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HomeMy WebLinkAbout2010-04-07; Planning Commission; Resolution 66901 PLANNING COMMISSION RESOLUTION NO. 6690 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 MUROYA SUBDIVISION PROJECT, ON PROPERTY GENERALLY LOCATED NORTH OF AVIARA PARKWAY, 6 SOUTH OF CORTE ORCHIDIA, EAST OF TOWHEE LANE, AND WEST OF BLACK RAIL ROAD IN LOCAL FACILITIES 7 MANAGEMENT ZONE 20. CASE NAME: MUROYA SUBDIVISION 8 CASE NO: HMP 07-02 • 9 WHEREAS, Taylor Morrison of CA, LLC, "Developer," has filed a verified 10 application with the City of Carlsbad regarding property owned by Muroya Family Trust, 12 "Owner," described as 13 The East One-Half of the Northeast Quarter of the Northwest Quarter, Section 27, Township 12 South, Range 4 West, San 14 Bernardino Base and Meridian, in the City of Carlsbad, . _ County of San Diego, State of California, According to United States Government Survey 16 ("the Property"); and 17 WHEREAS, the City of Carlsbad has received authorization to issue permits to18 jo impact various sensitive species and habitats, including species listed as Threatened or 20 Endangered, by virtue of Incidental Take Permit No. TE022606-0 from the U.S. Fish and 21 Wildlife Service and Natural Community Conservation Planning Permit No. 2835-2004-001-05; 22 ,and 23 WHEREAS, the authority stated above is based on a plan titled Habitat 24 Management Plan for Natural Communities in the City of Carlsbad, Final Approval November 26 2004, referred to as the HMP, and approval of all projects is contingent on a finding of 27 consistency with the HMP; and 28 WHEREAS, said verified application by Developer constitutes a request for a 2 Habitat Management Plan Permit pursuant to the City's authority as contained in Chapter 3 '. 21.210 of the Zoning Ordinance, on file in the Planning Department; and 4 r WHEREAS, the Planning Commission did on April 7, 2010, consider said 6 request; and 7 WHEREAS, at said hearing, upon hearing and considering all testimony and 0 arguments, if any, of all persons desiring to be heard, said Commission considered all factors 9 relating to the Habitat Management Plan Permit. 10 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning j2 Commission as follows: 13 A) That the foregoing recitations are true and correct. 14 B) That the MUROYA SUBDIVISION - HMP 07-02 PROJECT is consistent with the HMP as described in the following findings. 15 That based on the evidence presented at the hearing, the Commission APPROVES the Habitat Management Plan Permit, HMP 07-02, for the MUROYA SUBDIVISION, based on the 17 following findings and subject to the following conditions: 1 810 Findings; 19 1. That the Muroya Subdivision project is shown in Figure 28 of the approved HMP as a 20 "Proposed Standards Area" adjacent to an "Existing Hardline Conservation Area". • 2. That authorization to take of species of concern, through the take of 0.29 acres of ~2 Southern Maritime Chaparral (Group B), 0.05 acres of Southern Mixed Chaparral (Group D), 1.56 acres of Disturbed Land and 7.90 acres of Agriculture (Group F) is 23 subject to continuous compliance with all provisions of the Habitat Management Plan for Natural Communities in the City of Carlsbad (HMP), the Citywide Incidental Take 24 Permit issued for the HMP, the Implementing Agreement, the Terms and Conditions of the Incidental Take Permit, and the Biological Opinion. ^•J 25 3. That authorization to take of species of concern is subject to continuous compliance with all mitigation measures as stated in the Mitigated Negative Declaration and Mitigation 27 Monitoring & Reporting Program, GPA 06-09, ZC 06-08, SP 203(D), LCPA 06-09, CT 06-27, CP 06-19, CDP 06-32, HDP 06-10, and HMP 07-02 and is subject to all conditions contained in Planning Commission Resolutions No. 6681, 6682, 6683, 6684, 6685, 6686, 6687, 6688, 6689, and 6690 for those other approvals, including but not PC RESO NO. 6690 -2- limited to recordation of conservation easements over all conserved areas and 2 management and monitoring in perpetuity by a qualified conservation entity. The Planning Commission of the City of Carlsbad does hereby find: 3 a. it has reviewed, analyzed, and considered Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program for the Muroya Subdivision - 5 GPA 06-09, ZC 06-08, SP 203(D), LCPA 06-09, CT 06-27, CP 06-19, CDP 06-32, HDP 06-10, and HMP 07-02, the environmental impacts therein identified for this 6 project and said comments thereon, and the Program, on file in the Planning Department, prior to RECOMMENDING ADOPTION of the project; and 7 b. the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program have been prepared in accordance with requirements of the California 9 Environmental Quality Act, the State Guidelines and the Environmental Protection Procedures of the City of Carlsbad; and 10 c. they reflect the independent judgment of the Planning Commission of the City of Carlsbad; and 12 d. based on the EIA Part II and comments thereon, the Planning Commission, finds that 13 there is no substantial evidence the project will have a significant effect on the environment.14 15 4. That authorization to take of species of concern is subject to continuous compliance with the provisions of Volumes I, II and III of the Multiple Habitat Conservation Program and 16 the Final Environmental Impact Statement/Environmental Impact Report for Threatened and Endangered Species Due to Urban Growth within the Multiple Habitat Conservation 17 Program Planning Area (SCH No. 93121073). 18 5. That all impacts to habitat and all take of species will be incidental to otherwise lawful 19 activities related to construction and operation of the MUROYA SUBDIVISION project. 20 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 22 that the residential development observes a 20 ft. upland habitat buffer (Lot 3) between the proposed development and the proposed Open Space habitat Lot 4, and 23 mitigation measures have been proposed which include a 60 foot fire management zone (Lot 3) and in order to prevent negative effects on the adjacent HMP Hardline 24 Conservation area mitigation measures have been included with the project to address the interface of the proposed development and the existing and proposed HMP open space which include: erosion control; landscaping restrictions; fencing; 26 signage; and lighting restrictions; and predator and exotic species control. 27 7. That adequate funding has been provided to address changed circumstances and adaptive management needs that may be reasonably anticipated in the future, consistent with the HMP Implementing Agreement. PC RESO NO. 6690 -3- 8. That the incidental take of species of concern as a result of the project will not 2 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 3 and reporting to the wildlife agencies and the public. 4 9. That the Planning Director is authorized to sign the Take Permit. 10. The Planning Commission hereby finds that all development in Carlsbad benefits from 6 the Habitat Management Plan, which is a comprehensive conservation plan and implementation program that will facilitate the preservation of biological diversity and 7 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 9 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 10 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 , ~ 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 13 Local Coastal Program, the applicant is instead conditioned to pay an Agricultural Conversion Mitigation Fee on a per acre basis, to convert the entire agricultural 14 area (7.90 acres) from agricultural lands to residential development. 11. The Planning Commission has reviewed each of the exactions imposed on the Developer 16 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 17 degree of the exaction is in rough proportionality to the impact caused by the project. 18 Conditions; 19 1. If any of the following conditions fail to occur; or if they are, by their terms, to be 20 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 21 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 23 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 24 or a successor in interest by the City's approval of this Habitat Management Plan Permit.25 26 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 27 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 2° development different from this approval, shall require an amendment to this approval. PC RESO NO. 6690 -4- 3. If any condition for construction of any public improvements or facilities, or the payment 2 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 3 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 4 all requirements of law. 4. Developer/Operator shall and does hereby agree to indemnify, protect, defend and hold 6 harmless the City of Carlsbad, its Council members, officers, employees, agents, and representatives, from and against any and all liabilities, losses, damages, demands, claims 7 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 9 non-discretionary, in connection with the use contemplated herein, and (c) Developer/Operator's installation and operation of the facility permitted hereby, including 10 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 i 2 validated. 13 5. This approval is granted subject to the approval of the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program, GPA 06-09, ZC 06-08, SP 14 203(D), LCPA 06-09, CT 06-27, CP 06-19, CDP 06-32, and HDP 06-10, and is subject ,, to all conditions contained in Planning Commission Resolutions No. 6681, 6682, 6683, 6684, 6686, 6687, 6688, and 6689 for those other approvals incorporated herein by 16 reference. 17 6. 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 19 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 20 fish, wildlife, native plants and the habitat necessary for biologically sustainable populations of certain species thereof, in accordance with the City's adopted Habitat ^ Management Plan. 22 7. Developer shall implement, or cause the implementation of, the MUROYA 23 SUBDIVISION - GPA 06-09, ZC 06-08, SP 203(D), LCPA 06-09, CT 06-27, CP 06- 19, CDP 06-32, HDP 06-10, AND HMP 07-02 Project Mitigation Monitoring and 24 Reporting Program. 25 8. This approval shall become null and void if building permits are not issued for this 26 project within three (3) years of project approval. 27 9. Prior to issuance of a grading permit or clearing of any habitat, whichever occurs first, the Developer shall take the following actions to the satisfaction of the Planning Director in relation to the open space lots which are being conserved for natural habitat in conformance with the City's Habitat Management Plan: PC RESO NO. 6690 -5- a. Select a conservation entity, subject to approval by the City, which possesses 2 qualifications to manage the open space lots for conservation purposes. 3 b. Prepare a Property Analysis Record (PAR) or other method acceptable to the City 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 Habitats - Conservation Plan and the City's Open Space Management Plan. 6 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, if any, in an 7 amount sufficient for management and monitoring of the open space lots in perpetuity. a d. Record a Conservation Easement over the open space lots. 10 e. Prepare a Preserve Management Plan which will ensure adequate management of the open space lots in perpetuity. , 2 10. 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 13 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 14 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 17 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 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. 20 NOTICE 22 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." You have 90 days from date of final approval to protest imposition of these fees/exactions. If 25 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 26 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. 28 PC RESO NO. 6690 -6- 1 2 3 4 5 6 7 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 April 7, 2010, by the following vote, to wit: AYES:Chairperson Douglas, Commissioners Baker, Dominguez, L'Heureux, and Nygaard NOES: ABSENT: Commissioners Montgomery and Schumacher ABSTAIN: FARRAH CTBOUGLAS, Chairperson CARLSBAD PLANNING COMMISSION ATTEST: DON NEU Planning Director PCRESONO. 6690 -7-