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
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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
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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
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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:
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• 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
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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.
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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
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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
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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.);
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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
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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.
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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
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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
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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
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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.
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011506 - 04706089
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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.
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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
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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
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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
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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
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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
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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
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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;
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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
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• 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
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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
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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)