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 Section 15-2010 of the Fresno Municipal Code, 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 common sense 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. RECOMMEND APPROVAL WITH CONDITIONS set forth by the Planning Commission of 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. ..Body RECOMMENDATION Planning Commission recommends that the City Council adopt the Environmental Assessment P21-05809 and Approve with Conditions as described in the attached Text Amendment Modified by Planning Commission (Exhibit I) and Planning Commission Resolution (Exhibit L). Additional conditions of approval may also be considered and are discussed more fully in the following report and shown in Exhibit J. 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. Fresno City Planning Commission Action Pursuant to the requirements of Fresno Municipal Code section 15-5806 (and 15-5007-D), notice of the Planning Commission public hearing was published in the Fresno Bee on May 20, 2022. Section 15-5007-D allows the posting of a public hearing notice, in at least one newspaper of general circulation, as an alternative noticing method for large mailings. 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 utilizing the Development Code Findings provided by the applicant (see Exhibit K). 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 is in agreement with the proposed modifications from Planning Commission, and would offer 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 from should be removed from permitted locations except in locations east of State Route 41 (these districts allow residential uses). In addition, staff recommends 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 of the modifications recommended for approval by the Planning Commission and those described above have been incorporated into revised versions of the Text Amendment included in Exhibit I and Exhibit J. On June 22, 2022 the applicant submitted alternative modifications to the Text Amendment based on the intent of the modifications from the Planning Commission (see Exhibit M). The proposed modifications are: * The Mixed-Use Districts and Public and Intuitional Districts are not removed, but limitations on the Use Classification where electrified fences can be installed. The permitted Use Classifications where an electrified fence can be installed in those districts are: 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 * Allows for 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). This would be a regulation based on the current use and not the existing zone district, which is not used anywhere else in the Development Code. * Proposes additional requirements for properties that abut vacant or existing residential uses within a Residential, Mixed-Use, or Downtown Districts: o Requests for Electrified Fences shall be processed as a Development Permit in accordance with Chapter 15, Article 52 of the Fresno Municipal Code. o Within 3 days of the Director's decision, a notice shall be sent from the Director or designee via e-mail to the Councilmember whose district the approved electrified fence is located. 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 fences 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 required agreements to be made solely 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 the Development Code in order 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 the currently allowed Industrial and Commercial Districts to include 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. Maps of current and proposed land use districts allowing electric fences can be found in Exhibit C. Development Code Findings Staff's analysis of findings for the text amendment submitted by the applicant are included in Exhibit D. Staff was not able to make the findings. However, findings to support the text amendment as modified by Planning Commission are included in Exhibit J. 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. The proposed amendments were posted on the city's website on the City Clerk's page. The applicant's first proposed revision to the text amendment is included in Exhibit G. To date, there have been 3 comment letters received on the applications (see 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 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 Committee 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: On February 14, 2022, the Committee recommended approval of the proposed application. > Tower District Design Review Committee: On February 8, 2022, the Committee recommended approval of the proposed application. The proposed text amendment was provided to the 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 No. P21-05809 Exhibit C: Maps of Current and Proposed Land Use Districts Allowing Electric Fences Exhibit D: Fresno Municipal Code Findings Exhibit E: Public Notice Exhibit F: Environmental Assessment Exhibit G: Applicant Proposed Revision Exhibit H: Presentation Exhibit I: Text Amendment Modified to include Planning Commission recommendations Exhibit J: Text Amendment Modified to include Staff recommendations Exhibit K: Fresno Municipal Code Findings from Applicant Exhibit K: Planning Commission Resolution Exhibit M: Applicant Proposed Revision to Text Amendment for Electric Fences revised based on Planning Commission Exhibit N: Public Comments