HomeMy WebLinkAbout07-024RESOLUTION APPROVING THE TENTATIVE PARTIAL CANCELLATION
OF EXISTING LAND USE CONSERVATION CONTRACT INSTRUMENT N0.47301
WHEREAS, the subject property 175-acre property proposed for cancellation (APN:
041-140-073) is owned by the Estate of George Chaffin ("Applicant") and is located
Approximately 4 miles north of the City of Oroville, Table Mountain Quarry, northeast of the
intersection of SR-70 and SR-149, Butte County, and is currently subject to the provisions of a
Williamson Act Contract recorded May 2, 1968 as Instrument No. 47301 in Book 1515, pages
600-605 of the Official Records of Butte County (the "Contract"); and
WHEREAS, in the February 9, 2005 letter of comment from the California Department of
Conservation on the proposed mining use permit stated that mining uses are generally not a
compatible use on Williamson Act land; and
WHEREAS, a Notice of Partial Non-Renewal of the Contract was filed with Butte County
by the Applicant on September 12, 2005; and
WHEREAS, on September 12, 2005, the Applicant submitted to the Butte County
Department of Development Services a Petition for Partial Cancellation of a Williamson Act
contract to develop a mining use on the subject property; and
WHEREAS, the Applicant's Petition for the Tentative Cancellation of a Contract
("Petition") was determined to be complete and a copy of the Petition and a general description
of the land subject to cancellation were mailed to the California Department of Conservation on
September 19, 2005; and
WHEREAS, The October 14, 2005 California Department of Conservation letter of
comment on this petition for cancellation states that it appears that the required cancellation
finding can be made; and
WHEREAS, at its August 10, 2006 meeting, the Butte County Planning Commission
conditionally approved Use Permit #96-02 to include 44± additional acres; and
WHEREAS, the Applicant is being required to comply with all other requirements of law
that apply to the proposed mining project, reclamation plan, and the Petition for a Partial
Cancellation, including the preparation and adoption of a Mitigated Negative Declaration, the
determination and certification of the current fair market value of the subject land as though it
were free of the contractual restriction, and the provision of appropriate notice of all actions
contemplated in connection with the proposed mining project and reclamation plan and the
Petition, to the extent required by law; and
WHEREAS, the Applicant is being required to satisfy all conditions, contingencies, and
processes per Government Code Sections 51283, 51283.4 and 51283.5 and all other conditions
specified in EXHIBIT A here attached.
NOW, THEREFORE, BE IT RESOLVED by the Board of Supervisors of Butte County as
follows:
1. The Board approves the Petition of the Estate of George Chaffin for partial
cancellation of the Contract, based on the findings and determinations set forth in the attached
EXHIBIT B Findings in Support of Immediate Cancellation of Williamson Act Contract, which are
hereby adopted by the Board and incorporated herein by this reference.
2. In connection with the Board's decision to approve tentative partial cancellation
of the Contract, the Board has independently reviewed and analyzed and adopted the Mitigated
Negative Declaration, referenced hereto as EXHIBIT C and deemed it as the appropriate
document for purposes of compliance with CEQA, and certified that the document has been
completed in compliance with CEQA.
3. The Chairperson of the Board of Supervisors is authorized to execute all
agreements and documents necessary to effect the purpose and intent of this Resolution.
4. The Director of the Department of Development Services is hereby directed to
file a Notice of Determination in the manner prescribed by law.
5. Within 30 days of the tentative partial cancellation of the contract, the Clerk of the
Board shall publish a notice of the Board's decision, including the date, time, and place of the
public hearing, a general explanation of the decision, the findings made pursuant to Section
51282 of the State Government Code.
6. Within 30 days of the tentative partial cancellation of the contract, the Clerk of the
Board of Supervisors shall transmit a copy of the published notice of the decision, as described
above, to the Director of Conservation.
PASSED AND ADOPTED by the Board of Supervisors of the County of Butte, State of
California, this 23~d day of January, 2007 by the following vote.
AYES: Supervisors Connelly, Kirk, Josiassen, Yamaguchi and Chair Dolan
NOES: None
ABSENT: None
NOT VOTING: None ~
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JAI IE DOL N, Chair
ATTEST:
PAUL MCINTOSH, Chief Administrative Officer
and Clerk of Board of Supervisors
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EXHIBIT A
CONDITIONS OF CANCELLATION
The owner shall satisfy all conditions, contingencies, and processes per Government Code Sections
51283, 51283.4 and 51283.5 and any other conditions required upon approval by the Board of
Supervisors. The specified conditions and contingencies to be satisfied are:
In order to comply with the parcel size minimum acreages established by the original 1968
contract and affirmed by the current Butte County implementing resolution 00-49, staff
recommends that the proposed cancellation be conditioned to comply with any one of the
following:
a) Reconfigure the areas to be retained and cancelled from the Williamson Act into equal
160-acre portions (320-acre parcel divided into two 160-acre parcels).
b) By lot line adjustment or merger join the 145-acre portion (APN 041-140-074) to remain
in contract with APN 041-210-045 (145 acres), to create a 290 acre parcel to remain
under Williamson Act contract.
c) Demonstrate by deeds and/or maps acceptable to the Butte County Public Works
Department that the land delineated by APN 041-140-014 (+/-320 acres) and APN 041-
210-045 (+/-145 acres) consists of only one underlying parcel.
2. Payment of a Williamson Act Inclusion Agreement application fee ($1,100) in payment of the
processing of a Williamson Act Contract Amendment to accurately reflect the boundaries and
legal description of any reconfiguration of parcels per Condition of Cancellation #1 above.
3. Payment in full of the amount of the fee computed under the provisions of Section 51283.
4. Owner will provide a statement of acknowledgement that unless the fee is paid, or a certificate of
cancellation of contract is issued within one year from the date of the recording of the certificate
of tentative cancellation, the fee shall be recomputed as of the date of notice described in
subdivision (b) or the date the landowner requests a recomputation.
5. The landowner must obtain all permits necessary to commence the project.
EXHIBIT B
Findings in Support of Immediate Cancellation of Williamson Act
FINDINGS OF ENVIRONMENTAL DETERMINATION
In connection with the Board's decision to approve tentative partial cancellation of the Contract,
the Board has independently reviewed and analyzed the Mitigated Negative Declaration
(EXHIBIT C here attached) and has deemed it as the appropriate document for purposes of
compliance with CEQA, and certified that the document has been completed in compliance with
CEQA.
FINDINGS OF CONSISTENCY WITH THE WILLIAMSON ACT
Based on substantial evidence in the administrative record, the Butte County Board of
Supervisors finds that the partial cancellation of the Land Conservation Agreement executed
between Butte County and George R. Chaffin on February 26, 1968, which Agreement is
recorded in Book 1515, pages 600 through 605, from which Applicant has petitioned to remove
approximately 175 acres of APN 041-140-014 (new APN 041-140-073, 175 acres) is consistent
with the purposes of the Williamson Act, Government Code section 51282, subdivision (b) in
that:
Finding #1. The partial cancellation is for land on which a notice of nonrenewal has been
served pursuant to Government Code Section 51245, in that:
A notice of nonrenewal was served on September 12, 2005, by the applicant.
Finding #2. The partial cancellation is not likely to result in the removal of adjacent lands from
agricultural use, in that:
a. The project will be required, under the California Surface Mining
and Reclamation Act (SMARA), to reclaim the subject area in accordance with its
Reclamation Plan to an end use of seasonal grazing land, which is the current use of the
property not presently part of the mining operation. Seasonal grazing land is compatible with
adjacent grazing, orchard, and other agricultural uses and is not likely to result in removal of
adjacent lands from agricultural use.
b. The existing, long-standing aggregate mining operation, which
the applicant seeks to expand, has not impacted neighboring orchard, grazing, and open land
uses or resulted in neighboring parcels being removed from agricultural use.
c. All of the parcels immediately adjacent to the project are zoned
"Unclassified", and are located outside of any urban Sphere of Influence. Agricultural uses
are permitted uses in the "Unclassified" zone. The project would not extend any urban
services to this area that would encourage non-agricultural development resulting in removal
of adjacent lands from agricultural use.
d. The adjacent agricultural lands are not likely to be removed
from agricultural production because those lands surrounding the site are designated "GOL -
Grazing and Open Land, 40 to 160 acres per dwelling unit." In addition, portions of the lands
north of the project site are under Williamson Act contract.
e. The Department of Conservation, Land Resource Protection
Division ("DOC") October 14, 2005 comment letter concluded that "the consistency findings
required for cancellation of the parcel can be met" and hence that the proposed mining
operation is unlikely to result in urban development leading to the removal of adjacent land
from agricultural use.
f. Urban development of adjacent agricultural lands would require
the availability of urban infrastructure. This project does not extend urban infrastructure to
the aggregate mine, nor is there readily available infrastructure nearby to facilitate the urban
development of adjacent agricultural lands.
Finding #3. The partial cancellation is for an alternative use which is consistent with the
applicable provisions of the Butte County General Plan, in that:
a. The subject property proposed for cancellation carries the
General Plan designation "GOL -Grazing and Open Land, 40 to 160 acres per dwelling unit."
One of the allowed "secondary uses" within the GOL is resources extraction and processing.
(Butte County General Plan, p. LUE-49.) Therefore, the proposed aggregate mining use is
consistent with the allowable general plan uses for this land.
b. Policy 2.6.a. of the Butte County General Plan Land Use
Element states: "Encourage extraction and processing of identified deposits of building
materials and other valued mineral resources." Policy 2.6.b. also states: "Encourage the
reclamation of lands subject to mineral extraction." The proposed alternative use for the
lands on which cancellation are requested is consistent with both of these general plan
policies.
The area into which the mine will expand has been identified as containing aggregate that
meets the standard for railroad ballast. Although a 1994 report by the DOC Division of Mines
and Geology found that additional mining in the proposed expansion area may be "sub-
economic" because it required mining through the lava surface flows, the report concluded
that if such areas could be economically mined, the areas would be reclassified MRZ-2a,
which the DOC considers to be of prime importance. Areas classified MRZ-2a contain known
economic mineral deposits. (Department of Conservation, Division of Mines and Geology,
SMG Open-File Report 94-01 (1994), pages 5-6, and 14, a copy of which report was attached
to cancellation petition as Attachment 8.) In the expert opinion of the lessee mining company,
the areas once considered "sub-economic" eleven years ago can now be economically mined
because of changes in technology and economic conditions for railroad ballast. Therefore,
mining these areas is consistent with the General Plan directive to encourage the extraction
and processing of identified deposits of valued mineral resources.
There is ongoing need for railroad ballast for expansion and maintenance of Union Pacific's
rail lines and other facilities. The project site is located along the I-5 corridor, identified by
Union Pacific as offering "the most efficient possible north-south transportation service to
freight customers in all three Pacific Coast states."
(http://www.uprr.com/aboutup/usguide/usa-ca.shtml.) The project site is also located near
Union Pacific's J.R. Davis Yard, which is "the largest rail facility on the West Coast" and is
located in Roseville, California, less than 100 miles from the project site.
(http://www.uprr.com/aboutup/history/davis/index.shtml.) Thus, the market for railroad ballast
from this site is unlikely to diminish.
Finding #4. The partial cancellation will not result in discontiguous patterns of urban
development, in that:
a. The majority of the adjacent property is currently grazing land.
The proposed land use following the partial cancellation is for expansion of an ongoing
aggregate operation. Once mining is complete, the land will be reclaimed as seasonal
grazing lands (Initial Study and Mitigated Negative Declaration ["IS-MND"], § 4.2). There is
no anticipated, actual, or pending urban development in the project area.
b. The cancellation and alternative use will not generate
"discontiguous urban development" because there is no evidence that adjacent properties will
be developed in the foreseeable future. The majority of the adjacent properties are either
used agriculturally (many under Williamson Act contracts that would need to be cancelled
prior to urbanization of those sites), or are ecological reserve lands owned by the State of
California. There are no anticipated or pending proposals for urban development of the
remaining adjacent properties.
c. The cancellation and alternative use will not result in
discontiguous patterns of urban development by way of "significant growth-inducing impacts"
(IS-MND, § 4.12). The proposed project will not result in a significant increase in employment
or any increase in housing. No new roads or public services would be installed as a result of
the project; thus, the project would not remove obstacles to growth. The project would make
available aggregate materials used primarily as railroad ballast. While the project will make
these materials available, it cannot be considered to be facilitating the activities that utilize the
aggregate materials. The project is not the only source of these materials, and these
activities will occur regardless of the availability of the additional resources made available in
this project. The applicant projects that only 30% of the aggregate material produced by the
proposed mining are for non-railroad ballast uses. Therefore, the project would not create
environmental effects other than those addressed in the IS-MND.
d. DOC's letter of October 14, 2005 takes the position that the
"use of the parcel for an aggregate mining operation is consistent with the County's General
Plan ...and the inducement of growth do[es] not appear to be [an] issue[] for this proposed
cancellation."
Finding #5.0. There is no proximate, non-contracted land which is both available and suitable
for the proposed use or that development of the contracted land would provide more contiguous
patterns of urban development (Gov. Code § 51282, subd. (b)). Please refer to the Proximate
Site Suitability Map here attached.
a. The objective of the proposed project is to continue to provide
aggregate primarily for use as railroad ballast for the Union Pacific Railroad. Rock mining
operations are limited to those areas where the following criteria are met: (1) a commercially
viable rock reserve exist, (2) the reserve is economically extractable, (3) there is a viable
transportation route, (4) the location is sufficiently close to market, and (5) the operation fits
into the County planning scheme. The first four requirements distinguish mining operations
from other types of land uses, such as office buildings, retail stores, or housing, which may
occur in a variety of locations. The fifth requirement addresses consistency with County
planning tools and the contiguity of urban development patterns, discussed above in sections
2 through 4.
The Applicant has reviewed the non-contracted land in proximity to the existing site (within a 7-
mile radius as requested by the County) for availability and suitability. The analysis concludes
that there is no proximate, non-contracted land that is available and suitable for the proposed
use or that would provide more contiguous patterns of urban development (refer to Proximate
Available Land Map, lands currently under Williamson Act contracts are shown in blue).
(i) Most proximate, non-contracted land is unsuitable for the
proposed use as a result of incorrect geology. Miocene Age Lovejoy Basalt is the only known
geologic deposit in proximity to the project that is potentially suitable for the production of
aggregate materials intended for use as railroad ballast. (Lovejoy Basalt appears in cross-hatch
on the attached map.) No other known deposits exist in the area that will yield aggregate for
use as railroad ballast when processed. As shown on the attached map, much of the Lovejoy
Basalt occurs on contracted lands. In addition, according to the most currently available
publications from the Department of Conservation website, no other proximate sites are
classified MRZ-2a by the DOC (see above discussion under 3.b). The project site, then, is
considered to be of prime importance because areas classified MRZ-2a contain known
economic mineral deposits. Other proximate sites, even those with the presence of Lovejoy
Basalt, have not been similarly classified.
(ii) Of the limited proximate, non-contracted lands that feature
Lovejoy Basalt deposits, most are unavailable due to public ownership by the State of
California. The state-owned property is an ecological reserve, and thus it is unlikely that mining
on the state-owned lands would be permitted.
(iii) Of the very few non-contracted properties with Lovejoy
Basalt and private ownership, all but one (indicated on the map) are a significant distance from
the railroad mainline, and in most instances, access would require construction of long rail spurs
across contracted or a state-owned ecological reserve. The main viable transportation route is
rail, with roads as a secondary route. The majority of the mined aggregate is used as railroad
ballast and transported off-site via rail cars.
Finding #5.1. The only other identified non-contracted potential site for site for the project, with
Lovejoy Basalt deposits (see "Potential Site" on the Proximate Available Land Map), that is
privately-owned and close to rail access has the following disadvantages as compared to the
current site.
a. The environmental sensitivity of the other potential site is unknown. By contrast, the
project site is an existing aggregate mine with known environmental conditions and an
existing reclamation plan under SMARA.
b. According to available data, the other potential site and its contained mineral reserve
has not been classified under the provisions of the Surface Mining and Reclamation Act
of 1975 (SMARA) as a viable mineral reserve (classification MRZ-2). As discussed
above, the project site bears aMRZ-2a classification.
c. The other potential site does not contain an existing rail spur and processing facilities.
The project site already has a rail spur and processing facilities. Thus, although the
other property is near the railroad mainline, at this time it is more economic to continue
operation of the existing site than to construct new rail access facilities for another
location. It is also unknown whether rail access facilities could be constructed at the
other location.
Finding #5.2. The absence of a rail spur on the only other identified non-contracted site
supports the finding thaf there is no proximate, non-contracted land which is both available and
suitable for the proposed use. The presence of the rail spur at the existing facility and the lack of
rail spur at the only other potential site is significant.
The railroad is the primary means of transportation for the aggregate produced at the Table
Mountain Quarry. The aggregate produced onsite meets the exacting specifications for railroad
ballast. Thus, it is important to note that the majority of the quarry's production is sold to the
Union Pacific Railroad (UPRR) for use as railroad ballast and is transferred to UPRR onsite.
The aggregate material is loaded directly onto train cars onsite utilizing the rail spur, and UPRR
takes ownership of the material at that point and transports it via rail to wherever UPRR needs
the material. Therefore, presence of the rail spur at the existing facility and the lack of rail spur
at the only other potential site is significant since the ballast materials must be shipped by rail to
various UPRR maintenance locations.
The other potential site, while it is reasonably close to the railroad mainline, does not have an
existing spur to facilitate onsite transfer of the aggregate material to UPRR. The other site also
lacks an aggregate production facility. While construction of a rail spur and aggregate
production facility to serve the other potential site may be possible, the costs and risks involved
in such construction are unknown. It is unclear exactly what environmental, permitting, and cost
constraints might be involved in constructing a rail spur and processing facility at the alternative
site. However, construction at that site would increase environmental impacts as compared to
the proposed expansion because the existing site is already heavily disturbed. The proposed
expansion site would continue to use the existing rail spur and processing facility, thus avoiding
questions of possible environmental, permitting, and cost constraints that could be associated
with utilizing the other potential site.
Finding #6. Immediate partial cancellation is justified because nonrenewal would not
accomplish the same objective.
a.) The applicant projects that the reserves at the quarry will be depleted before the 10-
year nonrenewal period will expire. At the October 17, 2006 meeting, one of the
Land Conservation Act Advisory Committee members asked for additional
clarification regarding the need for immediate cancellation rather than waiting for
nonrenewal of the contract. In response, Martin Marietta provided some practical
reasons for immediate cancellation, not the least of which is the short-term nature of
the remaining aggregate reserves in the area currently being mined. The applicant
stated that the material in the current mining area is becoming marginal, and Martin
Marietta has encountered small, round rock deposits not suitable for processing into
railroad ballast. Martin Marietta estimates that current reserves will be exhausted
within 3 years, which is before the 10-year nonrenewal period would expire. (See
Gov. Code §§ 51244-51246.) Thus, there is a practical need to seek immediate
cancellation in order to facilitate the expansion and allow mining in the expanded
area. Further, the applicant asserts that mining cannot be done in phases such that
waiting for the ten-year nonrenewal period to expire would be an option. The
Department of Conservation (DOC) October 14, 2005, letter questioned whether any
phasing of the mining operation would occur after the expiration of the contract
through the nonrenewal process. Since the reserves will be exhausted within 3
years, the applicant contends that removal of overburden and the initiation of mining
will have to occur on the Williamson Act property well before the ten-year
nonrenewal period expiration date.
b.) In addition, the need for immediate cancellation stems directly from the DOC's recent
change of position regarding the compatibility of mining uses on lands under
Williamson Act contract. As acknowledged by several LCA committee members at
the October 17, 2006 meeting, and as mentioned in the staff report for that meeting
and in other documentation, the DOC no longer considers mining to be a compatible
use on Williamson Act lands. Martin Marietta believes that aggregate mining is a
compatible use under the original 1960 contract, and reserves the right to challenge
the DOC's incompatibility position in the future. Nonetheless, Martin Marietta seeks
to comply with the DOC's approach, and thus has given notice of nonrenewal and
petitioned for cancellation of part of the existing Williamson Act contract for the areas
affected by existing and proposed mining. Under the existing permit, mining
operations are being conducted and have been conducted for years on lands that
are under Williamson Act contract. The existing operation is inconsistent with the
DOC's current interpretation of the Williamson Act, and the proposed expansion
compounds this problem. The applicant asserts that the permit application for the
expansion triggered the need for immediate cancellation (including filing a notice of
nonrenewal) of the Williamson Act contract on the existing mining area as well as the
expansion area. Thus, cancellation is necessary to eliminate what the DOC
considers to be an incompatibility, and waiting for the nonrenewal period to expire
would unnecessarily delay resolution of the issue and issuance of the permit.
EXHIBIT C
Mitigated Negative Declaration
An Initial Study/Mitigated Negative Declaration was prepared for this project (as adopted by the
Butte County Planning Commission on August 10, 2006). That environmental assessment
prepared for the MIN 04-01/UP 96-02 Table Mountain Quarry Mining Permit Amendment project
also assesses the immediate cancellation of the Williamson Act contract for environmental
impacts pursuant to CEQA. The Mitigated Negative Declaration for this cancellation action is
here referenced and incorporated from Attachment 1.D of the Appeal of MIN 04-01/LTP 96-02,
being heard on January 23, 2007 by the Butte County Board of Supervisors in conjunction with
this Williamson Act cancellation application.
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