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HomeMy WebLinkAbout2009-08-19; Planning Commission; Resolution 66361 PLANNING COMMISSION RESOLUTION NO. 6636 2 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 23 impact various sensitive species and habitats, including species listed as Threatened or 24 Endangered, by virtue of Incidental Take Permit No. TE022606-0 from the U.S. Fish and ^O 2£ Wildlife Service and Natural Community Conservation Planning Permit No. 2835-2004-001-05; 27 and 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 3 WHEREAS, said verified application by Developer constitutes a request for a 4 <- 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 9 WHEREAS, at said hearing, upon hearing and considering all testimony and 10 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. 16 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. PC RESO NO. 6636 -2- 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. 16 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. 3 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. 0 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. 14 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. 17 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. PC RESO NO. 6636 -5- 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. 17 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 21 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. 28 PC RESO NO. 6636 -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 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-