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Home My WebLink About1996-10-22; City Council; Resolution 96-3581 2 3 4 5 6 7 8 9 10 11 12 0 m> SW? .Az& 13 a08 Ow% dU, 14 $045 &g$ 9OoB 15 si?: :$$; 16 E:? >2% 17 60 Q0-I 18 19 20 21 22 23 24 25 26 27 28 u m RESOLUTION NO. 96-358 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING AN AGREEMENT WITH CONTINENTAL HOMES FOR THE ISSUANCE OF A GRADING PERMIT FOR THE GRADING OF THE RANCHO CARRILLO DEVELOPMENT AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. The City Council of the City of Carlsbad, California, does hereby res follows: 1. That certain Agreement (a copy of which is attached hereto r Exhibit "A' and made a part hereof) between the City of Carlsbad and Continental is hereby approved. 2. That the Mayor of the City of Carlsbad is hereby authorized and d to execute said Agreement for and on behalf of the City of Carlsbad. PASSED, APPROVED AND ADOPTED at a Regular Meeting of tl OCTOBER 1996, by the fa Council of the City of Carlsbad on the vote, to wit: 22nd day of AYES: Council Members Lewis, Nygaard, Kulchin, Finnila, H NOES: None ABSENT: None ATTEST: 6&dv fi :QcL-*& ALETHA L.- 'kAUTENKRANZ, City Clerk \ W W J COASTAL SAGE SCRUB IMPACT AGREEMENT This Agreement is made by and between the City of Carlsbad (“City”), California and L&W Investments, Inc. dba Continental Homes, Continental Homes, Inc., and Continental Ranch, Inc. (all collectively referred to as “Continental”) effective as of October a, 1996 (“Effective Date”). RECITALS 1. Continental is the developer of the Rancho Carrillo development project (“Project”), located within the City of Carlsbad, California. The Project is defined in the Rancho Carrillo Master Plan. 2. Continental has applied to the City for various land use permits and approvals necessary for construction of the Project to occur. 3. As of the Effective Date, the City has issued all discretionary land use permits, and has made all land use approvals, necessary for Project grading to commence, with the exception of the issuance of the first grading permit. 4. Continental has also applied to the U.S. Army Corps of Engineers (“Corps”) for a permit under Section 404 of the federal Clean Water Act, 33 U.S.C. Cj 1344, to discharge fill material into the waters of the United States (“Section 404 Permit”). In connection with its application for a Section 404 Permit, Continental and the Corps participated in a Consultation with the U.S. Fish and Wildlife Service (“Service”) pursuant to Section 7 of the Endangered Species Act (“ESA), 16 U.S.C. § 1536.1 5. Among other things, the Section 7 Consultation concerned the potential effects of the Project on the coastal California gnatcatcher, a bird listed as a threatened species under the ESA. The ESA prohibits the “take” of the gnatcatcher unless “incidental take” is authorized under Sections 7 or 10 of the ESA, or under the Service’s Section 4(d) Special Rule for the gnatcatcher, 50 C.F.R. §17.41(b) (“4(d) Rule”). 6. Under the 4(d) Rule, “incidental take” of the gnatcatcher may occur, and will not be a violation of the ESA, during the period of time that a local government agency is actively engaged in the preparation of a Natural Communities Conservation Plan (“NCCP Plan”) for the protection of the gnatcatcher and its coastal sage scrub habitat pursuant to the State of California’s Natural Communities Conservation Planning Act of 1991 (“NCCP Act”). Under the 4(d) Rule, the amount of coastal sage scrub habitat which may be lost during the development of the NCCP Plan may not exceed five percent. For local jurisdictions which complete and receive approval of an NCCP Plan, this interim five percent limit under the 4(d) Rule will be superseded by terms of the NCCP Plan. e 7. The City is actively engaged in the development of an NCCP Plan known i: the “Habitat Management Plan.” Since the Habitat Management Plan has not been completed, approved and implemented as required by the 4(d) Rule, the interim five percent limit on loss of coastal sage scrub habitat remains in place as of the Effective Date. ) 8. Under the terms of the Section 7 Consultation, Continental has obtainec authorization from the Service for the removal of 85 acres of coastal sage scrub habit. and the incidental take of gnatcatchers. This 85 acres represents a substantial portioi of the remaining acreage of coastal sage scrub which may be lost within the City undc the interim five percent limit in the 4(d) Rule. 9. The City desires to temporarily avoid the loss of some of these 85 acres I coastal sage scrub while it continues to prepare the Habitat Management Plan, in orde to avoid exceeding the five percent limit under the 4(d) Rule. Accordingly, the City is preparing a prioritization system for projects that will cause the loss of coastal sage scrub habitat, and that prioritization system will likely require the phasing of grading for certain projects, including the Project. 10. Continental desires to obtain the first of its grading permits immediately SG that it may grade a substantial portion of the Project site including grading for Melrose Drive prior to January 30, 1997. Continental and the City agree that such permits would routinely issue, but that complexities surrounding the 4(d) Rule’s operation have created uncertainty on the City’s part on how best to proceed. 11. The City and Continental met with officials of the California Resource Agency, the California Department of Fish and Game, and the U.S. Fish and Wildlife Service (collectively, the “Agencies”) on September 5, 1996. The Agencies agreed to work cooperatively and expeditiously with the City towards completion and approval of the Habitat Management Plan, and if needed to take other measures necessary to avoid exceeding the five percent limit in the 4(d) Rule during this period. 12. Continental is amenable to a temporary limit on its impacts to coastal sage scrub in consideration for the City’s immediate issuance of a permit which will allow grading to begin without delay. The City requires that the initial impacts to coastal sage scrub include those associated with Melrose Drive. 13. Continental is not the only owner of property within the Rancho Carrillo Master Plan, but for purposes of this Agreement, it represents itself and all such other owners. 2 w AGREEMENT In consideration of the foregoing and the mutual promises contained in this Agreement, the City and Continental, intending to be legally bound, hereby agree as follows: 1. The City and Continental agree that the impacts to coastal sage scrub at the Project site can and will be phased, with some impacts to occur in 1996, and the balance in 1997 or thereafter. 2. Provided that Continental is in compliance with all applicable laws, regulations and permitting requirements and is otherwise qualified to obtain a grading permit, then the City will issue to Continental the first grading permit for the Project site. 3. The first grading permit will authorize grading of the entire 85-acres of coastal sage scrub habitat designated in the Section 7 Consultation (the “CSS Acreage”). However, Continental agrees that impacts to coastal sage scrub will occur in phases, as follows: a. Phase 1 : Continental may impact up to 50 acres of the CSS Acreage immediately upon issuance of the first grading permit. Such impacts shall include all those associated with the construction of Melrose Drive. b. Phase 2: After October 23, 1997 and only if Continental has completed the grading for Melrose Drive. Continental may not impact the balance of the CSS acreage (35 acres) if the following three conditions occur: I. The California Department of Fish and Game and the U.S. Fish and Wildlife Service (“Resource Agencies”) conclude that the balance of the CSS Acreage which will be lost via the 1997 coastal sage scrub impact must be deducted from the City’s interim five percent limit under the 4(d) Rule, and they have not increased the City’s interim five percent limit by an additional 35 acres to offset the 35 acres which will be lost in 1997; and ii. The City has submitted a final proposed Habitat Management Plan to the U.S. Fish and Wildlife Service; and ... iii. The City Council makes a finding that an emergency situation will exist because the 4(d) Rule’s interim five percent’limit continues to apply tc the City and planned land development activity threatens to exceed the remaining supply of coastal sage scrub habitat remaining within that limit. 3 e 4. If the interim five percent limit in the 4(d) Rule has terminated by virtue of the City's completion of its Habitat Management Plan, the approval of the Habitat Management Plan by the California Department of Fish and Game, and the issuance by the U.S. Fish and Wildlife Service of written concurrence that the Plan meets the standards set forth in 50 C.F.R. § 17.32(b)(2), then this Agreement will become null and void and will be superseded by the applicable terms, if any, of that Habitat Management Plan. Continental agrees to use its best efforts during the term of this Agreement to work with the City and the Resource Agencies to assist in completion of Carlsbad's Habitat Management Plan. 5. So long as the City complies with the terms of this Agreement, Continental agrees not to commence or participate in any legal action against the City concerning the issuance, or failure to issue, any Grading Permit for the Project. 6. Nothing in the Agreement is intended or may be construed as an admission of any liability or fact. 7. For the purposes of this Agreement, Continental represents all owners of property within the Rancho Carrillo Master Plan, and agrees to indemnify the City for any actions they may take. 8. This Agreement may only be amended or modified by a written agreemenl signed by both the City and Continental and approved by the City Council of the City of Carlsbad. 9. The persons who have executed this Agreement on behalf of the parties have the legal authority to bind the party on whose behalf he or she is signing. 4 m 10. This Agreement requires the approval of the City Council of the City of Carlsbad. Accordingly, the Effective Date of this Agreement will be the date on which it is approved by the City Council of the City of Carlsbad. Dated: l!$Z$?hL by: L&W INVESTMENTS, INC. dba CONTINENTAL HOMES i fa. Dated: (0 * 3r.a by: p.m. Dated: /b* %F 94 by: CONTINENTAL RANCH, INC. 5