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HomeMy WebLinkAbout17-119 I r, r I. NB r/ � //I y 1 J ,urfil/6%/1 /fr ,'r ri ryaY,a .✓,r „r% r. rr:.,�i�, /,r ✓; ;.„ -,.,,p;a.r r,7 ,, ,- - , � IG r” ,,✓r l/a ��r�' � i��I � i.r ,�6,/il,r�l�il�� r� )! '��� �7� �/ � i� �r ✓�i�i,�,�%��/l,�u�Jl�i�/,JlJ �fr�l�,r�,�1e, 9 /1 � 1, V . � r , i" ✓ rr � r � .,N�I�,I�iI�%Ga �/i//�/�l�,r, fp„-,���.1�/,/fi�/�rr���,a,.,,�ir�✓/��/�t�c��i�r� ����„1� Resolution No. 17-119 RESOLUTION OF THE BUTTE COUNTY"BOARD OF SUPERVISORS DENYING TENTATIVE SUBDIVSION MAP TSM16-0002 WHEREAS, Nels. Leen has applied for a Tentative Subdivision Map, TSM16-0002, to divide an approximately 18.5 acre area zoned VLDR (Very Low Density Residential) located on Assessor's Parcel Numbers 0139-370-019, 039-370-068 and 039-090-061 into 15 parcels; and WHEREAS,the project site is located at 1232 Stanley Avenue, on the south side of Stanley Avenue,% mile east of Dayton Road, in the unincorporated area of Butte County south of the City of Chico, on the Agricultural Side of the Chico Area Greenline; and WHEREAS, parcels surrounding the project site consist of single family residences and agricultural uses on parcels zoned VLDR to the north and east, a walnut orchard on a 146 acre parcel zoned Agriculture to the south, and a mobile home park to the west; and WHEREAS,the orchard to the south is under a Williamson Act contract and has a recorded agricultural easement held by the Northern California Regional Land Trust that requires the land to remain in agricultural use in perpetuity; and WHEREAS, the project proposes a reduction in the 300 foot agricultural buffer setback to 150 feet although the application required by Butte County Code Section 24-84C was not submitted; and WHEREAS,a duly noticed public hearing was held at the Planning Commission on March 23, 2017; and WHEREAS,the Planning Commission, after considering public comments and a report from the Planning Division, adopted Resolution PC1.7-06 which determined that findings 1, 2, and 3, as required pursuant to Butte County Code Section 24-84F to grant an exception to the agricultural buffer setback, could not be made and denied the Tentative Subdivision Map on a 3 — 1 vote because it was inconsistent with the,general plan and not physically suitable for the use and density proposed; and WHEREAS, Nels Leen timely appealed the Planning Commission denial to the Board of Supervisors; and WHEREAS, a duly noticed public hearing was held at the Board of Supervisors on June 13, 2017; and WHEREAS,at the hearing,the Board received information from staff,took public testimony from sixteen members of the public, and continued the hearing to July 25, 2017; and WHEREAS, the Applicant submitted two additional maps to the Board for consideration at the July 25, 2017 meeting: one that modified the original map by establishing a 75 foot building envelope on each proposed parcel with agricultural buffer setbacks ranging from about 155 feet to 261 feet, as well as showing five areas at which the riparian vegetation along Comanche Creek would be augmented; and one showing eighteen parcels clustered outside of the 300 foot agricultural buffer setback; and WHEREAS, a duly noticed public hearing was held on July 25, 2017 at which the Board of Supervisors considered reports from staff, public comments,the record and decision of the Planning Commission, the additional maps, and the applicant's request to reduce the 300 foot agricultural buffer setback to 150 feet or about 155 feet depending on the map; and WHEREAS,the State Subdivision Map Act,the Butte County Subdivision Ordinance, and the Butte County Zoning Ordinance set forth findings that need to be made to approve or deny a subdivision map. NOW,THEREFORE, BE IT RESOLVED,that the Board of Supervisors hereby takes the following actions: I. Finds that testimony and evidence presented at the June 13, 2017 hearing shows that reducing the agricultural buffer setback from 300 feet to 150 feet would have an impact on adjacent agricultural operations on land zoned Agriculture. A. Louie B. Mendoza,Jr., Butte County Agricultural Commissioner,stated that after reviewing the project and the adjacent walnut orchard operation to the south of the project a reduction of the agricultural buffer setback to 150 feet would impact the orchard operation. He based his determination on the crop types, prevailing winds, agricultural practices, and other relevant factors. In this case, the crop type is an existing walnut orchard with trees extending to the property boundary with the project;the prevailing winds are from the south; the trees are oriented in rows in a north to south direction so the winds more easily carry dust, odors, and pesticide drift from the orchard to the project; the orchard is sprayed by aerial application using helicopters which will give rise to noise heard on the project site. Because of these factors,the Agricultural Commissioner recommended that there should be a 300 foot agricultural buffer setback applied to the project in order to protect the adjacent walnut orchard and that a reduction in the agricultural buffer setback to 150 feet would not be adequate protection for the adjacent walnut orchard. B. Most of the members of the public,including several who have detailed knowledge of and experience with agriculture and the adjacent orchard, who testified at the hearing provided information that a reduced agricultural buffer setback would impact adjacent agricultural operations: i. James Davidson has a bachelor's degree in agronomy from Chico State, has been an agricultural consultant for 36 years for orchard and row crops, and farms an organic mandarin orchard on the east border of the project. He provided the following information:the 300 foot buffer was not arbitrarily determined; it is based on pesticide labeling and normal agricultural practices;the project will result in a modification to the adjacent agricultural practice; while the trailer park only impacts a small portion of the orchard, the project will impact 69%of the northern border of the orchard; Comanche Creek has not been maintained since he moved to area in 1989;there are dozens of gaps in its vegetative curtain;the curtain is too short to offer protection;the curtain is made up of deciduous species; the curtain contains many damaged and dying trees; the curtain is likely to be reduced on the residential side; the orchard's orientation is north to south;the orchard property will remain in agriculture in perpetuity; the Board's decision will affect the agricultural operation forever and perhaps put it in jeopardy. ii. Rodney Carter is an agricultural consultant and an Accredited Farm Manager(AFM)working with farmers since 1971. He expressed the following beliefs: not applying the full 300 foot buffer setback will lead to future conflicts between residential owners and the orchard property over the farming practices protected by the Right to Farm Ordinance; signing waivers does not reduce conflicts or prevent legal actions; the best way to prevent conflict is to fully impose the agricultural buffer setback;there will likely be noise, dust, odors,over flight of helicopters,and use of equipment which could disturb adjacent residential owners; the project is likely to cause conflict unless the Board takes all possible steps to protect agricultural uses and agricultural lands in Butte County;the Right to Farm Ordinance is intended to protect agricultural uses, not subdivisions;there is not sufficient evidence that there will be no impact to the agricultural use so there is no reason to grant the exception; it is prudent to follow the advice of the Agricultural Commissioner. iii. George Rafe is a retired farmer who has farmed for 22 years. He stated he has lived in his home for 4 years which is 1,500 feet from Comanche Creek and the orchard. The area is dusty and noisy year round;the orchard creates a lot of dust; he can create dust clouds by simply walking on the road by his home; if future residential owners have a pool, it will become muddy; people who have never lived near an orchard are in for a rude awakening;the Board should maintain the 300 foot buffer setback and protect agricultural land. iv. Rory Crowley farms the adjacent walnut orchard with George Nicholas; he intends to farm the orchard for the next 30 years; the project does not comply with the required exception findings because the riparian vegetation is not an adequate buffer; as an agricultural professional, he believes the riparian vegetation will continue to deteriorate; the applicant proposes to construct an additional buffer, but this requires proper consultation, and there is no evidence that it occurred. v. George Nicholas owns and farms the adjacent walnut orchard which is 146 acres and cannot be divided; he purchased it 12 years ago; he replanted the trees in 2011; he placed the orchard under an agricultural easement with the Northern California Regional Land Trust. He believes dust and noise will very easily permeate the vegetative buffer along Comanche Creek so the 300 foot buffer setback should be maintained. He notes that the applicant has alternatives for the project. vi. David Gallo has a Ph.D. in Economics,teaches at California State University, Chico, specializes in environmental economics,and has, among other things, examined the restoration of riparian habitat along a number of California rivers. He made the following points:there is no evidence that deciduous trees on the border of a property will provide a screen that would justify reducing the 300 foot buffer setback to 150 feet; prior studies on vegetative screens were done using evergreen trees, not deciduous trees;the studies examined the ability of vegetative screens to reduce emissions of exhaust fans on poultry farms;the vegetative screens consisted of 3 rows of evergreen trees which reduced emissions by 50%;there are 3 key points; an effective vegetative screen requires multiple rows of plantings made of dense evergreen trees; there is no evidence that deciduous trees perform the same functions; and vegetative screens need to be installed close to the source of emissions; separately, no vegetative screen will block noise according to studies, but may only reduce noise by 6 dbs. vii. No one addressing the Board offered evidence that a reduction of the agricultural buffer setback to 150 feet would sufficiently diminish the dust, noise, odors,or pesticide spray from the orchard coming onto the project site.The Applicant, Nels Leen, and his representative,Jim Stevens, both acknowledged not applying for an exception to the 300 foot agricultural buffer setback. Mr. Stevens acknowledged that there will be times when the residential parcels will be inconvenienced by pesticide spray and dust, but he characterized the remaining time as good country living. Both Mr. Stevens and Mr. Leen stated they had worked closely with staff to arrive at a workable project, and both stated that Mr. Leen had only purchased the property after receiving what he understood to be assurances from staff that the project would go forward as proposed. In response, County Counsel indicated that there could be no certainty based on staff's assurances, but only based on the actions of the decision makers. Mr. Stevens acknowledged that County Counsel was correct that one could not rely on staff assurances.The Applicant proposed adding additional vegetation to the existing riparian vegetation along Comanche Creek to augment its ability to act as a buffer. He also proposed requiring purchasers to waive their ability to sue concerning nuisance claims against the orchard. The sole supporting document for a reduction in the buffer setback was written by a staff member in the Agricultural Commissioner's Office, but the Agricultural Commissioner indicated that it did not reflect the position of the Agricultural Commissioner and that it was simply a consultation and not a response to a request for an exception to the 300 foot agricultural buffer setback. II. Finds that the project as proposed does not conform to the Butte County General Plan's protection of agriculture. Conformance with a County's General Plan is required under the Subdivision Map Act, Government Code Section 66473.5, and the Butte County Subdivision Ordinance, Butte County Code Sections 20-65(A)(2)(a)&20-65.5(B)(2).The General Plan contains many goals, policies,and actions,some of which the project complies with, however, there are several goals and policies relating to agriculture that the project does not conform to.These goals and policies are discussed below: A. LU-131.1 The County shall protect and conserve land that is used for agricultural purposes, including cropland and grazing land. The project is not consistent with this policy to the extent residential development will impair or impact agricultural operations, as shown in the testimony received and by the inability to make the exception findings required to reduce the agricultural buffer setback to 150 feet, because it may undermine the ability to continue agricultural operations and not protect and conserve this land that is used for agricultural purposes. B. LU-P1.3 The County shall minimize potential conflicts between agricultural and urban uses. Allowing residences as close as 150 feet to the orchard operation is likely to create and exacerbate potential conflicts between agricultural and urban uses, as shown in the testimony received and by the inability to make the exception findings required to reduce the agricultural buffer setback to 150 feet, not minimize such potential conflicts. C. LU-P2.5 The County shall promote clustered development in rural areas. The Applicant has not requested clustered development, but the County has acknowledged the Applicant has the ability to cluster development under the existing zoning rules. The Applicant has additional options to develop the project site that have not yet been explored. For example, clustered development could allow similar residential density while maintaining the 300 foot agricultural buffer setback. D. LU-P13.7 Conserve and protect for agricultural use the lands in the Chico area that are situated on the Agricultural Side of the Chico Area Greenline. This policy indicates that preference should be given to agricultural uses on the Agricultural Side if the Chico Area Greenline. Both the project and the adjacent orchard operation are located on the Agricultural Side of the Chico Area Greenline. Where there is a conflict between the two, the policy indicates the agricultural use should be conserved and protected. E. LU-P13.8 Accommodate future urban and suburban growth that occurs in the Chico area of Butte County on lands situated in the Urban Side of Chico Area Greenline. On the Residential Side of the Chico Area Greenline, it is the future urban and suburban growth that should be accommodated. In this case, the residential project is on the wrong side of the Greenline to receive this accommodation. F. Goal AG-1 Protect, maintain, promote and enhance Butte County's agriculture uses and resources, a major source of food, employment and income in Butte County. As shown in the testimony received and by the inability to make the exception findings required to reduce the agricultural buffer setback to 150 feet, the project does not protect, maintain, promote and enhance agricultural uses, but places them in jeopardy. G. Goal AG-2 Protect Butte County's agricultural lands from conversion to non-agricultural uses. Locating the residential development as close to the orchard operation as proposed could undermine the ability to maintain the orchard use, and, if forming becomes less viable, it may lead to the conversion of agricultural lands to non-agricultural uses. H. AG-P2.6 The County shall retain and protect agricultural lands through the use of proactive land use techniques, including, but not limited to, the following: a. Clustered development projects, allowing a "clustering" of permitted densities in a compact configuration in order to protect agricultural land. b. Density bonuses, permitting increased density on developable land in exchange for protection of agricultural land. The Applicant has additional options to develop the project site. It could be at a lesser density or at the same density by utilizing clustered development. I. Goal AG-5 Reduce conflicts between urban and agricultural uses and between habitat mitigation banking and agricultural uses. Allowing residences as close as 150 feet from the orchard operation is unlikely to reduce conflicts between urban and agricultural uses, as shown in the testimony received and by the inability to make the exception findings required to reduce the agricultural buffer setback to 150 feet. J. AG-P5.2 Urban development and habitat mitigation banking uses shall not limit the financial sustainability of agricultural operations. Allowing residential development to be placed as close as 150 feet from the orchard operation may impact the orchard operation and limit the financial sustainability of the orchard operation. K. AG-P5.3 The Zoning Ordinance shall require that a buffer be established on property proposed for residential development in order to protect lands designated Agriculture by the General Plan and zoned Agriculture under the Zoning Ordinance from incompatible use conflicts.The desired standard shall be 300 feet, but may be adjusted to address unusual circumstances.* The policy makes clear that a buffer is required to protect lands designated and zoned Agriculture, which the orchard operation is, and states that the desired standard is 300 feet. Only in unusual circumstances should it be reduced.As required, this policy has been incorporated into the Zoning Ordinance at Butte County Code Section 24-83. In this case, the Applicant did not apply for an exception to reduce the buffer setback as specified at Butte County Code Section 24-84, and the findings, as discussed below, which would justify a reduction in the buffer setback to 150 feet cannot be made. This policy constitutes a mitigation, as shown by the asterisk, and must be followed as explained in the Butte County General Plan, introduction, Section E, How to Use this General Plan, second paragraph, on page 14. L. AG-P5.3.3 The Zoning Ordinance shall require that a buffer be established pursuant to Policy AG- P5.3 on property proposed for residential development requiring discretionary approval in order to protect existing Williamson Act contracts (i.e. those contracts that are in effect at the time of adoption of this policy)from incompatible use conflicts.The desired standard shall be 300 feet, but may be adjusted to address unusual circumstances. This policy has been incorporated into the Zoning Ordinance at Butte County Code Section 24-82. The policy and Zoning Ordinance Section provide an additional basis for an agricultural buffer setback. Since the orchard operation is also under a Williamson Act contract, it would be entitled to a 300 foot agricultural buffer setback on this basis as well. III. Finds that although the project site is zoned Very Low Density Residential (VLDR),which allows for the creation of one acre parcels,the ability to divide a parcel remains dependent on the circumstances. There may be numerous potential constraints, including, but not limited to, biological,geologic,cultural, aesthetic, and agricultural,that could inhibit the ability to divide a parcel to the maximum density. In this case,the project does not comply with applicable general plan and zoning standards in effect when the application was determined to be complete, as shown above.The Applicant can either follow the standard agricultural buffer setback or the extent of the agricultural constraint needs to be determined by applying for an exception and seeing if the findings to grant the exception can be made. As shown below,the findings to reduce the 300 foot agricultural buffer setback to 150 feet cannot be made. In such a case, a modification of the project may mitigate the agricultural constraints.The Applicant may pursue additional options to develop the project site that do not require a reduction in the buffer setback or that require a lesser reduction in the buffer setback provided the required findings can be made. IV. Denies, although no formal application was made, the Applicant's request for an exception, pursuant to Butte County Code Chapter 24, Section 24-$4F, to adjust the 300 foot agricultural buffer setback to 150 feet from agriculturally zoned properties along the southern property boundary with the following required findings: A. The adjustment will not result in a modification to adjacent agricultural practices. Based on the testimony and evidence received at the hearing as set forth above, the Board of Supervisors learned that the orchard to the south is actively farmed up to the property line between it and Assessor's Parcel Number 039-090-061 and that the layout of the orchard and the farming practices used would impact residential development occurring less than 300 feet from the property line which could give rise to conflicts between the proposed residential uses and the existing agricultural use which could result in a modification of the existing agricultural practices. B. Unusual circumstances are present on the subject properties or surrounding properties that render the three hundred (300) foot setback requirement infeasible or unnecessary. Unusual circumstances include, but are not limited to, parcel size and shape, the location of existing residences, infrastructure and other existing uses, and natural physical features and topography. Assessor's Parcel Number 039-090-061 is located north of an abutting existing walnut orchard that is zoned AG-40 (Agriculture —40-acre minimum). The project parcel is irregularly shaped because its southern property line is established by Comanche Creek. The parcel is currently vacant and does not have any existing residences, infrastructure, or other existing uses that would give rise to unusual circumstances. The parcel can accommodate residential development with the full 300 foot agricultural buffersetback, but not at the density proposed by TSM 16-0002. Thus, neither the shape of the parcel nor any uses on it give rise to unusual circumstances. C. The proposed dwelling is placed the greatest distance possible from all property lines abutting an agriculture zone or other location that presents the least detriment to agricultural practices on adjacent properties. The proposed locations of the dwellings are not the greatest distance possible from the property line with the orchard to the south. Dwellings con be locotedforther away from the orchard to the south than the 150 foot reduced agricultural buffer setback. The full 30'0 foot agricultural buffer setback con be maintained, although the density of residential development would not be as great as proposed unless a clustered development were proposed. A less reduced agricultural buffer setback might also be possible if the required findings con be made. D. The location of the proposed residence does not interfere with easements, septic systems, or prior conditions of approval applicable to the subject property. The testimony received by the Board of Supervisors indicated that there was no issue concerning easements, septic systems, or prior conditions of approval, V. Denies Tentative Subdivision Map TSM16-01002 for Nels Leen with the following findings: A. Pursuant to Government Code Section 66474(b) and Butte County Code Section 20-65.5(b)(2), the proposed map is not consistent with the applicable general plan because it does not incorporate sufficient protection, such as the required 300 foot agricultural buffer setback or a lesser reduction that can be justified by making the required findings,for the actively farmed adjacent walnut orchard on land zoned Agriculture. General Plan Goals and Policies, as discussed above, require that the setback distance for residences, including accessory or second dwelling units, within an agricultural buffer area shall be 300feet from any property line that abuts an Agriculture zone unless the setback can be adjusted without resulting in a modification to the agricultural use based upon the Agricultural Buffer Guidelines as adopted by the Board of Supervisors on December 16,2008(and as amended)or an Unusual Circumstance Review in Section 24-84F(Exceptions to Agricultural Buffer Setback). The proposed mop does not incorporate the required 300 foot agricultural buffer setback, and the findings to grant on exception to reduce the buffer setback to 150 feet cannot be made, as was shown above. B. Pursuant to Government Code Section 66474(c) & (d) and Butte County Code Section 20-65.5(b)(3) & (4), the project site is not physically suitable for the use and density of the proposed development. The size and shape of Assessor's Parcel Number 039-090-061 and its location adjacent to an existing walnut orchard in the Agriculture zone render it physically unsuitable for the density of the proposed residential subdivision unless it is a clustered development. The parcel could be developed at a lower density while still maintaining the required agricultural buffer setback or a reduced agricultural buffer setback for which the required findings con be made. PASSED AND ADOPTED by the Butte County Board of Supervisors this 25th day of July, 2017, by the following vote: AYES:Supervisors Kirk, Lambert,Teeter, and Chair Connelly NOES: Supervisor Wahl ABSENT: None ABSTAIN: None Bill Connelly,Chair Butte County Boardl of Supervisors ATTEST: Paul Hahn, Chief Administrative Officer and Clerk of the Board of Supervisors By: A A Deputy