1 Kristie Ramos, CMC
From:Barrie Brown Martinez
Sent:Thursday, July 6, 2023 12:27 PM
To:Kristie Ramos, CMC
Cc:Mitchell Tsai; Talia Nimmer; Mitchell M. Tsai Attorney at Law, P.C.
Subject:SWMSRCC - [City of Rancho Mirage, Cotino Disney Master-Planned Community/Section 31 SP] - Comment Letter
Attachments:20230706_SWMSRCC_RanchoMirage_DisneyCotino_CCmeeting_signed_completed.pdf Follow Up Flag:Follow up
Flag Status:Flagged
CAUTION: This email originated from outside The City of Rancho Mirage. DO NOT CLICK links or open attachments unless you recognize the sender and know the content is safe.
Good afternoon,
Please see our attached Comment Letter regarding the Cotino Disney Master‐Planned Community (PDP22-0005/EA22- 0020) (SCH#: 2018081074), located in the city of Rancho Mirage.
Thank you for your attention,
‐‐
B. Brown Martinez
Paralegal
Mitchell M. Tsai, Attorney At Law
139 South Hudson Avenue Suite 200
Pasadena, CA 91101
Phone: (626) 314-3821
Fax: (626) 389-5414
Email: [email protected]
Website: http://www.mitchtsailaw.com
*** Our Office Has Recently Moved. Please Note New Mailing Address **** CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages accompanying it, may contain confidential information that is legally privileged. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED and may violate applicable laws including the Electronic Communications Privacy Act. If you have received this transmission in error, please immediately notify us by reply e-mail at [email protected] or by telephone at (626) 381-9248 and destroy the original transmission and its attachments without reading them or saving them to disk. Thank you.
P: (626) 314-3821
F: (626) 389-5414
E: [email protected]
Mitchell M. Tsai
Attorney At Law
139 South Hudson Avenue
Suite 200
Pasadena, California 91101
VIA E-MAIL
July 6, 2023
City Council
City of Rancho Mirage
69-825 Highway 11
Rancho Mirage, CA 92270
Em: [email protected]
RE: Residential Design Guidelines for the Section 31 Specific Plan [EA22-0020]
Dear Honorable Councilmembers,
On behalf of the Southwest Mountain States Regional Council of Carpenters (“The Carpenters” or “SWMSRCC”), my Office is submitting these comments to the City of Rancho Mirage (the “City”) to reiterate its concerns about the residential design guidelines for the Section 31 Specific Plan (“Project”).
The Section 31 Specific Plan area guides the development of a mixed-use, master- planned community which includes resort hotels, a mixed-use town center, up to 1,932 residential dwelling units, a private street system, and recreational open space amenities.1 Here, the Project seeks to establish master residential design guidelines for detached single-family residences and modify the development review process from discretionary to ministerial.
The Carpenters is a labor union representing 63,000 union carpenters in 10 states, including California, and has a strong interest in well-ordered land use planning and in addressing the environmental impacts of development projects. Individual members of SWMSRCC live, work, and recreate in the City and surrounding communities and would be directly affected by the Project’s environmental impacts.
The Carpenters expressly reserves the right to supplement these comments at or prior to hearings on the Project, and at any later hearing and proceeding related to this Project. Gov. Code, § 65009, subd. (b); Pub. Res. Code, § 21177, subd. (a); see
1 See https://ceqanet.opr.ca.gov/2018081074/3
City of Rancho Mirage –Residential Design Guidelines for Section 31 Specific Plan Project July 6, 2023
Bakersfield Citizens for Local Control v. Bakersfield (2004) 124 Cal.App.4th 1184, 1199- 1203; see also Galante Vineyards v. Monterey Water Dist. (1997) 60 Cal.App.4th 1109, 1121.
The Carpenters incorporates by reference all comments raising issues regarding the environmental assessment for the Project prior to approval of the Project. See Citizens for Clean Energy v City of Woodland (2014) 225 Cal.App.4th 173, 191 (finding that any party who has objected to the project’s environmental documentation may assert any issue timely raised by other parties).
I. THE CITY VIOLATED THE BROWN ACT THROUGH ITS
DEFECTIVE PUBLIC HEARING NOTICE AND AGENDA; CEASE
AND DESIST DEMAND & CURE AND CORRECT REQUEST
Astonishingly, despite SWMSRCC’s previous letters2 notifying the City of its faulty notices and agendas under the Brown Act (Cal. Govt. Code section 54950 et seq.) for the Section 31 Specific Plan, the Public Hearing Notice and Agenda in the matter at hand again violate the Brown Act, a statute designed to ensure governmental transparency and accountability. Specifically, the Public Hearing Notice and Agenda fail to identify the Project as Disney’s Cotino Project despite it being known as such generally and publicly since at least February of 2022.3 As such, the Public Hearing Notice and Agenda fail to communicate to the public what the Project approval is sought for (i.e., Disney’s Cotino) and who the actual Project proponent is (Disney).
Such information is crucial to enable informed public comment and participation since Disney’s branding and involvement in the Project significantly enlarges its scope and impacts and raise relevant issues that the public may be interested to know and be able to comment upon. For these reasons, SWMSRCC again respectfully demands in accordance with the Brown Act Govt. Code Sections 54960 and 54960.1 that the City cease and desist from its pattern and practice of issuing vague agenda and public hearing notices. Further, SWMSRCC maintains that the City should continue and re- notice a new date for the hearing on the Project so that it can properly identify the
2 We hereby expressly incorporate by reference all our prior comment letters and correspondence to the City, related to Section 31 Specific Plan and/or Disney’s Cotino Project and we request that those be submitted before the decision-makers and placed in the administrative record for this Project.
3 See https://www.usatoday.com/story/travel/experience/theme-parks/2022/02/16/disney- getting-into-residential-housing-market-storyliving/6811164001/.
City of Rancho Mirage –Residential Design Guidelines for Section 31 Specific Plan Project July 6, 2023
Project as Disney’s Cotino Project on both the new Public Hearing Notice and Agenda.
II. THE PROJECT EXCEEDS THE CITY’S AUTHORITY AND
IMPROPERLY EVADES CEQA REVIEW
The Project seeks to modify the development review process for detached single- family residences from discretionary to ministerial if they are found to be in compliance with the design guidelines. Specifically, the Staff Report provides:
“To streamline the development review process specifically for single- family detached residences for the Cotino development. Instead of having individual home builders go through the public hearing process, the applicant is requesting that the home builders submit Final Development Plan applications for single-family detached residences in Cotino for staff level review so long as their construction plans comply with the Section 31 Specific Plan and proposed Design Guidelines.” Staff Report at 5.
As basis for the modification, the City cites Rancho Mirage Municipal Code (“RMMC”) section 17.42.060, where a development plan permit may be approved subject to certain findings. Id. at 20. However, such code section allows the review authority to “approve a development plan permit in whole or in part, and [to] impose specific development conditions.”4
Among those conditions are consistency with the applicable plans (see subdivision A); however, the conditions also emphasize the need for a public hearing and findings for each development project, which include site-specific conditions peculiar to the particular development project (e.g., specific location of the Project) and, most importantly, CEQA review of potential impacts and mitigation thereof; namely:
“17.42.060 Findings and decision.
Following a hearing, the review authority, as identified in Table 4-1, Section 17.34.010, shall record the decision in writing and shall recite the findings upon which the decision is based. The review authority may approve a development plan permit in whole or in part, and shall impose specific development conditions. These conditions shall relate to both
4 See, City of Rancho Mirage Municipal Code Section 16.42.060, available at:
https://library.qcode.us/lib/rancho_mirage_ca/pub/municipal_code/item/title_17- division_iv-chapter_17_42?view=all#title_17-division_iv-chapter_17_42-17_42_060
City of Rancho Mirage –Residential Design Guidelines for Section 31 Specific Plan Project July 6, 2023
on- and off-site improvements that are necessary to accommodate property development, mitigate project-related adverse effects, and to carry out the purpose and requirements of the respective zoning district.
The review authority may approve a development plan permit, only if all of the following findings are made:
A. The proposed development is:
1. Allowed within the respective zoning district;
2. Generally in compliance with all of the applicable provisions of this title that are necessary to carry out the purpose and requirements of the respective zoning district, including prescribed development standards and applicable design guidelines; and
3. Consistent with the general plan and specific plan, if applicable.
B. The proposed project would produce a comprehensive development incorporating a more enhanced environment and architectural excellence (e.g., appropriate variety of structure placement and orientation opportunities, appropriate mix of structure sizes, high quality architectural design, increased amounts of landscaping and open space, improved solutions to the design and placement of parking facilities, etc.) than would normally be possible under more standard district development requirements; C. The design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle access and public services and utilities (e.g., drainage, fire protection, sewers, water, etc.), would ensure that the proposed development would not endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or welfare, or injurious to the property or improvements in the vicinity and the respective zoning district;
D. The design, location, and proposed uses would be compatible
City of Rancho Mirage –Residential Design Guidelines for Section 31 Specific Plan Project July 6, 2023
with the character of existing development in the surrounding neighborhood;
E. The subject site is physically suitable for the type and density/intensity of development being proposed; and
F. The proposed project has been reviewed in compliance with the provisions of the California Environmental Quality Act
(CEQA) and there would be no potential significant negative effects upon environmental quality and natural resources that would not be properly mitigated and monitored, unless findings are made in compliance with CEQA. (Ord. 777 § 1 (Exh. A), 2002).” (RMMC § 17.42.060, emph. added.)
As such, under the City’s respective RMMC § 17.42.060, mere compliance or consistency of the development project is but one condition out of many others to be met, and therefore is not sufficient for the approval of the development plan, let alone the development of 1932 single-family units.
Yet, based on the Staff Report, the City is trying to entitle all 1932 single-family homes and do so without CEQA review by labeling those single family developments as ministerial. The City's attempt to override the express conditions of its own Municipal Code Section 17.42.060, including condition in subdivision F, exceeds its authority and improperly seeks to circumvent CEQA mandates.
First, the EIR for the Section 31 Specific Plan, approved in 20195 – while allowing 1932 units to be built – expressly acknowledged the inconsistency of the proposed density but justified it by claiming that part of those units will be condominiums; yet, now the City is trying to use the EIR and approvals for the Specific Plan 31 to allow 1932 single family units, that were admittedly over the permitted density for the area even according to the EIR:
“The Section 31 Specific Plan would be approved and adopted by the City as the zoning for the Project Site. The Section 31 Specific Plan would develop up to 1,932 residential units. While this represents an increase of 1,066 units beyond what is permitted under the current land use
5 See, Notice of Determination, at https://files.ceqanet.opr.ca.gov/72272- 3/attachment/Pm90NEzrdm6Bis5tBVG-
z26NBAXjoQaGso85pd1x86RHqFfWrp1iwY3dAkE6GNWYIuso9FScBJ1o7oG80
City of Rancho Mirage –Residential Design Guidelines for Section 31 Specific Plan Project July 6, 2023
designations, as mentioned previously, the existing Rs-H zoning/land use designation could accommodate a range of resort and resort-serving uses, including condominium hotel units and condominiums under certain conditions. Accordingly, it can be reasonably inferred that the Rs-H portion of the Project Site would result in some form of permanent residents upon development under existing conditions…” (Specific Plan 31, Draft EIR, p. 5.10-12/pdf p. 12.)6
Thus, even upon approval of the Section 31 Specific Plan and certification of its EIR, the City did not contemplate ministerial process for any single family development of 1,932 units, but rather approval of “condominium hotel units and condominiums under certain conditions,” i.e., envisaged a discretionary process for their approval, upon which the City could shape the developments by exercising personal judgment and discretion. Neither does the Code contemplate such ministerial process.
Moreover, the conditions under the RMMC § 17.42.060, especially subdivision C, related to the design, location, shape, size and the peculiar characteristics of the proposed development as to the emergency access or utility services, suggests that the development plan contemplated by the Code is much more limited in mass and scope and could not reasonably encompass 1,932 unit development on 618 acres of land, as proposed under the Section 31 Specific Plan.
The City is not entitled to shift its course and change the review process of 1932 single family units under RMMC, since it may only approve or deny a specific development plan. For the City to change the review process of a development plan permit under this code to fit 1,932 single family units proposed on about 618 acres and further to dispose of the CEQA review condition under subdivision F for all development plans through a meaningless and unwarranted CEQA exemption based on the prior 2019 Section 31 Specific Plan EIR, clearly exceeds the City’s authority under the Code.
As such, the Project may not be approved as it is inconsistent with the City’s own Code provisions and conditions about the approval of a development plan and exceeds the City’s authority to rewrite the Code or dispose of its express conditions.
6 See, Specific Plan 31, Draft EIR, Land Use Section, available at:
https://files.ceqanet.opr.ca.gov/72272-
2/attachment/5f4XH3mnKnkyLhtP5Sz_Hz7k9dVBLtyfJURmZ-
FznHaGi5tGuECOk1IXN1QjBKuL9s8nVZFFyrchePk00
City of Rancho Mirage –Residential Design Guidelines for Section 31 Specific Plan Project July 6, 2023
Finally, as earlier noted, one of the required findings for approval of a development plan permit under the section is a determination that “[t]he proposed project has been reviewed in compliance with the provisions of the California Environmental Quality Act (CEQA)”. RMMC § 17.42.060(F). As the Project fails to comply with CEQA as explained below, the Project cannot be approved since it both violates the Code itself and CEQA.
III. THE CITY MUST PREPARE A NEW OR SUBSEQUENT
ENVIRONMENTAL IMPACT REPORT FOR THE PROJECT
CEQA is a California statute designed to inform decision makers and the public about the potential, significant environmental effects of a project. 14 California Code of Regulations (“CEQA Guidelines”) § 15002(a)(1).7 At its core, “[i]ts purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made.” Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal. 3d 553, 564.
To achieve this purpose, CEQA mandates preparation of an Environmental Impact Report (“EIR”) for projects so that the foreseeable impacts of pursuing the project can be understood and weighed. Communities for a Better Environment v. Richmond (2010) 184 Cal. App. 4th 70, 80. The EIR requirement “is the heart of CEQA.” CEQA Guidelines, § 15003(a).
The preparation and circulation of an EIR is more than a set of technical hurdles for agencies and developers to overcome. The EIR’s function is to ensure that government officials who decide to build or approve a project do so with a full understanding of the environmental consequences and, equally important, that the public is assured those consequences have been considered. For the EIR to serve these goals it must present information so that the foreseeable impacts of pursuing the project can be understood and weighed, and the public must be given an adequate opportunity to comment on that presentation before the decision to go forward is made. Communities for a Better Environment v. Richmond (2010) 184 Cal. App. 4th 70, 80
7 The CEQA Guidelines, codified in Title 14 of the California Code of Regulations, section 15000 et seq, are regulatory guidelines promulgated by the state Natural Resources Agency for the implementation of CEQA. (Cal. Pub. Res. Code § 21083.) The CEQA Guidelines are given “great weight in interpreting CEQA except when . . . clearly unauthorized or erroneous.” Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal. 4th 204, 217.
City of Rancho Mirage –Residential Design Guidelines for Section 31 Specific Plan Project July 6, 2023
(quoting Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal. 4th 412, 449–450).
Here, the City contends that no subsequent EIR is necessary pursuant to section 15162 of the CEQA Guidelines because the previously approved EIR for the Section 31 Specific Plan, certified in December 2019, is still valid.
Section 15162 of the CEQA Guidelines requires a subsequent EIR any time:
(1) Substantial changes are proposed in the project which will require major revisions of the previous EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects;
(2) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or
(3) 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, shows any of the following:
(a) The project will have one or more significant effects not discussed in the previous EIR or negative declaration;
(b) Significant effects previously examined will be substantially more severe than shown in the previous EIR;
(c) 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
(d) 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
City of Rancho Mirage –Residential Design Guidelines for Section 31 Specific Plan Project July 6, 2023
environment, but the project proponents decline to adopt the mitigation measure or alternative.
Here, there are new feasible mitigation measures and analysis criteria since the 2019 certification of the 2017 EIR which must be considered and are of particular importance given that the EIR found significant and unavoidable greenhouse gas impacts. Draft EIR at 5.7-45.8 First, although the EIR requires evidence of energy efficient lighting, heating, and cooling systems as well as the use of cool or green roofs (id. at 5.7-42), it fails to include a mitigation measure requiring the installation of solar photovoltaic and battery systems, as required by section 1040.10 of the 2022 Energy Efficiency Standards.
Additionally, the EIR relies on a Level of Service (“LOS”) standard to assess transportation impacts rather than solely the Vehicle Miles Traveled (“VMT”) standard, as required by Senate Bill 743 passed in July 2020 in an effort to reduce greenhouse gas impacts. DEIR at 5.15-27. Thus, the EIR analysis is outdated and a subsequent EIR assessing transportation impacts solely on VMT rather than relying on both LOS and VMT is necessary in order to adequately assess the Project’s transportation impacts.
Further, as earlier noted in the comment above and also emphasized in our prior comment letters incorporated herein by reference, the City’s proposed approval of 1,932 single family units far exceeds and changes the scope of the Section 31 Specific Plan itself, which had contemplated condominium units of arguably smaller size, fewer amenities, and smaller scope in space. It is reasonably foreseeable that a single-family unit may and could accommodate far more bedrooms and bathrooms, guest rooms, amenities, potentially pools, and therefore involve far more impacts than condominium units, including but not limited to impacts to traffic, air quality, greenhouse gas, energy, utilities, noise, public services, open space, etc.
There is an acknowledged direct correlation between the increase in traffic impacts and an increase in their associated air quality, greenhouse gas emission (“GHG”), and noise impacts. See e.g., City of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th 398,
8 The Draft EIR for the Section 31 Specific Plan can be found at https://weblink.ranchomirageca.gov/WebLink/DocView.aspx?id=573695&dbid=0&repo= RanchoMirage&_gl=1*ddg93c*_ga*NjMwOTg2NDAyLjE2ODU5OTQwNDk.*_ga_81F8B 0B3WJ*MTY4NTk5NDA0OS4xLjEuMTY4NTk5NjY1OC4wLjAuMA..&_ga=2.209193814. 57408882.1685994049-630986402.1685994049&cr=1.
City of Rancho Mirage –Residential Design Guidelines for Section 31 Specific Plan Project July 6, 2023
413, “it is reasonable to assume” that a project enabling physical residential development would have reasonably foreseeable indirect air and other impacts.
As stated in the Office of Planning Research’s Technical Advisory in 2018:
“VMT and Greenhouse Gas Emissions Reduction. Senate Bill 32 (Pavley, 2016) requires California to reduce greenhouse gas (GHG) emissions 40 percent below 1990 levels by 2030, and Executive Order B-16-12 provides a target of 80 percent below 1990 emissions levels for the transportation sector by 2050. The transportation sector has three major means of reducing GHG emissions: increasing vehicle efficiency, reducing fuel carbon content, and reducing the amount of vehicle travel.”9 Similarly, there is an acknowledged nexus between the increase of traffic and an increase in related air quality, GHG impacts, noise, water/flooding impacts and impacts on human health and natural environment, including wildlife and waterways. As described in the 2018 OPR Technical Advisory:
“VMT and Other Impacts to Health and Environment. VMT mitigation also creates substantial benefits (sometimes characterized as “co-benefits” to GHG reduction) in both in the near-term and the long-term. Beyond GHG emissions, increases in VMT also impact human health and the natural environment. Human health is impacted as increases in vehicle travel lead to more vehicle crashes, poorer air quality, increases in chronic diseases associated with reduced physical activity, and worse mental health. Increases in vehicle travel also negatively affect other road users, including pedestrians, cyclists, other motorists, and many transit users. The natural environment is impacted as higher VMT leads to more collisions with wildlife and fragments habitat. Additionally, development that leads to more vehicle travel also tends to consume more energy, water, and open space (including farmland and sensitive habitat). This increase in impermeable surfaces raises the flood risk and pollutant transport into waterways.”10
In light of the fact that the Section 31 Specific Plan EIR failed to study the development of single family units at all and the fact that it has now become apparent
9 OPR Technical Advisory, supra, at p. 2.
10 Id. at p. 3.
City of Rancho Mirage –Residential Design Guidelines for Section 31 Specific Plan Project July 6, 2023
that the Section 31 Specific Plan will be implemented with Disney’s involvement and include other amenities attracting more intensive uses and visitors, the Project may actually have traffic impacts and derivatively also air quality, greenhouse gas emission, noise, and other traffic-related impacts, during both the construction and operation phase. Yet, those impacts were not studied in any prior environmental document.
In sum, a subsequent or new EIR must be prepared to specify and incorporate additional feasible mitigation measures and impact analysis, as well as to account for the changed and increased scope of the development of 1,932 single family residential units as compared with the condominium units under Section 31 Specific Plan EIR, as well as the fact that those units and the entire Section 31 Specific Plan will now involve more and far intensive units in light of Disney’s involvement IV. ABSENT A SUBSEQUENT EIR, THE PROJECT CONSTITUTES
PIECEMEAL ENVIRONMENTAL REVIEW IN VIOLATION OF
CEQA
Yet another reason why a subsequent EIR is necessary is because absent one, the Project constitutes piecemeal environmental review, in violation of CEQA. It is well established that projects must not be separated into smaller parts, or piecemealed, for purposes of environmental review; environmental review must include all phases of the project. (CEQA Guidelines §§ 15063, subd. (a)(1); 15378, subd. (a); Natural Resources Defense Council v. City of Los Angeles (2002) 103 Cal.App.4th 268, 271 [“[t]he CEQA process is intended to be a careful examination, fully open to the public, of the environmental consequences of a given project, covering the entire project, from start to finish”].) Thus, CEQA prohibits evading comprehensive CEQA analysis by “chopping a large project into many little ones -- each with a minimal potential impact on the environment -- which cumulatively may have disastrous consequences.” (Bozung v. LAFCO. (1975) 13 Cal.3d 263, 283-84; Orinda Assn v. Board of Supervisors (1986) 182 Cal.App.3d 1145, 1171.)
Further, “if projects are ‘various steps which taken together obtain an objective,’ they are a single project for the purposes of CEQA.” (Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, 283.) This is also true for projects that are “integrally related.” (Nelson v. County of Kern (2010) 190 Cal.App.4th 252, 272.) Lead agencies must “construe the project broadly to capture the whole of the action and its environmental impacts.” (Save Berkeley’s Neighborhoods v. Regents of University of California (2020) 51 Cal.App. 5th 226, 239.)
City of Rancho Mirage –Residential Design Guidelines for Section 31 Specific Plan Project July 6, 2023
Here, although the Specific Plan EIR was certified in 2019, the City is now over three years later separately considering a modification to design guidelines specifically for the residential units specified in the Specific Plan.
Thus, the design guidelines are integrally related to the Specific Plan and absent a subsequent EIR analyzing the two together, the Project approval constitutes piecemealed environmental review in violation of CEQA.
V. CONCLUSION
In sum, SMSWRCC again requests that (1) the City re-notice the hearing to properly disclose the applicant in accordance with the Brown Act; and (2) that the City prepare a new or subsequent EIR for the Project to disclose, account and mitigate the Project’s individual and cumulative impacts, in compliance with CEQA. If the City has any questions, feel free to contact my office.
Sincerely,
Talia Nimmer
Attorneys for Southwest Mountain
States Regional Council of Carpenters