HomeMy WebLinkAboutEmailed Letter from Matthew C. Henderson Regarding TSM16-0002 Menchaca, Clarissa
From: Clerk of the Board
Sent: Friday,June 9, 2017 3:08 PM
To: Menchaca, Clarissa
Subject: FW: TSM 16-0002- Letter to Butte County Board of Supervisors dated 6/9/2017
Attachments: 2017-06-09 Ltr to Butte County Bd of Supvsr..pdf
........................ ........... ...........
From: Karen Wigylus
Sent: Friday, 3une 9, 2017 3:07:52 PM (UTC-08:00) Pacific Time (US&Canada)
To: Clerk of the Board; Connelly, Bill; Wahl, Larry; Kirk, Maureen; BOS District 4; Teeter, Doug
Cc: Matt Henderson; Snellings, Tim; Calarco, Pete; Michelena, Mark; 'alpert@buttecounty,net'
Subject: TSM16-0002- Letter to Butte County Board of Supervisors dated 6/9/2017
This email is sent on behalf of Matthew C. Henderson.
Please direct all replies to Matt at matthew.henderson@msrlegal'.com.
Thank you, Karen.
Karen Wigyllus I Miller Starr Regalia
L.egal Assistant to Matthew C. Henderson
1331 N. Californa BOUlevard, Fifth Floor,Walnut Creek, CA 94596
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Matthew C.Henderson
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matthew.henderson@msrlegal.com
June 9, 2017
VIA E-MAIL AND U.S. MAIL
Butte County Board of Supervisors
25 County Center Drive, Suite 200
Oroville, CA 95965
E-Mail: ClerkoftheBoard@ButteCounty.net
BConnelly@ButteCounty.net
LWahl@ButteCounty.net
MKirk@BufteCounty.net
District4@ButteCounty.net
DTeeter@ButteCounty.net
Re: Appeal of Planning Commission Denial of TSM16-0002
Dear Supervisors Connelly, Kirk, Lambert, Teeter, and Wahl,
I represent Nels Leen in connection with the above-referenced matter. I'm taking
the time to write to you in advance of next week's hearing to go over some of the
issues under consideration and to help explain how and why the Planning
Commission erred and the appeal should be upheld.
As you know, this matter involves the subdivision of approximately 18.5 acres of
land zoned for residential use (Very Low Density Residential, VLDR-1.0)outside of
the City of Chico ("Subdivision"). In brief, what is at stake here is a reasonable
interpretation and application of the County's agricultural buffer ordinance (the
"Ordinance," Butte County Code sections 24-81 through 24-84)to the Subdivision.
The facts of this case are such that a 300 foot agricultural buffer is not only
unwarranted but unneeded. Almost 90% of the Subdivision's acreage usable for
residential development (a use that is permitted as of right under the existing
zoning)will be lost without the reduced 150 foot buffer (a distance the County
deemed acceptable under a previous iteration of the Ordinance). f=urthermore, the
existence of a natural barrier between the Subdivision and the nearest qualified
agricultural operation will obviate any impacts from one parcel upon the other.
Additionally, my client is prepared to offer additional safeguards in the form of
binding deed restrictions or covenants to protect the agricultural operations to the
south. Finally, prior to the Planning Commission hearing the Butte County
Agriculture Department and County staff had consistently supported the Subdivision
and found that it complied with the Ordinance.
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In short, the Planning Commission made an unfortunate error, but my client and I
are certain that with a full understanding of the facts and law applicable to the
Subdivision you will reach the right decision.
Background
An application for the Subdivision was filed with the County on June 30, 2016. Part
of the application included a request for a reduction of the southern setback of the
Subdivision under the Ordinance. Pursuant to the Ordinance (County Code section
24-84.D), planning and zoning staff consulted with the Agriculture Department as to
the advisability of the reduction. In a letter dated February 23, 2016, the Agriculture
Department wrote to Mr. Leen as follows:
The proposed plan sent to me by Jim Stevens of NorthStar
Engineering on February 19, 2016... consisting of 16 new residential
lots and a designated residential building area for each lot appears to
be the best subdivision placement in regards to the adjacent
commercially farmed agricultural operation. This map proposal will
require a reduction in the required 300' Agriculture Buffer. During the
site visit it has been determined that mitigation measures can be met
to protect the adjacent agriculture operation.
Thus, the Agriculture Department satisfied the consultation requirement and
endorsed the reduced setback.
Given the Agriculture Department's determination, the County undertook a thorough
review of the project, including the preparation of an Initial Study and Mitigated
Negative Declaration ("ISIMND") pursuant to the California Environmental Quality
Act ("CEQA"). Following this review County staff concluded that the Subdivision
should be approved. Staff found that the Subdivision was consistent with the
County's General Plan (including Policy AG-P5.3.3 which requires the 300 foot
setback as discussed below). (Butte County Planning Commission Agenda Report,
March 23, 2017, pp. 4-10.) With respect to the buffer issue, the County's own Initial
Study/Mitigated Negative Declaration makes the following observation:
The Agricultural Commissioner's Office is recommending an
Agricultural Buffer of 150 feet from existing agriculturally-zone [sic]
property located adjacent to the southern boundary of the project
site. The buffer would be established from the southern boundary of
APN 039-090-061 and extend 150 feet to the north and encroach into
Parcels 6-15. The reduced buffer is recommended due to the
presence of riparian vegetation along Comanche Creek
separating the parcels from the agricultural uses to the south.
(Id. at pp. 39-40, emphasis added.)
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The IS/MND also states that the subdivision would have no or less than significant
land use impacts. (Butte County Planning Commission Agenda Report, March 23,
2017, pp. 92-93.) With respect to agricultural setbacks, it states, "The Department
of Development Services in conjunction with the Agricultural Commissioner's Office
is recommending a 150-foot agricultural buffer setback to residences from
agriculturally zoned lands in the Williamson Act to the south." (!d. at p. 93. See also
id. at p. 39.)
Based on this thorough review and analysis, staff recommended to the Planning
Commission that the Subdivision be approved. The staff report stated, "Staff
recommends the Planning Commission adopt the Resolution adopting a Mitigated
Negative Declaration pursuant to the California Environmental Quality Act(CEQA)
and approving the Tentative Subdivision Map, subject to findings and conditions."
(Butte County Planning Commission Agenda Report, March 23, 2017, p. 2.)
Unfortunately, the Planning Commission ignored the thoughtful and thorough
analysis in the staff report as well as staff's recommendation and denied approval of
the Subdivision. The findings the Planning Commission made in its denial,
however, are contradicted by the record and by the County's own analysis.
Findings of the Planning Commission on the Reduced Setback
With the above in mind, it is clear that the findings made in the Planning
Commission's Resolution PC17-06 rejecting the Subdivision cannot be sustained.
Below is a more detailed look at the problems with the findings and why the facts of
the matter actually support the County approving the Subdivision.
1. Reduced Setbacks Will Not Result in a Modification of Agricultural Practices
The first finding required by the Ordinance to approve a reduced setback reads,
"The adjustment will not result in a modification to adjacent agricultural practices."
(Butte County Code, § 24-84.F_1.)The Planning Commission found 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 result in a
modification of existing agricultural practices." (Emphasis added.)
The problem with this "finding" is that it is unsupported by any facts and is directly
contradicted by the record.
As noted above, the Agriculture Department expressly confirmed by letter that the
reduced setback was appropriate for the Subdivision. Far from stating that the
Subdivision would result in a modification of agricultural practices, the Agriculture
Department confirmed that it would not result in any such modification.
In analyzing the Subdivision for the Planning Commission, County staff agreed that
the Agriculture Department approved of the requested reduced setback. The staff
report states, "The Agricultural Commissioner Office supported the request based
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on the existing vegetation that runs the entire length of the southern property
boundary." (Butte County Planning Commission Agenda Report, March 23, 2017, p.
4.) The staff report also found that the subdivision was consistent with Goal AG-5 of
the County's General Plan, which includes Policy AG-P5.3.3. The report states as
follows:
Policy 5.3.3 is implemented by Article 17 Agricultural Buffers of the
Zoning Ordinance. Prior to the project being submitted to
Development Services, the applicant met with the Agricultural
Commissioner's Office to determine if there were any unusual
circumstances to reduce the required 300-foot setback from
agriculturally designated parcels. The Agricultural Commissioner's
Office determined that with the existing vegetation along Comanche
Creek providing a natural buffer, an agricultural buffer of 150 feet for
any residential dwellings on lots S through 15 was sufficient to reduce
the agricultural impacts.
(Butte County Planning Commission Agenda Report, March 23, 2017, p. 6.) The
County's CEQA review also found that the subdivision qualified for a reduced
setback. (Butte County Planning Commission Agenda Report, March 23, 2017, p.
11, 12-13, 14, 15, 16, 17.)
The April 5, 2017 letter from Agricultural Commissioner Louie Mendoza does not
change this analysis. In the first place, the letter postdates the Planning
Commission's vote. The Planning Commission cannot rely on material that did not
even exist at the time it made its vote. Secondly, Mr. Mendoza's letter makes no
effort to actually analyze the facts particular to the Subdivision. There is no
discussion of the site's topography, dimensions, layout, orientation, natural features
(such as Comanche Creek and its riparian vegetation), etc. Accordingly, there is a
complete absence of facts upon which the Planning Commission could rely in
contradicting the prior analyses done by the County and its staff.
One factor that bears emphasis here is that under the County's Agricultural/
Residential Buffer Implementation Guidelines ("Guidelines")the County must
account for the presence of"existing, significant natural features such as
topography or vegetation [that] help prevent negative influences on existing
agricultural uses and provides adequate protection to residential uses from adjacent
agricultural operations." (Guidelines, I E(2)(b).) A specific example of such a
"natural feature" identified in the Guidelines is a creek and its riparian corridor and
vegetation. (!d. at Fig. 6.) This is exactly the scenario presented here, where
Comanche Creek and its trees provide an effective screen from the Subdivision to
the agricultural lands to the south. And indeed, as discussed above, County staff
expressly relied on the existence of Comanche Creek and the riparian vegetation to
find that the Subdivision would not result in the modification of adjacent agricultural
practices.
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Moreover, residences in the mobile home park to the Subdivision's west are not only
within the 300 foot setback line but within the 150 foot setback line requested for the
Subdivision. Yet the County has not identified any modification to agricultural
operations resulting from this proximity.
While my client believes that all of this information is more than enough to
demonstrate that the County can and should find that the Subdivision will not result
in the modification of adjacent agricultural processes, in order to provide an
additional level of certainty he will agree to the imposition via deed restriction or
restrictive covenant the following:
Applicant shall provide by deed restriction, in each deed of the fifteen
lots proposed,for the benefit of the property adjacent to Subdivision,
owned by George Nicolaus, a waiver of any and all of the lot owners,
rights to legally contest properly conducted farming practices and
privileges. This condition shall be in addition to the existing Butte
County Right to Farm ordinance. This waiver shall include, but shall
not be limited to, any dusts, sprays, noise or additionally, anything
that may become an annoyance or inconvenience to the lot owners.
Subject to the approval of the County Counsel of this, or substantially similar,
language, this condition should remove any doubt that the Subdivision will result in
the modification to adjacent agricultural practices. It will not, and the Planning
Commission had no basis to conclude otherwise.
2. Unusual Circumstances Make a 300' Setback Infeasible
The second factor under subdivision F of section 24-84 is the existence of"unusual
circumstances": "Unusual circumstances are present on the subject properties or
surrounding properties that render the 300-foot setback requirement infeasible or
unnecessary." (Butte County Code, § 24-84.F.2.) The Ordinance provides
examples of such circumstances: "Unusual circumstances included, 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." (ibid.)
The Planning Commission's findings on this point are clearly erroneous. The
Planning Commission found as follows:
Assessor's Parcel Number 039-090-061 is located north of an
abutting existing walnut orchard in the AG-40 (Agriculture--40-acre
minimum) zone. The parcel is irregularly shaped because its
southern property line is established by Comanche Creek/Edgar
Slough. The parcel can accommodate residential development with
the full 300-foot buffer, but not at the density proposed by TSM 16-
0002. Thus, the shape of the parcel does not give rise to unusual
circumstances. Agricultural operations associated with the existing
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orchard require the full 300-foot buffer from residential dwellings that
would result from the proposed subdivision.
Again, this "finding" is devoid of supporting facts, and is contradicted by the record.
Perhaps most crucially, the finding fails to acknowledge the fact that(1)the
Subdivision is zoned for residential development, and (2) enforcing the full 300 foot
setback would eliminate the vast majority of the property for development due to the
parcel's "size and shape." Most of the Subdivision is comprised of a parcel running
east and west with a width of 2000 feet and a depth of 400 feet. As discussed in
Jim Stevens's letter of May 31, 2017, applying the 300 foot buffer would reduce this
parcel's effective acreage from 13.6 to 1.7, a reduction of 88.5%. That clearly
comprises "unusual circumstances"justifying a reasonable reduction in the setback.
Moreover, the existence of residences to the west of the Subdivision that fall within
the 300 foot setback (and indeed within the 150 foot setback) also demonstrates the
existence of"unusual circumstances." There is no principled reason to discriminate
against the Subdivision for siting homes within a setback that has already been
compromised.
Finally, as the Ordinance expressly recognizes, the "unusual circumstances"
analysis also looks to a project's natural physical features and topography. As
discussed above, Comanche Creek and the riparian corridor provide a natural
barrier between the Subdivision and the agricultural land to the south. This, too,
backs a finding of the existence of"unusual circumstances" such as to reduce the
setback to 300 feet.
3. The Reduced Setbacks Won't Create Any Detriment to Agricultural Practices
The third required finding under the Ordinance is a follows: "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." (Butte County Code, § 24-84.F.3.) In this regard
the Planning Commission found, "The proposed locations of the dwellings are not
the greatest distance possible from the property line with the orchard to the south.
The full 300-foot buffer can be maintained, although the density of residential
development would not be as great as proposed." For the reasons discussed
above, this finding is not supported by the record. Enforcing the full 300 foot buffer
will wipe out most of the usable acreage for the Subdivision, and is not needed
given the existing natural features and proffered deed restriction.
4. The Location of the Residences Won't Interfere With Other Conditions
The last finding required under the Ordinance states, "The location of the proposed
residence does not interfere with easements, septic systems, or prior conditions of
approval applicable to the subject property." (Butte County Code, § 24-84.F.4.) The
Planning Commission made no finding on this issue. There is no evidence in the
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record whatsoever that the Subdivision would "interfere with easements, septic
systems, or prior conditions of approval applicable to the subject property." Indeed,
given the analysis in the staff report and IS/MND, as well as staff's recommendation
to approve the Subdivision, the only evidence in the record is that the Subdivision
does meet this standard.
Findings of the Plannina Commission on the Subdivision Approval
The Planning Commission made two findings in support of its denial of the
Subdivision application under the Subdivision Map Act. The first is that the
Subdivision is inconsistent with the County's General Plan because it does not
abide by the 300 foot setback requirement. As discussed above, this is plainly
incorrect. Moreover, it is belied by the County's own analysis in the staff report and
IS/MND, both of which concluded that the Subdivision is consistent with the General
Plan.
The Planning Commission also found that the Subdivision could not be approved
because"the project site is not physically suitable for the use and density of the
approved development." The Commission found:
The size and shape of Assessor's Parcel Number 039-090-061 and
its location adjacent to an existing walnut orchard in the Agricultural
zone render it physically unsuitable for the density of the proposed
residential subdivision. The parcel could be developed at a lower
density while stili maintaining the required agricultural buffer.
As addressed in the above analysis, the Subdivision is appropriately suited for
residential development at the density expressly allowed under the existing zoning
(which, again, is residential). The only reason the Subdivision would be "unsuitable"
is if the County insists on applying the 300 foot setback, which as previously
discussed would be in error.
In short, there is no basis under the Subdivision Map Act to deny approval of the
Subdivision.
In conclusion, my client appreciates the time and hard work that County staff has
put into this process. We remain confident that a fair and objective analysis of the
Subdivision will show that it should be approved with a reduced 150 foot setback.
To require this project of all projects to adhere to the 300 foot setback requirement
would be to read the Ordinance out of the County Code. If this project does not
qualify for a reduced setback, what project would?
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Butte County Board of Supervisors
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Page 8
Thank you for your time and attention to this matter, my client and I greatly
appreciate it and look forward to being able to present these issues and answer any
questions you may have at the hearing on the 13th.
Very truly yours,
MILLER T REG A A
Pte,✓ ,� '�'---...
Mat thew C. Hend son
MCH:kIw
cc: Tim Snellings (via email-Tsnellings@buttecounty.net)
Pete Calarco (via email- Pcalarco@buttecounty.net)
Mark Michelena (via email—mmichelena@buttecounty.net)
Bruce Alpert, County Counsel(via email—balpert@buttecounty.net)
James A. Stevens
Nicole Ledford
Nels Leen
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