HomeMy WebLinkAbout2009-08-19; Planning Commission; Resolution 66361 PLANNING COMMISSION RESOLUTION NO. 6636
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A RESOLUTION OF THE PLANNING COMMISSION OF THE
3 CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING
APPROVAL OF A HABITAT MANAGEMENT PLAN PERMIT
4 AMENDMENT TO ALLOW INCIDENTAL AND TEMPORARY
5 IMPACTS TO SENSITIVE HABITATS AND THE TAKE OF
SPECIES OF CONCERN FOR THE CONSTRUCTION OF THE
6 CARLSBAD SEA WATER DESALINATION PLANT AND
APPURTENANT FACILITIES, INCLUDING DESALINATED
7 WATER CONVEYANCE PIPELINES AND FLOW CONTROL
FACILITIES, AT THE ENCINA POWER STATION AND ON
8 VARIOUS PROPERTIES AND ROADWAYS WITHIN THE
9 CITY OF CARLSBAD IN LOCAL FACILITIES
MANAGEMENT ZONES 1,3, 5, 6, 8, 13, 16, 17, AND 18.
10 CASE NAME: DESALINATION PROJECT CHANGES
CASE NO: HMP 05-08(A)11
12 WHEREAS, Poseidon Resources (Channelside) LLC, "Developer," has filed a
13 verified application with the City of Carlsbad regarding property owned by various owners,
14 "Owners," described as
Properties and existing street rights of way in the Northwest,
16 Northeast, and Southeast quadrants of the City of Carlsbad,
which include Avenida Encinas, Cannon Road, Faraday
17 Avenue, South Melrose Drive, Palomar Airport Road,
Lionshead Avenue and Alga Road and various properties,
including those identified by Assessor's Parcel Numbers 210-
}9 010-10, 210-010-41, 210-010-42, 210-010-43, 210-011-05, 221-
014-06, 221-014-07, 213-300-16, 213-300-17, 221-813-01, 221-
20 830-03, 222-560-48, 222-560-49, 222-151-74, and 222-470-15
21 ("the Property"); and
22 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 and
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2£ Wildlife Service and Natural Community Conservation Planning Permit No. 2835-2004-001-05;
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2" WHEREAS, the authority stated above is based on a plan titled Habitat
Management Plan for Natural Communities in the City of Carlsbad, Final Approval November
2004, referred to as the HMP, and approval of all projects is contingent on a finding of
2 consistency with the HMP; and
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WHEREAS, said verified application by Developer constitutes a request for a
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<- Habitat Management Plan Permit Amendment pursuant to the City's authority as contained in
6 Chapter 21.210 of the Zoning Ordinance, on file in the Planning Department; and
7 WHEREAS, the Planning Commission did on August 19, 2009, consider said
request; and
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WHEREAS, at said hearing, upon hearing and considering all testimony and
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arguments, if any, of all persons desiring to be heard, said Commission considered all factors
, 2 relating to the Habitat Management Plan Permit Amendment.
13 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning
14 Commission as follows:
A) That the foregoing recitations are true and correct.
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B) That the DESALINATION PROJECT CHANGES project is consistent with
17 the HMP as described in the following findings.
18 C) That based on the evidence presented at the hearing, the Commission
19 RECOMMENDS APPROVAL of the Amendment to the Habitat Management
Plan Permit, HMP 05-08(A), for the DESALINATION PROJECT CHANGES
20 project based on the following findings and subject to the following conditions:
21 Findings:
22 1. That the Carlsbad Seawater Desalination Plant and appurtenant facilities, including
23 desalinated water conveyance pipelines and flow control facilities, at the Encina Power
Station and on various properties and roadways, are shown in Figure 28 of the approved
24 HMP as "Development Area."
2. That authorization to temporarily impact sensitive habitats and take of species of
25 concern, through the temporary removal of Coastal Sage Scrub (disturbed and
undisturbed) and take of coastal California gnatcatcher is subject to continuous
27 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 Conditions of the Incidental Take Permit,
and the Biological Opinion.
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3. That authorization to temporarily impact sensitive habitats and take of species of
2 concern is subject to continuous compliance with all mitigation measures as stated in the
Mitigation Monitoring and Reporting Program adopted by City Council Resolution
3 2006-156 and is subject to all conditions contained in Planning Commission Resolutions
No. 6631, 6632, 6633, 6634, 6635, and 6092 for those other approvals, including but not
limited to recordation of conservation easements over all conserved areas and
c management and monitoring in perpetuity by a qualified conservation entity.
6 4. That authorization to temporarily impact sensitive habitats and take of species of
concern is subject to continuous compliance with the provisions of Volumes I, II and III
7 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
9 No. 93121073).
10 5. That all temporary impacts to habitat and all take of species will be incidental to
otherwise lawful activities related to construction and operation of the Desalination
Project Changes project in that project impacts are temporary and are related to
12 construction of the Desalination Project Changes project; and the authorization to
take species of concern is subject to continuous compliance with all provisions of the
13 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 Conditions of the Incidental Take Permit, the Biological
,<- Opinion, and the Mitigation and Monitoring Program for Final EIR 03-05 as
adopted by City Council Resolution 2006-156.
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6. That the project design as approved by the City of Carlsbad has avoided and minimized
17 impacts to wildlife habitat and species of concern to the maximum extent practicable.
Specifically; (a) all impacts to sensitive habitat and covered species are temporary
and habitat disturbed will be revegetated to the preconstruction condition and
19 mitigated at required ratios; (b) the project affects disturbed and isolated patches of
sensitive habitat (disturbed and undisturbed coastal sage scrub) in developed areas
20 at the Encina Power Station; (c) the potential for direct impacts on coastal
California gnatcatchers shall be mitigated by restricting the clearing of coastal sage
scrub outside of the gnatcatcher breeding season; (d) temporary impacts on non-
22 native habitats (i.e., disturbed habitat), are subject to payment of a fee pursuant to
the Habitat Management Plan Mitigation Fee; (e) the pipeline alignments proposed
23 for construction off-site of the Encina Power Station, including the new alignments
and the flow control facilities studied in the EIR 03-05(A), the Addendum to Final
24 EIR 03-05, do not have impact wildlife habitats and species of concern as they
would be constructed within existing road rights of way and in already developed or
disturbed areas; (f) the Desalination Project Changes project does not propose any
26 impacts to wildlife habitat and species of concern not already analyzed in Final EIR
03-05, and, in fact, will result in fewer such impacts than those terrestrial biological
27 impacts identified in the Mitigation and Monitoring Program for Final EIR 03-05
as adopted by City Council Resolution 2006-156; and (g) the project is subject to
mitigation measures requiring best management practices to limit indirect
temporary impacts due to construction (e.g., dust, noise, water quality).
PC RESO NO. 6636 -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.
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8. That the authorization to temporarily impact sensitive habitats and incidental take of
4 species of concern as a result of the project will not appreciably reduce the likelihood of
c survival and recovery of the species in the wild due to compliance with all of the above
stated requirements, as well as ongoing monitoring and reporting to the wildlife agencies
6 and the public.
7 9. That the Planning Director is authorized to sign the Take Permit.
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10. The Planning Commission hereby finds that all development in Carlsbad benefits from
9 the Habitat Management Plan for Natural Communities in the City of Carlsbad, Final
Approval November 2004 (HMP), and USFWS Incidental Take Permit No.
10 TE022606-0, which is a comprehensive conservation plan and implementation program
that will facilitate the preservation of biological diversity and provide for effective
protection and conservation of wildlife and plant species while continuing to allow
,2 compatible development in accordance with Carlsbad's Growth Management Plan. The
Carlsbad City Council's approval of and issuance of the HMP Permit for the project
13 satisfies the project's permitting requirements under the Endangered Species Act
and no further approvals from the USFWS are required. .Preservation of wildlife
14 habitats and sensitive species is required by the Open Space and Conservation Element of
the City's General Plan which provides for the realization of the social, economic,
aesthetic and environmental benefits from the preservation of open space within an
16 increasingly urban environment. Moreover, each new development will contribute to the
need for additional regional infrastructure that, in turn, will adversely impact species and
17 habitats. The In-Lieu Mitigation Fee imposed on all new development within the City is
essential to fund implementation of the City's Habitat Management Plan.18
19 Conditions;
20 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
21 implemented and maintained according to their terms, the City shall have the right to
99 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
23 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
24 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
Permit Amendment other than those described in the amended Development Agreement
26 (DA05-01(A)).
27 2. Staff is authorized and directed to make, or require the Developer to make, all corrections
and modifications to the Habitat Management Plan Permit Amendment documents, as
necessary to make them internally consistent and in conformity with the final action on
the project. Development shall occur substantially as shown on the approved Exhibits.
PC RESO NO. 6636 -4-
Any proposed development different from this approval, shall require an amendment to
2 this approval.
3 3. 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
<- 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
6 all requirements of law.
7 4. 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
representatives, from and against any and all liabilities, losses, damages, demands, claims
9 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
10 Permit Amendment, (b) City's approval or issuance of any permit or action, whether
discretionary or non-discretionary, in connection with the use contemplated herein, and
(c) Developer/Operator's installation and operation of the facility permitted hereby,
^2 including without limitation, any and all liabilities arising from the emission by the
facility of electromagnetic fields or other energy waves or emissions. This obligation
13 survives until all legal proceedings have been concluded and continues even if the City's
approval is not validated.
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5. This approval is granted subject to the approval of EIR 03-05(A), PDP 00-02(B), SP
144(1), DA 05-01(A), and RP 05-08(A) and approved permit CDP 04-41 and is subject
16 to all conditions contained in Planning Commission Resolutions No. 6631, 6632, 6633,
6634, 6635, and 6092, for those other approvals incorporated herein by reference.
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6. This approval is granted subject to the Mitigation and Monitoring and Reporting
Program adopted by City Council Resolution 2006-156 for the Precise Development
19 Plan and Desalination Plant project.
20 7. 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
22 65871 and Carlsbad Municipal Code Title 20, Chapter 20.04, section 20.04.140 applicant
shall grant a conservation easement for the conservation, protection, and management of
23 fish, wildlife, native plants and the habitat necessary for biologically sustainable
populations of certain species thereof, in accordance with the City's adopted Habitat
24 Management Plan.
25 8. Prior to issuance of a precise grading permit, clearing of any habitat, or building permit,
26 whichever occurs first, the 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
27 natural habitat in conformance with the City's Habitat Management Plan:
2g 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
2 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
3 Habitats Conservation Plan and the City's Open Space Management Plan.
4 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,
5 if any, in an amount sufficient for management and monitoring of the open space
lot(s) in perpetuity.
6 d. Record a Conservation Easement over the open space lot(s).
7 e. Prepare a Preserve Management Plan which will ensure adequate management of
the open space lot(s) in perpetuity.
9. This project has been found to result in impacts to wildlife habitat or other lands, such as
agricultural land, non-native grassland, and disturbed lands, which provide some benefits
to wildlife, as documented in the City's Habitat Management Plan and the environmental
analysis for this project. Developer is aware that the City has adopted an In-lieu
11 Mitigation Fee consistent with Section E.6 of the Habitat Management Plan and City
Council Resolution No. 2000-223 to fund mitigation for impacts to certain categories of
vegetation and animal species. The Developer is further aware that the City has
, - determined that all projects will be required to pay the fee in order to be found consistent
with the Habitat Management Plan and the Open Space and Conservation Element of the
14 General Plan. Developer or Developer's successor(s) in interest shall pay the fee prior to
recordation of a final map, or issuance of a grading permit or building permit, whichever
15 occurs first. If the In-lieu Mitigation Fee for this project is not paid, this project will not
be consistent with the Habitat Management Plan and the General Plan and any and all
approvals for this project shall become null and void.
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10. The approval for this project shall become null and void if the project does not become
18 operational within 10 years of the final discretionary approval, including the
discretionary approvals of the California Coastal Commission or other agencies, as
may be consistent with the amended Development Agreement (DA 05-01(A)).
20 NOTICE
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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
23 "fees/exactions."
24 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
27 annul their imposition.
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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, held on August 19, 2009, by the following vote, to wit:
AYES:
NOES:
Commissioners Baker, Dominguez, L'Heureux, Nygaard,
Schumacher, and Vice Chairperson Douglas
ABSENT: Chairperson Montgomery
ABSTAIN:
FARRAH DOUGLAS, Vice Chairperson
CARLSBAD PLANNING COMMISSION
ATTEST:
DON NEU
Planning Director
PCRESONO. 6636 -7-