AGENDA ITEM #9.5
Resolution No. 10293 - Consideration of the Appeal of May 11, 2022 Plann... Page 1147 of 1168 PASSED, APPROVED, and ADOPTED this 11th day of May 2022 , by the following vote, to wit:
AYES: Lopez, Franz, and Ysiano
NOES: None
ABSENT: Valdez and Rodriguez-Ceja
___________________________________
NICCO YSIANO
PLANNING COMMISSION CHAIRPERSON
ATTEST:
________________________________
VANESSA CASTILLO
PLANNING COMMISSION SECRETARY
DocuSign Envelope ID: 4E54CDE6-2856-41BD-8C44-1879F8E02705
AGENDA ITEM #9.5
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VICINITY MAP
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AGENDA ITEM #9.5
Resolution No. 10293 - Consideration of the Appeal of May 11, 2022 Plann... Page 1149 of 1168
PETITION OF APPEAL TO THE CITY COUNCIL
REGARDING A PLANNING COMMISSION ACTION
Request is hereby made by the following persons who claim to be directly or indirectly adversely affected by decision of the staff in the matter of:
Grounds upon which this appeal is based are:
The City Council is hereby asked to:
Applicant: _
Address:
Phone No.:
Signature:
(Attach other names and addresses if needed)
Date Filed: Receipt No. By:
Petition of Appeal must be accompanied with the fee of $2,258.00 made payable to the City of Indio and mailed to the following address:
City of Indio
100 Civic Center Mall
Indio, CA 92201
(760) 391-4120
Effective January 1, 2014
The Planning Commission's decisions on May 11, 2022 to approve Design Review DR 22-02-495 for a proposed 65,000 square foot warehouse located on the southwest corner of Avenue 45 and Golf Center Parkway ("Project") and to approve a CEQA exemption for the Project pursuant to Section 15332 of the CEQA Guidelines.
For the reasons set forth in the attached comment letter dated May 11, 2022, SAFER objects to the City staff’s decision to exempt the Project from CEQA review pursuant to Section 15332 of the CEQA Guidelines, and argues that CEQA review is required for the Project. See attachment.
Supporters Alliance for Environmental Responsibility
1939 Harrison Street, Suite 150
Oakland, CA 94612
510-836-4200
("SAFER")
Deny Design Review DR-22-02-495 and associated CEQA exemption for the Project and instead direct city staff to prepare an initial study to determine the appropriate level of CEQA review required.
AGENDA ITEM #9.5
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Via Email May 11, 2022 Nicco Alexander Ysiano, Chair Christian Rodriguez Ceja, Vice-Chair Gloria Franz, Commissioner Esperanza “Espe” Valdez, Commissioner Jacqueline “Jackie” Lopez, Commissioner Planning Commission City of Indio 150 Civic Center Mall Indio, CA 92201 Alyssa Suarez, Senior Planner Planning Division City of Indio 100 Civic Center Mall Indio, CA 92201 [email protected] Re: Comment on Proposed CEQA Infill Exemption for DR 22-02-495; Planning Commission Agenda Item 4.1 Dear Chair Ysiano and Honorable Members of the Planning Commission: I am writing on behalf of Supporters Alliance for Environmental Responsibility (“SAFER”) regarding Design Review for a 65,000 square foot warehouse on the southwest corner of Avenue 45 and Golf Center parkway, DR 22-02-495, in the City of Indio (“Project”). SAFER objects to the City staff’s decision to exempt the Project from review under the California Environmental Quality Act (“CEQA”) pursuant to Section 15332 of the CEQA Guidelines, and argues that CEQA review is required for the Project. For this reason, SAFER requests that the Planning Commission decline to approve the Project unless and until proper CEQA review is conducted. After reviewing the Environmental Assessment in the Staff Report, we conclude that the City of Indio (“City”) cannot rely on the Class 32 (In-fill Development) Categorical Exemption because the City’s conclusions that the Project will not have significant adverse environmental impacts on biological resources and air quality are unsupported by evidence in the record. As demonstrated below, the Exemption is inapplicable because (1) the Class 32 exemption does not apply on its face, and (2) the unusual circumstances exception
AGENDA ITEM #9.5
Resolution No. 10293 - Consideration of the Appeal of May 11, 2022 Plann... Page 1151 of 1168 May 11, 2022 Planning Commission Hearing on DR 22-02-495 Page 2 of 6 to the exemption applies. Since the Project is not exempt from CEQA, an initial study must be prepared to determine the appropriate level of CEQA review required. I. PROJECT DESCRIPTION The City proposes to build a one-story, 59,000 square foot warehouse with a 6,000 square foot mezzanine. The mezzanine will be 15 feet tall and will feature a stairway and elevator to access an outdoor area fronting Golf Center Parkway. The proposed building will be 30 feet and eight inches tall and will contain seven loading docks to accommodate distribution of materials for future tenants. The Project site is located within the Industrial Park Zoning District and has a General Plan designation of Workplace and Employment District (WEP). The WEP designation “provides an area for a wide variety of employment-generating activity, including office, industrial and light manufacturing, research and development and supportive commercial.” Staff Report, DR-22-02-495, p. 4. II. LEGAL STANDARD As the California Supreme Court has held, “[i]f no EIR has been prepared for a nonexempt project, but substantial evidence in the record supports a fair argument that the project may result in significant adverse impacts, the proper remedy is to order preparation of an EIR.” Communities for a Better Env’t v. South Coast Air Quality Mgmt. Dist. (2010) 48 Cal.4th 310, 319-20 [citing No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75, 88]; Brentwood Assn. for No Drilling, Inc. v. City of Los Angeles (1982) 134 Cal.App.3d 491, 504–505. “Significant environmental effect” is defined very broadly as “a substantial or potentially substantial adverse change in the environment.” Pub. Res. Code (“PRC”) § 21068; see also, 14 CCR § 15382. An effect on the environment need not be “momentous” to meet the CEQA test for significance; it is enough that the impacts are “not trivial.” No Oil, Inc., 13 Cal.3d at 83. “The ‘foremost principle’ in interpreting CEQA is that the Legislature intended the act to be read so as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” Communities for a Better Env’t v. Cal. Res. Agency (2002) 103 Cal.App.4th 98, 109. The EIR is the very heart of CEQA. Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1214 [“Bakersfield Citizens”]; Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 927. The EIR is an “environmental ‘alarm bell’ whose purpose is to alert the public and its responsible officials to environmental changes before they have reached the ecological points of no return.” Bakersfield Citizens, 124 Cal.App.4th at 1220. The EIR also functions as a “document of accountability,” intended to “demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.” Laurel Heights Improvements Assn. v. Regents of Univ. of Cal. (1988) 47 Cal.3d 376, 392. The EIR process “protects not only the
AGENDA ITEM #9.5
Resolution No. 10293 - Consideration of the Appeal of May 11, 2022 Plann... Page 1152 of 1168 May 11, 2022 Planning Commission Hearing on DR 22-02-495 Page 3 of 6 environment but also informed self-government.” Pocket Protectors, 124 Cal.App.4th at 927. To achieve its objectives of environmental protection, CEQA has a three-tiered structure. 14 CCR § 15002(k); Committee to Save the Hollywoodland Specific Plan v. City of Los Angeles (2008) 161 Cal.App.4th 1168, 1185-86. First, if a project falls into an exempt category, or it can be seen with certainty that the activity in question will not have a significant effect on the environment, no further agency evaluation is required. Id. Second, if there is a possibility the project will have a significant effect on the environment, the agency must perform an initial threshold study. Id.; 14 CCR § 15063(a). If the study indicates that there is no substantial evidence that the project or any of its aspects may cause a significant effect on the environment the agency may issue a negative declaration. Id.; 14 CCR §§ 15063(b)(2), 15070. Finally, if the project will have a significant effect on the environment, an EIR is required. Id. The classes of projects which are exempt from the provisions of CEQA are called categorical exemptions. 14 CCR §§ 15300, 15354. “Exemptions to CEQA are narrowly construed and ‘[e]xemption categories are not to be expanded beyond the reasonable scope of their statutory language.’ [Citations].” Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 125. The determination as to the appropriate scope of a categorical exemption is a question of law subject to independent, or de novo, review. San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist., (2006) 139 Cal. App. 4th 1356, 1375 [“[Q]uestions of interpretation or application of the requirements of CEQA are matters of law. [Citations.] Thus, for example, interpreting the scope of a CEQA exemption presents ‘a question of law, subject to de novo review by this court.’ [Citations].”]. In addition, there are several exceptions to CEQA’s categorical exemptions. See, 14 CCR § 15300.2. The City has chosen to proceed under a Categorical Exemption for In-Fill Development, but as demonstrated below, the Project does not quality for that exemption and the City must prepare an initial study and determine the appropriate level of CEQA review. III. DISCUSSION A. The City Incorrectly Applied CEQA’s Class 32 (In-Fill Development) Categorical Exemption to the Project and Thus a Full CEQA Analysis Is Required. The proposed Project does not qualify for a Class 32 (in-fill development) categorical exemption under CEQA because of the Project’s potentially significant environmental impacts. The City must prepare an Initial Study to determine the appropriate level of CEQA review, be it a mitigated negative declaration or an environmental impact report.
AGENDA ITEM #9.5
Resolution No. 10293 - Consideration of the Appeal of May 11, 2022 Plann... Page 1153 of 1168 May 11, 2022 Planning Commission Hearing on DR 22-02-495 Page 4 of 6 1. The Class 32 Exemption Does Not Apply on its Face. The City is relying on the Class 32 (in-fill development) categorical exemption for this project. The Class 32 exemption provides: Class 32 consists of projects characterized as in-fill development meeting the conditions described in this section. (a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations. (b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. (c) The project site has no value, as habitat for endangered, rare or threatened species. (d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality. (e) The site can be adequately served by all required utilities and public services. 14 CCR § 15332 [emph. added]. Some of the key limitations of the Class 32 exemption are that it does not apply if the project has value as habitat for endangered, rare, or threatened species, or if the project will have any significant effects relating to traffic, noise, air quality, or water quality. 14 CCR § 15332(c),(d). Here, the exemption cannot apply because the evidence in the record does not support the City’s conclusion that the Project will have no significant impacts on biological resources and air quality. i. The Project has the potential to have significant biological resource impacts, precluding reliance on the Class 32 Exemption. The Staff Report states that the Project site contains no sensitive habitat or habitat for special status species due to previous grading from 2003-2004 and the lot’s vacant character and proximity to vacant land. Staff Report, DR 22-02-495, p. 3. However, a search of the Project site on Google Maps shows that the area is intermittently covered in shrubs and other greenery. See Exhibit A, Screenshots of Project site from Google Maps. The City has not conducted any field surveys or biological surveys, or even consulted any databases, to reach its conclusion regarding potential biological resource impacts. Its conclusion that the Project will not cause adverse biological resource impacts is therefore entirely unsupported by
AGENDA ITEM #9.5
Resolution No. 10293 - Consideration of the Appeal of May 11, 2022 Plann... Page 1154 of 1168 May 11, 2022 Planning Commission Hearing on DR 22-02-495 Page 5 of 6 evidence in the record. The Class 32 exemption is inapplicable on its face and cannot be relied on by the City. ii. The Project has the potential to have significant air quality impacts, precluding reliance on the Class 32 Exemption. The Staff Report claims that the Project will not have significant effects with regard to air quality based on adherence to the South Coast Air Quality Management District (SCAQMD) air pollution control program and Dust Control Requirements. Staff Report, DR 22-02-495, p. 3. However, the Staff Report contains no discussion of what the Project’s emissions will be, and whether those emissions fall within applicable standards. Its assessment of air quality impacts is therefore completely unsupported by any evidence in the record and cannot be relied upon. The City must conduct a full analysis which models the air emissions that will result from the Project and assesses whether those modeled emissions adhere to SCAQMD thresholds. This failure to demonstrate whether or not the Project has the potential to cause significant air quality impacts renders the Class 32 exemption inapplicable on its face and the City is precluded from relying on it. 2. The Unusual Circumstances Exception Precludes Reliance on the Class 32 Exemption. A categorical exemption is inapplicable “where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” 14 CCR 15300.2(c). Here, the Project does not present the same general risk of environmental impacts as other projects falling under Class 32 exemptions and therefore the exemption cannot apply. In Berkeley Hillside, the California Supreme Court explained that there are two ways a party may invoke the unusual circumstances exception. First, “a party may establish an unusual circumstance with evidence that the project will have a significant environmental effect. That evidence, if convincing, necessarily also establishes ‘a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.’” Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1105 [emph. added]. Alternatively, “[a] party invoking the exception may establish an unusual circumstance without evidence of an environmental effect, by showing that the project has some feature that distinguishes it from others in the exempt class, such as its size or location. In such a case, to render the exception applicable, the party need only show a reasonable possibility of a significant effect due to that unusual circumstance.” Id. As discussed above, the City has not provided any evidence that the Project will not have significant biological resources and air quality impacts. The fact that
AGENDA ITEM #9.5
Resolution No. 10293 - Consideration of the Appeal of May 11, 2022 Plann... Page 1155 of 1168 May 11, 2022 Planning Commission Hearing on DR 22-02-495 Page 6 of 6 these significant impacts may occur constitutes an unusual circumstance, precluding the City’s reliance on an exemption. IV. CONCLUSION The City cannot rely on a Class 32 exemption because the Project does not meet the terms of the exemption and because the unusual circumstances exception to exemption applies. Accordingly, the City must prepare an initial study to determine the appropriate level of environmental review to undertake pursuant to CEQA. Thank you for considering these comments. Sincerely, Amalia Bowley Fuentes Lozeau | Drury LLP
AGENDA ITEM #9.5
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Figure 4.4-1
Existing Vegetation Communities
and Land Cover Types
General Plan
Source: City of Indio, County of Riverside, SCAG, CVAG, CVMSCHP, RECON, Microsoft - Aerial (flown May 2010)
Legend
City Boundary
Sphere of Influence
Vegetation Communities and Land Cover
Types*
Active desert dunes
Active sand fields
Agriculture
Coastal and valley freshwater marsh
Desert dry wash woodland
Desert fan palm oasis woodland
Desert saltbush scrub
Mesquite hummocks
Mojave mixed woody scrub
Sonoran cottonwood-willow riparian forest
Sonoran creosote bush scrub
Sonoran mixed woody & succulent scrub
Stabilized desert sand fields
Tamarisk scrub
Quarry
Urban and Rural Developed
M:\JOBS4\7497\common_gis\Fig4.4-1.mxd
*Mapping is based on the CVMSHCP vegetation
mapping and aerial photography. Discrepancies
in mapping would be addressed at the future
specific plan and/or project level.
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UNDERGROUND SERVICE ALERT
TOLL FREE 811
A PUBLIC SERVICE BY
PHONE CALL:
OF
SHEET
CITY FILE NUMBER:
SHEETS
IN THE CITY OF INDIO, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA NO. 73070B ENJAMIN
DANIELEGAN
R E G I S T ERED PROFESSIONALENGINEER
CIVIL
STATE
OF
CALIFORNIA
PO BOX 5282, LA QUINTA, CA 92248-5282
EGANCIVIL, INC.
(760) 404-7663 WWW.EGANCIVIL.COM
PARCELS 3, 4 & 5 OF PARCEL MAP 31715 (PMB 217/51-52)
2 VACANT LAND
PLOT DATE: FEBRUARY 8, 2022 - FIRST SUBMITTAL
GOLF CENTER PARKWAY AND AVENUE 45, INDIO, CA 92201
CONCEPTUAL GRADING
’
“
”
1
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8''SS
8''SS
8''SS
8''SS
8''SS
8''SS
8''SS
8''SS
8''SS
8''SS
8''SS
PROPOSED BUILDING
FF: 477.60
PAD: 477.10
FOOTPRINT - 57,800 SF
UNDERGROUND SERVICE ALERT
TOLL FREE 811
A PUBLIC SERVICE BY
PHONE CALL:
OF
SHEET
CITY FILE NUMBER:
SHEETS
IN THE CITY OF INDIO, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA NO. 73070B ENJAMIN
DANIELEGAN
R E G I S T ERED PROFESSIONALENGINEER
CIVIL
STATE
OF
CALIFORNIA
PO BOX 5282, LA QUINTA, CA 92248-5282
EGANCIVIL, INC.
(760) 404-7663 WWW.EGANCIVIL.COM
PARCELS 3, 4 & 5 OF PARCEL MAP 31715 (PMB 217/51-52)
2 VACANT LAND
PLOT DATE: FEBRUARY 8, 2022 - FIRST SUBMITTAL
GOLF CENTER PARKWAY AND AVENUE 45, INDIO, CA 92201
CONCEPTUAL GRADING
2
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·
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L1
FAX (760) 777-9132
PH. (760) 777-9131
PALM DESERT, CA
SUITE 102
HERMANN
LIC# 2754
92211
EXP. 04/30/22
DESIGNGROUP
77-899 WOLF RD.
PRELIMINARY
LANDSCAPE PLAN
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PRELIMINARY
LANDSCAPE PLAN
L2
FAX (760) 777-9132
PH. (760) 777-9131
PALM DESERT, CA
SUITE 102
HERMANN
LIC# 2754
92211
EXP. 04/30/22
DESIGNGROUP
77-899 WOLF RD.
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