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HomeMy WebLinkAboutHDP 97-12; Huber Residence; Hillside Development Permit (HDP) (8)United States Department of the Interior FISH AND WILDLIFE SERVICE Ecological Services Carlsbad Field Office 2730 Loker Avenue West Carlsbad, California 92008 Mr. Don Rideout February 29, 1996 Planning Department City of Carlsbad Carlsbad, CA 92008 Re: Mr. Gene Huber's parcel (APNs 206-200-03,04, and 05) Dear Mr. Rideout: The Service has reviewed the mitigation proposal for the three adjacent parcels totaling 1.43 acres (subject property) owned by Mr. Gene Huber located on the northwest shore of Agua. Hedionda Lagoon in the City of Carlsbad. Staff biologist Ken Corey has visited the site. Surrounding the subject property is an existing residence to the west, Adams street and more residential housing to the north, a restaurant/residence to the east, and Agua Hedionda Lagoon to the south. The project proposal consists of building a single family residence on the middle parcel and selling the remaining parcels for the future development of two single family residences. The 1.53 acre site consists of .25 acres underwater, .14 acres of land up to the high water line, .54 acres of cleared/disturbed area, and .6 acres of coastal sage scrub. A small amount of wetland habitat consisting of pickleweed (Salicornia sp.) exists up to the high water line and it is the Service's understanding that it will not be impacted. The site is unoccupied by the threatened coastal California gnatcatcher (Polioptilla californica californicd). The proposed impacts to all three parcels include the loss of .6 acres of existing coastal sage scrub. The proposed mitigation plan consists of purchasing 0.5 acres of mitigation credits in the Carlsbad Highlands Mitigation Bank in Carlsbad. The Service concurs that the proposed project including .5 acres of offsite mitigation is consistent with the Natural Community Conservation Plan standards. We make this finding based on the following: 1) the impact occurs to isolated coastal sage scrub unoccupied by gnatcatchers; 2) the impact is relatively small; 3) the loss of the habitat does not preclude long term conservation planning; and 4) the mitigation site provides coastal resource replacement. The proposed project results in impacts to less than 1 acre of coastal sage scrub and meets other criteria as outlined in our letter of February 2, 1995, titled "Specific Exemptions to and Recommended Format For Reviewing Requests For Interim Habitat Loss Permits" and, therefore, qualifies to be exempt from the Federal and State interim habitat loss (Special 4(d) Rule) approval process. Please notify SANDAG of the loss of .6 acres of coastal sage scrub. No further habitat loss permit process is necessary other than confirmation of the purchase of .5 acres from the Carlsbad Highlands Mitigation Bank. Mr. Hideout If you have any questions, please contact Ken Corey at (619) 431-9440. Sincerely, Gail C. Kobetich Field Supervisor cc: CDFG (attn: Bill Tippets) Mr. Gene Huber #l-6-96-HC-102 tTATf Of CAIIK>*NIA_THE AOtHOf rat WIISOM, GO..,, DEPARTMENT OF FISH AND GAME FACSIMILE TRANSMITTAL TO;r\ r. FROM: ENVIRONMENTAL SERVICES DIVISION (SOUTHERN"CALIFORNIA) • . -• NATURAL COMMUNITY CONSERVATION PLANNING (NCCP) • ' . 4949 VIEWRIDGE AVENUE • • " SAN DIEGO, CALIFORNIA 92123 • TELEPHONE .(619) 467-4251 FAX (619) 467-4235 DATE:TIME NO. OF PAGES SENT INCLUDING TRANSMITTAL SHEET COMMENTS; ' . . • ' . of -H^L CbF<r/Ll5Ftu's potic^ '/our on-e, n»"i"/oc</cj. i IF YOU DO NOT RECEIVB ALL OF THE PAGES INDICATED. PLEASE CALL THE SENDER AS SOON-AS POSSIBLE. U.S. Pish fi, WUtJllfo Service Z730 Loker Avenue West CarlnbAd, CA 92p08 (619) 631-9640 FAX: (619) 631-9618 CA Dcpt. of Pleh & Oamo 1616 Ninth Strecc PO Box 966209 •S«cr«jn«rito CA 96266-2090 (916) 653-97.67 FAX: (916) 653-258B February 2, 1995 All Jurisdictions Specific Exemptions to a,nd Recommended format For Reviewing Requests For Interim Habitat boss Permite Dear Jurisdiction: • ' . The California Department of Fi.oh and Game' (CDFG) and U.S. Fish and Wildlife Service (USFWS) , which administer the.Natural Community Conservation'Planning (NCCP)•program, are'providing -the, following clarification for r.be minimum criteria' for projects, that would be subject to the interim habitat'loss (Special 4 (d) Rule) process. "These clarifications will reduce the number of projects needing an intetim habitat loss permit, if they have minor impacts to cpastal sage scrub habitat and are not within "core" habitat areas. We-are aloo providing clarification to-the .jurisdictions regarding submitting their "NCCP'- Findings. « These changes and clarifications are as follows: . Coastal Sage Scrub Losses Exempt from 4(d) Review All projects that occur in low value habitat and projects in medium value habitat outside o£ identified preserve planning areas, cause the loss-of leojs than l.Q acres of coastal sage pcrub habitat that is not occupied by California gnatcatchers, «nd wo'j.16'. not otherwise preclude design of the reserve, system are exempt from, the Federal- and State Interim habitat loss (Special 4 (d) Rule) approval process. Mitigation for these projects, will conform with all'other underlying resource protection requirements .o,f the .jurisdictions, an enrolled jurisdiction's 4d 'guidelines 'or the guidelines provided in the joint DFG/USFWS letter of December 30, 1993,-and CEQA. .'All losses of coastal sage scrub must still be reported by the jurisdictions, to the •subregional accounting entity and counted toward-the" '' • eubarea/subregionai 5% loss allocation, except as specified below. NCCP Jurisdictions February 2, 1995 Page Two A jurisdiction may allow coastul sage scrub loss in excess of the 5% for those minor projects (less than 1.0 acres) whp.se development poses a minimal risk to-overall coastal sage scrub 'conservation if they meet the above habitat criteria and can- show that Che project mitigation contributes to the regional conservation effort. Coastal sage scrub losses that are the result, of mandated health arid safety orders (e.g., weed'abatement) are also exempt • from the interim habitat loss process. Habitat that is..occupied by California gnatcatchers that, will be disturbed, by these orders should be coordinated with the USFWS to ensure compliance with the Endangered Species Act. These Josses will not require mitigation, but shall be recorded and reported to the appropriate jurisdiction and the subregional accounting entity and.counted'. toward the subarea/subregional•5% loss allocation/i Making, the NCCP interim Habitat Loss Fipd-Lngs • . ' •' We 'are also requesting that jurisdictions participating in' the NCCP provide concise and consistent information -that will. . ..facilitate the uniform review, processing and reporting of interim losses under the 4(d) special rule. Reporting approved .losses.to the subregional 5% loss coordinator is important to ensure tha.t-all jurisdictions are bejng treated-equitably: The USFWS and DFG have become aware of isolated instances in which' clearing of coastal sage scrub has occurred prior to issuance of a loss permit. Participation in the interim habitat loss process presumes that all coastal sage scrub losses have met the NCCPs ' conditions for approval.. The attachment clarifies'what information is needed in the habitat loss application so that it conforms with the Southern CallCorn?a Coastal Sage Scrub Natural Community ^Conservation Planning Process Guidelines (CSS Process Guidelines) . NCCP Jurisdictions February 2, 1995 Page Three We -request that this information be.provided in each interim habitat loss permit application which will be processed under the provisions of the 4 (d) special rule. This minimum level of information will make it possible for our staff to evaluate the appropriateness of the requested habitat .loss. Addressing these points will not necessarily involve complicated, detailed discussions. If the impacts are obviously insignificant this should be easily demonstrated. If you have any questions or need more information 'please contact Bill Tippets, NCCP Supervisor'a.t ($19) 688-4267, or Nancy Gilbert, Multiple Species. .Coordinator.at (619) 431-9440. Gail Kctoetich Larry L. Eng, Ph.D. Carlsbad Field Supervisor NCCP Program Manager Attachment be; Department of Fish and Game Mr. Banky Curtis Sacramento • • . X-'' Mr. Bill Tippets ^^ San Diego Ms. Nancy Gilbert U.S. Fish and Wildlife Service Bank of America March 18, 1996 Mr. Gene Huber 6407 Al Pato Court Carlsbad, CA 92009 Re: CARLSBAD HIGHLANDS CONSERVATION BANK HUBER LOTS - AP's 2Q6-200-03, 04, 05 Dear Mr. Huber: Enclosed please find a fully executed copy of the Conservation Credit Purchase Agreement and Acknowledgment and a fully executed Acknowledgment of Sale of Conservation Credit. The latter is your receipt for purchase of 0.5 credits. • Upon presenting this to the U. S. Fish and Wildlife Service or Department of Fish and Game, it will serve as evidence that you have made the purchase. I have forwarded the endowment portion of the sales price to the Wildlife Conservation Board and requested a receipt. Thank you very much for your business and if I can sell you any more credits in the future, please give me a call. Sincerely, James^vl ^Jackson ^ViceTresident "(619) 230-6361 Enclosures cc: Steve Serber - Bank of America jj:\carlsbad\huber2.1tr Bank ol America National Trust and Savings Association 450 "B" Street Suite 620 San Diego, CA92101 Phone 619/230-5745 Fax 619/230-5479 ACKNOWLEDGMENT OF SALE OF CONSERVATION CREDITS The undersigned Seller hereby acknowledges that it has sold and conveyed to Gene Huber 0.5 Conservation Credits from the Carlsbad Highlands Conservation Bank. All terms of this conveyance shall be governed by the provision of the Conservation Credit Purchase Agreement and Acknowledgment between Purchaser and the undersigned dated March 6,1996. SELLER: ' BA PROPERTIES, INC., a Delaware corporation Name: ^y£^ta ^.// Its: By: Dated: CONSERVATION CREDIT PURCHASE AGREEMENT AND ACKNOWLEDGMENT THIS CONSERVATION CREDIT PURCHASE AGREEMENT AND ACKNOWLEDGMENT ("Agreement") is entered into this 6th day of March, 1996 by and between BA Properties, Inc., a Delaware corporation ("Seller") and Gene Huber ("Purchaser"). A. Pursuant to that certain Carlsbad Highlands Conservation Bank Implementation Agreement (the "Implementation Agreement") dated April 5,1995 by and among Seller, as "Property Owner", The California Department of Fish and Game ("CDFG"). and The United States Fish and Wildlife Service ("USFWS") (CDFG and USFWS are referred to collectively hereinafter the "Resource Agencies"), the Resource Agencies have acknowledged the creation of the Carlsbad Highlands Conservation Bank (the "Conservation Bank") and the right of Seller to sell "Conservation Credits" as provided further therein. B. Purchaser desires to mitigate the loss of certain natural habitat values on real property located in San Diego County California commonly known as Huber Lots, APN 206-200-03, 04, 05 (the "Purchaser's Property"). C. Purchaser has agreed to purchase from Seller, and Seller has agreed to sell to Purchaser 0.5 Conservation Credits (the "Conveyed Credits") from the Conservation Bank on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the agreements and acknowledgments set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Purchaser hereby agree and acknowledge as follows: 1. Purchaser has deposited with the California Wildlife Conservation Board (the "Board"), or shall deposit with the Board on or before March 15.1996 (the "Closing Date"), immediately available funds in the amount of $1,158.00 (the "Endowment Deposit"), and Seller has received, or shall receive prior to the Closing Date, the Board's written acknowledgment of its receipt of the Endowment Deposit in the form attached hereto as Exhibit A ("Endowment Deposit Receipt"). 2. Purchaser has deposited with Seller, or shall deposit with Seller on or before the Closing Date, immediately available funds in the amount of $8.342.00. 3. Upon satisfaction of the conditions set forth in Paragraphs 1 and 2 above, Seller shall execute and deliver to Purchaser the Acknowledgment of Sale of Conservation Credits attached hereto as Exhibit B. 4. Purchaser acknowledges and agrees that: (a) the purchase and sale of the Conveyed Credits shall be made on an "AS IS, WHERE IS, WITH ALL FAULTS" basis as provided for in the Implementation Agreement; and (b) no representations or warranties have been made or are made and no responsibility has been or is assumed by Seller or by any officer, agent, affiliate, or representative acting or purporting to act on behalf of Seller as to: (i) the conservation value of the property conveyed to the Resource Agencies in establishing the Conservation Bank, (ii) the conservation value or mitigation requirements of the Purchaser's Property, (iii) the acceptance of the Conveyed Credits by the Resource Agencies or any other governmental agency as mitigation for the loss of habitat values associated with the Purchaser's Property, or (iv) any other fact or circumstance which might affect the Conservation Bank, the Purchaser's Property, or the Conveyed Credits. i 5. Time is of the essence in this Agreement. In the event the conditions set forth in Paragraphs 1 and 2 above have not been satisfied by the Closing Date, at Seller's election in its sole and absolute discretion, upon written notice to Purchaser, this Agreement shall terminate and neither party shall have any further obligations hereunder except as provided in Paragraph 6 below. 6. Seller and Purchaser each represent to the other that it has not had any contract, agreement, or dealings regarding the Conveyed Credits with, nor any communication in connection with the subject matter of this transaction through, any broker, agent, finder, or other person who can claim a right to a commission or finder's fee in connection with the sale contemplated herein. In the event that any broker or finder perfects a claim for a commission or finder's fee based upon any such contract, agreement, dealings or communication, the party through whom such claim is made shall be solely responsible for and shall indemnify, defend, and hold harmless the other party from and against said commission or fee and all costs and expenses (including without limitation reasonable attorneys' fees) incurred by the other party in defending against such claim. The provisions of this Section 6 shall survive the termination of this Agreement. 7. Purchaser and Seller agree that all understandings and agreements heretofore made between them or their respective agents or representatives are merged in this Agreement and the Exhibits attached hereto, and alone fully and completely express their agreement with respect to the subject matter hereof and supersede all prior agreements and understandings between the parties relating to such subject matter. Purchaser and Seller further agree that Purchaser has no responsibilities or obligations whatsoever regarding the "Conservation Credits" except as are expressly stated in this Agreement. 8. All deposits, except the Endowment Deposit, and any notice required or permitted to be made or given under this Agreement shall be made and delivered to the parties at the addresses set forth below each party's respective signature. All notices shall be in writing and shall be deemed to have been given when delivered by courier, when transmitted by facsimile (upon confirmation of successfully completed transmission), or upon the expiration of two (2) business days after the date of deposit of such notice in the United States mail, registered or certified mail, postage prepaid, return receipt required. 9. This Agreement shall be governed and construed in accordance with the laws of the State of California. In the event a dispute arises concerning the meaning or interpretation of any provision of this Agreement, or in the event of any litigation arising out of or related to this Agreement, the party not prevailing in such dispute or litigation shall pay any and all costs and expenses incurred by the other party in establishing or defending its rights hereunder, including, without limitation, court costs and reasonable attorneys' fees. '\ 10. This Agreement may be executed and delivered in any number of '. counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. WHEREUPON, this Agreement has been executed as of the date first- above written. SELLER: BA PROPERTIES, INC., a Delaware corporation Name: Its: 450 B Street, Suite 620 Mail Code 20005 San Diego, CA 92101 Attention: Jim Jackson Fax No. (619)230-5479 PURCHASER: By: Name: X] g^# // Its: ' x U 6407 Al Pato Court Carlsbad, CA 92009 jj:\carlsbad\hubcrcb2.agr Bank of America March 26, 1996 Mr. Gene Huber 6407 Al Pato Court Carlsbad, CA 92009 Re: CARLSBAD HIGHLANDS CONSERVATION BANK HUBER LOTS - AP's 206-200-03, 04, 05 Dear Mr. Huber: Enclosed please find a receipt from the Wildlife Conservation Board for the endowment portion of the sales price. • Thank you very much for your business and please give me a call if I can be of further assistance. Sincerely, f] n , James M. Jackson Vice President (619)230-6361 Enclosures cc: Leticia Leyva - Bank of America jj:\carlsbad\huber3.!tr Bank ol America National Trust and Savings Association 450 "B" Street Suite 620 San Diego, CA 92101 Phone 619/230-5745 Fax 619/230-5479 ENDOWMENT DEPOSIT RECEIPT On behalf of the California Wildlife Conservation Board, the undersigned hereby acknowledges receipt of checks totaling $1,158.00 in connection with the sale of 0.5 Conservation Credits from the Carlsbad Highlands Conservation Bank to Gene Huber. Such funds shall be held and applied in accordance with the terms of the Carlsbad Highlands Conservation Bank Implementation Agreement dated Aprils, 1995. Date: