HomeMy WebLinkAbout2008-01-16; Planning Commission; Resolution 63811 PLANNING COMMISSION RESOLUTION NO. 6381
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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
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Point Homeowners Association, Calavera Hills II LLC, and the multiple owners of the
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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
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impact various sensitive species and habitats, including species listed as Threatened or
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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
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Management Plan for Natural Communities in the City of Carlsbad, Final Approval November
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2004, referred to as the HMP, and approval of all projects is contingent on a finding of
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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
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noticed public hearing as prescribed by law to consider said request; and
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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:
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A) That the foregoing recitations are true and correct.
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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:
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Findings:
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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).
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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.
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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;
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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.
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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.
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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.
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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.
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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-
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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.
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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.
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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-