HomeMy WebLinkAbout041-430-012ELLMAN BvRKE HOFFMAN & JOHNSON
A P R O F E S S 1 0 N A: L L A W C O A P O R A T 1 O N
601 CALIFORNIA STREET - HOWARD N. ELLMAN
NINETEENTH FLOOR 415.296.1610 DIRECT TEL
SAN FRANCISCO, CA )4103 415.495.7587.FACSIMILE
41.i-777-2727 HEY.LMAN@-.L1.MA.N-11L1RKF.COM
WWW.ELLM'AN-6URKE.CObY
November 27, 2006
Mr. Chuck Nelson, Chair
Ms. Nina Lambert, Vice Chair
Mr. Fernando Marin
Mr. Harrel Wilson
Mr. Richard Leland
BUTTE COUNTY PLANNING COMMISSION
clo BUTTE COUNTY DEPT. OF DEVELOPMENT SERVICES
7 County Center Drive
Oroville CA 95965
Att'n: Clerk Of The Planning Commission
Re: M&T Ranch Gravel Mine: Application Min 96-03
Application for Permit To Establish Gravel Mine On Agricultural Land
Dear Madame & Sirs:
We represent Parrott Investment Company ("Parrott"), owner of Llano Seco Ranch, a
property lying immediately to the south of the proposed gravel mine that is the subject of the
captioned application and request for certification of a final environmental impact report
("EIR"). Parrott filed a letter arguing against the application on January 20, 2004, a copy of
which is attached. The arguments in that letter still apply with equal or greater force and should
justify action on your part.to find the EIR inadequate, not suitable for certification, and
recommend denial of the permit on that and other grounds. Indeed, without an adequate,
certifiable EIR, the County lacks the power to approve the permit and your recommendation to
the Board of Supervisors -should so state.
Lead agencies. prepare EIRs to provide the decision makers and the public with all
relevant environmental information required to understand the impacts of a proposed project.
Impacts cannot be assessed in a vacuum, without reference to a complete, acZurate and
comprehensive baseline. Thus, the description of the environmental setting becomes one of the
WMPARRI\GWLettersTrotest letter 11-27-06
ELLMAN BURKE HOFFMAN & JOHNSON
A P R O F E S S I O N A L L A W C O R P O R A T I O N
November 27, 2006
Page 2
most important components of a legally, sufficient EIR.t The EIR before you tumlly fails to
provide the information that the law and the particular setting in question require. Indeed, the
EIR.preparers have apparently interpreted the requirement to provide information concerning the
environmental setting as limited to the characteristics of the property itself, rathyr than the region
in which it is located — when it is the region that provides the setting to be considered in
assessing impacts. It is the region — as well as the immediate environs — that the project will.
impact.
The applicant proposes a gravel mine in an area of sensitive environmental values unique
in the Sacramento Valley, if not the entire State. If approved, the mine will establish a heavy
industrial use within two miles of the Sacramento River riparian corridor which has been the
object of intense preservation and restoration efforts. Within less than ten miles of the mine site,
non-profit or governmental entities have acquired more than 40 parcels of varying size — through
outright acquisition or conservation easement — to preserve and enhance uniquely valuable
wildlife and habitat attributes. Governmental entities and non-profit organizations have spent
tens of millions of dollars and intense effort in these endeavors over a period of at least two
decades and have produced impressive results.
At Llano Seco Ranch; for example, more than ten thousand acres have been placed under
easement or sold outright to state and federal agencies for wildlife habitat. That series of
transactions took place in 1991, resulting in major restoration work to create seasonal wetland
for wintering waterfowl, riparian oak forest and native grasslands. The success of these efforts
can be gauged in part by the fact that when the U.S: Fish & Wildlife Service conducts its annual
winter counts during the first week in December, that agency generally finds that Llano Seco is
holding a significant portion of all the wintering waterfowl in the State.
1 14 Cal.Code Regs §15125'states:."Because the concept of a significant effect on the envirorsnent focuses -on
changes in the environment, this section requires an EIR to describe the environmental settin- of the project so that .
the changes can be seen in context...."
NAPTARRAGM\Letters\Protest letter 11-27-06
h
ELLMAN BvRKE HOFFMAN & JOHNSON
A P R O F E S S 1 O N A L L A W C O R P O R A T I O N
November 27, 2006
Page 3
In short, the true environmental setting for this project is an area of unique and highly
concentrated natural values that have been recognized and targeted for major — and highly
successful - restoration efforts over a period of many years. It should go without. saying that a
gravel mine is totally incompatible with such uses and conflicts with the sensiti-,re nature of the
habitats thus created. It is a use that conflicts with the rural nature of the area and will
overpower the infrastructure developed to serve such low -intensity rural uses. And the EIR that
you are considering for certification makes almost no reference at all to the truce nature of the
environmental setting — beginning with its mischaracterization of the uses of Llano Seco Ranch.
Moreover, it is simply bad planning to place such a heavy industrial use in a rural zone
that is prone to significant and regular flood hazard. It is a matter of common knowledge and
public record that the roads in the immediate vicinity of the proposed gravel mine are closed
almost every year by floodwaters. And when we speak of flood waters in this context, we do
not mean "sheet overflow." The waters in question possess dynamic force sufficient to sweep
automobiles off the road onto the adjoining property. In this case, "adjoining property" refers to
Llano Seco Ranch which lies directly downstream from the proposed mine anc. receives high
volumes of floodwater when Little Chico Creek and Angel Slough overflow. According to the
EIR, the gravel mine will impact both of those watercourses, with Little Chico Creek flowing
directly through the mining area.
The project is supposedly designed to contain those flood waters or deflect them from the
pit so that they will not take on a loading of mine sediments. If those measures fail, Llano Seco.
will receive the full brunt of that failure. It will be the primary — albeit unwilling — recipient of
those polluted flood waters. As our prior letter states, those sediments will be deposited on
Llano Seco, in areas that have been converted to wetland habitat uses, a poten.`ial impact that the
EIR does not even acknowledge, let alone evaluate.2
2 Those areas of Llano Seco that are still devoted to grazing (which is part of the management strategy for seasonal
wetland management) have been certified "organic, a designation that will also be jeopardized by pollutants that
the mine will add to the floodwaters.
N:\P\PARRI\GM\Letters\Protest letter 11-27-06
ELLMAN BURKE HOFFMAN & JOHNSON
A P R O F E S 5.1 O N A L L A W C O R P O R A T I O N
November 27, 2006 .
Page 4
With all -due respect to the EIR. preparers, the other experts involved and the applicant,
Parrott — with more than a century of experience on the land in question — does not trust the
adequacy of the measures proposed. We submit that if any one of you were in 'Parrott's position
with its experience, you would share its skepticism. Indeed, given the frequency and volatility of
the flooding incidents, Parrott submits that significant mine sediment pollution as an addition to
those flood waters is virtually inevitable — with a potential impact that no one -las even
considered, let alone evaluated.
Parrott understands that a gravel mine would enhance property tax and sales tax.revenues
for the County. That hardly justifies creating a use that will constitute'the egrgvalent of a
nuisance to its neighbors, is wholly incompatible with its location and would despoil a much
larger and higher value. The applicant has stated that the location of the mine will allow for
delivery of materials to projects in the Chico area at a lower cost — as transport represents the
highest cost component of gravel delivered to a construction site. You have no assurance,
however, that those cost savings will be passed on to the County or CalTrans, as the major
developers of public works projects. It seems more likely that the developer will pocket the
lion's share of those savings.
Parrott has nothing against the profit motive - nor does it recommend -such prejudice to .
you. As one of the larger property owners in the County,.it respects the property rights of its
neighbors. But an out-of-state developer's desire to gain an advantage over its competitors on
local projects is no reason to grant the permit it seeks, given the circumstance- and the sacrifice
to local values that those permits will inaugurate. In purely economic terms, who is to say that
the environmental values being created in the area — from which the gravel mine will materially
detract — will not someday attract tourism and recreational uses far more lucrative to the
County's economy than the mine could ever be, with all costs taken into account? And then
there is the issue of need.
Statistics maintained by the State of California Division of Mines and. Geology establish
that there is no current or reasonably foreseeable projected future need for creation of a new
N:\P\PARRI\GM\Letters\Protest letter 11-27-06
ELLMAN BuME HOFFMAN & JOHNSON
A P R O F F S S I O N A L L A W C O R P O R A T I O N
November 27, 2006
Page 5
gravel mine, particularly in a sensitive location. This is not a scarce commodity, nor is the
proposed location a unique source for it. Supplies from existing facilities are mi ore than ample to
meet projected need well into the deep distant future. Why incur additional environmental
impact to open up'a new mine when existing mines can easily meet the foreseeable demand for
the product?3
Parrott does not oppose compatible development in the vicinity of L12no Seco. But it
simply makes no. sense to place a gravel mine in a rural area of unique conservation values,
prone to regular, volatile and dynamic flooding, where the flood waters will inevitably carry
mine sediments into a major wildlife habitat restoration area, particularly whet there is no
demonstrated need for the product the mine will generate.
Parrott urges you to find the EIR inadequate for failure to address mosa of the issues
described above, not suitable for certification, and to deny the application for -Dermit. It
incorporates by reference the arguments and evidence provided by all the others who oppose
action to certify the EIR and grant the permit.
Very truly yours,
Howard N. Ellman
HNE/flf
Enclosure
cc: Mr. Richard Thieriot
Mr. Pete Calarco, Assistant Director, Butte County Dept. of Development Services
Clerk, Butte County Planning Commission
3 The FEIR addresses the issue of supply by restricting its analysis to Butte County. See REgR 4.0-19, et seq. This
analysis ignores the substantial supplies available in adjoining Counties from established operations that will have
no incremental environmental impacts associated with supplying Butte County needs. And even under the FEIR's
stilted analysis, existing mines in Butte County can meet projected demand at least until 203).
NAPTARRI\GWI-etters\Protest letter 11-27-06
ELLMAN BURKE HOFFMAN & JOHNSON
'A P R O F 5 5 1 O N A L L A W C O R P O R A T I O N
ONE ECKER, SUITE 200 TELEPHONE: (415) 777-2727
SAN FRANCISCO, CA 94105 FACSIMILE: (415) 495: 7587
January 20, 2004
President and Members of the Planning
Commission
County of Butte
Government Center
25 County Center Drive
Oroville, CA .95965
Re: M&T Chico Ranch Mine: Baldwin Contracting Gravel Mine Permit Application
Dear President and Members:
I write this letter on behalf of Parrott Investment Company ("Parrott"), owner of Llano
Seco Ranch ("Llano Seco"), a property located immediately adjacent to the gravel mine site that
is the subject of the pending application. Llano Seco borders Ord Ferry Road on the south.
Parrott opposes gravel mining in the location proposed by .the M&T application and asks
you to deny it. .
This isnot an easy position for Parrottto take. Parrott has a long history of working
cooperatively with the owners of M&T Chico Ranch in an array of matters of mutual interest and
have always found M&T management to be good partners. Among other things., Parrott and
M&T jointly share and operate works for diversion of Butte Creek and Sacramento River.water
that the parties have used for irrigation purposes pursuant to an agreement that .zas been in place
since the 1930's.
NAP\PARRI\GM\Letters\Butte County 01-14-04
The President and Members of the
..Planning Commission
January 20, 2004
Page 2
Thus, Parrott opposes the pending application reluctantly. Indeed, this may be the first
time in 70 years that Parrott has publicly protested anything that M&T has proposed on its
property.
Parrott bases its opposition on two primary grounds:
L Incompatibility of the Proposed Use. The gravel mine will introduce a heavy
industrial use into a rural area, directly adjacent to and upstream from Llano Seco, which is one
of the -largest wildlife'habitat and wintering waterfowl areas on the Pacific Flyway. The
Environmental Impact Report ("EIR") pending before you is totally misleading in its
characterization.of Llano Seco as."crop and orchard," an error that permeates and infects the
analysis in several material respects.
Introducing- a heavy industrial gravel mine use into a rural area has seve-ral adverse
implications.' It substantially impacts the quality of life of the residents. It is not consistent with
wildlife habitat and open space values. As noted by others in these proceedings, it imposes
immense and potentially dangerous traffic impacts upon rural roads and small communities.
As the EIR notes, the flood waters of Little Chico Creek currently flow directly through
the gravel mine pit area and then proceed downstream onto some of the prime, restored
waterfowl wintering areas on Llano Seco. Unless these waters can be completely diverted away
from the mining operation (a possibility that can only be described as remote, given the.
' If you certify the EIR, you will be finding it adequate as an analysis of the environmental impacts of establishing a
batch plant or plants on site. All of the inadequacies in the EIR to which we refer would be exacerbated by the
addition of such operation.
NAP\PARRI\GM\Letters\Butte County 01-14-04
The President and Members of the
Planning Commission
January 20, 2004 .
Page 3
information on flooding in the EIR), they will cause impacts that the EIR does not even mention,
let along consider:
Flood water -events sufficient to create such impacts have occurred wits regularity in the
past and are likely in the future. Although describing the pollutants that already contaminate
Little Chico Creek, the EIR does not address the possibility that the waters passing through the
mine pit, batch plant and work areas will pick up. sediment loadings and heavy equipment
pollutants before proceeding downstream. The EIR's suggestion that floodwaters will be
contained on site is contradicted by other data in the document and the lesson: of experience.
Flood events in the area are simply too frequent and too robust to be contained.
Both the EPA and NMFS discourage placement of gravel mines within flood plains,
particularly those of streams important to the spawning of anadromous fish. See EPA Office Of
Compliance Sector Notebook Project Profile Of the Non -Metal, Non -Fuel Mining Industry
(September 1995); NMFS National Gravel Extraction Policy (August 1996). Both of these
documents are readily available on the Internet: Both prescribe mitigation measures for gravel
mine operations that might affect floodways and watercourses. As .its first recommendation, the
NMFS document states: "Gravel extraction sites. should be situated outside the active floodplain
and the gravel should not be. excavated from below the water table." (Emphasis. added) p. 7..
The proposed project violates both injunctions.of this recommendation. The EIR does not
mention either the EPAor the NMFS document. It does not inform the public of the key quoted
recommendation stated above, or the fact that the proposed project flies in the face of it.
NAPTARRAGMU-etters\Butte County 01-1.4-04
The President and Members of the
Planning Commission
January 20, 2004
Page 4
The gravel mine use also conflicts with the nature of the surrounding area in critical
respects that the EIR does not mention, let alone analyze. As described in greater detail below,
the proposed mine is located within a State designated "conservation zone," established in
recognition of unique natural resources in the area: A total of 27 parcels have been acquired (or
put under easement) for conservation, habitat or open space uses within a five mile radius of the
gravel mine site. Some of the parcels in question exceed .5000 acres in size. 'these uses are an
integral if not. dominant component of the environmental setting that the environmental
documentation for this proposal totally ignores.
One need only observe a comparable operation, such as that visible from I-5 at Stony
Creek in Glenn County to see how an operation of the sort. proposed can conflict with a rural
quality of life..
2. The Gravel Mine Is Not Needed To Meet Any Conceivable Future Demands. The
gravel mine is being promoted. on the grounds that its product will be essential to meet the
infrastructure demands. of growth in Butte County, principally in the Chico v_cinity. The Draft
EIR summarily rejects the notion of offsite alternative on the grounds that: (i) there are no
resources available that could meet projected demand without. significant added transportation
costs; and (ii) creation of any such alternative gravel mines would have the same or greater
environmental impacts as those of the mine being proposed. The "analysis" of this critical
subject in the DEIR makes no effort to explore the available supply. DEIR pp. 5-3, 5-4.
Apparently recognizing the incomplete nature of the DEIR discussion, the EIR writers
expanded on the subject at length in Response to Comments in the FEIR. See FEIR p. 4.0-6 and
NAP\PARRI\GM\Letters\Butte County 01-14-04
The President and Members of the
Planning Commission
January 20, 2004
Page 5
following. But even that discussion fails adequately to disclose the full picture available on the
face of published documents — and it ignores the critical fact that the pending application
proposes a gravel mine that will breach the water table and is located within t=ie boundaries of a
major floodway, whereas many of the alternative locations do not suffer from those defects..
In the following paragraphs, we provide additional information in support of the
foregoing: .
A. On The Subject Of Land Use Incompatibility.
1. Conflict With Uses At Llano Seco.. In 1991, Parrott conveyed. approximately
1,200 acres of Llano Seco to the U.S. Fish and Wildlife Service (the "Service', 1.,000 acres to
the Wildlife Conservation Board of 'the State of California and imposed conservation easements
over an additional approximately 10,000 acres of Llano Seco for the benefit of The Nature
Conservancy ("TNC") and the Service. These. transactions implemented a plan (the "1991 Plan)
to restore the vast majority of acreage at Llano Seco to wildlife habitat prima--ily for the benefit
of migratory waterfowl. The 1991 Plan has been vigorously implemented over the years
The 1991 Plan was not an isolated, "stand-alone" event. The North American Migratory
Bird Treaty between the United States, Canada.and Mexico, and the documen=s and studies that
implement it, have long identified the California Central Valley as one of the most important
elements of the migratory cycle for waterfowl and related species. Llano Seco has been
identified in those documents, (and in the Central Valley Habitat Joint Venture, created to carry
out the goals of the Treaty), as a uniquely valuable component of the overall Treaty objectives.
In addition, Llano Seco encompasses within its boundaries the largest contiguous parcel of
NAP\PARRI\GM\Letters\Butte County 01-14-04
The President and Members of the
Planning Commission
January 20, 2004
Page 6
riparian habitat that remains in California, along with oxbow lakes, sloughs and other wetlands
that have served as a focal point for wildlife use for centuries.
The reaction of migratory waterfowl to the 1991 Plan demonstrates hove important Llano
Seco has become as a component of the efforts to preserve and enhance migratory bird resources.
Field counts conducted by the Service during the first week of December of each year typically
show numbers exceeding one million birds, roughly 25%.to 30% of the entire population of
waterfowl that winter in the Central Valley.. These counts include at least six species of ducks,
three species of geese, sand hill cranes, tundra swans and several dozen species of shorebirds.
Migratory raptors are also present in great abundance, including both bald and golden eagles.
We will not add length to this letter by continuing with the foregoing recitation -
although it could go on for several pages. The point is this: The EIR before you for the gravel
mine permit application makes no mention whatsoever of these uses of Llano Seco. Indeed, the
few. references to Llano Seco in the EIR refer to it as "crop and orchard" land.2 Thus, the
document that is supposed to provide you with a true and accurate picture of the environmental
setting makes no effort whatsoever to analyze potential impacts of the gravel -mine operation on
the primaryuse ,of Llano Seco, a use that has assumed at.least regional, if not national
significance.3
Z See, e:g., DEIR Section 4.2.2; Figure at p. 4.4-13.
3 Kostka and Zischke; Practice Under The California Environmental Quality Act, p. 501 (CEB 2003):
"Identification of a project's significant environmental effects is one of the primary purpose: of an EIR and is,
necessary to implement the stated public policy that Agency should not approve projects if fwre'are feasible
mitigation measures or project alternatives available to reduce or avoid the environmental impacts. Public
Resources Code Section 21002; 21002.1(a).
"Under Section 15064(b), `the significance of an activity may vary with the setting and, as a result, an
inflexible definition -of significant effects is not possible. See National Parks and Conservat_.on Association v
N:\P\PARRI\GM\Letters\Butte County 01-14-04
The President and Members of the
Planning Commission
January 20, 2004
Page 7
The potential incompatibility is not just based on proximity — the fact that the uses will be
located on.neighboring ground separated only by Ord Ferry Road. Angel Slough and Little
Chico Creek flow directly onto Llano Seco from the gravel mine site. The Ea describes in
detail potential impacts on the gravel mine operation of these. two watercourses without anv
consideration of the'downstream impacts — even though these two watercourses flow directly
into some of the most important restored wildlife area on Llano Seco. Although you know for
sure that floods will occur.and inundate the mine (See DEI?, p. 4.4-9, stating: that the proposed
project will route Little Chico Creek floodwaters directly through the mine pit)4, the EIR
contains no information whatsoever concerning the addition of sediment loadings and heavy
equipment pollutants in the floodwaters that the gravel mine will cause.5
It is a matter of common knowledge that aggregate mining produces 13rge quantities of
dust and sediments too fine to be used. It is a matter of common knowledge that heavy
equipment and batch plants leak oil and other pollutants in the course of normal operation. It is a
matter of common knowledge that regularly occurring flood events in the project area produce
volumes and velocities of floodwaters that cannot be controlled or cleansed through bio -filter or .
County of Riverside (1999) 71 CA 4th 1341, 1357 (Agency has discretion to use thresholds cf significance that vary
depending upon nature of area affected)." Kostka & Zischke, at p. 502 (Emphasis added).
4 The DEIR deals with pollutant loadings in Little Chico Creek attributable to urban runoff it sewer treatment in the
City of Chico at considerable length. This discussion adds bulk to the DEIR but it is basicall-i beside the point: It
describes impacts of the existing condition on the mining operation when the proper function of an EIR is exactly
the opposite, i.e., .to describe the impacts of the project upon the existing condition..
s In major flood events, the waters of Little Chico Creek, Angel Slough and the Sacramento Paver combine to
inundate the area. See DEIR at pp. 4,4-3, 4.4-4, 4.4-5. The "by-pass" channel to .be created as part of the project for
Little Chico Creek has a design capacity of 2000 cfs. The DEIR discloses that flows in Little Chico Creek exceeded
2000 cfs three times during the period 1991-2000. DEIR 4.4-5. DEIR 4.4-6, Table 4.4=3 states that Little Chico
Creek will exceed 2000 cfs on 10 year flood events. Moreover, the by-pass channel may not function as intended if
flooding on Little Chico Creek coincides with peak flows on Angel Slough, the Sacramento --_ e and numerous
N:\P\PARRI\GM\Letters\Butte County 01714-04
The President and Members of the
Planning Commission
January 20, 2004
Page'9
other techniques commonly utilized to improve the quality of storm water rur_of£ But the
prospect that floodwaters will flush substantial quantities of substrate particulate matter and
heavy equipment pollutants onto Llano Seco is an impact the EIR completely ignores.6
This is a glaring defect "fundamental to the determination you mustmake, i.e., whether the
^proposed use is compatible with surrounding uses. The absence of any discussion of the issue in
the EIR demonstrates that you lack the information you need to make an info: -reed decision as
well as. demonstrating both the practical and legal inadequacies of the environmental =
documentation before your
2. "Conflicts With. The State Conservation Zone. In 1990, the California State
Legislature adopted Senate Bill 1086 designating the "Sacramento River Conservation Area" as
the core ofahe State's long term program to protect environmentally sensitive land in the Central
Valley. Based on extensive research, the State's biologists designated a "Conservation Zone"
along the River to protect the meander zone, plus a one -mile wide transition zone where soils are
suitable for riparian forest, wetlands or valley oak woodlands. The Conservation Zone was
established for the express purpose of preventing development.
drainage swales in the area. See DEIR 4.4-6. These facts as well as recent experience contradict the flat statement
in the DEIR (4.4-49) that there will be no discharge to. surface waters from the project area.
6 Little Chico Creek is polluted with fecal coliform, urban pollutants and excess turbidity when it reaches the project
area. The DEIR traces these pollutants to the City of Chico itself and its sewage treatment plant. The DEIR does
not consider possible additional pollution from agricultural runoff.
7 Potential groundwater contamination impacts on Llano Seco are similarly ignored. The gravel mine will provide a
pathway for existing contaminants into both the perched and the deep aquifer, as well as adding to those
contaminants. You will find no discussion of the possibility that these pollutants could adversely affect Llano Seco
anywhere in the environmental documentation. -
NAPTARRAGMetters\Butte County 01-14-04
The President and Members of the
Planning Commission.
January 20, 2004
Page 9
A few property owners succeeded in altering the boundaries o the Conservation
Zone, based on economic considerations. The land itself, however, has rema_ned biologically
valuable and as rare as ever. The proposed mine site lies well within the Conservation Zone.
The Sacramento River Conservation Zone encompasses lands that constitute a
rare and fragile biological. asset of national significance. It is simply not an appropriate location
for a gravel mine.(or a housing development, or a strip mall or a rendering plant, etc). The fact
that the EIR for the proposed, mine does not even address the issue leaves you without the
information you need to make an informed decision on the true significance of this issue.
3. Conflicts With Actual, Established Conservation Habitat And Wildlife Areas.
At least 27 parcels located within a five mile radius of the gravel mine site have been set
aside for environmental, habitat or open space use.. Some of them are held in fee by federal or -
state agencies or private, non-profit conservation groups. Some have been subjected to
conservation easement. Several of the parcels encompass large acreage.
As already noted, a heavy industrial use such as a gravel mine is not compatible with the
use of these parcels. The concentration of such a significant number of parcels dedicated to
environmental use -underscores the value of the area for such purposes and the incongruity of the
pending application. It renders even more striking the total failure -of the EIR to -bring the
situation to light. in its discussion of the environmental setting and assessment of impacts.
B. There Is No Showing That Existing Gravel Mines Are Inadequate To Meet The
Need For Gravel Resources. The need for a gravel mine at the proposed loca_ion has simply not
been .proved. Here again, .the EIR fails in its function of providing you with adequate
NAP\PARRI\GM\Letters\Butte Cou*.01-14-04
The President and Members of the
Planning Commission
January 20, 2004 .
Page 1'0
information. The DEIR dismisses off-site alternatives in cursory fashion. See DEIR at pp 57-3
and 5-4. The document mentions no individual alternative locations, stating that distance from
the Chico area is a determiningfactor and that "the siting of the proposed prcject at an
alternative location would be, subject to the potential environmental effects of developing a new
aggregate mine." DEIR'-5-3 (Emphasis added). That statement is simply not true for mines that
already exist and that could serve the needs of the Chico. area.
The DEIR fails to inform you of the following: The State of California Office of Mine
Reclamation, in the Department of Conservation, lists a total of sixteen active gravel and
aggregate mines in Butte County alone. According to the same list, there are three such active
mines in Colusa County, thirteen in Glenn County, twenty-seven in Tehama County and thirteen
in Yuba County: These do* not include additional mines in the planning stage with applications
currently pending.
Moreover, the EIR and the other documents in the record before you contain no evidence
to support a conclusion that none of the existing facilities could meet the demand that the .
applicants seeks. to fulfill. Indeed, in its.report concerning the mineral resources of Glenn
County 8; the State Division of Mines and Geology states that 556/o of the aggregate mined in
Glenn Counly is exported to Butte Counly currently. That being the case, how Gari the applicant
credibly argue that such imports are uneconomic? The Glenn County Resource Report further
establishes that a large portion of the land area of Glenn County contains aggregate resources of
8 "Mineral land classification of concrete -grade aggregate resources in Glenn County, Californ�a," California
Department of Conservation, Division of Mines and Geology (1997) (cited herein as the "Glenn County Resource
Report").
NAP\PARRI\GM\Letters\Butte County 01-14-04
The President and Members of the
Planning Commission
January 20, 2004
Page 11
regional significance, in addition to the thirteen mines that already exist there-, with a total
potential supply of one billion thirty-one million tons of ag regate, an amount largely in excess
of the projected needs. See tables at FEIR 4.0-19.9
Using gravel extracted from mines already in place avoids the enviror-mental.impacts that
creating a new mine or mines would cause. With the Glenn County Resource Report showing an
almost unlimited aggregate resource irian area already under exploitation, there is no. showing of
the need for the pending mine, other than the desire of the applicant to create it -- and this does
not take into account the Butte County mines already in place. For example, a large gravel mine
actively operates in Butte County north of Oroville." There is no showing in the environmental
documents before you to suggest that that mine would be insufficient to meet all of Butte
County's projected needs.
Because the environmental documents prepared for this application do 'not adequately .
describe the state of aggregate supply, either in the discussion of the environmental setting or the
discussion of offsite alternatives, you are deprived of the information you need to determine if
this proposed mine is reallynecessary — if the environmental damage it will cause should be
borne by the public simply to enhance the "competitive position" (FEIR at p..4.0-18) of the
gravel mine operator: 10
9 These tables estimate Butte County needs over the next thirty years at roughly 60 million tc_ns - or approximately
six percent of the aggregate available in Glenn County alone.
10 Published documents establish that transportation costs of a high weight, high volume, love- intrinsic value
commodity such as sand�and gravel represent a significant percentage of the ultimate cost to the purchaser. Thus, a
gravel mine at the M&T site would be able to sell its product in Chico or environs for a lower price than a
competitive operator in G1enn.County, assuming roughly equal extraction and processing coats. Whether that cost
differeptial would result in a lower price for Butte County infrastructure is another matter alt3gether. Without
NAP\PARRI\GM\Letters\Butte County 01-14-04
The President and Members of the
Planning Commission
January 20,.2004
,Page 12
We do not dispute Baldwin's and M&T's right to argue.within a lawful process for the.
pending approval, purely in the hopes of gaining an economic advantage and earning a profit.
You have broader responsibilities, however. These include weighing the burden — the adverse
impacts and incompatibilities that creating the mine in that specific location would inevitably
cause -- against the public benefits to be derived from the activity. The economic aspirations of
property owners and those who do business in Butte County are entitled to -our respect, but
they are not entitled to overwhelm the public's interests with which those aspirations. conflict. II
One final point: the additional information in the FE1R concerning the offsite
alternatives fundamentally revises the description of the environmental setting and the possible
existence .of such alternatives as it appears in the DEIR. Stated bluntly, the "Responses to
Comments" go far,beyond mere responses but add the very type of critical information that
should have been in the DEIR in the first place.
Adding such critical information in Responses to Comments at the FEIR stage has
deprived the public of the opportunity to make meaningful comments on a critical component of
the. environmental documentation, a component that goes to the very heart of the decision
competition from a seller at the same or closer distance, it is more likely that the cost savinb will simply wind up in
the pocket of the operator or the landowner, with no corresponding public benefitwhatsoever.
11 Section 15126.6(f)(1) of the CEQA Guidelines state the criteria for analysis of offsite alternatives. The
Guidelines derive the requirements from Citizens of Goleta Valley v. Board of Supervisors (1990) 52 C:3d 553. The
criteria include (i) site suitability; (ii) economic viability; (iii) availability of infrastructure;, (iv) General Plan
consistency; (v) other plans or regulatory limitations; (vi) jurisdictional boundaries; (vii) whether the project
proponent already owns the site; and (viii) whether the project proponent can acquire, control or have access to the
site if it does not own it. See Kostka and Zischke at 608-9. The fact that mine sites alread7 exist demonstrate
compliance with the fust six criteria. Baldwin is listed with the State as the owner or operator of several of forty or
to mines that currently operate in Butte and surrounding Counties. There is nothing in this record to suggest that
Baldwin could not acquire. the right to use some or all of the remaining sites or that gravel =rom those sites would be
unavailable for use in construction projects in the Chico area.
NAP\PARRI\GM\Letters\Butte County 01-14-04
The President and Members of the.
Planning Commission
January 20, 2004
Page 13
pending before you. This failure requires that the EIR be recirculated for further public comment
pursuant to Section 15088.5(a) of the CEQA Guidelines which reads in part as follows:
"A lead agency is required to recirculate an EIR when .significant
new information is added, to the EIR after public notice is given of
the availability of the Draft EIR for public review.... As used in.
this Section, the term "information" can include changes in the
project or environmental setting as well as additional data o other
information.... `Significant new information' requiring.
recirculation include, for example, a disclosure showing that:
(3) A feasible project alternative or
mitigation measure would clearly
lessen the significant
environmental impacts of the
project....
(4) The Draft EIR was . so
fundamentally and basically
inadequate and conclusory in
nature that meaningful public
review and comment were
precluded." See also Save Our
Peninsula Committee V.
Monterey County Board of
Supervisors (2001) 87
Cal.App.4ih 99, 130-31.
The extensive description of offsite alternatives and potential alternative supply in
Responses to Comments, inadequate and incomplete as it is, demonstrates the gross inadequacy
of the manner in which the DEIR purports to treat offsite alternatives in the first instance. That
treatment is nothing more nor less than a conclusory "blow -off." Neither this Commission, the
Board of Supervisors, Responsible Agencies nor the interested members of the public were
provided any information in the DEIR that would help them understand the true demand and
NAMPARRR M\LettersOutte County 01-14-04
The President and Members of the
Planning Commission
January 20, 2004
Page 14
supply situation with respect to. aggregate resources. That deficiency can only be rectified in one
of two ways: hold the pending application in abeyance pending recirculation of that portion of
the EIR for further comment; or deny the application.
Parrott respectfully request that the application be denied on the grounds of
incompatibility of land use as well the fact that the proposed gravel mine is n-Dt justified. At the
very least, you cannot proceed without recirculating the EIR for further publiz comment to
obtain accurate and complete information on the off-site alternative sources from which the
aggregate demands of Butte County could be filled without the adverse impazts the proposed
gravel mine will. cause.
Thank you for your consideration.
Very truly yours,
s'9
Howard N. Ellman
HNE/nsj
cc: Members of Planning Commission
1Vlembers.of Board Of Supervisors
Mr. Les Herringer, M&T Chico Ranches
NAP\PARRI\GM\Letters\Butte County 01-14-04
4
BUTTE COUNTY PLANNING COMMISSION MINUTES
November 30, 2006
I. PLEDGE OF ALLEGIANCE: The meeting convened at 9:00 a.m.
II. ROLL CALL: PRESENT: Commissioners Lambert, Marin, Wilson and Leland and
Chairman Nelson
- ' ALSO PRESENT:
County Counsel Felix Wannenmacher, Deputy County Counsel
Robert MacKenzie, Chief Deputy County Counsel
Development Services Pete Calarco, Assistant Director
Chuck Thistlethwaite, Planning Manager
Stacey Jolliffe, Principal Planner
Mark Michelena, Senior Planner
Carl Durling, Associate Planner
Meredith Williams, Associate Planner
Chris Tolley, Associate Planner
Chris Thomas, Associate Planner
Gwyn Benedict, Office Specialist, Senior
Public Works Eric Schroth
Environmental Health Doug Fogel
Agricultural. Commissioner Richard Price
III. ACCEPTANCE OF AGENDA - Commission members and staff may request additions,
deletions, or changes in the Agenda order.
Commissioner Lambert asked to add a Resolution for Lynn Richardson.
Chairman Nelson read the resolution for Lynn Richardson into the record; the resolution was signed and
adopted this day November 30, 2006.
IV. BUSINESS FROM THE FLOOR ON ITEMS NOT ALREADY ON THE AGENDA
(Presentations will be limited to five minutes. The Planning Commission is prohibited by State Law from taking action on
any item presented if it is not listed on the Agenda)
None.
V. CONSENT AGENDA Consent items are set for approval in one motion. These items are considered non-
controversial. No presentations will be made unless the item is pulled from the Consent Agenda for discussion. Any
person may pull an item from the consent agenda.
The Chair will ask if any Commissioner or member of the public wishes to pull a consent item for discussion.
None
VI. ITEMS PULLED FROM THE CONSENT AGENDA. Any items pulled from the Consent Agenda will be
considered.
■ BUTTE COUNTY PLANNING COMMISSION ■ MINUTES. NOVEMBER 30.2006 ■ PAGE I ■
None
VII. PUBLIC HEARINGS The Chair will call for staff comments. The hearing will be opened to the public for
proponents, opponents, comments, and rebuttals. The hearing will be closed to the public and discussion confined to the
Commission. The Commission will then make a motion and vote on the item.
It is requested that public initiated presentations be limited to a maximum of 5 minutes so t:1at all interested parties will
have an.opportunity to address the Commission. Following your presentation, please print your name and address on the
speakers sheet so that the record will be accurate.
The recommendation of County staff is indicated below. It is only a recommendation and has not yet been considered by
the Planning Commission. Copies of the Staff Report are available at the Planning Divisio-1 Office
A. UP 05-10 - Continued open from November 9, 2006
Name: Michael Ballou Project: Use Permit UP 05-10
Planner: Carl Durling APN: 041-190-051 Zoning:: U, S -H
Location: On the west side of Clark Road, (SR -191), approximately 1.8 miles north of
SR - 70
Proposal: Use permit to allow equestrian training, education, and event park.
There is a 10 -day appeal period on decisions with the Clerk of rhe Board.
Carl Durling gave a description and summary of the project, with an explanatioia of the changes that had
been made to the Conditions of Approval to strengthen the mitigation measures for protecting the
agricultural land.
Mr. Durling stated that he intended to read into the record the changes so tha= it was very clear in the
record what the changes were and why. Mitigation Measure #2 Monitoring will read: "The monitoring
language now requires that a report be submitted to the Department at the start of each agricultural season.
The report will specify the type of agricultural activity to be pursued by the applicant during the upcoming
season beginning each October 31". This declared activity must be fulfilled by the applicant in order to
qualify for the off-season activities permitted by the Use Permit. The applicant will be billed for the staff
time necessary to review the report and monitor the agricultural activity. The Department will consult
with the Agricultural Commissioner and the LCAC as needed". This change was discussed with the
Agricultural Commissioner and it was agreed that the Agricultural Commissioner would bill the applicant
for his time also. Next change Condition #16 to be Condition #18 on the Use Permit Conditions of
Approval stating: "The ability to obtain a Special Events Permit under this use permit is dependent upon
compliance with conditions of approval and mitigation measures. The Permil-tee shall obtain a Special
Events Permit for each of the twelve three-day events from the Butte County Fire Department ($100.00
fee payable by check to the Butte County Fire Department). Be prepared to address the following: site
plan, tent and canopy safety, portable generators/heaters/lights, outdoor cooking, campfires, outdoor,
electrical wiring, hazardous materials (propane), emergency vehicle access, standby medical team,
parking, fire extinguishers, fire suppression water sources, fire breaks, smoking, standby personnel,
housekeeping. The Butte County Fire Department shall consult with the Department of Development
Services regarding compliance with conditions of approval and mitigation measures prior to issuing a
Special Events permit". This condition now makes it clear that the applicanl must have adhered to the
conditions of the Use Permit in order to obtain the Butte County Fire Department's Special Events Permit.
Chairman Nelson asked if the applicant would be able to present a calendar o f events with specific dates
for the events and be able to obtain one permit for all of the events listed.
Mr. Durling replied that each event would require a separate special events permit by the Fire
Department. He also mentioned that he added Condition #1 which had previcusly been omitted by
accident from the draft conditions, and that Condition #11 was added to male it clear that all the
temporary facilities' would be removed by October 31" of each year.
Commissioner Leland responded that he was opposed to the new Condition # 1, ar-d that he was under the
impression that the Commission could revoke a Use Permit if the condition were violated.
Stacey Jolliffe agreed with Commissioner Leland and stated that the intent of the condition .was for the
Commission to have the ability to comeback and apply additional mitigation measures or conditions "of
approval as necessary.
Commissioner Leland asked that Condition #1 be deleted.
Commissioner Lambert stated that she was concerned with the Motion of Intent regarding the compliance
with findings of the California Land Conservation Act (CLCA) meeting that dealt strictly with horse
riding trails, and the Commission would be approving not only the trail rid -ng, but also all of the
equestrian events and included activities. She was concerned about adhering to- the intent of the CLCA
motion.
Commissioner Leland replied that it was his intention to approve of all the activities as described and that
the horse back riding would be limited to the existing cattle trails.
Mr. Durling addressed the Commission and read a brief excerpt from the CLCA. minutes, and reiterated
that the CLCA was concerned that the horse riding be kept to existing trails, and that the committee was
aware of all the other activities including the camping and equestrian events.
Commissioner Lambert read a portion of the minutes from the, CLCA meeting a_ -id it did not mention any
of the other events of the project.
Chairman Nelson asked if the project was presented to the CLCA the same way it was presented to the
Commission, and that they approved the package with the same knowledge of activities that was before
the Commission today.
Commissioner Leland agreed with Chairman Nelson and referred to page 32 ofthe CLCA minutes which
mentioned the camping, parking and other ancillary activities.
Mr. Price stated that the biggest issue was criticism from the Department of Conservation` (DOC)
concerning compatibility of both spatially and temporally events regarding impact on existing agriculture
and CLCA main purpose is to keep agriculture as the primary use and secondary uses to a minimal impact
on the Williamson Act Contract. The CLCA was aware that ancillary events would be taking place — the
committee did not know to what extent those activities would be, and that they would defer to the
Planning Commission to put a cap on those potential impacts on existing agricultural uses. The main
concern of the CLCS was that the riding trails be limited to the existing trails. Also the DOC was
concerned with having an adequate monitoring plan in place.
Commissioner Leland asked Mr. Price if he looked at the proposed monitor -ng plan requiring that the
permit holder would submit an annual yearly report predicting what was to be planted and that
Development Services in conjunction with the Agricultural Commissioner and CLCA would monitor the
agriculture on an occasional basis: He also inquired if the report and minimax monitoring would satisfy
the DOC.and CLCA concerns.
Mr. Price replied that typically when a chemical permit or operator ID is applied for at the Agricultural
Commissioner; then the Agricultural Commissioner is aware of the type of crop to be grown based on the
permits requested.
Commissioner Leland responded that whatever type of monitoring program was selected, it needed to
satisfy concerns of the DOC and the CLCA.
Mr. Price indicated that his department had not yet reviewed the monitoring program, it would be a new,
process for the Agricultural Commissioner, but as long as there was a means tc recoup the cost of the
monitoring plan then they would be amenable to it.
Commissioner Leland read the monitoring language for Mitigation Measure #2 as (follows: "The Permittee
shall report in writing to the Department of Development Services (DDS) whici agricultural activity it
will pursue at the start of the agricultural season. The Butte County Department of Development
Services, in consultation with the Agricultural Commissioner and the CLCA, shall periodically monitor
the property for compliance. Monitoring and site visits will be charged at the hourly rates consistent with
adopted fees for Butte County." He asked Mr. Price if his department was agneing.to the monitoring
language.
Mr. Price replied that he would feel more comfortable entering into'a "compliance agreement" with the
property owners. A compliance agreement fee would be charged to the applican-,: that would be sufficient
to cover the Agricultural Commissioners cost of monitoring the agricultural production and satisfy the
monitoring for Mitigation Measure #2.
Commissioner Leland asked if Mr. Price would be amenable to changing the monitoring language of
Mitigation Measure #2 to read: "The Permittee shall enter into a complian ;e agreement in a form
acceptable to the Agricultural Commissioner to,govern inspection, timing, frequency, and reimbursement
of the monitoring -program."
Stacey Jolliffe reminded that Development Services would most likely still be required to monitor the
other activities outside of the agricultural production and that would need to be ndicated in the mitigation
measure.
Mr. Price agreed with Ms. Jolliffe and replied that between the two departments they should satisfactorily
cover the concerns of the DOC and the CLCA.
Mr. Wannenmacher asked if it was Commissioner Leland's intent to add the language to the monitoring
of Mitigation Measure #2 and not to change the existing language.
Commissioner Leland replied that Mr. Wannenmacher was correct.
Mr. Wannenmacher suggested adding a condition after Condition #9. Condition #9 deals with the location
of the horseback trail riding. If the Commission wanted to they could add a Co -edition # 10 that would say:
`All uses other than horseback trail riding shall be confined to areas that have" no ability to have
agricultural uses."
Chairman Nelson and Mr. Price agreed that it would answer CLCA issues.
The hearing was opened to the public.
■ RI ITTF. COUNTY PLANNING COMMISSION ■ MINUTES. NOVEMBER 34. 2006 ■ PAGE 4 ■
Connie Ballou addressed the Commission. She informed the Commission that there is an area designated
for cross country events in the off season that would also be used for hay production during the
agricultural season, which would make the new language that Mr. Wannenmacher suggested inaccurate.
Chairman Nelson replied that as long as the applicant was satisfying the intent of the condition that it
would be sufficient.
Ms. Ballon responded that they were applying for a `Special Event Park' as described in the use permit
application, but that they were being required to obtain a special event permit for each three day event
they host. She understands that the Butte County Fire Department would want her to provide safety
information, site plan; water etc for the first event of each season. The fire safety plan should remain the
same for the entire season and that one Special Event Permit and one $100.00 fee would be adequate, and
that there seem to be excessive monitoring measures and she would like to know why.
Commissioner Marin spoke to Ms. Ballou and indicated that he agreed with her on the excessive
monitoring issues and hopefully at the end of today it would all be behind her and she would have her
approval for the Use Permit.
Mr. Wannenmacher informed the Commission that there wasn't a representative from the Fire Department
and that he could not say if the Fire Department would or wouldn't be willing to accept one special event
permit for the entire event season. However, there are different types of events and that would indicate
that each event would not be the same.
Stacey Jolliffe addressed the Commission. She responded that each subsequent event would be easier to
monitor as time goes on and as the applicant learns how to maintain the mitigation measures. The
question would be if there is a problem when would you have a re -opener to say that didn't work so well
in the last event and how could it be done differently at the next one. The intent of the individual Special
Events Permits would be for the applicant to indicate any possible changes from the previous event and if
any changes would be needed for the mitigation measures. Since the fee is only a hundred dollar fee, it
wouldn't be too onerous for the applicant and it was a way of tightening up the monitoring measures to
satisfy the requirements of the DOC, CLCA and Planning Commission concerns.
Chairman Nelson asked Ms. Ballou if she had a specified calendar of events and dates or if they just
occur.
Ms. Ballou responded that it was possible to schedule certain events for particular days, but that at any
time they could be requested to schedule an additional event. Ms. Ballou indicated that perhaps she needs
to contact someone at the Fire Department and see if she could get a single Special Events Permit for a
series of events and then apply for additional ones as needed.
Chairman Nelson inquired of staff if the Special Permits Events requirement could be made more flexible.
Ms; Ballou replied that she thought that the Health Department instead of the Fire Department would be
interested in the changes in the events due to the size of an event considering that there would be more
port -a -potties and .food trailers at larger events versus smaller events.
Ms. Jolliffe asked if it would be possible for the applicant to present a schedule of events for specific
dates to the Fire Department and obtain one special event permit for those events and then apply for
additional special events permits as needed.
■ BUTTE COUNTY PLANNING COMMISSION ■ MINUTES, NOVEMBER 30, 2006 ■ PAGE 5 ■
Ms. Ballou wanted to know if she applied for the special events permit for 6 events at one time would she
have to pay one fee of $100.00 or would she have to pay $600.00.
Ms. Jolliffe replied that each special event permit was $100.00, but the Commission was trying to see if
the Fire Department would be flexible and only charge one fee if Ms. Ballou cam.-, in with.a schedule of
events with.the appropriate site plans. for each event.
Commissioner Lambert had a question about a reference made to a club house ane bird watching that was
indicated in the Agenda Report and was wondering what that was about.
Ms. Ballou replied that she had no intention of having a club house or doing any bird watching and didn't
know why that language was in there. She also indicated that there were not any building plans associated
with this use permit.
The hearing was closed and comments confined to the Commission and staff.
Mr. Thistlethwaite made a recommendation to the Commission to create E_ condition -that would
specifically restrict the cross country use to an area that was specifically shown on the site plan that is
included in the staff report and would be approved with the Use Permit.
Ms. Jolliffe asked Mr. Thistlethwaite to clarify if the condition would be for during the off season or the
growing season.
Mr. Thistlethwaite responded that it was his intention for the restriction to be effective during the event
season.
Commissioner Leland commented that the language could state: "All non agricultural uses shall be
confined to areas or times that have no ability for agricultural uses."
It was moved by Commissioner Leland, and seconded by Commissioner Marin, and passed by a vote of 4-
1. Ayes — Commissioners Leland, Marin, Wilson and Chairman Nelson, Nays'- Commissioner Lambert to
adopt Resolution PC06-64 approving the Use Permit for Michael Ballou su:)ject to the findings and
conditions of the staff report with the following changes: Mitigation Measure 42 add the following
language to the monitoring plan - "The Permittee shall enter into a compliance agreement in a form
acceptable to the Agricultural Commissioner to govern inspection, timing, frequency, and reimbursement
of the monitoring program.". Delete Condition # 1, and add the following sentence to Condition #9 "All
non agricultural uses shall be confined to areas or times that have no ability for agricultural uses." Lastly
add a finding that the monitoring language is equal to or better than the existing language.
B. UP06-0022 - staff recommends approval
Name: Clearwire, LLC Project: Use Permit, UP06-0022
Planner: Chris Tolley APN: 042-070-197 Zoning: A-5
Location: 1110 West -East Avenue (on the north side of West East Avenue, 0.25 miles
northeast of the Highway 32, West East Avenue intersection), on the west side of the City
of Chico.
■ BUTTE COUNTY PLANNING COMMISSION ■ MINUTES, NOVEMBER 3h, 2006 ■ PAGE 6 ■
Proposal: Use Permit to collocate four panel antennas and four -microwave dishes at a
height of 113 feet on an existing 130 -foot communications tower and the installation of
ground equipment including radio cabinets and a Global Positioning System antenna
within the existing compound.
There is a 10 -day appeal period on decisions with the Clerk of tEe Board.
Ms. Jolliffe addressed the Commission. She wanted to point out that Item H on the agenda today was for a
Zoning Code Amendment that would change the zoning code in relation to how Use Permits and Minor
Use Permits for the collocation of facilities were handled due to some changes in State law and that staff
would go into more detail during that portion of the meeting today.
Chris Tolley gave a description and summary of the project.
The hearing was opened to the public.
Dave Wiltsee, representative for Clearwire LLC was present to answer any questions from the
Commission. Mr. Wiltsee stated that he had some objections to Condition A 12 with regards to the
performance security in the amount of $2;500.00. He asked if Condition # 12 could be deleted because it
was not necessary. Clearwire had already submitted a RF report on the emissions„ and the emissions from
this type of facility must comply with FCC standards and that the FCC standards are quite stringent. This
project complies with the FCC standards, and the idea of putting down $2500.00 for each tower does add
up in the long run. Mr. Wiltsee also stated that there are sufficient conditior-s to make sure that the
facilities will be removed in the event that they are no longer utilized.
The hearing was closed and comments were confined to the Commission and staff.
Commissioner Lambert inquired if the upcoming changes would only be to the processing of the permits
and asked if the Ordinance would not be changed.
Mr. Thistlethwaite addressed the Commission. He stated that the existing Ordinance standards would still
need to be met, but that collocating antennae on existing towers would become a ministerial action and
would not require a hearing. New antennaes and towers would require a hearing and would be heard by
the Planning Commission. He also stated that staff would go into detail during that portion of the hearing
today.
There was a brief discussion on the proposed changes to regulations on wireless�communications facilities
and what the upcoming changes would be.
Mr. Wiltsee responded to the discussion to reiterate that his company had done several noise emissions
studies on the site and that they all met the FCC standards, and that the performance security just wasn't
necessary.
Commissioner Leland stated that the tests were just projections of what the no _se emissions was going to
be, and the performance security was to enable a test to be conducted after the antennae was erected.
Somewhat similar to having a building inspector inspect your house after the permit was issued to make
sure you are in conformance with the approved plans.
Mr. Wiltsee replied that Commissioner Leland was correct, but he would like to see the results of some
previous tests that had been conducted. He indicated that he did not think that there were any previous
tests done and that the money was just squirreled away and left there.
■ BUTTE COUNTY PLANNING COMMISSION ■ MINUTES. NOVEMBER 30. 2006 ■ PAGE 7 mi
It was moved by Commissioner Lambert, seconded by Commissioner Marin and unanimously carried to
adopt Resolution PC06-65 to approve the Use Permit for Clearwire LLC subje--It to the findings and
conditions.
C. UP06-0023 — staff recommends approval
Name: MetroPCS Project: Use Permit UP06-0023
Planner: Chris Tolley APN: 041-430-012 Zoning: AR -2.5
Location: 2822 Clark Rd, approximately 600 feet north of Butte Campus Dr. and 2700
feet north of the Clark Rd/Durham-Pentz Rd intersection, in the. Butte Valley'area.
Proposal: Metro PCS requests a use permit to colocate six (6) panel antennas at the
height of 42 feet on a previously approved, communications tower and the installation of,
equipment cabinets on a new concrete pad adjacent to the towev.
There is a 10 -day appeal period on decisions with the Clerk of the Board.
Chris Tolley gave a description and summary of the project and showed a power point presentation.
The hearing was opened the public.
Mr. Crouse, the applicant's representative was present to speak and answer any questions the Commission
might have.
The hearing was closed and comments were confined to the Commission and staff.
It was moved by Commissioner Lambert, seconded by Commissioner Leland ard unanimously carried to
adopt Resolution PC06-66 to approve the Use Permit for MetroPCS subj--ct to the findings and
conditions.
D. UP 04-06 - staff recommends approval.
Name: David Murray Project: Use Permit, UP 04-06
Planner: Carl Durling APN: 063-250-039 Zoning: TM -20
Location: At the easterly end of Village Drive, approximately 0.75 miles from the
intersection of Crown Point Road; approximately 1.4 miles from the intersection of
Crown Point Road and Deer Creek Highway (Highway 32), Qouth of Forest Ranch.
Proposal: Use Permit to allow continuation of an existing dog kennel for 18 dogs
including outdoor cable runs.
There is a 10 -day appeal period on decisions with the Clerk of the Board.
Carl Durling gave a description and summary of the project, and he showed a. power point presentation.
Mr. Durling explained that this project came to the attention of Development Services through a citation
by Animal Control, and that there were several violations that needed to be cleEred up before the applicant
could apply for a Use Permit for the kennel.
■ BUTTE COUNTY PLANNING COMMISSION ■ MINUTES, NOVEMBER 3C, 2006 ■ PAGE 8 ■
Chairman Nelson inquired if Animal Control had looked at the project.
Mr. Durling replied that Animal Control has been out to the site and initially thought that the applicant
would need to apply for an exotic animal permit due to the dogs appearing to be wolf hybrids. Upon
testing by a veterinarian it was discovered that the dogs were of Husky or Malamute descent, therefore an
exotic animal license was not needed. The applicant would be required to apply for a kennel license that
would monitor the vaccinations of the dogs, within 30 days of the approval of the Use Permit.
The hearing was opened to the public.
Dave Murray addressed the Commission. He was here to answer any questions concerning the dogs and
the kennel permit. Mr. Murray stated that it was his intention to maintain the dogs on 20 -foot cable runs
with individual dog houses, but Animal Control did not like that setup so he was going to erect a kennel
consisting of 18 cages. In addition to the cages he wanted to maintain 5-6 runners to provide exercise for
the dogs.
Commissioner Wilson asked how long the cable dog runners were.
Mr. Murray replied that they vary in length with the shortest one being 18 feet and longest one at 35 feeU
Commissioner Wilson asked if the dogs roamed on the property or if they were contained at all times.
Mr. Murray responded that they were contained and if a runner happens to break the dogs usually stay
around the other dogs and do not roam around.
Commissioner Wilson asked the primary breed of the dogs.
Mr. Murray replied that the vet had stated that they were a Husky mix. He also indicated that last year he
had a veterinarian come to his property and vaccinate all of the dogs.
Brett Gonzales addressed the Commission. Mr. Gonzales stated that he is a neighbor of Mr. Murray's and
that this project was brought to the attention of Animal Control by way of complaints. His property is
over 1800 -feet away from Mr. Murray's property and that there is considerable noise from the dogs at all
hours of the day. Mr. Gonzales read Mitigation Measure #2 as follows: "The applicant shall modify the
application by reducing the number of dog cable runs from 18 to 10, limiting their use to daylight hours,
and confining them to the area west of the entrance drive way and north of a line between the kennel and
the future "granny" house. The applicant shall revise the site plan to the satisfaction of the Planning
Manager prior to establishment of the use." He said that part seemed odd due to the fact that the west side
of the driveway was toward the more inhabited area of neighboring properties and that to the east side
there are not any inhabited parcels. He felt that it would be less of an impact to the neighbors if the dogs
were located to the east side of the property. Mr. Gonzales stated that he was opposed to the kennel, and
that when he first moved into the area he was quite surprised at the level of noise created by the dogs.
Tonya Lynch addressed the Commission. Ms. Lynch indicated that she was an adjacent property owner to
the west of, Mr. Murray and had been in residence for 14 years. She stated that the dogs were on dog
runners in close proximity to the joint property line. Ms. Lynch stated that she is definitely opposed to the
kennel; she had sent a letter with pictures to the Planning Department. Her concerns are the noise level, in
the Noise Study it stated that the dogs only barked at strangers or at feeding time. The dogs actually bark
day and night, anything will set them off — wildlife, cars, anything. Another issue is the junk cars and
abandoned vehicles — the report stated that "all" of the junk cars and vehicles had been removed. That
was inaccurate. Ms. Lynch stated that she had sent pictures to Development Services showing an
abandoned bus and several junk trailers, including a burnt out trailer. There is also a building directly on
the mutual property line that is an eyesore, the siding has been removed.and the insulation is in direct
view from her property. The dogs are also on runners situated next to the property line. Ms. Lynch stated
that she cannot go near her property line without the dogs going crazy. In addition to all of the other
issues, while clearing near the mutual property line Ms. Lynch discovered a well that is on her property
with piping running over to Mr. Murray's' property; and if that is the well that Mr. Murray intends to use,
for his kennel then there is a really big problem. Mr. Murray does not have an easement for his well to
exist on her property. The Initial Study also indicates that the runs would not be any closer than 150 -feet
from neighboring property lines, currently the dogs are right up to the property line. Ms. Lynch also stated
that she has a shallow well that is down an incline from the kennel site; she is concerned with the feces
run-off contaminating the ground water. The Initial Study also indicated that there would not be an odor
issue because the applicant would be required to clean the kennels daily; she said that is not happening at
this time:
Ms. Lynch also stated that she has personally witnessed some of the dogs that have gotten loose from the
cable runners, stalk and kill several of her chickens inside her chicken coop. She also indicated that she is
concerned about the dogs getting loose and coming onto her property as she has small children and is
concerned for their safety.
Mr. Wannenmacher asked Ms. Lynch who she had sent the letter and pictures to.
Ms. Lynch indicated that she had the letter with her and had sent the letter and the pictures.to Butte
County Planning Division at 7 County Center Drive in Oroville.
Commissioner Leland asked Ms. Lynch if the letter stated anything different than what she had discussed
today.
Ms. Lynch stated that it did not; the letter was basically the same and went into greater detail about her
opposition to the kennel permit.
Mr. Murray addressed the Commission. He referred to the vehicles on his property; he stated that the
tanker vehicle was running and would be used in the construction of the kennel; the school bus was also a
running vehicle and that there weren't any burnt out trailers anywhere. Mr. Murray also stated that he was
not finished with the cleanup process. He also stated that he did have the property lines surveyed and the
survey showed that the well was on the neighbor's property, and he is trying to find a new source of
water. Mr. Murray also stated that his intention was to try to consolidate all of the kennel and dog runners
towards the central area of the property. His goal was to keep the dogs for the rest of their natural lives
and to avoid having them go to the pound or be put to sleep.
Commissioner Lambert asked for a description of the type of cable runners being used.
Mr. Murray replied that it was a plastic coated cable tied between two trees with a 20 -foot chain attached
to the cable and then the chain was attached to the dog's. collar.
Commissioner Lambert asked if it would be a problem to move the runners to the east side of the
driveway instead of the west side.
Mr. Murray responded that it was his idea to condense the kennel area closer to the existing, now legally .
permitted house, and that he would use just a few runners located nearby to exercise the dogs.
Chairman Nelson asked if Mr. Murray was still collecting dogs, or intended to have more dogs on the site.
Mr. Murray stated no — he was actually hoping to diminish the number of dogs. O•:casionally one of the
dogs will get loose and then he will end up with a litter of puppies. He also incicated that it was his
intention to turn the. existing structure that is situated close to Ms. Lynch's propert} into a granny flat, but
in all reality it would most likely need to be torn down and moved due to the settack issue. .
Commissioner Marin asked if Mr. Murray had any. objections to tying the cable runners on the east side.
Mr. Murray replied that he did not; he would prefer to keep them in the center of the area.
Commissioner Lambert asked Mr. Murray what alternate source of water would be available.
Mr. Murray responded that he would need to have a new well drilled, but that he is limited with funds and
available time.
Mr. Durling informed the Commission that Mr. Murray was cited for the junk cars by Butte County Code
Enforcement, and that he conducted a site visit with a Code Enforcement Officei to verify that the junk
cars that had been cited were removed, and they had been.
Commissioner Lambert stated that she would have appreciated Animal Control being present to answer
questions.
Commissioner Wilson asked for clarification on whether it was Animal Control or'Code Enforcement that
brought this issue to light.
Mr. Durling indicated that it was both agencies.
Ms. Jolliffe asked Mr. Durling if Animal. Control's concerns would be addressed if the Use Permit were
to be approved.
Mr. Durling replied that Animal Control would be satisfied through the issuance of the Use Permit and
subsequently the kennel license.
Commissioner Wilson asked if Animal Control regularly inspected licensed kennels.
Mr. Durling indicated that he did not know if there were regular inspections, bu. that Animal Control is
aware of this kennel and is requiring a kennel license and a use permit be issued.
Commissioner Wilson asked if this kennel would be monitored closely to see if the applicant was
complying with the conditions of the Use Permit.
Mr. Durling responded that the monitoring would be done by Development Services and Animal Control
would be doing yearly monitoring of the dogs for vaccinations.
Commissioner Wilson asked if the monitoring would include the monitoring of tl_e animal waste clean up.
Mr. Durling replied that there was a condition of the Use Permit that would address the issue.
Commissioner Wilson replied that cleaning up after 18 dogs would be a pretty big job.
■ BUTTE COUNTY PLANNING COMMISSION ■ MINUTES, NOVEMBER 30,2C!06 ■ PAGE I I ■
Chairman Nelson replied that he was not in favor of this project and that all they were doing was allowing
the applicant to have more than 5 dogs and calling it a kennel. He would like to find a way to allow Mr.
Murray keep his dogs, but not approve the Use Permit.
Commissioner Leland indicated -that he would be inclined to grant the permit, and that dogs make noise
regardless of number — dogs bark and are noisy.
Commissioner Lambert replied that she did not see a problem with the location of the kennel, but she
really would like to hear from Animal Control regarding the condition of the kennels and the quality of
care that the dogs were receiving.
Commissioner Marin concurred with Commissioners Leland and Lambert, and the parcel was a 21 -acre
parcel and the applicant should be able to obtain a permit that would allow him to maintain his dogs rather
than have them impounded and put to sleep. Animal Control and Development Services would be
monitoring the kennel to insure compliance with the mitigation measures and conditions and that should
be sufficient.
Commissioner Lambert stated that she would like some feedback from Animal Control on the whole
issue.
Commissioner Marin responded that he agreed with Commissioner Lambert that it would be ideal to hear
from Animal Control, but if the Use Permit was not issued Mr. Murray'would be open to being cited
again and why would the Commission want to keep him out of compliance in the meantime.
Mr. Thistlethwaite addressed the Commission. He reminded the Commission that this project has been
ongoing for some time and that it would not be a problem if the project was continued, which would
allow for some feedback from Animal Control. Mr. Thistlethwaite reminded the Commission that
regrettably; the letter submitted by Ms. Lynch had not been received and therefore the concerns had not
been taken into account or addressed. This information could be considered additional information that
should have been included as part of the environmental review. It would be prudent to direct staff to
address the letter from Ms. Lynch, in particular the issue of the junk cars, noise and especially the
situation with the well.
Commissioner Marin asked what meetings were being scheduled for December.
Ms. Jolliffe responded that there was a December 14`h meeting scheduled and that a quorum had not been
confirmed for December 28, 2006, there was a possibility that the December 28`h meeting would be
cancelled.
Commissioner Marin stated that a continuation to the December 14`h meeting would probably be
insufficient time for the applicant to remedy some of the issues, in particular the issue of the well. .
Commissioner Wilson commented that it would appear that Mr. Murray has lived his life the way he
wanted to for many years and that progress has finally caught up with him, and now that he is in the
system Animal Control will not let this issue drop nor will Code Enforcement just forget about him. It
may take Mr. Murray some time to come into compliance, but at some point he will have to.
Commissioner Leland concurred that Animal Control will have to conduct at minimum, yearly inspection
of the animals and their vaccination records.
Commissioner Lambert stated that a continuance would give staff time to include the letter from Ms.
Lynch in the environmental review.
Mr. Thistlethwaite responded that Commissioner Lambert was correct, and that quite frankly he was
concerned that there was testimony heard today that indicated there was a serious issue with the well, and
it was an important part of this project that the applicant now appears to need a new well.
There was a brief discussion on the fact that there was an illegal well for the project site.
Doug Fogel addressed the Commission. He said there is information in the Environmental Health file that
Mr. Murray and his department was aware that the well was insufficient prior to this hearing. Mr. Fogel
stated that since Mr. Murray admitted that the well was not. his and the neighbor has confirmed it is on
their property, he will need to drill his own well to provide water to his parcel. He also said that a
continuation would be appropriate since Mr. Murray would need the water for the animals as well as his
personal residence.
Commissioner Lambert commented that it was relatively hard in that area to find a good source for water.
Mr. Fogel responded that to ensure a good supply of water that Mr. Murray might need to drill up to 700
feet deep, and that will be a considerable expense.
Commissioner Wilson asked if it was part of the Use Permit to have adequate water on the property.
Ms. Jolliffe stated that currently it was not a condition of the Use Permit, but it could be added.
Mr. Fogel replied that it would most likely be a condition of the kennel license and that Animal Control
would require adequate water be available.
Chairman Nelson asked Mr. Wannenmacher if he would feel comfortable with a motion to approve this
project, or would he feel more comfortable with a continuation.
Mr. Wannenmacher replied that his 'main concern was that staff did not get comments to the
environmental document and could not address those comments, and he did not know if that would
change the document with regards to the new information about the noise level.
Commissioner Marin again asked if the December I&h meeting was appropriate or if more time was
needed to evaluate the project.
Mr. Thistlethwaite indicated that it would be more reasonable to continue the project to the first meeting
in January which would be January I Ph. He also indicated that additional site inspections would be
needed and his recommendation would be to continue it to the January 11ffi meeting.
Commissioner Lambert asked Ms. Jolliffe if the January 11th meeting was acceptable.
Ms. Jolliffe replied that it would be fine.
It was moved by Commissioner Lambert, seconded by Commissioner Marin, and unanimously carried to
continue Use Permit 04-06 for a kennel for David Murray to the January 11 cn meeting, and directing staff
to take in the additional information brought forth by the neighbors including the issue of the illegal well
and address those issues before the January 11th meeting.
Chairman Nelson called for a short break.
The meeting reconvened at 11:00 am.
E. UP 06-07 — staff recommends approval
Name: Allen and Lisa Renville Project: Use Permit UP 06-07
Planner: Chris Thomas APN: 041-120-113 Zoning: "U" (Unclassified)
Location: 2554 Lake Hills Drive, about a quarter of a mile north of Durham -Peutz Road
(Butte Valley).
Proposal: Use Permit to allow a private hobby kennel for up to twelve dogs (Australian
Shepherds) owned by the applicants.
There is a 10 -day appeal period on decisions with the Clerk of the Board.
Chris Thomas gave a description and summary of the project; he also showed a power point presentation.
Mr. Thomas also mentioned that the staff report was incorrect in regards to the number of dogs on site;
the maximum number of dogs on the site would be 12. He indicated that he had received two calls from
Karl and Valerie Robinson; they were opposed to the project due to.noise issues and proper containment
of the dogs.
The hearing was opened to the public.
Al Renville, the applicant addressed the Commission. He gave a description o- his dogs including the
location and condition. of the kennels. He also informed the Commission that the dogs are seen on a
regular basis by a local veterinarian for vaccinations and health checkups.
Valerie Robinson addressed the Commission. She stated that she was an adjacenI property neighbor to the
north of Mr. Renville and has had issues with the dogs being too close to'the property line. She also
indicted that Mr. Renville has 8 dogs that are warehoused next to her propert_i line and the fencing is
inadequate as her husband was almost bitten when they were checking the property line fence. After
notifying Mr. Renville of the incident with the dog, the dogs were moved about 10' off of the property
line. Ms. Robinson also stated that from November 17th until after Thanksgivir_g there were actually 18
dogs total on the property. She also witnessed a fight between 5 dogs in one kennel where one dog was
left wounded and bleeding. Ms. Robinson also stated that the dogs bark all day -_Ong and she complained
to Animal Control about the noise and the number of dogs which started this kennel process.
Matt Jackson addressed the Commission. He stated that he is a colleague of Mr. Renville's, and that Mr.
Renville has first quality kennels, the dogs are treated like children, and are very friendly. Animal Control
has visited the kennels and has not had a problem with the condition of the dog3 or the cleanliness of the
kennel.
Jack Hite addressed the Commission. He thanked the Commission for ensuring the quality of life in Butte
County. Mr. Hite stated that he has known the Renville's for 13 years, and their property is one of the
cleanest on the street. Mr. Hite said that he does not hear the dogs barking from the Renville property with
the exception of when the Renvilles are out of town, and that his grandchildr-,n walk up and down the
street by the Renville's and they even stick their hands through the fence to pet the dogs. The dogs are.
very friendly and have never caused a problem.
Valerie Robinson addressed the Commission. She spoke about the noise level from the barking dogs and
that the Renville's do not clean up after the dogs on a daily basis.
Mr. Renville addressed the Commission. He spoke about the dogs near Ms. Robinson's property, and
when she complained about them being too close to the property line, he went out the very next day and
moved the dogs 20 -feet away from the property line. Mr. Renville also stated that he tries to be very
accommodating with his neighbors and sensitive to their concerns•with the dogs.
The hearing was closed and comments confined to the Commission and staff.
Commissioner Lambert asked if Animal Control became involved due to the number of dogs, or if it was
because of complaints that were received.
Mr. Thomas replied that a complaint was made by the Robinsons to Animal Control, and at that time the
Renville's became aware that they needed to have a Use Permit for a kennel license. He also stated that he
had made three site visits, 1 announced and two unannounced; visited with the dogs, viewed the kennels
and noted that they were in very clean condition and that there was no sign of the refuse that has been
indicated by Ms. Robinson.
Commissioner Leland responded that he was inclined to approve the project subject to the findings and
conditions.
It was moved by Commissioner Leland to approve Use Permit 06-67 for Allen and Lisa Renville as set
out in the Staff Report dated 11/30/06, part of which is adopting a Mitigated Negative Declaration and
approving the resolution.
Mr. Wannenmacher stated that there is no Mitigated Negative Declaration on this project.
Commissioner Leland said Mr. Wannenmacher was correct, this is a categorical exemption and he
amended his motion to reflect that.
Mr. Wannenmacher said the Commission needs to make a determination that the testimony they heard in
no way would require them to consider additional information.
Commissioner Leland said he has heard nothing that would require additional environmental examination.
It was moved by Commissioner Leland, and seconded by Commissioner Lambert, and unanimously
carried to adopt Resolution PC 06-67 and approve the Use Permit for Allen and Lisa Renville subject to
the findings and conditions.
F. UP 06-14 - staff recommends approval
Name: Don Sakal Project: Use Permit UP 06-14
Planner: Mark Michelena APN: 065-171-043 Zoning: AR -2-1/2
Location: On the East, side of the Skyway, 650' North of Woodward Dr. (14664
Skyway).
Proposal: A medical clinic in the Magalia area.
There is a 10 -day appeal period on decisions with the Clerk of the Board.
Mark Michelena handed out a revised site plan from the applicant, and then showed a power point
presentation along with a description of the project. Mr. Michelena indicated that he had a few changes to
the conditions of the project: Conditions #9 and # 10 were to be deleted per Public Works and to renumber
the following conditions.
The hearing was opened to the public.
Don Sakal, the applicant addressed the Commission. He provided a summary of thT project and stated that
his current clinic had been sold and he would no longer be able to provide medical care at that site, so he
decided to construct a clinic on his own property to avoid abandoning his patients.
Commissioner Wilson had a question about the lower driveway shown on the revised site map and asked
where it ended.
Mr. Sakal indicated that the driveway went across the property and ended at Elmwood.
Commissioner Wilson asked if there would be access to the clinic off of Elmwood.
Mr. Sakal. stated that the lower driveway was gated off and they do not wish to provide access to
Elmwood.
Mr. Michelena responded that he had made a site visit and that particular driveway was just a dirt -path
that did not look drivable.
The hearing was closed and comments were confined to the Commission and staff.
Commissioner Wilson asked Mr. Fogel if the existing well would serve both theresidence and the clinic.
Mr. Fogel replied that the yields from wells in the area were quite high and it would not be a problem.
It was moved by Commissioner Marin, seconded by Commissioner Wilson, an unanimously carried to
adopt Resolution PC 06-68 and approve the Use Permit for Don Sakal subject to the findings and
conditions, and deleting Condition #9 and #10 and renumbering the rest of the Conditions accordingly.
G. TPM 06-05 — staff recommends approval..
Name: Gerald and Michelle Nelson Project: TPM 06-05,
Planner: Mark Michelena APN: 055-370-035 Zoning: FR -20
Location: At the end of York Road, approximately 2,650 feet south of Wayland Road,
south of the Town of Paradise.
Proposal:' Tentative Parcel Map to divide a 60.38 -acre parcel (+/-) into two parcels
(30.05 acres and 30.33 acres). Both parcels will have access cff of York Road (a private
road). Water will be provided by on-site individual wells. Sewage disposal will be
handled by on-site individual septic systems. Proposed parcel 1 is already developed
with a single-family dwelling, accessory structures and access driveway.
There is :a 10 -day appeal period on decisions with the Clerk of the Board.
■ BUTTE COUNTY PLANNING COMMISSION ■ MINUTES, NOVEMBER 30 2006 ■ PAGE 16 ■
Mark Michelena gave a description of the project and showed a power point presentation. He made a
correction to Condition #12 and #13- changing the `Oroville Municipal Airport' to `Paradise Skypark
Airport', he also handed out a letter from the owners along York Road, which dealt with the existing
Road Maintenance Agreement. Mr. Michelena also passed out a letter that he had received the day before
from Mr. Glover.
Chairman Nelson asked Mr. Michelena if a second unit was allowable in an airport zone.
Mr. Michelena stated that it was.
The hearing was opened to the public.
Tom Wrinkle, from Sierra West Surveying, addressed the Commission. He asked for an explanation of
Mitigation Measure #3, which refers to the removal of trees — and there is a poss=bility that no trees will
be removed.
Mr. Michelena replied that staff had started included this mitigation measure to protect oak trees, and if in
the construction process no trees were removed then this measure would not apply.
Ms. Jolliffe added that Mitigation Measure #3 would come into effect upon renoving or encroaching
upon oak trees at the project site.
Mr. Wrinkle responded that perhaps the addition of wording that indicated the mitigation measure would
not apply if no trees were removed would be appropriate.
Mr. Michelena read the following sentence from the measure: "Prior to issuance of any grading, building,
septic, or well permit, or the approval of any improvements plans, the applicant shall submit an Oak Tree
Mitigation Plan prepared ............"
There was a brief discussion on the wording of the mitigation measure and the applicability of the Oak
Tree Mitigation Plan.
Ms. Jolliffe proposed that a sentence be added to Mitigation Measure #3 that w-Duld state: "An Oak Tree
Mitigation Plan will only be required upon encroaching upon or removal of oak trees".
Commissioner Leland suggested that the note match the language of Mitigation Measure #4.
Mr. Wrinkle addressed Mitigation Measure #4-1 which refers to the Oak Tree,.p rotection measures, and
that the subsection of the condition did not make sense to him. He wanted to make sure that his client
understands the entire scope of the Mitigation Measures.
Ms. Jolliffe read the beginning of Mitigation Measure #4, and said that the applicability of the measure
was stated in the first sentence.
Chairman Nelson confirmed that if the measure was applicable then you would go on to the subsequent
subsection.
Mr. Michelena read a section from. the measure reiterating that it was asking to put a fence around any oak
trees that were close to a building site or driveway improvements.
■ BUTTE COUNTY PLANNING COMMISSION ■ MINUTES, NOVEMBER 30. 2006 m PAGE 17 ■
Commissioner Leland asked how it would be decided that the mitigation measLre would need to be
enforced.
Ms. Jolliffe replied that there is aerial photography available and they ask for site plans for comparison
and that when oak trees are close to building sites they ask if the oak trees will be impaired upon and so
forth.
Commissioner Leland inquired if, when the applicant applied for building permits; the site plan was
routed through planning to check on the proximity of the construction to oak trees.
Mr. Thistlethwaite replied that Commissioner Leland was correct, and that all -wilding permits were
routed through Associate Planners prior to issuance and that the planners will review each of the
conditions of approval for compliance with the recorded map and at that time if an Oak Tree Mitigation
Plan was required the applicant would be notified prior to the approval and issuance of the building
permit.
Commissioner Wilson commented that Butte County was known to be very thorough in the Building and
Planning Departments.
Chris Glover, an adjacent neighbor to the project site, addressed the Commission. He was present today
representing the other owners along York Road and to bring their concerns to the Commission. Mr.
Glover referred to his letter and that the current property owners all had a Road Maintenance Agreement
attached to the title of their property, except the Nelsons. It concerned all the other residents on York
Road, and they are all requesting that the resulting parcels of the tentative map have a Road Maintenance
Agreement recorded on their deeds also.
Chairman Nelson asked Mr. Michelena about the Road Maintenance Agreement (RMA) that he had
mentioned earlier. He commented that even though the existing RMA was recorded in Butte County in
1986 that it still would be applicable today.
Mr. Michelena replied that the RMA stated in the conditions was applicable to the resulting parcels only
and that if the existing RMA was applicable to the current parcel that it would also be applicable to the
resulting parcels.
Mr. Glover responded that it would be great if the current RMA was applicable to the Nelsons' property,
but it was not.
Ms. Jolliffe asked Mr. Glover if it was his understanding that the existing RMA_ currently does not apply
to the subject parcel.
Mr. Glover concurred, he had researched both the recorded RMA and the title of the subject parcel and he
could find absolutely no record tying both together.
Mr. Michelena stated that a RMA was required for all non -publicly maintained roads to a County
maintained road, and that Public Works is present to answer those questions. He indicated that he was not
sure if a separate RMA would be required for the new parcels and an additional one for a fair share of the
improvements and maintenance of the existing portion of York Road.
Mr. Glover commented on the existing RMA, he stated that it is for 2591 -feet of York Road and basically
it ends at the beginning of Mr. Nelson's property. He would like to go on record representing all the
owners along York Road in stating that their commitment to York Road endE at Mr. Nelson's property,
■ BUTTE COUNTY PLANNING COMMISSION MINUTES, NOVEMBER 30 2006 PAGE 18 ■
and that if there was an extension added to the road with the name of York ROEd they would not be
agreeable to any part of that road maintenance agreement. Mr. Glover also stated that since the resulting
parcels would be using York Road for access purposes that they should join the current RMA and assist
in the maintenance of York Road. Mr. Glover also indicated that there is a restriction of a gate
approximately 600' from the end of York Road, which is actually at the beginning of Mr. Glover's
property. He stated that Mr. Nelson had put the gate up for privacy during the construction of his
residence, and that previously it had not bothered the neighbors, but at this time th,-y would like the gate
removed and the road to be open.
Commissioner Lambert asked if the gate was part of the RMA.
Mr. Glover replied that it was not, and he and the neighbors would not mind if Mr. Nelson moved the gate
to the beginning of his property. Lastly, he would like to bring up the fact that York Road is in poor
repair. The majority of wear and tear has been a result of the construction on the Nelson's property. The
dust is unbearable in the summertime and Karen Painter whose house is on the opposite end of York
Road bears the brunt of the dust problem. Their residence is inundated with dust from the construction
equipment going down to the Nelsons. Since Mr. Glover is representing the neighbors, they wanted him
to mention that this may continue for another two years after property is split and another residence is
constructed at the end of York Road. He stated that Mr. Michelena said there will be a 15 mph limit on
the road for the construction equipment, which will help, but there is no gravel on the road. The neighbors
want to put new gravel on the road, and that the Nelsons should contribute to th -� cost of building York
Road up to a reasonable County standard, and that the neighbors would like to make it a condition of the
parcel map.
Commissioner Leland asked Mr. Glover where exactly the gate was located on York Road.
Mr. Glover with the assistance of Mr. Michelena pointed out the location of the gate on one of the power
point photos.
Chairman Nelson asked Eric Schroth if he was familiar with the RMA.
Mr. Schroth replied that RMA's are confusing to understand and the primary pL-rpose that Public Works
requires it is so that it gets on the title documents so that all future property owners are aware that they
live on a private road and will be responsible for maintenance. Public Works does not seek to create a
legally binding agreement by setting the condition. The RMA that is in effect wil remain in effect for the
neighbors, and the new RMA will require that the new parcels created will be responsible solely for the
road easement on their property and also for a portion of the access of the non--Dublicly maintained road
out to the existing York Road.
Chairman Nelson stated that under the RMA that has been recorded, it is still between the parties to go
work out issues in court if they have problems and can't come to an agreement.
Commissioner Leland replied that it was a question of who was a party to they existing RMA, and there
was only one signator on the copy that he had, and the legal description does nct indicate that the Nelsons
property would be included in the agreement. He also mentioned that Mr. Glover had researched the
Nelsons title and the RMA was not an exception listed, which would indica_e that this RMA was not
binding on the Nelsons.
Commissioner Leland asked Mr. Schroth if Public Works would require a RMA relating to the stretch of
road that would be used to access the publicly maintained road.
■ BUTTE'COUNTY PLANNING COMMISSION ■ MINUTES, NOVEMBER 30, 2006 ■ PAGE 19 ■
Mr. Schroth replied that his department does require that, and it is a condition of the parcel map.
Commissioner Leland asked if the neighbors would need to enter into a new agreement with Mr. Nelson
for the maintenance of the portion of the road under the existing RMA that is not applicable to the
Nelsons' property.
Mr. Schroth stated that the Nelsons are not bound by the neighbors agreement to fulfill the conditions of
the RMA requirement to record the parcel map.
Commissioner Leland inquired how that would work, because usually an agreement is between two
people to agree, and if you are requiring an agreement with whom do they have to agree.
Mr. Schroth stated that he had not read the County form for the RMA but that he believes that it is an
agreement between the County and the person dividing the property that acknowledges that they are
responsible for maintaining a share of the road.
Commissioner Lambert thought that perhaps the RMA was an agreement to be part of a road maintenance'
agreement.
Commissioner Leland stated that he thought it was requiring an agreement with the other property owners
that rely on the access, but in fact it is an agreement between the County and the developer.
Chairman Nelson commented that if it was a condition that requires them to continually maintain the road,
then the County would -have an RMA that the applicant would be required to sign.
Mr. Schroth" stated that Chairman Nelson was correct. The main purpose being that the RMA gets
recorded on the title and that it is carried forward.
Commissioner Leland stated that basically they would be leaving the neighbors to their own devices to "
allocate the cost of maintaining the road.
Chairman Nelson asked Mr. Schroth if before the parcel map could be recorded would the Nelsons have
to have an agreement with their neighbors for maintaining their portion of the existing section of York
Road.
Mr. Schroth replied that they do not have to resolve an actual agreement with the neighbors; it really is
left up to them to work out how the costs were to be shared. They would be required to acknowledge that
they had a responsibility to have a share of the maintenance cost.
Commissioner Lambert asked if it was Condition # 14 on page 15 of the Conditions of Approval.
Mr. Schroth confirmed that it was.
Commissioner Leland asked if Civil Code Section 845 was the one that allocates maintenance according
to use.
Mr. Wannenmacher was not sure if that was the particular code section, he thought that perhaps it was the
code sections that referred to private roads. He indicated that this approach is the standard way they
approach this matter, and the applicant still has to prove legal access along the road.
■ BUTTE COUNTY PLANNING COMMISSION s MINUTES, NOVEMBER 30, 2006 PAGE 20 ■
Mr. Schroth replied that according to the title paperwork that had been presented to them, the applicant
had proven legal access to York Road. Mr. Schroth stated that he had been asked to comment on
Condition 420. The road condition that will be required is: "Gravel will only be required on the parcels to
be divided, the specification is gravel as needed on the road out to the publicly maintained road."
Mr. Glover addressed the Commission. He indicated that an easement had been Eranted to the Nelsons'
property that had been recorded in 1992, but there was no mention made of the RMA. He also stated that
he could provide Mr. Michelena a copy of the easement if desired.
Gerald Nelson addressed the Commission. He stated that he had spoken with Mr. Glover regarding the
new road that would be put in for the new parcels, and that they did not want to call it York Road. He also
stated that the new road would be on a separate maintenance agreement and that they would maintain that
part. As far as the gate is concerned he would be happy to remove the gate, it was put in place originally
because kids were partying down there at the end of York Road and leaving their beer cans and other
debris lying around. Mr. Nelson also indicated that he had no objection to bein€, a part of the RMA but
that he has always tried to participate whenever someone had asked him about maintaining York Road.
He stated that he did not believe he was more responsible for the condition of the road, but he would be
amenable to paying a fair portion of the costs involved in the rebuilding of the road.
The hearing was closed and comments were confined to the Commission and s:_aff.
Commissioner Wilson asked if Mitigation Measure #1 would take care of the dust problem during
construction.
Mr. Michelena stated that any further development on the subject property or resulting parcels would be
required to follow the dust mitigation measure.
Chairman Nelson addressed Mr. Nelson and asked him if he had anything further to say.
Mr. Nelson addressed the Commission, and said that he is just about done with the construction of his
residence and that if he. had known there was a mitigation measure for the dust then he would have
followed it.
Mr. Michelena informed him that the proposed mitigation measures would not have been applicable to the
construction of his residence and would apply to future construction after the parcel map has been
recorded.
Commissioner Lambert asked for clarification if Mitigation Measure # I would apply only on site and not
to the roads.
Mr. Michelena responded that Commissioner Lambert was correct it would be applicable only to the
construction site.
Commissioner Lambert stated that if the construction equipment was traveling down the road creating
dust then they would not have to abide by Mitigation Measure # 1 and would not have to sprinkle the road.
Chairman Nelson commented that Mitigation Measure #14 reads: `Prior to or concurrently with the
recordation of the Parcel Map, provide a fully executed road maintenance agreement for all non -publicly.
access roads on the County approved form. A note shall be placed on a separate document which is to be
recorded concurrently with the map or on an additional map sheet of the Parcel Map stating; "In
■ BUTTE COUNTY PLANNING COMMISSION ■ MINUTES, NOVEMBER 3C, 2006 ■ PAGE 21 ■
accordance with Civil Code Section 845, maintenance of the road as shown heron shall be shared by those
properties with a legal interest in it."
Commissioner Lambert stated that the Nelsons were not sharing property with legal interest unless the
road qualifies as the shared property. York Road leads up to the subject parcel and then you have the
mitigation measures that would apply to the new road and resulting parcels, and traveling on York Road
is what the rest of the neighbors are concerned with.
Commissioner Leland stated that the Civil Code section would address that and that everybody who uses
an easement has to pay a pro -rata share according to use.
Tom Wrinkle addressed the Commission. He stated that Condition #I would cover the dust along York
Road, the condition reads "Dust generated by the development activities ......" and that would include
activities that would involve traveling along York Road and any future development on Lot 2. Mr. Nelson
has agreed to assist with dust control and that this is a normal condition that is a part of almost every
parcel map and subdivision.
It was moved by Commissioner Marin, seconded by Commissioner Wilson, and unanimously carried to
adopt Resolution PC 06-69 to approve the Tentative Parcel Map for Gerald Nelson subject to the findings
and conditions with the following changes: in Conditions #12 and #13 change `Oroville Municipal
Airport' to `Paradise Skypark Airport' and changing Mitigation Measure #3 to read: "Place a note on a
separate document which is to be recorded concurrently with the map or on an additional map sheet that
states: Prior to any development activity or the issuance of any permit or approval removing or
encroaching upon oak trees on the project site (this generally includes the canopy drip -line of trees within
the area of ground disturbance and trees subject to changes in hydrologic regime) an Oak Tree Mitigation
Plan prepared by a certified arborist, registered professional forester, botanist or : andscape architect shall
be submitted for review and approval by the Director of Development Services. or his/her designee."
H. ZCA06-0003 - staff recommends approval
Name: Butte County Department of Development Services Project: Zoning Code
Amendment
Planner: Dan Breedon Location: County -wide File k: ZCA06-0003
Proposal: Zoning Code Amendment to Butte County Code section 24-262, which
regulates wireless communications facilities. The purpose of the proposal to amend
section 24-262, is to provide for a ministerial permitting process in the County, which
would replace the existing discretionary permitting proce3s regulating proposed
installations of "collocation facilities" on, or immediately adjacent to a "wireless
telecommunications collocation facility," as that term is defined in Senate Bill 1627. Itis
necessary to replace the existing discretionary permitting process regulating proposed
installations of collocation facilities on, or immediately adjacent to a wireless
telecommunications collocation facility with a ministerial permitting process, in order to
comply with requirements set forth in Senate Bill 1627, which was recently enacted by
the State Legislature and signed into law by Governor Arnold Schwarzenegger, and
which will become effective January 1, 2007. The proposed ordinance would define
specified terms and set forth required standards, both development standards and
performance standards, with which collocation facilities, as defined in Senate Bill 1627,
would be required to comply.
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Chuck Thistlethwaite gave a summary and description of the proposal to amend Section 24-262 of Butte
County Code regarding wireless telecommunication facilities.
Chairman Nelson reiterated that the process for new poles would stay the same and would be heard by the
Planning Commission, and that co -location on existing poles would have the same statute and standards
but they would become ministerial permits and not be heard by the Commission.
Mr. Thistlethwaite indicated that Chairman Nelson was correct.
Rob MacKenzie addressed the Commission. He stated that the legislation is difficult to read and there are
a number of places where it is vague. The goal of the ordinance is to take the two major categories in the
new legislation and flip them around; the interpretation of the legislation means that if there are facilities
in the County that have already been authorized pursuant to a discretionary permit by the Planning
Commission and gone through the CEQA process then any collocations that are added to those facilities
have to be processed through ministerial permit process with a one size fits all set of requirements. If a
collocation is proposed on a facility that has not gone through a discretionary permit process then that
whole facility would be opened up to a discretionary permit process to be heard by the Planning
Commission. The legislation is vague on the definition of a collocation facility, and he felt that a specific
definition was needed to prevent somebody from bootlegging in an antennae farm. The facilities are
exempt from both the Subdivision Map Act and the Subdivision Ordinance; and what was provided on
the proposed Ordinance was that `immediately adjacent' would be defined as: `on a small piece of ground
that is exempt from the Subdivision Map Act." The accepted spelling of collocate would include two 1's,
which matches the spelling in the new legislation. Another change would be if a company stated that we
were precluding them from providing service which is one of the things that we cannot do, instead of
having a hearing by the Board of Supervisor we would have the hearing conducted by a hearing officer —
similar to the hearings held by the Code Enforcement Division for Nuisance Abatement Hearings, which
have worked very well. After the hearing the project would come before the Planning Commission
instead of the Board of Supervisors.
Mr. MacKenzie indicated that the Ordinance was created in a short amount of time and he has found a
deficiency in subparagraph (f)(3) that should have been pulled out and put into the new portion of the
Ordinance. If the Commission would approve this Ordinance today subject to that modification so that all
of the performance and development criteria were in the new part of the Ordinance instead of some of
them being in the new part and some in the old part, he would appreciate it.
Commissioner Leland had a question about existing antennas that were approved with a `stealth design';
what criteria ministerially would be used to make sure the new one would match the stealth design of the
existing one. He also noted that there were some general design standards in the old portion and (g)(3)
that states: `The use of best available technology and/or construction to achieve maximal visual
unobtrusiveness is mandatory.' That criterion would need to be added to the collocation criteria.
Mr. MacKenzie stated that it was in (f)(3), (c) that Commissioner Leland's concern would be addressed
and that language could be changed to read "The antennas and pole shall be painted to match the color of
the existing antennas and pole or tower, or shall be painted and constructed to blend with both the
prevalent architecture and natural features existing on the subject site, as determined by the Director of
Development Services."
Commissioner Leland asked if the General Standards were incorporated in the (f)(3) collocations
■ BUTTE COUNTY PLANNING COMMISSION ■ MINUTES, NOVEMBER 30, 2006 ■ PAGE 23 ■
Mr. MacKenzie replied that in the new Ordinance they refer back to the entire existing Ordinance, and
that in subparagraph (k) (3), (b) indicates that they have to comply with all applicable requirements of the
Section 24-262.
Commissioner Leland inquired if it would include all of the General Design Standards.
Mr. MacKenzie replied — "Absolutely."
It was moved by Commissioner Leland, seconded by Commissioner Wilson, and unanimously carried to
recommend that the Board of Supervisors adopt the Ordinance ZCA 06-0002 with the change that the
design criteria of the old section be added to the new section and on (f) (3), (c) tak; the two `or's' out and
put `ands' in,. so that all of the requirements of (c) must be met instead of some of them.
LUNCH BREAK - 1:05 p.m. to 1:30 p.m.
1:30 P.M.
I. MIN 96-03 — staff recommends certification of the Final Environmental Impact Report
and approval of the project.
Name: M&T Chico Ranch Mine Project: Final Environmental Impact Report
(FEIR) and Mitigation Monitoring Plan, Mining Permit and Reclamation Plan, MIN 96-
03).
Planner: Pete Calarco APN: 039-530-019, 039-530-020.
Location: On a portion of the M&T Chico Ranch approximately 1.5 miles east of the
Sacramento River and approximately 5 -miles southwest of the City of Chico in an area
north of and adjacent to Ord Ferry Road, east of and partially adjacent to River Road.
Access to the site would be provided by River Road.
Proposal: The project consists of a long-term, off -channel gravel mining operation. The
mining would take place on 193 -acres of a 235 -acre site over a 20 to 30 -1 -year period.
Reclamation would occur incrementally and would consist of the creation of open -water
wetland wildlife habitat and agricultural uses. The aggregate would be processed
(washed and screened) on a 40 -acre area at the site.
An Environmental Impact Report is proposed for this project.
In accordance with the California Environmental Quality Act (:�EQA), A forty-five (45)
day public review period for the DEIR was previously provided. This review period
began on October 10, 2002, and ended November 25, 2002. The Planning Commission
had considered certification in 2003; however, an additional issue regarding the
California Land Conservation Act (Williamson Act) needed to be addressed. As a result,
the applicant filed a request for immediate cancellation from the Williamson Act contract
for a portion of the property. The immediate cancellation req -lest will be considered by
the Board of Supervisors at a later date.
Copies of the Final EIR were available for review on November 20, 2006 on the Butte
■ BUTTE COUNTY PLANNING COMMISSION ■ MINUTES, NOVEMBER 30, 2006 ■ PAGE 24 ■
County Department of Development Services website www.buttecounty.net/dds/planning
and various County libraries. The Planning Commission will firstconsider certification
of the FEIR as -consistent with the requirements of CEQA and then take action on the
project.
Please see attached transcript for the minutes of this item.
VIII. GENERAL BUSINESS- This section of the agenda is to be utilized by the 'lanning Commission and
Director of Development Services on items of interest, general discussion, or items for which staff has been directed
to do research and bring back to the Commission. Items A, B, & C may not always be addressed at every hearing,
but will always be listed as part of the agenda.
A. Directors' Report
None.
B. General Plan/Zoning Ordinance Update
None.
C. Legislative Case Law update
None.
D. Planning Commission Concerns
None.
IX. CLOSED SESSION
X. MINUTES None
XI. COMMUNICATIONS - Communications received and referred. (Copies of ale communications are available
in the Planning Division Office.)
None
XII. ADJOURNMENT
There being no further business, the Planning Commission adjourned at 5:45 p.m.
Chairman Larnl5ert
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