HomeMy WebLinkAboutBoard Correspondence - Butte Reg Conservation Plan Cox, Castle & Nicholson LLP
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R. Clark Morrison
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cniorrisc)n0coxcastle.corn
File No. 74936
June 8, 2016
VIA E-MAIL & U.S. MAIL
Chris Devine JU14 1
Planning Manager oRaAUE,CAUVORNA
Butte County Association of Governinents
326 Huss Drive, Suite 150
Chico, CA 95928
Re: Comments on Draft Butte Regional Conservation Plan and the Draft Butte
Regional Conservation Plan Environmental Impact Report/Environmental
Impact Statement
Dear Mr. Devine:
On behalf of Epick Homes and Bruce Road Associates L.P. (collectively,
"Epick"), we submit the following comments on the Draft Butte Regional Conservation Plan
("BRCP") and the Draft Butte Regional Conservation Plan Environmental Impact
Report/Environmental Impact Statement("BRCP EIR/EIS"). We have significant concerns
about the BRCP and, in particular,the BRCP's preclusive effect on Epick's ability to develop its
Stonegate Subdivision Project ("Project") on the Schmidbauer Property ("Property") in the City
of Chico ("'City"). Epick cannot support the FRCP or any other large-scale habitat conservation
planning effort that would preclude development of lands already identified by the local
goveriunetit as appropriate for development.
Background
Epick's comments are best understood in the context of the Project's background
and Epick's current and anticipated efforts to secure local, state, and fed6ral entitlements and
approvals for the Project.
1 The Proiect Is Infill Development and Located Within an Area Desi Hated
by the City for Residential and Mixed-Use Development,
The Property consists of approximately 313 acres and is located on the southeast
side of the City, bounded by E. 201h Street on the north, a single family residential subdivision
(Skypark Subdivision) on the west, Skyway Road on the south, and the Potter Road bicycle path
on the east, The Property is generally surrounded by existing development, with residential uses
to the west and north, and retail uses to the southwest, Extensive sewer, water, and storm drain
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Chris Devine
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infrastructure improvements have been installed adjacent to the Property in anticipation that
development would take place on the Property.
The Property is effectively surrounded by existing or proposed development. For
example, the property directly east of the Project site is identified in the 2030 General Plan as the
Doe Mill/Honey Run Special Planning Area, which includes a"village core," retail, office, and a
variety of residential densities. The property directly north of the Project site is the 270-acre
master planned community known as the Meriam Park Project, which includes 3,200 residential
units and 250,000 square feet of commercial use. In addition, the City's capital improvement
program for Bruce Road calls for a widening of that road to four lanes between Skyway Road
and State Highway 32 to serve the development anticipated in southeast Chico. Given its
surroundings and the City's expectations regarding capital improvements in the area, the Project
is clearly infill development. Promoting infill development of this kind is consistent with sound
land use and planning principles—principles that are enshrined in the City's 2030 General Plan.
(See, e.g., General Plan Goal LU-4 (requiring the City to "promote compatible infill
development"); General Plan Policy LU-4.2 (Infill Compatibility) (requiring the City to "support
infill development, redevelopment, and rehabilitation projects that are compatible with
surrounding properties and neighborhoods.").)
The City's 2030 General Plan and zoning ordinance contemplate that the Project
site will be developed. The General Plan land use designations for the Property are primarily
Low Density Residential (LDR) and Very Low Density.Residential (VLDR). Other portions of
the Property are designated Office Mixed Use (OMU) and Medium High Density Residential
(MHDR). The Property is located within a Resource Constraint Overlay (RCO), which is
applied in conjunction with the underlying land use designations authorizing development.
Although RCO areas are assumed to be developed with less density and in coordination with
resource agencies having permitting authority, the General Plan makes clear that these areas may
be developed at the maximum development potential allowed by the underlying land use
designation. (See, e.g., City General Plan p.3-21 (explaining that properties with the RCO
designation can still be developed at the "maximum development potential allowed by the
underlying land use designation").) The Property is similarly zoned to allow for a combination
of single-family residential,multi-family and commercial land uses.
2. E ick Has Expended, and Will Continue to Expend, Significant Time and
Costs to Process Entitlements and Approvals for the Project.
As currently proposed, the Stonegate Subdivision Project (Vesting Tentative Map
Application S 15-05) would include a total of 460 single-family residential lots, 35.2 acres of
commercial uses, 12.4 acres of multi-family uses, and 2.6 acres of park. Over a third of the
Property would not be impacted by development— 108.2 acres would be open space, of which
104.9 acres would be a preserve. The Project will have the same uses as contemplated by the
current zoning, but with a rearranged configuration to provide transitions from one use to another
use. Because of this new configuration, the Project will require certain local government land
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use entitlements, including a General Plan Amendment,rezoning, and a tentative map for
subdivision. Epick has submitted applications to the City for these entitlements and received a
completeness letter on April 7, 2016 pursuant to the Permit Streamlining Act.
Epick anticipates it will need certain state and federal approvals for the Project.
Epick will submit to the U.S. Army Corps of Engineers an application for a Clean Water Act
Section 404 permit in June 2016. Epick expects that the Corps will initiative Section 7
consultation with the U.S. Fish and Wildlife Service shortly after the Corps receives Epick's
permit application. In anticipation of beginning these federal processes in earnest, Epick's
biologist has conducted a number of species surveys and wetland evaluations to be used as part
of these processes. Epick also anticipates meeting soon with the California Department of Fish
and Wildlife and the Regional Water Quality Control Board to begin the relevant state permitting
processes. In sum, Epick is expending significant time and costs to lay the groundwork for the
federal and state approvals necessary for the Project.
We note that the Property is not designated as critical habitat for any listed
species. In addition, development on and near the Property has been the subject of U.S. Fish and
Wildlife Service Biological Opinions. In 1995, the Service issued a Biological Opinion(File No.
1-1-93-F-54) for the Stonegate Residential Development Project to be constructed on the
Property. This project would have included 714 single-family and apartment dwelling units,
60,000 square feet of office building, a public park, and all necessary infrastructure needed to
serve the project. After evaluating the project's potential impacts to Butte County meadowfoam,
vernal pool tadpole shrimp, and vernal pool fairy shrimp, the Service concluded that the project
would not jeopardize the continued existence of these species.l More recently, in 2003 the
Service issued a Biological Opinion (File No. 1-1-02-F-0289) for the Canyon View High School
Project to be constructed on land southwest of and adjacent to the Property. The Service also
evaluated that project's potential impacts to Butte County meadowfoam, vernal pool tadpole
shrimp, and vernal pool fairy shrimp. Like the Service's conclusion in the 1995 Biological
Opinion, the Service concluded in this Biological Opinion that the Canyon View High School
Project would not jeopardize the continued existence of these species.
Comments
Like many other stakeholders and property owners who have commented on or
objected to the BRCP and the BRCP EIR/EIS, Epick has a number of significant concerns
regarding the overall implementation and approach of the BRCP and the adequacy of the BRCP
EIR/EIS. Rather than repeating the same issues raised by those other commenters in
correspondence to the Butte County Association of Governments ("BCAG"), Epick hereby joins
in and incorporates by reference that correspondence, including but not limited to
The Service also concluded that even though the project occurs within historical range of the Conservancy fairy shrimp,the project was not
likely to adversely affect this species because no Conservancy fairy shrimp were found during crustacean surveys.
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correspondence from the Chico Builders Association to BCAG dated May 6, 2016, and June 7,
2016 objecting to the legal and factual adequacy of the BRCP and the BRCP EIR/EIS.z
1. The BRCP Incorrectly Assumes the Property.Is Not Within a"Footprint of
Planned Development."
To evaluate impacts on natural communities and covered species, the BRCP relies
on the county and city general plans within the BRCP area to identify permanent development
footprints. On its face, the concept seems simple. Because BCAG does not know where
development is assumed to occur within the BRCP area, it uses the county's and cities' general
plans and other planning documents to determine where development projects are assumed to be
implemented. To standardize the land use designations across these general plans so that they fit
within the BRCP land use categories, the BRCP includes tables to "crosswalk" each of the local
agency general plan land use designations to the BRCP's land use designations. For example, if
a city's general plan identifies properties as Low Density Residential (LDR) or Very Low
Density Residential (VLDR), then the BRCP is to identify those properties as having similar
residential uses. This is what enables the BRCP to identify "locations within the Plan Area
where impacts of future urban development . . . are expected to be incurred based on the Local
Agency general plans." (BRCP p.2-5.) These locations, i.e.,those locations where the local
agency expects development, are identified in the BRCP as "Footprints of Planned
Development."
As discussed above, the Property's land use designations include Low Density
Residential (LDR), Very Low Density Residential (VLDR), Office Mixed Use (OMU), and
Medium High Density Residential (MHDR). Clearly, the City expects development to occur on
the Property, as evidenced by the City's General Plan. The Property therefore should be
included within a"Footprint of Planned Development." However, the BRCP incorrectly depicts
the Property as being located outside a"Footprint of Planned Development." (BRCP Figure 4-
46.) Inexplicably,the BRCP completely disregards the City's General Plan designation for the
Property. This is flatly inconsistent with the BRCP's own directive to "cover all land use
designations from all Local Agency general plans that could impact covered species and covered
natural communities." (BRCP p.2-5 (emphasis added).)
Because of this oversight, the BRCP effectively singles out the Property for unfair
treatment and unjust burdens. For example, the BRCP does not appear to extend any incidental
take coverage to activities implemented on the Property,3 even though the Property is located
2 In particular,Epick concurs with and joins in the Chico Builders Association's comments and objections as to legal inadequacies in the BRCP
EIRIEIS related to issues including,but not limited to,the Proposed Action,Alternatives,Conservation Measures,and topical areas such as
Biological Resources;Land Use Planning and Consistency,and Population,Housing,Socioeconomics,and Environmental Justice,
3 Unfortunately,the BRCP does not explain whether activities implemented on properties that are not located within"development footprints"
are provided incidental take coverage. The BRCP certainly suggests they are not covered. For example,the BRCP describes the
assumptions,used to calculate impacts and states: "The acreage of natural communities and modeled and mapped covered species habitats
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within an Urban Permit Area and on land that the City anticipates will be developed. Because
the BRCP improperly excludes the Property from a"Footprint of Planned Development,"the
BRCP has effectively excluded any development on the Property from the scope of Covered
Activities provided incidental take coverage under the BRCP. This is an untenable result given
the City's plain expectation that the Property would be developed for significant residential and
other uses.
The BRCP's failure to acknowledge the City's overall vision for development is
especially problematic when viewed in the context of the timing horizon for the BRCP as
compared to the City's General Plan. The BRCP is likely to cause the City to run out of
developable land in 20 years or less. The BRCP is intended to be a 50-year permitting
commitment. For those 50 years, the BRCP has divided the County into areas where the BRCP
is more permissive about development, and areas where the BRCP generally restricts or prohibits
development. (BRCP Figures 2-1 and 2-2.) But the City's General Plan, upon which the
BRCP's 50-year development projections are in part based, was adopted in 2011 and plans out
only to 2030. When the City adopts its next General Plan Update, the BRCP likely would
prohibit the City from designating new areas for development for at least the next 30 years,
because those areas would be outside the BRCP's development projections.
2. The BRCP Improperly Includes the Prgpgqy PropertyWithin the Chico Butte
County Meadowfoam Preserve and Thus Unfairly Precludes
Development on the Property.
Another unfair and unjust burden created by the BRCP is its inclusion of the
Property within the Chico Butte County Meadow-foam Preserve ("Preserve"). According to the
BRCP, the Preserve is designed to "protect all occurrences and supporting habitat that are
necessary for the survival and recovery of Butte County meadowfoam." (BRCP p.4.302; see
also BRCP pp.5-66 to 5-67.) Because of its location within the Preserve,the BRCP assumes
that none of the meadowfoam occurrences within the Property will be impacted. For example,
Table 4-10 lists these occurrences as Schmidbauer, Schmidbauer SE, and Schmidbauer W, and
states that"no direct effects" or"indirect effects" will occur, except in connection with the
potential for indirect effects related to planned future development adjacent to the Property.
(BRCP Tbl. 4-10.) In addition, Table 5-22 indicates that the "outcome" of the BRCP's
conservation efforts is the permanent"protection" of the occurrences of Butte County
meadowfoam on the Property. (BRCP Tbl. 5-22.) All of this suggests the BRCP contemplates
the Property will never be developed.
This result is directly contrary to the BRCP's implicit principle that the BRCP be
consistent with the overall land use planning efforts of the local agencies with jurisdiction in the
BRCP area. (BRCP p.2-5 (explaining that BRCP land use categories were developed to
that could be directly and indirectly affected by permanent development covered activities within and outside the UPAS was assessed based
on theplannedfuturepernmuent developmentfootpr•ints...." (BRCP p.4-22(emphasis added).) The inescapable conclusion is that the
BRCP assumed an activity woDld be covered for incidental take only if that activity occurred within an area identified as a"Footprint of
Planned Development"in the BRCP.
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essentially match the land use designations of the local agencies' general plans within the BRCP
area).) By including the Property within the Preserve, the BRCP is flatly inconsistent with the
City's General Plan. As noted above, the City has designated the Property for residential and
other development. Even application of the Resource Constraint Overlay to the Property
assumes that Epick would submit development applications for the Property, and that
development consistent with the land use designations would occur. Action LU-2.5.1 in the
City's General Plan states: "For development proposals on properties with the Resource
Constraint Overlay, . . . land owners must conduct detailed environmental studies, adhere to
CEQA requirements, and coordinate with resource agencies to determine actual development
potential." (City General Plan p.3-31.) Consistent with these land use controls, Epick is
proposing to develop the Property with residential and mixed-use development, and to preserve
as open space a significant amount of land to protect Butte County meadowfoam and other
resources. By placing the entire Property within the Preserve, the BRCP directly conflicts with
the City's General Plan.
Particularly troubling to Epick is the following cavalier, single-sentence
paragraph in the BRCP: "Acquisition of lands through fee title or conservation easement within
the boundaries of the [Preserve] . . . will be completed by Year 10 of BRCP Implementation."
(BRCP p.8-11.) Epick is not interested in selling the Property or granting a conservation
easement on the Property. Epick expects to pursue development of its Project, consistent with
the City's vision for development of the Property as evidenced by its General Plan. Because of
this expectation, Epick has already invested large amounts of time and money in connection with
the approvals for the Project and fully expects to pursue this process to fruition.
Moreover, this concept in the BRCP ignores the practical realities associated with
the establishment of the Preserve. The BRCP states that"BCAG will establish" a preserve for
meadowfoam. (BRCP p.5-66.) This is inaccurate. The BRCP intends for the City to acquire the
property necessary to create the Preserve. Much of the property contemplated for the Preserve is
designated for development by the City's General Plan, and thus likely is quite valuable. The
private owners of those properties may not voluntarily sell them, which would mean they could
only be acquired by eminent domain. But the BRCP provides no assurances that the City would
not be solely responsible for the costs and efforts of acquiring this property. The BRCP thus
potentially puts the City on the hook for millions of dollars of property-acquisition costs, and for
using eminent domain against unwilling sellers. The BRCP provides no assurances that anybody
but the City's taxpayers would fund those costs.
3. The BRCP Is Fundamentally Flawed Because It IMproperly Incorporates
Recovery Standards and Prohibits Development Within the Preserve.
Conservation Measure 12 in the BRCP requires the establishment of the Preserve
to protect Butte County meadowfoam occurrences, primary habitat, and secondary habitat within
the Chico A, B, and C population groups and additional lands necessary to conserve these
populations and habitat. (BRCP p.5-66.) This and other conservation requirements in the BRCP
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are expressly designed to "achieve recovery of[Butte County meadowfoam]." The BRCP states:
"Implementation of the BRCP will conserve and achieve recovery of the Butte County
meadowfoam in the Plan Area and mitigate the direct and indirect impacts of covered activities."
(BRCP p.5-120 (emphasis added).) The BRCP further states that the Preserve is intended to
"protect all occurrences and supporting habitat that are necessary for the survival and recovery of
Butte County meadowfoam." (BRCP p.4-302 (emphasis added).)
These and other references throughout the BRCP make clear that the BRCP
imports a recovery standard to address impacts to special status species and habitat. This is
inconsistent, however, with the mitigation standards required for a habitat conservation plan
prepared pursuant to Section 10 of the Endangered Species Act. Section 10 only requires that
habitat conservation plans must "to the maximum extent practicable, minimize and mitigate the
impacts of[incidental take]." (16 U.S.C. § 1539(a)(2)(B)(ii) (emphasis added).) The courts
have interpreted the phrase "maximum extent practicable" to mean that an "applicant may do
something less than fully minimize and mitigate the impacts of the take where to do more would
not be practicable." (Nat'l Wildlife Fed'n v. Norton, 306 F. Supp. 2d 920, 928-929 (E.D. Cal.
2004).) As such,this standard does not require an applicant to fully minimize and mitigate the
impacts of take and ensure the recovery of species identified in a habitat conservation plan;
instead, an applicant need only minimize and mitigate the impacts of take to the "maximum
extent practicable." In light of the statutory language and the case_law, one thing is crystal clear:
the BRCP's establishment of the Preserve to ensure the recovery of Butte County meadowfoam
goes far beyond Section 10's "maximum extent practicable" standard.
This overreach is particularly burdensome here because each property owner
within the Preserve must participate in an overall recovery effort designed to offset the collective
impacts caused by others. This, too, is impermissible under the Endangered Species Act.
Section 10 requires that an applicant mitigate only for the impacts caused by the applicant's
development, not impacts caused by the development of others. (16 U.S.C. § 1539(a)(2)(A)(ii)
(requiring that"the applicant" take steps to minimize its own take).) Moreover, case law
indicates that mitigation imposed under Section 10 is constrained by basic principles of
proportionality. "[T]he statutory language [of Section 10] does not suggest that an applicant
must ever do more than mitigate the effect of its take of species."4 (Nat'l Wildlife Fed'n, 306 F.
Supp. 2d at 928--929 (emphasis added).) By including the Property within the Preserve, the
BRCP would essentially require Epick to offset impacts caused by other property owners.
In any event, as currently proposed the Project sets aside over a third of the
potentially developable land on the Property as open space for protection in perpetuity. This
land includes known occurrences of Butte County meadowfoam and would be in close proximity
to an existing Butte County meadowfoam preserve known as the Doe Mill Preserve. This
4 As the California Supreme Court noted in the context of mitigation under the California Endangered Species Act,"[T]o require that mitigation
measures be roughly proportional to a landowner's impact on a species means that the landowner is required to mitigate only its own
impacts on the species." Envi I Prof.Info.Ctr.v,California Dept of Forestry&Fire Prot.,44 Cal,4th 459,511 (2008)(emphasis added).
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approach to offsetting project impacts from the take of species and habitat is consistent with
Section 10's requirement that impacts be minimized and mitigated to the"maximum extent
practicable." Including the Property within the Preserve and essentially imposing a no-take zone
on development within the Property is an impermissible overreach under Section 10 of the
Endangered Species Act.
4. The Ci Ma Be Legally Unable to Participate in the BRCP.
In light of the General Plan designations and zoning for the Property, all of which
authorize development of varying densities and intensities of use on the Property, it is
questionable whether the City legally can be a signatory to the BRCP.
First, in California a general plan is a local government's "constitution" for land
use planning, and all of the local government's land use actions must be consistent with the
general plan. (See De Vita v. County of Napa, 9 Cal.4" 763 (1995); Lesher Communications, .Inc,
v. City of Walnut Creek, 52 Cal.3d 531 (1990).) If the City agreed to participate in the BRCP,
the City would be endorsing the BRCP's inclusion of the Property within the Preserve, which
effectively precludes development currently authorized by the City's General Plan. Therefore,
any such action taken by the City would be inconsistent with the City's General Plan. This is
contrary to well-settled case law on the primacy of the general plan and a violation of the City's
own Municipal Code regarding general plan consistency. (City Municipal Code § 19.01.030.B.)
Second,the Housing Accountability Act restricts a city's ability to disapprove, or
require density reductions in, residential projects. In particular, the Act specifies that when a
proposed housing development project complies with applicable general plan and zoning
standards and criteria, a city may not disapprove or require density reductions in that project
unless it makes certain findings related to the project's impacts on"public health and safety."
(Gov't Code § 65589.50).) By agreeing to participate in the BRCP, the City effectively would
be disapproving or reducing allowable densities on the Property without making the requisite
findings. This would be improper under the Housing Accountability Act.
5. The Property's Landowner Received No Notice of the BRCP.
As explained in the March 17, 2016, letter to Jon Clark at BCAG from Peter
Prows at Briscoe Ivester &Bazel, LLP, the Property's landowner (Bruce Road Associates)
received no notice during the preparation of the BRCP or since the release of the BRCP that the
Property would be proposed for acquisition by the City and included in a preserve for Butte
County Meadowfoam. BCAG's failure to properly notify the landowner is a procedural error
pursuant to the Endangered Species Act and other statutes requiring that landowners and other
affected parties be given the right to review and provide comments on a habitat conservation
plan and its supporting documents. (See, e.g., 16 U.S.C. § 1539(a)(2)(B) (requiring an
"opportunity for public comment").)
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Due to the volume of material to be reviewed, Epick requests an additional twelve
to twenty-four month extension to review the BRCP, its appendices, and supporting
documentation so that it may provide any additional comments and engage BCAG in further
discussions regarding Epick's concerns and resolution of the issues identified above.
Sincerely,
R. Clark Morrison
cc: (all by U.S. Mail)
U.S, Congressman Doug LaMalfa
California State Senator Jim Nielsen
California State Asse-unblymember James Gallagher
Butte County Board of Supervisors
Chico City Council
Mark Wolfe, Community Development Director, City of Chico
Brendan Vieg, Principal Planner, City of Chico
Bob Summerville, Senior Planner, City of Chico
Vincent Ewing, Esq., City Attorney, City of Chico
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