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HomeMy WebLinkAboutMINUTES - 09232003 - D.4 TO: BOARD OF SUPERVISORS +Contra Costa FROM: DENNIS M. BARRY, AiCP .M., COMMUNITY DEVELOPMENT DIRECTOR '" .- ` County irk �<.x 1ADATE: September 23, 2003 SUBJECT: Continued Hearing on the Shepherd/Dorn Rezoning, Subdivision and Development Agreement project, including Appeal by Save Mt. Diablo, #9601 Morgan Territory Road, in the Tassajara area(County File#RZ993074,#MS990002, and #DA010122) (Sup. Dist. 111) SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATION --Adopt a motion to: 1. Deny the requests for: A. Rezoning from Exclusive Agricultural, A-80 district, to Heavy Agricultural, A-3 district (County File #RZ993074). B. Vesting Tentative Map application seeking to subdivide approximately 49- acres into four (4) parcels (County File #MS990002). C. Development Agreement application (County File #DA010122) CONTINUED ON ATTACHMENT: X YES SIGNATURE RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON - P r APPROVED AS RECOMMENDED X OTHER_ SPE`A , Pete McCloskey, 399 Bradford street, Redwood City, Ca 94579 on behalf of Mr, & Mrs. Shepherd and Mr. & Mrs. Dorn. VOTE OF SUPERVISORS 1 HEREBY CERTIFY THAT THIS IS A TRUE AND _UNANIMOUS(ABSENTNQae 1 CORRECT COPY OF AN ACTION TAKEN AND AYES: NOES: ENTERED ON THE MINUTES OF THE BOARD OF ABSENT: ABSTAIN: SUPERVISORS ON THE DATE SHOWN Contact: Bob Drake [(1 25)335-1214] ATTESTED September 23,_2003 Cc:Community Development Department JOHN SWEETEN, CLERK OF THE BOARD OF McCloskey,Hubbard,Ebert,&Moore SUPERVISORS AND COUNTY ADMINISTRATOR Building Inspection Dept. - Contra Costa Water District,Mark Seedal 1 , 5 Save Mt. Diablo, Seth Adams BY,�'� E'er Ad��' f ,DEPUTY East Bay Regional Park District, Linda Chavez Public Works Department County Counsel September 23, 2003 Board of Supervisors County File#RZ993074, #MS990002, &#DA010122 Page 2 2. Grant the Appeal of Save Mt. Diablo. 3. Adopt the Findings contained in Exhibit A as the basis for the Board action. 4. Direct the Building Inspection Director to undertake code enforcement investigation and appropriate action of this site in consultation with the Community Development Department and the Contra Costa Water District concerning code violations on the site including: A. Recycling (junkyard) operation; and B. Mobilehome on a temporary foundation whose authorization under a previous land use permit has lapsed. FISCAL IMPACT: !`lone. The adopted fee schedule requires the applicant to pay for all staff project review time and material expense (including costs associated with the processing of appeals). BACKGROUND This project involves a proposal to rezone approximately 49-acres from Exclusive Agricultural, A-80 district,to Heavy Agricultural,A-3 district, and for tentative map approval to subdivide the site into four 10+ acre parcels. After conducting a hearing on the project on June 18, 2003,the San Ramon Valley Regional Planning Commission recommended that the Board of Supervisors approve the rezoning. The Commission also approved the subdivision subject to conditions, including a requirement that the subdivision approval be contingent on the adoption of the proposed rezoning application by the Board of Supervisors. This project was initially scheduled for hearing before the Board of Supervisors on August 5, 2003. That hearing was rescheduled to September 9, 2003. At the September 9, 2003 hearing, the Board took testimony on the project from all parties wishing to speak on the matter,including representatives of East Bay Regional Park District, Contra Costa Water District, and Save Mt Diablo. After testimony was completed,the Board expressed concern that the project constituted unacceptable development and, if approved, could encourage similar divisions in a scenic rural area. The Board then adopted a motion to: • Declare its intent to o grant the appeal of Save Mt. Diablo, and o deny the rezoning and subdivision applications; • Direct staff to prepare findings in support of a denial decision for Board adoption consideration; and September 23, 2003 Board of Supervisors County File#RZ993074,#MS990002, &#DA010122 Page 3 • Continue the hearing on the project to this date. RECOMMENDED FINDINGS TO SUPPORT DENIAL OF THE PROJECT As directed by the Board, Exhibit A contains findings recommended by staff to support denial of the project. The findings are based on oral testimony and written documentation submitted to the Board. DEVELOPMENT AGREEMENT As described in the August 5, 2003 staff report, after filing rezoning and subdivision application with the County,the applicant filed a separate application for a development agreement. This application was intended to allow for conversion of the foundation of the existing mobilehome from a temporary to a permanent design after a parcel map was approved. A Board denial action on the project should also include a denial of this related application. ORDINANCE LIMIT CGrace Period" ON REFILING OF NEW REZONING APPLICATION SHOULD BOARD DENY PROJECT Pursuant to Section 26-2.1803 of the Contra Costa County Ordinance Code, if the Board of Supervisors denies the project, then pursuant to the Ordinance Code, the County may not accept a new rezoning application within a one-year period of time, unless: 1) Less intensive land uses are allowable in the newly proposed zoning district than in the earlier one; and 2) The community development director finds that the circumstances have materially changed since the earlier application was first filed. In the case of a new rezoning request, "materially changed circumstances"is defined as: (1)A change in zoning districts or land uses on or near the land(s); and/or (2) a change in the land area for which reclassification is proposed; and/or (3) an amendment to the county general plan which may affect the property. Because the property is zoned Exclusive Agricultural, A-80, the minimum parcel size allowed is 80 acres; however the parcel in question is only 49 acres. It would not be possible for the County to approve a new subdivision application for this site until the County rezones the site to a district that would allow the creation of smaller parcels. September 23, 2003 Board of Supervisors County File#RZ993074, #MS990002, &#DA010122 Page 4 CODE ENFORCEMENT OF DISCOVERED VIOLATIONS OF ORDINANCE REGULATIONS During the course of the review of this project, staff discovered several uses on the project site that may violate provisions of the County Ordinance Code, including the following: * Continued Use of Mobilehome After Lapse of Temporary Caretaker Occupancy Permit - Continued use of a mobilehome on a temporary foundation that the County had authorized by a land use permit for a temporary residence [County File #2209-84(A)] for a period of three years. This permit has lapsed, and the mobilehome is currently being used in violation of the ordinance. The zoning ordinance only allows mobilehomes for caretaker occupancy on a temporary basis, and only after the granting of a land use permit. In the review of the rezoning and subdivision applications, the applicant indicated that it was prepared to convert the above-referenced mobilehome to a permanent mobilehome, pursuant to the requirements of Ordinance Code Section 84-68.16012, including installing the mobilehome on a permanent foundation as part of the subdivision process. The resultant modified structure would have served as the residence for proposed Parcel C. With the denial of the rezoning and subdivision applications,the existing zoning would still allow the mobilehome to be converted to a permanent mobilehome as a second residence subject to approval of a land use permit as a second residence. However,the mobilehome lies within the portion of the site that is subject to the Contra Costa Water District Watershed Conservation Easement. At the Board hearing, the District indicated that its current position is that the proposed conversion of the foundation of the mobilehome to a permanent foundation would constitute a violation of the District's conservation easement. It may be possible for the applicant to obtain a renewed land use permit for the mobilehome for caretaker occupancy on a temporary basis, pursuant to Ordinance Code Section 84-68.1802, et seq. However, renewal of a caretaker mobilehome requires several criteria to be met, including the criterion that any individual possessing an ownership or leasehold interest in the property is not permitted to reside in the mobilehome. [See Ord. Code Section 84-68.1804, sudiv. (3)] * RecyclinglJunkyard — A portion of the site is used for nonagricultural activities, specifically a recycling operation. The activities are not allowed and not allowable under the existing zoning regulations. This use may also involve some violations of the building ordinance. These activities are also located within the CCWD watershed easement. Implementation of the recommended project conditions of approval would have included cures of these violations. However,with a denial of the project,the Board should direct staff to investigate and pursue appropriate code enforcement action on these matters. GACurrent Planninglcurr--plan\Board\Board Orders1rz993074-d.bo.doc RD\ EXHIBIT A Findings Centra Costa County September 23, 2003 Rezoning County File #RZ993074 Minor Subdivision County File #MS990002 Development Agreement #DA010122 #9601 Morgan Territory Road, Tassajara Area (APN 006-280-009) DeBalt Civil Engineer (Applicant) Lester Shepherd,et al(Owners) Findings for ShepherdlDorn Project Tassajara area County File#RZ993074, #MS990002, & #DA010122 I. General Considerations A. Reliance on Record. Each and all of the findings and determinations contained herein are based on the competent and substantial evidence, both oral and written, contained in the entire record relating to the Project and constitute the independent findings and determinations of this Board. B. Mature of Findings. This Board intends that these findings be considered as an integrated whole, whether or not any part of these findings and determinations of this Board fail to cross-reference or incorporate by reference any part of these findings. If any required finding for project approval is contained in any portion of this findings document, it shall be deemed to have not been satisfied. On the other hand, any finding requiring tentative map denial that is contained in any portion of this findings document, the Board deems said finding to have been made for this Project. General Flan and Existing Zoning A. General Plan Land Use Designation of Project Site and Vicinity The land use map of the County General Plan designates the Project Site Agricultural Lands (AL). The General Plan defines the Agricultural Lands designation as follows. Agricultural Lands (AL) - This land use designation includes most of the privately-owned rural lands in the County, excluding private lands that are composed of prime soils or lands that are located in or near the Delta. Most of the AL lands are in hilly portions of the County and are used for grazing livestock, or dry grain farming. The category also includes non-prime agricultural lands in flat East County areas, such as outside Oakley,which are planted in orchards and vineyards. The purpose of the Agricultural Lands designation is to preserve and protect lands capable of, and generally used for, the production of food, fiber, and plant materials. The title is intended to be descriptive of the predominant land-extensive agricultural uses that take place in these areas, but the land use title or description shall not be used to exclude or limit other types of agricultural, open space or non-urban uses such as landfills. The maximum allowable density in this category is one dwelling unit per 5 acres. F-1 Findings for ShepherdlDorn Proyect Tassajara area County File#RZ993074, #MS990002, & #DA010122 The uses that are allowed in the Agricultural Lands designation include all land-dependent and non-land dependent agricultural production and related activities. The following standards shall apply to all uses allowed in the Agricultural Lands designation: 1. Any subdivision of lands shall include conditions of approval which conform with the requirements of the "Rural Residential Policy," which is outlined in the "Agricultural Resources" section of the Conservation Element(Chapter 8); and 2. Residential and non-residential uses proposed in areas of special flood hazards, as shown on FEMA maps, shall conform to the requirements of the County Floodplain Management Ordinance (County Ord. #87-45). The areas to the west, south, and immediate east of the Project Site are also designated Agricultural Lands by the General Plan. The area further to the east of the site(approximately 1040 feet)is designated Watershed (WS). The General Plan defines Watershed lands as follows: Watershed{WS)---Areas designated"Watershed" in this General Plan include much of land owned by the two major water suppliers in the County, the East Bay Municipal Utility District (EBMUD) and the Contra Costa Water District(CCWD).... CCWD lands placed in the "Watershed"designation category include properties acquired for the proposed Los Vaqueros reservoir in the southeastern portion of the County. In order to safeguard the public water supplies stored in the reservoirs, only a very limited number of uses are allowed in "Watershed" areas. These uses include extensive agriculture, primarily grazing of livestock; intensive agriculture that does not rely upon pesticides or other chemical fertilizers, such as Christmas tree farming; passive low intensity recreational uses such as hiking and biking, and small-scale commercial uses that support picnicking,boating, and fishing activities on the adjacent reservoirs. The area to the north of the site is designated Parks and Recreation(PR). The General Plan defines the Parks and Recreation designation as follows: F-2 Findings far ShepherdDorn Project Tassajara area County File#RZ993074, #.1MIS990002, & #DA010122 Parks and Recreation (PR)—The "Parks and Recreation" designation includes publicly owned city, district, County and regional parks facilities, as well as golf courses,whether publicly or privately owned. Appropriate uses in the designation are passive and active recreation-oriented activities and ancillary commercial uses, such as snack bars, and restaurants. The construction of new privately owned residences or commercial uses, and the subdivision of land, is inconsistent with this General Plan designation. B. Zoning (Land Ilse) District of Project Site and'VicinitX The Project Site is zoned Exclusive Agricultural, A-80 which allows a minimum 80-acre parcel size. Areas to the immediate east, south, and southwest of the site are also zoned A-80. The area to the west of the site is zoned Exclusive Agricultural, A-40 (minimum 40-acre parcel size). Further to the south, on either side of Morgan Territory Road, the land is also zoned A-40. The area to the north of the site is zoned General Agricultural, A-2,which allows a minimum 5-acre parcel size. Both A-80 and A-3 zoning districts permit all types of agricultural activity and a single family residence on properties so zoned. Other uses may also be allowable after the granting of a land use permit. ffl. Public Agency Holdings of Nearby Lands A. East Bay Rep ional Park District Holdings The area immediately north of the Project Site is the Morgan Territory Regional Preserve,which is owned and operated by the East Bay Regional Park District. The District has also acquired lands to the west of the Project Site across Morgan Territory Road.' B. Contra Costa Vater District Holdings Testimony at Board of Supervisors hearing. F-3 Findings for ShepherdlDorn Project Tassa}ara area County.Pile#RZ993074, #MS990002, & #DA010122 Contra Costa Water District owns the area immediately east and south of the Project Site. The District also possesses a Conservation Easement covering the eastern portion of the Project Site that is described below. IV. Site Description The 49-acre Project Site is located at#9601 Morgan Territory Road, in the Tassajara area, and is currently used for grazing. The site contains several structures including a conventional single family residence, mobilehome on a temporary foundation, and various other structures. The site also contains nonagricultural activity consisting of a recycling operation and junkyard. A water pond is located near the northeast corner of the Project Site. A vernal pool is located near the southwest corner of the Project Site. CCWD Conservation Easement-The eastern portion of the site is subject to a Conservation Easement that is held by the Contra Costa Water District, recorded on August 200, 1997. The Easement generally encompasses that portion of the site whose runoff is conveyed into the Kellogg Creek watershed flowing into Los Vaqueros Reservoir, which is owned and operated by the District. The deed instrument indicates that the purpose of the easement is to restrict the owners of the affected area and their successors and assigns, from developing said property or otherwise using it for any purpose inconsistent with the District's use of neighboring property for the Los Vaqueros Reservoir and related watershed. The easement restrictions include the following: • Owners shall not permit, and shall take all action necessary to prevent, the infiltration of any pollutants or contaminants into Los Vaqueros Reservoir or the Kellogg Creek watershed. • Owners shall not permit the storage of any hazardous materials on the Subject Property. • As part of any application for subdivision of the Owner's property, of which the Subject Property is a part, there shall not be permitted any residential structures to be placed on the Subject Property. Any such structures shall be placed outside of the Kellogg Creek watershed. F-4 Findings for ShepherdlDorn Project T'assajara area County File#RZ993074, #MS990002, & ##DA010122 V. Project Description The Project consists of(1) a Rezoning application to rezone the approximate 49-acre site from Exclusive Agricultural, A-80 district (minimum 80-acre parcel size), to the Heavy Agricultural,A-3 zoning district(min. 10-acre parcel size); (2) a Vesting Tentative Map application to subdivide the Project Site into four 10+ acre parcels; and(3) a Development Agreement to allow for the conversion of the existing mobilehome on a temporary foundation to a permanent mobilehome meeting the requirements of C.C.C. Ordinance Code §84-68.1602, following the approval and recordation of the proposed subdivision parcel map. The two eastern-most parcels(C and D)encompass the area of the CCWD Conservation Easement. Each of these parcels also contains an existing residence. Parcel C contains the existing mobilehome on a temporary foundation. In 1985,the County had approved a land use permit, County File #2209-84(A),to allow for temporary placement of a mobilehome on the site for occupancy by a caretaker. The permit expired in 1988; however,the applicant failed to remove and continued to occupy the mobilehome from the property to comply with the Ordinance Code. To cure the violation,the applicant proposed to convert the mobilehome to a permanent mobilehome meeting the requirements of Ordinance Code § 84-68.1602., including conversion of the temporary foundation to a permanent foundation. The two western most parcels(A and B) are vacant, and would not include any portion of the CCWD Conservation Easement. These two parcels largely consist of grasslands with few trees. The Project proposes potential building sites along an elevated ridgeline for both of these parcels. The applicant has agreed to limit the building sites to approximately one-acre in area on each parcel and to grant deed development rights of the remaining area to the County. Much of the area of these two parcels,including the two proposed building sites,would be visible from Morgan Territory Road. The applicant has also agreed to allow County restriction of development to. • Limit future residential design to one-story, and to limit the light reflectance of exterior colors of the roof and walls of the structure to aid in the structures blending in with the surrounding terrain; • Require that any future water reservoirs serving residential development either be placed underground or out of view from both Morgan Territory Road and Morgan Territory Regional Preserve. F-5 Findings for Shepherd(Dorn Project Tassajara area County File#RZ993074, #MS990002, & #AA014122 VI. Relevant General Plan Goals, Policies and Implementation Measures The County General Plan 1995—2010 sets forth various goals, policies and implementation measures. These include the following provisions that are relevant to the Project; A. Land Use Element All A (Agricultural)zoning districts are consistent with the Agricultural Lands land use designation (pp. 3-22 & 3-23, Table 3-5). For the following goals,policies and implementation measures,refer to pp. 3-39, et seq.. Goal 3-A. To coordinate land use with circulation, development of other infrastructure facilities,and protection of agriculture and open space, and to allow growth and the maintenance of the County's quality of life. In such an environment all residential,commercial,industrial,recreational and agricultural activities may take place in safety,harmony, and to mutual advantage, Goal 3-C. To encourage aesthetically and functionally compatible development which reinforces the physical character and desired images of the County. Goal 3-G. To discourage development on vacant rural lands outside of planned urban areas which is not related to agriculture, mineral extraction,wind energy or other appropriate rural uses;discourage subdivision down to minimum parcel size of rural lands that are within, or accessible only through, geologically unstable areas; and to protect open hillsides and significant ridgelines. Policy 3-12. Preservation and buffering of agricultural land should be encouraged as it is critical to maintaining a healthy and competitive agricultural economy and assuring a balance of land uses. Preservation and healthy conservation of open space, wetlands, parks,hillsides and ridgelines should be encouraged as it is crucial to preserve the continued availability of unique habitats for wildlife and plants, to F_b Findings for ShepherdJDorn Project Tassajara area County File#1RZ993074, #MS990002, & #DA010122 protect unique scenery and provide a wide range of recreational opportunities for County residents. Implementation Measure 3-t. Enforce the restrictions on open hillsides and significant ridgelines in the Open Space Element and protect hillsides with a grade of 26 percent or greater through implementing zoning and other appropriate measures and actions. Policies for the Morgan Territory Area Policy 3-108. The restriction on further fragmentation of parcels is crucial to this plan.... B. Transportation and Circulation dement The following goals,policies, and implementation measures may be found at pp. 5-30, et seq. A scenic route is a road, street, or freeway which traverses a scenic corridor of relatively high visual or cultural value. It consists of both the scenic corridor and the public right-of-way. A scenic corridor is usually much wider than the road right-of-way and extends to the contiguous areas beyond it. Width of scenic corridors will vary greatly depending upon the present degree of development, land forms,topography, and the nature of scenic quality. The scenic corridor consists of much of the adjacent area that can be seen from the road. It is within this area that development controls, dedication, and the purchase of easements or lands in fee simple will be required, and public projects will be reviewed for compliance with this plan. Controls should be applied to retain and enhance scenic qualities, restrict unsightly use of land, control height of structures, and provide site design and architectural guidance along the entire scenic corridor. Morgan Territory Road is designated a scenic route. Goal 5-R. To identify, preserve and enhance scenic routes in the County. F-7 Findings for ShepherdlDorn Project Tassajara area County File#RZ993074, #M'S990002, & #DA010122 Policy 5-34. Scenic corridors shall be maintained with the intent of protecting attractive natural qualities adjacent to various roads throughout the county. Policy 5-36. Scenic views observable from scenic routes shall be conserved, enhanced, and protected to the extent possible. Policy 5-42. Provide special protection for natural topographic features, aesthetic views, vistas, hills and prominent ridgelnes at "gateway" sections of scenic routes. Such"gateways" are located at unique transition points in topography or land use, and serve as entrances to regions of the County. C. Conservation Element The following goals,policies, and implementation measures may be found at pp. 8-26, et seq. Goal 8-E. To protect rare, threatened and endangered species of fish, wildlife and plants, significant plan communities, and other resources which stand out as unique because of their scarcity, scientific value, aesthetic quality or cultural significance. Attempt to achieve a significant net in wetland values and functions within the County over the life of the General Plan. The definition of rare, threatened and endangered includes those definitions provided by the Federal Endangered Species Act, the California Endangered Species Act,the California Native Plant Protection Act and the California Environmental Quality Act. Policy 8-6. Significant trees,natural vegetation, and wildlife populations generally shall be preserved. Policy 8-7. Important wildlife habitats which would be disturbed by major development shall be preserved, and corridors for wildlife migration between undeveloped lands shall be retained. Policy 8-9. Areas determined to contain significant ecological resources,particularly those containing endangered species, shall be maintained in their natural state and carefully regulated to the maximum legal extent.... F-8 Findings for Shepherd/Dorn Project Tassajara area County File#RZ993074, #MS990002,& #DA010122 Policy 8-10. Any development located or proposed within significant ecological resource areas shall ensure that the resource is protected. Goal 8-G. To encourage and enhance agriculture, and to maintain and promote a healthy and competitive agricultural economy. Policy 8-29. Large contiguous areas of the County should be encouraged to remain in agricultural production, as long as economically viable. Policy 8-32. Agriculture shall be protected to assure a balance in land use. The policies of Measure C— 1990 shall be enforced. Implementation.Measure 8-w. Requests for subdivision of lands designated for agricultural or open space uses shall be reviewed for consistency with this plan according to the following criteria. (9) Parcels shall be reasonably free of hazards .... Implementation Measure 8-x. Within the major resource conservation areas, consider approval of development that is only directly related to agricultural production,recreation,water-related recreation, or the utilization of mineral, soil, water, and animal resources; or agricultural/residential uses of similar character. D. Qpen Space Element The following goals,policies, and implementation measures may be found at pp. 9-4, et seq. Gaal 9-A. To preserve and protect the ecological, scenic and culturalihistoric, and recreational resource lands of the County. Policy 9-2. Historic and scenic features,watersheds,natural waterways, and areas important for the maintenance of F-9 Findings for ShepherdlDorn Project Tassajara area County File#RZ993074, #MS990002, & #DA010122 natural vegetation and wildlife populations shall be preserved and enhanced. Goal 9-U. To preserve and protect areas of identified high scenic value,where practical, and in accordance with the Land Use Element map. Goal 9-E. To protect major scenic ridges, to the extent practical, from structures,roadways, and other activities which would harm their scenic qualities. Policy 9-18. The construction of new structures on the top of major scenic ridges or within 50 feet of the ridgeline shall be discouraged. Policy 9-20. Hilltops,ridges,rock outcroppings, mature stands of trees, and other natural features shall be considered for preservation, at the time that any development applications are reviewed. Implementation Measure 9-d. where possible, structures shall not be built on top of any designated scenic ridgeline. E. Safety Element The following goals,policies, and implementation measures may be found at pp. 10-64, et seq. Goal l0-J. To ensure a continuous supply of safe water to county residents. Policy 10-72. The County shall support local,regional, State, and federal government efforts to improve water quality. VII. Project Findings Re. Ordinance Code and State Law Requirements Pursuant to Section 26-2.2202 of the Contra Costa County Ordinance Code, it is the Project Applicant's burden of producing evidence to convince the F-10