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2001 04 10 PC Minutes MINUTES PLANNING COMMISSION MEETING A regular meeting held at the La Quinta City Hall 78-495 Calle Tampico, La Quinta, CA April 10, 2001' 7:00 P.M. I. 'CALL TO ORDER A. This meeting of the Planning Commission was called to order at 7:00 p.m. by Chairman Robbins who asked Commissioner Butler to lead the flag salute. B. Present: Commissioners Jacques AbelS, Richard Butler, Tom Kirk, Robert Tyler, and Chairman Steve Robbins. C. Staff present: Assistant City Attorney John Ramirez, Planning Manager Christine di Iorio, Senior Engineer Steve Speer, Principal Planner Stan Sawa, and Executive Secretary Betty Sawyer. II. PUBLIC COMMENT: None III. CONFIRMATION OF THE AGENDA: Confirmed. IV. CONSENT ITEMS: A. Chairman Robbins asked if there were any corrections to the Minutes of . March 27, 2001. Commissioner Tyler asked that Page 9, Item #10 be corrected to read, "...since the traffic information..."; Page 11 Item #23 he referenced Washington Street not Highway 111; and Page 18, Item #7 "...plan of the previous approved tract...". There being no further corrections, it was moved and seconded by Commissioners Abels/Tyler to approve the minutes as corrected. Unanimously approved. B. Department Report: None. V. PRESENTATIONS: None. VI. PUBLIC HEARINGS: A. Conditional Use Permit 2001-057 and Site Development Permit 2001- 695; a request of USA Petroleum Corporation for review of use and development plans for a gasoline facility, convenience market and automated tunnel car wash to be located at northwest corner of Highway 111 and Dune Palms Road, within Specific Plan 99-036 (La Quinta Corporate Center). ~.\~,/Ial~t"t~C:\PC'~._l C)-~1 wncl ], Planning Commission Minutes April 10, 2001 ! 1. Chairman Robbins opened the public hearing and asked for the staff report. Principal Planner Stan Sawa presented the information contained in the staff report, a copy of which is on file in the Community Development Department. 2. Chairman Robbins asked if there were any questions of staff. CommisSioner Tyler asked staff to verify that no changes were made to the previously approved plan. Staff clarified there were design modifications requested as part of the conditions of approval and the applicant has made those changes. Commissioner Tyler asked if the size and placement of the flagpole had been determined. Staff stated there was a condition requiring them to keep the pole at 22 feet in the front setback as proposed. Commissioner Tyler asked why more turf was being requested by staff.. Staff explained it was to be in conformance with the Highway 111 Design' Guidelines to provide more of a mix of the ground cover and turf. Commissioner Tyler questioned Condition #11 and #42.A and the inconsistencies regarding shared driveways on Highway 111 and Dune Palms Road, that had not - been resolved. Senior Engineer Steve Speer stated they should indicates a shared driveway on Dune Palms Road and staff would make that correction to be consistent. Commissioner Tyler asked when the sign program would be submitted. Staff stated it would be approved by staff. 3. Chairman Robbins questioned the height of the tower as it appeared to be lower than previously approved. Staff clarified it was the same height as initially proposed. 4. There being no further questions of staff, Chairman Robbins asked if the applicant would like to address the Commission. Mr. Mark Mcllvain, representing USA Petroleum, stated he agreed with the recommendations and was available to answer any questions. 5. Commissioner Abels asked when they would begin construction. Mr. Mcllvain stated they hoped to start within the month. 6. Chairman Robbins asked if there was any other public comment on this project. There being no further public comment, Chairman Robbins closed the public participation portion of the hearing and asked if there was any Commission discussion. G:\WPDOCS\PC4-10-01.wpd 2 Planning Commission Minutes April 10, 2001 7. There being no further discussion, it was moved and seconded by Commissioners Abels/Tyler to adopt Planning Commission Resolution 2001-046 approving Conditional Use Permit 2001-057, as recommend ROLL CALL: AYES: Commissioners Abels, Butler, Kirk, Tyler, and -' Chairman Robbins. NOES: None. ABSENT: None. ABSTAIN: None. 8. It was moved and seconded by Commissioners Abels/Butler to adopt Planning Commission Resolution 2001-047 approving Site Development Permit 2001-695, as recommended. ROLL CALL: AYES: Commissioners Abels, Butler, Kirk, Tyler, and Chairman Robbins. NOES: None. ABSENT: None. ABSTAIN: None. C. Environmental Assessment 94-287 Addendum. Specific Plan 94-02.5 Amendment #1, Conditional Use Permit 99-047, and Tentative Parcel Map 28617; a request of Agiotage Limited/Mainiero, Smith and Associates for Certification of an Environmental Impact Report Addendum allowing a new access road for an approved master planned residential community of 277 hours; Development of a private road on a hillside slope exceeding 20 percent; Amend the Specific Plan allowing a 3,000 foot long private access road along the north side of a 330.70 acre property to serve ten custom lots; and a Tentative Parcel Map subdividing 330.70 acres into four parcels and other lettered street lots located at the bisection of the future Jefferson Street, approximately one half mile south of Avenue 58. 1. Commissioner Tyler asked Assistant City Attorney Ramirez that since they had just been handed this multi-page document pertaining to this project and somehow they were to absorb it and let it enter their thinking as they make a determination on this project, did they have to acknowledge the contents. He has objected previously and is objecting again to these 11th hour submittals and his question are.' a) do they have consider at this late entry; and b) if they do need to consider it, can they'continue it to allow adequate time to consider it. Assistant City Attorney Ramirez stated staff and his office have had time to review the letter and digest its contents and he will have comments on this letter during the hearing process. They will provide the G:\WPDOCS\PC4-10-01.wpd 3 Planning Commission Minutes April 10, 2001 Commission with an assessment of the letter as well as the impact, or reported impact, on the previously adopted EIR and Addendum before the Commission. The Commission does have to consider it at this late stage as it has been provided prior to the Planning Commission meeting. Commissioner Tyler stated that may be well and good but staff and the Attorney's office are not the ones voting on the project. The Commissioners are and they have not had the time to digest its contents. Assistant City Attorney Ramirez stated he understood this and certainly it was not an ideal situation. Staff always encourages early participation but it is not always the case and the only thing staff can do is help the Commission understand the contents and impact of the contents. Commissioner Tyler stated he appreciated the advice, but his immediate reaction is to put it aside and dwell only on the information that was given to him in his agenda packet. 2. Chairman Robbins stated that sometimes the purpose of a late entry is to get the Commission to postpone their decision. Assistant City Attorney Ramirez stated the Commission could ask - Mr. Hogan of the Center for Biological Diversity, who wrote the letter, why it was so late. 3. Commissioner Butler stated he concurred with Commissioner Tyler's comments and strongly resented the letter being presented at the last hour. If they have the ability to produce a document such as this they also have the ability to get it to the City in a timely for them to review it and not have to rely on staff to read and digest it for them. As he is voting on this tonight, he agrees with Commissioner Tyler, that he would reject the document based on the basis that he has never had the opportunity to even read it, although he recognizes that is nothing they can deal with at this meeting. He would like them to know if it happens again, don't come. 4. Commissioner Kirk stated he does not completely agree with his colleagues as he has been on the other end and often, and he is sure the Commission will hear from Mr. Hogan, and it is one mitigating factor, that they don't just have a letter but also have a person testifying and addressing the issues. Sometimes you do _ not have the time to prepare for public hearings and there may be factors the Commission is unaware of. It would be nice to receive . G:\WPDOCS\PC4-10-01 .wpd 4 Planning Commission Minutes April 10, 2001 notices in advance. However, the law is very clear on this issue. If it is submitted a minute before the hearing it is required that the Commission address and considered the contents during the hearing process. Therefore, he would strongly suggest the Commission not reject it out of hand. 5. Commissioner Butler stated he did not disagree with what Commissioner Kirk stated. What he does disagree with is the opportunity to absorb the contents himself and he does understand that late arrivals do create more interest. 6. Commissioner Kirk stated he concurred and it would be nice to have the letter in advance, but again, the Commission is obligated under the law to consider everything presented. Assistant City Attorney Ramirez, stated that as the Commission goes through the staff report, staff and the City Attorney's office is of the view that the letter does not impact, the Addendum at all which obviously the Commission has had time to review. 7. Chairman Robbins opened the public hearing and asked for the staff report. Planning Manager Christine di Iorio presented the information contained in the staff report, a copy of which is on file in the Community Development Department. 8. Chairman Robbins asked if there were any questions of staff. Commissioner Butler asked staff if this area was part of the area where the Commission had taken a field trip. Staff stated Yes and showed the area on the map. 9. Commissioner Kirk asked where the grades were on the proposed roadway and where the 20% slope began and ended. Senior Engineer Steve Speer indicated on the map, the location where the road would cut into the toe of slope. Commissioner Kirk asked if the City had permitted road cuts in this type of slope. Staff stated something similar at the Tradition, but did not cross a ridge line. We have shaved across the face of slopes in various locations, the Point Happy project is the most recent. Commissioner Kirk asked if the right of way asphalt was noted by the grey on the map. Staff stated yes and explained the road. 10. Commissioner Butler asked staff to clarify that this road was being requested because they could not gain access through the Quarry. Senior Engineer Steve Speer explained there were two issues in regard to the Quarry. First was a vacation of right-of-way. G:\WPDOCS\PC4-10-r" .wpd Planning Commission Minutes April 10, 2001 Officially this property had had accessed the street right of way. There were no street .improvements. Adams Street right of way was west of this location and Avenue 55 use to extend across the north side of the Quarry. As a condition of vacating that right of way and taking away access to the Green property, the Quarry is obligated to enter into an agreement with this property to provide access. However, the two property owners have never been able to come to terms on what the cost sharing would be. Second, technically the Quarry is in default. They have never recorded the street vacation. When the City approved the final tract map for. the Quarry they were again conditioned to provide access and it was to be mutually agreed upon between the two parties. They do have their map, but the street vacation has never been officially recorded and therefore, officially there is still street right of way at the Quarry passing through their golf course and several lots. 1 1. Commissioner Kirk asked staff to explain what "default" means and why it occurred. Staff stated that when a street right of way is vacated, the City approves the concept with conditions and the developer has to satisfy the conditions before they have a final project. In this instance, the right of way is not considered vacated until it is recorded. The Quarry has never recorded the street vacation because they have never perfected the requirement of providing access to the property that will be denied access. 1 2. Commissioner Abels asked if there was any time line to complete the recording. Staff stated there was no timeline placed on them to complete the requirements. 1 3. Commissioner Tyler asked if the City had the ability to force the Quarry road so a road would not have to be constructed through the hill. Staff.stated this may be the opportunity to do that. 1 4. Commissioner Kirk asked if there was an opportunity to condition the Quarry which is where the problem lies. Staff stated the issue before the. Commission is the road which is the applicant's alternative as a result of not being able to reach a solution with the Quarry. This issue of the Quarry denying access to the Green property has come up time and time again. Staff has spoken with the attorney for Mr. Green where the Quarry was denying access to real estate people to show the property whereas before the Quarry allowed this. G:\WPDOCS\PC4-10-01 .wpd 6 Planning Commission MinUtes April 10, 2001 1 5. Commissioner Tyler asked if this application of the road opened the whole Environmental Assessment process. ASsistant City Attorney John Ramirez stated that to the extent the Commission was taking about potential impacts to habitat and the like, his answer would be no. It would not open up the conclusions drawn on the EIR or the Addendum. Commissioner Tyler stated the road only encompasses a small portion of the project. Is that what they · are to limit their focus to. Assistant City Attorney John Ramirez stated that to the extent the Addendum and project before the Commission is this road, not the alternative right of way or the condition that was imposed on the Quarry. Commissioner Tyler asked if any issue other than the road was open for discussion at this time. Assistant City Attorney John Ramirez stated no, but as issues are discussed he can clarify whether or not it pertains to this application. 1 6. Commissioner Kirk asked, somewhat in jest if there was anything to stop someone from walking on that public right of way for -- Avenue 58 even though it was within the Quarry. Staff stated the public right of way exists, but he is sure someone would try to stop anyone from entering. Commissioner Kirk asked legal counsel if this was possible. Assistant City'Attorney John Ramirez stated it was a question of right versus practicality. Certainly as a public right of way you would have every legal right to be on that public right of way, but obviously'to the extent there are physical barriers that would be a practical impediment. 17. Ms. Saundra Jacobs, SFC Consultants, gave a presentation on the EIR Addendum prepared for this project. 18. Chairman Robbins asked if the Commission denied the Addendum, it would only deny the road to the ten lots but the remainder of the project that was previously approved could proceed. Ms. Jacobs stated that was her understanding. 1 9. Commissioner Kirk questioned the Army Corp nation-wide permit process of a tenth of an acre. Ms. Jacobs stated that was correct based on their engineering calculations. Commissioner Kirk asked staff if they have had any conversations with the Corps regarding this project. Ms. Jacobs stated not with the Corps directly. However, as it moves through the process and should the applicant need a streambed alteration permit, the Corps will be consulted on that process and if the Corps decides it is more than G:\WPDOCS\PC4-10-01.wpd 7 Planning Commission Minutes April 10, 2001 a tenth of an acre based on their analysis, then there will need to be a modification in the road alignment or another alternative. Commissioner Kirk asked based on the Supreme Court's action, does staff believe the Corps has jurisdiction over this project. Ms. Jacobs stated that if they find that there is a blueline stream on the property, they will need to do a wetland analysis or wetlands delineation to decide that and then the Corps would review that application for a nation wide permit. Commissioner Kirk asked if this was a navigable body of water. Ms. Jacob stated it was a blueline on the U.S.G.A. map. Commissioner Kirk asked if staff was familiar with the U. S. Supreme case. Ms. Jacobs stated she was not. Commissioner Kirk stated it was his understanding that there had been some changes in Corps policy. Has staff or legal counsel had any interaction with them regarding this. Assistant City Attorney John Ramirez stated he is aware of the case cited, but is not aware of any Corps policy changes in response to the case. He would argue that this was a case where they lack jurisdiction. Without knowing the Corps reaction to the case he is somewhat limited on providing information as to where they Stand on the issue. Commissioner Kirk stated this is only one of the issues that the applicant may have many of. Ms. Jacobs added it is the same streambed crossing that the Quarry crossed when they developed. 20. Chairman Robbins asked if the applicant would like to address the Commission. Mr. Marvin Roos, Director of Planning Services for Mainiero Smith, engineer representing the project, stated they were in agreement with most of the conditions. They would prefer to have taken access through the Quarry, but it is difficult to get two private parties to agree. 21. Commissioner Tyler stated this proposal is before them because no agreement could be reached between the two private parties; has everything possible been done in good faith to achieve this? Mr. Roos stated Mr. Green's attorney has been diligently working on this, but to no avail. They are before the Commission at this time as one of the things they believe 'necessary to create an atmosphere where they can reach a closure on this issue. They need to be able to negotiate from a position of having some rights as opposed to begging for rights. This is why they have asked for the road. It can be done very sensitively. It is their hope to not do the road, but if they have to, they are prepared to do so. G:\WPDOCS\PC4-10-01 .wpd 8 Planning Commission Minutes April 10, 2001 22. Chairman Robbins asked if there was any other public comment. Mr. Bill Morrow, representing the Quarry, stated they haVe been in every one of the discussions with Mr. Green and Mr. Schlecker over the last seven years and at no time has any proposal ever been made by Mr. Green to him as to what they would or would not do with regard to getting into their property. They are perfectly amenable and agreeable to allowing that to occur as it part of the agreement they reached in 1993, when they first developed the property and that has not changed. As late as last week he made the tenth, fifteenth, or twentieth proposal to Mr. Green and he did not respond to it. So, at no time have they made any contradiction, action, proposal, anything whatsoever to the Quarry and they have done it over and over again. So I think the conversation you are hearing from these folks is really coming out of the side of their mouth because they are agreeable to doing this. To run a road up here and change the City's hillside ordinance and so forth, to satisfy their needs, I think strictly has to do with money and they are not that difficult to deal with if they will come up with a proposal. They have not .done so and he has done so over and over again and have no comment back from them. This has gone on for year after year after year. What the Commission .is hearing is one side of the coin, but actual side of the coin is that they will do anything that is necessary to make this work and they do not believe this road is the proper answer. They have stated they are not here for the purpose of building the road, but or the purpose of negotiating with him and that should not have been necessary, hasn't been necessary. If they make a proposal, he will be glad to listen to it. 23. Mr. Bob Mainiero, Mainiero Smith and Associates representing Agiotage, stated he too has attended four meetings in Palm Desert with representatives of the Quarry and in his opinion there was never an effort to negotiate in good faith. Each time they left the meeting, with the conclusion was that there was going to be a I'awsuit and Mr. Green did not want to pursue that avenue. 24. Mr. David Hogan, Center for Biological Diversity, offered an apology for the late date of the letter. It was an honest mistake. .... He had confused the date between the City Council hearing in May with this meeting and he apologized for submitting it so late. Obviously he would prefer they have the time to consider the points they brought up. He would like to request time to rebuttal to the City's attorney discussion after Mr. Hogan's presentation. G:\WPDOCS\PC4-10-01.wpd ~) Planning Commission Minutes April 10, 2001 Chairman Robbins stated that was not proper. He would be allowed an opportunity to make comments and the City would have theirs. Mr. Hogan stated his primary purpose in appearing is to request the Commission deny certification of the Environmental Impact Report Addendum. for the Green and to request of the applicant submission of a subsequent EIR addressing new information and changed circumstances regarding the Peninsular Big Horn Sheep prior to reconsideration by this Commission and City Council. Some of the point are that the project applicant needs to prepare a subsequent EIR due to substantially changed circumstances and the availability of new information. He will hit on that information very quickly. That information includes substantial decline in the Martinez Canyon ewe group of Big Horn Sheep since consideration of this project in the original EIR. It also includes a listing of the species as a Federally Endangered Species by the U.S. Fish and Wildlife Service. Since listing there was the formation of a recovery 'team which came up with what's known as an "Essential Habitat Boundary" which includes the Green property in its entirety. The term "essential" relates to basically all habitat which is considered necessary for the survival and recovery of the species. That is why the recovery team developed the term and map that included essential habitat on the Green project as well as obviously elsewhere throughout the range of the species. The last point he would like to make on new information is that there has been a major comprehensive study on the effects of urbanization on Peninsula Big Horn Sheep produced by the Big Horn Institute and that contains a lot of new data about the effects, not only direct impacts from development, but the effects from lighting, noise, landscaping, all these things basically called edufacts on Big Horn Sheep populations and unfortunately are negative. All this information, the decline of the ewe group, decline of the Peninsula Big Horn Sheep numbers throughout the species range, Federal listing and the urbanization study are clearly changed circumstances. Federal listing of the Peninsula Big Horn Sheep as an endangered species also triggered a mandatory finding of significance not present during the CEQA review process. According to the case law right now, regardless of what is on the table tonight, the City has the obligation to consider any new information relating to this project and go back and require a subsequent EIR if that information has become available and has he has said it has become available. The last point is that there were many, many points made by the Department of Fish and Game on this project back on when they commented back in 1995. They commented both on the draft EIR as well as the Final G:\WPDOCS\PC4-10-01 .wpd ] 0 Planning Commission Minutes April 10, 2001 EIR and found there was significant flaws in those documents and those documents did not respond adequately to those comments. That is another reason they would ask that this be revisited today Regarding the Corp jurisdiction issue, there has been no new regulations in response to the Supreme Court decision. The Salton Sea is a navigable body of water. This is a tributary to the Salton Sea Clean Water Act which places Corp jurisdiction over all waters of the U.S. which are navigable and tributaries to navigable waters in the U.S. is his understanding. The Corp jurisdiction really has nothing to do with CEQA responsibility here to go back and do a subsequent Environmental Impact Report because they are completely separate processes. Corp jurisdiction falls under the Clean Water Act and this is a CEQA issue that is being considered now. There was also the assertion made that mitigation addresses all .the new information that has come up since 1995. Unfortunately, as indicated by Fish and Game and in their comment letter, there has never been any release of the specifics of that mitigation. There is going to be what is called a "Habitat Management Plan", but Fish and Game 'pointed out in their comment letters, and he reiterates that tonight, that that plan was never presented for public review and comment and without that they do not know if that plan is going to be adequate to mitigate impacts to the sheep and that is probably one of' the most important reasons for revisiting this. Ultimately, this project can proceed but it is going to be how the impacts of this project are mitigated, especially those edge-effects and the way light, increased human presents, as well as whether or not there is going to be any compensation for the direct loss of habitat. 25. Commissioner Tyler stated there was an article in the local newspaper stating how happy everyone was that the Big Horn Sheep were alive and well and thriving and had more lambs this season than ever before. How does that equate to .the picture he is painting here. Mr. Hogan stated he has not seen the article, but there certainly are not more lambs than' there ever were before. The sheep have undergone a precipitous decline since 1 973 when it was originally listed under Fish and Game Code. There has been fluctuation in population numbers, but the overall trend has been downward. In the early 1990's was when there was the most. significant decline and that was when the Martinez Canyon ewe group, which is found basically south of Highway 74 in the southern Santa Rosa Mountains took the biggest hit and that population has not recovered and this is based on a conversation G:\WPDOCS\PC4-10-O1 .wpd ] ] Planning COmmission Minutes - April 10, 2001 he had today with Jim DeForge at the Big Horn Institute. Commissioner Tyler asked if his organization was publicly funded or private. Mr. Hogan stated' they were a nonprofit private conservation organization endangered species advocacy habitat protection. It is membership funded as well as from foundations. 26. Commissioner Kirk asked if any further information had been received from Fish and Game relating to the Addendum. Ms. Jacobs stated yes, they reviewed and concurred with the Addendum and had comment and that was the mitigation measure concerning the lake and streambed alteration permit. Commissioner Kirk stated Mr. Hogan indicated that going back to the 1995 letter which did express some concerns regarding the commitment or lack thereof of mitigation measures, have they repeated those concerns. Ms. Jacobs stated not during the course of this Addendum EIR. Any of the original concerns dealt with the Travertine property and how close it was to the Martinez Rock Slide south of it. The Habitat Management Plan is still a requirement for the project, but has not been prepared yet and any and all information that is available for the consultant who eventually prepares it will be made available. Keep in mind it is the applicant of the project who is responsible for that preparation. The City is not required to prepare it. Commissioner Kirk asked if there was any requirement for Fish and Game or other agency oversite to the substance of the Habitat Management Plan. Planning Manager Christine di Iorio stated Fish and Game has to appr.ove the Habitat Management Plan. Commissioner Kirk asked if that was for both specific Plans. Staff stated yes and there is an outline as to what is to be contained within the Management Plan and that outline came from Fish and Game. Commissioner Kirk stated that presumably if the Department of Fish and Game had any concerns about the details or lack thereof, of mitigation measures, they could address them through the Habitat Management Plan and/or streambed alteration permit process. Staff stated yes and this Habitat Management Plan has to be approved by Fish and Game prior to issuance of a grading permit. Mr. Hogan stated this is a subject of significant confusion because Fish and Game when they do the streambed alternation permit also has to also do the CEQA analysis. He is very confused about the process and has a feeling that they are more dropping the ball than agreeing actually to what is going on given their lack of staffing. His concern is that they will come in two months from now and G:\WPDOCS\PC4-1 O-01 .wpd ! 2 Planning Commission Minutes April 10, 2001 say wait, wait, wait, we have these concerns and we have to do a CEQA analysis and it is their problem, but that is something that there would be no streambed alteration permit until CEQA was completed. 27. Commissioner Kirk asked if the Commission could ask the two parties to address the negotiations. 28. Chairman Robbins stated he heard two opposing positions on what had taken place in regard to negotiations and he did not know whether or not it would be beneficial to hear from the two parties. 29. Commissioner Kirk stated it is very confusing because one side says specific proposals have been put on the table and the other side stated no, perhaps they haven't. Perhaps he is confused by the facts in this case. Mr. Bill Morrow stated he has made proposals specifically in writing to Mr. Green on more than one occasion and have never ever once had any response in writing or verbally with a proposal back from him at any time. Mr. Mainiero stated he saw one proposal early on in the process. Independently he was asked by Mr. Green to prepare a cost estimate for what he believed to be the improvements related to access to the ten lots in the northwest corner and he did that. What he recalls is that Mr. Green offered three times what he calculated and that still was not acceptable. The proposal he saw from the Quarry had items that did not relate to access and no agreement was ever reached. In his opinion, as an engineer, the City should never have approved the final map' without that compensation being resolved. Approving it and leaving it to the parties to resolve brings .us here today. 30. Mr. Jack Becker, stated he was one of the owners of the Green property, and the thing that has motivated him most to speak was the commentary by the party representing fish and game. As he understands Fish and Game is a State entity, is that correct? Chairman Robbins clarified that Mr. Hogan did not represent Fish and Game. Mr. Becker asked .if Fish and Wildlife was a Federal agency. Chairman Robbins stated that was correct. Mr. Becker stated he has owned the land for 20 years and envisioned what the Quarry eventually did only they did a fantastic thing out of a gravel pit. He envisioned a beautiful cove that he owns, a nice beautiful golf course with very Iow density which has happened G:\WPDOCS\PC4-10-OI,wpd ]. ~ Planning Commission Minutes April 10, 2001 literally everywhere. At that time there was only 100 flat acres and they basically had a couple hundred acres of Santa Rosa Mountains and has often wished'the Quarry would buy that one little twelve acre section and forget these problems. Years ago he was trying to work out something to trade the Santa Rosa portion of their half section, approximately 200 acres of Santa Rosa Mountains, for some of the flat area that is contiguous to his land that belongs to the Bureau of Land Management (BLM). Section 32 is south of his property and there is a triangular section that is 70-75 acres. In the process he got a hold of Fish and Game, Mr. James Sarro, who was in charge of accessing property for Fish and Game. He had several meetings with him and they Walked his property. He was concerned about the Big Horn Sheep and all the other biological aspects involved in a big piece of property. He asked Mr. Sarro if they could make a trade for the Santa Ros'a Mountains for the flat area. Mr. Sarro stated the land belongs to BLM and he would see what he could. He has the documents to back up these conversations. Mr. James Sarro sent him a document stating that the actual property in Section 29 did not in any way affect the Big Horn Sheep and therefore they are not interested in acquiring the property.' They were in favor of trading those mountains and keeping them as they are, for that land. He then contacted Ed Hasty at BLM in California, and Mr. Hasty called him and at that time Section 32 was part of a Wilderness Proposal and anything in that status with the Federal government can have nothing done to it. Even though it would have been a beautiful arrangement to trade off those mountains and let the BLM have them and let us have the 75 acres, we would of had enough land to have all the flat with the aesthetics of the mountains. It was a great thought, but because of the status of. Section 32 it fell by the wayside. The point he is trying to make is that Fish and Game said this part of the Santa Rosa Mountains have no affect on the Big Horn Sheep. He did not hear all the dialog given by Mr. Hogan, but If he is trying to deny this request on the basis of Big Horn Sheep, he is trying to create a situation that has already been resolved by virtue of his former meeting with Fish and Game. He sat with the founders of the Quarry in make shift Council meetings before they ever built the Quarry. He loves the Quarry, but they did have an agreement. If they vacated .Avenue 58 and Adams Street to public streets and give them access to their 12 acres, that was part of the agreement. He has been through the Quarry gate a lot of times and there has been times when they have G :\WPDOCS\PC4-10-01 .wpd Planning Commission Minutes April 10, 2001 denied him access even though the rule is they cannot deny him access. He does not want to get into that type of hassle. What bothers him is that the 'same person who built the Quarry did the specific plan on their property. If they can't come up with the exact figures there is something wrong somewhere. What' is wrong with allowing them to build their road. 31. There being no further public participation, Chairman Robbins closed the public participation portion of the hearing and opened the subject to Commission discussion. 32. Commissioner Kirk stated Mr. Hogan has made some good points. Staff and the consultant have done a good job on the Addendum, but there have been some new issues that have cropped up. The other consideration he has is the comment that was made that suggested if the Commission did approve this perhaps negotiations would speed along between the two parties. Frankly, that wasn't a factor that he considered and maybe ought not to consider, it is interesting that if they were to approve a freeway to get to that site, maybe negotiations would immediately come to pass. He does have concerns about development over the toe of the slope and in particular over a ridge line, so the concerns raised several years ago by the Department of Fish and Game and more recently raised by Mr. Hogan do resonate with him. He would be interested in hearing how the rest of the Commission feels about these issues at the same time. 33. Commissioner Butler stated this is an issue bigger than approving an access to ten lots. If the Commission concentrates on access to ten lots and the toe of the slope issue, as brought up by Commissioner Kirk, he believes they have mitigated to some extent the issue about access to the ten lots in the path they have chosen to access those ten lots. The overall picture is that if they are approving the access to the ten lots, is it a negotiating tool to sell the ten lots to the Quarry. He is uncomfortable with the whole situation. It is not just saying yes on the basis of what we are presented by staff, this is what we should make our decision on. He gets conflicting messages that the owners of the Quarry are willing to allow access to the ten lots and if this were true, then this road would not have to go forward. He is confused. 34. Commissioner Tyler asked if the whole crux of this hearing has to do with the road that requires the Conditional Use Permit approval. If the CUP were denies the rest of it would be moot. Assistant G:\WPDOCS\PC4-10-01 .wpd ! 5 Planning Commission Minutes April 10, 2OO1 City Attorney John Ramirez stated that was right, it is an extension of a package of entitlements before the Commission. The CUP is a necessary component of the road. To the extent there is a scenario that envisions the lessening a lessening of the grade perhaps that would ameliorate the need for a CUP, but as proposed, a CUP is required. Commissioner Tyler asked if the CUP was not approved the other resolutions would not be necessary. Assistant City Attorney Ramirez stated that if the CUP were not approved, the project would not go forward. The other approvals to some extent, are intertwined, but to another extent they stand on their own merit. Does the Commission want him to address the comments made by Mr. Hogan on the EIR? 35. Chairman Robbins asked legal counsel to address the comments made by Mr. Hogan. Assistant City Attorney John Ramirez stated there were three comments. One may be relevant or irrelevant, but as a quick background, the Center for Biological Diversity filed a lawsuit against BLM some time ago seeking to close a number of public access trails including the Boo Hoff Trail at the north end of the Cove. The lawsuit was scheduled to be settled by stipulation by the former U.S. Attorney's office and the Center just days prior to the prior presidential administration leaving office. A number of affected entities in the Valley were informed of this at the 11th hour by the local office of the BLM and filed a brief in opposition to that stipulated settlement. Certainly the City encourages and does in fact encourage broad public participation of a wide variety of individuals and groups including the Center for Biological Diversity. Given the lack of participation by the Center with respect to other City projects for years prior, he raised the issue as to whether or not there is some nexus with the City's brief filed in that case which was merely five or six weeks ago and their participation here. That aside and dealing with the legal issues in the letter there are really two issues. The first is the original EIR adopted in 1995 for Specific Plan. That EIR studied thoroughly the impact to the Peninsular Big Horn Sheep and although there is documentation throughout the EIR, Pages 3.8-5 to 3.8-10, he thinks are particularly relevant including the finding as expressed in the EIR that potentially impacts to Big Horn Sheep are considered significant. This was included in the 1995 EIR. That EIR, as the Commission knows, was adopted on the basis of overriding considerations specifically dealing with the significant impact to the Peninsular Big Horn Sheep. To the extent the letter is trying to raise an issue as to the adequacy of the study, that is time barred by Public Resources Code Section 211 67.2. Certainly the Public Resources Code and the Guidelines make quite clear G:\WPDOCS\PC4-10-01 .wod ] 6 Planning Commission Minutes April 10, 2001 that one is not able to reopen previously approved EIR's when those EIRs considered the issue we have here which is the impact to Peninsular Big Horn Sheep. With respect to the allegations in the letter that there are changed circumstances, the City Attorney's office has reviewed along with staff and consultants and they believe there are no changed circumstances. The impact, as stated earlier, was studies in the 1995 EIR. A couple cases are relevant here, Sierra Club vs. Gilroy City Council, 1 990 Court of Appeals decision 222 CaI.App.3d30 was a case involving the allegation that a discovery of an endangered species on a project site years after an EIR was adopted required a new EIR as opposed to an Addendum, and the Court rejected the Addendum on the basis that the previously approved EIR fully studied the significant impact to endangered species. A second case, Chaparral Greens vs. City of Chula Vista, 1996, 50 CaI.App.4th 1134, again the allegation that new information exists does not reopen the EIR when the previously adopted EIR studied the impacts to species or habitat. Significantly, the consultant recognized the trustee agency, California Fish and Game has been working with the City on the mitigation measures. This is the agency that is statutorily obligated and charged with the enforcing the endangered species act. They have worked with the City and provided their thoughts on the Addendum and as the consultant stated earlier, the only issue they raised was with respect to the Streambed Alteration Permit requirement. The allegation that the 1995 letter and the issues contained therein were not resolved is simply wrong. In the comments received in the Response to Comments prepared in conjunction with 1995 EIR, there is ample documentation with respect the comments raised by the Fish and Game and responded to by the lead agency in the EIR. And finally, he might add, in reference to the allegation of impact and where we are with respect to the status of Big Horn Sheep, Jim DeForge's name was referenced with respect to the latest study, the latest newspaper article Commissioner Tyler referred to which is April 9, 2001, the heading is "Valley's Big Horn population is thriving". Jim DeForge is quoted, "the numbers are up in both ranges. So to the extent that there is an allegation of decline, this is not supported by this study, nor is it supported in the Recovery Plan adopted by U.S. Fish and Wildlife Service. So based on our review we think the Addendum is both adequate and appropriate. 36. Commissioner Tyler stated that if there was a written signed agreement between the two developers stating they have been unable to settle the issue, and the road is the only alternative, he would feel a lot different about it. We have double talk and dialog, G:\WPDOCS\PC4-10-Ol.wDd ] 7 Planning Commission Minutes April 10, 2001 but no hard facts have been presented. He shares Commissioner Kirk's concern about approving a road that goes over the toe of slope and ridgeline. There is nothing in the CUP as written that even limits it to a specific plan to show exactly where the road will go. Right now he cannot endorse the CUP. 37. Commissioner Butler stated he would agree with most of what Commissioner Tyler stated, but by the same token the Commission is being put into a position where they are .denying access to a property owner which we have approved for the purpose of development. It is getting to a grey area whether they access it through Quarry or they access it through their own property. He is uncertain whether in fact we accept the toe of slope and access route they have chose, but he does not know if the Commission can stop them from accessing their own property. He does not disagree with the points made, but with all other. issues aside, the Commission does have to deal with the fact that this gentleman has the right to get to his ten lots. From that standpoint the Commission has to consider it and not just say no that CUP will not allow it. Once we say no, we have isolated his ten lots and if he does not settle with the Quarry, we are creating a problem. 38. Commissioner ,Tyler stated the Commission has considered it on various occasions in the past and the City Council has considered it. It is not a new issue. It has been around for many years. 39. Commissioner Kirk stated this issue does arise if we do have to allow some sort of development if that is the only development allowed. However, it is his understanding that because the Green Specific Plan includes lots of other developable area, this would not be considered a taking, at least not under the current interpretation of the law, because there is other land that can be '- developed. Assistant City Attorney John Ramirez stated yes, and we said we have vision access to prior processes which makes it a little different. He would generally agree. Commissioner Kirk stated he is concerned about the process at this meeting. The CommissiOn has heard him address issues of signage, for example, chain stores versus the small businesses, and we have something similar here and it just came up in terms of the process. When staff receives correspondence it is generally included in the agenda packet and if those letters address issues they generally address those in the staff report. The Commission received a letter, at the last minutes, from the Center for Biological Diversity and it is an organization he is somewhat familiar with and for the most part, G:\WPDOCS\PC4-10-01 .wDd ] 8 Planning Commission Minutes April 10, 2001 generally do not agree with their tactics or substance of their issues; personally or politically. At the same time he is really concerned about the process. Mr. Hogan asked if he could rebut the-likely comments made by our City Attorney. We held off on the City Attorney comments until after the public participation portion of the hearing and to him that is wrong. He finds that disagreeable, unfair, and if City staff did that on every letter that came in they would have a lot of unhappy residents and justifiably so. The Assistant City Attorney did a fine job of rebutting the issues and was very articulate and he had a very well prepared rebuttal to Mr. Hogan's points and that should have been made in the staff report to give Mr. Hogan a chance to address those issues. Therefore, he has a real concern about this and he hopes this does not happen in the future. He finds it certainly inappropriate at the best. 40. Commissioner Abels stated there was no time for this to have been included in the staff report. 41. Commissioner Kirk stated he agreed but yet the City Attorney had time to prepare a well planned verbal response that should have been included in the staff report to give to those in the public a chance to rebut or address those issues. Assistant City Attorney John Ramirez stated they could reopen the public participation of the hearing if the Commission wanted to provide for nominal rebuttal time. Commissioner Kirk stated he has significant concerns. He does not think that is fair. I do not think the Commission should do that to people who go out of their way to come ~o the public hearing and don't have a chance to address the issue. He would leave it up to the Chair as to whether he would reopen the public hearing. 42. Chairman Robbins stated everyone has been focusing on the EIR portion and no one has made any comment on the Specific Plan or whether any of the addendum or changes to the Specific Plan are apprOpriate and he would like to say that we also need to look at the Specific Plan changes and one of the changes he has found significant is that it does not address landscape guidelines or any other issues. If they get the point of approving this project, he would like to add some conditions that they develop landscape guidelines that conform with the City's landscape ordinance. He has a questioned as to whether approving the Addendum opens the 30-day review process for the entire EIR to challenge. Assistant City Attorney John Ramirez stated he does not know the statue as to challenging the Addendum. It perhaps is 30 days, but ~.\WPI3CII~.R\P~.4-1 {3-t31 .wnd ]9 Planning Commission Minutes - April 10, 2001 certainly it does not open up a challenge to the previously adopted EIR. Chairman Robbins stated his concern was that by approving the road it would reopen the EIR for challenge. Assistant City AttorneY John Ramirez stated pursuant to Public Resources Code Section 21 167.2 and others perhaps, it is quite clear that the previously EIR is time barred from subsequent challenges. Chairman Robbins clarified that only the relevant issues to the Addendum could be challenged. Assistant City Attorney John Ramirez stated the question is that pursuant to CEQA Guidelines is the Addendum a permissible way to go under CEQA. Chairman Robbins stated it has been intimated by one side or the other that the Quarry is not cooperating with this whole process and there is a whole issue with the Quarry with public right of way going through their golf course and several of their lots. Is it at the discretion of the Commission that if a future request came through for the Quarry for a approval of something, that the Commission could deny any future approvals on the Quarry until matters of right of way, vacation, and access were resolved. Assistant City Attorney John Ramirez stated he was hesitate to answer this in the absence of a specific project or scenario. Certainly, he would recommend that the Commission look at this project in isolation. Obviously, there is background that is relevant, but he is uncomfortable answering as to what future options there are to condition the Quarry. As he understands the previous condition, it is something akin to agreeing to agree and obviously by all accounts, has not happened yet. Chairman Robbins stated Mr. Hogan made some comments relative to what essential habitat is and he would like to comment that to his understanding, essential habitat has absolutely no legal standing under the law and it was a term developed specifically and exclusively for use in the Big Horn Sheep. The law has critical habitat .which has since been established which has a different boundary than the essential habitat and the essential habitat was something made up for the purposes of the Big Horn Sheep Recovery Plan. He also has had the opportunity to discuss Big Horn Sheep issues with Fish and Wildlife personnel and have discussed Big Horn Sheep close to this property and' in all his discussions, the Green property was not of concern with Fish and Wildlife while the Travertine was of grave concern to Fish and Wildlife. The last issue he would like to raise is that he would like to apologize to Commissioner Kirk and the other Commissioners, after listening he agrees with Commissioner Kirk and should have conducted the meeting differently and that would have been the proper way to do it. G:\WPDOCS\PC4-10-01 .wpd 20 Planning Commission Minutes April 10, 2001 43. Commissioner Kirk stated he had a creative or foolish suggestion. As pointed out, the Commission is in a'difficult position. He would therefore, suggest continuing this and ask the parties to work together on the access issue with a neutral third party present. He Would then like to see them come back with an arbitrator or City Attorney's third party assessment and perhaps with some support from the City Engineer on the value of the access and appropriate maintenance cost and the like. That could influence their decision in the future. If they do not do this at this stage, he agrees with Commission Tyler that he would not be comfortable with the application. There are too many questions that have been raised and he would vote against it at this stage. 44. Commissioner Abels concurred and he would like to make a motion that this be continued to another date that would be agreeable with the two parties concerned so they can resolve this issue. 45. Chairman Robbins asked the Assistant City Attorney if the Commission could make such a motion. Assistant City Attorney John Ramirez stated they can vote to continue the hearing and provide guidance as to what the Commission wants brought back. 46. Commissioner Tyler stated he seconded the motion. 47. Commissioner Butler asked if they decided to vote at this meeting, it was obvious that they would unanimously deny this effort, and if it moved on to the City Council for their decision, are they pushing the applicant to meet and mediate with their neighbor? By going this way they are opening the time frame to allow them to resolve the issue. 48. Commissioner Kirk stated he would like to ask the applicant and he is not sure it is a unanimous disapproval and he is not sure if they came back, based on a neutral parties assessment, how he or others would vote. He asked the two parties for their opinion. Mr. Bob Mainiero asked if the Commission wanted it back or would they prefer the project to go forward. Discussion followed regarding the options. Chairman Robbins recessed the meeting at 8:55 p.m. and reconvened at 9:04 p.m. 49. Chairman Robbins asked Mr. Mainiero what they would prefer. Mr'. Mainiero stated that in the interest of good faith and cooperation they are willing to try negotiations. Mr. Morrow G :\WPDOCS\PC4-10-01 .wpd Planning Commission Minutes April 10, 2001 stated he made a proposal to Mr. Green just last week which was not responded. He would be glad to meet with Mr. Green at any time with a 24-hour notice. He has no interest in meeting with an engineer or attorney. He would like to meet with the principal, the person who can make the decision. If he would like to do that he would be more than pleased to do that. If the Commission would like a referee in the room to not necessarily negotiate, but to hear both sides and make suggestions, that would be fine. He is available at any time as he has been for the last seven years. 50. There being no further discussion, it was moved and seconded by Commissioners Kirk/Abels to continue this item to May 8, 2001. Unanimously approved. D. Zoning Code Amendment 2000-068; a request of the City for an Amendment to Section 1 3.20.11 5 - Amending Maps, of the Municipal Code to allow approval of final maps by the Community Development Director. 1. Chairman Robbins opened the public hearing and asked for the staff report. Planning Manager Christine di Iorio presented the information contained in the staff report, a copy of which is on file in the Community Development Department. 2. Chairman Robbins asked if there were any questiqns of staff. Commissioner Tyler asked what initiated this. Staff stated map changes were requested to be made by the applicant under a lot line adjustment. This does not allow for a public hearing. Senior Engineer Steve Speer explained that an amending map is done when there is a map recorded and you want to change the configuration. There are two levels of amending maps. If there is something technically wrong, it is doe at the staff level. If there is a reconfiguring of the lots it has to go to a public hearing and in the amending map process you can only focus on the issues of what is being done to the map. You can no longer condition the map. If you do not like what they are doing you can deny the map and in that case the applicant could go back through the tentative tract map processing process and then conditions could be added. Because it is limited only to the changes that are being made to the map, and we do want some type of public hearing process, G:\WPDOCS\PC4-10-Ol.wpd 22 Planning Commission Minutes April 10, 2001 staff is trying to take it to the Director's level rather than through two legislative bodies. To amend a map you have to own all the lots in the property or have consent from all the property owners in the tract, therefore, it usually is limited to a developer because they have control over all the lots. 3. Chairman Robbins asked if under the amending process are you allowed to create any additional lots. Staff stated no. 4. Commissioner Tyler commented on the staff report. 5. Chairman Robbins asked if there was any other public comment. 6. There being no further public comment, Chairman Robbins closed the public participation portion of the hearing and asked if there was any Commission discussion. 7. There being no further discussion, it was moved and seconded by Commissioner Tyler/Butler to adopt Planning Commission Resolution 2001-048 recommending approval of Zoning Code Amendment 2001-068, as submitted. · ROLL CALL: AYES' Commissioners Abels, Butler, Kirk, Tyler, and Chairman Robbins. NOES: None. ABSENT: None. ABSTAIN: None. VI. BUSINESS ITEMS: None VII. CORRESPONDENCE AND WRITTEN MATERIAL: None. VIII. COMMISSIONER ITEMS: A. Commissioner Tyler gave a report of the City Council meeting of April 3, 2001. IX. ADJOURNMENT: There being no further business, it was moved and seconded by Commissioners Abels/Butler to adjourn this regular meeting of the Planning Commission to the next regular meeting of the Planning Commission to be held April 24, 2001, at 7:00 p.m. This meeting of the Planning Commission was adjourned at 9:18 p.m. on April 10, 2001. G:\WPDOCS\PC4-10-01.wpd 23 Planning Commission Minutes April 10, 2001 Respectfully submitted, Betty J S(,~a/wyer, Executive Secretary City of La Quinta, California G:\WPDOCS\PC4-10-01.wpd 24