HomeMy WebLinkAbout08-151R~aoLUT~oN os-15
RESOLUTION Ol+' THE t30ARD OF SUPF,RVISORS
(?F "THE COUNTY OF BUTTE, STATE OF CALIFORNIA,
DENYING 'THE APPLICANT'S APPEAL,
NOT ADOPTING AN ENVIRONMENTAI: UOCUM[?N1',
DENY"ING GRADING 1'ERM[T ANPLICA'I'IUN GRD 06-U1
(Signalized Intersection West, LLC),
DF,CLARING A PUBLIC NUISANCE;,
AND ORDERING REMEDiATION OF THE PUBLIC NUISANCE,
BY IZESTOR[NG THE PROPERTY TO I'TS PRIOR CONDITION
Background
On June 30, 2005, Signalircd Intersection West, LL(', (the "Applicant") was issued a
drivcwa}~ approach t~;ncroachment Permit by the Public Works Department. On August
1, 2005, the Applicant began work on the proposed driveway. Un August 26, 200.5, a
Stop Work order was issued by Butte County to the Applicant Ior the Applicants
significant grading, in excess of~ 8,600 cubic yards, without a grading permit. On October
13. 2005, the Applicant submitted an application for a grading permit, GIZD 06-01, on
Assessor Parcel Numbers ("APN"} 017-090-138 and 017-090-139 (the "Property").
"1"hc Planning Commission held a public hearing regarding Grading Permit application
GRD 06-01 on April 12, 2007, and eontinuecl the hearing open to the July 12, 2007. On
July 12, 2007, the Planning Commission denied the application for a grading permit. The
Applicant filed an appeal of the denial of the Project, and the Board of~ Supervisors heard
the appeal on September 11, 2007, and, at the conclusion oh the hearing, denied the
appeal On April 22, 2008. the Board ol~ Supervisors approved Kcsolution 08-052, which
vacated and set aside its prior action to deny the appeal, directed that the hearing be
reopened, and instructed the Clerk ol~ the t3oard to set a new hearing date and time Ior the
hearing to recommence. 7~he Board ol~ Supervisors held the resumed hearing on
September 23, 2008, alter which it instructed stal~l~to prepare this Rcsulution.
I~eGta1S
Parcel Maw On December 11, 2002, a three-parcel Parcel Map was filed and
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recorded at Book 155 oi~ Maps, at pages 84-6 (Page 287 of` t3inder submitted by
Uevclopment Services to the Board of Supervisors with ~- report dated 9.'23;08 (the
~~Binder"~). The Map contains three drive~~°avs. i.e., an existin~~ dri~~c~~~-~~ (i~r Narcel 1 and
proposed driveways for Parcels ?and ~. The Map also contains seventeen (17) notes.
Noce 1 specifies that an I~:rosion Control Plan is required l`or tivork on slopes of 30°,~, or
greater. Alotc 17 indicates the sight distance (sometimes referred to as "site distance~~}
required for a dri~~e~yav under expected traffic conditions. as well as indicatin~~ the actual
sight distance from each ol~ the appro~~ed drivc~~ay locations on Parcels 2 and 3. The
Applicant purchased Parcels 2 (APN 017-090-188) and (APN 017-090-189). which
constitute the two parcels comprising the Property in this matter, alter recordation of~ the
i'arcel Map.
At~plicant's Encroachment Permit: ~11~e Applicant applied for an l~,ncroachment
Permit to construct a driveway approach from Centerville Road onto tl~Ie Property on May
25. 2005. ~l~hc Encroachment Permit was issued on June 30. 2005 and specified "All
work done as discussed with Wes Gilbert"' and "Mitigate drainage to prevent ~~°ater from
flowing across C'entervillc Rd.~~ At the time the encroachment permit was issued, the
Applicant's engineer was told to modify the plans submitted with the application such
that the driveway meandered, reducing the road profile grade rather than going straight
into the Propcrty~ {Public Works letter dated September ? ~, 200.5, attached to staff report
dated November 4. 2008 ).
~1~icant"s_Grading Activity; 'l~he Applicant commenced grading the driveway
OT7 AUgUSt 1, 2~)O5 b~It the graChllg did Ilot ref~CCt the mod111catIOnS regUlT"Cd al the hl]'le Of
issuance of the Encroachment Permit (Public WoI•ks letter dated September 23, ?005,
attached to staff report dated November ~, 2008}. A Stop Work Notice was issued on
<<yugust 26, 2005. After the Stop Work Notice was issued, the Applicant was alloy-ved to
do some additional grading in an attempt to stabilir.e the prc~-ions gradin~~ pending a
determination on a grading l~~ermit.
Prc~ect Description: On Octoher 1 ~, 2005, the Applicant applied for a grading
permit on the Property. ~l'hc application indicated the grading would consist of
"excavation and grading to construct a single driveway entrance for use by two {2}
single-family residential dwellings, one (l) on each parcel and re-grade existing
overgrown roadways from the driveway entrance to each of the building sites." 'l~he
environmental document, in section EOM on page 2 (Binder, page 60), contains the
following more detailed project description:
""I'he applicant requests Planning Commission approval ol~ a grading permit
pursuant to Butte County Code Section 1 ?-3 for a grading operation that disturbed
1.75-acres of a 80 acre property for purposes of~ developing two single family
dwellings, private roads;drivewavs. ~nul turnouts on an existing private road. The
request includes three previously-completed components:
A major hillside cut that extends westerly about >00 feet, and connects
C'cnterville Road to an existing private dirt road. The applicant has cut
into the existing hillside removing 8,600 cubic yards of material. Banks
have a maxinnun slope o1~33%, with a maximum height of 30 beet. Some
OI 1115 m~ItCl'lill ~bflS plaCCd on-S1tC alld graded. Changlllg an appr(}xllllatC
one-acre area front a (~°~~~ slope to O°i~ slope
2. Two (2) -X00-it~ot strctchc5 0l~ rc-grading ~-nd ~ra~cling ut~ cxisti-1~! dirt
roads. and the addition of two lire lane turnouts. One oi~ these 400-loot
stretches includes a stream bed crossin~~.
~. Gravel improvement to a 1.9UU-loot existing dirt road with the addition of
five -lew fire lane turn-outs.
Not-yet completed components oi~ the grading permit include construction of~ an
additional 700' +!- of road to serve parcel 3 (AP 017-090-139), which inc1~-des a
stream crossing and a CI71~' turnout and the transl~r of approximately 3,460 cubic
yards of stockpiled soil for the building site on APN 017-090-139. Mitigation
measures, includi-lg storm water detention improvements, will require additional
silt disturbance.''
Preparation ot'thc_IS/MNI~: 'I~he County is the lead agency under the California
l:nvironmcntal (~ualit}~ Act ("C`L;(1n~~). Public 1Zesources Code sections ? 1000 c~1 sec/., (or
preparation and adoption of the em~ironnlental document. in this case the IS/MNl) (Initial
Study/propascc'i Mitig~-ted Negative Ucclaration), for the project. Pursuant to C'I:(~A and
the CLa~A Guidelines, l4 California Code oC EZegulations sections 1 X000 el sc~y. ("C1(1A
Guidelines'), an IS/MNI~ was prepared to analyrc the environmental ef~lccts oi~ the
project. The [S/MNU identified several potentially significant impacts that would be
made less than significant due to the inclusion ol~ seven mitigation measures. "l~he
mitigation nlcasures would have covered, among other things, biological resources,
cultural resources, and storm water management,
I'lannin~, Ccnnmission Action; "l~hc Planning Commission hcid two hearings on
the grading permit on April 1?. 2007~and July 12, ?007. At the April 12, ?007 hearing.
the Commissioners questioned the adequacy ol~ the p--ojcct information provided, as ~ticll
as of the cnvironmenta] document. ~I~hc hearing was continued open to give the
Applicant time to provide additional requested information and fund additional studies.
The rcqucstcd information included a rcviscd site development plan reflecting a new
dwelling site location, and the studies were independent biological studies coordinated by
county staf~I~ but funded by the Applicant evaluating the dwelling site relocation, the
project's ci~lccts on the pond across Centerville Road, and the viability ol~ landscaping on
road cut slopes. Although the Applicant supplied a rcviscd site development plan. the
Applicant refused to fund the studies, but instead submitted a letter Gom one of its
consultants. At the July 72, 2007 hearing, after considering the additional information
and actions of the Applicant. the Planning Commission did not adopt the IS;MNI) and
denied the grading permit.
A ~eaL An appeal was filed by the Applicant within the appeal period oC the
Planning Commission decision to deny the ~.~,rading pcrnlit application and to not adopt
the environmental document.
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Board of~ Supervisors Action:_ ~l~hc Board ol~ Supervisors (ihc "Board") 17c1d t~~o
hearings on the appeal oC the grading permit denial. ~I~hc hearings ~~ere held -m
Scptembcr 1 1, 2007 and Scptembcr 2i, 2008. At the Scptembcr l 1. 2007 hearing, the
t3oard heard testimony and considered the inlor-~~ation presented before the (Tanning
Commission and itself. At the end of the hearing, the Board deliberated and reached a
decision to deny the appeal. to not adopt the environmental document, to deny the permit.
and to order the Applicant to remcdi~-te the grading activities prcti~iously taken. Although
the members of~the t3oard specified their reasons for the decision, the hoard did not adopt
written (indings. On I~ecc~nber ] 0, 2007, the applicant sued the Board for, among other
things, failing to make written findings to support its decision. On April 22. 2008, the
Board approved lZcsolution 08-052 which vacated and set aside its prior action to deny
the appeal, directed that t11e hearing be reopened, and instructed the ~'lcrk of the E3oard to
set a new hearing date and time to --ecommcncc the hearing. Un May 21, 2008_ in
response to the Board's action, the Applicant dismissed its la~ysuit. On Scptembcr 2,,
2008_ the }3oard rcconuncnced the hearing, considered ne~~~ materials and public
comments. as ~~cll as all prior materials and public comments that constituted the record
as ol~ Scptembcr 1 1.2007,
L)escri ~t-~ ~(?11 ot~ the JZceord~ l~hr record liar the project includes, but is not limited
to, the following: 1. The l~:ncroachmcnt Permit and supporting materials; 2. "1'he Grading
Permit application and supporting materials; 3. The Storm Water Poll~-tion Prevention
Plan and supporting materials; d. "fhc l;nvironmental Document and supporting
materials; 5. Staff Reports and supporting materials for the various hearings; 6. Public
Comments, both oral and written, presented at hearings or otherwise received, including
minutes of hearings: 7. t3utte County Code, Chapter 1 >. Article 1, Grading; and 8. I3uttc
County Code. Chapter 1 U. Article V L EZoad }:ncroachments.
FINUIN(;S
Having considered all the written and documentary information submitted, the stai'1~
reports, oral testimuny_ other cvidc:nce presented, and the administratiti~c record as a
whole, the Board ol~S--pcrvisors hereby finds as follows:
i) The ~r~, zding activities undertaken by the Applicant on the Property were unlawful
bccau5c thc_Applcant did_nc~t obtaina~ulin~ pcnl~it as_ rcduircd by I3L-t_tc
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CoLmty Code section 13-3.
a. ~l~hc Property is in the grading ~onc, as defined in I3uttc County Code
section 1 -2.
b. The amount of grading done disturbed appro~imatclti~ 8,600 cubic yards of
earthen material and clearly c~eceded the l ,000 cubic yard exemption
allowed by E3utte Coi-nty Code section 13-5(b), and tivas thcretore of such
an amount that a grading permit was rcduircd by I3uttc County Code
section 13-3.
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The Applicant performed grading that disturbed approximately
2~.(~O0 cubic yards of earthen material on 1 7~ acres ~~~~ the KU acre
Property, which grading included a major hillside cut extending
about >00 feet and created b~mks with slopes ranging from 3 ~% to
50°/,, and possibly. in places, greater than 70° ~,, and with a
maximum height ol~ 3U Icet. Some of the earthen material was
placed on a dil7crenl location on the property and graded. changing
an approximate one-acre area from a 6% slope to a 0°% slope. and
some of the material was stockpiled on the Property for i~uturc use.
In addition, two 400 loot stretches of~ existing dirt roads un the
Propert}' ~~'ere re-graded and graveled (one of t-which included a
stream crossing), and two (ire lane turnouts were added, and gravel
improvement was made to a 3,100 toot existing dirt road with the
addition ol~ six new lire lane turn-outs (L3inder_ pages 13, ~9, 75,
13G, and 1=~4). "fhe grading ope-•ation also involved the removal oC
trees and brush (Binder, page 63 ).
c. lssuancc of the l~:neroachment Permit far a driveway approach did not
relieve or excuse the Applicant li•om the requirement to obtain a grading
permit.
Regulations regarding encroachment and Encroachment Permits
arc in Butte County Code, Chapter ]0, flrticle Vl. It is specified
throughout ibis /lrticle that encroachment and permits for
encroachment only refer to activities ~~~ithin a County right-ol~-way.
/fin l~.ncroachment Permit does not conf~cr any permission to
engage in activity outside of the County right-oi'-way. ~l~hc
applicant engaged in grading activity throughout the property as
discussed in the preceding subsection. Some of this grading
activity was immediately contiguous to the point of access to the
Property identified in the f;ncroachment Permit but was of such a
volume that a grading permit was required for it. In addition, the
.Applicant engaged in grading activity in areas on the Property that
were not immediately contiguous to the point ol~ access, and the
amount ol~ such grading activity was by itscll~ sufficient to trigger
the need for a grading permit (E~inder, pages 60 and 238 ).
2} The grading undcrtakcn by the !1~licant without_a~radin~ permit was a public
nuisance per sc. as saecilied in Butte County Code section ] 3-16(b).
3) "I~he grading undcrtakcn by theApplicant violated requirements specified ~~n the
Parcel Map that is applicable [a the Praperl~
a. ~fhe driveway area that was graded was at a location other than the two
driveway locations designated on the Parcel Map.
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I~he Parcel Map showed the location ol~ttivo proposed driveways on
the Property. Note 17 indicate that the drivcwav locations were
chosen based on the projected speed at ~~hich cars would be
driving as they passed the Property rout the sight dist~u~ce alum, the
road at the proposed locations. ~l~hc graded drivewa}~ location does
nut meet the reduiremcnts specified in Nutt 17 due to insufficient
sight distance.
b. Note 1 on the Parcel Map re~Il-ired an l~:rosion Control flan approved by
the I)cpartment of Public Works helore excavation could be done on
slopes o1~ 30`% or p,rcate-•.
c. }:xcavation was undertaken on slopes o1~ 30`% or ~,rcatcr without an
approved erosion control plan.
The plans suhmitted with the l~:ncroachmcnt Permit show t1~at
grading occurred on areas with a slope greater than 30°io. In
addition. the Applicant created slopes in excess ol~ 30~% without
having a grading permit. Photographs show the steepness oi~ the
slope where the driveway for the Property enters the County right-
oi~-way (Binder, Pl~iotos on pages 27-8. 91-2, 1 U4, 109, 1 13-~4. 1 19.
138-44, l 98-9, 21 1, 21 C. 218, 220-1, 22G, and 303, and Maps with
contours on pages 23, 39, 88, and 195; l~:ncroachment Permit and
plans, Stop Work Urder. Gilbert I~:ngineering I~~Ax dated
September 28. 2005 and letter dated Sepicn~bcr 9, 2005,
I)cpartment of Public Wanks letter al~ September 23, 2005 and
l~~'lX dated September 28, 200>, attached to staff report dated
November 4, 2008. )
d. Issuance of the I~ncmachment Permit did not relieve ur excuse the
<<lpplicant From the requirement to apply far an amendment to the recorded
Parcel Map on the Property. pursuant io Butte County Code section 20-
1 12, to obtain approval ol'the new, proposed driveway location.
4) ~fhe_ grading undertaken by the Applicant violated the lativ rcquirin~; a Storm
Water Pollution Prevention Plan ("S W P}717")
a. Where more than one acre is disturbed, 1~dcral law requires a SWPPP,
Regulations promulgated by the U.S. Environmental Protection
Agenc}~ at 40 C'FR Parts 9. and 122--1 include disturbed areas of
one acre or more. In Calilornia, these reg,ulatiuns arc enlorced by
the State Water Reo-u-ces Control Board through Order No. 99-
08-I~WQ (Attachment I3 to Applicants Sb~'PPP).
6
b. Grading activities undertaken by tllc !\pplicant disturbed 1.7~ acres and
Evcrr undertaken prior to havin~~ a SWPPP.
~111c Applicant first submitted a S~~'PPP on September 1 ~, 200
approximately a month and a hall alter grading bean and two and
a half weeks after the Slop Work Notice was issued.
~) ~1~here is a highpotcntial for soil erosion on the project site.
l~hc iS/MN[) states that there is a high potential for soil erosion on the
pr~~ject site. reicrring to information in the Butte County General flan
(Binder. page 72).
6) The ~,radiny~ undertaken_b~~ the .~1pl~licant caused n~~merous ad~~erse m~-cis to the
environment.
a. I~he grading that has occurred has caused, and would continue to cause,
the harm listed below, which would be detrimental to the health and
general welfare of persons residing in the neighborhood and io the general
health, wellarc and safety of residents o1~ the County, and is and wo~-Id be
contrary to the purposes of Article 1 oC Chapter 7 3 of the t3utie County
Cudc.
b. l;rosion of soil, causing soil and gravel to be carried in run-off water onto
and across Centerville Road and onto adjoining properties.
When grading was undertaken. there was no approved l~:-•osion
Control flan. l:vcn after an l~:rosion Control flan and a SWPPP
were in place, erosion control measures failed and were not
completely effective.
1. Mud, silt and other debris eroded from the graded area onto
Centerville Road, into the pond across C'entervillc Road
from the graded site, and into Butte Creek alter the grading
occurred and prior to November 2006. (}3inder, page 72)
?. l:florts to control erosion on the graded area, including
hydro-seeding, placement of ji-te nciting_ and placement of
fiber rolls, have been made and have reduccc~l the erosion
Ii-om the graded area: however, there is a conllict in the:
evidence whether erosion has nevertheless continued to
occur since the erosion control measures were put in place
and in particular whether erosion has occurred subsequent
to November 2006.
3. E lanovcr l~;nvironmental Services, Inc., {'-E fanover")
maintained a SWPPP on the Property for the :lpplicant.
Ilanover indicates in a memorandum dated September 12,
7
2008, that it has conducted IiCty-seven (57) site inspections,
forty-eight of ~~~hieh have been recorded and filcd_ from
November 2006 to Scptcmbcr 12. 2008. Reports
docuu~cnting thirty-three (33) c~I~ these inspections.
conducird ft~om Scptcmbcr 19. 2007 ihruugh npril 10.
2008. arc attached to the mcn~~orandum suhmittcd and made
a part ol~ the record herein. Thus, there arc 1ii~tecn (1 ~)
inspection reports that were not attached to the Ilanover
memorandum, and the dates and content ol~ those missing
reports is not known. l.ukc Smith, of~ 1 ianovcr, testilicd al
the Board hearings on Scptcmbcr 1 I. 2007, and Scptcmbcr
23, 20(}8, and William Warne testified at the latter hearing,
that there had been no erosion ti~om the graded area on the
Property since November 2006. ] lowevcr, i ianover did not
submit any written reports for inspections it periormcd
from No~~cmbcr 2UU6 through Scptcmbcr ] 8. 2007.
=~. I~urthennore, it is clear that. despite the SV~~'PPP dated
September 13. 2005, significant st>i1 erosion tool: place on
the Property during the winter ol~ 2005-2006 ai`tcr grading
on the proposed dri~~~cway commenced, Water-borne soil
crossed Centcrvillc Road and entered the pond on the
opposite side ot~ the road from the drivewa}~ cut. This soil
was in turn transported into [3utic Creek, a major ycar-
around water coi.u~se with significant [fora and fauna (fish)
habitat Observation just prior to the ~'~pril 12, 2007,
Planning Commission hearing Iound soil erosion in the
drainage ditches on either side ol~ the drivetivay cut. The
erosion was intended to be held in check by temporary silt
fences (fiber rolls) and straw bales. I fowcver, sail was still
reaching grade level at Centcrvillc Road ("Testimony of~
Patrick E3ernedo on September 1 1.2007. and Scptcmbcr ? ;,
2008, and photographs suhmittcd by him on Scptcmbcr 1 1,
2007; Binder, pages 5. 17-8. 72. 10 ~-d. and 138-42).
>. 11t the Board hearings on Scptcmbcr 1 1, 2007, and
Septembe~° 23, 2008, Linda Cimino, a neighbor of~ the
Property, testified that erosion had occurred in the graded
area, under the jute Welting that had been installed to
prevent erosion. ~l~hc photograph she submitted on
Scptcmbcr 1 ] . 2007_ taken on Scptcmbcr 9. 2007.
documents that the netting had separated and that erosion
had occurred ~u~der it (E3indcr, page 305). ~l'he photograph
identified as 2008-09 SIW Cut 005, that Linda Cimino
suhmittcd on September 23, 2008, taken can Scptcmbcr 22,
2008. also documents that erosion had occurred under the
jute netting on the Property.
8
G. Although there is some evide-1cc suggesting that ti~~egetatiun
was developing on portions oC the graded area on the
Property (reports dated October ~ ~. November 9. l 2, and
I)eccmber 7. 1~, and 19, 2007, attached to the llanover
memorandum dated Septemher 12, 2008. testinu~n}~ of
William Warne on Scptcmbcr ~_ 2008. and paragraph c on
page ~ ol~ Memorandum ol~ lh'illiam Warne dated
SCptC171bCi' ~~, ~~)~)~', and 1eS11111(7n)' of BCI1 A~~e11 0l1
September 2 ~, 2008), there was also evidence that
revegetation would not be el7cctive on the type of sail in
the graded area (testimony of Bruce hicks and Caroline
Burkett on September 11, 2007), aid that there was Iittlc
vegetatio-7 growth and the growth would not be able to
stabilize the graded slope (testimony of Linda Cimino on
Scptcmbcr 1 1, 2007 ruui Scptcmbcr 23, 2008, and
photographs submitted by her ai these hearings, specifically
those photographs identified as 2008-09 SIW Cut 00~.
008, and -0l 0).
7. Reports attached to the I {anover memorandum of~
Septembe-• 12, 2008 document that in the fall oC 2007
action was required to replace or repair erosion control
materials on the property (Reports dated Scptcmbcr 19 and
October 4. 9, and 10, 2007).
8. ~fhe Board has evaluated and weighed the conllicting
evidence and finds that as ol~Scptember 1 1.2007, there was
a partial failure of the erosion control measures on the
graded site, as evidenced by separation ol~ the jute netting.
the failure to achieve germinr-tion in all oI~ the hydro-seeded
areas, and the failure to achieve sustained vegetative
growth in all of the hydro-seeded a-•eas_ and that some
erosion has continued to occur since November 200f~, even
though the rainfall has been below average.
ii. ~l~hc l~.ncroachment Permit to construct a driveway approach from
Centerville Road onto the Property contained the requirement to
"Mitigate drainage to prevent water from Mowing across
Ccnter~~ille Rd.'~ Allowing water to slow across the road violated
this requirement.
c. 1 lazardous road conditions and damage to adjacent property by depositing
debris thereon and damaging property entrance and ~~atc.
~l~hc ISIMNU states that debris was carried by storm ti~ater across
Centerville Road (Binder, page 72). While the debris and water
crossed the road, it caused a tral7ic hazard. The debris u~as
q
transported to a property across the road damaging the property
entrance and gate (Binder_ pages 7 38-44 ).
d. Damage to ~~~ater bodies
The pond across Centerville EZoad From the graded area, also
knoti~n as the Uuck Pond and l Iarvc}'s fond, has historically been
a sonic and environmental assn to the neighborhood and a habitat
l~or ducks, geese and other vvildlilc. (Testimony o1~Caroline Burkett
and Patrick I3crnedo on Septcmbci~ 11, 2007, and testimony o1
George Medina on September 23. 2008: Binder. pages 42. ~ 1. 146.
and 149}.
ii. ~I'hc scenic and environmental value ol~ this pond, as it e~istcd
before the grading occurred, has been and will be significantly
reduced as an asset to the neis~hborhood and a habitat area for
wildlife because mud, silt and debris have eroded from the graded
area and run into this pond, depositing nutrients into its formerly
clear waters.
1. ~Chere is ~mdisputed evidence in the record that there is no~~~
unsightly vegetation, referred to variously as "mosquito
.. .. ..
Icrn, "aro a, anc "a gac, ~~ro~~~mg in t 1e pone across
Centerville Road li~om the property.
2. There is disputed evidence on the question of whether or
not this vegetation was growing in the pond before the
grading ol~ the proposed ch-iveway began. I~:vidcnce tivas
presented that mosquito Icrn grows commonly in the area
and grew an the pond before the grading occurred and that
such growth is not greater Hayti than it ryas prior to the
grading (testimony of William Warne, Ben ~111cn. 1)an
Alen. and Linda Cruces on September 23, 2008, Warne
memo oI~ September 23, 2008, and specifically Exhibits ~1
and B thereof; and the handwritten letter from Larry
Lambert addressed "'fo whom it might concern"' referred to
by llan ~lllcn in his testimony on September 2 ~. 2008).
I~,vidcncc was presented that such growth had not occurred
on the pond prior tc~ the grading (testimony of Kate I licks
and ~I`ony Cimino on September 1 1, 2007_ and George
Medina on September 23. 2008, and Binder, pages 134 and
i~0-1}and that such growth occurred only on the edges oi~
the pond prior to the trading and did not grow then to the
extent that it has grown since the grading, and that since the
grading it has grown very vigorously (testimony at hearing
on September 2>, 2008, by Linda Cimino presenting and
discussing her photographs taken on September 2~. 2008,
specilically those pictures idcntilicd as 2008-U~1 S1W Cut
OUI. -0O2~ -OO;. -011. by Caroline I3url:eit. and b~~ Pai
l3crncdo; t3i-1dcr, pages 2~8, 250, and 289).
~, The E3oard linds that there was some unsightly growth in
the bond at times before the grading. particularly around
the edges, but that the amount of this growth has
substantially increased as a result of the grading and the
erosion that has occurred from the graded area into the
pored, anal that this increased growth has caused the scenic
and habitat value ol~ihc pond to decline.
iii. I3uttc Creek
The fS%MNU states that after the water borne soil ~~~as transported
into the Pond, it "was in turn transportcc~l into I3uttc Crock, a major
year around water course with signiilcant 1Jora and Iauna (fish)
habitat" (Binder, page 72). Erosion From the site into the pond and
il~om tllc pond into I3uttc Creek could jeopardirc them as wildlitc
h~-bilat areas, including salmon that spa~~m in the creek {I3indcr,
pages ~ 1 and 54).
e. Uamagc to or loss o1~Nativc American artifacts on the 1'roperty~
Neighbors of the Property, as well as the Applicant, testilicd that
historic archeological artifacts were Iound on the I'ropcrty. "I~here
are remnants of an American Indian villa~~c on the Property
{I3inde-°, pages 42-3). l~;videnee was submitted that Native
American artifacts were on the Property (testimony of 13en Allen
and John Campbell at the Board hearing on September l 1. 2007,
That a Native Arnc--ican artifact had been [ound on the Property and
buried on the Property; testimony of Caroline E3urkett at the board
hearing on Scptcmbcr 23, 2UU8, that the Applicant had bulldozed
and haricot Native American artifacts on the Property; testimony of
Uan Allen on behalf of the Applicant at the Board hearing on
Scptcmbcr 23, 2008, that an artifact could no longer be lound and
he thought it had been destroyed by fire lighting cduipment du--ing
the Ilumboldt fire in June 2008; and Binder. pages 11, 127, 248.
and 288).
ii. The Applicant retained the Genesis Society to perform an
archaeological sure} at the Property, and a copy oC a letter Drum
the Genesis Society, dated Scptcmbcr 18, 2008 is attached to the
memorandum ol~ William Warne dated Scptcmbcr 2 ~, 2008. The
Genesis Society letter discusses an archaeological records search
that was conducted within an area including the Property, during
~yhich a prehistoric bcc~irock mortar ~~~as observed. It also discusses
a pedestrian survcl~ on the 1'ropcrty on September 17. 2008, during
.~11ich "I~:vidcncc of prehistoric activity ~-tias observed at ~ivc
separate locations throughout the property. all ol~ titihich arc
represented by isolated basalt ti~aste Ilakcs... l~hc Letter also states
that the property owner "...expressed having seen one or two
shallo~ti bedrock mortars at two separate locations ~~ithin the
propert}~~~~ but these features tiverc not identiiicd during the survey
and no bech~ock mortars were obser~cd. ~I'hc lcttcr states that ""l~hc
absence o[~ evidence ol~ prehistoric habitation or other features such
as we11-developed mortar holes may be best explained by the level
of disturbance to which much ol~ the property has been subjected.
and to the location elsewhere in the vicinity of the project area of
more suitable habitation locales (better exposure, etc. ).'" Although
the lcttcr takes the position that the artifacts observed on the
property were not significant, it states that "...the lollotiving
general provision remains appropriate; ~I~hc present evaluation and
recommendations arc based on the findings uC an inventory-level
surface survey only. ~f~hcre is alwa~~s the possihility that significant
unidentified cultural material. including human remains/burials,
could be encountered on or bclow~ the surface during the course of
future development or construction activities. ~1-his is particu]arly
rclcvaM considering the consh~aints generally to archaeological
field survey, and especially in areas wl`tcrc extensive impacts have
occurred to ground surface and subsurface components, as in the
present case. In the event ol~ an inadvertent c~fiscovery oC
previously unidentified cultural material, including human
remains, archaci~logical consultation should be sought immediatcl}~
and State law Iollowed with regard to any burials exposed.'
.~tlached tU lfle ~ieneSlS SOCICt)' ~CttC1' 1S a Cupv of a ICttel' ~'1'ltten
by the Genesis Society on September 16, 2008. to the Native
nmerican I Ieritagc Commission asking that a review of the sacred
Lands file be conducted for the project, but no response from the
COI7711~1SS1011 1S attached.
iii. In view of the above, no further grading should be conducted on
the property unless and until an archeological study and analysis is
dcme by acounty-selected consultant to determine what Native
Ilmcrican artifacts arc located on the site, how they might be
further affected by the proposed grading project, and whtit
mitigation measures should be implemented to prevent Loss of~ or
damage to such artifacts. Such a study and analysis should include
the results of a rcvicvti~ of the sacred lands file by the Nati~~e
American 1 ferita~e Commission.
7) ~111c adverse impacts caused the grading and erosion resultin~ thercf~rom, as set
forth in finding 6 above, constitute a public nuisance in fact.
12
8) The location oi~the ~?osed_drive~_a~ -5_i~lu~m~atiblc ~1ith adloinin~ biol~~gic~il
-- ----
res~~t-r_r~5 and ~ro~erty u5cs, poses tral~lic saictv~impacts_ and completion of it
- -
would require additional~radin >~i additional impacts.-
a. ~1~11e grt~u{ing that would he done to complete the drive~~~ay as proposed
would cause additional harm to that listed in finding C~ above, and would
be deU-imental to the health and general wel[arc oi~ persons residing in the
neighborhood and to the gcncral health, wcll~-re and salcty of residents o(~
the County, and ~~~ould be contrary to the purposes of~ llrticlc 1 oC Chapter
13 oi~the Butte County Code,
b. If issued. grading permit C~R1~ 06-O1 ~~~ould have allowed the completed
components o1~ the project to remain and would have allowed the
following additional grading: an additional 700 Cect ol~ road to serve .nI'N
017-090-139 {including a stream crossing), a lire lane turnout, and the
transfer ol~ approximately 3.~t60 cubic yards ol~ stockpile soil for the
building site on the Property, on LPN U17-090-139 (Binder, pages 13 and
60}.
c. Completing the drivc~~~ay as proposed by the GIZU Ob-Ol application
would require additional grading to widen the existing driveway cut and to
reduce the slope oi~the sides oi~the cut area from a slope ratio of i'/~ io i to
a -1ew slope ratio of 2 to 1 (testimony of Mikc Crump at Board hearing on
September 1 1. ?007: Binder, pages 5-6).
d. It is anticipated that additional erosion would occur in the future il~ the
grading permit application were approved and the additional proposed
grading were allowed, in vices oC the history of previous erosion control
measures not being satisfacto-~v_ and in consideration of the unstable soil
conditions on the site, and the soil type that is not conducive io vigorous
vegetative growth.
c, Performing lurther grading as proposed by the lpplicant to complete the
drivcwav by widening it Gom its present width af~approximatcly 11 acct to
16 Ices would aggravate the erosion problems which have already been
CaUSCd.
1: ~~~idening the driveway as proposed by the Applicant to reduce the slope
ol~ the sides ol~ the cut area 1~rom a slope ratio oI~ 1 !/~ to 1 to a new slope
ratio oI~ 2 to I will cause the destruction oi~ one tnaturc oak tree and may
cause the destruction o1~ a second oak tree, one on each side ol~ the
drip-~cway, either by rcmc7ving them outright or compromising their root
systems (testimony ol~ Mikc Crump ai Board hca-•ing on September 1 1,
2007: testimc~my o1~ lt~illiam Warne on September 23, 2008; and Binder,
pages 5-6).
13
~. C"ompletion ol~ the grading as proposed in the application for CiRU U6-Oi
~~~ould have allowed grading and construction within the ~1?-toot wide "No
1)evelopmcnt'~ cones shown on the Parcel Map (Binder, pages 2 38 and
287},
h. The location o~~ the drivc~yav proposed by (iRl) U6-01 is not at either «i
the approved drives-vav locations shoyvn on the Parcel R~1ap ~tiith the result
that there is a reduction oC the line-oi=sight-distance on Centerville Road.
causing a potential trai~Gc salcty hazard for motorists using the driveway
or drip ing on Cenier~~ille Road. E~hcn compared to the approved driveway
locations shown on the Parcel Map.
l~herc is a conflict in the evidence whether or not there is adequate
sight distance for a sale driveway at the location proposed by the
Applicant. ~l'hc Public Works I)epartmcnt dctennined the location
was sate, 4vith cast sight distance oC 350 feet and a west distance ol~
~ 30 feet (Binder, pages 80 and 251-? ), but these distances mere
less than the minimum 500 acct sight distance noted on the Parcel
Map (Binder, pages 19-20) and Iess than the sight distances for the
driveways shown on this map, which ucrc 700 to 7~U Icet Ior
Parcel 3 (APN 017-0~)0-1 39) and 1.000 feet for Parcel ? {nPN
017-090-138) (Binder, pages ~~ and 287). l~urtbcrmorc, evidence
was submitted that the sight distance was not adequate at that
location and tl~lat a study should be done to analv~e the ei~tcct of
completing a driveway at the proposed location (tcslimony oi`,iohn
Campbell and Bruce I licks at the September 1 1, 2007 Board
hearing; E3indcr, pages 289 and 294) and that the driveway
locations on the Parcel (\~1ap were at better locations (tcslimony oC
Kate }licks and Kay Simcnc at the Scptcmbcr 1 1. 2007 Board
hearing}. ~l'hcre is some evidence brush could be cleared on the
property to increase the sighl distance at the proposed driveway
location (testimony ol~ Ben flllen at the Scptcmbcr 23. 2008 board
hearing; Binder, page 122), but the possibility ol~ such clearing
raises unanswered questions oi~ whether such clearing could create
additional erosion problems. "l~hc Board linds that it has not been
clearly established that the sight distance is adequate ur could be
made adequate without removing brush and causing Curther erosion
problems.
~l~hc l~:ncroachment Permit expired on June 30, 2006. ~1'his
Resolution directs the Director of Public Works to consider the
findings in this subsection (h) belorc deciding to issue Applicant
any new encroachment permit for the Property.
l4
9) ~I~hc ~~~~li~ai~t was_t,~iycn s~ycral_t>pp~ntunites to_coopcr~-tc ~~~ith Butte Cou_r~t} in
processing the gr~uii-~_~crmit a ..lication and e~ aluatin~! the in~acts t~f the
- -- --_ ~-
proposed grading, but thc_n ~ ~licant chose not to coo ~cratc.
a. l~he applicant rcll-scd io pa}' the costs of retaining biological and
archeological consultants selected by the County to provide necessary
iniormatiu-1.
at the apri] 12, 2007 Planning Commission hearing on the project.
the Manning Commission requested the Applicant have an
independent biological study anal analysis done oi~ the grading
pr~~jcct's cficct un the pond across Ccntcrvillc Road, and of the
viability of landscaping on road cut slopes, and an additional
biological analysis of the impact of the new home site proposed by
the Applicant, but at the Planning Commission meeting on July 12,
2007, it was reported that the applicant had declined to fund the
county-selected consultant firm to do the studies as rcqucstcd by
the Manning Commission (Binder. pages 229-,0).
ii. Without such biological study and analysis of the new proposed
location of~ the home on the west parcel (Parcel 3) of the Property.
it is not possible to accurately assess the biological impacts that are
likely to result from the development of a home at this proposed
new location. The applicant did retain foothill associates to
analyse various biological issues pertaining to the project. a
representative of foothill Associates submitted a letter dated May
16. 2007 (t3inder, page 240), testified at the Planning Commission
hearing on July 12, 2007 (Binder, page 248), and prepared a
supplemental report dated September 22, 2008, which is attached
to William Warne~s memorandum of September 2>, 2008.
however, foothill associates was not a county-selected
consultant, and the evidence presented b_y it is limited in scope and
does not address all the issues on which biological information was
rcqucstcd. Specifically, it did not address the nc~~ proposed
location of the home on the west parcel and in regard to the
viability oh landscaping on road cut slopes it did not include a
detailed analysis and stated only chat as of September 15, 2008,
"...the slopes have now begun to re-vegetate wish naturalircd
grasses and associated herbaceous species similar to the
surrounding landscape. Overall, the driveway cut appears to be rc-
cstablishing consistent with areas that have experienced tcr~~porary
soil disturbance." "phis conclusionary language is controverted by
other cvidcnce in the record, as found in finding 6(b)(i)(6) above,
which demonstrates ~yhv the additional biological information was
rcqucstcd by the County and is necessary.
1~
iii. !~ltcrnatc action 2 recommended to the Board b} stall' {[3indcr.
page 7} St~lll s'
"Adopt a Motion to re-Z~and the project to the Planning
Commission for preparation of the r-ppropriatc biological and
archeological studies. if the Applicant a~!rccs to have these
prcparcd at the Applicant's expense. and. after these studies have
been prcparcd, for Planning commission reconsideration of the
application for gradi-~g permit.
~I hese actions would include instructions to the Applicant to cause
biological and archeological studies to be prcparcd by~ stall=
approved consultants and recirculation ol~ the amended lniiial
StudyiMitigatcd Negative L)cclaration prior io reconsideration of
the application for grading pcrmil;~~
The Applicant did not request that alternate action ? be adopted h}~
this E3oard and did nut oflc-• to have the suggested studies prcparcd
at the Applicant's expense. As discussed above in findings 6(c)
and 9(a)(ii)_ the biological and archeological studies attached to
Willia-1~ Warnc's memorandum dated September ?3, ?008 arc not
suf~l icicnt.
] 0) IZemediation of~ the ~r~, adin~; that his occurred on the Property is found to be
exempt (rom_c,~1~~ironmental rev-cvv°_~usuan_t_tc~_~l_(~~1 Ciu-dc_linc5 Section 1530
because it will be required by the County, as authoriicd by la~~. to assure the
restoration of the Property and to protect the environment in the area of the.
1'rp~crtk.
1 1) Althou~~ this_Rcsulution_ picnics the A~~licant's a ~ Kcal and ils_t;radin ~ l~cimit
- - - --- - -
r~icatiun, the.' AL~plieant st-Il hay sc~oral options that it ma~~ursuc to dcti~cl~~~
access to the Pro _ crty.
~[~here arc several options that the :applicant may pursue to develop access
to the Property. First, the Parcel Map shows two driveway locations at
areas ather than the present graded location. The Applicant may apply for
encroachment and grading permits for driveways at these locations.
Second, the Board was willing to consider allowing access at the location
where the Applicant conducted its grading operations, but the Applicant
failed to cooperate in the process or supply adequate and accurate
i-~formation as discussed in finding 9 above. Third, there arc alternative
driveway locations along the 800 loot ti-ontage of the Property along
Centerville Road that may he suitable, taking into consideration sight
distance, grading rccluircments, and other potential impacts. l~he
Applicant may apply for an amendment to the Parcel Map and apply for
the necessary grading and encroachment permits Ior a driveway or
driveways at a dif~lerent location or locations along this ti-ontagc.
16
<<lithough the Applicants attorney has made some asscrti~Ins abc}ut
diilicultics ~-~~ith accessing the I'-~operty at <~ther locations. the applicant
has not denumsUated that it cannot obtain the necessar}~ appeovals for
development o(~some access tt~~ the 1'ropcrt}~.
DECISION ANU OItDI~;RS
i3ased on the bindings set lorih above, the Board of Supervisors decides anti orders as
lollows:
Uenies the appeal of Signali~.ed intcrscction West, LL(' from the Planning
CommisSlOll S .tulV 1 ~, ~~)~)7 delllal of ~lradlllg PCI'mlt applleatlol1 (iRD
ll. Rocs not adopt the 1SiMND prepared Ior GRD U6-Ui due to its
insuflicicnt analysis oi~poteniial impacts.
lll. Denies Grading Permit application GRD 06-O1.
IV, Declares ~'lpplicant~s grading activity on the Pruperi~~ to be a Public
Nuisance.
V. Orders the applicant to abate the Public Nuisance on the Property by
rcmediating the damage caused by the grading that has occurred thereon.
This remediation shall restore the Property, as ncarl}~ as feasible. to the
condition it was in before the grading was peelormed. This remediation
shall be pcrlormcd pursuant to plans that arc to be submitted to and
approved by the i3utte County llepartment oi~ Public Works and in a
manner that prevents erosion and siltation.
V I. l~ uture applications
l~he above Orders by the Board of Supervisors arc issued without
prejudice to the .applicant to apply for a grading permit or permits for
construction ol~ a driveway or driveways at any point or points along the
Property's eight hundred (800) loot ~i~ontage on C'enter~ille Road to
provide access From this road to the Property, to apply for an amendment
oC the Parci l Map to allow a dii~l~erent drivewav location or locations than
now shown on the Parcel Map, or to apply Ior an l~:ncroachment Permit o-•
Permits to access the Property ti~om Centerville Road. ~l~hc Board of
Supervisors directs County staff to consider this Resolution before acting
on any such application, and the Board ol~ Supervisors specifically directs
the Director of Public Works to consider this Resolution, and paI•ticularly
the findings in subparagraph 8(h). before issuing any nevi l~.ncroaehment
Permit for the Property.
i7
PASSEU ANU nUOP"1'h:U by thL Board of Su~~~rti~isors of~thc C'ountti ol~ f3uttc, State of
('alifornia. at its rc~ular meelin~ held ~~n the ~`~, day ~~~~ N~~~~mbcr. ?OUR. h~~ the (~~I(~~~tin~~
ti~utc:
.AYES: Supervisors Dolan, Kirk and Yamaguchi
N()ES: Supervisors Connelly anal. Ciia_r Josas5en
ABS[:l\'I': None
NO"I' VU'1'Iti(;: None
.~ _
~~.
CURT ~)OSIASSF.ti. ('hair
13uttc County Board of~ Su}~crvisors
~1"1'"C 1~: ~"[.:
C. 131ZIAN HAUUIX;~t'hic1~l~~lmini~;irativc Ol7iccr
and Clerk of thc.~13~~~iid o~~~~iu~~cr~~isors
~ /
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C~~.KI_SUL~!~IIC)NS`Sirnaliicd denial Itesulution l~lnc
~~