HomeMy WebLinkAbout2016-02-23; City Council; Resolution 2016-0217
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RESOLUTION NO. 2016-021
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, CERTIFYING AN ENVIRONMENTAL IMPACT REPORT
EIR 15-02, ADOPTING THE CANDIDATE FINDINGS OF FACT AND THE
MITIGATION MONITORING AND REPORTING PROGRAM,
APPROVING A GENERAL PLAN AMENDMENT GPA 14-03 TO AMEND
THE LAND USE MAP OF THE GENERAL PLAN FROM
PUBLIC/PLANNED INDUSTRIAL/OFFICE (P/PI/0) TO VISITOR
COMMERCIAL (VC), AND APPROVING A LOCAL COASTAL PROGRAM
AMENDMENT LCPA 14-03 CHANGING THE COASTAL LAND USE AND
ZONING DESIGNATIONS TO BE CONSISTENT WITH CITY LAND USE
AND ZONING ON 3.6 ACRES OF LAND GENERALLY LOCATED WEST
OF THE CROSSINGS DRIVE AND NORTH OF GRAND PACIFIC DRIVE
IN THE NORTH WEST QUADRANT OF THE CITY WITHIN THE MELLO
II SEGMENT OF THE LOCAL COASTAL PROGRAM AND IN LOCAL
FACILITIES MANAGEMENT ZONE 8.
CASE NAME: WESTIN HOTEL AND TIMESHARE
CASE NO.: EIR 15-02/GPA 14-03/LCPA 14-03
WHEREAS, Grand Pacific Resorts LLC ("Applicant") has applied for approval of the
Westin Hotel and Timeshare ("Project") on approximately 3.6 acres generally located west of the
Crossings Drive and east of Grand Pacific Drive in the northwest quadrant of the City of Carlsbad
in Local Facilities Management Zone 8; and
WHEREAS, the Project includes, among other things, a request for approval of
General Plan Amendment GPA 14-03 and Local Coastal Program Amendment LCPA 14-03; and
WHEREAS, pursuant to the California Environmental Quality Act ("CEQA"), Public
Resources Code Section 21000, et seq., and its implementing regulations, 14 California Code of
Regulations Section 15000, et seq. ("CEQA Guidelines"), the City of Carlsbad ("City") as lead
agency prepared a Draft Environmental Impact Report ("Draft EIR") for the Project and circulated
the Draft EIR for public review and comment as required by law; and
WHEREAS, the City received and responded to public comments on the Draft EIR
and determined that the comments did not raise any significant environmental issues not already
addressed in the Draft EIR; and
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WHEREAS, the City has prepared a Final Environmental Impact Report ("Final
EIR"), which includes the Draft EIR, technical appendices, public comments and the responses to
public comments on the Draft EIR and all other, information required by CEQA Guidelines section
15132, which has been filed with the City Clerk; and
WHEREAS, pursuant to CEQA, the City has prepared a Mitigation Monitoring and
Reporting Program, which has been filed with the City Clerk; and
WHEREAS, on December 16, 2015, pursuant to the provisions of the Municipal
Code, the Planning Commission held a duly noticed public hearing as prescribed by law to
consider the Westin Hotel and Timeshare Final Environmental Impact Report EIR 15-02, General
Plan Amendment GPA 14-03, and Local Coastal Program Amendment LCPA 14-03, and adopted
Planning Commission Resolutions No. 7138, 7139, and 7141 respectively, recommending that the
City Council certify Final Environmental Impact Report 15-02 and approve General Plan
Amendment 14-03 and Local Coastal Program Amendment 14-03; and
WHEREAS, on January 26, 2016, the City Council of the City of Carlsbad ("City
Council") continued the duly noticed public hearing to consider Environmental Impact Report EIR
15-02, General Plan Amendment 14-03, and Local Coastal Program Amendment 14-03 to
February 23, 2016; and
WHEREAS, on February 23, 2016 the City Council of the City of Carlsbad held a duly
noticed public hearing to consider Environmental Impact Report EIR 15-02, General Plan
Amendment 14-03, and Local Coastal Program Amendment 14-03; and,
WHEREAS, at said public hearing, all materials with regard to the Project were
made available to the City Council for its review and consideration and the City Council heard and
considered the testimony and materials presented by all persons desiring to be heard, and
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considered all factors relating to Environmental Impact Report 15-02, General Plan Amendment
14-03, and Local Coastal Program Amendment 14-03; and
WHEREAS, having reviewed and considered all testimony and materials made available to
it, including but not limited to Final Environmental Impact Report 15-02, the staff reports and all
the testimony and evidence in the record of the proceedings with respect to the Project, the City
Council took the actions hereinafter set forth.
NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad as
follows:
1. The City Council finds the facts recited above are true and correct.
2. The City Council finds and determines that the applicable provisions of
CEQA and the CEQA Guidelines have been duly observed in conjunction with the Project and said
hearings and the consideration of this matter and all of the previous proceedings related thereto.
3. The City Council finds and determines that (a) the Final Environmental
Impact Report 15-02 is complete and adequate in scope and has been completed in compliance
with CEQA and the CEQA Guidelines for implementation thereof, (b) the Final Environmental
Impact Report 15-02 was presented to the City Council and the City Council has fully reviewed
and considered the information in Final Environmental Impact Report 15-02 prior to approving
the Project, (c) the Final Environmental Impact Report 15-02 reflects the City Council's
independent judgment and analysis, and, therefore, Final Environmental Impact Report 15-02 is
hereby declared to be certified in relation to the subject of this Resolution.
4. The City Council finds and determines that the Project is approved,
pursuant to Public Resources Code Section 21081 and CEQA Guidelines Section 15091, the City
Council hereby makes and adopts the findings with respect to each significant environmental
effect as set forth in the Findings of Fact, appended hereto as Exhibit "A" and made a part hereof
by this reference, and declares that it considered the evidence described in connection with each
such finding.
5. With respect to the significant environmental effects identified in Final
Environmental Impact Report 15-02 and pursuant to Public Resources Code Section 21081.6 and
CEQA Guidelines Section 15091(d), the City Council hereby adopts and approves the Mitigation
Monitoring and Reporting Program, which is appended hereto as Exhibit "B" and is made a part
hereof by this reference, and hereby makes and adopts the provisions of the Mitigation
Monitoring and Reporting Program as conditions of approval for the Project.
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6. Pursuant to Public Resources Code Section 21152 and CEQA Guidelines
Section 15094, the City Clerk shall cause a Notice of Determination to be filed with the Clerk of
the County of San Diego. Unless the Project is declared exempt herein and a Certificate of Filing
Fee Exemption is on file, the Project is not operative, vested or final until the filing fees required
pursuant to Fish and Game Code Section 711.4 are paid to the Clerk of the County of San Diego.
7. Pursuant to Public Resources Code Section 21081.6(a)(2) and CEQA
Guidelines Section 15091(e), the location and custodian of the documents and other materials
which constitute the record of proceedings on which this Resolution is based is the City Clerk,
City of Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, California.
8. The City Council finds and determines that the recommendation of the
Planning Commission for the approval of the General Plan Amendment GPA 14-03 and Local
Coastal Program Amendment 14-03 is approved and that the findings and conditions of the
Planning Commission contained in Planning Commission Resolutions No. 7139 and 7141, on file
with the City Clerk and incorporated herein by reference, are the findings and conditions of the
City Council.
9. That the approval of LCPA 14-03 shall not become effective until it is
approved by the California Coastal Commission and the California Coastal Commission's approval
becomes effective.
10. This action regarding EIR 15-02 and GPA 14-03 is final on the date this
resolution is adopted by the City Council.
11. The Provisions of Chapter 1.16 of the Carlsbad Municipal Code, "Time
Limits for Judicial Review" shall apply. The parties are hereby informed that the time within
which judicial review of this resolution must be sought is governed by Section 21167 of the Public
Resources Code with respect to certification of Final Environmental Impact Report 15-02 and by
Section 1094.6 of the Code of Civil Procedure with respect to General Plan Amendment 14-03
and Local Coastal Program Amendment LCPA 14-03.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City
of Carlsbad on the 23rd day of February 2016, by the following vote to wit:
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AYES: Council Members Hall, Wood, Schumacher, Blackburn, Packard.
NOES: None.
ABSENT: None.
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MATT HA(!Mayor
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ATTEST:
BARBARA ENGLESO , City Clerk
( S EA L) ••;;;;:* '' •
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EXHIBIT A
DRAFT FINDINGS OF FACT REGARDING FINAL ENVIRONMENTAL
IMPACT REPORT
FOR THE WESTIN HOTEL AND TIMESHARE PROJECT
SCH No. 2015041042
December 2015
TABLE OF CONTENTS
I. INTRODUCTION 1
A. Findings of Fact and Statement of Overriding Considerations 1
B. Record of Proceedings 3
II. PROJECT SUMMARY 4
A. Project Location 4
B. Project Description 5
C. Discretionary Actions 5
D. Statement of Objectives 6
III. ENVIRONMENTAL REVIEW AND PUBLIC PARTICIPATION 6
IV. GENERAL FINDINGS 6
V. SUMMARY OF IMPACTS 7
VI. FINDINGS REGARDING SIGNIFICANT IMPACTS 8
A. Findings Regarding Significant Impacts That Can be Mitigated
to Below a Level of Significance (CEQA §21081(a)(1) and
CEQA Guidelines §15091(a)(1)) 9
B. Findings Regarding Mitigation Measures Which are the
Responsibility of Another Agency (CEQA §21081(a)(2)) and
CEQA Guidelines §15091(a)(2)) 14
C. Findings Regarding Infeasible Mitigation Measures or
Alternatives (CEQA §21081(a)(3) and CEQA Guidelines
§15091(a)(3) 14
D. Findings Regarding Alternatives Considered and Rejected 14
E. Findings Regarding Alternatives Considered In EIR 15
VII. STATEMENT OF OVERRIDING CONSIDERATIONS 19
VIII. CONCLUSION 19
I. INTRODUCTION
A. Findings of Fact and Statement of Overriding Considerations
The California Environmental Quality Act (CEQA) (Public Resources Code §§21000, et seq.)
and the CEQA Guidelines (14 California Code of Regulations §§15000, et seq.) promulgated
thereunder require that the environmental impacts of a project be examined before a
project is approved. In addition, once significant impacts have been identified, CEQA and
the CEQA Guidelines require that certain Findings be made before project approval. It is
the exclusive discretion of the decision maker certifying the environmental impact report
(EIR) to determine the adequacy of the proposed Findings. Specifically, regarding Findings,
Guidelines §15091 provides:
(a) No public agency shall approve or carry out a project for which an EIR has
been certified which identifies one or more significant environmental effects
of the project unless the public agency makes one or more written findings for
each of those significant effects, accompanied by a brief explanation of the
rationale for each finding. The possible findings are:
1. Changes or alterations have been required in, or incorporated into, the
project which avoid or substantially lessen the significant environmental
effect as identified in the Final EIR.
2. Such changes or alterations are within the responsibility and jurisdiction
of another public agency and not the agency making the finding. Such
changes have been adopted by such other agency or can and should be
adopted by such other agency.
3. Specific economic, legal, social, technological, or other considerations,
including considerations for the provision of employment opportunities for
highly trained workers, make infeasible the mitigation measures or
project alternatives identified in the Final EIR.
(b) The findings required by subdivision (a) shall be supported by substantial
evidence in the record.
(c) The finding in subdivision (a)(2) shall not be made if the agency making the
finding has concurrent jurisdiction with another agency to deal with
identified feasible mitigation measures or alternatives. The finding in
subdivision (a)(3) shall describe the specific reasons for rejecting identified
mitigation measures and project alternatives.
(d) When making the findings required in subdivision (a)(1), the agency shall
also adopt a program for reporting on or monitoring the changes which it has
either required in the project or made a condition of approval to avoid or
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substantially lessen significant environmental effects. These measures must
be fully enforceable through permit conditions, agreements, or other
measures.
(e) The public agency shall specify the location and custodian of the documents
or other materials which constitute the record of the proceedings upon which
its decision is based.
(f) A statement made pursuant to §15093 does not substitute for the findings
required by this section.
The "changes or alterations" referred to in CEQA Guidelines §15091(a)(1) above, that are
required in, or incorporated into, the project which mitigate or avoid the significant
environmental effects of the project (a.k.a. "project design features"), may include a wide
variety of measures or actions as set forth in CEQA Guidelines §15370, including:
(a) Avoiding the impact altogether by not taking a certain action or parts of an
action.
(b) Minimizing impacts by limiting the degree ,;o1, magnitude of the action and its
implementation.
(c) Rectifying the impact by repairing, rehabilitating, or restoring the impacted
environment.
(d) Reducing or eliminating the impact over time by preservation and
maintenance operations during the life of the action.
(e) Compensating for the impact by replacing or providing substitute resources
or environments.
Should approval of the project nevertheless result in significant impacts, a Statement of
Overriding Considerations (SOCs) must be prepared. The statement provides the lead
agency's views on the ultimate balancing of the merits of approving a project despite its
unavoidable environmental risks. Regarding the SOCs, CEQA Guidelines §15093 provides:
(a) CEQA requires the decision-making agency to balance, as applicable, the
economic, legal, social, technological, or other benefits, including region-wide
or statewide environmental benefits, of a proposed project against its
unavoidable environmental risks when determining whether to approve the
project. If the specific economic, legal, social, technological, or other benefits,
including region-wide or statewide environmental benefits, of a proposed
project outweigh the unavoidable adverse environmental effects, the adverse
environmental effects may be considered "acceptable."
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(b) When the lead agency approves a project which will 'result in the occurrence
of significant effects which are identified in the Final EIR but are not avoided
or substantially lessened, the agency shall state in writing the specific
reasons to support its action based on the Final EIR and/or other information
in the record. The statement of overriding considerations shall be supported
by substantial evidence in the record.
(c) If an agency makes a statement of overriding considerations, the statement
should be included in the record of the project approval and should be
mentioned in the notice of determination. This statement does not substitute
for, and shall be in addition to, findings required pursuant to Section 15091.
Following its independent review, it is exclusively the discretion of the decision-maker
certifying the Final EIR to make a final determination regarding the adequacy of the
proposed Findings and SOCs.
Having received, reviewed, and considered the Final MR for the Westin Hotel and
Timeshare Project, State Clearinghouse No. 2015041042 as well as all other information in
the Record of Proceedings on this matter, the following Findings are hereby adopted by the
City in its capacity as the CEQA Lead Agency, and the Final EIR is certified as being
completed in compliance with CEQA. These Findings set forth the environmental basis for
current and subsequent discretionary actions to be undertaken by the City and responsible
agencies for the implementation of the project. The Findings presented herein are based on
substantial evidence in the entire record before the City and reflect the City's independent
judgment and analysis as the project CEQA Lead Agency. References to the Draft EIR and
Final EIR set forth in these Findings are for ease of reference and are not intended to
provide an exhaustive list of the evidence relied upon for the Findings.
B. Record of Proceedings
For purposes of CEQA and these Findings, the Record of Proceedings for the project
consists of the following documents and other evidence, at a minimum:
• The Notice of Preparation (NOP) and all other public notices issued by the City in
conjunction with the project;
• Comments received on the NOP;
• The Final EIR for the project;
• The Draft EIR;
• All written comments submitted by age es or members of the public during the
public review comment period on the Draft EIR;
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• All responses to written comments submitted by agencies or members of the public
during the public review comment period on the Draft EIR;
• All written and verbal public testimony presented during a noticed public hearing
for the proposed project at which such testimony was taken;
• All documents, studies, EIRs, or other materials incorporated by reference or cited to
in the Draft EIR and the Final EIR, including all references identified in
Section 11.0 of the Final EIR;
• Matters of common knowledge to the City, including but not limited to federal, state,
and local laws and regulations;
• Any documents expressly cited in these Findings;
• City staff reports prepared for this project and any exhibits thereto;
• Project permit conditions, findings, and the Mitigation Monitoring and Reporting
Program (MMRP);
• Any other relevant materials required to be in the record of proceedings by Public
Resources Code §21167.6(e);
Additionally, the Draft EIR and related technical studies were made available for review
during the public review period at the following public libraries:
Carlsbad City Library Georgina Cole Library
1775 Dove Lane 1250 Carlsbad Village Drive
Carlsbad, CA 92011 Carlsbad, CA 92008
II. PROJECT SUMMARY
A. Project Location
The project site is located on a 3.69-acre site located north of Palomar Airport Road, south
of Cannon Road, and east of the LEGOLAND Resort within the City of Carlsbad (City).
Regional access to the project site is provided by Interstate 5, located approximately one
mile to the west of the project site. The Agua Hedionda Lagoon is located approximately
three-quarters of a mile north of the project site and McClellan—Palomar Airport is located
approximately one mile east of the project site.
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B. Project Description
The project includes a General Plan Amendment, Zone Change, and Local Coastal Program
Amendment to change the property land use category of Unplanned Area (UA), Planned
Industrial (PI), and Office (0) to TravelfR,ecreation Commercial (TR) and to change the
zoning from Exclusive Agriculture (EA), Planned Industrial (PI), and Office (0) to
Commercial Tourist with a Qualified Overlay (C-T-Q). Development of the project site
would include removal of an existing municipal 1,500,000-gallon water tank, grading of the
property resulting in an export of approximately 14,610 cubic yards, and the subsequent
development of a four-story, 81,200-square-foot 71-room hotel building, and a four-story,
62,680-square-foot 36-unit timeshare building including an underground garage.
C. Discretionary Actions
The following discretionary actions are being considered by the City Council:
• General Plan Amendment (GPA 14-03)
• Zone Change (ZC 14-02)
• Local Coastal Program Amendment (LCPA 14-03)
• Tentative Tract Map (CT 14-08)
• Non-Residential Planned Unit Development (PUD 15-01)
• Conditional Use Permit (CUP 15-03)
• Site Development Plan (SDP 14-11)
• Coastal Development Permit (CDP 14-29)
• Hillside Development Permit (HDP 14-06)
• Specific Plan Amendment (SP 207(K))
In addition, the City may use the Final EIR to approve other discretionary actions for
which the environmental impacts have been analyzed therein. The Final EIR may also be
used by responsible and trustee agencies in connection with project-related
approvals/conditions including, without limitation, conformance to the National Pollutant
Discharge Elimination System (NDPES) Construction General Permit (State Water
Resources Control Board/Regional Water Quality Control Board [SWRCB/RWQCB]) and
Municipal Storm Water Permit (RWQCB).
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D. Statement of Objectives
As described in Section 3.1 of the Final EIR, the following objectives are identified for the
proposed project:
• Develop the City-owned property with a use that would generate long-term revenue
for the City by means of leasehold rent, transient occupancy tax (TOT), sales tax,
and property tax revenues.
• Support increased tourism and provide additional leisure and recreational options to
visitors of the City.
• Develop a four-star hotel to address an underserved market.
• Develop a project that incorporates a "life style brand" hotel that will benefit The
Crossings Golf Course by generating additional green fees.
• Provide additional tourist accommodations that integrate with the existing Sheraton
and MarBrisa resorts adjacent to the project site.
• Develop a project that is architecturally compatible with the surrounding properties.
III. ENVIRONMENTAL REVIEW AND PUBLIC PARTICIPATION
A NOP, prepared in compliance with Section 15082 of the CEQA Guidelines, was
distributed for the project from April 13, 2015 to May 12, 2015. The NOP, associated
comments, and responses are included in the FEIR as Appendix A.
The Draft EIR for the proposed project was then prepared and circulated for review and
comment by the public, agencies, and organizations for a public review period that began on
July 29, 2015 and concluded on September 11, 2015. A Notice of Completion of the Draft
EIR was sent to the State Clearinghouse and the Draft EIR was circulated to state agencies
for review through the State Clearinghouse, Office of Planning and Research (SCR No.
2015041042). A Notice of Availability of the Draft EIR was mailed to organizations and
parties expressing interest in the project, filed with the City Clerk, and published in the
San Diego Daily Transcript. Public comments received on the Draft EIR and responses to
those comments have been incorporated into the Final EIR as Appendix L.
IV. GENERAL FINDINGS
The City hereby finds as follows:
• The City is the "Lead Agency" for the proposed project evaluated in the Final EIR.
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• The Draft EIR and Final EIR were prepared in compliance with CEQA and the
CEQA Guidelines.
• The City has independently reviewed and analyzed the Draft EIR and Final EIR,
and these documents reflect the independent judgment of the City Council and the
City.
• The City has adopted a MMRP for the proposed project. That MMRP is included as
Chapter 10 of the Final EIR and is considered part of the Record of Proceedings for
the proposed project.
• In determining whether the proposed project has a significant impact on the
environment and in adopting these Findings pursuant to §21081 of CEQA, the City
has based its decision on substantial evidence and complied with CEQA §§21081.5
and 21082.2 and CEQA Guidelines 15091(b).
• Pursuant to Senate Bill 18, the City provided consultation opportunity with Native
American tribes. Meetings with the City, applicant, and representatives of the San
Luis Rey Band of Mission Indians occurred on several occasions both prior to and
after public review of the Draft EIR. The proposed mitigation plan and alternative
foundation design to minimize potential cultural resource impacts was refined with
input from tribal representatives.
• The City reviewed the comments received on the Draft EIR and Final EIR and the
responses thereto and has determined that neither the comments received nor the
responses to such comments or associated Final EIR revisions add significant new
information regarding environmental impacts to the Draft EIR or Final EIR. The
changes to the Final EIR would not result in any new significant environmental
impact or increase the severity of an environmental impact.
• The City has based its actions on full appraisal of all viewpoints, including all
comments received up to the date of adoption of these Findings concerning the
environmental impacts identified and analyzed in the Final EIR.
V. SUMMARY OF IMPACTS
In identifying the following impacts that are less than significant without mitigation, the
City has considered project design features, as well as applicable plans, programs,
regulations, and policies. The Final EIR concludes that the proposed project will have no
significant impacts and require no mitigation measures with respect to the following
issues:
• Aesthetics
• Agriculture and Forestry Resources
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• Air Quality
• Biological Resources (Sensitive Habitats, Jurisdictional Wetlands and Waters,
Wildlife Corridors, Local Ordinances)
• Cultural and Paleontological Resources (Historic Resources only)
• Geology and Soils
• Greenhouse Gas
• Hazardous Materials
• Hydrology and Water Quality
• Land Use (Physically Divide an Established Community, Conflicts with Applicable
Plans and Zoning, and Local Coastal Program)
• Mineral Resources
• Noise
• Population and Housing
• Public Services
• Transportation and Circulation
• Utilities
VI. FINDINGS REGARDING SIGNIFICANT IMPACTS
In making each of the Findings herein, the City has considered the project design features
and plans, programs, and policies identified throughout the Final EIR. The project design
features described throughout the Final EIR are part of the project that the City has
considered, and the project may only be constructed in accordance with the project design
features regardless Of whether they are explicitly made conditions of the project permits.
The plans, programs, and policies discussed in the Final EIR are existing regulatory plans
and programs, which the project is subject to regardless of whether they are explicitly made
conditions of the project permits.
The CEQA Guidelines state that an agency's Findings must be "accompanied by a brief
explanation of the rationale for each Finding" (14 California Code of Regulations
§15091(a)). This requirement applies to the Findings relating to mitigation of significant
impacts, mitigation measures under the jurisdiction of another agency, and infeasibility of
mitigation measures and alternatives required under Public Resource Code §21081(a) and
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14 California Code of Regulations §15091(a), (c). Every citation to the Final EIR or other
documents identified in these Findings is hereby incorporated by reference as if fully set
forth herein.
A. Findings Regarding Significant Impacts That Can be Mitigated to Below
a Level of Significance (CEQA 121081(a)(1) and CEQA Guidelines
§15091(a)(1))
The City, having reviewed and considered the information contained in the Final EIR, and
the Record of Proceedings pursuant to CEQA §21081(a)(1) and CEQA Guidelines
§15091(a)(1), adopts the following Findings regarding the significant effects of the proposed
project, as follows:
(1) Changes or alterations have been required in, or incorporated into, the project which
would mitigate avoid or substantially lessen the significant environmental effects as
identified in the Final EIR as described below:
Biological Resources
Sensitive Wildlife Species
Potentially Significant Effect
Potentially significant impacts to sensitive wildlife could result during project grading and
construction. Specifically, construction during thedoreeding season could adversely impact
nesting or migratory birds, including raptors that may occupy the on-site eucalyptus trees.
Additionally, construction during the breeding season of the coastal California gnatcatcher
would generate noise that could disrupt nesting or breeding activities in the off-site coastal
sage scrub habitat.
Facts in Support of Finding
The potentially significant impacts to sensitive wildlife shall be mitigated to below a level of
significance with implementation of the mitigation measures identified as BIO-1 and BIO-
2 in Section 4.4.3.2 of the Final EIR.
BIO-1 requires: either construction shall occur outside the bird nesting and breeding
season (February 15 to September 15) or pre-construction surveys shall be conducted to
determine the absence or presence of nests and, if nests are present, implementation of nest
avoidance measures. Nest avoidance measures consist of providing a fenced protective
buffer of at least 500 feet from active nests of listed species, and 300 feet from other
sensitive bird species. All construction activity shall be prohibited within the protective
buffer.
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B10-2 requires: either construction shall occur outside the coastal California gnatcatcher
breeding season (between March 15 and August 15), or U.S. Fish and Wildlife Service
(USFWS) protocol pre-construction nest surveys shall be conducted and nest avoidance
measures shall be implemented if nests are found. For coastal California gnatcatcher
avoidance measures, a qualified acoustician must complete a study showing that noise
generated by construction activities will not exceed 60 A-weighted decibels (dB(A)) hourly
average at the edge of occupied habitat prior to construction, and take of active nests shall
be prohibited.
Rationale and Conclusion
Impacts to raptors, migratory, nesting birds, or coastal California gnatcatcher would be
mitigated through implementation of BIO-1 and BIO-2, which require grading and
construction to occur outside the bird breeding season. If grading must occur during the
breeding/nesting season, pre-construction surveys would be required to determine absence
or presence. If present, appropriate buffers would be implemented to avoid direct impacts.
Measure BIO-2 would further require noise analysis and monitoring to ensure that noise
levels do not exceed 60 dB(A) hourly equivalent sound level (Lea) within 500 feet of habitat
occupied by the coastal California gnatcatcher. A fenced protective buffer and supervision
by a qualified biologist would also be required. Project impacts to sensitive wildlife would be
mitigated to below a level of significance. Implementation of these mitigation measures is
assured through their incorporation into the project's MMRP.
Reference: Final EIR Section 4.4.3.
Cultural Resources
Archaeological Resources
Potentially Significant Effect
The project site contains portions of a significant archaeological site, CA-SDI-8797 Locus C,
which was previously capped in conjunction with a prior project and includes a subsurface
archaeological deposit and human burial(s). Development of the project site would result in
some disturbance to CA-SDI-8797 Locus C; however, impacts to known human burials
would be avoided. Disturbance of CA-SDI-8797 Locus C would be considered a significant
impact. In addition, project grading could result in significant impacts to currently
unknown and buried prehistoric/archaeological resources on-site.
Facts in Support of Finding
The project's potentially significant impacts to the capped portion of CA-SDI-8797 Locus C
would be avoided to the maximum extent practicable through the use of an alternative
foundation design that would allow the structure in the location of CA-SDI-8797 Locus C to
essentially float over the ground surface by transferring the weight of the structure deep
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into the earth by installing concrete piles, or caissons. The structure would require 47
caissons to support tile hotel foundation, and each caisson would require disturbance of an
approximately 1 meter x 1 meter section of earth. Additionally, installation of the elevator
pit and basement area would require penetration of the capped portion of CA-SDI-8797
Locus C, which would be a potentially significant impact.
Implementation of the data recovery program as detailed in ARC-1 would ensure that any
cultural material present in the area of SDI-8797 Locus C would be recovered and reburied
within the project site to retain the cultural value of the resource on-site. The data recovery
program would include hand excavation of 100 percent of the material extracted from the 1
meter x 1 meter test units for each caisson; data recovery of the basement and elevator pit
at a minimum of 15 percent of the excavated material, up to 100 percent of the excavated
material depending on the extent of cultural materials encountered during data recovery
for caissons; and additional data recovery within the fenced area around the water tank
that has never been subject to subsurface archaeological testing. Implementation of ARC-1
would ensure that the research potential of the site has been exhausted and that any
cultural material encountered during data recovery would be identified and reburied within
the on-site open space easement to preserve cultural material within the site.
The project's potentially significant impacts to currently unknown and buried
prehistoric/archaeological resources on-site would be mitigated through implementation of
mitigation measure ARC-2. Specifically, ARC-2 requires the preparation of a monitoring
plan and the presence of the Archaeological Monitor and Native American Monitor from the
San Luis Rey Band of Mission Indians during grading/excavation/ trenching activities that
could result in impacts to archaeological resources as identified in the monitoring plan.
Prior to any construction permits, the City shall verify that the requirements for
archaeological monitoring and Native American monitoring have been noted on the
appropriate construction plans. The Qualified Archaeologist and Native American Monitor
shall attend any grading/excavation-related preconstruction meetings to make comments
and/or suggestions concerning the archaeological monitoring program. Included in this
mitigation measure is the requirement that the Archaeological Monitor shall document
field activity and if a discovery is made, the monitors shall divert construction activities
from the area of discovery. After following the identified protocol to determine significance,
either a data recovery program shall be implemented for significant resources or less than
significant artifacts shall be collected, curated, and documented in the Final Monitoring
Report.
If human remains are discovered, work shall stop in that area, and the procedures as set
forth in the California Public Resources Code (Sec. 5097.98) and State Health and Safety
Code (Sec. 7050.5) shall be followed. Additional details of this mitigation measure are
included in Section 4.4.4.3 of the Final EIR.
Mitigation measure ARC-3 would provide protection in perpetuity through an open space
easement for the known archaeological resources on-site. While the project would impact a
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portion of CA-SDI-8797 Locus C through installation of caissons and a basement and
elevator pit, the majority of this site would remain undisturbed. Measure ARC-3 would
ensure that no further disturbance to the archaeological site would occur after project
construction.
Rationale and Conclusion
The actions making up mitigation measure ARC-1 identified in Section 4.4.4.3 of the Final
EIR assure the recovery and recording of important prehistoric/archaeological information,
which may otherwise be lost during construction of the proposed project. The requirements
of ARC-2 ensure that an Archaeological Monitor and Native American Monitor from the
San Luis Rey Band of Mission Indians would be present for all grading activities and
assure that grading shall be halted or diverted should any discovery be made. In the event
that a discovery of prehistoric or archaeological resources occurs during grading for the
proposed project, the determination of significance shall be made and the mitigation
measure outlined in the Final EIR shall be implemented. ARC-3 would provide protection
in perpetuity for the known archaeological resources on-site (CA-SDI-8797 Locus C). These
mitigation measures would reduce potentially significant impacts to archaeological
resources to a less than significant level. Implementation of these mitigation measures are
assured through their incorporation into the project's MMRP.
Reference: Final EIR Section 4.4.4
Paleontological Resources
Potentially Significant Effect
The project site is underlain by Santiago Formation and Lindavista Formation, which have
high and moderate paleontological resource sensitivity, respectively. Project grading would
involve cut and removal of approximately 14,610 cubic yards of material; as a result, there
is a potential for grading to destroy buried fossil remains, resulting in a significant impact
to paleontological resources.
Facts in Support of Finding
The project's potentially significant impacts to paleontological resources will be mitigated to
below a level of significance with implementation of the mitigation measure identified in
Section 4.4.6.3 of the Final EIR. Implementation of the mitigation measure PAL-1 shall
require paleontological monitoring requirements' to be noted on the appropriate
construction plans, a monitoring plan be prepared prior to the start of construction to
identify areas that shall be monitored, and presence of a paleontological monitor on-site
during grading. In the event of a discovery, grading activities in the area of discovery are
required to stop. The resource is required to be studied so that a determination of
significance can be made. If the resource is significant, appropriate collection and curation
is required. Upon completion of construction, a Draft Monitoring Report shall be prepared
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that describes the results, analysis, and conclusions of all phases of the Paleontological
Monitoring Program. Additional details of this measure are found in Section 4.4.6.3 of the
Final EIR.
Rationale and Conclusion
These individual actions making up mitigation Measure PAL-1 assure the recording and
recovery of important paleontological information,' which may otherwise be lost during
construction of the .proposed project. The requirement for a monitor to be present for all
construction activities, along with the specified processes, assures that grading will be
halted or diverted should any discovery be made. Implementation of the mitigation
measure assures that significance testing occurs immediately and that important
discoveries are reported and/or collected. Because the discovery of any paleontological
resources will not occur until the grading for project construction is underway, it is not
feasible to pursue preservation in place as a mitigation measure in the event of the
discovery of significant resources. This mitigation measure will reduce potentially
significant impacts to paleontological resources to less than significant. Implementation of
this mitigation measure is assured through its incorporation into the project's MMRP.
Reference: Final EIR Section 4.4.6
Land Use
Multiple Habitat Conservation Program/Habitat Management Plan Consistency
Potentially Significant Effect
While the project would not result in any direct impacts to the adjacent Habitat
Management Plan (HMP) Preserve, the project would have the potential to generate noise
during construction that could indirectly impact the coastal California gnatcatcher inside
the adjacent hardline preserve. This would result in a significant impact related to the
City's Multiple Habitat Conservation Program (MHCP)/HMF'.
Facts in Support of Finding
Implementation of mitigation measure B10-2 would reduce potentially significant impacts
to the coastal California gnatcatcher inside the adjacent HMP hardline preserve to below a
level of significance. As stated above; B10-2 requires construction to occur outside the
coastal California gnatcatcher breeding season (between March 15 and August 15) or
USFWS protocol pre-construction nest surveys and nest avoidance measures. For coastal
California gnatcatcher avoidance measures, a Qualified Acoustician must complete a study
showing that noise generated by construction activities will not exceed 60 dB(A) hourly
average at the edge of occupied habitat prior to construction and prohibit take of active
nests. These measures will ensure that no indirect impacts to coastal California
gnatcatcher occur in the adjacent HMP preserve.
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Rationale and Conclusion
Implementation of mitigation measure B10-2 requires noise analysis and monitoring to
ensure that noise levels do not exceed 60 dB(A) hourly Leg within 500 feet of habitat
occupied by the coastal California gnatcatcher. A fenced protective buffer and supervision
by a Qualified Biologist would also be required. Implementation of this mitigation measure
is assured through its incorporation into the project's MMRP.
Reference: Final EIR Section 4.8.6
B. Findings Regarding Mitigation Measures Which are the Responsibility
of Another Agency (CEQA §21081(a)(2)) and CEQA Guidelines
§15091(a)(2))
The City, having reviewed and considered the information contained in the Final EIR, finds
pursuant to CEQA §21081(a)(2) and CEQA Guidelines §15091(a)(2) that there are no
changes or alterations which could reduce significant impacts that are within the
responsibility and jurisdiction of another public agency.
C. Findings Regarding Infeasible Mitigation Measures or Alternatives
(CEQA §21081(a)(3) and CEQA Guidelines §15091(a)(3))
The City, having reviewed and considered the information contained in the Final EIR and
the Record of Proceedings, and pursuant to Public Resource Code §21081(a)(3) and State
CEQA Guidelines §15091(a)(3), finds that specific economic, legal, social, technological, or
other considerations, including considerations of the provision of employment opportunities
for highly trained workers, make infeasible alternatives identified in the Final EIR (SCR
No. 2015041042).
D. Findings Regarding Alternatives Considered and Rejected
Pursuant to CEQA Guidelines §15126.6, the range of potential alternative to the proposed
project shall include those that could feasibly accomplish most the basic objectives of the
project and could avoid or substantially lessen one or more of the significant effects. An EIR
should briefly describe the rationale for selecting the alternatives to be discussed. The EIR
should also identify any alternatives that were considered by the lead agency, but were
rejected as infeasible during the scoping process and briefly explain the reasons underlying
the lead agency's determination. Additional information explaining the choice of alternative
may be included in the administrative record. Among the factors that may be used to
eliminate alternatives from detailed consideration in an EIR are (i) failure to meet most of
the basic project objectives, (ii) infeasibility, or (iii) inability to avoid significant
environmental impacts.
Alternatives considered but rejected include the Alternate Location Alternative and the No
Project/Plan and Zone Consistent Alternative. The Alternate Location Alternative would
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develop the project in an alternate location in proximity to the existing Sheraton and
MarBrisa Resorts and nearby tourist attractions including LEGOLAND Resort. The No
Project/Plan and Zone Consistent Alternative would develop an industrial/office building on
the project site, consistent with the existing Plan and Zone, and would not require a
General Plan Amendment, Specific Plan Amendment, or Rezone.
The Alternate Location Alternative was dismissed because no other site(s) under the City's
ownership in the vicinity of the existing Sheraton and MarBrisa Resorts were identified
that could provide a development that would meet the majority of the project objectives.
Even if property could be acquired by the City that would be in a suitable location, the need
to purchase additional property would negate the project objective of developing the
existing City-owned property to provide revenue for the City. The No Project/Plan and Zone
Consistent Alternative was dismissed because it would not meet the main project objectives
of providing tourist opportunities through development of a hotel.
E. Findings Regarding Alternatives Considered in EIR
The Final EIR examined three alternatives: No Project/No Development Alternative, No
Project/Alternative Consistent with Carlsbad Municipal Golf Course EIR, and Reduced
Development Alternative. These project alternatives are summarized below, along with the
findings relevant to each alternative.
Social Infeasibility/Other Considerations
Under CEQA, "[ilt is the policy of the state that public agencies should not approve projects
as proposed if there are feasible alternatives or feasible mitigation measures available
which would substantially lessen the significant environmental effects of such projects . . .
The Legislature further finds and declares that in the event specific economic, social, or
other conditions make infeasible such project alternatives or such mitigation measures,
individual projects may be approved in spite of one or more significant effects thereof."
(Public Resources Code §21002; emphasis added.) Moreover, CEQA defines "feasible" as
"capable of being accomplished in a successful manner within a reasonable period of time,
taking into account, economic, social, legal, and technological factors." (CEQA Guidelines §
15364; emphasis added.)
Finding for All Alternatives
The City, having reviewed and considered the information contained in the Final EIR and
the Record of Proceedings, and pursuant to Public Resource Code §21081(a)(3) and CEQA
Guidelines §15091(a)(3), hereby finds that specific economic, legal, social, technological, or
other considerations, including considerations of the provision of employment opportunities
for highly trained workers, make infeasible the project alternatives identified in the Final
EIR as described below. More, specifically, based upon the administrative record for the
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project, the City makes the following findings concerning the alternatives to the proposed
project:
No Project/ No Development Alternative
Summary Description of Alternative
The No Project /No Development Alternative addresses the situation that would occur if the
proposed project did not go forward and the project site remained in its existing condition.
Rationale for Selecting this Alternative for Analysis
This alternative was selected for analysis, because it allows decision makers to compare the
impacts of approving the project with the impacts of not approving the project and is
required to be analyzed and considered pursuant to CEQA Guidelines Section
15126.6(e) (3) (B).
Potentially Significant Effects and Grounds for Infeasibility
Under this alternative, the project site would remain in its current undeveloped condition.
Continued use of the project site in its existing condition would result in no significant
impacts. However, this alternative would not meet the basic project objectives or provide
any fiscal benefit to the City through development of the City-owned property. Therefore,
the grounds for infeasibility are that it does not meet basic project objectives and it conflicts
with the City's goals for developing the site to provide a fiscal benefit to the City.
Facts in Support of Finding
While adoption of the No Project/No Development/) Alternative would avoid the proposed
project's significant impacts, the majority of the project objectives would not be attained.
Specifically, it would not generate long-term revenue for the City or provide a hotel to
support tourism. Since this alternative would not meet most of the project objectives, it is
considered infeasible.
Reference: Final EIR Section 9.2
No Project/Alternative Consistent With Carlsbad Municipal Golf Course EIR
Summary Description of Alternative
The No Project/Alternative Consistent with Carlsbad Municipal Golf Course EIR would
develop the site with a 21,000-square-foot conference center on the 2.24-acre City-owned
property. The Carlsbad Municipal Water District water tank would remain as is and not be
removed. This alternative would reduce the overall footprint of the development. Thus, this
alternative would incrementally reduce impacts compared to the project, but would not
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avoid the biological, cultural, and paleontological resources and land use impacts of the
project.
Rationale for Selecting this Alternative for Analysis
This alternative was selected for analysis because it represents a development scenario
consistent with what was analyzed in the environmental document prepared for
development of the Carlsbad Municipal Golf Course. As the No Project/No Development
Alternative already analyzed a no development scenario, this alternative allows decision
makers to compare the impacts of approving a project that was originally envisioned as part
of the Carlsbad Municipal Golf Course project.
Potentially Significant Effects and Ground for Infeasibility
Due to its reduced footprint, this alternative would result in a reduction in the significance
of impacts to the known archaeological site. All other potentially significant impacts of the
project would be the same for this alternative including biological resources, paleontological
resources, and land use. There would be potentially significant impacts to unknown and
buried human remains that would require mitigation; however, this alternative could likely
reduce or avoid potentially significant impacts to CA-SDI-8797 Locus C. However, this
alterative would not meet the basic objective of providing a hotel to serve the tourist
population.
Facts in Support of Finding
The No Project/Alternative Consistent with Carlsbad Municipal Golf Course EIR would not
meet the project objectives because it would not provide a hotel to serve the tourist
population. Additionally, while a conference center at the site would generate some
revenue, there would be no transient occupancy tax revenue generated. Accordingly, as the
this alternative would not fully meet most of the project objectives, it is considered
infeasible.
Reference: Final EIR Section 9.3
Reduced Development Alternative
Summary Description of Alternative
The Reduced Development Alternative would construct the proposed timeshare structures
and would reduce the footprint of the hotel by one-half by reducing the number of units. By
reducing the footprint of the hotel, it is anticipated that the alternative could significantly
avoid impacts to the archaeological site. Grading for the alternative would be similar to the
project because a majority of grading is proposed to allow access to the site from The
Crossings Drive into the subterranean parking garage for the timeshare.
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Rationale for Selecting this Alternative for Analysis
This alternative was selected for analysis to provide an alternative that would meet most of
the basic project objectives while reducing the potentially significant impacts to
archaeological resources. This alternative would provide the decision makers an
opportunity to consider a reduced project that could potentially avoid and preserve in place
the majority of the archaeological site.
Potentially Significant Effects and Ground for Infeasibility
Due to its substantially reduced footprint of the hotel, this alternative would result in a
reduction in the severity of impacts to cultural resources as compared to the project.
Specifically, the majority of the archaeological site could be preserved in place and not
disturbed. All other potentially significant impacts of the project would be the same for this
alternative, including: biological resources, paleontological resources, and land use. This
alternative would still generate revenue for the City, including transient occupancy tax,
although revenues would be reduced due to the reduced size of the hotel. This alternative
would also support tourism and would potentially benefit The Crossings Golf Course by
generating additional green fees; however, it could potentially not provide a top tier hotel to
address an underserved market. Reduction of the number of hotel room by 50% would
violate the franchise agreement with the brand, that is also associated with the adjacent
existing hotel, and would eliminate the possibility of integrating the project with the
adjacent existing hotel and hotel facilities. Therefore, the grounds for infeasibility of this
alternative are that it does not fully meet the main project objectives.
Facts in Support of Finding
The Reduced Development Alternative would only partially meet Objective 1 because it
would generate revenue for the City, but the development would not maximize the use of
the City-owned property and would generate reduced revenue compared to the project. The
alternative would support increased tourism and additional leisure opportunities to visitors
of the City and would meet Objective 2, although to a lesser extent than the project. The
alternative would not meet Objectives 3 or 4 because it would not develop a hotel. The
alternative could meet Objectives 5 and 6 because the alternative could be designed to
integrate with adjacent resorts in an architecturally compatible fashion. In summary, this
alternative was proper to study because it met some of the project objectives; however, it
would only fully meet two objectives (5 and 6) and partially meet two objectives that are
most important to the City, while not meeting two key project objectives related to
developing a hotel. Accordingly, as this alternative would not fully meet most of the project
objectives, it is considered infeasible.
Reference: Final EIR Section 9.4
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VII. STATEMENT OF OVERRIDING CONSIDERATIONS
Pursuant to CEQA Guidelines Section 15093, CEQA requires the decision-making agency
to balance, as applicable, the economic, legal, social, technological, or other benefits,
including region-wide or statewide environmental benefits, of a proposed project against its
unavoidable environmental risks when determining whether to approve the project.
All significant impacts of the project would be mitigated to below a level of significance;
therefore a statement of overriding considerations pursuant to CEQA Guidelines Section
15093 is not required.
VIII. CONCLUSION
For the foregoing reasons, the City concludes that all of the significant impacts of the
proposed project would be mitigated to below a level of significance. Changes to the project
have been incorporated to avoid and substantially lessen potential impacts to cultural
resources. . Therefore, the City has adopted these Findings.
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gch
Westin Hotel and Timeshare Project
Carlsbad, California
SCH #2015041042
Mitigation Monitoring and Reporting Program
The California Environmental Quality Act (CEQA), Section 21081.6, requires that a mitigation monitoring
and reporting program (MMRP) be adopted upon certification of an environmental impact report (EIR)
to ensure that the mitigation measures are implemented. The MMRP specifies what the mitigation is,
the entity responsible for monitoring the program, and when in the process it should be accomplished.
The proposed Westin Hotel and Timeshare project includes a General Plan Amendment, Zone Change and
Local Coastal Program Amendment to change the property land use category to Visitor Commercial (VC)
and the zoning to Commercial Tourist with a Qualified Overlay (C-T-Q). Development of the project would
include removal of an existing municipal 1,500,000-gallon water tank, grading, and the subsequent
development of a four-story, 81,200-square-foot 71-room hotel building, and a four-story, 62,680-square-
foot 36-unit timeshare building with an underground garage. The hotel structure would be constructed
using an alternative foundation system knOwn as Cast-In-Drilled Hole (CIDH) Pile foundation in order to
minimize potential impacts to cultural resources. The project site is tocated on two parcels totaling 3.14
acres in addition to 0.55 acre of adjacent off-site areas.
The Final EIR focuses on issues determined to be potentially significant by the City including aesthetics; air
quality; biological resources; cultural and paleontological resources; greenhouse gas emissions; hazardous
materials, airport safety, and wildfire; hydrology and water quality; land use; noise; public services;
transportation and circulation; and utilities and service systems. Agricultural resources, geology and soils,
mineral resources, and population and housing were addressed in lesser detail in Chapter 8, Effects Found
Not to be Significant. After analysis, potentially significant impacts requiring mitigation were identified for
land use (Multiple Habitat Conservation Plan/Habitat Management Plan consistency), biological resources,
cultural resources, and paleontological resources. The environmental analysis concluded that the
potentially significant impacts associated with land use (Multiple Habitat Conservation Plan/Habitat
Management Plan consistency), biological resources, cultural resources, and paleontological resources
could be avoided or reduced through implementation of recommended mitigation measures.
The following table summarized the potentially significant project impacts and lists the associated
mitigation measures and monitoring efforts necessary to ensure measures are properly implemented.
All mitigation measures identified in the Final EIR are recommended as conditions of project approval
and are stated herein in language appropriate for such conditions.
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BIOLOGICAL RESOURCES
Wildlife Species. Project grading and construction would
result in potentially significant direct impacts to wildlife
species including raptors and migratory or nesting birds
located within the project footprint.
Coastal California gnatcatcher, raptors and migratory and
nesting birds were determined to have the potential to
occur in the project area due to the existence of suitable
habitat. Indirect impacts from construction noise to
coastal California gnatcatcher in the adjacent HMP
hardline preserve and potentially nesting raptors on the
project site would be significant.
B10-1: Pre-construction Surveys. Prior to the issuance of a Notice to Proceed for a subdivision, or any construction permits, such as demolition, grading, or
building, or beginning any construction-related activity, the City shall verify that the following project requirements regarding nesting and migratory birds,
including raptors, are shown on the construction plans:
To avoid any direct impacts to nesting or migratory birds, including raptors, removal of habitat that has potential to support active nests should
occur outside of the breeding season for these species (February 15 to September 15). If removal of habitat must occur during the breeding
season, a qualified biologist shall conduct a pre-construction survey to determine the presence or absence of nesting birds within the proposed
area within three calendar days prior to the start of construction activities, including the removal of vegetation.
If nests of migratory birds or raptors are located, they shall be fenced with a protective buffer of at least 500 feet from active nests of listed
species, and 300 feet from other sensitive bird species. All construction activity shall be prohibited within the protective buffer,
B10-2: Coastal California Gnatcatcher Surveys. Prior to the issuance of a Notice to Proceed for a subdivision, or any construction permits, such as
demolition, grading, or building, or beginning any construction-related activity, the City shall verify that the following project requirements regarding
coastal California gnatcatcher are shown on the construction plans:
No clearing, grubbing, grading, or other construction activities shall occur between March 15 and August 15, the breeding season of coastal
California gnatcatcher, unless the following requirements have been met:
A biologist possessing a valid Endangered Species Act Section 10(a )(1)(A) Recovery Permit shall conduct coastal California gnatcatcher surveys
within 500 feet of potential breeding habitat in the HMP Preserve that would be subject to construction noise levels exceeding 60 decibels [dB(A)]
hourly average. Surveys shall be conducted in accordance with the protocol survey guidelines established by the USEWS (1997). A total of three
surveys shall be conducted no less than one week apart, with the last of these surveys occurring no more than three days prior to construction. If
coastal California gnatcatchers are present, then the following conditions must be met:
a. An analysis showing that noise generated by construction activities would not exceed 60 dB(A) hourly average within 500 feet of occupied
habitat shall be completed by a qualified acoustician and approved by the City Manager or designated appointee. Prior to the commencement
of construction activities between March 15 and August 15, areas restricted from such activities shall be fenced with a protective buffer under
the supervision of a qualified biologist; or
b. Between March 15 and August 15, no construction activities shall occur within any portion of the site where construction activities would
result in noise levels exceeding 60 dB(A) hourly average within 500 feet of occupied coastal California gnatcatcher habitat. Construction noise
shall be monitored to maintain a threshold at or below 60 dB(A) hourly average sound level within 500 feet of occupied coastal California
gnatcatcher breeding habitat. If noise levels supersede the threshold, the construction array shall be changed or noise attenuation measures
shall be implemented to ensure that noise levels do not exceed the threshold.
Prior to any
construction permits,
including but not
limited to, the first
Grading Permit,
Demolition Plans/
Permits and Building
Plans/ Permits, but
prior to the first pre-
construction meeting.
City of Carlsbad
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CULTURAL AND PALEONTOLOGICAL RESOURCES
Cultural Resources. The project site contains a significant CR-1: Cultural Resources Monitoring Program. Due to the high potential for subsurface cultural resources to be encountered at the project site and at Prior to any City of Carlsbad
archaeological site, pursuant to CEQA Guidelines Section
15064.4, known as CA-SDI-8797 Locus C, and a sensitive
Tribal Cultural Resources area. The project would require
off-site project locations, a Qualified Archaeologist and a Luisa() Native American Monitor shall be present during all ground disturbing activities. The
following measures shall be implemented:
A. Monitoring
construction permits,
including but not
limited to, the first
grading and/or excavation that could result in a
substantial adverse impact and/or change to a portion of 1. The applicant/landowner shall enter into a pre-excavation agreement with a representative of the San Luis Rey Band of Mission Indians of
Grading Permit,
Demolition Plans/
CA-SDI-8797 Locus C and the sensitive Tribal Cultural Mission Indians, otherwise known as a Tribal Cultural Resources Treatment and Tribal Monitoring Agreement. A copy of the agreement shall Permits and Building
Resources area. Due to the presence of these known be included in the grading plan submittals for the Grading Permit. The purpose of this agreement shall be to formalize protocols and Plans/ Permits, but
resources on the project site, there is a potential that procedures between the applicant/landowner and the San Luis Rey Band of Mission Indians for the protection and treatment of, including but prior to the first pre-
other undiscovered resources could be encountered and
disturbed during site grading. This could be a significant
impact.
not limited to, Native American human remains, funerary objects, cultural and religious landscapes, ceremonial items, traditional gathering
areas and cultural items, located and/or discovered through a monitoring program in conjunction with the construction of the proposed
project, including additional archaeological surveys and/or studies, excavations, geotechnical investigations, grading, and all other ground
disturbing activities.
construction meeting.
2. Prior to the issuance of any construction permits, including but not limited to, the first Grading Permit or Demolition Plans/Permits, the
applicant shall provide a written and signed letter to the City Planner stating that a Qualified Archaeologist and Luisefio Native American
Monitor have been retained to implement the monitoring program and as described in the pre-excavation agreement.
3. Prior to the start of any ground disturbing activities, a written "Controlled Grade" procedure to be approved by the City, shall be prepared in
consultation with the Luise6o Native American Monitor, Qualified Archaeologist, applicant, and San Luis Rey Band of Mission Indians as
applicable, for any ground disturbing work with machinery occurring in and around CA-SDI-8797 Locus C, and potential other areas in the
general proximity of known cultural deposit locations. The Controlled Grade would have the earth disturbing equipment operate at a
deliberate pace, in a specialized manner and work in controlled increments. In addition, the equipment would need to meet specific
requirements regarding weight, attachments and type of wheels.
4. The Qualified Archaeologist shall maintain ongoing collaborative consultation with the Luiseno Native American Monitor during all ground
disturbing activities. The requirement for the monitoring program shall be noted on all applicable construction documents, including
demolition plans, grading plans, etc. The applicant shall notify the City of Carlsbad in writing of the start and end of all ground disturbing
activities. The Qualified Archaeologist and Luiseflo Native American Monitor shall be present on-site full-time during ground disturbing
activities, including but not limited to, grubbing, excavation, grading and/or other ground altering activities, including the placement of
imported fill materials or fill used from other areas of the project site, to identify any evidence of potential archaeological or tribal cultural
resources. The presence of the Qualified Archaeologist and the Luiseno Native American monitor are a mandatory requirement for all grading
activity.
S. Prior to the initiation of grading, the contractor shall organize a pre-construction meeting of all personnel scheduled to work on the grading
and construction phases of the project . The Qualified Archaeologist and Luise6o Native American Monitor shall present the monitoring
program to the general Contractor and associated sub-contractors in attendance. A written summary of the monitoring program shall be
distributed to all personnel hired and scheduled to work on the grading and construction phases of the project..
6. The Qualified Archaeologist or the Luiserio Native American Monitor may halt ground disturbing activities if archaeological artifact deposits
and/or Tribal Cultural Resources are discovered. Ground disturbing activities shall be directed away from these deposits to allow a
determination of potential importance. Isolates and clearly non-significant deposits will be minimally documented in the field. Before grading
proceeds Tribal Cultural Resources shall be given to the San Luis Rey Band of Mission Indians so that they may be repatriated at the site on a
later date. If a determination is made that the unearthed artifact deposits or Tribal Cultural Resources are considered potentially significant,
the San Luis Rey Band of Mission Indians shall be notified and consulted with in regards to the respectful and dignified treatment of those
resources. The avoidance and protection of the significant Tribal Cultural Resource and/or unique archaeological resource is the preferable
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mitigation , however, the resource may be more appropriately treated according to an approved Cultural Resource Recovery Plan. For
significant artifact deposits or Tribal Cultural Resources that are to be treated pursuant to a recovery plan, an adequate artifact sample to
address research avenues previously identified for sites in the area will be collected using professional archaeological collection methods. If
the Qualified Archaeologist collects such resources, the Luiserio Native American Monitor must be present during any testing of those
resources. Moreover, if the Qualified Archaeologist does not collect the cultural resources that are unearthed during the ground disturbing
activities, the Luisa° Native American Monitor, may at their discretion, collect said resources and provide them to the San Luis Rey Band of
Mission Indians for respectful and dignified treatment in accordance with the Tribe's cultural and spiritual traditions.
7. Any and all uncovered Tribal Cultural Resources of Native American importance shall be returned to the San Luis Rey Band of Mission Indians
of Mission Indians, and/or the Most Likely Descendant, if applicable, for respectful and dignified treatment and not be curated.
8. All fill materials shall be absent of any and all Tribal Cultural Resources.
9. No testing, invasive or non-invasive, shall be permitted on unearthed Tribal Cultural Resources without the written permission of the San Luis
Rey Band of Mission Indians.
10. Prior to the release of the grading bond, a monitoring report and/or evaluation report, if appropriate, which describes the results, analysis and
conclusions of the monitoring program (e.g., Cultural Resource Recovery Plan) shall be submitted by the Qualified Archaeologist, along with
the Luiserio Native American Monitor's notes and comments, to the City of Carlsbad for approval. Said report shall be subject to confidentiality
as an exception to the Public Records Act and will not be available for public distribution.
The project site contains a significant archaeological site,
pursuant to CEQA Guidelines Section 15064.4, known as
CA-SDI-8797 Locus C, and occurs in a sensitive Tribal
Cultural Resource area. The project would require grading
and/or excavation that could result in a substantial
adverse impact and/or change to a signficiant portion of
CA-SDI-8797 Locus C and the sensitive Tribal Cultural
Resource area. Impacts to CA-SDI-8797 Locus C and the
sensitive Tribal Cultural Resource area will be significant.
CR-2. Cultural Resource Data Recovery Plan. In order to mitigate for potential impacts to significant cultural resources associated with CA-SDI-8797 Locus
C, a CERA signficiant archaeological site and a sensitive Tribal Cultural Resource area, a Cultural Resource Data Recovery Plan (DRP) shall be developed in
consultation with a Qualified Archaeologist and the San Luis Rey Band of Mission Indians (SLR) to be approved by the City of Carlsbad. The DRP shall include
research design, excavation, analysis, a report of findings, and the repatration of all cultural resources to the San Luis Rey Band of Mission Indians for
respectful and dignified treatment. The DRP shall be approved by the City prior to issuance of any construction permit, including but not limited to, the first
Grading Permit, Demolition Plans/Permits and Building Plans/Permit, and prior to the first pre-construction meeting.
Prior to any
construction permits,
including but not
limited to, the first
Grading Permit,
Demolition
Plans/Permits and
Building Plans/ Permits,
but prior to the first
pre-construction
meeting.
City of Carlsbad
Page 4
DOCS 121163-000006/2419403.4
Potential Significant Impact
Mitigation Monitoring and Reporting Program
Mitigation Measure
Timefra me of
Mitigation
Monitoring,
Enforcement, and
Reporting
Responsibility
Human Remains and Archaeological Resources. The
project site contains the archaeological site CA-SDI-8797
Locus C and known human burial(s) that were discovered
during grading for the Carlsbad Municipal Golf Course and
the Lot 9 pad and left in place at the time of discovery.
These known resources will be preserved in place and will
not be disturbed. Grading and development of the
proposed project could disturb undiscovered resources,
resulting in a potentially significant impact.
CR-3: Repatriation and Report of Findings
a. A repatration area(s) shall be identified in an area deemed appropriate by the San Luis Rey Band of Mission Indians and agreed upon by the City
and the applicant to be used in the event that significant Tribal Cultural Resources are discovered. Repatriation areas shall either be located on
the project site and/or within close proximity to the project site. A repatriation area shall have a Cultural Conservation Easement and/or similar
restrictive easement executed and recorded on the property to protect the cultural resources in perpetuity. The applicant shall be responsible for
all costs and/or expenses related and/or associated with the repatriation rrea.
b. Human Remains. As specified by California Health and Safety Code Section 7050.5, if human remains are found on the project site during
construction or during archaeological work, the person responsible for the excavation, or his or her authorized representative, shall immediately
notify the San Diego County Coroner's office by telephone. No further excavation or disturbance of the site or any nearby area reasonably
suspected to overlie adjacent remains shall occur until the Coroner has made the necessary findings as to origin and disposition pursuant to
Public Resources Code 5097.98. If such a discovery occurs, a temporary construction exclusion zone shall be established surrounding the area of
the discovery so that the area would be protected, and consultation and treatment could occur as prescribed by law. By law, the Coroner will
determine within two working days of being notified if the remains are subject to his or her authority. If the Coroner recognizes the remains to
be Native American, he or she shall contact the Native American Heritage Commission (NAHC) within 24 hours. The NAHC will make a
determination as to the Most Likely Descendent (MLD). If Native American remains are discovered, the remains shall be kept in-situ, and the
analysis of the remains shall only occur on-site in the presence of a Luisa° Native American Monitor.
c. In order to permanently protect portions of 50I-8797 Locus C, and other areas that are deemed to be significant Tribal Cultural Resource areas by
the landowner and the San Luis Rey Band of Mission Indians, that will not be directly impacted by the construction of the project, the City of
Carlsbad and the applicant shall place a Cultural Conservation Easement over said locations and/or areas and have such easement recorded on
the property. This easement will restrict any future disturbance of the cultural deposit area. The Qualified Archeologist and Luisefio Native
American Monitor shall have the authority inherit in and responsibility to ensure that construction activities are not expanded beyond the limits
presented in "Mitigation Monitoring and Reporting Program" for the Westin Hotel and Timeshare project. The delineation of the boundaries of
the Cultural Conservation Easement shall be completed by the consulting Qualified Archaeologist and San Luis Rey Band of Mission Indians Tribal
representative and submitted to the City of Carlsbad. The applicant shall be responsible for all costs and expenses incurred in association with
this mitigation measure.
Prior to granting of
occupancy permits or
before final inspection.
City of Carlsbad
Page 5
DOCS 121163-000006/2419403.4
Potential Significant Impact
Mitigation Monitoring and Reporting Program
Mitigation Measure
Timefra me of
Mitigation
Monitoring,
Enforcement, and
Reporting
Responsibility
Paleontological Resources. Project implementation has
the potential to result in significant impacts to
paleontological resources due to grading within
formations with a high and moderate resource sensitivity.
Impacts would be significant.
PAL-1: Paleontological Monitoring
1. Monitoring Plan
Prior to any grading on any portion of the project site, a qualified paleontologist shall be retained by the City to prepare a Monitoring Plan.
A qualified paleontologist is an individual with an MS or PhD in paleontology or geology who is familiar with paleontological procedures
and techniques. No Grading Permits shall be issued until the monitoring plan has been approved by the Planning Director.
2. Pre-Grading Conference and Paleontological Monitor
a. A qualified paleontological monitor shall be present at a pre-grading conference with the developer, grading contractor, and the
environmental review coordinator. The purpose of this meeting will be to consult and coordinate the role of the paleontologist in the
grading of the site. A qualified paleontologist is an individual with adequate knowledge and experience with fossilized remains likely
to be present to identify them in the field and is adequately experienced to remove the resources for further study.
b. A paleontologist or designate shall be present during those relative phases of grading as determined at the pre-grading conference.
The monitor shall have the authority to temporarily direct, divert, or halt grading to allow recovery of fossil remains. At the discretion
of the monitor, recovery may include washing and picking of soil samples for micro-vertebrate bone and teeth. The developer shall
authorize the deposit of any resources found on the project site in an institution staffed by qualified paleontologists as may be
determined by the Planning Director. The contractor shall be aware of the random nature of fossil occurrences and the possibility of a
discovery of such scientific and/or educational importance which might warrant a long-term salvage operation or preservation. Any
conflicts regarding the role of the paleontologist and/or recovery times shall be resolved by the Planning Director.
3. Fossil Recovery and Curation
a. If fossils are discovered, the paleontologist (or paleontological monitor) shall recover them. In most cases, this fossil salvage can be
completed in a short period of time. However, some fossil specimens (such as complete large mammal skeleton) may require an
extended salvage period. In these instances the paleontologist (or paleontological monitor) shall be allowed to temporarily direct,
divert, or halt grading to allow recovery of fossil remains in a timely manner. Because of the potential for the recovery of small fossil
remains, such as isolated mammal teeth, it may be necessary in certain instances, to set up a screen-washing operation on the site.
b. Fossil remains collected during the monitoring and salvage portion of the mitigation program shall be cleaned repaired, sorted, and
cataloged.
c. Prepared fossils, along with copies of all pertinent field notes, photos, and maps, shall either be deposited (as a donation) in a
scientific institution with permanent paleontological collections such as the San Diego Natural History Museum or retained by the City
and displayed to the public at an appropriate location such as a library or City Hall.
4. Monitoring Report
Prior to occupancy of any buildings, a paleontological monitoring report shall be submitted to the Planning Director and the Carlsbad
Historic Preservation Commission. This report shall describe all the materials recovered and provide a tabulation of the number of hours
spent by paleontological monitors on the site.
Prior to any construction
permits, including but
not limited to, the first
Grading Permit,
Demolition Plans/
Permits and Building
Plans/Permits, but prior
to the first pre-
construction meeting.
City of Carlsbad
LAND USE
MHCP/HMP Consistency. Impacts to the mHcp/HMP
would be potentially significant due to noise generated
during construction that could impact the coastal
California gnatcatcher in the adjacent preserve area.
See mitigation measure B10-2: Coastal California Gnatcatcher Surveys. See mitigation measure
B10-2
See mitigation
measure 1310-2
Page 6
DOCS 121163-000006/2419403.4
Letters of Comment and Responses
Westin Hotel and Timeshare Project Final EIR
Letters of Comment and Responses
The following letters of comment were received from agencies, organizations, and
individuals during the Public Review period (July 29 through September 11, 2015) of
the Draft EIR. A copy of each comment letter along with corresponding staff
responses is included here. Some of the comments did not address the adequacy of
the environmental document; however, staff has attempted to provide appropriate
responses to all comments as a courtesy to the commenter. Some of the comments
received resulted in changes to the Draft EIR text. These text changes are indicated
by strikeout (deleted) and underline (inserted) markings in the Final EIR text and
are summarized in the Errata. Revisions to the Draft EIR are intended to correct
minor discrepancies and provide additional clarification. The revisions do not affect
the conclusions of the document.
Letter Author Page Number
A Governor's Office of Planning and Research RTC-2
B Native American Heritage Commission RTC-4
C San Diego County Archaeological Society, Inc. RTC-8
Westin Hotel and Timeshare EIR
RTC-1
Letter A
A-1 Comment noted.
STATE OF CALIFORNIA
GOVERNOR'S OFFICE of PLANNING AND RESEARCH
STATE CLEARINGHOUSE AND PLANNING UNIT
Subject: Westin Hotel and Timeshare
SCHii: 2015041042
Dear Christer Westman:
The State Clearinghouse submitted the above named Draft EIR to selected Nate agencies for review.. The
review period closed on September 3,2015, and no state agencies submitted dointhents by that date. 'Tilts
letter acknowledges that you have complied with the State Clearinghouse review requirements for draft.
environmental documents, pursuant IC the California Environtuental Quality Act.
Please call the State Clearinghouse at (916)445-0613 if you have any questionaregardIngtha
environmental review process. If you have a question about the above-named project, please refer to the
ten-digit State Clearinghouse number when contacting this office.
Sincerely,
Scot' Morgan
Director, State Clearinghouse
1400 10th Street P.O. Box 3044 Sacramento, California 95812-3044
(916)445-0613 FAX (916) 323-3018 www.opr.ca.gov
A-1
EDMUND G. BRAWN JR. Govunnon
KEN ALE.
City of CariSbad Thmam
Sepiember4, 2015
1
Christer Westman
City of Carlsbad
Planning Department
1635 Faraday Avenue
Carlsbad, CA 92008
Planning Division
LETTER
RESPONSE
Westin Hotel and Timeshare EIR
Page RTC-2
LETTER RESPONSE
Document Details Report
State Clearinghouse Data Base
SCHO .2016041042
Project Title Westin HotelandTimishare
Lead Agency Carlsbad, City of.
Type SIR Draft E1R.
Description Development of a previously graded 3.66 acre industrial pad with a 71-room hotel and a 36-unit
timeshare with underground parking, .a ovininiing pool tecreatlen area, and passive landscaped
gardens.
Lead Agency Contact
Name Christer Westman
Agency City of Carlsbad
Phone 760 602 4614
email
Address Planning Department
1635 Faraday Avenue
City Carlsbad
Fax
State CA Zip 92008
Project Location.
County San Diego
City Carlsbad
Region
Lot/ Long 33' r 48° N /117.18.2r W
Cross Streets The.Grossings Drive and Grand Pacific Drive
Parcel No. 211-023-07 /212-271.62
Township Range Section Base
Proximity to:
Highways 1-5
Airports McClellan Palomar
Railways N1C7D
Waterways Pacific Ocean
Schools
Land Use Vacant pad and empty 1.5w gallon water tank I Planned Industrial - Exclusive Agriculture /Planned
Industrial - Unplanned Area
Project issues AesthelicNisual; Agricultural Land; Air Duality; Archaeologic-Hisforic; litiologlealResourcess;.eoastal
Zone; Drainage/Absorption; Flood Plain/Flooding; Forest Land/Fire Hazard; Geologic/Seisrr*
Minerals; Noise; Population/Housing Balance; Public Services; Recreation/Parks; Sewer Capaellyl.Soil •
Erosion/Compaction/Grading; Solid Wade; Toxic/Hazardous; Traffic/Circulation; Vegetation; Water
Duality; Water Supply; Wetland/Riparian; Growth Inducing; Landuse: Cumulative Effects; Other Issues
Reviewing Resources Agency; California Coastal Commission; Department of Fish.and Wildlife, Region 5; Cat
Agencies Fire; Department of Parks and Recreation; Department of Water Resources; Cal/runs, Division of
Aeronautics; Caltrans, District 11; Air Resources. Board; Regional Water Quality Control Board, RegMn
9; Department ot Toxic SubstancesControfi Native American Heritage Commission; Public UtIlitIes
Commission; State Lands Commission
DateReceived 07/21/2015 Start of Review 07/21/2015 End of Review 09/03/2015
Note: Blanks In data fields result from insufficient information provided by lead agency.
Westin Hotel and Timeshare EIR
Page RTC-3
Letter B
B-1 Consultation between the City, applicant, and representatives of the
San Luis Rey Band of Mission Indians occurred on several occasions
both prior to and after public review of the Draft Environmental
Impact Report (EIR). Consultations occurred between March, 2015
and December, 2015. At an October consultation, the project
applicant presented a commitment to avoid significant impacts to
known human remains and proposed an alternative foundation
design to a typical shallow foundation system, a deep foundation
system known as Cast-In-Drilled Hole (CIDH) Pile foundation,
which would significantly reduce the amount of disturbance to the
capped portion of CA-SDI-8797 Locus C. The pile foundation system
would support the structure so that it "floats" above the ground
surface and transfers the weight of the structure deep into the earth
by means of the concrete piles, or caissons. Thus, the project has
been redesigned to avoid and preserve in place all known human
remains as well as reduce to the greatest extent feasible,
disturbance to the capped portion of CA-SDI-8797 Locus C.
B-2 As described in response B-1 above, the project has been redesigned
so that it would avoid and preserve in place all known human
remains. Thus, mitigation measure ARC-3, Recovery of Known
Human Burial is no longer required. The City conferred with
representatives from the San Luis Rey Band of Mission Indians
(SLR), as the Most Likely Descendant (MLD) regarding the
proposed project redesign and avoidance of known human remains.
The proposed mitigation plan to address potentially significant
impacts to unknown human remains was also refined with input
from tribal representatives.
NATIVE AMERICAN HERITAGE COMMISSION•
1650 Harbor Blvd., Suite 100
West Sacramento, CA 95691 (916) 373-3710
Fen (916)373)6471
Towle L Robinson, General Counsel (916) 373-3716
7orrie.RoblneonWnette.ea.gov
Sgf• '•
Planning Division
September 4, 2015
VIA EMAIL AND U.S. MAIL
Christer Westman, Senior Planner
Carlsbad Planning Division
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
Re: Comments of the Native American Heritage Commission, Westin Hotel and
Timeshare DEIR EIR 15-02/GPA 14-03/ZC 14-02/LCPA 14-03/SP 207(K)/CT
14-08/PUD 15-01/CUP l5-03/SDP 14-11/CDP 14-29/HDP 14-06
On behalf of the Native American Heritage Commission (NAHC), I wish to comment on
the Draft Environmental Impact Report (DEAR) for the Westin Hotel and Timeshare with respect
to the known Native American burial site on this project and Native American cultural resources
in general. The mitigation measures proposed regarding the known Native American burial are
not in compliance with CEQA Guidelines section 15064.5. subdivisions (d) and (e) and wilt
result in the disinterment of previously reinterred Native American remains, the reintennent of which was intended as a mitigation measure for the construction of the Carlsbad Municipal Golf
Course. As a trustee agency for Native American cultural resources under CEQA,I the NAHC
would welcome the opportunity to work with the City of Carlsbad and the applicant to protect
the burial site and all Native American cultural resources affected by this project. As a matter of
principle, the NAHC opposes the disinterment of previously reinterred Native American remains without the consent of the Most Likely Descendant (MLD), especially when the remains were
previously disturbed and then reinterred as a mitigation measure. The NAHC also proposes
avoidance and preservation in place as the first and second options to be considered before
mitigation and would ask that the applicant and the City of Carlsbad consider these options fully
and thoughtfully.
The NAHC's comments are as follows:
I. Mitigation Measure ARC-3: Recovery of Known Burial
Mitigation Measure ARC-3: Recovery of Known Burial states as a potential significant
impact the fact that the project site contains a known human burial that was discovered and
'See EnWronmental Protection Information Center xplo v. Johnson (1985) 170 Cal.App.3d 604; see generally Koska and Zischke, Practice imdM. the California Environmental Quality; Act
(2015) (CEO) § 20.101 ("If a project is located on a site containing an archaeological site, the
Native American Heritage Commission is .a trustee agency that must be consulted by the lead
agency in connection with the preparation of an EIR or negative declaration.")
B-1
B-2
LETTER RESPONSE
Westin Hotel and Timeshare EIR
Page RTC-4
reinterred during grading for the Carlsbad Municipal Golf Course; and that project grading and
development is anticipated to require disturbance and relocation of these known remains in
coordination with the Most Likely Descendant. It also states as a potential significant impact the fact that there is a potential for unknown human remains to be uncovered during project grading
and these impacts would be potentially, significant
The mitigation measure states that excavations would be conducted, and the goal of the
excavations would be to. locate, pedestal and remove the burial on a block of soil and relocate the
-burial to an off-site-location approved by the MLD.
Nowhere in this mitigation measure is-it _stated that the MLD for this known burial, the
San Luis Rey Band of Mission Indians (STR),lias agreed to the disinterment and reburial of this
known burial, because SLR has not consented to the disinterment. Under CEQA Guidelines
section 15064.5 (d) and (e), and in the absence of avoidance, the failure to work with SLR to
-reach an agreement as to treatment and disposition of this known burial leaves the project
applicant with one and only one option should the remains be disturbed: To reinter any remains
on,fite..promeny in an area where .there will be no further subsurface disturbance, which was the
goal of the previous reinterment. The ambiguity of the term "off-site" does not connote
compliance with CEQA Guidelines section 15064.5, subdivisions (d) and (e) and raises the legal issue whether remains that were intended to be reinterred in an area without- future subsurface
disturbance can be disinterred without the MLD's consent. The-NALIC doubts that SLR would
have agreed-to the-prior reinterment. if they had known.they would' have to disturb- the resting
place of their ancestors-yet again.
CEQA Guidelines section 15064.5, subdivision (d) provides in relevant part:
(d) When an initial study identifies the exiStenc.e of, cir Il*probable likelihood, of Native
American human remains within the - project, the lead agency shall work with -the.
appropriate Native Americans as identified by the Native American Heritage.
Commission as provided in Public Resources Code section 5097.98. The applicant nifty
develop an agreement for treating or disposing of, with appropriate dignity, the human
remains and any items associated with Native American burials with the appropriate
Native Americans as identified by the Native American Heritage CornmissiOM
CEQA Guidelines section 15064.5, subdivision (e) provides:
(e) In the event of the accidental discovery or recognition of any human remains in any
location other than a dedicated cemetery, the following steps should be taken:
(1) There shall be no further excavation or disturbance of the site or any nearby area
reasonably suspected to overlie adjacent human remains until:
(A)The coroner of the county in which the remains are discovered must be contacted to determine that no investigation of the cause of death is required; and
(B) If the coroner determines the remains to be Native American:
2
B-2
cont.
B-2
cont.
Mitigation Measure ARC-2 has been revised to specifically refer to
the San Luis Rey Band of Mission Indians as the appropriate Native
American Monitor during construction. Additionally, a new
Mitigation Measure ARC-3 is proposed that would require
dedication of an open space easement over the cultural resources on-
site and would prohibit any disturbance to the known human
remains.
In the event unknown buried human remains are encountered
during grading for the project site, those human remains would be
handled in accordance with all applicable guidance and regulations
and would be reinterred on-site as requested during consultations
with the MLD.
LETTER RESPONSE
Westin Hotel and Timeshare EIR
Page RTC-5
B-2
cont.
I. The coroner shall contact the Native American Heritage Commission
within 24 hours.
2. The Native American Fleritage Commission shall identify the person or
persons it believes to be the most likely descended from the deceased
Native American.
3. The most likely descendant may make recommendations to the landowner
or the person responsible for the excavation work, for means of treating
or disposing, with appropriate dignity, the human remains tusci any
associated grave goods as provided in Public Resources Code section
5097.98, or
(2) Where the following conditions occur, the landowner or his authorized representative
shall rebury the Native American human remains and associated grave goods with
appropriate dignity on the property in a location not subject to further subsurface
disturbance.
(A) The Native American Heritage Commission is unable to identify a most likely
descendant or the most likely descendant failed to make a recommendation
within 24 hours of being notified by the commission.
(B) The descendant identified fails to make a recommendation; or
(C) The landowner or his authorized representative rejects the recommendation of
the descendant, and the mediation by the Native American Heritage
Commission fails to provide measures acceptable to the landowner.
Nothing in CEQA Guidelines section 15064.5 contemplates the unilateral disinterment of a
known Native American burial by an applicant without the consent of the MLD. Given the
potential for finding more burials in the area of the known burial, in the absence of some
agreement with SLR, the mitigation measure is insufficient to mitigate impacts to the known
burial and what could be a Native American cemetery. Additionally, given that the previous
reinterment of remains was supposed to mitigate previous impacts caused by the construction of
the Carlsbad Municipal Golf Course, the idea that any known Native American reinterments
should be disinterred whenever a new project is proposed for a site where a reinterment was a
mitigation measure is objectionable on both a legal and moral basis, especially given the dictate
that a reinterment of Native American human remains is to be in a site where there should be no
further subsurface disturbance, The NAHC recommends that the applicant enter into a treatment
and disposition agreement with pia.
B-3 2.. Mitigation Measure ARC -I Data Recov le 'rry_omg
Mitigation Measure ARC-1 contemplates data 'recovery .as mitigation for artifacts found
in the same area as the known burial. The determination as to what artifacts are associated grave
goods should be made by the ML!), and there should be some means of resolving conflicts
regarding what are or are not associated grave goods, as the IvILD has.tribal.knowledge and a
significant role. in determining the treatment • and disposition of associated• grave goods under
CEQA Guidelines section 15064.5(d) and (e).
3
B-3 The project includes Mitigation Measure ARC-1, which details the
data recovery plan for project impacts to CA-SDI-8797 Locus C. This
mitigation measure was revised from the Draft EIR version after
consultation with the San Luis Rey Band of Mission Indians. This
measure reflects reduced impacts to CA-SDI-8797 Locus C as a
result of the use of an alternative foundation system as detailed in
Response B-1. At the request of the tribes, the project mitigation
would require that any cultural materials encountered during data
recovery be reburied on-site within the proposed open space
easement to preserve cultural materials in place. This would include
any grave goods that may be encountered. Implementation of
Mitigation Measure ARC-2 for archaeological monitoring requires
the use of a Native American Monitor who will be present to observe
any cultural materials found and identify their cultural significance.
LETTER RESPONSE
Westin Hotel and Timeshare EIR
Page RTC-6
B-4 The portion of Mitigation Measure ARC-2 that required controlled
grading to find the known human burial(s) is no longer required and
has been removed from the Final EIR because the project has been
redesigned to avoid known human burials. The alternative
foundation system would reduce impacts to and would minimize
impacts to the cultural site. 100 percent hand excavation and data
recovery would occur in the location of caisson excavations, and 15
percent or greater data recovery would be required in the location of
the elevator pit and basement excavations as detailed in the
project's Mitigation Monitoring and Reporting Program. Tribal
monitors would be present to monitor all excavations on-site and
would have the authority to halt operations if materials are
identified as detailed in the updated Mitigation Measure ARC-2,
which requires archaeological monitoring.
B-5 This is a concluding paragraph. As discussed in response to
comments B-1 through B-4 and detailed in the Final EIR Errata and
Mitigation Monitoring and Reporting Program, the project has been
redesigned to avoid impacts to known Native American burials. In
addition, the City has worked closely with the San Luis Rey Band of
Mission Indians to identify a compromise solution that would
provide the minimum amount of disturbance to other on-site
cultural resources.
B-4 3. Mitigation Measure ARC-2: Archaeological Monitoring :Program
Mitigation Measure ARC-2 provides under sectionA.5, provides:
In areas within the area of potential effectwhere significant deposits have been identified,
controlled grading may be implemented to carefully peel away layers. of soil, which
would expose features of human remains with minimal damage. The consulting
archaeologist, in conjunction with the Native American monitors, shall determine when
and where the controlled grading is needed. The pace, depth, and location of the
controlled grading protocol will be made in concert with tribal monitors, but it will
ultimately be the responsibility of the consulting archaeologist.
The NM-IC:would propose that the pace, depth and location of the controlled grading protocol be with the consent of tribal monitors, as their unique tribal knowledge regarding the site should be
respected in protecting the Native American burials that could potentially be discovered.
B-5 What makes this particularly disturbing is the:fact that this burial was known to or should have
been known to the City of Carlsbad before leasing the property in question. Native Americans
should not be required to rebury their ancestors every time a new project comes along on a parcel
with a known Native American burial. No other culture would be required to repeatedly rebury
their ancestors. That's not mitigation; that's desecration.
Yo very, truly, 47
Terrie L. Robinson, General Counsel
Native American Heritage Commission
cc: Cynthia Gomez, Executive Secretary, NAHC
Antonette B. Corder°, Deputy Attorney General, Department of Justice
4
LETTER RESPONSE
Westin Hotel and Timeshare EIR
Page RTC-7
Letter C
San Diego County Archaeological Society, Inc.
Environmental Review Committee
City of Carlsbad
2 September 2015
00
Planning Division
C-1 Comment noted.
C-2 Comment noted.
To: Mr. Christer Westman
Planning Division
City of Carlsbad
1635 Faraday Avenue
Carlsbad, California 92008
Subject: Draft Environmental Impact Report
Westin Hotel and Timeshare
EIR .15-02. CPA 14-03, ZC 14-02, LCPA 14-03, SP 207(K), CT 14-08,
PUD 15-01, CUP 15-03, SDP 14-11, CDP 14-29, HOP 14-06
Dear Mr. Westman:
I have reviewed the cultural resources aspects of the subject DEIR on behalf of this committee of
the San Diego County Archaeological Society.
Based on the information contained in the DEIR, we have the following comrnenta:
(I) The cultural resources appendix, Appendix D, is not posted on the City's website with the
main body of the DEIR, and SDCAS was not sent a copy of the appendix. Therefore, our
comments cannot extend to the details of the 2015 work on SDI-8797, Locus C, by Brian F.
Smith & Associates.
(2) Section 4.4 of the DEIR, Cultural and Paleontological Resources, is comprehensive and
well thought out. We concur with the impact analysis and with the mitigation measures as
proposed.
(3) It is unfortunate that the project applicants either chose to ignore the information
available, or failed to do a due-diligence cultural resources study of the property before deciding
to proceed with a proposed development that would impact a portion of a site which
(a) Was capped only about 10 years ago to protect it, presumably in perpetuity, and
(b) Was deemed potentially eligible for the National Register of Historic Places, and
(c) Obviously holds particular cultural sensitivity due to the known burial on the site.
The proposed project disrespects both the cultural and scientific values of Locus C of SDI-8797.
P.O. Box 81106 San Diego, CA 92138-1106 (858) 538-0935
C-3 As described in the responses to Comment Letter B, the project has
been redesigned since public review of the Draft EIR to increase
avoidance to CA-SDI-8797 Locus C and to avoid impacts to known
Native American burial(s) on the project site. This has been
achieved through redesign and use of an alternative foundation
design, which would support the hotel structure so that it "floats"
above the ground surface and transfers the weight of the structure
deep into the earth by means of the concrete piles, or caissons. With
implementation of this redesign and alternative foundation system,
the project would avoid and preserve in place all known human
remains and would avoid disturbance to approximately 80 percent of
CA-SDI-8797 Locus C.
The City recognizes and respects the cultural sensitivity of the
project site and has worked closely with the San Luis Rey Band of
Mission Indians to arrive at a solution that would protect the on-site
cultural resources to the maximum extent practical. The project
would implement the alternative foundation design for the hotel
structure, data recovery for areas of CA-SDI-8797 Locus C that
would be disturbed by the project, additional subsurface
archaeological testing in areas that have never been tested (around
the water tank), and implementation of an open space easement to
protect the on-site cultural resources from further disturbance.
These revised mitigation measures would further reduce impacts to
cultural resources and avoid impacts to human burials. Refer to the
project's Mitigation Monitoring and Reporting Program for details.
C-1
C-2
C-3
LETTER RESPONSE
Westin Hotel and Timeshare EIR
Page RTC-8
SDCAS appreciates the opportunity to participate in the City of Carlsbad's environmental review
process for this project.
Sincerely,
10100r
es W. Royle, Jr., Cha it son
Environmental Review Committee
cc: RECON
Brian F. Smith & Associates
SDCAS President
File
P.O. Box 81106 • San Diego, CA 92138-1106 • (858) 538-0935
LETTER RESPONSE
Westin Hotel and Timeshare EIR
Page RTC-9
Westin Hotel and Timeshare GPA 14-03
EXISTING
PROPOSED
Exhibit "GPA 14-03"
December 16, 2015
Related Case File No(s): ZC 14-02 / LCPA 14-03 /
CT 14-08 / PUD 15-01 / SDP 14-11 / CUP 15-03 /
CDP 14-29 / HDP 14-06 / V 14-03 / EIR 15-02
General Plan Land Use Designation Changes
Property From: To:
A. 212-271-02-00 P1/0 VC
B. 211-023-07-00 P VC
C.
Westin Hotel and Timeshare LCPA 14-03 (Zoning)
EXISTING
PROPOSED
Exhibit "LCPA 14-03"
December 16, 2015
Related Case File No(s): GPA 14-03 / ZC 14-02 /
CT 14-08 / PUD 15-01 / SDP 14-11 / CUP 15-03 /
COP 14-29 / HDP 14-06 / V 14-03 / EIR 15-02
LCPA Zoning Designation Changes
Property From: To:
A. 212-271-02-00 P-M/O C-T-Q
B. 211-023-07-00 E-A C-T-Q
C.
EXISTING
PROPOSED
Exhibit "LCPA 14-03"
December 16, 2015
LCPA 14-03 (Land Use) Westin Hotel and Timeshare
Related Case File No(s): GPA 14-03 / ZC 14-02 /
CT 14-08 / PUD 15-01 / SDP 14-11 / CUP 15-03 /
CDP 14-29 / HDP 14-06 / V 14-03 / EIR 15-02
LCPA Land Use Designation Changes
Property From: To:
A. 212-271-02-00 P1/0 VC
B. 211-023-07-00 P VC
C.