Burch letter on Robinson subdivision application appeal, June 10, 2008
We are posting a letter from Attorney Marsha Burch, representing San Joaquin Raptor Rescue Center and Protect Our Water (POW) on a proposed subdivision on the Robinson Ranch, which straddles the Merced River above the Shaffer Bridge on Highway 159, because it raises important issues concerning this apparently innocuous application. We will post a report on this public hearing soon.
Badlands Journal editorial board
Marsha Burch
Attorney at Law
Grass Valley CA
June 10, 2008
Via Email and Facsimile
Merced County Board of Supervisors
County of Merced
2222 M Street
Merced, CA 95340
Re: Proposed Minor Subdivision Application/Parcel Map Waiver No. MS07-058 (Chris Robinson), Merced County, California
Dear members of the Board of Supervisors:
This office, in conjunction with the Law Office of Donald B. Mooney, represents the San Joaquin Raptor Rescue Center and Protect Our Water, groups with an interest in the above-referenced proposed minor subdivision (“Proposal”). We submit the following comments on the Proposal. These comments are submitted in conjunction with additional information submitted to the Board on June 6 and June 10, 2008.
The Board of Supervisors should reverse the Planning Commission’s approval for two reasons. First, the Proposal is part of a larger development plan for the Robinson property, and so under the California Environmental Quality Act (“CEQA”), the Proposal should be considered together with the applicant’s plans for a mining operation on the property. Second, the Proposal is not subject to the CEQA exemption relied upon by the Planning Commission.
This Proposal comes to you by way of an appeal of the March 26, 2008, Planning Commission approval of the Proposal and a determination that the Proposal is exempt from review under CEQA. The Planning Commission decided that the Proposal was exempt from CEQA under CEQA Guidelines Section 15061(b)(3), known as the “common sense” exemption. This exemption applies where “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” (CEQA Guidelines § 15061(b)(3).)
The Planning Commission erred in finding that the Proposal is exempt from CEQA. The Proposal will result in physical changes to the environment, including the potential for conversion of productive agricultural lands, for construction of residences, easements, etc. on the newly created parcels. As discussed in greater detail below, evidence in the record also suggests that the Proposal could result in impacts to listed species. There is no basis for the County to rely on the common sense exemption.
A. Exemptions under Section 15061(b)(3)
An agency may find a proposed project exempt under Section 15061(b)(3) only if its precise language clearly applies. Any possibility that the project might culminate in a significant adverse change removes it from this exemption. If a reasonable argument is made that suggests a project might have a significant impact, the agency must refute that argument to a certainty to rely on the exemption. (Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 118.)
A reasonable argument has been made that the Proposal may have a significant impact. The April 23, 2008, comment letter from the United States Fish and Wildlife Service (“USFWS”) appropriately points out that “the parcel split would extend about 10,000 feet along both sides of the portion of the Merced River that was restored. . . .” The USFWS went on to state that the potential for take of listed species is not clear with respect to the parcel split, but notes that such splits often lead to development. In this case, there is nothing in the approval by the Planning Commission that would prevent the sale of the individual lots and/or construction of homes on each of them. The fact that the applicant has indicated a present intent not to build homes does not mean that at any time in the future he could not change his mind and develop residences on the parcels.
Also, the Agricultural Chapter of the General Plan cautions against parcelization of farmland because smaller parcels encounter greater difficulty in supporting a full-time farming operation. The fact that the Proposal will result in parcels that are larger than the 160-acre minimum does not change the fact that the Proposal will create parcels that could be sold individually. The potential impacts of parcelization are exacerbated by the fact that the property is within the Merced County Agricultural Preserve. The conflict with the General Plan is significant, especially in light of the fact that the County has consistently refused to assess the cumulative impacts of the minor subdivisions occurring with alarming frequency throughout the County. Hundreds of these parcelization proposals have been approved, and yet the overall impact to agriculture in the County has never been considered.
Finally, the property is burdened by a conservation easement, and the details of the easement and its requirements have not been revealed to the decision makers or the public. In fact, County staff has determined that the easement simply will not be reviewed in connection with the Proposal. In a letter from Robert A. Lewis to the USFWS on May 7, 2008, Mr. Lewis stated that the County “was not provided” with the information regarding the details of the conservation easement, but would ask for such details later, at the time the Conditional Use Permit (“CUP”) application is evaluated. The public and the decision makers are in the dark about the details, and there is no certainty that the parcels created by the Proposal even comport with the easement boundaries. Also, it is possible that the parcelization of the property is contrary to the terms of the easement, and County staff’s head-in-the-sand approach could lead to County approval of a parcel split that violates the terms and/or the spirit of the conservation easement.
The parcelization will isolate the conservation easement. This means that any development or increase in intensity of use on the remaining parcels will not automatically require participation by the resource agencies holding the easement. The result will be reduced scrutiny of development adjacent to the easement, and the value of the easement itself could be lessened by the County’s action in approving the Proposal.
The comments of the USFWS and the facts pointed out by staff and the public reveal that the Proposal covers property inhabited by listed species, containing a conservation easement (the details of which the staff has determined to ignore), and within the agricultural preserve. The burden is now on the agency, the County, to refute the argument to a certainty, which is not possible under the circumstances.
When a project will result in physical changes to the environment, and there is dispute regarding the possibility of significant impact, the agency must prove that significant impacts cannot possibly occur. (Davidon Homes, supra, 54 Cal.App.4th at 118, emphasis added.) Also, when evidence is presented to a lead agency showing possibility of adverse impact, the agency cannot rely on the absence of supporting data, because the agency cannot say with certainty that there is no possibility of significant effect on the environment. (Dunn-Edwards Corp. v. Bay Area Air Quality Mgmt. Dist. (1992) 9 Cal.App.4th 644, emphasis added.)
B. Potential for Conversion of Agricultural Lands
In this case, the Proposal will create four parcels. Each of these parcels could result in the construction of new residences, barns, other outbuildings and roads/driveways. The applicant continues to insist that he has no plans to change the use of the property, but the fact remains, the County’s action in approving this would allow for development of the individual parcels. When that development occurs is not the issue.
The General Plan, Land Use Chapter, Goal 7, is “Conservation of productive agricultural and other valuable open space lands.” The staff report to the Planning Commission suggested that the Proposal was consistent with this Goal because “[t]he project site will remain in row crop production and pasture land according to the applicant.” Again, the fact that the applicant does not have any immediate plans does not change the fact that the four parcels would be subject to development. In other words, the Proposal will allow for land use changes that could be contrary to Goal 7.
Additionally, Land Use Chapter, Policy 7.3 states that “[p]remature and uncoordinated division of land which forces the early cessation of valid agricultural uses shall be avoided.” The Planning Commission staff report admitted that irrigation easements would likely be required to provide irrigation supplies to all parcels in the event they are sold, but there is no indication that such easements will be included in the subdivision, and here again, the General Plan Policy favoring large, productive agricultural parcels is not consistent with the Proposal.
There is substantial evidence in the record before you indicating that the Proposal may result in premature conversion of productive agricultural lands. In addition to being inconsistent with the General Plan, this conversion is a potentially significant impact under CEQA. The County may not, at this point, rely upon an absence of data in the record regarding the specific impacts to agricultural lands, but must move forward to an Initial Study. (See Dunn-Edwards Corp. v. Bay Area Air Quality Mgmt. Dist. (1992) 9 Cal.App.4th 644.)
C. Potential Impacts to Listed Species
The United States Fish and Wildlife (“USFWS”) has reviewed the Proposal and stated that the subdivision may have significant impacts on federally listed species. This opinion from the experts at the USFWS is “substantial evidence” under CEQA. (See Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 156 [memorandum from the state Department of Conservation was substantial evidence].)
The inquiry should end here. An Initial Study is required, as the County simply cannot say with certainty that there is no possibility of a significant effect on listed species.
D. Segmenting of the Project
The Planning Commission erred in segmenting the Proposal to split the parcels from the overall development plan for the property. The parcelization of the property to avoid the conservation easement area is the first step toward the processing of the application for CUP 06-008. By isolating the conservation easement on one parcel, the remaining parcels will likely develop, whether it be a conversion to more intensive agricultural uses or other uses. The resource agencies involved in the conservation easement will not be able to participate in development adjacent to the easement, which may have significant impacts on its environmental values. The easement language must be reviewed and the impacts to its value must be evaluated.
CEQA defines a "project" extremely broadly as "an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: “(c) an activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.” (Pub. Resources Code, § 21065; see Guidelines § 15378(a)(3) [a project is "the whole of an action"].)
Furthermore, courts give “project” a broad interpretation in order to maximize protection of the environment. (Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1189.) The California Supreme Court has stated that CEQA is “to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, 104 Cal. Rptr. 761, 502 P.2d 1049.) From this principle, “it is clear that the requirements of CEQA ‘cannot be avoided by chopping up proposed projects into bite-sized pieces’ which, when taken individually, may have no significant adverse effect on the environment (Plan for Arcadia, Inc. v. City Council of Arcadia (1974) 42 Cal. App. 3d 712, 726, 117 Cal. Rptr. 96) ….” (Lake County Energy Council v. County of Lake (1977) 70 Cal. App. 3d 851, 854, 139 Cal. Rptr. 176.)
Consistent with this approach of not breaking an activity down into bite-sized pieces, Guidelines section 15378, subdivision (c) states, “the term ‘project’ refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term ‘project’ does not mean each separate governmental approval.” Thus, in Plan for Arcadia, Inc. v. City Council of Arcadia (1974) 42 Cal.App.3d 712, 726, the shopping center construction, parking lot construction and widening of an adjacent portion of the street were regarded as a single project for purposes of CEQA.
In this case the evidence shows that the overall development plan for the Robinson property is an “activity [that] may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” (Pub. Resources Code, § 21065; see also attached List of Exhibits.) Therefore, the parcelization and mining proposal is a single project within the purview of CEQA.
The most important factor to consider is the interrelationship between the proposed lots. For example, the separation of the conservation easement area from the other portions of the property is the first step toward application for the CUP, and will streamline the CUP process by legally separating the “mining parcel” from the “conservation parcel.” As set forth above, it is unclear whether this parcelization is even consistent with the conservation easement agreement, but the existence of the conservation easement on the parcel proposed for mining would certainly complicate environmental review of the CUP proposal.
Additional factors that support the conclusion that the overall development plan is a single project are (1) the parcels are under common ownership; and (2) the clear and expressed intent of the Applicant to obtain a CUP for the mining operation.
The property at issue is a sensitive one by any definition. According to the USFWS it is inhabited by myriad listed species, and the conservation easement itself speaks volumes about the ecological value of the property. There simply is no reasonable basis to excuse the County from CEQA’s requirements – and the certainty required for such a determination simply cannot be found.
We appreciate the opportunity to comment. We respectfully request that the Board of Supervisors reverse the decision of the Planning Commission that the Proposal is exempt from CEQA, and deny the Proposal.
Very truly yours,
Marsha A. Burch
Attorney
cc: San Joaquin Raptor Rescue Center
Protect Our Water
Donald B. Mooney, Esq.
LIST OF EXHIBITS SUBMITTED
June 6:
Robinson Property Project
AG Central Valley Concrete
Army Corps Letter
Four Pumps Agreement
Lewis Letter to USFWS
Merced River Corridor Restoration Plan
MRSHEP Phase 3 Engineering Report
Robinson CUP
Robinson Ranch Application
Robinson Ranch Application Package
Robinson RP
Robinson Ranch RP txt
Vollmar Letter
June 10:
Coalition Statement
DFG Action Plan
Ecofull UC Vollmar
Fish and Game Land-use Change 2
Fish and Game Land-use Change 1
Paving Paradise
Rangeland Resolution
Silviera Report
SJKF Recovery Area
SJKF Documents
TNC VP Target
USFWS Recovery Plan 2
USFWS Recovery Plan 1
USFWS Upland Recovery
Vernal Pools and Related Wetlands
Wildlands Map
Williamson Map