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HomeMy WebLinkAboutMINUTES - 02271990 - T.8 T. 6, 7 , & 8 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUN'T'Y, CALIFORNIA Adopted this Order on February 27, 1990 by the following vote: AYES: NOES: Different votes on various motions. See each item. ABSENT: ABSTAIN: SUBJECT: T. 6 Decision on General Plan Amendment, Williamson Act cancellation, minor subdivision, rezoning and land use permit for the Keller Canyon Landfill T.7 Decision on General Plan Amendment and Land Use Permit for the Marsh Canyon Sanitary Landfill T. 8 Consideration of County Counsel' s report "Referendums, General Plan Landfill Amendments" The Board on February 13 , 1990 deferred to this time its decisions on: The request by Keller Canyon Landfill Company . (applicant) and Kathryn Costa, Charles Larson, Herbert Elworthy, Jean Elworthy and Robert Elworthy (owners) to amend the General Plan (GPA 3-89-CO.II ) , for approval of Minor Subdivision 15-89, Rezoning Application 2834-RZ, Williamson Act cancellation (AG 6-71, Part 8-69) , and Land Use Permit 2020-89 to establish a sanitary landfill facility on a 2, 628 acre site located in Contra Costa County ( Item T.6 above) ; and on The requests by Waste Management Incorporated of North America (Applicant) ; Robert Foskett, Jane and William Freitas, Cena and Jerry Richeson, Phyllis and Herman Schippers, and Naoma and Harry Williamson (Owners) to amend the General Plan (GPA 4-89-CO-II ) and for approval of Land Use Permit 2010-90 to establish a sanitary landfill facility on a site of approximately 1,123 acres located in the unincorporated area of eastern Contra Costa County ( Item T.7 above).. The Board also had before it (attached hereto as exhibit A) a memorandum from the County Administrator and the Director of Community Development entitled "Actions on Landfills" outlining their recommendations for consideration, as well as a report from County Counsel entitled "Referendums, General Plan Landfill Amendments" (attached hereto as Exhibit B) (Item T. 8 above) . Chairwoman Fanden advised that the written testimony received from the public has been entered into the record. She asked staff to review its recommendations to the Board for today' s action. The County Administrator reviewed his recommendations and advised that staff was reviewing conditions and findings which should be ready for the Board members to review by the end of the week. He outlined the items before the Board at this time. Board members discussed the various items before them in some detail, including the referendum on the General Plan Amendment for the Keller Canyon site; the cost of road improvements for each site and the need for an analysis of the costs for land, construction, and mitigations; the unknown costs, the end cost to the citizens of the County; as well as their individual opinions with respect to each site. 1 Supervisor Powers advised that after briefly reviewing the documents just given to him, he had a number of questions with respect to costs. County Counsel commented that it was staff ' s recommendation to table the Keller Canyon General Plan Amendment at this time. Supervisor McPeak advised that the items are inter-related and there is difficulty in taking them one at a time because one decision is dependent on another. Supervisor Schroder advised that in October, 1989, he had received a letter from the California Legislative Counsel' s Office stating that he would not violate the Fair Political Practices Act if he were to vote on the County Solid Waste Management Plan, and based on that opinion, he had voted, along with three other members of the Board, in favor of a resolution approving five proposed General Plan Amendments in order to proceed with a maximum number of alternative choices available to the County relative to a landfill site. He advised that although he really did not believe that he had a conflict, he has decided to abstain from voting on the Marsh Canyon site, but intends to vote on the Keller site if it comes to a vote this day, and that he does intend to vote on the Marsh Canyon site after May 31, 1990, which is a year after ceasing business with Valley Disposal. Supervisor Powers moved to place two questions on the June 1990 ballot, one for the referendum from Antioch on the Garaventa site, and the other on the Keller site in accordance with the Pittsburg petition, and approval of the staff recommendation on the referendum language for the Pittsburg and Antioch Petitions, deleting the words "Pittsburg Area. " to then read as follows: ANTIOCH PETITION MEASURE Shall Part IV of the Board of Supervisors' Resolution No. 89/656 amending the County General Plan to provide for the East Contra Costa Sanitary Landfill site (Antioch area) be adopted? PITTSBURG PETITION MEASURE ------------: Shall Resolutions Nos. 89/656 (as to the GPA 3-89-CO) and 89/683 of the Board of Supervisors amending the County General Plan to provide for the Keller Canyon Landfill site be adopted? The motion was seconded by Supervisor Schroder. Supervisor McPeak moved an amendment to the motion to include rescinding the Board of Supervisors ' action on October 10, 1989 and October 17, 1989, approving the General Plan Amendment for Kirker Pass; approving the Marsh Canyon site as outlined in items 1 and 2 of the staff report submitted this day; and declaring intent to approve the Keller site as outlined on the staff report listed as T. 6, provided that the voters so express their approval at the June ballot; and that the intent include Item 6 on the staff report for T. 6 which would approve the new General Plan Amendment, subject to the approval by the people; that is, to become operative only if the electorate says yes to that site. Supervisor Powers advised that he could not vote for Marsh Canyon at this point because some citizens in his District are saying it is too expensive, and he would need to have the cost figures to analyze before making a decision, and he therefore would not be prepared to vote on the first part of the amendment. Supervisor Torlakson advised that the issue was very complicated, and that he did not feel comfortable with the motion. 2 Following much discussion as to whether Supervisor Schroder could vote on the motion, Supervisor Schroder advised that he would not be voting on Marsh Canyon. Chair Fanden suggested rescinding the amendment and substituting an amendment that would take the issues one at a time. Supervisor McPeak suggested dividing the question so that each Supervisor can vote on the portions they wish. Supervisor McPeak recommended that the first part of the amendment to be voted on be: To rescind the approval of the General Plan Amendments on October 10 and October 17 , 1989 for the Kirker Pass site. Supervisor Fanden seconded. Supervisor Torlakson advised that he had serious concerns about the Kirker Pass site, but was not prepared at this time to eliminate it from the ballot language until more pieces of the puzzle have been put together, and therefore he would be voting no on this portion of the amendment. Chair Fanden called for the vote on this portion of the amendment, which was as follows: Ayes: Supervisors Schroder, McPeak and Fanden Noes: Supervisors Powers and Torlakson. Supervisor McPeak then moved an amendment approving the Marsh Canyon site as recommended by staff, which is to declare intent to approve the Marsh Canyon Sanitary Landfill Land Use Permit No. 2010-90 as modified in the proposed conditions of approval and recommended by the County Planning Commission, with modifications recommended by staff, and to direct staff to return to the Board with the appropriate resolution and findings on March 6, 1990. Supervisor Fanden seconded and called for a vote. Supervisor Powers advised that he was just handed the conditions on Marsh Canyon a few moments ago and that he was not familiar with them, and that he had not been able to find out what the true financial impact is and he therefore was not ready to vote on Marsh Canyon at this time. Supervisor Torlakson moved a substitute motion to table the amendment for two weeks because the Board had just received the material and had not had a chance to review it. He noted that he supported the site only if certain mitigations and environmental conditions are met and he had not had an opportunity to insure that all of his concerns had been addressed. Supervisor Powers seconded the motion to table. Supervisor McPeak noted that she had read the proposed conditions and that the action proposed to be tabled was only to declare intent to approve and to have the final findings and appropriate resolution before the Board next week. Chair Fanden called for a vote on the motion to table the amendment for two weeks, and the vote was as follows: AYES: Supervisor Torlakson and Powers NOES: Supervisors Fanden and McPeak ABSTAIN: Supervisor Schroder The substitute motion to table for two weeks failed to carry. Chair Fanden then called for a vote on the amendment by Supervisor McPeak to approve the Marsh Canyon site as outlined in Items 1 and 2 of the staff report, with the findings and appropriate 3 resolution to be brought back to the Board on March 6, 1990 for final adoption, and to include the mitigation approach that Mr. Torlakson has outlined in the past. The amendment failed by the following vote: AYES: Supervisors McPeak and Fanden NOES: Supervisors Powers and Torlakson ABSTAIN: Supervisor Schroder Supervisor McPeak restated the remaining amendment to the original motion to declare intent to approve the items on T. 6 (Keller Canyon site) as outlined by staff in the attached staff report, including the referendum. Supervisor Fanden seconded the amendment. Supervisor Torlakson urged the Board not to vote for the Keller Canyon site, citing traffic, proximity to a BART station, homes, parks and a golf course, and visual and economic impacts. Supervisor Schroder asked for clarification that in voting in favor of declaring intent to approve Items 1 through 4 on the staff report for T.6 (Keller) , it would not be effective until the conditions in Item 5 (effective General Plan Amendment authorizing a landfill on the Keller Canyon Landfill site) have been met. The amendment passed by the following vote: AYES: Supervisors Schroder, McPeak and Fanden NOES: Supervisors Powers and Torlakson Supervisor McPeak moved to table voting on the motion, as amended, until next week, including the Kirker Pass General Plan Amendment rescission, the intent to adhere to the vote of the people on Keller, and the main motion of the two ballot questions, which would then all come up on the agenda next week. The motion died for lack of a second. Supervisor Fanden declared that the Board would now vote on the main motion as amended. At the request of the Chair, Supervisor McPeak repeated the main motion, as amended, to be: To rescind the October 10th and October 17th approval of the general plan amendment for the Kirker Pass site; to declare intent to adhere to the voters' action in June on the Keller site, as outlined by the staff report; and to place two questions on the ballot, one for the referendum from Antioch on the Garaventa site, and the other on the Keller site in accordance with the Pittsburg petition. Supervisor Powers moved to amend the main motion to include just the referendum language, eliminate Kirker Pass, and continue the other matters to allow Mr. Torlakson the opportunity to get the information he requested, and vote on both of the sites when that information is received. The motion to amend was seconded by Supervisor Torlakson and failed by the following vote: AYES: Supervisors Powers and Torlakson NOES: Supervisors Schroder, McPeak and Fanden The Board voted on the following amended motion: 4 A. RESCIND the approvals of October 10, 1989 and October 17 , 1989 relative to the General Plan Amendment for the Kirker Pass Waste Management Landfill site. (T. 8 ) B. DECLARE the Board' s present intent to take the following final actions, after the electorate votes at the June 1990 election to approve the October 1989 Keller Canyon General Plan Amendment: 1. APPROVE General Plan Amendment 3-89-CO II for the Keller Canyon Landfill; 2. APPROVE Land Use Permit 2020-89 for the Keller Canyon Landfill as recommended by staff; 3 . APPROVE Rezoning 2834-RZ for the Keller Canyon Landfill as recommended by staff; 4 . APPROVE cancellation of agricultural preserve for the Keller Canyon Landfill and adopt appropriate findings as recommended by staff ; 5. APPROVE minor subdivision MS 15-89 for the Keller Canyon Landfill and adopt the appropriate findings as recommended by staff; and C. ORDER that the referenda on the East Contra Costa Sanitary Landfill General Plan Amendment and the Keller Canyon Landfill General Plan Amendment be placed on the June 1990 ballot. (T. 8) D. ADOPT the ballot language for both the Antioch and Pittsburg referenda, as set forth herein. (T. 8) The amended motion passed by the following vote: AYES: Supervisors Schroder, McPeak and Fanden NOES: Supervisors Powers and Torlakson Board members discussed when the Marsh Canyon Landfill application should again be placed on the agenda for their consideration. It was the consensus that two weeks would enable them to review the material before them and to receive the information they had requested. (T.7) Supervisor Powers moved that the contents of the February 12, 1990 Confidential Memo to the Board of Supervisors from County Counsel re "Landfill Referendums, New General Plan Amendments" be disclosed to the press and to the public. The motion passed by the following vote: AYES: Supervisors Powers, Schroder and Torlakson NOES: Supervisors McPeak and Fanden i hereby Certity that this is a true and correct copy of an action taken and entered on the minutes of the Board of supervisors on the date shown. ATTESTED: � l '•"•,• 4 Z. / 9 9O PHIL BATCHELOR.Clark of the Board Of Supervisors and County Administrator By 'Deputy cc: Community Development County Counsel County Administrator Applicant for Keller Applicant for Marsh Canyon 5 7 TO BOARD OF SUPERVISORS FROM: Phil Batchelor, County Administrator ,• ° Con t, Harvey Bragdon, Director of Community Development ;�/ Contra DATE: February 26, 1990 County rT,� ca N�• SUBJECT: Actions on Landfills SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AM JUSTIFICATION RECOMMENDATIONS T.6. Keller Canyon Landfill (1) Declare intent to approve the Keller Canyon Landfill Land Use Permit LUP 2020-89 as modified by the Conditions of Approval (February 2, 1990) as recommended by the County Planning Commission with the modifications recommended by Staff, such permit to become operative when recommendation (5) is satisfied, and direct Staff to return to the Board with the appropriate resolution and findings. (2) Declare intent to approve the Keller Canyon Landfill rezoning 2834-RZ, introduce ordinance, waive reading, and postpone adoption (second reading) until recommendation (5) is satisfied. (3) Declare intent to approve the Keller Canyon Landfill cancellation of agricultural preserves #6-71 and #8-69 (part) , and adopt the appropriate findings, such agricultural preserve cancellation to become operative when recommendation (5) is satisfied, and direct Staff to return to the Board with the appropriate resolution and findings. (4) Declare intent to approve the Keller Canyon Landfill minor subdivision MS 15-89, and adopt the appropriate findings, such minor subdivision to become operative when recommendation (5) is satisfied, and direct Staff to return to the Board with the appropriate resolution and findings. (5) Condition actions (1) through (4) upon the existence of an effective County General Plan or General Plan Amendment authorizing a landfill on the Keller Canyon Landfill site. (6) Table the Keller Canyon Landfill General Plan Amendment GPA 3-89-CO-II. X CONTINUED ON ATTACHMENT: YES SIGNATURE; I Y RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER , S I GNATURE(S 1: ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS 1 HEREBY CERTIFY THAT THIS IS A TRUE UNANIMOUS (ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES. AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. County Administrator CC County Counsel ATTESTED Marsh Canyon Landfill (via CDD) PHIL BATCHELOR. CLERK OF THE BOARD OF Keller Canyon Landfill (via CDD) M �( SUPERVISORS AND COUNTY ADMINISTRATOR U D)� lJ A M382/7-83 BY ,DEPUTY T.7 Marsh Canyon Landfill (1) Declare intent to approve the Marsh Canyon Sanitary Landfill Land Use Permit LUP 2010-90 as modified by the Conditions of Approval (February 2, 1990) as recommended by the County Planning Commission with the modifications recommended by Staff, and direct Staff to return to the Board with the appropriate resolution and findings. (2) Table the Marsh Canyon Sanitary Landfill General Plan Amendment GPA 4-89-CO-II, as requested by the applicant. T.B. Referendums (1) Consider whether or not to repeal the County General Plan Amendment for the Keller Canyon Landfill site, GPA 3-89-CO of Resolution Nos. 89/656 and 89/683. If the General Plan Amendment is not repealed, then consider ordering that it be put on the ballot. (2) Consider whether or not to repeal the County General Plan Amendment for the Kirker Pass Landfill site, GPA 24-84-CO of Resolution Nos. 89/656 and 89/683. If the General Plan Amendment is not repealed, then consider ordering that it be put on the ballot. (3) Consider whether or not to repeal the County General Plan amendment for the East Contra Costa Sanitary Landfill site, GPA 6-85-Co of Resolution Nos. 89/656 and 89/683. If the General Plan Amendment is not repealed, then consider ordering that it be put on the ballot. (4) Consider appropriate ballot language for any General Plan Amendment(s) ordered to be put on the ballot (see memo from County Counsel on ballot language). REASONS FOR RECOMMENDATION/BACKGROUND Contra Costa County needs to maintain flexibility in providing for future landfill capacity. Lawsuits and/or referendums could eliminate any one site. In addition, the Board will have the opportunity to review detailed landfill cost data during the franchise review process. Please note that a franchise agreement is a prerequisite to the land use permit being operative, as specified in the Conditions of Approval for both landfill sites. For these reasons, Staff has recommended and continues to recommend approval of both the Keller Canyon and Marsh Canyon Landfill sites. The Keller Canyon Landfill site is being challenged through referendum and lawsuit while the Marsh Canyon Landfill site is being challenged by lawsuit. Staff believes that the pending lawsuits need not deter the Board of Supervisors from acting. With regard to the Keller Canyon referendum, the Board could declare that the land use permit for the Keller Canyon Landfill site would not become - operative until the Board's decision is consistent with an effective General Plan or General Plan Amendment. Alternatively, the Board may want to table the Keller Canyon Landfill site LUP and ancillary actions until after the referendum elections. Referendums have also been filed on the Kirker Pass Landfill project and the East Contra Costa Landfill project. The Board of Supervisors may want to consider rescinding General Plan Amendments for the Kirker Pass and East Contra Costa landfill sites. If the Board decides to repeal Kirker, then the ballot language should be modified to include Keller Canyon Landfill site only. County Counsel has prepared ballot language for the referendums for the Board's consideration. H5/actions.bo COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTRgEZ, CALIFORNIA Date i February 21, 1990 Toy Board of Supervisors Fr®t Victor J. Westman, County Counsel,+ Ree Referendums, General Plan Landfill Amendments I. INTRODUCTION. As discussed in this office's 12/19/89 memorandum, the Board presently has before it two referendum petitions concerning its October 1989 amendment of the County General Plan to provide for landfill sites. The "Antioch Petition" protests the adoption of the portion of Resolution 89/656 [10-10- 89] pertaining to the East Contra Costa (Garaventa) Sanitary Landfill site (Part IV) . The "Pittsburg Petition" protests the Keller Canyon and Kirker Pass Waste Management Landfill site portions of the October 10, 1989 Resolution 89/656 "and all of . Resolution No. 89/683, dated October 17, 1989 . " On December 19, 1989 the Board directed staff to provide for its consideration proposed ballot measures to address the two pending referendums should it determine to order their submittal to the voters at the June 1990 election. Of course, should the Board respond to the referendum petitions by rescinding one or more of the involved landfill site general plan amendments it will not be necessary to present those rescinded sites to the voters . The order also indicated that some further legal review should be made as to the sufficiency of the Pittsburg referendum and the sites it may cover. II . BALLOT MEASURES. Concerning the two pending referendums, possible ballot language for both is set forth on Attachment "A" to this memorandum. The first ballot measure is concerned with the Antioch Petition, which seeks to invalidate the East Contra Costa (Garaventa) Sanitary Landfill site General Plan amendment. Since the Antioch petition only addresses one site in the Board's October 10, 1989 Resolution No. 89/656, only oaa form of ballot measure is presented for your consideration. For the reasons hereinafter discussed in Part III of this memorandum, we have provided two different versions of a ballot measure for the Pittsburg petition. As hereinafter discussed, this Board of Supervisors -2- February 21, 1990 office recommends the Board's adoption of the attached first version of the Pittsburg referendum ballot measure. III. PITTSBURG PETITION. a. General. As noted in the Introduction, the Pittsburg petition requests the repeal of the portion of the Board's October 10, 1989 action approving general plan amendments for the Keller Canyon and Kirker Pass Waste Management landfill sites and, in addition, the repeal of "all of Resolution No. 89/683, dated October 17, 1989" (and the "entire text of Resolution No. 89/683" ) . It is only in the text of Resolution No. 89/683 that the Board of Supervisors re-approved all five landfill site General Plan amendments ( "GPAs" ) (Keller, Kirker, Garaventa, Marsh Creek and Bay Pointe) on October 17, 1989 . Therefore, arguably the voters' repeal of "all" or the "entire text" of Resolution No. 89/683 could repeal the Board's October 17th approval of all five sites . After further review, this office believes the Pittsburg petition as to the Marsh Creek, Garaventa and Bay Pointe landfill sites would not survive a timely made legal attack, because the petition fails to comply with statutory requirements for a sufficient referendum petition. However, we believe the Pittsburg petition is sufficient as a valid referendum on the Keller Canyon and Kirker Pass landfill GPAs for both the October 10 and 17 approvals . For this reason, we recommend the Board adopt the first . version of a ballot measure for the Pittsburg petition as set forth on Attachment "A" . b. Discussion. County referenda must be taken pursuant to the provisions of Election Code SS 3750-3755.5. Elections Code S 3755.5 requires that "each section of the referendum petition shall contain the title and text of the ordinance or the portion of ordinance or the portion of the ordinance which is the subject of the referendum" . This requirement establishes a statutory form standard which the petition must meet. California court decisions have invalidated referendum petitions that do not contain sufficient portions of the text of the challenged legislation, if a timely legal attack is brought (usually required to be done prior to the election, as the right to challenge a faulty petition may lapse once the measure is approved by the voters) . (Chase v. Brooks [ 1986] 187 Ca1.App. 3rd 657 & Creighton v. Reviczkv [ 1985] 171 Cal.App.3rd 1225 . ) As discussed above, the Pittsburg petition contains all the body of October 17, 1989 's Resolution No. '89/683 and its incorporated general plan amendment text for the Keller Canyon and Kirker Pass landfill sites . The Pittsburg petition does not contain Resolution No. 89/683's general plan amendment text for the Bay Pointe, Marsh Creek and Garaventa landfill sites . Board of Supervisors -3- February 21, 1990 Pursuant to the court decisions cited above, we believe the Pittsburg petition would not survive a timely-made legal challenge with regard to the Bay Pointe, Marsh Creek and Garaventa landfill GPAs. These cases declare the public policy that such deficient portions of a petition (when appropriately attacked or addressed) must fail, because such omission of the full text of the proposed legislation (e.g. , general plan amendment) will fail to apprise prospective signers of the substantive provisions of the proposed referendum and subsequently fail to provide the electors with the information which they need in order to intelligently exercise their rights under the referendum law. (Creighton v. Reviczkv, supra,, pp. 229-231 . ) Here, the County Clerk properly certified the Pittsburg referendum petition, inasmuch as it is clearly sufficient for the Keller and Rirker GPAs . Once the Clerk has taken that action, he has no way in his certification to distinguish the petition's . procedural defects as to the other three sites and to refuse to certify it for that reason as sufficient. But the Board of Supervisors may take action to clarify the Pittsburg petition on this point by adopting ballot language which characterizes the Pittsburg petition as addressing only the Keller and Rirker landfill GPAs . This can be done by the Board's approval of the proposed Pittsburg ballot measure first set forth on the attached sheet. Any parties not in agreement with that characterization of the Pittsburg petition may initiate a pre-election challenge. (Myers v. Patterson [1987] 196 Cal.App.3rd 130. ) If any pre- election challenge is taken that Pittsburg's petition is sufficient for the Bay Pointe, Garaventa and Marsh Creek sites (even with the omission of the general plan amendment text for these sites ) , this office believes the courts will not approve that challenge, because of the requirements of Elections Code section 3755.5. As noted above, should the Pittsburg petition be presented to the voters as involving both the Keller and Kirker sites and the entire text of the October 17 Resolution No. 89/683 and the voters approve it, it might be too late at that time for a post-election action to challenge successfully the form defects of the Pittsburg petition as to the three sites (Bay Pointe, Marsh Creek and Garaventa) . Some courts have taken the position that such a possible challenge may lapse once the measure is approved by the voters. (Chase v. Brooks, supra, at p. 662. ) VJW:seb:df cc: Phil Batchelor, County Administrator Robert Delevati, Elections Department di4 tv jw\uemo\dump• 2-21-90 ANTIOCH PETITION MEASURE s Shall Part IV of the Board of Supervisors' Resolution No. 89/656 amending the County General Plan to provide for the East Contra Costa Sanitary Landfill site be adopted? PITTSBURG PETITION 1. MEASURE Shall Resolutions Nos. 89/656 (as to GPAs 3-89-CO and 24-84-CO) and 89/683 of the Board of Supervisors amending the County General Plan to provide for the Keller Canyon and Kirker Pass Waste Management Landfill sites be adopted? _ D_R _ 2. MEASURE Shall the Keller Canyon and Kirker Pass Waste Management Landfill site portions of Board of Supervisors' Resolution No. 89/656 and all of Resolution No. 89/683 amending the County General Plan to provide for sanitary landfill sites be adopted? ATTACHMENT "A"