COUNTY OF NEVADA
COMMUNITY DEVELOPMENT AGENCY
950 MAIDU AVENUE NEVADA C ITY, CA
95959 -8617
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Planning Department
Fax (530) 265-9851
Environmental Health
Fax (530) 265-9853
Building Department
Fax (530) 265-9854
May 7, 2007
Code Compliance
Fax (530) 265-9851
Housing Division
Agricultural Commissioner
Phone (530) 265-1388
255 S. Auburn Street
Fax (530) 265-9845
Grass Valley, CA
Phone (530)May
273-2648
Fax (530) 273-1713
Honorable Board of Supervisors
Eric Rood Administrative Center
950 Maidu Avenue
Nevada City CA 95959
DATE OF MEETING:
May 22, 2007
SUBJECT: Public hearing to consider the appeal of Winds Aloft, LLC, from the following
Planning Commission actions: 1) a recommendation to deny a proposed General Plan
Amendment to change 45-acres of Industrial designation to Residential; 2) a
recommendation to deny a proposed Rezoning of the same 45-acres from “M1” to “RA3-SP” and “OS-SP”; 3) inclusion of Mitigation Measure 9.E., requiring fencing along the
project’s common property line with the airport, in the approval of the Tentative Final
Map dividing the 108-acres into six residential lots and a 90-acre Parcel A; 4) denial of
the proposed Use Permit for a Comprehensive Master Plan for the future development of
proposed Parcel A; 5) denial of two Management Plans proposing intrusion into
sensitive resources, including oak woodlands and steep slopes; and 6) rejection of that
portion of the Initial Study and Proposed Mitigated Negative Declaration relative to the
proposed General Plan Amendment and coinciding rezoning of the 45-acres of Industrial
to Residential and Open Space (File Nos: GP04-003; Z04-008; FM04-002; U04-008;
MGT04-018; MGT06-033 & EIS04-030).
ACTIONS REQUESTED: Deny the following 7 points of appeal, upholding the decisions of
the Planning Commission to:
1. Recommend denial of the proposed General Plan amendment to change 45-acres of an
Industrial designation to a Residential designation;
2. Recommend denial of the proposed Rezoning of 45-acres from “M1”, Light Industrial,
to “RA-3-SP” & “OS-SP”;
3. Adopt Mitigation Measure 9.E., requiring construction of a 6-foot high fence along the
project property line common to the airport;
4. Deny the Use Permit application for a Comprehensive Master Plan;
5. Deny the proposed Management Plan allowing encroachment into landmark oak groves;
6. Deny the proposed Management Plan allowing encroachment into steep slopes;
7. Reject and deny that portion of the Amended Proposed Negative Declaration applicable
to that portion of the project currently designated Industrial.
BSR for Winds Aloft Appeal (GP04-003; FM04-002; EIS04-030)
May 22, 2007
ATTACHMENTS:
1. Vicinity Map depicting current General Plan designations
2. Appeal forms filed March 29, 2007 + attachments
3. Notice of Conditional Approval for FM04-002 and Notice of Denial for U04-008,
MGT04-018 & MGT06-033
4. Adopted Amended Mitigated Negative Declaration
5. Proposed General Plan Amendment & Rezone Exhibits
6. General Plan Amendment Analysis & Justification Statement
7. Comprehensive Master Plan – BoS packets only
8. Oak Management Plan – BoS packets only
9. Steep Slope Management Plan – BoS Packets only
10. Airport correspondence: Co. Airport, CalTrans Aeronautics, FAA
11. Public correspondence
12. 12/14/06 Planning Commission Staff Report & Minutes
13. 01/11/07 Planning Commission Memo & Minutes
14. 02/22/07 Planning Commission Staff Report & Minutes
15. 03/22/07 Planning Commission Staff Report & Minutes
STAFF COMMENT:
On March 22, 2007, the Planning Commission voted 4-1 on the first motion, and voted
unanimously on the 9 subsequent motions and to take the following actions on the subject
project:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Rejected the proposed Amended Mitigated Negative Declaration for the project as
proposed and adopted it only for that portion of the project currently designated SDA/IDR,
which includes a General Plan Amendment and Rezoning and a revised Tentative Map;
Recommended approval of the General Plan Amendment to change 63-acres of SDA
designation to 18-acres of “Residential” and 45-acres of “Open Space”, amending the SDA
designation for the Loma Rica Ranch to reduce the Residential allocation from 180
dwelling units to 172 units, and to reduce the Open Space allocation from 200 acres to 150
acres;
Recommended approval of a coinciding Rezoning to change 63-acres of “IDR” to: 18-acres
of “RA-3-SP” and 45-acres of “OS-SP”; limiting the “SP” Combining District to
acknowledgement of airport safety restrictions;
Recommended denial of the proposed General Plan Amendment to change 45-acres of
Industrial designation to Residential;
Recommended denial of the coinciding Rezone application proposing to change the zoning
of 45-acres from “M1” to “RA-SP” and “OS-SP”;
Approved the revised Tentative Map creating 6 residential lots and a 90-acre Parcel A;
Denied the proposed Management Plan proposing encroachment into steep slopes;
Denied the proposed Management Plan proposing encroachment into landmark oak groves;
Denied the proposed Use Permit for a Comprehensive Master Plan;
Denied the proposed Petition for Exceptions to County Road Standards.
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BSR for Winds Aloft Appeal (GP04-003; FM04-002; EIS04-030)
May 22, 2007
Project Description: The proposed project involves 108-acres situated between Idaho Maryland
Road and the County airport. Located one mile east of Brunswick Road, the site is currently
accessed from Idaho Maryland Road. Site topography creates two distinct development areas,
the lower portion adjacent to Idaho Maryland Road, designated within the Loma Rica Ranch
SDA, and the upper portion adjacent to the airport, designated Industrial. The project proposes a
subdivision map to create 6 residential lots along Idaho Maryland Road, and a 90-acre Parcel A
for the remainder of the site; a Comprehensive Master Plan that identifies conceptual future
development of Parcel A which would create 16-22 additional single-family residential lots
(dependant on public water availability), allow 2nd units on all lots, require private aircraft
hangars on the 9 potential lots adjacent to the airport, and create a common area lot for additional
aircraft hangars. Project design requires two Management Plans, one to allow encroachment into
steep slopes to improve road access to the upper lots, and a second Management Plan to allow
encroachment into landmark oak groves for the building envelopes on the upper lots, for one
lower lot, and for an emergency access road for the lower lots.
Project timelines: Prior to submitting this formal land use application, the project proponents,
in 2003, requested preliminary comments for a project that would create residential development
within the SDA portion of the site and commercial/aircraft uses in the industrial portion of the
site. The applicants did not request a General Plan Amendment analysis with that preliminary
review. Application for the subject project was filed on June 18, 2004 and circulated to a
number of local and state agencies for review on June 29, 2004. Review of the applicant’s
preliminary geotechnical report for the site revealed stockpiles potentially associated with past
mining operations, triggering a need for further assessment. Pursuant to Section L-IV 2.11.B.9
of the Nevada County Subdivision Ordinance, the project was deemed incomplete for processing
on July 17, 2004, pending a Phase I Assessment for toxic substances. A Preliminary
Environmental Assessment of minewaste stockpiles was required and completed, mitigation was
developed by the State Department of Toxic Substances (DTSC), and the project was cleared for
processing on July 6, 2006.
The applicant was advised of missing, incomplete and conflicting application documents on
February 3, 2006, and again on May 18, 2006. Corrected exhibits and missing documents,
including property owner authorization for the Loma Rica Ranch GPA, were received on August
2, August 23, and August 29, 2006. The initial study was completed and a Mitigated Negative
Declaration was circulated on October 18, 2006. The first Planning Commission hearing was
held on December 14, 2006; three subsequent hearings were held prior to the Commission’s
March 22, 2007 final action on the project.
Planning Commission Review. The Planning Commission considered the merits of this project
at four separate hearings. The first hearing, on December 14, 2006, was primarily devoted to
public testimony from residents of Madrone Forest Drive who expressed concerns for impacts to
their road, from emergency and/or permanent use from the project. The hearing was continued
after public testimony. At a January 11, 2007 hearing, the Commission discussed emergency
access issues, the loss of industrial acreage and the issues surrounding the proposed General Plan
Amendment. The Commission advised the applicant that adequate information to support the
Industrial General Plan Amendment had not yet been presented and again continued the hearing.
At a February 22, 2007 hearing, the developer introduced an airport consultant who advised the
Commission that through-the-fence airport access is very complicated and that the FAA does not
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BSR for Winds Aloft Appeal (GP04-003; FM04-002; EIS04-030)
May 22, 2007
have enthusiasm for it. The Commission discussed at length airport issues and the industrial
GPA, including the lack of alternative use analysis or a need demonstrated for additional
residential acreage in the County. The developer also, at that hearing, presented a conceptual
redesign of the tentative subdivision map to eliminate deadend road requirements. The
Commission made Motions of Intent to deny those portions of the project applicable to amending
the General Plan for the industrial 45-acres and continued consideration of map design issues. At
the March 22, 2007 hearing, the applicant provided a revised map that resolved deadend road
and map design issues, agreeing to shift the one remaining building envelope out of the oak
woodlands, negating the need for the oak groves Management Plan.
The Appeal:
On March 28, 2007, the project developer filed a Notice of Appeal (March 26, 2007 cover letter)
and an Appeal of seven Planning Commission actions taken on March 22, 2007, during a public
hearing for the project. The appeal requests the Board overturn Planning Commission actions to
deny, or recommend denial of, those elements of the project relating to the 45-acres of Industrial
land proposed to be designated Residential, including the environmental document and related
project elements, and secondly, to “remove” one mitigation measure contained within the
Amended Mitigated Negative Declaration adopted for the approved project.
Appeal procedures: The County Land Use and Development Code establishes separate hearing
procedures for appeals of environmental documents and appeals of actions taken on a project.
The Board of Supervisors can proceed with an appeal hearing on the issues separately or
together, but action must be taken first on the approved environmental document, which must be
reviewed and considered before taking action on the project. Procedures for each type of appeal
are as follows:
Appeal of a Negative Declaration: County CEQA Guidelines require that an appeal of a
decision to adopt a Negative Declaration must be filed with the Clerk of the Board by filing a
Notice of Appeal within 10 days of Negative Declaration adoption, and within 20 days of
filing the Notice to Appeal, the appellant must file a written statement which contains a full
explanation of the legal basis and grounds for the appeal. Failure to comply with these
requirements may result in the summary denial of the appeal. At the appeal hearing, the Board
is limited to considering those grounds explicitly stated in the appeal and neither the appellant
or any other party shall be allowed to raise issues which were not expressly set out in the
Notice of Appeal. For this project the CEQA submittal deadline was April 23, 2007.
Appeal of land use projects. County Zoning Regulations establish the procedures for
conducting appeal hearings of land use projects, requiring that appeals of any decision of the
Planning Agency be filed within 10 calendar days from the date of the Planning Agency action,
except, amendments to the General Plan or Zoning Ordinance shall be filed within 5 calendars.
The appeal hearing for the project elements (the Use Permit and the two Management Plans) is
de novo, with no limitation on the issues that may be raised or evidence received. Appeal
deadlines: March 28, 2007 for the General Plan Amendment and Rezoning;
April 2, 2007 for appeal of the tentative map, use permit and Management Plans
Appellant’s correspondence submitted after 4/23/07 is not referenced in this staff report.
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May 22, 2007
I.
THE APPEAL: The filed appeal requests the following actions:
1. Approve the proposed General Plan Amendment (GP04-003) in its entirety, allowing
residential development instead of industrial development over the entire site;
2. Approve the proposed Rezoning (Z04-008) in its entirety, allowing residential
development instead of industrial development over the entire site;
3. Remove Mitigation 9.E (FM04-002), which requires construction of a six-foot fence
along the entire Airport boundary;
4. Approve the proposed Comprehensive Master Plan (U04-002) as part of the proposed
Rezoning. The Comprehensive Master Plan contains the mitigating site development
restriction requested by the SP-Site Performance Combining District;
5. Approve the proposed Management Plans (MGT04-018 & MGT06-033) for oak
woodland intrusion and minor steep slope intrusion, as important components of
implementing the Comprehensive Master Plan;
6. Approve the Initial study and Mitigated Negative Declaration (EIS04-030) in its
entirety; because it contains sufficient information to assure avoidance of significant
adverse impacts and allow approval of the entire project.
The Appellants’ Appeal Statements are listed below in bold, italic type, followed by staff
responses to each appeal point.
II.
STATEMENT OF REASONS FOR THE APPEAL:
The Planning Commission did not reach the appropriate conclusions for their
recommendations as to the future land use of this property considering the evidence
presented in the administrative record that included constraints analysis, capability
analysis, general plan policies, and public testimony. The appropriate use of the land is
not industrial but residential.
Staff Response: Appeal documents, consisting of a March 26, 2007 cover letter, the Appeal
form and a Supplemental Appeal Information table, state that the bulk of the appeal is directed
toward determining whether the appropriate land use for the property is industrial or residential.
The Appeal states that the Planning Commission did not reach the appropriate conclusions
because the evidence presented included constraints analysis, capability analysis, general plan
policies and public testimony.
Attached hearing Minutes reflect careful deliberation by the Planning Commission of the
evidence submitted. The record reflects that the appellant was advised of the need for a
definitive analysis of the constraints presented as justification for a General Plan amendment.
Absent that documentation, in conjunction with submittal of an inadequate conceptual
development plan to justify a change in land use designation, acknowledging federal and State
agency identification of potential airport impacts and conflicts, and lack of assurance that the
residential project would be able to obtain access to the airport, the Planning Commission was
unable to determine that the appellant adequately demonstration justification for a General Plan
Amendment. The Planning Commission unanimously agreed that it is premature to amend the
County General Plan land use map until a thorough investigation of industrial opportunities,
access alternatives, and a development plan containing adequate infrastructure detail, were
submitted for review.
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BSR for Winds Aloft Appeal (GP04-003; FM04-002; EIS04-030)
May 22, 2007
Concluding that adequate justification had not been demonstrated to justify changing the
General Plan, the Planning Commission also denied those elements of the project that were
dependent on such General Plan amendment, including the Rezoning to Industrial, both
Management Plans as they relate to residential development on Parcel A, and a Petition for
Exceptions (which was not appealed).
Further detail is provided in the following, specific appeal point responses.
III. STATEMENT OF SPECIFIC PROVISIONS WHICH ARE BEING APPEALED:
(numbered a-f by staff, for identification purposes)
a.
GP04-003: The Commission recommended approval of only a portion of this general
plan amendment; we ask that it be approved in its entirety, allowing residential
development instead of industrial development over the entire site.
Staff Response: The Appeal states that “Among other findings, the Commission felt that this
general plan amendment was “premature” in that certain area of concern were not addressed in
the public record. All facts were presented in the public record, including but not limited to:
Alternative access, sufficient industrial land in the County, airport protection and airport access.”
The applicant’s General Plan Analysis Justification Statement (Attachment “6”) states that the
industrial amendment is justified because industrial use adjacent to the airport is not feasible due
to the access restrictions contained within their deeded easement, because there is no feasible
access to the site other than the steep incline from Idaho Maryland Road, and because this
residential project has been designed to ensure compatibility with airport operations. Both staff
and the Commission advised that a detailed analysis of industrial development opportunity,
including potential airport-related businesses or support uses, and alternative access options,
were necessary to determine whether the site was unsuitable for industrial use. No such analysis
was provided. The Appeal cites the developers’ representative as highly qualified access route
planners, who find no feasible access from Loma Rica Drive, but again, no documentation has
been provided.
In recommending that the Board of Supervisors deny the proposed General Plan Amendment to
change 45-acres of Industrial designation to Residential, the Planning Commission considered
the sum of information received, unanimously agreeing that that the General Plan Amendment
was premature because it had not adequately demonstrated that this change from industrial to
residential use would serve the public interest where such a change would preclude future
options for industrial or mixed-use development on this site. In reaching this conclusion, the
Planning Commission considered the following:
1. Airport compatibility. Correspondence from CalTrans Aeronautics and the FAA (Attachment
“10”) advising that the protection of people and property on the ground from potential
consequences of near-airport aircraft accidents is a fundamental land use compatibility-planning
objective. Both agencies discourage residential development adjacent to public airports, citing
security issues, access control, responsibility and liability, compliance with design criteria,
potential runway incursion hazards, safety concerns for residents and nuisance complaints for
aviation agencies. The FAA must approve any connection from an off-site taxiway to the airport
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BSR for Winds Aloft Appeal (GP04-003; FM04-002; EIS04-030)
May 22, 2007
property line and clearly states its policy to discourage taxiway connection to parcels located
outside the boundary of the Airport. Without Federal and State concurrence, the Commission
was advised that airport access for private aircraft might not be granted for the Winds Aloft
project. Important to the Airport, FAA grant assurances for Airport improvement projects could
be jeopardized where land adjacent to the airport is not restricted to compatible airport
operations.
2. Airport access. The Winds Aloft project was designed to be an airport-compatible project,
requiring construction of private hangars on the site. However, airport access from the site is not
guaranteed. The 1996 Grant Deed from the County to the Winds Aloft parcel (see Attachment
“10”) grants conditional access to the airport, contingent on development of a legal taxiway
approved by the County or any other party. The County Airport Manager advised that FAA
approval is crucial to any such access. The applicant’s airport consultant advised the
Commission, on February 22nd, that the FAA has little enthusiasm for through-the-fence access
and negotiating access rights will be very complicated. The Commission concurred that
unresolved airport access issues need to be thoroughly investigated prior to a change to the
General Plan map.
3. Inadequate infrastructure information. The Winds Aloft Comprehensive Master Plan proposes
a conceptual development plan for a future subdivision but does not provide the necessary data
for a subdivision, including a demonstration of water availability, sewage disposal and
emergency access capability. The lack of information was identified by staff early in 2006, in the
December 2006 staff report, and voiced by the Commission in January 2007. The applicants
consistent response has been, as stated in Appeal documents, that the following criteria is
acceptable justification for a General Plan Amendment:
1) “access is the most important consideration in changing site zoning from industrial to
residential”;
2) “residential use is the superior land use for the subject property”, citing a 1996 easement
for conditional aircraft access to the Nevada County Airpark;
3) the conceptual project was designed in consideration of site constraints; and
4) residential use would be more acceptable to neighboring properties than industrial use.
State Planning law and the County General Plan require a finding of public interest in order to
amend a General Plan designation. The action of the Planning Commission to recommend denial
of this General Plan amendment, was taken only after careful consideration of public testimony,
FAA and CalTrans Aeronautics advice, the lack of demonstrated access to the airport for an
airport-reliant project, the lack of a subdivision map to entitle a residential development plan,
combined with the lack of sufficient capability analysis data to support a subdivision entitlement,
and the lack of detailed analysis to justify the removal of 45-acres of industrial designation. The
Planning Commission unanimously determined that this amendment does not serve the public’s
interest because, in the interest of long-range planning, careful analysis, based on factual and
documented information is necessary, especially for a change of land adjacent to a public airport
where there is a potential for public safety hazard for both the future residents and for the airport,
requiring all feasible alternatives to be carefully examined. The Commission determined that this
project did not provide the needed analysis to support an amendment to the General Plan land
use map.
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BSR for Winds Aloft Appeal (GP04-003; FM04-002; EIS04-030)
May 22, 2007
b.
Z04-008: The Commission recommended approval of only a portion of this rezoning;
we ask that it be approved in its entirety, allowing residential development instead of
industrial development over the entire site.
Staff Response: The Planning Commission voted unanimously to recommend the Board of
Supervisors deny the proposed rezoning from “M1” Light Industrial, to “RA-3-SP’, Residential
Agricultural with a 3-acre minimum parcel size with a Site Performance Combining District,
determining that zoning must be compatible with the General Plan designation.
The Appeal states that “the arguments for rezoning are essentially the same as for the General
Plan Amendment but that “the Commission seemed to overlook the fact that the Comprehensive
Master Plan needs to be apart of the residential zoning, using the “SP” district because the
zoning needs to include appropriate standards to assure that future development of the southeast
portion of the property is consistent with the overall goals of achieving a residential subdivision
that will cater to pilots and other airport supporters.”
The Planning Commission did consider that the project included a proposal for a Comprehensive
Master Plan (Attachment“7”) that included an “SP” Combining District to identify site
development standards and allowable uses for the future project, including mandatory hangars
and allowing a second dwelling on each parcel. An “SP” Combining District is intended to
provide refinements in the site development standards and/or the permitted uses of the base zone
district, but may not be less restrictive than the base district (in this case, the “RA”). Because
many of the proposed “SP” standards unnecessarily mimic existing zoning standards and permit
processes, and some restrictions are inconsistent with zoning regulations, and with mitigation
measures for the project, the Commission concurred that certain of the desired restrictions should
appropriately be included within project CC&Rs rather than within the zoning. A
Comprehensive Master Plan is not necessary to implement an “SP” zoning nor to address the
elements requested by the applicants CMP. The Commission does recommend, as part of the
proposed rezoning, adoption of an “SP” district to recognize airport safety restrictions for the
approved tentative map.
c.
FM04-002: The Commission approved this tentative map; we ask that one mitigation
measure be removed, which required construction of a six-foot fence along the entire
Airport Boundary, even though the six lots approved in this project are far removed from
the Airport boundary.
Staff Response: This appeal point raises an issue of legal procedure. The Appeal does not
request that the Amended Mitigated Negative Declaration adopted by the Commission be
overturned or amended. In fact, it asks that the Amended Mitigated Negative Declaration be
approved in its entirety (see Appeal Statement f.). Rather, this appeal requests “removal” of one
mitigation measure under an appeal of the FM04-002 map approval. There is no apparent
authority under CEQA for such a removal without appealing the approval.
A mitigated negative declaration may be adopted for a project if the applicant agrees to the
identified mitigation measures before the document is released for public review. After public
review, equivalent or more effective mitigation measures may be substituted for infeasible or
otherwise undesirable mitigation measures prior to adoption of the mitigated negative
declaration. [Pub. Res. Code §21080(c) & (f)]. It follows that any request to change mitigations
after adoption of the mitigated negative declaration for the project would require an appeal of the
action approving the environmental document containing the mitigation measure objected to.
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BSR for Winds Aloft Appeal (GP04-003; FM04-002; EIS04-030)
May 22, 2007
In order to consider amending the adopted Amended Mitigated Negative Declaration to delete a
mitigation measure, the Board should first consider whether the appeal as filed should be
summarily denied because the Amended Mitigated Negative Declaration was not explicitly
appealed as required by the County CEQA Guidelines (LUDC Sec. L-XIII 1.12.G.1) or whether
the appeal is broad enough to allow consideration of the amendment.
If the Board decides to proceed to consider the request, the following response is provided.
Mitigation Measure 9.E. was adopted for the approved tentative map, requiring that a 6-foot high
fence, constructed of non-glare materials, be installed between the project boundaries and airport
lands prior to map recordation. This safety measure was required to prevent the public and the
airport, from potential aircraft hazards. There are trails throughout the property that are currently
used by the public, and the project identifies trail amenities for future residents. The Planning
Commission, on March 22, 2007, specifically considered the applicant’s request to remove this
measure and determined the measure to be necessary.
The appellant states no objection to this measure being applied to future development near the
airport, however, the applicants’ Comprehensive Master Plan (pg. 5, Attachment “7”) which
identifies a phased project, proposes to establish the approved six residential lots and “to delay
development on the remainder of the site until they can further explore and consider the
feasibility of extending public water to the site.” Mitigation Measure 9.E. fencing has, since its
inception, been required to be constructed prior to map recordation and was, until March 22,
acceptable to the applicant for the 6-lot map.
If the Board does not summarily deny this appeal point, and determines that the Amended
Mitigated Negative Declaration should be amended to “remove” Mitigation Measure 9.E, the
Board should make a Motion of Intent to amend the Amended Mitigated Negative Declaration to
remove Mitigation Measure 9.E., specifying why no significant safety impact will occur if the
measure is removed and directing staff to prepare findings in support. The Board may also want
to determine whether a substitute mitigation measure, equivalent to or more effective than the
original measure, is needed to avoid or reduce the significant effect identified in the Amended
Mitigated Negative Declaration, to at least the same degree as, or to a greater degree than, the
original measure.
d.
U04-008: The Commission denied the Comprehensive Master Plan and we ask that it be
approved as part of the rezoning requested above. The Comprehensive Master Plan contains
the mitigating site development restriction requested by the SP Site performance Combining
District.
Staff Response: The Planning Commission denied the proposed Comprehensive Master Plan
(CMP), determining that approval of a subdivision design for Parcel A requires a subdivision
map, and not a conceptual plan. Inadequate information was provided to ensure plan feasibility
and all applicable and allowable measures listed within the applicants CMP can be addressed by
mitigation measures or conditions of approval.
The applicants CMP (Attachment “7”) proposes site performance regulations that would
customize the proposed zoning of the site, confining development to no more than 28 singlefamily residences plus second dwelling units, create a central site for private aircraft hangars
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May 22, 2007
serving the new lots not fronting on the airport, and open space with limited amenities (which are
not defined). CMPs are required for development within the “PD” “REC”, “BP”, and, where
mapped within a PD General Plan designation, the “IDR” zoning district. CMPs are not
intended to be a substitute for required land use entitlements, including subdivision maps. Not
required for this project, the applicants’ Plan does not satisfy ordinance requirements for a CMP,
lacking an analysis of existing and proposed infrastructure including facilities for water, sewage
disposal, utilities, fire protection, drainage, trails and emergency access, nor does it provide a
visual assessment or architectural guidelines as required by ordinance. Additionally, future
residential development of Parcel A is dependant on the ability of the property to obtain access to
the airport for private aircraft, which has also not been demonstrated.
The Appeal also states that “the Comprehensive Master Plan is a fundamental part of the
proposed RA-SP zoning, setting all performance standards for any future tentative map and
including essential component to assure protection of the Airport and surround residential
neighborhoods. For example, it provides for a private taxi-lane on site to fee private aircraft to
a single access point onto the Airport. It requires that residences adjoining the Airport build a
private hangar and use it only for aircraft storage. It provides for a combination hanger and
private storage lot as an amenity that will allow lots without frontage to have their required
hangar. The Planning Commission rejected this document as an isolated document, failing to
recognize that it is part o the rezoning request.”
The Appeal fails to address the proposed “SP” measures that were incorporated into mitigation
measures and conditions of project approval. The Planning Commission did not treat the
proposed CMP as an isolated document, but clearly in their findings, determined that the CMP
was not the appropriate avenue to obtain an entitlement for future development absent critical
capability analysis data, including water supply, soil testing for sewage disposal, and emergency
access opportunities. The Planning Commission considered the project comprehensively,
evaluating each element carefully to ensure project feasibility.
e.
MGT04-018 and MGT06-033: The Commission denied the Management Plans for oak
woodland intrusion and minor steep slope intrusion; we ask that the Management Plans
be approved as important components of implementing the Comprehensive Master Plan.
Staff Response: The Planning Commission took action on these two Management Plans in two
separate actions and for separate reasons, as follows:
Management Plan MGT06-033 proposed encroachment of future building envelopes and
roadways into landmark oak groves, in two areas: along the south and southeasterly property
boundaries near the airport, and in the northerly portion of the site, encompassed by the 6-lot
subdivision where three building envelopes and an emergency access road proposed
encroachment in to the oak groves.
The Commission denied this Management Plan because 1) no development plan had been
approved for the southerly and southeasterly portions of the 108-acre site near the airport; and 2)
for the 6-lot subdivision because a map revision, eliminating the emergency access road, resulted
in one remaining building envelope and sewage disposal area within the oak grove but which
could be easily moved. Findings required to grant a Management Plan include a determination
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May 22, 2007
that there are no feasible alternatives and the Commission denied the Management Plan because
there was a feasible alternative for a reasonable building site and sewage disposal area outside of
the resource on proposed Lot 6. Denial of this Management Plan resulted in the elimination of a
mitigation measure requiring compensation for the loss of 5-9 acres of landmark oak groves.
Management Plan MGT04-018 proposed encroachment into steep slopes on south of the yearround stream on Parcel A, for improvements to a steep, narrow road that was proposed to serve
the upper lots. The Commission denied this Management Plan because no development plan had
been approved for Parcel A, the southerly portion of the site near the airport.
f.
EIS04-030: The Commission “rejected” or denied only portions of the project Initial
Study and Proposed Negative Declaration; we ask that the environmental document and
mitigated negative declaration be approved in its entirety, because it contains sufficient
information to assure avoidance of significant adverse impacts and allows approval of
the entire project.
Staff Response: The Appeal documents state that the environmental document “should be
adopted in its entirety in that it contains sufficient information to allow the Board of Supervisors
to make a decision.” The Appeal further states that the “study is complete and contains sufficient
decision making information to support a finding that the mitigated negative declaration be
approved and although the project could have a significant effect on the environment, there will
not be a significant adverse effect in this case because the project has been modified to include
appropriate mitigation measures.”
Nevada County CEQA Guidelines delegate the authority and responsibility for approving
appropriate environmental documents, to the Planning Commission. The decision to approve or
not approve a mitigated negative declaration for a project requires the independent judgment of
the Planning Commission to determine whether all of the impacts of the project have been
mitigated to a level of insignificance. In this regard, each project is unique and must be reviewed
on its own merit. In taking action to deny that portion of the Amended Mitigated Negative
Declaration applicable to the 45-acres of land designated Industrial, the Planning Commission
determined that the proposed Amended Mitigated Negative Declaration prepared for this project
does not adequately address the proposed General Plan Amendment and coinciding rezoning,
including potential impacts on future airport use and the loss of industrial lands to serve Western
Nevada County.
The appellant’s Statement is limited to opinion and does not, as required by Local CEQA
Guidelines, explicitly state or fully explain the legal basis and grounds for the appeal, including
the issues identified by the Commission during their discussion of issues and in making findings
of denial, and should be summarily denied.
IV. STATEMENT OF CHANGES OR ACTION REQUESTED OF THE BOARD OF
SUPERVISORS:
See Requests in Item III above.
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IV. SUMMATION OF THE ARGUMENTS TO BE RAISED BY THE APPELLANTS:
Appellant will argue that the facts disclosed in the administrative record as a whole,
including the project application, technical studies, project initial Study, and public and
agency testimony all support the approval of the project as presented to the County,
including those portions of the project that were supported by the Planning Commission
and those portions not supported by the Planning Commission.
The Appellant will draw the Board’s attention to the information already in the
administrative record that demonstrates their position. They will demonstrate that: the
Idaho-Maryland/Brunswick Road Intersection and Idaho-Maryland Road section make
the land more suitable for the less traffic generating residential land use; That the
nature of the land and surroundings make residential land use more compatible than
industrial; That there is a huge excess inventory of job generating land use zoning in
Western Nevada County and this land is not needed to meet future industrial demands;
That the Initial Study and Mitigated Negative Declaration should be adopted in its
entirety in that it contains sufficient information to allow the Board of Supervisors to
make a decision; That there are sufficient mitigation measure contained in the Initial
Study to protect the airport form any future challenges of any kind from residential
neighbors.
Staff Response: The appellant’s Summation does not address the key General Plan policy
voiced by the Planning Commission in recommending denial of the General Plan amendment.
General Plan Policy 1.36 requires a determination that the amendment be found to be in the
public interest. General Plan Amendments are not taken lightly, demonstrated by numerous
policies contained within the Plan that govern amendments. Amendments to the land use map
require detailed analysis and a demonstration that the change is justified and in the public
interest. The Planning Commission concurred that there must be a compelling reason to amend
the General Plan, the County’s long-term policy guide for the physical development and the
constitution and foundation by which all Nevada County land use decisions are made. This
project did not provide the critical detail to justify a change to the General Plan.
STAFF SUMMARY:
The lack of specificity or legal analysis in this Appeal is reflective of the project presented to the
Planning Commission. This Appeal does not build the foundation for argument in favor of a
General Plan Amendment, but, rather, relies on a plan to provide adequate information at some
future date. While components of the project are admirable, the foundation necessary for the
project was neglected. Rather than using this Appeal as an opportunity to demonstrate
justification for a General Plan Amendment, this Appeal relies on the same responses provided
to the Planning Commission. The Planning Commission carefully and accurately determined
that it is not in the public interest to amend the General Plan, eliminating 45-acres of Industrial
land use adjacent to a public airport, until such time as it can be determined, with certainty, that
there is no feasible industrial use of the site, that there is a feasible project that can be approved
in compliance with County regulations, and that the project will be compatible with airport use.
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If the Board determines that any action of the Planning Commission should be overturned or
modified, staff recommends the Board adopt a motion of intent and provide direction to staff to
return with findings in support of your actions. It is within the power of the Board to modify the
project, including the authority to change, delete or add to the conditions for approval.
Attachments 12-15 of this Board staff report contain the Planning Commission staff reports and
meeting minutes. Exhibits and/or correspondence provided to the Commission in those reports
are provided in this staff report to the Board, but are not duplicated within each copy of the
Commission reports.
ACTIONS FOR CONSIDERATION: Staff recommends the Board uphold the decisions of the
Planning Commission for each of the project components, taking the following actions:
I.
EIS 04-030: Deny the appeal of the decision of the Planning Commission, on March 22,
2007, to reject and deny that portion of the Amended Mitigated Negative Declaration
applicable to the 45-acres of Industrial designation, rejecting the proposed Amended
Negative Declaration for the project proposed and adopting it only for that portion of the
project creating 6 residential lots on 18 acres and a 90-acre Parcel A, reaffirming the
following findings made by the Planning Commission:
A.
That the proposed Amended Mitigated Negative Declaration prepared for this project
does not adequately address the proposed General Plan Amendment and coinciding
rezoning of the 45-acres of Industrial to Residential and Open Space, including
potential impacts on future airport use and the loss of industrial lands to serve
Western Nevada County.
II.
FM04-002: Summarily deny the appeal to remove Mitigation Measure 9.E., and uphold
the decision of the Planning Commission to adopt Mitigation Measure 9.E. as part of the
Amended Mitigated Negative Declaration adopted on March 22, 2007, determining that the
action to was not explicitly appealed as required by the County CEQA Guidelines (LUDC
Sec. L-XIII 1.12.G.1).
III.
GP04-003: Deny the appeal and uphold the recommendation of the Planning Commission
to deny that portion of the proposed General Plan Amendment, applicable only to the 45acres of Industrial designation;
IV. Z04-009: Deny the appeal and uphold the recommendation of the Planning Commission to
deny that portion of the proposed Rezoning, applicable only to the 45-acres of M1 zoning;
V.
U04-008: Deny the appeal and uphold the decision of the Planning Commission to deny
the Use Permit for a Comprehensive Master Plan, determining that approval of a
subdivision design for Parcel A requires a subdivision map rather than a Master Plan
concept;
VI. MGT06-033: Deny the appeal and uphold the decision of the Planning Commission to deny
the proposed Management Plan for encroachment into Landmark Oak Groves along the
southerly and southeasterly property boundaries where no development is proposed, and on
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the revised tentative map within Lot 6, reaffirming the findings of the Planning
Commission that, because there is no development plan for the southerly and southeasterly
portions of this site and because there are feasible alternatives for a reasonable building site
and sewage disposal area outside of the resource on proposed Lot 6, including a redesign of
proposed boundary lines and a relocation of the MUSDA.
VII. MGT04-018: Deny the Management Plan proposing encroachment into steep slopes on
Parcel A, reaffirming the findings of the Planning Commission that, it cannot be
determined that no feasible alternatives are available, because a development plan has not
been approved for Parcel A.
Alternatively: If the Board of Supervisors in their independent judgment finds that any action
of the Planning Commission should be overruled or modified, staff recommends the Board adopt
a Motion of Intent and provide direction to staff to return with findings in support of Board
action based on the Board discussion of the evidence and why the evidence presented justified
different findings and different results from those adopted by the Planning Commission.
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