7008 shall be subject to and shall comply with all Mitigation Measures contained in the Final EIR for the Sun Lakes Village North Specific Plan Amendment No. 5 (SCH No. 20200029074) and the Mitigation Monitoring and Reporting Program (MMRP) adopted in connection with the approval of the Sun Lakes Village North Specific Plan Amendment No. 5.

3. The applicant shall indemnify, protect, defend, and hold harmless, the City, and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof, from any and all claims, demands, lawsuits, writs of mandamus, and other actions and proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute resolutions procedures (including, but not limited to, arbitrations, mediations, and other such procedures) (collectively “Actions”), brought against the City, and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof, that challenge, attack, or seek to modify, set aside, void, or annul, the action of, or any permit or approval issued by, the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof (including actions approved by the voters of the City), for or concerning the project, whether such actions are brought under the California Environmental Quality Act (CEQA), State Planning and Zoning Law, the Subdivisions Map Act, Code of Civil Procedure Section 1085 or 1094.5, or any other state, federal, or local statute, law, ordinance, rule, regulation, or any decision of a competent jurisdiction. It is expressly agreed that the City shall have the right to approve, which approval will not be unreasonably withheld, the legal counsel providing the City’s defense, and that 699
applicant shall reimburse City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. City shall promptly notify the applicant of any Action brought and City shall cooperate with applicant in the defense of the Action.

4. Approval of this entitlement shall not waive compliance with any sections of the Banning Municipal Code (BMC), other applicable City ordinances, in effect at the time of building permit issuance.

5. The Project permitted under Design Review 21-7008 & Tentative Parcel Map 21-4001 shall commence construction within two (2) years from the date of this approval, or the Design Review shall become null and void. Additionally, if after commencement of construction, activities are discontinued for a period of one (1) year, the Design Review approval shall become null and void. The Community Development Director may, upon a written application being filed 30 days prior to expiration and for good cause, grant a onetime extension not to exceed 12 months. Upon granting of an extension, the Community Development Director shall ensure that the Design Review complies with all current provisions of Title 17 of the Banning Municipal Code.

6. A copy of the signed Resolution of approval and all Conditions of Approval imposed on the Design Review shall be reproduced in legible form on the improvement plans submitted for review and approval as required by the reviewing department.

7. Prior to any occupancy/use of the project site, or business activity being commenced thereon, all Conditions of Approval shall be completed to the satisfaction of the Community Development Director.

8. A trash enclosure shall be provided with three decorative walls, enhanced wall caps, a pedestrian entrance, a gate, and a structural steel cover, in a style compatible with the structure’s architecture. The gate shall be maintained in working order and shall remain closed except when in use.

9. Exterior lighting shall be shielded or recessed so that light is contained within the boundaries of the parcel on which the lighting is located. All lighting shall be directed downward and away from adjoining properties and public rights-of-way.

10.Any roof-mounted equipment or utility equipment on the side of the structure, or on the ground, shall not be visible from adjacent properties, the public right-of-way, or the parking lot. Any architectural screening that is proposed to shield the roof-mounted equipment shall be compatible in terms of colors and materials of the building. Landscape screening for ground mounted equipment shall be of sufficient size and quantity to fully screen the equipment.

11.Storage use and removal of toxic substances, solid waste, and flammable liquids shall conform to all applicable federal, state, and local regulations. All required licensing shall always be maintained in good order. Lapse or revocation of any required license shall result in the voiding of the Business License.

12.a. Prior to the issuance of the Temporary Certificate of Occupancy for the warehouse building the developer shall install all landscaping specified for the retail service district pursuant to city approved landscape plans.
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b. A complete landscape/irrigation package prepared by a landscape architect licensed by the State of California shall be reviewed and approved by the Planning Division prior to issuance of building permit. The plans shall include the following elements:

A. Water conservation concept statement.

B. Calculation of maximum applied water allowance.

C. Calculation of estimated total water use.

D. Landscape design plan.

E. Irrigation design plan.

F. Certificate of substantial completion.

G. The landscape plan shall demonstrate compliance with Zoning Ordinance requirements related to minimum dimensions and percentages of landscaping in parking areas, including required front yard setback landscaping.

13.The subject property shall be developed and maintained in accordance with the site plans stamped approved by the City and on file in the Planning Division, the conditions contained herein, and the applicable regulations within the Banning Municipal Code.

14.If human remains are encountered during grading and other construction excavation, the developer/owner shall stop/cease work in the immediate vicinity and the County Coroner shall be contacted pursuant to State Health and Safety Code Section 7050.5.

15.Trash collection shall occur between the hours of 8:00 a.m. and 6:00 p.m. only.

16.All graffiti shall be removed immediately or within 24 hours of notice from the City.

17.Hours of operation shall be no earlier than 7:00 a.m. and no later than 10:00 p.m.

18.Commercial zoning districts shall be permitted wall signs per the area of the wall (length times height of the wall). The area devoted to such signs shall not exceed twenty percent of the wall area. All parts, portions, and materials shall be maintained and kept in good repair. The display surface of all signs shall be kept clean, neatly painted, and free from rust and corrosion. Any cracked, broken surfaces, malfunctioning lights, missing sign copy or other unmaintained or damaged portion of a sign shall be repaired or replaced within thirty calendar days following notification by the City.

19.Pedestrian walkways should not intersect the drive-through aisles, but where they do, they shall have clear visibility, and they must be emphasized by enriched paving or striping.

PUBLIC WORKS DEPARTMENT:

20.A Public Works Permit shall be required prior to commencement of any work within the public right-of-way. The contractor working within the public right-of-way shall submit proof of a Class “A” State Contractor’s License, City of Banning Business License, and Liability Insurance. Any existing public improvements, or public improvements not accepted by the City that are damaged during construction shall be removed and replaced as determined by the City Engineer or his/her representative
.

21.Prior to the issuance of any grading, construction, or public works permit by the City, the applicant shall obtain any necessary clearances and/or permits from the following agencies:
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A. Fire Marshal (access)
B. Public Works Department (grading permits, street improvement permits)
C. Riverside County Flood Control & Water Conservation District (storm drain)
D. California Regional Water Quality Control Board Colorado River Basin (RWQCB)
E. South Coast Air Quality Management District (SCAQMD)

22.The applicant is responsible for meeting all requirements of permits and/or clearances from the above listed agencies. When the requirements include approval of improvement plans, the applicant shall furnish proof of such approvals when submitting improvements plans to the City.

23.The following improvement plans shall be prepared by a Civil Engineer licensed by the State of California and submitted to the Engineering Division for review and approval. A separate set of plans shall be prepared for each line item listed below. Unless otherwise authorized in writing by the City Engineer, the plans shall utilize the minimum scale specified and shall be drawn on 24” x 36” Mylar film. Plans may be prepared at a larger scale if additional detail or plan clarity is desired (Note: the applicant may be required to prepare other improvement plans not listed here pursuant to improvements required by other agencies and utility purveyors):
a. Rough Grading Plans 1" = 40' horizontal
A. (All Conditions of Approval shall be reproduced
B. on last sheet of set)
b. Haul Route Plans 1" = 40' horizontal
c. Clearing Plans 1" = 50' horizontal
A. (Include construction fencing plan)
d. Erosion Control & SWPPP, WQMP 1” = 40’ Horizontal
A. (Note: a, b, c & d shall be reviewed
B. and approved concurrently)
e. Storm Drain Plans 1” = 40’ Horizontal
f. Street Improvement Plans 1" = 40' Horizontal
i.1" = 4' Vertical
g. Precise Grading Plans 1" = 40' Horizontal
h. Landscaping Plans 1” = 20 Horizontal
i. Water Improvement Plans 1” = 40’ Horizontal
i.1” = 4’ Vertical
j. Sewer Improvement Plans 1” = 40’ Horizontal
i.1” = 4’ Vertical

24.Other engineered improvement plans prepared for City approval that are not listed herein shall be prepared in formats approved by the City Engineer prior to commencing plan preparation.

25.All off-site plan and profile, street improvement plans, and signing & striping plans shall show 702
all existing improvements for a distance of at least 200-feet beyond the project limits, or at a distance sufficient to show any required design transitions.

26.A small index map shall be included on the title sheet of each set of plans, showing the overall view of the entire work area.

27.Upon completion of construction, the Developer shall furnish the City with reproducible record drawings on Mylar film of all improvement plans that were approved by the City Engineer.

Each sheet shall be clearly marked "As-Built" or "As-Constructed" and shall be stamped and signed by the engineer or surveyor certifying the accuracy and completeness of the drawings.

The applicant shall have all AutoCAD files submitted to the City, revised to reflect the “AsBuilt” conditions.

Street Improvements/Right-of-Way

28.Construct right-of-way improvements (driveway approach, sidewalk, parkway, raised median, access ramp, street lighting, etc.) fronting the site per City of Banning Standard Drawings.

Street lights shall be installed offset of the existing street lights.

29.Installation of a traffic signal at the intersection of Sun Lakes Boulevard, future Driveway 3 (as shown in the TIA) and Country Club Drive. Project applicant shall reach out to the Sun Lakes Country Club staff to discuss impacts to their access.

30.Provide paved golf cart access adjacent to the sidewalk through the property and at the proposed traffic signal entrance.

31.Construct street improvements as identified by the project’s traffic impact analysis (TIA).

32.The City and Developer are to enter into a Public Improvement Agreement to guarantee the construction of the public improvements as listed in the Conditions of Approval and as shown on the approved plans. The applicant shall work with the City Attorney’s Office to execute the Agreement and pay all related legal processing fees.

33.All street improvement designs shall provide pavement and lane transitions per City of Banning and Caltrans standards for transition to existing street sections.

34.Any public improvements damaged during the course of construction shall be replaced to the satisfaction of the City Engineer, or his/her designee.

35.The applicant shall plant and perpetually maintain trees, shrubs, and ground cover placed in the parkway, slopes adjacent to public right-of-ways constructed in connection with the project. This includes providing irrigation and the clearing of debris and weed removal. The applicant shall be required to enter into a Landscape Maintenance Agreement for the perpetual maintenance of landscaping within the public right-of-way fronting the project site.

36.All required public improvements for the project shall be completed, tested, and approved by the Engineering Division prior to issuance of any Certificate of Occupancy.

GRADING & DRAINAGE:
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37.Submit a Drainage Study with hydrologic and hydraulic analysis for developed and undeveloped (existing) conditions to the Engineering Division for review and approval. The study and analysis shall be prepared by a civil engineer licensed by the State of California.

Drainage design shall be in accordance with Banning Master Drainage Plan adopted by Riverside County Flood Control and Water Conservation District (RCFCD), RCFCD Hydrology Manual, and standard plans and specifications. The 10-year storm flow shall be contained within the street curbs, and the 100- year storm shall be contained within the street right-ofway; when this criteria is exceeded, additional drainage facilities shall be designed and constructed.

38.At a minimum, all development will make provisions to store runoff from rainfall events up to and including the one-hundred three-hour during event. Post-development peak urban runoff discharge rates shall not exceed pre-development peak urban runoff discharge rates.

39.Prior to issuance of any building permit, the applicant shall install trash filters in all catch basins adjacent to the site and/or will be constructed as part of the storm drain improvements for this development. The trash filters shall comply with the requirements of the Trash Amendment as amended and approved in accordance with California Regional Water Quality Control Board Colorado River Basin Region Order No. R7-2013-0011.

40.If the site is located in a Flood Area as identified in Flood Insurance Rate Map dated August 28, 2008 the developer is responsible for providing a certification by a registered professional engineer or architect demonstrating that encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge.

41.The project grading shall be designed in a manner that perpetuates the existing natural drainage patterns with respect to tributary drainage areas, outlet points and outlet conditions.

Otherwise, a drainage easement shall be obtained for the release of concentrated or diverted storm flows. The project shall accept and convey storm flows from the adjacent property to the north.

42.The applicant shall comply with Chapter 13.24 “Stormwater Management Systems” of the Banning Municipal Code (BMC) and Title 18 “Grading, Erosion and Sediment Control” of the California Building Code related to excavation and grading; and, the State Water Resources Control Board’s orders, rules and regulations.

43.For construction activities including clearing, grading or excavation of land that disturbs one (1) acre or more of land, or that disturbs less than one (1) acre of land, but which is a part of a construction project that encompasses more than one (1) acre of land, the applicant shall be required to submit a Storm Water Pollution Protection Plan (SWPPP) and file a Notice of Intent (NOI) with the Regional Water Quality Control Board.

44.The applicant shall ensure that the required SWPPP is available for inspection at the project site at all times through and including acceptance of all improvements by the City.

45.The applicant’s SWPPP shall include provisions for all of the following Best Management Practices (“BMPs”):

46.Temporary Soil Stabilization (erosion control).
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47.Temporary Sediment Control.

48.Wind Erosion Control.

49.Tracking Control.

50.Non-Storm Water Management.

51.Waste Management and Materials Pollution Control.

52.All erosion and sediment control BMPs proposed by the applicant shall be designed using the CASQA BMP handbook and approved by the City Engineer prior to any onsite or offsite grading, pursuant to this project.

53.The approved SWPPP and BMPs shall remain in effect for the entire duration of project construction until all improvements are completed and accepted by the City.

54.Prior to issuance of any grading or building permit, a Project-Specific Water Quality Management Plan (WQMP) shall be reviewed and approved in accordance with California Regional Water Quality Control Board Colorado River Basin Region Order No. R7-2013-0011.

55.Prior to the issuance of any building permit(s), a precise grading plan shall be submitted to the City Engineer for review and approval. A grading permit shall be obtained prior to commencement of any grading activity.

56.Grading and excavations in the public right-of-way shall be supplemented with a soils and geology report prepared by a professional engineer or geologist licensed by the State of California.

57.Prior to the issuance of a building permit, the applicant shall provide a lot pad certification stamped and signed by a qualified civil engineer or land surveyor. Pad certification shall list the pad elevation as shown on the approved grading plan, the actual pad elevation and the difference between the two, if any. Such pad certification shall also list the relative compaction of the pad soil.

TRAFFIC/CIRCULATION:

58.Prior to the issuance of a grading permit or building permit, the applicant shall submit and obtain approval in writing from the Fire Marshall for the plans for all public or private access drives or streets. The plans shall include plan and sectional views and indicate the grade and width of the access road measured flow-line to flow-line. When a dead-end access exceeds 150 feet or when otherwise required, a clearly marked fire apparatus access turnaround must be provided and approved by the Fire Marshall. Applicable covenant, conditions or restrictions or other approved documents shall contain provisions which prohibit obstructions such as speed bumps/humps,control gates or other modifications within said easement or access road unless prior approval of the Fire Marshall is granted.

59.Driveway grades shall not exceed eight percent unless approved by the City Engineer.

60.Access drives to the public right-of-way shall be restricted to those approved by the City 705
Engineer as shown on the approved plans.

61.Prior to the issuance of any certificate of occupancy, all fire hydrants shall have a blue reflective pavement marker indicating the hydrant location on the street/access driveway as approved by the Fire Marshall and must be maintained in good condition by the property owner until the street is accepted for maintenance.

62.Prior to the issuance of a grading permit or building permit, the applicant shall conduct a Traffic Impact Analysis and submit the report to the Engineering Division for review and approval. All mitigation identified in the Traffic Impact Analysis shall be implemented by the applicant to the satisfaction of the City Engineer.

TRASH & RECYCLING:

63.Construction debris shall be disposed of at a certified recycling site. It is the responsibility of the developer to contact the City’s franchised solid waste hauler, Waste Management of the Inland Valley, at 1-800-423-9986 for disposal of construction debris.

64.The developer shall participate in the City’s recycling and diversion programs by providing a solid waste enclosure to accommodate necessary solid waste containers.

65.All new development projects including, but not limited to, industrial and business buildings and facilities, as well as, multi-family complexes shall provide a solid waste enclosure to accommodate trash, recycle and organics waste bins and/or containers. Solid waste enclosures for multiple tenant properties, such as a shopping center, must design the enclosure to accommodate all waste containers of the property.

66.Solid waste enclosures shall be located on the site to be serviced.

67.The enclosure shall be designed for the exclusive use of housing solid waste containers including trash, recyclable and organics materials.

68.Enclosures Design Criteria:
a. The size and dimensions of the trash enclosure shall be based on the required number and size of containers at a minimum accommodating one (1) container each for trash, recyclables and organics materials.
b. Enclosure shall be architecturally compatible with the primary building on site to provide a coordinated design.
c. Exterior materials and colors of the enclosure shall match the building walls. d. Chain link fencing with or without/plastic slats is prohibited. e. Enclosure shall have solid metal or wood gates with latches that can be secured in an open or closed position.
f. Enclosures shall be constructed in a permanent manner. g. Exterior must be fully enclosed with solid roofing to prevent rainfall from entering the enclosure and to prevent wind dispersal, as well as, offsite transport of trash and recycling.
h. Provide the minimum clearance for collector and user accessibility. i. City Engineer approval shall be obtained in writing prior to the construction of any solid waste enclosure.
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WATER:

69.Submit water improvement plans to the Public Works Department along with anticipated peak water demands and hydraulic analysis to justify pipe sizes. Pipes shall be ductile iron, wrapped in V-Bio polyethylene. All water services 2” and smaller shall use plastic-coated copper tubing.

70.Separate irrigation meters will be required for outdoor use.

71.All commercial, industrial, and irrigation water services shall have Reduced Pressure Principle Backflow Preventors. RP Backflow Preventors shall be of a model approved by USC.

72.On-site fire hydrants shall be part of a privately-owned and maintained fire protection system. Private fire hydrants shall be painted safety red, to differentiate from publicly-owned fire hydrants which are typically yellow.

73.Because of the project’s location at a pressure zone boundary, an above-ground pressure regulating station may be required, pending review of the water improvement plans by the City Engineer.

RECYCLED WATER:

74.Plans for a purple-pipe non-potable irrigation system shall be designed and submitted to the Public Works Department. Pipes shall be ductile iron, wrapped in purple V-Bio polyethylene.

All water services 2” and smaller shall use plastic-coated copper tubing. Plans should include a signage plan typical of a non-potable irrigation system.

75.An interim connection between the potable and non-potable systems shall be installed by way of a single backflow preventor, until such a time as the City’s non-potable backbone system is extended west along Sun Lakes Blvd.

WASTEWATER:

76.A sewer improvement plan shall be prepared and submitted to the Public Works Department, extending the public sewer from Sun Lakes Blvd. Sewer main material shall be PVC SDR 26.

Sewer system design shall avoid placing manholes in low spots, or connecting storm water drainage facilities to the sewer system.

77.When available, estimated sewer discharge quantities and quality shall be submitted to the Public Works Department for review. Depending on the nature of the discharge, grease interceptor(s) may be required.

FEES:

78.Plan check fees for professional report review (geotechnical, drainage, WQMP, etc.), and all improvement plans review, shall be paid at the time of submittal of said documents for review and approval in accordance with the fee schedule in effect at the time of submittal.

79.Public Works Inspection fees shall be paid prior to issuance of any permits in accordance with 707
the fee schedule in effect at time of time of scheduling.

80.A plan storage fee shall be paid for any engineering plans that may be required prior to issuance of certificate of occupancy in accordance with the fee schedule in effect at the time the fee is paid.

81.Water, Sewer, and Non-potable impact fees shall be paid prior to issuance of Building permit.

Water meter and water meter installation fees shall be due prior to meter release.

FINAL PARCEL MAP:

82.Prior to approval of the Final Map, the applicant shall construct on-site and off-site improvements required for the development of the property in accordance with the approved plans and satisfy its obligations for same, or shall furnish a fully secured and executed Subdivision Improvement Agreement on terms agreed to by the Parties guaranteeing the construction of such improvements and the satisfaction of its obligations for same, or shall agree to any combination thereof. For off- site improvements, the procedures and requirements of Government Code Section 66462.5 shall apply, including the potential acquisition of those rights by the City or waiver of the City’s requirement to obtain those rights.

83.Security for the construction of public improvements in accordance with Government Code Section 66499 shall be as follows:
a. Faithful Performance Bond 100% of estimated cost
b. Labor and Material Bond 100% of estimated cost
c. Monumentation Bond $5,000.00

84.Securities for the public improvements shall be on file with the City Clerk prior to scheduling the final map for approval by City Council. Unit prices for bonding estimates shall be those specified or approved by the City Engineer.

85.Revisions to the tentative map during plan check including, but not limited to, lot line alignments, easements, improvement plan revisions, and similar minor changes that are in substantial compliance with the tentative map, or associated conditions of approval, shall be administratively approved through the plan check process with the mutual consent and approval of the Developer, the Community Development Director and City Engineer. Final maps shall be amended in accordance with the Subdivision Map Act.

86.Prior to approval of any final map the applicant shall identify and include in its improvement plans those routine structural and non-structural Best Management Practices (BMP’s).

87.Submit a copy of the title report, closure calculations, and any separate instruments or necessary right-of-way documents to the Engineering Division prior to final map approval.

88.An original Mylar of the final map (after recordation) shall be provided to the City for the record files.

89.Public improvements shall be completed and accepted by City of Banning prior to release of Faithful Performance Bond and Labor and Material Bond for such improvements. Faithful Performance Bond for applicable public improvements shall be reduced to 10% once City accepts improvements into maintenance period. Final 10% to serve as the maintenance bond 708
for the 1- year maintenance period.

90.A record of all street centerline monument ties shall be submitted to the Engineering Division upon completion of improvements or prior to release of Monumentation Bond.

FIRE DEPARTMENT:

91.Fire Hydrants and Fire Flow: Prior to the issuance of building permits, plans for the water system shall be submitted to the fire department for review and approval. The water system shall be capable of delivering the required fire flow. Fire hydrant(s) location and spacing shall comply with the fire code. An approved water supply for fire protection during construction shall be made available prior to the arrival of combustible materials on site. Reference 2016 California Fire Code (CFC) 507.5.1, 3312, Appendices B and C.

92.Fire Department Access: Prior to building permit issuance, provide a site plan showing the fire lanes. Access roads shall be provided to within 150 feet to all portions of the exterior building walls and shall have an unobstructed width of not less than 24 feet. The construction of the access roads shall be all weather and capable of sustaining 40,000 lbs. over two axles for areas of residential development and 60,000 lbs. over two axels for commercial developments.

Approved vehicle access, either permanent or temporary, shall be provided during construction Ref. CFC 503.1.1, 3310.1 and 503.2.1

93.Requests for installation of traffic calming designs/devices on fire apparatus access roads shall be submitted and approved by the Office of the Fire Marshal. Ref. CFC 503.4.1

94.Grading Permit Fire Department Review: Submittal to the Office of the Fire Marshal for Precise Grading Permit will be required.

95.Construction Permits Fire Department Review: Submittal of construction plans to the Office of the Fire Marshal for development, construction, installation and operational use permitting will be required. Final fire and life safety conditions will be addressed when the Office of the Fire Marshal reviews these plans. These conditions will be based on occupancy, use, California Building Code (CBC), California Fire Code, and related codes, which are in effect at the time of building plan submittal.

96.Phased Construction Access: If construction is phased, each phase shall provide approved access for fire protection prior to any construction. Ref. CFC 503.1

97.Fire Sprinkler System: All new commercial structures 3,600 square feet or larger shall be protected with a fire sprinkler system. Ref CFC 903.2 as amended by the City of Banning.

98.Fire Alarm and Detection System: A water flow monitoring system and/or fire alarm system may be required and determined at time of building plan review. Ref. CFC 903.4, CFC 907.2 and NFPA 72

99.Knox Box and Gate Access: Buildings shall be provided with a Knox Box. The Knox Box shall be installed in an accessible location approved by the Office of the Fire Marshal. All electronically operated gates shall be provided with Knox key switches and automatic sensors for access. Ref. CFC 506.1
100. Addressing: All commercial buildings shall display street numbers in a prominent location 709
on the address side and additional locations as required. Ref. CFC 505.1 and County of Riverside Office of the Fire Marshal Standard #07-01
101. Buildings in excess of 300,000 square feet in area shall be required to provide a fire command center for fire department operations and shall comply with 2019 CFC sections 508.1.1 through 508.1.8 as amended and adopted by the City of Banning and Riverside County Fire. (2019 CFC 508.1)
102.Emergency Responder Radio Coverage Systems: Projects that do not meet the exceptions set forth by the Riverside County Office of the Fire Marshal shall provide plans for an emergency responder radio coverage system. Ref. CFC 510.1 and Riverside County Office of the Fire Marshal Technical Policy #TP19-002.
103.Strategic Planning Review: This planning case will also be reviewed by Riverside County Fire Department Strategic Planning for the cumulative impact on the Fire Department’s ability to provide an acceptable level of service. Additional requirements may be conditioned by Strategic Planning to mitigate these impacts. Questions for Strategic Planning can be addressed to [email protected].
104. Use the Above Statement only if it meets the Strategic Planning Case Review Criteria below:
a. Environmental Impact Reports
b. General Plan Amendments
c. Specific Plans
d. Developments that are in very high fire hazard severity zones in the LRA and developments in the SRA
e. Residential with 500 or more dwelling units
f. Commercial/Industrial developments of 1,000,000 sq ft or more 105. The Developer shall pay for and install traffic signal preemption devices on up to 5 traffic signal intersections from and including Ramsey/Highland Springs to Sun Lakes Boulevard/Highland Springs, not to exceed the cost of $100,000. The applicant shall coordinate these efforts with both the City of Banning and the City of Beaumont. 106. The Developer shall pay the City $175,000 to be used by the City for fire station/fire apparatus capital improvements in the City, which amount shall be in addition to the Fire Facilities Development Impact Fee that is owing for the Project. The fee shall be paid prior to the Temporary Certificate of Occupancy on the warehouse building. ***END***
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RESOLUTION 2024-151
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, (1) APPROVING TENTATIVE PARCEL MAP NO. 38164, ONLY FOR THE SUBDIVISION OF APPROXIMATELY 47 GROSS ACRES OF VACANT LAND INTO THREE PARCELS; (2) DENYING APPROVAL OF DESIGN REVIEW NO. 21-7008, THE PROPOSED CONSTRUCTION OF A 619,959 SQUARE FOOT INDUSTRIAL WAREHOUSE BUILDING, INCLUDING 10,000 SQUARE FEET OF OFFICE SPACE AND A COMBINED 34,000 SQUARE

ENVIRONMENTAL QUALITY ACT (CEQA) AND MAKING FINDINGS IN SUPPORT THEREOF,

Amendment No. 5 revised the Specific Plan Land Use Plan from Retail Commercial (Auto Dealer) to Business Park & Warehouse (BW), Office & Professional (OP), and Retail & Service (RS), and revised the permitted land uses, development standards (including maximum building height, setbacks, open space, landscaping, parking, and signage), and design guidelines for the development and implementation provisions of the SLVNSP; and WHEREAS, the EIR for Amendment No. 5 to the SLVNSP is now final, beyond challenge, and is conclusively presumed to comply with CEQA; and
WHEREAS, in furtherance of the interests of Sun Lakes Highland, LLC (Applicant), an application was submitted for approval of proposed Tentative Parcel Map No. 38164 (TPM 21- 4001) to subdivide approximately 47.11 acres of vacant real property into three commercial and industrial parcels, and for Design Review No. 21-7008, to construct a 619,959 square-foot industrial warehouse building with 10,000 square feet of office space, and six retail/commercial buildings totaling 34,000 square feet and associated utility, parking, roadway, and landscaping improvements (all together, the “Project”), on real property identified as APN 419-140-057; and WHEREAS, on October 19, 2021, and December 1, 2021, the Planning Commission conducted duly noticed public hearings on the Project, at which time interested persons had an opportunity to testify in support of or in opposition to the Project. At the conclusion of the public hearing on December 1, 2021, the Planning Commission adopted Resolution No. 2021-16, approving Tentative Parcel Map No. 38164 and approving Design Review No. 21-7008, including conditions of approval of the Project. Pursuant to Banning Municipal Code Chapter 16.14, the Planning Commission’s decision has been interpreted by City Staff and the City Council as a recommendation to the City Council for approval of Tentative Parcel Map No. 38164; and WHEREAS, pursuant to Banning Municipal Code Section 17.68.100, three applications seeking to appeal the Planning Commission’s decision on the Project were received during the appeal period following the Planning Commission’s action; and 711
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WHEREAS, an appeal application was received from Golden State Environmental Justice Alliance and was subsequently rejected as being incomplete because it did not state the grounds or reasons for its appeal, did not request a specific action, and incorrectly described the Project; and
WHEREAS, an appeal application was received from Supporters Alliance For Environmental Responsibility (SAFER), who subsequently withdrew its appeal on January 18, 2022, and announced its support for the Project; and
WHEREAS, on December 7, 2021, the law firm of Shute, Mihaly & Weinberger submitted an appeal on behalf of the Appellant, Pass Area Action Group (PAG), and a three-page letter on behalf of the Appellant, which was supplemented by a 428-page letter submitted via email on January 24, 2022 (the “Appeal”); and
WHEREAS, the public hearing on Tentative Parcel Map No. 38164 and the Appeal hearing on Design Review No. 21-7008 was scheduled for January 31, 2022, and in compliance with applicable law, the City provided public notice of the public hearing by advertising in the Record Gazette newspaper on January 21, 2022, and by mailing notices to all property owners within 1,000 feet of the subject site; and
WHEREAS, the City subsequently received requests from both Pass Area Action Group and the Applicant to continue the Appeal hearing to allow for additional time to review the materials related to the Project; and
WHEREAS, in recognition of the requests from both Appellant and Applicant for a continuance of the public hearing, at the regularly scheduled City Council meeting held on January 25, 2022, the City Council voted to cancel the Appeal hearing previously noticed for January 31, 2022, and to reschedule the public hearing to February 17, 2022; and WHEREAS, the City provided public notice of the rescheduled public hearing on Tentative Parcel Map No. 38164 and the Appeal hearing on Design Review 21-7008 by advertising in the Record Gazette newspaper on February 4, 2022, and by again mailing (on February 3, 2022) notices to property owners within a 1,000-foot radius of the subject site; and WHEREAS, on February 17, 2022, the City Council of the City of Banning conducted a duly noticed public hearing on the Appeal, at which time all interested persons, including Appellant and Applicant, were given an opportunity to speak and to present both oral and written evidence in support of and in opposition to the Appeal. At the conclusion of the public hearing on February 17, 2022, the City Council adopted Resolution No. 2022-14, approving Tentative Parcel Map No. 38164, approving Design Review 21-7008 and denying the Appeal, including Conditions of Approval of the Project, and adopting an Addendum to the certified EIR prepared for Amendment No. 5 to the Sun Lakes Village North Specific Plan (SCH # 2020029074); and WHEREAS, on April 18, 2022, PAG filed a Petition for Writ of Mandate and Complaint for Injunctive Relief (“Petition”) with the Riverside County Superior Court (Case No. CVRI2201482), challenging the City of Banning’s approval of the Project; and WHEREAS, the lawsuit alleged that the City failed to provide a fair hearing due to alleged bias by Councilmembers Hamlin, Sanchez, and Wallace. The lawsuit also contended that the City violated CEQA and the City’s General Plan in approving the Project, and that the findings in 712
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support of the Project were not supported by substantial evidence; and WHEREAS, following briefing and a hearing on the merits, the trial court issued a ruling finding only that the City did not provide a fair hearing based on the court’s conclusion that thenCouncilmember Hamlin was biased in favor of the Project. The court rejected all claims of bias as to Councilmember Wallace and Councilmember Sanchez, stating in its ruling that “their statements do not overcome the presumption that they are unbiased. There has been no showing of financial or personal interest in the Project and no specific evidence demonstrating actual bias or a particular combination of circumstances creating an unacceptable risk of bias….” The court also rejected in its entirety all of PAG’s substantive challenges, finding that the City fully complied with CEQA, that the Project is consistent with the City’s General Plan, and that the City’s findings were supported by substantial evidence, as discussed further below. As the court concluded in its ruling, the court “does not find that Petitioner [PAG] has carried its burden of proof on any remaining issue and would not grant the writ but for the fair hearing issue.”; and WHEREAS, the court entered judgment and issued a writ of mandate directing the City to set aside and vacate the prior approval and to reconsider the Project without the participation of Councilmember Hamlin; and
WHEREAS, the City provided public notice of a public hearing on the Project by advertising in the Record Gazette newspaper on June 28, 2024, and by mailing (on June 25, 2024) notices to property owners within a 1,000-foot radius of the Project site; and WHEREAS, on July 9, 2024, the City Council of the City of Banning adopted Resolution No. 2024-113 to set aside the prior Project approvals in compliance with the writ of mandate. Also on July 9, 2024, the City Council conducted a duly noticed public hearing on the Project, at which time all interested persons, including Appellant and Applicant, were given an opportunity to speak and to present both oral and written evidence in support of and in opposition to the Project.

Following the public hearing, City Council directed Staff to prepare a resolution for the City Council’s consideration at a later date to approve Tentative Parcel Map No. 38164 but to deny Design Review 21-7008, and to make appropriate findings in accordance with CEQA; and WHEREAS, on September 10, 2024, the City Council of the City of Banning continued their deliberation on the Project, at which time all interested persons, including Appellant and Applicant, were given an opportunity to speak and to present both oral and written evidence in support of and in opposition to the Project; and
WHEREAS, all legal prerequisites prior to the adoption of this Resolution have occurred; and
WHEREAS, the City Council has considered all information related to this matter, as presented at the public meetings of the City Council identified herein, including supporting reports by City Staff, written materials timely received by the City, and information provided during public meetings.

NOW THEREFORE, the City Council of the City of Banning does hereby resolve, determine, find, and order as follows:

SECTION 1: Recitals. This Council hereby specifically finds that all of the facts set forth in the Recitals above are true and correct, and are incorporated herein. 713
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SECTION 2: Environmental Findings.

A. The Project has been reviewed in connection with the requirements of CEQA (Pub.

Resources Code, § 21000, et seq.) and the State CEQA Guidelines (14 C.C.R. § 15000 et seq.). Based upon all of the applications, plans, submittals, and evidence presented to the Planning Commission on October 19, 2021 and December 1, 2021, the additional submittals from the Appellant and the Applicant, the City Council public hearing held on July 9, 2024, and the City Council’s continued deliberation on September 10, 2024 (including written and oral staff reports and supporting documentation, together with public testimony), and in the exercise of its independent judgment based upon the whole of the record and the evidence presented to it, this Council hereby specifically finds and concludes, as provided in the succeeding subsections of this Section 2, as follows with respect to environmental review related to the Project.

B. The EIR prepared for Amendment No. 5 to the SLVNSP analyzed the potential development of 877,298 square feet of industrial and warehouse uses, 52,065 square feet of medical office uses, and 37,189 square feet of retail uses. The EIR analyzed the potential environmental impacts of this type of development in the areas of: aesthetics, air quality, biological resources, cultural resources, energy, geology and soils, greenhouse gas emissions, hydrology and water quality, land use and planning, noise, transportation, tribal cultural resources, and utilities and service systems. The EIR concluded that Amendment No. 5 to the SLVNSP had the potential to result in a net increase in building square footage and that certain air quality, greenhouse gas emissions, and traffic impacts would be significant and unavoidable even after the imposition of mitigation and regulatory compliance. The City Council determined that the benefits of Amendment No. 5 outweighed the Amendment’s environmental impacts, and adopted a Statement of Overriding Considerations on December 8, 2020. The EIR was certified on December 8, 2020, and was never challenged. It is now final, beyond challenge, and conclusive in all respects.

D. The Project proposes a smaller development than that analyzed in the EIR. The Project proposes 619,959 square feet of industrial use (split between 75% [or 464,969 square feet] of high-cube fulfillment center warehouse use and 25% [or 154,990 square feet] of highcube cold storage warehouse use), and 34,000 square feet of retail uses, along with associated utility, parking, roadway, and landscaping improvements. The Project does not include the development of any of the office uses analyzed in the EIR.

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5, Pages 97 through 109 of the Banning Point/Sun Lakes Village North Specific Plan EIR Addendum/Consistency Checklist. The same benefits described in the Statement of Overriding Considerations for Amendment No. 5 to the SLVNSP remain applicable to the Project.

I. The City Council has considered whether additional environmental review is required for the Project beyond what was analyzed and disclosed in the now-final EIR and in the Addendum. All environmental impacts of Amendment No. 5 to the SLVNSP (including those impacts related to the development of industrial and warehouse uses and retail uses, such as those proposed by the Project) were analyzed, disclosed, and mitigated as outlined in the EIR (SCH# 2020029074) that was certified on December 8, 2020; this conclusion is supported by the detailed Addendum and its supporting technical reports and data. Furthermore, a subsequent EIR is not required as discussed below.

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the project, but the project proponents decline to adopt the mitigation measure or alternative, or mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. At this point in the process, “in-depth review has already occurred, the time for challenging the sufficiency of the original EIR has long since expired, and the question is whether circumstances have changed enough to justify repeating a substantial portion of the process.” (Bowman v. City of Petaluma (2008) 185 Cal.App.3d 1065, 1073- 1074.) As a result, any issues with the earlier EIR that were raised or could have been raised are barred from further consideration. (Comm. for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 50.)
K. No information has been presented to the City demonstrating that any of the criteria set forth in Public Resources Code Section 21166, or CEQA Guidelines Sections 15162 or 15163, are present.
(1) No information has been presented to the City to demonstrate that any substantial changes have occurred with respect to the Project involving new significant environmental effects or a substantial increase in the severity of previously identified significant effects. Furthermore, the Addendum comprehensively analyzed the Project in comparison to the EIR in each environmental impact area and concluded that there are no new or substantially greater impacts than those previously disclosed, analyzed, and mitigated (to the extent feasible) in the EIR.

The City Council finds that the Addendum, including its supporting technical reports, constitutes substantial evidence in support of this conclusion. (2) No information has been presented to the City to demonstrate that any substantial changes have occurred with respect to the circumstances under which the Project is undertaken involving new significant environmental effects or a substantial increase in the severity of previously identified significant effects. There have been no changes to the SLVNSP area that would alter the ability of the Project to remain consistent with the SLVNSP and the environmental impacts analyzed in the prior EIR.
(3) No information has been presented to the City to demonstrate that there is any new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete showing that the Project will have any significant or more severe effects than those discussed in the prior EIR, or that additional mitigation measures or alternatives would substantially reduce any significant effects on the environment disclosed in the prior EIR. No information, let alone substantial evidence, has been presented to suggest that the current Project has environmental impacts beyond those previously analyzed, disclosed, and mitigated as set forth in the EIR. No information regarding any purported greater environmental impacts, or the need for additional mitigation or alternatives, has been presented.
(4) The court concurred with the conclusions above in Paragraphs (K)(1)-(3) of this Section 2. As the court stated in its ruling, “There is no dispute but that the 716
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differences between the original Project [that described in Amendment No. 5 to the SLVNSP] and the current version of the Project do not result in new significant environmental impacts. Indeed, the current version of the Project is significantly smaller than the original project.” The court thus found that “substantial evidence supported the City’s decision … to prepare an addendum instead of a supplemental or subsequent EIR for the Project.”
L. The Appellant’s contention in its January 24, 2022, letter that preparation of a programlevel EIR for Amendment No. 5 to the SLVNSP was not proper is a time-barred attack on that EIR. The EIR was never challenged and is lawful, valid, and conclusive for all purposes. Furthermore, the SLVNSP is a Specific Plan and therefore is a legislative enactment and environmental review at the program, or plan, level was appropriate.

N. The Appellant’s contention in its January 24, 2022 letter that the EIR’s analysis in the areas of transportation, air quality, greenhouse gas emissions, and noise is insufficient to apply to the Project is unfounded. The City Council finds that several of the Appellant’s contentions, including those set forth in the technical memoranda attached to their letter, are unfounded; rely on flawed assumptions (including but not limited to those related to horsepower, emission factors, and trip generation rates) leading to incorrect conclusions; are speculative (such as unsupported assumptions about the use of emergency diesel generators); or amount at most to a disagreement among experts, including over issues such as trip generation and trip lengths that were settled in the EIR and are now beyond challenge. A disagreement among experts is not a sufficient reason to set aside an EIR and a lead agency such as the City may choose to accept the determinations and conclusions in the EIR if they are supported by substantial evidence. (CEQA Guidelines Section 15151.) The City Council further finds that other of Appellant’s contentions, such as that no vehicle miles traveled (VMT) analysis or noise impacts analysis have occurred, are factually incorrect and therefore lack foundation. The City Council also finds that other contentions, including those regarding the efficacy of mitigation measures imposed as part of Amendment No. 5 to the SLVNSP and its accompanying EIR, are time-barred and an impermissible collateral attack on the prior EIR. The City Council expressly finds that substantial evidence supports the conclusions in the certified EIR, and that no new information has been presented to invalidate these conclusions.

O. The Appellant’s contention in its January 24, 2022, letter that a new cumulative impacts 717
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analysis was required is incorrect. The prior EIR included a cumulative impacts analysis; no such analysis is also required as a separate, standalone component of a determination that a subsequent EIR is not required.

R. The Community Development Director shall cause to be a filed a Notice of Determination for the Project in accordance with CEQA.

SECTION 3: Tentative Parcel Map Findings for Approval. Subsection (B) of Section

16.14.050 of the Banning Municipal Code provides that any action taken by the City Council concerning Tentative Parcel Map No. 38164 shall be supported by the findings required by Sections 66427.1, 66473.5, 66474, 66474.1, and 66474.6 of the California Government Code and Section 21100 of the California Public Resources Code.

B. Approval Only as to Parcel Size, Location and Configuration and Not to the 718
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Proposed Warehouse Project or Any Buildings on any of the Parcels. In the succeeding sections of this Resolution, the City Council will be denying the application for Design Review Approval of the proposed warehouse buildings, the retail buildings and other improvements on the Site. Accordingly, all of the findings in this section are intended to only constitute findings supporting the lot configurations, locations and sizes and not to also approve the uses and buildings proposed on those parcels. In the event of any conflict between the provisions of this Paragraph B and other Paragraphs in this Section, this Paragraph shall control.

C. Tentative Parcel Map No. 38164 is consistent with the goals, policies and programs of the City’s General Plan and with the Sun Lakes Village North Specific Plan Amendment No. 5.
(1) The General Plan land use designations for the site are General Commercial and Business Park with a Specific Plan Overlay. The Specific Plan designations for the site are Business & Warehouse District and Retail and Service District. The Community Development Element of the General Plan provides that Specific Plan land use designations become the General Plan overlay land use designations in the Specific Plan area.
(2) Tentative Parcel Map No. 38164 will divide the existing 47.11-acre property into three parcels consistent with the land uses proposed to be developed on the site and consistent with the General Plan and Specific Plan land use designations, as more fully explained in the succeeding subsections below. The subsections provided in this Subsection (B) provide the findings required by Government Code Sections 66473.5 and 66474(a).
(3) The Sun Lakes Village North Specific Plan Amendment No. 5 specifies Guiding Objectives for the development in the Specific Plan Area. Some of these objectives are as follows: (1) Allow for a range of land uses that reflects current market conditions given the trend away from brick-and-mortar retail; (2) Respond to an increase in e-commerce, especially driven by the coronavirus pandemic; and (3) Expand access to restaurants, shopping, and services for the nearby Sun Lakes Country Club Community. The Project supports Objective No. 3 because the Project will provide a parcel that will facilitate buildings for restaurants, shopping and services for the Sun Lakes Country Club Community within the Retail and Service District of the Project site that is located immediately north of Sun Lakes Boulevard and convenient to that Community.

D. The subject site is physically suitable for the type of development proposed under Tentative Parcel Map No. 38164.
(1) The Tentative Parcel Map covers an area of approximately 47.11 acres and proposes to divide that area into three parcels to be consistent with the proposed land uses to be allowed on each of those parcels. Based on the findings contained in the subsections below, the site contained within the boundaries of the Tentative Parcel Map is physically suitable for the type of developments that are allowed by the Specific Plan. The findings in the following subsections are intended to provide the findings required by Government Code Section 66474(c). 719
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(2) The largest proposed parcel is 30.22 acres and is in the northwestern portion of the Map and is adjacent to backside of the Sun Lakes Village Shopping Center, the Southern Pacific Railroad and the Interstate-10 Freeway. This parcel is approximately 1,316,349 square feet in size, exceeds the minimum parcel size of 10,000 square feet, has a lot depth of 876 feet that exceeds the minimum required depth of 100 feet, has a lot width of 1,270 feet which exceeds the minimum lot width of 70 feet, and is large enough to accommodate a variety of land uses allowed by the Specific Plan.
(3) The second largest parcel is approximately 10.06 acres and is located on the eastern portion of the side and adjacent to an assisted living facility and residential units designed on smaller lots that are part of the Sun Lakes Country Club active adult/golf course community. On this lot, offices and professional uses are intended to be located but no development is currently proposed. This parcel is sufficient in size in terms of depth and width to accommodate a variety of building configurations that could be proposed on the site and meet all required development standards as set forth in Table 2 of the Sun Lakes Village North Specific Plan Amendment No. 5.
(4) The third and smallest parcel is approximately 6.83 acres and is located on the southern edge of the Map and adjacent to Sun Lakes Boulevard. On this lot, retail stores, restaurants and service uses could be proposed in the future. This parcel is approximately 297,492 square feet in size, exceeds the minimum parcel size of 6,000 square feet, has a lot depth of 200 feet that exceeds the minimum required depth of 100 feet, has a lot width of 1,300 feet which exceeds the minimum lot width of 60 feet, and is large enough to accommodate a range of commercial uses along with associated utility, parking roadway, and landscaping improvements. (5) All three of the parcels are relatively flat and are designed to take vehicular access from access points along Sun Lakes Boulevard that are adequate in location, design and configuration. All three parcels are adjacent to Sun Lakes Boulevard to provide water, sewer and electricity to the site.

E. The site is physically suitable for the proposed density of development under Tentative Parcel Map No. 38164.
(1) Based on the findings contained in the subsections below, the site contained within the boundaries of the Tentative Parcel Map is physically suitable for the density of a range of future development options. The findings in the following subsections are intended to provide the findings required by Government Code Section 66474(d).
(2) The largest proposed parcel is 30.22 acres and is in the northwestern portion of the Map and is adjacent to backside of the Sun Lakes Village Shopping Center, the Southern Pacific Railroad and the Interstate-10 Freeway. This parcel is approximately 1,316,349 square feet in size and is large enough to accommodate a range of potential land uses.
(3) The second largest parcel is approximately 10.06 acres and is located on the eastern portion of the side and adjacent to an assisted living facility and residential 720
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units designed on smaller lots that are part of the Sun Lakes Country Club active adult/golf course community. On this lot, offices and professional uses are intended to be located but no development is currently proposed. This parcel is sufficient in size in terms of depth and width to accommodate a variety of building configurations that could be developed up to the 60% floor area of the site allowed on the parcel and large enough so that it could meet all required development standards as set forth in Table 2 of the Sun Lakes Village North Specific Plan Amendment No. 5.
(4) The third and smallest parcel is approximately 6.83 acres and is located on the southern edge of the Map and adjacent to Sun Lakes Boulevard. On this parcel, retail stores, restaurants and service uses could be proposed in the future.

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Banning City CouncilSeptember 10, 2024

Banning City Council
September 10, 2024