Applicant attorneys' unofficial reply to Raptor/POW letter
Badlands is declaring the coming days a Sunshine Week to post a number of documents submitted to Merced County government in the last few months. Some of these documents have been included in the official packets of information for Board of Supervisors and Planning Commission meetings. Others have been suppressed.
This material is best understood by reference to the audio or video archives of supervisors’ and planning commission meetings and we encourage readers seriously interested in understanding their local government to go to the Merced County webpage, http://www.co.merced.ca.us/CountyWeb/, to seek out these hearings, particularly the two board of supervisors meetings on July 1 and July 8.
The following document is a transcription of a letter written by an applicant's attorneys in reply to the previous entry on Badlands. Readers wishing to check this transcription against the original may find it at the Merced County Board of Supervisors office in the binder marked "Supplemental," a new addition to the Board's counter binders, which appeared during this appeal and others being heard by the Board on July 8.
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NOLAND, HAMERLY, ETIENNE & HOSS
Attorneys at Law
333 Salinas St.
Salinas CA 93902
July 2, 2008
Via Email
Merced County Board of Supervisors
2222 M. St.
Merced CA 95340
Re: Proposed Minor Subdivision/Map Waiver No. MS07-058 Robinson
Dear Members of the Board:
I am writing on behalf of Chris Robinson in response to the July 1, 2008 letter submitted by the San Joaquin Raptor Rescue Center and Protect Our Water (“the Groups”) regarding Mr. Robinson’s above-referenced minor subdivision.
The Groups’ letter incorrectly characterizes Mr. Robinson’s proposal. As stated in the staff report, there are three existing parcels. With the minor subdivision, three existing lot lines will be adjusted and one additional parcel will be created by default. One of the parcels, however, will be the conservation easement area where land uses are restricted (i.e. no homes can be built). Accordingly, there will remain only three parcels on which homes could be built, which is the same as without the minor subdivision. Therefore, no additional homes would be allowed under the minor subdivision.
The Groups continue to “speculate” on future uses of the property, ignoring the fact that the property remains zoned as Exclusive Agriculture (A-2) with a one hundred sixty (160) acre minimum parcel size. Given the fact that the same number of homes and the same uses (1) would be allowed on the property, before or after the minor subdivision, the subdivision does not create a potential environmental impact.
Moreover, the U.S. Fish and Wildlife Service (USFWS) confirms, in their June 18, 2008 e-mail, that the minor subdivision application does not have the potential to impact federally-listed species. The USFWS was aware that the project was an application for a minor subdivision, as the Minor Subdivision application is clearly referenced in their April 23, 2008 letter which provided comments on both the Minor Subdivision application and Sand and Gravel Excavation Permit application. (2) There is no misunderstanding about the nature of the application to which the June 18, 2008 e-mail refers.
The conservation goals of the easement area are not thwarted through the minor subdivision and, in fact, they are enhanced by the fact that the conservation easement can be managed separately to further enhance the biological resources on the property.
There is no evidence to a contention that rangeland is being converted to crop land as a result of the minor subdivision application. Normal cropping changes are not a conversion of rangeland. No effort is being made to convert any rangeland. In fact, all of Mr. Robinson’s grazing land is owned by the Robinson Cattle Company and is located south of the Merced Irrigation District Main Canal, approximately a mile southeast of the minor subdivision’s southern boundary. The grazing land is under a separate easement and is protected in perpetuity from the development of houses or orchards.
The Groups indicate that agricultural conversion might not happen right away but “it could happen” if the proposal is approved. This is pure speculation. The property will remain in 160 acre minimum under the Exclusive Agricultural (A-2) zoning designation and no uses that were not previously allowed under the existing lot configuration will be allowed under the new lot configurations.
There is absolutely no change in the use of the property as a result of this minor subdivision, and there is no substantial evidence to support speculation otherwise. The Robinson family has been in farming for over one hundred years, and there is absolutely no indication that there is any effort to change the existing uses. Any speculation to the contrary is simply that; unsubstantiated opinion and speculation. Argument, speculation, or unsubstantiated opinion or narrative is not substantial evidence. PRC Section 21082.2 [c]; CEQA Guidelines 15384 (a); Leonoff v. Monterey County Board of Supervisors (1990) 222Cal.App. 1337, 1352.
County staff is not ignoring the Robinson Sand and Gravel Excavation application, they have simply determined that the sand and gravel application is not related to, and is separate and distinct from the minor subdivision application. There is no causation between the two applications. Neither application is dependent on the other. The sand and gravel application is not co-terminus with either the original parcel boundaries or the new parcel boundaries. There is no basis to link the two applications together. The two applications are completely independent of each other and either application can move forward without the other. There is no segmentation or piecemealing of a larger project with the approval of the minor subdivision.
CEQA must be given a reasonable interpretation. (Bowman v. City of Berkeley (2004) 122Cal.App.4th 572, 593). In this case there is absolutely no substantial evidence to support the Groups’ contention this minor subdivision has the potential to create significant environmental impacts. Accordingly, the County’s determination that the project falls under the “Common Sense” CEQA exemption is correct.
We request that you deny the appeal the approve Mr. Robinson’s request for this minor subdivision.
Sincerely,
NOLAN, HAMERLY, ETIENNE & HOSS
A Professional Corporation
Christine Gianascol Kemp
CGK:ng
Cc: Mr. Christopher Robinson
Mr. James Fincher
Mr. Robert Gabriele
Mr. David Gilbert
Mr. Bill Nicholson
(1) There is a typo on page 12 of 17 of the staff report should read "uses" not "used."
(2) The reference to "biological information submitted by the applicant for one of the actions" in the USFWS's June 18, 2008 email relates to information submitted by Mr. Robinson for the Sand and Gravel Excavation application, not the Minor Subdivision application.