COUNTY OF SAN MATEO

Inter-Departmental Correspondence

 

ENVIRONMENTAL SERVICES AGENCY

 
 

DATE:

June 21, 2004

   

SET TIME:

10:00 a.m.

   

BOARD MEETING DATE:

July 6, 2004

 

TO:

Honorable Board of Supervisors

 

FROM:

Marcia Raines, Director of Environmental Services

 

SUBJECT:

Consideration of an appeal of the Planning Commission’s decision to deny certification of a Negative Declaration and require preparation of a focused EIR for a 4-lot subdivision of a 49,322 sq. ft. parcel, at 40 Bishop Lane, in the unincorporated West Menlo Park area of San Mateo County.

 
 

County File Number:

PLN 2002-00445 (Chandelle LLC/Misselwitz)

 

RECOMMENDATION

 

Deny the appeal and uphold the Planning Commission’s decision to require the applicant fund the preparation of a focused Environmental Impact Report (EIR) for the proposed project.

 

PROPOSAL

 

The applicant, Ted Misselwitz, is seeking approval to subdivide a 49,322 sq. ft. parcel, located adjacent to San Francisquito Creek, into four residential parcels of 9,242 net sq. ft. (Parcel 1), 13,086 net sq. ft. (Parcel 2), 12,151 net sq. ft. (Parcel 3), and 9,389 net sq. ft. (Parcel 4). Access will be provided via a 170-foot long access easement with a turnaround at the end. The applicant has submitted a street name change application to name this easement “Bishop Oaks Court.” The applicant has also applied for a lot line adjustment with an adjacent property owner. The exchange of land is necessary to facilitate a radius entry onto the access easement.

BACKGROUND

 

Report Prepared By: Michael Schaller, Project Planner, Telephone 650/363-1849

 

Appellant: Ted Misselwitz

 

Applicant: Chandelle LLC

 

Owner: Chandelle LLC

 

Location: 40 Bishop Lane, West Menlo Park

 

APN: 074-301-130

 

Size: 1.13 acres (49,322 sq. ft.)

 

Existing Zoning: R-1/S-7 (Single-Family Residential/5,000 sq. ft. minimum parcel size)

 

General Plan Designation: Medium Density Residential (6.1-8.7 dwelling units/net acre)

 

Sphere-of-Influence: Menlo Park

 

Existing Land Use: Single-family residential

 

Water Supply: California Water Service

 

Sewage Disposal: West Bay Sanitary District

 

Flood Zone: Zone C (areas of minimal flooding), Community Panel No. 060311-0265B, effective date July 5, 1984

 

Environmental Evaluation: Revised Initial Study and Negative Declaration issued with a public review period between October 23, 2003 and November 13, 2003.

 

Setting: The project site is bordered by Bishop Lane on the north, San Francisquito Creek to the east, and residential homes to the south and west. The site is bi-level with an upper terrace comprising the majority of the site on the west side. Moving easterly, the site drops down abruptly to a lower terrace adjacent to the creek. Bordering the project site, San Francisquito Creek flows from south to north through disturbed riparian woodland before leaving the project site. There is an existing house, pool, and outbuildings on the site, which will be removed to accommodate the proposed subdivision.

 

Vegetation along the creek bank is dominated by an overstory of coast live oak, alder, willow, buckeyes and California bay trees. The understory consists of a mix of species including blackberries, vinca, French broom, and poison oak. In addition, annual grasses and non-native weeds have established on the bank. Coast live oak, madrone and laurel trees, as well as non-native species, such as olive trees, dominate the westerly terrace of the site.

 

The California Department of Fish and Game Natural Diversity Database Maps for this area indicate that the project site lies within an area that could potentially provide habitat for the California tiger salamander, the western pond turtle, and the California red-legged frog. However, there are no recorded observations of these species on the project site. Within the creek itself, steelhead have been observed. The upper terrace of the project site is highly disturbed by existing residential development with associated planting of non-native ornamental plants.

 

Chronology:

 

Date

 

Action

     

August 1, 2002

-

Application for minor subdivision submitted.

     

September 18, 2003

-

First Zoning Hearing Officer hearing. Item continued.

     

February 19, 2004

-

Second Zoning Hearing Officer hearing. Item conditionally approved.

     

March 9, 2004

-

Appeal filed by neighbor of project site.

     

April 14, 2004

-

Planning Commission public hearing. The Commission fails to certify the Negative Declaration, which de facto denies the permit. Applicant directed to prepare focused EIR.

     

April 20, 2004

-

Project applicant files appeal of Planning Commission’s decision.

     

July 6, 2004

-

Board of Supervisors public hearing.

     

DISCUSSION

 

A.

PREVIOUS ACTION

   
 

CEQA Section 15064(a)(1) states, “If there is substantial evidence, in light of the whole record before a lead agency, that a project may have a significant effect on the environment, the agency shall prepare a draft EIR.” Determining if there is substantial evidence can be somewhat subjective, but CEQA offers further guidance:

   
   

“If a lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though it may also be presented with other substantial evidence that the project will not have a significant effect.” Section 15064(f)(1)

   
 

In addition, the CEQA Guidelines go on to state:

   
   

“In marginal cases where it is not clear whether there is substantial evidence that a project may have a significant effect on the environment, the lead agency shall be guided by the following principle: If there is disagreement among expert opinion supported by facts over the significance of an effect on the environment, the lead agency shall treat the effect as significant and shall prepare an EIR.” Section 15064(g)

   
 

Based upon testimony presented at the hearing, the Planning Commission determined that there was uncertainty regarding whether the project may have significant, unmitigated impacts upon the biological resources on the site and within the adjacent San Francisquito Creek area. Additionally, the Commission expressed concerns regarding the long-term stability and rate of erosion of the creek banks. In light of the Commission’s concerns, considerable public controversy over the project, and disagreements among the applicant’s and the appellant’s biological consultants, the Commission voted 4-0 to not certify the proposed Negative Declaration. The Commission determined that an EIR should be prepared. The important issue at this stage is not whether such impacts are in fact significant, but whether a “fair argument” can be made that the project may have such impacts. The Planning Commission decided that such a “fair argument” could be made, and hence voted to require the applicant to prepare an EIR.

   

B.

KEY ISSUES OF THE APPEAL

   
 

The appellant, in his letter of appeal (Attachment A) states:

   
   

“Our appeal is based on the fact that the Planning Commission, in reaching its decision, based its decision primarily on a letter from Thomas Reid & Associates regarding the biotic site evaluation of our property which was not delivered to either us or the Planning staff until the date of the hearing, and was not read by the project planner until after the hearing had commenced. We were given no opportunity to respond to the statements in this letter at the hearing. We desire to present a careful rebuttal to each of these points to the Board of Supervisors.

     
   

“During the hearing, it appeared (that) no member of the Commission had visited the site nor read the mitigating conditions imposed by the staff.”

     
 

Further, the appellant, in his attached cover letter, states that he will be submitting additional justifications for their appeal. On May 19, 2004, the appellant submitted a letter from his consultant (Charles Patterson) rebutting the points raised in the Thomas Reid letter (see Attachment C).

   
 

The letter from Thomas Reid & Associates (included as Attachment B) states that the biotic site evaluation prepared by the appellant’s consultant (Charles Patterson) is deficient in addressing several biological resources found within San Francisquito Creek. A summary is as follows:

   
 

Thomas Reid & Associates: Steelhead are not even mentioned in the biotic site evaluation report. The project has a potential impact to this species because it could allow development along creek banks which could lead to higher flood risks which can result in future flood control measures which effectively destroys steelhead habitat.

   
 

Charles Patterson: Fish species that may potentially occur in the creek were not addressed previously as it is my understanding that there would be no direct impact to the creek (in fact, no disturbance within the setback zone) from this project, and that there would be significant measure taken (erosion control, temporary fencing, deed restrictions) to minimize any indirect impacts to the riparian zone as well.

   
 

Thomas Reid & Associates: There is no mention within the biotic site evaluation whether a California Natural Diversity Database search was done to assess the proximity of endangered species to the project site.

   
 

Charles Patterson: With regard to contacting various state, federal, and/or private agencies or scientific institutions, it was a judgment . . . that formal contact or consultation was not necessary here. With no impacts to the creek, no wetland fill proposed, no sensitive habitats being lost or adversely affected, no sensitive species likely to be present, and relatively minimal habitat values and acreage to be affected overall, all within a similar pre-existing landscape of residential development, the reconnaissance level survey conducted was deemed adequate and appropriate for this project.

   
 

Thomas Reid & Associates: The biological site evaluation provides errant and misleading information on the habitat requirements of the California red-legged frog.

   
 

Charles Patterson: I stand by my earlier discussion in that most (if not all) local frog use, if any actually occurs along the creek, is likely to occur immediately along the creek and its banks. While I would not deny that the frogs CAN move up to significant distances (particularly if their needed resources are separated), it seems highly unlikely that they would be here with the typical requisite wetted zone and dry banks immediately available within the setback zone.

   
 

Thomas Reid & Associates: The report concludes that the project site “does not provide any significant wildlife opportunities.” There is no data provided in the report to support this conclusion.

   
 

Charles Patterson: While some very minor use of the site could conceivably occur by certain sensitive species of wildlife (just as any residential neighborhood or even a parking lot near occupied habitat could), the conditions here do not constitute significant suitable habitat for any sensitive wildlife species, and there is no indication that such species are even present here. The primary habitats of value (i.e., streambed, banks, and all riparian vegetation) will be completely avoided and protected, and the small area to be affected has no significant wetland or related natural habitats that would be of great importance to such species. Given the limited impact, lack of suitable primary conditions, and precautions to be taken, it is still my professional conclusion that sensitive wildlife species will not suffer significant adverse effects from this project.

   

C.

ALTERNATIVES

   
 

If your Board determines not to uphold the decision of the Planning Commission (which is to require the preparation of a focused EIR), several alternatives are available:

   
 

1.

Approve the project as proposed. If, after taking testimony and reviewing the materials received on this item, the Board supports the project as proposed and conditioned by staff in its April 14, 2004 report (included as Attachment D), you could certify the Negative Declaration and vote to approve the project at this time.

     
 

2.

Revise the project and re-circulate the Negative Declaration. The Negative Declaration could be revised and re-circulated a third time if the applicant either revises the project to address the issues/impacts that have been raised, OR chooses to supplement his application with additional technical information that addresses those issues, or both.

     
 

3.

Deny the project. Your Board could deny the request for a minor subdivision if you disapprove of the project and do not think the required findings can be made.

     

VISION ALIGNMENT

 

The proposed project keeps the commitment of “Responsive, Effective, and Collaborative Government” and goal number 20: “Government decisions are based on careful consideration of future impact, rather than temporary relief or immediate gain.” The Planning Commission, in making its decision on the first appeal, believed that there was conflicting or incomplete information in which to base their decision on. By requesting that the applicant fund a focused EIR to address these issues, the Planning Commission hopes to be able to carefully assess the future impacts of this project. By upholding the Planning Commission’s decision, the Board would be reinforcing this goal.

 

FISCAL IMPACT

 

Not applicable.

 

ATTACHMENTS

 

A.

Location Map

B.

Site Plan

C.

Appellant’s Letter of Appeal

D.

April 13, 2003 Letter from Thomas Reid & Associates

E.

May 10, 2004 Rebuttal Letter from Charles Patterson (ecologist for the appellant)

F.

April 14, 2004 Planning Commission Staff Report

G.

Planning Commission Letter of Decision