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HomeMy WebLinkAboutBALDWIN CONTRACTING CO M AND T MINEC11 .1 diepenbrock• harrison A PROFESSIONAL -CORPORATION December 9, 2005 Ruin `COUNW . DEC• T : ". DEVELUd°1vjE1`v SERVFC'F.,S Dan Breedon; ACIP, Principal Planner-'_- - -- County of Butte Department of Development Services .7 County Center Drive Oroville, CA 95965 JOHN V. "JACK" DIEPENBROCK JEFFREY L ANDERSON KAREN L DIEPENBROCK LARA M. O'BRIEN KEITH W. McBR,IDE MICHAEL E. VINDING BRADLEY J. ELKIN JENNIFER L.DAUER EILEEN M. DIEPENBROCK CHAD O'NEAL MUILENBURG MARK D. HARRISON SEAN K. HUNGERFORD GENE K. CHEEVER' LEONOR Y. DI(DICAN MICHAEL V. BRADY CHRIS A. MCCANDLESS LAWRENCE B. GARCIA JEFFREY K. DORSO SUSAN E. KIRKGAARD DAN M. SILVERBOARD ANDREA A. MATARAllO ANDREW P. TAURIAINEN JOEL PATRICK ERB BLAIR W. WILL JENNIFER D. BECHTOLD GEORGE V. HARTMANN Of(ounrel R. JAMES DIEPENBROCK (/RIP —1001) Re: Baldwin Contracting Co.: M & T Mine Our File No. 2941.002 Dear Dan. Thank you for meeting with Mark Harrison, Jeff Carter,, Rene.Vercruyssen, and me on November 28, 2005 to discuss the M&T Chico Ranch Mine ("Project") in Butte County ("County"). Below is a summary of the procedures we discussed to process the Project's entitlement package, which includes a use permit, reclamation plan, petition for partial cancellation, and certification of the Project's environmental impact report ("EIR"). As you are aware, the proposed Project sit�1s covered. -by a Williamson Act contract. The Williamson Act contract expressly lists Qing as an allowed use, and the County has taken the position, as demonstrated in the Project EIR, that mining is, allowed under the Williamson Act and the applicable Williamson Act contract at issue. After the County released the Final EIR, however, the Department of Conservation ("DOC") submitted comments opining that mining was inconsistent with the applicable Williamson Act contract. In response to these comments, Baldwin Contracting Company ("Baldwin"), while reserving its rights, voluntarily agreed to partially cancel its Williamson Act contract to.avoid any potential conflict between the County and DOC. . Baldwin worked diligently with DOC to prepare a petition for partial cancellation. On October 11, 2005 Baldwin submitted the petition for partial cancellation to the 400 CAPITOL MALL SUITE 1800 SACRAMENTO,CA 95814 WWW.DIEPENBROCK.COM 916 492.5000 FAX: 916 446.4535 DIEPENBROCK HARRISON 'Dan Breedon December 9, 2005 .Page 2 County, and the County subsequently mailed it to DOC for comment. DOC commented that Baldwin could make the necessary findings for cancellation. Based on the November 28, 2005 meeting, it is our understanding that the petition for partial cancellation will go before the Butte County Land Conservation Act Committee ("LCA") at one of its next two meetings, either on December 20, 2005 or in January 2006. At this meeting, the LCA will discuss the petition and form a recommend aton for-1he..Board.of.Supervisors: - At this time, the County should begin preparing its staff report for the entire entitlement package and set a hearing date for the County Planning Commission, which will decide whether to approve the use permit and reclamation plan, and whether to certify the Project EIR. In this staff report, the County should respond to all comments it has received following the release of the Final EIR, including DOC's comments regarding the Williamson Act and mining. As you are aware, in response to these comments, and to avoid conflict, Baldwin and the County agreed to file a petition for partial cancellation, with Baldwin expressly reserving its rights under the Williamson Act contract. Neither the County nor Baldwin is changing its position that mining is consistent with the Williamson Act and the applicable Williamson Act contract. As such, it is important that the staff report explain this and accurately set forth the County's historic, and current, position that mining is consistent with the applicable Williamson Act contract (as reflected in the County's EIR analysis). Since the County is maintaining its position that mining is consistent with the Williamson Act contract, and since the Project EIR already analyzed the environmental impacts associated with agricultural land conversion and whether. mining is consistent with the applicable Williamson Act contract, no additional e�ivironniental:reew is required. The entire entitlement package should then go before the Planning Commission for decision. The Planning Commission will act on the use permit, the reclamation plan, and the Project EIR.. It will take no action on the petition for partial cancellation, which must be approved by the County Board of Supervisors ("Board"). If the Planning Commission's decision is appealed, then the entire entitlement package will go before the Board for decision. If no appeal is filed, then the Board will only hear the petition for partial cancellation. l As we discussed, there are several reasons to utilize the procedure outlined above. First, if the County proceeds with -the petition for partial cancellation ahead of DIEPENBROCK HARRISON Dan Breedon December 9, 2005 Page 3 the rest of the entitlement package, it exposes the County to legal liability for "project splitting" because it piece -meals one part of a larger project for purposes of approval. Second, it will be difficult for the Board to act on the petition for partial cancellation without access to a complete staff report on the entire underlying entitlement package, of which the petition for partial cancellation is a part. Third, if the petition for partial cancellation is prepared ahead of the rest of the entitlement package, the County will have to prepare an additional staff report and it will have.to notice and hold an add iticnal<an.dunnecessary-..pu. lic`hearing...'F.inaily, and perhaps most importantly, separating the entitlement package into separate parts with separate hearing processes creates confusion for both the public and the County decision -makers as to what constitutes the Project. Therefore, as we discussed on November 28, 2005, we believe the most efficient, legal, and practical procedure for this Project is to proceed with the LCA hearing on December 20, 2005, prepare a staff report for the entire entitlement package; and set the matter for hearing before the Planning Commission in late January 2006. Once the Planning Commission takes action, the Board will.either decide the petition for partial cancellation (with access to the full entitlement package staff report), or if an appeal is filed, the Board will issue a decision on the entire -� entitleme'nt package. A f Thank you again for your cooperation.. We appreciate the County's diligent work on this matter.. Please call if you have any questions. Regards, DIEPENBROCK HARRISON A,Professidnal�Corporation Jeffrey K. Dorso JKD:Icb cc: Rene A. Vercruyssen John Jeffery Carter Peter Calarco Tim Snellings , Felix Wannemacher