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
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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.
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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
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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):
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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.
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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 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.
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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
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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.
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Resolution No. 2011-39
PASSED AND ADOPTED this 18th day of July, 2011, by the following vote:
AYES:
COUNCILMEMBERS:
NOES:
COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
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ARELLANO, BRACCO, DILLON, LEROE-
MuNoz, TUCKER, WOODWARD and
PINHEIRO
NONE
NONE
APPROVED:
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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.
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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-
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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.
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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:
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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:
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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:
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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
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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:
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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)