Loading...
Resolution 2006-01RESOLUTION NO. 2006 -01 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GILROY MAKING REQUIRED FINDINGS CONCERNING SIGNIFICANT EFFECTS, MITIGATION MEASURES AND ALTERNATIVES, AND ADOPTING A STATEMENT OF OVERRIDING CONSIDERATIONS, FOR THE MILLER AVENUE REORGANIZATION (A03 -01), FOR WHICH AN ENVIRONMENTAL IMPACT REPORT WAS PREPARED IN ACCORDANCE WITH THE CALIFORNIA ENVIRONMENTAL QUALITY ACT, AND ADOPTING A MITIGATION MONITORING PROGRAM FOR THE PROJECT WHEREAS, the project analyzed in the Final Environmental Impact Report "FEIR" is the Miller Avenue Reorganization (A03 -01) which would facilitate residential development on approximately 5.7 acres south of Miller Avenue, near the intersection of Santa Teresa Boulevard and Thomas Road on Assessor's parcel numbers 810 -35 -014, 810 -28 -015, and 810 -28 -002; and WHEREAS, the FEIR evaluated a probable development of eighteen single - family homes; and WHEREAS, application Z 03 -04 requesting prezoning of this site to R1- single - family residential will also receive environmental clearance through the use of this FEIR; and WHEREAS, the City of Gilroy in accordance with the State CEQA Guidelines section 15082 held a public scoping meeting on July 12, 2005; and WHEREAS, the Planning Commission held a duly noticed public hearing on December 1, 2005, at which time the Commission considered public testimony, the staff report dated November 22, 2005, and all other documentation related to the Project, and recommended that the City Council certify the FEIR as completed in accordance with the requirements of the California Environmental Quality Act of 1970 as amended ( "CEQA "); and WHEREAS, the City Council held a duly noticed public hearing on the Project, including the FEIR, on December 19, 2005, at which time the City Council received the full record of the entire proceedings, took public testimony, and heard additional staff responses, and thereafter certified the FEIR as completed in accordance with CEQA; and WHEREAS, the City Council is the decision making body for the Miller Avenue Reorganization; and WHEREAS, the City Council intends to approve actions related to the Project as identified in the FEIR dated November 21, 2005, State Clearinghouse Number 2005062176; and WHEREAS, CEQA requires that in connection with the approval of a project for which an EIR has been prepared that identifies one or more significant environmental \LAM681006.1 011506-04706089 -I- Resolution No. 2006 -01 effects, the decision making body of the lead agency make certain findings regarding those significant effects on the environment identified in the Final EIR. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF GILROY, AS FOLLOWS: 1. This City Council hereby finds that the FEIR has been completed in compliance with CEQA, that the City Council has reviewed and analyzed the FEIR and other information in the record and has considered the information contained therein, including the written and oral comments received at the public hearings on the FEIR and the Project, prior to acting upon or approving the Project, and that the FEIR represents the independent judgment of the City; and 2. The findings and recommendations set forth herein are made by this City Council as the City's findings under CEQA relating to the Project. The findings provide the written analysis and conclusions of the City Council regarding the Project's environmental impacts, mitigation measures and alternatives to the Project. 3. The Mitigation and Monitoring Program for the Project (the "Program ") is attached to this resolution as Exhibit "A "and is incorporated and adopted as part of this resolution. The Program identifies impacts of the Project and corresponding mitigation measures and designates responsibility for mitigation implementation and the agency responsible for the monitoring action. 4. This City Council hereby finds and recognizes that the FEIR contains additions, clarifications, modifications and other information in its responses to comments on the Draft EIR ( "DEIR ") for the Project, and also incorporates information obtained by the City since the DEIR was issued. This City Council hereby finds and determines that such changes and additional information are not significant new information as that term is defined under the provisions of CEQA, because such changes and additional information do not indicate that any new significant environmental impacts not already evaluated would result from the Project and do not reflect any substantial increase in the severity of any environmental impact. No feasible mitigation measures considerably different from those previously analyzed in the DEIR have been proposed that would lessen significant environmental impacts of the Project, and no feasible alternatives considerably different from those analyzed in the DEIR have been proposed that would lessen significant environmental impacts of the Project. 5. This City Council does hereby designate the City Clerk's office of the City of Gilroy, at 7351 Rosanna Street, Gilroy, California 95020, as the custodian of documents and record of proceedings on which the decision is based. 6. This City Council does hereby adopt the mitigation measures in the FEIR as set forth or modified herein as conditions of the Project. 7. This City Council does hereby make the findings herein with respect to the significant effects on the environment of the Project based on facts within the administrative record as a whole, and as identified in the FEIR, with the stipulation that \LAC1681006.1 011506 - 04706089 Resolution No. 2006 -01 all information in these findings is intended as a summary of the entire record supporting the FEIR. 8. The City Council does hereby find that with the exception of those impacts identified as significant and unavoidable, the mitigation measures proposed in the FEIR and adopted by the City will reduce impacts to a less than significant level. I. FINDINGS CONCERNING SIGNIFICANT ENVIRONMENTAL EFFECTS 1LAM681006.1 011506 - 04706089 A. BIOLOGICAL RESOURCES Loss of Burrowing Owl and Habitat 1. Impact. Based on the background research and site investigation, the project site may be suitable habitat for burrowing owl. The loss of active burrowing owl nests, if determined to be on site, would be a significant impact. 2. Finding of Fact. The City of Gilroy City Council hereby finds that the following mitigation measure is feasible and will effectively mitigate potentially significant impacts to burrowing owl nests, if located on site, when implemented. The mitigation measure is fully enforceable by the City of Gilroy, and the City Planning Division will require compliance with the measure prior to issuance of development permits. 3. Mitigation. The following surveys shall be required if any construction would occur during the nesting and/or breeding season of burrowing owls (February 1 through August 31) and/or during the winter residency period (December 1 through January 31). No more than 30 days prior to commencement of grading or construction activities on the project site, field surveys shall be conducted by a qualified biologist to determine if burrowing owls are present in the construction zone or within 200 feet of the construction zone. Areas within 200 feet of the construction zone that are not within the control of the applicant shall be visually assessed from the project site. Results of the survey shall be documented by the biologist, and reviewed by the City Planning Division, prior to issuance of a building permit. If active nests are found in the survey area, the applicant shall contact the California Department of Fish and Game and shall initiate a Memorandum of Understanding (MOU) process with the California Department of Fish and Game(CDFG). The MOU shall contain mitigation measures contained in the California Department of Fish and Game Staff Report on Burrowing Owl Mitigation (California Department of Fish and Game 1995). The MOU may contain, but not be limited to, the following requirements: -3- Resolution No. 2006 -01 • Avoidance of occupied burrows during the nesting season (February 1 through August 31); • Acquisition, protection and funding for long -term management and monitoring of foraging habitat adjacent to occupied habitat; burrows; Enhancement of existing burrows and/or creation of new Passive relocation of burrowing owls. The MOU process shall be completed prior to grading or construction activities. Loss of California Tiger Salamander and California Red - legged Frog and Habitat 1. Impact. California red - legged frog and California tiger salamander are known to occur in the project vicinity and likely utilize Farman Canyon Creek as migratory and/or foraging habitat. In addition, grassland found on the Chappell property may provide suitable upland habitat for the California tiger salamander. The loss of individuals of these protected species and their habitat would be a significant impact. 2. Findings of Fact. The City of Gilroy City Council hereby finds that the following mitigation measure is feasible and effective; however, it will not fully mitigate significant adverse effects from the loss of California tiger salamander and California red - legged frog and its habitat, and therefore, this impact is unavoidable. The mitigation measure is fully enforceable by the City of Gilroy, and the Gilroy Planning Division will require documentation of compliance with the measure for all future development on the project site. 3. Partial Mitigation. The applicant shall initiate consultation with the California Department of Fish and Game and the United States Fish and Wildlife Service to obtain an incidental take permit, which will require preparation and approval of a Habitat Conservation Plan (HCP). The HCP may include, but not be limited to the following: a. California tiger salamander upland habitat preservation at a three to one ratio. Habitat preservation can occur either on site or at a suitable offsite mitigation bank. Habitat preserved as part of a habitat corridor can be included as onsite mitigation. b. A 300 -foot fenced exclusion zone from the high water mark of Farman Canyon Creek. Four -foot fencing shall be fastened to t -post stakes placed at eight -foot intervals. Signs shall be installed to clearly designate sensitive habitat boundaries. Erosion control shall be installed to prevent washing of soil or materials into the stream during construction. Soil compaction, parking of vehicles or heavy equipment, stockpiling of 1LAC1681006.1 011506-04706089 Resolution No. 2006 -01 construction materials, and/or dumping of materials shall not be allowed within the exclusion zone. The fencing shall remain in place during the entire construction period. Permanent open -rail fencing may be installed in lieu of the temporary fencing. C. A pre - construction worker orientation, prepared and conducted by a qualified biologist, to inform workers of the amphibian's protected status and facilitate identification of the potential presence of special status amphibians. d. Measures to avoid loss of these species during construction activities including but not limited to: 1) Who to contact to remove individual amphibians from the project site prior to and during project grading and construction; 2) How/Where to relocate them to nearby protected habitat or other suitable locations identified in the plan; and 3) Appropriate measures to prevent amphibians from entering the site during construction activities. e. Reporting requirements to monitor the effectiveness of the provision of the HCP. f. Construction details to prevent entry of amphibians into private yards or onto streets, to reduce the potential for accidental take during occupancy of the proposed project. g. Additional mitigation measures may be required as part of a project - specific or regional HCP. The applicant must have an HCP that is approved by the US Fish and Wildlife Service prior to City approval of a tentative map. See Section III (Statement of Overriding Considerations). Loss of Southwestern Pond Turtle and Habitat 1. Impact. The Southwestern pond turtle are known to occur in the project vicinity and likely utilize Farman Canyon Creek as migratory and/or foraging habitat. The loss of individuals of this protected species and its habitat would be a significant impact. 2. Findings of Fact. The City of Gilroy City Council hereby finds that the following mitigation measure requiring the 300 -foot setback from Farman Canyon Creek is feasible and will effectively mitigate potentially significant impact to Southwestern pond turtle and its habitat. 1LAC1681006.1 011506 - 04706089 Resolution No. 2006 -01 Implementation of the mitigation measure is the responsibility of future developer(s) of the project site. This mitigation measure is fully enforceable by the City of Gilroy, and the Gilroy Planning Division will require compliance with the measure prior to issuance of development permits. 3. Mitigation. A 300 -foot setback from Farman Canyon Creek shall be incorporated into all future development plans for the project site. Impacts to Raptor Nests, Eggs, and Young 1. Impact. Trees can provide nesting sites for raptors such as the red - tailed hawk. Riparian and oak trees present near the project site have the potential to provide nesting habitat for raptors. If there were active nest(s) of protected bird species present, construction and site preparation activities, if conducted during the nesting season, could result in the direct loss of nests, including eggs and young, or the abandonment of an active nest by the adults. This would be considered a significant, adverse environmental impact. 2. Findings of Fact. The City of Gilroy City Council hereby finds that the following mitigation measure is feasible and will effectively mitigate potentially significant impacts to raptor nests, eggs, and young, when implemented. Implementation of the mitigation measure is the responsibility of future developer(s) of the project site. The mitigation measure is fully enforceable by the City of Gilroy, and the City Planning Division will require compliance with the measure prior to issuance of development permits. 3. Mitigation. The following surveys shall be required if any construction would occur during the nesting season for raptors (April 15 — August 1). Preconstruction surveys for nesting raptors shall be conducted by a qualified biologist prior to commencement of grading activities. If raptor nests are located during pre - construction surveys, a qualified biologist shall establish a 300 -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 August 1 only if a qualified biologist conducts nest checks and establishes that the young are fully fledged. Every effort will be made to avoid removal or impact to known raptor nests within project boundaries. If trees known to support raptor nests cannot be avoided, removal of these trees will only occur during the non - breeding season to reduce impacts to a less than significant level. Results of the survey shall be documented by the biologist, and reviewed by the City Planning Division, prior to issuance of a building permit Impacts to Waters of the U.S.- Farman Canyon Creek 11AC1681006.1 011506-04706089 Resolution No. 2006 -01 UC1681006.1 011506 - 04706089 1. Impact. Urban runoff from the project site would carry pollutants to sensitive aquatic habitats used by a diversity of native wildlife species. Although the effects of pollutants from the proposed project alone would be insignificant, when combined with pollutants from other sources, the proposed project would have a significant cumulative effect on downstream water quality. Disturbance to Farman Canyon Creek is considered a potentially significant cumulative impact. Implementation of the following mitigation measures in coordination with the mitigation measures provided above for the protection of special status amphibians and reptiles would reduce this impact to a less than significant level. 2. Findings of Fact. The City of Gilroy City Council hereby finds that the following mitigation measures are feasible and will effectively mitigate potentially significant impacts to Farman Canyon Creek. Implementation of the mitigation measures are the responsibility of future developer(s) of the project site. The mitigation measures are fully enforceable by the City of Gilroy, and the Gilroy Planning Division will require compliance with the measures prior to issuance of development permits. 3. Mitigation Measures. Prior to future development activities, and in coordination with the mitigation measures above, a 300 -foot setback from the high water mark of Farman Creek will be fenced. Grading and equipment will not be allowed within this setback. If disturbance is proposed within the creekbed, a Section 404 permit from the U. S. Army Corps of Engineers and a Streambed Alteration Agreement from the California Department of Fish and Game will be obtained. In order to allow a prompt and effective response to any accidental spills occurring during construction, and to protect on -site and downstream water quality and habitat, the project proponent shall prepare a spill abatement plan and hold a pre- construction worker orientation meeting(s) to discuss the spill abatement plan. Workers shall be informed of the importance of preventing spills, and of the appropriate measures to take should a spill occur. The materials necessary for the initial response to a spill shall be kept at an easily accessible location on the project site. The erosion control plan should include but not be limited to the following best management practices: a. Temporary mulching, seeding or other suitable stabilization measures to protect exposed erodible areas during construction; b. Earth or paved interceptors and diversions installed at the top of cut or fill slopes where there is a potential for erosive surface runoff; C. Erosion and sediment control devices for all grading and filling. Control devices and measures could include, but are not limited to, energy absorbing structures or devices to reduce the velocity of runoff water. Resolution No. 2006 -01 Within thirty days after completion of grading, all surfaces disturbed by vegetation removal, grading, or other construction activity that alters vegetative cover, should be revegetated to control erosion, unless covered with impervious or other improved surfaces authorized by approved plans. Erosion controls may include any combination of mechanical or vegetative measure, including but not limited to those described in U. S. Department of Agriculture Soil Conservation Service Bulletin 347. Removal of Native Plants and Establishment of Non - native Plants 1. Impact. A number of invasive species listed on the California Invasive Plant Council's Exotic Pest Plants of Greatest Ecological Concern in California (CALIPC 1999) are present within the property boundaries, including milk thistle (Silybum marianum) and black mustard (Brassica nigra). Grading and disturbance associated with the proposed project would remove any native plants currently growing at the project site and would also create the disturbed environment preferred by invasive species. This is considered a significant adverse environmental impact. 2. Findings of Fact. The City of Gilroy City Council hereby finds that the following mitigation measure is feasible and will effectively mitigate potentially significant impacts to native plants. Implementation of the mitigation measure is the responsibility of future developer(s) of the project site. The mitigation measure is fully enforceable by the City of Gilroy, and the Gilroy Planning Division will require compliance with the measure prior to issuance of development permits. 3. Mitigation. In order to prevent the spread of invasive non- native species, the project proponent shall prepare a landscaping and re- vegetation plan to include the following requirements: a. An eradication plan for plants listed in California Invasive Plant Council's Exotic Pest Plants of Greatest Ecological Concern in California currently growing on the project site; b. Use of plants listed in California Invasive Plant Council's Exotic Pest Plants of Greatest Ecological Concern in California shall be prohibited; C. Exposed soil areas shall be planted, mulched, or covered between October 15 and the following April 15 each year•, d. Plant materials used in landscaping, erosion control, or habitat restoration shall consist of plants that are appropriate native California plants as identified by a qualified biologist or landscape architect; and e. To prevent erosion and conserve water, bare soil between newly installed plant materials shall be mulched, covered with jute netting, or 1LAC1681006.1 011506-04706089 Resolution No. 2006 -01 ILAC1681006.1 011506 - 04706089 seeded with a mix of seeds best suited for the climate and soil conditions, and native to the Gilroy region. B. AIR QUALITY IMPACTS Air Quality Construction Impacts 1. Impact. The proposed project would have short-term impacts from emissions and dust generated during construction by the use of heavy equipment, the transport of materials, and construction worker commute trips. This is considered a significant adverse environmental impact. 2. Findings of Fact. The City of Gilroy City Council hereby finds that the following mitigation measure is feasible and will effectively mitigate potentially significant impacts to air quality during construction activities. Implementation of the mitigation measure is the responsibility of future developer(s) of the project site. The mitigation measure is fully enforceable by the City of Gilroy, and the Gilroy Engineering Division will require compliance with the measure prior to issuance of development permits. 3. Mitigation. Future developers shall specify in project plans the implementation of the following dust control measures during grading and construction activities for development of the project site. The measures shall be implemented as necessary to adequately control dust, subject to the review and approval by the City of Gilroy Engineering Division: Water all active construction areas at least twice daily; • Cover all trucks hauling soil, sand, and other loose materials or require all trucks to maintain at least two feet of freeboard; • Pave, apply water three times daily, or apply (non- toxic) soil stabilizers on all unpaved access roads, parking areas and staging areas at construction sites; • Sweep daily (with water sweepers) all paved access roads, parking areas and staging areas at construction sites; • Sweep streets immediately (with water sweepers) if visible soil material is carried onto adjacent public streets; • Hydroseed or apply (non- toxic) soil stabilizers to inactive construction areas (previously graded areas inactive for fourteen days or more); • Enclose, cover, water twice daily or apply (non- toxic) soil binders to exposed stockpiles (dirt, sand, etc.); Resolution No. 2006 -01 Limit traffic speeds on unpaved roads to 15 mph; • Install sandbags or other erosion control measures to prevent silt runoff to public roadways; Replant vegetation in disturbed areas as quickly as possible; • Place 100 linear feet of 6 to 8 inch average diameter cobble at all exit points to dislodge and trap dirt from vehicle tires; • Suspend excavation and grading activity when winds (instantaneous gusts) exceed 25 miles per hour; • Limit the area subject to excavation, grading and other construction activity at any one time. The following measures shall be incorporated into all project plans, subject to the review and approval of the City of Gilroy Engineering Division: Idling time of construction equipment shall not exceed five minutes; • Limit the hours of operation of heavy duty equipment and/or the amount of equipment in use; • All equipment shall be properly tuned and maintained in accordance with the manufacturer's specifications; • When feasible, alternative fueled or electrical construction equipment shall be used at the project site; Use the minimum practical engine size for construction equipment; • Gasoline - powered equipment shall be equipped with catalytic converters, where feasible. C. CULTURAL RESOURCES Potentially Significant Impacts to Historic Resources 1. Impact. There are two homes with associated outbuildings located on the project site. Structures older than 50 years have the potential to be significant historic resources. Altering or demolishing structures that are significant historic resources is considered a significant adverse environmental impact. 2. Findings of Fact. The City of Gilroy City Council hereby finds that the following mitigation measure is feasible and will effectively mitigate potentially significant impacts to historic resources. Implementation ILAM681006.1 _10- 011506 - 04706089 Resolution No. 2006 -01 of the mitigation measure is the responsibility of future developer(s) of the project site. The mitigation measure is fully enforceable by the City of Gilroy, and the Gilroy Planning Division will require compliance with the measure prior to issuance of development permits. 3. Mitigation. Prior to demolition of any structures on the project site, the existing structures shall be evaluated by a qualified historian, if the structures are 50 years or older at the time of application. The historic evaluation shall be included in the CEQA process for future development entitlements of the project site. If the structures are determined to be historically significant, appropriate mitigation measures shall be implemented, which may include retaining the structures. Potentially Significant Impacts to Archaeological Resources 1. Impact. Although there was no surface evidence of buried significant cultural resources, the project site is in an archaeologically sensitive area and the discovery of archaeologically significant finds is possible during construction activities. Disturbing archaeologically significant resources is considered a significant adverse environmental impact. 2. Findings of Fact. The City of Gilroy City Council hereby finds that the following mitigation measure is feasible and will effectively mitigate potentially significant impacts to cultural resources. Implementation of the mitigation measure is the responsibility of future developer(s) of the project site. The mitigation measure is fully enforceable by the City of Gilroy, and the Gilroy Planning Division will require compliance with the measure prior to issuance of development permits. 3. Mitigation Due to the possibility that significant buried cultural resources might be found during construction, the following language shall be included on all construction plans for the proposed project, subject to the review and approval of the City Planning Division: 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. Potentially Significant Impacts to Culturally - significant Human Remains 1. Impact. Although no human remains are known or suspected to be buried on the project site, the project site is in an archaeologically sensitive location and the discovery of human remains is possible during future construction activities. 1LAC1681006.1 -11- 011506-04706089 Resolution No. 2006 -01 2. Findings of Fact. The City of Gilroy City Council hereby finds that the following mitigation measure is feasible and will effectively mitigate potentially significant impacts to culturally- significant human remains. Implementation of the mitigation measure is the responsibility of future developer(s) of the project site. The mitigation measure is fully enforceable by the City of Gilroy, and the Gilroy Planning Division will require compliance with the measure prior to issuance of development permits. 3. Mitigation. In accordance with CEQA Guidelines section 15064.5(e), the following language shall be included in the proposed project plans: 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 a coroner 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. D. GEOLOGY AND SOILS Potential for Landslides 1. Impact. The project site is generally flat, however it is located at the base of a hill with a steep slope of greater than 30 percent (Figure 4.12- 1 in the General Plan EIR). Although there is no evidence a landslide has occurred on or near the project, areas with a greater than 30 percent slope are considered to be susceptible to landslides. According to Policy 25.11 of the General Plan, slopes of 10 to 30 percent may be suitable for low intensity, low density development, subject to site - specific review and approval. A landslide 1LAC1681006.1 -12- 011506-04706089 Resolution No. 2006 -01 affecting the proposed project would be a significant adverse environmental impact. 2. Finding of Fact. The City of Gilroy City Council hereby finds that the following mitigation measure is feasible and will effectively mitigate potentially significant impacts associated with landslide potential. Implementation of the mitigation measure is the responsibility of future developer(s) of the project site. The mitigation measure is fully enforceable by the City of Gilroy, and the Gilroy Engineering Division will require compliance with the measure prior to issuance of development permits. 3. Mitigation. The developer of the project site shall have a geotechnical report prepared to evaluate the project site's suitability for residential development. The report shall identify any measures necessary for building and infrastructure foundations, retaining walls, etc., so that potential impacts associated with seismic events and landslides would be mitigated. The geotechnical report shall be subject to review and approval by the City Engineering Division, prior to approval of a tentative map. The developer shall implement recommendations in the report during site preparation. II. FINDINGS CONCERNING PROJECT ALTERNATIVES Pursuant to CEQA Guidelines section 15126.6(d), the EIR identifies and evaluates the comparative merits of alternatives to the project, which could eliminate any significant adverse environmental impacts of the project or reduce them to a level of insignificance. These alternatives are evaluated in the Final EIR even if they would impede to some degree the attainment of project objectives or would be more costly. The project objective is to annex the land into the City limits for ultimate subdivision for the construction of single - family homes. In addition to the No Project Alternative, an Alternate Land Use alternative was studied, as that alternative would reduce, but not eliminate, the impact on California tiger salamander habitat. Both alternatives are rejected as infeasible because they would not meet the project objectives. In addition, the Alternate Land Use alternative would have a significant, unavoidable impact on California tiger salamander habitat. A. NO PROJECT ALTERNATIVE UM681006.1 011506- 04706089 1. Description. The no project alternative assumes that the project site would not be annexed or development. It is a no -build alternative. This alternative would result in no additional development of the site. The two existing homes would remain. 2. Comparison to the Proposed Project. The no project alternative would be the environmentally superior alternative, as it would not result in additional impacts to vegetation and wildlife resources. Impacts to special status species due to habitat loss or disturbance during construction would -13- Resolution No. 2006 -01 not occur. Based solely on impacts to biological resources, this alternative is superior to the proposed project. 3. Findings. The no project alternative would not meet the objectives of the project and would not provide the residential development needed by the City. B. ALTERNATE LAND USE 1. Description. The parkland/open space alternative includes retaining the existing homes within the project boundary, and creating a small one -acre neighborhood park, immediately north of the easterly home to service residential communities planned to the north and east of the project site. The remainder of the project site would be left in Open Space/Resource Conservation and would be managed for the preservation of habitat for the California tiger salamander. 2. Comparison to the Proposed Project. This alternative would retain approximately 80 percent of the project site in its existing condition, leaving about one -half of the site in open grassland as upland habitat for the California tiger salamander. This alternative would result in the loss of approximately one acre of salamander habitat. This loss of habitat would be considered significant and unavoidable. This alternative would require the City of Gilroy and/or one of the resource agencies to acquire that portion of the project site not currently developed with homes. Based solely on impacts to biological resources, this alternative is superior to the proposed project. 3. Findings. This alternative would not meet the project objectives and would not provide the residential development needed by the City. This alternative is not consistent with the City of Gilroy General Plan land use designation of Neighborhood District. It would also have a significant and unavoidable impact on habitat of the California tiger salamander. III. STATEMENT OF OVERRIDING CONSIDERATIONS The City Council of the City of Gilroy hereby adopts and makes the following Statement of Overriding Considerations regarding the significant, unavoidable impacts of the Project and the anticipated benefits of the Project. A. Significant Unavoidable Impacts With respect to the foregoing findings and in recognition of those facts that are included in the record, the City has determined that the Project will result in significant and unavoidable project and cumulative impacts to Biological Resources, specifically to the California tiger salamander and California red - legged frog and their habitat. These impacts, though partially mitigated, would not be reduced to a less than significant level, and there are no identified feasible mitigation measures that would do so. UC1681006.1 011506 - 04706089 -14- Resolution No. 2006 -01 B. Overriding Considerations The City Council finds that this Project has avoided or substantially lessened all significant impacts on the environment where feasible. The City Council finds that each of the benefits set forth in this Statement of Overriding Considerations constitutes a separate and independent ground for finding that the benefits of the Project outweigh the risks of its unavoidable significant adverse environmental impacts. The benefits of the Project, which constitute the specific economic, legal, social, technological and other considerations that justify the approval of the Project, are set forth below. The City Council hereby finds that the benefits of the Project outweigh the significant and unavoidable project and cumulative impacts to Biological Resources, specifically to the California tiger salamander and California red - legged frog and their habitat, as identified in the Final EIR. C. Benefits of the Project 1. The Project will provide housing, which is a priority in the City's General Plan. 2. The Project furthers General Plan Policy 1.01, Goal 1, to insure an orderly, contiguous pattern of development. This site is adjacent to approved residential developments. 3. The Project furthers General Plan Policy 1.02, Goal 2, to maximize use of existing infrastructure and service investments and to avoid premature investment for facility and service extensions by directing new growth to vacant and underutilized lands with the urban service area boundary, such as this site. 4. The Project furthers General Plan Policy 2.03, Goal 2, of allowing urban development only within the incorporated portion of the General Plan planning area, requiring that this land be annexed to the City before final development approval is given. S. The Project is an economical and efficient use of land that helps to reduce urban sprawl and thereby preserve open space and agricultural uses surrounding Gilroy, by directing development to an area at the edge of the City contiguous to approved residential developments and to a residential development that is under construction. 6. The Santa Clara County Local Agency Commission (LAFCo), which regulates reorganizations of County land for inclusion within cities, has identified these three parcels as an island. (The project site is bounded on three sides by the City of Gilroy.) LAFCo's policies encourage island annexations to the City. There is no access to the existing homes on the property or to the vacant parcels except through land within the City limits. lLAC1681006.1 -15- 011506-04706089 Resolution No. 2006 -01 IV. ADOPTION OF THE MITIGATION MONITORING PROGRAM The City Council hereby adopts the Mitigation Monitoring Program attached hereto as Exhibit "A" and incorporated herein by this reference. PASSED AND ADOPTED this 23rd day of January, 2006 by the following vote: AYES: COUNCILMEMBERS: ARELLANO, BRACCO, CORREA, GARTMAN, VALIQUETTE, VELASCO and PINHEIRO NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE AT Rhonda Pellin, City Clerk ILACI681006.1 011506 - 04706089 APPROVED: Albert Pinheiro, Mayor -16- Resolution No. 2006 -01 EXHIBIT A Exhibit A: Mitigation Monitoring Program for the Miller Avenue Reorganization (A 03 -01) 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 in 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 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 shall use the attached monitoring checklist for the Miller Avenue Reorganization project. The monitoring program should be implemented as follows: The Gilroy Community Development Department should be responsible for coordination of the monitoring program, including the monitoring checklist. The Community Development Department should be responsible for completing the EMC Planning Group Inc. 681067,1 3 -1 3.0 Mitigation Monitoring Prog, Miller t je Reorganization Final EIR 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; and 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 may be imposed at the discretion of the City of Gilroy. Miller Avenue Reorganization Mitigation Monitoring Checklist Step 1 Prior to approval of a tentative map or other development entitlements for the project site, the following mitigation measures shall be implemented: 2. The applicant shall initiate consultation with the California Department of Fish and Game and the United States Fish and Wildlife Service to obtain an incidental take permit, which will require preparation and approval of a Habitat Conservation Plan (HCP). The HCP may include, but be not be limited to, the following: a. California tiger salamander upland habitat preservation at a three to one ratio. Habitat preservation can occur either on site or at a suitable offsite mitigation bank. Habitat preserved as part of a habitat corridor can be included as onsite mitigation. b. A 300 -foot fenced exclusion zone from the high water mark of Farman Canyon Creek. Four -foot fencing shall be fastened to t -post stakes placed at eight -foot intervals. Signs shall be installed to clearly designate sensitive habitat boundaries. Erosion control shall be installed to prevent washing of soil or materials into the stream during construction. Soil compaction, parking of vehicles or heavy equipment, stockpiling of construction materials, and /or 3 -2 EMC Planning Group Inc. Miller Avenue Reorganiza. -inal EIR .0 Mitigation Monitoring Program dumping of materials shall not be allowed within the exclusion zone. The fencing shall remain in place during the entire construction period. Permanent open -rail fencing may be installed in lieu of the temporary fencing. C. A pre - construction worker orientation, prepared and conducted by a qualified biologist, to inform workers of the amphibian's protected status and facilitate identification of the potential presence of special status amphibians. d. Measures to avoid loss of these species during construction activities including but not limited to: 1) Who to contact to remove individual amphibians from the project site prior to and during project grading and construction; 2) How/Where to relocate them to nearby protected habitat or other suitable locations identified in the plan; and 3) Appropriate measures to prevent amphibians from entering the site during construction activities. Reporting requirements to monitor the effectiveness of the provision of the HCP. f. Construction details to prevent entry of amphibians into private yards or onto streets, to reduce the potential for accidental take during occupancy of the proposed project. g. Additional mitigation measures may be required as part of a project- specific or regional HCP. The HCP shall be approved by the US Fish and Wildlife Service prior to approval of a tentative map. Party responsible for implementation: Applicant Party responsible for monitoring: Gilroy Planning Division EMC Planning Group Inc. 3 -3 3.0 Mitigation Monitoring Progr. Miller A. 1e Reorganization Final EIR 12. The developer of the project site shall have a geotechnical report prepared to evaluate the project site's suitability for residential development. The report shall identify any measures necessary for building and infrastructure foundations, retaining walls, etc., so that potential impacts associated with seismic events and landslides would be mitigated. The geotechnical report shall be subject to review and approval by the City Engineering Division, prior to approval of a tentative map. The developer shall implement recommendations in the report during site preparation. Party responsible for implementation: Applicant Party responsible for monitoring: Gilroy Engineering Division Step 2 Prior to approval of a demolition permit, the following mitigation measures shall be implemented: 9. Prior to demolition of any structures on the project site, the existing structures on shall be evaluated by a qualified historian, if the structures are 50 years or older at the time of application. The historic evaluation shall be included in the CEQA process for future development entitlements of the project site. If the structures are determined to be historically significant, appropriate mitigation measures shall be implemented, which may include retaining the structures. Party responsible.for implementation: Applicant Party responsible for monitoring: Gilroy Planning Division Step 3 Prior to approval of a building permit and grading activities the following mitigation measures shall be implemented: 1. The following surveys shall be required if any construction would occur during the nesting and /or breeding season of burrowing owls (February 1 through August 31) and /or during the winter residency period (December 1 through January 31). No more than 30 days prior to commencement of grading or construction activities on the project site, field surveys shall be conducted by a qualified biologist to determine if burrowing owls are present in the construction zone or within 200 feet of the construction zone. Areas within 200 feet of the construction zone that are not within the control of the applicant shall be visually assessed from the project site. Results of the survey shall be documented by the biologist, and reviewed by the City Planning Division, prior to issuance of a building permit. If active nests are found in the survey area, the applicant shall contact the California Department of Fish and Game and shall initiate a Memorandum of Understanding (MOU) process with the California Department of Fish and Game. The MOU shall 3 -4 EMC Planning Group Inc. Miller Avenue Reorganiza,. .=inal EIR ,.0 Mitigation Monitoring Program contain mitigation measures contained in the California Department of Fish and Game Staff Report on Burrowing Owl Mitigation (California Department of Fish and Game 1995). The MOU may contain, but not be limited to, the following: • Avoidance of occupied burrows during the nesting season (February 1 through August 31); • Acquisition, protection and funding for long -term management and monitoring of foraging habitat adjacent to occupied habitat; • Enhancement of existing burrows and /or creation of new burrows; • Passive relocation of burrowing owls. The MOU process shall be completed prior to grading or construction activities. Party responsible for implementation: Applicant Party responsible for monitoring: Gilroy Planning Division 3. The following surveys shall be required if any construction would occur during the nesting season for raptors (April 15 — August 1). Preconstruction surveys for nesting raptors shall be conducted by a qualified biologist prior to commencement of grading activities. If raptor nests are located during pre - construction surveys, a qualified biologist shall establish a 300 -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 August 1 only if a qualified biologist conducts nest checks and establishes that the young are fully fledged. Every effort will be made to avoid removal or impact to known raptor nests within project boundaries. If trees known to support raptor nests cannot be avoided, removal of these trees will only occur during the non - breeding season to reduce impacts to a less than significant level. Results of the survey shall be documented by the biologist, and reviewed by the City Planning Division, prior to issuance of a building permit. Party responsible for implementation: Applicant Party responsible.for monitoring: Gilroy Planning Division EMC Planning Group Inc. 3 -5 3.0 Mitigation Monitoring Progi, Miller A. .re Reorganization Final EIR 4. Prior to future development activities, and in coordination with the mitigation measures above, a 300 -foot setback from the high water mark of Farman Creek will be fenced. Grading and equipment will not be allowed within this setback. If disturbance is proposed within the creekbed, a Section 404 permit from the USACE and a Streambed Alteration Agreement from CDFG will be obtained. Party responsible for implementation: Applicant Party responsible for monitoring: Gilroy Planning Division 5. In order to allow a prompt and effective response to any accidental spills occurring during construction, and to protect on -site and downstream water quality and habitat, the project proponent shall prepare a spill abatement plan and hold a pre - construction worker orientation meeting(s) to discuss the spill abatement plan. Workers shall be informed of the importance of preventing spills, and of the appropriate measures to take shall a spill occur. The materials necessary for the initial response to a spill shall be kept at an easily accessible location on the project site. The erosion control plan should include but not be limited to the following best management practices: a. Temporary mulching, seeding or other suitable stabilization measures to protect exposed erodible areas during construction; b. Earth or paved interceptors and diversions installed at the top of cut or fill slopes where there is a potential for erosive surface runoff, C. Erosion and sediment control devices for all grading and filling. Control devices and measures could include, but are not limited to energy absorbing structures or devices to reduce the velocity of runoff water, and; d. Within thirty days after completion of grading, all surfaces disturbed by vegetation removal, grading, or other construction activity that alters vegetative cover, should be revegetated to control erosion, unless covered with impervious or other improved surfaces authorized by approved plans. Erosion controls may include any combination of mechanical or vegetative measure, including but not limited to those described in USDA Soil Conservation Service Bulletin 347. Party responsible.for implementation: Applicant Party responsible, for monitoring: Gilroy Planning Division 6. In order to prevent the spread of invasive non - native species, the project proponent shall prepare a landscaping and re- vegetation plan to include the following requirements: a. An eradication plan for plants listed in California Invasive Plant Council's Exotic Pest Plants of Greatest Ecological Concern in California currently growing on the project site; 3 -6 EMC Planning Group Inc. Miller Avenue Reorganiza, . =inal EIR ,.0 Mitigation Monitoring Program b. Use of plants lasted in California Invasive Plant Council's Exotic Pest Plants of Greatest Ecological Concern in California shall be prohibited; C. Exposed soil areas shall be planted, mulched, or covered between October 15 and the following April 15 each year; d. Plant materials used in landscaping, erosion control, or habitat restoration shall consist of plants that are included in an appropriate native California plants as identified by a qualified biologist or landscape architect; and To prevent erosion and conserve water, bare soil between newly installed plant materials shall be mulched, covered with jute netting, or seeded with a mix of seeds best suited for the climate and soil conditions, and native to the Gilroy region. Party responsible for implementation: Applicant Party responsible for monitoring: Gilroy Planning Division 7. Future developers shall specify in project plans the implementation of the following dust control measures during grading and construction activities for development of the project site. The measures shall be implemented as necessary to adequately control dust, subject to the review and approval by the City of Gilroy Engineering Division: • Water all active construction areas at least twice daily; • Cover all trucks hauling soil, sand, and other loose materials or require all trucks to maintain at least two feet of freeboard; • Pave, apply water three times daily, or apply (non- toxic) soil stabilizers on all unpaved access roads, parking areas and staging areas at construction sites; • Sweep daily (with water sweepers) all paved access roads, parking areas and staging areas at construction sites; and • Sweep streets immediately (with water sweepers) if visible soil material is carried onto adjacent public streets. • Hydroseed or apply (non- toxic) soil stabilizers to inactive construction areas (previously graded areas inactive for fourteen days or more); • Enclose, cover, water twice daily or apply (non- toxic) soil binders to exposed stockpiles (dirt, sand, etc.); • Limit traffic speeds on unpaved roads to 15 mph; • Install sandbags or other erosion control measures to prevent silt runoff to public roadways; and EMC Planning Group Inc. 3.0 Mitigation Monitoring Progi, Miller .-. ie Reorganization Final EIR • Replant vegetation in disturbed areas as quickly as possible. • Place 100 linear feet of 6 to 8 inch average diameter cobble at all exist points to dislodge and trap dirt from vehicle tires; • Suspend excavation and grading activity when winds (instantaneous gusts) exceed 25 miles per hour; and • Limit the area subject to excavation, grading and other construction activity at any one time. Party responsible for implementation: Applicant Party responsible for monitoring: Gilroy Engineering Division 8. The following measures shall be incorporated into all project plans, subject to the review and approval of the City of Gilroy Engineering Division: • Idling time of construction equipment shall not exceed five minutes; • Limit the hours of operation of heavy duty equipment and /or the amount of equipment in use; • All equipment shall be properly tuned and maintained in accordance with the manufacturer's specifications; • When feasible, alternative fueled or electrical construction equipment shall be used at the project site; • Use the minimum practical engine size for construction equipment; and • Gasoline - powered equipment shall be equipped with catalytic converters, where feasible. Party responsible for implementation: Applicant Party responsible for monitoring: Gilroy Engineering Division 10. Due to the possibility that significant buried cultural resources might be found during construction, the following language shall be included on all construction plans for the proposed project, subject to the review and approval of the City Planning Division: 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 3 -8 EMC Planning Group Inc. Miller Avenue Reorganiza. . =inal EIR . 0 Mitigation Monitoring Program Party responsible_for monitoring: Gilroy Planning Division 11. In accordance with CEQA Guidelines section 15064.5(e), the following language shall be included in the proposed project plans: 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 a coroner 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: Party responsible for monitoring Applicant Gilroy Planning Division EMC Planning Group Inc. 3 -9 I, RHONDA PELLIN, City Clerk of the City of Gilroy, do hereby certify that the attached Resolution No. 2006 -01 is an original resolution, or true and correct copy of a city resolution, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 23rd day of January, 2006, 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 7th day of February, 2006. City Clerk of the City of Gilroy (Seal)