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HomeMy WebLinkAbout02-01-2007 SSMINUTES JOINT CITY COUNCIL/PLANNING COMMISSION SPECIAL STUDY SESSION CITY OF LAKE ELSINORE 183 NORTH MAIN STREET LAKE ELSINORE, CALIFORNIA THURSDAY, FEBRUARY 1, 2007 .......... ............................................................. CALL TO ORDER - 5:00 P.M. Mayor Magee called the Joint Special Study Session to order at 5:11 p.m. ROLL CALL PRESENT: COUNCILMEMBERS: HICKMAN, KELLEY, SCHIFFNER, MAGEE ABSENT: COUNCILMEMBERS: BUCKLEY (arrived at 5:13 p.m.) PRESENT: COMMISSIONERS: FLORES, GONZALES, MENDOZA, ZANELLI, O'NEAL ABSENT: COMMISSIONERS: NONE Also present were: City Manager Brady, City Attorney Leibold, Assistant City Attorney McClendon, Deputy City Attorney Santana, Administrative Services Director Pressey, Community Development Director Preisendanz, Information/Communications Manager Dennis, City Engineer Seumalo, Public Works Manager Payne, Planning Manager Weiner, Associate Planner ponahoe and City Clerk Ray. DISCUSSION ITEMS A. Development Review Community Development Director Preisendanz presented the Development Review Process and Environmental Procedure relative to the City of Lake Elsinore's Community Development Department. He commented on each step taken when an application is submitted for approval from the Planning Commission and/or City Council. He commented on the goal of the Community Development Department. He noted that communication is key throughout the process and to being committed to addressing environmental implications of projects early in the process to avoid any issues later on. 1 B. Environmental Processes (CEQA and MSHCP Implementation) Community Development Director Preisendanz presented the Environmental Processing for Development. He commented on each major component involved in the process. He commented on the MSHCP analysis and benefits. He stated that the Determination of Biological Equivalent or Superior Preservation (DBESP) could be addressed during the CEQA process. He commented on the MSHCP being the largest plan in the nation covering 1.26 million acres. Mayor Magee recognized the Executive Director of the RCA, Tom Mullen. He stated that through Mr. Mullen's vision, the MSHCP was brought together. Mr. Mullen complimented Community Development Director Preisendanz on his presentation. He commented on the National Environmental Protection Act and California Environmental Quality Act. He indicated that he was working with the Army Corps. Of Engineers in an attempt to come up with a clearer and more streamlined process that will accomplish what they believe to be the point with the MSHCP. He indicated that he recognized the jury was still out with the before mentioned. He believed that the exclusive reason for the MSHCP was to accelerate the placement of infrastructure. He commented on the traffic on surrounding highways and that prior to MSHCP, there were many environmental issues. Dennis Fahey commented on the City purchasing a number of lots on Lakeshore Drive for a deflated price. He commented on the value of the land increasing as one gets further away from the lake. Tom Tomlinson of Castle and Cooke, commented on the presentation. He indicated he was confused with the direction of the process. He expressed his concerns with the City's CEQA process as it related to development. He indicated that the process was hard from a developer's standpoint since they start the process fairly early in the design of the development. They try to coordinate the environmental concerns where they anticipate problem areas as they go through the development. He said that he had never been fond of preparing a lot of engineering or hopeful expectations on the side of a developer, only to find out through a CEQA process or an Environmental Review at a later date - which some of things can be done and other things should not be done. He indicated that he was a little confused with where the process was going and his understanding was that there was no change in the implementation of the City Policy. He indicated that he and his company have enjoyed working with the City. He said that his company had not done a lot through the MSHCP in their processes. He said the experiences that they have had, have not been favorable. He said one of the issues had to do with a transportation element tMat was an exempted design infrastructure development on Nichols Road. He expressed his concern with the time it took to get through the process with the City LEAPS and CEQA. He claimed that if the project was not subject to the 2 MSHCP, the road would be open by now. He noted that what he heard during the presentation sounded very good and he would like to see it help infrastructure and circulation elements. Jim Good, Attorney for Gresham Savage Law Firm, indicated he was representing MCA in Corona which is a tile making company. He said MCA owned a clay and aggregate mineral property to the north of Nichols Road on the east side of the I-15. He indicated that he had a very keen interest in the process because MCA would be submitting an application for a mining project which would lead to development for future commercial use. He said they were most interested in the CEQA process. He noted that he did not know the history of how the CEQA process had been handled. He indicated he was a mining attorney and did not have a good handle on that kind of information. He indicated that from a mining perspective, and where he has worked in various counties and agencies, the process that had worked most efficiently for most mining projects had been where the lead agency will accept a draft Environmental Impact Report prepared by a consultant hired by the mining applicant. He said that the draft had to be independently reviewed by the city or lead agency. He said the process had been very efficient in regard to time and money. He said when he reviewed the City's Policy that was adopted in 2000, he was unclear to exactly what was meant. He indicated that one section of the policy referred to the City having a contract prepared directly by their own contractor. He said further on in the policy, it stated that before using a draft prepared by another person, the lead agency shall subject the draft to the agency's own review and analysis. He said to him, this meant that the draft had been prepared for the City under contract or that the draft had been submitted to the City as a proposed EIR. He noted that he reviewed how the policy fit into State Guidelines 15084. He said State Guideline indicated that any person, including the applicant, may submit information or comments to the lead agency to assist in the preparation of a draft EIR and that the submittal may be presented in any format, including the form of a draft EIR. He further noted that the State Guideline stated that the lead agency must consider all information and comments received and that the lead agency may chose any one of the following arrangements or combination for preparing a draft EIR which include 1) preparing the draft EIR directly with the agency's own staff; 2) contracting with another entity; 3) accepting a draft prepared by the applicant, a consultant retained by the applicant or any other person; or 4) executing a third-party contract or MOU with the applicant to govern the preparation of a draft EIR by an independent contractor. He said he was looking for some understanding. He inquired if it would still be acceptable policy, on part of the City, to allow an app'licant to pay for all the technical studies, prepare a draft, submit it to the City staff and have the City conduct an independent review. He said he would like to see some policy direction given along that line. Mayor Magee requested that City Attorney Leibold comment on the policy for third party contracts and how they are handled. 3 City Attorney Leibold commented that the City's practice required that the City contract with a CEQA consultant. She indicated that it had been the practice of the City guidelines since 2000. She stated there was no recommendation for any change and the policy is consistent with the CEQA statutory law. Chairman O'Neal commented on the State CEQA guidelines in the handout specific to Item No. 4. He said it was interesting that in the language that is used, which stated "it shall be prepared directly by or on third party contracY'. He said there was no mention that there are iwo other ways that it could be prepared. He said he was referring to Section D of 15084, specific to Items Nos. 2 and 3 of the handout. He indicated Item Nos. 2 and 3 in Section D were not mentioned in the City's Policy and that is where he felt the confusion came in. He stated he felt Item No. 3 deals directly with the applicant hiring their own consultant. Assistant City Attorney McClendon commented on a split of authority. He commented on a case out of the second district Court of Appeals which stood for the proposition that a draft EIR can be accepted from the project applicant and reviewed by the agency. He commented that the controlling authority for the City's jurisdiction came from a case out of Redlands in 1999 which stated that regardless of whether the applicant hires the City's consultant or their own, in either event - the City has a contract with that consultant. He stated regardless of whether the applicanYs consultant is used or the City's consultant, there should be a contract in order to comply with the literal language of 21082.1A. Scott Thayer of Castle & Cooke, commented on the hiring of consultants and the challenges high profile commercial development presents. He inquired who would withstand the funding of those challenges. He said from his perspective, he would like the opportunity to select the consultant and hire them with the review of the City. He said if something went wrong, he would indemnify the City and pay for those challenges. He commented on LEAPS and inquired what would happen if the process broke down. Mayor Magee inquired on the process for choosing consultants. He made reference to the City's list of approved environmental consultants and indicated that number one on the City's list was Castle & Cooke's consultant. He inquired if there is ever an instance where the City arbitrarily selects a consultant. Community Development Director Preisendanz explained the' process for choosing a consultant. He stated it was normal procedure to consult with the applicant and ask the applicant what consultant they have used in the past. He stated if the consultant was on the City's list, then staff would be more than happy to go forward with the applicanYs request. 4 Heidi McBroom of Corman Leigh Communities, commented on the inconsistencies with planners on differe~t projects. Jim Good commented on Assistant City Attorney McClendon's comments regarding the guidelines. He said he was well aware of the Redlands case. He further indicated that the guidelines were still considered law. He indicated that he felt the guidelines allow the City to provide for an alternative method regarding the preparation of a draft EIR. He urged that the policy be amended to provide the flexibility to follow the alternative CEQA preparation approaches. Hardy Strozier of Castle and Cooke, commented on the MSHCP and CEQA policy. He said he has been working in the community since the early 1980's. He believed that the MSHCP is currently adopted by the Council but not being implemented according to the Council MSHCP Policy. He said staff currently interprets the MSHCP based on county staff and county consultants. He said Council instructed staff in 2004 to plan for conservation of City land in the lower end of the acreage. He said that Council also instructed staff to balance conservation with economic development. He said the City encouraged sound planning, and to let the private market place drive the development according to the General Plan. He indicated in one instance, the staff and City Attorney have argued the county's position very forcefully to require land dedication when Castle & Cooke had two of their Senior Biologists interpret that the MSHCP did not require dedication of MSHCP land. He said they have recently shown that the MSHCP baseline biology underlies the entire MSHCP. He indicated the county, many times, are in error with regards to the habitat. He said the county's staff position is to make determinations based on baseline biology in the MSHCP and not withstanding what is actually in the field. They say that the field biology does not prevail over what is written in the MSHCP. He expressed his concern and that of the other developers and said that the City needs a policy to correct that. Mr. Strozier said that the county's implementing approach meant that even if the MSHCP conservation attributes reflected in the MSHCP cell, if that cannot be met because of incorrect biology, the county would still want conservation of the amount of land described in the celi despite the biology facts. He said the county was after the numbers and not after the biology and how animals can survive. He said the county had modified their cells in linkage descriptions in Horsethief Canyon by board policy and declined to follow strict MSHCP modification procedures. He indicated staff has also interpreted the MSHCP as requiring the 1,374 acre Pacific Clay property, excluded by the MSHCP in mitiga'tion, to have the former acreage be made up or transferred elsewhere in adjacent land and cities. Mr. Strozier believes that the City Council should prepare a new set of policy guidelines for staff and land owners to follow in the impiementation and interpretation of the MSHCP. 5 Mr. Strozier said he was a lawyer and a planner. He said he agreed with Mr. Good in the sense that the State Guidelines are controlling. He said that the La Vina case clarified the State Guidelines. He recited Page 5 of the State Guidelines, which read "before using a draft prepared by another person, the lead agency shall subject the draft of the agency's own review and analysis. The draft EIR which is sent out for public review must reflect the independent judgment of the lead agency". He indicated if staff were to take on any other approach, he would guarantee that the City would have maximum management overload. He said the process that the City has been using, to allow the landowner to prepare the EIR, is a tried and true process. Commissioner Flores commented on the third party necessities and indicated that he would like to review the contract. He inquired if there had ever been an instance where a third party was not required. Community Development Director Preisendanz commented that, since he started with the City, a third party contract had always been required for CEQA document preparation unless it was exempt. Commissioner Flores inquired if there was another solution without a third panY• Community Development Director Preisendanz indicated that his guidance came from the City Manager and the City Attorney because of the legal implications. He noted he would defer any legal advice to be given by the City Attorney. Councilmember Buckley commented on the third-party issue. He stated that a CEQA document is a City document. He stated there had to be trust in the liability of the people preparing the CEQA documents. He stated the last 45 minutes of the conversation has been talking about issues that impacts very, very, very few people. Assistant City Attorney McClendon commented that the City policy is a sound policy. He stated the policy avoids the appearance of impropriety or collusion which was something that the presiding justice in the dissent of the La Vina case very eloquently spoke on. City Attorney Leibold stated that it was their interpretation, based on the appellant court's decision governing the district, the rule is that'the City needed to be the contracting entity. She indicated that the City would ultimately be the one to enter into contract on the matter of control and accountability. Councilmember Buckley stated the City never forced a developer to pick a particular consultant. 6 City Attorney Leibold confirmed that, to her knowledge, the City had never forced a consultant unwillingly upon a developer. Mayor Pro Tem Hickman commented that a consultant can apply to the City to be added to the list of consultants. He commented on Pacific Clay and the 1,400 acres that the City was supposed to make up. He further commented on the I-15 and if the City was responsible for making up those acres for MSHCP. Community Development Director deferred to RCA consultant Joe Monaco Joe Monaco, consultant to Regional Conservation Authority, commented that relative to the Pacific Clay properties and the settlement agreement in general, there was no specific requirement to provide an acre-for-acre replacement of those lands. He said the MSHCP is a habitat based plan. He said that the conservation estimates for the 146 covered species is based on a certain reserve design that anticipated certain levels of conservation in specific areas. He stated there are circumstances where they can not achieve the levels that were estimated for which the permit was based on and they needed to demonstrate that they have conservation for 146 species. He said they were currently in the process of evaluating the effects of the Settlement Agreement Properties and other actions and entitlements that were issued prior to adoption of the MSHCP. He said that there may be some additional acreage requirements. He said that those additional requirements may or may not be within the City of Lake Elsinore. He said that they expect to have some preliminary estimates in the coming weeks. Councilmember Buckley asked since Pacific Clay is exempt, was it possible that the rest of the City will have to make up for what Pacific Clay does not do because they kept themselves out of the plan. Joe Monaco stated that was not correct. The City did not have to make up for what Pacific Ciay does not do. City Manager Brady stated that staff had never stated that the 1,374 acres needed to be replaced. Community Development Director Preisendanz confirmed that no one was ever told that there was acreage to make up. Mayor Pro Tem Hickman inquired when an applicant would manually be able to check on the progress of the project. Community Development Director Preisendanz stated when projects first come in, they are issued a number. He indicated that it took a lot of time to evaluate which planner was going to get which project. He stated that the 7 City was currently preparing the process to use the Navaline System. He stated that at some point in the near future, it would be computerized. He stated that currently the projects are logged into a book and also put into a computer application. Councilmember Schiffner commented on the selection of consultants and the need to be particular about the selection. Councilmember Kelley thanked the Planning Department for their thorough presentation. She stated that she had never been fond of the MSHCP and she had voted no for the MSHCP because she felt Lake Elsinore became a huge land bank for everyone else. She stated the City of Lake Elsinore gave up more acreage than other areas did. She stated she felt the science was not exact. She commented that Lake Elsinore was unfairly targeted with a lot of extra land. She inquired if projects were moving through RCA in a timely manner. Community Development Director Preisendanz responded the process was moving through in a timely manner. He stated that Environmental Planner Wendy Worthy was involved with working on CEQA and the MSHCP. Councilmember Kelley expressed her concerns with inconsistencies between planners. Community Development Director Preisendanz replied the inconsistencies that Councilmember Kelley was referring to, had to do with the incompleteness letters within the first 30 days. He stated that the City had 30 days to deem the project complete or incomplete. He indicated that in the past, there were incompleteness items added with the design review comments. He stated that currently, in order to get more complete plans, all planners have been instructed to prepare an incomplete letter within the 30 days and also provide design comments up front. Mayor Magee commented on Mr. Strozier's statement regarding the impiementation of the MSHCP being inconsistent with Council direction. He noted that he remembered specifically that the City did want to err on the side of economic development. He noted his disappointment with Mr. Monaco's comments regarding the 1,300 acres. He indicated the City had three years to try and figure it out. He indicated that the City needed. tp know the exact number. He called upon the RCA to help the City get to their required MSHCP conservation acreage as soon as possible. Mayor Magee stated the City was to have the final say if there was an interpretation issue. He stated the challenge from the development community has conveyed that City staff had not been aggressive enough in disagreeing with the RCA's interpretation. 8 Community Development Director Preisendanz responded the Planning Department had reviewed the JPR process in light of the Implementation Agreement. He noted that the Planning DepartmenYs understanding of the Implementation Agreement was that, through the JPR, Findings of Consistency would come through the RCA. He stated there were some cases where there would be a balance of development and conservation. He noted that he did not let the RCA dictate to the City what is right and what is wrong. Mayor Magee commented that he would like to see things move forward rather than languishing and if there is a dispute, he would like it to be brought forward to the Council to make the decision, even if the recommendation is one of denial, he would like it brought fonvard along with the facts and to get it into the public hearing process. He expressed his concern regarding the comment about field biology being inconsistent with what is identified on the MSHCP. He commented that he verified information shared with him by Mr. Strozier and was disturbed by the findings. He noted that the MSHCP calls it one thing and the actual flora and fauna in the area is different. He stated that the City needs a policy change for these inconsistencies. Joe Monaco of RCA, commented on the vegetation map being updated and that the vegetation database layer that was used in the MSHCP is not accurate and does not reflect what is on the ground. He said the California Department of Fish and Game recently updated the vegetation mapping, which gave them a more current database to work off with. He said there has not been a comprehensive comparison plan area wide of differences, such as naming conventions used in the classification system. He said the updated vegetation map is not substantially different from the map used to prepare the MSHCP. Mayor Magee questioned City Attorney Leibold regarding amending the City's policy. City Attorney Leibold stated that the process is outlined in MSHCP as criteria refinement. Mayor Magee commented that since the City is the single largest incorporated contributor to the MSHCP, the RCA should grant the City priority processing. Mayor Magee noted Executive Director Mullen nodding in agreement. Councilmember Schiffner commented that any of the problems found in the system should be brought to the Council's attention and he would be happy to take the problems to the RCA Board. 9 Mayor Magee stated with respect to the third party contract issue, the only policy change being suggested by the development community, that he has heard, was from the development community and not from the City's Attorneys, staff or City Council. Mayor Magee indicated he has heard from Council was to keep projects moving forward even if it meant a recommendation for denial, review for consistency, continue to be consistent with existing Council Policy, and when evaluating a project, continue to foster economic development. City Manager Brady stated he wanted to assure the City Council and the development community that staff was very aware of the need for economic development and providing for the needs, goods, services and requirements of the community; and providing the funds necessary to provide other programs that the City needs. Mayor Magee thanked everyone for their attendance and for being involved in the discussion. PUBLIC COMMENTS There were no public comments. ADJOURNMENT phe Joint City Council/Planning Commission Study S.,e~sio~~nadjourned at 7:00 m. ~~ RO~T ~. MAGE , AYOR CITY OF~KE EL ORE / 11AICH/C~L O'NEAL, CHAIRMAN PLANNING COMMISSION ATTEST: ~~ ICHELLE SOTO INTERIM CITY CLERK 10