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HomeMy WebLinkAbout08-013BOARD OF SUPERVISOF~~ '"` "' COUNTY OF BUTTE, STATE OF CALIFORNIA Resolution No . 08-013 A RESOLUTION OF THE BUTTE COUNTY BOARD OF SUPERVISORS UPHOLDING THE APPEALS TAKEN FROM THE BUTTE COUNTY PLANNING COMMISSION'S APPROVAL OF THE M&T CHICO RANCH MINE MINING USE PERMIT AND RECLAMATION PLAN AND CERTIFICATION OF THE FINAL EIR AND DENYING THE M&T CHICO RANCH MINE MINING USE PERMIT AND RECLAMATION PLAN AND NOT CERTIFYING THE FINAL EIR (MIN 96-03) BACKGROUND The M&T Chico Ranch Mine ("Project") applied for by Baldwin Contracting Company ("Applicant") for approval by the County of Butte ("County"), was proposed to consist of a long-term, off-channel gravel mining operation approximately 5-miles southwest of the City of Chico. The mining would have taken place on 193-acres of a 235-acre site over an estimated 20 to 30-year period. The mined aggregate would have been processed (washed and screened) on a 40-acre area at the site. The Project site was proposed to be reclaimed to open-water wetland wildlife habitat (193 acres) and agricultural uses (40 acres). The proposed Mining Permit, Reclamation Plan, and Final Environmental Impact Report {"Final EIR") for the Project was considered at public hearings before the Butte County Planning Commission on October 23, 2003, January 22, 2004, March 11, 2004, April 8, 2004, August 26, 2004, November 30, 2006, December 14, 2006, and January 25, 2007. On February 22, 2007, the Planning Commission certified the Final EIR and approved the Mining Permit and Reclamation Plan. Two appeals were taken from the Planning Commission's action. Cancellation of the Williamson Act contract on the Project site was considered at a public hearing before the Board of Supervisors on April 24, 2007. The appeals from the Planning Commission actions were considered at public hearings before the Butte County Board of Supervisors on May 22, 2007, November 6, 2007, January 8, 2008, and January 29, 2008. 1 RECITALS 1. Lead Agency Status: The County is the lead agency under the California Environmental Quality Act ("CEQA"), Public Resources Code sections 21000 et seq., for preparation and certification of the Final EIR for the Project. 2. Project Description: The Project would have allowed a long-term, off-channel gravel mining operation. The mining would have taken place on 193-acres of a 235-acre site over an estimated 20 to 30-year period. Approximately six acres would have been mined each year. The aggregate would have been processed (washed and screened) on a 40-acre area at the site. a) Acreages: The approximate acreages for the Project were as follows: Lease area: 627 acres Project site: 235 acres Mined area: 193 acres Equipment area: 40 acres Topsoil stockpile area: 2 acres b) Location: The Project would have been located 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, and east of, and partially adjacent to, River Road. Access to the site would have been provided by River Road. c) Material proposed to be mined: High quality construction aggregates including gravel and sand. The Project site is part of the present Sacramento River Floodplain and the gravels and sands underlying the site consist of channel deposits from the river. d) Production: Production numbers for the Project were proposed as follows: Maximum annual mine production: 275,000 cubic yards (mined) Maximum annual mine production: 250,000 cubic yards (marketed) Average annual mined product amount:66,667 cubic yards Total production: 5,500,000 cubic yards 2 e) Traffic Volumes for Trucks: According to the traffic study contained in the Draft EIR, the Project would have generated approximately 16,667 trips per year. Average daily trips generated would have been 128 (64 arriving and 64 departing). The Project would have generated 20 additional AM and PM Peak Traffic Trips. 3. Preparation of an EIR: a) Pursuant to CEQA and the CEQA Guidelines, 14 Cal. Code Regs. sections 15000 et seq. ("CEQA Guidelines"), an EIR was prepared for the Project to analyze the environmental effects of the Project. b) On January 25, 2007, the County held a duly noticed public hearing before the Planning Commission to consider certification of the Final EIR, approval of the Mitigation and Monitoring Program, approval of Mining Use Permit No. MIN 96-03, the M&T Chico Ranch Mine Reclamation Plan, and the Financial Assurances Cost Estimate, and adoption of a Statement of Overriding Considerations. In addition, staff returned to the Planning Commission with responses to public comments that were received at the December 14, 2006 hearing. The Planning Commission voted 3-2 to adopt a Motion of Intent to: (1) adopt a resolution certifying the Final EIR and approving a Mitigation Monitoring and Reporting Program; and (2) adopt a separate resolution approving Mining Use Permit No. MIN 96-03, including the M&T Chico Ranch Mine Reclamation Plan and the Financial Assurances Cost Estimate, and adopting a Statement of Overriding Considerations. c) On February 22, 2007, the Planning Commission acted on the Motion of Intent, and voted 3-2 to: (1) adopt a resolution certifying the Final EIR and approving a Mitigation Monitoring and Reporting Program; and (2) adopt a separate resolution approving Mining Use Permit No. MIN 96-03, including the M&T Chico Ranch Mine Reclamation Plan and the Financial Assurances Cost Estimate, and adopting a Statement of Overriding Considerations. 4. Documents Comprising Final EIR: The Final EIR for the M&T Chico Ranch Mine Project includes the following items (collectively referred to as the "Final EIR"}: 3 a) M&T Chico Ranch Mine Draft EIR (SCH 97022080) dated September 2002; b) Comments and responses to comments on the Draft EIR, dated October 23, 2003; c) Draft EIR Errata containing corrections and clarifications made to the text of the Draft EIR; d) Updated Response to Comments Regarding Williamson Act, dated November, 2006; e) Updated Draft EIR Errata Regarding Environmental Setting and Project Description; and f) Mitigation Monitoring and Reporting Program. 5. Appeals. Two appeal letters were filed within the appeal period of the Planning Commission decision to certify the Final EIR and approve the project. 6. Action by the Board of Supervisors. a) The Planning Commission did not consider the Petition for Partial Cancellation because, under both state and county law, Petitions for Cancellation are beyond its purview. On April 24, 2007, the Board of Supervisors held a duly noticed public hearing to consider the Petition for Partial Cancellation of the Williamson Act contract applicable to the Project site. The Board of Supervisors voted 5-0 to deny the Petition for Partial Cancellation and continued the public hearing to May 22, 2007. b) On May 22, 2007, the Board of Supervisors opened the public hearing on the appeal request regarding certification of the Final EIR and approval of the project and continued the item to November 6, 2007. c) On November 6, 2007, the Board of Supervisors opened the said public hearing and continued the item to January 8, 2008. d) On January 8, 2008, the Board of Supervisors concluded the said public hearing. e) On January 29, 2008, the Board of Supervisors: 4 deliberated; adopted a motion on a 3-2 vote upholding the appeals from the Planning Commission's approval of the mining use permit and reclamation plan, denying the mining use permit and reclamation plan, and denying certification of the Final EIR; and directed county staff to prepare findings in support of the motion and in accordance with the reasons specified by the Board majority. 7. Description Of The Record: The administrative record for the Project consists of those items listed in Section 21167.6 (e) of the Public Resources Code (Chapter 1230, Statutes of 1994) including but not limited to: a) All application materials and correspondence contained in the County's Project files (MIN 96-03); b) The original Draft EIR; c) The revised Draft EIR; d) The Final EIR; e) All Notices of Availability, the Notice of Determination, staff reports and presentation materials related to the Project; f) All studies contained in, or referenced by, staff reports, the Draft EIR, or the Final EIR; g) All public reports and documents related to the Project prepared for the County and other agencies; h) All documentary and oral evidence received and reviewed at public hearings and workshops, and all transcripts and minutes of those hearings related to the Project and to cancellation of the Williamson Act agreement on the Project site; i) For documentary and informational purposes, all locally-adopted land use plans and ordinances, including, without limitation, general plans, area plans and ordinances, master plans together with environmental review documents, findings, mitigation monitoring programs and other documentation relevant to planned growth in the area; and 5 j} All deliberations of the Butte County Planning Commission and Board of Supervisors considering the project. 8. Custodian of the Record: The administrative record is maintained at the Butte County Department of Development Services, 7 County Center Drive, Oroville, California. FINDINGS Having considered all the written and documentary information submitted, the staff reports, oral testimony, other evidence presented, and the administrative record as a whole, the Board of Supervisors hereby finds and decides as follows: 1. THERE ARE SIGNIFICANT AND UNAVOIDABLE IMPACTS WHICH WOULD BE CAUSED BY THE PROJECT. CEQA requires the County to balance the benefits of the proposed Project against its unavoidable environmental risks. (CEQA Guideline section 15093). Implementation of the Mitigation Measures discussed in the Final EIR, as certified by the Planning Commission on February 22, 2007, would not avoid or substantially lessen the proposed Project's impacts on air quality (both project-level and cumulative) and traffic to a less than significant level. These impacts, as identified within Chapter 4.0 of the Draft EIR and set forth below, are each found to be significant and unavoidable: a) Impact 4.5-5: Addition to Carbon Monoxide (CO) Hot Spots Certain intersections in the vicinity of the Project would experience congestion under cumulative conditions. Carbon monoxide emissions from vehicle traffic would increase at congested intersections due to increased idling time. Under Butte County Air Quality Management District thresholds of significance, the creation of a CO hot spot is a significant impact. There are no feasible mitigation measures to reduce traffic congestion at the impacted intersections. The air quality impacts are a direct result of traffic congestion. Therefore, there are no feasible mitigation measures for the air quality impacts. This 6 is a significant and unavoidable impact. b) Impact 4.6-4: Highway 32/West 5th Street Intersection The proposed Project would add 10 or more trips per day to the intersection of State Highway 32/West Stn street. This intersection was identified in the Draft EIR as a location having 4 or more accidents in a 12- month period over the prior three years. This location also had more than one accident over a 12- month period, which involved heavy vehicles. This is considered a significant impact. The intersection of SR-32/West 5th Street had a total of 13 accidents with 6 occurring in 1997. Two of the accidents in 1997 involved heavy vehicles. In 1999, seven accidents occurred with no heavy vehicle involvement. Signal phasing could be improved to increase safety. Currently there are protected left-turns for the SR-32 approaches and permitted left turns for the West 5th Street approaches. With permitted phasing, vehicles turning left must yield to opposing through and right- turn movements. Field observations also revealed the absence of all-red time at this intersection; consequently, vehicles are not able to clear the intersection between signal phases. The following Mitigation Measure was set-forth: "Mitigation Measure 4.6-4: The project applicant shall contribute a fair share contribution to improve the intersection of SR 32/West 5th Street by modifying the existing traffic signal to provide split phase timing, including three seconds of yellow time and one second of all-red time per phase. The fair share contribution amount should be based upon the relative proportion of project vehicles traveling through the impacted intersection." Even if this mitigation could be implemented to improve conditions at the intersection, it is found that the impact would still be considered significant and unavoidable. However, it is further found that the measure could not be implemented because the signal at the intersection is of a type which cannot be modified 7 as proposed, and the fair share contribution would not be adequate to finance installation of a newer type signal which could be programmed as proposed. c) Impact 4.6-5: Park Avenue/East 20th Street/East Park Avenue The proposed Project would exacerbate LOS F operating conditions on Park Avenue from East 20th Street to East Park Avenue under cumulative conditions. The segment of Park Avenue between East 20th Street and East Park Avenue is expected to operate at LOS F under cumulative no Project conditions. The addition of Project trips would exacerbate unacceptable operating conditions. Possible mitigation measures would include physically expanding the facility or rerouting Project traffic. The physical constraints of this roadway segment (i.e., city streets with pedestrian and bicycle facilities, minimal setbacks to existing buildings) prohibit expansion from four to six lanes. Project trips may be rerouted to avoid this roadway segment, however, this would be difficult to enforce. The cumulative no project daily traffic volume on this roadway segment is 36,000. The Project would add an additional 20 trips to this segment, which would be significant based upon the criteria listed in the Impacts and Mitigation Measures section of the Draft EIR. No feasible mitigation measure will reduce the level of impact to this roadway segment. This is considered a significant unavoidable impact. d) Impact 4.6-6: East Park Avenue/Park Avenue/Highway 99 The proposed Project would exacerbate LOS F operating conditions on East Park Avenue from Park Avenue to Highway 99 under cumulative conditions. The segment of East Park Avenue between Park Avenue and Highway 99 is expected to operate at LOS F under cumulative no project conditions. The addition of Project trips would exacerbate unacceptable operating conditions. Possible mitigation measures would include physically expanding the facility or rerouting Project traffic. The physical constraints of this 8 roadway segment (i.e., city streets with pedestrian and bicycle facilities, minimal setbacks to existing buildings) prohibit expansion from four to six lanes. Project trips may be rerouted to avoid this roadway segment, however, this would be difficult to enforce. The cumulative no project daily traffic volume on this roadway segment is 40,000. The Project will add an additional 40 trips to this segment, which would be significant based upon the criteria listed in the Impacts and Mitigation Measures Section of the Draft EIR. No feasible mitigation measure will reduce the level of impact to this roadway segment. This is considered a significant and unavoidable impact. e) Impact 4.6-7: Bruce Road/Highway 32/Skyway The proposed Project would exacerbate LOS E operating conditions on Bruce Road from Highway 32 to Skyway under cumulative conditions. The segment of Bruce Road between Highway 32 and Skyway is expected to operate at LOS E under cumulative no project conditions. The addition of Project trips would exacerbate unacceptable operating conditions. Possible mitigation measures would include physically expanding the facility or rerouting Project traffic. The physical constraints of this roadway segment (i.e., city streets with pedestrian and bicycle facilities, minimal setbacks to existing buildings) prohibit expansion from four to six lanes. Project trips may be rerouted to avoid this roadway segment, however, this would be difficult to enforce. The cumulative no project daily traffic volume on this roadway segment is 31,500. The Project will add an additional 30 trips to this segment, which would be significant based upon the criteria listed in the Impacts and Mitigation Measures Section of the Draft EIR. No feasible mitigation measure will reduce the level of impact to this roadway segment. This is considered a significant unavoidable impact. f) Impact 4.6-8: Baldwin Plant Driveway/Skyway The proposed Project would exacerbate LOS F operating 9 conditions in the a.m. peak hour and LOS D in the p.m. peak hour at the intersections of the Baldwin Plant driveway and Skyway under cumulative conditions. The intersection of the Baldwin Plant driveway and Skyway is expected to operate at LOS F in the a.m. peak hour and LOS D in the p.m. peak hour under cumulative no project conditions. The addition of Project trips will exacerbate unacceptable operating conditions. The peak hour volume signal warrant contained in the Traffic Manual, Caltrans, July 1995, is not met at this location due to the low volumes at the driveway to the Baldwin Plant. Improvements to the median crossing, acceleration /deceleration lanes, improved signing and striping, and channelization of the driveway approach could improve the safety characteristics of this intersection, and this would be reflected as a condition of the Mining Permit. In addition, signalization of the Skyway/Honey Run Road (anticipated by 2005) may provide sufficient gaps in through traffic on Skyway to improve ingress and egress from the driveway. However, no feasible mitigation measure would reduce the level of impact to this roadway segment. This is considered a significant and unavoidable impact. 2. BECAUSE OF THE SIGNIFICANT AND UNAVOIDABLE IMPACTS ASSOCIATED WITH THE PROJECT, AS SET FORTH IN FINDING 1 ABOVE, THE PROJECT WOULD BE UNREASONABLY INCOMPATIBLE WITH AND INJURIOUS TO SURROUNDING PROPERTIES AND DETRIMENTAL TO THE HEALTH AND GENERAL WELFARE OF PERSONS RESIDING AND WORKING IN THE NEIGHBORHOOD AND TO THE GENERAL HEALTH, WELFARE AND SAFETY OF THE COUNTY. 3. THERE ARE NO DOCUMENTED BENEFITS FROM THE PROJECT WHICH OUTWEIGH THE IDENTIFIED SIGNIFICANT AND UNAVOIDABLE IMPACTS ASSOCIATED WITH THE PROJECT, AND A FINDING OF OVERRIDING CONSIDERATIONS IS NOT WARRANTED. Pursuant to CEQA Guidelines section 15042, a project may be disapproved if necessary in order to avoid one or more significant effects on the environment that would occur if the project were approved as proposed. The County has weighed the economic, legal, social, technological, and other benefits of the Project against the significant and unavoidable impacts specified in finding 1 above, and has 10 determined that the adverse environmental impacts are not acceptable because there are no documented benefits from the Project which would outweigh these impacts, as found in subsections a through f below, and that the project should therefore be disapproved: a) The Project would not provide essential aggregate material to Butte County because an adequate supply is available for current use and reserves for future use to account for anticipated population growth, for use in local public and private construction projects, from other sources, both within the County and in adjacent counties. b) The Project's proposed fair share monetary contributions cannot be considered as an economic benefit because they would only be a mitigation for project impacts, and they, together with other available funding, would not be adequate to improve and maintain transportation facilities in the area which would be damaged or otherwise impacted by heavy truck traffic generated by the Project. Specifically, the following improvements and maintenance which would be necessary would not be adequately funded, even with the contributions which would be required by the specified Mitigation Measures: Little Chico Creek Bridge reconstruction; reconstruction of Ord Ferry Road at Little Chico Creek (Mitigation Measure 4.6-1); pavement improvement on River Road between Chico River Road and the Project access (Mitigation Measure 4.6- 2); installation of a traffic signal and improvement of lane configurations at the Durham-Dayton Highway and Midway intersection (Mitigation Measure 4.6-9). c) The relocation of the operations from Glenn County to site in Butte County would not benefit to Butte County because not result in any significant dE fuels or resulting air quality County. applicant's mining the proposed Project be an environmental the relocation would 'crease in the use of impacts within Butte d) The proposed mining operations and the resulting creation of an open water pond and wetland habitat area as proposed by the Project's reclamation plan will result in the loss of prime agricultural land, in conflict with Agricultural Element Policy 1.5, of the Butte County General Plan, and the resulting 11 introduction of industrial uses, as well as additional waterfowl and other wildlife, into the area may have harmful effects on adjacent agricultural operations, in conflict with Agricultural Element Goal 3, Policy 3.2, Program 3.5, and Program 2.3, and Land Use Element Policy 2.1.b, of the Butte County General Plan. e) The Project will not increase storage of floodwaters or provide improved flood protection. f) There is no substantial evidence in the record that the Project would generate increased employment opportunities for County residents associated with mining of aggregates, required monitoring and reporting, construction associated with on-site facilities and improving and maintaining roadway facilities, and restoration of wildlife areas. 4. THE LOCATION OF THE PROJECT IS NOT SUITABLE BECAUSE: a) Traffic 1. Safety. There was disputed factual evidence concerning the impact of the increased truck traffic on the projected haul routes. The Board of Supervisors finds that the increased truck traffic in already congested areas and on narrow rural roads would not be mitigated and would adversely affect the safety of motorists, pedestrians, cyclists, and farm equipment operators. 2. Road Impacts. There was disputed factual evidence concerning the ability of the proposed contributions to be made by the applicant to effect repair to roads damaged due to increased truck traffic. The Board of Supervisors finds that although the project applicant would have contributed a certain amount of funds, this amount of funds would not contribute sufficient funds to Butte County to mitigate the damage to the roads caused by the increased truck traffic. In addition the project would contribute to the degradation of the roads in the City of Chico which will not be mitigated. b) Impact on Agriculture 12 1. Loss of Prime Agricultural Land. The proposed reclamation plan for the Project would reclaim the 40 acre plant area for agricultural uses, but the 193 acre mining area would be reclaimed as open water and wetlands for wildlife habitat. As discussed at page 7 of the staff report dated January 8, 2008, and addressed to the Board of Supervisors, there was disputed factual evidence concerning the nature of the soil in the project area. The dispute concerned whether the soil was prime agricultural land versus non-prime. The Board of Supervisors finds that the soil at the project site is prime agricultural soil. The Board of Supervisors additionally finds that the project would lead to a loss of 193 acres of prime agricultural land which is a valuable resource to Butte County and is not mitigated in any manner, that such loss would be contrary to Agricultural Element Policy 1.5 of the Butte County General Plan, and that the proposed reclamation plan would be contrary to the reclamation standard specified in 14 CCR 3707. 2. Incompatible Use. There was disputed factual evidence concerning whether the project after it is reclaimed as wetland habitat would be compatible with surrounding agricultural uses. The Board of Supervisors finds that the project proposes the creation of wildlife habitat in an agricultural area which the Board of Supervisors does not support and has previously found to be an incompatible use when it is in close proximity to agricultural uses. Therefore, the Board further finds that the Project would be contrary to the following Policies in the Butte County General Plan that discourage location of uses that have an adverse impact on surrounding agricultural lands: Agricultural Element Goal 3, Policy 3.2, Program 3.5, and Program 2.3, and Land Use Element Policy 2.1.b. c) Availability of Alternative Sources of Gravel. There was disputed factual evidence concerning the availability of gravel within Butte County and surrounding areas. The Board of Supervisors finds that there was substantial evidence presented in the public hearings on the Project as well as in the Williamson Act Cancellation hearing that there are adequate and available alterative sources of gravel within Butte County and surrounding areas at locations which are more suitable, including a source of 13 material in the Oroville Wildlife Area, which has highway access. The Board of Supervisors has approved mines in other locations and continues to support mining within Butte County, including its approval of a lease for mining purposes on county land on Almond Avenue. The Board of Supervisors is actively attempting to allow for additional mining in other, more appropriate, locations. d) Flooding There was disputed factual evidence concerning whether this project would increase or decrease flooding activity. The Board of Supervisors finds that the project is proposed in an area subject to flooding in a recognized flood plain and that the Project would not alleviate flooding issues. 5. BECAUSE THE LOCATION IS NOT SUITABLE AS SET FORTH IN FINDING 4 ABOVE, THE PROJECT WOULD BE UNREASONABLY INCOMPATIBLE WITH AND INJURIOUS TO SURROUNDING PROPERTIES AND DETRIMENTAL TO THE HEALTH AND GENERAL WELFARE OF PERSONS RESIDING AND WORKING IN THE NEIGHBORHOOD AND TO THE GENERAL HEALTH, WELFARE AND SAFETY OF THE COUNTY. 6. THERE ARE UNKNOWN IMPACTS WHICH MAKE APPROVAL OF THE PROJECT PREMATURE. Because the area where the project was proposed remains under a Williamson Act contract from which it will not be removed until 2014, the project could not commence until then. The Board further finds that during this lag time the General Plans for Butte County and the City of Chico will be updated, and there is substantial projected growth for the City of Chico and Butte County. It would be premature to approve the Project when these changed circumstances and the impact of the Project on them are not known and cannot be determined. 7. EACH OF THE FINDINGS SET FORTH ABOVE IS SUFFICIENT IN AND OF ITSELF TO REQUIRE DENIAL OF THE PROJECT. The Board of Supervisors has considered the totality of findings 1 through 6, set forth above, in deciding to deny the Project. However, the Board further finds that each of said findings and subparts thereof is sufficient in and of itself to support denial of the Project. 14 ACTION In view of the findings set forth above and the record as a whole, the Board of Supervisors takes the following actions: 1. The appeals taken from the Planning Commission's approval of the M&T Chico Ranch Mine mining use permit and reclamation plan and certification of the Final EIR are upheld. 2. The M&T Chico Ranch Mine mining use permit and reclamation plan are denied. 3. The Final EIR is not certified by the Board of Supervisors because certification is not required when a project is denied. (CEQA Guidelines section 15270.) PASSED AND ADOPTED by the Board of Supervisors of the County of Butte, State of California, on the 12th day of February 2008, by the following vote: AYES: Supervisors Connelly, Dolan, Kirk, and Chair Josiassen NOES: Supervisor Yamaguchi ABSENT : None NOT VOTING: None '~ ,`y ~~ rCURT JOSIASSEN, Chair Butte County Board of Supervisors ATTEST: C. Brian Haddi~.; Chief Administrative Officer and Clerk q''f the B,bard of Supervisors ,. j .. ~ - i ~~~ By:, ~> - t De.~zity 15