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
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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: