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HomeMy WebLinkAboutMINUTES - 03212006 - D.3 D.3 03-21-06 ADDENDUM Catherine Kutsuris, Community Development Department, presented the staff report on the continued hearing on an appeal filed by the El Sobrante Valley Planning and Zoning Advisory Committee, the Friends of Garrity Creek, and the Hilltop Neighborhood Association on a County Planning Commission decision to approve a Vesting Tentative Map to subdivide 10 acres into 40 residential lots located at 4823 Hilltop Drive, El Sobrante area. (Subdivision 8533, Siavash Afshar-Applicant&Owner). The Board listened to testimony from Michael Graff, representing the appellants, and Cecily Talbert on behalf of the applicant. The following members of the public presented testimony: Eleanor Lovnd, El Sobrantc Valley Planning&Zoning Advisory Committee: Marilynn Mcllander, Save El Sobrante, and El Sobrante Municipal Advisory Council (letter with attachments provided); Robert E Miller,resident of El Sobrantc(letter read into the record by Jean Stewart, copy provided); Barbara A. Pendergrass, resident of El Sobrante; Tony Owens, resident of El Sobrantc; Bob Vasce, El Sobrantc Municipal Advisory Council; Errol Kuhn, resident of El Sobrante; Jamic McGrath, resident of El Sobrante; Mike Martell, resident of El Sobrante; Kenneth Petersen, resident of El Sobrante; Shirley Daffin, resident of El Sobrantc; Jean Stewart,resident of El Sobrante; Karl Saarn,resident of El Sobrante; Virginia Handley, Animal Switchboard; Miguel Hernandez, resident of El Sobrante; Shirley Petty, Hilltop Green, El Sobrante; Hazel Dixon, resident of El Sobrante(letter provided) ; Rick Gulledge, resident of El Sobrante; The following person did not wish to speak, but provided written material for consideration: Joan C. Barker, El Sobrante Manor Neighborhood Council. The Board discussed the issues regarding the project, including but not limited to: removal of some lots to enhance open space and the wildlife corridor, redesign of some lots to address the design of the arch culvert, detention basins, provide for adequate setback from wetlands, the sidewalk on Garrity Creek Drive, public access, native vegetation, and the design,of a proposed left turn lane for entrance to the project. Supervisor Gioia noted that changes considered were in line with General Plan policies, and that the Board could not arbitrarily choose a number of lots to be developed. Staff clarified for the record,'they are not recommending public access to the site, notwithstanding the applicant's proposal The Board made the following suggestions: • Removal of Lots 27, 28, 29, 32; • Removal of one lot in the southeast portion of the site to allow for provision of a separate creek access maintenance to the creek and to better design the residential lot next to the arch culvert on Royal Oaks Drive; • Removal of 1 - 2 lots in the vicinity of Detention Basin B; • In aggregate, to specifically provide for the elimination of at least 6—7 lots; • Consideration of access to the creek by the public as an educational resource • Consideration of whether public access would be appropriate, with regard to property owner's rights and safety concerns, the views of area residents and the Homeowners Association, protection of the existing resources, and impact on the area; • Consideration of whether it ispossible to retain native vegetation near the creek; • The removal of lots to expand the wildlife corridor and buffer the area between the development and the creek; • Consideration of low intensity recreational facility(s) on the site that would be analyzed in terms of whether it would be compatible I with the site, with opportunity for public input on reasonable public access that would not affect the site; • The appropriate design, cul-de-sac or hammerhead, with regard to recommendations of the fire department for defensible property in an emergency; • Limiting the use of impervious surfaces; • Relocating the Garrity Creek Drive EVA barrier south to the vicinity of Lot 26; moving the Garrity Creek Drive sidewalk to the east side and extending it to the relocated EVA barrier so as to allow for a continuous pedestrian route along Garrity Creek Drive inclusive of the portion of the road that is restricted to Emergency Vehicle Access from Garrity Creek View to Manor Road; EVA bollards would also be provided at the north end of Garrity Creek View, next to Manor Road • Review of the left turn lane, with regard to the length of the queue and safety with opportunity for- public orpublic input. Having discussed the matter,the Board,,by unanimous vote with all Supervisors present, DIRECTED Community Development Department to return with revised recommended conditions that incorporate these changes and revised findings supporting these changes; and CONTINUED the hearing to April 11, 2006 at 1:00 p.m. I R� OBER S�1 A G�Y�ICS RELATED INDEX SUBDIVISION 8533 MARCH 21,2006 BOARD ORDER and RELATED GRAPHICS EXHIBIT 1 Appeal Letter EXHIBIT.2 Recommended Conditions of Approval EXHIBIT 3 A July 13, 2004 Staff Board Order B County Planning Commission Resolution#19-2004 C Conditions of Approval adopted June 8, 2004 by the County Planning Commission D May 25, 004 Staff Report to the County Planning Commission EXHIBIT 4 A Staff Study: Concerns of Design Components B Draft Environmental Impact Report(DEIR) Figure 3-5, Sections of Homesites C Staff Study of DEIR Figure 3-5 Cross Sections D Staff Study: County Planning Commission(CPC) May 25, 2004, Figure 14, Front Elevation Downslope Lot E Staff Study: CPC May 25, 2004, Figure 15, Rear Elevation Downslope Lot F Staff Study: CPC May 25, 2004, Figure 16, Front Elevation Upslope Lot G Staff Study,Grading Plan Sheet 11, Hillside Homesites H Staff Study: Elements Design Guidelines(DG) I Staff Study Royal Oaks Drive Arch Culvert Crossing EXHIBIT 5 Zoning Administrator Resolution#11-2006 Recommending Certification of Final EIR . EXHIBIT 6 A CEQA Findings B Project Findings EXHIBIT 7 Mitigation Monitoring and Reporting Program EXHIBIT 8 A March 21, 2006 Hearing Notice B Notification List C Address Map EXHIBIT 9 October 23, 2004 Vesting Tentative Map EXHIBIT 10 . January 5, 2006 Modified Site Plan Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21, 2006 Page 2 B. After Closing of the public hearing, ADOPT a motion to: 1. ADOPT the Environmental Impact Report (EIR) as adequate for purposes of compliance with the California Environmental Quality Act (CEQA)as recommended by the Zoning Administrator in Resolution No. 11-2006, including cited minor technical and editorial corrections which have been included ins Exhibit 7,the Mitigation Monitoring and Reporting Program. 2. DENY, in part, the appeal of the EI Sobrante Valley Planning and Zoning Advisory Committee, Friends of Garrity Creek, and Hilltop Neighborhood Association. 3. SUSTAIN the County Regional Planning Commission approval of the subdivision application as generally approved by that Commission, but modifying the conditions of approval to include the mitigation measures identified in the EIR, reducing the number of lots from 40 to a maximum of 39 lots, and other conditions that respond to the revised Vesting Tentative Map dated October 23, 2004. 4. ADOPT the Mitigation Monitoring and Reporting Program. 5. ADOPT the Findings Contained in Exhibit 6, including Findings Pertaining to compliance with the project's. review requirements for compliance with the CEQA, and Project Findings, as the basis for the Board action. 6. DIRECT staff to file a Notice of Determination with the County Clerk. II: .FISCAL IMPACT None. The staff time and material costs of the appeal are borne by the Applicant. Ill. OUTLINE OF REPORT The Headings and sub-headings for the balance of this report are identified below. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SDO18533) Board of Supervisors March 21,2006 Page 3 REPORT OUTLINE IV. PRIOR BOARD HEARING AND CHANGED CIRCUMSTANCES ASSOCIATED WITH THE PROJECT AND ITS ENVIRONS A. Changes in the Design of the Project B. Technical Studies V. BACKGROUND/PREVIOUS PUBLIC.1EARINGS A. Previous Hearings B. Environs C. Site Description D. Summary of General Plan and Zoning Considerations VI. PREPARATION OF ENVIRONMENTAL IMPACT REPORT A. EIR Preparation and Associated Public Comment B. Summary of EIR Findings and Zoning Administrator Recommendation C. February 27,2006 Zoning Administrator Review of Final EIR VII. REVIEW OF EIR FINDINGS A. Transportation and l raffic B. Hydrology and Drainage. C. Geology and Grading D. Biological Resources VIII. EIR ALTERNATIVES A. No Project Alternative B. Alternative Site Access C. Redesign Alternative D. Cluster Development Alternative E. Reduced Project Alternative IX. PROJECT REVIEW CONSIDRATIONS A. Legal Factors to Co nsider in the Review of the Project B. Compliance/Noncompliance of Project with Zoning Standards C. Discrepancies in Project Information That May Adversely Affect Ultimate Project Design D. Consistency with General Plan Density Range E. -Protection of Slopes and Creeks X. DISCUSSION A. Primary Site Plan Considerations B. Other Considerations C. Summary of Major Recommended Site Plan Changes and Lot Yield for Approval of a Tentative Map D. Environmentally Superior Alternative(Reduced Density Alternative) XI. UPDATED REVIEW OF LETTER OF APPEAL XII. REVIEW OF APPEAL POINTS XIII. RESPONSE TO LETTER FROM THE LAW OFFICES OF J.WILLIAM YEATES XIV. CONCLUSION XV. POSSIBLE ALTERNATIVE BOARD ACTIONS A. Unable to Make th i Required Findings for Granting any Variance to R-7 Minimum Lot Average Lot Dimension Standards B. Unable to Find Project Consistent with the General Plan without Modifications C. New Information is found that has not been adequately addressed in the EIR and should be addressed before the Board considers certification of the EIR XVI. STATE LAW POTENTIALLY LIMITING THE PERIOD OF TIME FOR BOARD ACTION ON PROJECT A. Time Limit to Act o I Appeal Following Closure of Appeal Hearing[Gov't.Code§66452.5(c)&(d)] B. Time Limit to Act on Project After Board Certifies its Adequacy[Gov't Code§65950(a)(1)&65952.1] Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21,2006 Page 4 IV. PRIOR BOARD HEARING AND CHANGED CIRCUMSTANCES ASSOCIATED WITH THE PROJECT AND ITS ENVIRONS This project concerns a proposal for a 40-lot residential subdivision. The Board of Supervisors first considered this matter on July 13, 2004, at which time the Board conducted hearings on an appeal of a June 8, 2004 decision by the County Regional Planning Commission to grantapproval of the project. Aftertaking testimony,the Board determined that for purposes of compliance with the California Environmental Quality Act (CEQA), an Environmental Impact Report (EIR) should be prepared prior to considering any approval of th�e.project. An EIR has been prepared, but it also merits noting that there have been changed circumstances associated with the project since the matter was first heard by the Board. A. Changes in the Design of the Project. In response to the issues that surfaced during the July 13, 2004 hearing, the project proponent elected to commission a series of technical studies, and to revise the proposed Vesting Tentative Map (VTM),with the goal of addressing the issues and concerns of the appellants and County Supervisors. On October 29, 2004 a revised VTM wast submitted. It was that plan that was subject to analysis by the EIR. Key aspects of the plan may be summarized as follows: • The lot yield remained at 40 residential lots. The road connection to Marin Road was opposed by many speakers at the public hearing. Moreover, to make this connection, a 26-foot-high tiered retaining wall was required on the west side of the proposed project road, Garrity Creek Drive (north of Adams Court). To provide a second access point, two legally-established lots were purchased (Assessor's Parcel Numbers [APNs] 426-192-006 and -007). These lots are located immediately north of the site. Along their east property line, a 20-foot-wide emergency vehicle access (EVA) is shown on the Revised VTM. It connects the north terminus of Garrity Creek Drive to Manor Road. Bollards (or a locked gate) of a design acceptable to the Fire Protection District acre proposed at the south terminus of the EVA. • At the hearing,. some speakers inferred that there were unresolved geotechnical issues and questioned the characterization of geology hazards. The revised VTM eliminated the high retaining wall of the west side of Garrity Creek Drive. Following the Board hearing, an experienced geotechnical engineer(Alan Kropp&Associates) performed a design level investigation to provide specific standards and criteria for site grading, drainage and foundation design for the project shown in the October 29. 2004 VTM. • Because of concerns expressed by the appellants (and residents of Hilltop Green) about the adequacy of the downstream drainage facilities, the Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21, 2006 Page 5 applicant retained a hydrologist (Balance Hydrologics) who used a methodology acceptable to the County Flood Control District to analyze the effect of the project on peak flows downstream from the project. Two storm water detention basins were added to the project and designed to keep peak flows at the pre-development level (i.e., peak flows would not Increase as a result of project implementation). • The project that went to hearing before the Board of Supervisors retained creek channels as private open space. The location of the Royal Oaks Drive creek crossing was selected by the biologist of the California Department of Fish and Game (CDFG), and the crossing was to be made using an arch culvert to minimize effects on the riparian corridor. Further, the applicant proposed mitigation measures to strengthen the habitat value of the open spaces along the creeks. Those measures were consistent with preliminary permit requirements/expectations of CDFG. At the hearing and in the appeal letter, appellants asserted that the project compromised habitat values and resulted in loss of open space, and that the site had value as p�blic open space. In response, the applicant created an open space area in the northwest portion of the site that would be deed- restricted from building and construction. A trail is shown on the revised VTM suggesting that this open space might have public access, if a public entity could be found to access responsibility for maintenance and liability. B. Technical Studies. The project proponent submitted technical studies addressing the details of the revised project, including the following: • Hydrology study, prepared by Balance Hydrologics. • Geotechnical study, prepared by Alan Kropp & Associates. • Archaeologic study of the proposed EVA, prepared by William Self. • Biologic Update, prepared by Michael Wood. • Environmental Study evaluating potential for soil/groundwater contamination, prepared by Shaw Environmental. V. BACKGROUND/PREVIOUS PUBLIC HEARINGS A. Previous Hearings. The project was approved by the County Planning Commission on June 8, 2004 subject to 57 Conditions of Approval. The Planning Commission action also included adoption of a Mitigated Negative Declaration for purposes of compliance Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21,2006 Page 6 with CEQA. That approval was appealed by community-based organizations (Friends of Garrity Creek, Hilltop Neighborhood Association, El Sobrante Valley Planning & Zoning Advisory Committee). The appeal was heard by the County Board of Supervisors on July 13, 2004. - Based on the issues raised by the appellants, the Board determined that a focused EIR should be prepared and specifically identified traffic geology/grading, drainage and biologic resources as the primary environmental issues. At the Board of Supervisors hearing on July 13, 2004, testimony was taken from 33 persons. The Board of Supervisors took the following actions: • GRANTED the appeal of the EI Sobrante Valley Planning & Zoning Advisory Committee, and .the Friends of Garrity Creek and Hilltop Neighborhood Association of a County Planning Commission decision to conditionally approve a Vesting Tentative Map for a residential subdivision (#SD018533); • OVERTURNED the decision of the County Planning Commission; • FOUND that the project would result in significant environmental impact that is not proposed to be mitigated to a less-than-significant impact; • DIRECTED an Environmental Impact Report (EIR) be prepared, the matterto return to the Board for further consideration upon a determination by the Zoning Administrator that the EIR is complete. B. Environs The site lies in the unincorporated area of EI Sobrante, immediately east of the City of Richmond. The area largely consists of single family residential development where lot sizes generally range from 5,000 square feet (Hilltop Green) to about 9,000 square feet. To the south and northwest of the site are undeveloped properties. The properties to the south (northwest side of Hilltop Drive) are on sloping terrain similar to the project site. C. Site Description The irregular-shaped 10-acre site. is a basin that is drained by two well-defined channels of Garrity Creek. The two channels converge just southwest of the site, at the Hilltop Green culvert. Consultation with the California Department of Fish and Game indicates a 50-ft. structure setback from the channel is expected, along with fencing of the setback line and plantings to improve habitat value. Natural slopes on the property are relatively steep, and there are approximately twelve localized areas on the site that are characterized by slopes of 26 percent (4:1, H:V) or greater. Geologic exploration confirmed two, relatively shallow and Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SID 18533) Board of Supervisors March 21, 2006 Page 7 small landslides that are confined to soils and severely weathered bedrock. The geotechnical report for the project indicates unstable soils are to be removed and replaced with engineered fill. The site fronts on the northwest side of Hilltop Drive. With the possible exception of Lot #1 (at the project entrance), residences on the site will be at an elevation that is lower than off-site lands on the perimeter of the project. D. Summary of General Plan iand Zoning Considerations. General Plan. The 10.09 acres site is designated Single-Family Residential — High Density (SH). The SH designation allows 5.0 to 7.2 units/net acre. Assuming that net acreage is 75 percent of the gross acreage, the holding capacity of the 10.09= acre site is 37 to 54 dwelling units.' Still, the General Plan Land use Element provides that when calculating the allowed density of a parcel, readers should keep in mind that unique environmental characteristics may justify a reduced number of units or intensity of use than is normally allowed under the General Plan designation. (Page 3-13 of the General Plan) The Land Use Element contains policies for the El Sobrante area (General Plan, pages 3-73 and 3-74). Briefly summarized, these policies encourage "infill development" and encourage aggregation of deep narrow lots to yield better designed projects (Policies 3-204 and 3-205). Because of the limitations of the existing road network, new development should be approved in the low- to mid- density range (Policy 3-V 203). In the case of a property designated SH, the low range is five dwelling units/net acre; the mid-range is 6.1 dwelling units/net acre. The policies for EI Sobrante recognize that some channels and drainage facilities in EI Sobrante are inadequate, and call for implementation of measures to avoid inundation, ponding and sheet overflow during storms (Policy 3-282), and retaining and reinforcing the semi-rural and suburban character of the community,with strong emphasis on single-family residences (Policy 3-198). The Land Use Element also provides that innovation in site planning and design of housing developments shall be encouraged in order to upgrade quality and efficiency of residential living arrangements and to protect the surrounding environment (Policy 3-24)1 Zoning. The property is zoned R-7 (single-family residential, minimum parcel size 7,000 square feet). The Zoning Ordinance provisions regulating this district are found in Chapter 84-6. The standards of the District include: • minimum average lot width 70 feet; ' The General Plan also allows net acres to be calculated by deleting the area of the roadways of a project site from its gross area. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD 18533) Board of Supervisors March 21, 2006 Page 8 • minimum lot depth 90 feet; • maximum 2Y2 stories and 35 feet building height; • minimum side yard setback 5 feet(aggregate site yard 15 feet);front yard setback 20 feet (minimum), however at corner properties a minimum 15 foot secondary front yard setback is required; • rear yard setback at least 15 feet. • two off-street parking spaces must also be provided outside of both front and side yards. Because in most instances, the front property line lies in the middle of the right-of- way, the zoning code requires that the front yard setback be measured from the edge of the right-of-way (easement). However, for purposes of determining compliance with the minimum lot area, the Ordinance Code allows the area within road rights-of-way to be included area calculation. Detached accessory structures(including retaining walls)more than 50-feet from the right-of-way are subject to reduced side and rear yards of a minimum three feet. The General Plan also designates the R-7 district as one of the zoning districts that is consistent with the SFR — High designation that applies to this site. VI. PREPARATION OF ENVIRONMENTAL IMPACT REPORT A. EIR Preparation and Associated Public Comment. Following the Board action, the County hired a consultant to assist staff in the preparation of an EIR on the project. The EIR consultant retained by the County included technical experts) in the fields of: a) transportation; b) noise analysis; c) hydrology and water quallity; d) hazards and hazardous materials; e) biologic resources; f)soils and geology; and g) land use analysis. The Final EIR consists of the following: • Draft EIR • Responses to Comment Document • Mitigation Monitoring and Reporting Program The public comment period for the Draft EIR began on August 15, 2005, and extended to October 13, 2005. During the 45-day review period,the County Zoning Administrator held a public hearing on September 12, 2005, to provide an opportunity for oral testimony regarding the adequacy and completeness of the Draft EIR. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21,2006 Page 9 At the conclusion of the public comment period, a Responses to Comments document (Final Environmental Impact Report)was prepared that addressed the written and oral comments on the Draft EIR. The Responses to Comments document also identified. corrections to the Draft EIR, and a proposed Mitigation Monitoring and Reporting Program. The document was made available to individuals who had commented on the Draft EIR. B. Summary of EIR Findings and Zoning Administrator Recommendation. Staff responses to the public comments on the Draft EIR are addressed in the Final EIR. The EIR concludes that the project: • Would not have significant effects in the area of land use. • Would have significant effects in the areas of: o Transportation/Traffic o Hydrology and Water Quality o Biological Resources o Geology and Soils o Hazards and Hazardous Materials o Aesthetics o Cultural Resources o Noise o Air Quality o Recreation and Public Access o Utilities However, the EIR also identifies measures that would mitigate each of these effects to a less-than-significant level. C. February 27, 2006 Zoning Administrator Review of Final EIR. The Environmental Impact Report was considered by the Zoning Administrator at a closed public hearing held on February 27, 2006 at which time the Zoning Administrator identified some minor technical and editorial corrections which have been described in marked text of the Mitigation Monitoring and Reporting Program found in Exhibit 7. With those modifications, the Zoning Administrator found the report to be complete and adequate, and recommends that the Board of Supervisors adopt the EIR for purposes of satisfying this project's compliance with CEQA. The modifications recommended by the Zoning Administrator include changes on the timing of the implementation of some of the mitigations. In some instances, the implementation is made sooner in the process, in other instances, the Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD 18533) Board of Supervisors March 21, 2006 Page 10 implementation is postponed. However, the changes do not alter the standards that the project must meet. Several biological mitigation measures are recommended to be postponed from "prior to the approval of the (vesting) tentative map stage"to "prior to the approval of the final map stage." They include: • Review of revised site plan, Riparian Mitigation Plan and Biological MMP to ensure adequate avoidance of: • Central Coast riparian scrub and mature native trees on the proposed off-site construction staging area northwest of the site. (MM Bio-2(;c)) The active spring and seep in the proposed open space area in the northwest of the site. (MM Bio-3(a)) • Review a revised site plan, Riparian Mitigation Plan, and MMP to further address loss of wildlife habitat, maintain opportunities for wildlife improvement across the site, and minimize disturbance to open space areas. (MM Bio-4(a)) • An engineering survey of mature native trees. The purpose of this information is to preserve and protect trees to the greatest extent feasible from an engineering and geotechnical standpoint and warranted based on their good to excellent health and structure, to the greatest extent possible. (MM Bio-5(a)) These reviews have been recommended to be deferred to a later stage when more definitive and precise inform,ation about proposed project grading and improvements would be available. However, these measures are still required to be met before a final map for this project can be approved. VII. REVIEW OF EIR FINDINGS The primary issues evaluated by the EIR include transportation/traffic, hydrology/drainage, geology/grading and biologic resources. Briefly summarized, the EIR provides technical data on these issues that can be summarized as follows: A. Transportation and Traffic. The collector street serving the neighborhood of the project site is Hilltop Drive, a two-lane roadway. The Draft EIR included a traffic study that evaluated Hilltop Drive intersections from 1-80 to Manor Road, but focused on a) 1-80 ramps at the Hilltop Drive interchange; b) Hilltop Drive/Manor .Road intersection; and c) the Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21, 2006 Page 11 Hilltop Drive/Royal Oaks Drive intersection. However, the effect of the project on all intersections along the corridor were considered, although traffic counts and level of service (LOS) calculations were not provided because empirical data indicated impacts at these intersections were less than significant. In response to comments from the City of Richmond and the appellants, additional technical data and engineering analysis�was provided in the EIR response document, including the Park Central, La Paloma Road, Pebble Drive/Solano Court,and Renfrew Road intersections with Hilltop Drive. The primary finding of the traffic engineer is that the existing and existing + project traffic scenario yields acceptable LOS at the study intersections, with one exception of the Park Central/Hilltop Drive, which operates at an unacceptable LOS for the AM peak hour in one direction under both existing conditions and existing plus project. The traffic engineer for the EIR concludes that the data gathered indicates that the project creates no significant impacts at any of the study intersections. It did indicate that the Park Central intersection operations atl unacceptable LOS E on the northbound approach during the AM peak hour and is expected to deteriorate to LOS F under cumulative conditions. However, the project's contribution to the forecasted growth in traffic does not change the LOS. The traffic analysis for the EIR also examined internal circulation, parking, sidewalks, emergency vehicle access, sight distance at the Royal Oaks Drive/Hilltop Drive intersection, and construction traffic. Significant impacts were identified, but mitigation measures were identified to reduce impacts to less than significant. B. Hydrology and Drainage. The EIR evaluated the effect of the project on. peak runoff exiting the site. A concern of the City of Richmond, Hilltop Green HOA and appellants was the effect of the project on downstream drainage facilities. The hydrology chapter presents technical data and engineering analysis, including hydrologic model runs using methodology acceptable to the Flood Control District. The data indicate that the two proposed storm water detention basins are capable of keeping peak flows from the project at or below the pre-development level. Specifically, for a runoff event with recurrence intervals of 10 years, peak flows at the Hilltop Green culvert are decreased from 57 c l bic feet per second (cfs) under existing conditions to 55 cfs after buildout of the project. For the 100-year runoff event, peak flows are reduced from 85 cfs to 83 cfs. Thus, while potential flooding exists downstream from the site, the project would not exacerbate this existing problem and thus would not result in a significant impact. The hydrology analysis indicates that the engineering details of basin design are not provided, and the EIR identifies design issues as a significant impact. Performance criteria are provided as mitigation measures. Another hydrology Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21, 2006 Page 12 impact related to long-term maintenance of the basin. The EIR identifies submittal of an Operations and Maintenance Plan as a mitigation measure and provides performance criteria. C. Geology_and Grading. The site was the subject of a year 2004 geotechnical investigation that reviewed the 40-lot subdivision map that was the subject of the Draft EIR. That investigation was performed by Alan Klopp&Associates(AKA),and the scope of work included geologic interpretation of aerial photographs, review of literature (including two previous geotechnical inestigations of the site). The AKA report includes an original geologic map of the site and slope stability analysis. The EIR included review of the grading plans for the project, as well as the geotechnical report prepared by AKA. Based on this background, the EIR evaluated the project with respect to potential geologic and seismic hazards. The EIR geologist identified the following potential impacts: a) seismic ground shaking, b)landslide hazards, c)expansive soils, d)erosion,and e)corrosive soils as potential hazards. The EI R identifies a Geologic Hazards Abatement District or HOA as entities that should evaluate the site after an earthquake to evaluate performance of slopes in the project. The EIR also recommends use of 21/2:1 (horizontal to vertical) gradients for engineered slopes in the project, which is the gradient used by the applicant for the grading plan. Where steeper slopes are required, special engineering is recommended by AKA, including retaining walls or reinforced earth. The EIR chapter finds no fatal flaws with the geology of the site or grading plan. The proposed mitigation measures are consistent with the geotechnical recommendations in the AKA report and with provisions of the building and grading regulations of the County. D. Biological Resources. The primary resources of the site include watercourses, springs/seeps and trees. The biologic resources chapter provides an overview of the regulatory setting of the property. A primary product of the EIR is a map titled Vegetative cover and Biotic Features (Draft EIR, page 4.5-9). The EIR also evaluates a biologic mitigation plan for the site, provided by the applicant's biologic consultant. (The applicant's Riparian Mitigation Plan is presented in the Draft EIR on pages 4.5-19 through 4.5-21.) Based on review of the project plans,tree survey and comments of regulatory agencies, the Draft EIR identified potentially significant impacts to protected species, sensitive natural communities, loss of wetlands, and disruption to wildlife, movement/reduced habitat values, along with loss of trees in areas planned for grading and development. Mitigation measures are provided that reduce the impacts to less than significant. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21, 2006 Page 13 VIII. EIR ALTERNATIVES The Draft EIR presented four alternatives, including the following: a) No Project Alternative, b) Alternative Site Access, c) Redesigned Alternative, and d) Cluster Development Alternative. Additionally, the EIR Response Document included a Reduced Density Alternative. These five alternatives are summarized below. A. No Prosect Alternative. This alternative would retain the site as 10.09 acres of undeveloped land within the urban area. The "No Project" Alternative would eliminate potentially significant (but mitigable) impacts of the proposed project (e.g., impacts on biological resources, cultural resources, geology and soils, hydrology and water quality,and noise). However, the "No Project" Alternative would not provide the benefits offered by the proposed project, such as provision of new housing in the EI Sobrante area and restoration of the Garrity Creek corridors. Finally, the 'No Project"Alternative would not support achievement of the project objectives, and it would not implement the long range land use for the property (which is high density, single-family residential housing). B. Alternative Site Access. This alternative evaluated two potential alternative designs for the project. The first of these is use of the emergency vehicle access (EVA) as a full access and the second is use of the EVA as a one-way, northbound exit from the site. Under the first potential alternative, the new street connection would likely be used predominantly by project residents for trips to and from the nearby elementary school. Also, some project residents closest to the connection would probably use Manor Road for access and egress to their homes as the shortest route out of the subdivision. Some trips made by residents of Manor Road westerly of the street connection and parents of school children would be expected to divert to the streets through the proposed project for destinations along Hilltop Drive, west of Royal Oaks Drive, as this route would be shorter than using Manor Road to Hilltop Drive. Similarly, a one-way con i ection to Manor Road would draw predominantly trips to the school or from nearby residences. Unlike the two-way connection, the potential for diversion of existing traffic would be limited to inbound school trips, and it would-still be anticipated that some trips from the west would divert through the new subdivision, and then exit the area via Manor Road (using project roads as a shortcut from Hilltop Drive). Again,. the anticipated net result would be a minimal increase in traffic volumes on Manor Road, with the potential for a decrease depending on the amount of diverted traffic inbound to the school and Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21,2006 Page 14 residences northwest of the connection. In summary, the Draft EIR found no substantial benefit associated with these access alternatives, and they do not mitigate any significant traffic impact of the project. C. Redesign Alternative. This alternative has a "footprint"similar to the proposed project(and has the same lot yield), but includes modification to the road width opposite the frontage of Lots 26 and 27 to reduce the height of the retaining wall on the north side of the road in this area and increase separation of the project from the spring on the site. Perhaps the most important change is that the stormwater basins are placed on separate lots (i.e., not on residential lots)to facilitate maintenance. These two lots would be owned by the HOA, and deed restricted from residential development. The GHAD or other entity acceptable to the Public Works Department would maintain the basins. Each of the basins is redesigned to provide increased storage capacity over the basins shown for the proposed project. The interior and exterior slopes would be engineered to specifications acceptable to the Public Works Department with regard to design criteria and safety. It is anticipated that final design would include reinforced interior slopes and possibly retaining walls. Hydrologic modeling shows that the reconfigured basins would provide improved control for 10-year storm events, while the 1007year event would have the same reduction in peak flow as the original proposed project design. In all cases, the modeling shows the basins would contain the 100-year event with a minimum.of 2.0 feet of freeboard. Specific changes includi: ■ Basin A. The overall basin volume would be increased from 3323 cubic feet (original design)to 9,785 cubic feet. Outflow from this basin would enter the North Branch of Garrity Creek just upstream of the inlet to the piped section of this branch of Girrity Creek. ■ Basin B. The basin volume would be increased from 4624 cubic feet(original design)to 8166 cubic feet. Outflow from this basin would be piped to Garrity Creek near the Royal Oaks Drive arch culvert. Hydrologic modeling shows that peak discharge from the property for the 10-year event would be reduced from 11 cubic feet per second (cfs) (under existing pre- project conditions)to 8 cfs, (under post-project conditions). This is a reduction of more than 25 percent. The predicted 100-year peak discharge would be decreased from 17 cfs to 14 cfs (a reduction in peak flows exiting the site of 18 percent). In this alternative, there would be no trails within Lot 42. This area would be preserved as private open space, owned by the HOA but maintained by the GHAD. A public easement would be granted to allow the public to walk on Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21,2006 Page 15 sidewalks and along the EVA and sidewalks in the project (and road shoulder along the Lot 26-27 frontage). The lot widths along Garrity Creek View have been adjusted to minimize variances for.average width. For any lots substandard in average width, this alternative includes a provision for such units to meet affordability criteria (i.e. slightly smaller residences meeting the criteria for "moderate" income housing on each lot of substandard average width). This would increase the variety of housing provided within the project. D. Cluster Development Alternative. A reduced project alternative was not included in the Draft EIR. The alternatives presented in a Draft EIR ust be limited to those that meet project objectives, are ostensibly feasible and would avoid or substantially lessen at least one of the significant environmental effects of the project. The site is designated for high- density residential development (SH) by the General Plan, and is zoned R-7 (7,000-square-foot minimum parcel size). On that basis, the applicant's objective is to construct a single-family residential project that is consistent with the General Plan and zoning parameters for the site, and that meets the expectations and standards of the Califor is Department of Fish and Game and other agencies having permit-granting authority. The project is at the low end of lot yield as prescribed by the General Plan designation of the site. (The SH designation allows 5.0 to 7.2 housing units per net acre.) Therefore, any substantial reduction in density could be considered inconsistent with project objectives and may not be financially feasible. The Draft EIR did include a cluster development alternative that increased private open space on the site (addressing the biologically related impacts), but it did not necessarily imply a density reduction. Conceivably, a well-designed cluster alternative could actually result in a density increase over the proposed 40-unit project. In summary, the purpose of EIR alternatives is to mitigate significant impacts rather than merely reducing density. The Cluster Alternative allows water courses to be placed in a greenbelt of private open space while giving consideration to project objectives and economic constraints. E. Reduced Project Alternative. The staff report for the June 4, 2004, County Planning Commission Hearing suggested reducing density of the project to 35 units to provide more flexibility in siting of residences and lead to a superior design. The appellants' response to the Draft EIR requested that a Reduced Density alternative be presented as part of the Final EIR for the project. The Final EIR responds to this request and does present a Reduced Project Alternative. That alternative reduces the density of the project below the threshold Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD 18533) Board of Supervisors March 21,2006 Page 16 of the"single family residential-high density"(SH)General Plan land use category. As noted above, the lower limit of the SH is 5.0 units per net acre; the 37-lot reduced density alternative has a density of 4.3 units per net acre. The Reduced Project Alternative includes the following main components: • 37 lots (versus 40 lots proposed by the project). ■ Placement of both branches of Garrity Creeks in private open space that would be owned by the HOA and that would be deed-restricted. ■ Maintenance of open space along "Road 24"at the western edge of the site to increase its biologic resource value. • Minimization or avoidance of variances from R-7 standards. Specifically, by placing the areas along creeks in open space parcels owned by the HOA(with development rights g anted to the County),the.remaining 37 residential parcels were increased in width to yield the 7,000 square foot minimum parcel size. In this alternative, all lofts would meet the lot dimension standards of the R-7 District, and the cross-sections indicate that useable rear yards could be provided without the need for variances. It is anticipated. that the only variances required are those associated with retaining walls along segments of Royal Oaks Drive, Adam Court, and Garrity Creek View. In each case, findings can be made for the variances (e.g., the.walls are proposed to reduce grading and thereby minimize intrusion into the sensitive open space parcels and/or to provide a circulation system that complies with the horizontal and vertical standards of the County Ordinance Code for private roads. ■ Relocation of the driveway to Lot 1 on Royal Oaks Drive so that it is farther from the Hilltop Drive intersection (eliminating Lot 5 in the process and creating more opportunity to provide a better landscape treatment and noise .suppression at or near the project entrance), and improve traffic safety at the future intersection. Additionally, the alternative shows an access easement along the north side of Lot 4. This easement is set back 50 feet from the creek. It is intended to show the possibility of a minor road along the south side of Garrity Creek. Such a road could reduce the number of Hilltop Drive intersection in the future, as the adjacent parcels are subdivided. • "Hammerhead" configurations rather than circular cul-de-sacs at the south terminus of Garrity Creek View, and reducing the improvements to Garrity Creek View along the frontage of proposed Lots No. 25-27 to 20 feet of pavement with curb and gutter(but no sidewalk)to maximize the setback from the wetland spring and wetland seep. The Final EIR identifies both the No Project Alternative and the Reduced Density Alternative as the Environmentally Superior Alternative. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD 18533) Board of Supervisors March 21, 2006 ° Page 17 IX. PROJECT REVIEW CONSIDERATIONS A. Legal Factors to Consider in the Review of the Project • The Board must adopt a Statement of Overriding Considerations if it does not include one or more' mitigation measures in the approval of the project; • State law and the Ordinance Code provide that the Board shall not approve a tentative map unless is finds that the proposed subdivision, together with its provision for design and improvement, is consistent with the General Plan;and The project must comply with the design standards of the Subdivision and Zoning Ordinances, or be granted exceptions or.variances to those standards as is applicable. The Ordinance Code identifies findings that the County must make before granting an exception or variance. • Several agencies who will review the project for compliance with their standards (e.g., State and federal environmental resource agencies, Fire Protection District, Flood Control District) have been kept informed of this project and been sent copies of the EIR documents. Still, they will not complete their review until the County grants a tentative map approval. It is possible that the requirements of those agencies may require reconfiguration of the project or even a reduction in the lot yield at.that time. However, none have reported any concerns with the EIR analysis to date. B. Compliance/Noncompliance of Project with Zoning Standards The zoning standards that apply to this site are reviewed above. Any deviation from those standards requires the granting of-a variance. Any deviation from the setback standards also requires the granting of an exception underthe Subdivision Ordinance (Title IX) (Ord. Code § 82 6.002). In order for a variance or exception to be granted, the County must make findings specified in the ordinance code. 1. Minimum Lot Dimensions (Lot area, depth, and average width)—The modified site plan that was reviewed in the EIR indicated compliance with all minimum lot dimensions, and was so reported in the Draft EIR. . However, following publication of the EIR, staff'has reviewed the tentative map more closely with respect to compliance with the lot depth and average lot width standard. The results of that review are contained in Table 1. The staff analysis finds that the project would result�in 14lots that are substandard in average lot width (min. 70-ft. req.) and one (Lot 13) that is substandard in lot depth (min. 90-ft. req.). These lots are identified in Table 1 and on a graphic display in Figure 1. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD 18533) Board of Supervisors March 21, 2006 Page 18 Table 1 SDO18533 -ANALYSIS OF LOT AREA AND DIMENSIONS . . I .. . � rax� � au ,.ra LOT# AREA DEPTK.k.jj,.::::,,,AVERAGE WIDTH., MEETS R-7 DIMENSIONAL::.:: STAN DARDS ; ; :: n (in sq.ft.) (in feet) (lot area/lot depth) (if not,which is substandard) 1 12;125 100.17 121.04 YES 2 9,969. 99 100.7 YES 3 9,405 99 95 YES 4 9,853 98 100.54 YES 5 17,404 119 146.25 YES 6 12,025 146.98 81.81 YES 7 10,482 152.53 68.72 NO(substandard average width)* 8 10,871 158.08 68.8 NO(substandard average width)* 9 11,259 163.62 68.81 NO(substandard average width)* 10 11,647 167 69.74 NO(substandard average width)* 11 11,044 178 62.04 NO (substandard average width) 12 9,158 117 78.27 YES 13 7,489 82 91.33 NO(substandard depth) 14 10,685 144 74.2 YES 15 7,949 120 66.24 NO(substandard average width)* 16 7,780 112 69.46 NO(substandard average width)* 17 7,510 109.41 68.64 NO(substandard average width)* 18 7,851 115.05 68.23 NO(substandard average width)* 19 8,250 120.68 68.36 NO(substandard average width)* 20 9,311 128 72.74 YES 21 7,662 111 69.03 NO(substandard average width) 22 8,777 107 82.03 YES 23 9,779 160 61.12 NO(substandard average width) 24 7,501 103.5 72.47 YES 25 7,653 106 72.2 YES 26 9,006 110.5 81.5 YES 27 26,489 323 82.01 YES 28 24,207. 300 80.69 YES 29 12,006 98 122.51 YES 30 10,968 107 102.5 YES 31 19,886 211 94.25 YES 32 13,685 172 79.56 YES 33 7,598 107 71.01 YES 34 10,597 116 91.35 YES 35 10,814 123 87.92 . YES 36 10,295 126 81.71 YES 37 9,539 140.5 67.89 NO(substandard average width) 38 9,835 140.5 70 YES .39 9,823 140.5 69.91 NO(substandard average width) 40 11,661 138 84.5 YES (27 alt.) 10,788 129 83.63 YES (28 alt.) 11,537 142 81.25 YES (29 alt.) 12,006 105 88.57 YES (31 alt.) 17,486 208 84.07 YES (alternate lots are based on exclusion of open space area) *denotes that substandard average width is due to"technicality"due to rear property lines not being parallel to frontage, but that the proposed lot is generally 70-feet wide. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD18533) Board of Supervisors March 21, 2006 Page 19 I _----._......e.. l I . P-.. ...._........ ........:. _ •l e A _ ......... .. r. : Y tp . _ i' �3 X r. X • X X X _ r Lots that do not comply with the "average: �r' � `•: X width" standard specified by the Zoning Ordin;rttcc fbr Z I.ots that;ipl;e;tr to be>tthstandard in"avera_z width".Flowtwerthe lot boundan•isnot clear.: b.etLuning Halls in the strucaur l setback zone. N---/.Arch cillver'reinforced earth combination. J Fihur+v- 1 ®� VARIANCES - RE IAINING WALLS Graphic Scale: & AVERAGE WIDTH OF LOTS ®mmmlmit II �b Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD 18533) Board of Supervisors March 21, 2006 Page 20 MID-POINT BETWEEN TANGENTS ....S T R E E T S T RAE E 1 4 LINE PERPENDICULAR ~� x u TO FRONTAGECL ti Z O W�� J � J o t'2 IWC a.� do �U LINE PARALLEL WITH FRONTAGE DEEPEST POINT OF LOT S T R E E T LINE PARALELL W17-H LINE CONNECT/NG TANGENT POINTS. 2/ a I P 65" AREA o /0,480$O. FT . 00 LOT AREA _ LOT DEPTH _ AVERAGE WIDTH. p EX. /O,480 SO. FT. = 170 FT. = 61.65 FT, AV. WIDTH. J. � �O 30' LOT. DEPTH .- ORD. REF. 82- 4. 248 AVERAGE WIDTH - ORD. REF. 82 - 4. 246 Figure 2 Calculation or Average Depth & Average Widdi Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SID 18533) Board of Supervisors March 21,2006 Page 21 Lj-r ,T 7Q ! SRNC Iirli M MWil' NCS J i- Lj oc I r .Il D-0 109 r v ;\"qac '•`.�Yf- \\ Y. Inset. _ Figure 3 70 Foot Average Width Schematic II Continued Hearing on Appeal of CPC Approval'of a Residential Subdivision (County File SID 18533) . Board of Supervisors March 21, 2006 Page 22 However, ten of the fourteen lots that have a substandard width are substandard by virtue of the method that the County Ordinance Code requires for determining the average lot width measurement (lot area / lot width). These 10 lots otherwise satisfy the minimum 70-foot width standard and the lot area and depth standards. They are at variance only because they have added area in the rear of the property, which code-defined method takes into account. Their average width measurement is marginally under the R-7 standard (within five feet of the 70-foot standard). Four(4)lots with substandard width, Lots 11, 23, 37 and 39, are substandard due to their irregular�shape and do not contain within them an R-7 sized lot as do the other 10 lots with substandard width. These lots have average lot widths that range from 61 —69 feet. One lot at the end of Garrity Creek View, Lot 13, is substandard with respect to lot depth (largely due to the particular configuration of the cul-de-sac bulb, and frontage alignment for this lot). The lot depth is 81 feet (90-ft. min. req.). In summary,there are ten lots which are have 70-foot of road frontage and the 70-foot width is maintained to the rear property line, but substandard due to the irregular shape of the site, and six other lots that are substandard due to their pie-shape on a cul-de-sac bulb and/or their position with respect to the site boundary. They issue of variances to lot dimensions standards can be resolved by either: • Reducing lot yield for the project(it is not clear how many lots would need to be deleted to meet R-7 standards, possibly three lots) Granting variances where ordinance findings can be made; or • Advising the applicant that a rezoning application of an appropriate zoning district that would allow more.latitude in lot dimensions would have to. be applied for and granted by the County before a subdivision would be allowed. The R-6 district (min. 6,000 sq. ft. lot area; min. 60-ft. average lot width) is consistent with the Single Family Residential — High Density designation. The Planned Unit District that might include special zoning standards as part of a related development plan under that district based on site opportunities and constraints may be found consistent with the SFR- High designation, 2. Retaining Walls and Fencing, and Arch Culvert within Yard Areas — Several access road . improvements require variances to R-7 yard standards. Generally, structures other than retaining walls up to 3 feet in height, fences up to six feet in height, and retaining wall fence combinations up to 6 feet in height are not allowed within the required yard areas. The project is. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SID 18533) Board of Supervisors March 21,2006 Page 23 proposing retaining walls up to 10 feet in height and retaining wall/fence combinations up to 10 feet in height in support of the proposed access road;a similar retaining wall/fence is proposed along the access road to allow for attenuating of traffic noise onto Lot 1 from Hilltop Drive, if deemed to be warranted at the time of development of Lot 1. Additionally, there is a proposed arch culvert across Royal Oaks Drive within the yard areas of several lots that as a structure require the granting of a variance. 3. Zero-Foot Front Yard for Four Lots (Lots 2 — 5) Along the Entrance Road — There are five lots proposed to front on' Royal Oaks Drive. Four of the lots (Lots 2 — 5) provide for separate roadways to provide access to the lots with turnarounds extending into what would normally be the driveway area of these lots. Because the turnaround easement extends to the residence, the design would require the granting of variances for each of the four lots to allow the roadway (turnaround easement) within zero-feet of the proposed house footprint. In addition to the above described variances associated with the proposed project, staff is recommending that additional variances to the front yard requirements to try to provide for a more varied and attractive streetscape within the project. Those staff-recommended variances are described below under Section X.A.4. C. Discrepancies in Project Information That May Adversely Affect Ultimate Project Design Page 3-24 of the Draft EIR contains the project's stated objectives which include "To encourage unique, imaginative architecture and site design which integrates into a setting that is well planned and environmentally sensitive," The applicant has provided information on build-out of the site, including estimates for the civil grading; along with grading volumes that take into.account corrective grading of the two landslides on the site, and grading for utilities and that which is anticipated to step residences up and down the hillside lots. The materials provided on the build-out of lots are not detailed engineering plans. Rather they are illustrative drawings, schematics and typical sections that are intended to be consistent with the project objectives presented in the Draft EIR. It should also be noted that the Subdivision Ordinance does not require submission of residential designs for processing of a tentative map. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD 18533) Board of Supervisors March 21,2006 Page 24 Nevertheless, in reviewing the project submittals and EIR information, staff has identified a number of inconsistencies/discrepancies. Further, to assure that the project meets the stated objectives, additional review should be conducted and restrictions imposed on the project prior to approval of a final map or issuance of a grading permit. Exhibit 4 contains a staff study that reviews those discrepancies and the need for additional design review including that: • The EIR description which indicates that"a total of 22,000 cubic yards (CY) is estimated to be cut, and 27,000 CY is estimated to be fill material. However, the October 23,.2004 Grading Plan notes 12,000 CY of cut and 13,000 CY of fill. This means an additional 10,000 CY of cut and 14,000 CY of fill is to be completed after the rough grading operation (twice the rough graded earthmoving.) • Residential drawings associated with the project depict padded grading conditions whereas the grading plan does not have flat padded area. • R-7 lots are not sized for side-entry garages; however proposed sections show side entry garages and sections that are not applicable to the site. • The grading plans for the Royal Oaks Drive arch culvert crossing depict a road that is 36-feet in, height above the flow line of Garrity Creek. The grading plans do not provide the details of the retaining walls.and reinforced earth needed to support the Royal.Oaks Drive roadbed. Conceptual plans, particularly when they are contradictory or incomplete, cannot serve as a basis for approval of improvement plans or building permits. To assist the project in meeting its stated objectives, the Conditions of Approval provide for additional review of possible residential designs and approval of Design Guidelines. to be included in the project CC&R's (COA's 46 —49). D. Consistency with General Plan Density Range The proposed 40-lot project falls within the permitted density range (37 — 54 lots) that the General Plan designation allows for this site near the low end of the range. If the Board determined that the project could not be found consistent with the goals and policies of the General Pian without a reduction in the scale of the project, it could consider a reduction in the number of allowed lots. E. Protection of Slopes and Creeks .Slopes - The existing slopes on this site vary in gradient. There are some flatter areas of the property, but most of the site (84 percent) consists of slopes with gradients of 15% or greater. The design of project road and drainage facilities is to Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD 18533) Board of Supervisors March 21, 2006 Page 25 some extent, supported by retaining walls. The property is a sloping hillside, and although grading for roads cannot be avoided,the applicant proposes development of hillside residences that conform closely to topography, and the project uses 2 'h: 1 (horizontal to vertical) gradients for engineered slopes throughout. By use of retaining walls at three locations on the site, the grading for roads is kept to a minimum and the intrusion of grading into environmentally sensitive lands is minimized. Pertinent slope and creek protection policies of the General Plan are referenced in Table 4.1-1 (pg. 4.1-5, et seq.)of the Draft EIR. They include measures to allow for appropriate restrictions for development on open hillsides with slopes greater.than 15%. Creeks - The policies also provide for the maintenance of natural waterways. The Riparian Mitigation Plan (RMP) indicated on Figures 4.5.2 (pg. 4.5-19) and 4.5-4 . (pg. 4.5-21)of the Draft EIR propose three maintenance access easements across residential parcels to provide access to drainage basins.and creek. None of these maintenance access easements is shown on the proposed tentative map. The access facilities should tie on (deed-restricted) open space parcels under fee ownership of the project Homeowners Association, not across residential lots. Due to the relatively small size of the residential lots, conflicts are likely to occur between the owners of the residential lots.and those parties responsible for maintaining the. basins and creeks. Converting these accesses from an easement to a fee strip would also facilitate residential development on these lots. Under the existing RMP design, the easements constitute a road; and the ordinance would require development on the adjoining residential lots to observe the setback requirements for a corner lot measured from the edge of the easement(either min. 15 feet or 20 feet). However, if instead converted to a ifee strip driveway, then adjoining residential setbacks would be able to treat them as side yards, subject to a reduced structure setback requirement. If they were to remain as easements, then development of these lots would be significantly complicated and compromised. It may be possible to grant variances to allow a reduced setback from these easements; however the subdivider has not requested such a variance, and such a request would need to be legally noticed before it could be granted. F. Environmentally Superior Alternative (Reduced Density Alternative described in Final EIR The Final EIR (pp. 23 — 24) designates both the No Project Alternative and the Reduced Density Alternative (Alternative 6) as the Environmentally Superior Alternatives. The No Project Alternative is not considered reasonable because it Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21, 2006 Page 26 would not be consistent with the Single Family Residential — High Density designation of this site in the General Plan. The Reduced Density Alternative is described on pp. 14 — 23, and Site Plan identified on Figure 5-4 (pg. 16) of the Final EIR. It would reduce the number of allowable residential lots from 40 to a maximum of 37. It would also require the site plan to be reconfigured to:, • Fully comply with the minimum lot dimensions of the R-7 district; • To provide for larger open space parcels that encompasses the whole of the two tributaries constituting Garrity Creek, and "Road 24"on the west side of the site. It also proposes the elimination of grassy swales because they were found to be an intrusion into the habitat area along the creeks, and to use Best Management Practices such as stilling ponds or mechanical separators, as space and design dictate, to meet its clean water requirements. Discussion —The 37-lot unit count is at the low end General Plan density range for this site. Some of the ramifications of this alternative are that: • The modifications and standards associated with this design would make it easier to design for the required mitigations and compliance with zoning standards. However, some of the standards of this alternative may prove to be excessive and would deprive the applicant of being able to show that a project with more lots could be made to fulfill the Stated Project Objectives in a manner that may be shown to be consistent with the General Plan policies, reasonable administration of zoning regulations, and compliance with EIR mitigation measures. • The enlargement of the Open Space parcels to include the whole tributaries will significantly reduce the lot areas and lot depth of a number of proposed residential lots (particularly Lots 6 -12). There would have to be a corresponding reduction in the building envelope for the affected residential lots,with corresponding reductions in the potential building envelopes of those lots. On the other hai d,the protection of the creeks might be accomplished by provision of other encumbrances (e.g.,drainage maintenance easements)that would allow not require a structure setback to be observed (as would apply to an Open Space parcel), and thus would allow a potentially larger building envelope. , • Concern with Stormwater Control Provisions — The stormwater control provisions of the Reduced Density Alternative (Alternative 6 in the Final EIR) remove the proposed grassy swales and, in lieu thereof, proposed stilling Continued Hearing on Appeal of CPC Approval of a . Residential Subdivision (County File SID 18533) Board of Supervisors March 21,2006 Page 27 ponds or mechanical separators.2 The research and review of the myriad of stormwater treatement devices is rapidly changing. Currently, mechanical separators are out of favor with the Regional Water Quality Control Board. .Although, the situation could change-between now and the time this project . actually reaches construction. If the Board were to require the project to be modified based on this alternative, the conditions of approval should acknowledge this situation and instead of requiring specifics, staff should be required to review the stormwater control plan in light of the standards and policies that are the accepted standard of practice at the time. The staff recommendation provides for standards and review procedures which will require the applicant to demonstrate the feasibility of developing a residential project for this site that will meet the Stated Project Objectives.prior to.approval of a final map. That will entail a design review process that takes into account compliance with hydrologic, geologic, biologic,zoning restrictions, and other factors. There is no compelling reason at this point in the project review to impose additional standards that may deprive the applicant of some of.the development potential of the site. Accordingly, staff is not recommending that the Board approve the Reduced Design Alternative. Still, if necessary for the Board to determine consistency with applicable slope and creek protection policies,the Board may approve the project subject to the Reduced Density Plan for a maximum of 37-lots, and still be found consistent with the General Plan. X. DISCUSSION A. Primary Site Plan Considerations 1. Maintenance Access to Creeks and Basins—Similar to the mitigation measure requiring that the proposed detention basins be on. their own open space parcels, the site plan should be reconfigured to locate the maintenance accesses to the basins and creeks (three currently proposed) to be placed within a deed-restricted open space parcel that is owned in fee by a project Homeowners Association (HOA) that staff is recommending be required, without any road easement for access to residential lots. (POA 2.A.) 2'. Measures to Assure Feasible Ultimate Development of Project— To address staff concerns with inconsistencies in project description material, the Staff Study on Design Components, Exhibit 4-A, recommends certain reviews to be conducted prior to filing a final map or approval of a grading plan, for the review and approval of the Zoning Administrator: 2 .Ref. Note 5 on Figure 5-4 of the Final EIR. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD 18533) Board of Supervisors March 21,2006 Page 28 Revised project.grading plans and conceptual elevations and floor plans as a Preliminary Design Submittal as recommended in the Staff Study contained in Exhibit 4-A; and Design Guidelines for the project that will be included in the project CC&R's. The Staff Study recommends that an Architectural Review Board be established within the HOA to oversee residential development. . Staff is recommending that the Design Guidelines include measures that will effectively limit the volume of grading for the development of individual residential lots, which is consistent with the applicant's intent. (COA 46-49) 3. Constraints on Two ,Corner Lots Adjacent to Arch Culvert (Lots 6 and 40) Warrant Special Consideration—Lots 6 and 40 at the southeast and southwest corners of Royal Oaks Drive and Garrity Creek View have greater constraints than face the other lots. The lots have: • Street exposure on two sides and thus must observe the greater structure setbacks measured from the road right-of-way; . The arch culvert that supports the creek crossing and related improvements can be expected to add to the area of the lots that will be encumbered by fan easement, and hence may not be available for private residential use. Yet the'design impacts are not delineated on the tentative map; and . A deed-restricted area within 50 feet of the creek-bed centerline that will preclude any use of the southern portion of these lots. As a consequence, these lots will be constrained in their development relative to other lots in the project. To assure that development of these lots fit in with the surrounding neighborhood: . COA 48.A. requires submittal of a conceptual site plan to demonstrate that the tentative map assumptions work; ' COA 49.D. requires arch culvert detail; and COA 49.F. requires structural elements of the access road be located in an easement where it can be maintained by the project Homeowners Association. 4. Staff-Recommended Variances/Exceptions to Allow Front Yard Requirements to Allow for a More Varied Streetscape — Most of the residences will be two stories in height as proposed by the applicant. To provide incentive to soften the streetscape, staff, is proposing that the applicant be granted a variance to the front yard setback standards to allow a reduced, 15-foot front setback (except for garage)rather than 20-feet for approximately 50 percent of the lots. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21, 2006 Page 29 The portion of the residence that encroaches within the 20-foot setback should be limited to a one-story element. (COA 4.D. & 47.B.) 5. Proposed Variances�to Residential Lot Dimension Standards and 1/5/2006 Modified Site Plan Proposed By Applicant — The applicant elected to pursue this project under existing conventional zoning rather than try to rezone it as a P-1 project which might have allowed greater flexibility to fit a development to the site characteristics. There are a significant number of lots, 15, that require a variance to be granted to the R-7 lot dimension standards. Modified Site Plan -The applicant has recently submitted a Modified Site Plan dated 1/05/2006 that shows how the lots might be otherwise configured to reduce the number of lots that would have variances to the average lot width standard. This plan is presented in Exhibit 10. This plan is similar to the Redesigned Alternative described in the Draft EIR. But even with this site plan, three lots would have a substandard lot width, with widths. as small as 55 feet (15 feet less than they district standard). It also is difficult for staff to use the Modified Site Plan insofar as it is missing a lot of information that is required for a tentative map (e.g., no information on existing or proposed contours, etc.) and by the findings in the EIR. Variances to Address Lots that are Effectively Standard-sized lots but Substandard by Code-Definition - It would be reasonable to grant the project some variances to the lot width standard to account for those ten lots that are deficient in lot width but otherwise contain lot dimensions that meet R-7 standards. However; lot width variances should apply to a fewer number of lots as defined by the ordinance but into account lots that otherwise contain within them dimensions that meet the R-7 standards, but which are substandard in width. In this regard, staff would recommend granting variances to allow fewer lots to observe a smaller minimum average lot width of at least . 65 feet. Therefore, instead of.granting variances for these ten (10) lots with an average width of 68 feet as defined by the code among the ten lots, staff recommends that the project be granted variances for a maximum of five (5) lots with an average width of at least 65 feet as defined by the code. Further, those authorized substandard lots should not be allowed to be concentrated in one part of the project. (GOA 2.B. & 4.A.) No Allowance for Variances for 5 Proposed Lots with Variances to Width Standard Due to Irregular Shape - At the same time, it would not be appropriate to make ordinance findings for granting variances for the other five Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533). Board of Supervisors March 21, 2006 Page 30 lots that have a bona fide substandard width.condition due to their irregular shape. (COA 2.B. &.4.A.) Variance to Lot Depth Requirement for Lot 13 (end of cul-de-sac) Should be Denied - Staff does also not believe it necessary or appropriate to grant a variance to the lot depth requirement for Lot 13, as this variance condition can be modified by reconfiguration without materially damaging.the design of the cul-de-sac bulb on which it fronts, or the loft itself. However, if the Board is inclined to consider granting this variance,then the project should be continued to allow for a corrected public notice to be issued. In sum,the project should be reconfigured to fully comply with all R-7 minimum lot dimension standards, but allowed up to five lots with variances to the lot width standard as de lined.by the Ordinance Code; and those five substandard' lots should not be concentrated in one location of the project. (COA 4.B.) 6. Review of Other Proposed Variances • Arch Culvert within Yard Areas —A variance should be granted for the arch culvert, but subject to the design review recommended in Exhibit 4- A. (COA 41. 1& 49.D.) • Retaining Wall/Fencing Along Access Roads—The proposed retaining walls and fencing variances, including a possible 8-foot tall soundwall along Hilltop Drive for acoustical protection of a residence at Lot 1, is reasonable given the topography and acoustical conditions of the site, and to limit encroachment of grading into biologically sensitive areas of the site. (COA 4.C.) • Front Yard Variances for Lots 2 — 5 (Royal Oaks Drive) Due to Turnaround Design—The turnaround design for these lots exceeds the County standards. There is no need for easement legs to project onto the normal private driveway portion of these lots. Keeping these easements may be a source of conflict between the neighbors. Staff recommends that the variances be denied and that the map be modified to eliminate thIe proposed easement legs that project onto the normal driveway of these lots. (COA 4.E.) 7. Provision of Project(Private) Neighborhood Facilities— Because the project is less than 50 lots, the Quimby Act (Government Code Section 66477 (a) (7) would bar the County from requiring the dedication of parkland for this project. The Quimby Act would not prohibit the County from requiring private HOA- maintained and operated recreation facilities,,such as a playlot (aka "tot" lot). Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD 18533) Board of Supervisors March 21, 2006 Page 31 The General Plan Open Space Element (pg. 9-22) encourages (but does not require)the placement of private recreation facilities in private developments. However, where developed, the Plan also provides that credit from a project's park dedication ordinance requirements should only be given where it is clear that private developments provide facilities which are open to and serve the public. Suitability of Low-Intensity Recreation Facilities in Northwest Open Space Parcel-With respectito the present project,the site will function as a large cul- de-sac with limited traffic. It also contains a large open space area that staff is recommending be managed by a project HOA that could be used for passive recreation activities. iProvision of more low-intensity recreation facilities (e.g., benches and tables, barbeque, horseshoe court, pedestrian access path) would be desirable. However, the design of such facilities would have to comply with the requirements of the Americans with Disabilities Act (ADA). Further, any recreation proposal within the Open Space or adjacent to existing creeks would require review by a qualified biologist for potential impacts to biotic resources, and subject to final review and approval by the Zoning Administrator. (COA 6.C.) Suitability of Tot Lot - Table 9-1 (pg. 9-17) of the General Plan provides "County Park" criteria for playlots (aka tot lot). Those criteria provide for: • Site area: 2,000— 5,000 square feet for either an independent site or that portion of a playground developed as a playlot. • Location: In sites located in the centers of apartment projects or planned unit developments which they are intended to serve. • Facilities: Basic facilities include playground equipment for preschool children (swings, slides, climbing apparatus) and shaded bench area. for parents. Additional facilities include sandboxes, spray pools,and both grassed and hard-surfaced play areas. This project is neither an apartment or planned unit development project. Further, the project would not seem to be large.enough to warrant a separate playlot i or tots, and staff does not recommend that one be required for this project. However, if the Board is inclined to require such a playlot,then it should be sited on generally,flat terrain, away from steeper slopes; in a conspicuous location, yet away,from traffic; and ADA compliant. Moreover, its provision should include sufficient recreation improvements and design (e.g., soundwalls) to avoid conflicts with nearby residents. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision.(County File SD 18533) Board of Supervisors March 21, 2006 Page 32 B. Other Considerations The following topics.and recommended modifications would not materially affect the lot yield for the project. 1. Open Space Area in Northwest Portion of Site Should Be Reconfigured into a Separate Open!Space HOA-Owned Parcel The Open Space area in the northwest portion of the site is presently a portion of four residential lots. It is physically separated by the access road from the building sites for the residences. Its use and function should not be confused with the private residential use of the three lots. Accordingly, it should be established as a separate HOA-owned, deed-restricted area, with appropriate perimeter fencing. The reduced area of the residential lots (Lots 27, 28, 29 and 31) is still sufficient to meet the minimum lot standards of the R-7 district(refer to"alt." listing of lot dimensions in Table 1). (COA 2.A.) In accord with the EIR Mitigation Measure Hydrology — 2, both detention basins would be reconfigured onto Open Space parcels that are separated from residential parcels. The recommended conditions provide for this alteration (e.g., COA 2.A.). This required reconfiguration will affect residential lots in two ways. • It reduces the overall private residential lot area of the affected lots; and • Correspondingly, the reduced lot sizes of the affected lots will also reduce the potential building footprint (structure setbacks will be measured from the edge of the Open Space parcel)that those lots will be required to observe. 2. Eliminate Proposed Public Trail — The project proposes a public trail to access the Open Space area in the northwest portion of the site. However, the area is in a secluded area. It is possible that a trail in this location may become more of a nuisance than an asset if access is authorized to individuals from outside of the project. The site would be difficult to police. There are no adopted County plans to connect the trail to other roads or trails, so that its function would likely be limited for the foreseeable future. Further, at this time, no public entity has been identified that is willing to maintain and accept liability for a public trail. In view of these circumstances, staff recommends that the public trail component be eliminated. The Open Space area still would allow a passive recreation . area for residents of the subdivision and it would serve as wildlife habitat. (COA 2.A.) Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) . Board of Supervisors March 21, 2006 Page 33 3. Retention of Geologic Hazard Abatement District (GHAD) Requirement to Repair Slopes and Maintain Open Space Parcels — In approving the project, the County Planning Commission required that it annex into an existing local GHAD in EI Sobrante to provide a mechanism for the long- term management of the open space areas of the site, including prevention/corrective actions to control damages from erosion and future slides within the project. Staff is recommending that this requirement be retained and than the GHAD function (Plan of Control) be expanded to provide for general maintenance and upkeep of the Open Space parcels. 4. Quitclaim Accessory Pedestrian Easement Connecting Site to Marin Road — Staff understands that this site possesses a 10-foot wide pedestrian easement that provides access to Marin Road to the north as shown on Figure 5-1 of the Draft EIR (pg. 5-7, Redesigned Alternative). With the approval of this p r,oject, the easement would be blocked by residential lots and retention of that easement'serves no useful purpose. The applicant should be required to provide evidence that the easement has been quitclaimed. (COA 2.1.) 5. Hilltop Drive Left-Turn Lane as Proposed on Site Plans Should be Built if Feasible—The project takes immediate access from Hilltop Drive, which is a two-lane collector street that provides access to Interstate 80, approximately Y2 mile west of the site. East-bound traffic to the project will make left turns on Hilltop Drive. The Environmental Impact Report did not identify the turning movement into the site as a significant impact.. However, during peak hour traffic, cars making that left turn will need to yield the right-of-way to through traffic on Hilltop Drive, resulting in a queue of eastbound traffic on Hilltop Drive. In response to staff I concerns, the VTM shows a left turn lane (pocket) on Hilltop Drive at the entrance to the project (see VTM, Sheet 8). That graphic indicates painted islands and implies some widening of Hilltop Drive. The existing road has a 50-foot wide right-of-way but topography may require additional right-of-way to safely accomplish the widening. Until improvement plans are prepared, the construction issues posed by channelization are unresolved. Nevertheless, this improvement should at least be investigated, and if determined to be feasible, constructed. (COA 5) C. Summary of Malor Recommended Site Plan Changes and Lot Yield for Approval of a Tentative Map Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SID 18533) Board of Supervisors March 21,2006 Page 34 1. Consolidate the Number of Lots that are at Variance to R-7 Lot Width Standards with a Minimum Average Width of 65,feet-Ratherthan grantthe ten lots with average lot width variances, staff recommends that variances be granted to the average lot width standards for only five (5) lots, and that they observe a minimum 65-foot average lot width following the code definition. These reduced width lots should be distributed within the project and not.concentrated in any one area. (COA 2.13.). 2. Reconfigure Rernaining Lots to Comply with All R-7 Lot Dimension Standards-All other lots should be reconfigured to comply with all of the R- 7 minimum lot dimension standards as defined by the code based on an engineer's survey. The lot depth variance for Lot 13 should be denied. (COA 2.B.) Corner Lots 6 and 40, near the arch culvert, should be specifically reviewed for development feasibility in the Preliminary Design review submittal prior to approval of a final map. (COA 46-49) 3. Reduce the Maximum Number of Residential Lots Allowed from 40 to 39 - In view of the recommended lot reconfiguration described above, and the recommended change in the configuration of the access to the basins and creeks, it will not be possible to sustain a 40-lot division, and that a reduction in the number of lots will be necessary. Based on the staff review, staff recommends that the project be reduced to a maximum of 39 residential lots. That number is still consistent with the permitted General Plan density range that applies to this site. (COA 1. & 2.B.) XI. UPDATED REVIEW OF LETTER OF APPEAL On June 17, 2004 the Community Development Department received an appeal from the EI Sobrante Valley Planning and Zoning Advisory Committee, Friends of Garrity Creek and Hilltop Neighborhood Association. A copy of the appeal, along with attachments, is presented in Exhibit 1. The appeal points were previously reviewed in the staff report for the Board's initial hearing of this appeal in 2004. The appellant's letter identifies 15 appeal points. The appeal points and staffs updated analysis of those points are as follows. XII. REVIEW OF APPEAL POINTS The letter of appeal contains numbered appeal points. However, there were some general comments that preceded the numbered appeal points, and some appeal points were compound. The following presents the entire appeal letter verbatim but the numbering of appeal points has been modified (expanded). Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD 18533) Board of Supervisors March 21,2006 Page 35 Appeal Point #1: General. On June 8, the Planning Commissioners approved a Mitigated Negative Declaration for this project(SD018533)and set a limit of 40 homes for the site.We feel that these decisions were based on flawed, incomplete, and overlooked information. Staff Analysis: The appeal asserts that the decision is based on flawed, incomplete or overlooked material. However, no specifics are provided, except to refer to the attachments to the letter of appeal. Those attachments are a part of the record upon which the County Planning Commission decision was based. No correspondence or testimony is disregarded, but commissioners give weight to each piece of information that they believe is appropriate. Appeal Point #2: General. The Initial Study fails to acknowledge several significant impacts.We incorporate, by reference, all written comments from Attorney Keith Wagner, Barbara Pendergrass for Friends of Garrity Greek & Hilltop Neighborhood Association and Eleanor Loynd..for the EI S�obrante Valley Planning & Zoning Advisory Committee. We are very concerned because the analysis of the adverse environmental effects and the development of mitigation measures were deferred until later and the burden of providing information on these significant adverse environmental effects was shifted to the public, the.applicant, and other agencies. That is unacceptable. Staff Analysis: At the July 13, 2004 Board of Supervisors hearing on the appeal, the Board of Supervisors required preparation of an EIR. The scope of the EIR took into account the issues of concern.to the appellants. Appeal Point#3: General. In addition, we feel that the decision is not in compliance with the standards in the General Plan. The. staff report states that the County slope protection policies can only be met with a reduction in the number of proposed units to 35. The Planning Commission ignored and/or overlooked this recommendation and approved 40 units for the site. Staff Analysis: Unlike an Ordinance Code, General Plan policies provide general direction but not specific standards. Additionally, policies may conflict with one another(e.g., the Housing Element contains policies aimed at meeting housing needs; the Conservation Element has policies aimed aft protection of natural resources; and the Traffic and Circulation Element established transportation goals, policies aimed at providing an efficient road network.) Based ion consideration of these and other complex issues, the County Planning Commission determined that the project was consistent with the County General Plan. The EIR found the project to be consistent with General Plan policies, but acknowledges that ultimately the decision rests with the Board of Supervisors. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD 18533) Board of Supervisors March 21,2006 Page 36 Appeal Point #4: Traffic. The California courts have held that public testimony about noise or traffic impacts or topics that you may be personally familiar with (i.e., significant view along scenic highway) are substantial evidence of a project's significant impact.3 Staff Analysis: The County had adopted thresholds of significance forsuch environmental effects as noise, traffic and visual quality. CEQA recognizes the validity of such locally adopted thresholds. For example, the Growth Management Element provides performance standards (i.e. traffic Levels of Service) for roadways as a function of land use. The Noise Element contains: a) noise contour maps; b) noise policies; and c) a table showing land use compatibility for community noise environments. The site is not identified as an area impacted by noise. The project.can be expected to generate long- term noise that is characteristic of a residential project. The Draft EIR included analysis of the noise environment along the Hilltop Drive corridor. The study concluded that the project will add to cumulative noise levels along roads serving the project, but based on the relatively small number ofresidential units, those effects are less-than-significant. However, the residence on Lot 1 would experience noise levels of about 65 dBA Ldn, which is considered a significant impact. Additionally, construction-related noise is considered a significant impact. Mitigation measures are proposed to reduce these impacts to less than significant.1 The County has adopted a threshold of 1.00 peak hour trips to trigger traffic studies that. involve sophisticated modeling. In determining if a project generates 100 peak hour trips, the county uses Institute of Traffic Engineers generation rates. In this case the project generates less than half the number of trips to require a comprehensive traffic congestion management study. Nevertheless, the EIR included a comprehensive traffic study. That analysis confirmed that the proposed project presents no significant impacts along the Hilltop Drive corridor. The .EIR did. identify a traffic impact associated with the construction traffic and mitigation measures are proposed. The Transportation and Circulation Element identifies scenic routes, and Scenic Routes Policies are identified as Policies 5-34 through 5-43. These policies are aimed at protection of views from scenic routes. The Open Space Element identifies scenic ridges and waterways, and implementing Scenic Resource Policies are identified as Policies 9- 10 through 9-27. These policies are aimed at protection of major scenic ridges and scenic qualities of the San Francisco Bay/Delta Estuary system. In this case, the site is not visible from a designated scenic route, and it is not on the flank of a designated scenic ridge. The project will be visible from the residential neighborhood surrounding the site, but there will be no long range views of the site because of its topographic setting. The project involves relatively minor grading and the biologic resource mitigation measures assure protection and enhancement of the biologically-sensitive portions of the project. 3 Yeates,William,2002, Community Guide to the California Environmental Quality Act. Planning and Conservation League Foundation. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21,2006 Page 37 Appeal Point#5: Traffic. The testimony of numerous residents as to the heavy traffic on Hilltop Drive, especially during the commute time and the. starting/ ending of school as well as problems that people have backing out of their driveways should be considered as substantial evidence of this proj'ect's impacts. In addition, the County should have taken into account the current applications and homes under construction in the Appian Way/Hilltop area. The ten homes being built off Renfrew Court and the five homes under review will add even more traffic to Hilltop Drive: An environmental impact report would address the cumulative effect. Staff Analysis: The testimony of residents have pointed out that traffic is heavy on Hilltop Drive, but these comments are not evidence of a significant impact. The EIR identifies significant impacts based on Level of Service thresholds. Thus, the project will add traffic . but the effects of that traffic on Hilltop Drive are considered less-than-significant. The proposed density of the project is at the low end of the allowable density, which can be interpreted, at least in part, as the applicant's response to this issue. In response to the issues raised by appellants a comprehensive survey of Hilltop Drive was performed,which included evaluation of cumulative traffic on this corridor,which was evaluated in Section 4.2 of the Draft EIR, and that concern was also addressed in the EIR Response to Comments document. The findings of the EIR traffic study may be summarized as follows: Cumulative-Plus-Project Traffic Conditions. The project site has a General Plan designation of "Single-Family Residential — High Density (SH)." Using the General Plan standard of net acreage equals 75% of gross acreage,the 10.09-acre site could accommodate 39 to 53 dwelling units.'The proposed project involves 40 units and is consistent with the site's zoning. Since development is typically assumed to be at mid-range and the project is at the lower end of the range, the project is consistent with current modeling and forecasting efforts in the Cumulative Conditions analysis (see EIR Table 4.2-3)and additional analysis is not needed. Nevertheless,to provide a more conservative assessment, an analysis was performed that includes project- generated trips added to other increases in background traffic and all of the study intersections were evaluated under Future-plus-Project Conditions. As shown in E.IR Table 4.2-8, six of the study intersections are expected to continue operating acceptably under Cumulative-plus project conditions based on the County's standards (see Final EIR, pg 36). The intersections of Hilltop Drive with Park Central Street and Solano Court-Pebble Drive would experience unacceptable levels of service during the morning peak hour without or with the Project. Figure 4.2- 3 shows cumulative traffic volumes at the four study intersections (see Final EIR, pg 'The EIR used another method recognized for calculating the net acreage of the property based on deduction of the area within the project road rights-of-way,which is another valid means under the General Plan Land Use Element for determining the net acres and unit density range for a site. The General Plan density range earlier in this report utilized the 75% "rule of thumb'method for calculation of net acres on a site,and the resultant density range under the General Plan designation. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21, 2006 Page 38 30). Because the project does not result in any changes to the levels of service, the project's contribution to cumulative impacts is considered less-than-significant. Appeal Point#6: Marin Road. The second access road to this property, Marin Road, is currently a substandard County,road with no sidewalks or curbs, large pot holes, and is very narrow with no delineated sides. The road is currently a dead end, so steep that you cannot see the bottom part of t i e slope. It is like looking over the Grand Canyon. The developer does not intend to make any improvements to.this road nor has the County required him to do so even though he was required to improve the access road to one of his other projects with a similar, narrow entrance road. The lack of improvements to Marin Road poses a threat to all existing residents and to the new residents as well. Staff Analysis: The site of the residential subdivision (SD018533) consists of five existing parcels. Two of those parcels are located at the west terminus of Marin Road(APN 426- 192-005 & -008). 26- 192-005 & -008). Marin Road is a public road which stubs out at the site. Marin Road was intended to provide access to these parcels, which corresponds to the area of proposed Lots 24 through 34 (11 lots). Due to the steepness of the terrain, at the west terminus of Marin Road, the plans accompanying the original subdivision application did not propose a Marin Road connection. Those plans calledl for crossing the tributary of Garrity Creek and extending an EVA to Manor Road. This alignment and width was acceptable to the Contra Costa County Fire Protection District and California Department of Fish & Game with mitigation of riparian impacts. However, the El Sobrante Valley Planning and Zoning Advisory Committee, along with the Friends of Garrity Creek and Hilltop Neighborhood Association questioned the suitability of the EVA. To accommodate those concerns and keep biologic resource impacts to an absolute minimum, the Vesting Tentative map was modified to include an.access to Marin Road, which avoided the need forcrossing the north branch of Garrity Creek. It was to be a public road connection (not an EVA). This road connection was proposed as a component of the internal road network on the project when it was approved by,the County Planning Commission. At the July 13, 2004 hearing before the Board of Supervisors, testimony was received from residents that opposed the connection, and it was opposed by the appellants. In response to those concerns, the applicant purchased two residential lots to the north of the SDO18533 site and revised,the circulation plan for the project to provide an EVA to Manor Road. It was the Revised Vesting Tentative Map (VTM) with this road connection that was the subject of the EIR. Therefore, the revised VTM eliminates this appeal point as a concern. Appeal Point #7: Parks. There are no county parks in the EI Sobrante area. The local planning advisory group has made it clear to-Mr. Afshar since the first meeting that we want a tot lot or play area on site. If a park is not required,we ask that the County require the developer to pay $50,000 to $70,000 to the County Service Area R-9 Committee so they can partner with the school district, the EBRPD, or another entity to provide play structures. For your information the developer of the County project,Appian Village,was Continued Hearing on Appeal of CPC Approval of a Residential Subdivision(County File SD018533) Board of Supervisors March 21, 2006 Page 39 required to pay $70,000'to CSA R-9 in lieu of a tot lot on that site. The developer of the Richmond 40-home project on Valley View at May Road will provide$50,000 to upgrade a neighborhood park rather than put a small park on that site. If no park is built on this site, Mr. Afshar should be required to pay money to offset the loss of the on-site park. Staff Analysis: Park dedication fees are set at $2,000 per unit, so a 40-unit residential subdivision will generate $80,900 in park dedication fees. Fees collected in the EI Sobrante area are spent in the EI Sobrante area. Historically the County has partnered with the School District to improve%xpand recreation facilities at schools. It should be noted that State law limits the County's ability to require that the project dedicate any parkland. The Quimby Act provides that only the payment of fees may be required in subdivisions containing 50 parcels orless. [Government Code Section 66477 (a)(7)] This project is only proposing 40 residential lots; therefore, State law would prohibit the County from requiring this project from dedicating any portion of the site as parkland. The .Open Space Element of the General Plan encourages private developments to provide on-site recreational facilities to serve project residents, but does not mandate such facilities. The applicant has elected not to include one in this proposal. Were such a facility to be included in the project, the following matters should be considered. The subdivision ordinance (Ordinance Code § 920-8.004, et seq.) allows partial credit (up to 50 percent against the requirement of payment of in-lieu fees) if the County finds it in the public i I terest to do so and where the facilities meet certain standards. However, the General Plan provides that credit from the park dedication ordinance requirements should only be given where it is clear that private development provides facilities that are open to and serve the public. The EIR acknowledges that park development in the EI Sobrante Valley has lagged behind population growth. Con, tra Costa County and the City of Richmond, working together, initiated the EI Sobrante Valley Parks Study to analyze and address the Valley's current park and recreation deficit as well as the anticipated park and recreation need. The study team evaluated existing conditions and collaborated extensively with EI Sobrante Valley residents to develop recommendations for the development of a park system. The results of the study was presented in a report issued in January 2001. Briefly summarized, two types of park and recreation needs were identified by EI Sobrante Valley residents: a) multi-purpose playing fields, and b) natural open spaces. The report also notes that the population of the EI Sobrante Valley increased from 22,635 residents in 1990 to an estimated 23,625 residents at the end of year 2000. Using the County General Plan standard of 3.0 acres of parkland per 1,000 persons, the year 2000 population would require an estimated 70 acresof parks. There are 26.42 acres of existing parkland in the study area at present, so the deficit is currently in excess of 40 acres. The report included a vacant land analysis, and the project site of SDO18533 was one of the sites evaluated. The lanalysis of the site indicates that the property is too close in proximity to the existing Hilltop Green Park, and it was not deemed to be a priority site for acquisition and development of a park. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD 18533) Board of Supervisors March 21,2006 Page 40 Appian Village. The County previously approved the 22-unit Appian Village townhouse project off of Appian Way at Appian Village Court. Perhaps in part because of the small private yard areas associated with that development, that project originally proposed a tot lot within the site. However,prior to construction, the applicant proposed, and the County approved a revised site plan that eliminated that tot lot. But in allowing the elimination of that tot lot, the County conditioned the project to contribute$75,000 of supplemental park fees, beyond the in-lieu ($2,000/unit) fee that applies to the project. The approval also provided that the supplemental fees be used for park purposes in the El Sobrante area. It should also be noted that the Appian Village project did not provide private open space. Appeal Point#8: Land Use. The property is zoned R-7 even though it is in conflict with statements in the General Plan, item 10-28. We respectfully call your attention to these county slope protection policies,' rom the General Plan Safety Element: 10.28 "Generally, residential density shall decrease as slope increases, especially above a 15 percent slope" and 10-29 "Significant i illsides with slopes over 26 percent or more shall be considered unsuitable for types of development which require extensive grading or other land disturbance." An EIR needs to be done to define which land is actually buildable. This development has slopes of 5 to 1 (20%), 4 to 1 (25%) and 3 to 1 (33'/3%) as described in Mr. Afshar's own geological report. Staff Analys: The EIR provides a description of the project, including a slope map,' presented in EIR Figure 3-6, along with a description of the proposed grading (Figures 3- 7 through 3-10). The EIR includes assessment of Land Use and Planning policies (Chapter 4.1), and an assessment of"Geology and Soils"impacts (Chapter 4.4), which includes consideration of Safety Element policies. . The approach to compliance of SDO188533 with Policy 10-28 is to keep the proposed density in the lower portion of the SH category(5.28 units/net acre) and the approach to compliance with Policy 10-29 is in hillside areas to avoid use of pads and instead tuck dwellings into the hillside (thereby minimizing grading). With regard to geologic hazards, the EIR identified earthquake ground shaking, landslides, expansive soils, erosion and corrosive soils as potential impacts, and mitigation measures are provided to reduce the .geologic-related impacts to less-than-significant. In summary, from a geologic perspective, there are no areas of the site that are unsuitable for development. Appeal Point#9: Geology. The geological report goes on to say"Areas of the site to be built on or paved should be stripped to remove any surface vegetation, organic top soils, and existing debris. Stripping depths should be determined in the field by the Soils Engineer at the time of stripping but for planning purposes an average depth of 3 inches may be assumed." Taking every bit of vegetation a dd top soil, as recommended in the Geological Report,will significantly change the visual nature of the land and provide a terrible dust problem for all residents. There is no provision in the plan to control the dust. This is in violation of CEQA law. Taking every bit of vegetation away will deprive the wildlife of their natural food supply. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD 18533) Board of.Supervisors March 21,2006 Page 41 Staff Analysis: After the Board of Supervisors required an EIR for the project, the applicant revised the Vesting Tel Map (VTM) and submitted a geotechnical report prepared by Alan Kropp & Associates that provided additional subsurface data, an original geologic map of the property, and geotechnical recommendations for the Revised VTM. The EIR presents a grading plan for the project on Figure 3-7. The figure indicates 4.3 acres of fill and 1.6 acres of cut (for approximately 6 acres of graded lands within 10.09-acre site). The areas along the creek channels are to be retained as ungraded open space, with the exception of one creek crossing, and construction of storm water detention facilities. Upslope homes fronting on Garrity Creek view and Garrity Creek Drive are to be tucked into the hillside with grading limited chiefly to driveways and the footprint of the residence. The EIR geology and soils chapter identifies soil erosion as a potentially significant impact and the air quality chapter identifies construction dust as a potentially significant impact. In both. cases, mitigation measures are proposed which would reduce soil erosion and construction-related dust to less-than-significant. The project site is a bowl that is sheltered/partially sheltered from winds by the surrounding terrain features. The visual appearance of the site will be changed during the earthwork, but projects of more than 1 acre require'a SWPPP from the Regional Water Quality Control Board and approval of an Erosion Control Plan. Moreover, the County Grading Ordinance requires control of dust during the grading period. Finally, this comment suggests that development of the site will deprive wildlife of their natural food supply. In response,. the agency with jurisdiction over biologic resources (California Department. of .Fish and Game) has made a site visit, provided recommendation to.the applicant to minimize disturbance of sensitive lands and provided standards and criteria for mitigation of biologic resource impacts. Those recommendations and standards have been incorporated into the biologic resource mitigation measures, and those mitigation measures have been translated into Conditions of Approval. Appeal Point#10: Geology. Mil.Afshar's Orion Court Project(Renfrew Court project) has been bare dirt for a year and a half and there is no indication that the Garrity Creek project will be any different. Again, the visual affect, the dust and loss of food for wildlife will have a substantial and destructive affect. Another reason for an EIR requirement. Staff Analysis: The Board of Supervisors required preparation of an EIR based on the potential environmental impacts of the SD018533 project. There is no CEQA provision that requires an EIR because of issues associated with other projects of an applicant. The Draft EIR evaluated potential visual effects of the project (Chapter 4.7), dust (Chapter 4.10), and loss of food for wildlife (Chapter 4.5). Mitigation measures are provided for each-significant impact to reduce.each impact to less-than-significant: Appeal Point#11: Biologic Resource. Contra Costa County's General Plan, Section 8, Conservation Element 8-14, page 8-29 states that development on .hillsides shall be Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD 18533) Board of Supervisors March 21,2006 Page 42 limited to maintain valuable natural vegetation, especially forests and open space lands, and to control erosion. 8-15. Existing vegetation, both native and non-native, and wildlife habitat areas shall be retained in the major open space areas sufficient for the maintenance of a healthy balance of wildlife populations. 8-24 The County shall strive to identify and conserve 'remaining upland habitat areas which are adjacent to wetlands and critical to the surviving and nesting of wetland species. Staff Analysis: Table 2 is a lis 'ng of biologic correspondence and studies for this project that served as a point of departure for the biologic resource evaluation performed by the EIR biologist. The California Department of Fish and Game is the State agency with Table 2 I BIOLOGICAL RESOURCE—RELATED primary responsibility for protection of DOCUMENTS PROVIDED TO EIR BIOLOGIST wildlife habitat and special status species. On the project site the important habitat • California Department of Fish & Game, 2002. Agreement Regarding Proposed Streambed Alteration areas are the creek corridors, along with the Notification(received by CDD on March 6,2002). wet meadow vegetation (on proposed Lots . . California Department of Fish&Game,March 11,2002. #27-29 & 31). Review of the Revised Proposed Hilltop Road Area Project, County File VestingTentative Ma indicate,' that nearly #SDo18533, Revised Vesting Tentative Map of P Y Subdivision 8533, Contra Costa County. all of the biologically-sensitive lands are to . LSA,March 11,2002. Results of Fish and Game Site be preserved. The habitat areas that are. visit,Hillview Project,El Sobrante. disturbed by implementation of the project. . • LSA,December 21,2001. Biological Resources of the are to be mitigated. The Riparian Mitigation Hillview Project Site,El Sobrante,Contra Costa County, California. LSA Job#AAD130. Plans are presented in EIR Figures 4.5-2 . Monk & Associates, September 20, 2002. Hillview and 4.5-4. Those mitigation measures were Subdivision(SD8533),El Sobrante, California. based on consideration of agency . Wood, Michael K.,July 1,2002. Hillview Subdivision, expectations and County General Plan Biologic Impacts and Mitigation Measures. Policies and other regulations. The biologicWood, Michael K.,July 5,2002. Mitigation Monitoring resource mitigation measures have been Plan for the Proposed Hillview Residential Subdivision, El Sobrante., Contra Costa County. translated into Conditions of Approval. In a project that co Iles with • Wood, Michael K.,July 9,2002. Amendment to 1603 summary, P I P Notification of Streambed Alteration,Notification#2001- California Department of Fish and Game 982,Hillview Residential Subdivision,EI Sobrante. permit requirements and mitigates its • Wood, Michael K., July 9, 2002. Preconstruction environmental impacts and can be Notification for the Placement of Fill in Waters of the U.S.Pursuant to Nationwide Permits 14 and 33 for the considered to be in compliance with General Proposed Hillview Residential Development, EI Plan Policies 8-15 and 8-24. Sobrante, Contra Costa County,California. • Wood,Michael K.,July 8,2002. Application for Section Appeal Point #12: Natural Spring. Lot 29 401 Water Quality CertificationfortheProposed Hillview Residential Development, El Sobrante, Contra Costa consists of natural spring and riparian area. County, California. .The current plan is to build a home on the site and have the homeowner be responsible for the riparian area and spring. In addition, a sewer line is planned on the Iot. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21,2006 Page 43 One Commissioner pointed out in the Planning Hearings, that in order to protect this . riparian area, you cannot have an individual homeowner responsible for the area. The lot should be owned and maintained by the Homeowner Association's by-laws. Staff Analysis: Since the appeal was filed, the applicant revised the Vesting Tentative Map (VTM) and an EIR was prepared that analyzed the Revised VTM. EIR Figure 4.5-4 indicates the location of the spring and wet meadow area on the Revised VTM. The spring is indicated to be on Lot#27 . According to this plan, the portion of Lots #27, #28 and adjacent portions of Lots#29 and#31 are to be retained in a 0.75-acre open space area, but the open space is within private lots. EIR Figure 3-4 shows the location of the potential building sites on Lots #27, #28, #29 and#31 with respect to the private open space. The Biologic Resources analysis identified the proximity of the road serving as access to Lots#27 and#28 as an impact to the spring/seep complex. Mitigation Measure BIO-3(a) includes the following provision: • A common driveway/private road with a curb-to-curb width of 20 feet shall be used to provide any required access to the vicinity of Lots 26, 27, and 28, and the emergency vehicle access north of the site. This refinement of the road width would provide a setback of approximately 20 feet between the road and the spring/seep complex. It would reduce the extent of grading, and presumably eliminate the need for a retaining wall immediately adjacent to this feature. • Grading, roadway, drainage and any other development improvements shall be restricted a minimum of 20 feet from the edge of the spring to ensure an adequate setback from construction and to prevent indirect impacts of subsurface groundwater and surface drainage. The comment suggests that the wet meadow habitat be owned and maintained by a Homeowners Association, rather than being a deed-restricted portion of residential lots. However, there are examples of HOA's that did not fulfill their obligations because of financial factors. Another option that could be considered for this project is management of the open space by a Geologic Hazard Abatement District. (The Conditions of approval adopted by the County Planning Commission included. COA #18 which called for inclusion of SDO18533 in a GRAD.) The GHAD could be assigned responsibility for maintenance of stormwater facilities in deed-restricted areas. The Plan of Control for the GHAD could also include confrol of erosion and maintenance of the fencing on the perimeter of the private open space. Appeal Point #13: Drainage Problems in Hilltop Green. There have been slides and flooding in the Hilltop Green area which is a 500 home subdivision located next to Afshar's project. Hilltop Green is below the Afshar project and all water will drain to that area. At this time the County hIas no information on the adequacy of the Hilltop Green Drainage system to contain the drainage from the Afshar project. County staff has required the applicant to get that information and provide it to them at some future time, after the project approval. . Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21,2006 Page 44 Staff Analysis: :Briefly summarized, the FEMA flood insurance rate maps indicate no flooding problems associated ;with the channel of Garrity Creek, the West County Wastewater District reported a flooding problem that has been corrected, and the County Flood Control District knows of no flooding problems between the site and 1-80. The City of Richmond Public Works Department indicates there are drainage problems/drainage complaints in the Hilltop Green development, but the City's records are incomplete and hence details of drainage improvements and hydrology calculations are not defined. The appeal letter presumes that the proposed project will adversely affect existing problems in Hilltop Green, but there is no technical data or engineering analysis to support his assumption. To evaluate the capacity of the downstream facilities, the applicant retained Balance Hydrologics, Inc. They found that the downstream culvert is adequate/marginally adequate to carry peak flows from the 10-year storm. The objectives of the project include "to keep post-development runoff from the project site at the pre-development level for the design storm."(see DEIR, pg 3-24) The Revised VTM submitted by the applicant shows two storm water detention basins. They are shown on private lots, near the Garrity Creek watercourses (on Lots#31, #.37&#38). Balance Hydrologics analyzed peak discharge at the inlet of the Hilltop Green culvert, for the 10- year and 100-year runoff event, using methodology accepted by the County Flood Control and Water Conservation District. Additionally, they performed a basin routing study to determine the capacity of the storm water detention basins required to keep post-project flows exiting the Isite at the pre-development level. That study was evaluated in the Hydrology and Water Quality chapter of the EIR (Chapter 4.3). The EIR indicates on page 4.3-12 that"... with the proposed basins there would be no increase in off-site peak flow runoff during the 10- and 1100-year storm events." In summary, the project will be required to fully comply with all aspects of the drainage requirements of the County Subdivision Ordinance. This includes collecting all surface waters entering or originating on the subject property and conveying them in an adequate storm facility to its point of discharge into a natural watercourse. As an alternative, the Subdivision Ordinance allows !the County, at its discretion, to require regulating the outflow from the project so as not to exceed the capacity of downstream facilities, and this is the applicant's stated intent.i Strict adherence to these Code requirements can be expected to ensure that theproject does not have an adverse effect on the reported downstream drainage inadequacies within the Hilltop Green project, Interstate 80, orany other downstream drainage fact uties. Appeal Point #14: Garrity Creek Video. We urge the County Board of Supervisors to allow us to show you our video lof Garrity Creek. Staff Analysis: No response required. This is a request to present a CD that shows natural features on the site andl the adjacent portion of the tributary channel to the north of the site. This video was shown at the July 13, 2004 Board of Supervisors hearing. The features shown on the site are chiefly along creek channels, which are to be retained as deed-restricted private open space in the project. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21,2006 Page 45 Appeal Point #15: Conclusion. We concur with the statement of our attorney Keith Wagner of the law office of J. William Yeates, that the Initial Study prepared for this project is legally inadequate. For these stated reasons,the El Sobrante Valley Planning &Zoning Advisory Committee,the Friends of Garrity Creek,and the Hilltop Neighborhood Association appeal the Planning Commission decisions on SD01-8533 to the Board of Supervisors. We feel that a full Environmental Impact Report should be required to provide complete and documented evidence of the impacts and mitigation measures needed to deal with environmental impacts, including the size of the project. Staff Analysis: Based on the appeal letter, along with other written comments and public hearing testimony, the Board of Supervisors required preparation of an Environmental Impact Report. XIII. RESPONSE TO LETTER FROM THE LAW OFFICES OF J. WILLIAM YEATES Comment #1: Overview. This Metter, on behalf of our client, Friends of Garrity Creek, provides comments on the Initial Study that the County has prepared for the above referenced project pursuant to the California Environmental Quality Act("CEQA").5 These comments are submitted for your and the Planning Commission's consideration "prior to the close of the public hearing on the project before the issuance of the .notice of determination. These comments are in addition to, and do not in any way replace or supersede, any prior comments submitted by our client regarding the proposed project. The California Environmental Quality Act (CEQA) requires a lead agency to prepare an environmental impact report(EIR)whenever substantial evidence in the record supports a "fair argument" that a proposed project may have a significant adverse impact on the environment.' "[S]ubstantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact.118 A mitigated negative declaration, rather than a full EIR, may be approved for a project only if: 1) revisions in the project, before release of the Initial Study for public review, will clearly avoid or mitigate effects beyond significance, and 2)there is no substantial evidence, in light of the whole record, that the revised project may have a significant impact on the environment.' Staff Analysis: The legal question raised by this comment revolves on the definition of such terms as "substantial evidence"and`fair argument." Based on testimony and written 5 Pub. Resources Code, §21000 et seq. B Pub. Resources code,§211771, subds. (a)and (b). 'See Pub. Resources Code,§§j21080,subd. (d),21082.2, subd. (d); Cal. Code Regs.,tit. 14, ch. 3 ("CEQA Guidelines"),§ 15064, subd. (f)(1); No Oil, Inc. v. City of Los Angeles(1974) 13 Cal.3d 68, 75(stating that CEQA"requires the preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that the project may have significant enviro nmental impact."). e Pub. Resources Code, §21080, subd. (e)(1). 'Pub. Resources Code, §§21064.5,21080,subd. (c)(2). Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File S13,18533) Board of Supervisors March 21, 2006 Page 46 materials provided, the Board of Supervisors determined that an Environmental Impact Report is required at the July 13, 2004 hearing. Comment#2: Substantial Evidence. As plainly stated by California's Court of Appeal, "if substantial evidence in the reco rld supports a `fair argument' significant impacts or effects may occur, an EIR is required and a negative declaration cannot be certified."10 California case law also makes it clear that a mitigated negative declaration cannot be approved if it relies on mitigation measures that have not been formulated at the time of project approval." The proposed project cannot be approved at this time, because the Initial Study that has been prepared by the County is legally inadequate. As the following discussion demonstrates, the information that is contained in the Initial Study is inadequate to support a determination that all of the proposed project's potentially significant, adverse environmental effects have been clearly avoided, or mitigated to a "less-than-significant" level." Accordingly, the proposed project cannot be approved until, at the very least, a revised environmental document is prepared for the County's consideration. Staff Analysis: Statements by members of the public may constitute substantial evidence supporting a ,fair argument that a project may have a significant effect on the environment. However, the statements must be supported by an adequate factual foundation. Public comments that are not based on a specific factual foundation do not constitute substantial evidence. An adequate foundation maybe established by relevant personal observations. Some confusion about whether public comments are substantial evidence may have been created by the commentor. For example, public comment that asserts extension of. Marin Road to the project will lead to traffic impacts can be disregarded as speculation, since the comment is not sufficiently reliable to constitute substantial evidence. Conversely, information on the 'existing condition of Marin Road is substantial evidence. Comment #3: Aesthetics. Thei County's Initial Study acknowledges that the proposed project, which proposes to build 40 lots on a steep, 10-acre hillside, "will substantially change the visual character of the site as viewed from lots in the adjacent neighborhood."13 But the Initial (Study then goes on to opine that the project"could fairly 10 Quail Botanical Gardens v. City of Encinitas(1994)29 Cal.AppAth 1597, 1601-02. " See Gentry v. City of Murrietal(1995)36 Cal.AppAth 1359, 1396(holding that adoption of mitigation measures is improperly deferred where City's mitigated negative declaration reserved the right, after project approval,to require a study of affected ,listed species and compliance with mitigation measures that might be recommended by the study); Sundstrom v. County of.Mendocino(1988)202 Cal.App.3d 296, 306-314 (holding that county cannot rely on other agencies' ability to subsequently devise means of avoiding project's potentially significant impacts). 'Z Pub. Resources Code, §§21064.5;21080 subd. (c). 13 Contra Costa County Community Development Dept., Environmental Checklist Form, Project Title: Subdivision 8533, CDD File#SD018533(Hillview) (Oct. 13,2003) (hereinafter"Initial Study'), at p. 5. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SID 18533) Board of Supervisors March 21,2006 Page 47 be considered 'infill' development."14 No substantial evidence is cited to support this conclusory opinion. The Initial Study then states that a"well planned project that protects the channel of Garrity Creek and which complies with the standards/requirements of the CDFG, RWQCB and Corps of Engineers,will not substantially degrade the existing visual character of the site."15 Staff Analysis: The EIR prepared for the project evaluated Aesthetics in Chapter 4.7. This chapter included photographs of the site, and analyzed the sites scenic resources. The significance criteria are presented on page 4.7-9. Two significant impacts were identified and mitigation measures were provided to reduce those impacts to less-than- significant. Those mitigation measures have been incorporated into the Conditions of Approval. Comment #4: Aesthetics. No substantial evidence supports the County's conclusory statements that the project will not have significant, adverse aesthetic impacts. First, whether or not the site is "planned for residential development" is not responsive to CEQA's requirement that change to the existing environment be analyzed. Second, none of the agencies cited in the Initial Study are responsible for aesthetic impacts, and so complying with these agencies' standards and requirements regarding 1) wildlife mitigation, 2)water quality protection, or 3)wetland mitigation will not clearly ensure that the project will have no aesthetic impacts. On its own terms, the Initial Study declares that the project will result in substantial changes to the visual character of the area. Unless and until specific and identifiable changes are incorporated into the project that will clearly reduce such substantial changes beyond significance, the project may not be approved based on a negative declaration. Staff Analysis: As directed by the Board of Supervisors, an EIR was prepared for the project. The Project Description included exhibits that provide data on site conditions, including Site Topography (Figure 3-3), Tentative Subdivision Map (Figure 3-4), Illustrative Sections (Figure 3-5), Slope Map(Figure 3-6)and Proposed Cut and Fill Areas (Figure 3-7). This data was evaluated in the Aesthetics chapter of the EIR (see Chapter 4.7-9). Comment #5: Air Quality. The mitigated negative declaration acknowledges that the project may have both short-term air quality effects associated with construction, and long-term air quality effects associated with commute trips. Rather than quantify or analyze these effects in any way, the Initial Study states that the Bay Area Air Quality Management District has elected not to respond to the Initial Study. Again, no substantial evidence in the record supports the Initial Study's conclusion that the project clearly will have no significant, adverse short-or long-term air quality effects. 14 Initial Study, at p. 5. The project consists of 15-30 percent slopes. (Initial Study, at p.6.) 15 Initial Study, at p.5. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD0:18533) . Board of Supervisors March 21,2006 Page 48 The lack of comment from BAAQMD's is not substantial evidence that the project will not have adverse effects on air quality. As just one example, other parts of the Initial Study make it clear that substantial movement of earth and grading will be required to carry out the proposed project.16 But not a single mitigation measure is proposed to control fugitive dust associated with such earth movement and grading. Construction-level mitigation measures that are typically included in residential construction projects of this type as a matter of course include covering filled truck beds, wetting or seeding disturbed areas depending on length of exposure, and monitoring weather conditions. The Initial Study also fails to address all other co,struction related air impacts, including, but not limited to diesel particulate and volatile organic emissions. Put simply, absence of evidence is not evidence of absence."Under CEQA,the burden of environmental review and investigation is on the lead agency. At the least, the Initial Study must be revised to acknowledge that potentially significant air quality impacts may exist and to incorporate measures that will clearly avoid such impacts or reduce them to less than significant levels. Since the Initial Study entirely fails to investigate, let alone identify, potentially significant impacts related to air quality, any revised Initial Study with corresponding mitigation measures would also have to be recirculated for public review and comment before the project can be approved." The agency cannot hide behind its utter failure to gather any air quality data, and must, at the very least, take the affirmative steps necessary to engage in a meaningful evaluation of the direct, indirect and cumulative air quality impacts that the project may have.18 Staff Analysis: The EIR prepared for the Table 3 project included evaluation ofd Air Quality FEDERAL AND STATE AMBIENT effects of the project (Chapter 4.10 . BrieAIR QUALITY STANDARDS e P J ( p � Briefly Federal summarized, both the U.S. Environmental Averaging Primary State Protection Agency (USEPA) and the Pollutant Time Standard Standard California Air Resources Board have Ozone 1-Hour 0.12 ppm 0.09 ppm I 8-Hour 0.08 ppm -- established ambient air quality standards for Carbon 8-Hour 9.0 ppm 9.0 ppm common pollutants. These ambient air Monoxide 1-Hour 35.0 ppm 20.0 ppm quality standards are levels of contaminants Nitrogen Annual 0.05.ppm - which represent safe levels! that avoid Dioxide 1-Hour — 0.25 ppm specific adverse health effects associated Sulfur Annual 0.03 ppm with each pollutant. Dioxide 24-Hour 0.14 ppm 0.05 ppm 1-Hour - 0.5 ppm I PM,o Annual 50 mg/m3 20 mg/m3 The federal and Califomia state ambient air 24-Hour 150 Mg/M3 50 Mg/M3 quality standards are summarized in Table 3 PMZ.S Annual 15 mg/m3 12 mg/m3 for important pollutants. The federal and 24-Hour 65 Mg/ 3 state ambient standards were developed Lead 30-Day Avg. — 1.5 mg /m3 Month Avg. 1.5 mg/m3 ppm=parts per million 16 Initial Study, at pp. 15-20(noting requirement of: mg/m3=micrograms per cubic meter soils. " CEQA Guidelines, § 15073.51 subd. (b)(1). 18 Sundstrom,supra,202 Cal.App.3d at 311. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21,2006 Page 49 independently with differing purposes and methods, although both processes attempted to avoid health-related effects. As a result, the federal and State standards differ in some cases. In general, the California state standards are more stringent.. This is particularly true for ozone and PM10. The USEPA established new national air quality standards forground-level ozone and for fine particulate matter in 1997. The existing 1-hour ozone standard of 0.12 parts per million (ppm) will be phased outland replaced by an 8-hour standard of 0.08 ppm. New national standards for fine Particulate Matter (diameter 2.5 microns or less) have also been established for 24-hour and annual averaging periods. The current PM10 standards were retained, but the method and form for determining compliance with the standards were revised. The EIR presents Significance Criteria (page 4.10-2) and Air Quality Impacts and Mitigation Measures are presented on pages 4.10-5 and 4.10-6. Two significant impacts are identified (construction particulates and demolition of the existing residence on the site), which may include asbestos in some building materials. Mitigation measures were provided to reduce these impacts to less-than-significant. Comment #6: Biological Resources. The Initial Study attempts to re-characterize the project's biological and other impacts in a last minute "peer review" by Monk and Associates that purportedly summarizes the various biological reports that have been submitted to date.19 Because the standard of review for a mitigated negative declaration is whether substantial evidencel in the whole record supports a "fair argument " that the project may have significant adverse effects, the Monk and Associates "peer review" cannot be relied upon to negate or discount the actual substantial evidence in the underlying studies and reports indicating that the project may, in fact, have significant, adverse effects on biological and other resources that have not been mitigated to "less- than-significant"levels.20 In addition, our client and other members of the public have also submitted numerous questions and comments raising a "fair argument" that the project may have significant, adverse biological impacts that are not adequately addressed in the Initial Study. This letter hereby incorporates by reference, and re-raises as substantive objections, all such comments. Staff Analysis: The EIR prepared for the project.presents evaluation of Biologic Resources effects in Chapter 4.5. It identifies five significant impacts and provides mitigation measures to reduce these impacts to less-than-significant (see pages 4.7-23 through 4.7-43). Comment#7: Landslide/Slope Stability. The Initial Study acknowledges that the project is located on "expansive soil, . creating substantial risk to life or property[.]"21 The 19 Initial Study,at p. 10. 20 Pub. Resources Code, §§21080,subd. (d),21082.2, subd. (d). 21 Initial Study,at p. 15(response Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21,2006 Page 50 Initial Study claims that such impacts will be "less-than- significant" with mitigation incorporated. However, the mitigation measures proposed to reduce such impacts to insignificance relies on the post-approval preparation of an 'Updated Geotechnical Report and Remediation Plan"that will include"additional subsurface exploration and evaluation of slope stability."' The Initial Study violates CEQA because it defers meaningful evaluation of the project's impacts with regard to landslides and slope stability until well after the project is approved. This deferral is particularly troublesome in light of CEQA's requirement of a mandatory finding of significance for any potential project impacts that may result in "substantial adverse effects on human beings."23 If the potential exists that grading permits cannot be issued for the project due to landslide potential,that information should be adequately investigated by the County and disclosed to the public before project approval. Staff Analysis: After the requirement forpreparation of an EIR was imposed by the Board of Supervisors, the applicant submitted a revised Vesting Tentative Map that reduced the volume of grading in the north portion of the project, and the applicant submitted a geotechnical report evaluating the details of the proposed approach to development. The grading concept is based on use of gradients of 2%:9.(horizontal to vertical), which is conservative on the side of safety. The geotechnical report confirmed two relatively small landslides on the site and found'the soils to be highly expansive. Nevertheless, the report prepared by the project geotechnical concludes the entire site is suitable for residential use, and recommendation for site grading, drainage and foundations are provided. The grading plan and geotechnical report were reviewed by the EIR geologist, and that evaluation is presented in EIR i Chapter 4.4. Five potentially significant impacts are identified, and mitigation measures are provided to reduce these impacts to less than significant (see pages 4.4-9 through 4.4-93). Comment #8: Erosion and Sedimentation. The Initial Study acknowledges that the project has the "potential to cause significant erosion of unprotected slopes, and downslope sedimentation both on- and off-site.1114 In order to offset short-term erosion impacts associated with construction, the Initial Study requires the applicant to submit an erosion control plan prior to obtaining a grading permit.25 However, no specific performance standards are included, either directly or by reference, in the Initial Study indicating how the effectiveness of the applicant's erosion control plan will be measured to ensure that. the project's admitted, potentially significant erosion impacts will be mitigated to "less-than-significant" levels. Again, the deferral of the development of such plans until after project approval violates CEQA. 22 Initial Study,at p. 17. 23 CEQA Guidelines, § 15065, subd. (d). 24 Initial Study,at p. 18. 25 Initial Study,at p. 19. Continued Hearing on Appeal'of CPC Approval of a Residential Subdivision (County File SD 18533) Board of Supervisors March 21,2006 Page 51 In addition, the Initial Study claims that long-term erosion impacts will be mitigated by "incorporat[ingI the appropriate design, construction and continued maintenance of one or more" proposed long-term measures, but again, fails to establish any performance standards that clearly indicate that erosion will be reduced to"less-than-significant"levels . by incorporation of any or all of the proposed measures. Moreover, one of the proposed . long-term mitigation measures simply states that "[c]oncentrated runoff shall not be permitted to drain over cut or fill slopes.". This is a normative statement, it is not a mitigation measure.27 The Initial Study might as well announce that"rain exceeding half- inch in any 24-hour period shall not be permitted -to fall on the project site." The. unanswered CEQA question is, what specific changes-will be made in the project to ensure that runoff will not drain over cut or fill slopes, whether "permitted" or not? StaffAnal ysis: The EIR identifies "Erosion and Sedimentation"as a potentially significant impact. The impact statement and associated mitigation measure can be found in Chapter 4.4, page 4.4-12. The mitigation measures included the following: a) Erosion control plan based on the final grading plan, including provision for winter season monitoring and maintenance. b) Restricting grading to the summer construction season (April 15 through October 1). c) Use of 2'/z:1 gradients for engineered slopes of 15 feet(or more) in vertical height. d) Avoidance of concentrated runoff over cut or fill slopes. Comment#9: Expansive Soils and/or Bedrock. As with the discussion of landslides and slope stability, the Initial Study admits that expansive soils may result in potentially significant adverse environmental effects, but improperly defers the preparation of an "Updated Geotechnical Report"to describe such impacts and to propose alternatives or mitigation measures to offsets impacts until after project approval." Staff Analys: The EIR identifies "Expansive Soils and/or Bedrock" as a potential significant impact. The impact statement and associated mitigation measure can be found in Chapter 4.4, pages 4.4-11 and 4.4-12. The geotechnical report for the project concluded that the soils were expansive, and it provided foundation recommendation to mitigate that geotechnical.hazard. However, further design details are needed prior to issuance of building permits (spacing and diameter of pier holes; type/amount of rebar, depth of pier holes;preparation of pier holes (i.e., removal of loose cuttings from floor of 26 Initial Study at p. 19. 27 CEQA Guidelines,§ 15370. 28 Initial Study, at p.20; Gentry, supra, 36 Cal.App.4th at 1396. See discussion at Part IV.A,supra. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision(County File SD018533) Board of Supervisors March 21,2006 Page 52 pier prior to pouring concrete). The intent of the EIR mitigation measure was to provide performance-based criteria for the final geotechnical report. Comment #10: Hydrology and Water Quality. The Initial Study notes that the City of Richmond has submitted comments 1) that "identified existing water problems and landslides, as well as 'springs' within the Hilltop Green development," 2) that drainage through Hilltop Green is "barely manageable at present," and 3) that drainage from the project site will flow through Hilltop Green.29 Accordingly the City requested the County to prepare an EIR to analyzed downstream effects on drainage. The Initial Study first improperly attempts to shift the County's affirmative burden to affirmatively investigate such impacts to the City. CEQA does not allow the County to excuse itself from analyzing. the project's effects on the existing environment, which includes the existing, acknowledged drainage problems in Hilltop Green.'° The Initial Study then states that"[t]he problems experienced by Hilltop Green appear to be associated with deficiencies to the internal drainage structures.1131 The Initial Study's admission that drainage problems in Hilltop Green exist (whether due to "internal" problems or not) cannot be reconciled with its attempt in the very next sentence to dismiss drainage problems at Hilltop Green as only"public controversy"or"speculation." The Initial Study then goes on to admit that the drainage studies that were prepared by the County for the project only"evaluated the internal drainage system of the project and not the adequacy of downstream drainage facilities.'131 The Initial Study then notes that the applicant's drainage report, claiming that runoff from the site will be kept at pre- development levels, only analyzed a 25-year flood event. Perhaps recognizing the weakness of its own analysis, the Initial Study concludes by stating that changes will be required in the project "as part of the final design and plan review process" to "ensure that the project does not have an adverse effect on the reported downstream drainage inadequacies within the Hilltop Green project, Interstate 80, or any other downstream drainage facilities." As before, the Initial Study, has unlawfully deferred conducting an adequate investigation of the project's impacts on regional drainage, and alternatives and mitigation measures to reduce or avoid such impacts to "less-than-significant" levels, or establishing performance standards for such impacts, until after project approval. Staff Analysis: The EIR presents the applicant's project objectives on page 3-24. One objective reads as follows: 29 Initial Study, at p.23. 30 Pub. Resources Code, §§210160.5,21080,subd. (d). 31 Initial Study,at pp.23-24. 32 Initial Study, at p.24. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21,2006 Page 53 • To keep post-development runoff from the project site at/near the pre-development level for the design storm. The Revised Vesting Tentative Map that is the subject of the EIR is presented in EIR Figure 3-4. A hydrology report was submitted by the applicant that provided design criteria for storm water detention basins that would reduce peak flows from the site at the predevelopment level. The Hydrology and Water Quality chapter of the EIR provided review of the technical data and engineering analysis presented by the applicant's hydrologist. Hydrology impacts assessment and mitigation measures to reduce those impacts to less-than-significant are presented on pages 4.3-10 through 4.3-1.4. Key points may be summarized as follows: • The FEMA flood insurance maps do not indicate any flooding problem between the site and 1-80. The FEMA map for the City of Richmond that show the Hilltop Green project is identified as panel 015D (Revised September 7, 2001). There is no indication of inundation areas in Hilltop Green or along the Garrity Creek channels, and there is no evidence that the City of Richmond has.called the reported flooding problem in Hilltop Green to the attention of FEMA. • The West County Wastewater District identified a drainage problem in the Hilltop Green Project but they alsi reported the drainage problem has been corrected.. • The design storm for a watershed of 1 to 4 square miles by County Ordinance is the 25-year storm. A hydrology report, submitted by the applicant concludes that post- development flows can be kept at the predevelopment level. • The duty of the proposed 40-lot project is mitigate its drainage impacts and not to mitigate existing drainage problems in the 500-lot Hilltop Green subdivision. • The design of drainage improvements is subject to reviews and approval of the Public Works Department and the County Flood Control District and Water Conservation District. Comment#11: Land Use and Planning. The Initial Study recites General Plan Policy 10- 29: "Significant hillsides with slopes over 26 percent or more shall be considered unsuitable for types of development which require extensive grading or other land disturbances."" As previously noted, the Initial Study states that the project is proposed for areas that contains slopes greater than 26 percent, and will require extensive grading and other land disturbance. The Initial Study's claim that "compliance with Polic[y] . . . 10-29 [is] subject to interpretation" cannot be squared with case law making it clear that land use approvals must be vertically consistent with mandatory general plan policies. Regardless of the County's "practice" in the past, the fact remains that the General Plan forbids projects that require extensive grading on-hillsides of more than 26 percent. 33 Initial Study, at p.26,Table 9.(emphasis added). Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21,2006 Page 54 The Initial Study is defective because it fails to acknowledge that the proposed project is inconsistent..with mandatory policies in the general plan.` Moreover, the project cannot be approved as proposed because it is facially inconsistent with the County's mandatory general plan policies. Staff Analysis: The EIR reviews pertinent General Plan policies in Chapter 4.1. Safety Element policies, are also presented in EIR Chapter 4.4 (Geology and Soils). Also, please refer to C1-25 response In evaluating the volume of grading, the following points must be considered: • The project minimizes the use of graded pads. Instead, most residences are to closely conform with the natural terrain. • Roads in hillside areas of I necessity require grading to comply with the width and grade standards of the County Ordinance Code. The Vesting Tentative Map approach to control of grading is the use of retaining walls at three locations to minimize the "footprint"of earthwork. . A point not recognized by the commentor is that General Plan compliance is rarely, if ever, judged in a vacuum. There are Subdivision Ordinance provisions requiring a second access for this project,, Housing Element policies that encourage buildout of residentially-designated parcels;Conservation Element policies that call for protection of significant biological resources; etc. It is in this broader context that General Plan compliance will be determined. A project that is considered to be sensitive to the various planning and environmental constraints can be deemed to be consistent with the General Plan, even if it involves(limited)grading of slopes steeper than 26 percent. In the case of the SD018533, there are twelve�small, isolated areas possessing a natural gradient of 26 percent or more (see EIR Figure 3-8 for a Slope Map of the site). It is neither good land use planning ora prudent approach to protection of wildlife habitat to retain such areas as ungraded open space. The approach of the project is to a) construct residences that closely conform to existing topography, b) use 2%:1 gradients for engineered slopes, and c)provide integrated open space having more total acreage than the acreage of the site within the >26 percent category. Comment#12: Noise. As with construction-related air quality impacts,the Initial Study is completely devoid of any investigation of or limitations on construction-related noise impacts.35 The Initial Study fails to contain even the most basic noise control measures, such as limitations on hours of construction, that are included as a matter of course in most residential projects. As stated above, the County bears the affirmative burden under CEQA of at least considering the project's potential to have adverse noise effects on neighboring residents, and to propose mitigation measures or alternatives to mitigate 34 Initial Study, p.25(purporting to claim that conflicts with the County's General Plan are"Less Than Significant"). 35 Initial Study, p.28. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21,2006 Page 55 such impacts. Because the negative declaration fails to even recognize the potential for such impacts, it must be revised and recirculated for public review before the project can be approved." With regard to long-term noise impacts,the Initial Studyfreely admits that noise levels will increase as the number of residences in the area increases from one to forty.37 The Initial Study lists several new sources of noise emissions, including air conditioners, lawn mowing, and outdoor recreational use.38 But, the Initial Study makes no effort at all to quantify or analyze such impacts, and claims — with no factual support—that long-term noise impacts will be "less-than significant."39 The project cannot be approved until the County provides some factual basis for its determinations regarding noise impacts. StaffAnalysis: The EIR includes an evaluation of potential noise impacts in Chapter 4.9. Mitigation measures are provided to reduce noise impacts to less-than-significant. Comment #13: Mandatory Findings of Significance. As noted above, the deferral of investigation of the project's potential for landslides suggests that the project may have "substantial adverse effects on human beings." Unless and until this potential impact is adequately investigated and clearly mitigated to"less-than-significant"levels a mandatory finding of significance is required for the project based on its uncertain potential for impacts on humans."° StaffAnalysis: The EIR was scoped to evaluate abroad range of potential environmental impacts and fully responds to concerns of the commenter. Comment#14: Brown Act/Public Participation Concerns. Finally, our client is concerned about the difficulty they have encountered in accessing the documents that will be before the Planning Commission for its May 25, 2004 hearing. Our client is under the impression that the most recent staff report for this project will not made available to the public until afterthe Community Development Department's close of business on Friday, May 21, 2004. For all practical purposes,this means that the earliest the public might be able to access the County's staff report for the project is less than 48 hours before the Planning Commission's proposed action on the project. California's Brown Act generally requires that any writings that are made available to a majority or all members of a board shall be made available to the public without delay." It is unclear whether the staff report and other documents that will be before the Planning 36 CEQA Guidelines, § 15073.5,subd. (b)(1). 37 Initial Study, p.28. 3e Initial Study, pp.28-29. 39 Initial Study, p.28. 40 CEQA Guidelines, § 15065, subd. (d). I 41 Gov. Code, §54957.5, subd. (a). Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21, 2006 Page 56 . Commission have been provided to the Planning Commissioners. If they have, the Brown Act requires staff to grant the public immediate access as well. Beyond the Brown Act, the public process is impaired when relevant reports and information regarding a project are not provided for public review with adequate time to meaningfully consider and understand their content. Without adequate time for such review, the holding of a"public.meeting"becomes an empty symbolic event lacking public confidence or legitimacy. Especially in light of the well-known public concern and controversy over this project,fu 1 damental fairness—as well as due process concepts of "open governance"and "public accountability"—require that the public should be given a meaningful opportunity to review and respond to information that is provided to their elected or appointed decision-making officials. Staff Analysis: Delivery of documents was consistent with all legal requirements and County procedures. Comment #15: Conclusions. As stated at the beginning of this letter, the Initial Study prepared for the proposed project is legally inadequate. The Initial Study 1) fails to acknowledge several of the project's potentially significant impacts,2)defers the analysis of adverse environmental effects until after project approval, 3)defers the development of mitigation measures or alternatives until after project approval, 4) fails to establish meaningful performance standard for mitigation measures, 5) improperly places the burden on the public and other, agencies to identify the project's potentially significant adverse environmental effects, and 6) fails to make required, mandatory findings of significance with regard to impacts to human beings. Moreover, the project cannot be approved because it is inconsistent with the County's mandatory general plan policy prohibiting projects that require extensive grading on slopes exceeding 26 percent. The Planning Commission should also put over any final decision on the project to a later meeting, and continue the opportunity for further public comment until all of the documents and reports that are to be taken under consideration by the Commission have been provided to the public withI adequate time to allow those who are concerned about the project and its impacts to understand, and raise any concerns they may have about, the content of such information.1 46 Gov. Code, § 54957.5, subd. (a). Staff Analysis: The EIR prepared for the project responds to the concerns raised by the commentor. Comment #16: Conclusions. For the foregoing reasons, our client, Friends of Garrity Creek, opposes approval of the!project at this time. Our client also hereby incorporates by reference all prior comments that they and all other parties have submitted regarding the proposed project. Contra Costa County should not approve the proposed project until a revised mitigated negative declaration is prepared that demonstrates, based.on the "Whole" of the record before the County, that all of the .project's effects have been mitigated to "less-than-significant " levels, or until an EIR is prepared to analyze the project's remaining, potentially significant adverse environmental effects. Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21,2006 Page 57 Staff Analysis: The comments of the law firm of J. William Yeates are appreciated (The firm testified at the July 13, 2004 hearing on behalf of the appellants. They have subsequently withdrawn from this project, and have been replaced by Michael W. Graf). XIV. CONCLUSION The EIR prepared for the project,addresses the broad ranging concerns of the appellants and their representatives. It has not identified any impacts that cannot be reduced to a less than significant level by mitigation measures identified in the report. The staff recommendation builds upon those conditions associated with the Planning Commission approval. All of the mitigation measures have been incorporated into the recommended conditions of approval for the project;therefore there is no need for the Board to consider adoption of a Statement of Overriding Considerations. Staff is also recommending additional review of project design details before approval of the final map to address some inconsistencies and discrepancies among the application documents. The granting of some of the requested variances to the R-7 lot dimensions would be reasonable given the anomalylin the code-definition for average lot width that would otherwise penalize the project. However, other reconfiguration.is in order to avoid conflict with the need to maintain the basins and creeks. To accommodate these adjustments, the number of proposed lots should be reduced from 40 to a maximum of 39. XV. POSSIBLE ALTERNATIVE BOARD ACTIONS In the event that the Board isnot satisfied with the staff recommended.findings, several alternative actions could be considered. Those actions are described below where the Board under the following circumstances: • Is unable to make required findings for granting any of the requested or recommended variances to average lot width; • Finds that there are General Plan consistency or environmental concerns that have not been adequately addressed in the staff review; • Finds that there is new information that has not been adequately addressed by the EIR, and that needs to be reviewed before the Board certifies it as adequate. A. Unable to Make the Required Findings for Granting any Variance to R-7 Minimum Average Lot Dimension Standards If the Board is unable to make the required findings for granting the requested variances to minimum lot dimensions, the Board could deny all requested Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21, 2006 Page 58 variances to the minimum lot dimensions, and require full compliance with the R-7 minimum lot dimension standards. The effect of such a change would likely result in an even further reduction in the number of lots on the property. The Reduced Density Alternative site plan (Figure 5-4 in the Final EIR, pg. 245) depicts a plan that purports to meet all R-7 standards. That plan reduced the number of lots to . 37. If the Board were inclined to make this determination, then the conditions should be modified to: • Deny all requested variances to R-7 average lot width and lot depth requirements, and require that a revised site plan be submitted for the review and approval of the Zoning Administrator that demonstrates compliance with R-7 minimum lot area, depth, and average lot width requirements. The Board may consider imposing a different cap on the number of allowed lots by this action. However, if it were to consider a number less than what is necessary to comply with R-7 standards, the evaluation specified in Item B below should be made. B. Unable to Find Project Consistent with the General Plan without Modifications If the Board is unable to find the project as recommended by staff consistent with the General Plan, then the Board could consider necessary modifications that would allow for a plan consistency finding. Such modifications could include a reduction in the number of lots within the project beyond the reduction . recommended by staff (Max. 39 lots) in a manner that would allow the project to be found consistent with the General Plan. If the Board is so inclined to reduce the number of lots, then one way in which this might be done would be to base an approval on a reconfiguration of the site plan as described in Alternative 6 in the Final EIR,the Reduced Density Alternative(pp. 14—23). This alternative provides for a maximum of 37 residential lots. The Final EIR identified this alternative, together with the No Project Alternative, as the Environmentally Superior Alternatives (pp. 23 — 24). If the Board were inclined to require this design to be followed, then the Board should direct that the staff recommended conditions be modified .to base an approval on the Site Plan for Reduced Project Alternative on Figure 5-4, page 15 of the Final EIR, .for a maximum of 37 lots, and other characteristics of that alternative described on pages 14 — 19 of the Final EIR. This approach would build upon other review requirements and not substitute for the review requirements that are included in the staff recommendation, including the : - = i Continued Hearing on Appeal of CPC Approval of,a Residential Subdivision (County File SD018533) Board of Supervisors March 21,2006 Page 59 Preliminary Design Submittal. However, staff would recommend two modifications to following the Environmental Superior Alternative approach as conditions of approval: Roadway Improvements — On Site • Offer to dedicate a private access and utility easement over Royal Oaks Drive between Garrity Creek and Hilltop Drive.as well as the proposed "24- foot roadway easement" north of Lot 4 to the parcels south, west and east of the subject subdivision identified as "Alexandre", "Weaver", "Jalil", and ."Short" on the Tentative Map. No physical improvements to the 24-f6ot roadway easement are required. Stormwater Management and Maintenance: • In lieu of Stormwater Control Measure #5 in the Project Alternative, the applicant shall incorporate applicable"Best Management Practices"into the project design avid OMM subject to review and approval of the Public Works Department. C. New Information is found that has not been adequately addressed in the EIR and should be addressed before the Board considers certification of the EIR If the Board were to find that significant.new information needed to be added to the EIR before considering its certification, then the County would be required to recirculate a draft EIR. I Under provisions of Section 15088.5 of the State and County CEQA Guidelines, "information" can include changes in the project or environmental setting as well as additional data or other information. However, new information added to an EIR is not"significant" unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect (including a feasible project alternative) that the project proponents have declined to implement. "Significant new information" requiring recirculation include, for example, a disclosure showing that: (1) A new significant environmental impact would result from the project or from a new mitigation measure proposed to be.implemented. (2) A substantial increase in the severity of an environmental impact would result unless mitigation measures are adopted that reduce the impact to a level of insignificance. (3) A feasible project alternative or mitigation measure considerably different from others previously analyzed would clearly lessen the Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21,2006 Page 60 significant environmental impacts of the project, but the applicant declines to propose it. (4) The draft EIR was so fundamentally and basically inadequate and conclusory,lin nature that meaningful public review and comment were precluded. Recirculation is not required where the new information added to the EIR merely clarifies or amplifies or.makes insignificant modifications in an adequate EIR. Staff has received no substantial evidence that would suggest the need or justification for any revision or recirculation to the EIR. . i XVI. STATE LAW POTENTIALLY LIMITING PERIOD OF TIME FOR BOARD ACTION ON PROJECT Two provisions of State law may potentially limit the period of time in which the Board has to act on this appeal and project. A. Time Limit to Act on Appeal Following Closure of Appeal Hearing [Government Code i§ 66452.5 (c) & (d)1 The Board of Supervisors should exercise caution before closing the hearing on this appeal. State law regulates the period of time that local agencies may take in processing subdivision appeals. Once the Board closes the hearing, it may have only 10 calendar days in which to declare its findings based upon the testimony and documents produced before it or before the Planning Commission, or Zoning Administrator. The Board may sustain, modify, reject, or overrule any recommendations or rulings of the Planning Commission or Zoning Administrator and may make any findings which are consistent with thel provisions of the Subdivision Map Act or Subdivision Ordinance. If the Board of Supervisors fails to act upon an appeal within the time limit specified in the Subdivision Map Act, insofar as it complies with applicable requirements of the Subdivision Map Act and the Subdivision Ordinance, State law may require that the tentative map be deemed approved as last conditionally approved by the County Planning Commission, and that it may be the duty of the Clerk of the Board to certify or state that approval. B. Time Limit to Act on Proiect After Board Certifies its Adequacy (Government Code §§ 65950 (a)1(1) & 65952.11 Once the Board certifies the adequacy of the Environmental Impact Report Continued Hearing on Appeal of CPC Approval of a Residential Subdivision (County File SD018533) Board of Supervisors March 21,2006 Page 61 for this project, State law limits the time in which the Board must render either an approval or denial of the project to one hundred eighty (180) calendar days. G:\Current Planning\curr-plan\Staff Reports\SD018533BoardAppeal_Marchl2.doc I - i General Plan of the 6nincorporated EI S®brante Area le / / / /� •..i.l L j;!- CLI `j1\ j ` % ---r-'�--- F. + / 1-T!'S j 711,,j 'j, ;:\IL . LUILLI _ ,� ,�',:-i=1i fI �II--I '�� � I .// �`y. i,r .ti's' '�.yh^�? :�.• j //��+ ''�,/' •�� falXJI ' ,� (��\:(�` ' -rte•, �. 11�r *��;C���--i ��� I I ,�C��•h✓ - / -r L-U Lj Llam' �,� f i i i'III..: _�.�i ,Z�— -:.;1.-"`_-� r - '•' r rt�� \' ,�` � Tom,•\-,i�Li .�•\'%i�'• :� �i-.�i.y P,'`.�\\ —J '{ /\ /�. \ 1 ,t.__ _..�r;1'r 1 _tet y� \,/\\` �( C• IF , iiI P-P �L¢' �' t._� 1Ji--" I� t`-�! •moi � �`�� j�' , 1 51 _�-" "\� it l, \TV / •C�' :.;�`.\ /, y, r TT1 al . i' \\�:�i Vii:.�\\�\ ,v,�v/ `7 ' SL(Single Family Residential-Low) 0 MM (Multiple Family Residential-Medium) PS(Public/Semi-Public) SM(Single Family Residential-Medium) 0 MH(Multiple Family Residential-High) PR(Parks and Recreation) SH (Single Family Residential-High) CO(Commercial) OS (Open Space) ML(Multiple Family Residential-Low) OF(Office) AL(Agricultural Lands) I I N Feet a, E 0 750 1,500 3,000 ..�.rr,,.• ..,,,.<,m. +..w.��<. c...romc....c:. S Vicinity and Zoning of the Unincorporated EI Sobrante Area _ I �ry�fir- .;•--�.::i� R'C��--j--1�-_r� � ,- jU / \ I� •.� H, / \ _ .ALLt/IEW AVE 1•Z *Y�`/�� _I 2/ -T II i�.;..!_�..•1�.-�.��.. J"(, .�i I r' , '1\ / ,• VJ. /' .�\ TT -)' •�` '�r� 4 ' /Y. ,1 1 I b' , , 'tl ��i•,,� ry�j�7�i.,l.i 1 �i L f_ t.�-I I..-f__U ,t T r• - .. i��j, rn ���' , � �`,�-' , i l i �l i l l.L-._fit!r---i / �. F...�;- T-;'r.`-'•__��� J i�� v1v I I c� �• T hm n - __ / I ---y l ,"� � / \ �---� fly P -Text c ! I � moi. • ,` \ rHq -_T�i -y ,.l /,;'�,. �� �4" �\ � \ \,\� �11i1! Gam'/ / ' � -� /'• `• ,� Zoning Designations • N R-6, I----J R-15, M-29, R-B, R-7, D-1, . ' [ —� A-2, :;:,s ";' C, R-10, M-12, 0-1, P-1, Map created 1/15/2005 by Contra Costa County Community Development,GIS Group 651 Pine Street,4th Floor North Wing,Martinez,CA 94553-0095 R-12, :: M-17, N-B, T-1, 37:59:46.455N 122:06:35.364W This map was created by the Contra Costa County Community Development Department with data from the Contra Costa County GIS Program.This map contains Feet copyrighted information and may not be altered.It may be reproduced in its current state it the source is cited.Users of this map agree to read and accept the County of Contra Costa 0 750 1,500 3 000 disclaimer of liability for geographic information. 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N we Feet `. a'w"n.uuass..aass.auw mor:�o+w.wm�...�,erv.b n••.rmre�„�e.cw.�nd - s 0 235 470 940 LL Contra Costa Coicn Fire Protection District • 04 SEP 28 Ari 10: 06 Fire Chief September 20, 2004 KEITH RICHTER Contra Costa County Community Development Department 651 Pine Street, 4th Floor, North Wing Martinez, CA 94553 Attention: Darwin Myers Subject: SD01-8533; Hilltop Drive, El Sobrante CCCFPD Project No.: 110694 Dear Mr. Myers: We have reviewed the revised subdivision application to establish a 40-lot residential subdivision at the subject location. This project is regulated by codes, regulations, and ordinances administered by this Fire District. If approved by your office, the following shall be included as conditions of approval: 1. The developer shall provide an adequate and reliable water supply for fire protection with a minimum fire flow of 2000 GPM. Required flow shall be delivered from not more than 2 hydrants flowing simultaneously while maintaining 20 pounds residual pressure in the main. (903.3)CFC 2. The developer shall provide eight (8) hydrants of the East Bay.type. Hydrant locations will be determined by this office upon submittal of three copies of a tentative map or site plan. (903.4.2)CFC 3. Provide access roadways with all-weather driving surfaces of not less than 20 feet unobstructed width, and not less than 13 feet, 6 inches of vertical clearance, to within 150 feet of travel distance to all portions of the exterior walls of every building. Access roads shall not exceed 16% grade, shall have a minimum outside turning radius of 45 feet, and must be capable of supporting the imposed loads of fire apparatus i.e., 37 tons. (902.2)CFC Note: Access roads of,20 feet unobstructed width shall have approved NO PARKING signs posted or curbs painted red with the words "NO PARKING FIRE LANE" clearly marked. Roads 28 feet in width shall have approved NO PARKING signs posted, allowing for parking on one side only, or curb painted red with the words "NO PARKING FIRE LANE" clearly marked. Roads 36 feet in width allow for parking on both sides. 4. Dead end Fire District accessroads in excess of 150 feet long shall be provided with approved provisions for the turf ing around of Fire District apparatus. (902.2.2.4)CFC ❑ 2010 GEARY ROAD ° PLEASANT HILL, CALIFORNIA 94523-4694 ° TELEPHONE (925) 930-5500 ° FAX 930-5592 ❑ 4527 DEEF FIELD DRIVE ° ANTIOCH, CA ILIFORNIA 94531 ° TELEPHONE (925) 757-1303 ° FAX 754-8852 ❑ WEST COUNTY AREA TELEPHONE (510) 374-7070 i i CCC Community Development - 2 - September 20, 2004 CCCFPD No. 10694 5. The developer shall submit thrle copies of site improvement plans indicating fire apparatus access and turnaround area for review and approval prior to construction. (902.2.2.1) CFC Note: This may be the same submittal as the Hydrant locations if necessary. 6. Access roads and hydrants shall be installed, in service and approved prior to construction. (8704.1)CFC 7. Approved premises identification shall be provided. Such numbers shall contrast with their background and be readily visible from the street. (901.4.4)CFC 8. The homeowner shall maintains an effective firebreak by removing and clearing away flammable vegetation and combustible growth from areas within 30 feet of buildings or structures. (Appendix II-A, Section 16.1) CFC 9. Where open space is maintained for public or private use, the developer shall provide access into these areas from the public ways. These access ways shall be a minimum 16 feet width to accommodate Mire department equipment. All open spaces, when left in their natural state, shall meet the Fire District's weed abatement standards. I 10. Submit plans to: Contra Costa County Fire Protection District 2010 Geary Road Pleasant Hill, CA 94523 To schedule field inspections ind tests, call 925-941-3323. It is requested that a copy of the conditions of approval for the subject project be forwarded to this office when compiled by the planning agency. If you have any questions regarding this matter, please contact this office at 925-941-3300. Sincerely, Kevin Joell Fire Prevention Technician FILE: 10694b.1tr c: Brilliant Management, Inc. 114 Camino Pablo Orinda, CA 94563 Klemetson Engineering 1110 East 30 South Pleasant Grove, UT 84062 i i i i EXHIBIT 1 APPEAL LETTER i • El Sobrante Valley Planning & ! Friends of Garrity Creek & Zoning Advisory Committee Hilltop Neighborhood Association P.O. Box 20136 745 Renfrew Rd. El Sobrante, CA 94820 El Sobrante, CA 94803 June 17, 2004 CC County Board of Supervisors Hand Delivered 651 Pine St. - - Martinez, CA 94553 Re: Appeal of Planning Commission Decision on SD0I.-8533 r Dear Supervisors, On June 8, the Planning Commissioners approved a Mitigated Negative Declaration for this project (SDO1�-8533) and set a limit of 40 homes for the site. We feel that these decisions were based on flawed, incomplete, and overlooked information. The initial study fails to acknowledge several significant impacts. We incorporate, by reference, all written comments from Attorney Keith Wagner, Barbara Pendergrass for Friends of Garrity Greek & Hilltop Neighborhood Association and Eleanor Loynd for the El Sobrante Valley Planning & Zoning Advisory Committee. We are very concerned because the analysis of the adverse environmental effects and the development of mitigation measures were deferred until later and the burden of providing information on these significant adverse environmental effects was shifted to the public; • the applicant, and other agencies. That is unacceptable. In addition, we feel that the decision is not in compliance with the standards in the General Plan. The staff report states that the County slope protection policies can only be met with a reduction in the number of proposed units to 35. The Planning Commission ignored and/or overlooked this recommendation and approved 40 units for the site. Additional KEY POINTS: - 1. TRAFFIC: "The California courts have held that public testimony about noise or traffic impacts or topics that you may be personally familiar with (i.e., significant view along scenic highway) are substantial evidence of a project's significant impact."1 The testimony of numerous residents as to the heavy traffic on Hilltop Drive, especially during the commute time and the starting/ending of school as well as problems that people have backing out of their driveways should be considered as substantial evidence of this project's impacts. In addition, the County should have taken into account the current applications and homes under construction in the Appian Way/Hilltop area. The 10 homes being built off Renfrew Ct. and the 5 homes under review will add even more traffic to Hilltop Drive. An environmental impact report would address the cumulative affect. Reference: 1. Communitv Guide to the California Environmental Quality Act by J. William Yeates; ESQ.. Planning & Conservation League Foundation 2002. • • Appeal of SDO1-833 Paae 2 2. MARIN ROAD: The second access road to this property, Marin Road, is currently a substandard County road with no sidewalks or curbs. large pot holes, and is very narrow with no delineated sides. The road is currently a dead end, so steep that you cannot see the bottom part of the slope. It is like looking over the Grand Canyon. The Developer does not intend to make any improvements to this road nor has the County required him to do so ieven though he was required to improve the access road to one of his other projects with a similar, narrow entrance road. The lack of improvements to Marin Road poses a threat to all existing residents and to the new residents as well. 3. PARKS: There are no county parks in the El Sobrante area. The local planning advisory group has made it clear to Mr. Afshar since the first meeting that we want a tot lot or play area on site. If a park is not required, we ask that the County require the developer to pay $50,000 to $70,000 to the County Service Area R-9 Committee so they can partner with the school district, the EBRPD, or another entity to provide play structures. For your information, the developer of the County project; Appian Village, was required to pay $70,000 to CSA R-9 in lieu of a tot lot on that site. The developer of the Richmond 400 home project on Valley View at May Road will provide $50,000 to upgrade alneighborhood park rather than put a small park on that site. If no park is built on this site, Mr.Afshar should be required to pay money to offset the loss of the on-site park. • 4. LAND USE: The property is zoned R-7 even though it is in conflict with statements in the General Plan, item 10-28. We respectfully call your attention to these county slope protection policies from the General Plan Safety Element: 10-28 "Generally; residential density shall decrease as slope increases, especially above a 15% slope" and 10-29 "Significant hillsides with slopes over 26% or more shall be considered unsuitable for types of development which require extensive grading or other land disturbance". An EIR needs to be done to define which land is actually buildable. This development has slopes of 5 to 1 (20%), 4 to 1 (25%) and 3 to 1 (33 1/3%) as described in Mr. Afshar's own' geological report. 5. GEOLOGY: The Geological report goes on to say "Areas of the site to be built on or paved should be stripped to remove any surface vegetation, organic top soils, and existing debris. Stripping depths should be determined in the field by the Soils Engineer at the time of stripping but for planning purposes an average depth of 3 inches may be assumed." Taking every bit of vegetation and top soil, as recommended in the Geological Report, will significantly charge the visual nature of the land and provide a terrible dust problem for all residents. There is no provision in the plan to control the dust. This is in violation of CEQA law. Taking every bit of vegetation away will deprive the wildlife of their natural fo6d supply. i Appeal of SDOI-8533 Page 3 • Mr. Afshar's Orion Court Project (Renfrew Court project) has been bare dirt for a vear and a half and there is no indication that the Garrity Creek project will be any different. Again, the visual affect, the dust and loss of food for wildlife will have a substantial and destructive affect. Another reason for an EIR requirement. Contra Costa County's General Plan, section 8. Conservation Element 8-14, page 8-29 states that development on hillsides shall be limited to maintain valuable natural vegetation, especially forests and open space lands, and to control erosion. 8-15 Existing vegetation,lboth native and non-native, and wild life habitat areas shall be retained in the major open space areas sufficient for the maintenance of a healthy balance of wild life populations. 8-24 The County shall strive to identify and conserve remaining upland habitat areas which are adjacent to wetlands and critical to the surviving and nesting of wetland species. NATURAL SPRING: Lot 29 contains a natural spring and riparian area. The current plan is to build a home on the site and have the homeowner be responsible for the riparian area and spring. In addition, a sewer line is planned on the lot. One Commissioner pointed out, in the Planning Hearings, that in order to protect this riparian area, you cannot have an individual homeowner responsible for the area. The lot should be owned and maintained by the Homeowners Association's by laws. DRAINAGE PROBLEMS IN HILLTOP GREEN: There have been slides and flooding in the Hilltop Green area which is a 500 homes subdivision located next to Afshar's project. Hilltop Green is below the Afshar project and all water will drain to that area. At this time, the County has no information on the adequacy of the Hilltop • Green Drainage system to contain the drainage from the Afshar project. County staff has required the applicant toget that information and provide it to them at some future time, after the project approval. GARRITY CREEK VIDEO: We urge the County Board of Supervisors to allow us to show you our video of Garrity Creek. CONCLUSION: We concur with the statement of our attorney Keith Wagner of the law office of J. William Yeates, that the initial study prepared for this project is legally inadequate. For these stated reasons, the El Sobrante Valley Planning & Zoning Advisory Committee, the Friends of Garrity Creek, and the Hilltop.Neighborhood Association appeal the Planning Commission decisions on SD01-8533 to the Board of Supervisors. We feel that a full Environmental Impact Report should be required to provide complete and documented evidence of the impacts and mitigation measures needed to deal with environmental impacts, including the size of the project. Contacts: Eleanor Loynd at 510-223-6398 for the ESVP&ZAC. Barbara Pendergrass at 223-6091 for the Friends of Garrity Creek/Hilltop Neighborhood Asso. Sincerely, -EI Sobrante Valley P&Z Adv.Committee Friends of Garrity Creek Hilltop Neighborhood Association • i Anneal of SDO1-8533 Pate 4 Attachments: 1. Comments on the Environmental Checklist for Sub 8533, CDD File 4 SDO1-8533 from Keith Wagner, Attorney jwith Law Office of J. W. Yeates. 5/21/04 2. Comments on Negative Declaration for Sub 8533 from Friends of Garrity Creek/Hilltop Neighborhood Association. 11/17/03 3. Comments on Mitigated Negative Declaration for Sub 8533 from El Sobrante Valley Planning & Zoning Advisory Committee with attachments 5/25/04 4. Community Guide to The California Environmental Quality Act by J. William Yeates, ESQ. Planning and Conservation League Foundation 2002. cc: Supervisor John Gioia Assemblywoman Loni Hancock Ruby Molinari E. S. M. A. C. Howard Sodja, E. S. Greens E. S. Chamber of Commerce Hilltop Green HOA Elizabeth O'Shea, Spawners E.S. CSA R-9 Committee Sierra Club-West County Group E.S. Valley Legal Defense Fund May Valley Neighborhood Council • I i ATTACHMENTS: 1. Comments on the Environmental Checklist for Sub 8533, CDD File 4 SDO1-8533 from Keith Wagner, Attorney with Law Office of J. W. Yeates 5/21/04 2. Comments on Negative Declaration for Sub 8533 from Friends of Garrity Creek/Hilltop Neighborhood Association 11/7/03 3. Comments on Mitigated Negative Declaration for Sub 8533 from El Sobrante Valley Planning & Zoning Advisory Committee with attachments 5/25/04 4. Community Guide to The California Environmental Quality Act by J. William Yeates, ESQ. Planning and Conservation League Foundation 2002. • • i 1 '� 1 1 � 1 1 1 1 1 1 1 1 1 1 1 1 • 1 1 1 1 1 1 1 1 1 1 1 1 � 1 i L.\W OFFJCR OF J. WILLIAM YEATES 80021 CALIFORNIA AVENUE • FAIR OAKS, CALIFORNIA 95628 TELEPHONE: (916) 860-2000 FACSIMILE: (916) 860-2014 MARYU.ARENS WILLIAMYEATES infoenviroquaIityIaw.com KEITH G.WAGNER May 21, 2004 Mr. Darwin Meyers Project Planner Contra Costa County Community Development Dept. 651 Pine St., 4th Floor, N. Wing Martinez, CA 94553 Re: Comments on Environmental Checklist for Subdivision 8533, CDD File # SD018533 (Oct. 20, 2003). Dear Mr. Meyers: I This letter, on behalf of our client, Friends of Garrity Creek, provides comments on the initial study that the County has prepared for the above referenced project pursuant to the California Environmental Quality Act("CEQA"i).' These comments are submitted for your and the Planning Commission's consideration► "prior to the close of the public hearing on the project before the issuance of the notice of determination."2 These comments are in addition to, and do not in any way replace or supersede, any prior comments submitted by our client regarding the proposed project. The California Environmental Quality Act (CEQA) requires a lead agency to prepare an environmental impact report(EIR) whenever substantial evidence in the record supports a"fair argument"that a proposed project may have a significant adverse impact on the environment.; "[S]ubstantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact."4 A mitigated negative declaration, rather than a full EIR, may be approved for a project only if 1) revisions in the project, before release of the initial study for public review, will clearly avoid or mitigate effects beyond significance,and 2)there is no substantial evidence, in light of the whole record, that the revised project may have a significant impact on the environment.5 i Pub. Resources Code, § 21000 et se q. 2 Pub. Resources code, § 21177, subds. (a)and (b). 3 See Pub. Resources Code, §§ 21080, subd. (d), 21082.2, subd. (d); Cal. Code Regs., tit. 14, ch. 3 ("CEQA Guidelines"), § 15064, subd. (f)(1);No Oil, Inc. v. City of Los Angeles(1974) 13 Ca1.3d 68, 75 (stating that CEQA "requires the preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact."). 4 Pub. Resources Code, § 21080, subd. (e)(1). 5 Pub. Resources Code, §§ 21064.5, 21080, subd. (c)(2). 7 Mr. Darwin Meyers May 21, 2004 Page 2 of 9 iAs plainly stated by California's Court of Appeal, "if substantial evidence in the record supports a `fair argument' significant impacts or effects may occur, an EIR is required and a negative declaration cannot be certified.,,6 California case law also makes it clear that a mitigated negative declaration cannot be approved if it relies on mitigation measures that have not been formulated at the time of project approval. The proposed project cannot be approved at this time, because the initial study that has been prepared by the County is legally inadequate. As the following discussion demonstrates, the information that is contained in the in study is inadequate to support a determination that all of the proposed project's potentially significant, adverse environmental effects have been clearly avoided, or mitigated to a"less-than-significant" level. According])', the proposed project cannot be approved until, at the very least, a revised environmental document is prepared for the County's consideration. 1. AESTHETICS The County's initial study acknowledges that the proposed project, which proposes to build 40 lots on a steep, 10-acre hillside; "will substantially change the visual character of the site as viewed from lots in the adjacent neighborhood."9 But the initial study then goes on to opine that the project "could fairly be considered `infill' development."10 No substantial evidence is cited to support this conclusory opinion. The initial study then states that a"well planned project that protects the channel of Garrity Creek land which complies with the standards/requirements of the • CDFG, RWQCB and Corps of Engineers, will not substantially degrade the existing visual character of the site."' No substantial evidence supports the County's conclusory statements that the project will not have significant, adverse aesthetic impacts. First, whether or not the site is "planned for residential development" is not responsive to CEQA's requirement that change to the existing environment be analyzed.' Second, none of the agencies cited in the initial study are 6 Quail Botanical Gardens v. City of Encinitas(1994) 29 Cal.App.4th 1597, 1601-02. See Gentry v. City of Murrieta(199 ) 36 Cal.AppAth 1359, 1396 (holding that adoption of mitigation measures is improperly deferred where City's mitigated negative declaration reserved the right,after project approval, to require a study of affected , listed species and compliance with mitigation measures that might be recommended by the study); Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 306-314 (holding that county cannot rely on other agencies' ability to subsequently deviise means of avoiding project's potentially significant impacts). 8 Pub. Resources Code, §§ 21064.5; 21080. subd. (c). 9 Contra Costa County Community Development Dept., Environmental Checklist Form, Project Title: Subdivision 8533, CDD File# SD018533 (Hillview) (Oct. 13, 2003) (hereinafter"Initial Study"), at p. 5. 10 Initial Study,at p. 5. The project consists of 15-30 percent slopes. (Initial Study, at p. 6.) 11 Initial Study, at p. 5. '' Environmental Planning and Information Council v. County of EI Dorado(1982) 131 • Cal.App.3d 350, 355. i i Mr. Darwin Meyers May 21. 2004 Page 3 of 9 responsible for aesthetic impacts, and so complying with these agencies' standards and requirements regarding 1) wildlife mitigation.2)water quality protection, or 3)wetland mitigation will not clearly ensure that the project will have no aesthetic impacts. On its own terms; the initial study declares that the project will result in substantial changes to the visual character of the area. Unless and until specific and identifiable changes are incorporated into the project that will clearly reduce such substantial changes beyond significance, the project may not be approved based on a negative declaration. II. AIR QUALITY The mitigated negative declaration acknowledges that the project may have both short-term air quality effects associated with constr I uction' and long-term air quality effects.associated with commute trips. Rather than quantify or analyze these effects in any way, the initial study states that the Bay Area Air Quality Management District has elected not to respond to the initial study. Again, no substantial evidence in the record supports the initial study's conclusion that the project clearly will have no significant , adverse short- or long-term air quality effects. The lack of comment from BAAQMD's is not substantial evidence that the project will not have adverse effects on air quality. As just one example, other parts of the initial study make it clear that substantial movement of earth and grading will be required to carry out the proposed project.13 But not a single mitigation measure ids proposed to control fugitive dust associated with such • earth movement and grading. Construction-level mitigation measures that are typically included in residential construction projects of this type as a matter of course include covering filled truck beds,wetting or seeding disturbed areas depending on length of exposure, and monitoring weather conditions. The initial study also fails to address all other construction related air impacts, including; but not limited to diesel particulate and volatile organic emissions. Put simply, absence of evidence is not evidence of absence. Under CEQA,the burden of environmental review and investigation is on the lead agency.14 At the least, the initial study must be revised to acknowledge that!potentially significant air quality impacts may exist and to. incorporate measures that will clearly avoid such impacts or reduce them to less than significant levels. Since the initial study entirely fails to investigate, let alone identify, potentially significant impacts related to air quality, any revised initial study with corresponding mitigation measures would also have to be recirculated for public review and comment before the project can be approved.15 The agency cannot hide behind its utter failure to gather any air quality data, and must, at the very least,take the affirmative steps necessary to engage in a meaningful evaluation of the direct, indirect and cumulative air quality impacts that the project may have.16 13 Initial Study, at pp. 15-20 (noting requirement of substantial grading and presence of highly erosive soils 15 Cf. Mountain Lion Foundation v. Fish and Game Commission (1997) 16 CalAth 105, 134. is CEQA Guidelines, § 15073.5, subd. (b)(1). • 16 Sundstrom, supra, 202 Cal.App.3d at 311. Mr. Darwin Meyers May 21, 2004 Page 4 of 9 • II1. BIOLOGICAL RESOURCES The initial study attempts to re-characterize the project's biological and other impacts in a last minute"peer review" by Monk and Associates that purportedly summarizes the various biological reports that have been submitted to date.'7 Because the standard of review for a mitigated negative declaration is whether substantial evidence in the whole record supports a "fair argument" that the project may have significant adverse effects, the Monk and Associates "peer review" cannot be relied upon to negate or discount the actual substantial evidence in the underlying studies and reports indicating that the project may, in fact, have significant, adverse effects on biological and other resources that have not been mitigated to"less-than-signif cant" levels.is In addition, our client and other members of the public have also submitted numerous questions and comments raising a"fair argument" that the project may have significant, adverse biological impacts that are not adequately addressed in the initial study. This letter hereby incorporates by reference, and re-raises as substantive objections, all such comments. IV. GEOLOGY AND SOILS A. LANDSLIDE/SLOPE STABILITY The initial study acknowledges that the project is located on "expansive soil, . . . creating substantial risk to life or property[.]"j9 The initial study claims that such impacts will be "less- than-significant" with mitigation incorporated. However,the mitigation measures proposed to reduce such impacts to insignificance relies on the post-approval preparation of an "Updated Geotechnical Report and Remediation Plan" that will include "additional subsurface exploration and evaluation of slope stability."20 The initial study violates CEQA because it defers meaningful.evaluation of the project's impacts with regard to landslides and slope stability until well after the project is approved.'` This deferral is particuiarly troublesome in light of CEQA's requirement of a mandatory finding of si2iiif cance for any potential project impacts that ,Tray result in "substantial adverse effects on 1"l u mn ' an. d,,, beings." it the potential exists that grading permits cannot be issued for the project due tv it?i'.tiqi Lha. infvrinaiiijii Siv�»ld - »�`� �» 1 EST'= ..._ UT 3 . - _ } uiSCivSEu to the puuiiC uejvic" pru^jECtinpplu'vai. i B. EROSION AND SEDIMENTATION ges tiia. tli� ��_. .. _ »S _ :.._ ... -. .. uiiprvtECtcu 8,upES, ai",u UMVI-1,S,Ope Sculmentatior. t;vt„ ..- ai,u vii.-mite. in order to onket I% W itial Stud'. at p. 10. is Pub. Resources rode, §§ 21050, sl bd. (d), 21082.2, s.ibd. (d). '9 Initial Study, at p. 15 (response VI D.). `0 Initial Study; at p. 1.1. Gentry, supra, 36 Cal.App.4th at 1396. 22 CEQA Guidelines, § 15065, subd..(d). 23 Initial Study, at p. 18. i Mr. Darwin Meyers May 21, 2004 Page 5 of 9 short-term erosion impacts associated with construction,the initial study requires the applicant to submit an erosion control plan prior to obtaining a grading permit.24 However,no specific performance standards are included, either directly or by reference, in the initial study indicating how the effectiveness of the applicant's erosion control plan will be measured to ensure that the project's admitted, potentially significant erosion impacts will be mitigated to "less-than- . significant" levels.1.5 Again, the deferral of the development of such plans until after project approval violates CEQA. In addition, the initial study claims that long-term erosion impacts will be mitigated by "incorporat[ing] the appropriate design, construction and continued maintenance of one or more" proposed long-term measures,but again, fails to establish any performance standards that clearly indicate that erosion will be reduced to "less-than-significant" levels by incorporation of any or all of the proposed measures.26 Moreover, one of the proposed long-term mitigation measures simply states that"[c]oncentrated runoff shall not be permitted to drain over cut or fill slopes. � This is a normative statement, it is not a mitigation measure.28 The initial study might as well announce that"rain exceeding 1/2 inch in any twenty-four hour period shall not be permitted to fall on the project site." The unanswered CEQA question is, what specific changes will be made in the project to ensure that runoff will not drain over cut or fill slopes, whether "permitted" or not? C. )EXPANSIVE SOILS AN6/OR BEDROCK - I As with the discussion of landslides and slope stability, the initial study admits that expansive soils may result in potentially significant adverse environmental effects, but improperly defers the preparation of an "Updated Geotechnical Report" to describe such impacts and to PC alternatives or mitigation measures to offset such impacts until after project approval.`9 i V. HYDROLOGY AND WATERMUALITY The initial study notes that the City of Richmond has submitted comments 1) that"identified existing water problems and landslides, as well as `springs' within the Hilltop Green development," 2)that drainage through Hilltop Green is "barely manageable at present," and 3 that drainage from the project site will flow through Hilltop Green.30 Accordingly the City requested the County to prepare an EIR to analyzed downstream effects on drainage. 24 Initial Study, at p. 19. 25 Sacramento Old City Association i. City o f Sacramento("SOCA") (1991) 229 Cal.App.3d 1011, 1029. 26 SOCA, .supra, 229 Cal.App.3d at l 029. 27 Initial Study at p. 19. 28 CEQA Guidelines, § 15370. 29 Initial Study, at p. 20; Gentry, supra, 36 Cal App.Ath at 1396. See discussion at Part IV.A, supra. 30 Initial Study, at p. 23. I Mr. Darwin Meyers May 21, 2004 Page 6 of 9 The initial study first improperly attempts to shift the County's affirmative burden to affirmatively investigate such impacts to the City." CEQA does not allow the County to excuse itself from analyzing the project's effects on the existing environment, which includes the existing, acknowledged drainage problems in Hilltop Green.32 The initial study then states that"[t]hle problems experienced by Hilltop Green appear to be associated with deficiencies to the internal drainage structures."33 The initial study's admission that drainage problems in Hilltop Green exist (whether due to "internal" problems or not)cannot be reconciled with its attempt in the very next sentence to dismiss drainage problems at Hilltop Green as only"public controversy" or`'speculation." The initial study then goes on to admit that the drainage studies that were prepared by the County for the project only"evaluated the internal drainage system of the project and not the adequacy of downstream drainage facilities."34i The initial study then notes that the applicant's drainage report, claiming that runoff from the site will be kept at pre-development levels, only analyzed a 25-year flood event. Perhaps recognizing the weakness of its own analysis, the initial study concludes by stating that changes will be required in the project"as part of the final design and plan review process" to "ensure that the project does not have an adverse effect on the reported downstream drainage inadequacies within the Hilltop Green project, Interstate 80, or any other downstream drainage facilities." As before, the initial study, has unlawfully deferred conducting an adequate investigation of the project's impacts on regional drainage, and alternatives and mitigation measures to reduce or avoid such impacts to "less-than-significant" levels, or establishing performance standards for such impacts, until after project approval.35 VI. LAND USE AND PLANNING The initial study recites General Planl Policy 10-29: "Significant hillsides with slopes over 26 percent or more shall be considered unsuitable for types of development which require extensive grading or other land disturbances."3 As previously noted, the initial study states that the project is proposed for areas that contains slopes greater than 26 percent, and will require extensive grading and other land disturbance. The initial study's claim that"compliance with Policy] . . . 10-29 [is] subject to interpretation" cannot be squared with case law making it clear that land use approvals must be vertically consistent with mandatory general plan policies.37 Regardless of the County's"practice" in the 31 Sundstrom, supra, 202 Cal.App.3di at 311. 32 Pub. Resources Code, §§ 21060.55 21080, subd. (d). 33 Initial Study, at pp. 23-24. 34 Initial Study, at p. 24. 35 Gentry, supra, 36 Cal.AppAth at 1396: Sundstrom, supra, 202 Cal.App.3d at 311. 36 Initial Study, at p. 26,Table 9 (emphasis added). 37 Families Unafraid to Uphold Rural El Dorado Countv v. Board of Supervisors ("FUTURE") • (1998) 62 Cal.AppAth 1332, 1341-1342. Mr. Darwin Meyers May 21, 2004 Page 7 of 9 past,the fact remains that the General Plan forbids projects that require extensive grading on hillsides of more than 26 percent. The initial study is defective because it fails to acknowledge that the proposed project is inconsistent with mandatory policies iin the general plan.38 Moreover, the project cannot be approved as proposed because it is facially inconsistent.with the County's mandatory general plan policies. VII. NOISE As with construction-related air quality impacts, the initial study is completely devoid of any investigation of or limitations on construction-related noise impacts.39 The initial study fails to contain even the most basic noise control measures, such as limitations on hours of construction, that are included as a matter of course in most residential projects. As stated above, the County bears the affirmative burden under CEQA of at least considering the project's potential to have adverse noise effects on neighboring'residents, and to propose mitigation measures or alternatives to mitigate such impacts.! Because the negative declaration fails to even recognize the potential for such impacts, it must be revised and recirculated for public review before the project can be approved.40 With regard to long-term noise impacts, the initial study freely admits that noise levels will increase as the number of residences in the area increases from one to forty.41 The initial study lists several new sources of noise emissions, including air conditioners, lawn mowing, and outdoor recreational use.42` But, the initial study makes no effort at all to quantify or analyze such impacts, and claims—with no factual support—that long-term noise impacts will be"less- than-significant."43 The project cannot be approved until the County provides some factual basis for its determinations regarding noise impacts. VIII. MANDATORY FINDINGS OF SIGNIFICANCE I As noted above, the deferral of investigation of the project's potential for landslides suggests that the project may have "substantial adverse effects on human beings."44 Unless and until this potential impact is adequately investigated and clearly mitigated to "less-than-significant" levels a mandatory finding of significance is required for the project based on its uncertain potential for impacts on humans.45 . 38 Initial Study, p. 25 (purporting to cllaim that conflicts with the County's General Plan are "Less Than Significant"). 39 Initial Study, p. 28. 40 CEQA Guidelines, § 15073.5, subd. (b)(1). 4' Initial Study, p. 28. 42 Initial Study, pp. 28-29. 43 Initial Study,p. 28. 44 See discussion at Part IV.A, supra. 45 CEQA Guidelines, § 15065, subd. (d). i Mr. Darwin Meyers May 21, 2004 Page 8 of 9 IX. BROWN ACT/PUBLIC PARTICIPATION CONCERNS Finally, our client is concerned about the difficulty they have encountered in accessing the documents that will be before the Planning.Commission for its May 25, 2004 hearing. Our client is under the impression that the mostirecent staff report for this project will not made available to the public until after the Community Development Department's'close of business on Friday, May 21, 2004. For all practical purposes, this means that the earliest the public might be able to access the County's staff report for the project is less than 48 hours before the Planning Commission's proposed action on the project. California's Brown Act generally requires that any writings that are made available to a majority or all members of a board shall be made available to the public without delay.46 It is unclear whether the staff report and other documents that will be before the Planning Commission have been provided to the Planning Commissioners. If they have, the Brown Act requires staff to grant the public immediate access as well. Beyond the Brown Act, the public process is impaired when relevant reports and information regarding a project are not provided for public review with adequate time to meaningfully consider and understand their content. Without adequate time for such review, the holding of a "Public meeting"becomes an empty symbolic event lacking public confidence or legitimacy. Especially in light of the well-known public concern and controversy over this project, fundamental fairness—as well as due process concepts of"open governance" and"public accountability"—require that the public should be given a meaningful opportunity to review and respond to information that is provided to their elected or appointed decisionmaking officials. X. CONCLUSION As stated at the beginning of this letter, the initial study prepared for the proposed project is legally inadequate. The initial study 11) fails to acknowledge several of the project's potentially significant impacts, 2) defers the analysis of adverse environmental effects until after project approval, 3) defers the development of mitigation measures or alternatives until after project approval, 4) fails to establish meaningful performance standard for mitigation measures, 5) improperly places the burden on the public and other agencies to identify the project's potentially significant adverse environmental effects, and 6) fails to make required, mandatory findings of significance with regard to impacts to human beings. Moreover, the project cannot be approved because it is inconsistent with the County's mandatory general plan policy prohibiting projects that require extensive grading on slopes exceeding 26 percent. The Planning Commission should also put over any final decision on the project to a later meeting, and continue the opportunity for further public comment until all of the documents and reports that are to be taken under consideration by the Commission have been provided to the public with adequate time to allow those who are concerned about the project and its impacts to understand, and raise any concerns they may have about, the content of such information. 46 Gov. Code, § 54957.5; subd. (a). Mr. Darwin Meyers May 21, 2004 Page 9 of 9 • For the foregoing reasons, our client,Friends of Garrity Creek, opposes approval of the project at this time. Our client also hereby incorporates by reference all prior comments that they and all other parties have submitted regarding the proposed project. Contra Costa County should not approve the proposed project until a revised mitigated negative declaration is prepared that demonstrates,based on the"whole" of the record before the County,that all of the project's effects have been mitigated to "less-than-significant" levels, or until an EIR is prepared to analyze the project's remaining, potentially significant adverse environmental effects. Sincerely. /signed/ Keith Wagner • Ili �. • �� • � Friends of Garrity Creek Hilltop Neighborhood Associatio November 17, 2003 • Community Development Department - Attention: Mr. Darwin Myers County Administration Building -651 Pine Street, 4"' Floor, North Wing Martinez CA 94553-0095 Dear Mr. Myers, We are submitting these comments in compliance with the November 24, 2003 deadline for public comment on SD 01-8533, and may amend or expand them if the comment period is extended (as we have requested in our letter of November 17, 2003, based on the fact that notification does not appear to have been made in compliance with the California Environmental QualityllAct page 9D.) We strongly oppose your recommendation of a Mitigated Negative Declaration. Even with the proposed mitigations; there is substantial evidence that the proposed project may have a significantl effect on the environment, thus requiring preparation of an Environmental Impact Report (EIR) for the proposed project prior to approving or carrying out the project. Your recommendation shows insufficient consideration of the many issues that we and other concerned organizations and individuals have brought to your attention through a number of previous letters, petitions, and meetings. As you are aware, an EIR has been requested in writing by the Richmond City Council, EI Sobrante Planning and Zoning Advisory Committee, Urban Creek Council, Friends of Garrity Creek, Hilltop Green Homeowners Association, and the Hilltop Neighborhood Association. In addition, hundreds of individuals have signed.petitions sent to your office in opposition to this development. Many significant issues have been raised in the course of numerous letters to your office and meetings with you, including: • Floodinci in the area —including in the Manor Drive and Hilltop Green areas. Your study states that no flooding 1probiems are known to FEMA between this site and interstate 80. in fact, FEMA paid $160,000, to address flooding problems in Hilltop Green (see attached letter, May 19, 1998). This was not a permanent fix to the problem. Solutions are needed before any development aggravates existing flooding problems. (See attachment, Notice of Interest to FEMA for Improvements to Garrity Creek from 1-80 to Blume Drive, cost$521,125 • Traffic problems—existing bottleneck and safety problems will be exacerbated. Your study greatly underestimates traffic impact by estimating only two trips generated per day. A higher number is certainly more accurate in an area such as this with only limited public transportation. The additional traffic on Hilltop Drive could be crippling. Heavy traffic problems on Hilltop Drive, particularly at school drop-off and pick-up times, and commute times, liave resulted in two significant accidents of which we are aware just in the last two weeks, occurring on Hilltop Drive between Pebble and Renfrew Road intersections.. We are sure that traffic records would indicate many more collisions. Residents report that Hilltop is a heavily traveled two-lane street which is already over capacity at peak hours, even without the additional traffic that 40 more homes would bring. Another intersection at the proposed "Royal Oaks Drive"would further choke this street, without adding any capacity. Although a left- Page 1 of 9 . hand tum lane had been discussed, your notice does not include this lane or any signal lights. • Unsuitability of the site for development—.studies provided have misrepresented • or not completely studied thi's slide-prone area. Your study states that the April 2001 report from AMSO on geology and soils doesn't require updating because the number of homes was reduced from 44 homes to 40 homes. The AMSO report is inadequate in that: The report mentions only three of the five parcels, and therefore does need to be updated to include all five parcels. The developer has changed the design of the project twice since that report was released. Relevant changes include construction on the very steep area at the end of Marin Road. No provision is made in your study for possible slides or damages to homes on Marin Road. The AMSO report states that bedrock was not located when holes were bored, but the existence of bedrock was "assumed" by them. Boreholes should be drilled to the depth necessary to prove the existence and depth of bedrock below proposed home foundations. If the County approves existing plans without 1) proof of the location of bedrock and 2) incorporating appropriate engineering for the actual conditions, the County risks legal liability for any homes in or surrounding the proposed development that are damaged by future landslides. • Adverse effect on the environment and wildlife-elimination of habitat is not acceptable. This project proposes to take 10.09 acres of slide-prone land now providing a habitat to diverse wildlife, and replace that habitat with asphalt, concrete, and homes. Every bit of surface dirt, every blade of grass will be graded or removed. A neighborhood already beset with flooding, traffic and infrastructure problems will be further stretched, perhaps to the breaking point. To describe such a project as having no significant environmental impact is a complete misrepresentation of common sense and fact. • Requirements of CEQA itself— substantial evidence DOES exist that the project may have a significant effect on the environment. CEQA requires that"a lead public agency must prepare an environmental impact report whenever a discretionary project `may have a significant and adverse physical effect on the environment."' Our group and others have provided a great deal of significant environmental impact, which has not been sufficiently addressed by your proposed mitigated negative declaration. An Environmental Impact Report must be prepared that adequately addresses the potential significant environmental effect. Your Notice mentions variances requested for retaining walls, lot size, and protected trees. If you are implying that these variances are acceptable, please explain your reasoning. Our response to each of your points follows: I. Aesthetics You indicate less than significant impact to Aesthetics, including scenic vista, scenic resources, degradation of visual character, and creation of substantial light or glare. We strongly disagree. There is no question but that the aesthetic impact will be severe. The site is a beautiful hilly open area with a lovely and thriving creek area at the bottom, supporting a diversity of wildlife. It is currently undeveloped, used by wildlife as well as a path for neighborhood)school children to access schools and a nature study Page 2 of 9 area by neighborhood teachers and classes. It is adjacent to surrounding properties used for horses and other farm animals. Certainly removing all existing trees and vegetation, and replacing them with rooftops and pavement, will have a substantial impact on the visual character and quality of the site and surrounding areas. The crowding of human habitation will wipe out wildlife habitats and pose danger to neighboring horses and farm animals. Il. Agricultural Resources— no comment at this time. III. Air Quality—the addition of 40 homes complete with fireplaces in this steep canyon will unquestionably negatively impact the air quality in the area, already at risk due to proximity to Highway 180. Smoke from fireplaces is likely to be concentrated in the immediate area, which is surrounded by steep ridges. IV. Biological Resources—you have indicated that impact will be less than significant with mitigation, based in part on is report from the firms LSA and Woods. LSA should not be considered a credible source. As we mentioned in a previous letter, their report on the Clark Road project in EI Sobrante has been shown to have left out over 25 out of 32 seeps and streams, much wildlife and habitat, including a landmark cypress tree estimated at 120-160 years old. It is obvious that grading and removal of all vegetation on the site will have a severe negative effect on the habitat and wildlife in the area. Please refer to our previous communications on this subject. Mitigation that only avoids work disruptive to nesting birds during nesting season IS NOT ADEQUATE. This does not address the removal of habitat, not only of • birds but other wildlife. Lot 29 is mentioned as having evidence of"groundwater seepage". In fact, this is a natural year-round spring that feeds the creek and a riparian area. This site is completely inappropriate for any development other than creek and riparian conservation. An earlier map in your files lists lot.29 as all riparian prior to mitigation mentioned in your negative declaration.. This project plans to place a creek which is now partially in a natural state into culverts. This is clearly a severe negative environmental impact, as well as a highly questionable practice for containment of flooding. We.are opposed to the proposed fence in that it prevents animals from having access to wildlife corridors and to fresh water, and lessens the likelihood that the creek area can be preserved an maintained by restricting access. Simply putting the creek behind a fence without access invites creation of a dumping ground. How will this creek be maintained and conserved under this proposal? V. Cultural Resources - your study finds "less than significant impact" by the project in this area with mitigation, based on the archaeological report submitted by Pacific Legacy Inc., April 28, 2001. This report is inadequate in that: • The report excluded one out of the five parcels that constitute the proposed site. • The report did not include study of significant areas. • The report did not includel study of steep slope areas. Page 3 of 9 Pacific Legacy Inc. confined their observations to walking "zigzag" in areas with less than 30% slope on four of the five parcels. The excluded parcel (#426192-008, 2.08 acres) contains a natural year-round spring that feeds Garrity Creek. Such a spring is a likely gathering place for native peoples seeking fresh water, and therefore likely to contain evidence of their history. The report further states that blackberry bushes obscured the creek banks, preventing them from closer observation. Creek banks are again a likely place for cultural artifacts, as are areas high on a steep hill with a good overlook for hunting or observation. The report states that six prehistoric sites have been recorded within a mile of the proposed site. One historic resource, the farm complex, is located approximately one- half mile south of the project site! A creek fed by two natural springs in close proximity would be a likely site for a small village. A complete and detailed archaeological inspection should be completed prior to this project approval. The proposed mitigation requiring that construction operations cease if artifacts, human burials or the like are found is insufficient. Any construction worker will tell you that such requirements are rarely honored. Please refer to the letter supporting our recommendation from one of the experts mentioned in the archaeological deport, Katherine Perez of the Ohlone Indian Tribe, Most Likely Descendant Also please refer to.the report written by Michael Ali, Native American historian,.regarding his preliminary observation of this area. VI. Geology and Soils —your study states that the April 2001 report from AMSO on geology and soils doesn't require updating because the number of homes was reduced from 44 homes to 40 homes. The AMSO report is inadequate in that: . • The report mentions only three of the five parcels, and therefore does need to be updated to include all five parcels. The developer has changed the design of the project twice since that report was released. Relevant changes include construction on the very steep area at the end of Marin Road. No provision is made in your study for possible slides or damages to homes on Marin Road. • The AMSO report states that bedrock was not located when holes were bored, but the existence of bedrock was "assumed" by them. Boreholes should be drilled to the depth necessary to prove the existence and depth of bedrock below proposed home foundations. If the County approves existing plans without 1) proof of the location of bedrock and 2) incorporating appropriate engineering for the actual conditions, the County risks legal liability for any homes in or surrounding the proposed development that'are damaged by future landslides. • In our letter of March 2002, we mentioned several concerns raised by the AMSO report, including --the likelihood of liquefaction of soil under the influence of severe ground shaking —a "minor" slope failure that we asserted is much larger than they describe. We have supplied photos in previous letters demonstrating its size. —the fact that they could not thoroughly examine the area. You have not addressed these issues. • Lot 29 is mentioned as having evidence of"groundwater seepage." In fact, this is a natural year-round spring that feeds the creek and a riparian area. This site is completely inappropriate for any development other than creek and riparian conservation. We have previously documented our concerns about this developers record based on • engineering failures in his 10-home project off Renfrew Court and his project on Stanley Page 4 of 9 i Lane. Given the failure of his engineering and construction methods in the past, we have repeatedly expressed concern that significant construction errors will be made. Again, we urge that a bond be required of the developer of a value high enough to • address any future problems caused by poor construction or design. VII. Hazards and Hazardous Materials— no comments at this time VIII. Hydrology and Water Quality—your study states that no flooding problems are known to FEMA between this site and Interstate 80. In fact, FEMA paid $160,000, to address flooding problems in Hilltop Green (see attached letter, May 19, 1998). This was not a permanent fix to the problem. Solutions are needed before any development aggravates existing flooding problems. (See attachment, Notice of Interest to FEMA for Improvements to Garrity Creek from 1-80 to Blume Drive, cost $521,125 The City of Richmond has requested an EIR for this proposal to address the problem of flooding that has already.occurred downstream of the project, notably at and near Hilltop Green. Wastewater must run through the pumping station at Hilltop Green, under the freeway and on to Garrity Lake. A permanent fix needs to be made to the site where the water.drops from the pipe under the freeway to the bed of Garrity Creek and through the pipe to Garrity Lake. As explained to us, the creek bed fills with silt and hinders the drainage from under the freeway, backing up to the Hilltop Green pumping station. West County Wastewater District has told us that this has caused flooding problems in Hilltop Green, damaging the electrical mechanism used by the pump to pump from Hilltop Green to the other side of the freeway. The last time this took place, FEMA paid $160,000, to repair the pumping istation. Unless this problem is fixed on the other side of the freeway to approximately 1000 feet of creek bed, additional wastewater from 40 • homes and loss of permeable surfaces will hugely increase the amount of water fed through the system from Garrity Creek drainage. Under Project Objectives, the h meowner's association is to be established with some maintenance responsibilities. However, no responsibility is assigned for Garrity Creek itself, or for the culvert that passes under Park Central. A permanent and adequate solution to this.complex legal/administrative problem must be reached. Consideration of possible damages caused by the increase in water through the system must be included. We have previously noted that the replacement of a natural area by a paved one can only exacerbate flooding problems, and will not detail this information again here. IX. Land Use and Planning I Your study may underestimate the percentage of this site that exceeds 26% slope, thus meeting the criteria for preservation as open space as specified in the County General Plan. In fact, we question whether the site should be zoned R-7. This designation may be in error or in contradiction to the Open Space Ordinance and should be addressed by the Planning Department. Your study lists'the percentage of land exceeding 26% slope as 16.4%. In fact, that percentage may be much higher, in that: • The slope map provided of the site includes properties with 0-15% slope that are in • fact not part of this development, i.e. parcels 426-192-006 and 426-192-007 owned by Claremont. Page 5 of 9 i • It appears that these parcels'have been mistakenly included in your study's calculation of slope categories; if so, the percentages that should be shown as 15- 26% slope and 26% and above are in fact much higher than the 67.5% and 16.4% • listed. • Your calculation should have been based on categories consistent with the General Plan, namely slopes 15-250/ol, and then slopes 26% and higher. Again, this could mean that you have incorrectly calculated the slope percentages on this site. Your statement-that"development/grading proposed in areas of > 26% slopes can be considered consistent with Policy 10-29" because of the location of the Garrity Creek crossing and the Mann Road Connection, and because "the creek channels are to be retained and enhanced, " is completely unexplained. We are not aware of any enhancement to the creek channels on the other side of the proposed fence. The development creates an unworkable situation by selling lot 29 to an individual homeowner and at the same time designating part of the lot as mitigated wetlands or riparian areas. It is already a riparian area and contains one of the two fresh-water springs feeding the creek. Lot 29 should be accessible to wildlife and not be the responsibility of an individual who is purchasing it for the purposes of residential living. The designation of lot 29 as both a home site and the riparian mitigation area also appears to be in conflict with the statement that the homeowner's association, to be established, will'be responsiblelfor riparian landscaping planting material. The developer's plan shows grading and wall construction on this property. This, too, conflicts with preserving it as a riparian area. You state that this project is appropriate in that it"in-fills...previously passed-over property."' We don't believe the concept of "in-fill" was ever intended to convert a semi- rural area into a.sea of housing developments. Our neighborhood wants, needs, and deserves preservation of some open space. X. Mineral Resources —no comment at this time XI. Noise—Your study lists a substantial temporary or periodic increase in ambient noise levels caused by the project as having "no impact." This statement is contradicted by the experience of neighbors of another recent project by the same developer, off Renfrew Court in EI Sobrante. This 10-home project created a tremendous noise level impacting all residents of Renfrew Court and Renfrew Road for months. Certainly the use of heavy equipment such as earthmovers and double tractor- trucks will create a significant noise impact. XII. Population and Housing—!the use of Marin Road will have a significant interest in traffic and pedestrian use. Marin Road is a narrow, sub-standard road with no sidewalks. It is currently a dead-end road. Marin Road should not be used by the developer for construction or excavation vehicles, as it is too narrow and already in poor condition. Again, the example of this developer's Renfrew Court project is illustrative. This project became such a mess that a family whose house is at the entrance of the project moved out permanently during construction due to the poor design of the entranceway to this project. There have been two accidents that we know of in the last two weeks on Hilltop • next to the proposed main entrance to this project. This entrance will increase traffic danger. Page 6 of 9 XIII. Public Service—your stud ly claims "less than significant impact." We have previously written to you that the recent West Contra Costa Unified School District • consultants' report showed local schools in terrible condition and lacking room for all of the developments currently planned for this area. This information has been confirmed in conversation with the principal at EI Sobrante School, the local elementary school. We suggested that the impact of the multiple local development plans on Juan Crespi Junior High and EI Sobrante Elementary schools should be thoroughly evaluated before granting approval to 40.1 additional homes. XIV. Recreation —this area lacks park space, a lack that the site itself could be used to remedy. Residents are working on acquiring funds for purchase and maintenance of this property as a park and open space. We request county assistance in this effort to preserve the wildlife, the creek, Wetlands and the natural habitat. Hilltop Green has a very small park area, not made for access for non-residents and not large enough in any case to accommodate recreational needs of the entire neighborhood, nor was it designed to do so. The EI Sobrante Park Study of 2001 lists this site as site 24 of potential sites for parks in El Sobrante. In meetings with Supervisor John Gioia, our group requested that this site be prioritized for park use. In addition, the "Shaping Our Future" map marks this site as Open Space, and Garrity Creek as Riparian Zone. Therefore pians do exist "to establish a park use on the site." EI Sobrante is acknowledged as significantly underserved by park facilities. Will the County wait to take action on this until all suitable sites are occupied by developments? XV. Transportation and Travel • According to the EI Sobrante Planning and Zoning Commission, each residential home generates an average of 8-10 car trips a day, totaling 320-400 trips a day generated by this subdevelopment. Dept. of Transportation standards use an estimate of five trips per day. Your study greatly underestimates traffic impact by estimating only two trips generated per day. A higher number is certainly more accurate in an area such as this with only limited public transportation. The additional traffic on Hilltop Drive could be crippling. Heavy traffic problems on Hilltop Drive, particularly at school drop-off and pick-up times, and commute times, have resulted in two significant accidents of which we are aware just in the last two weeks, occurring on Hilltop Drive between Pebble and Renfrew Road intersections. We are sure that traffic records would indicate many more collisions. Residents report that Hilltop is a Iheavily traveled two-lane street which is already over capacity at peak hours, even without the additional traffic that 40 more homes would bring. Another intersection at the proposed "Royal Oaks Drive" would further choke this street, without adding any capacity. Although a left-hand tum lane had been discussed, your notice does not include this lane or any signal lights. Traffic is backed up at 8:20 a.m. from the light on Hilltop at La Paloma back to the cemetery and at times to the freeway. This also has not been addressed. Compensation must be provided for construction damage including road damage, dust • and dirt damage to the residents!whose homes are adjacent to this project, as we have Page 7 of 9 I i i repeatedly requested in previous letters. Huge.amounts of dust and dirt will impact the residents and provisions should i e made to include the cleaning of these residences. We question whether this developer's construction methods are feasible on Hilltop Drive. The developer's current project off Renfrew Court has entailed double-trailer trucks parked two and three deep, waiting to deliver or haul material to and from the site. It is questionable whether such truckIs could even make the tum off Hilltop Drive. The Renfrew project entailed dropping and dumping of one trailer on Renfrew Road while the other one was loaded or unloaded. This method will not be workable on Hilltop Drive, and will cause extensive problems for all of the residents. On Renfrew Road, the weight ofd large trucks also caused large holes in the roadway. Public Works made temporary fines but the problem has recurred. Such problems could severely impact heavilyjtrafficked Hilltop Drive and the vehicles that travel it. Marin Road is also likely to bei negatively impacted by routing the traffic of these new homes through it. We discussed this in detail in our letter to you of September 2003. Increased use would be extremely problematic on this street, where only one car can pass through if anyone is parked in the area 3 houses prior to the intersection with Hilltop Drive. XVI. Utilities and Service Systems We vigorously protest the plan, for a sewer line through lot 29. Lot 29 contains the natural spring and riparian areas and should not be used for the sewer line. The danger of contamination of the spring and riparian area is obvious. • XVII. Mandatory Findings of Significance We disagree with your summary- in fact, there IS substantial evidence before the agency that the project may have a significant effect on the environment. We have provided this evidence in detail over the last few years. It is not in the County's interest to ignore the facts. This project proposes to take 10.09 acres of slide-prone land nowproviding a habitat to diverse wildlife, and replace that habitat with asphalt, concrete, and homes. Every bit of surface dirt, every blade of grass will be graded or removed. A neighborhood already beset with flooding, traffic and infrastructure problems will be further stretched, perhaps to the breaking point. To describe such a project as having no significant environmental impact is a complete misrepresentation of common sense and fact. Only a thorough Environmental Impact Report is adequate to address the issues we have raised here and in other communications. We request that the County NOT adopt the Mitigated Negative Declaration for Subdivision 8533. Sincerely, Barbara A. Pendergrass 745 Renfrew Road • EI Sobrante, Ca 94803 Page 8 of 9 Phone NBR 510 223-6091 Jesse Golden Hilltop Neighborhood Association & Friends of Garrity Creek • Attachments: March 18, 1998 letter from West County Wastewater District to State of Calif. May 19, 1998 letter to Hilltop Green Homeowners Association from West County Wastewater Distract. (Grant of$160.000 from FEMA) May 14, 1997 Notice of Interest FEMA to the State of Calif. from the City of Richmond. (Grant request amount$521,125) November 20, 2003 fax from Northern Valley Yokut/Ohlone/ Miwuk representative, Katherine Perez Write up by Micheal Ali In "The Huchiun Band of the Ohlone at Garrity Creek", attachments to the Michael Ali report are not included at this time. CC: John Gioia, County Supervisor Terrance Cheung, District One Coordinator Shirley Petty, Hilltop Green Homeowners Association Len Battaglia, chair, Contra Costa County Planning Commission Eleanor Loynd, chair, EI Sobrante Valley Zoning Advisory Committee EI Sobrante Chamber of Commerce California Regional Water Quality Board EI Sobrante MAC Committee Mayor Anderson and Richmond City Council Lisa Viani, Urban Creek Council State Assemblywoman Loni Hancock , member.state environmental committee jPage 9 of 9 l •� WZST COUTY �.� WASTEWATBR DISTRICT 2910 Hilltop Dave Richmond,CA 94806-1974 A Public Agency Telephone(510)222-6700 Fax(510)222-3277 I. March 18, 1998 Randy Merritt,Maintenance Supervisor State of California Dept. of Transportation,East Bay Region P.O. Box 337 San Lorenzo,CA. 94580-0337 Subject: 1-80 nor h of Hilltop Drive,Richmond,California Dear Mr. Merritt: As you are aware,a stream known as Garrity Creek runs under 1-80 through a 72-inch CMP approximately 1400- feet north of Hilltop Dr.in Richmond,CA. This storm drain became a concern during a storm on January 1, 1997. At that time,the outfall on the west side of 1-90 was obstructed by vegetation and silt,resulting in over S 160,000 of flood damage to a West County. Wastewater District(WCWD)wastewater lift station located in the Hilltop Green area on the east side of 1-80. Discussions with you and City of Richmond personnel during January, 1997 lead to the partial clearing of the outlet by City forces in January, 1997. You may recall that on January 10, 1997 you and Mr. Steve Damm, WCWD District inspector,visited the site. At that time an area of severe erosion had begun in the interstate embankment just above the outlet for the 72-inch diameter storm drain. This erosion was and islconu ibuting to the blockage of the storm drain flowing under 1-80. i Recently,during the week of February 2, 1998,while performing routine monitoring of the area during a heavy storm period,it was observed that this erosion problem has not been corrected. The soil in this area was being eroded very rapidly and appeals to present a high likely hood of a major landslide on the 1-80 embankment that could completely plug the 72 inch diameter storm drain. A potential landslide and/or heavy erosion at this area causes great concern to WCWD because of d4 impact flooding could have on the District facilities at Hilltop Green. Due to the critical nature of this storm drain sysl tem,the District is requesting that you survey the situation and take corrective action as soon as possible. If you have any questions,please contact Mr. Steve Damm or me at(5 10)222-6700. I, Su-TC rely, PAUL D. WiNN1CKI District Engineer r,� zIr�� PDW/SD:ilm-b cc: Walter Georgetown,City of Richmond Public Works Dept. • Henry Tingle,City of Richmond Deputy City Manager Michael Abramson,District Manager Alfred M. Cabral,Board Counsel BOARD MEMBERS Leonard L Battaglia Alfred M Granzella William S Oliver George H.Schmidb.AeLc4V .%VJW BOARD ATTORNEY Allred A Cabral DISTRICT MANAGER Michael D. Atxamson I i y•. W WEST COU..NTY WASTEWATER BISTRICT 2910 Hilltop Drive Richmond,CA 94806-1974 A Public Agency Telephone(510)222-6700 Fax(510)222-3277 c. May 19, 1998 Ms. Brenda Bryant Hilltop Green Homeowners Association 1095 Parkside Drive Richmond, California Subject: Hilltop Green Park - Relocation of West County Wastewater District Electrical Controls to minimize future flood damage Dear Ms. Bryant As discussed briefly on the telephone with you, the West County Wastewater District (WCWD) has received a Grant under thei Federal Emergency Management Act (FEMA) to relocate electrical controls at the existing WCWD wastewater pump station located in Hilltop Green Park. The purpose of the project is to move electrical controls for the pumps above the elevation of the floods that woi ld occ•.,r less frequently than once in 100 years. The pump station electrical controls are currently at the lowest elevation in the park and have flooded on January 1, 1997 due to high rainfall and limited storm drainage capacity for the drainage area. The flood resulted in disabling the electrical controls and wastewater pumping requiring over$160,000 in expenditures to return the pump station to normal operation. The damage to.the pump station required use of a large portable diesel pump manned day and night for over 10 days until new electrical equipment could be obtained and installed to allow automatic operation. There was also a threatened flooding in 1998 due to a large landslide potentially blocking the stone drain outlet for the entire Hilltop Green area. This storm drain outlet drains to Garrity Creek on the West of Highway 80. The District has applied for and received a FEMA grant to pay a portion of the costs to relocate electrical controls to minimize furure flood damage and disabling of the pump station. The flood damage mitigation project will require the construction of a building approximately 15 feet wide by 20 feet long and relocation of the existing emergency generator on land at elevation 202 feet above sea level. Two locations for the facilities are under consideration. One location for the building and generator would be along the North fence of the tennis courts. The other possible location would be on land just North of the existing pump station. I have enclosed a drawing showing the alternate BOARD MEMBERS Leonard L. Bataglia Allred M.Glanzella William S.Oliver George H. Schmidt Paul C. Sollow.Jr. BOARD ATTORNEY Allred A Cabral DISTRICT MANAGER Michael D.Abramson I i nda Bryant p Green Homeowner �sociation 19, 1998 e2 locations. An enlargement of the existing easement for the pump station will be requested from the City of Richmond for the additional area necessary for the equipment relocation, We are requesting the Homeowners Association input, at.this early date in the design process, to include your comments on the easement enlargement and the facility design_ We are available to attend a meeting at the convenience of the Homeowners Association to discuss this project. If possible, we request that you provide your comments on the alternate locations by June 15, 1998 so that design work can begin. Thank you for your cooperation in implementing this project. If you have any questions or need further information please contact me. Sincerely, y I Paul D. Winnicki, PE District Engineer PDW:ilm-b • Enclosures: Drawing —Plan View of two alternate facility locations 5 copies. I HAPaul WinnickiTubliMilltop homcowncrs.doc I City of Department of Public Works Engineering Division May 14, 1997 State of California Governor's Office of Emergency Services Hazard Mitigation Grant Program P.O. Box 239016 Sacramento, CA 95823-9016 Attention: Nancy Ward, Deputy State Coordinating Officer SUBJECT: NOTICE OF INTEREST FEMA- 1155-DR-CA HAZARD MITIGATION GRANT PROGRAM Enclosed please find three pages of completed application and material for the following City project under the subject grant program for funding. Project. Improvement to Garrity Creek from I-80 Freeway to Blume Drive. • Should you have questions or need additional information, please contact Mr. Robert Dunn or Syed Rahman at 510-307-8091. D WIG PILZ CITY ENGINEER DP:SR:vl Enclosure Copies to: Henry Tingle,Deputy City Manager- w/enclosure Kirt Hunter, Assistant,Public Works Director-w/enclosure fkram Chaudry,Assistant City Engineer-w/enclosure Rich Davidson, Senior Civil Engineer-w/enclosure Robert Dunn, Senior Civil Engineer-w/encWsure ____I.r._I.IIirII/IIr.I/III/..._.r./ /___�r_���/ 01 FAX c- �- # PAGES: DATE:, E: C0c, TO: FROM: LOCATION: LOCATION: 01S I ' �FAXfit: °� — �,2,, FAX#,- MESSAGE: I PHONE#: - �s .,._._.. ,....._...,,_....,__........._.,.:,._............__..,. - - i PUBLIC WORKS _Z002 _ /18/87 16:54 %Y510 620 6917 - -'- O S GOVERNOR'S OFFICE OF EMERGENCY SERVICES _ 1. �`� + HAZARD MITIGATION GRANT PROGRAM '► NOTICE OF INTEREST CALIFORNIA WINTER STORMS 1997 FEMA-1155 The Govemors Office of Emergency Services (OES) has prepared this Notice Of Interest (NOI) to estabrish an intent to apply for Hazard Mitigation Grant Program (HMGP) funding. Hazard mitigations projects are typically those that are reducing or eliminating future damages. The focus of hazard mitigation projects is on protecting. strengthening, elevating, relocating or otherwise improving buildings, infrastructure or other facilities to enhance their ability to withstand the damaging impacts of future disasters. Damage repairs are covered by Public Assistance (PA) and not by the HMGP. 1. APPLICANT INFORMATION Name of Applicant: City of Richmond Type of Applicant: [X] Govemmerj>t Agency [ ] Non-Profit [ I Special District [ ] Other Contact Person: Dwight Pilz Titie: City Engineer Business Phone: 510-307-8091 FAX#: 510-307-8116 Alternate Contact: Robert Dunn Phone#: 510-307-8091 Address: 2566 Macdonald Avdnue City: Richmond State: CA Zp: 94804 County: Contra Costa II. PROPOSED PROJECT INFORMATION ) to Garrity Creek from I-80 to Blurne Drive ProjeCtTitle: Improvement Project Location: City of Richmond Grant Request: $ 390, 845 j (Maximum is 75% of mitigation project cost) Applicant Match: $ 130, 280 I (Minimum is 25% of mitigation project cost) Total Project Cost: $ 521,125 Funding source for applicant match: Storm drain enterprise funds Who Dui!! be responsible for the long-term maintenance of the project? City of Richmond • i 1 -- -- ....- �.. �...._ _ •moi v_ Northern Valley Yokut/Ohlone/Miwuk i1234 Luna Lane Stockton, CA 95206 Tel: (209) 462-2680 Fax: (209) 462-2680 November 19, 2003 To Whom It May Concern: It is the tribes understanding the developers are in a hurry and want to include the new parcel of land for the proposed development without doing and EIR. This would mean that the parcel of land that has not been subject to any investigation would be an error in more ways then one. The new parcel of land was not originally evaluated for any effect to the not only Native American issue or concerns but also to the effect or impact to others (the community, habitat, air quality, water, endangered species, and plants, etc.) and is also not under the CEQA guidelines To include the new parcel would not be the right thing to do. If the landowner or the developer want to show good faith they will do the right thing and hire a qualified archaeologist and evaluate the: land for any impacts that their project may have on all concern parties. It is also my understanding that in the original EIR the Archaeologist did a record search and a foot survey (visual), at a time when visibility was poor due to the vegetation (blackberry) and no archaeological testing was done to assure there were no burials. I.The tribe is not comfortable with the landowner and developers proceeding with their plan. The tribe is concern that the project could yield burials. Therefore, recommend that the new parcel not be developed without further environmental investigations. Respectfully, Katherine Perez, NW/Ohlonl, Miwuk I i THE HUCHIUN BAND OF THE OHLONE AT GARRITY CREEK By Micheal Ali Sponsored by the Friends of Garrity Creek On Thursday, August 28, 2003, I led members of the Friends of Garrity Creek in exploring to see what we could find in terms of the Ohlone's historical presence around the north and east forks of Garrity Creek. Land developers want this area to build modern dwellings for profit, thus forever drastically changing and ruining the wild beauty of this well- loved piece of land. The open space surrounding this part of Garrity Creek includes ten acres of creek, valley and sloping hillsides dotted with copses of woods. Its isolation, peacefulness and charm mean much to the neighbors and few visitors who have discovered this hidden haven. They are curious about the history of the Ohlone here and asked me if physical evidence of their presence could still exist at this site. Knowing the history of the Huchiun Band of the Ohlone, I knew that they had occupied this particular territory in times of antiquity. Would ;traces of their lives here hundreds of years ago still be visible, after all the building and development in the area? I am pleased to sayl that we did find ancient artifacts that prove without a doubt that the Huchiun band of the Ohlone did once live at what is now known as Garrity Creek. Overview The Huchiun band of the Ohlone at Garrity Creek & the surrounding area Before the coming of the Spanish, the Central coast of California had the densest population of Native Americans anywhere north of Mexico. More than 50,000 people lived in the coastal regions from the Carmel River to the San Francisco Bay Area. There were some sixty bands of people in San Francisco, Alameda and Contra Costa counties alone. Members of these sixty bands spoke ten to fifteen dialects of the Pentivan family language group. A majority of the languages were closely related, but in some cases were so very different that these small bands could live several miles apart from one another and vet could not understand each other. (See attachment-1) The average size of a band Mcould number up to 250 persons. i � i • These sixth bands of the Pentivan-speaking Native Americans lived in six of the nine San Francisco Bay Area counties - San Francisco, San Mateo, Santa Clara, Monterey, Alameda, Solano and Contra Costa . They were called the Ohlone, a Sierra Miwok word meaning the 'people of the West'. We need to think of the Ohlone not as a 'tribe', but as related groups of people with ,a similar Pentivan-based language. Before European contact, these Pentivan-speaking people never thought of themselves as a 'tribal' unit. However, the invasion and interaction with whites gradually caused most of those who remained of the original bands to think of themselves as Ohlone in later years. This paper provides a history of the Huchiun band of the Ohlones in West Contra Costa County, with a specific report on their use of greater Garrity Creek at the El Sobrante site. The Huchiun used the El Sobrante site of Garrity Creek as a seasonal village for hunting herds of tule 'elk, pronghorn antelope and black tail deer and also for seed gathering and harvesting. The Huchiun band of the Ohlone (the word Huchiun. simply means 'people') homeland was high in the western hills of West Contra Costa County. It was a great stretch of high, rolling grassy hills clothed in a sweep of prairie-type grasses and endless fields of wildflowers. For the l Huchiun, the important features were in the forests following the creeks and rivers down from the canyons in the high hill country and across the grassland savannahs.to the San Pablo Bay. Here the coast redwood, buckeye, coast and live oak, big leaf maple, madrone and manzanita trees formed thousands of acres of untouched primeval forest that shadowed the Bay shoreline of West Contra Costa. Our story of the Huchiun and Garrity Creek begins on the other side of the San Pablo Ridge at the mouth of Wildcat Canyon in Richmond, particularly at Wildcat Canyon Creek in present day Alvarado Park. While the record shows Huchiun presence throughout West Contra Costa from 5,000 to 20,000 years ago,most paleoanthropologists find 5,000 to 7,000 years ago to be more accurate. The present location of Alvarado Park was for thousands of years the site of one of the largest existing Huchiun villages, with a population of some 250 people residing on the banks of Wildcat Canyon Creek. The first Spanish expedition there was chronicled by Captain Pedro Fages and Father Juan Crespi, who came north to explore the western parts of Contra Costa County in 1769 while looking for Drake's Bay. At the Richmond Wildcat Creek village, Crespi made contact with the first Huchiun, the same Huchiun that would use the Garrity Creek site in El Sobrante as a seasonal hunting and seed gathering ground. He stated.they had found "a good village of heathen, very fair and bearded." Along San Pablo Bay close to the area where Garrity Creek flows into the Bay nearby Point Pinole, he reported "five large villages of very mild heathens with pleasant faces...(that were) bearded." (See attachment-2) The prehistoric Huchiun site map of archaeological excavations (See attachment-3), shows that Garrity Creek features very prominently in archaeological digs, notably sites CA-CCO-264 and 265. Recent archaeological digs completed in the mid-1990s showed that both Garrity Creek and adjacent Point Pinole (circled area of attachment-3) are included in an jOhlone spiritual center. Holy men and shamans from as far south as Monterey were bro fight to that village for burial. Upon reviewing the entire Ohlone landmarks map (See attachment-4), we can see how prominent the Huchiun • were in the greater Ohlone world. As we shall see in this narrative, Garrity Creek as a whole and the Garrity Creek site in El Sobrante played an important role in the life of the Huchiun people whose village sat upon the banks of the Wildcat Canyon Creek. Ohlone Native-American archaeologist Andrew Galvan estimates that around the time of the Fages and Crespi expeditions there were some 10,000 Huchiun in the East Bay. These indigenous people lived hunting and gathering lifestyles in tribelets of 250 or less. They lived in seasonal villages, migrating from the shores of San Pablo Bay to the inland canyons along Garrity, Rheem, San Pablo and Wildcat Canyon Creeks on a annual cycle for thousands upon thousands of years. The Huchiun seasonally followed the harvesting locations of their food, abandoning winter villages during gatherings and hunting periods. The Garrity Creek site was highly prized because it offered the basic sustenance of acorns from tanbark, valley. coast and live oak trees, as well as buckeye trees. They also harvested seeds, berries, greens, nuts and roots at the site location. They would venture down Garrity Creek to fish for steelhead, salmon and sturgeon that swam up Garrity Creek to spawn. i The Huchiun hunting at the El Sobrante site did not reduce the native animal populations. However, there were significant results when the Huchiun made seasonal summer camps such as Garrity Creek location. Each fall they would set fire to the dry hillocks and hills. This kept the brush from overtaking the meadowlands, giving good growth to seed harvest and ensuring plentiful grazing for large game animals like tule elk, pronghorn antelope and black tail deer. This created an ideal setting for excellent hunting conditions for the Huchiun at the Garrity Creek site. It also encouraged oak and pine nut seed germination, which germinate best after a controlled fire, and prevented a build up of fuel that could create a major firestorm. Evidence of Huchuin use of the Garrity Creek site in El Sobrante as a seasonal seed gathering and hunting site Having completed the historical overview of Huchiun presence in West Contra Costa, the question remains whether, the El Sobrante area of Garrity Creek is a true archaeological site that should be preserved. How did we conclude that this location is included in the larger historical implications of being a prehistoric Native American seasonal seed gathering and hu i ting encampment? Let's examine the evidence found on August 28 for answers. At seasonal sites like these, physical evidence in terms of artifacts maybe scarce and difficult to locate -- a valid point to take into consideration. Why is there at times a lack of artifacts? The answer is quite simple. The shelters they built were temporary and quickly decomposed, leaving behind no permanent trace of habitation. Also, when moving to different seasonal locations, the Huchiun hand of the Ohlone typically traveled very lightly in terms of what equipment and gear they would carry with them from the permanent camp to their seasonal home. Their seasonal campsites were very low-impact with regards to the environment they would reside in for several weeks to a month at time. A highly resourceful people, they would only carry the tools and implements they. needed, making other tools at the actual site if need be. Any tools that were not essential to take back to the main village were simply discarded or left at the seasonal site to be used next year. Archeologists call tools and other implements that are left behind 'exposed artifacts.' This means they can be seen by the human eye on the ground level or.are slightly buried several inches below the ground, but still can visually be seen. In exploring the particular site at i Garrity Creek, I discovered various exposed artifacts, providing the factual basis from which to draw valid conclusions about the nature of Huchiun life at this site. I What was life like for the Huchiun at Garrity Creek? Let's follow them from their ancient village at Wildcat Canyon Creek and observe how they utilized and maintained this site for big game hunting, seed and plant gathering. To reach their seasonal camp, a group of Huchiun would leave the Wildcat Canyon area and make the grueling trip, to the high crests of the San Pablo Ridge. When they finally reached the highest 1500 foot elevation, they would start their slow descent down from the Ridge and into the El Sobrante Valley. By late afternoon or early evening, they had finally reached the large hillocks of the Garrity Creek area. Generally, at any given time the site would have no more than about ten to fifteen people from the village. The first order of business was building temporary shelters to accommodate the Wildcat Canyon band for the time they would be there. Removing pacific willow saplings and branches from Garrity Creek, they would build a dome-shaped frame house in.a short amount of time. (See attachment-5) The Huchiun utilized identical construction methods to the Pomo, as illustrated in this photo of a dome-shaped frame for a Pomo summer house. When the season was completed, they would abandon the structure and let the elements return it back to the earth. As you can see, finding the remnants of a dome frame structure would not be an.easy task. There simply would be no trace of it -- after a year's time, it would start to sloiwly decompose after a brutal rainy winter. More than a century later, vital evidence of housing is not there to be found. The evidence we can see includes the plants, shrubs and trees to demonstrate that this site was a seasonal seed and plant harvest site. During the end of spring, the women from the Wildcat Canyon village began the seed gathering and harvesting of dozens of different seeds and plants that ser ed for both diet and medicinal purposes. The women used burden baskets capable of carrying very heavy loads of seeds, which were held in place by tumplines wom on the forehead and attached to the burden basket. The Huchiun women would wear a basketry cap to prevent the burden basket from I chafing their foreheads, as in (attachment-6). Using a scoop-like seed beater in the right hand (See attachment-7), they cradled the burden basket in the left arm and waded right into grass. They swept the seed beater through the seed heads, loosening the grass seeds and knocking them directly into the large burden basket. The Pomo seed beater in attachment-7 is very similar to Ithe Huchiun version. Within a few weeks, they would complete collecting close to one ton of mustard seeds, sage or chia seeds, clarkia and redmaid seeds and place theml in temporary cone-shaped granaries made of Pacific willow saplings. The granaries sat several feet above the ground and could keep several hundred pounds of seeds safe from mice and other rodents. To mill the seed, the women put the seeds into a portable mortar and rolled a small pestle lightly around to loosen the hulls (See attachment-8). This seed pestle was discovered as an exposed artifact at the Garrity Creek site where the north and east forks of the creek join. I believe that this was a pre-teen's pestle because it is designed for a much smaller hand. I observed. various seed grasses at the site that were commonly harvested by the Huchiun. The presence of these common food sources and the discovery of the pestle is convincing evidence that Garrity Creek was definitely a seasonal site to harvest seeds. Discovering the small seed pestle by the north and east forks where the creek joins is even more compelling evidence. The pestle was but a short distance from a few patches of seed bearing grasses. On a small hillock over looking the Garrity Creek site are a series of three old live oak trees. In late September, October and early November, the acorns start to ripen and are ready for harvesting. Almost all residents of the Wildcat Canyon Creek village went to the oak groves maybe five or ten miles from home. So again during the acorn harvest season, Garrity Creek becomes a seasonal campsite. Soon the acorn harvesters would take acorns back to the Wildcat Canyon Creek village by the ton. The acorns were ground withipestles in mortar baskets. After the pounding the woman put the acorn flour into a shallow sifting basket and would shake the fine flour from the coarse. Even when the acorn flour was refined, it was still nasty and bitter. The woman would now go to the east and north fork of the creek and scoop out a hole in the sand. Using a watertight basket, she would allow the water to run over the acorn meal for a great period of time. This process removed the bitter tannic acid. Some acorns could be leeched more quickly than others could; some batches of acorn meal could take all day. After the leeching process was completed, she would take another large watertight basket and drop great quantities of both the acorn flour and water into the basket. At the side of the basket she would have a small fire going with numerous round, spherical stones sitting in the fire. When a stonel was hot enough, she would use long wooden prongs to pick up the hot stone and drop fit into the basket (See attachment-9), adding many of these hot stones until the water would actually boil. These stones were called 'cooking stones'. (See attachment-10) She would use the wooden prongs to keep stirring the cooking stones so it would not burn her basket. Soon the boiling water and acorn flour turned into mush. The mush could then be baked like fry bread or eaten as soup or a thick cereal. i Oak trees capable of yielding acorns for Huchiun harvest flourish near Garrity Creek. iI also found another important exposed artifact there: a perfectly round, spherical cooking stone formed of granite. Good cooking stones, like the one that I found made out of granite, could not be cracked or shattered. They were highly prized by Huchiun women. The fact that this cooking stone was located where the north and east forks of the creek join is equally as significant. Water is needed in order to leech acorn flour; also, the cooking stones in the fire had to be near where the water and flour were boiling in the basket. All this boiling process required a ready source, of running water to complete the final phase of making the acorn flour into mush. I could only conclude that a Huchiun woman utilized the cooking stone at. this site during the annual acorn harvest. Also there were several buckeve trees from which Huchiun could harvest nuts if the acorn harvest fell short. The next exposed artifact -found where the east and north fork of the creek joins together was an abrader. Abraders are commonly found important tools that vary in size and shape, depending on the stone. Many of the Huchiun abraders are made of gritty stone shaped or in a matural form. Abraders served to sharpen, smooth and shape stone, bone antler, shell and wood. Rough-textured abraders function much like files or coarse sandpaper. Whetstones sharpened the edges of points of tools. (See attachment-11) The Huchiun abrader fits comfortably in one's hand; however, it was designed for the smaller hands of a Huchiun male. The fi st question I asked myself, "Why was it discarded or left behind at this particular site?" I recalled seeing a black tail deer earlier in the afternoon at the Garrity Creek site. One of people who belong to the Friends of Garrity Creek informed me she had seen a huge full grown stag around the perimeter of the site. Then as I carefully examined the physical terrain more, I discovered that in the tall dry grass that there were some thirty indentations that had flattened out the grass. Looking more closely, I realized that this was where a herd of black tail deer bedded down to sleep. Then it dawned upon me that this was an area where Huchiun hunters came to kill deer. i' Huchiun hunters used bow and arrows in their pursuit to successfully kill members of the black tail deer herd. Though I spent several hours looking for flaked obsidian projectile points or arrowheads,none were visible. In Contra Costa County, obsidian is very scarce, and the Huchiun obtained it solely through trade from Napa, Santa Rosa, and the east side of the Sierra Nevada. I returned back to the creek area where I had found the abrader originally. I looked down around the creek itself and saw fresh deer tracks from the animals drinking from the creek. I saw two or three trails that led directly away from the creek in opposing directions. Here, from the cover sof the coyote brush, would make a perfect ambush site to get closer arrow shots at the deer. I had found the artifact sitting right next to the coyote brush that would offer the most cover. I then realized the abrader had belonged to a Huchiun archer, who would use!it to sharpen his projectile points to be razor sharp when • he would be hidden in the c4,ote brush awaiting to ambush the black tail deer. The • archer could have misplaced the abrader after sharpening his projectile point, or it could have fallen from his person as he'took aim at the deer. The Garrity Creek site is i a popular area for deer to graze and sleep in the summertime. From the vantage point of the hillock with the oak trees, Huchiun hunters would have the perfect view of how best to encircle the deer herd and get terrific body shots while following the deer do the creek. The small Huchiun abrader gives the lead clue that the Garrity Creek site would indeed be a fabulous summer hunting camp. We found the last exposed artifact in the same area where the north and east fork of the creek join. In this case, it was a piece of volcanic black pumice. (See attachment-12) In quite a few cases at Huchiun villages and seasonal campsites, black pumice is strewn throughout these prehistoric locations. I noted that the pumice was not far from where the abrader had been located. Pumice definitely was a part of the hunter's archery gear. The archer used it to aid in the beguining phases of smoothing out certain kinds of projectile points. The pumice acted as a prehistoric 'steel wool pad,' so coarse and yet also soft. When old projectile points became damaged or destroyed, this pumice was a critical tool in producing replacement projectiles. The hunter used pumice to initially rub out the rough edges of the newly fashioned projectile point or arrowhead until it had a semi- smooth texture, ready to begin!the next phase of further smoothing. Carrying pumice would be an indispensable part of the prepared archer's gear on the hunting trail. This is another case in point of an archeir in a seasonal location having the required tools to have • a successful hunt. Conclusion In summary, I found compelling evidence that the Garrity Creek area between Manor Drive, Hilltop Drive, and Hilltop Green was a seasonal big game hunting and seed/plant gathering camp for the Huchiuni I found a number of exposed artifacts -- a seed pestle, a granite cooking stone, an abrader and a volcanic pumice whetstone -- close to the locations where Huchiun peoplelwould have utilized them in daily life, close to the riches of plant and animal life regularl i utilized by the Huchiun in their diet. It is my recommendation that this area be evaluated very soon by professional archaeologists whose knowledge is grounded in a strong understanding of the native customs of the Huchiun. This evaluation should take place prior to any disturbance of the area by future construction. Recommendations for further reading East Bay Express "Return of the Native" by Louise Lacey Oct 11, 1996 Volume 19, #1. Stone, Bone, Antler and Shell: Artifacts of the Northwest Coast, by Hilary Stewart. • University of Washington Press Seattle WA, 1996. i • The Destruction of California Indians, by Robert F. Heizer. University of Nebraska Press, 1993. The Ellis Landing Shellmound. University of California Publications in American Archaeology and Ethnology, Berkeley CA, 1910. The Native Americans: The Indigenous People of North America, by Colin F. Taylor, Salamander Books, London UK, 2002. The Ohlone Way,by Malcolm Margolin. Heyday Books, Berkeley CA, 1978. The Pomo Indians of California; by Vinson Brown and Douglas Andrews. Naturegraph Publishers, Healdsburg CA, 1969. The Stege Mounds at Richmond California, University of California Publications in American Archaeology and Ethnology, Berkeley CA, 1924. \6%\\.ucsc.edu-ucsc/nat-reserves-LapersrLd-nishihira-reserve`html Editor's note: A very thorough description of the way of life of the Huchuin can be found • in chapter 4 of the following study housed in the Richmond History Room, Richmond Main Library. Investigation of . cultural! resources within the Richmond Harbor Redevelopment Project 11-A, Richmond, Contra Costa County, California. Prepared by California Archaeological Consultants, Inc., Peter M. Banks and Robert I. Orlins. March 1981. Photos: Map 2.1 Location of study area This map, showing the various iforks of Garrity Creek, delineates the area of the 1981 archaeological study prepared for the city of Richmond prior to the beginning of work on the Harbor Redevelopment Project. Map 2.3 Map of Richmond vicinity 1856 -- Garrity Creek is shown in the upper right hand part of this map. Map 2.6 Geologic map of study i ea This shows the location of a probable fault near the El Sobrante area. The Hayward fault • is to the east, thus this area is located between two fault areas and may be in a structural trough. Map 2.7 shows the plant communities along Garrity Creek to be Riparian Woodland. Map 3.1 Location of prehistoric sites within the study area Map 4.3 Landmarks from historic documents Portrait of San Francisco Bay peoples by Ludovic Choris, 1816 from "Voyage Pittoresque" 18i25: Plate VI. i Women of the Huimen tribelet 41.3; a woman of the Huchiun tribelet in 2, and women of the Saklan tribelet in 4&5. • i i ie • � i ,� i i i i • '; �� i �� i i • � i EL SOBRANITE VALLEY PLANNING & ZONING ADVISORY COMMITTEE P.O. BOX 20136 EL SOBRANTE, CA 94820 May 25, 2004 Afshar Project—Subdivision SDO1-8533 My name is Eleanor Loynd. I am I resident of the El Sobrante/Richmond area. I arra here representing the ESVP&ZAC. This Committee was established by the El Sobrante Chamber of Commerce in partnership with the Richmond May Valley Neighborhood Council. I have been involved in the review of this project since at least 2001. L.Procedural Question: � I need to start my presentation with a question on County procedures. The agenda for tonight's meeting states that SDO1-8533 will be the review of a vesting tentative map. There is no mention on the agenda that a mitigated negative declaration has been recommended for this project or that it will be discussed. Are we correct that the request for a mitigated negative declaration will be discussed this evening or does that haveto wow o- put off for another meeting? 410t-elll voi lbralce -a.,-d- ")(t s, f-he M•N J d�5.eu-s se d 2. Comments on the Staff recommended Mitigated Negative Declaration: This Committee requests tliat the recommendation for a Mitigated Negative Declaration be denied and that an Environmental Impact Report be required. Here are some of the reasons: a. Concerns about slides/soil prIoblems. In County Planner Bob Drake's letter to the applicant of 5/17/01, he stated hat an exhibit provided by the applicant"indicates that over 80% of the site has a slope of more than 15%, 15% of the site has a slope exceeding 26%." Mr. Drake goes on to state that the approval of development in areas subject to slope failures `shall be contingent on geologic and engineering studies which define and delineate potentially hazardous conditions and recommend adequate mitigation." I We respectfully call your attention to these county slope protection policies from the General Plan Safety Element: 10-28,"Generally,residential density shall decrease as slope increases, especially above a 15% slope" and 10-29 "Significant hillsides with slopes over 26% or more shall be considered unsuitable for types of development which require extensive grading or other land disturbance." An EIR needs to be done to define which land is actually buildable. The Richmond Hilltop Green subdivision is located immediately adjacent and downhill to this subdivision..'A soil compaction report was done by Globe soil Engineers for the Hilltop Green HOA in 1994. Page 3 points out that"five slides or potential slides were observed in the subdivision." Page 4 "Based on our field, laboratory and office studies, it is our opinion that from a geotechnical and foundation engineering standpoint, the slides occurred as a result of poor drainage, excessively steep slopes, and weak soils/fills. Sia ESVPBZAC Comments on SD 1-8533 5/25/04 page 2 This statement is from a June 7, 2002 letter sent to the County by Stephen Linsley, Laboratory Supervisorifor the Water Pollution Contol Plant in Richmond. "If more impervious surface is created in this area, the peak flows will likely increase downstream. This might well have a significant impact on the water and landslide problems which already are barely contained in Hilltop Green. So the proposed project should not be allowed to proceed without a focused environmental impact report." Statement: The staff report states on page 18, number 15 that "at least 30 days prior to issuance of a grading permit or installation of improvements or utilities, applicant shall submit a final ge"o logy, soils, and foundation report". That is not acceptable. The recent County staff report stated on page 19, condition 17 D, "Slope stability analysis shall be provided for major slopes in the project." That means the information will be provided after the approval of the project without any notification or involvement of the neighbors. The homes planned near Marin Road are being built on a.hillside where some slides have occurred. In the interests of safety for the existing and new residents, you cannot approve a mitigated negative declaration. A full and complete geotechnical and engineering report needs to be done now before work begins. b. Concerns about Drainage Problems. This Committee and area residents are concerned about flooding and water quality, especially as it affects the drainage system in Hilltop Green. This subdivision will be draining into that system. Can the existing system handle the increased run-off from this new subdivision? The 1994 Globe Soils Compaction report done for Hilltop Green states on page 7, "Improvement of both the surface and subsurface drainage conditions is recommended to insure the stability of the site land to improve hydrologic conditions." "Good surface drainage is essential to intercept water runoff in order to minimize erosion and to limit infiltration into subsurface layers." The staff report, page 5-17 states that"The Public Works Department, as part of the final design and plan review process, requires submittal of a detailed hydrology and hydraulic analysis of the downstream facilities to verify their adequacy prior to allow to discharge to those existing drainage facilities. This may require off-site improvements to increase capacity should those facilities prove to be inadequate as defined by the Subdivision Ordinance." The staff report on page S-21 states that "Public Works requires that the applicant prove that downstream drainage facilities are adequate." Statement: The project should not be approved without the County,the residents, and the applicant knowing the details about the existing Hilltop Green drainage system and its adequacy to handle the increased run-off from this project. The County cannot sidestep its obligation to get all the facts about the existing drainage problems in Hilltop Green. An environmental impact report should be required so that information on the drainage system is known before the project is approved. i i • ESVP&ZAC Comments on SDO1-8533 5/25/04 page 3 c. Concerns about Wildlife: Thisl 10 acre valley serves as one of the last wildlife corridors in the area to connect tliis side of the freeway with the other. An EIR should include information on the kinds of wildlife in the area and the impact this project would have on the wildlife. d. Concerns about Traffic: Hilltop Drive is a two lane road heavily used by parents bringing their children to Juan Crespi Middle School, EI Sobrante Elementary School, and several other nearby schools. Because both entrances to this project are off of Hilltop Drive, there will be times,,when the traffic into the subdivision backs up. Another concern is the steepness of the Mann Road exit. There is no mention of the steepness of the road out of the project which will join onto Marin Rd. It is our understanding that the road will be at least a 14% grade. Will fire trucks be able to use Marine Road as an entrance?i An EIR could evaluate the traffic patterns, the use by fire trucks, and perhaps suggest some modifications to the entrance ways. 3. Conclusion: .We ask that the vesting tentiative map approval be denied. We ask that the request for a mitigated negative declaration be denied. We feel that the Community has presented or will present substantial evidence that significant impacts from this project may occur and therefore, an Environmental Impact Report should be required. Thank you. Attachments: Page from Globe Soil Engineers Report to Hilltop Green HOA 9/7/94 Letter from Hilltop Green HOA to Planner Darwin Myers 1/21/02 Letter from Richmond Water Pollution Control Plan to D. Myers 6/7/02 Letter from ESVP&ZAC to Darwin Myers 8/1/02 Letter from ESVP&ZAC to Darwin Myers 1/30/03 1 l .EAG/o s u At E_ HILLTOP GREEN HOMEOWNERS ASSOCIATION 1095 PARKSIDE DRIVE RICHMOND, CA 94803 January 21, 2002 Community Development Department County Administration Building 651 Pine Street, 4th Floor,North Wing. Martinez, CA 94553-0095 Attention: Darwin Myers, Project Planner Subject: SD018533/Hilltop Road Area Dear Mr. Myers: Thank you for the opportunity to comment on the subject project. On behalf of the 521 homeowners of Hilltop Green, we submit the following comments for your consideration. We oppose the proposed project for several reasons.. Traffic on Hilltop Drive.-Thousands of cars travel Hilltop Road each weekday. The City of Richmond performed a traffic study of Hilltop Road sometime ago. Many complaints were received from the surrounding residents. There have been many automobile accidents at the intersection of Hilltop Road and Park Central. Visitors to the Jewish Temple Beth Hillel as well as the Montessori School (also at Park Central and Hilltop Road), coming from the direction of I-80 are always in danger of being hit by oncoming cars. There are ingress and egress problems for our community and a large amount of traffic is generated from patrons of the gas station on the comer of Park Central and Hilltop Road.. We definitely do not want or need an, more traffic on this road. We are sure that if given the opportunity, these two.institutions would also oppose this development. This would add tb the already dangerous condition that currently exists. Flooding/Drainage. Our ongoing concern stems from our own problems with continuous slide repair issues, correcting poor soil conditions, constant monitoring of common grounds for springs underground and educating each homeowner to potential water damage to their private property. In one of several Soil/Geotechnical Reports done for us it was established that "the old Garrity Creek runs through (our) subdivision and near the slides". It also states, "Published data indicate that (our)site lies at or near an area associated with shallow, intermediate,and deep landsliding, soil erosion and creep". I Mr. Darwin Myers Page 2 January 21, 2002 Please be aware that Hilltop Green opposes any new development in this area, especially without a report that assures us of no impact from and around activity with Garrity Creek. Overcrowding of Schools. Our children already in the community will suffer with the addition of more children to an already crowded school and classroom. We respectfully request that you(take our comments into consideration as you review this application. Although we are zoned in the City of Richmond, we write as part of the El Sobrante neighborhood and as concerned citizens of Contra Costa County. Sincerely4Shirlley i tty i President Board of Directors i cc: Dan Kirtland, City of Richmond, Planning Dept. Eleanor Loynd, Chair, El Sobrante Valley Planning& Zoning Advisory Committee P.O: Box 20136 El Sobrante, CA 94820 i JLIN. 07 '2.002 06: 52 510-235-3354 WATTP h #5851 P. 001/002 PUBLIC SERVICES: WASTEWATER Cityof Water Pollution Control Plant 601 Canal Blvd. Richmond, CA 94604-3541 (510)412.2001 FAX (510) 235-3354 I June 7, 2002 Darwin Meyers Community Development Department Contra Costa County Administration Building 651 Pine Street, 41 Floor, North Wing Martinez, CA 94553-0095 ATTN: File No. SDOI-8533 • Dear Mr. Meyers: The City of Richmond storm:water program involves outreach to creek support creeks within its jurisdiction, In the course of working with the Friends of Garrity Creek, it has come to my attention that a developer is planning to construct 41 homes where Garrity Creek flows above ground just before entering Richmond. As the person responsible for storm water issues in the City for many years, amco that this project will increase landsli.ding and flooding downstream around the creek in areas inside the City limits. Hilltop Green within Richmond is already subject to water problems and landslides from several "springs" where Garrity Creek flows underground.Those"springs" are no doubt weak points where everything in excess of what fits into the existing pipe bursts to the surface and floods Hilltop Green during wet weather, The channel just upstream of Hilltop Green now has natural ability to slow peak storm flows via the soil, vegetation, swales, etc, If the creek is diverted by the proposed project construction and more impervious surface is then created in this area, the peak flows will likely increase downstream. This might well have a significant impact on the water and landslide problems which already are barely contained in Hilltop Green. So the proposed project should not be allowed to proceed without a focused environmental impact report. Furthermore, Garrity Creek should be fully protected as provided by the Clean Water Act. J: 'LVVL Vo:Dz olV-4sa-js$o4 ( WWTP A #5651 P.002/002 If you have any questions, please feel free to contact me. Yours truly, Stephen Linsley Laboratory Supervisor i copies;Robert Drake, CDD El Sobrante Planning and Zoning Committee Friends of Garrity Creek Shirley Petty, Hilltop Green i ©d0 � %QULCs t(`D�OG`�(�l,ll� Page: D-1 A- C" ii /0 FtT- b" CA rn o'r2 APPENDIX D: LANDSLIDES DESCRIPTION The five landslide areas that were recently observed have Leen numbered and are identified as follows: 1. An area at the left side of the residence at 1352 Parkridge Drive. This is a relatively small slope between adjoining building pads and shows evidence of soil creep and potential sliding. 2. A previously repaired slide at 'the edge of Park Central, op- posite the intersection witli Parkri.dgp Drive. There was a major slide atthis area that was repaired by excavation of the failed material, keying and benching of the slope, installation of drains and replacement of fill on the slope. There are some minor tension cracks that have developed near the edge of the pavement on Park Central . These cracks are inboard of the previous headscarp for this slide. 3. A series of slides 'and potential slides has developed on the slope opposite the residences from 945 Parkside Drive to 991 • Parkside Drive. These features extend from the concrete lined drain ditch, near the upper portion of the slope, to the street level. Some have had previous repairs involving the use of short retaining walls at the toe of the slide. 4. A significant bulge has developed at the toe sof the slope op- posite 1064 Vie,.%, Drive. The bulge is directly above a concrete lined collector ditch, and would pose a problem of flcoding to the rear of the houses at 1048 through. 1060 Parkside Drive. 5. A bulge, similar to slide 4, has developed at the base of the slope between 1080 View Drive, and 1084 Parkside Drive. There is a concrete ditch at the base of this slope as well . -�-► ort 0—Om 97- EL SOBRANTE VALLEY PLANNING & ZONING ADVISORY COMMITTEE P.O. BOX 20136 EL SOBRANTE, CA 94820 August 1, 2002 Darwin Myers, Planner By Fax & Mail County Community Development Dept. Fax: 925-335-1299 651 Pine St., 4`h floor NORTH Martinez, CA 94553-0095 Re: SDO1-8533, 40+ unit subdivision off Hilltop Dr., El Sobrante Dear Darwin, The ESVP&ZAC has been closely following the review of this subdivision. We are concerned that decisions will be made based-on incomplete or missing information. Our Recommendations: 1. A focused environmental impact report should be required. The study should focus on: -Geology, soils and seismicity. There have been (and are) slides and soil problems in the adjacent Hilltop Green Richmond subdivision and on the adjacent Marin Road area. There is a slide in the northwest portion of the site. Remediation suggestions need to be studied to be sure they are the best technology available to answer the problems. This part of the focused EIR should also�look at the project's consistency with the County's slope protection policies. In Bob Drake's letter to the applicant of 5/17/01,he states that an exhibit provided by the applicant"indicates that over 80% of the site has a slope of more than 15%, 15% of the site has a slope exceeding 26%." Mr. Drake goes on to state that approval of development in areas subject to slope failures " shall be contingent on geologic and engineering studies which define and delineate potentially hazardous conditions and recommend adequate mitigation." -The impacts on Garrity Creek, trees, and wildlife. There needs to be detailed information provided on Garrity Creek and the effects of the increased run-off into the creek. There has been flooding in the adjacent Hilltop Green Richmond subdivision. A review of the State Fish & Game requirements needs to be done. Is fencing off the creek the best way to keep people out and still allow wildlife in the area? We do not feel there has been adequate study of the creek. Who is responsible for maintenance of the creek? Which County staff persons are responsible for checking to see that the creek is being maintained in a proper fashion? What ate the maintenance standards? -Transportation and Circulation should also be a focus of the environmental impact report. We do not feel that the traff c counts done along Hilltop Drive were done at a time when schools were in session. Hilltop Drive is a major artery to Juan Crespi Jr. High, El Sobrante Elementary School, De Anza High School, and the many church schools located in the area. • ESVP&ZAC - Comments on SDOII-8533 page 2 (Transportation and Circulation continued) We are especially concerned that this project of 40+hpmes will have only a single access ' point. This quote is from page 2 (a 5/17/01 letter from Principal Planner Robert H. Drake to Mr. Afshar). "Exception to Subdivision Ordinance Standards—We will also require that the tentative map be revised to list all proposed exceptions to subdivision ordinance standards. For example, we note that the cul-de-sac road system proposed for the project does not meet the design limitations of the Subdivision Ordinance that limits.such.streets to 700 feet in length and serving no more than 16 lots (see attached). The proposed project road would service 44 lots on a cul-de-sac with several branch streets with an aggregate length of approximately 2260 linear feet." We respectfully call your attention to these county slope protection policies from the general plan safety element: • 10-22 Proposed extensions of urban or suburban land uses into areas characterized by slopes over IS percent and/or generally unstable land shall be elevated with regard to the safety hazard prior to the issuance of any discretionary approvals. • 10-26 Approvals of public and private development projects in areas subject to slope failures shall be contingent on geologic and engineering studies which define and delineate potential hazardous conditions and recommend adequate mitigation. • 10-27 Soil and geologicalreports shall be subject to the review and approval • of the County Planning Geologist. • 10-28 Generally, residential density shall decrease as slope increases, especially above a 15% slope. • 10-29 Significant hillsides with slopes over 26 % or more shall be considered unsuitable for types of de i elopment which require extensive grading or other land disturbance. • 10-30 Development shall be precluded in areas when landslides cannot be adequately repaired. 2. The density of the project should.be severely limited due to the landslides, the steepness of the slopes, and the county's-cul-de-sac subdivision ordinance standard: According to information provided by the applicant (see page 1), 80% of the site has a slope of more than 151/o'and 15% of the site has a slope exceeding 26%. The cul- de-sac has a length of 2200 linear feet. Cul-de-sacs are to be limited to 700 feet in length and serving no more than 16 lots. Therefore, we suggest that the number of homes on this site be limited to 116. 3. Sidewalks should be required on both sides of the street. 4. All retaining walls should be designed by an engineer and made of concrete. 5. All roads should be standard county roads. i !- l ESVP&ZAC - Comments on SD01-8533 page 3 I 6. With input from CA Fish & Game, a description 4nd report on the area holding the "Wetland Spring and the Wetland Seep"needs to be done. How will this area function? Does it require any maintenance? A copy of the needed maintenance should be provided to the Homeowners Association. Who will pay for the maintenance? Which County Dept. is responsible for verifying that the maintenance has been taken care oft NOTE: The plans for the Co ty Woodridge Subdivision at San Pablo Dam Rd. and Gree.nridge Dr. called for a.4" deep vernal pond (wet only in winter). Because of changes to grading plans, that.pond is now 4 feet deep with water year round. It acts as a street drainage receptacle for the project. No Homeowners Association was ever set up and the property owners haven't the slightest idea how to maintain it. We don't want this problem repeated again. 7. A Homeowners Association needs to be established and set up prior to the final home sale. The responsibilities of the HOA need to be listed in the conditions. Will they be responsible for the roads on site as well as the maintenance of the wetlands area and the creek? Each homeowner needs to be made aware of his/her responsibilities. I 8. We request that one of the lots The set up as a neighborhood park with a play structure for younger children. It could also be maintained by the Homeowners Asso. 9. The developer should be required to post a bond for 10-12 years to cover any problems that arise. If you have any questions and/or concerns,you may call me at 510-223-6398 or fax me at 510-758-7697. Please keep us informed'of any meetings scheduled and please send us copies of the pertinent documents on this subdivision. Thanks. Sincerely, leanor Loynd, Chair cc: El Sobrante MAC El Sobrante Chamber of Commerce Friends of Garrity Creek Hilltop Neighborhood Association Hilltop Green HOA lip i EL SOBRANTE VALLEY --�-- • PLANNING & ZONING ADVISORY CO1VEMWEE P.O. BOX 20136 EL SOBRANTE, CA 94820 January 30,2003 Darwin Myers, Planner By Fax& Mail County Community Development Dept. Fax: 925-335-1299 651 Pine St., 4h floor NORTH Martinez, CA 94553-0095 Re: SDO1-8522, 40+ unit subdivision off Hilltop Drive, El Sobrante Dear Darwin, As you know, we have had several meetings over the past 1 %years to discuss concerns and ask questions about this project. We have had few of our questions answered. The enclosed list of 28 iuggestions are submitted to you for inclusion into the County's requirements for this subdivision. For your information, the mailed version will have several more attachments included. Those attachments are: 1. A copy of the Soil Compaction Report done by Globe Soil Engineers for the Hilltop Green HOA in 1994. The Hilltop Green subdivision is located immediately adjacent and downhill to the 401 unit subdivision. Page 3 points out that"five slides or potential slides were observed in the subdivision". Page 4 "Based on our field, laboratory and office studies, itis our opinion that from a geotechnical and foundation engineering standpoint, the slides occurred as a result.of poor drainage, excessively steep slopes, and weak soils/fills." Page 5 "Most slope failures occur after heavy rainfalls." On Page 7, "Improvement of both the surface and subsurface drainage conditions is recommended to insure the stability of the site and to improve hydrologic conditions." "Good,surface drainage is essential to intercept water runoff in order to minimize erosion an'd to limit infiltration into subsurface layers." 2. A letter from ESVP&ZAC to!Darwin Meyers re SD01-8533,-dated 9/18/01. 3. .A letter from ESVP&ZAC to Darwin Myers re SD01-8533, dated 2/7/02. 3. A letter from ESVP&ZAC to'Darwin Myers re SDOl-8533; dated 8/1//02. We respectfully request that you take all of these comments/suggestions into consideration as you develop the report on Subdivision SDO1-8533. Because it is an in- fill development, it will have long term and lasting affects on the surrounding lands and neighbors. Please call me at 510-223-6398 if you have any questions. Thank you. Sincerely, I E\\leanor Loynd, r - 1 cc: El Sobrante MAC El Sobrante Chamber of Commerce Friends of Garrity Creek 1 Hilltop Neighborhood Association Hilltop Green HOA Sup. John Gioia Assemblywoman Loni Hancock Mr. Sid Afshar Joe Light,Richmond Planner Mayor Irma Anderson I i i I ' i I ', ��� �.� ',�� ,, `� �� ��, ,1 �, ,, i �� ',, ��� ,, �,, ,, ,, ,i �t 1 i I .v:G1`.<.r:.�Y:•"+l)5�'l„^'••.E•imY]Y•r'LI:wR:tiyi,�,'�'�•••1:'��Jlss '.SwM1r:itx..�R.'a9tiwO.hw�it i� �� • . - %l",.. -�T'i,yrtl`•^`a'"' k..t V.4'�'iu Ii Ci3•:J2'a'iGri'L'siS- �Ir•^.� 'M` t'�' '.-. -. �--i..:..av!'y.�')ii'ht'_:fr l•a•.1'�'ai � <..-3__'..+ '. -�•� '4:'i ''��t� - --':i;. - - J'!r- ::G"• - �.T.C,� ...;li�:i'�':ty<::iy,i;:�".E�*:y.:y�tC�:.i�r�yv�� � o . - I 1 - �. ✓ _ ,. .1':T+�►'%•t � .f '.� ..N.' rr,v JL4.���;%d.,.�G'��I.ia�.��.L`.;4• °i:'r.,,. 1�% �� '••errs-- _�'F _ t'(1 �• _ i � � �{�.-� ;-- � - „_ �.;..,...... ,._�. .s' e I :. ��,a�S! ,.: .;fi.� a� ,... '�' •y/lN):•1'f°'��•_^':iy+.3-"-a','ht=..•.^.:I�f.� •.1: Vvpp on -�.r *Cr•.•• -`i''��l' vC�T ..( T1c Sy'r1..!. •�"'•:''�}'-.�� _ •�:.if ,l� '.�.Y,.- •�YJ C.T]T�'t:N"w.+`•a f 1.'! 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'_ 17 PLAN-ING AND CbNSERVATION LEAGUE FOUNDATION 2002 I I 1 i I i CONIXIUNITY GUIDE Note:You can be assured of personally receiving the notice required by section 21092 of the Public Resources Code (and all other notices required by;CEQA)by filing"a written request for notices with either the clerk of the governing board [(i.e.,county board of supervisors,city council)] or, if there is no governing body,the director of the agencv [(i.e.,director of CDFG)]." [Pub.Resources Code,§21092.2.]The public agency may charge a fee.However,payment. of a minimal fee avoids the expense and worry of monitoring the county clerk's office or the Governor's Office of Planning and Research (OPR)for public notices,or,worse,missing a critical public notice altogether. The public comment period for a negative declaration or mitigated negative declaration must be at least 20 days and leas-, 3 7 dC - A' I -^:t:^^ted^ ^^ti:'e declarations submitted t0 the State CleariPnhn„cP a- 0 JLLYs LVl any ncga-,iVC uLiaGra tlVlaaa aJ Vr aJ-u ,ae�u submitted .J...,...... for review by state responsible oritrustee agencies. [Pub.Resources Code,§ 21091,subd. (b).] If requested,the State Clearinghouse has the discretion'to reduce the 30-day public review period,but the public review period cannot be reduced below 20 days. [CEQA Guidelines,§ 15073,subd.(d).] The Court of Appeal determined that a lead agency's failure to give the Department of Fish and Game, a trustee agency, adequate notice by failing to provide the Department with a copy of its proposed negative declaration was prejudicial abuse of discretion.The lead agency's adoption of the mitigated negative declaration was set aside. [Fall River.Wild Trout Foundation v. County of Shasta(1999) 70 Cal.AppAth 482,491-493.1 It is during this public commeni period that you must provide any substantial evidence you may have that will demonstrate the proposed project may have a significant adverse effect on the environment. (See Exhaustion of Administrative Remedies, infra.) Failure to comment on the mitigated negative declaration within the public review period provided may preclude any subsequent legal challenge to a public agency's adoption of the document. [Pub. Resources Code,§21177,subd.(a).] (e) CEQA's"Fair Argument"Standard CEQA requires a lead agency to prepare an EIR whenever substantial evidence in light of the entire record supports a "fair argument"that a proposed project may have a significant adverse impact on the environment.Even when other substantial evidence in the record supports the opposite conclusion, CEQ,,s"fair argument"standard requires the lead agency to prepare an EIR prior to approving or carrying out a proposed project. [Pub.Resources Code,§21080, subds.(c)&(d);CEQA Guideline's,§§ 15064,subd.(a)(1); 15070,subd.(a);Stan islausAudit bon Society,Inc. v. County of Stanislaus(1995) 33 Cal.AppAth 144, 150-151.1 If there is any doubt about a project's significant environmental consequences, the "benefit of the doubt" is given to full environmental review. [See CEQA Guidelines, §§ 25064, "Determining the Significance of the Environmental Effects Caused by a Project,"15064.5,"Determining the Significance of Impacts on Historical and Unique Archeological Resources," 15065,"Mandatory Findings of Significance." (f) Substantial Evidence Defined; In 1993 the Legislature defined"substantial evidence"within the fair argument content as follows: I "Argument,speculation,unsubstantiated opinion or narrative,evidence which is clearly inaccurate or erroneous,or evidence of social or economic impacts which do not contribute to or are not caused by,physical impacts on the environment,is not substantial evidence.Substantial evidence shall include facts,reasonable assumptions predicated upon facts,and expert opinion supported by facts." [Pub.Resources Code,§21080,subd.(c).] In other words,the"fears"and"desires"of project opponents are not substantial evidence. [Periey v.County of Calaveras (1982) 137 Cal.App.3d 424-436-437] Speculation, uncorroborated opinion, hearsay, concerns,and rumors are not substantial evidence.[Leonoffv.MohtereyCounty Board ofSupervisors(1990)222 Cal.App.3d 1337,1351-1352.1 However, you are not required to provide`overwhelming or overpowering evidence"or to submit"quantitative environmental studies" to support a"fair argument"that a project may have a significant effect on the environment. [Stanislaus Audubon,supra,33 Cal.App.3d at 152.] The California courts have held that public testimony about noise or traffic impacts or topics that you may be!personally familiar with(i.e.,significant view along scenic highway) are substantial evidence of a project's potential significant impact. [See Gentry,supra,36 Cal.App.4th at 1380; Oro Fino Gold Alining Corp. v. County of EI Dorado(1990) 225 Cal.App.3d 872,882-883.1 10 j COMAIUNIT}•GUIDE i and miff ation measures that should be analyzed in :�;.���: •''°-` - •• � �- depth in the.EIR.Again,the agencies'comments during the scoping meetings or consultations(which are usually r. appended to the Draft EIR) give the public an early ._.,,. -- T`r�.--�,,,.:=..4•, `.w-+rT��,.:ten warning about the proposed project's potential ' ;11 , t =+s. tAimw..:,. significant adverse environmental!effects.A lead a en �%7 = N.Z _ `E that fails to analyze the environmental consequences of �+ � t a proposed project during tkie scoping process has � ;. ro ect raised .,�a„�..•.:,-,�,:,-:s' ��=��"`:•. —. failed to comply with CEQA. [See Sierra Club is State _` `x�°�:_� _''' � •„Ti� _. '*+ o Forestry, :. �: .. .��� —�:�Y,• •� f y, supra,7 Ca1.4th!at c-...*'`:•.:'_ 1237.1 i c„scoping” meetings public agencies have public that invite public comment on the focus and content ofQ:.;; +i:' the DEIR. (See CEQA Guidelines, § 15083.1 This is `: _ especially true if the lead ageagencyassumes the proposed -._ 41 J a� .:;�::4 ���: � :.=y'4 � project is of great interest to or;controversial in the :'-P � '=' r'. . . �� ._. surroundin commun; These meetings offer the - a0A - IL _' public an early opportunity to comment on the content Al of the DEIR, as well as an opportunity to suggest or describe mitigation measures or alternatives that will reduce or avoid any identified significant environmental effects of the proposed project.Although;the lead agenry Lias the right to determine the scope and content of the DEIR,public comments on the scope of environmental review are likely to be reflected in the document in some manner. (c)Preparation of the Draft EIR(DEIR) The-California courts have consistently and repeatedly poin ted out that"the EIR is the heart of CEQA"(Laurel Heights Improvement Association of San Francisco,Inc. v. Regents of tate University of California ("Laurel Heights 11") (1993) 6 CalAth 1112, 1123.] "EIRs should be prepared as early in the planning process as possible to enable environmental considerations to influence project,program,or design"[Laurel Heights 1,supra,47 Cal-3d at 395;see CEQA Guidelines, § 15004,subd.(b).] i The draft EIR (DEIR) may be prepared by the lead agency, by a consultant under contract to the lead agency-, or by accepting a proposed draft prepared by the project applicant. ;Pub. Resources Code, § 21082.1, subd. (a), CEQA Guidelines, § 15084,subd. (d).];The lead agency must"independently review and analyze" the DEIR and when it certifies the final EIR(FEIR) it must make a finding that the document"reflects the independent judgment"of the -agenry. [Pub.Resources Code,§21082.1,subd.(e)(1)-(3).] Since the preparation of an EIR is paid for by the permit applicant,whether it is prepared.by the agency itself orby an EIR consultant hired by the lead agency,the requirements of independent analysis and independent judgment are intended to protect against the applicant preparing a self serving or biased environmental analysis.(See Friends of La Bina v. County of Los Angeles(1991)232 Ca1.App.3d 1446, 1452-1456;Gentry,supra,36 Cal.App.4th 1359, 1367-1370; compare People v. County of Kern (1976) 62 Cal.App.3d 761,775;Sundstrom,supra,202 Ca1.App.3d at 307.1 (i)Project,Program,and Master EIRs In order to eliminate redundant environmental review,and to allow public agencies to undertake CEQA's mandatory environmental review more efficiently,CEQA and the CEQA Guidelines allow agencies to prepare different types of EIRs.The two most commonly prepared EIRs are project and program EIRs. In 1993 the Legislature further amended CEQA to create the Master EIR, intended to reduce or eliminate additional environmental review of subsequent projects or activities which could instead be analyzed within a single broader or"master"EI R. The typical EIR is the project EIR, which analyzes the significant adverse environmental effects of a specific development project.A project EIR will focus on the physical changes to the environment caused by the proposed • project. i. A program EIR allows a lead agency to review the environmental consequences of broad policies or programs at the 12 I I HE C{LTOPWIA E417RONA ENTAL QUALITY ACT I kip FLO • - ' - _ x y,:': 7•;'.+�� 'Y._�:, :.. ,.,:. -.yam.:;.,ac['as. u I COMMUNITY GUIDE TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT .. A. INTRODUCTION The California Environmental QualityAct ("CEQA"), commencing with section 21000 of the Public Resources Code, provides Californians with a great opportunity to influence public decision-making. 1). Purpose of the Guide This updated and revised Community Guide to the California Environmental Quality Act is intended to be a layperson's guide to California's premier environmental protection law.CEQA provides Californians with an effective way to participate in governmental decisions that will affect a community's or region's quality of life.When CEQA is used correctly,it lets the public have a real and powerful impact on public agency decision-making.This Guide explains how to take advantage of CEQA's mandatory public review and corn ie'nt'process: The Guide will offer you a brief overview of the law and is not intended to provide an in-depth review of CEQAs procedures or the extensive body of case law decisions that have developed since the passage of CEQA in 1970. Rather,the Guide is intended to provide you with a better understanding of CEQA's purpose and how and when you have a right to comment on the environmental consequences of"a proposed project. The bibliography at the end of the Guide lists excellent publications that go into greater detail.However,the PCL Foundation hopes this Guide will arm you with enough knowledge and information about CEQA so you!can effectively participate in the decision-making process. Having effectively participated in CEQAs mandated environmental review, you may be better able to influence the political process — twhere ultimately the decision to appro ie,deny,or improve a project will be made. 1. 17' This revised and updated CEQA Guide has _ }. been prepared by PCL Director J. William "' `'d' Yeates.Mr.Yeates specializes in environmental r - law and policy, and particularly in CEQA .:__._........... ;>; litigation and compliance, and has authored I '�.,,'. ::-�.; ':-ry'. .:.5:.. fi-i':Ta:-'•"-• TN.:'R i.t fYMiY'- - r' and co-authored articles and to =~= ��• s +' ="` �"" :�, xts on CEQA. - _ � .�_ '..:''.�" .:'.._. �,;�.,.�r,,..`�"'•,.' `_ �. - :!.^":^.::e" JYa�iT'..:`.i u1:Y;t:i�:�,:�vw•.:'�TT�:�-i'6uiCF`i'S'N+a:lt3'!i'�H!L'F.`�:1 i He has also participated on man legal anels Y g P :. ons of CE �r.::.�,:_=_; •:; ing recent interpretations QAs c+sarY ': :�. review rete � ",�. .•; z:,"�:':.,::. �x:'';�r provisions by the California co ter,.r-= ,," y>»ti=, <... : .:-•<:•�:< urts and recent b changes made to CEQA to g Q Y the state legislature. Due to Mr. Yeates' extensive experience working with and representing community e groups in environmental litigation,this Guide �. . – is particularly directed at making CEQA's "`� =' c. public review process relevant to: the . i community activist. ; - t` 7. 7. Ir.N d like to tick w • Yeates would no ledge and �►� �:. thankand volunteers he :�i< n"",= = = �`R •, #i:`:' H: PC staff untee a o rs w ho took t - .:.;.�;4:.,,,:_,--:�: ...,:�:-.,�^�, :�.. -' .�' �='s,..�...•��+,',,:_ i I ! i' i w.... time to review this Guide. The author 1 would also like to acknowledge his inners at the law fir torn._ m of RE�fY, - Trto,.I..s .auo lvloos w oat - P �-•-�-'•lit:.''�� k.r_� ��ay�.,�,.'.�,•r. .4 prepare •"'.n prepare the Guide to the California _ ,�,yt�'=4= i:.=,:.+r. � r�•:-:��s�.--. _ s-� "• «•w��; --- t...,".•.-..:.- ...-moi• , _ ,,�k .,,fes;, .;�-_-. Environmental Quality Act(CEQA),one. =:':. :1=.' •.�„; w ;.t,�' s � : �'..: ��. of the most thorough and best sources of up-to-date information on CEQA.In the au - particular, author would like to ' r acknowledge the editorial. support of ":= s. . +• ':. ,}; .;•.�•_ ';.4 . Gary Patton, PCLs former General Counsel. M � �� _ � "_'_•%•;c`�-• ,4�. ,,_. r. Patton's organizational ideas, based on his many years as a . "�:;.-. •v. • .c.:,. - `ems;-.:•�+'a.r.':: community activist and local political i '7r, '" i; :�,;t, rV, office holder,helped to ensure the Guides fl�`��- `` focus on public participation. PCLs � =�• t Executive Director wisely suggested the = �+?+ °;r r•i a= - f Glossary'which is appended to the Guide. W;:': '- a`" .• 'e+,..:=.t::r:�::j,1� _.'.a,--..'i-•-.-�.*�_+.-.•,'..��-..viiairre scs,,:. Finally, the author is indebted to Carol Fulton Yeates,who edited the Guide with a careful eye toward clarityr,so the lay reader is not awash in legal ambiguity. 2) Public's Role in CEQA Process CEQA's procedural requirements encotirage public participation in the environmental review process. Furthermore,the public's rights to participate in CEQKs various environmental review proceedings have been consistently protected by the California courts. For example, the California Supreme Court has repeatedly stated that CEQA's procedures must be "scrupulously followed,"because CEQA's environmental review process "protects not only the environment but also informed self-government." [Laurel Heights Improvement Association of San Francisco, Inc. i< Regents of the University of California("Laurel Heights 1")47 Cal.3d 376,392.1 In another important decision,California's high court acknowledged that"citizens can make important contributions to environmental protection"Thus,the Court declared that the California public holds a"privileged position"in the CEQA process.[Concerned Citizens of Costa Mesa,Inc. i,.3 ml District.-lgricul[v,rul Association(1986)42 Cal.3d 929,936.] CEQA requires every public agency in California to have procedures which provide full public participation,so that the public agency can receive and evaluate public reaction to the environmental consequences of its action. For three decades CEQA has opened public agency decision-making to public scrutiny,and California's courts have consistently required public agencies to carefully follow CEQAs procedures. B. CEQA'S SUBSTANTIVE POLICIES CEQA requires public agency dedsion-makers to record,evaluate,and reflect upon the environmental consequences of their actions.In the opening sections of,CEQA,the Legislature has set forth specific policies that led to the enactment of this law. [See Pub.Resources Code,§§21000,21001,21002,&21003.1 The Legislature's policies clearly reflect-the public's interest in and concern for the long-term protection of California's unique, diverse, and varied landscape and natural resources. For example,the Legislature forcefully declared that it is the state's policy to: Develop and maintain a high-quality environment now and in the future,and take all action necessary to protect,rehabilitate, and enhance the environmental quality of the state" [Pub. Resources Code,g 2 100 1,subd..(a).J • Although CEQA was unquestionably enacted in order to provide lung term protection for California's environment,file Legislature has sought to balance CEQA's pro-environment policies by declaring it is also the policy of the state to: I I i i Co,LimuwITY GUIDE About the Planning and Conservation League Foundation The Planning and Conservation League Foundation is a nonprofit organization founded in 1972. Its mission is to educate and;involve Californians in environmental policy-making. The PCL Foundation publishes handbooks for community action,assists decision-makers in drafting effective policies,and produces action-oriented reports about California environmental policy.The PCL Foundation works closely with the Planning and Conservation League to implemerit California's policies and laws. I About the Author J.William Yeates is an attorney specializing in environmental law.He is a Director of the Planning and Conservation League. CEQA Workshops This guide was produced under the auspices of the Planning Conservation League Foundation with the generous support of the Educational Foundation of America. Since October 1998,the Planning and Conservation League Foundation,as part of its land use program,has offered introductory;community workshops focusing on the fundamentals of CEQA. The workshop series is intended to present useful information about CEQA, strengthen local Californians'familiarity with this important environmental law,encourage participation in local environmental decision making,and foster a broader coalition of community activists. For more information about having a CEQA workshop in your community,contact PCL at (916) 444-8726,or visit www.pcl.org. The PCL Foundation Land Use program also offers advanced CEQA workshops,and workshops that focus on general plans and growth initiatives. i • To Order this Report For additional.copies of the Community Guide to the California Environmental Quality Act please send a$15 check made out to PCL Foundation. To pay by Visa or Mastercard include the following information: O Visa D Mastercard Card Number j Expiration date Signature of Cardholder Mail to:Publications Office PCL Foundation 926 J Street,Suite 612 ; Sacramento, CA 95814 For additional information: `MM Phone: (916) 444.8726 i _ j' ,•� ,—=f ��:.�� ' ` Fax: (916) 448-1789 " l.;; http://www.pcl.org _ T Email: pcmlmail@pcl.org Reproduce with permission only. -- � Credit must be given to the r PCL Foundation. I it i i I t�I 1 111 I i I , i I I I i I it i i EXHIBIT 2 RECOMMENDED COAs i . f I i i i 1 1 1 t IT 3 E�XT�L1� T -00S ��gOR TO: BOARD OF SUPERVISORS Contra Costa FROM: DENNIS M. BARRY, AICP County COMMUNITY.DEVELOPMENT DIRECTOR b17 DATE: July 13, 2004 SUBJECT: Hearing on Appeal lFiled by the EI Sobrante Valley Planning & Zoning Advisory Committee; and the Friends of Garrity Creek & Hilltop Neighborhood Association of a County Planning Commission Decision to Conditionally Approve a Vesting Tentative Map for a'Residential Subdivision (County File#SD018533; Siavash Afshar — Applicant & Owner) in the EI Sobrante area (Sup. Dist. 1). SPECIFIC REQUEST(S) OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATIONS Adopt a motion to: A. ADOPT the Mitigated Negative Declaration determination proposed by staff and adopted by the County Planning Commission as adequate for purposes of compliance with the California Environmental Quality Act; B. FIND that the Mitigated Negative Declaration determination reflects the County's independent judgment and analysis; that on the basis of the whole record before it, the Board of Supervisors has determined that there is no substantial evidence that the project will have a significant effect on the environment; and that the material which constitutes the record of the proceedings may be found at the Contra Costa County Community Development Department, 651 Pine Street, Martinez, CA; CONTINUED ON ATTACHMENT: X YES SIGNATURE RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER nn SIGNATURE(S): p ee Adaco-/1.G�.t.t... -L �C11+` oavcf ;aGkGon, ACTION OF BOARD ON A OTHER,�L VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT X UNANIMOUS (ABSENT,) COPY OF AN ACTION TAKEN AND ENTERED ON THE AYES: NOES: MINUTES OF THE BOARD OF SUPERVISORS ON THE ABSENT: ABSTAIN: j DATE SHOWN. i7,1 Contact: Bob Drake (925) 335-1214 ATTESTED cc: Community Development Dept.(orig.) I JOHN SWE ,CLPOKUNTY OF THE BOARD OF Siavash Afshar SUPERVI� AND ADMINISTRATOR EI Sobrante Valley Planning &Zoning Advisory Committee Friends of Garrity Creek Hilltop Neighborhood Association Public Works Department County Counsel By, EPUTY 9XDAR WIN\CCCty15D818533BoardAppealJune84.xpd � I _ I - I July 13, 2004 Board of Supervisors j Hearing on Appeal of Request for 40-Lot Subdivision,File SD018533 Page 2 I I C. ADOPT the Mitigation Monitoring Program; D. DENY the collective appeal of the EI Sobrante Valley Planning and Zoning Advisory Committee, the Friends of Garrity Creek and the Hilltop Neighborhood Association; E. SUSTAIN the decision of the, County Planning Commission that grants approval of a residential subdivision subject to conditions; i F. ADOPT the findings of the County Planning Commission as the basis for the approval of the subdivision and associated variances; and G. DIRECT staff to file a Notice of Determination with the County Clerk. FISCAL IMPACT: None. The applicant is responsible for all staff time and material costs in the processing of this application and appeal. I. BACKGROUND A. Summary of General Plan!and Zoning Considerations i General Plan. The 10.09 acres site is designated Single-Family Residential -High Density (SH). The SH designation allows; 5.0 to 7.2 units/net acre. Assuming that net acreage is 75 percent of the gross acreage,1 the holding capacity of the 10.09-acre site is 38 to 54 dwelling units. The Land Use Element contains policies for theEI Sobrante area (General Plan, pages 3-73 and 3-74). Briefly summarized, these policies encourage "infill development" and encourage aggregation:of deep narrow lots to yield better designed projects (Policies 3-204 and 3-205). Because of the limitations of the existing road network, new development should be approved in the low-to mid-density range.(Policy.3- 203). In the case of a property designated SH; the low range is five dwelling units/net acre; the mid-range is 6.1 dwelling units/net acre. The policies for EI Sobrante recognize that some channels and drainage facilities in EI Sobrante are inadequate, and call for implementation of measures to avoid inundation, ponding and sheet overflow during storms (Policy 3-202); and retaining and reinforcing the semi-rural and suburban character of the community, with strong emphasis on single-family residences (Policy 3-198). Zoning: The property is zoned R-7 (single-family residential, minimum parcel size 7,000 square feet). The Zoning Ordinance provisions regulating this district are found in Chapter 84-6. The standards of the District include minimum lot width 70 feet; minimum lot depth 90 feet; 2-1/2 (or 35 feet) building'height; minimum sideyard setback 5 feet(aggregate site yard 15 feet); front yard setback 20 feet (minimum); and rear yard setback at least 15 feet. B. Site and Proiect Description i The applicant/owner requests vesting tentative map approval to divide 10.09 acres into 40 lots. Variances are requested for: (a) construction of retaining walls taller than three (3) i July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40=Lot Subdivision, File SD018533 Page 3 I feet in height (up to 10 feet in height proposed), (b) combined retaining wall/fence structures in excess of six (6) feet in height (up to 13-1/2 feet in combined height) within the required yards (structure setback areas); (c) for variances to the minimum average lot width standard for four of the lots (Lots 11-14) (proposed widths as small as 56 feet; minimum 70-foot widths required), and (d) approval to remove two protected trees (Lots 18 and 38). The property fronts for 100.17 feet on the northwest side of Hilltop Drive, approximately 100 feet southwest of the Renfrew Road/Hilltop Drive intersection, and it fronts on the western terminus of Marin Road. The property is addressed 4823 Hilltop Drive, in the EI Sobrante Area (R-7) (ZA:H-6) (CT 3630.00) (Parcels 426-210-007; 426- 182-001 & -017; and 426-192-005 & -008). C. Overview of Planning Process The application was received on ,May 17, 2001. At that time the request was for approval of 44 lots. On May 17, 2001, the applicant was notified by the Community Development Department (CDD) that additional information was needed, and the required data was listed. A revised Vesting Tentative Map and related information was submitted. On August 21 , 2001, CDD issued a second request for additional information indicated that the application remained incomplete, identifying the specific items needed to make the application complete. A revised plan was submitted, along with the other items requested by CDD. The application was deemed complete on November 1, 2002. The posting of the CEQA notice and completion of the Initial Study.was.delayed to allow the applicant to work with representatives EI Sobrantel Planning and Zoning Advisory Committee.(El Sobrante P&Z).. Specifically, review of the project had resulted in submittal of all of the data required to satisfy provisions of the Subdivision Ordinance and all technical data needed to prepare the Initial Study. During the 18 months between the.filing of the application with CDD and deeming the application complete, the.plan was revised and the lot yield reduced from 44 to 41 units. However, the correspondence in the County file indicated considerable opposition to the project. In ani effort to resolve these differences outside of a public hearing, staff recommended that'the applicant go back to the EI Sobrante P&Z, get a list of their issues/concerns/recommendations, and then strive to modify the project to incorporate those "concerns" into the proposed VTM. i Based on staffs suggestion the applicant obtained a list of issues from the EI Sobrante P&Z. That list, which is dated December 23, 2002, is presented in Appendix G, page C=11 and C=12; it lists 26 recommendations. The applicant made changes in the plan to address the issues identified by the EI Sobrante P&Z. Those changes included increasing the road widths in the project, connecting' the project roads to Marin Road, thereby avoiding the need for an .emergency vehicle access (EVA), and assigning duties for maintenance of the. creek channel and common improvements to a homeowner's association. Staff reviewed the revised plan and: a) suggested that the applicant seek an endorsement of the newly revised VTM from the EI Sobrante P&Z; and b) staff made additional suggestions pertaining to the grading and retaining walls, along with requesting more details on the measures intended;to keep post-project flows at the pre-development level. i July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File SD018533 Page 4 j Staff also advised the applicant that while he may wish to include a tot-lot in the project (an issue of the EI Sobrante P&Z), ;the Ordinance Code does not allow the cost of that land (or the improvements) to be deducted from the park dedication fees. The reviews by the EI Sobrante P&Z resulted in an updated and expanded list of issues and concerns presented in a letter dated April 19, 2003 (see Appendix G, pages C-8 and C-9). This list contains 29 suggested conditions/changes. In response to the 29-point EI Sobrante P&Z list, the applicant revised the plan for a fourth time and issued a 29-point response (see Appendix G, page C-6). In summary, the lot yield was reduced to 40. Grading was substantially reduced; padded lots nearly eliminated from the project and the proposed slope gradients flattened from 2.5:1 to approximately 5:1.' This has eliminated the retaining walls in the project, with the exception of walls needed for roads in three places within the project (i.e., to comply with the Public Works standards for road gradients). The applicant also modified the road design to eliminate an EVA-only.'connection to the north to Manor Road, and instead provided a connection with MarinRoad. I D. Environmental Review For purposes of compliance with the California Environmental Quality Act (CEQA), staff conducted an Initial Study on the project to determine whether the project would result in a significant environmental impact; and staff determined that the project might result in several significant impacts including impacts pertaining to biological, geologic; cultural and traffic. Staff also identified measures that would mitigate each of those impacts to a less- than-significant level, and the applicant agreed in writing to those measures. On October 22, 2003, County staff posted a.Notice of Intent to adopt a Mitigated Negative Declaration of Environmental Significance, and otherwise provided for notice of the proposed determination as required by law. lOn February 9, 2004, the public comment period on the proposed CEQA determination was extended to March 11, 2004. It should be recognized that the applicant has submitted correspondence from jurisdictional agencies (California iDept. of Fish & Game, Regional Water Quality Control Board, U.S. Army Corps of Engineers) indicating that those jurisdictional agencies have .reviewed plans for development of the site and are prepared to issue permits subject.to permit conditions. The Initial Study and Mitigated Negative Declaration (MND) was referred to the State Clearinghouse. and to the jurisdictional agencies. There is no evidence in the record that any federal, State or regional agencies opposed the MND. However, community groups (i.e., the appellants) have consistently expressed the opinion that an Environmental Impact Report (EIR) is required, and they have submitted a petition signed by more than 200 persons;expressing opposition to the project and requesting an EIR. Additionally, the City of Richmond reports drainage and slope stability problems in a 500-lot residential subdivision immediately west of the site that is within the City (Hilltop Green). For that reason the City of Richmond has requested preparation of an EIR. ' The Grading Ordinance allows uselof 2:1 (horizontal to vertical gradients)so the design that is currently proposed can be considered sensitive to geologic constraints. j j . - i July 13,2004 Board of Supervisors j Hearing on Appeal of Request for 40=Lot Subdivision, File SDO18533 Page 5 I i Before deeming the application complete and commencing with preparation of the CEQA Initial Study, the Community Development Department required the applicant to submit various technical studies, including biologic resource, geotechnical, water pollution control, archaeologic, traffic and hydrologic reports. E. Planning Issues i The application is a request to allow infill development of a site that has been designated for residential development. Tke site is surrounded by residential development. It is designated SH (single-family residential — high density) by the Land Use Element. Due to constraints, including slope, creek corridors and shape, the proposed project is at the low end of the allowable density. The appellants have expressed concern about the potential for various environmental impacts (i.e., traffic, hydrology/water quality, biological resources, and land use/density). Therefore, the issues to be resolved include the following: • Consistency of the project with the County General Plan; • Adequacy of the CEQA Initial Study, Mitigated Negative Declaration and Mitigation Monitoring Program for the project; • Design-issues, including connection to the Marin Road, width of Royal Oaks Drive, justification for the proposed variances, and adequacy of proposed measures for protection of natural resources; and • Provision for park (or public trail) on the site/in the EI Sobrante area. II. COUNTY PLANNING COMMISSION HEARING AND DECISION On May 25, 2004, after notice ;was issued as required by law, the County Planning Commission held a public hearing on the application. At the Planning Commission hearing, staff presented the staff recommendation on the application, and the Planning Commission accepted testimony;from the applicant and other members of the public. i A. Staff Recommendation to the County Planning Commission to Reduce Number of Proposed Lots In reviewing the project, the staff analysis focused on: • The need for access connections with adjoining parcels; • The limitations on usable yard areas involving the proposed parcels with sloping building sites; • The need for traffic-calming measures; and • Concerns associated with determining consistency with various slope protection policies. I July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File SDO18533 Page 6 i After considering these factors, staff determined that in order to make.the required finding of consistency with the General ;Plan, it would be appropriate to recommend that the Planning Commission condition the project to: • Provide access connections with adjoining properties, and speed bumps along the main access into the project; and • Reduce the number of lots from 40 lots to 35 lots. These changes were portrayed ina Staff Study exhibit that was attached to the May 25th Staff Report. B. State Law Restrictions Limiting County's Ability to Reduce Number of Lots In recommending a reduction in the number of lots, the staff analysis acknowledged that the reduction would reduce the number of lots below the number (44 moderate income units) that had been targeted for this site in the General Plan Housing Element, and the need to adopt findings to show that this action would not interfere with the County's ability to meet its obligation for satisfying;the regional housing need. Staff indicated that staff felt it would be possible to make the statutory findings needed before this reduction could be permitted. At the Planning Commission hearing, the applicant indicated that. he accepted all of the staff recommended changes, but,objected to the recommended reduction in the number of units. After receiving testimony,.the Planning Commission voted to continue the public hearing to its June 8, 2004 meeting because not all individuals desiring to speak had an opportunity to speak at the hearing. On June 8, 2004, the County Planning Commission continued to accept testimony from all.persons who wished to speak on the application, .includinga rebuttal from the representatives of the applicant. Following the rebuttal from the applicant, the Planning Commission.closed the public hearing. By a 4 to 2 vote the County Planning Commission granted approval to the subdivision application for 40 lots proposed by the applicant, with modification to Conditions of Approval #1 and #19. The two Planning Commission members that opposed approval expressed the opinion that an EIR should be required for this project. III. ERRATA (Correction to State Law Citation that Restricts the County's Discretion in Reducing the Number of Residential Lots for a Proposed.Subdivision). In reviewing the site plan, the staff report to the County Planning Commission had determined that the project could be improved by certain alterations to the project including a reduction in the number of lots (40 proposed; 35 recommended). However, in doing so, the staff report acknowledged that this site has been targeted for 44 moderate income dwelling units in the general plan; i i July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 7 The staff report also acknowledged a provision of State law that limits the County's ability to make certain findings, and recommended that those findings be made (pg. S-24, and pg. 3 of the recommended project findings. Ultimately, the Planning Commission elected not to follow the staff recommendation to reduce the number of units including the findings that would allow a reduction in the number of lots but rather to approve the project for the number of lots proposed by staff' Subsequently, staff determined that an error in the legal citation of the State law. The provisions of the State law were correctly describedin the staff report. However, the statutory citation for this law is Government Code §65863 (b) rather than the citation identified in the Planning Commission staff report. IV. LETTER OF APPEAL On June 17, 2004 the Community Development Department received an appeal from the EI Sobrante Valley Planning and Zoning Advisory Committee, Friends of Garrity Creek and Hilltop Neighborhood Association. A copy of the appeal, along with attachments, is presented in Appendix A. The appellant's letter identifies 15 appeal points. The appeal points and staff's analysis are as follows. V. REVIEW OF APPEAL POINTS The letter of appeal contains numbered appeal points. However, there were some general comments that preceded the numbered appeal points, and some appeal points were compound. The following presents the entire appeal letter verbatim but the numbering of appeal points has been modified i (expanded). Appeal Point#1: General. On June 8, the Planning Commissioners approved a Mitigated Negative Declaration for this project (SD01-8533) and set a limit of 40 homes for the site. We feel that these decisions were based on flawed, incomplete, and overlooked information. Staff Analysis.. The appeal asserts that the decision is based on flawed, incomplete or overlooked material. However, no specifics are provided, except to refer to the attachments to the letter of appeal. Those attachments are a part of the record upon .which the County Planning Commission decision was based. No correspondence or testimony is disregarded, but commissioners give weight to each piece of information that they believe is appropriate. i i July 13, 2004 Board of Supervisors Hearing on Appeal of Reg4r-st for 40-Lot Subdivision, File SD018533 Page 8 Appeal Point #2: General. The Initial Study fails to acknowledge several significant impacts. We incorporate, by reference, all written comments from Attorney Keith Wagner, Barbara Pendergrass for Friends of Garrity Greek & Hilltop Neighborhood Association and Eleanor Loynd for the EI Sobrante Valley Planning & Zoning Advisory Committee. We are very concerned because the analysis of the adverse environmental effects and the development of mitigation measures were deferred until later and the burden of providing information on these significant adverse environmental effects was shifted to the public, the applicant, and other agencies. That is unacceptable. Staff Analysis: The March 25'' 2004 staff report responds to the CEQA comments of the El Sobrante Planning &Zoning Advisory Committee, Friends of Garrity Creek and Hilltop Neighborhood Association (see Appendix C, commencing on page S- 16). The letter from the I law offices of J. William Yeates was submitted after publication of the staff report. However, that letter was presented to the County Planning Commission at the May 25th, 2004 hearing, and a representative of the firm of J. William Yeates offered testimony to the County Planning Commission. The staff analysis of the appeal points presented herein includes a section that addresses the legal issues raised by the Yeates letter(see Section V1 of this report). it should be recognized that the evaluation of the.initial Study gave consideration chiefly to technical studies submitted by the applicant that were peer reviewed; and in the case of biologic resources and water quality issues, information was obtained from jurisdictional agencies,(California Department of Fish & Game, Regional Water Quality Control Board). The criteria used by the County to evaluate impacts are not those used by the community groups or the general public. For example, the testimony of the appellants focused on problems associated with school traffic; problems backing out of driveways onto Hilltop Drive, and problems turning.(on and off) of Hilltop Drive from minor streets in the neighborhood. The County utilizes the effect of the project on peak hour traffic at intersections to gauge traffic impacts. This is done by calculating;the effect of the project on the level of service (LOS). The technical data in the traffic report submitted by the applicant was reviewed by the engineering staff of the Pubfic Works Department. It was the review that served as the basis for evaluation of the traffic, circulation and parking impacts of the project. Similarly, biologic,1:geologic, hydrologic and other evaluations were made using technical data. To the degree that the comments of the community provided possible scientific and engineering data, that information was researched. For example, some possible artifacts were reported from the site and immediate area through written comments'on the Initial Study by members of the public. These artifacts were examined by the professional archaeologists (Pacific Legacy), who also returned to the site to do a series of"shovel probes"to examine the soils in the area where the finds were' reported by the public. In this case the professional archaeologist reported that materials collected by the public were not culturally- modified artifacts. Appeal Point#3: General. In addition, we feel that the decision is not in compliance with the standards in the General Plana The staff report states that the County slope protection policies can only be met with a reduction in the number of proposed units to 35. The I July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File SD018533 Page 9 Planning Commission ignored and/or overlooked this recommendation and approved 40 units for the site. Staff Analysis: Unlike an Ordinance Code, General Plan policies provide general direction but not specific standards. Additionally, policies may conflict with one another (e.g., the Housing Element contains policies aimed at meeting housing needs, the Conservation; Element has policies aimed at protection of natural resources; and the Traffic and Circulation Element requires an efficient road network.) Based on consideration of these complex issues, the County Planning Commission determined that the project was consistent with the General Plan. Appeal Point #4: Traffic. The California courts have held that public testimony about noise or traffic impacts or topics that you maybe personally familiar with (i.e., significant view along scenic highway) are substantial evidence of a project's significant impact.2 Staff Analysis: The County had adopted thresholds of significance for such environmental effects as 'noise, traffic and visual quality. CEQA recognizes the validity of such locally adopted thresholds. The Noise Element contains: a) noise contour maps; b) noise policies; and c) a table showing land use compatibility for community noise environments. The site is not identified as an area impacted by noise. The project can be expected to generate long-term noise that is characteristic of a residential project. It is therefore not expected to create a significant impact. The project will add to cumulative noise levels along roads serving the project, but based on the relatively small number of residential units, those effects are less-than-significant. Construction-related noise is short-term and the noise source is not stationary. For these reasons, construction noise associated with a small land development project is considered less than significant. Moreover, the Conditions of Approval routinely restrict hours to minimize these effects (see COA ;#20.A, 203, 20.0 and 20.E, which are presented in Table 1). The County has adopted a threshold of 100 peak hour trips to trigger traffic studies that involve sophisticated modeling. In determining if a project generates 100 peak hour trips, the county uses I.T.E. generation rates. In this case the project generates less than half the number of trips to require a comprehensive traffic congestion management study. Nevertheless, the applicant was required to provide a traffic study to examine the effect of the project on local traffic within the site vicinity,3 and that study was referred to the Public Works Department for peer review. That analysis confirmed no significant impacts. The Initial Study did identify a traffic impact associated with the grading balance; and the applicant proposes frontage improvements on Hilltop Drive and on the segment of existing Marin Road 2 Yeates,William,2002, Community Guide to the California Environmental Quality Act. Planning and Conservation League.Foundation. 3 Klemetson Engineering,2002. Traffic Impact Analysis for Subdivision 6533. KE Job#K062(report dated December 15,2001; revised June 30,2002;!addendum August 23,2002). - i July 13,2004 Board of Supervisors Hearing on Appeal of Req,,_st for 40-Lot Subdivision, File SD018533 Page 10 immediately adjacent to the site to provide a smooth transition of road grades at/near the property line. Table 1 NOISE-RELATED CONDITIONS ADOPTED BY THE COUNTY PLANNING COMMISSION COA#20,Contractor and/or developer shall comply with the following construction,noise,litter,and traffic control requirements. These requirements shall be printed in the General Notes portion of the grading and subdivision improvement plans: A. All construction activities shall be limited to the hours of 7:30 a.m.B 5:00 p.m.,Monday through Friday,and shall be prohibited on state.and federal holidays. B. The project sponsor shall require their contractors and subcontractors to fit all internal combustion engines with mufflers which are in good condition and shall locate stationary noise-generating equipment such as air compressors and concrete pumpers as far away from existing residences as possible. C. At least one week prior to commencement of grading,the applicant shall post the site and mail to the owners of property within 300 feet of the exterior boundary of the project site notice that construction work will commence. The notice shall include a list of contact persons with name,title,phone number and area of responsibility. The person responsible for maintaining the list shall be included. The list shall be kept current at all.times and shall consist of persons with authority to indicate and implement cor- rective action in their area of responsibility. The names of individuals responsible for noise and litter control,tree protection, construction traffic and vehicles,erosion control,and the 24-hour emergency number,shall be expressly Identified in the notice. The notice shall be re-issued with each phase of major grading and construction activity. A copy of.the notice shall be concurrently transmitted to the Community Development Department. The notice shall be accompanied by a list of the names and addresses of the property owners noticed,and a map identifying the area noticed. E. Transporting of heavy equipment and trucks shall be limited to week days between the hours of 9:00 AM and 4:00 PM. and 11 prohibited on Federal and State holidays.! i The Transportation and Circulation Element identifies scenic routes, and Scenic Routes Policies.are identified as Policies 5-34 through 5-43. These policies are aimed at protection of views from. scenic routes. The Open. Space Element identifies scenic ridges and,waterways, and implementing Scenic Resource Policies are identified as Policies 9-.!10 through 9-27.. These policies are aimed at protection of major scenic ridges and',scenic qualities of the San Francisco Bay/Delta Estuary system. In this case, the site is not visible from a designated scenic route, and it is not on the flank of a designated scenic ridge. The project will be visible from the residential neighborhood surrounding the site, but there will be no long range views of the site because of its topographic setting. The project involves relatively minor grading and the biologic 'resource mitigation measures assure protection and enhancement of the biologically-sensitive portions of the project. The May 25th staff report presents elevations of the proposed residences (see Appendix C, Figures 14 through, 16). The dwellings shown in those figures.indicate executive.style homes that are at a substantially j lower elevation than the surrounding homes, so they should not obstruct long-range views of the neighbors. Based on consideration of these factors, the visual impact of the project is less-than-significant. Appeal Point#5: Traffic. The testimony of numerous residents as to the heavy traffic on Hilltop Drive, especially during the commute time and the starting/ending of school as well as problems that people have backing out of their driveways should.be considered as substantial evidence of this project's impacts. In addition, the County should have taken into account the current applications and homes under construction in the Appian July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 _ Page 11 Way/Hilltop area. The ten homes being built off Renfrew Court and the five homes under review will add even more trafficto Hilltop Drive. An environmental impact report would address the cumulative effect. Staff Analysis: The testimony of residents have pointed out that traffic is heavy on Hilltop Drive, but these comments are not evidence of a significant impact. The proposed density of the project is at the low end of the allowable density, which can be interpreted, at least in part, as the applicant's response to this issue. The appellants have commented that nowhere in the Initial Study is formal recognition of cumulative traffic impacts, pointing out there are other projects in the immediately vicinity of the,site. In response, the projects sited are a 10-lot major subdivision which is approved (but not yet built) and a five-lot subdivision (application submitted during June, 2004). Both of these projects are in the immediate vicinity of the SD018533 site and will generate traffic on the segment of Hilltop between the site and 1-80, along with traffic on neighborhood streets to destinations such as E/ Sobrante Elementary School . These project sites are shown in Figure 1. The traffic generated by cumulative projects was considered by Public Works staff. The projects shown in Figure 1 will generate less traffic than the adopted threshold for triggering a broad-scope traffic study (i.e., less than 100 peak hour trips using ITE projection rates). Considering the traffic study submitted for SDO18533 and the relatively small size of cumulative projects, it was determined that the cumulative traffic impacts are less than significant. Appeal Point #6: Marin Road. The second access road to this property, Marin Road, is currently a substandard County road with no sidewalks or curbs, large pot holes, and is very narrow with no delineated sides. The road is currently a dead end, so steep that you cannot see the bottom part of the slope. It is like looking over the Grand Canyon. The developer does not intend to make any improvements to this road nor has the County required him to do so even though he was required to improve the access road to one of his other projects with a similar, narrow entrance road. The lack of improvements to Marin Road poses a threat to all existing residents and to the new residents as well. `,, , _ U.N. RIF ISO kuk OMP Al I FRA 610 4-4 wmmw .,'t-i.�"�.�,.. {ilk ►„� a i.r,.x � t-, WWWII;M milm won M� 1 kill INN ♦ { Gra.pbic Scale: 00 fL • r i • • � 0 i July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 13 Staff Analysis: The site of the residential subdivision (SD018533) consists of five existing parcels. Two of those parcels are located at the west terminus of Marin Road (APN 426-192-005 & -008). Marin Road is a public road which stubs out at the site. Marin Road wars intended to provide access to these parcels, which correspond to the area of proposed Lots 24 through 34 (11 lots). Due to the steepness of the terrain, at the west terminus of Marin Road, the initial plans for subdivision of the property did not propose a Marin Road.connection. However, due to the length of the subdivision streets, a second access was needed for the project. The plans submitted with the application in 2001 called for crossing the tributary of Garrity Creek and extending an EVA to Manor Road. This alignment and width was acceptable to the Contra Costa County Fire Protection District and was acceptable to the California Department of Fish & Game with mitigation of riparian impacts. However, the El Sobrante Valley Planning and Zoning Advisory Committee, along with the Friends of Garrity Creek and.Hilltop Neighborhood Association questioned the suitability of the EVA. To accommodate those concerns and keep biologic resource impacts to an absolute minimum, the Vesting Tentative map was modified to provide two. access points. In effect, the VTM revision responded to the issues raised by the community groups that are now appellants. Appeal point#6 asserts that Marin Road is substandard, lacking curbs, sidewalks and with potholes. It goes on to assert that the current improvement standard to Marin Road poses a threat to all existing residents, as .well as residents of SD018533. The public testimony before the County Planning Commission indicated that emergency access to::existing homes at the west terminus of Marin Road was a problem for the Contra Costa County Fire Protection District. Providing a connection to proposed:Garrity Creek Drive will improve circulation options for the existing residents of Marin Road and for emergency vehicles. The Public Works Department review indicates the bulk of project-related traffic will utilize the internal road system to access Hilltop Drive at the proposed Royal Oaks Drive intersection, and that project generation traffic will be chiefly oriented to the segment of Hilltop Drive between 1-80 and.the proposed Royal Oaks Drive. To the degree that the existing; Marin Road has deficiencies, traffic on Marin Road (especially homes near the west terminus of the road):may elect.to use streets in the proposed subdivision to access Hilltop Drive, especially for:trips oriented to 1-80. i Appeal Point #7: Parks. There are no county parks in the EI Sobrante area. The local planning advisory group has made it clear to Mr. Afshar since the first meeting that we want a tot lot or play area on site: If a park is not required, we ask that the County require the developer to pay $50,OOO.to $70,000 to the County Service.Area R-9 Committee so they can partner with the school district, the EBRPD, or another entity to provide play structures. For your..information,jthe.developer of the County project, Appian Village,..was required to pay $70,000 to CSA R-9 in lieu of a tot.lot on that site. The developer of the. Richmond 40-home project on Valley View at May Road will provide $50,000 to upgrade a neighborhood park rather than put a small park on that site. If no park is.built on this site, Mr. Afshar should be required to pay money to offset the loss of the on-site park. i July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 14 Staff Analysis: Park dedication fees are set at $2,000 per unit, so a 40-unit residential subdivision will generate $80,000 in park dedication fees. Fees collected in the El Sobrante area are spent in the El Sobrante area. Historically the County has partnered with the School District to improve%xpand recreation facilities at schools. The project is fewer than 50 lots and thus the County is barred from requiring the developerto dedicate land;for a park within the project by provision in State law. The Open Space Element of the General Plan encourages private developments to provide on-site recreational facilities to serve project residents, but does not mandate such facilities. The applicant has elected not to include one in this proposal.' Were such a facility to be included in the project, the following matters should be considered. The subdivision ordinance (Ordinance Code § 920-8.004, et seq.) allows partial credit(up to 50 percent against the requirement of payment of in-lieu fees) if the County finds it in the public interest to do so and where the facilities meet certain standards. However, the General Plan provides that credit from the park dedication ordinance requirements should only be given where it is clear that private development provides facilities that are open to.andserve the public. A pian Village. The County previously approved the 22-unit Appian Village townhouse project off of Appian Way at Appian Village Court. Perhaps in part .because of the small private yard areas associated with that development, that project originally proposed';a tot lot within.the site. However, prior to construction, the applicant proposed, and the County approved a revised site plan that eliminated that tot lot. But in allowing the elimination of that tot.lot,.the County conditioned the project to contribute $75;000 of supplemental.park fees, beyond the in-lieu ($2,000/unit) fee that applies to the project. The approval also provided that the supplemental fees be used for park purposes in the El Sobrante area. During County Planning Commission hearings considerable testimony was received on the natural features along the tributary of Garrity Creek. The applicant does not own most of this channel which extends from the northwest corner of the site to the north (toward Manor Road). COA #6 requires dedication of a floating trail easement along the segment of the creek that is on the SD018833 site, should a publicly- maintained trail be established along this channel in the future. Appeal Point#8: Land Use. The property is zoned R-7 even though it is in conflict with statements in the General Plan, item 10-28. We respectfully call your attention to these county slope protection policies from the General Plan Safety Element: 10.28 "Generally, residential density shall decrease as slope increases, especially above a 15 percent slope" and 10-29 "Significant hillsides with slopes over 26 percent or more shall be considered unsuitable for types of development which require extensive grading or other land disturbance." An EIR needs to be done to define which land is actually buildable. This July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 16 during the earthwork, but projects of more than 1 acre require a SWPPP from the Regional Water Quality Control Board and approval of an Erosion Control Plan. Moreover, the County Grading Ordinance requires control of dust during the grading period. Even with effective implementation of dust control Best Management Practices (BMP's), there will still be an increase in dust in the immediate project vicinity. Due to the relatively short duration of the construction period, these effects are considered to be less than significant. Finally, this comment suggests that development of the site will deprive wildlife of their natural food supply. In response, the agency with jurisdiction over biologic resources (California Department of Fish and Game) has made a site visit, provided recommendation to the applicant to minimize disturbance of sensitive lands and provided standards and criteria for mitigation of biologic resource impacts. Those recommendations and standards have been incorporated into the biologic resource mitigation measures, and; those mitigation measures have been translated into Conditions of Approval 8 through 14. Appeal Point#10: Geology. Mr. Afshar's Orion Court Project (Renfrew Court project) has been bare dirt for a year and a half and there is no indication that the Garrity Creek project will be any different. Again, the visual affect, the dust and loss of food for wildlife will have a substantial and destructive affect. Another reason for an EIR requirement. Staff Analysis: The comment suggests that an EIR should be required for SD018533 because of reported problems on another project of the applicant. In response, there is no provision of CEQA to use past performance of an applicant as a criteria for triggering;preparation of an Environmental Impact Report. Past experience might be a basis for imposing a rigorous compliance monitoring program. Appeal Point #11: Geology. Contra Costa County's General Plan, Section 8, Conservation Element 8-14, page 8-29 states that development on hillsides shall be limited to maintain valuable natural vegetation, especially forests and open space lands, and to control erosion. 8-15 Existing vegetation, both native and non-native, and wildlife habitat areas shall be retained in the major open space areas sufficient for the maintenance of a healthy balance of wildlife populations. 8-24 The County shall strive to identify and conserve remaining upland habitat areas which are adjacent to wetlands and critical to the surviving and nesting of wetland species. Staff Analysis: The record of biologic correspondence and studies for this project are listed in Table 2. The California Department of Fish and Game is the State agency with primary responsibility for protection of wildlife habitat and special status species. On the project site the important habitat areas are the creek corridors, along with the wet meadow vegetation (on proposed Lot#29). Review of the project plans indicate that nearly 611 of the biologically-sensitive lands are to be preserved. July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Sub Table 2 Page 17 BIOLOGICAL RESOURCE—RELATED DOCUMENTS • California Department of Fish & Game, 2002. Agreement Regarding Proposed Streambed Alteration Notification(received by CDD on March 6,2002). The habitat areas that are . California Department of Fish&Game,March 11,2002.Proposed disturbed by implementation of Hilltop Road Area Project, County File #SD018533, Revised the project are to be mitigated. Vesting Tentative Map of Subdivision 8533, Contra Costa County. Those mitigation measures • LSA,March 11,2002. Results of Fish and Game Site Visit,Hillview were based on criteria and Project,Ei Sobrante. standards of the California ' LSA, December 21,2001. Biological Resources of the Hillview Project Site,El Sobrante, Contra Costa County, California. LSA Department of Fish and Job.#AAD130. Game, and those mitigation • Monk& Associates, September 20, 2002. Hillview Subdivision measures have been (SD8533),EI Sobrante, California. translated into Conditions. of wood, Michael K., July 1, 2002. Hillview Subdivision, Biologic Impacts and Mitigation Measures. Approval 8 through 14. In com effect, a project that lies � wood,Michael K,July 5,2002. Mitigation Monitoring Plan for the p p. Proposed Hillview Residential Subdivision, EI Sobrante., Contra with California Department of Costa County. Fish and Game permit require- • wood,Michael K.,July 9,2002. Amendment to 1603 Notification ments can be considered to of. Streambed Alteration, Notification #2001-982, Hillview Residential Subdivision,EI Sobrante. be in compliance with General wood,Michael K,July 9,2002. Preconstiuction Notification for the Plan Policies 8-15 and 8-24. • Placement of Fill in Waters of the U.S. Pursuant to Nationwide Permits 14 and 33 for the Proposed Hillview Residential Development,EI Sobrante,Contra Costa County, California.Appeal Point #12: Natural Spring. Lot 29 consists of natural spring and wood,Michael K,July s,2002. Application for Section 401 Wafer Quality Certification for the Proposed Hillview Residential riparian area. The current plan is to Development,EI Sobrante, Contra Costa County, California. build a home on the site and have the homeowner be responsible ;for the riparian area and spring. In addition, a sewer line is planned on the lot. One Commissioner pointed out in the Planning Hearings, that in order to protect this riparian area, you cannot have anindividual homeowner responsible for the area. The lot should be owned and maintained;by the Homeowner Association's by-laws. Staff Analysis: The comment suggests that the wet meadow habitat be owned and maintained by a Homeowners Association, rather than being a deed-restricted portion of Lot#29. In response, there are examples of HOA's that did not fulfill their obligations because of financial factors. Another option that could be considered is a Geologic Hazard Abatement District. (The Conditions of approval adopted by the County Planning Commission included COA #18 which called for inclusion of SDO18533 in a GHAD.) The GHAD could be assigned responsibility for maintenance of grassy swbles and drainage structures in deed-restricted areas. The Plan of Control for the.: GHAD could also include maintenance of the fencing. Furthermore, COA #10 requires a biologic monitor to oversee all habitat and tree replacement in accordance;with the provisions of the COA's and the Fish and Game permit for a period of five years. Appeal Point #13: Drainage Problems in Hilltop Green. There have been slides and flooding in the'Hilltop Green area which is a 500 home subdivision located next to Afshar's project. Hilltop Green is below the Afshar project and all water will drain to that area. At this time the County has no information on the adequacy of the Hilltop Green Drainage system to contain the drainage from the Afshar project. County staff has required the July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 18 applicant to get that information and provide it to them at some future time, after the project approval. Staff Analysis: Briefly summarized, the FEMA flood insurance rate maps indicate no flooding problems associated with the channel of Garrity Creek, the West County Wastewater District reported a flooding problem that has been corrected, and the County Flood Control District knows of no flooding problems between the site and 1-80. The City of Richmond Public Works Department indicates there are drainage problems/drainage complaints in the Hilltop Green development, but the City's records are incomplete and hence details of drainage improvements and hydrology calculations are not defined. The appeal letter presumes that the proposed project will adversely affect existing problems in Hilltop Green, but there is no technical data or engineering analysis to support his assumption. Furthermore, the applicant's project objectives, which are presented on page 5-11 of the May 25th Staff Report, include "to keep post-development runoff from the project site at the pre- development level for the design storm." Additionally, the applicant submitted a preliminary hydrology report which indicates that it may be feasible to keep post- development flows at the pre-development rate with grassy swales designed with this.objective.4 Based on consideration of these factors, and with support of the engineers of the Public Works Department, it was determined that there was no evidence of a significant hydrologic/drainage impact. In summary, the project will be required to fully comply with all aspects .of the drainage requirements of the County. Subdivision Ordinance. . This includes collecting all surface. waters entering or originating..on the subject.property.and conveying them in an adequate storm facility to its point of discharge into a natural watercourse. As an alternative, the Subdivision:Ordinance allows the County, at its discretion, to require regulating the outflow from the project so as not to exceed.the capacity of downstream facilities, .and this is the applicant's stated intent. Strict adherence to these Code;requirements can be expected to ensure that the project does not have an adverse effect on the reported downstream drainage inadequacies within the; Hilltop . Green project, Interstate 80, or any other downstream drainage facilities. The Public Works Department, as part of the final design and plan review process, requires submittal of a detailed hydrology and hydraulic analysis of the' downstream facilities to verify their adequacy prior to allowing to discharge to those existing drainage facilities. This may require off-site improvements to increase capacity should these facilities prove to be inadequate as defined by the Subdivision Ordinance.(Source: Initial Study, pages 23-24.) Appeal Point #14: Garrity Creek Video. We urge the County Board of Supervisors to allow us to show you our video of Garrity Creek. Staff Analysis: No response required. This is a request to present a CD that shows natural features on the site and the adjacent portion of the tributary channel to the 4 Klemetson Engineering, 2002. Hydrologic Analysis for Subdivision 8533;4823 Hilltop Drive, El Sobrante Area, Contra Costa County. Report dated February 23,2002. July 13, 2004 q 1 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 15 development has slopes of 5 to 1 (20%), 4 to 1 (25%) and 3 to 1 (33 1/3%) as described in Mr. Afshar's own geological report. Staff Analysis: The comment points out that although the site is zoned R-7 (minimum standard parcel size 7,000 sq.ft.), it is a relatively steep property. The comment questions the application of Safety Element policies 10-28 and 10-29 to the project and it goes on to suggest that an EIR is needed to define which land is buildable. In reply, the May 25 staff report provided the essential facts: • The Safety Element Policies are presented on page S-3. A Slope Map of the property is presented in Figure 5. A discussion of compliance with Policies 10-28 and 10-29 are presented on page S-9 and S-10. i The proposed density I s at/near the lower limit of the density range prescribed by the prevailing land use category (SH allows for 5.0 to 7.2 units/net acre; the proposed density is 5.28). The approach to compliance of SD8533 with Policy 10-28 is to keep the proposed density in the lower portion of the SH category (5.28 units/net acre) and the approach to compliance with Policy 10-29 is in hillside areas to avoid use of pads and instead tuck dwellings into hillside lots (thereby minimizing grading). From a geotechnical perspective, there are no areas of the site That are unsuitable for development. The question on General Plan compliance does not require further geotechnical or slope studies, and it does not require preparation of an Environ- mental Impact Report. It is a policy matter,to be resolved by the Board of Supervisors. Appeal Point#9: Geology. The geological report goes on to say "Areas of the site to be .built on or paved should be stripped to remove any surface vegetation, organic top soils, and existing debris. Stripping depths should be determined in the field by the Soils Engineer at the time of stripping but for planning purposes an average depth of 3 inches may be as Taking every bit of vegetation and top soil, as recommended in the Geological Report, will significantly change the visual nature of the land and provide a terrible dust problem for all residents. There is no provision in the plan.to control the dust. This is in violation of CEQA law. Taking every bit of vegetation away.will deprive the wildlife of their natural food supply. Staff Analysis: The comment quotes a provision of the geotechnical report and then goes on to.draw conclusions that overstate its effects. The areas graded are to be stripped, but areas to be retained in open forms of land uses are not to be.stripped (e.g...riparian area along creek channels, with exception of the creek crossing):and the "grassy swales" The project site is a bowl that is sheltered/partially sheltered from winds by the surrounding terrain features. The visual appearance of the site will be changed July 13,2004 Board of Supervisors Heating on Appeal of Request for 40-Lot Subdivision, File SDO18533 Page 19 north of the site. The features shown on the site are chiefly along creek channels, which are to be retained as deed-restricted private open space in the project. Appeal Point #15: Conclusion. We concur with the statement of our attorney Keith Wagner of the law office of J. William Yeates, that the.Initial Study prepared for this project is legally inadequate. For these stated reasons, the EI Sobrante Valley Planning &Zoning Advisory Committee, the Friends of Garrity Creek, and the Hilltop Neighborhood Association appeal the Planning. Commission decisions on SD01-8533 to the Board of Supervisors. We feel that a full Environmental Impact Report should be required to provide complete. and documented evidence of the impacts and mitigation measures needed to deal with environmental impacts, including the size of the project. Staff Analysis: The staff responses to the comment letter of J. William Yeates are presented below. V.I. RESPONSE TO LETTER.FROM THE LAW OFFICES OF J. WILLIAM YEATES I Comment #1: Overview. This letter, on behalf of our client, Friends of Garrity Creek, provides comments on the Initial Study that the County has prepared: for the above referenced project pursuant to the California-Environmental Quality Act ("CEQA").' These comments are submitted for your and the Planning Commission's consideration "prior to the close of the public hearing on the project before the issuance of the notice of determination."s These comments are in addition to, and do not in any way replace or supersede, any prior comments submitted by our client regarding the proposed project. The California Environmental Quality Act (CEQA) requires a lead agency to prepare an environmental impact report (EIR) whenever substantial evidence in the record supports a "fair argument" that a proposed project may have a significant adverse impact on the environment.7 "[S]ubstantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact."e A mitigated negative declaration, rather than a full EIR, may be,approved for a project only.if: .1) revisions in the project, before release of the Initial Study for public review, will clearly avoid or mitigate effects beyond significance, and 2) there is no substantial evidence, in light of the whole record, that the revised project may have a significant impact on the environment.' Staff Analysis: The legal question raised.by this comment revolves on the definition of such terms as "substantial evidence"and `fair argument." The Public Resources 5 Pub. Resources Code,§21000 et seq. s Pub. Resources code,§21177, st bds.(a)and(b). See Pub. Resources Code,§§21080,subd. (d),21082.2,subd. (d); Cal. Code Regs.,tit. 14, ch.3("CEQA Guidelines"),§ 15064, subd. (f)(1); No Oil, Inc. v. City of Los Angeles.(1974) 13 Cal.3d 68,75(stating that CEQA "requires the preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact."). e Pub. Resources Code,§21080,si bd.(e)(1). s Pub. Resources Code, §§21064.5,21080, subd. (c)(2).. July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40.Lot Subdivision, File SD018533 Page 20 Code states that the following do not constitute substantial evidence: a) argument; b) speculation; c) unsubstantiated opinion or narrative; d) clearly inaccurate or erroneous evidence; and e) evidence of social and economic impacts that do not contribute to, and are not caused by, physical impacts on the environment. Conversely, the following constitute substantial evidence: a) facts; b) reasonable assumptions predicated on facts, and c) expert opinions supported by facts. An agency's determination of whether information in the record constitutes "substantial evidence"boils down to a determination not only that the information is relevant and material but also that it is sufficiently reliable to have evidentiary value. To determine the reliability of the evidence, the lead.agency must consider several factors, including: a) pe Isonal knowledge of the facts the individual testifying (subjective concerns, peljsonal beliefs and rumors.in the neighborhood are not substantial evidence). Furthermore, opinions may constitute substantial evidence only when they are provided by an individual qualified to render an opinion on the subject. Ultimately, the decision-making body considers all written comments and testimony and must evaluate that information to determine if it constitutes substantial evidence. In preparing the Initial Study and Mitigated Negative Declaration, staff considered all of the information available. However, CEQA determinations utilize scientific studies, engineering analysis and other technical data where available. Reliance is also placed on.comments of jurisdictional agencies, and the professional opinions of engineering staff of the Public Works Department(traffic, hydrology) and County consultants (engineering_geology, biologic resources). In this case, the technical studies provided by.the applicant were peer reviewed (except for the archaeologic report). The identification of significant impacts and mitigation measures relied heavily on these studies. No jurisdictional agencies expressed opposition to the Mitigated Negative Declaration. At the County Planning Commission hearings, testimony was received on many technical subjects (i.e., biologic resources, traffic, geology and grading). The County Planning Commission considered all testimony and gave it the weight it deemed appropriate. Comment #2: Substantial Evidence. As plainly stated by California's Court of Appeal, "if substantial evidence in the record supports a 'fair argument' significant impacts or effects may occur, an EIR is required and a negative declaration cannot be certified."10 California case law also makes it clear that a mitigated negative declaration cannot be approved if it relies on mitigation measures that have not been formulated at the time of project approval." 10 Quail Botanical Gardens v. City of Encinitas(1994)29 Cal.App.4th 1597, 1601-02:. 11 See Gentry v. City of Murrieta(1 995)36 Cal:App.4th 1359, 1396(holding that adoption of mitigation measures is improperly deferred where City's mitigated negative declaration reserved the right, after project approval,to require a study of affected, listed species and compliance with mitigation measures that might be recommended by the study); Sundstrom v. County of Mendocino(1988)202 Cal.App.3d 296, 306-314(holding that county cannot rely on other agencies'ability to subsequently devise means of avoiding project's potentially significant impacts). July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File S1301 8533 Page 21 The proposed project cannot be approved at this time, because the Initial Study that has been prepared by the County is legally inadequate. As the following discussion demonstrates, the information that is contained in the Initial Study is inadequate to support a determination that all of the proposed project's potentially significant, adverse environmental effects have been clearly avoided, or mitigated to a "less-than-significant" level.12 Accordingly, the proposed project cannot be approved until, at the very least, a revised environmental document is prepared for the County's consideration. Staff Analysis: Statements by members of the public may constitute substantial evidence supporting a fair argument that a project may have a significant effect on the environment. However, the statements must be supported by an adequate factual foundation. Public comments that are not based on a specific factual foundation do not constitute substantial evidence. An adequate foundation may be established by relevant personal observations. Some confusion about whether public comments are substantial evidence may have been created by the commentor. For example, public comment that asserts extension of Marin Road to the project will lead to traffic impacts can be disregarded as speculation, since the comment is not sufficiently reliable to constitute substantial evidence. Conversely, information on the existing condition of Marin Road is substantial evidence. The Initial Study evaluation of traffic impacts relied upon the judgment of the professional staff of the Public Works Department. Comment #3: Aesthetics. The County's Initial Study acknowledges that the proposed project, which proposes to build 40 lots on a. steep, 10-acre hillside,."will substantially change the visual character of the site as viewed from lots in the adjacent neighborhood."13 But the Initial Study then goes on to opine that the project "could fairly be considered 'infill' development.1114 No substantial evidence is cited to support this conclusory opinion. The Initial Study then states that a."well planned project that protects the channel of Garrity Creek and which complies with the standards/requirements of the CDFG, RWQCB and Corps of Engineers, will not substantially degrade the existing visual character of the site."15 Staff Analysis: The Transportation and Circulation Element identifies scenic routes, and Scenic Routes Policies are identified as Policies 5-34 through 5-43. These policies are aimed at protection of views from scenic routes. The Open Space .Element identifies scenic ridges and waterways, and implementing Scenic Resource Policies are identified as Policies 9-10 through 9-27. These policies.are aimed at protection of major scenic ridges and scenic qualities of the San Francisco 12 Pub. Resources Code,§§21064.15;21080 subd. (c). 19 Contra Costa County CommunityDevelopment Dept., Environmental Checklist Form, Project Title: Subdivision 8533, CDD File#SDO18533(Hillview)(Oct. 13,2003)(hereinafter"Initial Study"), at p.5. 14 Initial Study, at p. 5. The project consists of 15-30 percent slopes. (Initial Study, at p.6.) 15 Initial Study, at p. 5. July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 22 Bay/Delta Estuary system. in this case, the site is not visible from a designated scenic route, and it is not on the flank of a designated scenic ridge. The project will be visible from the residential neighborhood surrounding the site, but there will be no long range views of the site because of its topographic setting. The project involves relatively minor grading and the biologic resource mitigation measures assure protection and enhancement of the biologically-sensitive portions of the project. The May 25th staff report presents elevations of the proposed residences (see.Appendix C, Figures 14 through 16). The dwellings shown in those figures indicate executive style homes that are at a substantially lower elevation than the surrounding homes, so they should not obstruct long-range views of the neighbors. Based on consideration of these factors,the visual impact of the project is less-than- significant. Comment #4: Aesthetics. No substantial evidence supports the County's conclusory statements that the project will not have significant, adverse aesthetic impacts. First, whether or not the site is "planned for residential development" is not responsive to CEQA's requirement that change to the existing environment be analyzed. Second, none of the agencies cited in the Initial Study are responsible for aesthetic impacts, and so complying with these agenciesstandards and requirements regarding 1) wildlife mitigation, 2) water quality protection, or 3) wetland mitigation will not clearly ensure that the project will have no aesthetic impacts. On its own terms, the Initial Study declares that the project will result in substantial changes to the visual character of the area. Unless and until specific and identifiable changes are incorporated into theproject that wil[c/early reduce such substantial changes beyond significance, the project may not be approved based on a negative declaration. Staff Analysis: The comment letter suggests that.residential development of the site from the adjoining properties will result in substantial changes in the views and that this change is a significant impact. What isnot recognized by the comment is that County policies address views from officially designated scenic routes and views of scenic ridges. In this casei the project is visible from.adjacent residences. However, the proposed homes are to be at a lower elevation than the adjacent properties. Therefore, the project is not expected to compromise the rear-yard privacy of the adjacent homes, and it is not expected to modify their long-range views. The short- range views will change, but a. quality project that minimizes grading and protects key biological resources his not expected to create any significant visual quality impacts. Comment #5: Air Quality. The mitigated negative declaration acknowledges that the project may have both short-term air quality effects as with construction, and long- term air quality effects associated with commute trips. Rather than quantify or analyze these effects in any way, the Initial Study states that the Bay Area Air Quality Management District has elected not to respond tothe initial Study. July 13, 2004 0° Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SDO18533 Page 23 Again, no substantial evidence in the record supports the Initial Study's conclusion that the project clearly will have no significant, adverse short- or long-term air quality effects. The lack of comment from BAAQMD'sI is not substantial evidence that the project will not have adverse effects on air quality. As just one example, other parts of the Initial Study make it clear that substantial moveme i t of earth and grading will be required to carry out the proposed project.16 But not a single mitigation measure is proposed to control fugitive dust associated with such earth movement and grading. Construction-level mitigation measures that are typically included in residential construction projects of this type as a matterof course include covering filled truck beds, wetting or seeding disturbed areas depending on length of exposure, and monitoring weather conditions. The Initial Study also fails to address all other construction related air impacts, including, but not limited to diesel particulate and volatile organic emissions. .Put simply, absence of evidence is not evidence of absence. Under CEQA, the burden of environmental review and investigation is on the lead.agency. At the least, the Initial Study must be revised to acknowledge Ithat potentially significant air quality impacts may exist and to incorporate measures that will clearly avoid such impacts or reduce them to. less than significant levels. Since the Initial Study entirely fails to investigate, let alone identify, potentially significant impacts related to air quality, any revised Initial Study with corresponding mitigation measu les would also have to be recirculated for public review and comment before the project can be approved." The agency cannot hide behind its utter failure to gather any air quality data, and must, at the very least, take the affirmative steps necessary to engage in.a.meaningful evaluation of the direct, indirect and cumulative air quality impacts that the project may. have.18 Staff Analysis: Both the U.S. Environmental Protection Agency (USEPA) and the California Air Resources Board have established ambient air quality standards for common pollutants. These ambient air quality standards are levels of contaminants which represent safe levels that avoid specific adverse health effects associated with each pollutant. The federal and California state ambient air quality standards are summarized in Table 3 for important pollutants. The federal and state ambient standards were developed independently,r with differing purposes and methods, although both processes attempted to avoid health-related effects. As a result, the federal and State standards differ in some cases. In general, the California state standards are more stringent. This is particularly true for ozone and PM10. 16 Initial study, at pp. 15-20(noting requirement of substantial grading and presence of highly erosive soils. 17 CEQA Guidelines, § 15073.5, subd. (b)(1). 1e Sundstrom, supra, 202 Cal.App.3d at 311. July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 24 The USEPA established new Table 3 national air quality standards for FEDERAL AND STATE AMBIENT ground-level ozone and for fine AIR QUALITY STANDARDS particulate matter in 1997. The Federal Averaging Primary State existing 1-hour ozone standard of Pollutant Time Standard Standard 0.12 parts per million (ppm) will be Ozone 1-Hour 0.12 ppm 0.09 ppm phased out and replaced by an 8- 8-Hour 0.08 ppm - hour standard of 0.08 ppm.. New Carbon 8-Hour 9.0 ppm 9.0 ppm Monoxide 1-Hour 35.0 m 20.0 m national standards for fine Particulate Matter (diameter 2.5 Nitrogen Annual 0.05 ppm — i 1-Hour 0.25 m microns or less) have .also been Sulfur Dioxide Annual 0.03 ppm — established for 24-hour and annual 24-Hour 0.14 ppm 0.05 ppm averaging periods. The current 1-Hour — 0.5 ppm PM,o standards were retained but PM,o Annual 50 mg/m' 20 mg/m' I 24-Hour 150 m /m' 50 m /m' the method and form for , PMx.s Annual 15 mglm 12 mg/m determining compliance with the 24-Hour 65 Mg/M3 - standards were revised. Lead 30-DayAvg. - . 1.5 mg/m' Month Avg. 1.5 mg/m' — implementation of the new ozone .pPm=parts per million and Particulate Matter .standards mg/m'=micrograms per cubic meter was.complicated by a lawsuit. -On . May 14, 1999; the Court of Appeals for the District of Columbia Circuit issued a decision ruling that the Clean Air Act as applied in setting the new public health standards for ozone and particulate matter, was unconstitutional as an improper delegation of legislative authority to the USEPA. The decision was appealed to the Supreme Court, and on February 27, 200.1,.the Supreme Court unanimously ruled in favor of the USEPA,.clearing the way for implementation of the new standards. During the interim period, the California Air Resources Board developed recommended designations for California air basins, proposing that the Bay Area be designated as "non-attainment"for the new 8-hour ozone standard. Regarding particulates, the state had adopted a standard for PM2.5 that is different than the Federal standard. However, to determine if an area is an"attainment" or "non- attainment" area requires a to network for PM2.5 and a minimum 3-year monitoring period. If the San Francisco Bay Region is found to be a "non- attainment"area for PM2.5; an attainment plan.will be developed by the regulatory agencies. Regional Air Quality Planning. Both the federal and state governments have enacted laws mandating the identification of areas not meeting the ambient air quality standards and development of regional air quality plans to eventually attain the. standards. For the federal standards, the entire Bay Area is a non-attainment area for ozone. The Bay Area is attainment or unclassified for other federal standards. The current federal regional air quality plan is the Bay Area 2001 Ozone Attainment Plan . It was prepared by the Bay Area Air Quality Management District(BAAQMD), the Metropolitan Transportation Commission, and the Association of Bay Area Governments. The plan was prepared in response to USEPA's partial approval and July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File S1301 8533 Page 25 partial disapproval of the Bay Area 9999 Ozone Attainment Plan. The responsible agencies have begun an update to the federal regional ozone plan and completion is expected in 2004. The updated plan will consider measures to reduce emissions of ozone-forming pollutants from transportation sources, industrial facilities, commercial processes and other sources. Under the California Clean Air Act, the Bay Area is a non-attainment area for ozone and PM,o. and either "attainment"or "unclassified"for other State standards. The California Clean Air Act requires local air pollution control districts to prepare air quality attainment plans. Unlike a federal air quality plan, rather than planning for attainment by a specific date the State plan must provide for district-wide-emission reductions of five percent per year averaged over consecutive three-year periods. If this is not possible, then the plan must provide for adoption of "all feasible measures on an expeditious schedule." The Bay Area 2000 Clean Air Plan is the strategy to attain the more stringent California ozone standard. The California Clean Air Act requires the BAAQMD to update-the Clean Air Plan every three years. The 2003 update to the Clean Air Plan will be occurring at the same time as the update of the federal.plan. The 2003 update will include a control strategy review to ensure that the plan continues to include "all feasible measures"es"to reduce ozone, an update of the District's emission inventory, estimates of emission reductions achieved by the plan, and an assessment of air quality trends. Significance Criteria. The BAA QMD19 and CEQA Guidelines (2003) define a significant impact of a project on the environment as one that would: • Contribute to carbon I monoxide (CO) concentrations exceeding the State Ambient Air Quality Standard of nine parts per million (ppm) averaged over eight hours or 20 ppm for one hour, or • Generate criteria air pollutant emissions in excess of the BAAQMD annual or daily thresholds. The current thresholds are 15 tons/year or 80 pounds/day for Reactive Organic Gases .(ROG), Nitrogen Oxides (NO,) or PM,o. Any proposed project that would individually have a significant air quality impact would also be considered to have a.significant cumulative air quality impact; or • Create or frequently expose members of the public to objectionable odors would be deemed to have a significant impact; or Expose sensitive receptors or the general public to substantial levels of toxic air contaminants orpollutant concentrations; or • Conflict with or obstru t implementation of the applicable air quality plan; or • Violate any air quality, standard or contribute substantially to an existing or projected air quality violation; or 19 Bay Area Air Quality Management District, BAAQMD CEQA Guidelines,April 1996(Revised December 1999). July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File SD018533 Page 26 Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard (including releasing emissions which exceed quantitative thresholds for ozone precursors). Impact Assessment. The BAAQMD significance thresholds for construction dust impacts are based on the appropriateness of construction dust controls. The BAAQMD guidelines provide feasible control measures for construction emission of PM,o. If the appropriate I construction controls are to be implemented, then air pollutant emissions for.construction activities would be considered less than significant. In this case, the project requires a grading permit and the Grading Ordinance specifically requires control. of "dust." Further, BAAQMD does not respond to agency referrals for residential projects of less than 350 units because small projects do not warrant review by their staff. Staff review of the proposed 40-unit project in light of the significance criteria determined that the project does not pose a significant air quality impact, and the project is expected to have a minor cumulative-impact on regional air quality. Comment #6: Biological Resources. The Initial Study attempts to re-characterize the project's biological and other impacts in a last minute "peer review" by Monk and Associates that purportedly summarizes the various biological reports that have been submitted to date.20 Because the standard of review for a mitigated negative declaration is whether substantial evidence in the whole record supports a "fair argument " that the project may have significant adverse effects, the Monk and Associates "peer review" cannot be'relied upon to negate or discount the actual substantial evidence in the underlying studies and reports-indicating'that the project may, in fact, have 'significant, adverse effects on biological and other resources that have not been mitigated to "less- than-significant" levels.21 In addition, our client and other members of the public have also submitted numerous questions and comments raising a "fair argument" that the project may have significant, adverse biological impacts that are not adequately addressed in the Initial Study. This letter hereby incorporates by reference, and re-raises as substantive objections, all such comments. Staff Analysis: ` The commenter places reliance on public controversy/public comment to be the basis of a 'fair argument"of the project's biological resource impacts. In response to this assertion, these are the pertinent facts. There have been technical studies that followed the protocols and expectations of the California Department of Fish and Game. Those studies, along with the peer.review by the County's biologic consultant (Monk .& Associates) and comment letters from 6e.California Department,of Fish & Game, are listed in Table 2 of this Board Order(see page 17). 20 Initial Study,at p. 10. 21 Pub. Resources Code, §§21080,subd. (d), 21082.2,subd. (d). July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 27 • Statements made by the members of the public may constitute "substantial evidence supporting a fair argument" that the project may have a significant effect on the environment. However, to constitute "substantial evidence," the statements must be supported by an adequate factual foundation. Public comments that are not)based on a specific, factual foundation do not constitute substantial evidence, nor does speculation about a project's impacts have evidentiary value. • The Initial Study and Mitigated Negative Declaration were forwarded to the State Clearinghouse, and were reviewed by the California Department of Fish & Game, and by the Regional Water Quality Control Board. The Initial Study and Mitigated Negative Declaration were also reviewed by the U.S. Army Corps of Engineers. There is no evidence that those jurisdictional agencies, who have primary responsibility for protection of special status plant and animals, wildlife habitat and water quality, have any concerns/opposition to adoption of the Mitigated Negative De laration • The County Planning commission considered all written comments and testimony in reaching its decision, including the letter from the Law Offices of J. William Yeates and the testimony of Keith Wagner, who represented the firm at the County Planning Commission hearing on May 25, 2.004. Comment#7: Landslide/Slope Stability. The Initial Study acknowledges that the project is located on "expansive soil, . . .. creating substantial risk to life or property[,]"22 The Initial Study claims that such i pacts will be "less-than- significant" with mitigation incorporated. However, the mitigation measures proposed to reduce such impacts to insignificance relies on.the post-approval preparation of an "Updated Geotechnical Report and.Remediation Plan" that will.include "additional subsurface exploration and evaluation of slope stability."23 The Initial Study violates CEQA because it defers meaningful evaluation of the project's impacts with regard to landslides and slope stability until.well after the project is approved. This deferral is particularly troublesome in light of CEQA's requirement of a mandatory finding of significance for any potential project impacts that may result in "substantial adverse effects on human beings. If the potential exists that grading permits cannot be issued for the project due to landslide potential, that:information should be adequately investigated by the County and disclosed to the public before project approval. Staff Analysis: The Initial) Study prepared for the project utilized a geotechnical report prepared by a licensed engineer. The scope of work including the logging of ten borings, engineering analysis of the data gathered, and preparation of a report documenting the investigation and presenting specific standards and criteria for grading, drainage and foundations. The geologic/geotechnical hazards included zz Initial Study, at p. 15(response V1 D.). 23 Initial Study, at p. 17. 24 CEQA Guidelines, § 15065,subd. (d). July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40 Lot Subdivision, File SD018533 Page 28 expansive soils, soil creep and/andsliding: Nevertheless, the report concludes that development of the site is feasible from a geotechnical perspective. The grading plans and geotechnical report were peer reviewed by the County Geologist. That peer review included a site visit, along with review of pertinent literature. The key findings of this review may be summarized as follows: • A published photointerpretative landslide map issued by the U.S. Geological Survey.reports no landslides on the site. (A copy of this map is presented in the May 2e staff report (see Appendix C, Figure 12). • In recognition of lands)fide and other geologic hazards in the.El.Sobrante area, the City of Richmond.in concert with Contra.Costa County, retained Alan Kropp & Associates to prepare a. geologic hazards. map of the. El Sobrante area, including the site of SD018533. .This report, which was issued in ,1991,.showed one small area of/andsliding on the project site. This map is in good agreement with the landslide mapped my AMSO Consulting Engineers in their 2001 report. The County peer review geologist identified three impacts and mitigation measures (see. Appendix E). These impacts and mitigation measures were translated into, Conditions of Approval #17 through #19. The commentor incorrectly suggests that these mitigation measures represent deferred mitigation. However, they are "performance criteria"to ensure that final grading plans and final geotechnical recommendations are consistent with the intent of the standards and criteria in the AMSO report. Comment #8: Erosion and Sedimentation:. The Initial Study acknowledges that the project has the "potential to cause significant erosion. of unprotected slopes, and downslope sedimentation both on- and off-site."25 In order to offset short-term erosion impacts associated with construction, the Initial Study requires the applicant to submit an erosion control plan prior to obtaining a grading permit.28 However, no specific performance standards are included; either directly or by reference,in the Initial Study indicating how the effectiveness of the applicant's erosion control plan will be measured to ensure that the project's admitted, potentially significant erosion impacts will be mitigated to "less-than- significant" levels. Again, the deferral of the development of such plans until after project approval violates CEQA. In.addition, the. Initial Study claims that Tong-term erosion impacts will be mitigated by "incorporat[ing] the appropriate design, constructionand continued maintenance of one or more" proposed long-term measures, but again, fails to establish any performance Standards that clearly.indicate that erosion will.be.reduced to "less-than-significant" levels by incorporation of any or all of the proposed measures:.Moreover, one of the proposed long-term mitigation. measures simply states that ."[c]oncentrated runoff:shall not be .permitted to drain over cut.or fill slopes."27 This is a normative statement, it is not a zs Initial Study, at p. 18. 26 Initial Study, at p. 19. 27 Initial Study at p. 19. July 13, 2004 Board of Supervisors Hearing on Appeal cf Request for 40-Lot Subdivision,File SD018533 Page 29 mitigation measure.28 The Initial.Study might as well announce that "rain exceeding half- inch in any 24-hour period shall not be permittedto fall on the project site." The unanswered CEQA question is, what specific changes will be made in the project to ensure that runoff will not drain over cut or fill slopes, whether"permitted" or not? Staff Analysis: The Initial Study identifies "Erosion and. Sedimentation" as a potentially significant impact. The impact statement and associated mitigation measure can be found in Appendix E, pages 18-19. The grading plan has evolved during the past 3 years (and further changes may result from the action taken by the Board of Supervisors on the appeal). Consequently, performance-based criteria were utilized for this mitigation measure. The mitigation measures included three measures to control erosion during the construction period and four measures to control long-term erosion. Those mitigation measures were translated into COA #19. It should be recognized that the project will require a grading permit, and that permit will require issuance of a.S by the Regional Water Quality'Contro/Board, and approval of an Erosion Contro/Plan by the County Building Inspection Department. The intent of the mitigation measure.(and associated COA #19) is to guide the development of the Erosion Control Plan. Under CEQA, requirements that an applicant complete.certain post-approval studies (such as the Erosion Control Plan) or that an applicant comply with certain laws after project approval(such as.the County's Grading Ordinance) may be.adequate mitigation. Such adequate mitigation measures.are not undermined by the fact that such studies will provide the County with:;more information regarding how to proceed in permitting.ofgrading.. Comment #9: Expansive Soils and/or Bedrock. As with the discussion of landslides and slope stability, .the Initial. Study admits that expansive. soils may result in potentially significant adverse environmental effects,. but improperly defers the.preparation of an "Updated Geotechnical Report"..to describe such impacts and to propose alternatives or mitigation measures to offset such impacts until after project approv61.29 Staff Analysis: The Initial Study identifies "Expansive Soils and/or Bedrock" as a potential significant impact. The'impact statement and.associated mitigation measure can be.found in Appendix E, pages 19-20. The AMSO geotechnical report for the project.concluded that the soils were expansive, and it provided foundation recommendation to mitigate that geotechnical hazard: However, further design details are needed prior to issuance of building permits (spacing and diameter of pier holes;type/amount of�rebar, depth of pier holes,preparation of pier holes (i.e., removal of loose cuttings from floor of pier prior to pouring concrete). The intent of this mitigation measure was to provide performance-based criteria for the final geotechnical report. 2e CEQA Guidelines, § 15370. 29 Initial Study, at p.20; Gentry, supra,36 Cal.AppAth at 1396. See discussion at Part IV.A, supra. July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 30 Comment #10: Hydrology and Water Qualitv. The Initial Study notes that the City of Richmond has submitted comments 1) that "identified existing water problems and landslides, as well as 'springs' within the Hilltop Green development," 2) that drainage through Hilltop Green .is "barely manageable at present," and 3) that drainage from the project site.will flow through Hilltop Green.3' Accordingly the City requested the County to prepare an EIR to analyzed downstream effects on drainage. The Initial Study first improperly attempts to shift the County's affirmative burden to affirmatively investigate such impacts to the City. CEQA does not allow the County to excuse itself from analyzing the project's effects on the existing environment, which includes the existing, acknowledged drainage problems in Hilltop Green.31 The Initial Study then states that "[t]he problems experienced.by Hilltop.Green appear to be associated with deficiencies to the internal drainage structures.I'M The Initial Study's admission that drainage problems in Hilltop Green exist (whether due. to "internal" problems or not) cannot be reconciled with its attempt in the very next sentence to dismiss drainage problems at Hilltop Green as only "public controversy" or"speculation." The Initial.Study then goes on to admit that the:drainage:studies that were prepared by the County for the project only "evaluated the internal drainage system of the project and not the adequacy of downstream drainage facilities."33 The Initial Study then notes that the applicant's drainage report, claiming that runoff from the site will be kept at pre- development levels, only analyzed a 25-year flood event. Perhaps recognizing the weakness of its own analysis, the Initial Study concludes by stating that changes will be required in the project "as part of the final design and plan review process" to "ensure that.the project does not have an adverse effect on the reported downstream drainage inadequacies within the Hilltop Green project; Interstate 80, or any other downstream drainage facilities. As before, the Initial Study, has unlawfully deferred conducting an adequate investigation of the project's impacts on regional drainage, and alternatives. and mitigation measures to reduce or avoid such impacts to "less-than- significant" levels, or establishing performance standards for such impacts, until after project approval. Staff Analvsis: There are five key points that appear to be overlooked by the commentor. The FEMA flood insurance maps do not indicate any flooding problem between the site and 1-80... The �EMA map for the City of Richmond that show the Hilltop Greenproject is identified as panel 015D (Revised September 7, 2001). There 30 Initial Study, at P.23. 31 Pub. Resources Code,§§21060.5,21080,subd. (d). 32 Initial Study, at pp.23-24. 33 Initial Study, at p. 24. July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 31 is no indication of inundation areas in Hilltop Green or along the Garrity Creek channels, and there is no evidence that the City of Richmond has called the reported flooding problem in Hilltop Green to the attention of FEMA. • The West County Wastewater District identified a drainage problem in the Hilltop Green Project but theyalso reported the drainage problem has been corrected. • The design storm for a watershed of 1 to 4 square miles by County Ordinance is the 25-year storm. A hydrology report, submitted by the applicant concludes that post-development flows can be kept at the predevelopment level. • The duty of the proposed 40-lot project is mitigate its drainage impacts and not to.analyze and solve the existing drainage problems in.the 500-lot Hilltop Green subdivision. • The Public Works Department has reviewed the information provided by the City of Richmond and the information provided by the Hilltop Green Homeowners Association. The engineers of the Public Works Department and Flood Control District were provided with the limited technical data submitted by the City of Richmond and information provided bythe Hilltop Green Homeowners Association. The conclu- sions of that review were that there is no fact-based information that indicates that the proposed subdivision poses a significant drainage impact. Furthermore, that the hydrology report provided Eby the applicant, whilel useful for characterization of the general runoff characteristics of the project, :did not follow the methodology recognized by the County for design of drainage.improvements: Therefore, the Conditions of Approval require.further analysis to confirm the project engineer's preliminary estimate that the project will not increase the peak flows exiting the site for the "design storm"(see Conditions of Approval#2.1.C;..21.D, .21E and 50-57). Because modifications in the design of a project can affect,the.runoff.characteristics of the project, the.final drainage design studies are not performed during the CEQA review of land development projects. The County.Planning Commission's approval of the project included drainage-related conditions of approval that are listed in Table 4. Comment#11: Land Use and Planning. The Initial Study recites General Plan Policy 10- 29: "Significant hillsides with slopes over 26 percent or more shall be considered unsuitable for types of development which require extensive grading or other land disturbances."34 As previously noted, the Initial Study states that the project is proposed for areas that contains slopes greater than 26 percent, and will require extensive grading and other land disturbance. The Initial Study's claim that "compli.ance with Polic[y] . . . 10-29 [is] subject to interpretation" cannot be squared with case law making it clear that land use approvals must be vertically consistent with mandatory general plan policies. Regardless of the 34 Initial Study, at p. 26,Table 9(emphasis added). July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File SD018533 Page 32 County's "practice" in the past, the fact remains that.the General Plan forbids projects that require extensive grading on hillsides of more than 26 percent. The Initial Study is defective because it fails to acknowledge that the proposed project is inconsistent with mandato` ry policies in the general plan.35 Moreover, the project cannot be approved as proposed because it is facially inconsistent with the County's mandatory general plan policies. Staff Analysis: The Initial Study (page 16) indicates civil engineers for the project estimate grading to be 15,1234 cubic yards of cut and 20,859 cubic yards of fill. For a 40-lot project, this averages.520 cubic yards of fill/lot; and 380 cubic yards cut/lot. Safety Element Policy 10!29 is presented below: Policy 10-29: Significant hillsides with slopes over 26 percent or more shall be considered unsuitati/e for types of development which require extensive grading or other land disturbance. The commentor suggests that the project requires "extensive grading" without providing the basis of that conclusion. The General Plan policy does not define extensive grading. The pertinent facts may be summarized as follows: 35 Initial Study, p.25(purporting to claim that conflicts with the County's General Plan are"Less Than Significant"). July 13,2004 ,6 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File SD018533 Page 33 Table 4 DRAINAGE-RELATED CONDITIONS OF APPROVAL ADOPTED BY THE COUNTY PLANNING COMMISSION GOA#21 C. Should downstream drainagel facilities.prove.to be inadequate,.construct off-site improvements to prevent the project from worsening the existing conditions. Alternative, construct on-site detention facilities to Flood Control District standards. The design criteria for these drainage structures is to reduce post project peak flood flows to predicted pre-project levels. Each phase of development shall be reviewed by the Public Works Department to ensure compliance with this condition. COA#21 D. Maintain existing drainageways above ground where feasible(i.e.,use an arch culvert at the Royal Oaks Drive crossin of Ga Creek and onlyfor the minimum required crossing distance). GOA#21 E. The arch culvert crossing of Garrity Creek shall be designed to jurisdictional standards such that they do not constrict flows,:including.the 100-year.flood flow. Design of the culvert and associated structures must be reviewed and approved by the County Public Works Department COA#50. Division 914 of the Ordinance Code requires that all storm waters entering or originating within the subject property shall be conveyed,without diversion and within an adequate storm drainage facility,to a natural watercourse having definable bed and banks,or to an existing adequate public storm drainage facility that conveys the storm waters to a natural watercourse. Garrity Creek is not considered an acceptable ultimate discharge point for the purposes of the County Ordinance Code. Additional drainage inventory and analysis of downstream facilities is necessary to:determine the ultimate point of discharge into a natural watercourse,.and additional off-site construction and/or on-site mitt ation per said Code may be required. COA #51. Storm drainage facilities required by Division 914 shall be designed and constructed in accordance with specifications outlined in Division 914 and in compliance with design standards of the Public Works Department. COA#52. Storm drainage originating on the property and conveyed in a concentrated manner shall be prevented from draining across the sidewalks and driveway(s). COA#53. The applicant shall dedicate a public drainage easement over the drainage system that conveys storm water run-off from ublic streets. COA#54. In the absence of public drainage easements,the applicant shall create private drainage easements over portions of the drainage system that convey storm water run-off from more than a single lot or parcel. COA #55. Private on-site storm drain easements,if necessary,shall have a minimum width of 10 feet. COA#56. Applicant shall relinquish"development rights"over that portion of the site that is within the setback area of Garrity Creek.The structure setback shall be determined using the criteria outlined in Chapter 914-14,"Rights of Way and Setbacks" of the Subdivision Ordinance. Development rights shall be conveyed to-the County by grant deed. COA#57. The applicant shall be required to comply with all rules, regulations and procedures of the National Pollutant Discharge Elimination System.(NPDES)for municipal construction and industrial activities promulgated by the California State Water Resources Control Board,or any of its Regional Water Quality Control Boards(San Francisco Bay-Region ll). Compliance shall include developing long-term best management practices(BMPs)for the reduction or elimination of storm water pollutants.The project design shall incorporate,wherever feasible,the following long term BMPs in accordance with the Contra Costa Clean Water Program for the site's storm water drainage: Provide educational materials to new homebuyers. Stencil advisory warnings on all catch basins. Provide options for grass pavers or other semi-pervious paving systems for walks, drives and patios. Slope driveways and weakened plane)joints to sheet flow onto planted surfaces where feasible. Prohibit or discourage direct connection of roof and area drains to storm drain systems or through-curb drains. Other alternatives,equivalent to the above,as aperoved by the Public Works Department. • The project minimizes the use of graded pads. Instead, most residences are to closely conform with the natural terrain. The Staff Report for the CPC presents elevations for both downslope and upslope lots (see Figures 14 through 16) that indicate this approach Ito development. • Roads in hillside areas of necessity require grading to comply with the width and grade standards of the County Ordinance Code. The VTM-approach to control July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 34 of grading is the use of retaining walls at three locations to minimize the "footprint"of earthwork. A point not recognized by the commentor is that General Plan compliance is rarely, if ever,judged in a vacuum. There are Subdivision Ordinance provisions requiring a second access for this project, Housing Element policies that encourage buildout of residentially-designated parcels; Conservation Element policies that call for protection of significant biological resources; etc. It is in this broader context that General Plan.compliances will be determined. A project that is considered to be sensitive to the various planning and environmental constraints can be deemed to be consistent.with the General Plan, even if it involves (limited) grading of slopes steeper than 26 percent. Comment#12: Noise. As with construction-related air quality impacts, the Initial Study is .completely devoid of any investigation of or limitations on construction-related noise impacts." The Initial.Study fails to contain even the most'basic noise control measures, such as limitations on hours of construction, that are included as a matter of course inmost residential projects: As stated above, the County bears the affirmative burden under C.EQA of at least considering t e project's potential to have` adverse noise effects on neighboring residents, and to pro pose.mitigation measures oralternatives to mitigate such impacts. Because the negative declaration:fails to even recognize the potential for.such impacts, it.must be revised and recirculated for public review. before the.project can be approved.17 With regard to long-term noise impacts, the Initial Study freely admits that noise levels will increase as the number of residences.in.the.area increases from one to forty.." The Initial .Study lists several new sources of.noise .emissions,. including air.conditioners, Lawn mowing, and outdoor recreational use.311 s But, the Initial.Study makes no effort at all to quantify or analyze such impacts, and.claims -with no factual support — that long-term noise impacts will be "less-than significant."40 The project cannot be.approved until the County provides some factual basis for its determinations regarding noise impacts. Staff Analvsis: The Noise Element of the General Plan indicates noise.levels on the site are within. the range considered "normally acceptable" .for residential development. The project. is relatively small, the volume of grading is relatively minor, and the duration of. buildout: is short-term. For those reasons, these construction-related effects are not considered to be a significant impact. Factors considered by the County include: a) the relatively small size of the project (40 lots); b) the temporary nature,of construction noise; c) the topographically low 36 Initial Study,.p.28. 37 CEQA Guidelines, § 15073.5,subd. 38 Initial Study, p.28. 39 Initial Study, pp.28-29. 40 Initial Study, p.28. July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 35 elevation of the site that provides some shielding.of adjacent parcels from noise; and d) the standard conditions of approval address the temporary effects of construction noise. Table 5 presents the noise-related conditions of approval adopted by the County Planning Commission. Table 5 CONSTRUCTION-RELATED NOISE CONDITIONS OF APPROVAL ADOPTED BY THE COUNTY PLANNING COMMISSION COA#20A.All construction activities shall be limited to the hours of 7:30 a.m. B 5:00 p.m., Monday through Friday, and shall be .prohibited on state and federal holidays. I. COA#208.The project sponsor shall require their contractors.and subcontractors to fit all internal combustion engines with mufflers which are in good condition and shall locate stationary noise-generating equipment such as air compressors and concrete pumpers as far away from existing residences as possible. COA#20C.At least one week prior to commencement of grading,the applicant shall post the site and mail to the owners of property within 300 feet of the exterior boundary of the project site notice that construction work will commence. The notice shall include a list of contact persons with name,title,phone number and area of responsibility. The person responsible for maintaining the list shall be included. The lisbshall•be kept current at all times and shall consist of persons with authority to indicate and implement corrective action in their area of responsibility. The names of individuals responsible for noise and fitter control,tree protection,construction traffic and vehicles,erosion control,and the 24-hour emergency number,shall be expressly identified In the notice. The notice shall be re-issued with each phase of.major grading and construction.activity. .. . A copy of the notice-shall be concurrently transmitted to the Community Development Department. The notice shall be accompanied b a list of the names and addresses of the propI ertyowners noticed and a map identifying the area noticed. COA#20E.Transporting of heavy equipment and tricks shall be limited to week days between the hours of 9:00 AM and 4:00 PM. and prohibited on Federal and State holidays. COA#20G.Prior to issuance of a grading permitf the_applicantshall provide documentation to the Community Development Department of the proposed approach to achieve full compliance with COA#20 requirements by all contractors and subcontractors within this project i.e. reference" eneral notes"imthe grading plan,provisions in building and grading contracts or other equally effective measures). Comment #13: Mandatory Findings of`Significance. As noted above, the deferral of investigation.of the project's potential for. landslides suggests that the project may have "substantial adverse:effects on hIuman`beings." Unless and until this potential impact is adequately investigated and clearly mitigated to "less-than_significant" levels a mandatory finding of significance is required. for the project based on its uncertain potential for impacts on humans:" Staff Analysis: Under CEQA and its Guidelines, an EIR must be prepared when certain specified impacts may result from a project. When one of.the specified impacts may result, a public agency must make a mandatory finding of significance. In effect, a finding by thei lead agency that specified conditions exist makes the project's effects "significant"as a matter of law: However, under CEQA, the County has broad discretion to decide whether a project's impacts fall within one of the significance categories. Findings regarding these enumerated standards are included in the standard Initial Study checklist and each of the enumerated factors set forth in the Guidelines x(14 Cal. Code Regs. § 15065) was evaluated as part of the Mitigated Negative Declaration (MND). The Initial Study did not identify any of the conditions for a mandatory finding of significance in connection with development of the project. These conditions are listed in Table 6. a' CEQA Guidelines,§ 15065, sub (d). July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 36 Table 6 LEGAL STANDARD FOR MAKING MANDATORY FINDINGS OF SIGNIFICANCE DETERMINATION An agency must find that a project may have a significant effect on the environment and thus must prepare an EIR if the project meets any one of the followingi conditions: 1. Has the potential to degrade.substantially the quality of the environment: Pub Res Code§21083(a); 14 Cal Code Regs §15065(a). 2. Has the potential to achieve short-term environmental goals to the disadvantage of long-term environmental goals.Pub Res C§21083(b)(1); 14 Cal Code Regs§15065(b). I 3. Has possible environmental effects that are individually limited but cumulatively considerable. Pub Res C §21083(b)(2); 14 Cal Code Regs§15065(c). 4. Has environmental effects that will cause substantial adverse effects on human beings,either directly or indirectly.Pub Res C §21083(b)(3); 14Cal Code Regs§15065(d). 5. Has the potential to eliminate imports It examples of major periods of California history or prehistory.14 Cal Code Regs§15055(a). Has the potential to eliminate important examples of major periods of California history or prehistory.14 Cal Code Regs§15065(a). 6. May cause a.substantial.adverse ihange in the significance of a designated historical resource. Pub Res C§21084.1. 7. May adversely affect plants or animals because,under 14 Cal Code Regs§15065(a),It has the potential to: • Substantially reduce the habit lat of a fish or wildlife species; • Cause a fish or wildlife population to drop below self-sustaining levels; . • Threaten the elimination of a plant or animal community; or • Reduce the number or restrict.the ran2e of an endangered,rare,or threatened species. Findings regarding.these standards are..included in the initial study checklists set forth in CEQA Guidelines, App G. cause several of these standards.of significance are general and are largely phrased in subjective terms, they provide little guidance for decision-making. Although they are "mandatory,"lead agencies nevertheless have broad discretion'to decide whether a project's impacts fall within one of the significance categories. In this case, no mandatory findings of significance may be made because the project does not meet any one the specifically enumerated conditions: In the example cited by the commentor, a question is raised as to whether landslide hazards pose a potential for "substantial adverse effects on human beings." In response, the applicant submitted a geotechnical report prepared by AMSO Consu/ting Engineers to.evaluate site conditions and provide specific standards and criteria for site grading, drainage and foundation design. The hazards identified included expansive soil, sail creep(and the existing landslide area). In summary, there is a geotechnical report for this project that. a) concludes the site is.suitable for residential development; .and b) provides geotechnical recommendations for project implementation. This report was peer reviewed by the County Geologic consultant, who identified three impacts and provided mitigation measures intended to assure that the final geotechnical report analyzes the design elements of the project as approved by the County, adds additional subsurface data to confirm/refine the preliminary recommendations of the AMSO Consulting Engineer, and provides slope stability analysis. These mitigation measures are intended to provide on-going assurance%onfirmation that the design.and construction of the project is sensitive to the geologic/geotechnical constraints identified in the AMSO report. July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot.Subdivision,File S1301 8533 Page 37 The staff report prepared for the County Planning Commission hearings included published landslide maps prepared by the U.S. Geological Survey (Figure 12) and 1991 map prepared by a geotechnical consultant retained by the City of Richmond and Contra Costa County to identify a geologic hazards in the El Sobrante Area (Figure 13). The map of the U.S. Geological Survey showed no landslides on the subject property. The more detailed landslide. map of El Sobrante presented in Figure 13 shows a confirmed landslide in the area of Adam Court (at the approximate location of the landslide shown in the AMSO report). Conversely, Figure 13. shows six landslides to.the west of the site, within the Hilltop Green project area. Based on these published maps, the SDO18533 project site and the adjacent lands to the south, east and north may be sensitive to grading but they are generally suitable for development. Finally, the mitigation measures were incorporated into. the Conditions of Approval adopted by the County Planning Commission.(see Table 7)�. Comment#14: Brown Act/Public Participation Concerns. Finally, our client is concerned about the difficulty they have encountered in accessing the documents that will be before the Planning Commission-for its May 25, 2004 hearing. Our client is under the impression that the most recent staff report for this project will not made available to the public until after the Community Development Department's close of business on Friday, May 21, 2004. For all practical purposes, this means that the earliest the public might be able to access the County's staff report for the.project is less than 48 hours before the Planning Commission's proposed.action on the project. California's Brown Act generally requires that any writings that are made available to a majorityor all.members of a board shall be made available to the public without delay.4641 It is.unclear whether the staff reportand other documents that will be before the Planning Commission have been provided to the Planning Commissioners.. If they have, the Brown Act requires staff to grant the public immediate access as well. Beyond the Brown Act, the .public: process is impaired when relevant reports and information regarding.a project are not provided for public review with adequate time to meaningfully consider and understand.their content. Without adequate time for such review, the holding of a "public meeting" becomes an empty symbolic event lacking public confidence or legitimacy. Especially in: light of the well-known public concern and controversy over this project, fundamental fairness —as well as due process concepts of "open governance and "public accountability" -require that the public should be given a 42 Gov. Code,§54957.5, subd. (a). July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 38 Table 7 GEOLOGIC,GEOTECHNICAL AND GRADING CONDITIONS OF APPROVAL ADOPTED BY THE COUNTY PLANNING COMMISSION. COA#15. A. At least 30 days prior to issuance of a grading permit or installation of improvements or utilities,applicant shall submit a final geology, soil;and foundation report meeting the requirements of Subdivision Ordnance Section 94-4.420 for review and approval of the Planning Geologist. The-report shall evaluate soils'conditions and provide specific criteria and standards to guide site grading,drainage and foundation design. This report shall include evaluation of the potential for slope failure,seismic settlement,lateral deformation of fill slopes, differential fill thickness, cut/fill transition lots, and expansive soils by recognized methods appropriate to soil conditions discovered during subsurface investigation.) It shall include slope stability analysis,design criteria for the proposed retaining walls,a remediation plan,and an assessment of the effect of project implementation on stability of adjacent lots. B. A letter-report update shall be required for issuance of building permits for individual lots. The intent of this update is to have the geotechnical engineer review foundation,drainage(and any associated grading)plans,verifying that they comply with recommendations and the intent of the approved final geotechnical reports. Improvement, grading, and building plans shall carry out the recommendations of the approved report. C. A representative of the project geotechnical engineer shall be on-site fulltirrie during foundation work(observing all pier drilling and preparation work for all slabs).to verify compliance of construction practices and exposed conditions with the provisions of the approved geothnical. D. The Grading Completion Report shall include an as-graded map showing the location of fill,keyways and subdrains,as well as as- graded topography. CoA#16. Applicant shall record a statement to run with deeds to property acknowledging the.approved report by title,author(firm),and date,. callingattention to approved recommendations J and noting that the re ort is available from the seller. COA#17. A. Graded slopes in the project shall not be steeper than 2.5:1: B. Engineered slopes on the perimeter of the graded area shall be contour-rounded to mimic natural terrain features. C. Where slopes are required that do not conform to the standards specified In COA#17.A,special engineering shall be required(e.g., reinforced earth,retaining walls). D. Slope stability analysis shall be provided for major slopes in the project...The standard for the project shall be safetyfactors of.1.5 for static conditions and 1.1 for pseudostatic conditions,and a seismic coefficient of 0.15: E. During stripping,the topsoil within graded areas(approximately 2 feet in thickness)shall be salvaged for use during final grading. For engineered slopes more than 10 feet high(with gradients of.Z51 or flatter)topsoil shall be"track-walked"onto finish graded slopes to facilitate reve ation. COA#19. f At least 30 days prior to requesting the issuance of a grading permit,an Erosion Control Plan shall be submitted for the review and approval of the Grading Section of the Building Inspection Department. The Erosion Control Plan shall provide for the following .measures: . A. The Erosion Control Plan shall encompass the applicable provision of the Freshwater Marsh Riparian Vegetation and Trees Mitigation Measure(see Table 4,Items c.and d:). B. The Erosion Control Plan shall encom ass,the Erosion and.Sedimentation Mitigation Measures Eresented in Table 5 following. meaningful opportunity to review and respond to information that is provided to their elected or appointed decision-making officials. Staff Analysis: The staff report was delivered to the County Planning Commission in compliance with°the provision of the Brown Act. The report was delivered to the Planning Commission during the mid-day on May 21, 2004. At that time, copies of the report were also delivered'to the El Sobrante area May 21St for review by representatives of the E/ Sobrante P&Z, Friends of Grarrity: Creek and Hilltop Neighborhood Association. July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SDO18533 Page 39.. Comment #15: Conclusions. As stated at the beginning of this letter, the Initial Study prepared for the proposed project is legally inadequate. The Initial Study 1) fails to acknowledge several of the project s potentially significant impacts, 2) defers the analysis of adverse environmental effects until after project approval, 3) defers the development of mitigation measures or alternatives until after project approval, 4) fails to establish meaningful performance standard ifor mitigation measures, 5) improperly places the burden on the public and other agencies to identify the project's potentially significant adverse environmental effects, and 6) fails to make required, mandatory findings of significance with regard to impacts to human beings. Moreover, the project cannot be approved because it is inconsistent with the County's mandatory general plan policy prohibiting projects that require extensive grading on slopes exceeding 26 percent. The Planning Commission should also put over any final decision on the project to a later meeting, and continue the opportunity for further public comment until all of the documents and reports that are to be taken under consideration by the Commission have been provided to the public with adequate time to allow those who are concerned about the project and its impacts to understand, and raise zany concerns they may have about, the content of such information. 46 Gov. Code, § 54957.5, subd. (a). Staff Analysis: This comment reiterates statements previously made in this comment letter. . Since there are no. new comments, further response is not required. Comment #16: Conclusions. For the foregoing reasons, our client, Friends of Garrity Creek, opposes approval of the project at.this time. Our client.also hereby incorporates by:reference all.-prior.comments that they and all other parties have submitted regarding the proposed project. Contra Costa County should not approve the proposed project.until a revised :mitigated negative, declaration is.prepared that demonstrates, based on the "whole" of the record before the County, that all of the project's effects have been mitigated to "less-than-significant" levels, or until an EIR is prepared to analyze.the project's remaining, potentially significant adverse environmental effects. Staff Analysis: The comments of the law firm of J. William Yeates are appreciated. The comments of the appellants are responded to elsewhere in this document, and in the May 25, 2004 staff report. VII. CONCLUSION In view.of the foregoing:review, staff continues to find that the proposed Mitigated Negative Declaration.determination:is appropriate. . No substantial evidence has been provided that the project would result in a significant impact. Staff also concludes that the proposed 40- unit project as approved by the County Planning. Commission is consistent with the General Plan. Accordingly, the Board adopted the Mitigated Negative Declaration determination, and denied the appeal. July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40 Lot Subdivision, File SD018533 Page 40 VIII. STATE LAW (Time Requirements to Act on Appeal Following Closure of Appeal Hearin The Board of Supervisors should exercise caution before closing the hearing on this appeal. State law regulates the processing of subdivision appeals. Once the Board closes the hearing, it may have only 10 calendar days in which to declare its findings based upon the testimony and documents produced before it or before the Planning Commission. The Board may sustain, modify, reject, or overrule any recommendations or rulings of the Planning Commission and may make any findings which are not inconsistent with the provisions of the Subdivision Map Act or Subdivision Ordinance. If the Board. of Supervisors fails to act upon an appeal within the time limit specified in the Subdivision Map Act, the tentative map, insofar as it complies with applicable requirements of the Subdivision Map Act and the Subdivision Ordinance, State law may require that the tentative map be deemed approved as last conditionally approved by the County Planning Commission, and that it may be the duty of the Clerk of the Board to certify or state that approval [ref. Government Code§ 66452.5 (c) & (d)]. IX. ALTERNATIVE ACTION - In the event that the Board is not able to find the proposed project consistent with the General Plan, the Board could consider alternatives to the project including the original staff recommendation for a reduced project (35 lots), and/or other appropriate changes necessary to allow a General Plan consistency finding. If the Board feels that the project would result in a significant environmental impact that is not proposed to be mitigated to a less-than-significant impact, then the Board could consider requiring an alternative environmental review procedure (e.g., preparation of an EIR, revised Mitigated Negative Declaration determination) prior to considering any approval of the project. 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(showing street names and addresses) 0 0 1� i Resolution No. 19-2004 County Planning Commission Further, the County Planning Commission GRANTS approval to the subdivision application for 40 lots proposed by the applicant, with modification to the Conditions of Approval. The decision to the County Planning Commission was given by motion of the County Planning Commission on June 8, 2004 by the following vote: AYES: Commissioners— Clark, Terrell, Wong and Snyder NOES: Commissioner—Mehlman and Battaglia ABSENT: Commissioner— Gaddis ABSTAIN: Commissioner—None Further, on June 17, 2004,the FZ Sobrante Malley Planning and Zoning Advisory Committee, and the Friends of Garrity Creek and Hilltop Neighborhood Association filed with the County an appeal of the County Planning Commission decision on this project. LEN BATTAGLIA Chairman of the County Planning Commission County of Contra Costa State of California I, Dennis M. Barry, Secretary of the County Planning Commission, certify that the foregoing was duly called and approved on June 8, 2004. ATTEST: DENNIS M. BARRY, MCP Secretary of the County Planning Commission County of Contra Costa State of California R-3 BEFORE THE COUNTY PLANNING COMMISSION CONTRA COSTA COUNTY STATE OF CALIFORNIA APPEAL Siavash Afshar(Applicant& Owner) El Sobrante Valley Planning &Zoning Advisory Committee; and the Friends of Garrity Creek and Hilltop Neighborhood Association (Appellants) Request for Approval of a 40-Lot Residential Subdivision El Sobrante Area, Contra Costa County County File#SD018533 On May 3, 2001, the applicant submitted an application.for approval of a subdivision with the Contra Costa County Community Development Department to establish a 44-lot residential subdivision on a 10.09-acre site that fronts for approximately 100 feet on the northwest side of Hilltop Drive, approximately 100 feet southwest of the Renfrew Road/Hilltop Drive intersection, and it fronts on the western terminus of Marin Road, in the. El Sobrante area. The request included proposed variances to the height standard (for retaining walls in the structure setback zone); variances to the average width standard (for Lots 11-14), and approval to remove two protected trees (Lots 18 and 38). On May 17, 2001, staff notified the applicant that additional specified items were required before the application could be deemed complete, and on August 21, 2001. the staff issued a second request for additional information. On November 1, 2002, upon submittal of various technical studies, the staff determined the application to be complete for processing purposes. For purposes of compliance with the California Environmental Quality Act (CEQA), staff conducted an Initial Study on the project to determine whether the project would result in a significant environmental impact; and staff determined that the project might result in several significant impacts including impacts pertaining to biological, geologic, cultural and traffic. Staff also identified measures that would mitigate each of those impacts to a less-than.- significant level, and the applicant agreed in writing to those measures. On October 22, 2003, County staff posted a Notice of Intent to adopt a Mitigated Negative Declaration of Environmental Significance, and otherwise provided for notice of the proposed determination as required by law. On February 9, 2004, the public comment period on the proposed CEQA determination was extended to March 11, 2004 On May 25, 2004, after notice was issued as required by law, the County Planning Commission held a public hearing on the application. At the Planning Commission hearing, staff presented the staff recommendation on the application, and the Planning Commission accepted testimony from the applicant and other members of the public. Staff had recommended that the project bereduced from 40 to 35 lots as a method for achieving consistency with General Plan slope protection policies and related site plan considerations. After receiving testimony, the Planning Commission voted to continue the public hearing to its June 8, 2004 meeting because not all individuals desiring to speak had an opportunity to speak at the hearing. Resolution No. 19-2004 County Planning Commission On June 8, 2004, the County Planning Commission continued to accept testimony from all persons who wished to speak on the application, including a rebuttal from the representatives of the applicant. Following the rebuttal from the applicant, the Planning Commission closed the public hearing. Commissioners Mehlman and Battaglia indicated that based on testimony and evidence submitted by the public, they felt that,an Environmental Impact Report should be prepared on the project before considering any approval of the project, and expressed particular concern about the project's impact to traffic conditions in the community; further Commissioner Mehlman indicated that he supported the staff recommendation to reduce the number of lots to 35 and also indicated that an additional residential lot, Lot 29 should be eliminated and that its entire area (including required biotic habitat area) be set aside for a biotic reserve area (not just a portion) and converted to common area that would be maintained by the project homeowner's association. The County Planning Commission, having fully reviewed, considered and evaluated all evidence and testimony submitted on this matter. RESOLVED, for purposes of compliance with CEQA, the County Planning Commission FINDS that: • On the basis of the whole record before the Commission, including the Initial Study and the comments received, there is neo substantial evidence that the project, with mitigation measures, will have a significant effect on the environment. • The Mitigated Negative Declaration determination reflects the County's independent judgment and analysis. • The documents and other materials that constitute the record of proceedings upon which the County Planning Commission's decision is based may be found at the Community Development Department, 651 Pine Street, Martinez, CA, the custodian of the records. Fuc-ther, the County Planning Commission ADOPTS the proposed Mitigated Negative Declaration determination for purposes of compliance with CEQA, and the Mitigation Monitoring Program. Further, the County Planning Cpmmission FINDS that the proposed project is consistent with the General Plan including the slope protection policies cited by staff and that all the Ordinance Code findings that are required for approval of a subdivision and for approval of the associated variances can be made and at the same time the Planning Commission determined that it would not be appropriate to make recommended findings that would allow for a reduction in the number of proposed lots. R-2 a�� '� FINDINGS AND CONDITIONS OF APPROVAL FOR SUBDIVISION 018533 (Afshar — Applicant& Owner), IN THE EL SOBRANTE AREA AS APPROVED BY THE COUNTY PLANNING COMMISSION ON JUNE 8, 2004 (Modifications made at the hearing by the County Planning Commission are shown with shading (additions) and strike through (deletions). Findinp,s A. Growth Management Performance Standards y 1. Traffic: The project will generate an estimated 43 additi"onal$AM and PM peak hour trips. (This assumes 40 new residences on thq site, demolition of one existing residence, and 1.1 peak hour trips per unit.) Therefore,the applicant is not required to prepare a traffic report,pursuant to the 1988 Measure Clequirements. 2. Drainage and Flood Control: The subdivision conditions of approval require that the applicant collect and convey all stofrnwaters entering ov'Originating within the project (Reference COA's#50-51). No portion of the site.lies within a special flood hazard zone that has been designated by the Federal Emergency Management Administration (FEMA). 3. Water and Waste.Disposal. Theproject site is within the EBMUD and West County Wastewater District service areas. The applicant shall be required to comply with the requirements of these setlrvice districts (Advisory Note "I"). 4. Fire Protection: The site is$in the Consolidated Fire .Protection District and must comply with requirements of the District (Advisory Note "B"). The site also lies within one mile.of the fire station at#4640 Appian Way. Therefore, the project is not Tnrequired to provide"automatic sprinklers in order to make this finding. T 5. Public Woteciion: The Growth Management Element Standard is 155 square feet of Sheriff facility station per 1,000 population. The project will generate a population estimated at 3.25 persons per unit (an increase of 127 persons). The size of the "•population increase is not significant, and the conditions of approval require the applicant to establish a police service district to augment police services(COA#23). 6. Parks & Recreation: The proposed subdivision will have a relatively minor cumulative effect on demand for park and recreation facilities, and is subject to payment of park dedication fees at time of issuance of building permits. (Reference Advisory Note "C"). 2 : (Reference Growth Management Element of the General Plan) B. Findings to Approve a Tentative Map 1. Required Finding- The County Planning Commission shall not approve a tentative map unless it shall find that,the proposed subdivision, together with the provisions for its design and improvement, is consistent with the applicable general and specific plans required by law. Pr iect Finding—Most of the site contains slopes that exceed a 15%gradient; some of the property has slopes as steep as 26%. The site is otherwise required to'observe structure setbacks from a creek, and to work around a proposed creek bridge. While tAIR he Single Family Resid ,Ihtial—High Density designate would normally�allow 38— 54 dwellings to be considered on this 10 gross acre site, thertopographic limitations are not suited for a project with the proposed.number of units. To"f nd consistency with general plan policies including Policy#10-24, 10-28,'and 10-29,the number of lots shall be reduced by five (to 35 lots)'to'provide for more latitude in ultimate development of this project including-fd`nctional.„outdoor living areas that will allow for compatible development. The Public Works Department has:,,,prepareconditions of approval (COA's) that address traffic safety, circulation and road improvement standards. Furthermore,the Public Works COA's`also require compliance with the "collect and convey” requirements of the Ordinance Code: Drainage improvements within the watercourse require a Streambed Alternation Agreement from CDFG and compliance with requirements of the�Corps of Engineers and Regional Water Quality Control Board. Correspondencefrom these agencies indicates that the project is consistent with their expectations. The finah,,conditions of the permits issued by these jurisdictional agencies await approval,,6f the subdivision application by the County. The residential d��sity for -a-lower-residential density that is belew !he density Oafeel to deter-mining eomplianeelement . (Gov't Code c 65543TEI 77 � is 7 d: g the housing el '* Dre;Frtd4ag_The red, _+ion f e —the proposed 0 lots (and 44 . nits total for-the five affeeted par-eelsiden t- A,; t..e "potential" number of units de-)-tcr1'tl�-cv'using ElemeElement r..,l ey)to 2 lots y io find the prejeet eonsistent with the general nt LV✓✓ IVLJ lJ LLVVVJJUl� LV plan slope p „tesi_„ io i;__n- t,_nt_YYY„UlU allow f^l Tease 1UV1V development of a hi _h ..3 .. density single family residential nei hborlieed. The feduetion in the number-of lots would allow for- a more feasible i:esidential de,,elopment that would allow f0f mof I �er-ing solutions that Faa entail Dances t�ta-ndards. Also the p „teetio of'slopes and feduetion ifl the number-of units on si-ple-S-exe-ee-ding a gfade of o is r-eeognized in the 14ousin Element. siteq ;.,esti-ed in the hoiis ,,.. - em .,r are to Seetien 65584. 1 Development has eeffi.. Housing Element u�& 17 A r-An+. While this approval lecar-1pq the Site 9 units sh :' '; category identified in that inve, Pf e. S-s that still exis would allo=y` the-{-~-ou Aie 1.le'ta- et f6r- housing units for- the- c C.D-. Findings for Variances -Retaining Walls in Structure Setback Area(Ord. Code 26-2.2006) 1. Required Fit ding-A variance shall not co�rstitute a grant of special privilege. Project Findin&— The nature.of theIproject is to develop a residential subdivision in a hillside area while protecting,an,existing creek corridor and minimizing grading,and thereby controlling erosion. In the case of the retaining wall along Royal Oaks Drive, the location of the creek crossing was selected by CDFG to minimize disturbance to riparian habitat, and the vertical alignment and width are controlled by the County's private road standards. For the walls proposed along Garrity Creek Drive, the walls are proposed to�avoid/minimize disturbance to biologically-sensitive lands. 2. Required Finding — Because of special circumstances applicable to the subject IN pl-operty(e.g. its size, shape topographv, location,surroundings)strict application of the respective zoning i ec lations i.s found to deprive the szrbject property of rights enjoyed by others. Project Finding—The retaining walls are all associated with roadway. The County has private road standards. In a hillside area, retaining walls are required to comply with those standards. The proposed retaining wall along the main entrance to the project is due to the shape of this portion of the property, and constraints on the horizontal and vertical alignment of this private road. 4 3. Required Finding—Any variance authorised shall be substantially consistent with the intent of the zoning district. Project Finding=The purpose of the R-7 district is to provide and protect areas for residential development. The use of retaining walls is intended to: a) allow the construction of a subdivision with two access road connections,b)minimize grading, and c) allow preservation of the creek corridor. D.E. Variance Findings -Average Lot Width, Lots 11, 12, 13 and 14 1. Required Finding-A variance shall not constitute a grapt of"special,privilege. 0�. ` Project Finding — The lots are substandard in average, width, but;exceed the minimum standard lot area (ranging from 8,511;;04lp,505 square feet). They are generally level pie-shaped lots that have an obvious building site. On that basis the approval of a variance is not a grant of special privilege. 2. Required Finding — Because of special.circumstances.applicable to the subject property(e.g., its size, shape topography,`location.,surroundings)strict application of the respective zoning regulations is found todeprive the subject property, of rights enjoyed by others. Project Finding—The,special circumstances are the location of the lots at a cul-de-sac bulb. While such Iots:may not,meethe average width requirements of the prevailing R-7 district, they have ample area to'develop a residence. The lots are sufficiently large as to have a potential building site that meets the structure setback standards of the prevailing zoning district. 3. Required Finding—Any variance authorized shall be substantially consistent with the Intent ofthe zoning district. a �Y r Project Finding—The purpose of the R-7 district is to provide and protect areas for residential development The lots which have substandard average width are �, relatively wide and have an obvious building site. On that basis the granting of the variance is not inconsistent with the intent of the district. CONDITIONS OF APPROVAL Administrative 1. The application is approved for fgrty(40) lots, as generally shown on the Vesting Tentative Map received by the Community Development 5 Department on November 6, 2003. Unless otherwise indicated, the following conditions of approval require compliance prior to filing the Final Map. Pl for to filing a final map, site clearance or issuance of a grading permit,the applicant shall submit a revised site plan for the review and approval of the Zoning Administrator that reduces the number-of lets from 40 tom 1 The shall be consistent with the Staff Study dated May 20, 2004 as follows° except thhe poject°shall allow:For4() lots: BL2 The are-is nn„„ o l b-T ets 6 th-ei igh 1 1 sl,A1'-be rl , 0 1 t ,0 1.�+1• B. thfoug C. The a —ets 40 shall be r-eEI D. The are,- upied by Lets 26 through U §hallbhe r-duced te two £:" 7 lots-. `. 9. The_area ., ,,;e.l 1,., T T .,tom 27 +li, ,,, .1, _Z 4,.qhall 1,a oa,, o a t., two lots. a Fu fther���o..,,,f;..,,.n+ .,,, .,f' ets �_ +I e- above listed ,.1,.,. ges i cmzr , 11 nes oa m ,hail l-;as tl, Ii d IE ff VIve ls.ts 1,,.. 7o,;r,.r A D ., nl Oaks n, The revised plans shall provid&for minimum 28-foot wide road/utility right-of-way donne`tions as:follows: • From Royal Oaks Drive on the west side of Garrity Creek to link with AW418-210=008 (Jalil) and to 428-210-008 (Alejandre); and Extension,of;Garrity Creek View (Road) westward to connect with APN 428- 00-010 (Hall). *Additionally, most of Lot 29 (inclusive of the proposed wetlands and detention basin) shall be deed restricted as generally depicted in the Staff Study so as to prohibit the fee owner from altering the wetland conditions and drainage improvements (detention basin) on this portion of the site. This approval is also based on the findings and recommendations of the following project reports and documents: A. Biological Resource—Related Documents I • California Department of Fish & Game, 2002. Agreement Regarding Proposed Streambed Alteration Noti fication(received by CDD on March 6, 2002). .6 • California :Department of Fish & Game, March 11, 2002. Proposed Hilltop Road Area Project, County File #SD018533, Revi ied Vesting Tentative Map of Subdivision 8533, Contra Costa County. • LSA, March 11, 2002. Results of Fish and Garvie Site Visit, HilliewProject, El Sobrante. • LSA,December 21, 2001. Biological Resources of the Hillview Project Site, El Sobrante, Contra Costa Coun "California. LSA Job#AAD 130. • Monk&Associates, September 20, 2062� Hil`Iview Subdivision (SD8-533), El Sobrante, Californias " Wood, Michael K.,July 1,2002.-Hillview Subdi.siota, Biologic Impacts and llfitigation Measures., • Wood,Michael K.,July,5,2002., Mitigation MonitoringPlan for the Proposed Hillview Resideritial Subdivision, El Sobrante., Contra Costa CO lnty, ' • Wood, Michael K., July 9, 2002. Arneitdment to 1603 Notif catioti of Strearrzbed Alteration, Notification #2001-982, Hillll iew.Resideiriial S ibdivision, El Sobrante. • Wood, Michael K:,.,July 9, 2002. Preconstruction Notification for- the;l',lacetnen of Fill in Waters of the U.S. Pursuant to Ncationwid.e Permits 14 and' 33 for the Proposed Hillview Residential Developinent, El Sobrante, Contra Costa County, Califor�aiii. • Wood, Michael K., July 8, 2002. Application for Section 401 Water Qualitv Certification for the Proposed Hillview Residential Development, El.Sobrante, Contra Costa County, e, Nw California. • Woold, Michael, K., September 26, 2002. Hillview Subdivision, Response to Comments. B. Geotechnical and Geologic Reports I • AMSO Consulting Engineers,2001. Geotechnicallnvestigation, Hillview Residential Development, 4823 Hilltop Drive, EI Sobrante, California. AMSO Job#3128 (report dated April 30, 2001). 7 C. Water Pollution Control Program • Klemetson Engineering, 2002. Water Pollution Control Program, Subdivision 8533;4823 Hilltop Drive,El Sobrante Area(APN 426- 210-007, -182-001 and -017, and -192-005. and -008 (dated February 24, 2002). D. Archaeology Report • Pacific Legacy, Inc., 2001. Archaeological Survey f6r;,Proposed Hillview Subdivision, APN 426-192-005,426,182-017%and 426- 210-007,El Sobrante,Contra Costa County(dated April 28 2001). �a. • Pacific Legacy, Inc., 2004. Arc=.19'2004, gic Suney for Hillcrest Homes Subdivision (letter dated 3ppages). E. Traffic Report • Kle Ietson Engineering, 2001. Traffic. Impact Analysis for SubCllylsioil 8533. KE Job #K062 (dated December 15, 2001). F. Hvdrolol y Analysis , f • Klemetson�- Engineering, 2002. Hydrologic Analysis for ;: Subd vision 8533;•4823 Hilltop Drive, El Sobrante Area, Contra Costa County(report dated February 23, 2002). �n Indemnification 2. Pursuant to Government Code Section 66474.9, the applicant(including �gthe subdivider or any agent thereof) shall defend, indemnify, and hold harmless the Contra Costa County Planning Agency and its agents, W officers, and employers from any claim, action or proceeding against the Agency (the County) or its agents, officers, or employees to attack, set aside, void or annul, the Agency's approval concerning this subdivision map application,which action is brought within the time period provided for in Section 66499.37. The County will promptly notify the subdivider of any such claim, action, or proceeding and cooperate fully in the defense. Compliance Report 3. At least 60 days prior to filing a final map or issuance of a grading permit, the applicant shall submit a report on compliance with the conditions of 8 approval with (this permit and the final development plan permit for the review and approval of the Zoning Administrator. Except for those conditions administered by the Public Works Department,the report shall list each condition followed by a description of what the applicant has provided as evidence of compliance with that condition. (A copy of the conditions of approval may be available on computer disk;to try to obtain, contact the project planner at 335-1210.) Unless otherwise indicated,the applicant will be required to demonstrate compliance with the conditions of this report prior to filing a final map. The compliance<re ort shall include an intermediate site/grading plan that shows informatioifrequired for tentative subdivision maps, including roadAm'proveLments, drainage facilities, grading plan, lot characteristics (area, average width; average depth)and identify the potential building sites..7hesZ6ning Adrrrrnrstrator may reject the Ireport if it is not cornpreh ive tivith,respc t to applicable requirementsfor the requested in inisterial permit. The per'rnit canipliance review is subject to Fstaff tirrre and material charges, with an initial deposit of$1,500.00'which shall be paid at time of submittal of the compliance report. A check is payable to the County of Contra Costa. .. 14 Variances 4. A. Approval pis granted to "allow variances to the average lot width standards thatV meet the requirements of Section 26-2.2006 of the County OrdinanceCode as follows: 70 feet required by zoning ordinance ,V 56 feet approved for Lot 11 57 feet approved for Lot 12 56 feet approved for Lot 13 60 feet approved for Lot 14 � B. Approval is granted to allow variances to the retaining wall height in the structure setback zone as follows: 3 feet (maximum) allowed by zoning ordinance 10 feet (maximum) allowed on.Royal Oaks Drive 8 feet, 8 feet and 7 feet tiered walls (maximum) allowed on Garrity Creek Drive 6 feet (maximum) allowed on Adam Court 9 C. Approval is granted to allow a variance in the structure setback zone to allow a 42-inch high guardrail in conjunction with retaining walls I. along project roadways for safety. 6 feet (maximum) allowed by zoning ordinance for combined retaining wall plus guard rail 131/ feet (maximum) allowed on Royal Oaks Drive 11'%2 feet (maximum allowed on Garrity Creek Drive 9'/ feet (maximum) allowed on Adam Court` Archaeology � ;z. 5. A. If any significant cultural materials such'as artifacts,Human burials, or the like are encountered during construction operations, such operations shall cease within 10 fCe'f� be find„the Community Development Department shall be notified within 24 hours and a qualified) archaeologist* contacted ands .retained for further recommendations. Significant culturamaterials include,but are not ,��Table 1 CULTURAL RESOURCES MITIGATION MEASURES a) If any significant cultural materials such as artifacts,human burial..s,.or the like arc encountered during construction operations,such operations shall cease within 100 feet of the find,the Common it�ne4elopment Department shall be notified within 24-hours and a qualified archaeologist contacted and retained for further recommendations;Significant cultural materials include,but are not limited to,aboriginal human remains,chipped stone,groundstone,shell and bone artifacts,concentrations ofjfirc cracked rock ash,charcoal,shell,bone,and historic features such as privies or building foundations. b) In the event of discovery or recognitioof any human remains ai the site,there shall be no further excavation or disturbance of the site of the "find”or any nearby area reasonably suspected to overlie adjacent remains until the coroner of Contra Costa County has been contacted,per Section 7050.5 of the California Health and Safety-Code. c) Appropriate mitigation of the cultural resources may include monitoring of further construction and/or systematic excavation of the resources. Any artif acts or samples collected as part of th e initial discovery,monitoring or mitigation phases shall be properly construed,catalogued,analyzed, evaluated and curated along with associated dtx umentation in a professional manner consistent with current archaeological standards. N j. limited to, aboriginal human remains, chipped stone, groundstone, shell and bone artifacts, concentrations of fire cracked rock, ash, N. charcoal) shell,bone and historic features such as privies or building foundations. B. In compliance with the provisions of the cultural resources mitigation measure, which are presented in Table 1, the General Notes on Grading Plans and Improvement Plans shall include the provisions of COA #5.A. Scenic Easement/Trail Easement 6. A. Development rights shall be dedicated to the County for the areas along the creek corridors and the riparian portion of Lot 29,utilizing 10 a deed instrument that is subject to the review and approval of the Zoning Administrator. The easement instrument shall provide that no grading, fencing, development activity, or removal of trees may occur in that area without the prior written approval of the Zoning Administrator. Perimeter fencing shall be allowed, but its design shall be subject to review and approval of the Zoning Administrator. B. The applicant shall offer for dedication of a minimum 1.0-foot wide trail easement from the tributary of Garrity Creek to private roads within the project and along sidewalks in theprbject, subject to the review and approval of the Zoning Administrator. The ,offer of I dr $: dedication will not be accepted by the,County unless/untilla public trail is established along the reach of the tributary stream between Manor Road and the site. The granting of theitrail easement does not imply trail construction. The offer shall,stipulate that the HOA would be responsible for maintenance and liability of the segment of trail within its boundaries, even 4 it is ultimately accepted as a public trail. <, , CC&R's 7. Draft Covenants, Conditions and Restrictions shall be submitted for review with the Final Map,and shall be subject to review and approval by the Zoning Administrator. This document shall provide for the establishment of a-Homeowners Association to maintain common facilities within he project-inclu"ding drainage facilities,roads,and street lights. It shal=l also.provide for establishment, ownership and maintenance of the landscaping,along the Hilltop Drive frontage of the site and maintenance of other common facilities The Covenants, Conditions and Restrictions (CO&&Rs) developed for this project shall include the following restrictions01 : A. . Inclusion of Residential Design.Measures for the Stormwater Quali.41 ty Control (Plan — The document shall reference the project Best Management Practices.for the Stormwater Quality Control Plan for . the project pertaining to residential development (e.g., permeable g driveway surface). The document shall provide that construction plans submitted to the County for residential development for building)permits shall comply with the residential design measures in that plan. B. The document shall indicate that Lots 11 — 14 are substandard in average lot width; any proposed development on those lots will be 11 subject to the public notice and review requirements of the Small Lot Occupancy Ordinance(Ord. Code § 82-10.002(c))prior to issuance of a building permit. C. In accordance with the County Child Care Ordinance, the CC&Rs shall indicate that a child care facility may be located at any residential unit, or lot, consistent with the existing laws. D. The document shall reference the Grant Deed's of Development Rights that is conveyed to the County along the4creek portion of the site,and wetland portion of the site,and shaltcontaiin,any agreement entered into with the California Department of Fish &`Game. E. Provide a copy of a fencing planAhat has been approved by the Zoning Administrator of the.:&,ncing proposed'"on the perimeter of the scenic easement. k. I. F. Required setbacks and.off=street.parkirig prescribed by the R-7 zoning district all be measured fromtheedge of the private road easement or property line, whichever is more restrictive. G. The CC&Vs.shall provide forithe terms of the offer of a public trail to extend tliirough; this site 'that are approved by the Zoning Ad.ni`nistratorr, in6uding,provisions for maintenance and liability of the"trail segment:within the subdivision. Tlie approved CC&R's shall be recorded with the Final Map. The applicant shal .deliver a copy of the recorded document to CDD prior to issuance of t1 first building permit. Nesting Birds 8. A. If earthwork (or installation of improvements) is to commence during the period .February 15 to August 15, submit evidence of compliance with the Nesting Birds Mitigation Measure, Item a., which is presented in Table 2. B. If nesting raptors or nesting passerine birds are identified, submittal of a detailed compliance plan based on the mitigation measures listed in the Mitigation Measure presented in Table 2, Items b. and c. for review and approval of the Zoning Administrator. I2 C. If active nests of raptors or passerine birds are confirmed, the Table 2 NESTING BIRD MITIGATION MEASURES Prior to issuance of the grading permit, commencement of any site improvement or any tree removal, submit evidence of compliance with the detailed specifications listed below,for review and approval of the Zoning Administrator. a) In order to avoid impacts to nesting birds)CDFG has required that vegetation removal be confined to the period of August 16`h to February 10'(Condition No. 6 of CDFG's draft streambed alteration agreement). Should earth-moving/grading activity or construction-related disturbance will occur on the project site during the raptor and passerine bird nesting season(February 15 to August 15),a focused nesting survey shall be conducted by a qualified ornithologist to determine if this=activity could disturb nesting birds. The ornithologist must have'experience detecting/identifying raptor and passerine bird ncsting.°behavior. Or, if necessary, two biologists shall be hired: once with experience with raptors and another with eex"perience surveying for nesting passerine birds. ` I b) If nesting raptors are identified on the project site,a minimum 500-foot non-disturbance buffer shall be established around the nest tree.This buffer shall be fenced with orange construction fencing.A qualified raptor biologist will periodically monitor the nest site(s)to determine if grading activities occurring outside the buffer zone disturbs thc-birds,and if the buffer zone should be increased to prevent nest abandonment. No disturbance shall occur within the:mnimum 500-foot buffer'zone until a qualified raptor biologist has determined that the young have fledged(left the nest),and are flying.well enough.to avoid project construction zones,typically by August I'`. c) If nesting passcrine birds are identified on the project site,a 75-06t buffer shall be established around the nest tree.This buffer shall be fenced with orange construction fencing. The non-disturbance buffer zone shall remain in place until it has been determined by a qualified ornithologist that the young have fledged and are flying wellenough to avoid project construction zones, typically by August 1". d) The County shall not issue a grading permit untila nesting survcylias been.=conducted and the non-disturbance buffers(if necessary)arc fenced. ' biologic shall prepare a�-plan for fencing as required by the Miti= atiori Measure resented in Table 2,Item d. This plan shall be g � �. .�presented silbmitted toF the Zoning Administrator for review and approval. Prior to'commencement of grading the fences shall be installed. Red-Legged Fro I 9. A. 'Provideeletter-report from a"service approved"biologist presenting the results of the protocol survey specified by the red-legged frog V-11 mitigation measure presented in Table 3,for review and approval by the Zoning Administrator. r 13 B. If California red-legged frogs are identified, submit evidence of consultation with CDFG and evidence of a detailed compliance plan based on, the red-legged frog mitigation measures presented in Table 3, for review and approval of the Zoning Administrator. Freshwater Marsh Riparian and Trees 10. A. Prior to filing of the Final Map, submit evidence for review and approval of the Zoning Administrator that the project plans are in compliance with the provisions of the California Department,of Fish and Game Streambed Alteration Agreement;'gas prescribed by the freshwater marsh riparian and trees mitigation measure,presented in Table 4, Item a. 4, B. During grading operations and implementation of erosion control measures,the Project Restorationi st.shall submit progress reports on implementation of mitigation;measures as prescribed by Table 4, Item b. Additionally, the Project Restorationist shall issue a report when all CDFG permit requirements have been met and shall arrange for/schedule a site inspection by the Zoning Administrator. C. At Ieast'30 days prior to the/issuance of a grading permit, an Erosion Via. W. Control Pla i,s§ all be submitted for the review and approval of the Grading Section of the Building Inspection Department. The Erdpsion Conhol Plan shall provide for the following measures: As prescribed by the freshwater marsh riparian and trees mitigation measure in Table 4, Item c, all grading, excavation Table 3 RED-LEGGED FROG M iTiGATION MEASURES Prib oissuance of the grading permit, commencement of any site improvements or any tree removal, submit evidence of compliance with the detailed specifications below for review and approval of the Zoning Administrator. To prevent project-related impacts to the California red-legged frog,a preconstruction red-legged frog survey shall be completed within 48 hours prior to commencement of any earth-moving activity or construction on the project site.This protocol survey requires two nights of nocturnal surveys. The biologist performing the preconstruction survey must hold a federal 10(a)(1)(A) permit for California red-legged frog or be considered by U.S.Fish and Wildlife Scrvice to be a"service approved"bioloeist. (Thc U.S.Fish and Wildlife Service maintains a list of Service approved red-legged frog biologists.) If California red-legged frogs are identified on the project site,all work on theproject site shall be placed on hold while the findings are reported to CDFG and the U.S. Fish and Wildlife Service,and it is determined what actions must take place. and .filling shall be conducted during the dry season(April 15th through October 1 st) only, and all areas of exposed soils shall be replanted to minimize erosion and subsequent sedimenta- 14 tion. After October 1 st, only erosion control work shall be allowed by the grading permit,and all erosion control features shall be installed by October 15th. Any modification to the above schedule shall be subject to review by the Grading Secition of the Building Inspection Department and the review and approval of the Zoning Administrator. Such requests must be accompanied by: a) a grading plan showing the proposed work area; b) a statement of justification from the applicant/grading contractor; c)detailed Erosion Control Plan; and d) a letter from the Project Restoratt6ist commenting on the implications of the proposed grading on the restoration plan. r � 15 Table 4 FRESHWATER MARSH RIPARIAN VEGETATION AND TREES MITIGATION MEASURES The following mitigation measures are required to address impacts associated with construction and post-construction. These measures are intended to increase the overall size of wetlands and Central Coast riparian scrub habitat on-site,preserve the riparian corridor associated with Garrity Creek and its I ributary,and preserve water quality. a) Habitat and tree replacement shall be in accordance with the standards and criteria prescribed by the CDFG. b) The Project Restorationist shall monitor the implementation and establishment maintenance requirements of all mitigation plantings. At a minimum,the Project Restorationist shall have demonstrated expertise in restoration ecology and at least three years experience in restoration design and implementation,including experience in wetland restoration.The Project Rcstorationist shall have the authority to stop work or request change orders as necessary. In addition,the Project Restorationist shall conduct the site and habitat monitoring programs andprepare reports documenting the restoration program for,submittal tofthe USACE, CDFG,and RWQCB. c) All grading shall be performed during the summer months and completed before October I". .Appropriate erosion/sediment control measures shall be in place by October 15th. Since all mitigation plantings will occur,on graded sites,there will be no need for weed eradication to prepare the site for planting . Mitigation planting will commence in the late'falf early.wi nte`r,with the onset of winter rains. d) To prevent indirect and cumulative adverse effects of the development.on water quality.of Garrity Creek and its tributary, grassy swales shall be constructed. The swales are intended to capture and slow the moverne4of urQ runoff into Garrity Creek and its tributary. The swales shall be planted and seeded with appropriate native. pecies and deed restricted from development or renovation. No direct outfalls into Garrity Creck or the unnamed tributary shall be constructed:=Discharges from the swales would be over ground stabilized by erosion blankets with rock inter-plated with,bwillow s'or other species approved by the Project Restorationist. r e) Habitat restoration shall provide for maximum vegetative cover,conducive to theacstoration of Garrity Creek and its tributary, and provide a vegetated screen between the stream channel and adjacent roads and dwellings. ' . f) The plant palette shall be consistent with the requirements of thbsCalifornia: Department of Fish&Game and shall be selected from the species nominated by the report of MichaelWood(dated July 5,2002). g) All container plantings shall be provided a!temporary drip irrigation system. Irrigation will be supplied for up to three years, with a gradual reduction in volume of waterapplied.in years two and three. The details of the irrigation system and watering schedule must be approved by the Project Rcstorationist: h) Prior to recording the final map the project propo ent will provide a signed contract with the Project Restorationist for the work done during the Initial Plan review and rnonitoring5the'installation of the required plantings. The contract shall also include for five years(minimum)of.monitoring�by they Project Rcstorationist. The objective of monitoring shall be to evaluate growth of lei the plantings during the establishment period,identify conditions that threaten the success of the mitigation plan,and to identify the need for remedial measures. The Restoration Monitor will perform site monitoring twice annually. site visits will be conducted during la e winteiiearly.spring andithe late summer/early fall. i) The applicant shall guarantee an 85 percent survival rate for the plantings over the five-year monitoring period. For this purpose,a$40,(.)00 bond(or equivalent)security shall be deposited with the County. P D. Prior to issuance of the grading permit submit drainage improvement plans th I at comply with the provisions of the freshwater marsh riparian and trees mitigation measure in Table 4, Item d. for review and approval of the Zoning Administrator. E. :Prior to issuance of the grading permit, submit revegetation and irrigation plans that comply with the freshwater marsh riparian and trees mitigation measures in Table 4, Items e., f. and g. 16 F. Prior to recording the final map, a signed contract with the Project Restorationist for the work done during the Initial Plan review and monitoring the installation of the required plantings. As prescribed by the freshwater marsh riparian and trees mitigation measures in Table 4, Item h, the contract shall also include provision for five years (minimum) of monitoring by the Project Restorationist. The objective of monitoring shall be to evaluate growth of the plantings during the establishment period,identify conditions that threaten the success of the mitigation plan, and to identify the need forremedial measures. The Restoration Monitor will perform site monitoring twice annually. Site visits will be conductecMurmg late winter/early spring and the late summer/early fall. G. Prior to issuance of the Grading—Permit,. provide a financial assurance acceptable to the Zoning Administrator for$40,000,along with a non-refundable initial fee deposit of $300 at the time of submittal of the security:"'_The purpose of the security shall be to guarantele. an 85 percent survival ratefor the plantings over a five- year year monitoring period. Existing Trees Pre-Construction Tree Protection Measures l 1. At least 30 days prior to issuance of a grading permit or approval of the final map, the applicant shall provide two copies of a report from the ,4Pr6ject Restorationist for the review and approval of the Zoning Administrate The report shall indicate that the Restorationist has reviewed the recommendations of the geotechnical report filed with the findtmap The report of the Restorationist shall recommend appropriate measures to prevent any significant damage to trees in the project area that are,not proposed for removal, including trees on neighboring parcels that adjoin areas proposed for grading. The recommendations of the approved report shall be implemented by the applicant. Contingency Restitution Should Trees Intended to be Saved Be Dama_ged 12. Pursuant to the requirements of Section 816-6.1204 of the Tree Protection and Preservation Ordinance, to address the ,possibility that construction activity damages trees not approved for removal, the applicant shall provide the County with a security (e.g., bond, cash deposit) to allow for replacement of trees intended to be :preserved that are significantly damaged by construction activity. The security shall be based on: 0 A. Extent of Possible Restitution Improvements: The planting of up to three replacement trees (minimum three 15-gallons in size) in the vicinity of each protected tree removed, or equivalent planting contribution along the creek corridor, subject to prior review and approval of the Zoning Administrator. B. Determination of Security Amount: As prescribed by Mitigation Measure 3.i., the required security is $40,000.00. C. Acceptance of a Security: The security shall be subject to thefreview and approval of the Zoning Administrator. . .. D. Initial Deposit for Processiniz ofSecurity: The County ordinance requires ithat the applicant cover all time'- iiiatenal costs of staff for processing a tree pr tection,security (Code S-06013). The Applicant shall pay an in,itialTee deposit of"$300 at time of submittal of a security, in addition to the $40,000 security. The security shall be retained by tlie.County up to 5 years following the completion of the tree alt re ation improvements. In the event that the Zoning Administrator determines that trees intended to be protected have been damaged,by development activity, and the Zoning Administrator determines that the dppiiip t has not been diligent in providing reasonable restitution of the 1damaged trees, then the Zoning Administrator may t require that,altor part of the security be used to provide for mitigation of the damaged trees. ; Anrntrally for��111veyearsfol lowing the completion of tree installation under the supervision of the Project.Restorationist. The Project Restorationist %z., . shall inspect the trees for any significant damage from construction activity, and submit a report on his/her conclusions on the health of the a trees and,if appropriate,any recommendations including further methods e_ required for tree protection to the Community Development Department. ,' 18 Authorized Tree Removal and Required Disclosure and Protection of Trees to be Protected 13. The trees identified on the Vesting Tentative Map (received by the Community Development Department on.November 6,2003)for removal are approved. Other trees shall be protected. All grading, improvement plans and construction plans prepared for building permits during initial project build out shall clearly indicate trees proposed for removal, altered or otherwise affected by development construction. The tree.information on grading and development plans shall indicate the number;'size,species, assigned tree number and location of the driplihl,of all trees''.on the property that are to be retained/preserved.. � Q r Tree Protection Measures to be Shown on Subdivision Gradin; andImprovement Plans 14. The following tree protection meas a~s shall be pr irtted on all subdivision grading and improvement plans °. A. Site Preparation: Prior .to the start of—any clearing, stockpiling, trenching, grading;�.compaction, paving or change in ground elevation on site with trees twbe preserved,the applicant shall install temporary constructionfencing�at or beyond the dripline of all areas adjacenti,to,.or.Ein the area to be altered and remain in place for the duratiomof construction activity in the vicinity of the trees. Prior to grading or.issuance o any permits, the fences may be inspected and the location, thereof approved by appropriate County staff. Construction plans shall stipulate On their face where temporary "Ilfej c ng intended to protect trees is to be placed, and that the required fencing shall be installed prior to the commencement of any constru tion activity. B. Construction Period Restrictions: No grading, compaction, stockpiling,trenching,paving or change in ground elevation shall be ,p permitted within the dripline of any existing mature tree other than the trees approved for removal unless indicated on the improvement plans approved by the county and addressed in any required report prepared by the Project Restorationist. if grading or construction is approved within the dripline of a tree to be saved, an arborist may be required to be present during grading operations. The Project Restorationist shall have the authority to require protective measures to protect the roots. Upon the completion of grading and construction, an involved arborist shall prepare a report outlining further methods required for tree.protection if any are required. All Project Restorationist shall be borne by the applicant. 19 C. Prohibition of.Parking: No parking or storing vehicles, equipment, machinery.or construction materials, construction trailers and no dumping of oils or chemicals shall be permitted within the drip line of any tree to be saved. D. Construction Tree Damage: The developments property owner or developer shall notify the Community Development Department of any damage that occurs to any tree during the construction rocess. The owner/developer shall repair any damage asmdetermined by an NW arborist designated by the Director of Corriinunity'Development. AO Any tree not approved for destruction or removal that dies or is significantly damaged as a result#f construction or grading shall be replaced with a tree or trees of equivalent size and of a species as approved by the Director of. Community Development to be reasonably appropriate fo the particular situation. E. Supervision of Work. A] ork that.encroaches within the dripline of a tree to be preserved shall be conducted under the supervision of the Project Restorationist Geotechnical i 15. A. At least 30 da}s..prior to issuance of a grading permit or installation of improvements;or utilities, applicant shall submit a final geology, soil;.and foundation report meeting the requirements of Subdivision Ordi ance:Section 94-4.420 for review and approval of the Planning , PP g w .AGeologist. The report shall evaluate soils" conditions and provide specific criteria and standards to guide site grading, drainage and foundatipn design. This report shall include evaluation of the potential for slope failure,seismic settlement,lateral deformation of 41 fill slopes, differential fill thickness, cut/fill transition lots, and expansive soils by recognized methods appropriate to soil conditions discovered during subsurface investigation. -[t shall include slope stability analysis, desigm criteria for the proposed retaining walls, a remediation plan, and an assessment of the effect of project implementation on stability of adjacent lots. B. A letter-report,update shall be required for issuance�of building. n. permits for individual lots. The,intent:.of this update:is to have the geoteFchnical..,%engineer,--review" foundation, drainage (and any u. associated grading) .;plans, verifying that t,by. comply with 20 c recommendations and the intent of the approved final geotechnical re orts.. Im rovemerit; grading,' and building plans.,slaa'11Tecarry out P I P g, the,;recolnmendati`ons of the approved report. `"` =` A representative ofthe pr"oj'ect geotechnical engineer slall'be on-site h full. time; during foundationn,work (observing^�all pier drilling and` don ::. preparation wor=k fors II slabs)'to,verify compliance of construction practices:an&e'Xposed conditions with the,provisibi s of the approved t . :. .. geotec ica wal D-B.The Grading Completion Report shall include alas-graded map showing the location of fill, keyways and subdrains, as well as as- graded topography. F ,�Xmwhnq _.....ts for- individuaillots. The inten"O'—f this update is to asst, d' 1. 1 tl, usJvC-hrte �er� that they comply wit reports. I MIR-F-A eme.nt-gFadi:R,. And building plans shall ea-Fry out �. Deed Disclosure A.: 16. Applicant shall record a statement to run with deeds to property ac- knowfedging the approved report by title, author(firm), and date, calling ,attention to approved recommendations, and noting that the report is `available from the seller. .f Graded Slopes ry' 17. ;: A. Graded slopes in the project shall not be steeper than 2.5:1. B. Engineei ed slopes on the perimeter of the graded area shall be contour-rounded to mimic natural terrain features. C. Where slopes are required that do not conform to the standards specified in COA#17.A, special engineering shall be required(e.g., reinforced earth, retaining walls). D. Slope stability analysis shall be provided for major slopes in the project. The standard for the project shall be safety factors of 1.5 for 21 static conditions and 1.1 for pseudostatic conditions, and a seismic coefficient of 0.15. E. During stripping, the topsoil within graded areas (approximately 2 feet in thickness) shall be salvaged for use during final grading. For engineered slopes more than 10 feet high(with gradients of 2.5:1 or flatter) topsoil shall be "track-walked" onto finish graded slopes to facilitate revegetation. gk� Geologic Hazard Abatement District 18. A. Prior to issuance of the first buildingpermit ,the project-shall be incorporated into the established Hillcrest;Heights Geologic Hazard Abatement District(GHAD) or equigvalent The Plan of Control for the GHAD shall include maintenanceesponsibility for drainage a . facilities within the scenic easement. �r B. The Plan of Control and financial aspects of joining the GHAD, along with review of grading plans and field observations of the earthwo k, shall be perforrne�clby an' engineering geologist retained by the County. The applicant shall be responsible for funding these technicareviews. Erosion Control . M 19. At I ast 30,,days prior to requesting the issuance of a grading permit, an .4Erosion Control Plan shall be submitted for the review and approval of the Grading Section of the Building Inspection Department. The Erosion Control Plan shall provide for the following measures: A. T1ie�Erosion Control Plan shall encompass the applicable provision of the FrieshwaterMarsh Riparian Vegetation and Trees Mitigation Measure (see Table 4, items c. and d.). B. The Erosion Control Plan shall encompass the Erosion and Sedifnenitation Mitigation Measures presented in Table 5 following. Construction Period Restrictions 20. Contractor and/or developer shall comply with the following construction, noise,litter,and traffic control requirements. These requirements shall be printed in the General Notes portion of the grading and subdivision improvement iplans: 22 A. All construction activ!§css 2l 6climited t the hours o 930 a.m.- 5:00 p m, Monday through Friday, and shall be pohib!\J 0n //C and f dealhoida< « y : + \ ^` \ . \\d � VII \ : � � 6 23 Table 5 EROSION AND SEDIMENTATiON MITIGATION MEASURES I Alitigation pleasure: Grading activities shall be restricted to the summer constriction season(15 April through I October). Ann earlhivork done after I October shall be limited to activities directly related to erosion control. The applicant shall provide an erosion control plait prior to issuance of the grading permit. The following interim control measures shall be employed based on site-specific needs in the project areas: a) Grading to minimize areas of exposed,erodible material adjacent to Garrity Creek,and avoid over-c•oncetntration of rapidly flowing runoff in unprotected, erodible areas; ' b) The erosion control plan should include water bats,temporary culverts and swales,nudch,<erosion control . nrat.s/blankets on exposed slopes,hydroseeding,silt fences, and sediment traps/basins: c) Because the biggest problem with effective sediment control is lack of maintenance;the erosion control plan must have a comprehensive program for inspection and maintenance during the winter rainy season, including provisions for documenting maintenance activities. To reduce the potential impacts of long-term erosion and sedimentation,th. 'project,s!a l�iticorptir°ate,th appropriate design,construction and continued maintenance of one or more of the follo�wtitg long-terr'control measures. The specific measures shall be based on the recommendations of the project geotechnical engineer and civil engineer. d) Construction of grassy swales at strategic locutions, as shoKm on the"VTV . e) Provide downspout collection sysiems that outfall to sl lalter plates for individual`strrctures. 11 . 01, 14; f) Track-walk b inches of'salvaged topsoil on all 22:l slopes that are 15 fed tit more in height. g) Concentrated runoffshall not be permitted toadrain over cut or fill slopes. B. The project sponsor shall require their contractors and subcontractors to fif all int6bial combustion engines with mufflers which are in good '66ndition and shall locate stationary noise-generating equipment such as air compressors and concrete pumpers as far away from existing residences as possible. C. At least one week prior to commencement of grading, the applicant shall post the site and mail to the owners of property within 300 feet ' of the extMOVEerior terior boundary of the,project site notice that construction work will commence. The notice shall include a list of contact persons iwith name, title, phone number and area of responsibility. The person responsible for maintaining the 'list shall be included. The list shall be kept current at all times and shall consist of persons with authority to indicate and implement corrective action in their area of responsibility. The names of individuals responsible for noise and litter control,tree protection,construction traffic and vehi- cles, erosion control, and the 24-hour emergency number, shall be 24 expressly identified in the notice. The notice shall be re-issued with each phase of major grading and constriction activity. A copy of the notice shall be concurrently transmitted to the Community Development Department. The notice shall be accompanied by a list of the names and addresses of the property owners noticed, and a map identifying the area noticed. Ika D. The applicant shall make a good-faith effort to avoid interference with existing neighborhood traffic flows. ''Cbnstruct n-related vehicle access to the site shall be limited,to Royal,.Oaks Drive. E. Transporting of heavy equipment and trucks shall be limited to week days between the hours of 9:00 A &id 4:00 PM. and prohibited on Federal and State holidays. F. The site shall be maintained in an orderlyfashion. Following the cessation of construction activity, alk onstruction debris shall be remove from the site. G. Prior to issasanc(,, of a.grading permit, the applicant shall provide documentafon to the Community Development Department of the proposed. approach to aclTieve full compliance with COA #20 regvirenients by allycontractors and subcontractors within this project i.e. refere ce "general notes" in the grading plan, provisions in (' building and grading contracts or other equally effective measures). 21st Century Conditions 21. Theepro*ect shall be designed to include the following measures: A. Provide housing units wired for electronic technologies that accommodate telecommuting by residents. B. Provide, within the garage area of each residence, a separate electrical conduit for charging of electric-powered vehicles. This shall 'be accomplished by specifically labeling an extra electrical outlet on the electrical plans for the garage. -C. Should downstream drainage facilities prove to be inadequate, construcIt off-site improvements to prevent the project from worsening the existing conditions. Alternatively, construct on-site detention facilities to Flood Control District standards. The design 25 criteria for these drainage structures is to reduce post project peak flood flows to predicted pre-project levels. Each phase of development shall be reviewed by the Public Works Department to ensure compliance with this condition. D. Maintain existing drainageways above ground where feasible (Le., use an arch culvert at the Royal Oaks Drive crossing of Garrity Creek and only for the minimum required crossing distance). E. The arch culvert crossing of Garrity Creek"shall be designed to jurisdictional standards such that they dog not .:constrict",flows, including the 100-year flood flow. Design of the ulvert and associated structures must be reviewed and approved.by the County Public Works Department. F. Establish a native vegetation'-buffer wiihin the 2:1 slope area between the tiered walls�that are west of the west terminus of Marin Road. This shall rec'dire a .design 'acceptable to the Project Restorationist, andxa.drip irrigation`system to facilitate plant growth during the first.1 3 years after' construction. Street Name 22. At least 30 days prior to filing the Final Map,proposed street names shall be submitted for re'iew'and approval by the Community Development Department;Graphics,Section(Phone#335-1270). Alternate street names .should be be The Final Map cannot be approved by the Commu- 'nity Development Department without the approved street name. b I y Election for Establishment of a Police Service District to Augment Police Services f , 23. The owner of the property shall participate in the provision of funding to ® maintain and augment police services by voting to approve a special tax for the parcels created by this subdivision approval. The tax shall be the per parcel annual amount (with appropriate future CPI adjustment) then established at he time of voting by the.Board of Supervisors. The election to provide for the tax shall be completed prior to the filing of the Final Map. The property owner shall be responsible for paying the cost of holding the election, payable at the time that the election is requested by the owner. 26 Landscape Plan 24. A landscaping and irrigation plan for the Hilltop Drive frontage and to soften views of the tiered retaining walls adjacent to Garrett Creek Drive, shall be submitted for review and approval of the Zoning Administrator at least 30 days prior to filing a final map. The plans for the Hilltop Drive frontage will include provision for a six- foot tall decorative masonry wall. Proposed trees shalfbe a-minimum 15- gallons in size; proposed shrubs shall be a minimum.5-num s in size. Plans shall include a color spot. At the same time, the plans shall make clear that the plant selection at maturity complies with the'Sight Distance at Intersection Ordinance. The plan shall b&-prepared byAa licensed landscape architect and shall be certified to be in,compl=iance with the County Water Conservation Ordinaince 82-26: Interior Street Tree Plan - The plan sliallprovide for the planting of at least one 15-gallon tree along the frontage of each property, except that corner lots shall be required to plant at least one 15-gallon tree along the frontage of each lot. =These trees shall.consist of a single species. The plan shall stipulate Cat dtIleast 15 days prior to requesting a final inspection of a residence on the respective lot,the applicant shall provide evidence to the Zoning Administrator in the Community Development Department tl Sfthektree has been planted in accordance with the approved plan. The yopose.d plans shall be accompanied by a labor and materials cost wet-stamp estimate from a licensed landscape contractor. y Security for StreetTree Program and Hilltop Drive Planter Landscape Improvements 25. Prior to filing a final map, the applicant shall provide the County with a security that is acceptable to the Zoning Administrator for 125% of the estimated cost of the landscape improvements. The purpose of the security shall be to ensure timely completion of the required landscape improvements, and shall be retained until the required landscape improvements have been completed and accepted by the Zoning Administrator. If compliance is not achieved within one year of the completion of the subdivision improvements, then the County may contract for tl ie completion of the landscaping and irrigation improvement using the landscape security. 27 Signs, Walls and Lighting 26. The design, color and location of any project sign at the entrance to the property shall be reviewed and approved by the Zoning Administrator. 27. Street Lighting—The applicant shall propose a street lighting plan for the review and approval of the Public Works Department and the Zoning Administrator The Plan shall provide for aesthetically-designed light standards. 28. The design, color and location of the proposed retain 1rig11walls identified on the subdivision plans shall be reviewed.a d approved by thkoning Administrator. A. Traffic Calming and Hardscape Entry Design Measures for Royal Oaks Drive A 29. Improvement plans for Royal Oaks Drive shall be submitted to the Community Development Department for tie review and approval of the � . Nr� Zoning Administrator,following opportunity to comment by the Public Works Department. The plans shall provide for: A. The installation of at least two speed bumps intended to slow traffic along this goad. B. A hardscape design treatment for the road entry to the project. Recycling of Construction Materials 30. A. At leas, 30 days prior to issuance of building permits, the " "subdivision developer shall submit two (2) copies of a Debris Recovery Plan demonstrating how they intend to recycle,reuse, or salvage building materials and other debris generated from the construction of new buildings for the review and approval of the Zoning Administrator, following an opportunity for review and comment by the Resource Recovery Specialist in the Community Development Department (Lorna Thomson, (925) 335-1321). B. At least 30 days prior to requesting a final inspection on the first residential building permit,the subdivision developer shall submit a completed Debris Recovery Project documenting actual debris recovery efforts (including quantities of recovered and land filled materials) that occurred throughout the:project's duration. 28 Application Processing Fees 31 . This application is subject to a deposit of$12,831.00 which was paid with the application submittal, plus time and material costs if the application review expenses exceed 100 percent of the initial fee. Any additional fee due must be paid within 60 days of the permit effective date or prior to use of the permit whichever occurs first. The fees include costs through permit issuance plus five working days for file preparation. The applicant may obtain current costs by contacting the project planner.', the applicant owes additional fees, a bill will be sent to theaapplicant shortly after permit issuance. PUBLIC WORKS RECOMMENDED CONDITIONS OF APPROVAL FOR SUBDIVISION PO 18533 f COMPLY WITH THE FOLLOWING CONDITIONS (JYAPPROVAL PRIOR TO ISSUANCE OF A FINAL MAP. General Requirements , 32. In accordance with Section 2-2.006 of the Ordinance Code, this subdivision shall conform to4ll applicable provisions of the Subdivision A Ordinance(Title 9);1Any exceptions therefrom must be specifically listed Ni in this °conditional approval statement. The drainage, road and utility provements outl=ined below shall require the review and approval of the Public WorkD partment and are based on the revised Tentative Map dated'August�8, 2003. 33. Improvement plans prepared by a registered civil engineer shall be submitted to the Public Works Department, Engineering Services Division, along with review and inspection fees, and security for all N improvements required by the Ordinance Code for the conditions of approval of this subdivision. These plans shall include any necessary 1 traffic signage and striping plans for review by the Transportation Engineering Division. Roadway Improvements -Hilltop Drive 34. Applicant shall widen existing Hilltop Drive to provide left turn channelization at the project entrance at Royal Oaks Drive. Channelizati In, tapers, and transition flares shall comply with Caltrans 29 Highway Design Manual standards based on a design speed of 40 miles per hour. These improvements will include relocation of existing utilities, and pedestrian paths, as well as possible reconstruction of driveways of existing adjacent homes to adequately conform to the widened street section. 35. Dedicate additional right of way as necessary to accommodate the above pavement widening and appurtenant improvements and utilities.This may require the applicant to obtain off-site offers of dedication from neighboring property owners. 3 36. Applicant shall] install safety related improvements includingptraffic signs and striping, as approved by Public Works. ; Roadway Improvements - Marin Road 37. Applicant shall construct off site improvements as necessary to transition from the existing pub]is street to the new on-site extension of Marin Road. Pavement transition and vertical,alignment'shall comply with Caltrans Highway Design Manual standards=based on a design speed of 30 miles per hour. These improvements will include relocation of existing utilities, and pedestrian paths, as well as possible reconstruction of driveways of existing adjacent homes to. adequately conform to the revised street alignmeit: 38. Applicant shallinstal safety related improvements off-site along Marin �.Road including traffic signs and striping, as approved by Public Works. Roadway Improvements- On Site 39. Applicant construct shall constct curb,a 4.5-foot sidewalk(width measured from curb face), necessary longitudinal and transverse drainage and street llighting within the project as shown on the tentative map. Sidewalk will only be required on one side of streets as shown. Pavement and right of way widths shall conform to those shown on the tentative map as well. Although the streets are to remain private, they shall be constructed to County public road standards as to horizontal and vertical alignment (using a 30 mile per hour design speed) as well as the pavement structural section. Turns arounds shall conform to Public Works and Fire District standards. 30 Access to Adjoining Property Proof of Access 40. Applicant shall furnish necessary rights of way, rights of entry, permits and/or easements for the construction of off-site,temporary or permanent, public and private road and drainage improvements. 41. Encroachment permits from the County are requiredfor all construction activity within existing County right of way. Off=lsite street or drainage improvements within the City of Richmond will require,the appropriate permits from the City. A Parking 42. "No Parking" signs and pavement markings shall be installed along all streets subject!to the review and approval of Public Works. Parking will be allowed one side of the street�where,the curb-to-curb width is at least 28 feet. Parking shall be prohibited altogether along roads with a curb-to-curb width less than 28 feet. y. Sight Distance 43. Provide sight distanceyat all,intersections for a through traffic design speed of 30 inph. Sight distance easements shall be dedicated on the final map in accordance with. the..currant Caltrans intersection "Stopping Sight Distance" requiremSfits or Chapter 82-18 of the County Ordinance Code, whichever i'sgreater. Structures greater than 30 inches above top of curb grade will be.prohibited within these sight distance easements. 3, Utilities/Undergrounding 44. All new and existing utility distribution facilities shall be installed underground. Maintenance offacilities 45. Property Owner shall record a Statement of Obligation in the form of a deed notification, to inform all future property owners of their legal obligation to maintain the private roadway. sy 31 Open Space 46. Applicant shall convey the entry landscaping/hardscape area at the project entrance along Hilltop Drive to a homeowners association, or other acceptable entity other than the County. A maintenance plan of operation shall be submitted for Public Works and Community Development review, but the County will not accept this property for maintenance. 47. Establish a maintenance entity and develop a plan ofcontrol and maintenance for the proposed perimeter grass swales and the`wetlands area within Lot 29. The plan of control and maintenance shall be subject to the review and approval of Public Works, as well as other re'.gulatory agencies as applicable. *01 Pedestrian Facilities . 48. All public and private pedestrian facilities and access ways shall be designed in accordance"ovvith Title 24 (Handicap access) and the Americans with Disabilities Act. This shall`include all sidewalks,paths, trails, driveway depression's, as well as handicap ramps. 49. A public pedestriamaccess easement shall be dedicated over the sidewalks to be constructed within theP J ro'ect. J � . Drainage Improvements Collect and Convey 50. Division 914 Of9the Ordinance Code requires that all storm waters entering .,,,.or Yoriginating within the subject property shall be conveyed, without �: diversioilF and within an adequate storm drainage facility, to a natural watercourse 1 laving definable bed and banks, or to an existing adequate public storm drainage facility that conveys the storm waters to a natural '= watercourse. \a- Garrity Creek is not considered an acceptable ultimate discharge point for the purposes of the County Ordinance Code. Additional drainage inventory and analysis of downstream facilities is necessary to determine the ultimate point of discharge into a natural watercourse, and additional off--site construction and/or on-site mitigation per said Code may be required. 32 51. Storm drainage facilities required by Division 914 shall be designed and constructed in accordance with specifications outlined in Division 914 and in compliance with design standards of the Public Works Department. Miscellaneous Drainage Requirements 52. Storm drainage originating on the property and conveyed in a concentrated manner shall bye prevented from draining across the sidewalk(s)and drive- way(s). 53. The applicant shall dedicate a public drainage easemenfover the drainage system that conveys storm water run-off from public streets. Aa S 54. In the absence of public drainage easements, the applicant shall create private drainage easements over portions ofthe drainage system that convey storm water run-off from, m ro e�than a single lot or parcel. 55. Private on-site storm drain.easements, if necessary,shall have a minimum width of 10 feet. Creek Structure Setback 56. Applicant shall relinquish "development rights" over that portion of the site that is wit in the setback area of Garrity Creek. The structure setback shall;bdeterminecllusing the criteria outlined in Chapter 914-14, "Rights of Way and Setbacks''�'of the Subdivision Ordinance. Development rights Al shallbe conveyed to the County by grant deed. National Pollutant Discharge Elimination System (NPDES) Requirements 57. The applicant shall be required to comply with all rules, regulations and Y; procedures of the National Pollutant Discharge Elimination System ' (NPDES)for municipal construction and industrial activities promulgated by the California State Water Resources Control Board, or any of its 4. Regional Water Quality Control Boards(San Francisco Bay B Region 1I). Compliance shall include developing long-term best management practices (BMPs) for the reduction or elimination of storm water pollutants. The project design shall incorporate, wherever feasible, the following long term BMPs in accordance with the Contra Costa Clean Water Program for the site's storm water drainage: • Provide educational materials to new homebuyers. 33 • Stencil advisory warnings on all catch basins. • Provide options for grass pavers or other semi-pervious paving systems for walks, drives and patios. • Slope driveways and weakened plane joints to sheet flow onto planted surfaces where feasible. • Prohibit or discourage direct connection of roof and area drains to storm drain systems or through-curb drains. • Other alto atives, equivalent to the above, as;approved by the Public Works Department. 6' ADVISORY NOTESAt ' ` a� PLEASE NOTE ADVISORY NOTES ARE ATTACHED TO gTHE CONDITIONS OF APPROVAL, BUT ARE NOT Al PART OF THE CQNDITIONS OF APPROVAL. ADVISORY NOTES ARE PROVIDED FOR-"THE 'PURPQSE�OF INFORMING THE APPLICANT OF ADDITIONAL ORDINANCE AND OTHER LEGAL REQUIREMENTS THAT MUST BE MET 1N ORDER TO PROCEED WITH DEVELOPMENT. A. The Building Inspection Department will°require three sets of building plans which must be stamped by the Community Dvelopinent Department and by the West County Wastewater District. T B. Additional requirements may be imposed by the Fire District, the Health Department and the Building Inspection Department. ;It is advisable to check with these departments prior to requesting,a=buildfiig.pe nut or proceeding with the project. C. Vesting Tentative Mqp Rights! The approval of this vesting tentative map confers a vested right.to proceed with development in substantial compliance with ordinances,policies,and staridads in effect as of September 21, 2001,the date the vesting tentative map application Was accepted as complete by the Community Development Department. The vested rights also apply to"development fees which the County has adopted by ordinance. These fees are in addition to any other development fees which may be specified in the conditions of approval., The fees include but are not limited to the following: Park Dedication $2,000.00 per residence. Child Care $400.00 per residence. An estimate of the fee charges for each approved lot may be obtained by contacting the Building Inspection Department at 335-1192. 34 D. Expiration of Vested Rights. Pursuant to Section 66452.6(8) of the Subdivision Map act, the rights conferred by the vesting tentative map as provided by Chapter 4.5 of the Subdivision Map act shall last for an initial period of two(2)years following the recording date of the final/parcel map. These rights pertain to development fees and regulations. Where several final maps are recorded on various phases of a project covered by a single vesting tentative map,the initial time period shall begin for each phase when the final map for that phase is recorded. At any time prior to the expiration of the initial time period,the subdivider may apply for a one-year extension. The application shall be accompanied by the applicable filing fee. If the extension is denied by an advisory agency,the subdivider n ay appeal that,denlal to the Board of Supervisors by filing a letter of appeal with the appropria filing fee with the Clerk of the Board within 15 calendar days. -§ The initial time period may also be subject to..automatic extension pursuant to other provisions of Section 66452.6(1g)relating to processing of related development applications by the County. X7 . At the expiration of the vesting time period, remaining development (i.e., new building permits) within the subdivision shall'be subject todevelopment fees and regulations in effect at that time. i E. The applicant shall be required°to comply with all rules,regulations,and procedures of the National Pollutant Discharge Elimination Systems (NPDES) for municipal, construction and industrial activities as pro Inulgated�'by the California State Water Resources Control Board, or any ofitsReBiorial�Water Quality Control Boards(San Francisco Bay- Region F. This project may be subject to the requirements of the Department of Fish and Game. Itis the applicant's responsibility to notify.the Department of Fish and Game, P.O. Box 47, Y�ountville Califoi=nia 94599, of any proposed construction within this development that may affecf'any fish and wildlife resources, per the Fish and Game Code. G. This project may be subject to the requirements of the Army Corps of Engineers. It is the applicant':s responsibility to notify the appropriate district of the Corps of Engineers to determine if a permit is required, and if it can be obtained. H. Police Services District Costs and Necessary Processing Time. The applicant is advised that the tax for the police services district is currently set by the Board of Supervisors at $200 .per parcel annually (with appropriate future Consumer Price Index (CPI) adjustments). The annual fee is subject to modification by the Board of Supervisors in the future. The current fee for holding the election is $800 and is also subject to modification 35 in the future. The applicable tax and fee amounts will be those established by the Board at the time of voting. The applicant is advised that the election process takes from 3 to 4 months and must be completed prior to approval of the Final Map. I. Requirement of Special Districts and School District. Comply with the requirements of the East Bay Municipal Utility District and West County Wastewater District. Comply with the requirements of the Contra Costa County Fire Protection District. At time of issuance of building permits, comply with the fee payment requirements of the Richmond Unified School District. J. The applicant is required to pay an environmental reviewfeee of Y$1250.00 to the Department of Fish and Game at the end of the appeal period: Failure to do so will result in fines. In addition, the approval is not final or vested until the fee is'paid,,nor may the County post a Notice of Determination until the fee is paid:'' A check for.tliis fee shall be submitted to the Community Development Department made out to Contra Costa County for submittal with the final environmental documents: el g. K. Comply with the Bridge/Thoroughfare Fee Ordinance requirements for the Richmond/El Sobrante and West Contra Costa RegionalAreas...of Benefit as adopted by the Board of Supervisors. These fees must be paidprior to issuance of building permits. ft L. NOTICE OF 90-DAY OPPORTUNITY TOS PROTEST FEES, DEDICATIONS, RESERVATIONS, OR OTHER EXACTIONS PERTAINING TO THE APPROVAL OF THIS PERMIT. b r This notice is intended�tb advise the applicant that pursuant to Government Code Section 66000, et. seq, the applicant has the',opportunity to protest fees, dedications,reservations, and/or exactions required as,part of this project approval. The opportunity to protest is limited to:a ninety-day (90) period after the project is approved. The°90=day period in which you may protest the amount of any fee or imposition of any dedication;reservation, or other exaction required by this approved permit,begins on the date this permit was approved. To be valid, a protest must be in writing pursuant to Government Code Section 66020 and delivered to the Community Development Department within 90 days of the approval date of this permit. (MISS GXurrent Planning\curr-plan\Staff Reports\SD018533rptMayl9tindCOA-superseded.doc Rev. 7-3-2004-rd _ Agenda Item # Con-ununity Development I Contra Costa County CONTRA COSTA COUNTY PLANNING COMMISSION TUESDAY. MAY 25, 2004 1. INTRODUCTION SIAVASH AFSHAR (Applicant & Owner), County File # SD018533: The applicant/owner requests vesting tentative mapi approval to divide 10.09 acres into 40 lots. Variances are requested for(A) construction of retaining walls taller than three (3) feet in height (up to 10 feet in height proposed), and(B) combined retaining wall/fence structures in excess of six(6) feet in height (up to 132 feet in combined height)within the required yards (stricture setback areas); and for variances to the minimum average lot width standard for four of the lots (Lots 11-14) (proposed widths as small as 56 feet; minimum 70-foot widths required), and approval to remove two protected trees (Lots 18 and 38). The property fronts for 100.17 feet on the northwest side of Hilltop Diive, approximately 100 feet southwest of the Renfrew Road/Hilltop Drive intersection, and it fronts on the western terminus of Marin Road. The property is addressed 4823 Hilltop Drive, in the El Sobrante Area (R-7) (ZA:H-6) (CT 3630.00) (Parcels 426-2101007; 426-182-001 & -017; and 426-192-005 & -008). II. RECOMMENDATION A. Find that on the basis of the whole record, including the Initial Study and the comments received, there is no substantial evidence that the project with mitigation measures will have a significant effect on the environment; and find that the Mitigated Negative Declaration reflects the County's independent judgment and analysis. B. Find that the documents or other material that constitute the record of proceedings. upon which the County Planning Commission's decision is based may be found at the Community Development Department, 651 Pine Street, Martinez, CA,the custodian of the records. C. Adopt the Mitigated Negative Declaration as adequate for purposes of compliance with the California Env'ionmental Quality Act (CEQA). D. Adopt the attached recommended findings indicating that the County slope protection policies can only be made with a reduction in the number of proposed units. S-? D. Approve the tentative map application with the recommended conditions including a requirement to reduce the number of lots from 40 to 35; subject to the recommended conditions of approval. E. Adopt the Mitigation Monitoring Program. III. GENER,4L INFORMATION A. General Plan: The 10.09 (gross) acres site is designated Single-Family Residential - High Density (SH). Thee SH designation allows 5.0 to 7.2 units/net acre. Assuming that net acreage is 75 percent of the gross acreage, the net area of the site is 7.57 acres (10.09 acres x 75%). ThI erefore the range of dwelling units that normally could be considered on a site such as this is 38 (7.57 net acres x 5.0 units per net acre) to 54 dwelling units (7.57 net ac. X 7.2 units per net ac) The Land Use Element contains policies for the El Sobraiate area (General Plan, pages 3-73 and 3-74) that also affect the unit yield and how, property should .develop. Policies most applicable to SD018533 are presented in Table 1 under :Land Use Policies for El Sobrante." Briefly summarized, the policies encourage "infill development" and encourage aggregation of deep nan-ow lots to yield better-designed projects (Policies 3-204 and 3-205). Because of the limitations of the existing road network, new development should be approved in the low- to mid-density range (Policy 3-203). In the case of a property designed SH, the low range is five dwelling units/net acre; the mid-range is 6.1 dwelling units/net acre.. The policies for El Sobrante recognize that some channels and drainage facilities in El Sobrante are inadequate, and call for implementation of measures to avoid inundation,ponding and sheet overflow during storms (Policy 3-202). Policy 3-198 calls for retaining and reinforcing the semi-rural and suburban character of the community, with strong emphasis on single-family residences. 1. Safety Element. The Safety Element of the General Plan includes a number of policies that require evaluation of geologic hazards for proposed land development projects in areas of potential hazards. On page 10-25 the Safety Element states that geologic conditions should be a primary determinant of land use. Table 1 presents ground failure and landslide hazard policies from the Safety Element that are most applicable to the project. 2. Transportation and Circulation Element: Hilltop Drive is designated a collector. According to this Element of the General Plan,there are no officially designated scenic routes in the project vicinity. S-3 Table 1 SELECTED LAND USE AND SAFETY ELEMENT POLICIES Land Use Policies for EI Sobrante 3-198 The overall goal of the area is to retain and reinforce the semi-rural and suburban character of the community with its strong emphasis on single-family residences,the feature which has drawn most residents to the area. 3-202 Upgrade the community's drainage system to eliminate problems caused by local inundation,ponding and sheet overflow during storms, and eliminate open diainage ditches along portions of Appian Way and San Pablo Dam Road and throughout the community. 3-203 In view of the existing traffic problems and the limited ability of the circulation system to adequately handle substantial growth in traffic volumes,new development should be approved at the low to mid range of the respective single-family residential land use density designations. 3-204 This plan calls for residential development to be directed primarily to areas where infilling of previously"passed over" property can occur,as well as to a limited number of larger parcels of undeveloped acreage. These larger parcels include the western slope of Sobrante Ridge,and the lower portions of the north face of San Pablo Ridge. 3-205 A major policy of this plan is to eliminate deep,narrow lots through the aggregation of land parcels in areas designated for multiple-family use. Every effort i hould be made to encourage the aggregation of such lots to provide for better designed projects. Ground Failure and Landslide Hazard Policies 10-22 Slope stability shall be a primary consideration in the ability of land to be developed or designated for urban uses. 10-23 Slope stability shall be given carefuliscrutiny in the design of developments and structures, and in the adoption of conditions of approval and required mitigation measures. 10-24 Proposed extensions of urban or suburban land uses into areas characterized by slopes over 15 percent and/or generally unstable land shall be evaluated with)regard to safety hazards prior.to the issuance of any•discretionary approvals. Development on open hillsides and significant ridgelines throughout the County shall be restricted,and hillsides with a grade of 26 percent or greater shall be protected through implementing zoning measures and other appropriate actions. 10-25 Subdivision of rural lands outside planned urban areas down to the allowed minimum parcel size shall be discouraged, if the parcels are within,or only accessible through,geologically unstable areas. 10-26- Approvals of public and private development projects in areas subject to slope failures shall be contingent on geologic and engineering studies which define and delineate potentially hazardous conditions and recommend adequate mitigation. 10-27 Soil and geological reports shall be subject to the review and approval of the County Planning Geologist. 10-28 Generally,residential density shall derease as slope increases,especially above a 15 percent slope. 10-29 Significant hillsides with slopes over 26 percent or more shall be considered unsuitable for types of development which require extensive grading or other land disturbance. 10-30 Development shall be precluded in are as when landslides cannot be adequately repaired. I Table 2 SUMMARY OF ZONING STANDARDS FOR THE R-7 DISTRICT • No structure shall be permitted in the R-7 district on a lot less than 70 feet in average width(84-6.604). I • No structure shall be permitted in the R-7 district on a lot less than 90 feet deep(84-6.606). • Structures are limited to 2'/2 stories or 35 feet in height(84-6.802). • Aggregate side yard setback shall be 15 feet. No side yard shall be less than 5 feet(84-6.1002). • The front yard setback shall be 20 feet. On corner lots the principal frontage shall have a setback of at least 20 feet and the other setback shall be at least 15 feet(84-6.1004). • The rear yard setback shall be at least 15 feet(84-6.1006). I S-4 3. Housing Element - The Housing Element has set targets for development of housing units for the unincorporated portion of the County, including a Vacant and Underutilized Site Analysis that indicates the potential for development of various sites within the County. That Inventory of parcels indicates that the five parcels constituting this site have a potential for development of 44 units moderate income Housing units. B. Zonin : The property is zoned R-7 (single-family residential, minimum standard parcel size 7,000 square feet). The Zoning Ordinance provisions regulating this district are found in Chapter 84-6. The standards of the District are surrunarized in Table 2. C. CEQA Status: For purposes of compliance with the California Environmental Quality Act, an Initial I Study has been prepared for the project which found significant biologic resource, cultural resource, and geologic/soils impacts. (see Appendix A for the Initial Study). Two.impacts have been identified and the applicant has agreed to thIe Mitigation Measures. The Mitigated Negative Declaration of Environmental Significance was posted on October 24, 2003. The conunent period. closed on March 11, 2004. During the review period, comments were received fi om the City of Richmond, LAFCO, WCWD, EBMUD and the El Sobrante Valley Planning & Zoning Advisory Committee, along with public comments and comments from neighborhood/environmental groups. Table 3 provides a summary of agencies, organizations and individuals who submitted comment letters, and copies of these letters are presented in Appendix B. Staffs response to these comment letters is presented in Section VI of this staff report. D. Regulatory Programs: 1. Flood Hazards. The project site is designated Flood Zone C. (Source: FIRM Panel 0235, dated September 7, 2000) 2. Active Fault Zone: The project site is not within an Alquist-Priolo Earthquake Fault Zone. (Source: CDMG Special Report'#42, 1994) Noi e Hazard: Accl rdin to theNoise Element o t e 3. s g No E em nt f he General Plan, the site is not within an area experiencing noise levels of > 60 DNL. (Source: Noise Element, page 11-23) 4. Hazardous Wastes: Thesite does not appear on the Cortese list, which lists all sites luiown to the State of California. i S-5 Table 3 COMMENT IRS ON THE NOTICE OF INTENT TO ADOPT A MITIGATED NEGATIVE DECLARATION I Agency Comments(Letter Date) Public Comment continued LAFCO(10/27/03) Nancy Mariner(11/20/03) West County Wastewater District(10!30/03) Evelyn Slessinger(11/20/03) West County Wastewater District(11/18/03) Saundra England(11/21/03) East Bay Municipal Utility District(11/20/03) I Ed Ballou(11/22/03) Office of Planing and Research(11/24/03) Doris Alsing(11/24/03) City of Richmond(12/16103) Bob Joyce(11/24/03) East Bay Municipal Utility District(11/20103) Selya Gomez-Suiter(I 1/24103) East Bay Municipal Utility District(3/l/04) Margrit Haaf(11/24/03) Community Groups&Environmental Organizations Miguel and Edna Hernandez(12/13/03) 19/03) El Sobrante Valley P&Z Advisory Committee(11/03/03) Claudia Crandall(121 Friends of Garrity Creek/Hilltop Neighborhood Assoc.(email Janet Laughlin(12/21//03)03) 11/16/03) Steven&Linda Everett(1/23/04) Friends of Garrity Creek/Hilltop Neighborhood Assoc.(I 1/17103) Kent Brandenburg,Bethel Baptist Church(1/27/04) El Sobrante Valley P&Z Advisory Committee(l l/18/03) Mathew L.Rei;Kister,Savio&Rei,Inc.(1/27/04) 9104) Richmond Greens Local,Green Party of Contra Costa(11/20/03) Kathy Dunham n(212/04 Urban Creek Council of America(11/21103) Steven D.Benson(2!2!04) El Sobrante Valley P&Z Advisory Committee(11/23/03) Munoz(2/3/04) El Sobrante Valley P&Z Advisory Committee(12/4Sandy /03) Sandy Fitzgerald Higgins(2/3/04) Friends of Garrity Creek(Booklet on Garrity Creek)(12/31/03) Kimberly Chan(2/3/04) The Fund for Animals,Inc.(1/4/04) I Ron Frank(214/04) El Sobrante Neighborhood Council(2113/04) Bethel Christian Academy(2/11/04) Tami Davidson(2/12/04) El Sobrante Elementary-4th Grade Erika&John Applin(2/12/04) Juan Rangel I Baroo Ahmadi(2/17/04) Khirey Diane Carter(2125104) Alexus Kathleen Braun(3/5/04) Ariana J. Martinez Marilyn M.Thompson(3/5/04) Dominica Patterson Jesse Golden(3/6/04) Ricky Bryant Joan C.barker(3/7/04) Rebecca Scott I V.L.Bressen(3/7/04) Jasmine Doris Alsing(3/7/04) Frank Carol Osmer-Newhouse(3/8/04) Chanay Bret&Wanda Smith(3/8/04) Gregory Ann M.Hershey(318104) Chanelle lose William&Evelyn Slessinger(3/8/04) Jason Factora Tejada Janet Laughlin(3/8/04) Daniel Marten Fisle(3/8/04) Christy I Mike Pelton&Jain Hutzell-Pelton(318104) Audrey Vi&Robert Bressem(3/8/04) Marlena C.Subia Shelley Mazer&Julius Baker,Jr.(3/8/04) Ben I loan&Robert Bracken(3/8/04) Taivon Bennie Saville(3/8/04) Lovell Claire W.Bleset(3/8/04) Jeremy Thomas A.&Susan Wright(3/8/04) Harun Juanita Greengard(3/8/04) Public Comment Brian Scott Creamer(3/8/04) Erik Wheaton(11/15/03) Annie Hershey&Carol Osmer-Newhouse(3/8/04) Janelle M.Numes&Charles Proctor(11/16/03) I Selya E.Gomez-Suiter(3/10/04) Mike Mantel](11/17/03)Tracy Taylor(11/18103) Maybel L.Draxton(3/10/04) Kim Dixon(11/18/03) Doris Petersen(3/11/04) Phil Covel(CDD on 11/19/03) I Thomas Wuttke&Victoria House(3/11104) Katherine Perez,NVY(Ohlone,Miwok)(11119/03) Kenneth A.Peterson(3/11/04) Michael Ali(11/19/03) James Huppert(3/27/04) P.and Gloria Alejandre(11/20/03) Chelsea Marion(3/29/04) Winifred Tong(11/20/03) S-6 5. Previous Applications: On March 30,-1990 an application was filed for a 24-lot single-family residential subdivision (SD7504). That application encompassed the southern half of the 10-acre site of SD018533. The proposed density of SD7504 was 4.8 units/gross acre (approximately. 6.4 units/net acre). The ,application was approved by the Zoning Administrator on February 3, 1992 subject to 27 conditions of approval. The permit had an effective date of February 13, 1992. This approval expired on February 13, 1995. In sununary, the Final Map was never recorded and the approval expired without a request being filed for a time extension. Apparently the project proponent lost interest in the project. Even if an extension to record the Final Map had been requested by the applicant and granted by the County, the approval would have lapsed two years ago. E. Permit Streamlining Ac The application for SD018533 was received on May 17, 2001. At that time the request was for approval of 44 lots. On May 17, 2001, the applicant was notified by the Community Development Department (CDD) that additional information was needed, and the required data was listed. A revised Vesting Tentative Map and related information was submitted. On August 21, 2001, CDD issued a second request for additional information indicated that the application remained incomplete, identifying the specific items needed to make the application complete. A revised plan was submitted, along with the other items requested by CDD. The application was deemed complete on November 1, 2002. The posting of the CEQA notice and completion of the Initial Study was delayed to allow the applicant to work with representatives El Sobrante Planning and Zoning Advisory Committee. Specifically review of the project had resulted in submittal of all of the data required to satisfy provisions of the Subdivision Ordinance and all technical data needed to prepare the Initial Study. During the 18 months between the filing of the application with CDD and deeming the application complete, the plan was revised and the lot yield reduced from 44 to 41 units. However, the correspondence in the County file indicated considerable opposition to the project. In an effort to resolve these differences outside of a public hearing, staff recommended that the applicant go back to the El Sobrante Valley Planing and Zoning Advisory Committee, get a list of their issues/concerns/recommendations, and then strive to modify the project to incorporate those "concerns" into the proposed VTM. Based on staff s suggestion the applicant obtained a list of issues from the El Sobrante. P&Z. That list, which is dated December 23, 2002, is presented in Appendix C,page C-11 and C-12; it lists 26 recommendations. The applicant made changes in the plan to address the issues identified by the El Sobrante P&Z. Those changes included increasing the road widths in the project, connecting the project roads to Marin Road, thereby avoiding the need for an emergency vehicle access (EVA), and assigning S-7 duties for maintenanc i of the creek channel and common improvements to a homeowner's association. Staff reviewed the re I ised ) suggested that the and a lan su applicant seek an P PP endorsement of the newly revised VTM from the El Sobrante P&Z , and b) staff made additional suggestions pertaining to the grading and retaining walls, along with requesting more details on the measures intended to keep post-project flows at the pre-development level. I Staff also advised the applicant that while he may wish to include a tot-lot in the project (an issue of the El Sobrante P&Z), the Ordinance Code does not allow the cost of that land (or the improvements) to be deducted from the park dedication fees. The reviews by the P&Z resulted in an updated and expanded list of issues and concerns presented in a letter dated April 19, 2003 (see Appendix C, pages C-8 and C-9)� This list contains 29 suggested conditions/changes. In response to the 29-point iP&Z list,the applicant revised the plan for a fourth time and issued a 29-point response (see Appendix C, page C-6). In summary, the lot yield was reduced to 40. Grading was substantially reduced; padded lots nearly eliminated from the project and the proposed slope gradients flattened from 2.5:1 to approximately 5:1.' This has eliminated the retaining walls in the project, with the exception of walls needed for roads in three places within the project (i.e., to comply with the Public Works standards for road gradients). The applicant also modified the road design to eliminate an EVA-only connection to the north via Road 24, and instead provided a connection with Marin Road. Through negotiation with the California Department of Fish & Game (DFG), the applicant reached a tentative agreement which is documented in a letter received by CDD on March 6, 20021. The Initial Study was then completed which identified Biologic Resource impacts and mitigation measures. CDD then referred the Initial Study to the applicant for the purpose of securing agreement to the mitigation measures. On October 210, 2003, CDD received a letter from the applicant agreeing to the mitigation measures. Four days later (on October 24, 2003) the Notice of Intent to Adopt a Proposed Mitigated Negative Declaration was posted. In summary, the project was deemed complete on November 1, 2002. In the following 12 months thel applicant negotiated with the El Sobrante P&Z and made other changes to accommodate staffs concerns. Since the revised VTM was received by CDD on November 6, 2003, CDD has prepared the Initial Study, CEQA notice and staff report. 'The Grading Ordinance allows use of 2:1 (horizontal to vertical gradients)so the design that is currently proposed can be considered sensitive to geologic constraints. I S-8 IV. AREA AND SITE DESCRIPTION Figure 1, Vicinity Map, shows,the location of the site with respect to Interstate 80, nearby communities and San.Pablo Bay. Sobrante Ridge (located east of the site) and Pinole Ridge (located 1.75 miles northeast) are officially designated scenic ridges by the Open Space Element, but the property is not on a scenic ridge. Figure 2, USGS Topographic Map, shows the topographic setting of the site on a base map that shows the local road network. The property is in an upland area that is drained by Garrity Creek which is sho A n on the map as an intermittent stream. The main stem of Garrity Creek drains to the west. Just west of the site the creeklis culverted in the Hilltop Green development. Figures 3, 4 and 5 present color General Plan, Zoning and Slope Maps. The portions of Figure 3 and 4 that are not colored are lands within the cities of Pinole and Richmond. There are five properties that are outlined with a black line and which are numbered "1" through "5". These are recent subdivision applications (i.e., they are proposed in-fill projects within the northern portion of the El Sobrante area). The site.of SD018533 is labeled 5. The property is designed single-family -high density(SH), as are adjacent lands to the north, south and east. Other General Plan designations in the project vicinity include multiple-family — medium density (MM), multiple family — low density (ML), single- family — medium density (SM), single-family — low density (SL), open space (OS), commercial (CO), and office (OF). Figure 3 also shows the prevailing parcel sizes in the area. The area along the south boundary of the property (between the main portion of the site and Hilltop Drive) are narrow, deep parcels that are underdeveloped by the standards of the General Plan Land Use Map. They range from 0.5 to 3 acres each and typically have one residence per parcel (see Figure 6 for a parcel map! of this area). The remainder of the adjacent area is fully developed. There is an undeveloped road right-of-way that runs along the western side of the property, Road 24. Except for the portion that adjoins immediately to the north of this site, it appears to have no functional purpose. Figure 4 is a Zoning Map. Thelprcject site and adjacent parcels to the south are Zoned R-7. The area to the east and northeast of the site are designated R-6. Both the R-6 and R-7 districts are consistent with the SH General Plan land use category. Figure 5 is a slope analysis map of the propertyl. The categories shown (0-15%; 15-26%; and >26%) correspond to slope categories!cited in Safety Element Policies 10-24, 10-28, and 10-29 (see Table 1 on page S-3). Policy statements in the Gene>Iial Plan Safety Element that are applicable to hillside land development projects (see Table 4). The major geologic hazards in Contra Costa County, aside from earthquake rupture and direct effects of ground shaking, are unstable hill slopes. Slopes may suffer landslides, 'slumping, soil slips and rockslides. Landslides and other ground failures occur during earthquakes, triggered by the strain induced in soil and rock i I S-9 iTable 4 GROUND FAILURE AND LANDSLIDE HAZARD POLICIES 10-22 Slope stability shall be a primary consideration in the ability of land to be developed or designated for urban uses. 1.0-23 Slope stability shall be given careful scrutiny in the design of developments and structures,and in the adoption of conditions of approval and required mitigation measures. 10-24 Proposed extensions of urban or suburban land uses into areas characterized by slopes over 15 percent and/or generally unstable land shall be elevated with regard to the safety hazard prior to the issuance of any discretionary approvals. Development on open hillsides and significant ridgelines throughout the County shall be restricted,and hillsides with a grade of 26 percent or greater shall be protected through implementing zoning measures and other appropriate actions. 10-25 Subdivision of rural lands outside planned urban areas down to the allowed minimum parcel size shall be discouraged,if the parcels are within,or only accessible through,geologically unstable areas. 10-26 Approvals of public and private development projects in areas subject to slope failures shall be contingent on geologic and engineering studies which define and delineate potentially hazardous conditions and recornmend adequate mitigation. 10-27 Soil and geological reports shall belsubject to the review and approval of the County Planning Geologist. 10-28 Generally,residential density shall decrease as slope increases,especially above a 15 percent slope. 10-29 Significant hillsides with slopes over 26 percent or more shall be considered unsuitable for types of development which require extensive grading or other land disturbance. 10-30 Development shall be precluded in areas when landslides cannot be adequately repaired. I by the groundshaking vibrations, and during non-earthquake conditions, most frequently during the rainy season. Both natural and man-made factors contribute to these slope failures. As a practical matter, compliance with Policies 10-28 and 10-29 are subject to interpretation. Slope characteristics may be a limiting factor in determining suitable development for a site. In the:case of Subdivision 8533, there are 14 distinct areas of>26 percent slope that total 1.62 acres (see Figure 5). The two largest areas of>26 percent slope are at the following locations: a) Immediately north of the access road crossing of Garrity Creek; and b) Just west of the existing terminus of Marin Road. The location of the Garrity Creek crossing was selected by CDFG because it avoids disturbance to riparian vegetation; the Marin Road connection proposed by the VTM is a response to the Ordinance Code requirement that addresses the length of cul-de-sac (and which therefore encourages two ingress/egress road connections for this project). According to Figure 5, 6.81 acres (67.5 percent) of the property possesses slopes of 15 to 26 percent. The VTM proposes 40 lots, which is in the lower one-:third of the allowable range (40 units / 7.57 net acres = 5.2 units per net ac.). The pertinent facts may be summarized as follows: i S-10 • A computer-generated slope snap of the property indicates the following: Slope Category Acreage ° of Site 0-15% I 1.62 16.1% >15-26% 6.81 67.5% >26% I 1.65 16.4% Totals i 10.09 ac. 100% Figure 7 shows parcel sizes north of the site (Manor Road and Marin Road lots). The 1 of a flat ridge and are approximately 60 feet (wide) x 150 Mann Road lots are lie on top, feet (deep), which corresponds to 9,000 square feet. The Manor Road lots are deeper and average 12,000 square feet t. Figure 8 shows parcel sizes in the northwest portion of the site. The site is bounded on the northwest by four parcels that are approximately 2f 0 acre each (APN's 426-192-0013, -004, -006, and -007). The applicant has negotiated for a sanitary sewer easement across APN 426-192-004 that will allow all lots in the proposed subdivision to be sewered by gravity to the existing Manor Road main. I V. PROJECT DESCRIPTION Figure 9, Vesting Tentative I Map, shows the configuration of the proposed 40-lot subdivision. The road system within the project is designed to comply with private road ordinance standards. The main entrance road (Royal Oaks Drive) is to be single-loaded and have a paved width of 20 feet, and a grade with a slope as steep as 15% near the proposed creek crossing. No on-street parking would be permitted on either side of the entry road. The lots on the segment of the site just north of Garrity Creek(lots fronting on Garrity Creels Drive) are 70 feet wide, and 100+ feet in depth with the exception of Lots I 1 thru 14 at the cul-de-sac. These four lots are 56 to 70 feet in average width. They are pie-shaped. This road is 28 feet in width, which allows for parking on one side only. Garrity Creek Drive is to have la paved width of 28 feet from its intersection with Garrity Creek View to the Marin Road intersection. Garrity Creels narrows to a 20-foot paved width north of Lot 26. With regard to circulation-relayed items,the project connection to Marin Road is consistent with the Ordinance Code, which places limitations on the length of cul-de-sacs. The Marin Road connection will function las the secondary project access. Marin Road was stubbed out at the project boundary, indicating that the road was always intended to be extended to serve the SD018.533 site. The VTM also indicates improvements to the Hilltop Drive/Royal Oak Drive intersection, including a left tum storage lane on Hilltop Drive, and a landscape statement on the southernmost portion of Lot 91 to create a formal entry to the project. Each street would have a sidewalk on one-side. I S-11 Table 5 APPLICANT'S PROJECT OBJECTIVES FOR SD018533. • To encourage unique,imaginative archil)ecture and site design which integrates into a setting that is well planned and environmentally sensitive. • To provide executive-style,nvo-story hl roes with useable outdoor vard areas with sweeping views of the adjacent hills and creeks,and with easy access to 1-80,shopping and other community facilities. • To retain and enhance water courses on the site,and comply with all permit requirements of the California Department of Fish and Game and Regional Water Quality Control Board. • To limit grading to that required to provide roads meeting standards of the County Ordinance Code for private roads, and restrict grades of engineered slopesito 2.5:1 (horizontal to vertical)and design hillside residences that conform with the natural terrain. Where slopes with 21/2:1 gradients are not feasible,special engineering will be utilized(e.g., engineered,permanent retaining walls). • To keep post-development runoff from the project site at the pre-development level for the design storm. • To provide low-rise street lighting throughout the project,with the design based on recommendation of a lighting engineer. • To establish a homeowners association with maintenance responsibilities for roads,street lights,drainage channels, fencing along the Garrity Creek channel,and riparian landscape planting materials. I Figure 10 shows the approach.to grading and development. It indicates that grading will be minimized, with nearly all proposed residences tucked into the hillside. This allows for an approach to grading that is conservative on the side of safety. The slopes indicated in Figure 10 have gradients of 3:1 to 4:1. The project objectives, which are presented in Table 5, indicate engineered slopes will not exceed 2t/z:1. Figure 11 shows the details of the improvements at the Hilltop Drive/Royal Oaks Drive intersection. The applicant has provided conceptual building designs to show how both uphill and downhill lots might be developed as split-level residential designs. These. building elevations are presented in Figures 14 through 16. Figure 14 presents an elevation of a lot that slopes down toward the creek. It is intended to be representative of lots that front on the south side of proposed Galmty Creek View(i.e., proposed Lots 6-11 and 36-40). The purpose of the illustration isi to indicate a residence on a sloping lot with attractive architectural details could be constructed on the downslope lots. Figure 15 is a view of the same downslope residence as seen from the rear yard (i.e., view as seen from the grade of the creek). Figure 16 is an elevation for an upslope lot. This illustration is intended to be representative of the types of dwellings that could be constructed on Lots #14 through 21. It has a street in the foreground, with a garage at the grade of the street. A two-story dwelling is shown which is setback from the roadway, and is one floor above the elevation of the garage. (This design would require filing.of a request for a variance to the front yard setback standard of the R-7 District.) Nevertheless, the design shows that there is potential for architecturally interesting hillside residences on upslope lots. S-12 The site contains a number of trees (almost entirely non-native species). Most of the trees are relatively small in size, but there are several eucalyptus with trunk sizes greater than 50-inches in diameter. Most of the trees are concentrated in a glen in the northwest corner of the site. The applicant proposes to retain most of the existing trees. To satisfy the requirements of the California Department of Fish and Game, the applicant is proposing to enhance the creek corridor and to preserve a wet meadow area (in the northern portion of the site on Lot 29). The applicant is also proposing to satisfy storm water quality control requirements by providing for grassy swales that would collect filter runoff before it leaving the site. VI. AGENCY COMMENTS A. Grading Division. The County Building Inspection Department provided convments in a memorandum that indicates the project must comply with the standards of the County Grading Ordinance and Clean Water Program requirements, B. California Historical Resources Information System. CHRIS issued a memorandum indicating that the site had the possibility of archaeologic resources and they recommended a survey prior to project implementation. (In response to that request the applicant retained Pacific Legacy to conduct the required investigation; see Initial Study, page 14 for further details.) C. Public Works Department. The Public Works Department has provided recommended conditions for this project addressing drainage, traffic, and utility requirements. D. City of Richmond. In a letter dated August 18, 2001, the City provided comments on the project, expressing concerns about traffic, drainage and grading (see the City's response to the NOI for recent comments on the project: Appendix B, page B-50). E. California Department of Fish and Game. In a letter dated August 18, 2001, the CDFG indicated that they were satisfied with the project design and mitigation measures. The project has evolved since then,but the treatment of the creek corridors are unchanged or are now more sensitive to creek protection. The Initial Study was referred to CDFG for comment by the State Clearinghouse. CDFG elected not to comment, which is an indication that the project design and the mitigation measures remain satisfactory to CDFG staff. F. Contra Costa County Flood Control and Water Conservation District. In a memorandum dated May 12, 2003, the District indicates that the District has no knowledge or reports of drainage deficiencies affecting the reach of channel from the site to 1-80 that have been alleged by the City of Richmond. However, they do not S-13 have copies of improvement plans in their files, and the downstream area is within the City of Richmond. G. California Regional Water Quality Control Board— SF Bay Region. In a letter dated February 2, 2002, the Regional Board indicates that they have seen documentation of consultation with the CDFG regarding the Streambed Alteration Agreement, and the Regional Board reminds the applicant of their routine permit requirements, and of the need to obtain a Clean Water Act - Section 404 permit from the Army Corps of Engineers. In a letter dated January 14, 2003, the Regional Board indicates that the project complies with all permit requirements. H. Contra Costa Countv Fire Protection District. In letters dated August 27, 2002 and September 26, 2002, the District outlined its standard requirements for: a) reliable water supply, b) hydrants, c) road improvement standards, d) addressing, e) roofing materials, and f) provision for plan review by District staff. I. El Sobrante Val]ev Planning and Zoning Advisory Committee. In a letter dated August 1, 2002 the P&Z Committee recommended: a) a focused EIR (addressing geology, soils, slope stability; protection of Garrity Creek and its habitat; and transportation circulation); b) reducing lot. yield to 16 units (i.e., net density of approximately 2.1 units/net acre); e) sidewalks on both sides of the street; d) permanent/engineered retaining walls (no wood walls); e) all roads to be standard County roads (public roads?); e) further details on the tributary of Garrity Creel: coincides with the northwest property boundary; f) homeowners association, with duties spelled out clearly; g) a neighborhood park on-site, maintained by HOA (tot lots); and h)posting of a general liability bond for 10-12 years to cover a72y problems that arise. J. Friends of Garrity Creek/Hilltop Neighborhood Association. Briefly summarized, a petition signed by over 330 persons was submitted. It indicates the following opposition to the project and requests the following: • Prevent degradation of the natural environment. Prevent negative impact on traffic,wildlife, Garrity Creek, and the semi-rural character of the area. Take all possible steps towards park development in this area. • Update and modify the General Plan for the area with substantive input from residents in order Ito protect the semi-rural environment and the quality of life in the area. A July 31, 2002 letter from this community group requested: a) the project be designed to comply with applicable County ordinances; b) protection of the creek i S-l4 channels and associated habitat; c) soils and slide issues; d) traffic and pedestrian issues; and e) storm drainage. K. Urban Creeks Council of California. In a letter dated August 1, 2002, the UCCC indicated concern about creek crossings and an EVA that was proposed at that time; potential environmental impacts to creek habitat and wildlife; the loss of coast live oak and Fremont cottonwoods; and requested more details of the NPDES measures proposed for this project. VII. STAFF RESPONSES TO dOMMENT ON NOTICE OF INTENT TO ADOPT A MITIGATED NEGATIVE DECLARATION OF ENVIRONMENTAL SIGNIFICANCE A. Responses to Agency Comments 1. Office of Planning and Research. The State Clearinghouse assigned the SCH 42003102107 and refeiTed the NOI and Initial Study to the Department of Fish & Game, Department of Parks and Recreation, Department of Water Resources, Caltrans, Regional Water Quality Control Board, and Native American Heritage Commission.. State and regional agencies had "no comments" on this application or the environmental documents. 2. West County Wastewater District (WCWD). The letter indicates that the site is within the district, so annexation is not required. WCWD indicates that a sanitary sewer plan is required, sand the letter indicates the District's requirements. With regard to the Initial Study, WCWD provides information on a downstream drainage problem on Garrity Creek. Specifically, sediment was allowed to accumulate in the channel downstream from the Hilltop Green Park. The sediment (and vegetation) obstructed the outfall of a culvert and caused water during a rainstonn to back up to Hilltop Green. WCWD obtained a grant to correct this problem during the late 1990s, and the improvements were made. In summary, the deficiency that triggered flooding was not related to the capacity of the culverts, but was the result of an erosion/sedimentation problem at the channel downstream of the Hilltop Green culvert. .3. City of Richmond. Because of off-site landslides in the City of Richmond, the City concludes that the geology of the site needs to be thoroughly examined, and should give consideration to the effect of the project on adjacent areas. In response see COA's 15-19 and Initial Study pages 17-20. I With regard to drainage facilities, the City suggests that there may be deficiencies to drainage improvements downstream from the site (in Hilltop Green) and indicates further studies are needed to assure impacts to surrounding areas are minimal. In response, the project's dsign is intended to minimize impervious surfaces, and the S-l5 County's Ordinance Code requires all subdividers to either prove that downstream drainage improvements have adequate capacity to carry runoff from the design stoi-in; provide downstream drainage improvements; or reduce flows exiting the site to the pre-development level. According to the County Public Works Department there are no known significant drainage impacts, and COA's 950-51 requires hydrology studies and improvements to ensure proper drainage design. Furthermore, the hydrology analysis must comply with the hydrology modeling requirements of the Flood Control District. Finally, because of these two issues and traffic, the City requests at least a focused EIR to thoroughly address these areas. The staff response to.the geology/stability and drainage issues are presented above. With regard to traffic, the project has been analyzed by the County, both in terms of the circulation effects in the neighborhood, and internal circulation and parking. The data gathered indicates that the project will not result in any significant traffic impacts. The key point pertainingI to geologg / radin /slo e stability are as follows: s. • The standards for geotechnical remediation plans have improved over the years. The two landslide maps of the EI Sobrante area are those of the U.S. Geological Survey (presented �in .Figure 12), and a map prepared by Alan Kropp & Associates (AKA) under a contract with the City of Riclunond and Contra Costa County. The USGS map shows no slides on the site. The AKA map shows a slide in a small comer of the site (in the vicinity of the proposed Adam Court). The grading plan for the project is conservative on the side of safety. • The Initial Study identified a potential landslide/slope stability impact; an erosion and sedimentation impact; and an expansive soils and/or bedrock impact. For each of these three impacts, mitigation measures have been proposed. The mitigation measures have been translated into Conditions of Approval (COA's #15-18). The key points P oints ertaini I g to drainage and traffic are summarized as follows: the applicant has submitted a�traffic study and a hydrology study which was reviewed by engineers of the Public Works Department and Flood Control District. No evidence of significant impacts were confirmed. It should also be recognized that the recommended conditions of approval address both traffic-related concerns (COA's #32-49) and drainage-related concems.(COA's #50-57). 4. LAF O. The LAFCO letter indicates that they have no comments on the NOI or Initial Study. S-16 5. East Bay Municipal Utility District. The District indicates that the site is in the Argyle Pressure Zone. The District has no comment on the adequacy of the NOI oi- Initial Study. B. Environmental Oanization and Community Group Responses 1. El Sobrante Valley Planning and Zoning Advisory Committee. The concerns raised by the P&Z focus on: a) biological resources; b) hydrology and water quality; c) transportation/traffic; and d) geology and soils (see P&Z letter in Appendix B, corrunencing on page B 155). Staff's responses are as follows: a. Biological Resources. The peer review letter of Monk and Associates is presented in Appendix D. The P&Z also questions the assessment of the wildlife corridor. It should be recognized that the applicant retained LSA (and later Michael Wood) to provide biological resource assessment of the property. The. data provided was reviewed by a jurisdictional agency (California Department of Fish and Game), as well as the County's biologic resource consultant. The site clearly provides habitat for wildlife, but the project is in an urban area, surrounded by residential development Because of the developed nature of the lands surrounding the site, the property is not considered a significant wildlife corridor by professional biologists. b. Hydrology and Water Quality. The comments of the El Sobrante Valley P&Z commence on page B-55 (Appendix B). The first comment pertains to an existing drainage problem in the watershed along Hilltop Drive,between Manor Road and Aspen Court. This location is higher in the watershed and will not be affected by the proposed project. This location is classified "Zone C" by the FEMA Flood Insurance Rate Map. The explanation accompanying the FEMA map indicates locail areas of minor flooding may exist within Zone C. The continent of the El Sobrante P&Z provides clarification on this issue, but it is not a significant impact of the project. The El Sobrante Valley P&Z indicates that the City of Richmond has provided correspondence to the County about concerns for the project runoff to aggravate existing drainage problems in the Hilltop Green residential subdivision. It goes on to indicate that Rich Davidson of the Richmond Public Services Department sent drainage information to the County on November 17, 2003 (one day prior to the end of the continent period on the NOI). The information referred to by the El Sobrante P&Z were drainage improvement plans for a portion of Hilltop Green project. Those plans were not accompanied by hydrology calculations or by text indicating that they demonstrate,a drainage problem. They were submitted as technical data to be considered by the County. These drainage improvement plans were referred to the County Public Works Department. The S-17 Public Works Department indicates that the developer of Subdivision 8533 either be required jto: a) fully analyze the downstream system (and construct downstream improvements where deficiencies are identified); o'r b) keep post- buildout flows exiting the site at the pre-development level. The County Public Works Department considers the recommended drainage-related Conditions of Approval to fully respond to this situation, and considers the processing of the application in this manner to be consistent with the approach to processing other proposed subdivision applications. In summary, it is premature to perform a detailed drainage analysis until the design of the subdivision is established (by approval of the VTM by the decision-making body), and that irrespective of the outcome of the hydrology studies, measures are available and routinely applied to remediate drain. ge deficiencies. The El Sobrante Vlalley P&Z indicate that there was a horrendous flood during the 1997 winter rainy season. At that time a culvert was blocked by sediment, and runoff thatwould normally have been conveyed down the Garrity Creels channel backup into Hilltop Green, resulting in inundation of portions of that project. This problem was a result of erosion/sedimentation problems in the lower watershed area. A grant from FEMA allowed the culvert and channel to be cleaned out and stabilized. Thus, the 1997 flood event related to inadequate "winterization" of'a grading project and perhaps inadequate maintenance of a culvert. The flooding does not appear to be due to the capacity of the culvert. The El Sobrante P&Z goes on to state that the capacity of the culvert through the Hilltop Green project must be established and a determination must be made to establish that the downstream system can carry the increased runoff from Hilltop Green. Staff is in agreement with this condition. The Initial Study addresses this issue as follows: In summary, the project will be required to fully comply with all aspects of the drainage requirements of the County Subdivision Ordinance. This includes collecting all surface waters entering or originating on the subject property and conveying them ini an adequate storm facility to its point of discharge into a natural watercourse. As an alternative, the Subdivision Ordinance allows the County, at its discretion, to require regulating the outflow from the project so as not to exceed the',capacity of downstream facilities, and this is the applicant's stated intent. Strici adherence to these Code requirements can be expected to ensure that the project does not have an adverse effect on the reported downstream drainage inadequacies within the Hilltop Green project, Interstate 80, or any other downstream drainage facilities. The Public Works Department, as part of the final', design and plan review process, requires submittal of a detailed hydrology and hydraulic analysis of the downstream facilities to verify their adequacy prior to allowing to discharge to those existing drainage S-18 facilities. This may require off-site improvements to increase capacity should these facilities prove to be inadequate as defined by the Subdivision Ordinance. (Source: Initial Study, pages 23-24). c. Transportation/Traffic. The El Sobrante P&Z indicates that the traffic analysis for the project focused on intersections immediately adjacent to the project site, but it failed to study the more heavily used intersections,.including Hilltop Drive/Manor Road and Hilltop Drive/La Paloma Road intersections and the Hilltop Drive/I-80 interchange. In response the project will generate approximately 40 peals hour trips, and Measure C standards call for studies of the type requested by the P&Z when the project will generate 100 (or more) peak hour trips. The El Sobrante P&Z also expresses concern about the effect of project traffic on Marin Road, and the need for improvements to Marin Road to carry this added traffic. In response, the Public Works Department has reviewed the circulation plan fort this project and found that no improvements to Marin Road are needed and that the proposed road connection at the north end of Marin Road will not create a significant traffic impact. d. Geology and Soils. The El Sobrante P&Z comments on this issue are presented in Appendix B on ,pages 58 and 59. The response to the City of Richmond's comment letter addresses staffs response to the El Sobrante P&Z geology and soils comments (i.e., see response to City of Richmond's letter presented in Section VII.A.3 of'this staff report). e. Miscellaneous Conitnents. The P&Z questions whether the applicant's geotechnical report included the entire site, and the P&Z also states that the Richmond Public Services Department did not receive a copy of the NOI and Initial Study. In response, staff found that the AMSO Geotechnical report did address the entire site. It should be recognized that the function of the AMSO report is to identify geologic hazards and assess the general suitability of the site for residential development. The Conditions of Approval require a final geotechnical report that will provide design-level recommendations for site grading, drainage and foundation design(see COA#15). All CEQA documents were referred to the City of Richmond's staff. f. Final Comments. Because of missing information for El Sobrante P&Z requests at least a focused EIR. In response, staff concludes that the Initial Study, in combination with the con-iment letters and responses to comments,provides the documentation needed for compliance with CEQA. i S-19 2. Friends of Garritv Creek and Other Community Organizations and Environmental Groups. The Friends of Garrity Creek and other environmental and conununity- based groups have raised questions similar to those posed by the El Sobrante Planning and Zoning Advisory Conunittee and to those posed by the public comments. See responses to those comments. 3. El Sobrante Elementary School - 4th Graders. A total of 24 letters were received from 4th graders. The letters are all different in their approach, but each is oriented toward the protection of the creek and wildlife resources on the property. The comments do not show knowledge of the Vesting Tentative Map, and do not address the adequacy of the Initial Study. i C. Response to Public Comments During the 140-day comment period (October 22 - March 11, 2003), 61 comment letters were received. Nearly all of these letters (48) are in opposition to the proposed project and they raise issues/concerns about subjects addressed by the Initial Study. Thirteen (13) of the letters support the project. The majority of the letters in opposition request preparation of an Environmental Impact Report, but provide no technical data to support the assertion that the CEQA Initial Study and mitigation measures. are inadequate. Table 6 is a histogram identifying the issues of greatest concerns to persons opposed to the project. The categories listed on the left-hand column represent the environmental categories in the Initial study. The right-hand column indicates the number of letters that express concerns about some aspect of this category. As the histogram indicates, thl nearby property owners are most concerned about traffic, flooding and maintaining a good water quality. Other issues of concern to several commentors were biological resources (i.e., protection of Garrity Creek and its habitat), geology and soils (grading, slope stability), land use and planning (density of the project, preservation of open space, quality of life). A few respondents thought the site should be acquired for a park rather than,being developed. In general, there is little evidence in the comment letters that the respondents were familiar with the design of project or with the details of the Initial Study. They know the site's location and its setting. They are not comfortable with development lof the site and/or with the lot yield. The comments indicate that Hilltop Drive is congested during peak hours and when parents are transporting students to and from neighborhood schools, making it difficult to enter Hilltop Drive from side streets and driveways. There were also fears of increased traffic on Marin Road. It is a public road that stubs-out at the property boundary. Since Marin Road was not designed with a cul-de-sac at its west terminus, it is reasonable to infer that it was planned to provide access to the subject property. By making this connection, the opportunity exists for Subdivision 8533 traffic to use Marin Road for some destinations (e.g., elementary school), but the potential also S-?0 Table 6 HISTOGRAM:SUMMARIZING PUBLIC CONCERNS Environmental Factor I . ..Number of Comment Letters Aesthetics/Viewshed I 4 Agricultural Resources Air Quality Biological Resources 31 Cultural Resources 2 Geology and Soils I 27 Hazard/Hazardous Materials Hydrology and Water QualityI 35 Land Use and Planning/Density I 29 Mineral Resources Noise Population and Housing 2 9 Public Services i 7 Recreation —4 Transportation/Traffic l44. Utilities and Public Services 8 I s or the residents of Marin Road to use a exists f s roads in the proposed project. The Public Works Department has reviewed the design of: a) internal roads in Subdivision 8533, and b) the proposed Hilltop Drive/Royal Oaks Drive and Marin Road/Garrity Creek View intersections. This review indicates that the internal roads generally comply with Ordinance.Code standards, but some fine-tuning will be needed during preparation of improvement plans. The increase in traffic is not considered to be a significant impact. It is anticipated that most project-related trips will be oriented toward the Hilltop Drive/Royal Oaks Drive entry'points. With regard to the creek, the commentors see it as habitat and a scenic resource. They infer that the proposed project will significantly impact the creek. The CEQA Initial Study supports the conclusion that the project will significantly impact the creek. Mitigation measures are provided for the;potential impact to: a) nesting raptors and passerine birds; b) red-legged frog; and c) freshwater marsh riparian vegetation'and trees. The-California Department of Fish and Gamel has reviewed plans for the project and provided input into the mitigatiori measures. ThKeeluding commended Conditions of Approval #8-14 respond to biologically-related impacts, loss of trees. i S-21 With regard to geologic and soils hazards, several commentors have indicated soils on-site are "liquefiable" and the stability characteristics of the site are similar to the conditions which prevail at the site of the ILa. Cima Road/La Colina Road slide (located approximately one anile to the south of the project, which was responsible for heavy damage to public roads and private residences in that neighborhood. In response, the soils on the - Subdivision 8533 site are too clayey to liquefy. With regard to the landslide hazard comparison with La Cima-La icolina.neighborhood,published landslide maps (along with subsequent geotecluzical studies) have confirmed that the dwellings in the La Cima-La Colina area were constricted on a dormant landslide that re-activated in the .19 80s and 90s. Furthermore, at the time that those homes were constructed, and the standard of care used by design professionals (and building codes) were less highly evolved. Conversely. there is one slide area on the site that is relatively shallow. The CEQA Initial Study identified "Geology and Soils" as a potentially significant impact. Mitigation measures are proposed for: a) landslide/slope stability; b) erosion and sedimentation, and expansive soils and/or bedrock. The implementing conditions of approval are COA's # 15-19. The commentors also raised questions about the effect of the project on flooding and water quality, noting drainage problems within the Hilltop Green project, a 500-unit subdivision in the City of Richmond located just downstream from the site. The Initial Study researched this issue, and concluded that there is no evidence that the project will have a significant impact on the existing off-site drainage problems. Specifically, the applicant's stated objective is to keep post idevelopment runofffrom the project at the pre-developme7lt level for the design storm; and Public Works requires that the applicant prove that downstream drainage facilities are adequate. If not, then the inadequacy must be corrected or detention facilities constructed to keep peals flows exiting the site at the pre- development level. Only two letters provided technical data on an issue that was not addressed by the CEQA Initial Study. They are from Michael Ali and Katherine Perez of Ohlone/Miwok heritage. They report what were believed to be evidence of use of the site for a hunting camp by tribal ancestors (i.e., four stone artifacts were collected that appeared to show some evidence of being used by prehistoric Native Americans.) It should be recognized that the applicant's 2001 archaeologic survey performed by Pacific Legacy included a field reconnaissance and literature review, along with contacts with both the Native American Heritage Commission and California Historical Resources Information System. That review found no evidence of isignificant cultural resources on-site. In response to the comment letters from Katherine Perez and Michael Ali, the applicant's archaeologist met with Gwen O'Neil and Bob Joyce at his office in October 2003. These neighbors/interested citizens showed the artifacts reported by Michael Ali and Katherine Perez to the archaeologist. The "finds"were collected at the confluence of Garrity Creek with a major tributary. This location is off-site (just southwest of the site), within an area of artificial (man-made) fill. Detailed evaluation of these specimens by the archaeologist found that none showed evidence of being culturally-modified artifacts. On March 5, 2004, the S 77 archaeologist visited the two areas regarded as having the highest archaeologic resource potential by Ms. Perez and Mr. All: a) an old spring (on-site), and b) confluence of main stem of Garrity Creek with a tributary (off-site). Shovel probes did not reveal any surface evidence of prehistoric occupation. The archaeologist's conclusions are documented in a letter-report.' Briefly summarized, the archaeologist concludes that no further study is required unless plans change to include areas that are currently planned to remain undisturbed; or if cultural materials are encountered during grading. This issue is identified as a potential significant impact by the Initial Study, and the associated mitigation.measure was incorporated into COA #5. Some commentors have suggested that the 10-acre site be retained as open space, wildlife habitat, watershed land or as a neighborhood park. In response, the General Plan designates the site Single-Family Residential -High Density (SH); not Open Space (OS). The County has not identified the site as a park. Because this project constitutes,fewer than 50 lots, the County cannot rec uire that it provide a public park within its boundaries [ref. the Quimby Act (Government Code Section 66477(a)(7))], the County may only require payment of park dedication fees. The park dedication fees collected by the County for new residential development in El Sobrante ($2,000.00 per unit) have historically been used to partner with West County scliools to improve recreational opportunities associated with schools. There is an existing informal trail along the tributary of Garrity Creek. That trail is on private property, extending from Manor Road to the site. For that reason, COA #613 requires the applicant to offer, for dedication a trail easement through the site, should a public trail be developed in th`e future along the Garrity Creek tributary. VIII. STAFF ANALYSIS A. Discussion 1. Site Plan Considerations • High density single family residential development is usually proposed on padded lots; this form of development on unpadded sloping lots can be made to work,but also frequently involves special design challenges. While the proposed residential designs are workable, functional rearyards may be difficult to develop without seeking variances to normal zoning standards (e.g., for retaining walls taller than 3 feet).i • A Geologic Hazard Abatement District(GHAD) should be provided to allow for maintenance of slopes including repair to any slopes that are damaged. 'Pacific Legacy,2004. Archaeologic Survey for Hillcrest Hoines Subdivision. (Letter dated March 19,2004;3 pages.) S-23 • Most of Lot 29 containing the proposed wetlands should be deed restricted to provide ongoing protection of the wetlands and detention basin that is proposed in that portion of the site. • Several lots area proposed to be graded with relatively steep, and less functional slope:characteristics that are less well suited for high density single-family residential development (Lots 5, 6, 27, 33, and 40). • Several commori facilities (grassy swales/detention basins/landscape area along Hilltop Drive/street lights/fencing along the creels and grassy Swale) should be maintained by an appropriate local entity. Staff proposes to require that a Homeowners Association be established to maintain these facilities and I monitor their performance. • Landscape and lardscape improvements should be provided to establish a project design theme, including one that might be carried over onto future projects along Hilltop Drive. Special landscape/decorative masonry wall should be built along the project frontage. A street tree program should be developed within the interior of the project. • To prevent the i-nore steeply sloped and narrow Royal Oaks Drive from becoming a raceway, traffic calming measures should be required as part of the project improl ements (e.g., two speed bumps). • To potentially reduce the number of road connections with Hilltop Drive, a collector road, the applicant should be required to provide road/utility right- of-way stub-outs to adjoining properties. Garrity Creek View (Road) should be extended westward to stub-out with the Hall property to allow for a logical local street connection with that property (APN 426-200-010). Similar right- of-way connections should be required on either side of Royal Oaks Drive on the south side of Garrity Creek. Figure 17 is consists of J.Staff Study dated May 20, 2004 that summarizes the major site plan modifications recommended by staff. I 2. Consistency with the General Plan In order to approve a tentative map, the County must find it consistent with the General Plan. The General Plan consists of both map and text policies. While the zoning and general plan allow for high density single family residential development of the site, slope factors will disadvantage some lots. Selective thinning of lots would be incorder so as to achieve the slope protection policies in the general plan. Staff is recommending that the project be reduced to 35 lots in order to make the consistency finding with the general plan. Thirty-five lots falls below the normal low end of the general plan range that applies to this site, however the General Plan provides that "unique environmental characteristics may justify a reduced number of units or intensityi of use than is nornially allowed under the General Plan designation." (County General Plan, pg. 3-18) i S-24 3. State Lau Consideration Relative to Approval of Housing Developments To comply with State law, within the last five years, the County established an inventory of adequate sites to accommodate its share of the regional housing need through the planning period. That inventory has been incorporated into the County Housing Element. Most of the parcels that constitute this site have been included in that inventory. That inventory assumed that the development of these parcels would provide for 44 moderate incorne units on this site. Govenunent Code 65583 prohibits the County from reducing or permitting the reduction of any parcel to a lower residential density that is below the density that was utilized by the Department of Housing and Community Development in determining compliance with . housing element law, unless the County makes written findings supported by substantial evidence of two considerations: ,I • The redtiction is consistent with the adopted general plan, including the housing element; and I • The remaining sites identified in the housing element are adequate to accon-unodate the jurisdiction's share of theregional housing need. Staff recommends that both of these findings can be made. The reduction is necessary to be consistent with variousslope protection policies (e.g., protecting slopes with a natural grade that exceeds 26%, and slopes that exceed 15%); and similar slope protection policies are also referenced in the Housing Element of the General Plan; and The California Department of Housing and Community Development has certified the County's Housing Element within the last two years as acceptable, including the Inventory on Vacant and Underutilized Lands. The Inventory identifies dozens of other sites that will remain available for development of the overall target number of dwelling units for the unincorporated portion of the County, including the moderate income range which was specified for development on this site. B. Proposed Variances to Avera.l e Lot Width and Retaining Wall Height Standards 1. Average Lot Width—The variances that are sought for the four lots ( 11 — 14) at the end of Garrity Creek View (Road) are due to the pie-shape of the lots. Notwithstanding that the lots do not meet the zoning criterion for average lot width, the lots are generally function in terns of lot width. The method specified in the zoning code for measuring average lot width can sometimes understate the actual working size of a lot. 1In this instance, the four affected lots would have functional lot widths, except that Lot 11 should be enlarged as part of the reduction and reconfiguration of lots!described above to offset the portion of the site that lies within I S-25 the creek structure s i tback area and the large proportion of its site that lies within a road right-of-way. It should also be noted that in granting a variance to lot width, future development of these sites will besubject to the review and public notice requirements under the Small Lot Occupancy Ordinance. i 2. Retaininoe Walls—Thie proposed retaining walls on the downhill side of Garrity Creek Drive constitute a balancing of allowing for a road connection to Marin Road and adjoining single-loaded street while allowing for an on-site wetland on the property. The walls will face toward the wetland site and not toward any proposed residence. Their tiered design will help soften their overall appearance. The retaining walls adjacent to Adams I Court and Royal Oaks Drive will allow for reasonable development of a site with topographic and shape restraints. IX. CONCLUSION The proposal constitutes an opportunity to allow for infill development of a site that has been zoned and planned for residential development. Due to site constraints including slope, creels and property shape, the number of lots should be reduced. 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I I i portion of site, but allowing for development (' . of residence in VE Corner of lot. 7 .. zµ`IQ �� Vin(•` ° �" I `- I I � i ;�- � I I tiy� EY Il/&rte+ �., + + `-I ..•� -'ml II B i + I I I I ; � I ; �e.1 J I 1 `�•�\� � — u M�.RUi RAD—.------ --�--�-- ' I �I " �'i -�o I 2O a15 0. b SE5'31.207 r I C� I �r ii_r r I I. r177'1A•3fi 1IDR EWi ' A27.0' I 13896' 136-17"t-GI7 /� Fl r , 70.31' 7c.7 t � ^�^ CF • 13.:) R.edu lot yii�`t;y �� �. n ons n ed ��o ,ger , 97.07 ,o,.. _ .� VAN- HB9'^.:'30''.: J73.79' 11.0.' \ 1 1' (.^1) - .(l[II Il6 A7.70'/ IIb-iii-0,9 W� t- 7c 70.00' 103\ v 1 (j� \ \ , .7 ' GARRfiY� yF'N— — 79.95' CREAMER HALL .7 +�P' 4 2 6-700-010 /770.00' \ Y 35.00 O.00 i n 17� j0 11J5E-F1F7iEF-0Y6 \� mo1r �1T3n % �b _ rsel ole` �.uce to n•(3 (' ;e\ Gly e. ` "4 '' 0.3o I�Id7oby Ion o.:o r�d rerc nfigure \ C O(�E`'� 70 -� N'S]E'JS W 5CB 9u '0 a ec6// i`. R e 6Y.Ii -S V10 I EFCH��I \,' :.� r I♦p CULVERT r 6-1�'' 7f-E•F i BRICCE '�.�.:�.�.}•_••::j�:1 - \ \ a'i,1. I \ N FALL f y�(el \ v .•\ ' 40 v01 - Reduce iot vield in area of Lots#2-5 to three lots. Possible easement to allow for, future extension of road along south side of Garrity Creek i go J •� d S. B- Reduce lot vield in area of Lots #6-11 to five lots. The increase width ofthel a�f \\\o \ '\ remaininglots is desirable because of the 50 foot setback from creek required b \ / 4 Y' CDFG,which results in loss of rear yard areas for use by residenu C- Reduce lot yield in area of Lots#36-40 to four lots,and extend the Garrity Creek' View road easement to the west boundary of site. D- Reduce lot yield in area of Lots#26-28 to two lots. This allows for a standard \ tum-around that does not encroach into the front yard or driveway area of the residential lot_ E- Reduce lot yield in area of Lots#32-34 to two lots. TL reduction in lot vield 1j allows for the width of the remaining lots to be increased and for design flesibilit5'. Figure 17 j Graphic Scale: / Staff Study May 20;th, 2004 6 . 160'160 I I i I I I i I I I I i I i i I i I I i EXHIBIT 4 STAFF STUDY- PROJECT DESIGN i I i i i i I EXHIBIT 664-A SUBDIVISION 8533 STAFF STUDY: CONCERNS OF DESIGN COMPONENTS County File #SDOI 8533 I Staff review of the project design components noted submittal discrepancies. Staff determined that due to the discrepancies within the various submittals, clarification is warranted and additional conditions are requested to mitigate visual and grading impacts. The purpose served by the additional!'conditions of approval is that prior to approval of a grading plan or final map, staff has assurance that the project meets the design intent of unique, imaginative architecture and sitedesign which integrates into a setting that is well planned and environmentally sensitive. i The following table lists the discrepancies that staff noted on submittals on the left, and an added condition that would mitigate the discrepancy on the right. Following the table are the exhibits that are mentioned in the staff comments. The applicable conditions have been incorporated into the conditions of approval for the project. I Item Staff comments on submittal Added Applicable Condition(s) discrepancies DESIGN GUIDELINES 1 The applicant has stated thai a project Design Guidelines. objective is to 'Encourage unique, imaginative architecture and site design 46.A Prior to approval of the Grading Plan or which integrates into a setting that is Final Map, the applicant shall submit well planned and environmentally for review and approval of the Zoning sensitive." Administrator design guidelines. The Design Guidelines shall be listed in the Because the attached exhibits do not CC&R's. reflect that statement, a condition has been added requiring design guidelines 463..An internal.Architectural Review Board which will assure a varied streetscape, shall be created to review and approve integrative architecture and minimal plans in accordance with the residential post grading land disturbance. design guidelines prior to submittal of plans to Community.Development and The Residential Design Goals are: Building inspection Departments. The • The design of each home should Architectural Review Board shall respect the terrain of the'lot. become active when at least 60% of the • Appropriate lot grading, carefully residences are owner-occupied. constructed building pads, and adapting plans to protect trees and The following County review process other prominent site features will will be in effect regardless of the status help preserve the overall quality and of the Architectural Review Board. All beauty of the community residential designs for permits shall be • Care shall be in designin the submitted with a design guideline I I EXHIBIT 4-A SDO18533 Staff Study: Concerns of Design Components i I Item Staff comments on submittal Added Applicable Condition(s) discrepancies residential structures, ancillary checklist to determine compliance with buildings, decks,paving, and other the design guidelines for the review and impervious surfaces. approval of the Zoning Administrator. • Architectural forms, colors and The County shall retain architectural materials should relate to loverall and landscape peer review, and costs of quality image intended fo'r the the review shall be borne by the subdivision and adjacent homes applicant. should be compatible while maintaining variety of home designs. 46.0 The criteria listed in Exhibit"4-H" • The careful placement of Ithe house Staff Study Design Guidelines shall—at on the lot will promote protection of a minimum—be included in the the site and will add value and applicant design guideline submittal. uniqueness to each property while assuring individuality. Attached Exhibit 4-D shows Figure 14, Front Elevation Downslope'Lot. The rendering depicts a flat area;within the front setback, yet the grading plan depicts a sloping front yard on all downslope lots in the front setback area. I Attached Exhibit 4-E shows Figure 15, Rear Elevation Downslope Lot. The rendering depicts a flat areabackyard on the downslope lots whereas ithe grading plan for the project does not have flat area. 2 Staff Report for CPC May 25, 2004, 47.A Required setbacks and off-street parking Figure 16, SD018533, Figure 16, Front prescribed by the R-7 zoning district shall Elevation Upslope Lot (see attached be measured from the edge of the private Exhibit 4-F). Rendering depicts a zero road easement or property line, whichever front setback design, whereas no lots in is more restrictive. the subdivision meet this criterion. 1 473 Lot setback exceptions. 15- feet The added applicable condition provides (minimum) allowed, provided that the a varied streetscape, and the requested garage achieves a 20 foot setback and conditions regarding designi guidelines provided that any encroachment in the 20 and conceptual site plans as;sures.that the ft setback zone be limited to a one story project can be constructed to meet the element. intent of integrative architecture on a unique site. I Page 2 of 7 I I EXHIBIT 4-A SD018533 Staff Study: Concerns of Design Components Item Staff comments on submittal Added Applicable Condition(s) discrepancies 3 Exhibit"4-13" is DEIR Figure 3-5, 48. Prior to approval of a revised grading Sections of Homesites. (Similar to plan or final map, applicant shall submit Grading Plan sheet 13, dated October 23, for review and approval of the Zoning 2004) Administrator architectural plans and elevations that are sensitive to the site Exhibit"4-C" shows "Staff Study of topography. The designs shall Cross Sections." This exhibit shows the incorporate the criteria listed in the difference (shaded area) between the project design guidelines. The submitted grading plan and the Figure 3- Preliminary Design Submittal shall 5 sections. include the following: This study was prepared because the DEIR, P 3-10, Grading and Tree 48.A Conceptual Site Plans for a cross-slope Removal, Paragraph 2 states'"a total of lot, a down-slope lot, an up-slope lot, 22,000 cubic yards (CY) is estimated to and corner lots by arch culvert that be cut, and 27,000 CY is estimated to be show: fill material. This includes excavation of foundations, lower floors, grid trenches., 1. Proposed grades if different from and the placement and compaction of the revised grading plan materials for roads, the Garrity Creek 2. Property lines with applicable (east Fork) crossing, front yard leveling, setbacks shown and detention basin construction." 3. All proposed easements on the property The October 23, 2005 Grading Plan 4. Existing trees—noted as to saved or notes 12,000 CY of cut and 13,000 CY to be removed of fill. 5. Lot drainage 6. Fence types and locations with This means an additional 10100.0 CY of heights noted cut and 14,000 CY of fill is to be 7. Retaining walls including heights, completed after the rough grading type, color and finish operation (twice the rough graded 8. Conceptual landscape and lot earthmoving). development activities 9. Amount of cut and fill required for Staff also noted that this condition exists design(beyond quantities noted on on FEIR Figures 5-6, 5-5 &15-6, revised grading plan) Reduced project alternative Cross Section. 48.13 Conceptual Exterior Elevation of House that Identify: Grading Plan dated October'23,2004, sheet 11, Hillside homesites! R-7 lots are 1. Exterior finishes not sized for size entry garages. Sheet 11 2. Sample of roofing material and color depicts side entry garages, and sections (manufacturers' brochure OK) not applicable to site. 3. .Color chart detailing exterior colors (manufacturers' brochure OK) . I 48.0 Conceptual Floor Plans i I Page'3 of 7 I i EXHIBIT 4-A SD018533 Staff Study: Concerns of Design Components Item Staff comments on submittal Added Applicable Condition(s) discrepancies i 1. Identification of rooms 2. Proposed square footage of home, garage and other structures I GRADING CONDITIONS 4 Grading Plan dated October 23, 49. Prior to approval of a grading plan or 2004Grading Plan Sheet 3, Note 1. final map, applicant shall submit for "existing topography based upon review and approval of the Zoning historical topography from previous Administrator a revised grading/tree developments proposed for this site. preservation plan. The revised grading Current surveys have not been plan shall: completed." 49.A Be designed on a current topographical Staff wants to know,prior to final map survey with two-foot contours. approval impacts of grading; if different from what is shown on the tentative map grading. Grading on Royal Oaks Drive and the arch culvert area is very tight: changes in topography could have impacts. A current survey islrequired to confirm changes would be insubstantial. i 5 Mitigation Measure HYDROLOGY-1 .49.13 Show the grading for the detention states the"The current 2.5:1 slope basins, the lot layout to accommodate gradients do not conform to,the 4:1 the basins and access to maintain the maximum slope allowed by County basins. regulations. This change would potentially affect the useable area of upgradient lots and the lot Layout may require reconfiguration or reduction in lot_deld." Further, the detention basins must be designed to reduce the peak stormwater runoff rate from the 10-year design storm specified in the County Ordinance Code to or.below pre-project levels. Access to the basin is required, and an easement and roadway to the basin has not been shown on grading plans. I Staff has not received data, 1 or grading plans that reflect the criteria;required to show that no reduction or cliange in lot layout would happen, thus the impacts of Page 4 of 7 I I EXHIBIT 4-A SD018533 Staff Study: Concerns of Design Components Item Staff comments on submittal Added Applicable Condition(s) discrepancies the requirements have not been analyzed. i 6 Grading Plan dated October!23, 2004, 49.0 Reflect the proposed house grading at Sheet 3,Note 3. "Fill quantities around the back of the downhill lots to downhill residences can be adjusted to minimize site grading and sliver fills meet site requirements as long as requiring additional keyways at house stormwater infiltration requirements construction stage. have been met." I 7 Grading Plan dated October 23, 2004, 49.1) Include the arch culvert crossing detail, sheet 2, Royal Oaks Drive Grading Plan to be submitted to the Public Works and and profiles: Grades at arch culvert Community Development Departments crossing depict a road 36-feet above the for review and approval. The plans creek bed. The plan shows a,1 7-feet high shall note proposed wall material and 1:1 slope above the 29-feet high walls. finish, fencing and guardrail detail and No protection-fencing or guardrails are include structural sections. shown. The grading contours do not correlate with the retaining walls that support the Royal Oaks Dri e roadbed. 8 Grading Plan dated Octoberi23, 2004, 49.E Depict storm drainage improvements sheets 5.& 6, Utilities Plan:j Proposed including"clean water" features easements on lots missing. intended to comply with C.3 — requirement and piping as well as easements on lots for utilities and private open spaces. i I 9 Grading Plan dated October 23, 2004, 49.17 The revised grading plan shall clearly The Typical street details depict a label all retaining walls, note wall retaining wall/footing design. The plan heights, and the type, color and finish of does not show sufficient detail that the walls. No retaining wall structural design will not conflict with storm drain elements for the project access and utilities, or keep the structural roadways or project shall be on private elements of retaining on the!property. lots without an easement. The walls supporting the project access roadways shall be maintained by the HOA. All j private roadway structural elements shall be on easement or via separate open space lot, and maintained by the HOA. i 10 Grading Plan dated October 23, 2004 49.G Identify all trees with a trunk Trees are required to be shown on the. circumference of 6.5 inches or greater grading plan, yet.are not shown. with trunks within twenty feet of areas I Page 5 of 7 I i i I EXHIBIT 4-A SD0185i33 Staff Study: Concerns of Design Components Item Staff comments on submittal Added Applicable Condition(s) discrepancies proposed for grading. Reasonable efforts shall be made to minimize the loss of or potential damage to existing I trees. The plans shall identify the trunk circumference, approximate canopy area, species, and whether the tree is to be preserved or removed. The plan shall be prepared with the assistance of a licensed arborist. The plan shall provide suitable measures to assure protection of trees during the construction period. The grading/tree preservation plan shall provide delineation of the perimeter of areas and trees to be preserved by use of taping and stakes, or other appropriate barriers. The survey of trees shall provide for a tally of the number and trunk circumference of trees to be removed. The aggregate trunk circumferences of trees proposed for removal shall be totaled. i No trees shall be removed from any of j the property prior to approval of the grading/tree preservation plan without the prior approval of the Zoning Administrator. I 11 .....The homes would be constructed to 49.H Depicts grading to accommodate the follow the existing topography where conceptual designs required in possible, but some cut and fill at compliance with the provisions of homesites would be necessai y. Conditions of Approval 46-48. I 12 49.I Earthwork quantities (cut and fill) shall be noted on the revised grading plan. Should the site not balance, the applicant shall provide details of the proposed import/export. Include . information on location(s) of proposed fill import/export site, type of trucks, haul route, haul hours, trucks/day and duration of operation, proposed safety measures (flag men, strut sweeping, dust control). Any import/export plan I Page 6 of 7 i i EXHIBIT 4-A SD018533 Staff Study: Concerns of Design Components Item Staff comments on submittal Added Applicable Condition(s) discrepancies shall be subject to review and approval of the Public Works Department. i 13 Grading Plan dated October 123, 2004, 49.J After the rough grading operation, sheet 2, Royal Oaks Drive grading Plan minimal grading shall be allowed on the and profiles Section C-C, Parking area site to accommodate residential between lots 4 and 5 is sloped on the construction. grading plan and flat on section C-C. References: 1. Subdivision 8533 Draft Environmental Impact Report(8533 DEIR), SCH# 2003102107 2. Subdivision 8533 Final Environmental Impact Report (8533 FEIR), SCH#2003102107 3. Exhibit"4-A" Staff study: Concerns of Design Components 4. Exhibit"4-B" DEIR Figure 375, Sections of Homesites. 5. Exhibit"4-C" Staff study of DEIR.Figure 3-5 Cross Sections 6. Exhibit"4-D" County Planning Commission (CPC)May 25, 2004, Figure 14, Front Elevation Downslope Lot 7. Exhibit"4-E" CPC May 25, 2004, Figure 15, Rear Elevation Downslope Lot 8. Exhibit"4-F" CPC May 25, 2004, Figure 16, Front Elevation Upslope Lot 9. Exhibit "4-G" Staff Study, Grading Plan Sheet 11, Hillside Homesites 10. Exhibit "4-H" Staff Study Design Guidelines (DG) 11. Exhibit"4-I" Staff Study Royal Oaks Drive Arch Culvert Crossing • I i G:\Current Planning\curr-plan\Staff Reports\EXHIBIT"4-A".SUBDIVISION 833 STAFF STUDY OF DESIGN COMPONENTS.doc j I I i I ; I I I Page7of7 i I 7, f Lo IL l� l -; LL� �. l I W ,•t i ,�� .Eck ' 'Q " 'WZ; i � �I,, LL N ... ;I5i ,rk1lI�;. " '' }} r i LL 21 _ I HILLTOP GREENS I t 1 1 ! I 1 H P/L't � i + ! 1 I t 1 1 ..� ' r U O m �. Q QVt11J Va I LMS l Juj 4, .avoa ti.ol U: I W Ld + w to ( ut U Va 1 ut U) 1 h l l I 1 I 1 \ i I + I IID 1 t1 I C caE---Ems— I j W tl,1. i r i i m -PTL1 I I N3�11� 61 t 11 C1=SWAB i Lf`i t i I i it r I y 3 N \\` P �` l o o ) p LL g tn O an t,. �o Chi U O 0 A U Lo 1 �i C% NLn m «.. o C7 W `n � •5 � cYi t a7 N 5 I 48 �I G�t Cf) G t I t I 1. 1 I Ae �. sem'.,t ,. .. �,. •_�, �:�;).+ ;a W ¢ xcF i >r �..� `� `�'` •. 'sir;.. a `� o i;` '� L:ya`i4y'r L•y�yb'":�'3, }�rx� ,y�,•121'.��,.. 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Steep Dowrisbrr_ ---- .+ Type .3 DOWNHILL HOME :STY;-:' ' steep UplIOp2 P�iAj 1.L9 Opp Tvoe -4 IIf Steer Gross Slope FJN,TIOP:.-_ .OME S-LES DOWNHIL HOME STYLE 2 i Figure 10 Graphic Scale: Hillside Home; Sires � 1 SDOI8533 i IN.T.$. i I i EXHIBIT 4-GiGrading Plan Sheet 11, Hillside Homes No side entry garages exist on the project site i I I i EXHIBIT "4-H" SUBDIVISION 8533 STAFF STUDY DESIGN GUIDELINES County File SD018533 I COMMUNITY DESIGN CONCEPTS The design of residential structures and the special characteristics of the lots provide opportunities to enhance the quality of the community. The design professional/homeowner should consider the following general goals in preparing their plans. II General Residential DesiLn Goals: i • The design of each home should,respect the terrain of the lot. • Appropriate lot grading, carefully constructed building pads, and adapting plans to protect trees and other prominent site features will help preserve the overall quality and beauty of the community. Care shall be in designing the residential structures, ancillary buildings, decks,paving, and other impervious surfaces. • Architectural forms, colors and materials should relate to overall quality image intended for the subdivision and adjacent homes!should be compatible while maintaining variety of home designs. • The careful placement of the house on the lot will promote protection of the site and will add value and uniqueness to each property while assuring individuality. i ' Use of these guidelines prior to the initial conceptual design, as well as throughout the design review and approval process, will help to increase environmental awareness, ensure community compatibility, protect property values and generally help to promote a higher quality of living within the community. The Architectural Review Committee (ARC)will use these goals and guidelines during their review of submittals for improvements for each lot. I ARCHITECTURAL REVIEW BOARD An internal Architectural Review Board shall be created to review and approve plans in accordance with the residential design guidelines prior to submittal of plans to Community Development and Building Inspection Departments. Prior to approval of the Grading Plan ori Final Map, the applicant shall submit Design Guidelines for the review and approval of the Zoning Administrator. The Design Guidelines shall be listed in the CC&R's. Prior to approval of the Grading Plan orl;Final Map, submit for review and approval of the Zoning Administrator, architectural plans, site plan, fencing plan and landscape plan to demonstrate how the design guidelines are going to be implemented. The designs shall cover the following site conditions: downslope lots, upslope lots and cross slope lots (conditions on the project site). i I i I i Zoning Administrator Review of Individual Lots At least thirty(30) days prior to issuance of building permits, the developer/property owner shall submit architectural plans, site plan, fencing plan, and landscape plan for each lot to the Zoning Administrator for review and approval. The purpose of such review is to confirm that the individual home and building site have been designed to substantial=sign gate visibility off-site and to be sensitive to the topography with minimal grading consistent with guidelines and mitigation measures for the project. YARD SETBACKS Required setbacks and off-street parking prescribed by the R-7 zoning district shall be measured from the edge of the private road easement or property line,whichever is more restrictive. Front yard setbacks shall be a minimum of 20 feet except for the garage,where the setback shall be at least 18 feet (Lot Setback variance) The front setback shall be varied, and submittals shall depict adjacent approved setbacks. Corner lots may have a 15' minimum setback on one side. Any proposed placement of garages within the specified setback areas shall be considered on a case-by- case basis and only where it can be documented that no adverse sight-distance problems will result (e.g., end of cul-de-sacs and corner lots at intersections). Side yards: 15' aggregate, 5' minimum Rear Yards: 15' minimum The architectural designs shall provide housing units wired for electronic technologies that accommodate telecommuting by resider its. Provide, within the garage area of each residence, a separate electrical conduit for charging of electric- powered vehicles. This shall be accomplished by specifically labeling an extra electrical outlet on the electrical plans for the garage. MAXIMUM BUILDING HEIGHT The maximum building height shall be 35 feet above grades shown on redesigned approved grading plan, and 2.5 stories maximum. Any designs that are submitted that depict heights over 31-feet will require surveys at foundation and finish floor inspections that verify the height will not be constructed to exceed 35-feet. GRADING MINIMUMS FOR DRAINAGE: Maintaining minimum drainage requirements for all lots will help to insure proper drainage. The homeowner must maintain the grades created during the infrastructure construction and maintain a minimum gradient of 1.5 percent to ensure proper drainage for any future re-grading or landscape work. It is preferable that surface drainage be designed to drain towards the street and/or to be collected by a site drainage system and conveyed into the subdivision drainage system. All paved surfaces shall have a minimum gradient iof 1 percent. On sloped lots, the maintenance of the slope and control of drainage is critical for slope management. Plant material and drainage structures arse imperative to protect the structural integrity of the slope and will be carefully reviewed during plan submittal.. GRADING GUIDELINES: Whenever possible, the house structure should take up grade within the architecture--that is, the structure should step up or down to parallel the street gradient so as to minimize individual lot grading. Individual lot grading outside the footprint of the structure, shall employ contour grading concepts. All on-site grading should balance. Import or export of limited amounts of soil is permitted only with approval by the Zoning Administrator and Public Works Departments. Non-structural cut and fill slopes shall not exceed 3:1 unless inspected and supported by geotechnical engineering reports. 1. Residential structures or ancillary structures on slopes in excess of 15 percent must be carefully designed. The use of erosion controls, engineered grading, pier and grade beam or step-footing foundations are necessary for to i g-term slope stability. 2. On naturally contoured sloped lots, the creation of large graded pads outside the Building footprint is discouraged. 3. Site and individual lot grading should be carried out in a manner that results in flowing and contiguous patterns. Abrupt or sharp changes in surface grades will be discouraged. 4. Surface drainage shall not direct water into adjacent lot drainage ways. On-lot drainage shall either be split into smaller diversions or collected in appropriate underground drainage structures. All graded slopes shall have either brow ditches or berms at the crest to control surface run-off. 5. All graded areas shall be landscaped, no bare earth is permitted. 6. No grading is permitted under existing trees except as approved by the Zoning administrator during Final Design Approval. RETAINING WALLS 1. Retaining walls over 3-feet high fare not permitted within lot setbacks. 2. Exterior retaining walls outside the footprint of the structure required to support the placement of the house are limited to 5 feet�in height. Where the total height would exceed 5',multiple stepped walls are required. All retaining walls will require structural calculations and the certification by a licensed structural engineer. 3. Retaining walls are encouraged to have stone or natural appearing finishes. Flat faced concrete block walls, unfinished poured concrete walls, and wood bulkheads are not permitted in areas visible from the street or public areas. 4. Multiple exterior terraced walls should be separated by a minimum of 3 feet with appropriate bench landscaping. 5. Retaining walls should generally,be designed with smooth, continuous lines that conform to the topography. Particular attention will be paid to color and texture of retaining walls. 6. Retaining wall structures holding back grade to accommodate a patio or terrace should conform to the natural hillside profile as much as feasible. Excessively high retaining walls are prohibited. The following retaining wall materials are encouraged: 1. Colored /textured concrete 2. Stone and brick masonry to match house architecture 3. Walls with natural color plaster finish to match house architecture 4. Wood where structurally appropriate 5: Split-faced masonry in natural colors 6. Split-faced "Keystone" type walls in natural colors BUILDING DESIGN GUIDELINES: 1. Foundation Design. Buildings shall be designed to work with the existing topography of the site. Split pads, stepped footings,pier and grade beam foundations shall be employed to fit each structure to the slope of each lot.. 2. The perceived mass and visual bulk of residential structures should be considered by the design professional during preliminary design concepts. 3. Structures are encouraged to step up or down the sloped lots and maintain a low profile. Residential structures shall have ivaned rooflines and avoid massing vertical two story building faces on a common property line. 4. Split pads, stepped footings, piers and grade beam foundations allow the structure to better fit with the slope of the lot. On downhill slopes, avoid modifying large single story structures primarily designed for flat lots lith high and exposed foundations. 5. Buildings should be cut into uphill and downhill sites to reduce the effective visual bulk. 6. Roof forms and roof lines should be broken to break up the mass of the roof. Irregular roof-lines are encouraged and, where possible, should follow the natural curve of the slope. Long, linear, unbroken roof-lines and the use of large gabled ends on downhill elevations are discouraged. 7. Articulation of parts of the dwell)ng, such as the garage, is encouraged to lessen the appearance of mass and bulk on lots. 8. Use of the roofs on the lower levels for deck space for upper levels is encouraged. Terraced decks do not increase the building bulk when seen from downhill lots. 9. Overhanging decks or decks ele i ated on poles should generally be avoided unless well integrated into the architecture of the unit. These decks can potentially increase the mass of the building when viewed. Enclosing deck support structures with lattice work is discouraged. The use of landscaping to screen deck support structures is encouraged. 10. Avoid large expanses of walls in single planes. Break up these large wall faces with building components and fenestration. 11. Avoid building retaining walls needed to support the structure or landscaping in a uniform plane. Break retaining walls into smaller components and terraces where feasible. Landscaping to soften the visual impacts of retaining walls will be encouraged. 12. All garage doors shall be design Id as automatic sectional doors. In each garage, an electrical outlet shall be installed and dedicated for potential use in recharging electrical vehicles. 13. Automatic Sprinkler Systems. All residences shall be equipped with automatic fire extinguishing sprinkler systems. EXTERIOR BUILDING MATERIALS, TEXTURE AND COLOR Color and material selection for the structure should evidence coordination with the predominant colors and values of the surrounding landscape and character. This is to minimize contrast between the background topography and the structure when viewed from off-site communities. Roof colors should tend toward the earth tones.. Colors such as bright reds, blues and greens will not be allowed. The following building materials are encouraged: Exterior Walls: 1. natural wood siding --horizontal and vertical patterns 2. manmade siding materials that closely resemble natural wood siding materials 3. natural cedar/wood shingles 4. manmade cedar/wood look.shingles that closely resemble natural materials 5. brick and stone masonry(including manmade light weight concrete "stone") 5. natural (earth tone) colored cement plaster materials 6. exposed structural wood members Roofs: 1. flat and textured concrete shingles of earth tone colors 2. flat and curved clay tile of earth tone colors 3. composition shingles in thicker patterns (Class A-B non-combustible fire ratings required) with thick butts, earth tone colors 4. slate materials both natural and man-made The following building materials are discouraged: Exterior Walls: 1. highly reflective painted surfaces 2. large flat areas of glass /reflective materials 3. plastic materials made to resemble masonry or stone 4. large flat planes of walls without articulation and fenestration Roofs: 1. High contrast tones or bright colors 2. highly reflective or shiny materials 3. wood shake roofs (unless fire proof) Roofing Materials. All roofing materials shall be class A, B or better. ELECTRIC VEHICLES An electrical outlet shall be installed and dedicated for potential use in recharging electrical vehicles (required by project Condition of Approval). RESIDENTIAL SPRINKLERS All residences shall be equipped with approved residential fire sprinkler systems (required by project Condition of Approval). MECHANICAL EQUIPMENT GUIDELINES No mechanical equipment, including air conditioners, solar collectors, television antennae and/or satellite dishes (larger than 24") shall be exposed to the view from beyond the lot unless fully screened or architecturally integrated into the structure PLANTING DESIGN GUIDELINES: 1. All landscaped areas must have irrigation systems capable of sustaining good plant growth. Automatic water conservation systems are required. 2. Shrubs are preferred over ornamental ground covers and large lawn areas due to their lower water use characteristics. 3. On slopes of 3:1 or greater,plant materials with deep and fibrous rooting characteristics are preferred. This will minimize erosion and reduce surface runoff. Special care will be taken by the Architectural Review Board i n reviewing plants selected for these areas. 4. On graded slopes, use irregular plant spacing to achieve a more natural appearance. Plant trees with contour of the slope in undulating groups to mimic natural groves of trees. Inter-mix shrubbery masses within he spa ies between these tree groves. 5.. Where possible, plant trees in swale areas. This will help control runoff and erosion impacts. Care shall be taken so as not to disrupt and concrete drains installed on these features. 6. Landscape Plans. Proposed subdivision landscape plans and individual lot landscape plan shall be prepared by a licensed landscape architect and shall be certified for compliance with the County Water Conservation Ordinance. Use of naturally indigenous trees and shrubs is encouraged. The applicant shall provide a suitable instrument guaranteeing to the County the survival of the approved plantings for a period of at least 24 months following completion of planting. 7. The plans shall demonstrate by design and selection of material compliance with Chapter 82-18 of the Zoning Code,"Sight Obstruction at Intersections". The Public Works Department, Road Engineering Division shall be provided an opportunity to review and comment on all landscape plans adjacent to roads and driveway intersections. FPD Review Prior to Building Permits. Plans shall be submitted to the FPD for review prior to being issued. G:\Current Planning\curr-plan\Staff Reports\EXHIBIT 4-H design guidelines.doc 4A� A- IL rA En 7. Lir C's ti 4 C,3 L-1 = 4 '115 LLJ U Aso j, Z4 tj) ILL-4 �, - - - ty- > P o 0 if "P bj) LL- C3 0 Cd I EXHIBIT 5 ZA EIR RESOLUTION I i Resolution No. 11-2006 RESOLUTION OF THE ZONING ADMINISTRATOR, COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA, CONCERNING THE ADEQUACY OF AN FINAL ENVIRONMENTAL IMPACT REPORT PREPARED ON A VESTING TENTATIVE MAP FOR A RESIDENTIAL PROJECT, SUBDIVISION 8533 (Siavash Afshar=Applicant & Owner) IN THE EL SOBRANTE AREA. WHEREAS, after the County Planning Commission conducted a public hearing on May 25, 2004 on a proposed Vesting Tentative Map application filed by Siavash Afshar for a 40-lot residential project fronting on the northwest side of Hilltop Drive in the El Sobrante area, the Commission voted to: • Determine that the project would not result in any impacts to the environment that after required mitigation, would not be significant; • Adopted a Mitigated Negative Declaration determination for the purposes of the project's compliance with the California Environmental Quality Act; and • Approved the project subject to conditions and mitigations. WHEREAS, three groups filed a joint appeal of the County Planning Commission approval to the Board of Supervisors: the El Sobrante Valley Planning and Zoning Advisory Committee, the Friends of Garrity Creek, and the Hilltop Neighborhood Association; WHEREAS, after conducting a noticed public hearing on July 13, 2004, the Board of Supervisors determined that the project might result in impacts to the environment that would not necessarily be mitigated to a less than significant level; the Board voted to grant the appeal; overturned the decision of the County Planning Commission; and directed an Environmental Impact Report (EIR) be prepared, and that the matter return to the Board forl further consideration upon a determination by the Zoning Administrator that the EIR is complete; WHEREAS, following the decision by the Board of Supervisors, the applicant made several modifications to the design of the project; WHEREAS, the Community Development Department issued a Notice of Preparation to responsible and trustee agencies that the County would be preparing an Environmental Impact Report on the project pursuant to the California Environmental Quality Act, WHEREAS, subsequently, the County prepared a Draft Environmental Impact Report (EIR) on the project and issued a.Notice of Completion on it, including the opportunity to provide public comment on the adequacy of the document, including opportunity to testify at a hearing of the Zoning Administrator; after accepting testimony, Resolution No. 11-2006 Adequacy of Final EIR Subdivision 8533(Afshar),El Sobrante area Zoning Administrator Finding and Recommendation the Zoning Administrator directed staff to prepare responses to the public comments received on the Draft EIR, together with the Draft EIR, constituting a Final Environmental Impact Report (EIR) on the project; WHEREAS, following the completion of the public comment period, staff prepared a Final Environmental Impact Report on the project, and scheduled a closed public hearing before Zoning Administrator for consideration of its adequacy; WHEREAS, the Zoning Admi listrator having considered all evidence and testimony presented on this matter; NOW THEREFORE BE IT RESOLVED that the Zoning Administrator: • FINDS that the Environmental Impact Report (EIR)prepared for Subdivision 8533 to be complete and adequate; new information (edits.to the text) are warranted to clarify and make insignificant modifications to an adequate EIR; that it has been prepared pursuant to the requirements of the California Environmental Quality Act (CEQA), and to the requirements of the State and County CEQA Guidelines; and that the EIR reflects the County's independent judgment and analysis as being adequate for the purpose of decision-making on this project, which is before the Board of Supervisors on appeal; and • RECOMMENDS that the Board of Supervisors adopt the Subdivision 8533 EIR for purposes of satisfying ithis project's compliance with CEQA, subject to amendments that are in the attached excerpts to the EIR that are identified in marked text. The actions of the Zoning Administrator were issued by the Zoning Administrator at a closed public hearing on February 27, 2006. ATTEST: DENNIS M. BARRY, AICP Community Development Director and Zoning Administrator, County of Contra Costa, State of California G:\current planning\curr-plan\resolutions\SUB 8533 ZA Res on Final EIR.doc RD\ R-2 ERRATA Final Environmental Impact Report For SDO18533 (Afshar) E1 Sobrante Area, Contra Costa County SCH# 2003102.10.7 At the Closed Hearing on February 27, 2006 the Zoning Administrator directed the following text edits to the Final EIR. Additionally, the language in the Mitigation Monitoring and Reporting Program (MMI RP). The MMRP .presented in Exhibit 5, was modified .for improved consistency and clarity of intent. Modified February 28`h, 2006 DRAFT EIR/COUNTY FILE NO.SDOI 8533 4.4 GEOLOGY AND SOILS Impact GEO-2: Future landslide movement associated with mapped landslides on the site or future destabilized slope conditions could damage homes, roadways, and other planned site improvements. (PS) Two.landslides have. been identified, as shown in Appendix D. Future slope.failure in these areas could endanger t e planned homes and other improvements, particularly after heavy rains that can trigger slope failure. The southern landslide is located on proposed Lots 30, 31, 32, and 33. The northern landslide is located on proposed Lots 4 and 5. Other upgradient lots could also.be adversely affected if the landslides are not properly mitigated. Grading plans (Klemetson, 2004) show the excavation of landslide area. . The perennial spring is mapped in the area of the proposed open space, within about 10 feet west of the permanent retaining wall proposed for the west side of Garrity Creek Drive. Disturbance of the soil and spring in this area could result during the construction of the retainirig wall. This soil - and spring - disturbance could destabilize.the.slopes as a result of the spring saturation pattern moving. Mitigation Measure GE0-2(a): To mitigate against future landsliding, the two landslides shall be entirely excavated and removed down to the.slide plane determined by AKA, Inc. to be at a depth of 10 feet below ground surface. The area of the landslide(shall be.regraded with engineered fill following the construction of a keyway, benches, and subsurface drainage. For the southern landslide area, it may be. necessary to seek off-site easements to remove portions of the toe of the landslide, if deemed necessary by the geotechnical engineer. In addition, the.toe of the landslide in Lot 5 extends into the creek bank, and this area of rerjnoval must be regraded with structural supports for the creek bank and bridge across Garrity Creek. All necessary permits for such earthwork shall be obtained from the California Department of Fish and Game (for work within the creeks bank) and other applicable agencies. Mitigation Measure GEO-2(b): Prior to approval 4144p of the SybdiViSiGG Final Map or issuance of a grading permit, whichever occurs first, the applicant shall submit an updated Grading Plan, along with a Corrective Grading Plan, for review and approval by the Zoning Administrator. The gradients of cut slopes and fill slopes in the project shall not exceed 2.5:1 (horizontal to vertical). Where steeper slopes are required, special engineering solutions shall be provided (e.g., reinforced earth with associated slope stability analysis). Mitigation Measure GEO-.2(c): During grading operations, all keyways and cut slopes shall be logged by an engineering geologist. In areas of highly sheared or deeply weathered rook, the applicant's geologist shall provide supplement- al recommendations, such as drainage facilities, over-excavation of the slope, and replacement with engineered fill or reinforced earth. Mitigation Measure GE0,2(d): The geotechnical engineer responsible for the design of Garrity Creek Drive should reexamine.the retaining wall and its 3/2,2006 4.4-10 DRAFT EIR/COUNTY FILE NO.SDO18533 4.5 BIOLOGICAL RESOURCES ■ space, vehicles and motorcycles shall not be allowed to travel off designated roadwaysl. ■ Use of non-native, invasive species that may spread into adjacent undeveloped open space areas shall be prohibited in landscaping plans. Unsuitable species include blue gum eucalyptus (Eucalyptus globulus), acacia (Acacia spp.) pampus grass (Cortaderia selloano), broom (Cytisus spp. and Genista.monspessulano), gorse (Ulex europoeus), bamboo (Bombusa spp.), giant reed (Arundo donox), periwinkle (Vinco spp.), English ivy (Hedero helix), and German ivy (Senecio milanioides), among others. ■ Graded slopes and areas disturbed as part of the project shall be monitored to prevent establishment and spread of introduced broom species (Cytisus spp and Genista monspessulana). The removal and monitoring program shall include.annual late winter removal of any rooted plants when soils are saturated and cutting back of any remaining flowering plants in the spring before seed begins to set in late April. Such removal may be the responsibility of the project homeowners' association. ■ Provisions for maintenance of landscaping and revegetation of graded slopes shall be specified as part of the plan, with replacement plantings and seeding provided as necessary to ensure re-establishment of cover. Maintenance and monitoring of landscape improvements in open space areas shall be provided for a minimum of 5 years, and shall be the responsibility of the project homeowners' association. ■ Prior to approval 44g of the. Final Map, evidence shall be submitted for review and approval of the Zoning Administrator that the project plans are in compliance with the. provisions of the CDFG Streambed Alteration Agreement, as prescribed by the final MMP. . Mitigation Measure 13I0-2(b): A final MMP shall be prepared and implemented to provide for adequate 'replacement of sensitive natural communities and biological habitat affected by proposed development on the site. The following detailed specifications shall be followed to ensure avoidance of sensitive resources and achieve successful implementation of the final MMP. ■ Habitat and tree replacement plantings shall be implemented in accord- ance with the standards and criteria prescribed by the CDFG, and contained in the final MMP. ■ A Project Restorationist shall be retained at the expense of the applicant to monitor implementation of the MMP and to oversee maintenance require- ments and monitoring of all mitigation plantings, seeding, and invasive species eradication. At a minimum, the Project Restorationist shall have demonstrated expertise in restoration ecology and at least 3 years of exper- ience in restoration design and implementation, including experience in wetland restoration. The Project Restorationist shall have the authority to stop work or request change orders as necessary. In addition, the Project Restorationist shall conduct the site inspection and habitat monitoring 3/12/2006 4.5-34 DRAFT EIR/COUNTY FILE NO.SDO18533 4.5 BIOLOGICAL RESOURCES ■ programs, and prepare reports documenting the restoration program for submittal to the Corps, CDFG, RWQCB, and County Community Development Departi ent. ■ All grading on the site shall be.performed during the.summer months and completed before October 1. Appropriate erosion/sediment control measures shall be in place by October 15. Eradication of invasive species shall be accomplished in advance of mitigation plantings during the summer months. Mitigation planting and seeding shall commence.in the. late fall or early winter, with the onset of winter rains. ■ To prevent indirect and cumulative adverse.effects of the development on water quality of Garrity Creek and its tributary, grassy swales shall be constructed as described in the MMP. The swales are intended to capture and slow the movement of urban runoff into the north and east forks of Garrity Creek. The swales shall be planted and seeded with appropriate native species and deed-restricted from development or renovation, as described in the MMPI. No direct outfalls into the Garrity Creek channels shall be constructed. Discharges from the swales would be over ground stabilized by erosion blankets with rock inter-plated with willows or other species approved by the Project Restorationist. ■ Habitat restoration and revegetation shall provide for maximum vegetative cover, conducive to the.restoration of the creek corridors, and provide for vegetative screening between the stream channel and adjacent roads and dwellings. ■ The plant palette shall be consistent with the requirements of the CDFG and prescriptions contained in the final MMP. ■ A temporary.drip irrigation system shall be provided for all container plant- ings installed as part of the final MMP. Irrigation shall be supplied for up to.3 years, with a gradual reduction in volume of water applied in years 2 and 3. The details of the irrigation system and watering schedule must be. approved by the Proj ct Restorationist. ■ The applicant shall guarantee an 85-percent survival rate for the plantings over the 5-year monitoring period. For this purpose, a $40,000 bond (or equivalent) security shall be deposited with the County.to ensure perform- ance of the final MMP. Mitigation.Measure 1310-2(c): The proposed Site Plan, Riparian Mitigation Plan, and MMP shall be revised to ensure adequate avoidance of Central Coast riparian scrub and mature native trees on the proposed off-site construction staging area northwest of the site. This shall be accomplished prior to approval of the Final Map TeR fGti 4Gp using the following detailed specifications: ■ The off-site creek channel and edge of native willows canopy shall be mapped by engineered survey to accurately identify their location in relation to proposed improvements. The canopy line shall be identified as 3/12/2006 4.5-35 gs° DRAFT EIR/COUNTY FILE No.SDO18533 4.5 BIOLOGICAL RESOURCES other waters at the proposed crossing of Royal Oaks Drive. The installation of grassy swales proposed at the interface between creek setbacks and the rear yard of residences would serve to intercept urban runoff and allow for pretreatment before entering the creek channels. As noted previously, removal of invasive exotics and revegetation of the riparian corridors and open space areas with native species would serve to improve the aquatic and terrestrial habitat values of these segments of the east and north forks of Garrity Creek. Both direct and indirect impacts on sensitive jurisdictional waters may result from the possible effects of development.on the spring and seep in the northwestern portion of the site. As indicated in Figure 4.5-4, the proposed alignment of Garrity Creek Drive passes through a portionof the Central Coast riparian scrub associated with this complex. This segment of the roadway would be supported downslope by a retaining wall extending from the north end of the cul-de-sac, along the west side of the roadway, and then along Ithe edge.of the northern limits of the proposed development area on Lot 29. No.detailed geotechnical data are available on the nature of this spring/seep complex or the.extent of construction disturbance required to accommodate the. proposed roadway and retaining wall improvements at this location. However, the Imapped location of the spring is shown within 10 feet of the retaining wall and construction access may adversely affect this feature. It is also possible that the slope above the spring and seep may require dewatering as part of slope stabilization purposes, and could result in intercepting the surface waters of the spring, and its eventual loss as an active feature. If this spring is lost as a result of dewatering, willows and other hydrophytic vegetation surrounding and downslope could also go into.decline and eventually die. All of these represent potentially significant impacts on jurisdictional waters and the associated riparian vegetation. Modifications to the wetlands and other waters on the site would be subject to. jurisdictional review and approval by the Corps, RWQCB, and CDFG. The County recognizes that subsequent permitting processes with resource agencies could result in additional mitigation beyond that.required by the County in the CEQA process. . As noted previously, the revised MMP prepared by Wood (2004) provides a detailed plan with a detailed concept ,al approach to mitigating potential impacts on wetland resources and riparian habitat through creation of replacement at ratios of from 2:1 to 3:1 in the proposed open space area along both forks of Garrity Creek. The overall approach to replacement and enhancement appears more than adequate, although further refinement is necessary to address potential impacts on a number of unaddressed resources. Mitigation Measure 13I0-3fa): The proposed Site Plan, Riparian Mitigation Plan, and MMP shall be revised to ensure adequate avoidance of the active spring and seep in the.proposed open space area in the northwestern portion of the site. This shall be accomplished prior to approval of the Final Map Tentative MGP using the following detailed specifications: -- 3/12/1006 4.5-36 DRAFT EIR/COUNTY FILE NO.SD018533 4.5 BIOLOGICAL RESOURCES addresses weed control and states that invasive species will be eradicated, but provides no details on how to accomplish or monitor this goal. Mitigation Measure 13I0-4(a): The proposed Site Plan, Riparian Mitigation Plan, and MMP shall be revised to further address loss of wildlife habitat, maintain opportunities for wildlife movement across the site, and minimize disturbance to open space areas. This shall be accomplished prior to approval of the Final VeSf Rg TontGtivo Map using the following detailed specifications: ■ The proposed alignment of the 5-foot-wide pedestrian trail shall be eliminated or greatly reduced in its location and extent. If feasible, any pedestrian trail shall follow the emergency vehicle access road or follow the existing open alignment of Road 24 from the northwest corner of the off-site parcels containing the.construction staging area, continue south and east. across the north fork of Garrity Creek at the existing culvert crossing, and then continue southeast past the edge of the.proposed northern detention basin, and across the boundary between proposed Lots 31.and 32, connecting with the west end of the cul-de-sac at Adam Court. ■ To alert visitors of its intended use, permanent metal signage stating that the area serves as sensitive habitat shall be installed at any.pedestrian entrance or channel crossing within the proposed open space area in the northwestern portion of the site. ■ A permanent.movement.corridor shall be provided for wildlife linking the proposed open space in the northwestern portion of the site with the open space along the east ifork of Garrity Creek. An area with a minimum width of 25 feet shall be established from the western boundary of the site at the west side of proposed Lots 31 and 32 within which fencing that would exclude wildlife would be. prohibited and native vegetation would be planted and retained as part of an expanded grassy swale area and upland area. Some protective fencing may be. necessary for safety purposes around the proposed detention basin to. be.sited in this area, but the fencing and basiri design shall balance security and safety issues with the need to maintain opportunities for wildlife movement along the creek corridor. Mitigation Measure 13I044(b): The final MMP shall be revised to include an expanded discussion of the program to control invasive exotic species in proposed open space areas. .Section 4.4.2 of the MMP shall specify initial methods to remove and kill targeted invasive, non-native. plant species. This may include controlled use of herbicides, which must be carefully controlled given the intended function as open space and presence of sensitive aquatic habitat.of the creek channels, spring, and seep. The combination of the mitigation measures above would reduce this impact to a less-than-significant level. (LTS) sn:isooe 4.5-39 DRAFT EIR/COUNTY FILE NO.SD018533 4.5 BIOLOGICAL RESOURCES compaction, trenching, landscape irrigation, and other modifications within the root zone. Considerable care is necessary to protect trees in the vicinity of grading, building and roadway construction, and landscape improvements. Wounding of trunks and major roots during construction is a common problem that results in the invasion of harmful organisms and can contribute to structural decay of the tree. Root loss, and a reduction in potential rooting area, often contributes to long-term tree decline. In general, any disturbance within the dripline should be avoided to prevent adverse changes that may affect the long-term health and condition of trees to be preserved. Mitigation Measure 13I0-5(a): Trees near the adjusted limits of grading shall be preserved and protected, to the.greatest extent possible, where feasible from an engineering and geotechnical standpoint and.warranted based on their good to excellent health and structure. An engineering survey for all native trees with trunk diameters of 6.5 inches or greater diameter at breast height (dbh) shall be performed prior.to approval of the Final ` eSti g Ton+G+,,,o Map, and trunk locations within 20 feet on either side of the proposed limits of grading shall be mapped with tree species and condition information. Wherever possible, individual native trees at the perimeter of the proposed limits of grading with trunk diameters exceeding 6.5 inches shall be preserved through adjustments to jthe limits of grading, use of short over-steepened slopes, and other acceptable methods. Where possible, non-native trees at the perimeter of the proposed limits of grading with trunk diameters exceeding 12 inches shall be preserved where the trees do not detract from proposed habitat enhancement efforts. Protection of individual native trees shall take precedence over maintaining the full width of the proposed grassy swale that.would separate the east fork of Garrity Creek from the rear yard of Lots 6, 7, 9, 10, 11, and 36, as long as the.function of the swale is not compromised. The number of trees protected through further refinement of .project plans shall be quantified, and an updated report summarizing final estimates for tree removal and preservation shall be submitted to the County Community Development Department for review and approval prior to approval of the Final ��+n,, To +„+;.,o Map. Mitigation Measure BI075(b): The final MMP shall be revised to include an expanded goal of providing for the replacement of non-native trees to be removed by proposed development and details on their replacement with native tree species as part of the open space plantings. Non-native trees to be.removed shall be replaced according to the following replacement ratios: trees with trunk diameters of from 6.5 to 12 inches dbh to be replaced at a 1 :1 ratio; over 12 inches to 24 inches at a 2:1 ratio; and over 24 inches dbh at a 3:1 ratio. (number of replacement trees:number of trees removed). Section 3.0 of the.final MMP shall be revised to specify the total number of non-native trees to be removed anId the number of native.replacement.trees. Revisions to the final MMP.incorporating specifications for replacement plantings of 3/12/2006 ----- .. 4.5-39 -- DRAFT EIR/COUNTY FILE NO.SDO18533 4.14 RECREATION AND PUBLIC ACCESS plan as a potential site for park acquisition. Therefore, a homeowner's association is the most appropriate entity to take over maintenance of on-site open space. Given liability concerns, it is likely that only on-site residents would be able to use the on-site open space. The following are mitigation measures recommended to reduce the above potentially significant impact. Mitigation Measure REC-l.: The on-site open space resources shall be protect- ed by.the following means: ■ All on-site open space shall be deed-restricted and dedicated to an on-site homeowner's association (HOA) that would be responsible for ongoing maintenance and operation. This dedication (and appropriate documen- tation) shall occur prior to approval of the. Final S +siep Map. ■ The HOA shall establish an appropriate fee structure for project residents that would help to offset ongoing maintenance and operation costs. ■ An Operations and Maintenance Plan shall be established for the on-site open space by the HOA to ensure that water quality and vegetation management provisions are addressed. This Plan shall be approved by the County's Public Worksl Department and the California Department of Fish and Game prior to the issuance of a grading permit for the.site. ■ Adequate signage shall be posted at the site to identify times of use and appropriate controls such as avoidance of garbage in the creek, cleaning up after animals, etc. ■ The Covenants, Conditions and Restrictions. (CC&Rs) of the HOA shall .provide for holding owners of private lots financially responsible for any debris cleanup required as a result of illegal dumping in the creek structure setback zone. The combination of the above mitigation measures would reduce the potential recreation-related impact to a less-than-significant level. Alternatively, the proposed trail and any public access to on-site open space could be eliminated. Also, refer toimitigation measures in Section 4.5, Biological Resources. (LTS) References Contra Costa County.Community Development Department, 2003. Initial Study for Subdivision 8533, File No. SDO 18533 (Hillview), October 22. Contra Costa County and City of Richmond, 2001. The EI Sobrante.Valley Parks Study, January. 3/12/2006 4.14-4 FINAL EIR FOR THE F.I. SOBRANTE SUBDIVISION 8533 more distant from urbanization. In the case of the proposed project, 1.65 acres have slopes greater than 26 percent. Their distribution across the site is shown in DEIR Figure 3-6. These relatively small areas of greater than 26 percent slope are not considered of adequate size to require avoidance of any development in such slopes, according to County staff. The Tentative Subdivision Map (presented in figure 3-4 of the DEIR) indicates 1.73 acres of :private open space in the proposed project (i.e., the project includes two areas of integrated open space, which exceeds the acreage of land with slopes of 26 percent). It should also be noted that the project proposes to step homes up and down the slopes on the property, rather than creating "padded" lots. This form or development can be interpreted as minimal grading that is consistent with General Plan Policy 10-24. The following text test is added to page 4.1-t 4, of the EIR. The project would;not conflict with the County's zoning ordinance except as related to the requested variances, as described in Chapter 3. No significant environ;rental impacts would result from approval of the requested variances. The project's compatibility with General Plan policies is addressed in Table 4.1-1. I The project would�not conflict with any habitat conservation plan or natural community conservation plan since such plans do not apply to the site. Over 16 percent of the project site includes slopes that exceed 26 percent. An additional 67.5;percent of the site has slopes exceeding 15 percent. As can be seen in Figure 3-7, significant portions of the site are proposed for cut and fill. While individual homes are expected to "step" into the :hillsides and not require pad construction, the proposed cut and fill for road constriction adjacent to lots would also result in grading_of individual lots (see Figure 3-7). Natural contours on the site would be altered, but the general character of the on-site terrain would remain. No fill would occur within the actual creek corridor, which would be restricted from any development (see Section 4.5, Biological Resources, of the EIR). The only exception is the Royal Oaks Drive crossing of the creek channel, which is subject to a permit from C.DFG. The CDFG :permit would provide measures to protect habitat values. i A total of 22,000 cubic yards of earth are estimated to be cut and 27,000 cubic yards are estimated to be fill material. (This corresponds to an average of 550 cubic yards of cut per lot and 675 cubic yards of fill per lot, or relatively minimal grading-for a hillside project, according to Count sem) On!site fills of up to 12 feet for Adams Court and up to 28 feet at the Garrity Creek crossing are proposed (see Figure 3-7). Cut I 88 FINAL El FOR TH1: F1. SOBRANTE SU13DIVISION 8533 mitigation process. The Mitigation and Monitoring Plan for the project's potential impacts on biological resources was developed and was reviewed as part of the EIR process. It is also the intent of CEQA to evaluate projects at an early enough stage that changes to the project design can be incorporated as part of the mitigation measure process (see CEQA Guidelines, Section 15004). No major changes in project design or lot layout would occur based on the plans referenced. These plans are primarily intended to ensure that potential impacts are minimized and that adequate monitoring occurs. The project description describes.the on-site open space and proposed trails on the site. These trails would be open to use by members of the project Homeowners Association (HOA). The HOA cannot provide public use trails, primarily for liability reasons. The following text is added for clarification on page 3-19, paragraph 1: ....to the north. The on-site open space and trails would be available for use by members!of the project site Homeowners Association. Maintenance of detention ponds is addressed under Mitigation Measure HYDROLOGY-2 on page 4.3-13 of the DEIR. The project's relationship to General Plan policies is addressed in Table 4.1-1. The project's compliance with the County's regulations regarding the number of homes served by cul- de-sacs is addressed on page 4.1-13 of the DEIR. C2-16: Sec Master Response No. 2 and Master Response No. 5. C2-17: The commentor states that the DEIR fails to address potential impacts that similar projects in the area were found to have, specifically erosion, runoff, riparian loss, soil absorption loss, and construction-related issues. Impacts to Garrity Creek are analyzed in DEIR sections 4.3 (Hydrology and Water Quality) and 4.5 (Biological Resources) and appropriate mitigation measures are described to reduce any impacts. Mitigation Measure HYDROLOGY-1 and Mitigation Measure 13.I0-3(b) require that a Stormwater Pollution Prevention Plan be prepared and implemented using Best Management Practices to control both construction-related erosion and sedimentation and project-related non-point discharge into waters on the site. In addition, Mitigation Measure HYDROLOGY-2 requires that appropriate easements, access and1 security for use of equipment to clean out detention basins be provided prior to approval of a final vesting tenta*�• � map. Detention basins must,be maintained, inspected and cleaned on a regular basis to ensure that they can hold the requisite maximum storm event runoff. The imposition I 134 FINAL EIR FOR TIIE EL SOBRANTI: SUBDIVISION 8533 policies of the Contra Costa County General Plan. Response to Comment C1- 25 addresses potential conflicts with General Plan policies. The EIR preparers do not ignore the fact that environmental constraints should be considered in project planning. A number of mitigation measures are recommended to ensure that significant lenvironmental impacts do not result from site development. C2-32: The commentor states that the proposed project violates a number of General Plan policies and therefore has a significant land use planning impact. As already noted, Section 4.1, Land Use and Planning, of the DEIR evaluates the project's relationship to applicable policies of the Contra Costa County General Plan. Refer to Responses to Comments C 1-22, C 1-25, C 1-26, and Cl-27. The EIR preparers do to not ignore the fact that environmental constraints should be considered in project planning. A number of mitigation measures are recommended to ensure that significant environmental impacts do not result from site development. C2-33: The commentor notes that a number of General Plan policies affect the allowable density of the project. Refer to Master Response No. 1, which addresses a new Reduced Project Alternative. While there would be cut and fill on the site, there wlould not be fill of"canyons" as the word is commonly defined. C2-34: The commentor reviews General Plan policies regarding development on steep slopes. Refer to Responses to Comments C1-26 and C1-27. Also refer to Response to Comment C1-25,which addresses how steep slopes on the site could be protected. C2-35: The commentor objects to the DEIR's findings regarding the General Plan policy that calls for retaining the semi-rural and suburban character of the community. It is true that large lots are located to the south and southwest of the site. The DEIR doles not state that the "semi-rural" quality is only due to the 10 acres of the project site, as the commentor contends. Refer to Master Response No. 1, which addresses a Reduced Project Alternative that may help ;to address the commentor's concerns. C2-36: The commentor notes that, due to existing traffic and circulation problems, the General Plan calls for approval of new development at the low to mid-range of the respective single-family residential designations. The commentor states that the DEIR does not provide sufficient information to detennine the extent to which local traffic issues may limit the size of the project. General Plan Policy 3-203 states that new development should be approved at the low- to mid-range of the perspective single-family residential land use density 134 designations. At the low range of the General Plan allowable density, up to 50 units could be built on the site. The proposed project consists of 40 units, within the allowable density. Section 4.2, Transportation/Traffic, of the DEIR evaluates the impacts of project- generated traffic. This analysis did not identify traffic impacts that are significant enough to warrant reducing the size of the project. The commentor does not provide evidence to refute this conclusion. C2-37: The commentor notes the DEIR's conclusion that the project does not provide affordable housing, ^ssIrered by General Plan pokey. There is no development agreement on this site that requires provision of affordable housing. Therefore from staff s perspective, the General Plan does not require provision of affordable housing on Ithis site. This comment does not address the adequacy of the EIR nor the CEQA process and should be addressed to the decision-making body. C2-38: The commentor indicates that the County could not legally issue a variance from zoning code requirements for the allowable number of housing units on a cul-de- sac. The project would not need a variance related to the number of homes on a cul-de-sac. Refer to page 4.1-13 of the DEIR. C2-39: The commentor notes that the General Plan does not allow for development that creates unmitigated significant impacts on the environment and local community. No significant unavoidable impacts were identified for the project. See Response to Comment C1-92. C2-40: The commentor requests that the County find the DEIR inadequate and direct the applicant to prepare arevised DEIR. The County does not find that a new DEIR is necessary. i i i 3� EXHIBIT 6 FINDINGS EXHIBIT 6-A CEQA FINDINGS RELATED TO APPROVAL OF EL SOBRANTE SUBDIVISION 8533 BY THE CONTRA COSTA COUNTY BOARD OF SUPERVISORS I I. INTRODUCTION 1. These CEQA findings are adopted by the County of Contra Costa ("County") as lead agency for the El �Sobrante Subdivision 8533 ("Project"). These findings pertain to the Environmental Impact Report prepared for that Project, SCH #2003102107 ("EIR"). 2 These CEQA(findings are attached as Exhibit 6-A incorporated by reference into each approval document, Subdivision 8533, approving the Project. The approval documents also includes an Exhibit 7,which contains the Mitigation Monitoring and Reporting Program ("MMRP"), and which references impacts, mitigation measures, levels of significance before mitigation, and resulting levels of significance after mitigation. Also attached is an Exhibit 2 that contains the conditions of approval, as revised and amended by the County Board of Supervisors, and an Exhibit 6-B that contains findings regarding other matters, including compliance with the County Code and General Plan consistency. H. THE PROJECT 3. The Project is a proposed 40-lot.re.sidential subdivision on approximately 10 acres located at 4823 Hilltop Dri ie in the unincorporated community of El Sobrante in Western Contra Costa County, and can be further identified as Assessors Parcel Numbers (APNs) 426-210-007; 426-182-001 and -017; and 426-192-005 and 008. The Project site is bounded by Hilltop Drive to the south, residential development to the east, residential development(adjoining Manor Road) to the north, and residential development that is part of the Hilltop Green Homeowners Association (City of Richmond) to the west. It is situated about 1 mile north of downtown El Sobrante! Access to the site is provided via Hilltop Drive,just west of Renfrew Road. A new project access road, called Royal Oaks Drive, is planned to provide internal access to the site and to connect with Hilltop Drive at the south end of the site. The City of Richmond city limits form the western boundary of the Project site and Interstate Highway 80 is located about one-half mile to the west of the site. I11. ENVIRONMENTAL REVIEW OF THE PROJECT 4. Pursuant to the California Environmental Quality Act, Public Resources Code section 21000 et segl. and the CEQA Guidelines, Cal. Code Regs., tit. 14, sections 15,000 et seq. (collectively, `,`CEQA"), the County determined that an EIR would be prepared. The County issued a Notice of Preparation ("NOP"), which was circulated to responsible agencies and interested groups and individuals for review and comment. A public scoping meeting was held on Monday, November 8, 2004 at the County Library in El Sobrante. 5. A Draft EIR was prepared for the Project to analyze its environmental effects. The Draft EIR was circulated for a 45-day public review period, from August 15, 2005 to October 3, 2005. 6. The County received written and oral comments on the Draft EIR. The Zoning Administrator held a hearing on September 12, 2005 to provide an opportunity for oral testimony on the Draft EIR. The County prepared responses to comments on environmental issues, and made changes to the Draft EIR. The responses to comments, changes to the Draft EIR and additional information were published in the Final EIR in February 2006. The Draft EIR, the Final EIR, and all the appendices comprise the "EIR" referenced in these findings. 7. The Zoning Administrator held a public hearing on the Final EIR on February 27, 2006. At this meeting, the Zoning Administrator took action to approve the Project by recommending certification of the Final EIR. The Board of Supervisors subsequently adopted the Zoning Administrator's recommendations. The agenda for the meeting was posted as required by County Code and State law , however no other public notice of the closed public hearing was required by law including the California Environmental Quality Act(CEQA), State and County CEQA Guidelines, or County Ordinance. 8. At all public hearings, the County staff and its engineering and environmental consultants provided information about the Project, the potential environmental impacts, and the CEQA review process. At each meeting/hearing, members of the public had the opportunity to ask questions and express their concerns and interests for the Project. 9. CEQA Guidelines section 15088.5 requires a lead agency to recirculate an EIR for further review and comment when significant new information is added to the EIR after public notice is given of the availability of the draft EIR but before certification. New information added to an EIR is not"significant" unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect that the project proponent declines to implement. The Guidelines provide examples of significant new information under this standard. Recirculation is not required where the new information added to the EIR merely clarifies or amplifies or makes insignificant modifications in an adequate EIR. The Board of Supervisors finds that the Final EIR does not contain significant new information as defined in the Guidelines and that recirculation of the Drag EIR therefore is not required. IV. THE RECORD 10. The record upon which all findings and determinations related to the Project are based includes the following: a. The EIR, and all documents referenced in or relied upon by the EIR. . b. All information (including written evidence and testimony) provided by County staff to the Planning Commission and the Board of Supervisors relating to the EIR, the proposed approvals and entitlements, the Project or its alternatives. A-2 . C. All information (including written evidence and testimony) presented to the Planning Commission and the Board of Supervisors by the environmental consultant and subconsultants who prepared the EIR, or incorporated into reports presented to the Commission and the Board of Supervisors. d. All information (including written evidence and testimony) presented to the County from other public agencies relating to the Project or the EIR. e.. All applications, letters, testimony and presentations presented by the Project Sponsor and its consultants to the County in connection with the Project. f. All information(including written evidence and testimony) presented at any public hearing or workshop related to the Project and the EIR. g. For documentary and information purposes, all locally-adopted land use plans and ordinances, including, without limitation, general plans, specific plans and ordinances, together with environmental review documents, findings, mitigation monitoring programs and other documentation relevant to planned growth in the area. h. The MMRP for the Project. i. All other documents comprising the record pursuant to Public Resources Code section 21167.6(e). 11. The custodian of the documents and other materials that constitute the record of proceedings upon which the Council's decision is based is Dennis M. Barry, Community Development Director, County of Contra Costa, or designee. Such documents and other materials are generally located at 651 Pine Street, 4`h Floor- North Wing, Martinez, California 94553, 12. These findings are based upon substantial evidence in the entire record before the Board of Supervisors. They references to certain pages or sections of the EIR set forth in these findings are for ease of reference only and are not intended to provide an exhaustive list of the evidence relied upon for these findings. V. CERTIFICATION OF THE EIR 13. In accordance with CEQA,the Board of Supervisors, as lead agency, certifies that the EIR has been completed in compliance with CEQA. The Board of Supervisors further certifies that it has reviewed and considered the information in the EIR prior to approving the Project. Similarly, the Board of Supervisors finds that it has reviewed the record and the EIR prior to approving the Project. By these findings, the Board of Supervisors confirms, ratifies and adopts the findings and conclusions of the EIR, as supplemented and modified by these findings. The EIR and these findings represent the independent judgment and analysis of the County and the Board of Supervisors. A-3 14. The Board of Supervisors certifies that the EIR is adequate to support the approval of the Project, each alternative in the EIR, and variations within the range of alternatives described and evaluated in the EIR. The EIR is adequate for each entitlement or approval required for construction or operation of the Project. VI. MITIGATION MEASURES, CONDITIONS OF APPROVAL, AND MMRP 15. Public Resources Code section 21081.6 and CEQA Guidelines section 15097 require the County to adopt a monitoring or reporting program to ensure that the mitigation measures and revisions to the Project identified in the EIR are implemented. The MMRP is included in Exhibit 7, and is adopted by the Board of Supervisors. The MMRP satisfies CEQA's requirements. 16. The mitigation measures recommended by the EIR and incorporated into the Project are specific and enforceable. As appropriate, some mitigation measures define performance standards to ensure no sIignificant environmental impacts. The MMRP adequately describes conditions, implementatiori, verification, a compliance schedule and reporting requirements to ensure the Project complies with the adopted mitigation measures. The MMRP ensures that the mitigation measures fare in place, as appropriate, throughout the life of the Project. The mitigation measures described in Exhibit 7 and the corresponding conditions of approval in Exhibit 2 are incorporated into these findings as conditions of each of the approvals required for the Project. 17. The mitigation measures set forth in Exhibit 7 and corresponding conditions of approval in Exhibit 2 are derived from the mitigation measures set forth in the EIR. The County has modified the language of some of the mitigation measures and corresponding conditions for purposes of clarification and consistency, to enhance enforceability, to defer more to the expertise of other agencies with jurisdiction over the affected resources, to summarize or strengthen their provisions, and/or to make the mitigation measures more precise and effective, all without making any substantive changes to the mitigation measures. The proposed pedestrian trail within the Northwest Open Space area has been deleted as allowed in B[O-Mitigation Measure 4-a. However, this approval allows for low-intensity recreation facilities including an HOA-pedestrian trail subject to further review for impacts on biotic resources by a qualified biologist. I VII. FINDINGS REGARDING IMPACTS I 18. In accordance with Public Resources Code section 21081 and CEQA Guidelines sections 15091 and 15092, the Board of Supervisors adopts the findings and conclusions regarding impacts and mitigation measures that are set forth in the EIR, and summarized in Exhibit B. These findings do not repeat the full discussions of environmental impacts contained in the EIR. The Board of Supervisors ratifies, adopts and incorporates the analysis, explanation, findings, responses to comments and conclusions of the EIR. The Board of Supervisors adopts the reasoning of the EIR, of staff reports, and of staff and the presentations provided by the Project Sponsor, 19. The Board of Supervisors has, by its review of the evidence and analysis A-4 presented in the EIR and in the record, acquired a better understanding of the full scope of the environmental issues presented by the Project. In turn, this understanding has enabled the Board of Supervisors to make fully informed, thoroughly considered decisions on these important issues. These findings are based on a!full appraisal of the EIR and the record, as well as other relevant information in the record ofproceedings for the Project. I I 20. Under Public Resources Code section 21081 (a)(2) and CEQA Guidelines section 15091 (a)(2) and 15092(b)(2)(A), the Board of Supervisors recognizes that some mitigation measures require action by, or cooperation from, other agencies. Similarly, mitigation measures requiring the Project Sponsor to contribute towards improvements planned by other agencies will require the relevant agencies to receive the funds and spend them appropriately. The Board of Supervisors also recognizes that some cumulative impacts will be feasibly mitigated when other agencies build the relevant improvements, which also requires action by these other agencies. For each mitigation measure that requires the cooperation or action of another agency, the Board of Supervisors finds that adoption and/or implementation of each of those mitigation measures is within the responsibility and jurisdiction of another public agency, and that the measures can and should be adopted and/or implemented by that other agency. I I GXurrent Planning\curr-plan\Afshar\Exhibit 6-l.rtf I I I A-5 I EXHIBIT 6-B GENERAL FINDINGS RELATED TO APPROVAL OF VARIANCES AND MAP FOR EL SOBRANTE SUBDIVISION 8533 BY THE CONTRA COSTA COUNTY BOARD OF SUPERVISORS I I. INTRODUCTION 1. These gene Iral findings are adopted by the Contra Costa County Board of Supervisors ("Board") for the El Sobrante Subdivision 8533 (the "Project"). These findings refer to the EIR prepared for that project, SCH#2003102107 ("EIR''), and are based upon that EIR. These findings are also based upon the staff reports presented to the Planning Commission and the Board, and all materials contained in the record of proceedings, as identified in the CEQA Findings for the Project(Exhibit 6-A). Some findings are based especially upon specific reports, or upon specific pages of the EIR, as noted below. However, all findings are based upon the entire record. References to specific reports and specific pages of documents are for ease of reference only, and are not intended to identify those sources as the exclusive basis for the .finding. 2. These general findings are attached as :Exhibit 6-B and incorporated by reference into the following approval documents pertaining to the Project: • 3/21/2006 Board Order including Conditions of Approval (Exhibit 2); I • Staff Study: Concerns of Design Compatibility(Exhibit 4-A); and • Vesting Tentative Map dated 10/23/2004. For ease of reference, all the relevant findings under the Planning and Zoning Law, the County Code, and other applicable policies or regulations are included in this one document. 3. Attached to these same approval documents is an Exhibit 6-A that contains CEQA Findings. Also attached is an Exhibit 7 that references impacts, mitigation measures, and resulting levels of significance, and sets forth the Mitigation Monitoring and Reporting Program ("MMRP"). Also attached is an Exhibit 2 that contains the conditions of approval. All Exhibits are incorporated by reference into each other, and into the approval documents. I 4. These findings use capitalized terms as they are used in the EIR. References to title, chapter and to code sections are references to the County Code unless the context clearly indicates otherwise. References to Exhibits are references to the exhibits attached to the approval ;documents to which this Exhibit 6-B is attached. I II. GENERAL PLAN CONSISTENCY 5. The Project is governed by the Contra Costa County General Play: and any decision by the County affecting land use and development must be consistent with the General Plan. The Board adopts the conclusions, analysis and explanations contained in the EIR and staff reports regarding the consistency of the Project with the General Plan. 6. The Project Sponsor has proposed the development of a 40-lot residential subdivision located on approximately 10 acres designated Single-Family Residential-High Density by the General Plan. The Board approves variances and a subdivision that will allow a maximum of 39 units, subject to certain review and objective criteria listed in conditions of approval number: #2 General Site Plan Alterations; #8 — 14, 18, &20 Review for Impacts to Biologic Resources; #23 Graded Slope Restrictions #46—49 Design Review #59 Road Design #74 - 87 Hydrology 7. The following reference to "Project" is defined as the project that has been approved by the Board of Supervisors including any conditions of approval. The Project is consistent with the General Plan. The various land uses authorized for the Project are compatible with the objectives, policies, general land uses, and programs specified in the General Plan. The Project is compatible with and conforms to the objectives, policies, general land uses and programs specified in the General Plan. The Project furthers the objectives and policies of the General Plan and does not obstruct their attainment. The Project, as conditioned through conditions of approval set forth in Exhibit 2, is compatible with, and in harmony with, General Plan goals and policies. Specifically, implementation of the Project will result in the fulfillment of several important General Plan policies including reinforcement of the suburban character of the area byi continuing the single-family residential pattern, discouraging sprawl, maintaining a compact urban form, compliance with the 65/35 urban limit line, as amended, ands encouraging preservation of open space, all by promoting infill development in an existing residential neighborhood. 8. The Project is consistent with General Plan Safety Element policies promoting protection of slopes and hillsides. As consistently interpreted and implemented by this Board, those policies do not prohibit development on hillsides exceeding 26 percent. Rather, the policies are principles for protection of hillsides, to be implemented on a case-by-case basis, and have consistently been interpreted to allow I B-2 grading on 26 percent slopes, so long as it is properly regulated. The Board reaffirms this interpretation of General Plan Safety Element policies. The Board adopts the E1R's analysis and conclusions regarding the consistency of the Project with all of the General Plan Safety Element policies it discusses, including its discussion of policies pertaining to 26 percent slopes at pages 87-89 of the FEIR, in response to comment C 1- 25. The 1.65 acres of the Project site which contain slopes greater than 26 percent are distributed across the approximately 10 acre site, in relatively small areas, which are not considered to be of adequate size to require avoidance of development. The Board adopts the analysis and recommendation of staff and concludes that the habitat value of the approximately 1.73 acres of integrated open space proposed by the Project is of greater value than scattering 1.65 acres of small areas with slopes of 26 percent across the Project site. The Board further finds that the mitigation measures and corresponding conditions of approval incorporated into the iproject will protect slope stability, and will ensure that development is compatible with the General Plan's hillside protection policies. 9. The Project is in harmony with surrounding neighborhoods, and the site is physically suitable for the type and density of development proposed. The surrounding area is primarily developed with single-family residential homes on lots ranging from 5,000 to 40,000 square feet in size. The Project proposes the development of up to 40 single-family residences on lots ranging from approximately 7,500 to 26,500 square feet. The density of the development is consistent with the General Plan, which allows the development of between 37 and 54 units on the site. The Project is not likely to cause serious health problems,I substantial environmental damage or substantial and avoidable injury fish or wildlife or their habitat. 10. The General Plan comprises many goals, objectives, policies, principles, programs, standards, proposals and action plans, as well as perfonnance standards. The Board of Supervisors recognizes that certain policies necessarily compete with each other. Examples of tensions between General Plan policies are found between those policies that promote managed growth and encourage new residential construction, and those that provide for protection of open space. The Board of Supervisors has considered all applicable General Plan policies and the extent to which the Project conforms to and potentially competes with each of those policies. 11. The Board has fully evaluated the extent to which the Project achieves each policy in the General Plan, including those pertaining to density, standards regarding slopes, geology, and soils, hazardous materials, flood hazards, drainage, erosion and runoff,protection of i ater quality,protection of biological resources including riparian and wildlifehabitat, transportation standards and goals, recreational and aesthetic interests and proteci ion of visual resources. 12. For the reasons stated in the EIR, in the staff reports, in these findings, and in the CEQA Findings for the Project (Exhibit 6-A), the Board finds that the balance achieved by the Project among competing General Plan policies is acceptable, that the Project complies with all,perfonnance standards in the General Plan. The Project achieves each applicable policy to some extent, and represents a reasonable accommodation of all applicable policies in the General Plan. B-3 12. The Board finds that the Project is consistent with the General Plan's Single-Family Residential High Density land use designation. The Board adopts the explanation of how the Project complies with this designation from the EIR, particularly from the Land Use and Planning Chapter of the Draft EIR. The General Plan defines the densities of its residential designations in terms of housing units per net acre. Net acreage includes all land area used exclusively for residential purposes, and excludes street, highways and all other public rights of way. Under the General Plan, net acreage is assumed to constitute 75 percent of gross acreage for residential uses, including the Single-Family Residential-High Density land use designation. (Land Use Element 3-13, Table 3-4). The Project site's gross acreage is 10 acres, which results in 7.5 net acres. . The General Plan density range is 37 to 54 units on the site, consistent with the allowable density range of 5.0 to 7.2 units per acre. In light of General Plan policies encouraging promotion of infill development while maintaining reasonable traffic levels of service by approving projects at the low to mid levels of the respective single family residential land use designation allowable density, the Board finds that the maximum 39-unit density of the Project is a reasonable implementation of the density ranges in the General Plan. 13. The Board finds that the Project is consistent with the Growth Management Element Performance Standards of the General Plan and adopts the conclusions, analysis and explanations contained in the EIR and staff reports regarding the consistency of the Project with these standards. 14. The Board finds that the Project is consistent with the traffic standards and policies of the Growth Management Element. The EIR traffic study measured peak hour traffic at key intersections in the site vicinity(along the Hilltop Drive corridor). The analysis included calculation of existing Level of Service at these intersections and forecasted the effect of Project-generated traffic on the operation of these intersections. The traffic study also analyzed the existing phis project plus cumulative scenario. Using the threshold of significance adopted by the County in the Growth Management Element, the study concludes that the project will not have a significant impact on Hilltop Drive traffic. Evaluation of the internal circulation of the project identified significant impacts, and mitigation measures are proposed to reduce those impacts to less-than-significant. The Board adopts the conclusions, analysis and explanations contained in the traffic study and in Chapter 4.2 of the Draft EIR. 15. The Boardl finds that the Project is consistent with the flooding and drainage standards and policies of the Growth Management Element. No portion of the Project site lies within a special flood hazard zone designated by the Federal Emergency Management Administration (FEMA). The EIR indicates that the existing Hilltop Green drainage facilities are adequate to carry peak flows from the 10-year storm event. The hydrology chapter of the EIR summarizes technical data and engineering analysis, which evaluated the effect of the project on peak runoff exiting the site. The Board adopts the conclusions, analysis and explanations contained in this chapter. Based on hydrologic model runs using methodology acceptable to the Flood Control District, the Board finds that the two proposed storm water detention basins are capable of keeping peak flows from the project at or below the pre-development level. Specifically, for a ninoff event with recurrence intervals of 10 years, peak flows at the Hilltop Green culvert are I B-4 decreased from 57 cubic feet per second (cfs) under existing conditions to 55 cfs after buildout of the project. For the 100-year runoff event, peak flows are reduced from 85 cfs to 83 cfs. The project would not exacerbate potential flooding problems downstream from the Project site and thus would not result in a significant impact. The EIR states that the engineering details of basin design are not provided, and identifies basin design and provision for long-term maintenance as a significant impact. Performance criteria are provided as mitigation measures to require that engineering detail to reduce those impacts to less-than-significant. 16. The Board finds that the Project is consistent with the water and waste disposal standards and policies of the Growth Management Element. The Project site is within the EBMUD and West County Wastewater District service areas. The Project applicant is required to comply with the requirements of these service districts. 17. The Board finds that the Project is consistent with the fire protection standards and policies lof the Growth Management Element. The site is within one mile of the fire station at#4640 Appian Way. Therefore, the project is not required to equip residences with interior sprinklers. The EIR proposes that the .`emergency vehicle access" (EVA) meet performance standards of the County Public Works Department and the Fire Protection District. The District routinely is involved in the review of Improvement Plans to ensure that hydrants (location, design), turnarounds and other fire safety-related construction issues comply with the provisions of the Fire Code. 18. The Board finds that the Project is consistent with the public protection standards and policies of the Growth Management Element. The Growth Management Element Standard is 155 square feet of Sheriff facility station per 1,000 population. The project will generate a population.estimated at 3.25 persons per unit (an increase of 127 persons).The size of the population increase is not significant, and the conditions of approval require thi Project applicant to establish a police service district to augment police services. i 19. The Board finds that the Project is consistent with the parks and recreation standards and policies of the Growth Management Element. The proposed subdivision will have a relativel I minor cumulative effect on demand for park and recreation facilities, and is subject to payment of park dedication fees at time of issuance of building permits. The EIR identifies protection of the private open space as a significant impact and outlines detailed specifications to reduce those impacts to less- than-significant. Those mitigation measures have been incorporated into the recommended conditions of appri val. III. CONSISTENCY WITH ZONING i 20. The zoning district for the Project site is R-7 Single-Family Residential District. The County adopts the conclusions, analysis and explanations contained in the EIR and staff reports relating to the zoning. The Project will promote the public health, safety and welfare by providing a maximum 39-unit residential infill development in the El Sobrante area, located near transportation corridors, and designed B-5 i in a manner that integrates into the existing natural setting,protects hillsides and slopes, and is environmentally sensitive. 21. The County finds that the Project is consistent with the Single- Family Residential (R-7) zoning designation, and with the provisions of Chapter 84-6 of the County's Zoning Ordinance. The Project advances the purpose of the R-7 district to provide and protect areas for residential development. With the variances discussed below, the Project meets all requirements of the R-7 zoning district. IV. VARIANCES 22. Average Width. The standard of the R-7 Single Family Residential District is that single-family dwelilings and structures be placed on lots no less than 70 feet in average width. Some of the lots within the Project, while meeting, and in some cases exceeding, the minimum standard lot area, are substandard in average width, and need variances from the Zoning Code. Some lots fail meet the average lot width due to their irregular shape. These lots exceed the minimum standard lot area, and if they could . be easily redrawn to reduce lot size by eliminating the triangular extension in the rear without introducing confusion in ownership and land stewardship concerns, would meet minimum average lot width. Other lots are 70 feet wide (or more) at the road frontage, but do not meet the average lot width due to the lot depth measurement. Strict adherence to the R-7 zoning standards, while keeping Project density within the range prescribed by the General Plan,would inevitably result in compromising General Plan goals of protecting slopes and hillsides,preserving open space, and providing for protection of biologically sensitive features. To achieve the same privileges enjoyed by properties in the R-7 zone that do not face these site constraints, variances are necessary. This Board finds that the variances are appropriate due to the irregular shape of the these lots, and the method of lot width calculation defined by County code, and concludes that approval of the requested variances does not constitute a grant of special privilege. I 23. Because of the special circumstances applicable to the subject property, including the location off the lots at a cul-de-sac bulb, the irregular shape of the property and the Zoning Code's method of calculation, the Board finds that strict application of the respective zoning regulations will deprive the Project of rights enjoyed by others in the vicinity and the same zoning district. With variances, the lots have ample area to develop a residence. 24. The Board finds that granting a variance for average lot width is substantially consistent with the intent of the zoning district. The purpose of the R-7 district is to provide and protect areas for residential development. The substandard average widths of certain lots are chiefly due to the irregular shape of the property and the method of calculation. All lots have an obvious building site, and all lots could accommodate residences that complied with R-7 setback standards. 25. In accordance with Section 82-10.002 of the Zoning Code, any lot which does not meet minimum average width requirements will be subject to the small lot review process prior to the issuance of a building permit. The Board finds that this B-6 sv i review process will further ensure that the final design of the dwellings to be located on such lots will be consistent with the standards of the R-7 zoning designation. 26. The conditions of approval provide that no minimum lot width variance shall be granted for a loth less than 65 feet in average lot width, for a maximum of five lots; all other lots must fully comply with R-7 lot dimension standards including the average lot width standard of a minimum 70 feet as defined by the code. The provision for variances to lot width is to address the situation that certain lots that otherwise fully comply with R-7 standards are substandard due to added lot area beyond the minimum requirements, and the code definition that has the effect of reducing the lot to less than 70 feet. There are ten proposed lots that have these characteristics that among those lots have an average lot width variance of 68 feet. However, instead of allowing ten lots that are at variance to lot width with these characteristics, the County would reduce the number of lots at variance to a maximum of five lots, and allow for an average lot width of a minimum of 65 feet for those five lots. This Board finds that such a condition provides sufficient further assurance that the Project as developed will be substantially consistent with the Zoning Code and will promote its objectives. 27. Retaining Walls.. This-Board finds that granting variances for the construction of retaining walls does not constitute a grant of special privilege. The objective of the project is to develop a residential subdivision in a hillside area while protecting an existing creek corridor and minimizing grading within biologically sensitive lands. The retaining walls proposed to be constructed for the Project will assist in achieving this objective. The retaining wall along Royal Oaks Drive arch culvert will minimize disturbance to riparian habitat. The location of the creek crossing was selected by CDFG and the vertical alignment and width project roads are controlled by the County's private road standards. The retaining wall south of the creek crossing results from compliance with those standards. The retaining wall along Garrity Creek Drive will minimize disturbance to biologically-sensitive lands west of the road alignment. The retaining wall at the Adam Court cul-de-sac (and for the EVA)will minimize disturbance to biologically sensitive lands to the west. 28. This Board finds that approval of variances for retaining walls is appropriate due to special circumstances applicable to the property. The variances requested for retaining walls are all associated with roadways. The County has adopted private road standards. Retaining walls are commonly required.in hillside areas to comply with the horizontal and vertical alignment of private roads, especially where grading of the area adjacent to the roadway is to be kept to a practical minimum. The Board finds that due to the topography, location, and surroundings of the property, strict application of the zoning regulations for retaining walls will deprive it of rights enjoyed by others in the vicinity and within the same zoning district. 29. This Board finds that approval of variances for retaining walls is substantially consistent with the intent of the R-7 district. The purpose of the R-7 district is to provide and protect areas for residential development. The use of retaining walls is intended to allow the construction of a subdivision with one primary access road connection to Hilltop Drive, along with an EVA connection to Manor Road, minimize B-7 I grading, and allow for preservation of the creek corridor. 30. Sound Bart ler Wall. This Board has determined that approving a variance for a sound barrier wall to shield a front yard of Lot 1 is not a grant of a special privilege. The EIR has determined that a sound barrier wall is needed to shield a front yard of Lot 1 from traffic-related noise along the Hilltop Drive corridor(EIR Mitigation Measure Noise-1). The conditions of approval require that the precise location and design of the wall be determined prior td issuance of a grading permit. 31. The Board ifinds that approval of a variance for a sound barrier wall to shield the rear year of Lot, 1 is appropriate due to the special circumstance of marginally acceptable noise levels along Hilltop Drive. Strict application of the zoning regulations in this situation would deprive the property of rights enjoyed by other properties in the same zoning designation. 32. The Boardfinds that approval of a variance for the construction of a well-designed sound barrier wall is substantially consistent with the intent of the R-7 district to provide and protect areas for residential development. 33. Front Yard, . The Board finds that approval of variances from front yard setback requirements for up to 20 lots is not a grant of special privilege. The variance granted will allow for a more varied streetscape within the project by allowing 15-feet for approximately half ofithe lots rather than the normal 20 foot standard. The portion that is allowed to be placed closer than 20 feet shall not involve the garage component of the residence and shall be limited to a one story element. 34. This Board also adopts the recommendation of County staff that additional variances be granted to reduce front yard setbacks, to provide for visual diversity in the frontscapes. This Board finds that the approval of such variances does not constitute a grant of special privilege as the variances will comply with modern aesthetic standards that were not applied to existing lots in the R-7 zone, and the variances will improve the aesthetic quality of the Project by allowing for a more varied streetscape. The variances will be offset by deeper setbacks on other lots, to achieve the varied streetscape. The Project could not achieve the varied setbacks in compliance with the R-7 standards unless excessively deep setbacks were required on these other lots, which would deprive these other lots of benefits enjoyed by standard lots in the R-7 zone. Staggered fronts will achieve, on average, the same approximate building space and average setbacks as would strict compliance with R-7 zoning standards. 35. This Board finds that approval of variances from the required front yard setback is appropriate due to the special circumstance of the property's topography and will allow the homes to more appropriately fit into the natural slopes of the hillsides. Strict application of the zoning regulations would deprive the property of rights enjoyed by other properties in the vicinity and within the same R-7 zoning district. 36. This Board finds that approval of variances from the required front yard setback is substantially consistent with the intent of the R-7 district to provide and B-8 protect areas for residential development by providing for a more varied and visually interesting streetscape. 37. Approval of variances from front yard setbacks will also serve to advance the County's residential design goals and comply with modern design standards. In order to ensure that the designs of the homes respect the terrain of the lots, some of the homes located on steeper lots will have front yards setback of less than 20 feet. The ability to place homes on lots depending on the site characteristics promotes protection of the site, adds value and uniqueness to each property while ensuring individuality, and provides for a varied streetscape. 38. Arch Culvert. This Board finds that approval of variances to allow an arch culvert with the required yard areas is necessary to allow reasonable development of this property which is physically divided by a creek, and must be crossed to allow for access. This variance is required to accommodate a culvert that will be arched over the creek, to avoid sensitive habitat. (This variance is necessitated by the special circumstance of the siting of the culvert, the location of the creek, and application of modern rules encouraging placement of the culvert outside the banks of the creek, none of which are faced by typical lots developed earlier in the R-7 zone. The creek forms a natural boundary for a property line for the Project, and a variance is necessary to allow a road supported by a structure to cross the creek. i 39. This Board finds of.variances to allow the arch culvert with the yards of proposed lots is reasonable due to the creek topography and the planned use density for the site Single Family Residential—High Density(5 —7.2 units per net acre). 40. This Board.finds that approval of these variances to allow the arch culvert within the required yards of residential lots meets the intent and purpose of the zoning district in that it allows for reasonable development under density standards of the R-7 zoning district. i 41 The Project, as configured with the preceding described variances, is consistent with the General Plan. The findings above regarding general plan consistency, apply to the detcrmiination that the variances are consistent with the General Plan. 42. Front Yard Variances for Lots 2—5. This Board is unable to find that the requested variances to the front yard requirements for Lots 2 -5 meets the intent or purpose of the Ordinance Code, and denies those requested variances. 43. ' Lot Depth Variance for Lot 13. This Board is unable to find that the requested variance to the R-7 lot depth requirement (minimum 90 feet) for Lot 13 meets the intent or purpose of the R-7 district. This variance is denied. 44. Lot Width I Variances for Four Lots with Irregular Shape. This Board finds that in addition to the ten lots identified as being substandard in lot width, but which otherwise have characteristics that meet the R-7 lot dimensions, there are five other lots that are 70 feet wide (or more) at the road frontage in addition to the 10 lots I B-9 with average lot widths described above, but have an irregular shape due to the lot depth measurement do not meet the intent and purpose of the Ordinance Code. Unlike the ten lots with average lot width variances described above, these lots do not contain within them lot dimensions that otherwise meet the R-7 lot dimension standards. The requested variances for those four lots to the average lot width standard are denied. V. SUBDIVISION MAP 45 Pursuant to Title 9 of the Contra Costa County Code, the County finds that Subdivision Map 8533 his consistent with the goals and policies of the General Plan. The findings above regarding General Plan consistency, apply to the determination that the map is consistent with the General Plan. The Subdivision Map is discussed in the staff reports presented to the County. The County adopts the conclusions, analysis and explanations contained in the staff reports. The County approves Subdivision Map 8533 subject to the conditions of approval (Exhibit 2). 46 The conditions include additional review to provide further assurance that all lots within Subdivision Map 8533 meet applicable standards. Specifically, a maximum 39 residential lot project is approved, subject to additional review for effects on biological resources, Preliminary Review Submittal of grading and residential designs, compliance with approved zoning standards, and with hydrologic and road design standards, subject to the final review and approval of the Zoning Administrator which may lead to further reductions in the number of allowed residential lots for this project prior to approval of a Final Map. 47. Most of the site (84 percent) contains slopes that exceed a 15% gradient; some of the property has slopes exceeding 26%. This Board finds that the Project responds to terrain constraints by use of 2'/2:1 (horizontal to vertical) gradients for engineered slopes; use of retaining walls along segments of project roads to limit the "footprint" of grading; and minimizes disturbance to sensitive lands by stepping residences up and down the slope. Policy 10-28 of the Safety Element of the General Plan provides that generally residential density shall decrease as slope increases especially above a 15 percent slipe. 48. Subdivision Map 8533 contains all information required by State Law and by the County Code, including all information referenced in Ordinance Code section 94-2.806. The Map pro fides, to the extent feasible given the nature of the site and the challenges faced in designing a viable development project, for future passive or natural heating and cooling opportunities. D:\personal\SUB 8533 General Findings.doc B-10 �� ,, 1 �` `\ ��� ��1 �' R�' �� .� �� 1` ,` `\ �\ I MITIGATION MONITORING AND REPORTING PROGRAM This Mitigation Monitoring and Reporting Program (see Table 1) has been prepared to comply with the requirements of State law (Public Resources Code Section 21081.6). State law requires the adoption of a mitigation monitoring program when mitigation measures are required to avoid significant impacts. The monitoring program is intended to ensure compliance during implementation of the project. This Mitigation Monitoring and Reporting Program has been formulated based upon the findings of the DEIR and the comments received on the DEIR and addressed herein. This Mitigation Monitoring and Reporting Program identifies mitigation measures recommended in the EIR to avoid or reduce identified impacts, and specifies the agencies responsible for implementation and monitoring. I The first column identifies the mitigation measure. The second column entitled "Implementing Mechanism" indicates the appropriate condition of approval #, the third column entitled "Monitoring Requirements" refers to the type of monitoring that should be undertaken to ensure that the mitigation measure is implemented. The fourth column entitled "Person/Agency Responsible for(Monitoring" refers to the agency responsible for ensuring that-the mitigation measure has been implemented. 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O �•+ � t'" O ..+ � .•' p.•,.i n rOn � N � �". gid" � O � .N,,+ �y'U Oy fl+ � � N � w•' cC+ ��"' N y "; O '� Q N OD"� ted V. 34 C6 'p O •: o � � � � � �� � H � °^c o "' c .� m �'0 3 '�3 UNC �w Q�� �°� �'Gp '� .� O O � ,U.. � O �, ±U �, J��'^ N ,� c�J y 'U•O �'� p,v U U � � }-,�,n i � y J v G 0 \ N o 7 � � o o \ �) R N m O �G N d.ca yu'' •,'r \ � N ✓ fA wo� G, � N � ,� G G U �. i' fl•� N�,p Y Y GD Y N p U v A �..�\Q:..7 J N rj�^�y, rjp w 6 �" pD io - n I P p ° �G u ��,•V�a � \\ \\ �3� n {' N1� a � NrJ +'3 .� �, o UpU U� n I i� I I I EXHIBIT 10 PROPOSED MODIFIED PLAN I i i i i i SCHOOL X920 MPNO��Op,O • ,P �0 •ate ROAD N SUMMARY r PARCEL AREA 10.09 Acres � i o ! I OPEN SPACE 2.33 Acres 20.8 % v ) RESIDENTIAL (INCL ROADS) 8.00 Acres 79.2 % FEET _17I ROAD EASEMENTS 1.47 Acres 14.6 % 0 RETAINING I 1 I 1 50111100 150 200 WALL HEIG-(T (TYf?) OF WETLAND--- (SPRING) i- jF_ 28 S I l I 1 fj� I I i j'. 1 m LOT "A" - (PEN SPgCE m ;' ► i $ i Z WETLAND----- .� / % $ 157,688 SF INCL 10,;88 SF IN RD 24 I I 1 4 AC II RD 2(SEEP) 1.32 ACRES ()NCL 0. 4�) F � 114.27 I I1 iI I i FENCE AROUND OPEN SPACE 104.17 f a i If // p0P� UNDERGROUND %/,� A ' 104.E �P PIPE INLET /' /� i dN O 29 ;m MARIN ROAD 104.17 DETENTION C1 I BASIN "A" I i + T'-- I r 31 g v 104.26 I I I ROAD 24 -7 30 TYPE AND COLOR OFi I RIGHT-OF-WAY ,� i 8 `•. FENCES TO BE UNIFORM 930' SF 1 AND TO BE DETERMINED BY 1 I I j 73.52• '. 71.00' ADAMS CT N y 1 CC&RAS ^80.00' _39 Q m. 08 I I I 1 i 1 1, � tl 69.18 w I I I i I I 74.7, 55.93 11027• v S 32 N is 3 mol 23 N 2S1 72.2372.25• 43.66• 66' 32.84 38.38' 19.17' 55.2 / V 8.474 SF ` � \397\ \.50 W-72-98 W=70.10' 9.527 SF 8,997 SF - / 1080T 80.00' 63.69' .57 0 • m u 1 7,J �' 22 21 • 20 u 19 18 17 16 ' N / I - SC57- --Tl-UO•-- --72.'00•-- --72:00'-- -}5.60'.-- --77=0­1 73.61 54A5 3rJ -' _.•TSp 61.84• 81.78 71.50 71.50 71.50 71.50 59.76 T-- .o? K u O 'GP�y�I Y goon- 40 O O o O a O '70 38 -tp0 O ',Q a o i �! ' 0 10 n 38 N N e _ 36 37 �i // ' u , 76.46 / /71.4 LOT "B" / ----_ ,f,.71i /` / OPEN SPACE n ,' / f \ 41.77,' ,71.72/ / 57,2' - s.sz: 44,121 SF /i'` 1 GAf2RITY CREEK 1.01 Acres /% /so. ;�' FENCE THIS SIDE ETENTION BASIN "B" �° \� PRIVATE OPEN SPACE \ \\ 155' MAIINTENANCE 1. PRIVATE OPEN SPACE. TWO 1 \ \` ACCESS; FOR BASIN tib PARCELS (A AND B) ARE TO BE S OWNED BY THE HOA AND DEED \� DUMP TRUCK h a0 RESTRICTED TO PREVENT FUTURE 1 \ RESIDENTIAL CONSTRUCTION. ANY j' 12'\WIDE \ EARTHWORK/CONSTRUCTION ON LOTS 1 \` OPEN`6OTTOM qeL A" AND "8" IS SUBJECT TO PERMIT CULVERT \ E 6- •'p °' l REQUIREMENTS OF CALIFORNIA \ DEPARTMENT OF FISH & GAME \. RETAINING 1 � f % \ (CDFG). ) \ WALL HEIGHT 2. LOT "A" - THIS AREA TO BE STORMWATER CONTROL (TYP) os RETAINED AS UNGRADED OPEN 1. ROOF & DRIVEWAY STORMWATER RUNOFF, SPACE. WITH THE EXCEPTION OF A) WILL BE COLLECTED BY'THE STORMWATER\, Q CONSTRUCTION OF A GARRITY CREEK i COLLECTION 55'STEM. VIEW IMPROVEMENTS (VICINITY OF j 2. STORMWATER FRN ROADS, ROOFS, AND LOTS #26-28), 8) SLIDE REPAIR DRIVEWAYS FROM LOTS 11-22 AND LOTS C' AND CONSTRUCTION OF STORMWATER 35-40 WILL BE.\TREATF IN DETENTION DETENTION WIN "A- (ADAMS COURT BASIN "B'. STORMWATER,FROM LOTS `•� ,'y4 �\\ � �' / j' VICINITY). TREES AND OTHER PLANT 23-34 WILL--BE DIRECTED TO DETENTION - \,` -L•-- -- -` MATERIALS TO BE INSTALLED BASIN X, \. g i �`I� CONSISTENT WITH THE EIR MITIGATION 3. STORMWATER DETENION BASINS WILL BE ryryry � O / QAC MEASURES AND WITH CDFG PERMIT ACCESSIBLE BY MAINTENANCE EQUIPMENT. \ G \ �, / c10 REQUIREMENTS. 4. THE STORAGE CAPACITY OF THE STORM. 3. LOT "B" - THIS AREA TO BE WATER DETENTION BASINS SHALL BE '\ RETAINED AS UNGRADED OPEN IDENTICAL TO OR GREATER THAN THE SPACE, WITH THE EXCEPTION OF A) BASINS SHOWN IN THE REDESIGN \ ' CONSTRUCTION OF THE ROAYAL OAKS ALTERNATIVE. FINAL DESIGN OF \ / ` DRIVE IMPROVEMENTS (INCLUDING AN DETENTION BASINS SHALL COMPLY WITH \ '/% ARCH CULVERT CREEK CROSSING), REQUIREMENTS OF THE(PUBLIC WORKS \\\ \ ,i ,' DEPARTMENT / FLOOD CONTROL \ B) CONSTRUCTION OF DETENTION DISTRICT. BASIN -8- (REAR OF LOTS #38-39), 5. IN LIEU OF GRASSY SWALES, THIS y AND C) SLIDE REPAIR ALTERNATIVE UTILIZES BMP'S SUCH AS (NORTH-FACING SLOPE THAT STILLING PONDS OR MECHANICAL OVERLOOKS GARRITY CREEK - DOWN SEPARATORS. AS SPACE AND DESIGN SLOPE FROM LOT #4). TREES AND DICTATE. TO MEET ITS CLEAN WATER OTHER PLANT MATERIALS TO BE REQUIREMENTS. INSTALLED CONSISTENT WITH THE EIR 6. BASIN MAINTENANCE ACCESS WILL HAVE MITIGATION MEASURES AND WITH A MINIMUM OF 15-FOOT WIDTH AND CDFG PERMIT REQUIREMENTS. MAXIMUM SLOPE OF 10I PERCENT. ` am , KLEMETSON ENGINEERING MODIFIED SITE PLAN DTE: Qi01[Sf� JANUARY 5. 2006 u ^166 80 SOUTH MAIN STREET RESPONSE TO EIR COMMENTS AS SHOWN �3131/06 PLEASANT GROVE, UT 84062 I SUBDIVISION 8533 SHEET clyl� �`' 801-796-3569 1 c"'``° CONTRA COSTA COUNTY, CALIFORNIA I I ca LHOMMM q o -- ® suJ. Ivl � s ---I' ® I I 0 TRAM 11 I I ® I I 1 ® u�-nE-R101 m. fZ1 I ' / o o .�� ----- oPALLAMOI I I I o I If � I I I uil,mMm� I I I i � Q O HIWP cn I PAMCN O 'r I O ALSING O .z. -0,. 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Name: I Phone: I Address: < � � , �/�GJ City: (Address and phone number are optional; please note that this card will become a public record kept on We with the Clerk of the Board in as/s�.ciation with this meeting) �l w I am speaking for myself I or organization: I CHECK ONE: ❑ I wish to speak on Agenda Item #, 3 Date: My comments will be: ❑ General ❑ For Against ❑ I wish to speak on the s 1 bject of: Ile fir/ 9� ct/r�iti�a�i� 1101 1 CIO riot wisli to speak but would like to leave these comments for the Board toonsider- ,-Y� e--.te— r (a .�!'lease see reve►se fcv�instructions arrd in►poi ant irr(onnation / - � � `� � '" / / � � i � . � � � � � � / i / ' i � � J ., , i BINGHAM McCUTCHEN Cecily T. Talbert Direct Phone: (925) 975-5339 �� a � Direct Fax: (925) 975-5390 cecily.talbert@bingham.com APR U 7 2006 Our File No.: 0000302693 CLERK;304Rf) April 7, 2006 CON F?4 COSTA Cp'vlSORS Via Hand Delivery Contra Costa County Board of Supervisors Honorable John Gioia, Chair Bingham McCutchen LLP Honorable Gayle Uilkema Suite 210 Honorable Mary N. PieIpho, Vice Chair 1333 North California Bled. Honorable Mark DeSaulnier PO Box VHonorable Federal Glover Walnut Creek, CA County Administration Building 94596-1270 651 Pine Street, Room 106 Martinez, CA 94553 925.937.8000 925.975.5390 fax Re: Subdivision 8533 - EI Sobrante Area Board of Supervisors Hearing of April 11, 2006 binghom.com Honorable Supervisors: Boston Hartford This letter is submitted on behalf of our client, Mr. Sid Afshar, in response to the London Board's direction to staff on March 21, 2006, to "develop findings" to justify a Los Angeles motion by the Board to remove "6 or 7" lots from the proposed 40-lot tentative New York subdivision map for the Board's approval on April 11, 2006. This requirement by Orange Count the Board that the project be developed at a density lower than that permitted by San Francisco the County's own Gederal Plan and zoning law cannot be supported by the Silicon Valley substantial evidence required by state law, and therefore both violates state law Tokyo and constitutes an abluse of the Boards discretion. Walnut Creek Washington A. Background The development application for this project was submitted to the County five years ago, on May 17, 20011. It requested approval of a 44-lot subdivision in compliance with the County's General Plan and zoning. The application was deemed complete on November 1, 2002, having been reduced by the Applicant to 41 lots and having incorporated over 20 changes to accommodate requests by the County and numerous project neighbors and community groups. Subsequently, numerous additional changes were requested by the County and project neighbors, and agreed to by the Applicant. By the Applicant's fourth revised plan, the project had been reduced to 40 lots, and the County prepared and circulated a Mitigated Negative Declaration which determined there were no significant impacts that could not be reduced to less than significant levels with mitigation. 1 1 i Contra Costa County Board of Supervisors April 7, 2006 Page 2 Environmental review of the project under CEQA was subject to significant and extensive public comment. The project was approved with 40 lots by the County Planning Commission on June 8, 2004. The Commission's decision was supported by the Mitigated Negative Declaration On June 17, 2004, the Commission's approval was appealed to the Board of Supervisors by project neighbors. Instead of affirming the Planning Commission's Bingham McCutchen LLP approval of the project, the Board determined, on July 13, 2004, that it would not binghom.com consider approval of the project until a full Environmental Impact Report ("EIR") had been prepared. This determination was based on arguments that the project could have a significant environmental impact, notwithstanding the extensive modifications and mitigations already agreed to by the Applicant and determination by staff that there would be no significant environmental impacts. The subsequent environmental review process and preparation of the project Draft and Final EIR delayed the project by yet another year and a half and the Applicant incurred hundreds of thousands of dollars in expenses. The EIR again supported the prior conclusions of the Mitigated Negative Declaration. After mitigation, the 40-lot project would have no significant environmental impacts. In response to issues and concerns raised by the Board of Supervisors and project neighbors, the Applicant commissioned a series of technical studies and made further revisions to the project to accommodate yet further requests of the neighbors. The Draft and Final EIR analyzed the project's consistency with the General Plan and zoning at great length. Using the two different objective methods provided for calculating net acreage under the General Plan, the EIR concluded that the lowest density permitted under the General Plan would be 37 lots.' Included in the Final EIR was a 37-lot Reduced Project Alternative, which was identified as an 'I'environmentally-superior alternative.,2 Although the Applicant will lose another three lots, he agreed to accept the changes set forth in the alternative. I ' Depending on which objective method allowed under the General Plan is used for calculating net acreage, the General Plan allows a range of density from 42 to 60 units or from 37.5 to 54 residential lots. See County Draft EIR for Subdivision 8533 (August 2005), SCH #2003102107, p. 4.1-2. 2 Final EIR, pp. 14-24. I i Contra Costa County Board of Supervisors April 7, 2006 Page 3 When the Board finally reconsidered the project on March 21, 2006, after almost five years of staff and neighborhood review, it did not approve the Applicant's project - not even the 37-lot Reduced Project Alternative. Instead, the Board directed County staff to "develop findings" to justify a motion by the Board to remove "6 or 7" more lots from the proposed 40-lot tentative subdivision map for Board approval on April 11, 2006. Among the chief rationales used by the Board to support its goal of conditioning project approval on a lower density, were desires to Bingham McCutchen LLP provide more "publicaccess" to privately owned open space areas. bingham.com B. Legal Standards for Reducing a Project's Density under Government Code section 65589.50) The California Government Code specifies that when a proposed housing development project `,complies with applicable, objective general plan and zoning standards and criteria," in effect at the time that the project application is deemed complete, the local agency may not disapprove the project or "approve it upon the condition that the project be developed at a lower density' unless such a decision is supported by written findings supported by substantial evidence on the record that both of the following conditions exist: i (1) The housirig development project would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density. As used in this paragraph, a "specific, adverse impact" means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete; and (2) There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified pursuant to paragraph (1), other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density. Government Code §165589.50). As is further explained below, neither of these findings can possibly be supported by substantial evidence in the record before the Board concerning the Applicant's project. Contra Costa County Board of Supervisors April 7, 2006 Page 4 C. Project Complies with the Objective Standards and Contained in the County's General Plan and Zoning The project complies with all objective standards and criteria in the County's General Plan.3 The General Plan designates the project site SH (Single Family Residential - High Bingham McCutchen LLP Density) which allowsi5 to 7.2 housing units per net acre. Under the County's most bingham.com conservative objective approach for calculating net acreage, this designation allows a range of density from 37.5 to 54 residential lots. Hence, the lowest density permitted under the General Plan would be 37 units - the same density presented by the EIR as the Reduced Project Alternative and identified as an "environmentally-superior alternative,"' and agreed to by the Applicant at the Board's March 21, 2006 hearing. The project also complies with all objective standards and criteria in the County's Zoning Ordinances The zoning designation for the project site is Single-Family Residential with minimum standard parcel sizes of 7,000 square feet (R-7). Under the County's most conservative objective approach for calculating net acreage, this designation allows 46.7 lots. D. No Substantial Evidence Supports the Board's Bid to Further Reduce the Project The EIR thoroughly clonsidered potential impacts to: land use and planning, transportation/traffic (including analyses of four additional intersections in the Final EIR), hydrology and water quality, geology and soils, biological resources, hazards and hazardous materials, aesthetics, cultural resources, noise, air quality, agricultural resources, mineral resources, public services, recreation and public s Contra Costa County General Plan Land Use Element Map; id. at p. 3-16; Draft EIR, pp. 4.1-2 -4.1-10. 4 Final EIR, pp. 14-24. 5 Contra Costa County Zoning Map; County Zoning Ordinance § 84-6.602; Draft EIR, pp. 4.1-10 - 4.1-13; Final EIR, pp. 14-15. i Contra Costa County Board of Supervisors April 7, 2006 Page 5 access, utilities, service systems and energy, population, and housing. In each and every instance it has concluded, based upon extensive reports and studies prepared over almost a five-year period, that the 37-lot project (or even the 40-lot project), would have nIo significant environmental impacts that could not be mitigated to less than significant levels.s Simply put, there is no substantial evidence in the record to suggest that the project would have a "specific, adverse impact" upon the public health or safety. Without such evidence, the project cannot Bingham McCutchen LLP be disapproved under state law. binghom.com Not only does the 37-lot Reduced Project Alternative have no specific adverse impacts, but it increases open space and results in even fewer impacts at a less- than-significant level. For this reason, it was identified in the Final EIR as an "environmentally-superior alternative" in addition to the No Project Alternative.' i Any adoption by the Board of findings that conclude otherwise, made in effect to support a desire to further reduce the project by "6 or 7" lots would violate Government Code section 65589.50) and would constitute an abuse of the Board's discretion as a matter of law. As the Honorable Supervisor Gioia stated at the Board's meeting of March 21, 2006, the EIR is the "information [the Board has] to rely on in making thisi decision." Absent substantial evidence of a "specific, adverse impact" upon the public health or safety, the Board may not require reduction of the project by "6 or 7" lots. Any attempt to do so would be contrary to state law, violate the Applicant's rights in this case, and be subject to judicial review. Further, any attempt by the Board to condition project approval upon the dedication of access easements to the public to enjoy private open space would be an unlawful exaction in violation of the United States Constitution. Nollan v. California Coastal Commissions 483 U.S. 825 (1987) (holding that no "nexus" could be maintained between owners' development and permit condition requiring dedication of a lateral access easement along the owners' private beach). i i 6 Draft EIR, pp. 2-1 -2I2. 7 Final EIR, p. 14-24. Contra Costa County Board of Supervisors April 7, 2006 Page 6 In light of these facts and the rules of law applicable to the project, we urge the Board to comply with the mandates of state law and to follow the requirements of the County's own General Plan, Housing Element, and Zoning Ordinance, by refraining from further�reducing the project by "6 or 7" lots and instead approving the FEIR's 37-lot Reduced Project Alternative. Sincerely yours, Bingham McCutchen LLP tom` binghomam.com / Cecily T. Talbert cc: Silvano B. Marchesi, County Counsel Dennis M. Barry, County Community Development Director Catherine Kutsuris, Deputy Director, County Community Development Dept. Robert H. Drake, Principal Planner, County Community Development Dept. Darwin Myers, Planner, County Community Development Department Siavash Afshar 301775764 REQUEST TO SPEAK FORM (THREE (3) MINUTE LIMIT) Complete this form and place it in the box nearlthe speakers' rostrum before addressing the Board. Name: J d,A ,� [LLO c✓✓ I Phone: 5-10 Ll 3 "I� I 0 Address: 7a7 3 J� Cf l City: Please note that if you choose to provide your address and phone number, this information will become a public record of the Clerk of the Board in association with this meeting. I am speaking for myself .J or organization: CHECK ONE: I' ❑ I,wish to speak on Agenda Item # S7 O i 853,-3 Date: �/ d My comments will be: ❑ General ❑ For ❑ Against ❑ I wish to speak on the subject of: ❑ I do not wish to speak but would like to leave these comments for the Board to consider: Please see reverse for instructions and important information REQUEST TO SPEAK FORM (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. 2 Name, �9$�Z�i?9� /� . E•� I�'/.� Phone. Address: � 5��� .��Lt> /�ol/�� City: Please note that if you choose to provide your address and phone number, this information will become a public record of the Clerk of the Board in association with this meeting. 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Name: /�! l r ���/1 ��� Phone36 7 T I Address: ��� ����� �✓%t _ City: / Sd.�.r��4 (Address and pl1017e number are optional; please not that this card will become a public record kept on file with the Clerk of the Board in association with this meeting) I am speaking for myself or organization: CHECK ONE: ❑ I wish to speak on Agenda Ite I # p g Date: My comments will be: ❑ General ❑ For JC7"Against ❑ I wish to speak on the subject of: I ❑ I do not wish to speak but would like to leave these comments for the Board to consider: I Please see revel se for instructions and important information i REQUEST TO SPEAK FORM THREE 3 MINUTE LIMIT Complete this (form and place it in the box near the speakers' rostrum before addressing the Board. Name: 6wp)— Phone: �J�� �`�� `"6 71 Z-- Address: -7 7 �7 R2 City: Please note that if you choose to provide your address and phone number, this information will become a public record of the Clerk of the Board in association with this meeting. 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I am speaking for myself or organization: CHECK ONE: � 06 �I,wish to speak on Agenda Item # Date. �,/ My comments will be: ❑ General For.. F Against ❑ 1 wish to speak on the subject of: ❑ I do not wish to speak but would like to leave these comments for the Board to consider: Please see reverse r instructions and important information REQUEST TO SPEAK FORM J� ka` (THREE (3) MINUTE LIMIT) / ' Complete this form and place it in the box near the speakers' rostrum before addressing the Boa Name: L. (o t s c-,- Mie;. c ozy I Phone: - '510 L(31 "?-7-7t Address: R,5 J� i City: Zg,: 1?J C_�kJA_ Please note that if you choose to provide your address and phone number, this information will become a public record of the Clerk of the Board in association with this meeting. I am speaking for myself t/ or organization: CHECK ONE: E3 I,wish to speak on Agenda Item # S'7 Ok $S 33 Date: My comments will be:. ❑ General ❑ For ❑ Against ❑ I wish to speak on the subject of: I ❑ I do not wish to speak but would like to leave these comments for the Board to consider: Please see reverse for instructions and important information REQUEST TO SPEAK FORM I• (THREE (3) MINUTE LIMIT) t Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: 1 v4f::., 'DI & e) Phone: 2L Address: Ra-4yteLJCt i _ City: f �n b►' f@ Please note that if you choose to provide your address and phone number, this information will become a public record of the Clerk of the Board in association with this meeiting. I am speaking for myself or organization: CHECK ONE: / ❑ I,wish to speak on Agenda Item # SD O l 8 5 3 3 Date: My comments will be: ❑ General ❑ For ❑ Against ❑ I wish to speak on the subject of: ❑ I do not wish to speak but would like to leave these comments for the Board to consider: Please see reverse for instructions and important information u� 11 �uuo lu:�o rye �vl John Stoclaon In; 7 Live Oak Circle R ' El Sobrante, CA 94803 Darwin Myers, Community Development Department Contra Costa,County 651 Pine Street,North Wing, 4Floor Martinez, Ca 94553 March 20, 2006 Re: Subdivision SD018533 Dear Mr_ Myers, I strongly object to this proposed development. El Sobrante is already too crowded,too many houses are being built by developers who are trying to make profits with no considerations for those of us who live in the area and want to preserve the quality of our lies_ This development will increase traffic in the area and make our lives unliveable. Enough is enough, we want to preserve the natural environment and stop unlimited growth! Sincer y, 0 d-G J St ' I U4/II/LUUO IU:4J tAIII QUI Eloisa Mendoza 438 5. 25'x' Street Richmond, CA 94804 Darwin Myers, Community Development Department Contra Costa County 651 Pine Street, North Wing, 4* Floor Martinez, Ca 94553 March 20, 2006 Re: Subdivision 5DO18533 Dear Mr. Myers, Please do not approve the 40-home development. I am the mother of a three-year- old daughter who loves to play in parks and enjoy nature. She loves to look at birds and butterflies and flowers. If you destroy nature in order to build horses,you are destroying places where children can play and learn about nature_ Children are the future of our planet; we must make sure that the environment is a healthy place for them to grow up. Because I drive to EI SabraInte every day for work,I also am concerned about increased traffic resulting from 40 new homes.This traffic will slow down my commute and will make the roads more dangerous. Also, if you build 40 new homes, marry additional children will attend local schools, which will result in overcrowding. This will make it harder for the children to learn. I do not support this development; I hope you will reject it and turn the 10 acres into a beautiful park for everyone to enjoy, especially our children. Sincerely, Eloisa Mendoza cc: Mr. John Gioia, County Supervisor V4/11i LVV0 1V.4V rib 'cul Shirley DafFin 743 Bayview Court EI Sobrante, CA 94803 Darwin Myers, Community Development Department Contra Costa County 651 Pine Std, North Wing, Oh Floor Martinez, Ca 94553 Re: Subdivision SD018533 March 17, 2006 Dear Mr, Myers, My husband and I oppose this propossed development. Recently we were the victims of theft and vandalism on our street. We are opposed to a project which will increase the population in EI Sobrante without, in all probability, increasing law enforcm, in the area. Overpopulation will numerically increase the likelihood of theft, vandalism, and other forms of crime in our neighborhoods. Plant and animal wildlife is already vanishing at an alarming rate; the ecosystem needs to be protected, not destroyed. The project will also increase traffic in the area, which will mean it will take longer to get anywhere. It also seems likely that taxes will increase, My husband Eric and I enjoy living in B Sobrante. We have goats, as do our neighbors; other people in the neighborhood have chickens and horses. If this subdivision is approved,the rural quality of life in El Sobrante will be for 6"altered. Please do the right thing and reject this proposal. Respectfully yours, Shirley Daffin a VY! 11! 4VVV 1V JL 1'A7 Enc Daffin 743 Bayview Court EI Sobtante, CA 94803 Darwin Myers, Community Development Department Contra Costa County 651 Pine Street, North Wing, 4h Floor Martinez, Ca 94553 Re: Subdivision SD018533 March 20, 2006 Dear Mr. Myers, I am writing to urge you to reject this proposed development. My wife and I were recently the victims of theft and vandalism on our street. We are opposed to a project which will increase the population in ElSobrante without, in all probability, increasing law enforcement in the area. Overpopulation will numerically increase the likelihood of theft, vandalism, and other forms of crime in our neighborhoods. Plant and animal wildlife is already vanishing at an alarming rate; the ecosystem needs to be protected, not destroyed. The project will also increase traffic in the area, which will mean it will take longer to get anywhere. It also seems likely that taxes will increase. My wife and I enjoy living in EI Sobrante. We have goats, as do our neighbors; other people in the neighborhood have chickens and horses: If this subdivision is approved, the rural quality of life in El Sobrante will be forever altered. Please do the right thing and reject this proposal. Respectfully yours- Eric oursEric Daffin / v-iii. rvvv iv.vv a.a:a T-- � Robert E. Miller 4630 Appian Way,# 304 FI Sobrante, CA 94803 Darwin Myers, Community Development Department Contra Costa County 651 Pine Street, North Wing, a Floor Martinez,Ca 94553 Re: Subdivision 50018533 March 18, 2006 Dear Mr. Myers, I do not support this proposed development. EI Sobrante is already too crowded, there are too marry people and too many houses. When life becomes so crowded,everyone is movie stressed and the quality of our lives diminishes. The natural environment of birds and trees and green living things is capable of healing us and healing the world, which is presently tearing itself into pieces with war and injustice. We have a responsibility to the natural world to protect and tare for it, not.to destroy it. My three- year-,old goddaughter,who loves nature, has a right to grow up in a world which promotes and encourages life, not a world which destroys it. Please reject this development, for all of our sakes. ly yours, Robert E. Miller Cc. John Gioia, Contra Costa County Supervisor 04/11%2006 10:27 FAX 01 April 10, 2006 Jean Stewart 727 Bayview Court El Sobrante, CA 94803 Darwin Myers, Project Planner Community Development Department Contra Costa County. 651 Pine Street, North Wing, 4b Floor Martinez, Ca 94553 Re: Subdivision SDO18533 Dear Mr. Myers and the County Board of Supervisors, 1 understand that county staff are considering recommending that 34 homes be built on.the property in question. We who live in the community, whose lives would be profoundly altered by this development, have sat through hearing after hearing, resulting in the number of homes being slightly whittled down in response to our concerns_ The proposed 40 homes have now been reduced by 6, and we are expected to be grateful for this reduction. Supervisors, I know you've worked hard on this proposal &have spent a great many hours honestly and sincerely trying to weigh the concerns of the community against private property rights. But shearing a few houses off the total is a Solomonic solution. You are cutting the baby in half. And I believe that in your heart of hearts, you know this:If your homes bordered this proposed development and the quality of Xgur lives hung in the balance—the air you breathe, the water you drink,the stability of your homes, the noise pollution you hear and the traffic you struggle through dally, your peace of mind, your very sanity—I believe that your long-range vision would not be compromised;.you would understand the urgency and clarity of the issues in a much more immediate way. There is in the history of American jurisprudence an honorable concept known as the necessity defense, which states that under certain circumstances it is justifiable to break a given law in order to protect the greater good and to prevent a larger crime from being committed. If the necessity defense had existed when American colonists dumped quantities of tea into Boston Harbor in order to end taxation without representation, I'm sure they would have argued it in defense of their actions. It seems to me that"the greater good" must be protected here. We have a single wealthy landowner who wishes to make a profit off his property; under capitalism, his right to do so is upheld_ We all understand this; most of us do not dispute that right. But if, in making that profit, he compromises the quality of life and violates the rights of the surrounding community, then one has to ask whether it is not the responsibility of public officials to protect the larger community? And if the rights to clean air and water, the absence of noise pollution, and access to nature—to green open spaces have not yet been enshrined in an American.bill of environmental rights, the right to "the pursuit of happiness" is a cornerstone of the Declaration of Independence. a You have heard from dozens of citizens who have taken time off-from work to testify at countless hearings; you have received)hundreds of letters from El Sobrante residents who strenuously object.to the subdivision, who want the property preserved as green open space. At a time when virtually all green space in El Sobrante and throughout the nation is being gobbled up by developers driven by the profit motive, I entreat the Board of Supervisors to ISI protect"the greater good"by establishing a task force to explore.the possibility of purchasing this precious 10-acre jewel of creep woodlot, and hillside and setting it aside as a wildlife J preserve for the benefit & enjoyment of not dust one monied individual but ALL of us in El this precious 10-acre jewel of creek; woodlot, and hillside and setting it aside as a wildlife V preserve for the benefit& enjoyment of not just one monied individual but ALL of us in El n Sobrante. Sincerely yours, Jean Stewart Cc: Supervisor John Gioia o Office of the Clerk of the Board of Supervisors CONTRA COSTA COUNTY 651 Pine Street, Room 106 Martinez, CA 94553 Phone: 925.335.1900 Fax: 925.335.1913 i i Memo of I ra ns m i tta I Date: /1�d� Via : To: 5'� -�S r' First Class Mail IgFax: ' r- Overnight By: LA. ►..,e 3 3 S-Z 2a� " By Hand CC: Interoffice Mail No: ofwCo ies Document k I a cmc.. en,S- i Notes: I BINGHAM McCUTCHEN Cecily T. Talbert Direct Phone: (925) 975-5339 Direct Fax: (925) 975-1 1 5390 cecily.talbert@bingham.com Our File No.: 00003026931 April 7, 2006 CL APR 7 2006 OARD Via Hand Delivery cON-AO °S gCV1 ORS o. Contra Costa County Board of Supervisors Honorable John Gioia, Chair Bingham McCutchen LLP Honorable Gayle Uilkenj a Suite 21 Honorable Mary N. Piepho, Vice Chair 1333 Noah California Bled. Honorable Mark DeSaulnier PO Box v Honorable Federal Glover Walnut Creek, CA County Administration Building 945961270 651 Pine Street, Room X106 Martinez, CA 94553 925.937.8000 925.975.5390 fox Re: Subdivision 8533 - EI Sobrante Area Board of Supervisors Hearing of April 11, 2006 bingham.com Honorable Supervisors: Boston Hartford This letter is submitted on behalf of our.client, Mr. Sid Afshar, in response to the London Board's direction to staff on March 21, 2006 , to "develop findings" to justify a Los Angeles motion by the Board to remove "6 or 7" lots from the proposed 40-lot tentative New York subdivision map for the Board's approval on April 11, 2006. This requirement by Orange county the Board that the project be developed at a density lower than that permitted by Son Francisco the County's own General Plan and zoning law cannot be supported by the Silicon valley substantial evidence required by state law, and therefore both violates state law Tok o and constitutes an abuse of the Boards discretion. y Walnut Creek A. Background Washington The development application for this project was submitted to the County five years ago, on May 17; 2001.I It requested approval of a 44-lot subdivision in compliance with the County's General Plan and zoning. The application was deemed complete on November 1, 2002, having been reduced by the Applicant to 41 lots and having incorporated over 20 changes to accommodate requests by the County and numerous project neighbors and community groups. Subsequently, numerous additional changes were requested by the County and project neighbors, and agreed to by the Applicant. By the Applicant's.fourth revised plan, the project had been reduced to 40 lots, and the County prepared and circulated a Mitigated Negative Declaration which determined there were no significant impacts that could not be reduced to less than significant levels with mitigation. i Contra Costa County Board of Supervisors April 7, 2006 Page 2 I Environmental review-of the project under CEQA was subject to significant and extensive public comment. The project was approved with 40 lots by the County t Planning Commission, o n June 8, 2004. The Commission's decision was supported by the Mitigated Negative Declaration On June 17, 2004, the Commission's approval was appealed to the Board of Supervisors by project neighbors. Instead of affirming the Planning Commission's Bingham McCutchen LLP approval of the project, the Board determined, on July 13, 2004, that it would not binghom.com consider approval of the project until a full Environmental Impact Report ("EIR") had been prepared. This determination was based on arguments that the.project could have a significant environmental impact, notwithstanding the extensive modifications and mitigations already agreed to by the Applicant and determination by staff that there wouli be no significant environmental impacts. The subsequent environmental review process and preparation of the project Draft and Final EIR delayed the project by yet another year and a half and the Applicant incurred hundreds of thousands of dollars in expenses. The EIR again supported the prior conclusions of the Mitigated Negative Declaration. After mitigation, the 40-lot project would have no significant environmental impacts. In response to issues and concerns raised by the Board of Supervisors and project neighbors, the Applicant commissioned a series of technical studies and made further revisions to the project to accommodate yet further requests of the neighbors. The Draft and Final EIR analyzed the project's consistency with the General Plan and zoning at great length. Using the two different objective methods provided for calculating net acreage under the General Plan, the EIR concluded that the lowest density permitted under the General Plan would be 37 lots.' Included in t,e Final EIR was a 37-lot Reduced Project Alternative, which was identified as an "environmentally-superior alternative.,2 Although the Applicant will lose another three lots, he agreed to accept the changes set forth in the alternative. ' Depending on which objective method allowed under the General Plan is used for calculating net acreage, the General Plan allows a range of density from 42 to 60 units or from 37.5 to 54 residential lots. See County Draft EIR for Subdivision 8533 (August 2005), SC H #2003102107, p. 411-2. 2 Final EIR, pp. 14-24. i Contra Costa County Board of Supervisors April 7, 2006 Page 3 When the Board finally reconsidered the project on March 21, 2006, after almost five years of staff and neighborhood review, it did not approve the Applicant's project - not even the 37-lot Reduced Project Alternative.. Instead, the Board directed County staff toil,develop findings" to justify a motion by the Board to remove "6 or 7" more lots from the proposed 40-lot tentative subdivision map for Board approval on April 11, 2006. Among the chief rationales used by the Board to support its goal of conditioning project approval on a lower density, were desires to Bingham McCutchen «P provide more "public access" to privately owned open space areas. bingham.com B. Legal Standards for Reducing a Project's Density under Government Code section 65589.50) The California Government Code specifies that when a proposed housing development project "complies with applicable, objective general plan and zoning standards and criteria" in effect at the time that the project application is deemed complete, the local agency may not disapprove the project or "approve it upon the condition that the project be developed at a lower density' unless such a decision is supported by written findings supported by substantial evidence on the record that both of thefollowing conditions exist: (1) The housing development project would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density. As used in this paragraph, a "specific, adverse impact" means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete; and (2) There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified pursuant to paragraph (1), other than the . disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density. Government Code § 65589.50). As is further explained below, neither of these findings can possibly be supported by substantial evidence in the record before the Board concerning the Applicant's project. Contra Costa County Board of Supervisors April 7, 2006 Page 4 C. Project Complies with the Objective Standards and Contained in the County's General Plan and Zoning The project complies with all objective standards and criteria in the County's General Plan.3 The General Plan designates the project site SH (Single Family Residential - High Bingham McCutchen LLP Density) which allows 5;to 7.2 housing units per net acre. Under the County's most bingham.com conservative objective approach for calculating net acreage, this designation allows a range of density from 137.5 to 54 residential lots. Hence, the lowest density permitted under the General Plan would be 37 units - the same density presented by the EIR as the Reduced Project Alternative and identified as an "environmentally-superior alternative,,4 and agreed to by the Applicant at the Board's March 21, 2006 hearing. The project also complies with all objective standards and criteria in the County's Zoning Ordinances The zoning designation for the project site is Single-Family Residential with minimum standard parcel sizes of 7,000 square feet (R-7). Under the County's most conservative objective approach for calculating net acreage, this designation allows 46.7 lots. D. No Substantial Evidence Supports the Board's Bid to Further Reduce the Project The EIR thoroughly considered potential impacts to: land use and planning, transportation/traffic (including analyses of four additional intersections in the Final EIR), hydrology and water quality, geology and soils, biological resources, hazards and hazardous materials, aesthetics, cultural resources, noise, air quality, agricultural resources,(mineral resources, public services, recreation and public 3 Contra Costa County General Plan Land Use Element Map; A at p. 3-16; Draft EIR, pp. 4.1-2 -4.1-10. 4 Final EIR, pp. 14-24. s Contra Costa County Zoning Map; County Zoning Ordinance§ 84-6.602; Draft EIR, pp. 4.1-10 -4.1-13; Final EIR, pp. 14-15. i Contra Costa County Board of Supervisors April 7, 2006 Page 5 access, utilities, service systems and energy, population, and housing. In each and every instance it has concluded, based upon extensive reports and studies prepared over almost a five-year period, that the 37-lot project (or even the 40-lot project), would have no significant environmental impacts that could not be mitigated to less than significant level S.6, Simply put, there is no substantial evidence in the record to suggest that the project would have a "specific, adverse impact" upon the public health or safety. Without such evidence, the project,cannot Bingham McCutchen LLP s be disapproved under itate law. binghom.com Not only does the 37-lot Reduced Project Alternative have no specific adverse impacts, but it increases open space and results in even fewer impacts at a less- than-significant level. For this reason, it was identified in the Final EIR as an "environmentally-superior alternative" in addition to the No Project Alternative.' Any adoption by the Board of findings that conclude otherwise, made in effect to support a desire to further reduce the project by "6 or 7" lots would violate Government Code section 65589.50) and would constitute an abuse of the Board's discretion as a matter of law. As the Honorable Supervisor Gioia stated at the Board's meeting of March 21, 2006, the EIR is the "information [the Board has] to rely on in making this decision." Absent substantial evidence of a "specific, adverse impact" upon the public health or safety, the Board may not require reduction of the project by "6 or 7" lots. Any attempt to do so would be contrary to state law, violate the Applicant's rights in this case, and be subject to judicial review. Further, any attempt by the Board to condition project approval upon the dedication of access easements to the public to enjoy private open space would be an unlawful exaction in violation of the United States Constitution. Nollan v. California Coastal Commission, 483 U.S. 825 (1987) (holding that no "nexus" could be maintained between owners' development and permit condition requiring dedication of a lateral!access easement along the owners' private beach). 6 Draft EIR, pp. 2-1 -2-2 7 Final EIR, p. 14-24. Contra Costa County Board of Supervisors April 7, 2006 Page 6 In light of these facts an,d the rules of law applicable to the project, we urge the Board to comply with the mandates of state law and to follow the requirements of the County's own General Plan, Housing Element, and Zoning Ordinance, by refraining from further reducing the project by "6 or 7" lots and instead approving the FEIR's 37-lot Reduced Project Alternative. Sincerely yours, Bingham McCutchen LLP binghomam.com / Cecily T. Talbert cc: Silvano B. Marchesi, County Counsel Dennis M. Barry, County Community Development Director Catherine Kutsuris, Deputy Director, County Community Development Dept. Robert H. Drake, Principal Planner, County Community Development Dept. Darwin Myers, Planner, County Community Development Department Siavash Afshar 301775764 i P CDa c NCO ao cm CO)eA 01 G= p o CD co, x a ' � o 0 �o a TT J W P,- �I CD W V w o D z o'i n H µ crm Z"M v (a . f0 D<-1 Ib � O W m m ciA µ nDz �A 11 F` OfAm uS:s:s As.�ax� I O X) Z O CDC) rdi G0� O - O NZtpt O al 6111 J `� In O � O 1' W I