REPORT TO THE CITY COUNCIL
FROM: JENNIFER CLARK, Director
Planning and Development Department
THROUGH: SOPHIA PAGOULATOS, Planning Manager
Planning and Development Department
BY: DREW WILSON, Supervising Planner
Planning and Development Department
SUBJECT
Title
HEARING for Consideration of Text Amendment Application No. P21-05809 and related Environmental Finding for Environmental Assessment No. P21-05809, amending Chapter 15 of the Fresno Municipal Code, Tables 15-1102, 15-1402, and 15-1502, and Section 15-2010, relating to the Zone Districts where Electrified Fences are permitted.
1. RECOMMEND ADOPTION of a finding set forth in Environmental Assessment No. P21-05809 dated April 20, 2022, that Text Amendment Application No. P21-05809 is exempt from the California Environmental Quality Act (CEQA) pursuant to the commonsense exemption that it can be seen with certainty that there is no possibility that the proposed text amendment may have a significant effect on the environment pursuant to CEQA Guidelines Section 15061(b)(3).
2. BILL (For Introduction) Amending Chapter 15 of the Fresno Municipal Code, Tables 15-1102, 15-1402, and 15-1502 and Section 15-2010, relating to the Zone Districts where Electrified Fences are permitted.
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Body
RECOMMENDATION
Approve Text Amendment Application No. P21-05809, to amend Section 15-2010 of the Fresno Municipal Code relating to the Zone Districts where Electrified Fences are permitted as described in the attached Text Amendment Modified to include City Council's recommendations (Exhibit M).
EXECUTIVE SUMMARY
Precision Civil Engineering, Inc. submitted a proposed Text Amendment on behalf of Amarok, LLC (formerly known as Electric Guard Dog) to amend Section 15-2010 of the Fresno Municipal Code, relating to the Zone Districts where Electrified Fences are permitted.
BACKGROUND
Two prior text amendments on this topic have been considered by the Planning Commission and City Council. A Text Amendment Application was initiated by City Council on June 22, 2017 (see Exhibit A) to reduce the requirements and risk for property and business owners to have a security or electric fence installed. The changes allowed for an agreement to be established between the City and the owner of a security or electric fence that defends, hold harmless, and indemnifies the City related to the fencing. The amendment was necessary because previously the Development Code only allowed for agreements to be made between the City and the property owner. In 2018, staff initiated a text amendment to the Development Code to clarify the locations electric fences were permitted as part of a group of minor changes to improve functionality, clarity, and internal consistency.
Precision Civil Engineering, Inc. submitted a proposed Text Amendment (see Exhibit B) on behalf of Amarok, LLC (formerly known as Electric Guard Dog) to amend Section 15-2010 of the Fresno Municipal Code, relating to the to the zone districts where electrified fences are permitted. The submitted Text Amendment proposes to expand the zone districts where electric fences are permitted from Industrial and Commercial Districts to all Mixed-Use Districts, all Commercial Districts, all Employment Districts, the Public and Institutional District, and all Downtown Districts with the exception of the Downtown Core. A map of the area that the proposed text amendment would affect can be found in Exhibit C.
Planning Commission Recommendation - June 15, 2022
The Planning Commission considered the proposed applications at a regularly scheduled public hearing held on June 15, 2022, and recommended approval with modifications by a 6-1 vote. Four members of the public testified in support of the item and two members of the public testified in opposition. The modifications to the proposed Text Amendment by Planning Commission were the following (See Exhibit I):
• An 18-inch separation is required between the perimeter fence and the electrified fence.
• All Mixed-Use Districts and the Public and Institutional Districts shall be removed from permitted locations.
• Electric Fences shall not be permitted within 500 feet of sensitive uses, such as schools and childcare facilities.
Staff agreed with the previously proposed modifications from Planning Commission, and offered further modifications to fully implement Planning Commission’s intent of not allowing electric fences in zone districts that permit residential use or near sensitive uses (See Exhibit J):
• Commercial Main Street District should be removed from permitted locations (this district allows residential uses).
• Regional Commercial District should be removed from permitted locations (this district allows residential uses).
• Downtown Districts should be removed from permitted locations except in locations east of State Route 41 (these districts allow residential uses).
In addition, staff recommended permitting electric fences for one set of uses within the Public and Institutional zone districts, because these uses would not include residential development or sensitive uses. The proposed modifications are:
• Permitted in Public and Institutional District when the uses fall under the Transportation, Communication, and Utilities Use Classifications.
All the modifications recommended for approval by the Planning Commission on June 15, 2022, and those described above were incorporated into revised versions of the Text Amendment included in Exhibit I and Exhibit J.
Recent Council Direction based on New Submittal from Applicant-July 21, 2022
On July 21, 2022, the City Council voted to refer a new alternative modification of the Text Amendment submitted by the applicant back to Planning Commission. The City Council requested that all electric fence applications be reviewed by the appropriate Council District Project Review Committees. The proposed modifications reflect City Council’s intent and are based on the applicant’s interpretation of the Planning Commission recommendation (see Exhibit M). The proposed modifications are:
• The Mixed-Use Districts and Public and Intuitional Districts would not be removed, but limitations would be placed on the Use Classification where electrified fences can be installed. The permitted Use Classifications where an electrified fence can be installed in those districts would be:
o Public and Semi-Public Use Classifications
§ Parking, Public or Private
§ Public Safety Facilities
o Commercial Use Classifications
§ Automobile/Vehicle Sales and Services:
• Automobile/Vehicle Sales and Leasing
• Automobile Rentals
• Automobile/Vehicle Repair, Major
• Automobile/Vehicle Service and Repair, Minor
§ Retail Sales - Building Materials and Services
o Industrial Use Classifications
§ Custom Manufacturing
§ Limited Industrial
§ Personal Storage
o Transportation, Communication, and Utilities Use Classifications
§ Airports and Heliports
§ Communication Facilities - Antenna and Transmission Towers
§ Utilities, Minor
• Would allow existing legal non-conforming uses in Mixed-Use Districts to install electrified fences if the existing use is permitted in Employment Districts (Office, Business Park, Regional Business Park, Light Industrial, and Heavy Industrial Districts).
• Electrified Fences would be processed as a Development Permit to ensure that all permits go to the appropriate Council District Project Review Committees and within 3 days of the Director’s decision, a notice would be sent from the Director or designee via e-mail to the Councilmember whose district the approved electrified fence is located.
This alternative would deviate from the structure of the Development Code, as it would base regulations on the use and not the zone district. This approach is not used anywhere else in the Development Code. As noted below, staff is not able to make the findings.
Planning Commission Referred Recommendation - August 17, 2022
The Planning Commission considered the proposed alternative modification of the Text Amendment submitted by the applicant at a regularly scheduled meeting held on August 17, 2022, and recommended approval with a consistency review, specifically not permitting the installation of electric fences in Park and Recreation Facilities, with a 6-0 vote. No members of the public testified in support of the item and one member of the public testified in opposition.
Versions of Text Amendment
The applicant has submitted five versions of the Text Amendment to date. The first four are included in Exhibit G and the most recent is included in Exhibit O, which is based on the applicant's interpretation of the City Council’s recommendations.
Development Code Findings
City Council shall not approve an application unless the proposed amendment meets the following criteria, as set forth in Fresno Municipal Code section 15-5811. Staff’s analysis of findings for the original text amendment (Exhibit B) submitted by the applicant on November 19, 2021, are included in Exhibit D. The findings have not changed for this latest July 2022 recommendation from the City Council; staff finds the recommendation to be inconsistent with the General Plan and the Development Code, as noted in Exhibit D.
However, findings to support the text amendment as originally modified by Planning Commission are included in Exhibit K.
Public Notice and Comment
Notice was provided by the following methods pursuant to Fresno Municipal Code (FMC) Sections 15-5007-C and D (See Exhibit E):
1. A legal notice was published in the Fresno Bee on May 20, 2022.
2. A legal notice was published in the Fresno Bee on September 2, 2022.
3. The proposed amendments were posted on the city’s website on the City Clerk’s page.
To date, three public comment letters have been received, which are included in Exhibit N.
Review by Committees and Commissions
The active Council District Plan Implementation Committees, the Tower District Design Review and the Fulton-Lowell Specific Plan Committees all reviewed the proposed plan amendments and rezones in their respective areas and the text amendment, which applies city-wide. Their recommendations are listed below.
• District 1: On February 1, 2022, the Committee recommended staff meet with the applicant to discuss potential modification to the Text Amendment.
• District 2: On March 14, 2022, the Committee recommended approval of the proposed application.
• District 3: On February 22, 2022, the Committee recommended denial of the proposed application.
• District 4: The Committee is currently inactive.
• District 5: On March 7, 2022, the recommended approval of the proposed application.
• District 6: On February 7, 2022, the Committee recommended approval of the proposed application.
• District 7: The Committee is currently inactive.
• Fulton-Lowell Design Review Committee: On February 14, 2022, the Committee recommended approval of the proposed application.
• Tower District Design Review Committee: On February 8, 2022, the recommended approval of the proposed application.
• The Planning Commission recommended approval with modifications to the City Council on June 15, 2022.
The proposed text amendment was provided to the Fresno County Airport Land Use Commission staff to determine if the proposed amendment required the Airport Land Use Commission’s review, but it was determined that review was not necessary.
ENVIRONMENTAL FINDINGS
An environmental assessment was prepared for this project in accordance with the requirements of the California Environmental Quality Act (CEQA) Guidelines (See Exhibit F).
CEQA Guidelines Section 15061(b)(3) states that a project is exempt from CEQA if it is “covered by the commonsense exemption that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.”
Staff has conducted a preliminary review of the project and has determined that it is exempt from CEQA pursuant to CEQA Guidelines Section 15061 (b)(3) under the commonsense exemption that CEQA applies only to projects which have the potential for causing a significant effect on the environment. The proposed Text Amendment changes the zoning code and modifies an existing, established framework for future land use planning and approvals and does not commit the City to any specific project or development on any particular site. The regulations of the proposed Text Amendment will not intensify the use of any establishment. The application process already exists within the Fresno Municipal Code and the proposed Text Amendment expands the Zone Districts where electrified fences can be installed. As such, the proposed Text Amendment will not intensify any existing uses. All individual projects under the proposed Text Amendment will be subject to discretionary review. Each individual application will be evaluated pursuant to the requirements of CEQA, and the appropriate level of environmental review will be completed when the scope and impacts of each individual entitlement are known. Because the text amendment proposes to expand the zone districts where electric fences are permitted, it can be seen with certainty that there is no possibility that the adoption of the Text Amendment may have a significant effect on the environment. Therefore, this action is exempt from CEQA pursuant to CEQA Guidelines Section 15061 (b)(3); the Environmental Assessment is attached as Exhibit F.
LOCAL PREFERENCE
Local preference was not considered because this project does not include a bid or award of a construction or service contract.
FISCAL IMPACT
N/A
Attachments:
Exhibit A: Council Resolution 2017-174
Exhibit B: Text Amendment Application P21-05809
Exhibit C: Maps of Current / Proposed Land Use Districts Allowing Electric Fences
Exhibit D: Fresno Municipal Code Findings
Exhibit E: Public Notices
Exhibit F: Environmental Assessment
Exhibit G: Applicant Proposed Revisions
Exhibit H: Presentation
Exhibit I: Text Amendment Modified (PC Recommendations)
Exhibit J: Text Amendment Modified (Staff Recommendations)
Exhibit K: Fresno Municipal Code Findings from Applicant
Exhibit L: PC Resolutions
Exhibit M: Text Amendment Modified (City Council's Initial Recommendations)
Exhibit N: Public Comments
Exhibit O: Revised Text Amendment (City Council's Updated Recommendations)