HomeMy WebLinkAboutAgenda Bill 3.A 10/18/2010~I
DATE: October 18, 2m10
TO: Honorable .Mayor and Members of the City Council through City Manager
FROM: Scott Duiven, Senior Planner
SUBJECT: Resolution of the Cty.Council of the City of Petaluma Providing Comments
under the California Environmental Quality.Act on the Final Environmental
Impact'Report'for"the Proposed Roblar Road Quarry Project.
REC.On~VIENIDA~IOl\T
Adopt-the attached Resolution Providing Comments under the California Environmental Quality
Act on the Final Environmental Impact Report for the Proposed Roblar Road Quarry Project.
~ACKGROiJNI)
On September 20, 2010 the City Council. requested that staff return to Council with information
on issues surrounding the Robfar Road:Quarry project: In particular`Council requested a copy of
a letter submitted to County Counsel on September 20, 201.0; on behalf of Petaluma and other
cities requesting that the County ,require the applicant to indemnify the, cities from potential
y ' p ~ g ation related to the use of land
liabilit if the ro'ect dama 'es the Roblar Landfill and for inform
encumbered by a Sonoma County Agricultural Preservation and Open Space District
(S'CAPOSD) conservation easement. On October 4, 2010 the .City Council discussed the
proposed' Roblar Road Quarry Project, including the Roblar Landfill .issues and the proposed use
of land encumbered by a SCAPOSD conservation easements and directed staff to prepare a
resolution addressing these City'Council concerns. The date-,for potential County approval and .
certification of the EIR for the Robla. r Road Quarry Project is set for October 19, 2010.
'' IDISCAJSSION
Thee first ..issue is related to the potential environmental. impacts of the proposed quarry project on
the adjacent closed.Roblar Landfill. The Conditions~of Approval'forwarded to the Board of
P
environrriental coain a provision to hold the County harmless with respect to any future
sts related to the' Roblar Landfill that may arise from the,, quarrying activities of
the proposed Roblar Road Quarry. As noted. in the attached fetter, the Cities .are seeking the .same
.protection.
Agenda Review:
City'Attorney Finance Director City:Manager
i i.
Ly.~
fi ~ ~ ~ '
a„ ,
~ ,~~, ~ Thee applcant.stated,at the October 4rh City' Council meeting, that it ~i"s working out-terms for
'' additionalindemnification with County Counsel. The County has proposed a version of an
indemnification which is -fill under discussion with the, cities..as of the .submission of this report.
1VIem!bers of the Council articulated concerns at the October 4th meeting that in addition #o
indernnifcation, it is important that the project have adequate'measures to ensure that`project
construction and operation will do nothing. that will damage the Roblar Road landfill. Additional
concern was expressed that there is not an identified baseline of existing conditions: at the Roblar
Landf 11 which would enable identification and appropriate assignment. of responsibility for any
damage to the Roblar Landfill resulting from construction and operation of the proposed project.
These comments have been incorporated .into the attached resolution.
Council members also articulated concerns related to the project applicant'.- request to allow the
temporary use and isolation of approximately 3 acres of an approximately 700-acre property
currently encumbe"red by a SCAPQSD conservation easement„for an access road in exchange for
the. establshment.of a permanent SCAPOSD conservation easement on the 198-acre project site.
The road easement presents an alternative circulation option considered. in the EIR that would
roughly parallel Roblar Road and avoid impacts to Americano Creek. that would occur with
widening Roblar Road to accommodate the proposed project. With respect to this alternative, the
applicant appears to propose that in exchange for the road easement, he will complete dedication
of 128 acres of the property immediately, and dedication of the 70-acre quarry area atthe
conclusion of the project in 20 years including reclamation. of the 3-acre easement used for the
access road.
The Sonoma County Agricultural Preservation and Open Space District's .Advisory Committee
met on October 7, 2010 to discuss.and take action on the request for property exchange. At that
meeting the Advisory Committee took. a position opposing the release of a portion of the Roblar
Ranch Conservation Easement for use as a haul road for the following reasons:
1. The citizens of Sonoma County expect that easements acquired by the .District will
be permanent.
2. Sale or release of easement. for private. purposes sets a dangerous precedent and
should not be considered.
3.. Approval. of a road through the easement will damage the reputation of the District
and erode public trust that the District permanently protects properties it acquires.
' The attached resolution'incorporates th'e-above'concern raised by the City Council and includes
the action.taken.by the SCAPOSD Advisory Committee.
F1<NANC1<AI. I1VIIPAC'TS
.Staff :estimates that' as° many as' 15 hours may have been spent, in total, preparing this and
previous. staff reports in response to City Council direction regarding the proposed. Roblar Road
~smce Oct be 41th, atta ost t off ee estimates. having, spent approximately 4.5 hours on the item
~ Y. Y y''o the City of $720'. The total cost in preparation of the item is
,..
~~
approximately $1,700.
A')("1cAC~~N~S
1. Resolution
2. Robiar Ranch Conservation Easement. Site Map (SCAPOSD)
3. Ranch Easement proposed Haul:Road Exchange (SCAPOSD)
4. Correspondence on behalf of applicant to SCAPOSD
5. September 20, 2010 Letter to Sheryl Bratton, Chief Deputy County Counsel
r.. ~, ' "4
,,
ATTACHMENT 1
RESOI,JTION OF THE. CITX COUNCIL OF TIC CI'I'~ OF PETAI.iJ1VIA
PROVIDING COI~~IENTS' UNI)EIt TIIE CALIF®~TIA ENVIR®NNI>CNTAI:,.
QUAI.,ITY ACT ON TIIE F'INAI ENVIRONIVIUNTAI.~ IIVIPACT REPORT FOR. THEE
PR®POSE~ ROBLAR ROAID QUARRY PROJECT
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WIIEItEAS, the City of Petaluma is located near the area of the proposed site for a new
rock quarry on Roblar Road; and
WIIEREAS; the proposed Roblar Road Quarry is adjacent to the site of the now closed
Roblar .Road Landfill site which .remains unlined and uncapped;. and
WII~EEREAS, the City Council of the City of Petaluma is concerned about impacts of the
proposed quarry operation on this landfill that could affect the local water supply of Petaluma's
neighbors and also leave Petaluma. exposed to liability due to historic use of the old landfill by
City of Petaluma residents; and
WIIIEREAS, the proj'ect,as proposed..does not identify adequate measures to ensure that
project construction and operation will not lead to damage to the Roblar Road Landfill with a
g p pp y d~acerit properties.; and
resultin adverse im act on local water su 1 and/or a
~?V~3[Elt]EAS, there is a lack;~of an identified basehne~ ,of exsfing conditions from the
Roblar Road landfill which would. enable identification and appropriate assignment of
responsibility for any damage to the Roblar Landfill resulting: from construction.. and operation of
the proposed project; and
WIIEREAS, the County of Sonoma has presently-'proposed a form of indemnification
for the City of Petaluma and other involved cities which may not`provde adequate liability
protection for the City and its ratepayers; and
~VI~1[t1EAS, in 2006;.Petaluma voters joined Sonoma.Gountyvoters to pass a'/4 cent
sales'tax to preserve agricultural lands, clean water, and open. space; and
WIIEREAS, the access to
' ~I r ad~which.:i r the Roblar Road Quarry studied as an alternative in the Final
EIR',~places,a h'au o ~ s p oposed' to direct 300 or more truck trips (150 roundtrips) daily
through agricultural land and. open space protected through conservation easements and other
preservatio ,asures 'funded in part by the voter-approved sales tax; and
n me
WI~IZ~AS; ocation of a haul .road .over open space .and agricultural land will adversely
impact adjacent~agricult'ural uses; and
VVI$EREAS, they Sonoma County' Agricultural Preservation and Open Space District's
Advisory Committee met on October 7, 20.1.0 and took a position opposing. the release of the
Roblar Ranch Conservation:Easement expressing that citizens expect that easements acquired by
", 1
the District will be permanent; that •sale; or ..release of easements for private purposes sets a
dangerous precedent; and that approval' of a road, through'the easement will damage the
.reputation of the.District and erode public trustthat:the District permanently protects properties it
acquires; .and
vVHEREAS, the City Council concurs with the position of the Advisory Committee
regarding removal or modification of existing conservation easements; and '
WHEREAS, there has not. been an appropriate evaluation under CEQA of the
impact of the modification of the conservation easement, which -has been proposed as a
mitigation measure for other,adverse impacts of the project.
NOW, 'TI~EREFORE,.I$E IT IVESOLVEI) that based on the .foregoing recitals,
which are incorporated herein, the: City Council of the City of Petaluma- objects. to the
certification of the Final EIR:for "the current North Bay Construction,, Inc./John Barella
application for County of Sonoma permits for the proposed Roblar Road Quarry Project
"the Project") because of:
1. Inadequate evaluation of environmental impacts as identified herein which
affect the City of'Petaluma and City residents.
2. Indemnification conditions proposed for the Project which are insufficient
to protect the City of Petaluma and City residents and ratepayers from the
liability consequences' of `potential damage to the Roblar Landfill from
project construction;and operation.
3. Access and a,haul road proposed for the Project which would violate the
public trust and require modification of conservation easements and open
space/agricultural protection which has been achieved ,partially or wholly
through tax funds paid by City residents and directed to the Sonoma
County Agricultural Preservation and Open ,Space District.
BE I'I' FUR`I'It I2ES®I~D that the City Council ofthe City of Petaluma
urges the County of Sonoma to disapprove the Project unless the issues identified herein
are fully evaluated and resolved in a manner sufficient to protect the City of Petaluma and
City residents and ratepayers.
aluma
,~' I'I' h LTR~H'ER ICES®I:,VEID is reshe Citn. t oVnlerie Brownty h P of the' Sono
eb d rE'ect t e C_ y Clerk to transm t t olutio o a , C a does
her _ y rna
County Board of Supervisors.
i ATTACH M E N T
2,000
Ro~~~r Ranch Consew~~ao~ ~aserne~$ o ,..500 ,,ooo Feet N
~o~e 'ap
' Street
~, ~ ~ _ ~ ~Map~Date:.~S'eplembec20;.2010
,, Stream
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Data S
~_~ sonom °r~s ' Roblar Ranch Ownership Boundary
_... ~ Cd(ont GIS ;i hP aps; roads YSCWA A) ericano Creek ,
5 Q N O M k C D U N T Y SCAPOSD tnbutanes ; Di italGlobe 2009 ae ai . ~ .Roblar Ranch Conservation Easement
AGKt .,LI'UKAI Kt4r BVATtON ' This mapis for illustrative ui oses onl antl is ) ~ "
AND OPEN SPACEu15TRiCT not intended tobeadefinitiveproperty0escnphon. q°Q Barella Property
J. Nawell 5:1GISProjecs;Roblar_RanchlPJFSVobiar_ranch_site. map
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QU~P6'~/
PPOperrfy
-- Quur~y;
__ ~_~ Property
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_-_ -=- TIFSCh Pr~F~erty
Wilson IRan~h Easementi ~ 1
Property s`
i r inch ,; ~ ,
Easementi ~ `~
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^~ ~Y/
Proposed release ,~'~
of Ranch Easement ' ~-'
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., - - -
~~ Proposed
;haul road
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~•
i is
1fl~iison P~ope~ty
4Rarach Easement
~r
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0 100 200 400
- Feet
~l~C~ ~~~~t~~~~;
B'O~OS~Q~ ~~d0~ Odd ~l~C.~1~9~~~ Proposed Haul Road
' Stream
~(' ,,_~~ MapDate:fieptember 28, 2010
i ~ Ranch Easement Boundary
~ Data Sources' Roblar Road.Quarry EIR'Figures V 3 8 V~ (proposed haul road,
_ __ __ - heads-up;digitized by Distnct staff at 1.000). Sonoma Co; GIS (roads; parcels); ~ PfopOSed EXChange Area
5 O N O M A C O U N T Y ~SCWA (Amencano Creek), SCAPOSD (tributaries), DigitaLGlobe 2009.:(aerialj'.
AGRIL~Ii URf PRE`~RVATtON This map is for illustrativepurposes only and<is
AND OPEN. SPACE.DISTRICT not intended to.be a definitive property description.
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LAW~DFPIDE3 DF ATTA~C.~~H~M.,ENT 4
CLEMENT, FITZPATRICI~,Bt I~ENWURTI=IY ~ ~ l ~ .
WCORPONATED
3333--,MENDOCINO'AVENUE„SUITE 200
SANTA ROSA, GALIFORIVIr195403
FA%::7D7.:548~1380:
TECEPHONE:~(707) 523-1181
DATE 3 ~" b
c~ SKI kb: ~-:~
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S'1!EPH1iIJ IC. BUTLI~R
July 2I, 2010
Bill Keene, Director
Sonoma County Agricultural.PreserVation.and Open Space District
747 Mendocino Avenue; Suite 1'00
Santa Rosa, CA 95401
Re: Roblar Road .Quarry / PR1vID File No. PLP03-0044 /
Request for Contract Amendment
Dear Mr. Keene:
Sonoma County PRMD is processing an application for the proposed Roblar Road Quarry project.
There is an alternative circulation proposal in connection with the;projecf which would avoid potential
impacts to the creek that may occur from widening Roblar Road'. That, proposal includes a temporary haul.
route;aeross a 3.3 acre portion of the adjacent properly that. is.encumbered by a conservation easement in
favor of the Sonoma County Agricultural Preservation and Open Space District ("District"). That
easement;. a copy of which is enclosed herein, was recorded on May21,, 2004, as Document #
2004077489, Official Records.of .Sonoma County ("Easement of. Record"}.
We, on behalf of our clients, John;and Andrea Barella, are formally requesting an agreement with
the District-under Public Resources Code~Section 5540.5 wherebythe District would release its Easement
of Record on approximately 3.3 acres paralleli'ng.Roblar Road in the southwest portion of the Easement of
Record: parcel, in exchange fora 200 +/= acre .conservation easement over the entirety of'the quarry parcel.
Addiftonally, we request clarifcation or amendment of the Easement of Record, to allow; concurrent with
grazing; X1,,05 acresof the Easement of Record parcel to be utilized as a California Tiger Salamander
~, ; wool's")~~and Calfornia,Red Legged Frog,("CRLF"). p..reserve. Irnprovements~~associated •with the preserve
d"
Y p g g p
~~ _ . _, ~ - ~ ~ ~~ ng an additional
~I ~ stock p ~ P y- ,
J I ' '' and lb_oth?, f which could be usedeb 1zcattle and aslhabitat or the two special status species. No
mitigation'bankmg ~s proposed'.
Ou_ r clients r arcel to im rove o a road ands ecies reserve,easement with the owner of the
p
f Record p pose o "en er m ,a haul roa p
men o
a ro y •
d across the,` for~purposes of
g p pp ximatel 3.3 acre site
onn
aseechn to Roblar,Road., ,Our. clients also seek the: District s consent to the placement of a.more
c,twe ea
restri` sement`ouer the,preserve area to prohibit:agricultural practices that would be harmful to
p g CRLF~ habfat. That easement would 6e wen t~""
rote~tm CTS~and g o the District, U.S. Fish and Wildlife
Service, or California Department of:Fish and:Game; '
The 200 +/- acre conservation easementon the, quarry sitewould allow, in addition to any existing
uses,:quarrying; stockpiling and related activities on approximately 70 acres asdescribed in the project
description for the.proposed. quarry,but would otherwise preserve the property'for open space, endangered.
species preservation and agricultura'~l purposes only. Like the parcel subject to the Easement of Record, the
6
Bill`Keene
July°21, 2010
Page~2
develo er
arcel p ~ struet.an a dttional stock and on tg phases~'of
,q ~opf the~:quarry'~~site would tirotg st~ock~pond;tlat will ;lie filed durin elaterairiing I30.acresof
the> uarr '
p ,to re ,lace ari e
xi
c
onstructlon,and enhancing ~an existing stock pond outside, the excavatlon.~area to another location. on
the quarryparcel to;accommodate CTS. and CRLF in tandem with grazing.
Af the termination.of the quarlyingaactixity, the quarry ste•would lie. reclaimed for open
space and species preservation. Alt[ough not part of the agreement orcondifions, afterreclamation,
our'client is willing to voluntarily make an irrevocable offer to dedicate the wnderlying fee .interest in
the 200+/- acre q"uarry parcel to either the~County of Sonoma or the District`without compensation
and'.will take a charitable, contribution deduction for this.gft. At the time of fee conveyance, our
clients would reserve an easement;to allow. ongoing monitoring and maintenance of the I30 acre
preserve-area.
As part of'the reclamation of.~~~ ~~
q Y
the approximately 3.3 acrerarea and restore t to its natural oondit oould reclaim the haul road across
n. Upon restoration of the xoad,
our clients would release the easement~forhaul road purposes over the~approximately 3.3 acres and
the ownerof that land would reconvey without compensation a conservation easement to the District
over such 3.3 acres. The contents of!th'is conservation easement would be identical to the existing
textiof the District easement on that 3.3 acres.
The ultimate effe_ ct of the foregoing would be to assure that.there is no permanent loss of a
ortio,n ofthe District's h~ g, ,the conveyance of a
YP
,conservation easement over an. oIdin resuY mate voluntary fee
eonve/ ante of the 2001+l- acre the qua he.District, and result in. th`e ul
y rryparce[ to the County or District for open space, agricultural
and species preservation purpose's in reclaimed condition.
It is also important to note that:another,component oftlie quarry project is the conveyance_of
a 243.64: acre agricultural conservation~easemenfi in perpetuity over a hay ranch proximate to the
Sonoma Bay. Preservation of this :ranch ~is,key because of its proximity to the Petaluma River
Wildlife Area, San Pablo Bay NationallNildlife Refuge and other publically held open space
interests. This easement•can tie offered to the District if you so wish, Our clients would reserve the
right to preserve Red-Legged Frog species habitat in tandem.with the agricultural use of the property.
Please consider this as our formal request to proceed and advise us of what steps we should
take next. If you have any questions regarding this letter, please feel free to call.
Thank you for' ,cgrsidering ,this matter.
EPHEN K. BUTLER
SKB:If
Enclosures
cc: Sonoma County Board of Supervisors
~.
Jennifer Barrett, Assistant.Director, PRIviD
Scott Briggs,. Environmental Review Division,Manager
Dave Hurst, County Counsel.. ~
Sue Gallagher, County Counsel
htECORDhNG REQLTESTBD BY AND
RETURN°TO:
Sonoma County Agricultural
Preservation and Open Space District
575 Administration Drive, Room 102A
Santa Rosa, CA 9403
Free record{ng perGov't Code Sec 27383
M1
,_. .
~; OFFICIAL A$CORDS OF
$OHOl1A COUNTY
NORTH ,Af7ERICAN`TITLE CO.EEV6 T. LEUIS
05/21/2004 ]4:'29'TRD ~~ PGS
RECORDING FEEL 8.00 6d
PAID.
9
DEED AND AGREENYENT
$Y"AND BETWEEN
JOT-1N E. BA.RELLA, TRUSTEE AND ANDREA M:. BAREI.I,A, TRUSTEE
UNDER THE" B'' LLA'FA;NIIh,Y TRUST AGREEMEAIT
DATED DECEMBER 23, 1991
AND
TI-IE SoNO1ViA co
- LINTY AGRICULTURALPRESER`TATION
- AND' OPEN SPACE DISTRICT
CONVEYIlVG~A CONSERVATION'•EASENTEN'f~
Johm E. Barella, Trustee and Andrea M. Barella; Trustee under The. Barella Fanvly
Trust Agreement dated December'23,1~991(hereinaRer collectively referred to as -
a Co ~'
the ~ signs of.Pubhc tton and Open Space District;
a ~c ~ ens ~ rmeda u~rsuant'to P cultural 1'reserva
p ,,, T) lteso~°ces'Code sections
5 4 et se . ere~nafter h~ISTRIC~~
q (h ~ agree as follows:
RECITALS
Y. GRATVTOR is the owner in fee simple of certainproperty {hereinafter "the
Property" j,located in Sonoma.County and more particularly described in Exhibit A,
attached hereto and made a pert of this. Agreement byre€erence.
vote
1990 a rs o Sonoma County appro
y ved ttae creation of IISTRICT and'
.~~,,
the unpos~tton of a transactt'ons and use tax b
the Sonoma County Open Space Aud-ority
{°the,Authonty"j.The'purpose for die creation of DISTRICT' and'the imposition of the
iax by the Autliarity~vwas to preserve agriculture; and open space by acquiring interests in
appropriate properties ~froxn wihling sellers ~in order to meet the mandatory requirements
ronposed on the Ca~uaty and each of its cities byGovern~ent=Code.sectivns b5560 et seq.
and by the open space. elements of their respective .general plans. in order to accomplish
pure tered-into. a contract wi
that ose, DISTRICT en th,t~e Sorioma,~Gounty•Open Space
Authority whereby,. m.consrderat<an of that entity ~aacing DISTRICT S acgwsitions,
Bareile 2 t~xvatiop easemenC3I0U4 1
co
08/31'/201"0 16:'53 '707-54K-~ 360 CLER~ENT' LAW FIP"' PAGE 02/02
'~~
Augttgt 12, 201.0
Bill Keene, Directox ..
.~ Sonoma County Agriculttaral !reservation and Qpeu Space 3istrict
_ 74? Mendocino Ave~nu~, Sulte 100 ,
Santa Rosa, C.A 95401
Re: Roblar Road Quany ~ PRN~ F~:le No. PL,~03-00941
1~equest for Contzact A~neudmexit
hear Mr. ZCeene:
I am tlae owner of the pzoperty listed as Soz1ama Cpunty Assessor's Parcel Nuinbar: 027-
• ,, save read gtephen K. Sutler's letter
zto stxeet address
214-006. '['his'groperty xs ha~e';land'v~rtth g re uest of thv Open $pacc
dated Judy 21, 2410, oz~ behalf of John, anal Andxea-BareUa,.rnalung q rv I om with
District foz an access rOSC~ ancl'rare.and e~.daragered species.presBrs-e on my p I~Y• ~
the Barellas in making that zequest t4 the distriot. -
Sir~cexely,
~.,~~ ~G
KENNE'l'1~ A. ON
E ~ ~ v~~
DATE
~; ~. ~ ~
:~
LAW OFFIC E9 OP
CLEMENT, FITZPATRICI~ & KENWORTHY
INCORPORATED
3333 MENDOCINO AVENLJ E, SMITE 200
SANTA ItOS~1, Ct1LIFORNIA 95403
FAX: 7D7 546-1 360
TELEPHONE: f707) 823-11[31
srr•.rHFN r;. au~n,~a
September 29, 2010
Bill.. Keene, Director
Sonoma County Agricultural Preservation and Open Space District
747 Mendocino Avenue, Suite 100
Santa Rosa, CA 95401
Re: Roblar Road Quarry / PRMD File No. PLP03-0094 /
Request for Use';Authorization
Dear Mr. Keene:
The purpose of this letter is to supplement or refine the request of Mr. Barella and Mr.
Wilson in the event of a certain contingency. That contingency is the possibility that the Board of
Supervisors may approve the quarry application but require that Roblar Road be improved and
utilized in lieu of the alternative haul route across the Wilson property. In anticipation of the
possibility that this contingency may occur, we are refining our July 21, 2010, request to include a
request that the District acknowledge that the preservation of California Tiger Salamander ("CTS")
and California Red-Legged Frog (°CRLF"), in tandem with historic grazing activities, and the
enhancement of historic grazing activities and species preservation through .the construction of a
.15 to .25 acre stock pond are consistent and permitted uses under the easement on the Wilson
property. We firmly believe that such uses are consistent and allowable under the existing terms of
the easement. However, if you feel that any minor clarification of the easement is required, we
would be amendable to accomplish that to clarify the~permitted nature of the requested uses. Please
consider the. following in connection with this request.
1. Pur ose of.ahe District
.Measure C, the measure adopted by the voters of Sonoma County, established the
Agricultural Land Preservation and Open Space Expenditure Plan. The stated purpose of
the expenditure plan is to implement the Sonoma County General Plan by preserving agricultural
land. use and open space, Critical habitat is specifically identified as a designated open space
area. The measure states the following:
~Ar~. 1 •o f ~I brn ~
G~ ~3 ~
~~
Bill Keene
So, Co. Open Space District
September 29, 20:10
Wage 2
"Critical habitat areas and riparian corridors, such;as wetlands, rare and
endangered pecies locations; fresh~and saltwater marshes, oak savannahs,
streams and water courses,. are environmentally sensitive areas.requiring
protection and careful management." (EmphasisVadded)
y gr' i~eserwation and Open' Space District
1n June 2006; the Sonoma Count A icultural P
adopted°along-range:acquisition pl'ap entitled "Connecting Corrimunities;,and the Land". The
purpose of the plan is to guide both easement and fee purchase `acquisitions. Four acquisition
categories are identified. However, as.is evidenced 6y the~SCAPOSD Quarterly Report on
Projects and Programs; most acquisitions meet the objectives of multiple categories, Therefore,
an acquisi aon by conservation easement may lie identified as principally agricultural but will also
meet goals and objectives of other categories such as the natural resources category.
A stated objective of the plan'~s'Water, Wildlife and Natural Areas categoryi to preserve
natural systems and lands that~ksupport the diverse biological resources'of the county. An
identified goal in this section is for the District to~coordnate~,wth~~coriseivation agencies and
g p ~ectio f lands
and wildi fe s ec es and/or contain and~restorahon o >a 'thapt~are rich in diverse habitat
p n threatened or endan eyed 's ecies. {p.22, Emphasis
added}.
Under our proposal,, a private landowner is willing;to assist'ri the realization of this goal
without any additional .expense to the District and therefore the public..
2. Teat of the Easement.I4self
The Easement was intended to protect biotic and natural resqurce uses and values
together with agricultural resources as is demonstrated.by the following references:
A. Page 2, :Section 4 -The text of this section specifically acknowledges that the
en is.consistent .with the 1989 Sonoma Count General Plan Open Space
Y
g p p as upon which
reservati
nc _
Element tlThat elern n t, m turn, a oura es the rotection and on of are
endangered ;plantsarid~~animaL•species are present, Section 4 also notes that the easement
'"encourages long term .open-space uses."
B`. 'Page 2, Section 5 - Language•in this section acknowledges the fact hat the
conservation easement supports-the district's effort to preserve open space and natural resources,
together with=scenic, agricultural, and historic values ofahe property.
~~
'Bill Keene
So. Co. Open Space District
September 29, 20:14
Page 3
C. Page 2, Section 1, Purpose -Language at the bottom of the_;page acknowledges
the presence of riparian areas associated with a tributary. to Americano Creek.on the property, and
that the properties' physical acid biotic features.make it well suited to continu`ed:agricultural use.
The language :goes on to discuss they characteristics of the. soils on the property which "are among
the most productive pasture soils'in Sonoma County."
Language continuing at the top of page 3 states as follows:
"...Riparian areas include a tributary to Americano Creek which is the primary
freshwater tributary to the Estero Am,ericano, a downstream,estuary that supports
a diversity of wetland habitats and associated plants and animals. Accordingly,
Agreement will primarily preserve the Property's productive agricultural
this
soils, agricultural' viability and productivity, and the Property's size, such that it
remains large enough to sustain an economicallyviabl'e agricultural operation.
Protection of'the Property will also maintain geographic features integral to
preserving the rural. and open space character of'Sonoma County. It is also the
purpose. of this ~Agreeraent to protect the natural:resource values of the
Property and prohibit any use thatwould'impair degrade, or damage these
values, -The features'of the Property described `above comprise the open
space values of the~Eroperty: It is'the purposesof this Agreement to preserve
these open space values of the Property,, and each.of°them, and to prevent any
uses of'the property,that would significantly impair or.nterfere with these values.
This purpose, as fiirther defined by the provisions ofthis-,Agreement is generally
referred to collectively herein as "the conservation- purpose of this Agreement."
Although agricultural protection was perhaps, thought to be at the head of the conservation
purpose of the easement, it~is'=clear~that vital natural resource; wetland, and open space values are
part of the easement's conservation purpose.
D. Page 4, Section 4A -Language. appearing, in Paragraph A makes it clear that the
permitted and prohibited uses; lisfedin exhibits° B & C fo the easement are not exhaustive.recitals
of~acceptable;uses.and,are used "to:provide guidance in determining he consistency of other
activities~with the~conservation~purpose of. the agreement."
E. Page S;`Secton°SA -Language in this section„allows the property owner to
„ , ' ; with tfie conservation purpose of the: easement by giving notice of the
commence uses. conststen
rocedures set forth in Section
intention-to undertake such activity or use. We believe that the p
SA and 5B are the~appropnate procedures to inform the district of the property owner's intention
ztiiize,a portion of,the^property for the dual use of continued'livestock grazing and natural
t0 i
resource protection,
~~
F. Page 9;, Section. I O -The lastportion of this section acknowledges that changes in
~,
g p ement of theof the grantor _may dictate an evolution
of azra cultural and natur 1 resources a and "
managhe situation property consistent. with the conservation
ln'
purpose of this agreement." Now that the°propei-ty is located wthin.an area wherein CTS and
CRLF have been identified, a change in natural resource management.polices requires dual
implementation of the conservation purposes of the agreement,.. specifically livestock grazing in
tandem. with natural resource,protection. Since livestock grazing is recognized as an important
element if maintaining the sutabilty~of such lands for CRLF and,CTS, no impairment of the
historic agricultural values of the property will occur as a resulfofnatural resource protection.
g {f) - g clear that •temporary fencing would be
q G. Exhibit B Pa e B or CRLF prote tions such fencing would be installed only as
re urged in connection with CT
necessary for natural resources protection as specifically allowed by'this section.
H. Exhibit. B; Page,B-3, Section 5 -This section specifically preserves to the owner
of the property the right to develop ":additional. water storage facilities such as fresh water and
waste wafter tanks and reservoirs" with the prior written approval of the district in accordance
with ahe procedures set forth in Paragraph 5 of the easement. The language of this. section goes
on to state that development;.maintenance and modification of water resources are limited to that
"necessary or convenient" for ranching and other specified uses, The. property owner will be
re uestin to develo a one- u
q g p q, arter acre stock pond reservoir to,,;enhance the existing grazing
operation on the property. That'same stock pond will conveniently enhance natural resource
protection goals. That request° is consistent with the conservation purpose of the easement.
3. - Resbonse to Issues Ilentifred .hy the Onen Snace. District:
It was suggested by Dish~ct staff hat we examine, these sections of the easement in
connection with the propriety of species preservation. They are as follows:
A. The first. question was whether an additional- reservoir' could be built on the
;,,. property~consistent witih the"easement. As referenced above,. the easement,will enhance the
ranchm ,; ,and cattle~grazing to;perafon historically and currently, existing on the property and is
g
both necessary ;and convenient for that purpose. Any ancillary benefit associated with habitation
of a.staek,pond;'by endangered species is a natural resource benefit associated with such ranching
use..
B. ~ Exhibit. B,'Page B-3, Section 7 - It was called to our attention that "new
easements''or easeinenf,inodifications may onlybe granted where theywill remove or
significantly lessen the impact of°existing: easements of`record on the ..protected values set forth in
p
that we belietve there sSeamf le eferen e t triaturaleresou ce a~rs potential concern,. we first note
p ues in the easement currently on
record.to'justifythedevelopment of an additional one-quarter acre stock pond and perhaps the
t~
,, ,
Bill Keene
So. Co: Open Space District
September 29, 2010
Page 5 _
temporary placement of CTS fencing during construction of such pond; if necessary. No other
grading or improvements would be required as part of the protection of the CTS and CRLF.
If the District believes.that clarification of the existing easement is necessary to specify
the propriety of endangered species protection, we do not believe that any such clarification
would rise to the level of a new easement or modification of the existing easement of record. If
Federal or State resource agencies requested clarification of the existing easement of record to
further define protections for endangered species on site, any such easement would enhance the
natural resource protections already called for in the easement of~record'and would not detract
frvrn the historic and ongoing cattle grazing operation on the property. -
As a practical matter, and as further discussed in Section 4, any more intense agricultural
uses which might otherwise be consistent with the easement of record have already been
rendered impractical due to .the characters of the soils on site and the fact that such areas could
notibe disturbed by more intense. cultivation due to the necessity to consult with the U.S. Fish &
Wildlife Service and California'Department of Fish and Game,. and to mitigate potential impacts
to CTS and CRLF. We.believe thatif clarification is required, the language of Section 7 would
not~impede this from occurring.
C. Exhibit C, Page°C2, Section 12-'The language at the. beginning of Section. l2 was
called to our attention which prohibits a "significant" alteration of the surface of the land. We do
not:belieye that this language~presents a concern. First, this language would have to be read in
tandem with other language in the easement which grants the right to develop additional
reservoirs necessary or convenient for ranching and cattle grazing: To read Section 12 as
prevenfing the development of a very-small stock pond would render the language in Section 5
on page. B-3 as surplusage. We don't :believe the easement can or should be read to reach this
conclusion.
Second, Sectionl'2 prohibits only a. "significant" alteration~of~the surface of the land. We
do not believe it would be reasonable to conclude that a maxi-num, and perhaps less, surface
ban ~eq, g , ° of the 378 acres-subject to the easement can reasonably be
dstur ce ualin 00066, /o
characterized as significant. Moreover, the original easement encompassed two properties
totaling 757.7 acres. Tlie determination of significance should be made with reference to this
acreage. 'When'that percentage computation is made, a quarter acre stock pond would be equal to
.00033%. By either measure, this cannot be deemed to be significant.
4. Restrictions Already Associated with the Endangered Species Act
On page ii of the Sonoma County Agricultural Commissioner's Best Management
etices for AgricL>Itural Erosion and Sediment Control, the following is noted with respect'to
Pra
the California Tiger Salamander.
~,~.
' Bi11 Keene
~'" So, .Co: Open .Space' District '
September 29,"2010
Page 6
"California Tiger Salamander . On; July 22, 2002, the United States Fish and
Wildlife Service listed the California tiger salamander,as endangered under
the federal Eridanger'ed Species Act {ES'A)'. The:ESA prohibits the 'take' of
any endangered species {that is~the killing or harming:of an.:eridangered species,
either directiy,.or througli;adverse modification:of habitat). Development of
r al crops is not exempt from ESA. If your project site is
land for agricultur
located within the potential range of the California tiger salamander as shown
on the attached map, you will; need to contact the United States" Fish and
Vildlife Service {916-4..14-6600) and mayhave:a two year biological study
done on site prior to any ground breaking or placing of fill:"
t On August 4, 2004, the Department of the Interior in its-Final Rule for-the Central
California tiger salamander population, included a 4 {d) exemption under the FESA. The 4{d)
rule promulgated "recognizes that the loss of natural vernal pools has,resulted in livestock ponds
for CTS. The rule allows certain traditional
serving as important alternative breeding .sites '
activities°-that benefit CTS, including stock pond construction and maintenance, to continue
without additional .regulations;" - USF~VJS five year species, review"
' 07, article m g ' e to 4 {d) and the benefits of
grazing to CTSDand CRLF? two species th es the f{llowin -referge ~ on the Open Space site
' ' - at occur based on r'an- e
proposed for mitigation.
~~ ,.
e it is supported by scientific research, the message that. grazing can
' benefit habitat'on C'alifornia's rangelands has leen'heard beyond the conservation
research communty.and is~ impacting conservation regulations. The. federal
listing of 2 species within California contain the: 4d rule. The. rule exempts
routine ranching practices from the prohibitions of the ESA, including taking,
harming and tiaras°sirig listed species. Tlie USFWS has recognized that ranching
activities; includirt~,grazing and mai~itenance of st3ckponds, benefit the
California red-Legged frog°and the:California 1~,?'f'salamander."
- Society for Range Management Newsletter
,~
Based'"bn',tle foregoing, while it is clear that Historic grazing operations on the Wilson
:, property°may~'contmue; as a~~>jenefit to CTS, no similar exemption exists for any more intense
agricultui~al'use nominally consistent with the easement. This further underscores the fact that
species';p"reservation and the~construction of an additional- stock pond enhance the natural
resource,values~'of the property "and do not detract from the historical agricultural use.
. ~~
,,
~~~ ..~ ,~~ ,~ .. ,, ~y.~„ „ ,
Bill.Keene
So.,Co.;-Open Space. District
September 29, 201,0
Page 7
S. lFIistory of Past District Transactions
The District has; on at leasf two occasions; clarified easements to reflect the propriety of
endangered species preservation.. 'Those fwo"are the Burns and Brown easements, with one of.
such easements being an agricultural .preservation easement.
6. Conclusion
Will either you or your District Board please coin firm, pursuant;to Section 5 of the
easement, that. the use of a portion of the Wilson property for, endangered species protection and
the associated construction of a small stock pond'rin connection therewith are consistent with the
conservation purposes ofahe easement and may'b'e commenced as permitted uses.
Thank you for taking the time to review this letter and its. contents. If you have any
questions, please do not hesitate to call.
Very truly yours,
STEPHEN K. BUTLER
SKB:If
cc: Sonoma County Board of Supervisors
Sally McGough', County Counsel
Sue Gallagher, Cour-ty Counsel
Blake Hillegas, P12NLD
Scott Briggs, PRP,i1D°
Client
1~
,Ili II' ~'p ~ ~ w. .. i i ~, ~~ ~„
ATTACHMENT 5
55512th Street,'Suite 1500 Kenton L. Alm
Oakland, California 44507 Attorney at Caw
te150:808.2000 kaln@ meyersnave.com
fax 510.444:1108
www.meyersnave.com
. r~ eye rs n av~
September 20, 2010
;Sheryl Bratton
'fief Deputy C~ounty~Counsel
County of Sonoma.
575 Administration Drive, Suite 104A
Santa Rosa, CA.95403
iZe: Roblar Road Quarry"Project
Dear Ms. Bratton:
The Attorneys for the Cities of~indsor Cloverdale Healdsburg, Petaluma,, Sebastopol,. Cotati,
Sonoma,: Santa Rosa and Rohnert Park (the "Caries") have become. aware~that the date for
tent~al a meal- a Bo
po ~ pp ~ n y of Supervisors ("Board") for the
~~ d certifi~ do ; of } e EIR b ~ 9, 2010. , Tlvs proposed project has drawn a
Roblar Road Pro ect Pro ect ~ October 1
substantial amountbf pul?lzc attention based on policy~issues°regarding to the appropriateness of
the Project and its environmental impacts. The purpose of"this letter is not to weigh in on the
broader policy issues which the"'Ba
and must consider,:`lut'ratber~it'intends to address a specific
issue regarding the liabilities of the Cities and C ounty~related to the potential environmental
y p g Po ware the Cities and Countyhave
Intl o ethesub~stantiailrime~dis cuss the relaAtiveores Tensibilities of~the various parties
concerning landfill cIosure;costs and future potential envunrrtlental liabilities.:fromthe Central
and former landfills, such,,as the Roblar Landfill. These discussions have been held pursuant to
confidentiality and'xollingagreements concerning disputed"liability for the closure and post
.closure liability of .the Cities' for the Central Landfills and the former landfill.
The'°proposed Project Conditions of tlpproval directly raise this issue df liability-and
of the Conditions of g~roval forwarded to th Board fromt the Plormerlandfills; Paragraph 40
for ~?P ~~ Commission,pmvides
the Applicant to hold,:the County harmless and assumeall responsibilitythe Countymight
incur with regard to; any future environmental cost increases related to .the former Roblar
Landfill, wliich:mighit arise~from.or be related in anywayto the ,quarrying activities of the
proposed Project. Unfortunately, there is no similar provision to provide protection to'the
Cities. The, Cities.. strongly'oliject to any,approval of >xhis Project without simiEar liability
protection being provided foreach ciryfrom the Applicant. Altemativeiy,,the Countycouid
agree to hold each of the Cities harmless'with regarei' to any costs or liabilities related to the
APROFESSIONALLAWCORPORATION OAKLAND LOS ANGELES SACRAMENTO SANFRANCISCO: SA.NTAROSA FRESNO
~~
.
Sfleryl 6ratton
R . Se~tem6ec 20,.2010
Page 2
'' Project wheli mayarise, although that seems unlikely.. The Cities also strongly,.recommend any
such protection'should' be backed by insurance, bonding. or ofher suirabie #inancial security.
We are°informed:that Countystaff has attempted:to obtain protection for the. Cities similar to
that provided for the County in Paragraph 40 of the: Conditions of Approval. We appreciate
'' your efforu to address. this?issue, but we nonetheless must irxsist that the County insure that the
Cities will be protected, in a manner equal to the County befom any approval action is taken by
the .Board. To do otherwise would be wholly inconsistent with.the basic provisions which both
the Cities and the County attempted to negotiate in good faith during our pre-litigation
'discussions relating to divestiture. Our hope is that no legal action need-.be taken to prevent the
;County from proceeding in the absence of proper liability protection for the Cities.
Ve truly yours,
~~ ~~
'Kenton L. Alm
KLA:mv
1513379.1
A PROFE5510NAL LAW CORPORATION UAKLAND 105 ANGELES SACRAMENTO SAN:FRANCISCO SANTA ROSA FRESNO