| |||||||||
COUNTY OF SAN MATEO ENVIRONMENTAL SERVICES AGENCY | |||||||||
Date: |
April 10, 2002 | ||||||||
Set Time: |
10:00 a.m. | ||||||||
Hearing Date: |
April 30, 2002 | ||||||||
To: |
Honorable Board of Supervisors | ||||||||
From: |
Marcia Raines, Director of Environmental Services | ||||||||
Subject: |
Consideration of an appeal of the Planning Commission's decision to approve a Coastal Development Permit to authorize exploratory geotechnical work for the proposed Devils Slide Tunnel. This project is appealable to the California Coastal Commission. | ||||||||
County File Number: |
PLN 2001-00799 (CalTrans) | ||||||||
RECOMMENDATION | |||||||||
Deny the appeal and uphold the decision of the Planning Commission to approve the Coastal Development Permit, County File No. PLN 2001-00799, by adopting the required findings and conditions of approval listed in Attachment A. | |||||||||
PROPOSAL | |||||||||
In 1996, the applicant, CalTrans, prepared a geotechnical investigation of the proposed tunnel alignment to determine the feasibility of such a project. The tunnel has since become the applicant's preferred alternative to address the Devils Slide problem. The applicant is now proposing additional boring and trenching to further evaluate and characterize soil and geologic conditions at the north and south tunnel portals, along the tunnel alignment, and at the proposed disposal area. Improvements to existing paths, trails, and dirt roads, and the creation of additional paths and trails, are proposed to provide vehicular and foot access to the boring and trenching sites. All areas disturbed by the proposed project will be restored upon the completion of the geotechnical work. The overall project consists of three distinct parts: investigative borings for the north portal bridge, borings and trenchings along the proposed tunnel alignment and borings within the proposed disposal site. | |||||||||
BACKGROUND | |||||||||
Report Prepared By: Michael Schaller, Project Planner, Telephone 650/363-1849 | |||||||||
Appellant: Oscar Braun | |||||||||
Applicant: CalTrans | |||||||||
Owner: Dana Denman, Andreas Bechtolsheim, June Schanbacher, and Charlies Heiser Tr. | |||||||||
Location: Devils Slide, near Pacifica | |||||||||
APNs: 023-731-020, 023-741-010, 023-741-020, 036-380-060, 036-380-070, 036-380-080, 036-380-120 | |||||||||
Existing Zoning: RM-CZ (Resource Management District - Coastal Zone), PAD (Planned Agricultural District), RM (Resource Management District) | |||||||||
General Plan Designation: General Open Space and Agriculture | |||||||||
Sphere-of-Influence: Pacifica | |||||||||
Existing Land Use: Open Space | |||||||||
Flood Zone: Zone C (Areas of Minimal Flooding), FEMA Panel 060311-0085B | |||||||||
Environmental Evaluation: CalTrans is the lead agency. They have filed a Categorical Exemption under Sections 15301(c)(1), 15302, and 15306 of the California Environmental Quality Act. | |||||||||
Setting: North Portal Bridge. The proposed borings for the bridge straddle a ravine adjacent to the existing Highway 1 alignment. The borings on both sides are on relatively steep slopes. The bottom of the ravine is dominated by an agricultural pond. Most of the boring sites contain moderate to dense Northern Coastal Scrub. Dominant plant species include coyote brush and California sage. Other common species include coffeeberry, oceanspray, blackberry, and poison oak. Boring Sites 8 and 9 are dominated by non-native Monterey cypress with almost no understory vegetation. Boring Site 7, located within a former ranch refuse area, is dominated by ice plant. No plant or wildlife species of concern were observed at the bridge boring sites during field surveys for the biological report. However, boring Sites 6, 7, 8 and 9 are adjacent to potential foraging and estivation habitat for California red-legged frog surrounding the afore-mentioned agricultural pond. | |||||||||
Tunnel Alignment and Disposal Area. This portion of the project site is defined by San Pedro Mountain, the dominant topographic feature of the site. Development in this area is limited to the Shamrock Ranch to the north of the tunnel site, an old abandoned county road, several graded fire and utility maintenance roads, and foot trails which crisscross the coastal mountains in this location. The plant communities on the site are strongly influenced by the dense fog and high winds that are common in this area. Northern Coastal Scrub covers most of the site; this plant community consists of moderate to very dense scrub, and is dominated by coastal sage and coyote bush. | |||||||||
Chronology: | |||||||||
Date |
Action | ||||||||
December 6, 2001 |
- |
Application received. | |||||||
March 27, 2002 |
- |
Planning Commission approves Coastal Development Permit for geotechnical work. | |||||||
March 27, 2002 |
- |
Appeal filed. | |||||||
April 30, 2002 |
- |
Board of Supervisors hearing. | |||||||
DISCUSSION | |||||||||
A. |
PREVIOUS ACTION | ||||||||
The Planning Commission voted 5-0 to approve this project. In doing so, the Commission adopted the proposed findings and conditions as presented by the Planning Division in Attachment A of the staff report. | |||||||||
B. |
KEY ISSUES OF THE APPEAL | ||||||||
1. |
The appellant filed the appropriate appeal form, with an attached packet, on March 27, 2002. Under "Basis for Appeal," Mr. Braun states, "Attached, please find complete set of appeal documents." This packet is included as Attachment B. The documents contained in the packet discuss at great length the Devils Slide Tunnel and the appellant's opposition to that project. However, at no time does the appellant state what his point of appeal is concerning this stand-alone project (the geotechnical work). | ||||||||
However, staff would like to address two recurring themes from the packet that could be applied to this permit. The first contention is that the larger, Devils Slide tunnel project destroys protected habitat, which is not allowed under the Bolsa Chica court case. However, as pointed out above, the current application is for a stand-alone project, and as described by the project description and maps and analyzed by staff, this project will not have an impact upon protected habitat or required buffer zones. This is discussed further below. It should also be noted that, under all reviews undertaken so far, the tunnel concept has been found to be consistent with the County's LCP and the California Coastal Act. | |||||||||
In addition, the appellant appears to contend that this proposed project (the geotechnical work) violates a court ordered injunction, issued against the Martini Creek bypass project. County Counsel has advised staff that the court injunction does not apply to the current application. | |||||||||
C. |
KEY ISSUES | ||||||||
1. |
Conformance with the County General Plan and Zoning Regulations | ||||||||
State and federal projects are exempt from local agency review pursuant to Section 53091 of the State Government Code. | |||||||||
2. |
Conformance with the Local Coastal Program (LCP) | ||||||||
A Coastal Development Permit is required pursuant to San Mateo County LCP Policy 2.1, which mandates compliance with the California Coastal Act for any government agency wishing to undertake development in the Coastal Zone. The following sections of the LCP are relevant to this project: | |||||||||
a. |
Sensitive Habitats Component | ||||||||
Policy 7.1 (Definition of Sensitive Habitats). This policy defines sensitive habitats as any area in which plant or animal life or their habitats are either rare or especially valuable. This includes all perennial and intermittent streams and their tributaries, lakes and ponds, and adjacent shore habitat. Sensitive habitat areas include riparian corridors, wetlands, and habitats supporting rare, endangered, and unique species. The biological surveys identify several areas of sensitive habitat within the general project area: | |||||||||
· |
Intermittent stream feeding the North Pond (meets Riparian Corridor definition). | ||||||||
· |
The area immediately around the North Pond (meets the Wetlands definition). | ||||||||
· |
Intermittent stream adjacent to the North Portal (meets Riparian Corridor definition). | ||||||||
· |
Uphill drainage area adjacent to the South Portal (meets Riparian Corridor definition). | ||||||||
· |
Seasonal ponding depression adjacent to the South Portal (meets the Wetlands definition). | ||||||||
· |
Uphill seasonal ponding depression adjacent to the Disposal Site (meets Riparian Corridor definition). | ||||||||
· |
Downhill seasonal ponding depression within the Disposal Site (meets Riparian Corridor definition). | ||||||||
Each of these areas has an associated buffer zone. As discussed below in the relevant policy sections, all work originally proposed for these areas has been eliminated or moved to avoid potential impacts to sensitive habitat areas. | |||||||||
Policy 7.3 (Protection of Sensitive Habitats). This policy requires that development in areas adjacent to sensitive habitats be sited and designed to prevent impacts that could significantly degrade these resources. All uses shall be compatible with the maintenance of biologic productivity of the habitats. Several of the proposed boring sites will be adjacent to the above-listed sensitive habitats. Bores 8 and 9 for the bridge have been sited just outside of the buffer zone for the intermittent creek and the associated North Pond at the north end of the project site. The applicant is proposing to place exclusion fencing around this sensitive habitat area to ensure that no work or soil disturbance accidentally intrudes into the area. Additionally, as stated in the detailed project description, the applicant will be implementing a comprehensive sediment control plan during the drilling phase of this project and post-drilling erosion control measures. These actions will prevent sediment from entering the pond and damaging its biological value. | |||||||||
In and around the North Portal area, Boring 01-9A/B and Trench 01-T3 will be just outside the buffer zone for the intermittent creek in this area. In both cases, the proposed work has been sited in locations that will require minimal disturbance to reach and still provide the necessary data. To avoid impacts to identified resources, the applicant is proposing to demarcate exclusion zones with fencing and to implement erosion control measures. These proposed measures are outlined in Appendix F. Staff believes these measures are sufficient to prevent significant impacts from occurring to the adjacent resources. | |||||||||
Policy 7.7 (Definition of Riparian Corridor). As stated above, the biological reports have identified several locations within the areas of work that meet the LCP's definition of a riparian corridor. These areas are shown on the project maps and their relationship to the proposed geotechnical sites are discussed in the reports. No work will occur within the defined riparian areas. | |||||||||
Policy 7.18 (Establishment of Buffer Zones (for Wetlands)). This policy requires the establishment of buffer zones around areas meeting the definition of "wetlands." Specifically, a buffer zone of 100 feet, from the outermost line of wetland vegetation, is required. This setback may be reduced to no less than 50 feet only where no alternative development site or design is possible and when the adequacy of the reduced setback is demonstrated by a professional biologist to the satisfaction of the County and the State Department of Fish and Game. The buffer zone for the South Portal wetland has been mapped on the accompanying drawings. Under the revised application, no work will occur within this buffer zone. However, at the North Pond, the applicant has not denoted the required buffer zone on the site plans. Analysis by staff indicates that the proposed Bore No. 9 will be within the 100-foot buffer zone for the North Pond. It should be noted that vegetation at this site consists of Monterey cypress trees. However, to bring the project into compliance with this policy, staff is recommending a condition of approval removing this boring site unless the applicant can provide a written confirmation from the State Department of Fish and Game stating their approval of a 50-foot buffer zone for this pond, as provided by part two of the policy. | |||||||||
Policy 7.32 (Designation of Habitats of Rare and Endangered Species). This policy requires the County to designate habitats of rare and endangered species including, but not limited to, those areas defined on the Sensitive Habitats Map for the Coastal Zone. As mentioned above, LCP Policy 7.1 (Definition of Sensitive Habitats) defines "Sensitive Habitat" in part as "any area in which plant or animal life or their habitats are either rare or especially valuable and any area which meets one of the following criteria: (1) habitats containing or supporting `rare and endangered' species as defined by the State Fish and Game Commission . . ." Next, LCP Policy 7.3 (Protection of Sensitive Habitats) prohibits any land use or development that would have a significant adverse impact on sensitive habitat areas. The policy further provides that "development in areas adjacent to sensitive habitats shall be sited and designed to prevent impacts that could significantly degrade the sensitive habitats. All uses shall be compatible with the maintenance of biologic productivity of the habitats." Finally, for rare and endangered species specifically, LCP Policy 7.33 (Permitted Uses (within habitats of rare and endangered species)) identifies three permitted uses within habitats of rare and endangered species: (1) education and research, (2) hunting, fishing, pedestrian and equestrian trails that have no adverse impact on the species or its habitat, and (3) fish and wildlife management to restore damaged habitats and to protect and encourage the survival of rare and endangered species. LCP Policy 7.33 (b) further states that "[i]f the critical habitat has been identified by the Federal Office of Endangered Species, permit only those uses deemed compatible by the U.S. Fish and Wildlife Service in accordance with the provisions of the Endangered Species Act of 1973, as amended." | |||||||||
The biological reports submitted for the current project have identified the presence of California red-legged frog in the upper ponds of the Shamrock Ranch. One of the reports states that bridge boring Sites 6, 7, 8 and 9 are adjacent to potential foraging and estivation habitat for the frog. However, the report also noted that, in developing plans for the tunnel project itself, CalTrans prepared a Biological Assessment in 1999 that included protective measures for the California red-legged frog. A Biological Opinion was issued by the U.S. Fish and Wildlife Service ("USFWS") that concluded that the tunnel bypass, with proposed conservation measures, was not likely to jeopardize the continued existence of the red-legged frog or destroy or adversely modify proposed critical habitat (USFWS, 2000). One of these conservation measures was the designation of existing red-legged frog habitat as an Environmentally Sensitive Area (ESA). Another mitigation measure, which has already been implemented, was the removal of all red-legged frogs from the North Pond and placement in a new pond designed in collaboration with USFWS. Once the frogs were removed, a barrier fence was installed around the North Pond, thereby preventing any frogs from getting out of the pond. At this point, the frog population has been removed from the North Pond, and the report determined that it is not expected that the Geotechnical Investigation Program will have an effect on foraging or aestivating frogs in the North Pond area. | |||||||||
Nevertheless, the report went on to recommend several mitigation measures to avoid any potential impacts to the frog during the geotechnical work. These measures included the construction of a barrier fence with one-way funnel openings around the North Pond. Also, before any project work begins at each boring site or new access road location, a biologist will survey the site for red-legged frog. The biologist will monitor each activity site once a day until the work is completed. | |||||||||
At the time of the Planning Commission hearing, the language in the biological report appeared to indicate that bridge boring Sites 6, 7, 8 and 9 were actually located within the ESA. This raised a potential conflict with LCP Policy 7.33, which does not include geotechnical testing as an allowed use within a rare and endangered species habitat. | |||||||||
CalTrans has now provided further maps and information, which establish that boring Sites 6, 7, 8 and 9 are not located within the sensitive habitat area (see Attachment C). The sites are outside but adjacent to the ESA. As a result, there is no potential conflict with LCP Policy 7.33(a) since the drilling will not take place within the ESA. The proposed project is also consistent with LCP Policy 7.33(b) in that the project has been designed in compliance with the ESA and mitigation measures identified by the 2000 Biological Opinion issued by USFWS. Finally, with the mitigation measures recommended in the biological report, the project is consistent with LCP Policy 7.3, which addresses development in areas adjacent to sensitive habitats. As conditioned, the project has been designed to prevent impacts, which would significantly degrade those resources and is compatible with the continuance of the ESA. At this point, it is unlikely that any frogs are present in the North Pond or would be at the proposed testing sites. Before any work is done, a biologist will survey the site for red-legged frog and monitor each activity site daily until the work is done. | |||||||||
Policy 7.34 (Permit Conditions). This policy requires the submittal of a biological report, which not only identifies the rare and endangered species and their habitats within a project area, but also how the proposed development will not impact the functional capacity of the habitat and recommended mitigation if development is permitted within or adjacent to identified habitats. As indicated to previously, extensive biological reports have been submitted as part of this project application. | |||||||||
Policy 7.52 (Public Agency Requirements). This policy requires public agencies, to the degree feasible, to remove undesirable pampas grass and French, Scotch, and other invasive brooms from their lands. As part of their overall erosion and sediment control measures, the applicant has proposed implementing an invasive weed control program. | |||||||||
b. |
Visual Resources Component | ||||||||
Policy 8.6 (Streams, Wetlands, and Estuaries). This policy requires all development be set back from the edge of streams and other natural waterways a sufficient distance to preserve the visual character of the waterway. There are three areas around the North and South Portals, which meet the definition of "riparian corridor" according to the LCP. None of these areas is associated with a perennial stream or creek. No development is proposed within the buffer zones around these riparian corridors. Work will be occurring in areas immediately adjacent to these buffer zones. However, no riparian vegetation will be removed to accommodate this work. All disturbed areas will be treated for erosion control and native vegetation restored upon completion of the geotechnical work as conditioned in Attachment A. | |||||||||
Policy 8.9 (Trees). This policy requires new development to be located and designed to minimize tree removal. Bridge Bores 8 and 9 will be located within a dense grove of Monterey cypress trees. Additionally, the applicant is proposing to cut an access path from Highway 1 down to these locations. Removal and/or severe pruning of several of these trees appears to be unavoidable. The dictates of the bridge design require that two of the bridge columns be placed at these locations. The precise location of the bridge and tunnel were decided after a lengthy feasibility analysis, which evaluated the known constraints of the project area. Before the final design of the bridge structure can be completed, the applicant needs to know what the subsurface conditions are. The proposed access path from Highway 1 to the boring sites is the least impacting route. The alternative route to access these sites would be from the bottom of the hill that would require crossing a riparian zone. This route would have had more significant impacts upon sensitive resources, and was rejected. The applicant has proposed removing only that amount of vegetation necessary to access the two boring sites. Again, replacement of removed vegetation has been included as a condition of approval for this project. | |||||||||
Policy 8.10 (Vegetative Cover). This policy requires vegetation removed during construction be replaced with plant materials (trees, shrubs, groundcover), which are compatible with surrounding vegetation and are suitable to the climate, soil, and ecological characteristics of the area. For those bores proposed for the bridge columns, the applicant has proposed restoration planting and an invasive weed control program. For other disturbed areas on the project site(s), the applicant has proposed allowing the northern coastal scrub habitat to regenerate on its own. However, staff believes that a more proactive approach is required due to the high visibility of some of the work areas. A condition has been added which requires the submittal of a revegetation plan. The plan shall outline species to be used, their percentage at each location, and shall establish success criteria. | |||||||||
Policy 8.17 (Alteration of Landforms; Roads and Grading). This policy requires new development be located and designed to conform with, rather than change landforms. It also emphasizes minimizing the alteration of landforms as a consequence of grading, cutting, excavating, filling or other development. To the degree possible, the applicant shall ensure restoration of pre-existing topographic contours after any alteration by development. This policy also requires the County to control development to avoid the need to construct access roads visible from State and County Scenic Roads. New access roads may be permitted only where it is demonstrated that use of existing roads is physically or legally impossible or unsafe. New roads shall be (1) located and designed to minimize visibility from State and County Scenic Roads, and (2) built to fit the natural topography and to minimize alteration of existing landforms and natural characteristics. | |||||||||
The project as proposed (borings, trenchings, new access trails/roads) will not substantially alter the existing contours of the project site. No terra-forming of hillsides is proposed. The testing program has been designed to utilize existing roads and trails as much as possible. The applicant has even gone so far as proposing to airlift equipment into several sites to avoid having to cut access trails. The applicant has proposed restoring disturbed areas by replacing all side-cast material and compacting to the extent practicable. Erosion control measures will be implemented to ensure that the restored material stays in place. | |||||||||
Part of the project proposal requires the construction of a new access road and trails in order to reach proposed drilling sites. The new road is in the vicinity of the North Portal and will essentially travel down the nose of one of the finger ridges which comprise this portion of the project site. There are no existing roads or trails by which to reach these various sites at this location. This road will be visible to vehicles traveling southbound on Highway 1. As stated in the project description, this road will be reclaimed after the geotechnical work has been completed. | |||||||||
Policy 8.31 (Regulation of Scenic Corridors in Rural Areas). This policy calls for the application of the Scenic Road and Rural Design standards of the County General Plan, Zoning District, and LCP. As stated above, portions of the work area will be visible from Highway 1. Additionally, completing this project will necessitate the removal of vegetation within a designated County Scenic Corridor. The relationship of these potential impacts to the respective policies was discussed above. | |||||||||
D. |
ENVIRONMENTAL REVIEW | ||||||||
The environmental review of this project was conducted by CalTrans. Section 15050 of the CEQA Guidelines delineates the Lead Agency concept: where a project is to be carried out or approved by more than one public agency, one public agency shall be responsible for preparing the environmental review. For the purposes of this project, CalTrans, as the agency which will actually carry out the project, assumed the Lead Agency role. On January 30, 2002, CalTrans filed a Categorical Exemption under Section 15306 (Information Collection) of the CEQA Guidelines. | |||||||||
E. |
REVIEWING AGENCIES | ||||||||
California Coastal Commission | |||||||||
Subsequent to the Planning Commission's decision on this permit, staff received comments from the Coastal Commission regarding compliance of the project with certain policies in the County's LCP. The Coastal Commission's concerns are addressed below: | |||||||||
Policy 8.5 (Location of Development). This policy requires that new development be located on a portion of a parcel where the development is: (1) least visible from State and County Scenic Roads, (2) least likely to significantly impact views from public viewpoints, and (3) consistent with all other LCP requirements, best preserves the visual and open space qualities of the parcel overall. The nature of the proposed work differs significantly from typical development in that the location of proposed borings is fixed by the approved alignment of the tunnel and the need to acquire detailed geotechnical information about the subsurface conditions along that alignment. While the proposed exploratory work will be visible, it is a temporary impact. To minimize impacts as much as possible, the applicant has designed the work program to use existing trails as much as possible. To avoid conflicts with LCP sensitive habitat policies, the applicant has relocated several of their proposed drilling locations, thus preserving the visual resources associated with these sensitive areas. By relocating these drilling sites, the applicant has also eliminated the need for approximately 150 feet of new access road around the North Portal. The applicant has also proposed using temporary slope ladders to access drilling locations around both the north and south portals. The applicant has proposed an extensive restoration program to mitigate the temporary impacts to the visual resources on the site. Staff believes that these avoidance and mitigation measures bring the project into compliance with Policy 8.5. | |||||||||
Policy 8.7 (Development on Skylines and Ridgelines). This policy prohibits the location of development, in whole or in part, on a skyline or ridgeline, or where it will project above a skyline or ridgeline, unless there is no other developable building site on the parcel. This policy typically applies to permanent, structural development, hence the reference to building site. However, the proposed geotechnical work is considered development as described by the LCP. As described above, the proposed drilling locations are dictated by the fixed alignment of the proposed tunnel. Also as described above, the applicant is using existing roads as much as possible to access the proposed drilling sites. However, the location of several of the drilling locations along the nose of the ridge leading down to the North Portal and in the area of disposal site require new access roads to be created. These roads will be temporary and all disturbed areas will be restored upon the completion of the exploratory work. Staff believes that the required mitigation measures bring the project into compliance with this policy. | |||||||||
VISION ALIGNMENT | |||||||||
The proposed project keeps the commitment of "Responsive, Effective, and Collaborative Government" and goal number 20: "Government decisions on based on careful consideration of future impact, rather than temporary relief or immediate gain." The Devils Slide Tunnel, for which the proposed geotechnical work is being conducted, is the public's preferred method of addressing the frequent road closures associated with the Devils Slide. The County's active cooperation with the applicant to construct this tunnel and with other responsible agencies to review its impacts achieves the commitment of a government responsive to its constituents. The County's analysis of this project, as well as all of the other segments of this large project, is based upon very careful consideration of the potential impacts caused by the project as well as the potential long-term benefits. | |||||||||
FISCAL IMPACT | |||||||||
Not applicable. | |||||||||
ATTACHMENTS | |||||||||
A. |
Recommended Findings and Conditions of Approval | ||||||||
B. |
Copy of the Appellant's Appeal | ||||||||
C. |
Site Plans | ||||||||
