HomeMy WebLinkAboutMINUTES - 11191996 - D.34 34�
DJ
Contra
Costa
BOARD OF SUPERVISORS °'� a., ;% County
n .,r,�i!ain�► '
FROM: HARVEY E. BRAGDON oo =
DIRECTOR OF COMMUNITY DEVELOPMENT Sra'co"vK'
DATE: November 19, 1996
SUBJECT: An Appeal by Shapell Industries of Northern California (Applicant &
Owner) , County File #SD968002 on the Decision by the County Planning
Commission Relative to Subdivision of the Wendt Ranch
SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
1. Certify the Final Environmental Impact Report prepared for
this project was completed in compliance with CEQA and adopt
the Statement of Findings and Overriding Considerations
related to approval of this project.
Option One
2A. Deny the Appeal of Shapell Industries of Northern California,
Inc. and uphold the decision ' to approve SD968002 with the
conditions approved by the County Planning Commission, and as
modified herein. OR
Option Two
2B. Grant the Appeal of Shapell Industries of Northern California,
and require that the United States Fish and Wildlife Service
and California Department of Fish and Game consultation on Kit
fox foraging habitat will be required if preconstruction
surveys indicate the presence of the species on site.
• 3 . Adopt the findings contained in County Planning Commission
Resolution #29-1996 as the basis for the Board' s action.
4 . Adopt the Mitigation Monitoring Program prepared for this
project.
FISCAL IMPACT
None.
CONTINUED ON ATTACHMENT: X YES SIGNATURE „
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMM TTEE
APPROVE OTHER
SIGNATURE(S) :
ACTION OF BOARD ON November 19 , 1996 APPROVED AS RECOMMENDED OTHER
• IT IS BY THE BOARD ORDERED that the hearing on the above
entitled matter is CONTINUED to December 10 , 1996 , at 3 : 30 p .m. ,
VOTE OF SUPERVISORS in the Board ' s Chambers .
I HEREBY CERTIFY THAT THIS IS A
X UNANIMOUS (ABSENT III TRUE AND CORRECT COPY OF AN
AYES: NOES: ACTION TAKEN AND ENTERED ON THE
ABSENT: ABSTAIN: MINUTES OF THE BOARD OF
SUPERVISORS ON THE DATE SHOWN.
Contact:Dennis M. Barry - 335-1210
Orig: Community Development Department ATTESTED November 19, 1996
cc: Shapell Industries of N.Calif. PHIL BATCHELOR, CLERK OF
County Counsel THE BOARD OF SUPERVISORS
Public Works ANDCOUNTY ADMINISTRATOR
City of San Ramon
Town of Danville B , DEPUTY
DMB/df:bo3 :wendt.bo
r
.
Page Two
BACKGROUNDIREASONS FOR RECOMMENDATION
The background for this project was previously provided to the
Board in the November 12, 1996 packet.
On November 51 1996 the Planning Commission approved Subdivision
968002 with modifications to the staff recommended conditions. On
November 6, 1996, the applicant appealed the decision of the
Planning Commission with respect to condition of approval #89.
This condition requires the following:
"Within 60 days of commencement of any development activity
on the site, the applicant shall submit to the U. S. Fish and
Wildlife Service, the California Department of Fish and Game
and the County Zoning Administrator for review and approval
an off-site mitigation habitat program for the Kit Fox.
The applicant shall provide off-site mitigation habitat
: sufficient to ensure that there is compensation for habitat
lost. The amount shall be determined through consultation
primarily with the U.S. Fish and Wildlife Service under
Section 10 or Section 7 of the Federal Endangered Species
Act. In previous cases, the area set aside has been based on
a standard replacement ratio (area protected/restored: area
lost) of 3: 1--that is, three acres of suitable habitat would
be provided by the applicant for every one acre of kit fox
habitat destroyed. However, the ratio is not policy and may
be otherwise stipulated by the U.S. Fish and Wildlife
Service.
Mitigation lands would probably consist of parcels of similar
grasslands habitats adjacent to other San Joaquin kit fox
mitigation lands in the immediate vicinity. The proposed off-
site mitigation habitat program shall identify the management
entity, the property to be acquired, monitoring protocols and
performance standards (e.g. success criteria where land must
be enhanced) . (Mitigation Measure J. 1.d) ".
This issue is discussed in the Draft EIR at pages III.J-15 through
III.J-17, and in the Response to Comments Document at pages C. 9-1
through C.9-3 ; C. 16-3, C-16.9 through C-16. 13 ; C-17 . 1 through C-
17 . 2 and C-17 . 6 and C-17.7.
In General, the Final EIR concludes that "Project development would
result in reduction of San Joaquin kit fox foraging habitat and
may adversely affect individual animals. For the habitat, this is
a significant impact; for individual animals, the impact level is
unknown"
The Appellant suggests that there is insufficient evidence
presented to conclude that the project is in fact kit fox foraging
habitat, but only that it is "considered" to be such by U.S. Fish
and Wildlife Service and California Department of Fish and Game.
The Comment at page C-17. 2 by Sycamore Associates discusses this
position in some detail. The California Department of Fish and
Game letter is found at page C-9. 1 of the Response Document.
The applicant proposes that the condition/mitigation measure be
modified to indicate that the consultation to determine the
appropriate level of habitat mitigation would only take place in
the event that the required pre-construction surveys confirm the
presence of the kit fox, thereby demonstrating that this property
is in fact foraging habitat.
If the Board of Supervisors agrees with the position of the
applicant, the Board could modify the Impact Statement, Mitigation
Measure and Condition of Approval #89 as indicated in ATTACHMENT
A.
Page Three
ADDITION TO CONDITION #90, SUGGESTED BY STAFF.
The Final EIR (Response to Comments at page C-20.4) added the
following phrase to Mitigation Measure J.2 .a on page III.J. 19 of
the Draft EIR:
The project should be revised to include protection of both
branches of Alamo Creek as wildlife corridor in perpetuity.
This addition should be included in the project condition of
approval #90 as follows (addition indicated by shading) :
Prior to the commencement of any development activity on the site,
the applicant shall submit to the Zoning Administrator for review
and approval a revised landscaping plan which is consistent with
the "Wendt Ranch Conceptual Mitigation Plan". The revised
landscaping plan shall eliminate over story and shrub planting
within and along the banks of portions of Alamo Creek currently
supporting freshwater marsh vegetation The landscape design shall
focus on planting "buffer vegetation" between the proposed trail
and top-of-bank in these locations. Buffer vegetation shall
include species native to the site and vicinity and shall be sited
to avoid detrimental shading of freshwater emergent vegetation.
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(Mitigation Measure J.2 .a. )
COUNTY COUNSEL'S OFFICE
COMM COSTA COUNTY
MARTIN= CAUFORN/A
Date: November 15, 1996
To: Board of Supervisors
From: Victor J. Westman, County Counsel
By: Diana J. Silver, Deputy County Counsel
Re: California state appellate court decisions re adequacy of mitigation measures
- Concerning the above subject, this office provides the following requested summary of the
five noted appellate court decisions:
Mitigation Measures Must Be Related to Significant Environmental Impacts of Project .
- = - San Frrmcisccros for Reasonable Growth.v. 0ty'and County;of San Francisco (1989) 209 Ca1.
App. 3d 1502, 1525:
In-devising mitigation measures "a public-agency may exercise only those express-or- - -
- implied powers provided by-law otherthan{CEQA]"(Pub-Resources%Code-§21004;'CEQA _-_:........_�....
Guidelines,§I 5040(b). In this`case, which involved a proposed 18-story office tower in downtown
San Francisco, the court refused to require the respondent agency to impose certain mitigation
measures that the petitioner had urged should have been made part of the project approval. This
case demonstrates that under CEQA (unlike other enabling authority for imposing conditions on
projects), the approving agency has no obligation (and perhaps, no power) to require conditions of
approval unrelated to the need to mitigate the significant environmental effects of the proposed
project. Petitioner had urged that affordable housing and onsite childcare facilities should be
provided and offsite open space should be created Where, as here, the court found that such
measures related only to social or economic concerns and the record did not demonstrate adverse
environmental-impacts which such measures were intended to mitigate (nexus), these measures were
not required Further, as discussed below in connection with the original case (1984), the writ
required analysis of mitigation measures only in terms of cumulative impacts.
Nfitigation Measures Need to be Identified as Feasible If Not Precisely Specified at Time of Project
Approval
Sacrronento Old City Assn v. City Council of Sacramento (1991) 229 Cal. App. 3d
1011,1026-1030:
The court upheld agency approval of a convention center expansion where the precise
combination of proposed mitigation measures to address increased traffic and demand for parking
was unknown at the time of project approval (see detailed discussion below).
Kings Cowo Farm Bwvm v. City of Harfo?d(1990) 221 Cal. App. 3d 692,727-728:
This case indicates that, for cases involving the preparation of EIRs, agencies should not
rely on mitigation measures of unknown efficacy when concluding that significant impacts will be
substantially lessened or avoided. In this case, an EIR had been prepared for a proposed coal-fired
power plant. The court found the EIR inadequate. One problem was its analysis of the project's
consumption of groundwater, which concluded that no significant impact would occur although the
aquifer underlying the project area had been overdmfted for years. The primary mitigation measure
(to recharge the aquifer) was a "mitigation agreement" in which the applicant agreed to give the
local water district money to purchase water from unknown sources. The court gave two reasons
for finding the mitigation deficient: fust, there was no showing that the EIR found the project-
specific groundwater impacts insignificant due to its reliance on the "mitigation agreement" and
secondly, there was no evidence in the record that any replacement water was or would be available
for purchase.
Sundstrom v. County of Mendocino (1988) 202 Cal. App. 3d 2965306-308:
A county's approval of a land use permit authorizing construction of a sewage treatment
plant to serve an existing development consisting of a small motel, restaurant and gas station to
which a larger motel, restaurant and apartments would-be added was set aside. The court held
CEQA was violated when the project was approved based on a negative declaration without fust
-resolving uncertaintiesiregarding the project's potential to cause significant environmental impacts.
The applicant had been directed to develop and implement concrete mitigation measures AFTER
_ project approval. :For.example, a hydrological study (re soil stability, erosion, flooding of
-.
_,downslope properties):evaluating the proj.ect's potential environmental-effects and-proposing any
necessary mitigation measures was to be prepared later. Because the success of mitigation was
uncertain, the agency could not have reasonably determined that significant effects would not occur.
This deferral of environmental assessment until after project approval violated CEQA's policy that
impacts must be identified before project momentum reduces or eliminates the agency's flexibility
to subsequently change its course of action. In addition, the county violated CEQA by allowing the
applicant to conduct the required analysis, subject to planning staff approval, where CEQA requires
all environmental analysis to ultimately derive from the decisionmaking body itself.
Another permit condition requiring subsequent county approval of a sludge disposal plan was
found inadequate absent evidence in the record that any suitable disposal site was known to exist.
The court held that county had "evaded its responsibility to engage in comprehensive environmental
review" by approving the project without data showing a solution was possible. The design of an
irrigation system should have been fully developed since there was a danger the tentative design
could adversely affect soil stability and cause drainage problems.
The court upheld conditions requiring compliance with air and water quality standards even
though such standards were not precisely identified because unlike the conditions found to be
inadequate, the court found that the county had "meaningful information reasonably justifying an
expectation of compliance."
Swidstrom should be compared with the Sacramento case cited above which was decided
after Sundstrom. In Sacmmento Old City Assn, supnq it was held that the project could be
ATTACHMENT A
Appeal requests revision of the impact statement and mitigation measures as follows:
Based on evidence in the record,the Board finds as follows: TheWendt Ranch site cannot merely
be"considered"to be kit fox foraging habitat absent sufficient evidence to support that conclusion.
The record shows that recent sightings more than two miles from the site are unconfirmed,there are
no potential dens located on the site,there are no actual dens located in the vicinity,there is a
scarcity of rodent prey,the site is located on the fringe of what is"considered"to be kit fox range,
and a survey performed in accordance with agency protocols has found no evidence of kit fox on the
site or in the Tassajara Valley. Other surveys found no evidence of kit fox in the neighboring
Dougherty Valley. Nevertheless, it is essential to ensure that the project would not result in any
impact to kit fox which is listed as Endangered. Therefore, Impact J.1 and the corresponding
mitigation measures should be revised as follows
Impact J.1: Project development wcould result In.reduction of
San Joaquin kit fox fefag+ag-habitat and may adversely affect
Individual,animals. FGF the habitatrUhIs is a significant impact;
the Impae-t-le-vel Is unknomm.
Mitigation Measure J.1: The project applicant should implement
the kit fox mitigation program described below and, if indicated
after pre-construction surveys. initiate consultation with the U.S.
Fish and Wildlife Service and the California Department of Fish
and Game.
J.1-a: The appilsantshaillef ,
Firth and Wildlift Swine and
Call(OFAla Department of Fish and
Game to determine ppFopr-late mitigation ftF'MpaGft WMA
Jeaquin-1 ,—The applicant would conduct pre-construction
(14-30 days prior to initiation)surveys for occupied kit fox
burrows according to accepted U.S. Fish and wildlife Service
and California Department of Fish and Game methodologies
(preferred survey season is between March 1 and July 31).
Results of these surveys would be submitted to the U.S. Fish
and Wildlife Service and the California Department of Fish and
Game. if there Is no evidence of occupied burrows within the
project area, construction may begin and the applirant%No-
PFOGGed
. If there Is evidence of occupied burrows
within the project area the applicant would proceed with.JAb
rough J.1.d.
Corresponding change to the Condition ofAppmval as follows.-
89.
ollows:89. if pre-construction surveys produce evidence of kit fox
on the site,the applicant shall submit to the U.S. Fish and Wildlife Service,
the California Department of Fish and Game and the County Zoning Administrator for review and
approval an off-site mitigation habitat program for the Kit Fox.
3�
approved without deciding which mitigation option would eventually be carried out to deal with the
traffic and parking impacts resulting from the expansion of the convention center. The OR
recommended that the city adopt a transportation management plan and then proposed seven
additional measures that could be used in some combination. The city found two of the proposed
measures to be infeasible but found that some combination of the remaining five measures was
feasible. The court found that the city was committed to mitigating the impacts even though the
specifics of mitigation had not been fully formulated The court stated that one way to make such
a binding commitment is to adopt "performance criteria" that mitigation measures must eventually
satisfy. It is noteworthy that the Sacramento case involved an EIR rather than a negative
declaration thus, allowing a detailed analysis of the potential impacts.
The Remy and Thomas Guide to CEQA concludes that these cases (and others not discussed
here) can be read to create reasonable, flexible rules regarding the extent to which agencies can
defer the formulation of precise mitigation measures until after project approval. If infeasible to
formulate precise means of mitigating impacts at time of project approval such impacts should be
considered significant at time of project approval and the agency should commit to working out
such measures as can be feasibly devised in the future. If the mitigation measure(s) are known to
be feasible, but practical considerations prohibit devising such measures early in the planning
process (e.g. GPA or rezoning stage), then the agency may commit to eventually devising measures
that will satisfy specific performance criteria set forth at the time of the project approval (Remy and
Thomas, CEQA Guide, 1994, p.202).
Cumulative.Impact Analysis Required for Proposed.Projects Being Reviewed -
San Frrmciscav for-Recronable Growth v.. City cmd Cowzty of Son Frowisco (1984) 151 Cal.
App. 3d 61:
This case, the predecessor of the other Sari Francisco case discussed above, is.really a
cumulative impacts case, not a mitigation measures case. While an appeal was pending in the 1989
San Francisco case, the court of appeal issued its decision in this 1984 case holding that cumulative
impact analysis must take into account the environmental impacts of proposed projects undergoing
environmental review as well as projects already approved. The court stated that by failing to take
into account the cumulative impacts of the pending projects (e.g. on the public transit system),
adequate mitigation measures could not be found (pages 79-80).
The parties in the 1989 case (discussed above) stipulated to remit back to the trial court on
the cumulative impact issue. The superior court issued a writ of mandate vacating certification of
the EIR, etc. Following administrative affirmance of a SEIR, petitioners sued again claiming the
planning commission should have imposed certain mitigation measures related to childcare, open
space and parks and affordable housing. As discussed above, petitioners were not successful. The
fact that the city had adopted ordinances during the litigation which imposed obligations on
developers to provide these things did not help petitioners since the ordinances exempted projects
which had already received at least one commission approval prior to the ordinances' effective
dates. Moreover, the writ compelled a reassessment only as to mitigation measures related to
cumulative impacts ( 209 Cal. App. 3d at 1522).
a\mimr.mem
a f •
• EXHIBIT A
• f Community Contra Harvey n
Development Director oof Coommummunity Development
Department Costa
County Administration Building County
651 Pine Street
$E
4th Floor, North Wing .••E•••-�..;•••••o�,
Martinez, California 945530095 "1
Phone: ni ziig
V
335-1210
ST4 COiIN'�
Maria P. Rivera
McCutchen, Doyle, Brown & Enerson, LLP
P.O. Box V
Walnut Creek, CA 94596-1270
Dear Ms. Rivera
This letter acknowledges receipt of your letter of appeal dated November 6, 1996 for application
#SD968002, which was approved by the County Planning Commission on November 5, 1996.
Your appeal will be heard by the Board of Supervisors. You will be notified by the Clerk of the Board of
Supervisors when the appeal has been scheduled for hearing before the Board. You should be aware that
you or your representative should be present at the hearing.
If you have any questions regarding this matter, please call James W. Cutler at 335-1236.
Sincerely yours,
—f3 I l•�T
Oennis M. Barry, AICP 1
Deputy Director J
DMB:df
L4:SD968002.bos
cc: File/aa
Public Works
Attn: Mitch Avalon
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEQ CALIFORNIA
Date- November 15, 1996
To: Board of Supervisors
From: Victor J. Westman, County Counsel
By: Diana J. Silver, Deputy County Counsel
Re: California state appellate court decisions re adequacy of mitigation measures
Concerning the above subject, this office provides the.following requested summary of the
five noted appellate court decisions:
Mitigation Measums Must Be Related to Significant Environmental Impacts of Project .
-San Franciscans or Reasonable Growth..-.v.
'Cit grid Cour o =Sc Francisco 1989 209 Cal.
f t - ty u f ( )
App. 3d 1502, 1525: - -
In_-devising-mitigation-measures, "a public--agency may-exercise
- ; - ' only' -those--express--or-
--implied
expre`ss or
-implied powers- rovided;b law-other tharn- CEQAj" Pub:-Resources Code- 21004,-CE A
- -
Guidelines,§15040(b). In this case, which involved a proposed 18-story office tower in downtown
San Francisco, the court refused to require the respondent agency to impose certain mitigation
measures that the petitioner had urged should have been made part of the project approval. This
case demonstrates that under.CEQA (unlike other enabling authority for imposing conditions on
projects), the approving agency has no obligation (and perhaps, no power) to require conditions of
approval unrelated to the need to mitigate the significant environmental effects of the proposed
project.. Petitioner had urged that affordable housing and onsite childcare facilities should be
provided and offsite open space should be created. Where, as here, the court found that such
measures related only to social or economic concerns and the record did not demonstrate adverse
environmental impacts which such measures were intended to mitigate (nexus), these measures were
not required. Further, as discussed below in connection with the original case (1984), the writ
required analysis of mitigation measures only in terms of cumulative impacts.
Mtigation Measures Need to be Identified as Feasible If Not Pmcisely Specified at Time of Project
Appmval
Sacramento Old City Assn. v. City Council of Sacramento (1991) 229 Cal. App. 3d.
1011,1026-1030:
The court upheld agency approval of a convention-center expansion where the precise
combination of proposed mitigation measures to address increased traffic and demand for parking
was unknown at the time of project approval (see detailed discussion below).
Kings County Farm Bureau v. City of Hanford(1990) 221 Cal. App. 3d 692,727-728:
This case indicates that, for cases involving the preparation of EIRs, agencies should not
rely on mitigation measures of unknown efficacy when concluding that significant impacts will be
substantially lessened or avoided. In this case, an EIR had been prepared for a proposed coal-fired
power plant. The court found the EIR inadequate. One problem was its analysis of the project's
consumption of groundwater, which concluded that no significant impact would occur although the
aquifer underlying the project area had been overdra$ed for years. The primary mitigation measure
(to recharge the aquifer) was a "mitigation agreement" in which the applicant agreed to give the
local water district money to purchase water from unknown sources. The court gave two reasons
for finding the mitigation deficient: first, there was no showing that the EIR found the project-
specific groundwater impacts insignificant due to its reliance on the "mitigation agreement" and
secondly, there was no evidence in the record that any replacement water was or would be available
for purchase.
Sundstrom v. County of Mendocino (1988) 202 Cal. App. 3d 296,306-308:
A county's approval of a land use permit authorizing construction of a sewage treatment
plant to serve an existing development consisting of a small motel, restaurant and gas station to
- - which a larger motel;.restaurant and-apartments would-be added was set aside. The-court held
CEQA:was violated=when the project was approved based on-a negative declaration without first
resolving-uncertainties-regarding-the'project`s=potential to>cause,significant environmental--impacts:
The applicant had been directed to develop and implement concrete mitigation measures AFTER
project approval ::For example__a hydrological.study (re-,soil:stability, erosion, flooding-of
{
downslope,properties);evalmting-the..p 'ect's_potential environmental'effects-and=proposing_.any .F
necessary mitigation measures was to be prepared later. Because the success of mitigation was
uncertain, the agency could not have reasonably determined that significant effects would not occur.
This deferral of environmental assessment until after project approval violated CEQA's policy that
impacts must be identified before project momentum reduces or eliminates the agency's flexibility
to subsequently change its course of action. In addition, the county violated CEQA by allowing the
applicant to conduct the required analysis, subject to planning staff approval, where CEQA requires
all environmental analysis to ultimately derive from the decisionmaking body itself.
Another permit condition requiring subsequent county approval of a sludge disposal plan was
found inadequate absent evidence in the record that any suitable disposal site was known to exist.
The court held that county had "evaded its responsibility to engage in comprehensive environmental
review" by approving the project without data showing a solution was possible. The design of an
irrigation system should have been fully developed since there was a danger the tentative design
could adversely affect soil stability and cause drainage problems.
The court upheld conditions requiring compliance with air and water quality standards even
though such standards were not precisely identified because unlike the conditions found to be
inadequate, the court found that the county had "meaningful information reasonably justifying an
expectation of compliance."
Sundstrom should be compared with the Sacramento case cited above which was decided
after Sundstrom. In Saercmento Old City Assn, suprq it was held that the project could be
ATTACHMENT A
Appeal requests revision of the impact statement and mitigation measures as follows:
Based on evidence in the record, the Board finds as follows: TheWendt Ranch site cannot merely
be"considered"to be kit fox foraging habitat absent sufficient evidence to support that conclusion.
The record shows that recent sightings more than two miles from the site are unconfirmed, there are
no potential dens located on the site, there are no actual dens located in the vicinity, there is a
scarcity of rodent prey, the site is located on the fringe of what is"considered"to be kit fox range,
and a survey performed in accordance with agency protocols has found no evidence of kit fox on the
site or in the Tassajara Valley. Other surveys found no evidence of kit fox in the neighboring
Dougherty Valley. Nevertheless, it is essential to ensure that the project would not result in any
impact to kit fox which is listed as Endangered. Therefore, Impact J.1 and the corresponding
mitigation measures should be revised as follows
Impact J.1: Project development wcould result in.reduction of
San Joaquin kit fox foraging habitat and may adversely affect
individual animals. For than habit'*,*This is a significant impact;
unknown.fGF animals,the IFnpaGt level Is
Mitigation Measure J.1: The project applicant should implement
the kit fox mitigation program described below and, if indicated
after pre-construction surveys. initiate consultation with the U.S.
Fish and Wildlife Service and the California Department of Fish
and Game.
J.1.a: The applorant should Initiate raensultation with the U.S.
Fish and Wildlife Ses;wGe and CalifoFnia Depadment of Posh and
Jeaquin-ktt-fox—. The The applicant would conduct pre-construction
(14-30 days prior to initiation)surveys for occupied kit fox
burrows according to accepted U.S. Fish and wildlife Service
and California Department of Fish and Game methodologies
(preferred survey season is between March 1 and July 31).
Results of these surveys would be submitted to the U.S. Fish
and Wildlife Service and the California Department of Fish and
Game. If there is no evidence of occupied burrows within the
project area, construction may begin and the appliGant would
pr-GGeed with i. . If there is evidence of occupied burrows
within the project area the applicant would proceed with.J.1b
through J.1.d.
Corresponding change to the Condition of Approval as follows:
89. If pre-construction surveys produce evidence of kit fox WthiR 60 days Of GGFF1FneAGeFneR
any development aGtiVfty on the site, the applicant shall submit to the U.S. Fish and Wildlife Service,
the California Department of Fish and Game and the County Zoning Administrator for review and
approval an off-site mitigation habitat program for the Kit Fox.
341
approved without deciding which mitigation option would eventually be carried out to deal with the
traffic and parking impacts resulting from the expansion of the convention center. The EIR
recommended that the city adopt a.transportation management plan and then proposed seven
additional measures that could be used in some combination. The city found two of the proposed
measures to be infeasible but found that some combination of the remaining five measures was
feasible. The court found that the city was committed to mitigating the impacts even though the
specifics of mitigation had not been fully formulated. The court stated that one way to make such
a binding commitment is to adopt "performance criteria" that mitigation measures must eventually
satisfy. It is noteworthy that the Sacramento case involved an EIR rather than a negative
declaration thus, allowing a detailed analysis of the potential impacts.
The Remy and Thomas Guide to CEQA concludes that these cases (and others not discussed
here) can be read to create reasonable, flexible rules regarding the extent to which agencies can -
defer the formulation of precise mitigation measures until after project approval.. If infeasible to
formulate precise means of mitigating impacts at time of project, approval such impacts should be
considered significant at time of project approval and the agency should commit to working out
such measures as can be feasibly devised in the future. If the mitigation measure(s) are known to
be feasible, but practical-,considerations prohibit devising such measures early in the planning
process (e.g. GPA or rezoning stage), then the agency may commit to eventually devising measures
that will satisfy specific performance criteria set forth at the time of the project approval (Remy and
Thomas, CEQA Guide, 1994, p.202).
Cumulative.knpact Analysis Regtiir d for=Ptvposed:Projects:Being.Reviewed
Sim FYcmciscemsforRasonable.iGrowth:v.. City card County of Scat-Francisco.(1984) 151 Cal.
App. 3d 61:
This case, the predecessor of the other San Francisco case discussed above, is-really a
cumulative impacts case, not a mitigation measures case. While an appeal was pending in the.1989
San Francisco case, the court of appeal issued its decision in this 1984 case holding that cumulative
impact analysis must take into account the environmental impacts of proposed projects undergoing
environmental review as well as projects already approved. The court stated that by failing to take
into account the cumulative impacts of the pending projects (e.g. on the public transit system),
adequate mitigation measures could not be found (pages 79-80).
The parties in the 1989 case (discussed above) stipulated to remit back to the trial court on
the cumulative impact issue. The superior court issued a writ of mandate vacating certification of
the EIR, etc. Following administrative affirmance of a SEIR, petitioners sued again claiming the
planning commission should have imposed certain mitigation measures related to childcare, open
space and parks and affordable housing. As discussed above, petitioners were not successful. The
fact that the city had adopted ordinances during the litigation which imposed obligations on
developers to provide these things did not help petitioners since the ordinances exempted projects
which had already received at least one commission approval prior to the ordinances' effective
dates. Moreover, the writ compelled a reassessment only as to mitigation measures related to
cumulative impacts ( 209 Cal. App. 3d at 1522).
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MCCUTCHEN,DOYLE,BROWN&ENERSEN,LLP
96 NOV -6 AH 8: 38
DE VEt(J�`M',1 I I C��
November 6, 1996 T direct line. 975-5304
HAND DELIVERY
Mr. Harvey E. Bragdon
Director
Community Development Department
County of Contra Costa
651 Pine Street, 4th Fir., No. Wing
Martinez, CA 94553
Subdivision 95/8002
Wendt Ranch Project
Dear Mr. Bragdon:
This letter is written on behalf of Shapell Industries, the project applicant
in the above-entitled project. Shapell Industries appreciates the Planning Commission's
approval of the Wendt Ranch Vesting Tentative Map. However, there is a condition
attached to the approval that would unfairly burden the project and is not necessary or
justified:
➢ To the extent Condition 89 requires consultation with USFWS and
CDFG to determine off-site mitigation for loss of kit fox foraging habitat, these condition
should be revised. The evidence in the record does not support a conclusion that this
site is kit fox foraging habitat; rather it is only "considered" to be so by USFWS and
CDFG. There is no evidence at all that development would involve an incidental take of
the species even under the broadest of regulations that prescribes "significant habitat
modification or degradation where it actually kills or injures wildlife by significantly
impairing essential behavioral patterns, including breeding, feeding or sheltering." On
this record, it is purely speculative whether development of this site will have any effect
whatsoever on the species, and there is nothing at all to support the statement that it
will "actually kill or injure" the animals. Shapell agrees that preconstruction surveys
should be conducted to ensure that the species, if found, will be protected. However,
the consultation/mitigation requirement should be imposed only if the pre-construction
surveys are positive
ATTORNEYS A T L A V1' 1331 N. California Blvd., P.O. Box V San Francisco Palo Alto
Walnut Creek, California 94596-1270 Los Angeles Washington, D.C.
Tel. (510) 937-8000 Fax (510) 975-5390 San Jose Taipei
http://www.mccutchen.com Walnut Creek
A-i
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Mr. Harvey E. Bragdon
November 6, 1996
Page 2
If possible, please agendize this matter for the November 19, 1996 Board
of Supervisors hearing, on which date we anticipate that the Board will have before it
the related General Plan and Specific Plan Amendments. Enclosed is a check in the
amount of$125 for the processing of this appeal.
Very truly yours,
Maria P. Rivera
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EXHIBIT B
Appeal requests revision of the impact statement and mitigation measures as follows:
Based on evidence in the record,the Board finds as follows: TheWendt Ranch site cannot merely
be"considered"to be kit fox foraging habitat absent sufficient evidence to support that conclusion.
The record shows that recent sightings more than two miles from the site are unconfirmed,there are
no potential dens located on the site,there are no actual dens located in the vicinity,there is a
scarcity of rodent prey,the site is located on the fringe of what is'considered'to be kit fox range,
and a survey performed in accordance with agency protocols has found no evidence of kit fox on the
site or in the Tassajara Valley. Other surveys found no evidence of kit fox in the neighboring
Dougherty Valley. Nevertheless,it is essential to ensure that the project would not result in any
Impact to kit fox which is listed as Endangered. Therefore, impact JA and the corresponding
mitigation measures should be revised as follows
Impact J.1: Project development wgould result in.reduction of
San Joaquin kit fox fegg-habitat and may adversely affect
Individual.animals. tlhis is a significant Impacti
2AIM in
Mitigation Measure J.1: The project applicant should Implement
the kit fox mitigation program described below and.If indicated
afterpre-construction surveys. Initiate consultation with the U.S.
Fish and Wildlife Service and the California Department of Fish
and Game.
J.1.a: :rho&ppl-Gant should I
R.r-h and Wildlife Sewice and f-'aliftornia- Depairtment of Rich and
JeaquIn*#€9xv-The applicant would conduct pre-construction
(14,30 days prior to initiation)surveys for occupied kit fox
burrows according to accepted U.S. Fish and wildlife Service
and California Department of Fish and Game methodologies
(preferred survey season Is between March 1 and July 31).
Results of these surveys would be submitted to the U.S. Fish
and Wildlife Service and the California Department of Fish and
Game. If there is no evidence of occupied burrows within the
project area,construction maybegi
. If there Is evidence of occupied burrows
within the project area the applicant would proceed with.J.1b
through J.1.d.
Corresponding change to the Condition of Approval as follows:
89. If 12re-construction surveys produce evidence of kit fox
any development artivity on the site,the applicant shall submit to the U.S. Fish and Wildlife Service,
the California Department of Fish and Game and the County Zoning Administrator for review and
approval an off-site mitigation habitat program for the Kit Fox.
1
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EXHIBIT C
Community Contra Harvey E.of ommu n
Director of Community Development
Development Costa
Department County
County Administration Building
651 Pine Street
4th Floor, North Wing
Martinez, California 945530095 _'
• Phone:
335-1210
>J
ls"t CO Li?3'C�
Howard Siu
39155 Liberty Street, Suite 146
Fremont, CA 94538-1513
Dear Mr. Siu:
This letter acknowledges receipt of your letter of appeal dated November 14, 1996 for application >#GP95-
0012, RZ963037, SD968002 and implementing project entitlements, which was approved by the County
Planning Commission on November 5, 1996.
Your appeal has been tentatively scheduled for December 10, 1996 at 3:30 p.m.before the Board of
Supervisors. You will be notified by the Clerk of the Board of Supervisors of the date and time. You
should be aware that you or your representative should be present at the hearing.
If you have any questions regarding this matter, please call me at 335-1210.
Sincerely yours,
Dennis M. Barry, AICP
Deputy Director
DMB:df
L4:rz963037.bos
cc: File/aa
Shapell Industries
Marguerite Wendt
Public Works
Attn: Mitch Avalon
C- !
7
Howard Siu, M.D.
39155 Liberty Street, Suite 146 WV 15 :v
Fremont, California 94538-1513
(510) 796-1316 CONTRA COSTA COUNTY
cERTIFIEDEYTHE Fax(510) 796-1548 MMMUNI ^^ .wipp��y�p:
AMERICAN BOARD OF NEUROLOGY INDUSTRIAL INJURY MEDICAL MANAGEMENT
AMERICAN BOARD OF INTERNAL MEDICINE DISABILITY EVALUATIONS
STATE APPOINTED SPECIALIZING IN
QUALIFIED MEDICAL EVALUATOR HEAD INJURY
INDEPENDENT MEDICAL EXAMINER NERVE AND SPINAL INJURIES
STATE ATHLETIC COMMISSION CONSULTANT REPETITIVE OVERUSE SYNDROME
November 14, 1996
Mr. Harvey Bragdon
Contra Costa County
Director of Community Development
651 Pine Street, 2nd Floor, North Wing
Martinez, California 94553
Re: Contra Costa County
Wendt Property General Plan Amendment#GP 95-0012
Rezoning #RZ963037, Subdivision 9958002
and implementing Project Entitlements (Wendt Ranch Project)
Dear Mr. Bragdon:
We respectfully appeal the Contra Costa Planning Commission Findings and
Conditions of Approval on 11/5/96 and 11/6/96 for the subdivision map for the Wendt Ranch
Project Proposal.
Items of particular concern include potential biased behavior by Commissioner Clark,
which resulted in my sending supporters and speakers home early during the 11/5/96 public
hearing (see "Where is the outrage?"). However, I will primarily address the 11/1/96
DRAFT of Findings:
Public Services and Utilities:
CA A permanent sewer management program must now be planned to pump sewage
to the north as there is strong objection to placing a sewer through adjoining southwest
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November 14, 1996
Appeal
properties in the future because of severe resulting disruption to the Joseph and Verna
Simpson Lake and Wildlife Reserve.
Such sewage system must not potentially dump untreated sewage into Alamo Creek in
case of repairs, power outages, or other facility emergencies.
C.9 Given the significant increased wildland fine risk with this type of development,
we strongly recommend that Shapell provide a substantial land buffer between the Siu and
Wendt properties, which can be accessed from both the Siu and Wendt properties in order to
maintain a 30 to 40 foot fire break twice per year as is customary for this area. Shapell must
help maintain the Siu access dirt road to facilitate access to this fire and multi-purpose buffer
zone.
Air Quality:
E.1 There is significant increased risk of Coccidiodomycosis or Valley Fever from
spores, which are made air borne by the grading process. Shapell should be liable for
medical treatment, loss of income, or any other effects to residents of the East Alamo Creek
corridor for 5 years after grading. This illness is often indolent.
Noise:
F.1 (Cum) There will be significant noise impact from the Wendt Project on the
Joseph and Verna Simpson Lake and Wildlife Reserve. We strongly recommend elimination
of the southwest cluster of 16 units (court G and F) and implementation of design and
landscaping ideas to minimize potential increased noise pollution to the wildlife reserve.
There is currently minimal to no noise pollution at the Reserve.
Soils & Geohazards:
H.1 I recommend the avoidance of all grading on slopes greater 26%within 200 feet
of the creeks to avoid slides, increased erosion, and creek siltation. Please review creek
migration issues raised by Mr. Pancoast, which require significant creek setbacks.
H.3 There should be careful evaluation of potential liquefaction on the entire Wendt
property because of the specific orientation of the vernal marsh and volcanic tuff, which
indicate a very high water table on the entire property. Given the high risk of liquefaction
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November 14, 1996
Appeal
during earthquake and settling at other times, Shapell should avoid building in the vernal
marsh area and the east-west seepage areas into Alamo creek from the marsh.
Hydrology:
The hydrology of this creek corridor and watershed is complex and has been only
incompletely studied. This is indicated by the very belated involvement by Balance
Hydrologics for Shapell. There is also continued comments by Shapell to blame Blackhawk
and Shadow Creek for any potential water quality concerns.
Given this denial and lack of good faith, I have had to hire our own hydrologist and
this should be subsidized by formal mechanism entirely by Shapell as admitted by Mr. Koch
during the 11/5/96 public hearing.
I.2 There will be admitted increase storm runoff in the East Branch of the Alamo
Creek watershed with increased peak flows and total volume of runoff that could aggravate
the existing flooding, siltation, and erosion problems in the Reserve.
I recommend an adjustable outlet on the planned detention basin to avoid flooding in
the Lake, which could occur if the creek water level raises above the outlet level. Since the
size and characteristics of the detention basin are debatable (Environmental Impact Report
indicates from less than 4 acre feet to the 12 acre feet proposed by TVPOA. There are
conflicting peak flow & sediment needs vs water quality needs), I request that my
hydrologist review all hydrologic plans and have meaningful input before progression of this
project.
I.5 Shapell should address and provide site specific mitigations for the problem of
progressive erosion on the Siu's creek banks on both the hill and levee sides, maintenance of
the access dirt road on the hillside of the creek bank, silting on the concrete spillway,
increased erosion at the bottom of the Siu spillway, erosion of the dam, increased erosion of
the lake banks, and increased erosion of the breeding islands in the middle of the lake. There
should be hydrologic study and plans made to prevent accelerated progression of these
hydrologic problems.
I.6 There should be an onsite non biased inspector to control the Lake inlet gate in
event of accidental toxic spills and accidental siltation during grading and construction.
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November 14, 1996
Appeal
The water quality basins should be oversized, inline, and onsite to maximize bio-
filtration efficiency. They should be maintained and constantly monitored for efficacy.
The southwest group of 16 units (court G and F) should be moved away to facilitate
proper water quality mitigations with an oversized wet marsh as an in-line biofilter to
detoxify the urban runoff.
I.6c Given the importance of water quality to the Wildlife Reserve and the overwork
of public agencies, I recommend a private entity funded by Wendt Property Association fees
to monitor and maintain water quality and other drainage facilities.
Given my role as the guardian to the Wildlife Reserve, I offer myself as the entity to
monitor and maintain some of the water quality, water flow, and fire mitigations in the buffer
zone between the Siu Reserve and Wendt property. However, I require that the bridge over
the creek on the Reserve and the east bank access dirt road be maintained by Shapell and that
adequate ongoing funding resources be provided by Shapell to facilitate this task.
I.1 (cum) An entity should be formed to monitor and rectify problems of cumulative
contamination in the Siu's ecosystem caused by Shapell.
Biology:
J.2 Mr. Gary Beeman (biologist) documented that our ranch and the Wendt property
are foraging areas for a resident pair of American Peregrine Falcons (Falco peregrinus
anatum), which currently nest near the project site. There should be proper mitigation for
this threatened species.
J.7 Shapell should address these pollution urban runoff issues in a detailed site
specific manner, which must have the approval of a qualified hydrologist approved by the
Sius.
Visual Quality, Light, & Glare:
K.1 Applicant must specifically address implementation of architectural and
landscaping criteria to minimize degradation of visual quality, light, sound, and glare to the
Siu property.
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November 14, 1996
Appeal
K.2 Applicant must allow architectural representative of Sius to address hillside
submittals and architectural guidelines to minimize negative visual quality, light, sound, and
glare effects.
K.1 (cum) Eliminate or move the southwest group of units (court G and F) to provide
an effective significant buffer between the urbanized Wendt project and rural Joseph and
Verna Simpson Lake and Wildlife Reserve.
Understanding the natural attraction of a 6.5 acre foot lake and 6 pound bass and
catfish to curious individuals from the Wendt community and understanding the pre-existing
privacy that the Sius now enjoy, there must be effective site specific mitigations to maintain
this privacy and discourage uninvited intrusions onto the Lake and Wildlife Reserve.
Thus, we cite these concerns that_indicate that the Findings are somewhat incomplete,
inconsistent, and incompatible with General Plan requirement on the subjects. Please review
the alternative site plan by Mr. Pancoast, which appears to address many of my concerns as
well as preserving the concerns of Shapell.
We would like to expand or specify points of contention through my testimony and
expert testimony of such individuals as Mr. Larry Fishbain (hydrologist), Mr. Gary Beeman
(biologist), Mr. Jim Blickenstaff, and Mr. Edward Pancoast(architect).
Sincerely yours,
2vs'Z au�_ �L_
Howard and Lettie Siu
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