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HomeMy WebLinkAbout2008-11-05; Planning Commission; Resolution 65071 PLANNING COMMISSION RESOLUTION NO. 6507 2 A RESOLUTION OF THE PLANNING COMMISSION OF THE 3 CITY OF CARLSBAD, CALIFORNIA, APPROVING A HABITAT MANAGEMENT PLAN PERMIT TO ALLOW THE 4 INCIDENTAL TAKE OF SPECIES OF CONCERN FOR THE 5 SEASCAPE PROJECT, ON PROPERTY GENERALLY LOCATED ON THE NORTHEAST CORNER OF BLACK RAIL 6 ROAD AND AVENA COURT EAST IN LOCAL FACILITIES MANAGEMENT ZONE 20. 7 CASE NAME: SEASCAPE CASE NO: HMP 07-098 9 WHEREAS, Rajeev Bhatia, "Developer," has filed a verified application with 10 the City of Carlsbad regarding property owned by Ron Vandermooren and Rajeev Bhatia, "Owner," described as: 12 Parcel IB: 13 The Southwest Quarter of the Southwest Quarter of the 14 Northwest Quarter of the Northeast Quarter of Section 27, 1 Township 12 South, Range 4 West, San Bernadino Base and Meridian, in the City of Carlsbad, County of San Diego, State 16 of California, according to the official plat thereof; and 17 Parcel 2B: 18 The Southeast Quarter of the Southwest Quarter of the 19 Northwest Quarter of the Northeast Quarter of Section 27, Township 12 South, Range 4 West, San Bernadino Base and 20 Meridian, in the City of Carlsbad, County of San Diego, State of California, according to the official plat thereof; and 21 22 Parcel 3B: 23 An easement for road and public utility purposes over, under, upon and across the westerly 30 feet of the south half of the 24 Northwest Quarter of the Northwest Quarter of the Northeast Quarter of Section 27, Township 12 South, Range 4 West, San Bernadino Base and Meridian, in the City of Carlsbad, County 25 of San Diego, State of California, according to the official plat thereof; and 27 Parcel 4B: 28 An easement for road and public utility purposes over, under, along and across the westerly 30 feet of the Northwest Quarter of the Southwest Quarter of the Northwest Quarter of Section 2 27, Township 12 South, Range 4 West, San Bernadino Base and Meridian, in the City of Carlsbad, County of San Diego, 3 State of California, according to the official plat thereof 4 ("the Property"); and WHEREAS, the City of Carlsbad has received authorization to issue permits to 6 impact various sensitive species and habitats, including species listed as Threatened or 7 Endangered, by virtue of Incidental Take Permit No. TE022606-0 from the U.S. Fish and o 9 Wildlife Service and Natural Community Conservation Planning Permit No. 2835-2004-001-05; 10 and ** WHEREAS, the authority stated above is based on a plan titled Habitat 12 Management Plan for Natural Communities in the City of Carlsbad, Final Approval November 13 2004, referred to as the HMP, and approval of all projects is contingent on a finding of 14 consistency with the HMP; and 16 WHEREAS, said verified application by Developer constitutes a request for a 17 Habitat Management Plan Permit pursuant to the City's authority as contained in Chapter * ° 21.210 of the Zoning Ordinance, on file in the Planning Department; and 19 WHEREAS, the Planning Commission did on November 5, 2008, consider said 20 request; and 21 WHEREAS, at said hearing, upon hearing and considering all testimony and 23 arguments, if any, of all persons desiring to be heard, said Commission considered all factors 24 relating to the Habitat Management Plan Permit. 25 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning 26 Commission as follows: 27 A) That the foregoing recitations are true and correct. 28 PC RESO NO. 6507 -2- 1 B) That the SEASCAPE - HMP 07-09 project is consistent with the HMP as 2 described in the following findings. 3 C) That based on the evidence presented at the hearing, the Commission APPROVES the Habitat Management Plan Permit, HMP 07-09, for SEASCAPE based on the following findings and subject to the following conditions: Findings: 6 1. That the SEASCAPE project is shown in Figure 28 of the approved HMP as a 7 "Proposed Standards Area" adjacent to an "Existing Hardline Conservation Area". o 2. That authorization to take species of concern, through the take of 2.62 acres of 9 Agricultural Lands, 2.10 acres of Disturbed Lands, and 0.33 acres of Developed Lands is subject to continuous compliance with all provisions of the Habitat 10 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 Conditions of the Incidental Take Permit, and the Biological Opinion. 12 3. That authorization to take species of concern is subject to continuous compliance with all 13 mitigation measures as stated in the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program, GPA 05-11, ZC 05-10, LCPA 05-06, CT 05-18, 14 PUD 05-14, SDP 05-12, CDP 05-37, HDP 06-02, and HMP 07-09, and is subject to all ,r conditions contained in Planning Commission Resolutions No. 6498, 6499, 6500, 6501, 6502, 6503, 6504, 6505, 6506, and 6507 for those other approvals, including but not 16 limited to recordation of conservation easements over all conserved areas and management and monitoring in perpetuity by a qualified conservation entity. 17 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 19 Final Environmental Impact Statement/Environmental Impact Report for Threatened and Endangered Species Due to Urban Growth within the Multiple Habitat Conservation 20 Program Planning Area (SCH No. 93121073). 91 5. That all impacts to habitat and all take of species will be incidental to otherwise lawful 22 activities related to construction and operation of the SEASCAPE project. 23 6. That the project design as approved by the City of Carlsbad has avoided and minimized impacts to wildlife habitat and species of concern to the maximum extent practicable in 24 that the residential development observes a 20 ft. upland habitat buffer from the edge of the existing HMP Hardline Conservation Area located to the east, and in order to prevent negative effects on the adjacent HMP Hardline Conservation Area, 26 mitigation measures have been included with the project to address the interface between the proposed development and the existing habitat, which include fire 27 management; erosion control; landscaping restrictions; fencing, signage, and lighting restrictions; and predator and exotic species control.28 PC RESO NO. 6507 -3- 7. That adequate funding has been provided to address changed circumstances and adaptive 2 management needs that may be reasonably anticipated in the future, consistent with the HMP Implementing Agreement. 3 8. That the incidental take of species of concern as a result of the project will not 4 appreciably reduce the likelihood of survival and recovery of the species in the wild due 5 to compliance with all of the above stated requirements, as well as ongoing monitoring and reporting to the wildlife agencies and the public. 6 9. That the Planning Director is authorized to sign the Take Permit. 7 10. The Planning Commission hereby finds that all development in Carlsbad benefits from the Habitat Management Plan, which is a comprehensive conservation plan and 9 implementation program that will facilitate the preservation of biological diversity and provide for effective protection and conservation of wildlife and plant species while 10 continuing to allow compatible development in accordance with Carlsbad's Growth Management Plan. Preservation of wildlife habitats and sensitive species is required by *• the Open Space and Conservation Element of the City's General Plan which provides for 12 the realization of the social, economic, aesthetic and environmental benefits from the preservation of open space within an increasingly urban environment. Moreover, each 13 new development will contribute to the need for additional regional infrastructure that, in turn, will adversely impact species and habitats. The In-Lieu Mitigation Fee imposed on 14 all new development within the City is essential to fund implementation of the City's Habitat Management Plan. However, in accordance with the Mello II Segment of the Local Coastal Program, the applicant is instead conditioned to pay an Agricultural 16 Conversion Mitigation Fee on a per acre basis, to convert the entire project site (5.05 acres) from agricultural lands to residential development. 17 11. The Planning Commission of the City of Carlsbad does hereby find: in a. it has reviewed, analyzed, and considered Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program for SEASCAPE - GPA 05- 20 11/ZC 05-10/LCPA 05-06/CT 05-18/PUD 05-14/SDP 05-12/CDP 05-37/HDP 06-02/HMP 07-09, the environmental impacts therein identified for this project 2* and said comments thereon, and the Program, on file in the Planning Department, 22 prior to RECOMMENDING ADOPTION of the project; and 23 b. the Mitigated Negative Declaration and the Program have been prepared in accordance with requirements of the California Environmental Quality Act, the 24 State Guidelines and the Environmental Protection Procedures of the City of Carlsbad; and £j 3 26 c. they reflect the independent judgment of the Planning Commission of the City of Carlsbad; and 27 d. based on the EIA Part II and comments thereon, the Planning Commission, finds ^° that there is no substantial evidence the project will have a significant effect on the environment. PC RESO NO. 6507 -4- 12. The Planning Commission has reviewed each of the exactions imposed on the Developer 2 contained in this resolution, and hereby finds, in this case, that the exactions are imposed to mitigate impacts caused by or reasonably related to the project, and the extent and the 3 degree of the exaction is in rough proportionality to the impact caused by the project. . ^ Conditions: 1. If any of the following conditions fail to occur; or if they are, by their terms, to be 6 implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to 7 revoke or modify all approvals herein granted; deny or further condition issuance of all 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 9 property title; institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. No vested rights are gained by Developer 10 or a successor in interest by the City's approval of this Habitat Management Plan Permit.11 , 2 2. Staff is authorized and directed to make, or require the Developer to make, all corrections and modifications to the Habitat Management Plan Permit documents, as necessary to 13 make them internally consistent and in conformity with the final action on the project. Development shall occur substantially as shown on the approved Exhibits. Any proposed 14 development different from this approval, shall require an amendment to this approval. 3. If any condition for construction of any public improvements or facilities, or the payment 16 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 17 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 all requirements of law. 19 4. Developer/Operator shall and does hereby agree to indemnify, protect, defend and hold 20 harmless the City of Carlsbad, its Council members, officers, employees, agents, and representatives, from and against any and all liabilities, losses, damages, demands, claims 21 and costs, including court costs and attorney's fees incurred by the City arising, directly 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 23 non-discretionary, in connection with the use contemplated herein, and (c) Developer/Operator's installation and operation of the facility permitted hereby, including 24 without limitation, any and all liabilities arising from the emission by the 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 26 validated. 27 5. This approval is granted subject to the approval of a Mitigated Negative Declaration and Mitigation Monitoring & Reporting Program, GPA 05-11, ZC 05-10, LCPA 05- 28 06, CT 05-18, PUD 05-14, SDP 05-12, CDP 05-37, and HDP 06-02 and is subject to all conditions contained in Planning Commission Resolutions No. 6498, 6499, 6500, 6501, PC RESO NO. 6507 -5- 6502, 6503, 6504, 6505, and 6506, for those other approvals incorporated herein by 2 reference. 3 6. This approval shall become null and void if building permits are not issued for this project within two (2) years of Coastal Commission approval of LCPA 05-06.4 5 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." 8 You have 90 days from date of final approval to protest imposition of these fees/exactions. If 9 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. 12 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, 14 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 15 NOTICE similar to this, or as to which the statute of limitations has previously otherwise expired. 16 17 18 19 20 21 22 23 24 25 26 27 28 PC RESO NO. 6507 -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 PASSED, APPROVED AND ADOPTED at a regular meeting of the Planning Commission of the City of Carlsbad, held on November 5, 2008, by the following vote, to wit: AYES: NOES: Commissioners Baker, Boddy, Cardosa, Dominguez, Montgomery, and Chairperson Whitton ABSENT: Commissioner Douglas ABSTAIN: FRANK H. WHITTON, Chairperson CARLSBAD PLANNING COMMISSION ATTEST: DON NEU Planning Director PC RESO NO. 6507 -7-