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HomeMy WebLinkAboutReso 64-1999 DraftRESOLUTION NO. DRAFT CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA TERRABAY PROJECT PHASES II AND III - HABITAT CONSERVATION PLAN COMPLIANCE FACTUAL RECITALS AND FINDINGS WHEREAS, the Agreement With Respect To The San Bruno Mountain Area Habitat Conservation Plan, dated November, 1982 ("HCP Agreement") requires that, at or prior to the initial Project approval (including applications in connection with zoning, specific plans, subdivision tract maps, use permits, plan developments, building and grading permits) with respect to projects which have not yet received such approvals, copies of all application materials dealing with Project compliance with the HCP shall be sent to United States Fish & Wildlife Service ("USF&WS"), Department offish & Game ("DF&G") and the Plan Operator (i.e., the County of San Mateo ("County")). These agencies shall have 30 days to comment upon the application before the City public hearing to consider compliance of the Project with the HCP Agreement and with the Section 10A Permit conditions. WHEREAS, on April 9, 1999, Thomas Reid Associates ("Thomas Reid"), on behalf of the City, sent a letter to USF&WS, DF&G and the County submitting, for their review, HCP compliance information for Phases II and III of the Terrabay Project ("HCP Materials Letter"). The letter concluded that Phases II and III of the Terrabay Project ("Project") comply with the HCP. WHEREAS, the City provided notice of a public heating on compliance of Phases II and III with the HCP as required under the HCP Agreement. The public hearing was scheduled on April 28, 1999 before the City Council. On April 28, 1999, the City Council rescheduled the public hearing to May 12, 1999. WHEREAS, the County, by letter dated April 19, 1998, responded to the HCP Materials Letter and stated that it finds the Project in compliance "with the requirements of the HCP 000049 Operating Program for administrative parcel 2-04 (Terrabay-south slope)". The County finding is consistent with the determination by Thomas Reid (the HCP Plan Administrator). Therefore, the two agencies primarily responsible for the implementation of the HCP (County and Thomas Reid) have found that Phases II and III of the Terrabay Project comply with the HCP. WHEREAS, as of May 12, 1999, USF&WS and DF&G have not responded to the HCP Materials Letter. The 30-day notice period required under the HCP Agreement expired on May 11, 1999. WHEREAS, even though USF&WS and DF&G have not responded to the 30-day notice under the HCP Materials Letter at this time, the City may still make HCP findings on Phases II and III of the project. The HCP Agreement only requires 30 days notice to these agencies and holding of a noticed public hearing as the two prerequisites to the City HCP findings. Since both these prerequisites have been met, the City may make the required findings. The HCP Agreement does not prevent the City fi.om acting after the 30 day notice period expires and certain notified agencies have not responded. WHEREAS, on May 12, 1999, the City held the public heating on HCP compliance for Phases I! and III as required by the HCP Agreement and all persons present were given the opportunity to testify. WHEREAS, the HCP Agreement requires the City to find the Phases II and III Project approvals comply with the HCP Agreement and the Section 10A Permit. The requirements of the HCP relating to the Terrabay Project are set forth in the Operating Program for the Terrabay Project under the HCP (pp. VII-165-177d) ("HCP Operating Program for Terrabay Project"). The conditions to the Section 10A Permit are attached to the Permit itself. 000050 WHEREAS, the HCP Operating Program requires the Terrabay Project to comply with the following standards: 1. The conserved habitat boundaries for the Project are consistent with those described in Chapter VII of the HCP (Figure 2-04C). The Project has a reclamation plan for disturbed areas which are to be dedicated to the County that provides for erosion, runoff controls, habitat restoration, revegetation with native species, and adequate bonding to secure performance. 3. Not more than one phase of the Project is graded per year as shown in Figure 2-04 I. 4. The Project complies with requirements for phasing and timing of conserved habitat dedication. 5. The Project provides adequate fire buffers of 30 feet to protect urban uses. 6. The Project incorporates restrictions on pesticides that prohibit use of aerial or large scale spraying. 7. The Project provides for participation in HCP funding programs consistent with Chapter VI. WHEREAS, the conditions of the Section 10A Permit are: 1. No taking of the San Bruno elfin butterflies or San Francisco garter snake in certain specified Administrative Parcels. 2. All aspects of the HCP Agreement are complied with and completely implemented. 3. Compliance with Special Conditions for Marine Mammals and Native Endangered and Threatened Species to the extent they are not inconsistent with the HCP. 4. Compliance with General Permit conditions. NOW, THEREFORE, the City Council hereby finds that the Phases II and III Projects comply 000O51 with the HCP and HCP Agreement based on the following findings: 1. The Conserved Habitat Boundaries For Phases II and III Are Consistent With Those Described In Chapter VII of HCP. The HCP requires that the conserved habitat boundaries (i.e., HCP fence) for Phases II and III be consistent with Figure 2-04C of Chapter VII of the HCP. The City finds, consistent with the conclusions of Thomas Reid and the County, that the conserved habitat boundaries for Phases II and III are consistent with Figure 2-04C. Overall, the Terrabay Project (Phase I, II and III (as currently proposed)), will result in the permanent disturbance of 135 acres of land as permitted under the HCP. However, the area of temporary disturbance has been reduced to 60 acres from the 68 acres allowed under the HCP. The Reclamation Plan Has All The Components Required Under HCP and Has Been Reviewed And Approved By The County And Thomas Reid. The HCP requires a reclamation plan for any areas which are to be graded or disturbed and thereafter 'dedicated as conserved habitat to the County. The reclamation plan should provide for erosion and runoff controls, habitat restoration and adequate bonding to secure proper performance. Furthermore, the reclamation plan should have provisions for County monitoring and inspection and the use of a fence or marker to show limits of temporary disturbed versus permanent disturbed areas. A reclamation/restoration plan has been prepared by the owner of the Terrabay site (SunChase) and reviewed and approved the County and Thomas Reid as complying with the HCP. The reclamation plan sets forth the habitat restoration plan for temporarily disturbed areas which will be revegetated with native species. The Plan includes erosion and runoff control measures. The Plan provides for County monitoring and inspection, and a bond will be provided to the County to secure performance. o No More Than One Phase Of The Terrabay Project Will Be Graded Per Year In Accordance With Figure 2-04 1 Of The HCP. The HCP limits grading so that not more than one phase is graded per year. Under the HCP, the two phases of grading consist of: Phase One which consist of Phase I, Woods West, Hillside Boulevard Extension and Point area of the Terrabay Project; and Phase Two which consists of 000052 Woods East, Commons and Phase IIII of the Terrabay Project (HCP, Figure 2-04 I). The Project complies with this provision because no grading permit shall be issued until a grading plan and permit application are reviewed by the County Habitat Conservation Plan Administrator and are found to be in conformance with the grading regulations contained in the HCP Agreement and as indicated in Figure 2-04 1 South Slope Project Grading Phases. The Conserved Habitat Dedication For The Terrabay Project Has Occurred In Compliance With The HCP. The HCP requires the Owner to offer to dedicate portions of the conserved habitat "at the time of the receipt of first grading permit with respect to the parcel to which it pertains (See, Figure 2-04 J)." (HCP p. VII- I 66.) As part of obtaining a grading permit for Phase I, SunChase has already submitted to the County a signed Irrevocable Offer to Dedicate the HCP lands above Phase I and II as required under the HCP since the dedicated area must relate to the area to which the grading permit pertains in accordance with Figure 2-045. The Irrevocable Offer was recorded on December 5, 1996. Since no grading permit has been issued for Phase III, the Owner is not required to dedicate the habitat conservation area pertaining to Phases III at this time. The HCP only requires the Owner to make the Irrevocable Offer of Dedication. The HCP does not require the County to accept the offer prior to the issuance of permits. Therefore, the fact that the County has not accepted the Irrevocable Offer pertaining to Phases I and II does not constitute non-compliance of the Terrabay Project with the HCP. The Phases II and III Project Provides A 30-Foot Fire Buffer To Protect Urban Uses. The HCP requires the Project to provide a 30-foot buffer to protect urban uses from fire. The buffer is to be landscaped with native plants and maintained by the Homeowners Association. The recommended conditions of approval for Terrabay Phase II include fuel modification for vegetation areas surrounding the development as required by.the Fire Department (Condition C.2.). The condition requires a 50-foot wide buffer between each structure and the adjacent natural grasslands sloped area. The vegetation in the area shall be seeded with a mix of indigenous grasses and plants 000,353 as approved by the HCP Coordinator, Thomas Reid and the Fire Department. The buffer may include physical barriers such as roadways. Any variation or alteration to the vegetation requirement is subject to review and approval of the HCP Administrator, among others. The same condition will be'imposed on Phase III. Furthermore, the Master Declaration of CC&Rs for Terrabay Phase II requires the preservation and maintenance of these buffer areas by the Homeowners Association. (Section 4.2). Similarly, the proposed Declaration of CC&Rs for the Terrabay Commercial Area (Phase III) requires maintenance and preservation of habitat conservation buffer areas. (Section 4.4). The HCP Restrictions On Pesticide Use Are Included In The Phases II and III CC&Rs. The HCP requires that the CC&Rs prohibit the use of aerial or large scale spraying of pesticides without the approval of the Plan Operator. (HCP, p. VII-167) In compliance with this provision, the CC&Rs for Phases II and III contain a restriction on "the use of such pesticides which would require a special governmental agency permit, or which are applied by aircraft or helicopter or which are hpplied on a large scale basis (that is, in excess of .5 acres upon a single application) without the prior written approval of the Plan Operator and prior written notice to the United States Fish & Wildlife Service". (Section 4.4 of Master Declaration of CC&Rs for Terrabay Phase II; Section 4.8 of CC&Rs for Terrabay Commercial Areas [Phase III].) This covenant complies with the requirements of the HCP. o The Project Is Currently In Compliance With The HCP Funding Program And Provides For Future Funding By Homeowners Consistent With Chapter VI Of HCP. The HCP requires the Terrabay Owners to provide interim funding of the HCP in the amount of $781.67 per month for the Terrabay Project (HCP, pp. ¥-6). The Owner is current on its monthly payments as confirmed by Thomas Reid. The CC&Rs for Phases II and III contain a provision requiring that the owners of parcels pay annual HCP assessments in the amount required under the recorded Declaration of Covenants and Restrictions on Real property on San Bruno Mountain. (Terrabay Woods CC&Rs Section 6.10; Terrabay Point CC&Rs Section 6.10; Declaration of 000,354 CC&Rs for Terrabay Commercial Phase III, Section 4.9.2.) The CC&Rs require that the respective association and HCP trustees enter into a collection agreement providing regular assessments to be levied against the owners as necessary to pay the HCP assessments. The Phases II and III CC&R provisions comply with the HCP. o Terrabay Project Is Complying With Off-Site Enhancement Program On Eastern Saddle. As part of the amendment to the HCP for the Terrabay Project approved in 1985, the Terrabay Project was required to fund an off-site enhancement program on the eastern saddle area to remove exotic species (gorse and eucalyptus) and enhancement of native plant growth through container planting and seeding. The Owner has provided funding as required for this program. To date, the program through herbicide control has controlled gorse in approximately 80-90% of the area. Approximately 200 eucalyptus trees along the southern boundary of the enhancement area have been cut to provide a corridor for mission blue butterflies between the northeast ridge and the saddle. Approximately 100 native plans (including nectar plans of the mission blue butterfly) have been planed in the former eucalyptus grove (see memo from Thomas Reid to Allison Knapp, City of South San Francisco, dated May 3, 1999). B. Section 10A Permit Compliance. NOW, THEREFORE, the City Council hereby finds that the Phases II and III project complies with the Section 10A Permit and the conditions thereto, based on the following findings: The Phases II and III project will not result in the take of San Bruno elfin butterflies and San Francisco garter snakes in the Administrative Parcels specified under the Permit. None of the identified Administrative Parcels are Administrative Parcels within the Phases II and III area that are proposed to be developed. 000055 2. The Phases II and III Project is in compliance with the HCP Agreement for the reasons set forth in Section A above. o The Phases II and III Project is in compliance with the Special Conditions for Marine Mammals and Native Endangered and Threatened Species Permits ("Special Conditions"). Certain of these Special Conditions do not apply to the type of species for which an incidental take is authorized under the Permit ("Species"). However, Phases II and III of the Terrabay Project complies with the Special Conditions as applicable. The Special Conditions apply to development activities which have not yet occurred on the Phases II and III area. Since the Phases II and III approval is conditioned on compliance with the Section 10A Permit and conditions, all development authorized under the Phases II and III Project approvals will be required to comply with the Special Conditions. The Phases II and III Project complies with Special Conditions 1 -9 as follows: Condition 1 - the findings on compliance with General Permit conditions are set forth in Section B.4 below on General Permit Conditions. Condition 2 - Dead or injured Species on Phases II and III, if any, will be salvaged and cared for. Condition 3 - None of the Species have been captured on the Phases II and III site. The capture of any Species in the future will comply with Condition 3. Condition 4 - If any unexpected death or escape of the Species occur, it will be reported to the Federal Wildlife Permit Office before the end of the next business day. Condition 5 - The activities under the Phases II and III Project does not include any bird banding or marking. Condition 6 - No Species located on Phases II and III will be sold, donated or transferred. Condition 7 - Any dead Species will be preserved and held for scientific purposes whenever practical. Condition 8 - no sea turtles or marine mammals are located on the Phases II and III site. o The Phases II and III Project is in compliance with the General Permit conditions of the Section 10A Permit ("General Conditions"). Certain of these General Conditions do not apply to the Species for which an incidental take is authorized or the type of activities authorized under the Phases II and III approvals. However, Phases II and III 000O56 comply with the General Conditions as applicable. The General Conditions apply to development activities which have not yet occurred on the Phases II and III area. Since the Phases II and III approval is conditioned on compliance with the Section 10A Permit and conditions, all devel6pment authorized under the Phases II and III Project approvals will be required to comply with the General Conditions. The Phases II and III Project complies with the General Conditions as follows: General Condition 1 - all sections of Title 50 Code of Federal Regulations Part 13 are incorporated as conditions of Phases II and III Project approvals. General Condition 2 - The Phases II and III Project is in compliance with all applicable state, local or other federal laws. General Condition 3 - Living Species, if handled or shipped, will be handled and shipped so as to minimize risk or injury, damage to health or cruel treatment. General Condition 4 ~ If any Species are shipped, the container will be marked as required. General Condition 5 - The Permittee is required to carry a copy of the Permit while conducting authorized activities. General Condition 6 - The Permit number is required to be legibly printed on all documents or advertisements involving activities conducted under the Permit. General Conditions 7-11 are not applicable to the Phases II and III project because the Permit does not authorize import, export or reexport of Species. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of South San Francisco hereby adopts the following: As a condition of Phases II and III approval, the Phases II and III Project activities shall comply with the Habitat Conservation Plan for San Bruno Mountain, The Agreement With Respect To The San Bruno Mountain Area Habitat Conservation Plan, and the Section 10A Federal Fish and Wildlife Permit, dated March 4, 1983 and conditions thereunder, as may be amended from time to time. The finding of compliance with the HCP under this resolution fulfills the City's obligation under the California Environmental Quality Act to assess the impact, including the cumulative impact, of the Phases II and III project on the Species of Concern under the HCP. 000 357 I hereby certify that the foregoing Resolution was reg~ularly introduced and adopted by the City Council of the City of South San Francisco at a [~ t~ s:a~ meeting held on ihe ~ ~'day of ,1999 by the following vote: 1 AYES: NOES: ABSTAIN: ABSENT: ATTEST: \XFS 1 \S YS\wpd\mnrsw\405~35~reso\ i 999\p3findings.506.doc City Clerk 000055