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Ordinance 2012-01 ORDINANCE NO. 2012-01 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY APPROVING APPLICATION Z08-01 FOR A CHANGE IN ZONING DESIGNATION FROM OS (OPEN SPACE) TO CM (COMMERCIAL INDUSTRIAL) ON APPROXIMATELY 20 ACRES LOCATED 5350 MONTEREY ROAD, APN 841-31-021 WHEREAS, applicant Monterey Road Investment Group, LLC, submitted application Z 08-01 to change the zoning designation on property identified as APN 8431-31-021 from OS (Open Space) to CM (Commercial Industrial) on approximately 20 acres located at 5350 Monterey Road ("the Project"); and WHEREAS, an Environmental Impact Report ("EIR") entitled Monterey Commercial Zone Change and Subdivision and Fortino Zone Change was prepared for the Project, State Clearinghouse #2010062049, including a Draft EIR dated October 18, 2010 and a Final EIR dated April 25, 2011, all in compliance with the California Environmental Quality Act ("CEQA"); and WHEREAS, the loss of agricultural lands was one of the significant, unavoidable effects on the environment which can be partially mitigated by adherence to the City's Agricultural Mitigation Policy as set forth in City Council Resolution No. 2004-45 regarding implementation ofthe City's General Plan 2020 EIR mitigation measure 4.4-A; and WHEREAS, that Policy requires that at the time of any initial land use application approval, the applicant must enter into a deferred payment or dedication agreement establishing the specific criteria for and timing of the required mitigation, which actual mitigation must be completed prior to final map approval; and WHEREAS, the Applicant herein must enter into the City's Deferred Agricultural Agreement prior to approval of this initial land use application for the Project; and lLAC\850685.1 060811-04706083 1 ORDINANCE NO. 2012-01 WHEREAS, the Planning Commission held a duly noticed public hearing on May 5, 2011, at which time the Planning Commission considered the public testimony, the staff report dated May 5, 2011 ("Staff Report"), the Final EIR and all other documentation related to application Z 08-01, and recommended that the City Council certify the Final EIR and approve said application; and WHEREAS, the City Council held a duly noticed public hearing on June 6, 2011, at which time the City Council considered the Staff Report, a supplemental staff report dated June 6,2011, the Final EIR, the public testimony and all other documentation related to application Z 08-01; and WHEREAS, pursuant to CEQA, the City Council has certified the Monterey Commercial Zone Change and Subdivision and Fortino Zone Change EIR to have been prepared in compliance with CEQA, and adopted CEQA Resolution No. 2011-38 so certifying and making all the required findings as to mitigation of each significant effect prior to approving the Project and adopting the mitigation measures and a Mitigation Monitoring Program; as well as a Statement of Overriding Considerations for unavoidable or partially mitigated significant effects; and WHEREAS, the location and custodian of the documents or other materials which constitute the record of proceedings upon which this project approval is based is the office of the City Clerk. NOW, THEREFORE, THE CITY COUNCIL FINDS THAT: SECTION I lLAC\850685.1 060811-04706083 2 ORDINANCE NO. 2012-01 1. The proposed rezoning is consistent with the intent of the goals and policies of the City's General Plan, and with the intent of the land use designation on the General Plan land Use Map. 2. There is no substantial evidence in the entire record that the Project will have any significant effects on the environment not analyzed and reviewed and considered in the Final EIR and summarized in CEQA Resolution No. 2011-38. 3. The approval of Z 08-01 will not be detrimental to the public welfare or injurious to persons or property in the vicinity. SECTION II Based on the above fmdings, zoning application Z 08-01 is hereby approved, subject to the Mitigation Measures in the Final EIR, as summarized in CEQA Resolution No. 2011-38, and the Mitigation Monitoring Program attached hereto as Exhibit 'A" and incorporated herein by this reference. SECTION III This Ordinance shall be in full force and effect thirty (30) days from and after its passage and adoption unless prior to that date the Applicant has not executed that certain "Agreement for Deferred Agricultural Mitigation By and Between the City of Gilroy and Monterey Road investment Group, LLC," in which event this Ordinance shall automatically be deemed null and void, and have no force and effect, without any further action required by the City Council. PASSED AND ADOPTED this 9th day of January, 2012, by the following vote: lLAC\850685.1 060811-04706083 3 ORDINANCE NO. 2012-01 AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: \LAC\850685.1 060811-04706083 ARELLANO, BRACCO, LEROE-MuNOZ, WOODWARD and PINHEIRO NONE NONE APPROVED: DILLON, TUCKER, 4 ORDINANCE NO. 2012-01 MONTEREY ROAD COMMERCIAL CENTER ZONE CHANGE & SUBDIVISION (Z 08-01, 1M 08-01) MITIGATION MONITORING PROGRAM INTRODUCTION CEQA Guidelines section 15097 requires public agencies to adopt reporting or monitoring programs when they approve projects subject. to an environmental impact report or a negative declaration that includes mitigation measures to avoid significant adverse environmental effects. The reporting or monitoring program is to be designed to ensure compliance with conditions of project approval during project implementation in order to avoid significant adverse environmental effects. The law was passed m response to historic non-implementation of mitigation measures presented in environmental documents and subsequently adopted as conditions of project approval. In addition, monitoring ensures that mitigation measures are implemented and thereby provides a mechanism to evaluate the effectiveness of the mitigation measures. A definitive set of project conditions would include enough detailed information and enforcement procedures to ensure the measure's compliance. This monitoring program is designed to provide a mechanism to ensure that mitigation measures and subsequent conditions of project approval are implemented. MONITORING PROGRAM The basis for this monitoring program is the mItIgation measures included in the project environmental impact report. These mitigation measures are designed to eliminate or reduce significant adverse environmental effects to less than significant levels. These mitigation EMC PLANNING GROUP INC. MMp.} MITIGATION MONITORING PROGRAM measures become conditions of project approval, which the project proponent is required to complete during and after implementation of the proposed project. The attached checklist is proposed for monitoring the implementation of the mItigation measures. This monitoring checklist contains all appropriate mitigation measures in the environmental impact report. MONITORING PROGRAM PROCEDURES The City of Gilroy will use the attached monitoring checklist for the proposed project. The monitoring program will be implemented as follows: 1. The Gilroy Community Development Department will be responsible for coordination of the monitoring program, including the monitoring checklist. The Community Development Department will be responsible for completing the monitoring checklist and distributing the checklist to the responsible individuals or agencies for their use in monitoring the mitigation measures. 2. Each responsible individual or agency will then be responsible for determining whether the mitigation measures contained in the monitoring checklist have been complied with. Once all mitigation measures have been complied with, the responsible individual or agency should submit a copy of the monitoring checklist to the Community Development Department to be placed in the project file. If the mitigation measure has not been complied with, the monitoring checklist should not be returned to the Community Development Department. 3. The Gilroy Community Development Department will review the checklist to ensure that appropriate mitigation measures and additional conditions of project approval included in the monitoring checklist have been complied with at the appropriate time, e.g. prior to issuance of a use permit, etc. Compliance with mitigation measures is required for project approvals. 4. If a responsible individual or agency determines that a non-compliance has occurred, a written notice should be delivered by certified mail to the project proponent within 10 days, with a copy to the Community Development Department, describing the non- compliance and requiring compliance within a specified period of time. If non-compliance still exists at the expiration of the specified period of time, construction may be halted and fines maybe imposed at the discretion of the City of Gilroy. MMP-2 EMC PLANNING GROUP INC. MONTEREY ROAD COMMERCIAL CENTER ZONE CHANGE AND SUBDIVISION MITIGATION MONITORING CHECKLIST Step 1 Prior to effective date of Zone Change application ZOB-01 the following mitigation measures shall be implemented: Mitigation Measure AG-1 The project applicant shall pay required fees and enter into an Agricultural Mitigation Agreement. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Planning Division Monitoring Notes: EMC PLANNING GROUP INC. MMp.3 MITIGATION MONITORING PROGRAM Step 2 Prior to issuance of the first final map for the project the following mitigation measure shall be implemented: Mitigation Measure AG-2 The mitigation fee that is established pursuant to that certain agreement entitled "Agreement for Deferred Agricultural Mitigation by and between the City of Gilroy and Monterey Investment Group, LLC" as partial mitigation for the project's unavoidable significant effects on agricultural shall be paid to the City prior to issuance of the first final map for the project. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Planning Division Monitoring Notes: MMP.4 EMC PLANNING GROUP INC. MONTEREY ROAD COMMERCIAL CENTER ZONE CHANGE AND SUBDIVISION Step 3 Prior to approval of Architectural and Site Review approval for each lot, the following mitigation measures shall be implemented: Mitigation Measure A-4 The project applicant shall redesign the combined exterior retaining wall/fence height consistent with the City's zoning ordinance requirements for maximum permitted fence and retaining wall heights as set forth in Municipal Code Section 24.32. All proposed fencing and materials shall be included on the final Landscaping Plan consistent with the City's Landscaping Policy and Mitigation Measures A-I and A-2. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Planning Division Monitoring Notes: EMC PLANNING GROUP INC. MMP.5 MITIGATION MONITORING PROGRAM Mitigation Measure N-1 The project developer(s) for Lot I and Lot 2 shall provide evidence demonstrating that proposed development is in compliance with the City's exterior noise thresholds for commercial or industrial uses, whichever type of development is planned for Lot 1 and! or Lot 2. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Planning Division Monitoring Notes: MMP.6 EMC PLANNING GROUP INC. MONTEREY ROAD COMMERCIAL CENTER ZONE CHANGE AND SUBDIVISION Mitigation Measure CC-1 Prior to each Architectural and Site Approval for individual lots within the subdivision, the following greenhouse gas emissions reduction measures shall be incorporated in the site plan: a. pedestrian network that internally links all uses and connects to all existing/planned external streets and pedestrian facilities contiguous with the project site. Project design shall include a designated pedestrian route interconnecting all internal uses, site entrances, primary building entrances, public facilities, and adjacent uses to existing external pedestrian facilities and streets. This route shall have minimal conflict with parking and automobile circulation facilities. Streets within the project shall have sidewalks on both sides. All sidewalks adjacent to project site shall be a minimum of five feet wide. All sidewalks shall have vertical curbs. Pedestrian facilities and improvements shall include grade separation, wider sidewalks, and traffic calming features wherever feasible to minimize pedestrian barriers. All site entrances shall provide pedestrian access; b. one bike rack space per 20 vehicle/employee parking spaces; c. "end-of-trip" facilities (four clothes lockers and one shower for every 80 employee parking spaces, and separate facilities for each gender for projects with 160 or more employee parking spaces); d. site design and building placement shall not include barriers (such as walls, berms, landscaping, and slopes) to pedestrian access and interconnectivity; e. provide no more than the minimum amount of parking required by City ordinance; f. on-site parking facilities shall not be adjacent to street frontage; g. preferential parking space locations for electric vehicles (EV) and compressed natural gas (CNG) vehicles; h. solar water heaters; 1. drought resistant native trees and trees with low emissions and high carbon sequestration potential. Evergreen trees on the north and west sides afford the best protection from the setting summer sun and cold winter winds. Additional considerations include the use of deciduous trees on the south side of buildings that will admit summer sun; evergreen plantings on the north side will slow cold winter winds; constructing a natural planted channel to funnel summer cooling breezes into the house. Bunch grass and low-water landscaping are encouraged; EMC PLANNING GROUP INC. MMP-7 MITIGATION MONITORING PROGRAM J. Energy Star-labeled roof materials; k. energy-reducing programmable thermostats that automatically adjust temperature settings; I. energy efficient appliances (e.g., Energy Star); m. energy-reducing shading mechanisms for windows, porch, patio and walkway overhangs; and n. energy-reducing day lighting systems (e.g., skylights, light shelves and interior transom windows ). Party Responsible for Implementation: Applicant Party Responsible Jor Monitoring: Gilroy Planning Division Monitoring Notes: MMp.8 EMC PLANNING GROUP INC. MONTEREY ROAD COMMERCIAL CENTER ZONE CHANGE AND SUBDIVISION Step 4 Prior to the approval of demolition, grading and building permits, the following mitigation measures shall be implemented: Mitigation Measure A-1 To preserve the appearance of the South Monterey Road gateway area, the applicants shall prepare a landscaping plan for the Monterey Road frontage consistent with the provisions of General Plan Implementation Action 1.R, prior to issuance of any building permit for development on Lot I and Lot 2 any parcel or lot fronting Monterey Road, for review and approval by the Planning Division. Party Responsible for Implementation: Applicant Party Responsible Jor Monitoring: Gilroy Planning Division Monitoring Notes: Mitigation Measure A-2 Future developers of Lot 1 and! or Lot 2 shall include landscaping plans and buildings designed consistent with the provisions of General Plan Implementation Action l.R and shall be submitted to the Planning Division for design review prior to issuance of any building permit. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Planning Division Monitoring Notes: EMC PLANNING GROUP INC. MMp.9 MITIGATION MONITORING PROGRAM Mitigation Measure AQ-3 For any building constructed prior to 1980, the developer shall consult with the BAAQMD Enforcement Division prior to commencing demolition to determine permit requirements. Removal of asbestos-containing building materials is subject to the limitations of District Regulation 11, Rule 2: Hazardous Materials; Asbestos Demolition, Renovation and Manufacturing. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Planning Division Monitoring Notes: MMP.IO EMC PLANNING GROUP INC. MONTEREY ROAD COMMERCIAL CENTER ZONE CHANGE AND SUBDIVISION Mitigation Measure B10-1 The project applicant shall coordinate pre-construction surveys for nesting birds to be conducted by a qualified biologist within 30 days prior to tree removal, building demolition, grading and/or construction, if any of these activities occur during the nesting season (nesting typically occurs between February through mid-September). If nests are located during pre-construction surveys, a qualified biologist will establish a 250-foot buffer around each nest for the duration of the breeding season (until such time as the young are fully fledged) to prevent nest harassment and brood mortality. Work may proceed prior to mid-September only if a qualified biologist conducts nest checks and establishes that the young are fully fledged. Every effort shall be made to avoid removal or impact to known nests within project boundaries. If the removal of trees known to support nests cannot be avoided, removal of these trees will only occur outside of the nesting season (mid-September through January). A report documenting the results of the surveys and plan for avoidance (if needed) will be submitted to the City of Gilroy Planning Division for review prior to the initiation of ground disturbance. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Planning Division Monitoring Notes: EMC PLANNING GROUP INC. MMP.II MITIGATION MONITORING PROGRAM Mitigation Measure HWQ.1 The applicant and future developers of individual lots shall comply with all City of Gilroy and Regional Water Quality Control Board requirements for the proper treatment and retention/ detention of storm water. Compliance with these requirements shall be confirmed prior to issuance of a grading permit. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Engineering Division Monitoring Notes: MMP.12 EMC PLANNING GROUP INC. MONTEREY ROAD COMMERCIAL CENTER ZONE CHANGE AND SUBDIVISION Step 5 During grading and construction, the following mitigation measures shall be implemented: Mitigation Measure AQ.1 The following measures shall be implemented at the site during construction activities: 1. Water all active construction areas at least twice daily; 2. Cover all trucks hauling soil, sand, and other loose materials or require trucks to maintain at least two feet of freeboard; 3. Pave, apply water three times daily, or apply (non-toxic) soil stabilizers no all unpaved access roads, parking areas, and staging areas at construction sites; 4. Sweep daily (with water sweeper) all paved access roads, parking areas, and staging areas at construction sites; and 5. Sweep streets daily (with water sweepers) if visible soil material is carried onto. adjacent public streets. 6. If the Cherry Orchard Ranch project is approved and residences are occupied prior to the onset of construction at the Monterey Road Commercial Center project site, suspend excavation and grading activity when winds (instantaneous gusts) exceed 25 mph or visible clouds affect sensitive receptors. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Engineering Division Monitoring Notes: EMC PLANNING GROUP INC. MMP.I3 MITIGATION MONITORING PROGRAM Mitigation Measure AQ-2 The following measures shall be implemented during construction: 1. The idling time of all construction equipment shall not exceed five minutes; 2. Limits the hours of operation of heavy duty equipment and/or the amount of equipment in use; 3. All equipment shall be properly tuned and maintained in accordance with the manufacturer's specifications; 4. When feasible, alternative fueled or electrical construction equipment shall be used at the project site; 5. Use the minimum practical engine size for construction equipment; and 6. Gasoline-powered equipment shall be equipped with catalytic converters, where feasible. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Engineering Division Monitoring Notes: MMp.14 EMC PLANNING GROUP INC. MONTEREY ROAD COMMERCIAL CENTER ZONE CHANGE AND SUBDIVISION Mitigation Measure CR.1 Due to the possibility that significant buried cultural resources might be found during construction, the following language shall be included on any permits issued for the project site, subject to the review and approval of the Gilroy Planning Division (pursuant to Gilroy General Plan Policy 5.07): If archaeological resources are discovered during construction, work shall be halted within 50 meters (165 feet) of the find until a qualified professional archaeologist can evaluate it. If the find is determined to be significant, appropriate mitigation measures shall be formulated and implemented. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Planning Division Monitoring Notes: EMC PLANNING GROUP INC. MMp.IS MITIGATION MONITORING PROGRAM Mitigation Measure CR-2 In the event of an accidental discovery or recognition of any human remains in any location other than a dedicated cemetery, the City shall ensure that the language is included in all permits in accordance with CEQA Guidelines section 15064.5(e), subject to the review and approval of the City of Gilroy Planning Division: If human remains are found during construction there shall be no further excavation or disturbance of the site or any nearby area reasonably suspected to overlie adjacent human remains until the coroner of Santa Clara County is contacted to determine that no investigation of the cause of death is required. If the coroner determines the remains to be Native American the coroner shall contact the Native American Heritage Commission within 24 hours. The Native American Heritage Commission shall identify the person or persons it believes to be the most likely descendent MLD) from the deceased Native American. The MLD may then make recommendations to the landowner or the person responsible for the excavation work, for means of treating or disposing of, with appropriate dignity, the human remains and associated grave goods as provided in Public Resources Code Section 5097.98. The landowner or his authorized representative shall rebury the Native American human remains and associated grave goods with appropriate dignity on the property in a location not subject to further disturbance if: a) the Native American Heritage Commission is unable to identify a MLD or the MLD failed to make a recommendation within 24 hours after. being notified by the commission; b) the descendent identified fails to make a recommendation; or c) the landowner or his authorized representative rejects the recommendation of the descendent, and the mediation by the Native American Heritage Commission fails to provide measures acceptable to the landowner. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Planning Division Monitoring Notes: MMP.16 EMC PLANNING GROUP INC. MONTEREY ROAD COMMERCIAL CENTER ZONE CHANGE AND SUBDIVISION Step 6 Prior to the issuance of occupancy permits, the following mitigation measures shall be implemented: Mitigation Measure T-1 The applicant shall construct either an additional westbound left-turn lane or an additional northbound left-turn lane at the intersection of Monterey Road and Luchessa Avenue. Based on the land use mix contained in the project description from the EIR and traffic study (50% commercial, 40% industrial, 10% office), the project will be required to install the recommended Monterey/Luchessa intersection improvements upon completion of the entire amount of industrial (40% of the site) and office (10% of the site) development and the fIrst 30,000 square feet of commercial uses. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Engineering Division Monitoring Notes: EMC PLANNING GROUP INC. MMP.I7 MITIGATION MONITORING PROGRAM Mitigation Measure T-2 The applicant shall widen Monterey Road at the project driveway to accommodate a southbound left-turn lane into the project site to provide for safe and efficient left-turn access into the site. The southbound left-turn pocket should be a minimum of 325 feet long to accommodate the expected maximum vehicle queues. Separate outbound left- and right-turn lanes should be provided on the project driveway approach at Monterey Road. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Engineering Division Monitoring Notes: Mitigation Measure T-3 For the intersection of Monterey Road and Project Driveway, the project's cumulative impact would be mitigated by installing a traffic signal at this intersection, providing a separate southbound left-turn lane, and providing separate westbound right- and left-turn lanes. The southbound left-turn pocket should be a minimum of 325 feet long to accommodate expected maximum vehicle queues. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Engineering Division Monitoring Notes: MMp.I8 EMC PLANNING GROUP INC. MONTEREY ROAD COMMERCIAL CENTER ZONE CHANGE AND SUBDIVISION Mitigation Measure T.4 A minimum of two emergency vehicle access points should be provided for the site. The site access design should be modified accordingly, subject to the review and approval of the City of Gilroy Engineering Division and Fire Marshall, to ensure that the site satisfies City of Gilroy requirements for emergency vehicle access. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Engineering Division Monitoring Notes: EMC PLANNING GROUP INC. MMP.19 I, SHA WNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the attached Urgency Ordinance No. 2012-01 is an original ordinance, or true and correct copy of a City ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 9th day of January, 2012, at which meeting a quorum was present. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Gilroy this 12th day of January, 2012. Shawna Freels, CMC City Clerk of the City of Gilroy (Seal)