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HomeMy WebLinkAboutCorrespondence - Item 20 (3) Zuniga, Diana From: Jason Rush < Sent: Tuesday, June 17, 2025 2:24 PM To: eComment Cc: PATRICK MUNOZ; Cooper, Scott Subject: city council meeting, item no. 20, 17june 2025 Attachments: MAD MAT CITY OF SANTA ANA TZD 84 RESPONSE LETTER 170625.pdf -Attention: This email originated from outside of City of Santa Ana.Use caution when opening attachments or links. Good afternoon??? Attached, please find public comment regarding item no. 20 from and for the 17 June 2025 city council meeting. JASON BRYCE RUSH Legislative Director Ware Disposal Inc. 1 RESO@BCE RECOYERV fAci[rrr June 17, 2025 VIA E-MAIL Jennifer L. Hall City Clerk City of Santa Ana eComment u,santa-ana.or Re: Objections to Item 20 of June 17, 2025 City Council MeetiuE Dear Honorable Mayor and Members of the City Council: I am the Legislative Director for Ware Disposal Inc. and JBW Enterprises, LLC (collectively"Ware"),which owns and operates certain facilities located within the Transit Zoning Code ("TZC") Zone. This letter is intended to object to the City's Proposed adoption of Zoning Ordinance Amendment No. 2024-02 and Amendment Application No. 2024-03 (the "Proposed Ordinance"), and to respectfully request that the City, at a minimum,make necessary revisions to the Proposed Ordinance to avoid certain constitutional infirmities,and to otherwise protect Ware's and other industrial property owners' vested rights to continue to operate their buildings. As explained below, the City's use of an Addendum to the 2010 environmental impact report("EIR")is not permitted under the California Environmental Quality Act("CEQA")and the Addendum's project description is fatally deficient due to its material failure to adequately describe the reach and environmental impacts of the Proposed Ordinance. Prior to acting on the Proposed Ordinance, the City must prepare an EIR in accordance with CEQA. Further, the City's Proposed Ordinance is facially defective, and must be abandoned in its entirety. If the City were to adopt the Ordinance as currently drafted, it would be so fatally defective so as to be rendered unenforceable, while exposing the City to substantial financial liability. Instead of adopting the Ordinance as currently proposed,Ware is requesting that the City table the Ordinance, and work with Ware and other stakeholders to address City staff's stated concerns, while also being protective of the stakeholders' interests. P.O. Box 1108 Santa Ana, CA 92702 (714)664-0159 Fax(714)664-0696 Jennifer L. Hall June 17, 2025 Page 2 1. The Citv's Use of a Conclusory Addendum in this Case is Im kro per Under the California Environmental Quality Act (a) A New EIR Is Required Before the City Can Approve the Ordinance It is well settled that if a proposed project is outside the scope of a program EIR,the agency cannot rely on the EIR to provide an analysis of the project's environmental impacts and must treat the activity as an independent project that has not been reviewed under CEQA. (Sierra Club v. County of Sonoma (1992) 6 Cal.AppAth 1307, 1320-1321 [First Appellate District rejects claim that modification to a plan was within the scope of a previously-prepared program EIR for the plan];IBC Business Owners for Sensible Development v. City of Irvine(2023) 88 Cal.App.5th 100 [court rejects reliance on addendum to program EIR for plan change given insufficient evidence showing project's greenhouse gas emissions were within the scope of the program EIR];Save Our Access v. City of San Diego (2023) 92 Cal.App.5th 819, 858 [rejecting reliance on program EIR for code amendments when there was no evidence the EIR considered the impacts of those changes.].) Similarly, an EIR can only be used in a subsequent review context if the agency determines it is relevant and retains information value. (Friends of the College of San Mateo Gardens v. San Mateo Community College Dist. (2016) 1 Cal.5th 937,952.) And an addendum is appropriate only for minor technical changes or additions to a project that"do not raise important new issues about the significant effects on the environment." (Ventura Foothill Neighbors v. County of Ventura (2014) 232 Cal.AppAth 429, 435; see also CEQA Guidelines § 15164.) Anything more than minor technical changes requires a subsequent or supplemental EIR. (Public Resources Code § 21166; CEQA Guidelines § 15162.) Here, the City seeks to rely on a 15-year old environmental document that was based on fundamentally different assumptions to largely avoid meaningful environmental review in this instance. The proposed changes reflected in the Addendum represent a fundamental alteration of the underlying assumptions of the original EIR,particularly with respect to land use, operational characteristics, and environmental impacts. These are not minor technical updates but material changes that warrant the preparation of a subsequent or supplemental EIR pursuant to CEQA. Notably, the 2010 EIR specifically contemplated the continuation of industrial uses in the TZC in the M-1 and M-2 Zones. (DEIR, pp. 1-7, 4.7-15.) Now this City seeks to eliminate the M-1 and M-2 Zones entirely, rendering all industrials uses nonconforming. Additionally, certain uses the City deems to be "noxious"will have to be discontinued entirely. This is a far cry from the 2010 EIR's analysis that assumed these industrial uses would remain in the TZC. The Addendum's environmental analysis—particularly with respect to air quality, traffic, and greenhouse gas emissions—is based on flawed and misleading assumptions. Specifically,the Jennifer L. Hall June 17, 2025 Page 3 Addendum fails to consider the indirect and cumulative effects of displacing"noxious" industrial uses, including their relocation to other parts of the City or surrounding communities. This relocation could lead to increased vehicle miles traveled (VMT), emissions, and congestion in areas that are not addressed in the Addendum. CEQA requires a complete and accurate analysis of both direct and foreseeable indirect impacts. By ignoring the consequences of industrial displacement, the Addendum understates the project's true environmental impacts across the City and surrounding areas. The Addendum's deficiencies in this respect are highlighted in its discussion of the full build out scenario. There, the Addendum only discusses the impacts associated with increased residential uses,but provides no explanation or discussion of the potential impacts associated with the displacement of the industrial uses those residences will necessarily displace. As a result, the Addendum and 2010 EIR are entirely devoid of any environmental analysis related to impacts associated with the relocation or closure of these "noxious" environmental uses. Without any discussion of these impacts, the City Council cannot make a reasonably informed decision on the Ordinance's environmental impacts and the public is similarly kept in the dark. For example, any discontinuation of use at the Madison facility may result in substantial environmental impacts throughout the City. Currently, Ware, as well as a number of other solid- waste haulers, rely on the Madison facility to deliver solid waste collected in the surrounding community. Trash collection and disposal services are a necessary component of human habitation and the orderly sorting and disposal of solid waste is mandated by state law. As such, it is certain that facilities like Madison will have to relocate to different parts of the City or surrounding areas. Even without the Madison facility, these haulers will be forced to travel to Anaheim or Santa Fe Springs to make deliveries that were otherwise available within the City. This will necessarily result in increased truck traffic and emissions in other parts of the City and surrounding areas, which impacts were not otherwise analyzed in the Addendum. (b) The Addendum's Project Descrikition is Fatally Deficient An accurate project description"is the sine qua non of an informative and legally sufficient EIR." (County of Inyo v. City of L.A. (1977)71 Cal.App.3d 185, 193, 199 (hereafter County of Inyo).) When a proposed project is accompanied by an inaccurate or incomplete description, it undermines CEQA by drawing "a red herring across the path of public input." (Id. at pp. 193, 199.) A court will reject an EIR with an incomplete or inaccurate project description because, as the court stated in County of Inyo: Only through an accurate view of the project may affected outsiders and public decisionmakers balance the proposal's benefit against its environmental cost, consider mitigation measures, assess the advantage of Jennifer L. Hall June 17, 2025 Page 4 terminating the proposal (i.e., the "no project alternative") and weigh other alternatives in the balance. (Id. at p. 198.) Because CEQA defines "project" as "the whole of an action," an EIR must also describe the entire proposed project-not a piecemeal version. A project description must include future expansion or later phases of a project that will foreseeably result from project approval. (Laurel Heights improvement Assn. v. Regents of Univ. of Cal. (1988)47 Cal.3d 376; 14 Cal. Code Regs., § 15126 [impact analysis must consider all phases of project).) Additionally, the EIR's project description must be internally consistent. If not, it cannot provide a vehicle for informed public participation in the decision-making process. The Addendum fails this standard in multiple respects. Most significantly, it does not account for the discontinuation, decommissioning, or relocation of existing industrial uses that the City determines are "noxious." These industrial operations are currently active within the project area but are expected to be displaced. However, the Addendum does not describe (1) the extent of or number of noxious uses currently operating in the TZC, (2) how these activities may cease and relocate; (3) the future sites for these uses; or (4) whether these displaced uses will be accommodated elsewhere in the City or in nearby jurisdictions. Instead, the Addendum only identifies and discusses environmental impacts attributable to new residential development in the TZC. As discussed above, the Ordinance will have very real environmental impacts outside of the TZC Zone. However, the Addendum relies on an inherently flawed assumption that these purportedly"noxious"uses will just cease to exist without causing any additional impacts or will not relocate to other areas of the City or surrounding areas. In addition to the Madison facility,the Proposed Ordinance also targets a crematorium in the TZC Zone. Even if the City decides to terminate this use in the TZC, the crematorium will necessarily move to another part of the City or beyond. Just because the City declares a use "noxious", does not mean that the use is any less necessary. This failure to adequately describe the Proposed Ordinance and its environmental impacts results in an inaccurate and incomplete project description that dooms the Addendum from the start. Without a legally adequate project description, it is impossible for the public to understand the Proposed Ordinance's environmental impacts or meaningfully participate in the environmental review process. (c) An EIR Must be Prepared Due to a Fair Argument of Significant Environmental Impacts The substantial evidence standard of review does not apply when an agency purports to rely on a program EIR to approve an activity that is not "the same as or within the scope of the Jennifer L. Hall June 17, 2025 Page 5 project, program, or plan described in the program EIR." (Sierra Club, supra, 6 Cal.AppAth at 1321; Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Ca1.App.4th 1036, 1050, fn. 6 ["when an agency attempts to tier its environmental review for a materially different project onto a prior program EIR, then the fair argument test is required . . In such as case, the activity is treated as a project that has not previously been reviewed under CEQA, and the agency's determination that an EIR is not required is reviewed under the "fair argument" standard. Under that standard, a reviewing court will reject the agency's decision that an EIR is not required if it finds substantial evidence in the agency's record sufficient to support a fair argument the project may result in significant environmental impacts. (Public Resource Code § 21151; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75; Friends of "B"Street v. City of Hayward(1980) 106 Cal.App.3d 988, 1002.) Here,the issues set forth above demonstrate that there is a fair argument that the Proposed Ordinance may result in significant impacts to multiple environmental resources. Even if the Addendum could somehow be viewed as within the scope of the 2010 EIR, a new EIR is still needed because the Proposed Ordinance will result in new or substantially more severe impacts due to substantial changes in what was contemplated under the 2010 EIR, substantial changes in the circumstances under which the Proposed Ordinance will be undertaken, and new information of substantial importance which was not known and could not have been known with the exercise of reasonable diligence. (CEQA Guidelines § 15162(a).) Therefore, an EIR must be prepared before the City can legally consider and act on the Proposed Ordinance. 2. As Drafted, the Ordinance Would Run Afoul of Ware's and other Industrial Owners' Vested Rights to Continue to O Aerate Ware and many other industrial property owners throughout the TZC Zone have secured vested rights to continue to use their properties in accordance with the rights that were granted onto them when they were originally constructed and/or improved upon. The fact that the Proposed Ordinance purports to unilaterally rescind those rights based on the City's determination that it no longer wishes to support those uses does not give the City the right to do so. In California, "if a property owner has performed substantial work and incurred substantial liabilities in good faith reliance upon a permit issued by the government, he acquires a vested right." (Avco Community Developers, Inc. v. South Coast Regional Com.,17 Cal. 3d 785 (1976).) Furthermore, once a landowner has secured a vested right the government may not, by virtue of a change in zoning laws or land use designation, prohibit the use by which the permit relied on. (Id.; see also City of West Hollywood v. Beverly Towers, Inc., 52 Cal.3d 1184, 1192 (1991) [subsequently enacted ordinance imposing new conditions to condominium conversion could not be enforced against property owners who had already obtained all discretionary permits to convert multi-family housing buildings to condominiums].) Jennifer L. Hall June 17, 2025 Page 6 In Goat Hill Tavern v. City of Costa Mesa,the Court held, that"interference with the right to continue an established business is far more serious than the interference a property owner experiences when denied a [...] permit in the first instance. Certainly, this right is sufficiently personal,vested and important to preclude its extinction by a nonjudicial body." (Goat Hill Tavern v. City of Costa Mesa, 6 Cal. App. 4th 1519 (1992) (emphasis added).) Goat Hill Tavern had been operating legally for its entire existence. (Id.) It was only after their permit expired that the use as a tavern became an issue. (Id.) The Court concluded that by now denying Goat Hill Tavern a conditional use permit, the city destroyed a business which had operated legally for years. Ultimately, this action implicated"a fundamental vested right of a property owner" and when that happens the court must exercise its independent judgment on the evidence to find an abuse of discretion by the City. (Id.) Likewise, here, the City issued the requisite approvals to Ware and the other industrial property owners throughout the TZC Zone and validly approved permits, which resulted in the development of those same properties. As such, their continued use of their properties is dictated by the rights that were granted to each of those property owners by the version of the City's code, and the resulting entitlements, that existed at the time of their respective projects' approval. (a) The City's Deletion of the Industrial Overlays and Insertion of New O Lerational Requirements Does not Alter Property Owners' Vested Rights Ignoring the established vested rights of those entities that own industrial properties throughout the City, the City now appears to assert that the City's zoning code modifications can alter those rights without limitation. This is not the case. Instead, California recognizes that the property owner that has secured a vested right can continue to use that property in accordance with that prior right, irrespective of future regulatory restrictions. As one Court succinctly stated: A property owner has a vested right to continue lawful uses of property and is not required to obtain a special use permit in order to continue lawful preexisting uses. (City of Ukiah v. County of Mendocino (1987) 196 Cal.App.3d 47, 56 [emphasis added].) The case of City of Ukiah v. County of Mendocino is instructive. There,a mining company had conducted mining operations within a river for years before the relevant zoning code was amended to require new users to acquire a use permit for mining operations. When the mining company applied for the necessary approvals under California's Surface Mining and Reclamation Act ( "SMARA"), the county ultimately found that the company had a preexisting vested right to conduct its mining operations, and thus no new use permit would be required. Therefore, with no Jennifer L. Hall June 17, 2025 Page 7 required use permit, the County did not have to assess the environmental impacts resulting from the removal of gravel from the river. The City of Ukiah challenged this determination, arguing that the company did not have a vested right to extract gravel from the river, and that a "use permit" was therefore required under the County's new zoning code. The Court of Appeal rejected this argument. As relevant to these proceedings,the court specifically found that the property owner could not be required to obtain a use permit to continue operating pursuant to a prior approval through the adoption of new laws. (Id. at 56.) As such, the court found that no additional use permit was required because the company had been lawfully operating prior to the adoption of the use permit requirement. Case law has repeatedly confirmed that local agencies cannot restrict prior lawful uses through the addition of future regulatory requirements. (See McCaslin v. City of Monterey Park(1958) 163 Cal.App.2d 339, 348; Hill v. City of Manhattan Beach (1971) 6 Cal.3d 279, 285 ["Although a reasonable nonconforming use of property of substandard size which creates no public nuisance forecloses the application of a subsequently enacted zoning ordinance which increases the minimum lot size, `land which has not been used for building purposes would not create a nonconforming use.' A nonconforming use is a lawful use existing on the effective date of the zoning restriction and continuing since that time in nonconformance to the ordinance."]; see also Halaco Engineering Co. v. South Central Coast Regional Com. (1986) 42 Cal.3d 52 [no Regional Board permit requirement when vested right existed];Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 CalAth 533, 552 ["Nonuse is not a nonconforming use, however, and reuse may be prohibited if a nonconforming use has been voluntarily abandoned."].) As in all of these cases, Ware and the other industrial property owners have maintained their rights to operate their properties pursuant to the uses that were authorized under the City's prior code. In light of the foregoing,it is clear that each such member has a vested right to continue to use their property in accordance with those provisions,provided future tenants continue comply with the use restrictions that were previously approved. The fact that the City has attempted to circumvent these constitutional mandates does not alter this analysis. The City's Proposed Ordinance runs afoul of these constitutional safeguards by requiring all industrial operations within the TZC Zone to implement and comply with new operational requirements that did not previously apply to industrial users. (See, e.g., Proposed Ordinance § 41-2002(a)(5)(a)(2)(C) and subsection (a)(5)(a)(3)(C) [stating that nonconforming status lost if there are three violations of Proposed Ordinance Section 41-2009; see also Proposed Ordinance Section 41-2009 [imposing new operational restrictions].) This attempts to impose new operational restrictions on uses that were previously approved,and not subject to those restrictions. As explained above, that is improper. Jennifer L. Hall June 17, 2025 Page 8 (b) To Abandon a Nonconforming Used that a Property Owner Has Aa Vested Ri-Lht to Pursue, the Property Owner Must Intend to Abandon Such a Use In Proposed Section 41-2002(a)(5),the City purports to say that a nonconforming use shall be discontinued"regardless of intent"if certain elements are met. However,under California law, in order to abandon a vested right, the property owner must actually intend to abandon the vested right. It is true that a local agency can generally prohibit the reinstatement of a nonconforming use where a property owner has abandoned that use without running afoul of the vested rights doctrine. However, to be abandoned, the abandonment must be voluntary on the part of the property owner. (Hill v. City of Manhattan Beach (1971) 6 Cal.3d 279, 286 ["This rule is consistent with the further rule that reuse may be prohibited when a nonconforming use is voluntarily abandoned."]; see also Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 CalAth 533, 552 ["Nonuse is not a nonconforming use, however, and reuse may be prohibited if a nonconforming use has been voluntarily abandoned." (emph. added)].) Accordingly, in determining whether a property owner has abandoned their vested right to continue to operate in accordance with the version of SD 84 that existed prior to the Proposed Ordinance, the City must look at the property owner's intent, the City cannot unilaterally determine a nonconforming use must be discontinued. (c) The City's Attempt to Require the Discontinuation of a Vested Riwht Due to a Change in Tenancy and/or Ownership is Illegal Additionally, the Proposed Ordinance purports to a property owners' ability to lease out their buildings in accordance with their vested rights by claiming that a change in ownership or operation of a building could constitute an abandonment of such a use. For example, the City's Ordinance provides as follows: The regulations contained in this Article shall also apply to: 1. A change in land use within an existing building; and 2. A change in tenancy within an existing building requiring issuance of a new Certificate of Occupancy." Likewise, the Proposed Section 41-2002(a)(7)(a)(1) purports to extinguish a property's nonconforming status if certain uses are transferred to a new tenant, and such a transfer requires a new certificate of occupancy, regardless of whether or not the use is changed and/or otherwise exacerbated. Jennifer L. Hall June 17, 2025 Page 9 However, this type of restriction has been specifically disavowed by the California Supreme Court. (Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Ca1.4th 533, 560-561 [recognizing that the vested rights are tied to the property, not the specific owner that first developed and/or improve the property].) Accordingly,the Proposed Ordinance should be amended to protect each property owners' right to continue to lease and utilize their properties in accordance with each such owners' vested rights. By purporting to disallow a change in tenancy and/or occupancy,regardless of the potential change in use, the Proposed Ordinance goes too far, and is subject to challenge if enforced. (d) The City Cannot Comb}el the Immediate Closure of Alleged Nonconforming_Use Proposed Section 41-2002(a)(6)(a)(4) states that the City can unilaterally order the cessation or removal of a nonconfofiming use or structure simply by issuing an "order." This is improper. As explained above, property owners are entitled to a certain level of due process to protect their vested rights, and the City's Proposed Ordinance fails to mee this constitutional minimum. As such,the Proposed Ordinance should be revised to delete this section. (e) The City Cannot Terminate an Established Vested RiLIits based Solely on the Occurrence of Service Calls and/or the Failure to timer: renew a Business License. Proposed Section 41-2009(a)(4) unlawfully attempts to give the City the ability to terminate a nonconforming use simply because there are numerous police calls or loitering complaints, or due to a property owners' failure to renew a business license. Likewise, the same section states that the proposed use could be,terminated simply because the City determines that the property is not in"good standing with the City," which is an undefined term. Again, each of these regulations are unlawful. As an initial matter,the existence of police calls or loitering complaints does not mean that there was, in fact, any nuisance or other public health hazard caused by the property owner that could support an enforcement action to terminate a nonconforming use. Indeed, under this Proposed Ordinance, if a motivated neighbor simply wants to compel the removal of the use, they could just call in complaints regardless of the merits of those calls. This is categorically improper. Similarly, the City's attempt to impose an amorphous "good standing"requirement on the City does not provide any standard by which the City,property owners,or the public can determine if a particular nonconforming use can be terminated. Because the proposed standard is so amorphous as to be unenforceable, this section must be revised to delete reference to this requirement. Jennifer L. Hall June 17, 2025 Page 10 Lastly, the proposed section's attempt to say that the failure to timely renew a business license triggers a loss of nonconforming status is patently unlawful. As explained above, a vested right to a particular use can only be abandoned when the property owner intends to abandon such a use. The inadvertent failure to renew a business license absent more, is insufficient to demonstrate such intent. Furthermore,the existence of a business license or not,has nothing to do with the property owners' vested right to continue to lease and/or operate its property in a particular manner. 3. The Citv will Be Liable for Significant Inverse Condemnation/Takings Liability if it the Proposed Ordinance is Approved The United States and California Constitutions prohibit government actions resulting in the "taking"or"damaging" of private property without payment of just compensation to the property owner. (U.S. Const. amend.V&Cal. Const.,art.I, § 19.) Property is taken or damaged for inverse condemnation purposes even when the government action results in"an intangible intrusion onto the property has occurred which has caused no damage to the property but places a burden on the property that is direct, substantial, and peculiar to the property itself." (Oliver v. AT&T Wireless Services,76 Cal.App.4th 521 (1999).) As currently drafted,the City's Proposed Ordinance would render Ware's and other industrial property owners' legal, fully-vested uses moot simply because one of their tenants leaves their building, or because the City says so. The Proposed Ordinance also severely damages industrial property owners' interests in several respects, ultimately thwarting its investment-backed expectations, in which each property has vested rights. As the Supreme Court has repeatedly held, the Takings Clause embodied in the Fifth Amendment is designed to"bar[] Government from forcing some people alone to bear the public burdens which, in all fairness and justice, should be borne by the public as a whole." (Lingle v. Chevron Corp. (2005) 544 U.S. 528, 537 [quoting Armstrong v. United States (1960) 364 U.S. 40, 49].) By purporting to eviscerate the industrial property owners' vested rights to continue to operate in accordance with their existing entitlements and approvals, while not providing any of the necessary constitutional safeguards, the City has committed an uncompensated taking. At a minimum, if the Proposed Ordinance is adopted as is, the City will have destroyed their investment-backed expectations for their respective properties. Under Penn Central Transpiration Company v. New York City, "[t]he economic impact of the regulation on the claimant, and particularly, the extent to which the regulation has interfered with distinct investment-backed expectations" are relevant considerations and factors in determining whether inverse condemnation without just compensation has transpired. (Penn Cent. Transp. Co. v. New York City (1978) 438 U.S. 104; see also Cedar Point Nursery v. Hassid (2021) 141 S. Ct. 2063, 2069 [stating that to determine whether a restriction is a taking, the Court has applied the flexible approach of considering factors such as the economic impact of the regulation and its interference with reasonable investment-backed expectations]; Shaw v. County of Santa Cruz (2008) 170 Cal. Jennifer L. Hall June 17, 2025 Page 11 App. 4th 229, 261;Dryden Oaks, LLC v. San Diego County Regional Airport Authority(2017) 16 Cal. App. 5th 383. 395.) (a) Exhaustion of Administrative Remedies is Not Necessary to Pursue a Takings Claim When investment-backed expectations are burdened, and a plaintiff considers an inverse condemnation or taking causes of action, exhaustion of remedies is not necessary before pursuing the inverse condemnation claim under 42 U.S.C. § 1983. In 2019, the Supreme Court held that when the government violates the Takings Clause, "a property owner may bring a Fifth Amendment claim under §1983 at that time." (Knick v. Twp. of Scott (2019) 139 S. Ct. 2162, 2177.) In fact, a plaintiff can bring any constitutional claim, "without first bringing any sort of state lawsuit, even when state court actions addressing the underlying behavior are available."(Id. at 2172-73). This rule was reinforced last term by the Supreme Court in Pakdel v. City & Cty. of San Francisco, in which the Court held that the "exhaustion of state remedies is not a prerequisite to an action under 42 U.S.C. §1983." (Pakdel v. City & Cty. of San Francisco (2021) 141 S. Ct. 2226, 2228.) 4. If the City,Adopts the Proposed Ordinance, Such Action Would be Arbitrary and Capricious, and Sub'ect to both Facial and As-Agplied Challenges . If the City moves forward with the adoption of the Proposed Ordinance, such action would be arbitrary and capricious and subject to legal challenge. First, as explained above, the Proposed Ordinance suffers numerous constitutional infirmities, and purports to violate industrial property owners' vested rights without requisite due process through the SD 84 area. Second, if adopted the Proposed Ordinance would constitute impermissible "spot zoning," as it purports to place specific and very restrictive nonconforming use provisions on the SD 84 reason for no reason. For example, there is no justification for treating a "noxious" use (as defined by the Proposed Ordinance) differently in SD 84 versus other areas of the City. If a use is noxious and subject to abatement within the SD 84 area, it should be noxious and subject to abatement in other areas. Sincerely, #egislative Director Madison Materials Inc.