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HomeMy WebLinkAbout2008-01-16; Planning Commission; Resolution 63811 PLANNING COMMISSION RESOLUTION NO. 6381 2 A RESOLUTION OF THE PLANNING COMMISSION OF THE 3 CITY OF CARLSBAD, CALIFORNIA, APPROVING A HABITAT MANAGEMENT PLAN PERMIT TO ALLOW 4 IMPACTS ON NATIVE HABITATS FOR DREDGING AND 5 IMPROVEMENTS FOR ENCHANCED FLOOD CONTROL ON PORTIONS OF CALAVERA AND AGUA HEDIONDA 6 CREEKS ON PROPERTY GENERALLY LOCATED AT AND NEAR THE INTERSECTION OF EL CAMINO REAL AND 7 CANNON ROAD AND IN A PORTION OF RANCHO CARLSBAD IN LOCAL FACILITIES MANAGEMENT ZONES 8, 14, 15, AND 24. 9 CASE NAME: AGUA HEDIONDA AND CALAVERA CREEKS 10 CASE NO: HMPP 06-03 1! WHEREAS, City of Carlsbad, "Developer," has filed a verified application with 12 the City of Carlsbad regarding property owned by Carlsbad Canterbury Association, Evans 13 Point Homeowners Association, Calavera Hills II LLC, and the multiple owners of the 14 1 <. Rancho Carlsbad residential community, "Owners," with easements granted or dedicated to 16 the City of Carlsbad for road, drainage, open space, sewer, and maintenance purposes and 17 described as 18 A portion of Lot 148 of City of Carlsbad Tract No 96-07, Kelly 19 Ranch Village E, in the City of Carlsbad, County of San Diego, State of California, according to map thereof No. 13715, as 20 filed in the Office of the County Recorder of San Diego County on December 31,1998; a portion of Lot 195 of City of Carlsbad 21 Tract No. 91-3, Evans Point, in the City of Carlsbad, County of 22 San Diego, State of California, according to map thereof No. 13189, as filed in the Office of the County Recorder of San 23 Diego County on February 10, 1995; a portion of Parcel 1 of City of Carlsbad Minor Subdivision 96-08 in the City of 24 Carlsbad County of San Diego, State of California, according to Parcel Map 17985, as filed in the Office of the County Recorder of San Diego County on February 4, 1998, and; 26 Parcel 2 and a portion of the remainder parcel of City of Carlsbad Minor Subdivision 92-01, Robertson Ranch, in the 27 City of Carlsbad, County of San Diego, State of California, according to map thereof No. 19804, as filed in the Office of the 2° County Recorder of San Diego County on August 3,2005 ("the Property"); and WHEREAS, the City of Carlsbad has received authorization to issue permits to 2 impact various sensitive species and habitats, including species listed as Threatened or 3 Endangered, by virtue of Incidental Take Permit No. TE022606-0 from the U.S. Fish and4 5 Wildlife Service and Natural Community Conservation Planning Permit No. 2835-2004-001-05; 6 and 7 WHEREAS, the authority stated above is based on a plan titled Habitat g Management Plan for Natural Communities in the City of Carlsbad, Final Approval November 9 2004, referred to as the HMP, and approval of all projects is contingent on a finding of 10 consistency with the HMP; and ,2 WHEREAS, said verified application by Developer constitutes a request for a 13 Habitat Management Plan Permit pursuant to the City's authority as contained in Chapter 14 21.210 of the Zoning Ordinance, on file in the Planning Department; and 15 WHEREAS, the Planning Commission did on January 16, 2008, hold a duly 16 noticed public hearing as prescribed by law to consider said request; and 17 WHEREAS, at said hearing, upon hearing and considering all testimony and18 i n arguments, if any, of all persons desiring to be heard, said Commission considered all factors 20 relating to the Habitat Management Plan Permit. 21 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission as follows: 23 A) That the foregoing recitations are true and correct. 24 B) That the AGUA HEDIONDA AND CALAVERA CREEKS project is consistent with the HMP as described in the following findings. 26 C) That based on the evidence presented at the hearing, the Commission 27 APPROVES the Habitat Management Plan Permit, HMPP 06-03, for the AGUA HEDIONDA AND CALAVERA CREEKS project based on the following 28 findings and subject to the following conditions: PCRESONO. 6381 -2- Findings: 2 That the Agua Hedionda and Calavera Creeks project is shown in Figure 28 of the 3 approved HMP as "development area" east of El Camino Real and "development area" and "existing Hardline Preserve area" west of El Camino Real. However, the portion of the creek shown as within the existing Hardline Preserve area is actually not in a Hardline Preserve based on a detailed examination of recorded documents affecting the area. 2. That authorization to take species of concern, through the take of 0.08 acre of Willow Riparian Forest, is subject to continuous compliance with all provisions of the Habitat „ Management Plan for Natural Communities in the City of Carlsbad (HMP), the Citywide Incidental Take Permit issued for the HMP, the Implementing Agreement, the Terms and 9 Conditions of the Incidental Take Permit, and the Biological Opinion. Biological impacts associated with the 2006 emergency dredging of Agua Hedionda and Calavera 10 creeks are mitigated separately from those impacts associated with the project. That authorization to take species of concern is subject to continuous compliance with all 12 mitigation measures as stated in the Mitigation Monitoring and Reporting Program for EIR 04-02 as contained in Planning Commission Resolution 6376 and is subject to 13 all conditions contained in Planning Commission Resolutions No. 6376, 6379 and 6380 for those other approvals, including but not limited to recordation of conservation easements over all conserved areas and management and monitoring in perpetuity by a i r qualified conservation entity. 16 4. That authorization to take species of concern is subject to continuous compliance with the provisions of Volumes I, II and III of the Multiple Habitat Conservation Program and the Final Environmental Impact Statement/Environmental Impact Report for Threatened and Endangered Species Due to Urban Growth within the Multiple Habitat Conservation Program Planning Area (SCH No. 93121073). 19 That all impacts to habitat and all take of species will be incidental to otherwise lawful 20 activities related to construction, operation, and maintenance of the Agua Hedionda/Calavera Creeks project in that the dredging and improvements to enhance the flood control capabilities of existing drainage facilities are acceptable 22 activities and are subject to approval of all required permits before work occurs. 23 6. The development project complies with the purpose and the intent provisions of Carlsbad Municipal Code Section 21.210.10 in that the Agua Hedionda and Calavera Creeks project is consistent with (a) the General Plan Land Use and Public Safety Elements ,. because the General Plan authorizes existing drainage infrastructure and planned capacity improvements to support all designated land uses in the city and establishes 26 policies to provide flood protection to developed areas; (b) the Open Space and Conservation Element in that impacts to sensitive habitat are mitigated to a level of 27 insignificance and are avoided if possible; (c) the Habitat Management Plan in that the project proposes appropriate design features and mitigation measures as identified in the Final EIR 04-02 to reduce biological impacts to a level of insignificance. PCRESONO. 6381 -3- 7. That the project design as approved by the City of Carlsbad has avoided and minimized 2 impacts to wildlife habitat and species of concern to the maximum extent practicable. Specifically, (a) there is no feasible alternative to dredging the creeks or impacting 3 wetlands that would provide flood protection to Rancho Carlsbad to the extent feasible and restore 100-year flood capacity in the creeks; (b) all biological impacts 4 can be reduced to a level of insignificance through mitigation measures that require r among other things, best management practices to limit indirect temporary impacts due to construction (e.g., dust, noise, water quality) and creation/restoration/and 6 enhancement of wetland and riparian habitat; (c) natural vegetation would be retained as much as possible, such as along creek banks; (d) on-site mitigation could 7 potentially occur on the creek banks, where feasible, to restore natural vegetation in place of existing exotic or ornamental vegetation; (e) the long-term maintenance plan would promote the growth of native vegetation on the creek bank where 9 appropriate and discourage establishment of invasive exotic, nonnative, and ornamental vegetation via maintenance activities; (f) the majority of the project is in 10 area the Habitat Management Plan indicates is "developed area" and none of the project is in a Hardline Preserve Area, and: (g) the project is consistent with Local 11 Coastal Program polices, including those regarding wetland impacts, vegetation 12 preservation, and sediment and erosion control. 13 8. That adequate funding has been provided to address changed circumstances and adaptive management needs that may be reasonably anticipated in the future, consistent with the 14 HMP Implementing Agreement. 9. That the incidental take of species of concern as a result of the project will not 1 g appreciably reduce the likelihood of survival and recovery of the species in the wild due to compliance with all of the above stated requirements, as well as ongoing monitoring 17 and reporting to the wildlife agencies and the public. 1 8 10. That the Planning Director is authorized to sign the Take Permit. 19 Conditions; 20 Note: Unless otherwise specified herein, all conditions shall be satisfied prior to issuance of a 21 grading permit or start of construction, whichever occurs first. 22 22 1. If any of the following conditions fail to occur, or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so 24 implemented and maintained according to their terms, the City shall have the right to revoke or modify all approvals herein granted; deny or further condition issuance of all 25 future building permits; deny, revoke, or further condition all certificates of occupancy issued under the authority of approvals herein granted; record a notice of violation on the property title; institute and prosecute litigation to compel their compliance with said 27 conditions or seek damages for their violation. No vested rights are gained by Developer or a successor in interest by the City's approval of this Habitat Management Plan 28 Permit. PCRESONO. 6381 -4- 2. Staff is authorized and directed to make, or require the Developer to make, all corrections 2 and modifications to the Habitat Management Plan Permit documents, as necessary, to make them internally consistent and in conformity with the final action on the project. 3 Development shall occur substantially as shown on the approved Exhibits. Any proposed development different from this approval, shall require an amendment to this approval. e 3. Developer/Operator shall and does hereby agree to indemnify, protect, defend, and hold harmless the City of Carlsbad, its Council members, officers, employees, agents, and 6 representatives, from and against any and all liabilities, losses, damages, demands, claims and costs, including court costs and attorney's fees incurred by the City arising, directly 7 or indirectly, from (a) City's approval and issuance of this Habitat Management Plan „ Permit, (b) City's approval or issuance of any permit or action, whether discretionary or nondiscretionary, in connection with the use contemplated herein, and 9 (c) Developer/Operator's installation and operation of the facility permitted hereby, including without limitation, any and all liabilities arising from the emission by the 10 facility of electromagnetic fields or other energy waves or emissions. This obligation survives until all legal proceedings have been concluded and continues even if the City's approval is not validated. 12 4. Developer shall comply with all applicable provisions of federal, state, and local laws and 13 regulations in effect at the time of building permit issuance. 14 5. If any condition for construction of any public improvements or facilities, or the payment of any fees in-lieu thereof, imposed by this approval or imposed by law on this Project are challenged, this approval shall be suspended as provided in Government Code Section 16 66020. If any such condition is determined to be invalid, this approval shall be invalid unless the City Council determines that the project without the condition complies with 17 all requirements of law. 1 8 6. This approval is granted subject to the certification, adoption, and approval of the 19 Environmental Impact Report (EIR 04-02) and Mitigation Monitoring and Reporting Program, CDP 06-04 and SUP 06-02, and is subject to all conditions contained in 20 Planning Commission Resolutions No. 6376, 6379, and 6380 for those other approvals incorporated herein by reference.21 22 7. Developer shall implement, or cause the implementation of, the EIR 04-02 Project Mitigation Monitoring and Reporting Program. 23 8. This project shall comply with all conditions and mitigation measures which are required 24 as part of the Zone 8, 14, 15, and 24 Local Facilities Management Plans and any amendments made to those Plans prior to the issuance of grading permits. £*3 26 9. This approval shall become null and void if grading permits are not issued or construction is not started for this project within 24 months from the date of project approval. 27 10. As a condition of this approval* applicant must comply with the requirements of all regulatory agencies having jurisdiction over the project and any mitigation requirements of the environmental documents for the project. Pursuant to Government Code section PCRESONO. 6381 -5- 14 65871 and Carlsbad Municipal Code Title 20, Chapter 20.04, section 20.04.140, applicant 2 shall grant a conservation easement for the conservation, protection, and management of fish, wildlife, native plants, and the habitat necessary for biologically sustainable 3 populations of certain species thereof, in accordance with the City's adopted Habitat Management Plan. 11. Prior to issuance of a grading permit or clearing of any habitat, whichever occurs first, the 5 Developer shall take the following actions to the satisfaction of the Planning Director in relation to the open space lot(s) which are being conserved for natural habitat in " conformance with the City's Habitat Management Plan: 7 a. Select a conservation entity, subject to approval by the City, that possesses qualifications to manage the open space lot(s) for conservation purposes. 8 b. Prepare a Property Analysis Record (PAR) or other method acceptable to the City 9 for estimating the costs of management and monitoring of the open space lot(s) in perpetuity in accordance with the requirements of the North County Multiple Habitats Conservation Plan and the City's Open Space Management Plan. 11 c. Based on the results of the PAR, provide a non-wasting endowment or other financial mechanism acceptable to the Planning Director and conservation entity, if any, in an amount sufficient for management and monitoring of the open space I., lot(s) in perpetuity. d. Record a Conservation Easement over the open space lot(s). e. Prepare a Preserve Management Plan which will ensure adequate management of 15 the open space lot(s) in perpetuity. 12. Long term maintenance of the project portions of Agua Hedionda and Calavera creeks is approved and shall occur according to the (1) "Monitoring and 17 Maintenance Plan for Agua Hedionda and Calavera Creeks Dredging and Improvements Project" contained in Appendix 6 of the Final EIR 04-02; (2) the Mitigation Monitoring and Reporting Program; and (3) these conditions of approval. 20 21 22 23 24 25 26 27 28 PCRESONO. 6381 -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE Please take NOTICE that approval of your project includes the "imposition" of fees, dedications, reservations, or other exactions hereafter collectively referred to for convenience as "fees/exactions." You have 90 days from date of final approval to protest imposition of these fees/exactions. If you protest them, you must follow the protest procedure set forth in Government Code Section 66020(a), and file the protest and any other required information with the City Manager for processing in accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or annul their imposition. You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning, zoning, grading, or other similar application processing or service fees in connection with this project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a NOTICE similar to this, or as to which the statute of limitations has previously otherwise expired. PASSED, APPROVED, AND ADOPTED at a regular meeting of the planning Commission of the City of Carlsbad, California, held on January 16, 2008 by the following vote, to wit: AYES: Chairperson Baker, Commissioners Boddy, Dominguez, Douglas, Montgomery, and Whitton NOES: ABSENT: Commissioner Cardosa ABSTAIN: JULIE BAKER, Chairperson CARLSBADJLANNING COMMISSION ATTEST: ILX. DON NEU Planning Director PCRESONO. 6381 -7-