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HomeMy WebLinkAboutM AND T RANCH GRAVEL MINE APPLICATION MIN 96-03ELLMAN 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 1 0 N 601 CALIFORNIA STREET NINETEENTH FLOOR SAN FRANCISCO, CA 94108 415.777.2727 W W W.ELLA4AN-EURKF,.COD4 December 11, 2006 Mr. Chuck Nelson, Chair Ms. Nina Lambert, Vice .Chair Mr. Fernando Marin Mr. Harrel Wilson Mr. Richard Leland BUTTE COUNTY PLANNING COMMISSION c% BUTTE COUNTY DEPT. OF DEVELOPMENT SERVICES 7 County Center Drive Oroville CA 95965 Att'n: Clerk Of The Planning Commission HOWARD N. ELLMAN 415.296.1610 DIRECT TEL 415.495.7587 FACSIMILE HELLMAN@ELLMAN-EURICE.COM Re: M&T Ranch Gravel Mine: Application. Min 96-03 Application for Permit To Establish Gravel Mine On Agricultural Land: December 14, 2006. Hearin Dear Madame & Sirs: a As you know, we represent Parrott Investment Company ("Parrott"), the owner of Llano Seco. Ranch'. The Ranch lies in the immediate vicinity of the proposed gravel mine on the south side of Ord Ferry Road. It will receive floodwaters from the mine site by means of both Little Chico Creek and Angel Slough. Testimony you received at the November 30 hearing.has prompted me to prepare the following for your consideration. L. The Determination You Are Required to Make. Baldwin Construction Company ("Baldwin") seeks a use permit. Section 24-45.10 of the Butte County Code establishes the criteria you are to apply in considering such an application: The planning commission, on the basis of the evidence submitted at the hearing, may grant use permits required by the provisions of this chapter when it finds that the proposed uses of the property will not impair the integrityand character of the zone in which the land lies and that the use would not be unreasonably incompatible with, or injurious to, surrounding properties or detrimental to the health and I I apologize for the fact that other commitments prevent me from attending the continued public hearing on December 14, 2006. N:\P\PARRI\GM\Letters\Protest letter 12-11-06 BUTTE . COUNW, DEC f 3 20M DEVELOPM 011 SERVICES 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 December 11, 2006 Page 2 general welfare of the persons residing or working, in the neighborhood ... (Emphasis added). Under, this Section, you determine whether or not the proposed use is compatible with its surroundings, a two partinquiry. You cannot make that determination without a clear, hard - eyed focus on the proposal itself within the context of the character of the surroundings. The area in question is a unique environmental "paradise." It is a combination of oak woodlands, riparian forests, wetlands and gently undulating savannah which were common in early California but virtually gone today. As such, they provide habitat for one of the richest diversities of wildlife in the state. Not only is a gravel mine not compatible with this agriculture or wildlife habitat, it is the complete opposite: a barren wasteland of rock, dust,2 and noise. If the Commissioners have not seen a gravel mine up close and personal, perhaps they should do so. Because they are being asked to be party to a truly cynical undertaking. 2. Baldwin Proposes a Gravel Mine — Not Wildlife Habitat or Compatible Agriculture. In its testimony, the Baldwin representatives repeatedly emphasized that their reclamation plan called for the creation of wildlife habitat. You are asked to disregard the intervening 30 or 40 years of disruption and focus on the end result, after accepting the impacts of an open pit mine. The proposal before you is a gravel mine'— an entire generation of utter, absolute environmental devastation to achieve a modest lake that might have wildlife values. Baldwin and its supporters assure you that it will produce the result it promises, citing its experience in the Yuba Gold Fields. But the Yuba Gold Fields were devastated by hydraulic gold mining in the late 19th Century. Here, Baldwin proposes to convert some of the last undisturbed, undulating ground on the entire M&T Ranch into a heavy industrial use that will destroy all vestige of natural environment. In all honesty, Parrott representatives found the continued repetition of the "we're _creating, wildlife habitat" mantra rather insulting. Parrott has created over 10,000 acres of wildlife habitat at Llano Seco Ranch. After embarking upon its habitat conversion plan in 1991, it created Z The EIR claims that the gravel mine will emit no more dust than agricultural operations commonly emit. But the land in question has been fallow most years. And the dust of agricultural operations is associated with short periods of ground work, not a year round phenomenon. NAP\PARRI\GM\Letters\Protest letter 12-11-06 ELLMAN BURKE HOFFMAN & JOHNSON A P K O F E S 5 1 0 N A L L A W C O R O R A T I O N December 11, 2006 . Page 3 several times more habitat in one year than Baldwin proposes after 30 years of gravel mining, without, in Parrott's case, the intervening inconvenience of destructive consumptive use. Do not be misled. You have before you a proposal to create an open pit mining operation. You must be satisfied that the proposed use of the property "will not impair the integrity and character of the zone in which the land lies and the use would not be unreasonably incompatible with, or injurious to, surrounding properties or detrimental to the health and general welfare of the persons residing or working in the neighborhood or. to the general health, welfare and safety of the county." Section 24-24.10, Butte County Code. You cannot begin to make that determination without a clear understanding of the, context in which the mine will operate, the subject to which we now turn. 3. The EIR Fails Accurately to Describe the Context. As our previous letters have demonstrated, the EIR does not accurately describe the context. Indeed, it omits material facts as .well as making statements that are flatly false. First, it, describes Llano Seco as crop and orchard land. Llano Seco has been largely converted to wildlife habitat pursuant to a plan put into place in 1991, long,before the draft EIR for the project you are considering was even proposed. This conversion was not a closely held secret. Indeed, quite the contrary. How the EIR writers could have missed it — and thus misstated the use of Llano. Seco Ranch — is puzzling. Their persistence.in ignoring the fact over all these years is even more so. Second, the EIR fails to mention that, the proposed gravel mine site lies within the boundaries of the Sacramento River Conservation Zone, a zone created by state legislation to establish protective policies for the properties within the Zone due to its important environmental' values. The importance of those values is also underscored by the fact that there are almost 50 parcels in that area which have been purchased and set aside by local, state, federal and non-profit, agencies for.the purpose of conservation, wildlifehabitat and public recreation. Third, the EIR fails to advise you that both the Environmental Protection Agency and the National Marine Fisheries Service have adopted guidelines strongly urging against placing gravel mines within the floodplains of watercourses that support anadromous fish resources. The same Guidelines forcefully advocate against allowing gravel mines that will penetrate the water table in NAP\PARRI\GM\Letters\Protest letter 12-11-06 i ELLMAN BURKE HOFFMAN & JOHNSON A PROFESS IONAL L A W C O. R P O R A T 1 O N December 11, 2006 Page 4 areas that have hydrologic contiguity with such watercourses. The proposal before you violates both strictures. Fourth, it appears that the EIR does not adequately describe the flood impacts on.the neighbors that will be caused by the protective works to be erected around the.gravel mine. Based on the testimony, it appears that the improvements planned will directly impact neighboring properties by raising the levels of flood waters that will inundate their properties3. The EIR is supposed to function as the information document to provide you with the environmental information you need to assess the impact of your actions.', But it is grossly misleading in its discussion of the context — one of thetwo key components of your determination under the applicable section of the Butte County Zoning Ordinance. And it is impossible not to take note of a particularly troubling aspect of these errors of omission and commission. We raised them originally by comment letter in January, 2004. That comment letter was submitted after the close of the comment period on the draft EIR. But that was nearly three. years ago. In the interim, Staff and the EIR writers have been able to fashion a series of responses to other comments submitted late, such as those pertaining to Williamson Act issues and matters pertaining to the supply of and demand for the construction materials the gravel mine will provide. Is it a coincidence that the ,only responses to "late" comments with which you have been provided are those favorable to the applicant? We need not speculate on motive. The matters we brought to your attention in January 2004 are empirical fact that the EIR writers ignored or got wrong., Those matters bear directly on the decision before you. 4. Baldwin's Credentials Are Not Relevant. Baldwin spent a considerable portion of its testimony extolling its own virtues as a corporate citizen. Persons who spoke in support of its application, including its trucking contractor and its union employees at its Yuba Gold Fields mine, repeated the same point. But consider the following: As a use permit and reclamation plan run with the land, you have no assurance. that Baldwin will be the party with whom you are dealing over the life of the 3 The County should consider the real possibility that it could be liable for the damages that such incremental flooding may cause. NAP\PARRI\GM\Letters\Protest letter 12-11-06 ELLMAN BURKE HOFFMAN & JOHNSON . A P R O F E 5 S 1 O N A L L A -W C O R P O R A T I O N December 11, 2006 Page 5 mine and the reclamation plan. As ownership and management can change - not to mention the attrition of time -- you have no assurance that you will be dealing with the same people. The nature of the use -- and not the identity of the user— is the criterion that you must apply. Suppose, for example, that the most saintly corporation in the history of American business came to Butte County, and proposed the creation of a nuclear waste, dump. Is the issue the saintliness of the applicant, or the creation of the disposal facility? Because you have no way of -protecting yourself against.a change in the character of the permittee, you must be guided by the nature of the permit itself and the use it permits, for that is what defines the contextual issue under the provision of the Ordinance that controls your actions. 5. The Issue of "Substantial Evidence. In his presentation, the environmental consultant went on at great length as to his credentials. But the issue is not his credentials but the adequacy of the report that he prepared, clearly deficient as we have noted above. Attempting to respond to'those claims of deficiency, the consultant stated that "substantial evidence" must be offered to demonstrate the error in the EIR and support a showing that it was relevant to any environmental considerations.. Baldwin's lawyer made a similar argument and further claimed that "he had heard nothing" during the hearing that amounted to "substantial. evidence" as defined by the law. In other words, "we may have been wrong.but no harm, no foul — and you have the burden to prove the harm ..." California law establishes beyond argument that a property owner'is competent to testify as to the conditions that exist on its property and the effect that certain actions will have on those conditions. The suggestion that the owners of Llano Seco are not competent, for example, to testify' concerning the uses of their property — contrary to the statement in the EIR --is blatantly wrong as well as offensive: The same is true with respect to the testimony received from the property owners who fear that the project -will enhance their risk of flood damage. -"Nor are you barred from using your own common sense in addressing these contextual issues. If the EIR conflicts with the testimony of your own eyes, are you bound by the EIR? Of course not. N:\P\PARRRGM\Letters\Protest letter 12-11-06 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 1 0 December 11, 2006 Page 6 The EIR writer cannot demand that you "prove" him wrong in, cases where he -'obviously is as a matter of empirical observable fact. He cannot demand that you accept his error as. "harmless" when it is for you, the Commissioners, to make that judgment. Parrott reiterates its request that you do not certify the EIR, finding it income;lete, inaccurate and inadequate as an environmental document If you certify the EIR, we request that you deny the permit because you cannot find that it meets the criteria for approval under the Ordinance. Thank you for your consideration. 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 NAPTARRR M\Letters\Protest letter 12-11-06 ELLMAN BURKE HOFFMAN & JOHNSON A ,P R O F E S S 1 0 NA L'. -L A W C'O R P O R A T 1 O N 6701 CALIFORNIA STREET - HOWARD N. ELLMAN NINETEENTH FLOOR 415.296.1610 DIRECT TEL SAN FRANCISCO, CA 94108 415.495•7587 FACSIMILE 435-777.27,27 HELLMANCEI,LMAN-I3LIRKF..COM W W W. ELLA9AN-r3U RKF..COT11 , December 11, 2006 r Mr: Chuck Nelson, Chair Ms. Nina Lambert, Vice Chair Mr. Fernando Marin Mr. Harrel Wilson Mr. Richard Leland BUTTE COUNTY PLANNING COMMISSION c% 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: December 14, 2006 Hearing Dear Madame & Sirs: As you know, we represent Parrott Investment Company ("Parrott"), the owner of Llano Seco Ranch. The Ranch lies in the immediate vicinity of the proposed gravel mine on the south side of Ord Ferry Road. It will receive floodwaters from the mine site by means of both Little Chico Creek and Angel Slough. Testimony you received at the November 30 hearing has prompted me to prepare the -following for your consideration. 1. • The Determination You Are Required to Make. Baldwin Construction Company ("Baldwin") seeks a use permit. Section 24-45.10 of the Butte County Code establishes the criteria you are to apply in considering such an application: The planning commission, on the basis of the evidence submitted at the hearing, may grant use permits required by the provisions of this chapter when it finds that the proposed uses of the property will not impair,the integrity and character of the zone in which the land lies .and that the use would not be unreasonably incompatible with, or injurious to, surrounding properties or detrimental to the health and I I apologize for the fact that other commitments prevent me from attending the continued public hearing on December 14, 2006. N:\P\PARRI\GM\Letters\Protest letter 12-11-06 r� ELLMAN BuRKE HOFFMAN & JOHNSON A PROF ESSI ONAL L A W C O R P O R A T I O N December 11, 2006 Page 2 general welfare of the persons residing or working in the neighborhood ... (Emphasis added). Under this Section, you determine whether or not the proposed use is compatible with its surroundings, a two part inquiry. You cannot make that determination without a clear, hard - eyed focus on the proposal itself within the context of the character of the surroundings. The area in question is a unique environmental "paradise." It is a combination of oak woodlands, riparian forests, wetlands and gently undulating savannah which were common in early California but virtually gone today. As such, they provide habitat for one of the richest diversities of wildlife in the state. Not only is a gravel mine not compatible.with this agriculture or wildlife habitat, it is the complete opposite: a barren wasteland of rock, dust,2 and noise. If the Commissioners have not seen a gravel mine up close and personal, perhaps they should do so. Because they are being asked to be party to a truly cynical undertaking. 2. Baldwin Proposes a Gravel Mine — Not Wildlife Habitat or Compatible Agriculture. In its testimony, the Baldwin representatives repeatedly emphasized that their reclamation plan called for the creation of wildlife habitat. You are asked to disregard the intervening 30 or 40 years of disruption and focus on the end result, after accepting -the impacts of an open pit mine. The proposal before you is a gravel mine — an entire generation of utter, absolute environmental devastation to achieve a modest lake that might have wildlife values. Baldwin and its supporters assure you that it will produce the result it promises, citing its experience in the Yuba Gold Fields. But the Yuba Gold Fields were devastated by hydraulic gold mining in the late 19th Century. Here, Baldwin proposes to convert some of the last undisturbed, undulating ground on the.. entire M&T Ranch into a heavy industrial use that will destroy all vestige of natural environment. In all honesty, Parrott representatives found the continued repetition of the "we're. creating wildlife habitat" mantra rather insulting. Parrott has created over 10,000 acres of wildlife habitat at Llano Seco Ranch. After embarking upon its habitat conversion plan in 1991, it created 2 The EIR claims that the gravel mine will emit no more dust than agricultural operations commonly emit. But the land in question has been fallow most years. And the dust of agricultural operations is associated with short periods of ground work, not a year round phenomenon. N:\P\PARRI\GM\Letters\Protest letter 12-11-06 ELLMAN BUR -KE HOFFMAN & JOHNSON A P. R 0 F F S S I O N A L L A W C O O P O, K A T I O N December 11, 2006 Page 3 several times more habitat in one year than Baldwin proposes after 30 years of gravel mining, without, in Parrott's case, the intervening inconvenience of destructive consumptive use. Do not be misled. You have before you a proposal to create an open pit mining operation. You must be satisfied that the proposed use of the property "will not impair the integrity and character of the zone in which the land lies and the use would not be unreasonably incompatible with, or injurious to, surrounding properties or detrimental to the health and general welfare of the persons residing or working in the neighborhood or to the general health, welfare and safety of the county." Section 24-24.10, Butte County Code. You cannot begin to make that determination without a clear understanding of the context in which the mine will operate, the subject to which we now turn. . The EIR Fails Accurately to Describe the Context. As our previous letters have demonstrated, the EIR does not accurately describe the context. Indeed, it omits material facts as well as making statements that are flatly false. First, it describes Llano Seco as crop and orchard land. Llano Seco has been largely converted to wildlife habitat pursuant to a plan put into place in 1991, long before the draft EIR for the project you are considering was even proposed. This conversion was not a closely held secret. Indeed, quite the contrary. How the EIR writers could have missed it — and thus misstated the use of Llano Seco Ranch — is puzzling. Their persistence in ignoring the fact over all these.years is even more so. Second, the EIR fails to mention that the proposed gravel mine site lies within the boundaries of the Sacramento River Conservation Zone, a zone created by state legislation to establish protective policies for the properties within the Zone due to its important environmental values. The importance of those values is also underscored by the fact that there are almost 50 parcels in that area which have been purchased and set aside by local, state, federal and non-profit agencies for the purpose of conservation, wildlife habitat and public recreation. Third, the EIR fails to advise you that both the Environmental Protection Agency and the National Marine Fisheries Service have adopted guidelines strongly urging against placing gravel mines within the floodplains of watercourses that support anadromous fish resources. The same Guidelines forcefully advocate against allowing gravel mines that will penetrate the water table in NAP\PARRI\GM\Letters\Protest letter 12-11-06 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 December 11, 2006 Page 4 areas that have hydrologic contiguity with such watercourses. The proposal before you violates both strictures. Fourth, it appears that the EIR does not adequately describe the flood impacts'on the neighbors that will be caused by the protective works to be erected around the gravel mine. Based on the testimony, it appears that the improvements planned will directly impact neighboring properties by raising the levels of flood waters that will inundate their properties3. The EIR is supposed to function as the information document to provide you with the environmental information you need to assess the impact of your actions. But it is grossly misleading in its discussion of the context — one of the two key components of your determination under the applicable section of the Butte County Zoning Ordinance. And it is impossible not to take note of a particularly troubling aspect of these errors of omission and commission. We raised them originally by comment letter in January, 2004. That comment letter was submitted after the close of the comment period on the draft EIR. But that was nearly three years ago. In the interim, Staff and the EIR writers have been able to fashion a series of responses to other comments submitted late, such as those pertaining to Williamson Act issues and matters pertaining to the supply of and demand for the construction materials the gravel mine will provide. Is it a coincidence that the only responses to "late" comments with which you have been provided are those favorable to the applicant? We need not speculate on motive. The matters we brought to your attention in January 2004 are empirical fact that the EIR writers ignored or got wrong. Those matters bear directly on the decision before you. 4. Baldwin's Credentials- Are Not Relevant. Baldwin spent a considerable portion of its testimony extolling its own virtues as a corporate citizen. Persons who spoke in support of its application, including its trucking contractor and its union employees at its Yuba Gold Fields mine, repeated the same point. But consider the following: As a use permit and reclamation plan run with the land, you have no assurance that Baldwin will be the party with whom you are dealing over the life of.the 3 The County should consider the real possibility that it could be liable for the damages that such incremental flooding may cause. N:\P\PARRI\GM\Letters\Protest letter 12-11-06 ELLMAN BURKE HOFFMAN & JOHNSON A P R O F E 5. S 1 O N A L L A W C O R P O R A T I O N December 11, 2006 Page S mine and the reclamation plan. As ownership and management can change — not to mention the attrition of time -- you have no assurance that you will be dealing with the same people. The nature of the use -- and not the identity of the user — is the criterion that you must apply. Suppose, for example, that the most saintly corporation in the history of American business came to Butte County and proposed the creation of a nuclear waste dump. Is the issue the saintliness of the applicant, or the creation of the disposal facility? Because you have no way of protecting yourself against a change in the character of the permittee, you must be guided by the nature of the permit itself and the use it permits, for that is what defines the contextual issue under the provision of the Ordinance that controls your actions. 5. The Issue of "Substantial Evidence." In his presentation, the environmental consultant went on at great length as to his credentials. But the issue is not his credentials but the adequacy of the report that he prepared, clearly deficient as we have noted above. Attempting to respond to those claims of deficiency, the consultant stated that "substantial evidence" must be offered to demonstrate the error in the EIR and support a showing that it was relevant to any environmental considerations. Baldwin's lawyer made a similar argument and further claimed that "he had heard nothing" during the hearing that amounted to "substantial evidence' as defined by the law. In other words, "we may have been wrong but no harm, no foul — and you have the burden to prove the harm ..." California law establishes beyond argument that a property owner is competent to testify as to the conditions that exist on its property and the effect that certain actions will have on those conditions. The suggestion that the owners of Llano Seco are not competent, for example, to testify concerning the uses of their property — contrary to the statement in the EIR --is blatantly wrong as well as offensive. The same is true with respect to the testimony received from the property owners who fear that the project will enhance their risk of flood damage. Nor are you barred from using your, own common sense in addressing these contextual issues. If the EIR conflicts with the testimony of your own eyes, are you bound by the EIR? Of course not. NAPTARRR M\Letters\Protest letter 12-11-06 ELLMAN BURKE HOFFMAN & JOHNSON A P R O F E SS 1 O N A L L A W C O R P O R A T I O N December 11, 2006 Page 6 The EIR writer cannot demand that you "prove" him wrong in cases where he obviously is as a matter of empirical observable fact. He cannot demand that, you accept his error as ' "harmless" when it is for you, the Commissioners, to make that judgment. Parrott reiterates its request that you do not certify the EIR, finding it income;lete, inaccurate and inadequate as an environmental document. If you. certify the EIR, we request that you deny the permit because you cannot find that it meets the criteria for approval under the Ordinance. Thank you for your consideration. 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 N:\P\PARRI\GM\Letters\Protest letter 12-11-06