HomeMy WebLinkAbout1998-08-04; City Council; 14813; APN 205-060-04 Biological mitigation outside of Carlsbad policy CASH Cash Deposit Program CC POLICY DEPOSIT HIGHLAND DR Lincoln Properties - ViaSat project Manchester Mitigation Bank MITIGATION NUISANCE Ord NS-322 Res 98-~~#/48l3 TITLE:
MTG. 8 * Y d 96
DEPT. PLN @
CITY COUNCIL POLICY REGARDING BIOLOGICAL
MITIGATION OUTSIDE OF CARLSBAD
DEPT. HD.
CITY ATTY.
CITY MGR
p w ? c) 2 2
2 0 F 2
-I
5 0 0
G
i
‘CITY OF CARLSBAD - AGE 8 A BILL J(7L
RECOMMENDED ACTION:
That the City Council ADOPT Resolution No. 78 -23 4 AFFIRMING its policy
biological mitigation outside of Carlsbad, and direct staff to prepare documents implement
Deposit program to facilitate the location of biological mitigation within Carlsbad.
ITEM EXPLANATION:
In recent years, the requirements related to mitigation for impacts to biological habitat ha!
number of policy questions for the City. For example, in 1995, the City Council adopted
NS-322 establishing regulations and procedures for the establishment of biologic
preserves. The ordinance was adopted in response to the establishment of the Carlsbad
Conservation Bank, with the intent of ensuring that such mitigation banks do not advers
the City’s ability to provide public facilities and improvements.
The issue at this time is whether development projects in Carlsbad should be allowel
mitigation banks outside of Carlsbad. The question has been raised due to two factors.
Carlsbad Highlands mitigation bank is presently not available due to a decision by the o\
there are no other established mitigation banks in Carlsbad. Secondly, a mitigation ban1
established in the City of Encinitas, referred to as the Manchester Mitigation Bank.
An important detail regarding mitigation banking is the manner in which certain habital
addressed. The Carlsbad Highlands bank was originally established as a generic bank
mitigating impacts to all non-wetland habitat types. Subsequently, the wildlife ager
determined that the habitat type known as Southern Maritime Chaparral cannot be mit
generic bank and must be mitigated “in kind”. The Manchester Bank includes some
Southern Maritime Chaparral and thus is able to provide mitigation credits for that ha1
There are several properties in Carlsbad that contain Southern Maritime Chaparral, b
these has been established as a mitigation bank.
The first project proposing to use the Manchester Mitigation Bank was Cannon Road Rea
required some Southern Maritime Chaparral mitigation. When the 4(d) permit for the Ca
was approved by the City Council, concern was expressed regarding the proposal
outside of Carlsbad. In response to that concern, the Community Development Directoi
informal policy stating that projects requiring more than four acres of mitigation are
provide that mitigation within Carlsbad. It was explained to project applicants that this r
could only be waived upon City Council authorization.
Most recently, the Lincoln PropertiesNiaSat project has requested the ability to t~
Southern Maritime Chaparral impacts of their project at the Manchester Mitigation B
informed the applicants of the mitigation policy and provided them with a list of potenti:
Maritime Chaparral mitigation properties in Carlsbad. The applicants have indicated tha
conducted a thorough investigation of all of the candidate mitigation parcels and none ai
for sale at this time. The applicants requested that their request be brought before the Ci
Staff believes that there is an alternative which may be acceptable to all parties. That
would involve the applicant making a cash deposit with the City, securing an agreemeni
I
r PAGE 2 OF AGENDA a LL NO. 14: 8 I 3 a
the necessary mitigation land in Carlsbad within a specified period of time. A ca:
mitigation agreement would be similar to a fee program, but there are important distinctic
program fixes the mitigation costs to the applicant and leaves the City at risk if costs in(
fee also shifts the burden of implementing the mitigation from the applicant to the City
deposit and mitigation agreement leaves full responsibility for implementing the mitigatio
applicant, and it removes the risk to the City in case costs increase. In concept, a cai
mitigation agreement is very similar to the “prepayment agreements” used for Rancho
Road financing several years ago.
Exhibit 2 provides a hypothetical example showing some of the possible terms and conc
cash deposit mitigation agreement and illustrating how it would work. Although this apprc
result in increased probability that mitigation would occur in Carlsbad, there are some i
merit discussion. - Mitigation is usually provided prior to allowing the impact. A cash deposit mitigation i
defers the mitigation until some time after the impact has occurred. This may be un;
to the wildlife agencies unless certain safeguards are provided.
Mitigation land costs are rapidly escalating at this time. The cost of Southerr
Chaparral mitigation credits at the Manchester bank was recently increased from t
$45,000 pre credit. Cash deposits must anticipate these kinds of cost increases.
If there are no willing sellers of mitigation land in Carlsbad, the City may be plal
position of either allowing the mitigation to go outside of Carlsbad, extending th
performance, or using eminent domain to acquire a property.
0
0
In view of the many factors surrounding the mitigation question, staff believes that the ca
approach is preferable to allowing applicants to mitigate outside of Carlsbad. If the C
concurs, the recommended action is to adopt the attached Resolution to formally stat6
previously been a staff policy regarding mitigation outside of Carlsbad, and direct staff to
a cash deposit mitigation agreement for the Lincoln PropertiesNiaSat project.
ENVIRONMENTAL:
The recommendations of this report fall within the category of actions taken by a regulat
to assure the maintenance, restoration, enhancement, or protection of the environment
regulatory process involves procedures for protection of the environment. The reci
actions are therefore Categorically Exempt under Section 15308 of the California En\
Quality Act Guidelines.
FISCAL IMPACT:
There will be a relatively minor cost impact to the City to administer and oversee the Ci
Mitigation Agreements. However, this cost will be offset by the 15% administrative retei
the City will retain from the funds deposited by applicants. Therefore, there will be nl
i rn pact.
EXHIBITS:
1.
2.
City Council Resolution No. 9 8 ‘-3 7 Y
Example of Cash Deposit Mitigation Agreement.
Y
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
0 0
RESOLUTION NO. 98-274
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD ESTABLISHING A POLICY REGARDING
BIOLOGICAL MITIGATION OUTSIDE OF CARLSBAD AND
ESTABLISHING A CASH DEPOSIT MITIGATION AGREEMENT
PROGRAM
WHEREAS, the City Council of the City of Carlsbad finds that the I(
biological mitigation areas is an important policy matter because it affects the arr
location of open space within the City; and
WHEREAS, the presence of mitigation banks in other jurisdictions hz
some applicants for development projects in Carlsbad to propose carrying out their
mitigation outside of Carlsbad; and
WHEREAS, the City Council of the City of Carlsbad finds that it is ii
interests of the public to require that development projects in Carlsbad locate their
mitigation in appropriate locations within Carlsbad to the maximum extent possible; ar
WHEREAS, the City Council of the City of Carlsbad finds that the City’:
practice is to require project applicants to acquire any necessary mitigation site(!
permitting impacts to occur. However, in instances where it can be demonstrated to
satisfaction that it is not feasible to acquire a suitable mitigation property prior to
impacts, it is appropriate to utilize a cash deposit mitigation agreement to defer the i
of the mitigation property for a specified period of time.
NOW, THEREFORE, BE IT RESOLVED as follows:
1. That the above recitations are true and correct.
2. That the City Council of the City of Carlsbad affirms as its poli
development projects located in Carlsbad which would impact biological t-
thereby necessitate mitigation, said mitigation shall be located within tt
Carlsbad and shall be acquired and adequately protected by the project app
to occurrence of the biological impacts, to the maximum extent feasible.
3. That a Cash Deposit Mitigation Agreement Program is hereby estE
be used in those instances where a project applicant can demonstrate t
Council’s satisfaction that it is not feasible for the applicant to acquire
mitigation parcel within Carlsbad prior to permitting the project impacts to occi
4. That the City Manager and City Attorney are hereby authorized to
format and procedures for the Cash Deposit Mitigation Agreement and to t
9,
1
2
3
4
5
6
7
8
9
10
11
12
l3
14
15
l6
17
18
19
20
21
22
23
24
25
26
27
28
0 0
documents to the City Council concurrent with consideration of the first de
project requesting the use of this mechanism.
approval by the City Council and is granted at the City Council's sole discretior
PASSED AND ADOPTED at a regular meeting of the City Council of
5. That utilization of the Cash Deposit Mitigation Agreement is
Carlsbad on the 4th day of August 1998, by the following vote, to wit:
AYES: Council Members Lewis, Finnila, Nygaard, and Kulchl
NOES: Council Member Hall
ABSENT: None
ATTEST:
ALgfew(iENKwNz, qJ cz~)
(SEAL)
-2-
Assumptions
Calculation of
Cash Deposit
Amount
Terms and
Conditions
For purposes of this example it is assumed that a project will
have impacts to 15 acres of Southern Maritime Chaparral
habitat. The mitigation ratio is 2:l , resulting in a need for 30
acres of mitigation land.
Based on a current market rate of $45,000 per credit for
Southern Maritime Chaparral mitigation, plus a 50%
contingency for potential cost increases and other risks,
yielding a rate of $67,500 per acre.
TOTAL DEPOSIT = $2.025 million in cash, letter of credit, or
other financial instrument acceptable to the City. Funds are
deposited in separate interest bearing account, interest
accruing to the principal.
0 Applicant has 1 year in which to acquire a mitigation site
acceptable to the City and wildlife agencies, with
possible extensions by mutual agreement.
0 It is the project applicant's responsibility to seek out and
negotiate with willing sellers.
0 Price paid by applicant is negotiated between applicant
and seller. During escrow, City releases cash deposit to
be applied toward purchase (less 15% retention by City
for administrative costs). If purchase price is less than
amount on deposit, difference is refunded to applicant. If
purchase price exceeds amount on deposit, applicant
must pay the difference.
0 After impact has occurred, if applicant fails to perform
according to the terms of the agreement, City may utilize
property, in addition to other administrative and legal
remedies that may be available.
0 These procedures do not eliminate the requirement for
project applicants to obtain any necessary wildlife
agency permits or to comply with the conditions of those
permits.
funds on deposit to acquire an acceptable mitigation