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Resolution 2011-39 RESOLUTION NO. 2011-39 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GILROY MAKING CERTAIN FINDINGS CONCERNING IMPACTS AND MITIGATION MEASURES IN ACCORDANCE WITH THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) IN CONNECTION WITH APPROVAL OF A ZONE CHANGE FROM OPEN SPACE TO COMMERCIAL INDUSTRIAL ON 2.5 ACRES FOR WHICH AN ENVIRONMENTAL IMPACT REPORT HAS BEEN PREPARED, Z09-06, FORTINO APPLICATION WHEREAS, the City Council of the City of Gilroy ("City") intends to approve Fortino zone change application Z09-06 to redesignate approximately 2.5 acres from Open Space to Commercial/Industrial, hereinafter "the"Project," located at 5400 Monterey Road, APN 841-31-014; and WHEREAS, the Project was subject to a Final Environmental Impact Report ("Final ElR") prepared by the City as the lead agency in compliance with the California Environmental Quality Act (Pub. Resources Code S 21000 et seq.) and the CEQA Guidelines (Cal. Code Regs., Title 14, S15000 et seq.) ("CEQA"), entitled Monterey Road Commercial Center Zone Change and Subdivision and Fortino Zone Change; and WHEREAS, the Final EIR for the Project consists of the Draft EIR dated October 18, 2010 (State Clearinghouse number 2010062049), and the Final EIR dated April 25, 2011, prepared for the City of Gilroy by EMC Planning Group Inc.; and WHEREAS, the Final EIR was adequately and timely noticed and circulated for public review, and public comments were received and considered. The City of Gilroy distributed the Notice of Preparation to all Responsible Agencies on June 17, 2010. Responses to the Notice of Preparation were considered in the preparation of the EIR and included as an appendix to the ElR. The City of Gilroy timely distributed a Notice of Completion with copies of the EIR, and timely posted the Notice of Completion at the County of Santa Clara County Clerk's office. The City of Gilroy published a Notice of Availability in the Gilroy Dispatch on November 2, 2010. The City of Gilroy received comment letters from Ruggeri-Jensen-Azar and the Santa Clara Valley Water District, and responded to these in the Final EIR, copies of which were provided to the commenters no less than ten days prior to project approval; and WHEREAS, the Planning Commission received public testimony on the Final EIR and the Project at a duly noticed public hearing on May 5, 2011, and recommended certification of the Final EIR and approval of the Project; and WHEREAS, the Final EIR and the Project were considered by the City Council at a duly noticed public hearing on June 6, 2011; and the City Council lLAC\853128.1 071111-04706078 -1- Resolution No. 2011-39 directed that a resolution of the City Council be drafted certifying the Final EIR as completed in compliance with CEQA, that the Final EIR represents the independent judgment of the City, and that the City Council had reviewed and considered the Final EIR and other information in the record, including the written and oral comments received at the public meetings on the ElR, prior to approving the Project. And that said resolution should make the required findings pursuant to CEQA regarding significant environmental effects and mitigation measures and alternatives, which for this Project are set forth in this Resolution No. 2011-39; and WHEREAS, the City Council on July 18, 2011, adopted this Resolution No. 2011-39 certifying the Final EIR and making the required findings in compliance with CEQA prior to approving the Project; and WHEREAS, the 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 to approve the Project is based. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY HEREBY MAKES AND ADOPTS THE FOLLOWING CEQA FINDINGS FOR THE FORTINO ZONE CHANGE Z09-06: I. FINDINGS CONCERNING SIGNIFICANT ENVIRONMENTAL EFFECTS A. AESTHETICS Decline in Visual Quality 1. Impact. Future redevelopment on the project site could contribute to a decline in visual quality at the south Monterey Road gateway area. This is a potentially significant 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 visual effects of project development in the Monterey Road gateway area, 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 Gilroy Planning Division will require compliance with the measure prior to issuance of development permits. 3. Mitigation. Future redevelopment plans for the project site shall include landscaping plans and buildings designed consistent with the provisions of General Plan Implementation Action I.H and shall be submitted to the Planning Division for design review prior to issuance of any building permit. lLAC\853128.1 071111-04706078 -2- Resolution No. 2011-39 lLAC\853128.1 071111-04706078 B. AIR QUALITY Release of Airborne Hazardous Materials 1. Impact. Demolition of existing buildings could result in the release of asbestos into the air and increase exposures to airborne asbestos. This is a potentially significant impact. 2. Findings of Fact. The City of Gilroy City Council hereby finds that the following mitigation measure is feasible and will effectively mitigate significant adverse demolition asbestos impacts. The mitigation measure will require actions that minimize or reduce conditions and activities that lead to asbestos entering the air. 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. (AQ-3) For any building constructed prior to 1980, the developer shall consult with the BAAQMD Enforcement Division prior to commencing demolition to determine permit requirements. Removal of asbestos-containing building materials is subject to the limitations of District Regulation 11, Rule 2: Hazardous Materials; Asbestos Demolition, Renovation and Manufacturing. C. BIOLOGICAL Nesting Raptors and Birds 1. Impact. Future development of the site would result in tree removal, demolition and site preparation activities that have the potential to disturb birds protected under the federal Migratory Bird Act during the nesting season. If active nest(s) of protected bird species are present, tree removal, demolition, site preparation activities, and future construction on the site, 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. The loss of individuals or abandonment of their nests would be a potentially significant 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 adverse impacts on nesting birds and their eggs or young. The mitigation measure will allow un-restricted construction work during the non-nesting season, but require pre- construction surveys for nesting birds if construction were to commence during the nesting season. 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 -3- Resolution No. 2011-39 lLAC\853128.1 071111-04706078 Planning Division will require compliance with the measure prior to issuance of development permits. 3. Mitigation. (BIO-l) Future developers of the site shall coordinate pre-construction surveys for nesting birds to be conducted by a qualified biologist within 30 days prior to tree removal, building demolition, grading and/or construction, if any of these activities occur during the nesting season (nesting typically occurs between February through mid-September). If nests are located during pre-construction surveys, a qualified biologist will establish a 250-foot buffer around each nest for the duration of the breeding season (until such time as the young are fully fledged) to prevent nest harassment and brood mortality. Work may proceed prior to mid-September only if a qualified biologist conducts nest checks and establishes that the young are fully fledged. Every effort shall be made to avoid removal or impact to known nests within project boundaries. If the removal of trees known to support nests cannot be avoided, removal of these trees will only occur outside of the nesting season (mid-September through January). A report documenting the results of the surveys and plan for avoidance (if needed) will be submitted to the City of Gilroy Planning Division for review prior to the initiation of ground disturbance. D. CULTURAL Incidental Disruption of Cultural Resources 1. Impact. The project has the potential for accidental discovery of unknown buried cultural resources during grading and construction activities. 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 adverse impacts on unknown buried cultural resources that could be accidentally discovered during project-related ground disturbing activities. Implementation of the mitigation measures is 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. a. (CR-l) Due to the possibility that significant buried cultural resources might be found during construction, the following language shall be included on any permits issued for the project site, subject to the review and approval of the Gilroy Planning Division (pursuant to Gilroy General Plan Policy 5.07): -4- Resolution No. 2011-39 lLAC\853128.1 071111-04706078 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. b. (CR-2) In the event of an accidental discovery or recognition of any human remains in any location other than a dedicated cemetery, the City shall ensure that the language is included in all permits in accordance with CEQA Guidelines section 15064.5(e), subject to the review and approval of the City of Gilroy Planning Division: If human remains are found during construction there shall be no further excavation or disturbance of the site or any nearby area reasonably suspected to overlie adjacent human remains until the coroner of Santa Clara County is contacted to determine that no investigation of the cause of death is required. If the coroner determines the remains to be Native American the coroner shall contact the Native American Heritage Commission within 24 hours. The Native American Heritage Commission shall identify the person or persons it believes to be the most likely descendent MLD) from the deceased Native American. The MLD may then make recommendations to the landowner or the person responsible for the excavation work, for means of treating or disposing of, with appropriate dignity, the human remains and associated grave goods as provided in Public Resources Code Section 5097.98. The landowner or his authorized representative shall rebury the Native American human remains and associated grave goods with appropriate dignity on the property in a location not subject to further disturbance if: a) the Native American Heritage Commission is unable to identify a MLD or the MLD failed to make a recommendation within 24 hours after being notified by the commission; b) the descendent identified fails to make a recommendation; or c) the landowner or his authorized representative rejects the recommendation of the descendent, and the mediation by the Native American Heritage Commission fails to provide measures acceptable to the landowner. E. HAZARDS Release of Airborne Hazardous Materials 1. Impact. Demolition of existing buildings could result in the release of asbestos into the air and increase exposures to airborne asbestos. This is a potentially significant impact. -5- Resolution No. 2011-39 lLAC\853128.1 071111-04706078 2. Findings of Fact. The City of Gilroy City Council hereby finds that the following mitigation measure is feasible and will effectively mitigate significant adverse demolition impacts. The mitigation measure will require actions that minimize or reduce conditions and activities that lead to asbestos entering the air. Implementation ofthe 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. (AQ-3) For any building constructed prior to 1980, the developer shall consult with the BAAQMD Enforcement Division prior to commencing demolition to determine permit requirements. Removal of asbestos-containing building materials is subject to the limitations of District Regulation 11, Rule 2: Hazardous Materials; Asbestos Demolition, Renovation and Manufacturing. F. HYDROLOGICAL Storm Water Run-off Quality 1. Impact. Future development on this site would include grading and future development would result in an increase in impervious surfaces, which increases urban runoff. Exposure of bare or disturbed soil to runoff during construction would cause erosion and sediment in the runoff. Future development of the site could increase the amount of urban pollutants entering the storm drain system. This is a potentially significant impact. 2. Findings of Fact. The City of Gilroy City Council hereby finds that the following mitigation measures are feasible and will effectively mitigate significant adverse effects on water quality. Implementation of the mitigation measures is the responsibility of future developer(s) of the project site. The mitigation measures are fully enforceable by the Gilroy Engineering Division. The Santa Clara Valley Water District and/or Central Coast Regional Water Quality Control Board will require compliance with the measures prior to issuance of development permits. 3. Mitigation. (HWQ-l) Future developers shall comply with all City of Gilroy, Santa Clara Valley Water District, and Regional Water Quality Control Board requirements for the proper treatment and retention/detention of storm water. Compliance with these requirements shall be confirmed prior to issuance of a grading permit. -6- Resolution No. 2011-39 G. NOISE Traffic Noise 1. Impact. The project has the potential to expose receptors to unacceptable levels of traffic noise, which are already experienced on the Fortino parcel. This is a potentially significant 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 adverse traffic-related noise impacts to commercial and industrial uses exposed to unacceptable levels of traffic noise. 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. (N-2) Prior to Architectural and Site Review approval for future development on site, the developer( s) shall provide evidence demonstrating that proposed development is in compliance with the City's exterior noise thresholds for commercial or industrial uses. II. FINDINGS CONCERNING SIGNIFICANT UNAVOIDABLE ENVIRONMENTAL EFFECTS The City of Gilroy City Council hereby finds that, with implementation of the mitigation measures listed above, the project will not result in significant impacts that cannot be mitigated to a less than significant level. Therefore, the project would not result in significant unavoidable impacts. III. FINDINGS CONCERNING PROJECT ALTERNATIVES A. ALTERNATIVES CONSIDERED The City of Gilroy City Council hereby finds that the Draft EIR studied an alternative project in accordance with CEQA Guidelines section 15126.6(a). A "no project" alternative was studied in accordance with CEQA Guidelines section 15126.6(c), and considered the effects of continued existing use of the project site. B. AL TERNA TIVES ANALYSIS No Project Alternative. The City of Gilroy City Council hereby finds that the Draft EIR identified the "no project" alternative as the environmentally superior alternative. The City of Gilroy City Council finds that the "no project" alternative does not attain the primary objective lLAC\853128.1 071111-04706078 -7- Resolution No. 2011-39 of the project to change the zoning designation to make the ZOnIng consistent with the General Plan land use designation. Under this alternative, the existing commercial uses on the site would not conform to the zone district regulations, which may reduce future opportunities for employment on the site as envisioned by the general plan. New job-producing opportunities may be directed elsewhere within other jurisdictions or in areas that would require premature expansions of the City's Urban Service Area. Therefore, although this alternative would be superior to the proposed project, in terms of avoiding any significant effects of environmental impacts resulting from future development, these impacts are fully mitigated as described herein and the potential job producing benefits of the project outweigh these significant effects of adverse effects of these impacts. The City of Gilroy City Council hereby finds that although the "no project" alternative was identified as the environmentally superior alternative, the project is approvable since it would provide increased opportunities for future employment in proximity to existing infrastructure and services. IV. ADOPTION OF THE MITIGATION MEASURES AND MITIGATION MONITORING PROGRAM The City Council hereby adopts the mitigation measures proposed in the Final EIR as summarized herein as conditions of the Project. The City Council hereby adopts the Mitigation and Monitoring Program attached hereto as Exhibit "A", which is incorporated herein by this reference. lLAC\853128.1 071111-04706078 -8- Resolution No. 2011-39 PASSED AND ADOPTED this 18th day of July, 2011, by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: lLAC\853128.1 071111-04706078 ARELLANO, BRACCO, DILLON, LEROE- MuNoz, TUCKER, WOODWARD and PINHEIRO NONE NONE APPROVED: -9- Resolution No. 2011-39 EXHIBIT A FORTINO ZONE CHANGE (Z 09-06) MITIGATION MONITORING PROGRAM INTRODUCTION CEQA Guidelines section 15097 requires public agencies to adopt reporting or monitoring programs when they approve projects subject to an environmental impact report or a negative declaration that includes mitigation measures to avoid significant adverse environmental effects. The reporting or monitoring program is to be designed to ensure compliance with conditions of project approval during project implementation in order to avoid significant adverse environmental effects. The law was passed m response to historic non-implementation of mitigation measures presented in environmental documents and subsequently adopted as conditions of project approval. In addition, monitoring ensures that mitigation measures are implemented and thereby provides a mechanism to evaluate the effectiveness of the mitigation measures. A definitive set of project conditions would include enough detailed information and enforcement procedures to ensure the measure's compliance. This monitoring program is designed to provide a mechanism to ensure that mitigation measures and subsequent conditions of project approval are implemented. EMC PLANNING GROUP INC. MMP-l MITIGATION MONITORING PROGRAM 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 will use the attached monitoring checklist for the proposed project. The monitoring program will be implemented as follows: 1. The Gilroy Community Development Department will be responsible for coordination of the monitoring program, including the monitoring checklist. The Community Development Department will be responsible for completing the monitoring checklist and distributing the checklist to the responsible individuals or agencies for their use in monitoring the mitigation measures. 2. Each responsible individual or agency will then be responsible for determining whether the mitigation measures contained in the monitoring checklist have been complied with. Once all mitigation measures have been complied with, the responsible individual or agency should submit a copy of the monitoring checklist to the Community Development Department to be placed in the project ftle. If the mitigation measure has not been complied with, the monitoring checklist should not be returned to the Community Development Department. 3. The Gilroy Community Development Department will review the checklist to ensure that appropriate mitigation measures and additional conditions of project approval included in the monitoring checklist have been complied with at the appropriate time, e.g. prior to issuance of a use permit, etc. Compliance with mitigation measures is required for project approvals. 4. If a responsible individual or agency determines that a non-compliance has occurred, a written notice should be delivered by certified mail to the project proponent within 10 days, with a copy to the Community Development Department, describing the non- MMP-2 EMC PLANNING GROUP INC. FORTINO ZONE CHANGE 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 fmes may be imposed at the discretion of the City of Gilroy. EMC PLANNING GROUP INC. MMP-3 MITIGATION MONITORING PROGRAM MITIGATION MONITORING CHECKLIST Step 1 Prior to approval of Architectural and Site Review, the following mitigation measures shall be implemented: Mitigation Measure N-2 The developer(s) shall provide evidence demonstrating that proposed development IS m compliance with the City's exterior noise thresholds for commercial or industrial uses. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Planning Division Monitoring Notes: MMP-4 EMC PLANNING GROUP INC. FORTINO ZONE CHANGE Step 2 Prior to the approval of demolition, grading and building permits, the following mitigation measures shall be implemented: Mitigation Measure A-3 Future redevelopment plans for the project site shall include landscaping plans and buildings designed consistent with the provisions of General Plan Implementation Action 1.H and shall be submitted to the Planning Division for design review prior to issuance of any building permit. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Planning Division Monitoring Notes: Mitigation Measure AQ-3 For any building constructed prior to 1980, the developer shall consult with the BAAQMD Enforcement Division prior to commencing demolition to determine permit requirements. Removal of asbestos-containing building materials is subject to the limitations of District Regulation 11, Rule 2: Hazardous Materials; Asbestos Demolition, Renovation and Manufacturing. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Planning Division Monitoring Notes: EMC PLANNING GROUP INC. MMP-5 MITIGATION MONITORING PROGRAM Mitigation Measure 810-1 The project applicant shall coordinate pre-construction surveys for nesting birds to be conducted by a qualified biologist within 30 days prior to tree removal, building demolition, grading and/or construction, if any of these activities occur during the nesting season (nesting typically occurs between February through mid-September). If nests are located during pre-construction surveys, a qualified biologist will establish a 250-foot buffer around each nest for the duration of the breeding season (until such time as the young are fully fledged) to prevent nest harassment and brood mortality . Work may proceed prior to mid-September only if a qualified biologist conducts nest checks and establishes that the young are fully fledged. Every effort shall be made to avoid removal or impact to known nests within project boundaries. If the removal of trees known to support nests cannot be avoided, removal of these trees will only occur outside of the nesting season (mid-September through January). A report documenting the results of the surveys and plan for avoidance (if needed) will be submitted to the City of Gilroy Planning Division for review prior to the initiation of ground disturbance. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Planning Division Monitoring Notes: Mitigation Measure HWQ-1 The applicant shall comply with all City of Gilroy and Regional Water Quality Control Board requirements for the proper treatment and retention/detention of storm water. Compliance with these requirements shall be confirmed prior to issuance of a grading permit. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gt"lroy Engineering Division Monitoring Notes: MMP-6 EMC PLANNING GROUP INC. FORTINO ZONE CHANGE Step 3 During grading and construction, the following mitigation measures shall be implemented: Mitigation Measure CR-1 Due to the possibility that significant buried cultural fesources might be found during construction, the following language shall be included on any permits issued for the project site, subject to the feview and approval of the Gilroy Planning Division (pursuant to Gilroy General Plan Policy 5.07): If archaeological resources are discovered during construction, work shall be halted within 50 meters (165 feet) of the fmd until a qualified professional afchaeologist can evaluate it. If the find is determined to be significant, appropriate mitigation measures shall be formulated and implemented. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Planning Division Monitoring Notes: Mitigation Measure CR-2 In the event of an accidental discovery or recognition of any human remains in any location othef than a dedicated cemetery, the City shall ensure that the language is included in all permits in accordance with CEQA Guidelines section l50M.5(e), subject to the review and approval of the City of Gilroy Planning Division: If human remains are found during construction there shall be no further excavation or disturbance of the site Of any nearby area feasonably suspected to overlie adjacent human remains until the coroner of Santa Clara County is contacted to determine that no investigation of the cause of death is required. If the coronef 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 landownef Of the person responsible for the excavation work, for means EMC PLANNING GROUP INC. MMP-7 MITIGATION MONITORING PROGRAM of treating or disposing of, with appropriate dignity, the human remains and associated grave goods as provided in Public Resources Code Section 5097.98. The landowner or his authorized representative shall rebury the Native American human remains and associated grave goods with appropriate dignity on the property in a location not subject to further disturbance if: a) the Native American Heritage Commission is unable to identify a MLD or the MLD failed to make a recommendation within 24 hours after being notified by the commission; b) the descendent identified fails to make a recommendation; or c) the landowner or his authorized representative rejects the recommendation of the descendent, and the mediation by the Native American Heritage Commission fails to provide measures acceptable to the landowner. Party Responsible for Implementation: Applicant Party Responsible for Monitoring: Gilroy Planning Division Monitoring Notes: MMP-8 EMC PLANNING GROUP INC. I, SHA WNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the attached Resolution No. 2011-39 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 special meeting of said Council held on the 18th day of July, 2011, 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 20th day of July, 2011. (Seal)