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HomeMy WebLinkAboutATTACHMENT C (2)rl r i y x z y, ' n EUMAN BURKE HOFFMAN & JOHNSON A P R O F E 5 5 1 0 N A L L A W C O R P O R A T I O N 601 CALIFORNIA STREET HOWARD N. ELLMAN NINETEENTH FLOOR 415.296.1610 DIRECT TEL SAN FRANCISCO, CA 94108. 415.495.587 FACSIMILE '415.777.2]2] - H£LLMA_ @ELLM.AN-BURKE.COM WWW.ELLMAN-BURKE.COM February 26, 2007 , VIA FEDERAL EXPRESS Mr. Paul McIntosh Clerk of the Board of Supervisors Butte County 25 County Center Drive Oroville, CA 95965 Re: MIN 96-03: Resolutions of Butte County Planning Commission Certifying Final Environmental Impact Report, Adopting Findings of Fact, etc for the M&T Chico Ranch Mining Use Permit and Reclamation Plan, Adopting Statements of Overriding Consideration and Conditions of Approval Dear Mr. McIntosh: Parrott Investment Company ("Parrott") appeals to the Board of Supervisors from the . decision of the Butte County Planning Commission (the "Commission") to adopt the captioned resolutions at its meeting of February 22, 2007. Parrott is the owner of Llano Seco Ranch (the "Ranch"), a property comprising more than 18,000 acres that lies immediately to the south of Ord Ferry Road, within a mile of the proposed mine site. The watercourses that the mine will impact flow directly unto the Ranch and are integral components of the wetlands that have been created on the Ranch for wildlife habitat purposes. Parrott's appeal is a general appeal in which Parrott challenges all of the actions taken and findings made by the Planning Commission at that time. Specifically, but without limiting the generality of the foregoing, Parrott bases its, appeal on the following critical issues among others: BUTTE COUNTY <:.. FEB 2 8 2007 NAP\PARRI\GM\Letters\Clerk BdSup 02-26-07 DEVELOPMENT SERVICES ELLMAN BURKE HOFFMAN -&-JOHNSON A P R O F E 5S 1. O N A L L A W C O R P O R A T I O N ' Mr. Paul McIntosh Clerk of the Board of Supervisors February 26, 2007 . Page 2 (a) Under Butte County Code § 24-45.10, a decision to issue a us,,- permit must be based upon,a finding of compatibility between the use proposed and the surroundings. A gravel mine in the location proposed is fundamentally incompatible with existing land uses and the environmental setting. The Commission's finding concludes that the use is compatible because it is allowed by the General Plan. The entire purpose of discretionary hearings on an application for a use permit is to determine if the specific use proposed is in fact compatible, notwithstanding the provisions of the General Plan. If the General Plan controlled these decisions, the use permit process would serve no purpose whatsoever. The proposed use should have been found to be incompatible for the reasons stated below that address the fact that the location is not suitable for a gravel mine and the environmental setting has been grossly mischaracterized by the environmental documentation. (b) The Environmental Impact Report ("EIR") for the project contains numerous flaws, misstatements and failures to perform its function as a valid and complete information document in compliance with law in at least the following particulars among others: (i) The EIR mischaracterizes the uses of the Ranch; and the attempt to rectify that deficiency by the introduction of an eleventh hour "errata" appended tc the EIR violates the California Environmental .Quality Act ("CEQA") because it introduces significant new information that requires recirculation under the Guidelines and applicable Dase law; (ii) The EIR does not address the. cumulative impact of adding mine sediments to flood flows that travel directly from the mine to the Ranch, taking into account the uniquely deleterious nature of substrate mine sediments; (iii) The EIR mischaracterizes the gravel mine as a wildl=fe habitat creation project, a result that can only be achieved after 30 years of extraction that will devastate the NAP\PARRI\GM\Letters\Clerk BdSup 02-26-07 ELLMAN BURKE 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 Mr. Paul McIntosh Clerk of the Board of Supervisors February 26, 2007 Page 3 environment, assumes that the reclamation plan will be carried out successfully and ignores the existing habitat value of the undulating ground that the gravel mine will defile; (iv) The EIR fails to mention that the gravel mine site lies within the Sacramento River Conservation Zone, a zone established by state law for the express purpose of preserving the unique environmental and recreational values of the region in which the mine is located; (v) The EIR fails to mention that more than 50 parcels within a 10 -mile radius have been placed under conservation easements or acquired to carry out the environmental and recreational values and goals of the Sacramento River Conservation Zone legislation and evaluate the impact of a gravel mine on those parcels; (vi) The EIR fails to mention that both the National Marine Fisheries Service (now National Oceanic and Atmospheric Administration — Fisheries) and the Department of Fish and Game have identified gravel mines in flood zones as one of the primacy contributors to the decline of protected Salmon and Steelhead populations in the Sacramento River and strongly recommend against the creation of any additional such mines — an admonition that applies directly and specifically to the subject mine proposal; (vii) Both of the agencies named in.Section (b)(vi) above strongly discourage creation of gravel mines that will penetrate the groundwater aquifer, another fact that the EIR fails to disclose; (viii) The EIR also fails to disclose that in this case, the unconfined aquifer that the mine will penetrate and that lies within 5 to 13 feet of the ground surface has direct hydrologic contiguity with the Sacramento River and flows to the River at an accelerated pace, NAPTARRAGM\LettersUerk BdSup 02-26-07 ELLMAN' WME 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 Mr. Paul McIntosh Clerk of the Board of Supervisors February 26, 2007 Page 4 thus amplifying the impact created by introducing mine sediments and contaminated flood waters into the' aquifer; (ix) The EIR fails to disclose that the contaminated flood waters that the mine will introduce into the aquifer are the types of waters that could not be injected into the aquifer for recharge purposes without treatment, a fact that both demonstrates the inappropriateness of the mine in the proposed location and the inadequacy of the mitigation measures supposedly crafted to protect against this level of environmental impact, as no such treatment has been required by the conditions of approval. (x) The EIR does not adequately address the recurrent floods in the area and the degree to which the impact of those floodwaters upon the immediately adjacent properties will be enhanced by the measures and improvements that the mine will incorporate for its own protection at the expense of its neighbors; (xi) The. EIR fails to describe adequately the constraints imposed upon the mining activity and the mitigation measures proposed with respect to it by the regulations of the Reclamation Board, as the mine is located in an area under the jurisdiction of that Board; (xii) The Commission's findings and the responses to comments in the EIR are inadequate for failure to do more than regurgitate the language of the draft EIR rather than provide reasoned and balanced responses, the primary example of this flawed and legally r inadequate approach being the citation to the General Plan as the answer to the issue of compatibility referred to in Section (a) above; and ELLMAN BURKE HOFFMAN & JOHNSON A P R O F E S S 1 O N A L L A W C O 0. P 0 R A T 1 O N Mr. Paul McIntosh Clerk of the Board of Supervisors February 26, 2007 Page 5" (xiii) The Commission's findings are not based on substantial evidence or sound justification to support rejection of alternatives under applicable legal standa_ds, a deficiency particularlyin conflict. with recent Supreme Court authority. t (c) In. addition to incorporating by reference the arguments and objections made by other parties who have protested the mine, Parrott contends that the need for the product of the - mine has not been demonstrated. Statistics maintained by the State Division of Mines and Geology establish that there are more than adequate aggregate resources avF-ilable to meet future demand in Butte County. The Commission's findings assume that the resource that the proposed mine would exploit is unique within Butte County — that no other site could be found that would serve the same alleged need with the same or lesser environmental impact. There is no substantial evidence in the record to support that conclusion. (d) Parrott reserves the right also to raise issues concerning the adequacy of the findings to support the actions taken as well as to challenge the question ofwhether or not other findings not referred to above are supported by substantial evidence. We enclose our check in the amount of Fifty Dollars ($50.00) to pay the filing fee required to be paid by ordinance. City of Marina v. Board Of Trustees (2006) 39 CalAth 341. NAP\PARRI\GM\Letters\Clerk BdSup 02-26-07 s, ELLMAN BURn HoFFMAN & JOHNSON A P R O F E S S Z O N A L L A W C O R P O R A T I O N Mr. Paul McIntosh Clerk of the Board of Supervisors February 26, 2007 Page 6 If you need anything further from us in order to perfect the appeal, please call. We enclose a copy of this letter for each member of the Board and two extra copies. We respectfully request that you stamp the two copies of this letter enclosed to show that they have been received and return them to us in the envelope I have included for that purpose. Very truly yours, Howard N. Ellman . HNE/flf Enclosures cc: Felix M. Wannenmacher, Esq., Deputy County Counsel, Butte County , Mr. Pete Calarco, Assistant Director, Butte County Dept. of Development Services Mr. Bill Connelly, Butte County Supervisor Ms. Jane Dolan, Butte County Supervisor Ms. Maureen Kirk, Butte County Supervisor Mr. Curt Josiassen, Butte County Supervisor Mr. Kim Yamaguchi, Butte County Supervisor Mr. Richard Thieriot NAPTARRR M\LettersUerk BdSup 02-26-07