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HomeMy WebLinkAbout2022-04-06; Planning Commission; Resolution 7445PLANNING COMMISSldN RESOLUTION NO. 7445 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A COASTAL DEVELOPMENT PERMIT AND A HABITAT MANAGEMENT PLAN PERMIT FOR THE REPAIR OF A SEGMENT OF A SOUTHERN CALIFORNIA GAS COMPANY MAINLINE PIPE 1026 GENERALLY LOCATED NORTH OF AVENIDA ENCINAS AND EAST OF CARLSBAD BOULEVARD AND BISECTING PONTO DRIVE IN LOCAL FACILITIES MANAGEMENT ZONE 9. CASE NAME: CASE NO: SOUTHERN CALIFORNIA GAS COMPANY MAINLINE PIPE REPAIR CDP 2021-0035 and HMP 2021-0005 (DEV 2020- 0283) WHEREAS, Southern California Gas Company, "Developer," has filed a verified application with the City of Carlsbad regarding an emergency repair to a portion of Mainline 1026, a gas pipeline located in the Ponto area and extending from near the intersection of Carlsbad Boulevard and Avenida Encinas to approximately 1,000 feet north where Ponto Drive turns ninety degrees west; the subject portion of Mainline 1026 bisects Ponto Drive, is in the public right of way, and is alongside property identified by Assessor's Parcel Number 216-140-43 ("the Property"); and WHEREAS, said verified application constitutes a request for a Coastal Development Permit (CDP 2021-0035) and Habitat Management Plan Permit (HMP 2021-0005) as shown on Exhibits "A" through "H" dated April 6, 2022, attached hereto and on file in the Carlsbad Planning Division, "CDP 2021-0035 and HMP 2021-0005 -SOUTHERN CALIFORNIA GAS COMPANY MAINLINE PIPE REPAIR", as provided in Chapter 21.201 and Chapter 21.210 of the Carlsbad Municipal Code; and WHERAS, CDP 2021-0035 is required as a condition of approval of CDP 2020-0049, an emergency coastal development permit issued by the city planner on November 19, 2020, to approve the repair of a gas leak on the portion of Mainline 1026 in the area identified as the Property above; as part of CDP 2020- 0049, the city planner found that repair of the gas leak required action more quickly than permitted by the procedures for minor coastal development permits or for regular permits; and WHEREAS, the issuance of the emergency CDP 2020-0049 and requirement for the follow up, regular CDP 2021-0035, which permanently authorizes the emergency work completed, were done according to Carlsbad Municipal Code Section 21.201.190, Emergency Coastal Development Permits; and WHEREAS, the City of Carlsbad has received authorization to issue permits to impact various sensitive species and habitats, including species listed as Threatened or Endangered, by virtue of Incidental Take Permit No. TE022606-0 from the U.S. Fish and Wildlife Service and Natural Community Conservation Planning Permit No. 2835-2004-001-05; and 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 9, 2004, referred to as the HMP, and approval of all projects is contingent on a finding of consistency with the HMP; and WHEREAS, the Planning Division studied the Coastal Development Permit and Habitat Management Plan application and performed the necessary investigations to determine if the project qualified for an exemption from further environmental review under the California Environmental Quality Act, {CEQA, Public Resources Code section 21000 et. seq .}, and its implementing regulations (the State CEQA Guidelines}, Article 14 of the California Code of Regulations section 15000 et. seq. After consideration of all evidence presented, and studies and investigations made by the city planner and on his behalf, the city planner determined that the project was categorically exempt from further environmental review pursuant to State CEQA Guidelines Section 15302 (c}, replacement or reconstruction of existing utility systems and/or facilities involving negligible or no expansion of capacity, because the project involves no expansion of the utility system's capacity and instead replaces habitat temporarily disturbed as part of emergency repairs; and WHEREAS, on February 3, 2022, the city distributed a notice of intended decision to adopt the "replacement or reconstruction" exemption. The notice was circulated for a 10-day period, which began on February 3, 2022 and ended on February 13, 2022. The city did not receive any comment letters on the CEQA findings and determination. The effective date and order of the city planner CEQA determination was February 13, 2022; and WHEREAS, the Planning Commission did, on the 6th of April 2022, hold a duly noticed public hearing as prescribed by law to consider said request; PC RESO NO. 7445 -2- WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all persons desiring to be heard, said Commission considered all factors relating to the Coastal Development Permit and Habitat Management Plan Permit. NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission of the City of Carlsbad, as follows: A) That the above recitations are true and correct. B) That the SOUTHERN CALIFORNIA GAS COMPANY MAINLINE PIPE REPAIR project is consistent with Coastal Development Permit regulations, standards governing development in the Coastal Zone, and the HMP as described in the following findings. C) That based on the evidence presented at the public hearing, the Commission APPROVES COASTAL DEVELOPMENT PERMIT CDP 2021-0035 AND HABITAT MANAGEMENT PLAN PERMIT HMP 2021-0005 -SOUTHERN CALIFORNIA GAS COMPANY MAINLINE PIPE REPAIR, based on the following findings and subject to the following conditions: Findings: Coastal Development Permit 1. That the proposed development is in conformance with the Certified Local Coastal Program and all applicable policies in that removal of native habitat to enable the emergency repair will be mitigated through on-site restoration, ensuring no net loss of habitat in the Coastal Zone and that the emergency repair does not conflict with Local Coastal Program objectives regarding agriculture, steep slopes or coastal views. 2. The proposal is in conformity with the public access and recreation policies of Chapter 3 of the Coastal Act in that the subject property does not provide public access to the beach or recreation facilities and thus does not negatively impact such public access or recreation. Habitat Management Plan Permit 3. That the project area is shown in Figure 28 of the approved HMP as "development area." 4. That authorization to impact sensitive habitats is 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 Permit issued for the HMP, the Implementing Agreement, the Terms and Conditions of the Incidental Take Permit, and the Biological Opinion in that project impacts to native habitat (0.66 acre of Diegan Coastal Sage Scrub) are considered temporary as all habitat removed by the project will be replaced according to a restoration plan, ensuring no net loss of habitat in the Coastal Zone, which is consistent with Policy 7-8 of the Habitat Management Plan. 5. That authorization to impact sensitive habitats is subject to continuous compliance with the provisions of Volumes I, II and Ill of the Multiple Habitat Conservation Program and the Final PC RESO NO. 7445 -3- Environmental Impact Statement/Environmental Impact Report for Threatened and Endangered Species Due to Urban Growth within the Multiple Habitat Conservation Program Planning Area (SCH No. 93121073). 6. That all impacts to habitat and all take of species will be incidental to otherwise lawful activities related to construction and operation of the mainline pipe repair project, which was necessary to fix a gas leak and enable safe and continued operation of an essential public service. 7. 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 that project impacts to 0.66 acre of Diegan Coastal Sage Scrub are considered temporary because the area disturbed will be restored at a 1:1 ratio, resulting in no loss of habitat. As conditioned, Developer will submit a restoration plan for approval by the City prior to its implementation. The restoration plan will detail planting specifications, maintenance activities, monitoring methods, success criteria, and contingency actions to ensure a successful on-site restoration program. 8. That the authorization to impact sensitive habitats as a result of the project will not 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. The Diegan Coastal Sage Scrub impacted by the emergency repair project is not within or adjacent to a hardline preserve or standards area and will be fully replaced according to a restoration plan, ensuring no net loss of habitat in the Coastal Zone. 9. 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 degree of the exaction is in rough proportionality to the impact caused by the project. Conditions: General NOTE: Unless otherwise specified herein, all conditions shall be satisfied prior to permit issuance. 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 implemented and maintained according to their terms, the city shall have the right to 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 property t itle; institute and prosecute litigation to compel their compliance with said 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 Coastal Development Permit and Habitat Management Plan Permit. 2. Staff is authorized and directed to make, or require the Developer to make, all corrections and modifications to the Coastal Development Permit and 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. PC RESO NO. 7445 -4- Any proposed development, different from this approval, shall require an amendment to this approval. 3. Developer shall comply with all applicable prov1s1ons of federal, state, and local laws and regulations in effect at the time of building permit issuance. 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 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 Coastal Development Permit and Habitat Management Plan Permit, (b) city's approval or issuance of any permit or action, whether discretionary or nondiscretionary, in connection with the use contemplated herein, and (c) Developer/Operator's installation and operation of the facility permitted hereby, 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 survives until all legal proceedings have been concluded and continues even if the city's approval is not validated. 5. 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 as specified herein for the project. 6. To ensure no net loss of habitat in the Coastal Zone, Developer shall implement or cause to be implemented the onsite restoration of the Diegan Coastal Sage Scrub (CSS) temporarily removed by the project in accordance with a habitat restoration plan first approved by the city. The focus of restoration efforts will involve restoring 0.66 acre of Diegan CSS onsite and consistent with the city's Guidelines for Habitat Creation and Restoration dated July 20, 2009. Specifically, the purpose of the habitat restoration plan will be to describe the current condition of the restoration site, implementation plan, planting specifications, maintenance activities, monitoring methods, success criteria, and reporting program required to facilitate a successful on-site restoration program to comply with city restoration requirements. An annual monitoring report on the restoration shall be submitted to the city each year for five years or until the restoration has been deemed successful and approved by the city. Restoration shall occur by fall 2022 (the beginning of the rainy season), subject to city review and approval. NOTICE TO APPLICANT An appeal of this decision to the City Council must be filed with the City Clerk at 1200 Carlsbad Village Drive, Carlsbad, California, 92008, within ten (10) calendar days of the date of the Planning Commission's decision. Pursuant to Carlsbad Municipal Code Chapter 21.54, section 21.54.150, the appeal must be in writing and state the reason(s) for the appeal. The City Council must make a determination on the appeal prior to any judicial review. NOTICE TO APPLICANT The project site is within the appealable area of the California Coastal Commission. This Coastal Development Permit (CDP) shall not become effective until ten (10) working days have elapsed, without a valid appeal being filed with the Coastal Commission, following the Coastal Commission's receipt of the city's notice of the CDP issuance ("Notice of Final Action"). The filing of a valid appeal with the Coastal PC RESO NO. 7445 -5- Commission within such time limit shall stay the effective date of this CDP until such time as a final decision on the appeal is reached by the Coastal Commission. NOTICE 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." 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 annul their imposition. 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, California, held on April 6, 2022, by the following vote, to wit: AYES: Commissioners Lafferty, Luna, Kamenjarin, Meenes, Merz, Sabellico, and Stine NOES: ABSENT: ABSTAIN: JOSEPH STINE, Chair CARLSBAD PLANNING COMMISSION ATTEST: ~Yl DON NEU City Planner PC RESO NO. 7445 -6-