HomeMy WebLinkAbout09-010resolution
RESOLUTION OF THE BOARD OF SUPERVISORS
OF THE COUNTY OF BUTTE, STATE OF CALIFORNIA,
DENYING THE APPEAL OF APPLICANT KIR,SHNER WILDLIFE FOUNDATION,
GRANTING THE APPEAL OF JOHN HOPTOWIT,
NOT ADOPTING AN ENVIRONMENTAL DOCUMENT,
DENYING USE PERMIT APPLICATION UP07-OOOfi,
AND REVOKING USE PERMITS UP 98-09 AND UP 01-XO
{Barry R. Kirshner Wildlife FoundationlRoberta R. Kirshner)
Background
On June 9, 1998, the Board of Supervisors granted Use Permit UP 98-09 for the Barry R.
Kirshner Wildlife Foundation/Roberta R. Kirshner (the "Applicant," sometimes also referred to
as the "Foundation") allowing an unauthorized but pz~eviously established use to continue in
operation, subject to conditions. The use allowed by the Use Permit was an educational non-
profit zoo for the keeping of larger cats {cougar, Ieopard, lion, tiger, lynx) and other exotic
animals, on a 7.41-acre parcel located in the Agricultural, ten acre minimum {A-10) zone at 1843
Laura Lane in Durham.
On April 24, 2001, during a hearing pertaining to an application (Use Permit UP 01-10) for an
expansion of the allowed use, concerns were expressed regarding the compatibility of the use
with the surrounding neighborhood, and the Applicant made representations it would undertake
steps to relocate to a more suitable site. In reliance on these representations, and in an effort to
assist the Applicant to enhance its operation and fund-raising capability to make relocation
feasible, the Board of Supervisors granted UP 01-10, authorizing an expanded use, though not to
the full extent requested, allowing the addition of one snow leopard, and up to 20 additional wild
or exotic animals weighing less than 40 pounds, subject to conditions, and made it clear that
further expansions of the use would not be favorably considered.
Recitals
Complaints and res op nse. Due to complaints alleging violations of conditions of Use Permits UP
98-09 and UP 01-10, staff of the Planning and Code Enforcement Divisions of the Development
Services Department opened Planning Code Enforcement Case PLCE07-0001 ("PLCE07-0001"}
and conducted inspections of the. site on August 31, 2007 and September 13, 2007 and
documented the existence of two {2} animal cages not shown on the approved site plans for UP
98-09 or UP 01-10, in violation of Condition 4 of UP 98-09 and Condition 3 of UP O1-X0, and a
dilapidated eight-foot high secondary containment fence in violation of Condition 14 of UP 98-
09 and Condition 10 of UP 01-10. These violations were reported to the PIanning Commission,
along with additional complaints, in a report dated November 1, 2007, and the Commission on
November 15, 2007 determined to hold a public hearing regarding revocation of the existing Use
Permits and to consider whether or not to grant the application of the Applicant for a modifiEd
use permit (UP07-0006} curing the violations and allowing an expansion of the permitted uses on
the site
Application for UP 07-0006: On October 12, 2007, the Applicant applied for an expansion of
the two existing Use Perxnits on the Property, namely UP 98-49 and UP 01-10. The new
application was and is referred to as UP 07-0006. The Applicant's original project description
for UP 07-0006, as applied for and analyzed in the Initial Study-Mitigated Negative Declaration
and Planning Cormission Agenda Report was as follows:
A. Five additional wild or exotic animals over 40 pounds;
B. One jaguar or cheetah;
C, No restrictions on animals less than 15 pounds;
D. A maximum of 36 buses per year;
E. No visitor vehicle traffic on Monday and Thursday; and
F. Two operational footprint expansions, including nine additional animal enclosures
{similar in size to the existing enclosures}. Two of the proposed additional animal
enclosures exist and are located at the southeast corner of the property and seven in
the center of the property, northeast of the existing enclosures.
Pre oration of the IS/MND: The County is the lead agency under the California Environmental
Quality Act ("CEQA"), Public Resources Code sections 21000 et seq., for preparation and
adoption of the environmental document, in this case the IS/MND (Initial Study/Proposed
Mitigated Negative Declaration), for the project (UP 07-0006). Pursuant to CEQA and the
CEQA Guidelines, 14 California Code of Regulations sections 15000 et seq. ("CEQA
Guidelines"}, an ISIMND was prepared to analyze the environmental effects of the project. The
IS/MND identif ed several potentially significant impacts that would be made less than
significant due to the inclusion of seven mitigation measures. The mitigation measures would
have covered, among other things, biological resources, cultural resources, visual screening, and
lighting control .
Planning Commission Hearing._and Action: On 3une 12, 2008 the PIanning Commission held a
combined hearing on PLCE07-0001 regarding revocation of Use Permits UP 98-09 and UP 01-
10, and regarding the application far Use Permit 07-0006. The application for UP 07-0006
sought a reduction in the days of operation; an increase in the number of allowed busses entering
the property; the addition of six exotic animals 40 pounds or more and an unlimited number of
exotic animals under 15 pounds; and approval of two previously established animal enclosures at
the southeast corner of the parcel and seven additional animal enclosures in the center of the
parcel. At the hearing, the Conunissioners heard testimony and considered the information
presented. The Commissioners deliberated and decided to approve UP07-0006, in part, to allow
2
two additional animal enclosures located at the southeast corner of the parcel, 12 additional bus
trips per year (in addition to the 12 bus trips per year currently permitted at one per month), and
to limit volunteer traffic to 15 vehicles per day (in addition to the 10 visitor vehicles per day).
The Commission deliberated regarding the violations of Use Permit UP 98-09 and UP 01-10
(Planning Code Enforcement Case PLCE07-0001) and determined that the violations identified
were rectified through installation of a new fence and approval of Use Permit UP07-0006,
including deletion of the one bus per month limit found in Condition No. 4 of Use Permit UP 98-
09. The Commission approved UP07-0007 in part and voted not to revoke UP 98-09 and UP O1-
10under PLCE07-0401.
Appeal: A timely appeal was filed by the Applicant of the Planning Commission's
determination regarding UP07-0006. A timely appeal was filed by John Hoptowit, a neighbor, of
all of the PIanning Commission's determinations regarding PLCE07-0001 and UP07-0006.
The Applicant modified its application for UP07-0006 in its appeal letter to request only eight
additional animals, thereby deleting the request for five additional wild or exotic animals over 40
pounds, one jaguar or cheetah, and no restrictions on animals less than 15 pounds. The
modification proposed:
A. Two hedgehogs;
B. One ferret
C. One "de-scented" skunk;
D. Two additional fennec foxes;
E. One male clouded leopard;and
F. One cheetah.
Board of Su ervisors Action: The Board of Supervisors (the "Board") held a noticed public
hearing on the two appeals of the Planning Commission's actions on the Planning Code
Enforcement Case and Use Permit. The hearing was held on September 9, 2008, and continued
open to October 7, 2008. At the September 9, 2008 and October 7, 2008 hearing, the Board
heard testimony and considered the information presented before the Planning Commission and
itself The Board concluded its public hearing on October 7, 2008, and continued its
deliberations on November 4, 2008. On November 4, 2008, the Board of Supervisors adopted a
motion of intention directing staff to prepare this resolution.
Description of the Record: The record for the project includes, but is not limited to, the
following: 1. Use Permits UP98-09 and UP 01-10 and supporting materials; 2. Butte County
Code Chapter 4, Article 4, Wild or Exotic Animals, and Chapter 24, Zoning; 3. Planning Code
Enforcement Case PLCE07-0004 and supporting materials; 4. Building Permit B 07-2069 (fence
repair) and supporting materials; 5. Use Permit application UP07-0006 and supporting materials;
6. The Environmental Document (IS/MND} and supporting materials; 7. The Staff Reports and
supporting materials for the various hearings; and 8. Public Comments, both oral and written,
presented at hearings or otherwise received, including minutes of hearings.
3
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 Ends as follows:
1. Prior limitations. The Board of Supervisors approved UP 98-09 on June 9, 1998,
allowing a previously unauthorized use to continue, and approved the expansion of
the uses thereunder by approving UP 01-10 on April 24, 2001. Both permits
contained conditions and limitations, and, in connection with the approval of UP
01-10, members of the Boazd of Supervisors made it clear that further expansions of
the uses would not be favorably considered and that relocation of the use to a more
suitable site was expected within a reasonable period of time, in accordance with
the Applicant's representations and acquiescence.
2. Increased uses incompatible. An expansion of the use permits as proposed by the
application for UP 07-0006, would impair the integrity and character of the zone in
which the land lies, and the proposed increased uses would be unreasonably
incompatible with, and injurious to, surrounding properties, and detrimental to the
health and general welfare of persons residing or working in the neighborhood, and
to the health, welfare and safety of the residents of the County, far the following
reasons:
a. Proposed increase in use is significant. The proposed additional wild or
exotic animals, including Two hedgehogs; One ferret; One "de-scented"
skunk; Two additional fennec foxes; One male clouded leopazd; and One
cheetah would constitute a significant increase.
b. Additional enclosures would expand the use. The two additional
enclosures would expand the footprint of the use at the southeast corner of the
site, as shown on the proposed new site plan (September 9, 200$ Board of
Supervisors Staff Report {"Staff Report"}, item K on page 280).
c. The site is in a rural residential area. The site is within close proximity to
the Durham community, which is situated approximately one (1) mile to the
west, and is in an area dominated by agricultural and rural residential land
uses. The site is surrounded by rural residential uses an parcels ranging in
size from approximately 2.89 acres to 14.61 acres. The average size for the
nine adjacent parcels is 5.6 acres. {Staff Report, Initial Study at pages 105,
lOb, and 130}
d. Increase in animals would exacerbate existing conflict between the use
and neighbors. The existing use is allowed by Use Permits 9$-09 and O1-i0;
however, conflicts between the existing use and neighboring residential uses
already exist because of the number and type of animals housed on the
premises, as set forth below, and the proposed expansion would exacerbate
such conflicts so that the use would not be reasonably compatible with the
neighboring uses.
4
i. There is a large array of exotic animals housed on the premises,
including CIouded Leopards, Leopards, a Lynx, Bobcats, Ocelots, and
a Cougar. (Staff Report, pages 192,193, 196, 199, 205, 224, 227, 230,
251, and 254}
ii. Large exotic cats and other animals on the premises are known to roar
and to make other noises disturbing to residents of the neighborhood.
{Staff Report, pages 74, 251 and 274; Testimony ofDeruse Vaughn on
September 9, 2008} Allowing more large cats on the premises could
cause an increase in such disturbing noises.
iii. The smell from the manure on the premises is already overpowering at
times. (Staff Report, pages 52 and 275)
e. Increase in traffic rwould exacerbate existing problems. The existing
traffic generated by the use is causing neighborhood problems, and any
increase in traffic would exacerbate these problems.
i. The existing level and speed of traffic on the access roads to the site,
and the narrowness of Laura Lane, is causing traffic jams and safety
problems. (Staff Report, page 274); Testimony of Ms. Mausser on
September 9, 2008}
ii. The traffic, dust, and noise causEd by the use on the premises is
unbearable and should not be allowed to increase. (Testimony of Ms.
Mausser on September 9, 2008; Letter of Josefa Mausser dated June 7,
2008, Staff Report page 52.)
iii. Laura Lane is incapable of handling additional bus traffic. (Letter of
Richard L. Crabtree, dated June 11, 2008, Staff Report page 56.
iv. Additional busses should not be allowed because of the difficulty of
such large vehicles making the turn necessary to reach the premises.
(Testimony of Mr. Early at Board of Supervisors hearing an
September 9, 2008)
£ Pattern of complaints and cures, There has been a pattern of complaints by
neighbors alleging violations of conditions of the Use Permits and various
regulations which were not cured until after the complaints were made, and in
some instances the Applicant sought to cure existing violations by applying
for expansions of the allowed uses. {Letter of John K. Hoptowit dated
September 30, 2008, with attachments)
g. Consensus that relocation to more suitable site is a high priority. There is
a consensus among the Applicant, Applicant's supporters and opponents, that
the existing use causes conflict with neighbors, that there are problems with
the existing site, and that it is a high priority for the Applicant to relocate to a
more suitable site (Testimony of Rod Thompson, Denise Vaughn, Alison
Lampe, Rocky Campbell, Laurie Fulton, Sean Castro, and Phyl Manning on
September 9, 2008, and Testimony of Rod Thompson, Roberta Kirshner and
Ed McLaughlin on October 7, 2008}
h. Findings for approval of UP 07-U006 cannot be made. In view of findings
a. through g. above, the findings required by Butte County Code section 24-
45.10 for approval of UP 07-0006 cannot be made.
S
3. The Applicant was placed on notice that revocation of the Use Permits was to
be considered, based on violation of their conditions, or if any acts or omissions
of the Applicant in connection with the uses authorized constitute a public
nuisance.
a. Notices to comply with the Use Permits were sent to the Applicant on August
31, 2007 and September 13, 2007, giving notice that violation of conditions of
the permits regarding cages and the secondary containment fence had been
documented anal that there had been complaints regarding other violations
pertaining to excess cars and busses, which complaints had not been
substantiated or refuted. (Staff Report pages 153 and 155)
b. Notice was given regarding Planning Commission revocation proceedings.
i. Notice of the Planning Commission proceedings on November 15,
2007 pertaining to Planning Code Enforcement Case PLCE07-0001
was mailed to Applicant on November 8, 2007.
ii. Notice was published and served on Kirshner by certified mail
regarding the hearing to beheld by the Planning Commission on June
12, 200$ pertaining to Case PLCE07-0001, and to consider
modif cation or revocation of Use Permits UP 98-09 and UP 01-10.
c. Planning Commission agendas gave notice of passible revocation action.
i. November 15, 2007, item VII.A. PLCE07-0001: "(T)wo violations to
the terms of Use Permits UP 98-09 and UP 01-10 (Barry R. Kairshner
Wildlife Foundation} were documented and written notices to comply
were sent. The question of whether to conduct a noticed public
hearing to revoke the Use Permits is now before the Planning
Commission."
ii. June 12, 2008, item V. C. PLCE07-0001: Although staff
recommended that item D. on the same agenda obviated code
enforcement (by recommending amendment of the use permits} the
agenda stated the fallowing issue: "There are several complaints
raised by concerned citizens: 1. Traffic greatly exceeds the number
allowed by the use permit, including both the permitted cars per day
and busses per month. 2. The existing fence does not meet the
requirement identified in the Use Permit. 4. {sic) Additional animal
enclosures without and (sic} approved Use Permit."
d. Planning Commission Agenda Reports discussed possible revocation action.
i. November 1, 2007 Department of Development Services, Planning
Division, Memorandum to Planning Commission ("November 1, 2007
Memorandum") states that Butte County Code section 24-45.65
governs the Planning Commission's consideration of revocation of use
permits and provides far revocation after a noticed public hearing if
any of the terms or conditions (of the permits) are violated or if acts or
omissions of the permittee in connection with the use authorized
constitute a public nuisance. "The question of setting a noticed public
hearing to consider revocation of the Use Permits is now before your
Commission." (Staff Report page 141)
6
e.
f
ii. June 12, 2008 Agenda Report states that "The Planning Commission
will also be considering revocation of Use Permit 98-09 and 01-10
{PLCE07-0001}" and "The question before your commission is
whether the violation of ...Condition of Appravai No. 3 in Use Permit
UP 01-10 (i.e. the two 12' by 12' animal cages not shown on the
approved site plan, and exceeding the allowed quantity of busses), or
any acts or omissions by the permittee regarding either UP 9809 or
01-10 constitute a public nuisance, meriting consideration of
revocation of the Use Permits, as provided by section 24-45.65 of
County Code." (Staff Report pages 77 and 84)
Qn November 15, 2007, the Planning Commission identified three areas of
possible violation of conditions of the Use Permits, namely, conditions related
to the allowed number of cages, the secondary fence, and traffic, and
scheduled a revocation hearing for June 12, 2008. (Staff Report, page 178}
Evidence of condition violations was presented to the Planning Commission.
i. November 1, 2407 Memorandum, for November 15, 2007 meeting,
documented the existence of two (2) animal cages not shown on the
approved site plans for UP 98-09 or UP 01-10, in violation of
Condition 3 ofUP 01-10, and a dilapidated eight-foot high secondary
containment fence in violation of Condition 14 of UP 98-09 and
Condition 10 of UP 01-14. (Staff Report, pages 142-143)
ii. June 12, 2008
1. The Staff Report at pages 83 and 84 and the oral presentation
by Mr. Thistlethwaite at page 5 of the Planning Comnssion
minutes for June 12, 2008, documented the following
violations:
a. Cages -There are 2 animal enclosures that were not on
the original site plan.
b. Fence -There was a fence in need of repair. This was
fixed.
c. Traffic -The number of buses allowed had been
exceeded.
2. The Initial Study/MitigatedNegotive Declaration stated that an
enforcement case was open and a hearing would be held
regarding revocation.
a. "The property has an open Butte County Code
Enforcement Case (PLCE07-0001} for (1) traffic
greatly exceeding the number allowed by the use
permit, including both the permitted cars per day and
buses per month, and (2) the existing fence does not
meet the requirement identified in the Use Permit. The
Planning Commission will hold a hearing regarding
revoking Use Permit 98-09 and 01-10...." (Staff
Report, page 124)
7
3. Testimony by members of the public at PIanning Commission
hearing on June 12, 2008 acknowledged the possibility of
revocation.
a. Ms. Denise Vaughn: Traffic was somewhat excessive.
b. Ms. Joan Shelton: She was saddened by the possibility
that the Use Permit maybe revoked.
4. Letter from John K. Hoptowit dated November 15, 2007,
alleged violations of Conditions 2,3,4,9,10, l hand 13 of UP 01-
10, which was included in the packet of materials provided to
the Applicant prior to the June 12, 2008 Planning Commission
hearing. (Staff Report, page 73-74}
g. Appeal letter
i. Mr. Hoptowit's appeal letter of June 24, 2008 (Staff Report page 20),
appealed all decisions made by the Planning Commission on 3une I2,
200$ (this would include the adoption of Resolution 08-36 approving
UP 07-0006 allowing modification of the conditions of approval of UP
01-10 and UP 98-09 and passage of a motion to not revoke UP 01-10
under Code Enforcement number PLCE 07-0001} "and action be taken
on violations."
1. Although the letter is not a model of clarity, its clear purport is
to request that action be taken because of violations of any
terms and conditions of the UP which had been raised during
the Planning Commission proceedings.
h. Board of Supervisors hearing notices identified modification or revocation of
the Use Permits as possible actions.
i. September 9, 2008: States in part that the Board of Supervisors will be
"...considering modification or revocation of UP 98-09 and 01-10 as
provided by Section 24-45.65 of Butte County Code {Violation of
terms of use permit)." The hearing was continued open to a time
certain, namely October 7, 2008; so, the same hearing notice continued
to be applicable.
ii. Butte County Code Section 24-45.65 states in part in subsection {e}
that "Any use permit maybe revoked if any of the terms or conditions
of such permit are violated or if any acts or omissions of the permittee
in connection with the use authorized by said permittee {sic}
constitute a public nuisance."
i. Board of Supervisors Agendas and backup documents, including the
proposed Board of Supervisors resolution, and the Staff reports to the Boazd,
pertaining to the proceedings on September 9, and October 7, 2008, all make
it clear that violations of conditions of the use permit were in issue because
one of the appeals being heard was an appeal of the Planning Commission's
action finding that violations of the use permits identified in PLCE07-0001
were rectified through a building permit and approval of a new use permit
allowing modified conditions.
j. Evidence of the violation of conditions was presented at the Board of
Supervisors hearing on September 9, 2008:
i. PowerPoint presentation regarding violations of the use permits:
1. Cages: staff documented two animal cages, each
approximately l2' by 12' {144 square feet) constructed at the
southeast corner of the subject property.
2. Fence: dilapidated condition supported by lean-to-beams at
several locations and one section appeared to have previously
collapsed and was held in place with rope. An application far a
building permit for a replacement fence was submitted on
October 4, 2007. The fence was completed and the permit was
"finaled" an November 8, 2007.
3. Traffic: since the November 15, 2007 Planning Commission
meeting, information was received that the allowed number of
buses {one per month} had been exceeded on two occasions
and that concerns about traffic were expressed at the November
l5, 2007 Planning Commission meeting and at the June 12,
2008 Planning Commission hearing.
ii. The PowerPoint presentation made it clear that the hearing involved
consideration of revocation of Use Permits 9&09 and 01-10 and the
alternative actions suggested included revocation of the Use Permits.
iii. The testimony of Ms. Mausser, a neighbor, described unbearable
traffic, dust and noise caused by the Applicant's use on the site.
k. Evidence and discussion at the Board of Supervisors continued hearing an
October 7, 2008, included but was not limited to complaints regarding
Applicant's activities on the site:
i. Letter of John K. Hoptowit, a neighbor, dated September 30, 2008,
with attachments, documenting a persistent pattern of complaints by
neighbors alleging violations of conditions of the Use Permits and
various regulations which were not cured until after the complaints
were made.
ii. Testimony of Ed McLaughlin describing the use as a "festering sore."
1. The November 4, 2008 Boazd of Supervisors agenda included the following
staff recommendations: "l) Determine if any of the terms or conditions of the
use permits were violated....; 2) Adopt a motion of intent to revoke use
permits UP 98-09 and UP 01-IO and establish a time frame for discontinuation
of all conditionally permitted uses...."
m. Persons representing the Applicant attended and participated in all the
Planning Commission and Board of Supervisors hearings and proceedings.
n. Notice of the following possible grounds far revocation was acknowledged by
Attorney Stanton, representing the Applicant at the Board of Supervisors
meeting on November 4, 2008:
i. Unauthorized Cages
ii. Dilapidated Fence
iii. Excessive Traffzc
o. Conditions of Use Permits themselves gave notice of the possibility of
revocation.
i. Item 1 of Use Permit UP 98-09 states:
9
"Failure to comply with the conditions specified herein as the basis of
approval of application and issuance of Permit, constitutes cause for the
revocation of said permit in accordance with the procedures set forth in
the Butte County Zoning Ordinance, including Butte County Code Sec.
24-45-65." (Staff Report page 145)
ii. Item 1 of Use Permit UP O1 ~10 contains the same requirement (Staff
Report page 149).
4. Applicant has violated conditions of the Use Permits regarding the number of
approved animal enclosures.
a. Condition of Approval No. 4 of Use Permit UP 98-09 and Condition of
Approval No. 3 of Use Permit UP O1-10 state:
"The use and structures shall be maintained in compliance with the
approved site plan and this revised Permit." (Staff Report pages 146 and
1 SO)
b. In a written notice to comply dated August 31, 2007, Director of Development
Services Tim Sneliings wrote that on August 17, 2007 the Planning and Code
Enforcement Divisions of the Department of Development Services inspected
the subject property and documented the following violation of the Conditions
of Approval of Use Permits UP 98-09 and UP 01-10:
"Two animal cages, each approximately 12" by 12" (144 square feet) in
size have been constructed at the southeast corner of the subject property.
While these cages were unoccupied at the tune of inspection, they are not
shown on the Apri124, 2001 Butte County Board of Supervisors approved
site plan for UP 01-10. This is a violation of Condition No. 3 of Use
Permit UP O1-10." (Staff Report page 153)
The two animal enclosures are nit shown on the site plans approved by the
Board of Supervisors for Use Permits UP 98-09 or UP 01-10 (,Staff Report,
pages 148 and I52, respectively).
c. In a letter to the Director of Development Services dated September 13, 2007,
John K. Hoptowit wrote that: "Two additional cages were constricted on the
property, as noted in the August 17 inspection report; that is clearly a violation
of Ms. Kirshner's use permits....The cages do contain animals, which you
would have witnessed if you'd performed the unannounced inspection...."
(Staff Report, page 67); also see testimony of Mr. Wallis and Rod Thompson
at November 15, 2007 Planning Commission meeting, confirming that
animals had been in the cages. (Staff Report pages 175 and 176)
10
d. The Planning Commission Agenda Report far the June 12, 2008 hearing
states: "Staff documented two animal cages, each approximately 12' by 12'
(144 square feet) constructed at the southeast corner of the subject property.
These enclosures were not shown on either the board of Supervisor's
approved site plans for UP 98-09 or UP 01-10. The location of these
enclosures is a violation of Planning Division Condition No. 30 (sic) of Use
Permit UP O1-10, which states, `[t]he use and structures shall be maintained in
compliance with the approved site plan and this revised permit."' (Staff
Report page 83, referring to Condition No. 3 of UP 01-10)
e. The violation of these conditions regarding the cages cannot be cured by
granting UP 07-OOOG because that would allow an expansion which would
impair the integrity and character of the zone in which the land lies, and the
proposed increased uses would be unreasonably incompatible with, and
injurious to, surrounding properties, and detrimental to the health and general
welfare of the persons residing or working in the neighborhood, and to the
health, welfare and safety of the residents of the County, as set forth in further
detail in finding 2 above.
f. Conclusion: Applicant violated the site plan and Condition ~ of UP 98-09 and
the site plan and Condition 3 of UP 01-10.
5. Applicant has violated conditions of the Use Permits limiting the number of
vehicles and busses.
a. Condition of Approval No. S of Use Permit UP 98-09 states:
"Public site visitation associated with the proposed use shall be permitted
seven {7} days per week and must be BY APPOINTMENT ONLY. All
visits shall be confined to 9:00 am to 5:00 pm. No more than ten (10) cars
per day may visit the use and no more than one {1}bus per month." (Staff
Report, page 146)
Condition of Approval No. 4 of Use Permit UP O1-10 contains the same
requirement (Staff Report, page 150)
b. In a letter to the Director of Development Services dated September 13, 2007,
John K. Hoptawit stated:
"Ms. Kirshner's notice refers to your office's inability to substantiate or
refute allegations of excess vehicle visits; however, on July 3 we provided
your office with digital photograph f les and a traffic log that confirm such
allegations. The fact that there were not in excess of 10 cars at the time of
the announced inspection does not refute the evidence provided. The
notice also does not address our concerns regarding the issue of
trespassing on posted land by her visitors, parking on Laura Lane by her
11
visitors, or speeding on Laura Lane and Lott Road by her visitors." (Staff
Report, page 67.)
c. In a letter dated November 15, 2047, John K. Hoptowit stated:
"The Foundation routinely has more than 10 cars visit the premises per
day, and more than 1 bus per month has visited (sometimes 2 on the same
day), during the past two years." (Staff Report, page 73)
d. In a letter dated May 26, 2008, Marc Bergan stated:
"On any given weekend, it is not unusual to count at least 40 vehicles
going in and out of the facility. The facility's stance on that is that most of
the individuals are workers, hence, they do not fall under the 10 vehicle
per day limit. I have read the permit and it does not mention excluding
employee {sic), rather cieariy it states that there is to be no more than, 10
vehicles per day." {Staff Report, page 274)
e. In a letter dated June 11, 2008, Richard L. Crabtree, representing a group of
concerned neighbors who live near the present location of the Applicant,
stated:
"The existing Use Permits state that `No more than ten cars per day may
visit the use and no more than one bus per month, {UP 98-09, Condition 5;
UP 01-10, Condition 4). The Neighbors have always understood this
language to mean that there is a total limit of 10 car visits daily to the
Project site, including trips by employees and volunteers. Nothing in the
express language of the relevant Conditions exempts trips by volunteers or
employees from the ten vehicle per day limit. The Initial Study indicates
the Project currently generates ten car trips per day by visitors, and
another nine to ten car trips per day by employee/volunteers. The
resulting total number of vehicles currently accessing the Project per day
is twice that allowed under the current Use Permits. Thus, the existing
number of vehicle trips per day violated both Use Permits." (August 19,
2008 Board of Supervisors Staff Report, page 56)
Mr. Crabtree's letter contained photographs depicting vehicles on Laura Lane
and parked on the project site (Staff Report, pages 60 through b3, inclusive).
f In a letter dated June 12, 2008, John Hoptowit states:
"The very first mitigated negative declaration filed by Kirshner states that
the use will not generate more than 10 vehicle trips per day (5 cars
arriving and 5 cars departing). The use permit allows 10 visits per day,
and the County has interpreted this to mean 10 visitors and an unlimited
12
amount of volunteers. Typically there are 3 to 4 volunteers every day but
there have been days where there are in excess of 20 cars parked in the
back (which I5 within 100 feet of an agricultural operation and is a
violation) and well over 10 vehicles in the designated parking area.... The
facility has also had more than one bus per ~, let alone a month, in
addition to the more than ten vehicles per day." {Staff Report, page 64}
g. In the June 12, 2008 Planning Commission Agenda Report for Use Permit
UP07-0006, Butte County Department of Development Services staff
acknowledges numerous complaints had been received regarding compliance
with the Conditions of Approval for Use Permits UP 98-09 and UP 01-10 and
that said complaints alleged that the applicant greatly exceeded the permitted
quantity of visitor vehicles and bus vehicles (Staff Report, page 83}.
h. The Project Description for the proposed Initial Study and Draft Mitigated
Negative Declaration for Use Permit UP07-0006 states:
"Volunteer vehicle trips are expected to remain the same or marginally
increase as a result of the implementation of the expansion/modifcation.
According to the applicantlowner, there are nine to 10 volunteers that visit
the site per day, and that figure may increase by approximately 5% (one
additional volunteer every two days)."
This analysis of volunteer visitor trips is in addition to and separate from
analysis of visitor vehicle trips {Staff Report, page 107) so that the allowed
maximum of 10 vehicles per day is easily exceeded if there are any other
visitors.
i. Department of Development Services staff has investigated and determined
the Applicant has exceeded the one bus per month allowed under Use Permits
UP 98-09 and UP 01-10 on two occasions (Staff Report, page 84).
j. Roberta Kirshner, Applicant's founder, acknowledged at the Planning
Commission hearing on June 12, 2008, that two busses had been on the
premises on the same day. (Planning Commission minutes for June 12, 2008,
page 8).
k. In testimony on October 7, 2008, Ed McLaughlin, a member of the County's
Code Enforcement Advisory Board, stated that he had seen three busses on
the premises at the same time.
1. Photographs dated April 20 and 23, 2007 attached to the letter of John K.
Hoptowit dated September 30, 2008 document that two busses were on the
premises in the same month, Apri12007.
m. The existing level and speed of traffic on the access roads to the site, and the
narrowness of Laura Lane, are causing trafhc jams and safety problems.
Large vehicles cannot pass each other on Laura Lane and cars pass each other
with difficulty. (Staff Report, page 274); Testimony of Ms. Mausser on
September 9, 2008}
13
n. The traffic, dust, and noise caused by the use on the premises is unbearable.
(Testimony of Ms. Mausser on September 9, 2008; Letter of Josefa Mausser
dated June 7, 2008, Staff Report page 52.)
o. In a letter to the Director of Development Services dated September 13, 2007,
John K. Hoptowit wrote that:
"Ms. Kirshner's notice refers to your office's inability to substantiate or
refute allegations of excess vehicle visits; however, on July 3 we provided
your office with dated digital photograph files and a traffic Iog that
confirm such allegations. The fact that there were not in excess of 14 cars
at the time of the announced inspection does not refute the evidence
provided." (Staff Report, page 67)
p. Zn an email dated February 13, 2008, Loretta Dawson stated that she had
visited the site on a Wednesday "...and her (Kirshner's) permit for 10 cars
was exceeded in the short time we were there." (Staff Report page 272}
q. Tri testimony at the Planning Commission meeting on November 15, 2007,
Alison Lampe said the Foundation attracts more visitors than the Use Permit
allows. (Staff Report, page 176)
r. Condition 5 of UP 98-09 and condition 4 of UP 41-1 O limit the total number
of vehicle visits per day to 10 and da not distinguish between vehicles of
visitors and vehicles of Foundation staff volunteers.
s. Conclusion: Applicant violated condition 5 of UP 98-09 and condition 4 of
UP 01-10 because the allowed number of busses on the site (one per month)
was exceeded on multiple occasions and the number of other vehicles,
including the vehicles of volunteers, exceeded the number allowed {10 per
day) on multiple occasions.
6. Applicant has violated conditions of the Use Permits requiring maintenance of
fencing.
a. Condition of Approval No. 14 of Use Permit UP 98-09 states:
"Maintain a fence a minimum of eight (8') feet in height as the secondary
containment around the animal cages." (Staff Report page 146)
b_ Condition of approval No. 10 of Use Permit UP 01-10 states:
"Maintain a fence a minimum of eight (8) feet in height as the secondary
containment around the animal cages. All cages and fencing must meet
State and Federal standards." (August 19, 2008 Board of Supervisors Staff
Report, page 150}
In a written notice to comply dated September 13, 2407, Assistant Director of
Development Services Peter Calarco wrote that on September 5, 2007 the
Cade Enforcement Division of the Department of Development Services
inspected the subject property and documented the following violation of the
Conditions of Approval of Use Permits UP 98-09 and UP 01-10:
14
"The eight-foot (S') secondary containment fence located along the
southeast portion of the property is in a dilapidated condition supported by
lean to beams at several locations on its eastern side and a section that
appears to have previously collapsed and is held in place with rope. This
is a violation of Condition No. 14 of Use Permit UP 98-09 and Condition
No. 10 of Use Permit UP 01-10, which requires you to maintain this fence
and meet all State and Federal Standards." (Staff Report page 155}
d. Construction of a replacement secondary containment fence did not
commence until October 4, 2007 (i.e. the issuance of Building Permit B07-
2069) and was not completed until November 8, 2007 (Staff Report, page 83).
e. The Applicant was aware of the dilapidated condition of the fence, as shown
by inadequate efforts to repair it by propping it up with lean-to beams and
holding it in place with rope, as found in subsection c above.
f. The failure to properly maintain the fence and to replace it in a timely manner
when it had become dilapidated allowed a hazardous condition to exist for an
extended period of time, creating a potentially serious safety problem in the
rural residential neighborhood in the event that any animals escaped from
their primary enclosures, which condition should not have been allowed to
occur and should have been prevented or corrected immediately by the
Applicant but was not corrected until enforcement action was taken by the
county. This failure is found to be egregious because it allowed a hazardous
condition to exist far an extended period of time, creating a potentially serious
safety problem in the rural residential neighborhood in the event that any
animals, especially any of the large cats such as tigers, escaped from their
primary enclosures.
g. Conclusion. Applicant violated Condition 14 of UP98-09 and condition 10 of
UPO1-10.
7. Applicant has violated Condition 15 of UP 98-09 a~td Condition 11 of UP 01-10
regarding parking.
a. Condition 15 of Use Permit UP 98-09 states:
"All parking and unloading of busses shall occur on-site in a Iocation that
is setback at least 100' feet from the property Iine from any adjoining
agricultural operation. No parking shall be allowed on Laura Lane." (Staff
Report, page 147)
Condition 1 I of Use Permit UP 0 i -10 contains the same requirement (Staff
Report, page 151).
b. In a letter to the Planning Commission dated November 1 S, 2007, John
Hoptowit stated that "Several times during the past two years, vehicles have
parked on Laura Lane, turned around in the middle of Laura Lane, and have
been routinely parked within 100 feet of adjoining agricultural operations."
(Staff Report, page 73)
1S
c. In a letter dated June 12, 2008, john Hoptowit stated that "Typically there are
3 to 4 volunteers every day but there have been days where there are in excess
of 20 cars parked in the back {which is within 100 feet of an agricultural
operation and is a violation)...." (Staff Report, page 64)
d. Zn a letter to the Planning Commission, dated June 11, 2008, Richard L.
Crabtree stated: "...Use Permit 98-09 addresses onsite parking of passenger
vehicles. That Use Permit limits the parking area to five vehicles. {UP 98-09,
Condition 7.) Exhibit "B" is a series of photographs taken by Neighbors of
parking at the Project site. From these pictures it is easy to tell that onsite
parking exceeds five vehicles."
e. Documentary evidence in the form of photographs presented to the Board of
Supervisors shows vehicles parked within 100 feet of the south and east
property lines of the subject property {September 9, 2008 Staff Presentation
on Consideration of Revocation of Use Permits 9$-09 & O 1-10 and PLCE07-
0001; Use Permit for Roberta KirshnerlBarry R Kirshner Wildlife Foundation
(Use Permit 07-0006) and Staff Report, pages 62, 161, 164, and 165}.
f. Conclusion. Applicant violated Condition IS ofUP98-09 and Condition 11 of
UP 01-10 because vehicles visiting the site have parked on Laura Lane and
within 100 feet of adjoining agricultural operations.
8. Applicant has violated conditions of the Use Permits regarding hours of
operation.
a. Condition 5 of UP 9$-09 and Condition 4 of UP 01-14 state: "Public site
visitation associated with the proposed use shall be permitted seven (7) days
per week and must be BY APPOIl~TTMENT ONLY. All visits shall be
confined to 9:00 am to 5:00 pm. No more than ten (10) cars per day may visit
the use and no more than one (1) bus per month." {Staff Report pages 146 and
150}
b. In a letter dated November 1 S, 2007, John K. Hoptowit stated that,
"Volunteers work from 8:00 am until Noon or 1:00 pm, cleaning and
feeding...." and "{T)he Foundation's gates aze open from 8:00 am until at
least 5:00 pm, seven days a week, and there are always cars present." (Staff
Report pages 73 and 74)
c. Conclusion. Applicant violated Condition 5 of UP 98-09 and Condition 4 of
UP 01-10 regarding the permissible hours of visits because volunteers were
allowed on the site to work earlier than 9:00 am.
9. Applicant has violated conditions of approval regarding fhe type and number
of animals on site.
a. Condition 11 of UP 98-09 states: "Obtain an Exotic Animal permit from
Butte County Animal Control. Such permit shall be on f Ie with the Planning
Division and continuously maintained in good standing in order for UP 98-09
to be valid. The exotic animal permit shall allow a maximum of 15 wild or
exotic animals as defined in section 4-37 of the Butte County Code. The
permit holder may keep and maintain a maximum of eleven (11) wild animals,
in the FeIia Catis fannily, as listed in Section 4-37(3)a. of the Butte County
Code, and which are specified in the inventory permitted by the State
16
Department of Fish and Game "Exhibiting Resident" Permit No. 2496 dated
3anuary 27, 1998." (Staff Report page 146}
b. Condition 9 of UP 01-10 states: "Obtain an Exotic Animal permit from Butte
County Animal Contarol Such permit shall be on file with the Planning
Division and continuously maintained in good standing in order far UP 01-10
to be valid. The exotic animal permit shall allow one (1) snow leopard of any
weight, and a maximum of twenty {20) wild or exotic animals, as defined in
section 4-37 of the Butte County Cade, that weigh less than forty (40) pounds.
These animals are in addition to the fifteen (1 S) wild or exotic animals
allowed under UP 9$-09." (Staff Report page 1 SO}
c. Condition 13 of UP 01-10 states: "The types of permit animals kept on the
site shall be similar to the animals listed an the revised inventory list dated
January 10, 2401." (Staff Report page 1 S 1)
d. Tn a letter to the Director of Development Services dated September 13, 2007,
John K. Hoptowit wrote that:
1. The use permits "...do not provide far possession of a black-
tail Deer, and there is one on the premises...."
2. "...Ms. Kirshner's (animal) population "...currently exceeds
the number of exotics allowed by her current use permits."
(September 9, 2008 Board Staff Report Pages 66-67)
e. In a letter to the Planning Commission dated November 15, 2007, John K.
Hoptowit wrote that: "The Foundation exceeds the number and type of
animals allowed by her use permit. The foundation houses 16-20 horses at
any given time; some in an enclosure previously designated as an `exercise
pen' for large cats. The Foundation currently houses a blacktail deer, and has
stated that it operates as a `rescue facility' for homeless dogs and cats." Mr.
Hoptowit wrote further that: "The Foundation has, and is keeping, more
animals than it is allowed. Some of the animals currently in its possession are
not even `similar' to those listed on the Iast application for expansion (for
instance, the blacktail deer). {Staff Report Pages 73-7~)
f. Horses are an allowed use in the A-14 zone; however, the keeping of a
blacktail deer, which is an "exotic" animal, as specified in Butte County Cade
section 4-37 (3)(g}, is not an aIiowed use and is not allowed pursuant to the
conditions of approval of UP 98-09 and UP 01-10.
g. Conclusion: Applicant violated Condition 11 of UP 98-49 and Conditions 9
and 13 of UP 01-14.
~0, Applicant has violated Condition 2 of UP 98-09 and UP O1-10 regarding
removal and disposal of animal waste.
a. Condition 2 of each Use Permit states: "Animal waste shall be removed from
cages at least twice a day and shall be disposed of on-site. Disposal of wastes
shall meet Butte County Environmental Health Division requirements as
specified in the Exotic Animal Permit. On-site disposal shall meet
Environmental Health Division requirements for groundwater protection.
Disposal shall be performed as frequently as required by Environmental
Health. Waste shall not be allowed to accumulate within the cages so as to
17
cause excessive odors or pollute water runoff in accordance with
Environmental Health Division requirements." (Staff Report pages 145 and
1 SO)
b. In a letter to the Planning Commission dated November 13, 2007, John K.
Hoptowit wrote that: "The Foundation was cited on May 1, 200b for allowing
animal wastes to run off into an irrigation ditch and onto my property (notice
attached). The notice states that the ditch was for drainage, but in fact is a
routinely utilized agricultural irrigation ditch. The Foundation was given 30
days to present an acceptable plan for abatement or corrective action, but did
not comply. Thad to file another complaint with the County, after which the
Foundation finally cleaned out the ditch....Volunteers work from 8:00 am
until Noon or 1:00 pm, cleaning and feeding; no work is done in the afternoon
or evening. This means that cages are not being cleaned twice daily."
c. Tn testimony an October 7, 2008 Ed McLaughlin, a member of the County's
Code Enforcement Advisory Board stated he had seen feces thrown into an
irrigation ditch at the premises.
d. Conclusion. Applicant violated Condition 2 of each Use Permit because the
animal cages were not always cleaned twice daily and the wastes were not
always disposed of properly on site.
11. The care of the violation of the fence conditions has been considered. Violation
of the conditions requiring the installation and maintenance of a secondary fence
has been found to be egregious. (Finding 6 f above) However, the fact that this
violation has been cured has been taken into consideration in allowing the uses
conducted pursuant to the Use Permits to continue on the site during aphase-
out/amortization period which continues until October 30, 2010. The Applicant is
required to abide by Condition 14 of UP 98-09 and Condition 14 of UP 01-10.
12. Violations considered in the aggregate. Applicant's violations of conditions of
the Use Permits have been considered individually and in the aggregate. In the
aggregate they demonstrate and document a pattern of violations and repeated
conflict with neighbors, raise concerns that violations might continue in the future,
and lend weight to the decision to revoke the Use Permits.
13. Acts and omissions of the Applicant determined to be public nuisance. The acts
and omissions of the Applicant in connection with the uses authorized by the Use
Permits, as set forth in the above Findings, constitute a public nuisance.
14. Revocation not a project under CEQA. Revocation of UP 9$-09 and UP 01-10
is not a project pursuant to the California Environmental Quality Act ("CEQA"). Tt
is not known at this time whether or rat the Applicant will relocate the uses which
have been conducted pursuant to these Use Permits to a different site in the
unincorporated area of Butte County when said uses have ceased at the current site
pursuant to the revocation order. However, in the event the Applicant does seek to
relocate to another site within the jurisdiction of Butte County and applies for a
discretionary permit or permits to allow such relocation, then any such application
will be a project pursuant to CEQA, and an Initial Study and an appropriate
environmental review will be conducted.
18
DECISIONS AND ORDERS
Based an the Findings set forth above, the Board of Supervisors decides and orders as follows:
I. Denies the appeal of Barry R. Kirshner Wildlife Foundation/Raberta R. Kirshner from
the Planning Commission's June 12, 2008 action pertaining to Use Permit UP07-0006.
II. Grants the appeal of Jahn R. Hoptowit from the Planning Commission's June 12, 200$
action pertaining to Use Permit UP07-0006, and determinations regarding PLCE07-0001.
III. Does not adopt the Initial Study and Draft Mitigated Negative Declaration prepared for
Use Permit UP07-0006 due to its insufficient analysis of potential impacts.
IV. Denies Use Permit UP07-0006.
V. Revokes Use Permits UP 98-09 and UP 01-10, but enforcement of this revocation order
shall be suspended until 5 p.m. on October 30, 2010, provided that the Kirshner Foundation:
a) Complies with all the conditions and limitations as set forth in those permits so long as
the uses continue an the premises.
b) Files, by October 30, 2009:
i) All necessary applications for permits to locate to a different site.
ii) A closure plan satisfactory to the Director of Development Services.
c) Files reports demonstrating progress to relocate the operation and cease all uses on the
site previously authorized by the Use Permits. Said reports shall be filed quarterly in
writing with the Director ofDevelopment Services, commencing April i, 2009, and
continuing thereafter on each April 1, July 1, October 1, and January 1, with the final
report due October 1, 241.0. Each such report shall state:
i) The efforts and progress that have been made to obtain any and all permits necessary
to relocate the operation to another site. This requirement shall apply if said proposed
site is in another jurisdiction. If the proposed site is within Butte County's
jurisdiction, the report need not duplicate information already submitted to the
Department ofDevelopment Services.
ii) The efforts that have been made to physically reduce the use of the existing site by:
{1} Reducing bus traffic
{2} Reducing volunteer hours/traffic
{3) Reducing visitor hours/traffzc.
d) If the above conditions of this order are not met as of 5 p.m. an October 30, 2009, and the
use continues, then the Director of Development Services shall report such facts to the
Board of Supervisors and to the office of the District Attorney and County Counsel for
appropriate action, pursuant to Butte County Cade 24-45.65, subsection (g).
VI. Notifies the Appellants that the time within which judicial review of the above actions and
decisions must be sought is governed by Cade of Civil Procedure section 1094.6.
19
PASSED AND ADOPTED by the Board of Supervisors of the County of Butte, State of
California, at its regular meeting held on the 27th day of January, 2009, by the following vote:
AYES: Supervisors Dolan, Lambert, Yamaguchi and Chair Connelly
NOES: Supervisor Kirk
ABSENT: NIA
NOT VOTYNG: NIA
B L CONNELLY, Chair
Butte County Board of Supervisors
ATTEST:
Gregory G. Yt~r'r' ,Interim Chief Adrn~ strative Officer
and Clerlu6~th oaf a~Sunervisors~
By:
za