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CC MINS 19970529 ADJ MINUTES RANCHO PALOS VERDES CITY COUNCIL ADJOURNED REGULAR MEETING MAY 29, 1997 This meeting was called to Order at 7:00 p.m. by Mayor John C. McTaggart at the City Hall Community Room, 30940 Hawthorne Boulevard. Following the Pledge of Allegiance, roll call was answered as-follows: PRESENT: Hollingsworth, Ferraro, Byrd, Lyon, and Mayor McTaggart ABSENT: None Also present were: City Manager Paul Bussey; City Attorney Carol Lynch; Planning & Building, and Code Enforcement Director Carolynn Petru; Principal Planner Joel Rojas; and, Administrative Services Director/City Clerk Jo Purcell. PUBLIC COMMENTS: Hugh Hewitt, representing Kajima Development, addressed the issue of the NCCP Interim Habitat Loss Permit Process and said that the most recent biological survey indicated that this two-tenths of an acre is not quality habitat; there are no birds and there never will be birds as this is not the type of habitat that would support the gnatcatchers. He requested that there be an expressed rather than an implicit exemption from the 4(d) process. He noted that the City of San Diego has been given the authority to make explicit project-by-project exemptions; among them were projects that had largely already been awarded their grading permit or were so close that it was considered to be technically awarded. He urged Council to follow the City of San Diego's example, especially for Kajima where the impact is low and the benefit to the City s0 great. He expressed the opinion that this will not be a problem with U.S. Fish and Wildlife since there is a precedent for this type of approach. He noted that such action would save Kajima an enormous amount of money, headache, and angst, and would also serve the City well. He emphasized that this is a project encompassing only two-tenths of an acre. REGULAR BUSINESS: NCCP Interim Habitat Loss [4(d)] Permit Process (1203) Principal Planner Rojas introduced Bill Tippets, California Department of Fish and Game, and Jeff Newman, U.S. Fish & Wildlife Service. Principal Planner Rojas presented the staff memorandum of May 29, 1997, recommending adoption of a resolution approving a Coastal Sage Scrub Interim Habitat Loss Permit Process, pursuant to the Section 4(d) "Special Rule" of the Federal Endangered Species Act. Council discussion focused on the following issues: clarification of the acreage for Kajima's Seabreeze project; that the NCCP project would ultimately have more and better habitat than it currently has; imposition of mitigation measures while not impeding property rights; clarification of replacement acreage and how that would be credited toward the City's total protected acreage; a system for setting aside reserves in the future; and, clarification of the amount of acreage included in the permit for Ocean Trails. Bob Trapp, representing J.M. Peters Company, 4100 MacArthur Boulevard, Irvine, advised that they have agreed to a 3:1 replacement program on this project; that he had no problem giving credit to another builder, if allowable; that there has been only one or two pair of gnatcatchers sighted on their property since 1992; that this project would result in "no-take" for gnatcatchers; the reason this project is in the 4(d) process is because the developer was not willing to spend the time and effort to fight the Service on the no-take; that the intent of the procedure was to allow those developers with discretionary approvals to move ahead during the interim NCCP preparation period; and, urged Council to adopt the resolution before it this evening. At the request of Council, Mr. Hewitt related his negotiations with U.S. Fish and Wildlife. He confirmed that a no-take would result from the development on the Seabreeze project. Because there are no birds at the site, Mr. Hewitt said that he advised the Service that the developer would be going forward with this project. At that point the Service asked them not to go forward; he has asked about mitigation measures and has received no reply from the Service. He then noted the following: g when the City purchased the Diamond Bros. property it contained a lot of coastal sage scrub and this was, on a proportionate basis, a larger habitat contribution than has been made by any jurisdiction in Southern California relating to the gnatcatcher; Kajima has a 2:1 revegetation plan, all permits, and everything required by the Federal government, except that the U.S. Fish and Wildlife Service is disappointed that more has not been done; the developer is also preserving a permanent open space of 7.5 acres of local sage scrub, which will not be disturbed. Staff referenced copies of permits received from the developer and asked for clarification relating to drainage issues; in reviewing the map associated with the permit, it did not seem to include the .2 acres of coastal sage scrub. Mr. Hewitt clarified that this is included in the 1603 permit, which speaks to the revegetation that is required as a result of alterations to the blue line stream; this mitigation can Minutes May 29, 1997 Page 2 compensate for the loss of the .2 acres. He advised that this is standard mitigation on all Section 7 and 1603 permits; it is not necessary to have a separate plan. Provided that there is coastal sage scrub within it, as in this site, it will serve both purposes. There is, however, no independent mitigation requirement imposed as a result of the Federal Endangered Species Act or the California Endangered Species Act because there are no impacted species; therefore, no revegetation plan has been produced pursuant to those requirements. Council asked questions of the representatives of the Service regarding this process. An explanation was given that the 4(d) process is an interim process until jurisdictions develop an actual plan, which will then determine how much coastal sage scrub can be taken (developed). The best advice from scientists was that a 5% loss in the short term would be acceptable as long as that 5% loss was mitigated; when the final plans are developed the total amount taken will be known. It has been found that in every area where there were approved plans or nearly approved plans, the amount of take of coastal sage scrub will be much larger than 5%; the amount taken during the interim period will be credited to the final plan; it is a key piece in the peninsula for any final plan that is developed; this does not alter the fact that there is only so much sage scrub in existence. Council asked a question about mitigation measures and the re-vegetation growth period. The representatives from the Service advised that it takes approximately four to five years for the habitat to reach a state where it become functional coastal sage scrub; in the interim period of 18 months the revegetated habitat will not have reached a sufficient level to be considered equivalent to functional habitat and therefore does not add to the base. Council expressed concern with property rights of individuals during the interim and a suggestion was made that a bond be used to guarantee that the mitigation will take place. The representatives noted that the bond and the guarantee is part of the normal mitigation package and pointed out that money cannot always fix the problem of having less viable habitat for the gnatcatchers and other species that the Service is trying to protect. Council expressed concern that the NCCP will actually take longer than the expected 18 months due to.unanticipated criteria. The following was noted: no problems are anticipated; the City has the advantage of utilizing information from other agencies providing the ability to move the process along rather quickly. Staff noted that this discussion revolved around a .2 acre parcel and a developer who is willing to mitigate and asked why there is a conflict. The representatives from the Minutes May 29, 1997 Page 3 Services explained that the City needs a process, even for such a small parcel; it was their belief that the Seabreeze property was actually occupied and did support gnatcatchers but had the potential for two other species. Attempts had been made to schedule another meeting with the developer, but they have not wanted to do so and the entities have been at odds ever since. They concurred that this really should be a simple process if all the information being discussed is accurate. Council asked how many people are involved in the review process at the U.S. Fish and Wildlife Service. The representative noted that there is usually one biologist. Based on this, Council asked if the stumbling block was with management rather than at the scientific level or if there are problems with the applications received. The representative indicated that biological issues generally take the longest time. Council asked for clarification of other species under the 4(d) permit. Clarification was given that the other species do not affect the 4(d) permit; the 4(d) permit will not be held up if there are no gnatcatchers; other species must be addressed through 10(a) process; it is unknown if there are connectivity issues on the project site. Council noted that there is a development seaward of the project'ect and also a J p project toward Los Angeles and asked how this two-tenths of an acre could be significant to connectivity if there is no open connection. It was explained that the project is connected to the other developments by a canyon and there are gnatcatchers in the canyon and up toward the project; therefore, it is one contiguous area. The representatives acknowledged that Council would like this issue resolved as soon as possible and said that efforts will be made toward this end. It was noted that there is a small misinterpretation of the letter of February 2nd; all losses under the interim process get counted toward the five percent, even on projects which are exempt. It is essential that the total amount of sage scrub lost during the interim period be known. It was recommended that page 2, the last sentence of the second paragraph of Section A(1) of the staff proposed Interim Habitat Loss Permit Process be revised to read: "Regardless of whether or not the 5% level is reached, coastal sage scrub shall be counted toward the 5% loss allocation." The representative noted that property lost to natural phenomena is not removed from the base calculation, nor are fire breaks. Routine practice such as cleaning out brush, would not be subject to the 4(d) process, nor would action taken to due to imminent health and safety concerns. Staff explained the landslide process and how mitigation measures are taken by the City. The Service representative advised that he will take this issue back to Minutes May 29, 1997 Page 4 management for a policy decision. Staff requested that a meeting be held between the agency and the City before a decision to provide adequate information on which to make a decision. Reference was made to page 2, Section A(2)(b) relating to the landslide issue and the Service representative advised that it may be possible to rewrite this to possibly allow for certain activities, if management agrees. Staff noted that this is the largest landslide in the Continental U.S. and it has unique features and has caused legal and financial difficulties for the City. It is felt that the effort cannot continue with the imposition of this process. The representative conveyed his understanding and noted that some of these issues are fairly new. Council noted that the City's problems should be sufficiently explained and it should be understood that the City may need to take certain measures and destroy habitat not because it wants to but because it has no choice and this should not be counted against people with property rights and an investment where tract maps have already been approved. Suggestions were made as follows: the items listed on the Interim Coastal Sage Scrub Loss - Rancho Palos Verdes chart be listed differently on the chart to show what habitat losses are taken but not counted due to public safety projects; note that the City fully intends to compensate for habitat losses through mitigation measures; add explanatory language into the body of the document relating to the previous suggestion; add habitat losses that occur due to natural events, e.g., landslides, to the list of exemptions. The representative for the Seabreeze development noted the following: clarified that they want to present a plan to the City for approval and not to the U.S. Fish and Wildlife Service; if the parcel is indeed occupied or used by the gnatcatcher and is graded anyway, there will be legal repercussions; if this issue is returned to the Service, there .will be endless rounds of delays; that the Pacific pocket mouse is not an issue in this area; that if a survey requirement is imposed it will delay this project until next year; and requested to be exempted and have the City taken out of the process, subject to staffs review of the revegetation and grading plans. Staff suggested that this item be continued to Tuesday, June 3rd. It was emphasized that if a finding can be made that the parcel is unoccupied it would then meet the criteria for 4(d) exemption. Mr. Trapp requested to return on Tuesday also. He noted that his parcel has been Minutes May 29, 1997 Page 5 surveyed and there are no gnatcatchers on the site, nor are there any Pacific pocket mice. He advised that he has had meetings with the Service and differences have been resolved and he is now waiting for the 4(d) process to be adopted by the City. Councilwoman Lyon moved, seconded by Mayor Pro Tem Ferraro, to continue this item. Motion carried. RECESS and RECONVENE: At 8:30 p.m., Mayor McTaggart declared a recess. The meeting reconvened at 8:35 p.m. FY 1997-98 Budget Review (602) Discussion was initiated relating to the 1997-98 Fiscal Year budget. Council discussion focused on the proposed 5% salary increase and cost-saving measures. ADJOURNMENT: The meeting was adjourned at 8:45 p.m. Mayo ATTEST: City Clerk Minutes May 29, 1997 Page 6