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HomeMy WebLinkAbout2010-10-06; Planning Commission; Resolution 66751 PLANNING COMMISSION RESOLUTION NO. 6675 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 EL 5 FUERTE VIEW PROJECT, ON A 3.91 ACRE PROPERTY GENERALLY LOCATED SOUTH OF EL FUERTE STREET 6 AND NORTH OF CACATUA STREET IN LOCAL FACILITIES MANAGEMENT ZONE 6. 7 CASE NAME: EL FUERTE VIEW CASE NO: HMPQ9-10o 9 WHEREAS, Michael Schmidt and Nataliya Orlova, "Owner/Developer," has 10 filed a verified application with the City of Carlsbad regarding property described as 11 Lot 552 of La Costa Meadows Unit 3 in the City of Carlsbad, 19 County of San Diego, State of California, according to Map thereof No. 7076, filed in the Office of the County Recorder of 13 San Diego County, October 16,1971 14 ("the Property"); and WHEREAS, the City of Carlsbad has received authorization to issue permits to 16 impact various sensitive species and habitats, including species listed as Threatened or 17 Endangered, by virtue of Incidental Take Permit No. TE022606-0 from the U.S. Fish and18 19 Wildlife Service and Natural Community Conservation Planning Permit No. 2835-2004-001-05; 20 and 21 WHEREAS, the authority stated above is based on a plan titled Habitat 22 Management Plan for Natural Communities in the City of Carlsbad, Final Approval November 23 2004, referred to as the HMP, and approval of all projects is contingent on a finding of 24 consistency with the HMP; and 26 WHEREAS, said verified application by Developer constitutes a request for a 27 Habitat Management Plan Permit pursuant to the City's authority as contained in Chapter 28 21.210 of the Zoning Ordinance, on file in the Planning Department. 1 WHEREAS, the Planning Commission did on March 17, 2010, April 7, 2010, 2 September 1, 2010 and October 6, 2010 consider said request; and 3 WHEREAS, at said hearings, upon hearing and considering all testimony and4 <- arguments, if any, of all persons desiring to be heard, said Commission considered all factors 6 relating to the Habitat Management Plan Permit. 7 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning o Commission as follows: 9 A) That the foregoing recitations are true and correct. 10 B) That the EL FUERTE VIEW - BMP 09-10 project is consistent with the HMP as described in the following findings. 12 C) That based on the evidence presented at the hearing, the Commission 13 APPROVES Habitat Management Plan Permit, HMP 09-10, for EL FUERTE VIEW based on the following findings and subject to the following conditions: 14 , - Findings: 16 1. That the El Fuerte View project site is incorrectly shown in Figure 28 of the approved HMP as an "Existing Hardline Conservation Area" and that the Figure will be 17 amended to reflect the boundaries of the project preserve area as a Hardline Conservation Area. 1 o 19 2. That authorization to impact sensitive habitats through the removal of 0.31 acres of non- native grass land, 0.14 acres of coastal sage scrub, 0.59 acres of disturbed coastal 20 sage scrub, 0.11 acres of scrub oak chaparral, and 0.18 acres of disturbed scrub oak chaparral is subject to continuous compliance with all provisions of the Habitat Management Plan for Natural Communities in the City of Carlsbad (HMP), the Citywide 22 Incidental Take Permit issued for the HMP, the Implementing Agreement, the Terms and Conditions of the Incidental Take Permit, and the Biological Opinion. 23 3. That authorization to impact sensitive habitats is subject to continuous compliance with 24 all mitigation measures as stated in the Mitigated Negative Declaration and Mitigation Monitoring & Reporting Program for El Fuerte View GPA 09-08/ZC 09-09/CT 04- 13/HDP 04-06 and is subject to all conditions contained in Planning Commission 26 Resolutions No. 6669, 6670, 6671, 6672 and 6674, including but not limited to recordation of a conservation easement over all conserved areas and management and 27 monitoring in perpetuity by a qualified conservation entity. 28 4. That authorization to impact sensitive species is subject to continuous compliance with the provisions of Volumes I, II and III of the Multiple Habitat Conservation Program and PC RESO NO. 6675 -2- the Final Environmental Impact Statement/Environmental Impact Report for Threatened 2 and Endangered Species Due to Urban Growth within the Multiple Habitat Conservation Program Planning Area (SCH No. 93121073). 3 5. That all impacts to habitat and all take of species will be incidental to otherwise lawful activities related to construction and operation of the El Fuerte View project. 6. That the project design as approved by the City of Carlsbad has avoided and minimized 6 impacts to wildlife habitat and species of concern to the maximum extent practicable in that the residential development is clustered on the least environmentally sensitive portion of the site. Mitigation measures have been included with the project to address the interface between the proposed development and the existing habitat, which include fire management; erosion control; landscaping restrictions; fencing, 9 signage, and lighting requirements; and predator and exotic species control. 10 7. That the project is conditioned to provide adequate funding to address changed circumstances and adaptive management needs that may be reasonably anticipated in the future, consistent with the HMP Implementing Agreement. 12 8. That the incidental take of species of concern as a result of the project will not 13 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 and reporting to the wildlife agencies and the public. 9. That the Planning Director is authorized to sign the Take Permit. 16 10. The Planning Commission hereby finds that all development in Carlsbad benefits from 17 the Habitat Management Plan, 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 compatible development in accordance with Carlsbad's Growth Management Plan. Preservation of wildlife habitats and sensitive species is required by 20 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 increasingly urban environment. Moreover, each ~~ 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 23 all new development within the City is essential to fund implementation of the City's Habitat Management Plan. 24 11. The Planning Commission of the City of Carlsbad does hereby find: £ -3 25 a. it has reviewed, analyzed, and considered the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program (MMRP) for El Fuerte View GPA 27 09-08/ZC 09-09/CT 04-13/HDP 04-06/HMP 09-10, the environmental impacts therein identified for this project and said comments thereon, and the Program, on file 28 in the Planning Department, prior to RECOMMENDING ADOPTION of the Mitigated Negative Declaration and MMRP for the project; and PC RESO NO. 6675 -3- b. the Mitigated Negative Declaration and the Program have been prepared in 2 accordance with requirements of the California Environmental Quality Act, the State Guidelines and the Environmental Protection Procedures of the City of Carlsbad; and 3 c. they reflect the independent judgment of the Planning Commission of the City of Carlsbad; and d. based on the EIA Part II and comments thereon, there is no substantial evidence the 6 project will have a significant effect on the environment. 7 12. The Planning Commission has reviewed each of the exactions imposed on the Developer 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 9 degree of the exaction is in rough proportionality to the impact caused by the project. 10 Conditions; If any of the following conditions fail to occur; or if they are, by their terms, to be 12 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 13 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 14 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 conditions or seek damages for their violation. No vested rights are gained by Developer 15 or a successor in interest by the City's approval of this Habitat Management Plan Permit. 17 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 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 20 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 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 23 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 24 all requirements of law. 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 27 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 non-discretionary, in connection with the use contemplated herein, and (c) PC RESO NO. 6675 -4- Developer/Operator's installation and operation of the facility permitted hereby, including 2 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 3 all legal proceedings have been concluded and continues even if the City's approval is not validated. 4 This approval is granted subject to the approval of the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program, GPA 09-08, ZC 09-09,CT 04- 13, and HDP 04-06 and is subject to all conditions contained in Planning Commission Resolutions No. 6669, 6670, 6671, 6672, and 6674 for those other approvals incorporated herein by reference. o 6. This approval shall become null and void with the expiration or withdrawal of CT 9 04-13 or if grading permits are not issued for this project within 24 months from the date of recordation of CT 04-13 as a Final Map. 10 NOTICE 12 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." 14 You have 90 days from date of final approval to protest imposition of these fees/exactions. If 15 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 16 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. 18 You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions 19 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. 22 " 23 24 25 26 27 28 PC RESO NO. 6675 -5- 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 October 6, 2010, by the following vote, to wit: AYES: Commissioners Baker, Dominguez, Montgomery, Nygaard and Schumacher NOES: Vice Chairperson L'Heureux ABSENT: Chairperson Douglas ABSTAIN: STEPHEN "HAP" L'HEUREUX, Vice Chairperson CARLSBAD PLANNING COMMISSION ATTEST: 2l DON NEU Planning Director PC RESO NO. 6675 -6-