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HomeMy WebLinkAboutcc min 1993/09/13 MI~ OF A JOINT CHULA VISTA CITY COUNCIL SAN DIEGO COUNTY BOARD OF SUPERVISORS MEETING Monday, September 13, 1993 Council Chambers 3:20 p.m. Pubfic Services Building CALL TO ORDER 1. ROLL CAKL: PRESENT: Councilmembers Fox, Horton, Moore, Rindone, and Mayor Nader 2. PUBIAC COMMENT · Teresa Aland, 1433 Nacion Avenue, Chula Vista, CA, Executive Director for INDWELLER, stated the planning had begun for the Fourth Annual Resource Rally sponsored by INDWELLER. 3. CONTINUED PUBLIC HEARING - OTAY RANCH Referral #1: Traffic Anthony Lertieri, Otay Ranch General Manager, stated the item had been referred from the 7/21/93 meeting to have staff look at the following concerns of the Valle de Oro Planning Group: 1) the adequacy of the EIR and the specific issues associated with it; and 2) the cumulative and regional traffic impacts. Daniel F. Marum, Senior Transportation Planner, JHK & Associates, stated there would be three parts to the presentation: 1) overall modeling framework; 2) subregional modeling environment; and 3) VDO issues and their responses to the issues. JHICs role in the project was to assist City/County staff in their review of the original project submittal. Since then they had been retained to help develop the alternatives which had been evaluated and to complete the transportation analysis for the EIR for those alternatives. All of the transportation modeling work was done by SANDAG with direction by JHK and the Otay Ranch Project Team. The Transportation Subcommittee had a vital role in the project. One of the first items they were involved with was trying to evaluate the project impacts of the original submittal which was the most intense alternative of all those analyzed. The study area used for analysis was bounded by SR 94 on the northeast edge, SR 54 along the northern edge, 1-80S down the western edge, and the border on the southern edge. Some of the comments received from the various planning groups stated they had not correctly analyzed the impacts of the project, nor the cumulative impacts on certain elements of the circulation facility. One of the communities they particularly focused on was Valle de Oro, where they did extensive analysis of the cumulative model volumes that came from two separate models, i.e. the model used in the Southbay Study for the Oray Ranch and the SR S4 Corridor Model. Mike Hix, representing San Diego Association of Governments (SANDAG), stated they had been asked to participate as a member of the team in analyzing the Otay Ranch due to their ongoing modeling work in the Southbay. They were to forecast volumes in the future, levels of service, turning movements, project travel patterns, etc. He then reviewed the modeling efforts utilized. The study area included the core and a buffer area around the core. They then calibrated the model for the entire study area which matched the models projections with actual traffic counts taken from host counts on the road. The Southbay Model was originally created in the early 80's and had been extensively modified, the SR S4 Model was developed in 1992. Both of the models originally came from the SANDAG Regional Model and used Series 7 as the background information for the rest of the region. Both used build-out land use assumptions within the study area and were focused on different but adjacent areas. Thus, when looking at cumulative volumes on any particular road there could be a different output from one model ro another because they were Minutes September 13, 1993 Page 2 intended to give accurate volumes in only one particular area. The Southbay Model was focused on Chula Vista, Otay Ranch, and Otay Mesa. The 54 Model was designed to look at that corridor and was focused on E1 Cajon, Spring Valley, Valle de Oro, and some of the unincorporated areas to the east. Mr. Maram stated there had been five issues raised by the Valle de Oro Planning Group and he reviewed the questions and responses outlined in his memorandum to the Council/Board. There were only two facilities that had greater than 10% impact under the higher cumulative volume scenario, i.e. Millar Ranch Road at 33% of the traffic estimated to come from Otay Ranch project, and SR 94 west of Millar Ranch Road at 13%. Both of the facilities were segments that were exceeding the planning level of service criteria in build-out. Both of the facilities, prior to their construction, would need special consideration to ensure that the cumulative volume levels could be satisfied through design. The higher cumulative volumes out of the 54 Corridor Model on many of the streets, even local circulation streets in VDO and other fringe areas pointed to the need for additional analysis with the higher cumulative volumes as an outgrowth of the SR. 54 Corridor Study. Supervisor Slater questioned what the project fee was in the toll road analysis and if traffic would be diverted from surface streets because the toll road would be faster. Mr. Maram responded that there did not appear to be any funding for the road if it was not a toll road. Congestion probably would not become a significant issue until far into the build-out. The pricing would be sensitive to the alternative route time. They had assumed $1.00 which was compared with the modeling that had been done on the Coronado Bay Bridge and the calibration work done by SANDAG every time they updated a model. Supervisor Jacob stated there were two issues: 1) whether the EIR had adequately addressed the issues; and 2) what they did with the issues if they had been adequately addressed. She questioned if Mr. Maram had stated that whether or not Millar Ranch Road was a public road there would still be a problem. Mr. Marum responded that was correct. He felt through the EIR process and the comments received from the community planning groups, there were roadway circulation element facilities in those planning areas that were under estimated in terms of cumulative volume levels. They did not even report them as they were outside of the reporting area. When they were brought to their attention, they reported the information that was in their model and subsequent modeling was done that showed their information was flawed. The higher cumulative volumes that were coming out of the 54 Corridor Model pointed to an issue that the community planning groups had a right to be concerned about. The higher cumulative volumes that produced levels of Service D, E, and F, needed to be addressed in a local circulation type of study to see what type of solution could be derived. They looked at the no project alternative in terms of the Chula Vista and Southbay area and not the fringe areas. Councilmember Moore questioned the percentage of traffic that would come from the ranch that would impact the VDO area. He questioned where most of the traffic originated. Mr. Maram responded that it was under 10% of the facilities that would exceed their planning level capacity. Millar Ranch Road was 33% and SR 94 was 13%. The primary contributor from the Otay Ranch's perspective was the Proctor Valley parcel and the eastern urban center. Proctor Valley and Millar Ranch would both be four lane facilities. Councilmember Rindone questioned what the project build-out was. Mr. Marurn stated the Series 7 background data for the northern portion of the entire SANDAG region was a twenty year forecast to 2010. Everything done south of 54 and 94 was at build-out to the border with no Minutes September 13, 1993 Page 3 year associated with it. The numbers discussed at staff level were thirty to fifty years for the entire Southbay area except for Otay Mesa which could be even further. Councilmember Fox clarified that if selecting any of the alternatives, or the no project alternative, the levels of senrice would still be unacceptable. Mr. Marurn stated that was correct but, cautioned that the 54 Corridor Model used the Phase II progress plan for the cumulative volume contribution from the Southbay area. Supervisor Bilbray questioned the percentage of the impact on the Sweetwater Valley. Mr. Marum responded that it was probably higher due to the nature of Otay Lakes Road feeding into the Bonita area. There were mitigation measures that came forth out of the comment period regarding the improvement of some intersections in the Sweetwater Valley area rather than improving mid-block sections entirely. · Jack L. Phillips, 4352 Crestview Drive, ha Mesa, CA, Chair of the Valle de Oro Planning Group, stated their request for a no-project model run had been refused. The earlier runs could not be used because County staff had given SANDAG improper information on Millar Ranch Road and SR 54 was coded incorrectly in earlier runs. The EIR was based on the Southbay Model. Every segment volume in the EIR traffic analysis was probably wrong. Correctly classifying SR 125, the primary transportation corridor through the project as a toll road, instead of a freeway would significantly change the traffic patterns, especially on off-site surface streets and freeways that would be used to avoid the toll. The modeling had been done as a freeway and no toll diversion had been included. Therefore, the EIR was deficient because it failed to show accurately the traffic impacts for each alternative if SR 125 was a toll road. He felt the fair solution was to keep reducing the project and general plan amendment intensity until the alarm bells stopped. He felt the Council/Board should disapprove the changes to the Jamul and Valle de Oro community plans, keep urban development and growth inducing sewers out of Proctor Valley, and halt the misguided plans to connect the Millar Ranch Road to Proctor Valley Road. They must keep lowering the remaining development densities until the traffic volumes in the surrounding entities came back to reasonable levels. Councilmember Fox questioned whether staff had refused to run a no project alternative. Mr. Marum stated there had not been a no project alternative run on the 54 Corridor Model. The no project alternative referred to earlier was with the Southbay Model for the Otay Ranch Project itself. The work done by SANDAG in the early stages had Series 7 twenty year growth projections for the entire Southbay area rather than Otay Ranch. It was not his opinion that there would be a different picture or "true impact~ ff a no project alternative was run. The statements made regarding the toll road work that had been done were correct. They only did the toll road modeling on one alternative and at the time that the franchise agreement was signed, they were in the midst of analyzing the Phase I progress plan. They took the most recent alternative available and came up with a toll road diversion factor that they applied to the main line, SR 225, from San Miguel down to 905. They then reported that information in the EIR for disclosure purposes. They felt that gave the decision makers the ability to look at how it would affect the Phase I progress plan and that it could be inferred to any other alternative the level of diversion that would occur because of the toll road. The Phase II progress plan was less than Phase I progress plan in terms of total trip generation. Therefore, they felt the EIR covered the issues for the alternatives included with the exception of the New Town Plan which was the highest. Minutes September 13, 1993 Page 4 Councilmember Fox stated the comment had been made that SR 125 would not be built in the foreseeable future and the conclusion was that the traffic and quality of life in the Southbay would deteriorate and questioned their response. Mr. Marum responded that the safeguards were in the City of Chula Vista's Threshold Standards and the County had similar facility standards. There was also State legislation from the Congestion Management Program that would take away funds if violations occurred. In the review of each SPA there were multiple steps in place to ensure that development would have to put under moratorium if there was not adequate system capacity. SR 125 was obviously one of the most critical linkages in the eastern Chula Vista circulation plan to allow development to continue in the eastern areas. Councilmember Moore felt there would be traffic problems in Chula Vista because almost all of the traffic that went to Mexico, South County, or south San Diego, had to go through the City. There needed to be a third route. He agreed the checks and balances were in place for the City through the Threshold Standards. The groups should not be fighting each other but working together for a win/win situation. Supervisor Jacobs stated it was her understanding of the explanation given that there was no study needed because the same conclusion would have been reached. The conclusion reached was that there was a major traffic problem at both ends. Mr. Marum stated that was correct. The no project alternative would have just gone a little further, in the eyes of the community planning group, in showing the project contribution in a very cut and dry perspective for any particular alternative. · Mark Montijo, 1875 Honey Springs Road, Jamul, CA, representing Jamul-Dulzura Community Planning Group, referred to the staff response regarding the validity of the EPEIR with respect to impacts related to inclusion of Millar Ranch Road as part of the project. He did not feel they had responded to the analysis of the EIR in any of the three responses. The following questions should be answered: 1) were changes to the community plan text regarding Millar Ranch Road ever advertised for scoping for potential impacts with the notice of intention to prepare for the EIR; and 2) were specific impacts of creating a public road for volumes anticipated for development of central Proctor Valley considered as part of the EIR. If the road was adopted for part of the project then the EIR was inadequate as it did not address the impacts. Mr. Lettieri stated he had not heard Mr. Montijo's concerns stated before and would meet with him individually regarding his concerns. Supervisor Jacobs requested a response after the meeting with Mr. Montijo. · Kim Kilkenny, representing Baldwin Company, stated that all the experts that had reviewed the information before the Council/Board had concluded the modeling was done correctly and consistently with the accepted regional standards. All those reviewing the EIR, including SANDAG, the consultant, the project team, and City/County staff, had concluded the EIR analysis was adequate. The analysis was done on the New Town Plan, which was a 50,000 unit plan, and the plan before the Council/Board was a 28,000 unit plan. The model assumed build-out of the region which was not likely to happen in his lifetime. It assumed no traffic benefits due to transit or mandated congestion strategies and, therefore, was a worse case analysis. The proportion of trips in Valle de Oro was very small as a portion of the total traffic volume. There was an impression created that there was not a project alternative analysis done for traffic, there was, but it was not done with the 54 Model. It was done with the Southbay Model the experts stated was the approptiate model to use in the region. It was important to remember that if Millar Ranch Road was eliminated it had very adverse impacts on the communities of Jamul, Sweetwater, Chula Vista, and SR 125. Even without Otay Ranch, there was a need for Millar Ranch Road. He was fearful that Mr. Marum, during the discussion, Minutes September 13, 1993 Page 5 might have raised some confusion regarding the need for more analysis. He thought the conclusion was there was more work to be done at the SPA level but, for GPA purposes there was no need for additional analysis or the drafting of additional mitigation. The Chula Vista General Plan and Otay Ranch General Plan had safeguards to ensure the level of Service C was achieved. The toll analysis was done in respect to the Phase I Progress Plan and staff concluded there was no additional analysis necessary. Under the no project alternative the EIR showed there were 28 miles in the Southbay that were impacted by the project. The Phase II Plan, with mitigation, impacted 14.8 miles. In developing Otay Ranch traffic solutions were being built. If Otay Ranch was not built traffic would be forced to go on roads that did not have the capacity. Supervisor Jacob questioned if there was, in stafes opinion, enough information available to apply adequate traffic mitigation measures to at least a level of Senrice C if not A. Mr. Lettieri responded there was enough information available and the comments made by Mr. Kilkenney were true specifically regarding Proctor Valley Road. The conditions placed on the project required a traffic analysis at each SPA level and a performance standard that required that the project maintain a level of Service C at every single impacted road whether it was in an unincorporated area or incorporated area if it had been identified in the EIR. Supervisor Jacob questioned if the mitigation was at the SPA level. Mr. Lettieri stated a sufficient analysis had been done in the EIR process to identify all of the impacts that could potentially be identified for the project. With the last two hearings he felt all the issues had been identified. Supervisor Jacob stated she wanted to be sure that when they dealt with the General Plan amendment, and densities associated with it, they were not just putting off the traffic problem to the SPA level. She wanted to be sure that whatever was approved at the General Plan Amendment level that they would be able ro mitigate the traffic impacts identified. Mr. Marum stated if Supervisor Jacobs was referring specifically to the cumulative volumes in Valle de Oro Planning Group, there had not been a detailed evaluation of what mitigation measures would be acceptable, or feasible, to solve those problems on individual streets within the VDO area. They had presented the cumulative volumes and the projects contribution and it had been determined that the projects contribution was not to a level of significance in their analysis. However, cumulative volumes were realistic and the higher cumulative volumes out of the 54 Model even made some of the streets worse. That was why he had indicated that staff, along with the community planning group, needed to look at each one of the facilities. Supervisor Slater felt it was important to remember they were dealing with a Program EIR and some of the issues would be addressed when the whole project was looked at in detail. She referred to page 6 of handout #3, and felt it needed to be considered whether or not Millar Ranch Road would be a public road. Councilmember Rindone stated the mitigation was not at the SPA level but it was the opportunity that would safeguard the future development at that point. It was not the solution but a benchmark. Councilmember Moore stated the Program EIR was to ensure review of cumulative impacts, resolve basic policy, and examine the broad policy. The SPA level was to resolve all issues related to the project, degree of impacts, and feasible mitigation and alternatives. The program level was not the level to resolve those issues, it should be done at the SPA level. Minutes September 13, 1993 Page 6 Supervisor Jacobs questioned, based on the information received at the hearing regarding cumulative impacts on traffic, if the EIR was adequate and what responsibility they had under CEQA to provide mitigation at the SPA level and what could be put off to a later date. 3ohn Woodward, County Counsel, stated he could not give an opinion without doing substantial work to review the documents. Tina Thomas had prepared a paper on what the Program EIR did. The CEQA guidelines left some uncertainty as to what could or could not be deferred. The three attorneys in the pro3ect had discussed the issue and agreed to jointly opine that the Board/Council could defer mitigation measures so long as a performance standard could be articulated, i.e. level of Service C would be sufficient without being more specific. The planning by the City and the County was very different. The County considered a General Plan Amendment to be a project and they did a project level EIR. It was his understanding that the City did not feel it was a project until it reached the SPA level. Mayor Nader stated that under City law, part of the mitigation would be that if they reached a SPA or tentative map that would create a level below Service C, Council was required to vote no. Referral 2: USF&W and EHL Position on Staff Recormmendafion Plan Mr. Lettieri stated the question posed to staff at the 7/21/93 meeting was what the relationship was between the staff recommended plan and the multi-species conservation program. The Council/Board asked staff to meet with the U.S. Fish St Wildlife Service, CA Fish & Game, the Endangered Habitats League, and develop a matrix of issues and compare those issues with the staff recommendation. That had been done and was included in the packet. He then highlighted the eleven issues included in the matrix. Mayor Nader questioned the area the County Planning Commission recommended that development be deleted. Mr. Lettieri responded it was the area south of Otay Lakes Road. The County Planning Commission did not recommend moving the density. Dr. Pat Mock, Senior Wildlife Biologist, Ogden Environmental, representing the Clean Water Program for the City of San Diego, spoke on the Multi-Species Conservation Program. A habitat evaluation model had been developed which included habitat diversity, habitat rarity, gnatcatcher habitat evaluation, location of high priority target species, and a preliminary analysis of connectivity areas. The evaluation model was primarily based on a vegetation map developed for MSCP and was of a regional nature. More site specific data of any localized area could, in the future, change an evaluation. It was a regional evaluation not a site specific scale. Site specific data would still be required before any parcel would be deemed as having a high, moderate, or low value. The next phase would be to go to a sub-regional planning with more detailed information to refine the habitat evaluation model. The model should not be used in isolation and the economic and land use factors should also be included. · Nancy Gilbert, Wildlife Biologist, US Fish St Wildlife Service, stated it was the Services' opinion that the Otay Ranch area was essential to the success of any of the sub-regional multiple species plans. The project site contained nineteen different habitat types and all were recognized as sensitive and declining. The Service remained concerned regarding the proposed development and resulting impact on sensitive biological resources. They believed the open space configuration was insufficient to maintain the biodiversity over time. The Service felt the fatal flaws were the decisions that were made now that would preclude good preserve design planning without future amendments or major project modifications. They felt some of the major flaws that should be dealt with now were #5, which included the road crossings in Johnson Canyon and O'Neil Canyon; #6 which addressed the university facilities in Salt Creek; #8 which Minutes September 13, 1993 Page 7 was Village 15 south and east of the lake; #9 which were the villages north of the lake in the eastern half of the resort; and, #10 which was the Central Proctor Valley linkages to the northern portion. They recommended that development of the critical areas be eliminated and did concur with the Endangered Habitats League map. The best approach to avoiding endangered species conflict was proactive regional multi-species management planning and successful implementation of a regional multiple habitat conservation planning program. Supervisor Bilbray questioned how many other counties in California were puffing in multi-species management plans. Ms. Gilbert responded that Orange County, Riverside County, San Diego County, and Kearn County had multi-species plans. It was her understanding there were several efforts also on the western slope of the Sierras. They all had different approaches but were all planning on doing a multi-habitat, multi-species planning. The intent of the planning effort was to get ahead of a species by species crisis. With that intent there were several options. A 10A permit for listed species, a conservation agreement for unlisred species that were endemic to the area, or an implementation agreement or prelisting agreement which was pre- planning so that if the species did become listed because of something someone else did, the City/County would have a plan that was consistent with a IOA plan and would be ready for a permit. Supervisor Bilbray stated he was concerned that Ms. Gilbert was saying if that was done the City/County could avoid those species going into the endangered status. He saw the City/County bearing the responsibility and did not see the Central Valley bearing the responsibility for its destruction. He did not see anything that said what would stay off the list if they followed the recommendations. Ms. Gilbert stated if the City/County preplanned for biological resources that removed the threat factors then it should stay off the list. There was a big benefit if a plan was prepared and if it was listed and the Service had entered into an implementation agreement with City/County. They had assessed the take and mitigation and stated the City/County had met the IOA standard for a permit. Mayor Nader stated he thought Ms. Gilbert had said that if the City/County did the planning now, and the time came when the species were listed, the required mitigation under Section IOA of the Act would be deemed to have already been met and there would be no additional mitigation to be done. Ms. Gilbert stated that was correct. Supervisor Jacobs questioned if Ms. Gilbert in referencing items #5, #6, #8, #9, and #10, meant that if the City/County did not adopt the Services' recommendation the Service could change what the City/Council did. Ms. Gilbert stated the eleven items in the matrix were believed to be resource conflicts with different degrees of magnitude. The term "fatal flaw" was interpreted as those decisions made that precluded good preserve planning and would require either future General Plan amendments to change the decision made now or major modifications to the project. She stated she was not predetermining the result of a 10A permit application by the project. That process was very involved and required the preparation of a habitat conservation plan and evaluation of the specific impacts of that permit. There were resource conflicts on all eleven items. Some of them were things that could be resolved at a SPA level. Supervisor Jacobs stated those items were #1, #2, #3, #4, #7, and #11 and if the Council/Board wanted to, they could put it off to the SPA level. Minutes September 3,3, 1993 Page 8 Ms. Gilbert stated that was her understanding. She recommended that the Council/Board address the other issues at the current level. Supervisor Jacobs stated she wanted a straight answer. She did not want to be fooled into believing that the Council/Board was doing something that was good planning only to have the Service change it. Ms. Gilbert stated she was not in a position to state that if the City/County did not do it the Service would undo it. She was in a position to say that if the City/Council did take federally listed species, they would have to obtain a federal permit from the Fish & Wildlife Service. The Service had urged the applicant to come in and get a permit from the start. Councilmember Fox felt it was unfair that the Council/Board could not get a straight answer. It was very apparent the Southbay and Otay Ranch was assuming a larger burden for mitigation and could be mitigating for other areas in the region as well. Councilmember Moore stated it had been his experience that Fish & Wildlife always won. He felt if the City/County gave now, the Service would want more later. He questioned if there was someone in the organization that could say if the City/County met the commitment at the current level for those fatal flaws, the Service would ensure they would not take at the SPA level. There should be a win/win situation but in dealing with Fish & Wildlife through the Council, it had always been win/lose. Councilmember Rindone questioned if there were other areas that had not been identified as potential fatal flaws. Ms. Gilbert responded the only area would be #11 on the matrix. The information gathered on those areas had not been released and, therefore, they were unable to comment. · William E. Tippets, Field Office Supervisor, Natural Communities Conservation Planning Program, CA Department of Fish & Game, 8885 Rio San Diego Drive, Suite 270, San Diego, CA, stated the Otay Ranch area was a critical area in terms of conservation of coastal sage scrub. They had concerns from Fish & Game as well as the NCCP Program point of view. Their concerns regarding the documents presented for Otay Ranch were presented in Referral #2 of the matrix. With planning for the perceived series of endangered species it did not pay for anyone to put off prudent decision making or make rash decisions that could not be supported later. They were supporting the same position of the Service that areas #5, #6, #8, #9, and #10, presented great problems in terms of long term biological conservation. They believed there was a flexibility to work at the SPA level to resolve the other issues. · Richard Wright, 13844 Avenida de la Luna, Jamul, CA, Professor of Geography, former member of the Count3Ps Growth Management Task Force and County Planning Commission, felt there were two serious shortcomings in the EIR. The first, the EIR did not adequately address the creation of a natural greenbelt between the urban sections and the surrounding or existing communities. The second issue was that the EIR was deficient in evaluating the impact of the project on wildlife viability. Councilmember Fox stated the percentage of coastal sage scrub proposed to be saved in the Carlsbad Habitat Management Plan was 55% city-wide. The Otay Ranch would be preserving 70%. He was sensitive to the needs of preserving those areas but, "fair share' also needed to be talked about. The greater burden should not be placed in the Southbay. Mr. Wright stated he agreed with most of Councilmember Fox's statements. He was u3Ang to focus on the need to be very concerned about the corridors. Minutes September 13, 1993 Page 9 Mr. Tippets stated Fish & Game had not approved the Carlsbad HMP, it was still in review. · Jim Mayberry, 967 Loma View, Chula Vista, CA, stated there was no explanation as to the criteria used for the designations on the map. He felt that was important so a habitat could be put together to ensure that wildlife could live in the area. The plan needed to include performance standards as required by law. If planned that way the City/County would also be preserving the habitat for a lot of associated species. · Kath Ann Fetters, 1183 Flamingo, E1 Cajon, CA, stated she owned 160 acres immediately adjacent to the project and gave a handout to the Council/Board. Mr. Lertieri stated Ms. Fetters property was just south of the Delzura planning area. Ms. Fetters stated she purchased her property three to four years ago and did not know about the Otay Ranch project. Their intent was to build eight homes on the 160 acres. She questioned if the coastal sage on the adjacent BLM property was factored into the mitigation. She further questioned why the Fish & Wildlife and Fish & Game could hold someone hostage to the point that a Councilmember could state they had never won a match with them. She requested that the property adjacent to hers not be designated as open space. Ms. Gilbert responded that all public lands were considered, i.e. BLM lands, Naval Air Station Miramar, and Camp Pendelton. Those federal agencies were obligated under law to ensure they did not jeopardize the continued existence of endangered species. The majority of the BLM land on Otay Mountain did not contain coastal sage scrub. Supervisor Slater stated she was appalled. The property owner had purchase property in good faith and questioned why she could not build eight homes there. She also questioned whether it was a taking. Supervisor Bilbray stated that Ms. Fetters concern was that according to the Multi Species Management Plan, as she interpreted the map, it would restrict her building. He did not feel she could look at the map and assume that her ability to build residences had been removed. · Patricia Gerrodette, 3820 Ray Street, San Diego, CA, Chair of Land Use Committee for the Sierra Club, stated she was disappointed to find that very little had changed regarding staffs position over the last two months. Fish & Wildlife was warning the City/County that there were parcels that were significant and had the potential to be denied permission, under the Endangered Species Act, for development. She also felt it was telling that Fish & Wildlife had been urging the applicant to come in from the beginning to obtain a 10A permit so they could get more definitive answers. She felt Ms. Gilbert had given a very definite warnings regarding the "fatal flaws" in the matrix. · Dan Silver, 8424A Santa Monica Boulevard #592, Los Angeles, CA, Coordinator for the Endangered Habitats League, stated he was not there to oppose all development on the site. Their advice had been on the bottom line priorities needed to successfully integrate housing development with the natural community. They had deep concerns with the possible misuse of the Wildlife Corridor Study. It was not meant to justify inappropriate development in places that were actually core habitat areas such as the areas north and south of the lake. The coordination promised in the EIR with the Multiple Species Plan was inadequate. The MSCP data on the gnatcatcher evaluation map, and on the gnatcatcher viability analysis of the reserve analysis had not been brought to the Council/Board or analyzed in relation to the project. They felt the Council/Board could not adequately assess project impacts to the regional ecology for that reason. The intentional withholding of the information violated the heart of CEQA which was full disclosure. They requested that the Council/Board ask that County staff present and analyze the information. There was a Minutes September 13, 1993 Page 10 clear consensus from the project EIR, and from State and Federal wildlife agencies, that development south and east of the lake was unmitigable and unrealistic to consider. He requested that the City/County create a nature reserve and green belt at no cost to the taxpayers. Councilmember Fox questioned the comment regarding the information staff had not disclosed. He questioned whether Mr. Silver was implying that staff had the information and was deliberately withholding it. Mr. Silver responded there were several maps the Council/Board had not seen nor had they been interpreted by a biologist as to their meaning. There was the gnatcatcher habitat evaluation map, the gnatcatcher population viability analysis, and a series of maps on potential alternative reserve envelopes. He felt it could present a serious legal problem if they were not disclosed, analyzed, and brought to the attention of the Council/Board. Regarding the withholding of the information, he would rather not make a conclusion but it did appear that way to him. Mr. Lettieri responded the habitat evaluation map was the highly colored map that Dr. Mock had discussed. The population viability analysis was the map he had presented in July which showed the line for the gnatcatcher at the 950 elevation. If there were other maps that had come out within the last month or two, staff was unaware of them. It was his understanding that the third series of maps referred to, i.e. tentative preserve boundary, was not public information. It was his understanding they were all MSCP maps. Mr. Silver stated they were MSCP maps and were all public. There was a gnatcatcher habitat evaluation map which he felt would be helpful. Supervisor Jacob questioned if Mr. Silver's review of the maps supported the recommendations made by Fish & Wildlife. Mr. Silver responded that they did. Mr. Lettieri stated staff had given the Council/Board every piece of information they had. He had not seen the maps. · Robert Fisher, 512 Patricia Avenue, Chula Vista, CA, passed out copies of the Federal Register regarding the final rnling on Distribution of Species Among Vernal Pool Group Sites, and noted the only site in southern California where all four of the endangered species occurred was on Otay Mesa. · Kim Kilkenney, representing Baldwin Company, stated that at the prior heating the Endangered Habitats League had an organized presentation that lasted over one hour and, to date, the applicant had not had an opportunity to address those concerns. He hoped to respond to all the issues raised in a twenty minute presentation. The first half would be by Hugh Hewitt, Partner in Hewitt & Maguire, a recognized authority on the interrelationship of the Endangered Species Act and ptivate property owners. The Council/Board recessed at 6:09 p.m. and reconvened at 6:21 p.m. · Hugh Hewitt, Hewitt & Maguire, stated the real question to direct to the Service was if it was possible that a plan that included staff recommendations would yield a 10A permit from the Federal government. It was possible, as there was no legal answer to that question except yes, it was possible. No one could say as it depended on the National Environmental Policy Act. It was unconscionable for the Service to suggest that they would do everything in their power to turn down a project that encouraged staff Minutes September 13, 1993 Page 11 recommendations. That was also beyond the National Environmental Policy. The City/County should vote their vision and figure out the best project on a multiple of different issues. Then the Service and applicant, along with the local sovereigns, would hammer it out in a 10A process. It was an academic discussion for the City/County to engage with the Service as to what their crisis points were because the Act would change dramatically when it was reauthorized in one or two years. The complexities of a land use plan of even one- tenth of the Otay Ranch project would require first that the local sovereign be consulted to fred out what the basic needs package was. Therefore, no one applied for a permit early. The City/County needed to decide what they would do absent the Endangered Species Act. The City/County job under CEQA was to know the impacts of the sensitive resources, including endangered species and to assure there was mitigation. If the mitigation did not mitigate to a level of non-significance and then it was followed by a Statement of Overriding Consideration. It was not the intent of the Endangered Species Act, and would never be, to force feed those considerations into a planning process. Every Section 1A permit ever issued by the US Fish & Wildlife Service, and to his knowledge there was only one issued to a private property owner applying on their own, had followed with negotiations after the land use enti~ement was in place. The NCCP would influence the structure of the 10A that came forward and there could be additional mitigations required by the US Fish & Wildlife Service. The reason the Service wanted the City/County to do it now was because if it was done now there would not be condemnation of property or contervention of the Fifth Amendment. If a 10A process brought a plan forward and the US Fish & Wildlife Service shot it down, they bought the property. Dr. Silver's presentations were not scientifically credible. The MSCP was mandated as a mitigation requirement to the Clean Water Program but, it was not mandated to be implemented. The plan must be put forward but the plan must not be adopted. The staff recommendations went further than he would have regarding US Fish & Wildlife Service. Councilmember Fox stated his vision was estate homes south and east of the lake but they were being told by Fish & Wildlife that it would compromise the wildlife corridors and fundamental reserve design principal. He questioned if he should ignore such statements. Mr. Hewitt responded that those comments were in the record but should not ultimately impact the vision. If in fact they did compromise the wildlife corridor to the extent that they would compromise the viability of not only the gnatcatcher or any other endangered species, they would be obliged to delete those estate lots. Councilmember Fox stated he was not certain he could accept Mr. Hewitfs statement. He had faith in staff that they were giving Council all the information available. Mayor Nader felt it was Council's business to consider impacts on endangered species because: 1) if Council followed Mr. Hewitfs recommendation, the City could be left without estate housing; 2) under CEQA the City was required to consider the impacts and it was not a matter of coming up with statements of overriding considerations; and 3) even if all the laws were removed, the City had a responsibility to posterity. He commended the Baldwin Company for being one of the better developers to bring forward a plan that set aside over 60% of the land ownership as open space. Mr. Hewitt stated the Endangered Species Act attached significance but immediately began to take it back. The Service had published a rule in regards to gnatcatchers that said "in the short term they would allow a 5% take of Coastal Sage Scrub and in the long run they would allow additional take". He was not suggesting that it was not an impact, he was suggesting that the City/County could not arrive on a decision now as to whether or not that take of the estate lots would be allowed. The Service ultimately had to make that decision. Supervisor Jacobs questioned if the US Fish & Wildlife made the land use decision rather than the City/County, they would be the one that would have to pay. Minutes September 13, 1993 Page 12 Mr. Hewitt responded that was correct. Under the Lucas decision last year, and the majority decision by Justice Sclea, any decision by the federal government that rendered land economically idle was a taking that had to be compensated. Mr. Kilkenney stated the Baldwin Company had been frustrated with the planning of Otay Ranch, especially with respect to biology. They had gone through nine EIR alternatives and it was an EIR that was unparalleled in the history of the process, and a public and professional participation unparalleled in planning throughout the region. He distributed a listing of all the meetings US Fish & Wildlife had artended. All the changes in the land plans and PuMP were in response to their comments. The process had incorporated their viewpoints and was responsive. Another source of frustration was that positions continued to change from the biological community. The Resource Management Plan was the backbone of the Otay Ranch plan and was one of the most sophisticated documents of its type ever prepared. It set aside 62% of Otay Ranch as a preserve and would manage and monitor it for decades. It would also enhance the areas that were degraded. They had done the best job that could be done for the project. 4. ADJOURNMF2qT There being no further comments from the Council or Board, the Mayor adjourned the joint hearing at 6:54 p.m. to the next joint hearing scheduled on Monday, September 27, 1993 at 3:00 p.m. in the County Board Chambers. Respectfully submitted, - BEVERLY A. AUTHELET, CMC, City Clerk .) Vicki C. Sod~rquist, Depu~i)ty Clerk