HomeMy WebLinkAbout09-161{COR07-0002)
Background
On January 26, 1981, the tentative map for Sierra Foothills Subdivision No. 2 was
conditionally approved by the Butte County Advisory Agency {Exhibit B}. No appeal
was filed regarding the approval or any of the conditions or mitigations pertaining to the
map.
The final map for Sierra Foothills Subdivision No. 2 was f led on February 5,
1986 and recorded in Book 100 of Maps at pages 83-84 {Exhibit A). The final map
created Lot 28, which is depicted thereon, and contained the following Note: LOT 28 1S
NOT APPROVED FOR SEWAGE DISPOSAL PURPOSES. TO BE RESERVED IN
DEEDS FOR FIRE STANDBY AND RECREATIONAL PURPOSES" {Exhibit A, Note
appearing on Lot 28}.
Dan and Jean Hays (referred to hereinafter collectively as "Hays") have applied
far Certificate of Correction COR07-0002 seeking to remove said Nate pertaining to Lot
28 so that the lot can be used for residential purposes.
The Butte County Planning Commission held a hearing on March 26, 2009, and
adopted a resolution on May 14, 2009 denying the Certificate of Correction.
Hays appealed said denial to the Board of Supervisors, which held a hearing
thereon on July 21, 2009.
Recitals
WHEREAS, when Lot 28 was created, the map that created it was subject to
numerous conditions of appraval including the following two: 1) Environmental Health
Condition No. 21 which reads "Provide the required usable sewage disposal area on each
parcel. Combine with an adjacent parcel that contains the required area, any parcel not
proven to meet the usable sewage disposal area requirements at the time the map is
recorded. Note: A special use well site lot is permissible."; and (2} Mitigation Measure
No. 4 from the Environmental Review Department memo dated January 5, 1981 which
reads "Water from individual wells or a community system along with a stock watering
A RESOLUTION OF THE BUTTE COUNTY BOARD OF SUPERVISORS
DENYING THE APPLICATION FOR A CERTIFICATE OF CORRECTION
FOR DAN AND JEAN HAYS
FOR LOT 28 OF SIERRA FOOTHILLS SUBDIVISION N0.2
pond with a pumping capacity of 400 GPM will be available for fire protection
purposes." (Exhibit B}; and
WHEREAS, the application and tentative subdivision map for Sierra Foothills
Subdivision No. 2 was for 13 lots {Exhibit B pages 2 and 3) {Exhibit G) (Exhibit U) but
two of the proposed lots were combined to create current lot 27 and the final map
therefore contained only 12 lots, 11 of which were developable, but 1 of which, namely
Lot 28, was not developable (Exhibit A and Exhibit M); and
WHEREAS, said Lat 28 was not developable--because of the Condition 21
requirement to prove the existence of a sewage disposal area on every lot or combine the
lot with another lot which had such disposal area, because such area was not proved as to
Lot 28 and it was not combined with any other parcel with such an area, and because
Condition ZO required leaving a 200' leachfield free area around the entire pond on Lot
28, measured from the elevation height of the pond's spillway-but was allowed to be
created as a nondevelopable lot because it satisfied a public purpose--because Mitigation
4 required keeping water in the pond on Lot 28 for fire protection purposes; and
WHEREAS, the Nate pertaining to Lot 28 shows that the Lot did not meet the
requirements of Condition 21 and could therefore not be developed for residential
purposes and to make clear the purposes for which the Lot was being created; and
WHEREAS, in Sierra Foothills Subdivision No. 1, two lots, namely, lots 18 and
19, were created as nonresidential lots as specified in Environmental Health Condition
No. 13 which reads: "Place a note on the map that Lots 18 and 19 are for the installation
of community water supply system facilities and are not approved for sewage disposal
purposes," (Exhibit C); and
WHEREAS, these lots were not intended to be developable as residential lots, but
were created for a separate public purpose, namely providing wells for a community
water supply, and these lots could not at a later time, simply by testing them for sewage
disposal capability and eliminating the note on the map, be converted into lots that are
developable for residential purposes; and
WHEREAS, the Environmental lmpact Report which was prepared and certified
in 1979 for Sierra Foothills Subdivision No. 1 and was relied on for bath Sierra Foothills
Subdivisions No. l and No. 2, refers to the pond, states that migratory waterfowl may
occasionally utilize it and specif es as a mitigation measure that it will be retained for fire
protection purposes (Exhibit K, pages 3, 11, 13, and 21}; and
WHEREAS, subsequent to the approval of the tentative subdivision map and
before recordation of the f nil map for Sierra Foothills Subdivision No. 2, the
Environmental lmpact Report for the Bidwell Heights Land Project Rezone, Specific
Plan, and Subdivision, which includes the area covered by Sierra Foothills Subdivisions
No. 1 and No. 2, depicted Lots 18 and 19 of Subdivision No. 1 and Lot Z8 of Subdivision
No. 2 as "P-Q" meaning they were being evaluated to be zoned and treated by the
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specific plan as Public, Quasi-public {Exhibit D, map on page 4c}; and
WHEREAS, the Bidwell Heights Specific Plan, adopted September 20, 1983,
specifies how the pond an Lot 28 and its surrounding land should be treated: "1.7 The
land adjacent to the on-site pond within the deer corridor will remain in its natural
condition so as not to interfere with migratory wildlife that might use the pond as a
source of water."; "3.1.3 Preserve the connection between water bodies (the on-site pond)
and the related drainages (the wooded ravine to the southwest). {See the attached map)";
and the Map on page 7 shows the area covered by Lot 28 as being permanent open area
and having the designation "PUBLIC" (Exhibit E); and
WHEREAS, subsequent to approval of the Bidwell Heights Specific Plan, the
final map for Sierra Foothills Subdivision No. 2 was filed and recorded; and
WHEREAS, approval of the Bidwell Heights Specific Plan was revoked by the
Superior Court of California for the County of Butte, in an Order filed August 7, 1987, in
Case No. 8237$ (Exhibit L) ,but the recitals in the Plan, including the proposed zoning
of Lot 28 for Public and Quasi-public uses, and statements in the Environmental Impact
Report related thereto nevertheless may be relied on as expressing the contemplated non-
residential uses of Lot 28 at the time the Plan was adopted which was contemporaneous
with the work being done to record the final map for Subdivision No. 2; and
WHEREAS, there are no documents contemporaneous with the tentative and final
maps of Subdivision No. 2 that indicate that the status of Lot 2$ was conditional on any
subsequent event such that it might be converted into a residential lot if a subsequent
event did not occur, nor would Lot 28 have been allowed to be created as a lot that could
be converted to a residential lot without proving at the time of its creation that it was
approved for sewage disposal which was not done as evidenced by the Hate on Lot 28;
and
WHEREAS, letters from the Division of Environmental Health to the Division of
Real Estate, dated February 24, 1986, Navember 1 S, 1988, November 26, 1990, October
5, 1993, and November 30, 1995, (Exhibit M) specify in the frst three letters that 11 lots
are developable while Lot 28 is to be used as a f re protection storage facility and in the
last three letters that septic tank permits will be issued on all lots except Lot 28, and the
Division of Real Estate's Final Subdivision Public Report (Exhibit N}, when discussing
sewage disposal, specifies that a septic system permit will be issued for all 11
developable lots; and
WHEREAS, there was a prior application for a sewage disposal system on Lot 28
received December 6, 2002 that was rejected on December 9, 2002 with the following
brief explanation: "NO SEPTIC SYSTEM ALLOWED CANNOT BE BUILT ON."
(Exhibit H); and
WHEREAS, Hays submitted an application for the Certificate of Correction,
dated Apri12, 2007, (Exhibit O) seeking removal of the Note restricting the use of Lot 28
to non-residential uses only, said removal being sought far the purpose of allowing a
sewage disposal permit to be issued for Lot 28 so that the Hays could "enjoy the full use
of their property," including residential use (page 2 of letter from Daniel Hays to Tim
Snellings, Director of Development Services, dated Apri125, 2007 {Exhibit O}, and page
14 of written presentation of Dan Hays, Jr., submitted at the appeal hearing on July 21,
2009 {Exhibit P)) ;and
WHEREAS, the changed circumstances asserted by Hays in said application as
grounds for approving a Certificate of Correction removing the Note were that the sale of
Lot 28 to the Buzztail Community Services District ("CSD"} had been terminated and
that it had been determined in a Judgment of the Superior Court (Exhibit Q} that the
Plaintiffs Dan and Jean Hays own the fee simple title to the Lot and that "no defendant
has an interest in the Property"; and
WHEREAS, the fact that the CSD did not consummate the purchase of Lot 28
does not change the fact that at the time the final map for Sierra Foothills Subdivision
No, 2 was filed and recorded creating Lot 28, said Lot was limited by the Nate pertaining
to it, and it was not considered to be a lot developable for residential purposes; and
WHEREAS, said assertion regarding ownership of the Lot is erroneous because it
is an incomplete and misleading statement of the language of the Court's judgment
which qualifies the plaintiffs ownership interest by stating it is subject to the statements
on the final Subdivision map, including the Note, "Lot 28 is not approved for sewage
disposal purposes; to be reserved in deeds for Fire Standby and Recreational Purposes"
and omits the further qualif cation "That no defendant has any interest in the Property
adverse to plaintiffs/cross-defendants exc~t as set forth herein;" {emphasis added); and
WHEREAS, the body of water on Lot 28, which has been variously referred to as
a pond, lake or reservoir, is part of the fire protection required by Mitigation No. 10 for
Sierra Foothills Subdivision No. 1 {Exhibit C) and Mitigation No. 4 in Sierra Foothills
Subdivision No. 2 (Exhibit B), and it remains an important part of the fire protection
system and was used during the 2008 fires to supply water to fight the f res {Exhibit Y and
page ~ of Exhibit J); and
WHEREAS, between receipt of the application materials and the materials
submitted by Hays at the July 21, 2009 appeal hearing, no additional materials were
submitted by Hays; and
WHEREAS, the application materials were deemed incomplete as explained to
Hays in three letters from Steve Troester dated June 18, 2007, May 1, 2008, and February
9, 2009 (Exhibit R); and
WHEREAS, this matter was brought to the Planning Commission on March 26,
2009 with the recommendation of denial without prejudice due to its continuing
incomplete status, but, after hearing public testimony, the Planning Commission
instructed staff to investigate the matter and prepare a draft resolution denying the
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application because it was being processed under the incorrect procedure, and a
resolution for denial with prejudice was presented to the Planning Commission on May
14, 2009; and
WHEREAS, Hays did not appear at the Planning Commission hearing pertaining
to the application, which hearing was held and then closed on March 2b, 2009, but
appeared before the Planning Commission on May 14, 2009 and requested that the
hearing be reopened to allow Hays to make a presentation. The Planning Commission
chose not to reopen the hearing and denied the application, which denial was within the
discretion of the Planning Commission and lawful. Assuming but not admitting that said
denial was improper, it was harmless and the issue has been rendered moot because Hays
appealed the matter and has had an opportunity to make a full presentation to the Board
of Supervisors at the de novo public hearing on the appeal on July 21, 2009, and in fact
did make such a presentation; and
WHEREAS, this application was considered by the Board of Supervisors at a
public hearing held on July 21, 2009; and
WHEREAS, Hays was requested to submit any and all documents which would
be relied on to support the application for Certifcate of Correction, in advance of the
appeal hearing held on July 21, 2009, (Exhibit S, letter from Steve Troester to Hays dated
June 4, 2009} so that they could be considered and the Board of Supervisors could be
briefed regarding them. However, Hays declined to do so, stating on page 1 of the
written presentation submitted by Dan Hays, Jr. at the appeal hearing (Exhibit P), "that
would be Iike Clarence Darrow handing William Jennings Bryan his whole defense case
and evidence documents in the State of Tennessee vs. Scopes...a trial more widely know
as `The Monkey Trial.' Now since this is all about the evolution of Bidwell
Heights...and since lawyers aren't required to hand over their case...neither did we. It
was not to intentionally hide anything, but we didn't want anyone presenting our side
before we had the chance...;" and
WHEREAS, Hays submitted new arguments and voluminous documents far the
first time at the appeal hearing on July 21, 2009, including a 27 page document and an
oral presentation based thereon, and Exhibits A through N, including Exhibit M which
consisted often folders of documents, with no opportunity for staff to review and
consider and respond to them in advance of the hearing. Thus, it has been necessary to
attach some additional documents hereto in response, namely Exhibits K through U, all
of which are public documents andlor were made available to Hays between May 14,
2009 and July Z1, 2009, and it is noted that Hays has acknowledged access to the records
of the Environmental Health Division at page 17 of their written presentation to the
Board of Supervisors on July 21, 2009, where they refer to various documents and state
"EVERY ONE OF THESE DOCUMENTS CAME FROM THE COUNTY'S EHD'S
RECORDS"; and
WHEREAS, Hays submitted Exhibit M to the Board of Supervisors at the appeal
hearing on July 21, 2009, with the statement that "Additional documents which are
hereby introduced and contained here today in ten (10) individual files, i.e., court records,
letters, minutes of meetings, permits, applications, etc. and other evidence
documents...and are too numerous to copy and present you with individually in support
of this matter. We cannot leave these documents this with you, but all members of the
Board or County Counsel may arrange a convenient time, date and meeting place to
review any of them you may wish to see andlor copy for the public record." In spite of
their statement to the contrary, they did take the ten files to the Clerk of the Board so that
they could be copied, and the copies were made available to the Board. However, they
did not identify particular documents within the folders or state how such documents
support or are relevant to their arguments that the Certificate of Correction should be
approved. Furthermore, the Board of Supervisors notes that many of the documents in
these folders are duplicates of documents contained in other exhibits submitted by the
Hays. The sheer volume of these documents cannot and do not provide a basis for
approving the application.
WHEREAS, Hays asserts the subdivider intended to sell, and the CSD intended
to purchase Lot 28 for $50,000, and that the CSD held proceedings on March 24, l 986,
regarding the intended purchase, which was referred to at that time as the acquisition of
public facilities, including "acquisition and development of a park and recreation area,
including acquisition of an existing lake" {oral presentation by Dan Hays, Jr., on behalf of
Hays on July 21, 2009, and page 3 of Exhibit P, specifically including Hays Exhibits A
and B); and
WHEREAS, in his presentation on July 21, 2009 on behalf of appellant Hays,
Dan Hayes, Jr., asserted that in view of the fact that the CSD was going to purchase Lot
28 for recreation purposes, there was no reason to test Lot 28 for sewage disposal, and it
was not so tested {page 3 of Exhibit P); and
WHEREAS, Hays asserts that the 200' leachfield free setback is an error.
However, the Hays application far Certificate of Correction makes no mention of the
sewage disposal setback from the lake on Lot 28 and does not request that the setback
shown on the final Map be changed from 200' to 100' (Hays Exhibit M, green folder (c)}.
However, in his presentation on July 21, 2009 on behalf of appellant, Dan Hayes, Jr.
requested for the first time that the setback be changed to 100'. This request is not
timely. Furthermore, even if this request were timely, it could not be granted. Dan
Hayes, Jr. acknowledged in his presentation submitted on July 21, 2009 that the required
sewage disposal setback from a lake or reservoir is 200' but he argued that the body of
water on Lot 28 was not a lake or reservoir because it was not listed as such on Hays
Exhibit N - DOC #8}. However, other documents, including his Exhibits A,B, and M
(green folder b, letter from State Water Resources Control Board to Hays trust, dated
December 3, 2007, regarding permit 18669) refer to the body of water as a lake or
reservoir; and
WHEREAS, the letter from the State Water Resources Control Board to the Hays
trust regarding permit 18669 refers to the body of water on Lot 28 as the "reservoir"
having a capacity of 26 acre feet {Hayes Exhibit M, green foIder); and
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WHEREAS, the setback from any lake or reservoir having a capacity of mote
than 1 acre foot is 200' {Exhibit T}; and
WHEREAS, because of its capacity, the body of water on Lot 28 is considered to
be a lake or reservoir for the purpose of determining the sewage disposal setback from it;
and
WHEREAS, the correct setback from the lake on Lot 28 was and is 200' and no
appeal was timely filed in 1981 challenging that requirement, which because final; and
WHEREAS, Hays asserts that Lot 28 was sized to accommodate sewage disposal,
and contrasts this to lots 18 and 19 which Hays concedes were created for non-residential
facilities, namely wells. However, it is clear that when the size of the lake on Lot 28 and
the 200' setback from it are observed, there is no room for a sewage disposal system in
the remaining area outside the setback and thus no room for residential development, as
can be seen clearly on the map itself, attached hereto as Exhibit A, and on Hays Exhibit
M, green folder {b), which shows the 100' setback Hays proposes); and
WHEREAS, the judgment in the quiet title action pertaining to Lat 28 (Superior
Court case No. 134664} determined that the fee simple ownership of Lot 28 is "subject
to" statements shown on the final Map for Sierra Foothills Subdivision No. 2, which
would include the statement pertaining to the 200' sewage disposal setback line as the
"200' leachfield free setback line"; and
WHEREAS, regarding the error which Hays argues was made resulting in a 200'
setback from the pond instead of a 100' setback, Hays states an page 17 of their written
presentation to the Board of Supervisors on July 21, 2009 {Exhibit P}, that "...if you
refuse to correct this UNREASONABLE error, the Hays' only alternative is to reduce the
pond's high water line by 100', making the pond a seasonal mud haIe...or, if need be,
draining the pond entirely, to eliminate the 200' setback, to get the sewage disposal
permit they are entitled to." Such action would be contrary to the restrictions of the Note
in question regarding reserving Lot 28 for fire protection and recreational purposes and
contrary to Hays' assertion on page 14 of the same written presentation that "They fully
understand and genuinely support the ongoing need of the pond's waters for the control
and suppression of wildfires in this area by CDF." The Board of Supervisors finds that it
is necessary to retain the Note to protect residents of the Subdivision from the loss of the
fire protection and recreation benefits it provides; and
WHEREAS, Hays assertion that eliminating the 200' setback is necessary in order
to be able to get a sewage disposal permit on Lat 28 amounts to an admission that
removal or modification of the note as to Lot 28 would not make the Lot developable for
residential purposes because there is insufficient area available outside the setback for
sewage disposal purposes; and
WHEREAS, Hays asserts that the U unclassified zoning regulations which are
7
applicable to Lot 28 allow residential uses and all that is needed to build a borne thereon
is a sewage disposal permit {Exhibit F page 14), however the use of said lot is further
regulated by the Subdivision Map Act, the Butte County subdivision ordinance (Chapter
20 of the Butte County Code), and the map approved, f led and recorded pursuant thereto,
including the Note on said map restricting the use of Lot 28 to non-residential uses; and
WHEREAS, Sierra Foothills Subdivisions No. 1 and No. 2 are part of the CSD,
and the operating permit for its water company, PWS O4-00091, (Exhibit F) indicates in
the fifth whereas on page 1 that the CSD's service area does not include Lots 18, 19, and
28; and
WHEREAS, Hays asserts that Lot 28 should be within the CSD's service area and
that Lat 28 is entitled to be served water by the CSD {Exhibit P, and oral presentation to
the Board of Supervisors on July 21, 2009 by Dan Hays, Jr.,} because it is within a 1,100
acre area intended to be served, and that the "removal" of Lot 2$ from the water
allocation list was "punitive." However, Hays has not submitted any agreement or
document verifying that the CSD ever agreed to provide such water service, and the CSD
and the Environmental Health Division assert that there are water supply problems and
the CSD cannot serve water to Lot 28 {letter from Paul Minasian to the Department of
Environmental Health Services, dated July 31, 2008, (Hayes Exhibit M, orange folder d},
and undated letter from Craig Erickson of EH to William C. Paris III, Hayes Exhibit M,
orange folder d, responding to Letter of July 2, 2008, from William C. Paris III, (Hayes
Exhibit M, yellow folder h}, and email from Jared Hancock to Cheryl Chaplin, dated
September 30, 2008 (Hays Exhibit M, yellow folder h}). The Board of Supervisors
therefore finds that appellant has not proved that Lot 28 is entitled to be served water by
the CSD; and
WHEREAS, in his presentation an July 21, 2009 on behalf of appellant, Dan
Hayes, Jr., asserted that the judgment in the quiet title action pertaining to Lot 28 {Exhibit
Q) determined that the Hays owned the fee simple to Lot 28 and that "no defendant has
any interest in the Property," and further asserted that the Court has thrown out the
argument that Lot 28 was for recreational purposes. However, said assertions
rnischaracterize the Court's judgment by ignoring the statement therein that the fee simple
was "subject to" the Note on the final Map for Sierra Foothills Subdivision No. 2, "Lot 28
is not approved for sewage disposal purposes; to be reserved in deeds far Fire Standby
and Recreational Purposes" {Exhibit Q}; and
WHEREAS, the Certificate of Correction process is governed by the Subdivision
Map Act, Government Cade §64469 to §66472.1 and the Butte County Subdivision
Ordinance, Butte County Code §20-91. To qualify for a Certificate of Correction, the
map must meet one of seven criteria. The purpose of the criteria is to allow correction of
errors on maps and to allow deletion of conditions under changed circumstances. The
changed circumstances allowing for the deletion of conditions must be agreed to by the
department that originally proposed the condition; and
WHEREAS, the Environmental Health Division, which proposed Conditions Nos,
20 & 21 and the Development Services Department which proposed Mitigation No. 4
which led to the Note being placed on the Map have not agreed to the Note being
removed; and
WHEREAS, in his presentation on July 21, 2009 on behalf of appellant, Dan
Hayes, Jr., asserted that a Certificate of Correction should be granted under both
subsections {f} and (g) of Government Code Section 66469. Subsection {~ provides that
a final map may be amended by a Certificate of Correction "To correct any additional
information filed or recorded pursuant to Section 66434.2, if the correction does not
...alter any right, title, or interest in the real property reflected on the recorded map."
Government Cade Section 66434.2 deals with information on a separate dacurnent or
additional map sheet which indicates its relationship to the final map and is not applicable
to the Note in question, which is on the final map itself. Subsection {g) (and Butte
County Code Section 20-91 {a} (6)} provides that a final map may be amended by a
Certificate of Compliance to correct any other type of map error or omission as approved
by the county surveyor that does not affect any property right, including but not limited
to, lot numbers, acreage, street names, and identif cation of adjacent record maps.
Neither subsection (f) nor subsection (g} authorize the approval of a Certificate of
Compliance to remove the Note in question, because doing so would alter rights of
others, specifcally the owners of other lots in the Subdivision, to have Lot 28 available
for fire protection and recreation purposes. Furthermore, such a change is not among the
innocuous types of changes delineated in Subsection (g) and is of an entirely different
character. The Board of Supervisors has considered Hays assertion that because of the
Court's Judgment in Case No. 134664 there are no "recreation entitlements" in Lot 28,
however, this assertion ignores the fact that the Court's judgment specifically recognized
that the fee ownership of Lot 28 was subject to the Note "Lot 28 is not approved for
sewage disposal purposes; to be reserved in deeds for Fire Standby and Recreational
Purposes", (emphasis added); and
WHEREAS, Government Code Section 66472.1 and Butte County Code Section
20-91 (a)(7) allow a final map to be modified by a Certificate of Correction if, among
other thongs, the County f nds that "there are changes in circumstances" that make
conditions or mitigations "no longer appropriate or necessary" and the modifications do
not alter any right, title, or interest in the real property reflected on the recorded map.
The Board of Supervisors finds that there have not been changes in circumstances that
make the reservation of Lot 28 for f re protection and recreation purposes no longer
appropriate or necessary. On the contrary, there was testimony at the hearing by
residents of the Subdivision regarding the importance of the lake an Lot 28 for fire
protection and recreational purposes, including fishing. Furthermore, removal of the
reservation for fire protection and recreational purposes would alter rights of others,
specifically the owners of other lots in the Subdivision, to have Lot 28 available for f re
protection and recreation purposes. Therefore, a Certificate of Correction cannot be
approved pursuant to Government Cade Section 66472.1 and Butte County Code Section
20-91 (a){7}; and
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WHEREAS, Hays assert (Exhibit P page 18) that acceptance of the application
for a Certificate of Correction ". , .provides a pretty good indicator that numerous
circumstances and changes have occurred to the subdivision map since its original
recording... ," The Board of Supervisors disagrees and f nds that the mere acceptance of
an application does not constitute recognition that a change of circumstances has
occurred warranting approval of the application; and
WHEREAS, the Board of Supervisors has considered the application for
Certificate of Correction COR07-0002 for Dan and Jean Hays in accordance with
Government Code §664G9 to §66~L72.1 and Chapter 20, Subdivisions, of the Butte
County Code as to Lot 28 of Sierra Foothills Subdivision No. 2, also identified as
Assessor's Parcel Number 063-310-028; and
WHEREAS, said application was referred to various affected public and private
agencies, County departments, and referral agencies for review and comments; and
WHEREAS, the Board of Supervisors has considered the record herein, including
public comments, evidence and testimony that the pond continues to be required for fire
protection and was used for this purpose during fires occurring in 2008 (Exhibit I and the
fourth page of Exhibit J}, and a report from the Planning Division dated March 26, 2009,
along with a supplemental report dated July 21, 2009, pertaining to said application far
Certificate of Correction COR07-0002, and the documents submitted by Hays on July
21, 2009, lettered A through N; and
WHEREAS, the Board of Supervisors met on August 25, 2009 to consider
adoption of a resolution setting forth its findings and decision in this matter. However,
Dan Hays, Jr. informed the Board that he had not received a copy of the resolution and
requested time to review it. It was mutually agreed by Mr. Hays and the Board that the
matter should be continued until October 27, 2009.
NOW, THEREFORE, BE IT RESOLVED, that the Board of Supervisors:
Denies the application for Certificate of Correction COR07-0002 for Dan and
Jean Hays, based on the above Recitals, the findings contained therein, and the
following findings made in reliance thereon:
A. Lot 28 of Sierra Foothills Subdivision No. 2 was created as a
nonresidential parcel as demonstrated by the following: (1) its creation did
not comply with the Condition 21 requirement to provide a usable sewage
disposal area or merge it with a parcel that did provide such an area; (2) by
contrast, lots 8 and 9 as depicted on the tentative subdivision map were
merged pursuant to Condition 21 to create Lot 27, a residential lot; (3) the
language used in the Note pertaining to sewage disposal on Lot 28 is the
same as the language used in Condition 13 pertaining to Lots 18 and 19 of
Sierra Foothills Subdivision No. 1, which lots were created as
nonresidential parcels; (~) the Nate pertaining to Lot 28 was not
voluntarily placed on the map, but was required to justify the creation of
Lot 28 since it did not comply with Condition 21 and did not provide for
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sewage disposal; (5} Mitigation 4 requiring an available supply of water
from the pond for fire protection purposes justified creating Lot 28 for a
nonresidential purpose; (6) Lot 28 was distinguished from the 11
developable lots in Subdivision No. 2 as being one with an existing pond
to be used as a fire protection water storage facility in letters from the
Division of Environmental Health to the Division of Real Estate; and {7}
Lot 28 was not included in the discussion on sewage disposal, which only
discusses 11 developable lots, in the Division of Real Estate's Final
Subdivision Public Report. Since sewage disposal was not provided on
Lot 28, it should have been merged with another parcel that could provide
sewage disposal capability, in order to be utilized for residential purposes.
In the absence of such a merger, Lot 28 was created as a nonresidential
parcel, in this case for fire protection and recreation purposes.
B. Because Hays has not submitted and cannot submit proof of a sewage
disposal area on Lot 28, the Certificate of Correction application remains
incomplete and cannot be approved.
C. The Court's Judgment in the quiet title action, Superior Court Case No.
134464, is not a changed circumstance warranting removal or
modif cation of the Note regarding Lot 28 because the judgment qualifies
the Hays ownership interest in Lot 28 by stating it is subject to the
statements on the f nal Subdivision map, including the Note, "Lot 28 is not
approved far sewage disposal purposes; to be reserved in deeds for Fire
Standby and Recreational Purposes," and, although the Judgment states
"That no defendant has any interest in the Property adverse to
plaintiffslcross-defendants" said statement is qualified by the additional
statement "except as set Earth herein;" indicating that statements on the
Map, including the Note regarding Lot 28, may give defendants some
interest in the Property.
D. The application for Certificate of Correction did not include a request that
the setback far sewage disposal area be reduced from 200' to 100', the
request far such reduction made at the appeal hearing on July 21, 2009
was net timely, and the change cannot be made in any event for the further
reason that the correct setback is 200' as spawn on the Map. Furthermore,
the Judgment in Superior Court Case No. 134664 states that the Hays
ownership int~;rest in Lot 28 is subject to statements on the final
Subdivision map, which would include the note pertaining to the 200'
setback and indentifying it as the "200' leachf eld free setback line."
E. The applicant has not shown and cannot show changed circumstances far
the following reasons: {1} the pond located on Lot 28 is still required far
fire protection purposes and still requires a 200' leachfield free setback
around it; and (2) there are no ether circumstances that can be shown to
have changed that would justify converting Lot 28 into a residential
parcel.
F. The Certificate of Correction process is net the correct process to remove
the Note pertaining to Lot 28 because the applicant has not shown and
cannot show compliance with any of the specific criteria required for the
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adoption of a Certificate of Correction specified in Government Code
§66469 & §66472.1 and Butte County Code §20-91.
DULY PASSED AND ADOPTED this 27`x' day of October, 2009, by the following vote:
AYES: Supervisors Dolan, Kirk, Lambent, Yamaguchi, and Chair Connelly
NOES: None
ABSENT: None
ABSTAIN: None
Bill Connelly, Chair
Butte County Board of Supervisors
ATTEST:
Gregory G ia, Interim Chief
Admi ' t`rat' e ff er and Cler f t Board
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G:IRESOLI~TIONS1Hays COR Board Res lution 4.doc
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