Special Notice / Hearing: None__
Vote Required: Majority
To: Honorable Board of Supervisors
From: Steve Monowitz, Community Development Director
Subject: Consideration of 1) an Appeal of the Planning Commission’s decision to Deny After-the-Fact Planned Agricultural, Coastal Development, and Grading Permits, to allow for operation of a construction equipment and materials storage use, and provide after-the-fact authorization for grading performed in January 2015 to construct and improve private access roads and 2) Non-Renewal of a Williamson Act contract, at 4448 La Honda Road in San Gregorio. The Coastal Development Permit is appealable to the California Coastal Commission if the appeal is granted and the permit is approved.
County File Number: PLN 2016-00195; PLN 2016-00197 (Rogers)
RECOMMENDATION:
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Recommendation for the Board of Supervisors to:
A) Deny the appeal and uphold the Planning Commission’s decision to deny the After-the-Fact Grading Permit (County File Number PLN 2016-00195), Planned Agricultural Permit (PAD) and Coastal Development Permit (CDP) (County File Number PLN 2016-00197), by making the findings identified in Attachment A; and
B) Adopt a resolution authorizing the Planning and Building Department to file a Notice of Non-Renewal of California Land Conservation Contract pursuant to the California Land Conservation Act of 1965 (Williamson Act) for APN 082-120-050.
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INTRODUCTION:
This is an appeal of the Planning Commission’s decision to deny after-the-fact applications for a CDP, Grading Permit, and PAD Permit. Staff recommends that the Planning Commission’s decision be upheld because the unpermitted construction and use of the property has and will continue to cause adverse environmental impacts to sensitive habitats and agricultural resources, and is thereby inconsistent with the County’s General Plan, Local Coastal Program, and Grading Requirements. Staff also recommends that the Board of Supervisors non-renew the Williamson Act contract due to the property owner’s non-compliance with the terms of the contract.
PROPOSAL
The property is located at 4448 La Honda Road accessed from two bridges from Highway 84 (Woodside Road/La Honda Road), as shown in Attachment B. The primary access is from a bridge on the northern border of the property that connects the property to La Honda Road. The property’s western border runs along San Gregorio Creek, which is the second largest watershed in Coastal San Mateo County. San Gregorio Creek is an environmentally sensitive habitat area that supports high levels of biological diversity and richness across several taxa, including populations of endemic, sensitive, and/or special-status species.
James Rogers, Appellant and Applicant, proposes to continue to operate an unpermitted construction equipment and materials storage use, which was established in or around 2012 without the required permits. The proposed use involves the storage of equipment and materials, allegedly to support on- and off-site agricultural use, property and road maintenance, and water hauling and maintenance crews. Inspections, observations, and aerial photography reveal, however, that most of the materials and equipment stored on the property are for construction rather than agricultural purposes. The equipment proposed to be stored on the site includes two bulldozers, three loaders, two excavators, one grader, four low-boy transportation trailers, one discing tractor, two water trucks, one portable saw mill, one wood splitter, four shipping containers, and four tool sheds.
The proposed use is the subject of two open County Code Violation cases (VIO 2015-00056 and VIO 2018-00142). The applicant proposes to store equipment on flat areas of the property that are outside of prime soil and flood zone areas, as shown in the Site Plan included as Attachment C.
The Applicant/Appellant also seeks to legalize grading activities that were previously completed to construct the unpermitted on-site private road, which is referred to as the “horseshoe road”. The horseshoe road serves as the main access road to the agricultural and storage areas on the property. The road was constructed on both prime and non-prime soils (Lands Suitable for Agriculture and Other Lands) without required permits and is included in the open violation case (VIO 2015-00056).
The applicant states that the property is currently used for hay production. The applicant has also indicated that he intends to add soil amendments in areas of prime soils and introduce approximately 252,000 sq. ft. of expanded agricultural use, as well as a new approximately 260,000 sq. ft. hillside tree farm area.
County Code Violations
As detailed in the letter sent to the property owner, Richard Rogers, on July 26, 2017 by Code Compliance staff (Attachment K), Mr. Rogers is responsible for multiple land use, grading and stormwater violations, and unpermitted development on properties he owns or leases, including the subject property.
Violations on the subject property include the unpermitted use of the property for construction equipment and materials storage, lumber milling, water hauling, used roadway material recycling and related activities, which are all uses that are either not permitted within the PAD district , or require the issuance of permits that have not been obtained.
Violations also include the construction and expansion of roadways; erection of structures; placement of fill and construction spoils comprised of ground asphalt, bricks and other materials that could drain harmful materials into San Gregorio Creek; and the diversion of water from San Gregorio Creek. These activities and improvements require the issuance of a Coastal Development Permit, Planned Agricultural Permit, and Grading Permit.
On November 2, 2017, in response to the property owners appeal of administrative fines issued by Code Compliance staff, the Zoning Hearing Officer issued an administrative order requiring the property owner to: (1) remove and abate the unpermitted uses on the site, including the storage of construction equipment and materials storage unrelated on on-site agricultural use, (2) cease all unpermitted work by December 4, 2017, and (3) provide verification of the removal and abatement to the satisfaction of Planning and Building Department by December 4, 2017. The applicant has not complied with the administrative order.
Other violations include: recent (June 2018) construction of an unpermitted vegetable preparation building, using a converted cargo container, in a northwest section of the property; conversion of a barn to a residence with a bathroom addition; use of a storage container for an additional unpermitted housing unit (not shown on the revised site plan), and installation of an unpermitted solar array near the existing barn and house. The vegetable preparation building, converted barn and bathroom, converted storage container, and solar array structure are the subject of the Notice of Violation (VIO 2018-00142) issued by the County on June 9, 2018 (Attachment N). The Notice of Violation required corrective action by July 2, 2018, including, but not limited to, the removal of unpermitted structures or the submission of a revised PAD/CDP application to include these structures.
On June 18, 2018, the applicant incorporated a request to retain these unpermitted structures and uses into his pending after-the fact permit applications, and submitted a revised site plan (Attachment D) which shows the approximate location of the vegetable preparation building, bathroom, and solar array structure, as well as areas of agricultural cultivation.
State Law Violations - California Department of Fish and Wildlife
California Department of Fish and Wildlife (CDFW) personnel have documented various violations of the Fish and Game Code on the subject parcel and on adjacent parcels owned or leased by Richard Rogers. An Administrative Notice of Violation (ANOV, see Attachment J) was sent to Richard Rogers on May 23, 2012, following an inspection by Lieutenant James Ober and CDFW Environmental Scientist Suzanne DeLeon. The ANOV detailed violations associated with road and bridge construction, unauthorized water diversions, unauthorized grading and drainage ditches, and riparian destruction.
Lt. Ober conducted another site inspection on March 13, 2018, with California Senior Environmental Scientists (Specialists) Michelle Leicester and Heather McIntire, and Environmental Scientist Stephanie Holstege. A description of identified violations and the impacts of such violations to San Gregorio Creek and fish and wildlife resources are detailed in the report titled “Environmental Impact Assessment For the Property of Rogers, Richard K., San Gregorio Creek, unnamed tributaries and immediate vicinity, San Mateo County, California Department of Fish and Wildlife” (CDFW Report) dated May 10, 2018 (Attachment L).
CDFW personnel observed and documented activities on the subject property that substantially altered the bed, bank, and channel of streams, tributaries, and springs and placed fine sediment, petroleum products, and/or other deleterious material where it has and/or where it could pass into waters of the state. These activities consisted of:
1. A culvert with associated bank revetment, riprap, and placement of fill, installed at stream crossings without necessary permits;
2. Five (5) locations where placement of deleterious substances adjacent to or within the bed, bank, or channel were documented.
Violations identified in the 2018 CDFW Report on the subject property are listed in Table 1 below:
|
Table 1 Fish and Game Code Violations |
|
Site ID (locations as shown on the Map included in Attachment L) |
GPS/APN |
Description of Activities |
Violation Section |
Violation Description |
|
1 |
37.31267 N, -122.32883 W APN 082-120- 050 |
Parking lot discharging directly to creek (oil/ petroleum products) |
5650(a)(1) |
Pollution - deposition of deleterious substance (petroleum products) |
|
2 |
37.31223 N, -122.32944 W APN 082-120- 050 |
Parking lot sediment discharge directly to creek |
5650(a)(6) |
Pollution - deposition of deleterious substance (sediment) |
|
3 |
37.31235 N, -122.32953 W APN 082-120- 050 |
Dumped sediment from grading of illegal road and culvert clearing |
1602(a), 1602(e), |
Obstruction of streambed, placement of fill, failure to notify; |
|
|
|
|
5650(a)(6) |
Pollution - deposition of deleterious substance (sediment) |
|
9 |
37.31213 N, -122.32750 W APN 082-120-050 |
Leaking hydraulic equipment with no secondary containment placed in flood plain and within 150’ of top of bank |
5650(a)(1) |
Pollution - deposition of deleterious substance (petroleum product; (hydraulic fluid, oil, gas) |
|
10 |
37.31207 N, -122.32945 W APN 082-120-050 |
Road grading and construction with no permits, |
1602(a), 1602(e) |
Alteration of streambed, failure to notify |
|
|
|
Undersized culvert placed with no permits |
1602(a), 1602(e) |
Obstruction of streambed, failure to notify |
|
|
|
Placement of fill and riprap, unauthorized grading |
5650(a)(6) |
Pollution - deposition of deleterious substance (sediment) |
|
Note: ‘Parking lot’ is referred to as the ‘staging area’ by County staff. Source: Environmental Impact Assessment for the Property of Rogers, Richard K., San Gregorio Creek, unnamed tributaries and immediate vicinity, San Mateo County, California Department of Fish and Wildlife, May 10, 2018 (referred to as ‘CDFW Report’). While this table outlines violations on the subject property, additional violations on an adjoining property (APN 082-160-080) are also described in CDFW Report. |
State Law Violations - Cal-Fire
In addition to the CDFW documented violations above, California Department of Forestry and Fire Protection (Cal-Fire) Forester Richard Sampson has also documented violations of California Public Resources Code (PRC) by Richard Rogers on the subject property. Mr. Sampson evaluated the construction of over 1,000 feet of new road in addition to other areas where construction debris had been dumped into drainages and steep slopes.
Mr. Sampson determined the following:
1. The hillslope in that area meets the definition of “Timberland” under the Public Resources Code (PRC 4526).
2. Road construction which included cutting of Commercial Species (Douglas fir) and land clearing meets the definition of a Timberland Conversion which requires a permit (PRC 4621).
3. Timberland Conversions meet the definition of Timber Operations (PRC 4527) which require both a state harvest permit and a Licensed Timber Operator to complete the operation.
4. Both the Conversion Permit and the Harvest Permit would require review from San Mateo County Planning Staff.
5. None of the permits or licenses mentioned in points 2, 3 and 4 above were obtained for this work.
Impacts to Fish and Wildlife Resources
The CDFW Report describes that the impacts of activities such as waterway obstruction likely had a substantial deleterious impact to obligate aquatic organisms, such as fish and amphibians, which must have adequate stream flow to survive, and to a slightly lesser extent to terrestrial organisms which rely on the creek for drinking water. Reduced in-stream flow volume has been found to have a positive correlation with increased water temperature. Increased water temperatures can increase susceptibility to disease, and result in lower quantities of dissolved oxygen, which can impact and/or reduce survival of species, such as fish, aquatic insects and aquatic life stages of amphibians.
Evidence collected at the site by CDFW staff was indicative of petroleum-based deleterious substances, such as vehicle oil/fluids, hydraulic fluid, asphalt, and other unknown substances having been placed where they could enter waters of the state. Potential impacts to salmonids include, but are not limited to, morphological abnormalities during development in larval and juvenile stages, contamination of invertebrate food sources and resultant bioaccumulation of chemicals, and increased susceptibility to infestation by parasites after chronic exposure to petroleum hydrocarbons.
The CDFW Report also describes activities in violation of the Fish and Game Code that resulted in volumes of sediment being placed directly, or placed where they could potentially enter, into San Gregorio Creek or its tributaries. Fine sediment can have severe, long term detrimental effects to streams and waterways for long distances downstream of impacted areas/disturbed areas, and can impair the habitats for the wildlife that depend on them. Adverse effects associated with increased fine sediment include: 1) reduced survivorship of aquatic species because of low quality and complexity of habitat, due to blanketing of substrate and infilling of pools; 2) impacts of chronic turbidity and settled fine sediment on obligate aquatic species; and 3) a decrease in the production of freshwater benthic macroinvertebrates and algae due to substrate coating with fines or burial of substrates.
BACKGROUND
Report Prepared By: Camille Leung, Senior Planner
Applicant/Apellant: James Rogers
Owner: Richard Rogers
Location: 4448 La Honda Road, San Gregorio, CA 94074
APN: 082-120-050
Parcel Size: 114.44 acres
Zoning: Planned Agricultural District/Coastal Development (PAD/CD)
General Plan Land Use Designation: Rural/Agriculture
Williamson Act: Contracted Parcel (AP69-03). The applicant has submitted documentation which does not comply with the Williamson Act; documentation is insufficient to substantiate commercial agricultural use of the property and the property has not been confirmed to meet the income requirements for agriculture crops.
Existing Land Use: Agriculture, unpermitted construction equipment and materials storage use, existing single-family residence, existing greenhouses, six cargo containers, a carport, one barn, and three hoop houses in a northwest section of the property. A vegetable preparation building, bathroom, a converted storage container, and solar array structure were recently constructed on the property without permits.
Water Supply: Private well; unpermitted diversion on APN 082-160-080 from San Gregorio Creek
Sewage Disposal: Existing septic system serves the existing residence.
Flood Zone: Large portions of the property are in Zone X, Area of Minimal Flooding; portions of the property along San Gregorio Creek, including areas in the subject area of work are within Zone A (areas with 1% annual chance of flooding and a 26% chance of flooding over the life of a 30-year mortgage).
Setting: The project parcel is approximately 4 miles east of Highway 1 and lies within the watershed of San Gregorio Creek, which extends from the Santa Cruz Mountains to the Pacific Ocean. Generally, the property is steeply sloped and heavily vegetated, with the exception of areas bordering San Gregorio Creek. These flatter areas contain a hay field, 3 hoop houses, the “horseshoe road,” the single-family residence, and a barn that was, up until recently, used for the storage of equipment and excess materials (e.g., logs, asphalt grindings, concrete k-rails, soil stockpiles, bricks, and equipment parts).
Chronology:
Date Action
May 23, 2012 - California Department of Fish & Wildlife (CDFW) issues Administrative Notice of Violation for grading without permits by Richard Rogers, diversion of San Gregorio Creek by unpermitted grading and other violations of Fish & Game Code Section 1602 (Attachment J).
February 20, 2015 - County issues First Notice of Violation (VIO 2015-00056) for grading and stormwater violations.
May 25, 2015 - County issues Second Notice of Violation for grading and stormwater violations.
January 26, 2016 - County issues Third Notice of Violation and Stop Work Notice.
May 11, 2016 - Applications for the After-the-fact Grading Permit (PLN 2016-00195) and Planned Agricultural Permit (PAD) and Coastal Development Permits (CDP) (PLN 2016-00197) are submitted to the County.
July 26, 2017 - County issues Forth Notice of Violation and order to complete planning applications and abate public nuisance.
August 31, 2017 - County issues First Administrative Citation 2015-00056-1 for two separate violations (SMC Zoning Regulations 6328.4 and 6353 - Development in Planned Agricultural District without Planned Agricultural (PAD) Permit and Coastal Development Permit (CDP); SMC Building Regulation 9283 - Grading and Land Clearing without a permit). Administrative minimum penalty of $200.
September 13, 2017 - Request for Administrative Citation Hearing Appeal submitted to the County by Richard Rogers, the appellant.
October 3, 2017 - County issues Second Administrative Citation 2015-00056-2 (SMC Zoning Regulations 6328.4 and 6353) and (SMC Building Regulation 9283). Administrative minimum penalty of $400.
October 16, 2017 - A request for an Administrative Appeal Hearing was submitted to the County from the appellant for the second citation.
November 2, 2017 - Zoning Hearing Officer (ZHO) public hearing, where the ZHO found that, based on evidence presented in the staff report, materials submitted by the appellant, and testimony given at the hearing, the violations existed on the dates specified in the Administrative Citations (Nos. 2015-00056-1 and 2015-00056-2). The ZHO upheld both Administrative Citations and their associated fines, totaling $600.00, and issued an administrative order requiring the property owner to: (1) remove and abate the unpermitted uses on the site, including the storage of construction equipment and materials unrelated to on-site agricultural use, (2) cease all unpermitted work by December 4, 2017, and (3) provide verification of the removal and abatement.
April 9, 2018 - Agricultural Advisory Committee (AAC) unanimously recommended denial of the PAD permit and recommended non-renewal for the Williamson Act contract associated with the property.
May 10, 2018 - California Department of Fish and Wildlife staff completed an Environmental Impact Assessment (Attachment L) of the subject property.
June 9, 2018 - Due to new unpermitted construction, the County’s Code Compliance Section issued a Notice of Violation (VIO 2018-000142) for the vegetable preparation building, bathroom, converted storage container, and solar array structure.
June 18, 2018 - On June 18, 2018, the applicant provided a revised plan (Attachment D) showing cultivation areas, including six new hoop houses on prime soils near the creek, three existing hoop houses on non-prime soils, and an area intended for a tree farm on the other side of the “horseshoe road.” The applicant provided photos of recently established agricultural uses at the property, including hay production in the former staging area. The applicant also provided documentation intended to substantiate commercial agricultural use of the property. The revised site plan also included the vegetable preparation building, bathroom addition to the barn, and solar array structure.
July 11, 2018 - Planning Commission public hearing. Based on information provided by staff and evidence presented at the hearing, the Planning Commission denied the after‐the‐fact permits, based on findings that the development is inconsistent with the County’s General Plan, Local Coastal Program, and Grading Regulations.
July 25, 2018 - Applicant files an appeal of the Planning Commission’s decision to deny the permits.
October 23, 2018 - Project Planner and Code Compliance staff perform an inspection of the property with James Rogers. No additional unpermitted construction was observed. No active agricultural use was observed.
November 6, 2018 - Board of Supervisors public hearing.
DISCUSSION
A. SUMMARY OF APPEAL
On July 25, 2018, James Rogers (Appellant and Applicant) submitted an appeal of the Planning Commission’s denial. While the appeal form references an attached letter, no letter has been provided by the Appellant. However, in his letter to the Planning Commission, dated July 11, 2018, the day of the Planning Commission’s hearing on the project, he raised the following points, followed by Staff’s Response:
1. James Rogers asserts that work associated with the violations was performed by the previous property owner. James Rogers adds that the current owner (Richard Rogers) had assisted the previous owner, at the previous owner’s request, in clearing the creek when major storms and a “landslide closed the creek and prompted flooding of the adjacent property and endangering structures.” James Rogers states that the Owner has “performed no other work on the property than is required to amend, clean or farm the property.”
Staff’s Response: In a letter dated May 23, 2012, CDFW issued an Administrative Notice of Violation to Richard Rogers for grading without permits, diversion of San Gregorio Creek by unpermitted grading, and other violations of Fish and Game Code Section 1602 (Attachment J). Furthermore, while staff has confirmed that in 2012 the property was owned by a separate party by the name of Howell, the Appellant does not dispute that he performed grading to construct/improve the “horseshoe road” which is the main subject of the County’s enforcement actions, as described in this report. While this road may have been included in what the Appellant sees as work “required to amend, clean or farm the property,” County coastal and grading permits are required for such work and should have been obtained prior to initiation of the work.
2. James Rogers asserts that the current owner (Richard Rogers) has improved the property’s environmental condition since acquiring the property in poor condition 3 years ago. Refuting the May 10, 2018, CDFW report that documented five (5) locations where deleterious substances were placed adjacent to or within the bed, bank, or channel, James Rogers writes that “no contamination has been found on the property.” In addition, he attempts to refute the County’s claim that the current owner has dumped “construction debris and tires in the creek.” In the letter, James Rogers writes that the property contained “much debris and rubbish in all corners of the property.” He asserts that, in order to make the property usable, “over 30 high sider dump loads were removed from the property.” James Rogers adds that “after every rainstorm, there is an incredible amount of debris floating down the river” and that Richard Rogers “has pulled out many cars, tires, washing machines, shipping container[s], and travel trailers” from the creek.
Staff’s Response: As described above in this report, the CDFW Report documents the placement of deleterious substances adjacent to or within the bed, bank, or channel, with supporting photo documentation. Also, the CDFW Report documents the placement of construction debris (including asphalt grindings and bricks) and sediment within San Gregorio Creek to serve as a base for the “horseshoe road.” The Appellant has not provided adequate evidence to substantiate his claim that no such substances and/or materials were placed adjacent to or within the creek.
3. Arguing in support of maintaining the property’s Williamson Act Contract, James Rogers asserts that the Current Owner has improved the property’s agricultural productivity since taking ownership. James Rogers asserts that “the soil required amendments and conditioning to become farmable.” The owner had initiated a cattle grazing operation and is now transitioning the property into a crop farming operation, with the cultivation of winter hay for the last 2 years, and the initiation of the cultivation of vegetable crops in open fields and greenhouses this year.
Staff’s Response: As described above in this report, the Appellant has submitted documents related to agricultural operations at the subject property. Documents received on July 11, 2018 were previously submitted and reviewed by the County and found to be insufficient to substantiate commercial agriculture as required by the Williamson Act, as further discussed in Section 3 of this report. Therefore, staff recommends non-renewal of the subject Williamson Act Contract.
B. KEY ISSUES
1. Conformance with the General Plan
The subject parcel has a General Plan land use designation of “Agriculture.”
Policy 9.23 (Land Use Compatibility in Rural Lands) and Policy 9.30 (Development Standards to Minimize Land Use Conflicts with Agriculture) “encourage compatibility of land uses in order to promote the health, safety and economy, seek to maintain the scenic and harmonious nature of the rural lands; and seek to cluster development so that large parcels can be retained for the protection and use of vegetative, visual, agricultural and other resources.” As shown in plans submitted on June 18, 2018 (Attachment D), the applicant has recently constructed an unpermitted vegetable preparation building in a northwest section of the property. Four of the structures in the northeastern section of the property are not located in proximity to other structures as required. The applicant has also recently built a bathroom addition to the barn, an unpermitted solar array structure, and a converted storage container near the existing barn and house.
Policy 1.2 (Protect Sensitive Habitats) calls for the County to protect sensitive habitats from reduction in size or degradation of the conditions necessary for their maintenance. CDFW and County staff have identified violations which have resulted in significant impacts to San Gregorio Creek, the endemic, sensitive, and/or special-status species it supports and their habitat. Species that have likely been impacted include:
a. Two species of anadromous salmonids: CCC-ESU coho salmon (listed as endangered under both the federal and California Endangered Species Acts) and CCC-DPU steelhead (listed as threatened under the federal Endangered Species Act and as a California State Species of Special Concern)
b. Tidewater goby (listed as threatened under the federal Endangered Species Act and as a California Species of Special Concern)
c. California red-legged frogs (listed as threatened under the federal Endangered Species Act and as a California State Species of Special Concern)
d. Foothill yellow legged frog (currently a candidate for listing as threatened under the California Endangered Species Act, and as such is afforded the same protections under state law as if it were already listed)
e. San Francisco garter snake (listed as endangered under both the federal and California Endangered Species Acts; species has also received Fully Protected Species designation under Fish and Game Code Section 5050)
f. Marbled murrelet (listed as a threatened species under the federal Endangered Species Act and as an endangered species under the California Endangered Species Act)
As previously described, the manner in which the owner constructed the “horseshoe road” and staging area, as well as his use of the lands adjacent to San Gregorio Creek for the proposed construction equipment and materials storage use, were both unpermitted and degraded the creek and associated habitats. The road construction and storage use involved dumping of sediment, large debris, and trash into the creek, discharge of petroleum-based deleterious substances (such as vehicle oil/fluids, hydraulic fluid, asphalt, and other unknown substances), and creek diversion. As stated in the CDFW Report, adverse environmental impacts at the subject parcel as a result of the property owner’s activities have already occurred, continue to be ongoing, and will likely worsen with time. These activities were conducted without required Incidental Take Permit coverage in sensitive habitat adjacent to areas known to support federally or state-listed species of plants and animals. Planning staff, in consultation with CDFW staff, have determined that the “horseshoe road” cannot not be retained or maintained in a manner that adequately minimizes or mitigates the impacts of the project to critical habitat and species of San Gregorio Creek and, instead, the impacted area should be restored to a condition which existed prior to the violation. Therefore, as detailed in this report, Planning staff recommends denial of the after-the-fact Grading Permit.
Additionally, due to the nature of the materials associated with the construction equipment and materials storage use (such as sediment and petroleum-based deleterious substances), the proposed use has and will continue to have adverse impacts on agricultural resources and sensitive habitats. Staff therefore recommends denial of the requested PAD permit to legalize the existing use.
2. Conformance with the Local Coastal Program (LCP)
The property is zoned Planned Agricultural District and is located within the Agriculturally-Related Development Categorical Exclusion Area, which exempts agriculturally-related development that meets exemption criteria from the requirement to obtain a Coastal Development Permit (CDP). The exemption does not include grading for roads. Therefore, the project requires a CDP, which is appealable to the California Coastal Commission if the appeal is granted and the permit is approved. The establishment of residential uses on agricultural land, such as the converted barn and storage container that are being used for housing, also require a CDP that is appealable to the Coastal Commission if granted.
The legalization of the “horseshoe road” and proposed construction equipment and materials storage use (associated with VIO 2015-00056) also require a PAD permit, as road construction and storage are not a principally permitted uses on lands within the PAD Zoning District and do not meet the exemption criteria. The above referenced residential uses also requires a PAD permit.
Locating and Planning New Development Component
Policy 1.8 (Land Uses and Development Densities in Rural Areas) allows new development in rural areas only if it is demonstrated that it will not: (1) have significant adverse impacts, either individually or cumulatively, on coastal resources or (2) diminish the ability to keep all prime agricultural land and other land suitable for agriculture in agricultural production. The construction of the “horseshoe road” and the construction equipment and materials storage use meet the definition of new development. The road was completed and the storage use was initiated without permits; however, for review of these permit applications the road and use are considered new development. As described in the CDFW Report, the manner in which the road was constructed and the manner in which the owner conducts the proposed use have caused significant adverse impacts, both individually and cumulatively, on San Gregorio Creek and associated fish and wildlife resources.
Sensitive Habitats Component
Policy 7.1 (Definition of Sensitive Habitats) defines sensitive habitats as “any area in which plant or animal life or their habitats are either rare or especially valuable and any area which meets one of the following criteria: (1) habitats containing or supporting “rare and endangered” species as defined by the State Fish and Game Commission, (2) all perennial and intermittent streams and their tributaries, (3) coastal tide lands and marshes, (4) coastal and offshore areas containing breeding or nesting sites and coastal areas used by migratory and resident water-associated birds for resting areas and feeding, (5) areas used for scientific study and research concerning fish and wildlife, (6) lakes and ponds and adjacent shore habitat, (7) existing game and wildlife refuges and reserves, and (8) sand dunes. Sensitive habitat areas include, but are not limited to, riparian corridors, wetlands, marine habitats, sand dunes, sea cliffs, and habitats supporting rare, endangered, and unique species.” As described in the CDFW Report and the applicant’s biological report by MIG/TRA (Attachment M), the site contains State and Federal endangered species, Federal threatened species, State species of special concern, and State fully protected species, and meets the definition of sensitive habitat.
Policy 7.3 (Protection of Sensitive Habitats) (a) Prohibits any land use or development which would have significant adverse impact on sensitive habitat areas; and (b) requires development in areas adjacent to sensitive habitats to be sited and designed to prevent impacts that could significantly degrade the sensitive habitats. All uses shall be compatible with the maintenance of biologic productivity of the habitats. As described in the CDFW Report, the manner in which the road was constructed and the manner in which the owner conducts the proposed use has resulted in adverse environmental impacts at the property which have already occurred, continue to occur, and will likely worsen with time.
Policy 7.8 (Designation of Riparian Corridors) establishes riparian corridors for all perennial and intermittent streams and lakes and other bodies of freshwater in the Coastal Zone. The policy designates those corridors shown on the Sensitive Habitats Map and any other riparian area meeting the definition of Policy 7.7 as sensitive habitats requiring protection, except for manmade irrigation ponds over 2,500 sq. ft. surface area. Policy 7.11 (Establishment of Buffer Zones) establishes buffer zones on both sides of riparian corridors, from the “limit of riparian vegetation”, and requires the extension of buffer zones 50 feet outward for perennial streams and 30 feet outward for intermittent streams. It states that where no riparian vegetation exists along both sides of riparian corridors, buffer zones should be extended 50 feet from the predictable high water point for perennial streams and 30 feet from the midpoint of intermittent streams. San Gregorio Creek is a perennial stream. Based on Figure 5 of the MIG/TRA biological report (Attachment M) and Page C-1 of the Project Plans, it appears that portions of the “horseshoe road,” four of the nine proposed hoop houses, and the new vegetable preparation shed, are located within the 50-foot buffer zone of San Gregorio Creek.
Policy 7.4 (Permitted Uses in Sensitive Habitats) requires compliance with U.S. Fish and Wildlife and State Department of Fish and Game regulations. As stated in the CDFW Report, the manner in which the road was constructed and the manner in which the owner conducts the proposed use have resulted in environmental impacts and apparent violations of Fish and Game Code sections 1602, 5650 and 5652 (see Table 1).
Policy 7.33 (Permitted Uses in Areas with Rare and Endangered Species) requires that the County permit only the following uses: (1) education and research, (2) hunting, fishing, pedestrian and equestrian trails that have no adverse impact on the species or its habitat, and (3) fish and wildlife management to restore damaged habitats and to protect and encourage the survival of rare and endangered species. Also, the policy requires that, if the critical habitat has been identified by the Federal Office of Endangered Species, permit only those uses deemed compatible by the U.S. Fish and Wildlife Service in accordance with the provisions of the Endangered Species Act. Due to unpermitted grading work and violations documented by the CDFW Report, it is within the authority of the Planning Director per Section 9298.4 of the Grading Regulations to require restoration or remedial work of the property. Section 9298.4 states that, in determining what remedial action shall be required, the Planning Director shall consider restoration to original condition as the most appropriate remedy. The Community Development Director’s intent to initiate a restoration order is further discussed in Section 5 of this report.
Agriculture Component
Portions of the “horseshoe road” are located on prime soils. Other areas of the “horseshoe road” and the proposed construction equipment and materials storage use will not be located on prime soils.
Development on Prime Soils
Policy 5.5 (Permitted Uses on Prime Agricultural Lands Designated as Agriculture) allows the County to permit agricultural and agriculturally-related development on prime agricultural lands. The “horseshoe road” which is located on both prime and non-prime soils is used, in part, to access on-site agricultural uses. Policy 5.5 allows for non-residential development customarily considered accessory to agricultural uses including barns, storage/equipment sheds, fences, water wells water storage tanks, water impoundments, water pollution control facilities for agricultural purposes, and similar development such as roads. Agricultural use has only been recently established and, based on the scope of the proposed use, is secondary to the proposed use.
On April 9, 2018, the PAD permit application was reviewed by the Agricultural Advisory Committee (AAC). Commercial agriculture at the site does not meet the Williamson Act Program requirements as discussed in Section 3 of this report. Therefore, the AAC recommended denial of the PAD permit and denied an income exception for the existing Williamson Act Contract.
On June 18, 2018, the applicant provided a revised plan showing cultivation areas and six new hoop houses on prime soils near the creek, three existing hoop houses in a northwest section of the property, and an area intended for a tree farm on the other side of the ”horseshoe road.” He provided photos of recently established agricultural uses at the property, including hay production in the former staging area. He also provided documentation intended to substantiate commercial agricultural use of the property. These documents were not available for the AAC review. Staff has reviewed the documents and found the documents to be insufficient to substantiate commercial agriculture as required by the Williamson Act, as further discussed in Section 3 of this report.
The road is also used to access non-agricultural uses on Prime Agricultural Lands Designated as Agriculture, such as the proposed equipment and materials storage use, which the applicant proposes as a use ancillary to agriculture. Policy 5.5 allows the County to conditionally permit uses ancillary to agriculture, such as permanent roadstands for the sale of produce (provided the amount of prime agricultural land converted does not exceed one-quarter (1/4) acre), facilities for the processing, storing, packaging and shipping of agricultural products, and commercial wood lots and temporary storage of logs. The types of construction related uses and activities that are occurring and proposed to continue on the site represent the primary use of the site, and are not ancillary to agriculture.
Policy 5.8 (Conversion of Prime Agricultural Land Designated as Agriculture) prohibits conversion of prime agricultural land within a parcel to a conditionally permitted use unless all of the following can be demonstrated:
a. That no alternative site exists for the use: The “horseshoe road” is located adjacent to the creek and runs over three areas of prime soil. Based on non-compliance with many LCP policies as outlined in this section, Planning staff recommends restoration of the road area. Alternate access to areas indicated for farming have previously existed prior to road construction. Richard Rogers previously leased the adjoining property to the northeast (APN082-160-080), which provided access to the hay crop area (former staging area) via a bridge (labelled as “fire access” in Attachment D). After the “horseshoe road” is restored, the owner can access the hay crop area by leasing the adjoining property again or obtaining access easements from the property owner of the land. Other areas designated for farming are accessible without the road from the primary access bridge. Thus, this factor is not met.
b. Clearly defined buffer areas are provided between agricultural and non-agricultural uses. Page C-1 of Attachment D illustrates distinct agricultural areas and non-agricultural uses. However, the owner’s past practices and ongoing violations cause reason to question whether these buffers will be respected and retained.
c. The productivity of any adjacent agricultural land will not be diminished. The applicant has designated most areas of prime soils, excluding the area of the road, for agricultural use. However, the proposed use of non-prime agricultural land for non-agricultural activities, and the fact that these activities have and are likely to continue to encroach onto prime soils, reduces the overall agricultural productivity of the site.
d. Public service and facility expansions and permitted uses will not impair agricultural viability, including by increased assessment costs or degraded air and water quality. The CDFW Report describes that the construction of the road involved dumping sediment from road grading into the creek, which as described above, can have severe, long-term detrimental effects to streams and waterways for long distances downstream of impacted areas/disturbed areas, and impairing the habitat for the wildlife that depend on them. Thus, this factor cannot be met.
Due to non-compliance with the above criteria and non-compliance with other LCP policies as outlined in this section, Planning staff recommends denial of the appeal and the requested permits.
Development on Lands Suitable for Agriculture
Policy 5.6 (Permitted Uses on Lands Suitable for Agriculture Designated as
Agriculture) conditionally allows uses ancillary to agriculture on Lands Suitable for Agriculture provided all of the criteria in Policy 5.10 (Conversion of Land Suitable for Agriculture Designated as Agriculture) are met:
a. All agriculturally unsuitable lands on the parcel have been developed or determined to be undevelopable. The majority of the property is heavily sloped and vegetated. While areas proposed for storage (totaling 1.3 acres in size) are contiguous to areas of prime soils (current hay crop field) and have been farmed historically, the areas are sited within the remaining flat areas outside of the flood zone and prime soils areas, as shown on the Site Plan (Attachment D). This factor is met, in that there does not appear to be a better location for the proposed use on this property.
b. Continued or renewed agricultural use of the soils is not capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors (Section 30108 of the Coastal Act). The proposed areas of storage, is contiguous to prime soils and has been farmed historically. This factor is not met.
c. Clearly defined buffer areas are developed between agricultural and non-agricultural uses. While the proposed areas of storage are contiguous to prime soil areas and have been farmed historically, these areas are located on the periphery of the main areas proposed for agricultural use. However, there is good reason to question whether these buffers will be respected and retained given the property owner’s past and ongoing practices.
d. The productivity of any adjacent agricultural lands is not diminished, including the ability of the land to sustain dry farming or animal grazing. The applicant has designated a large 260,000 sq. ft. flat area, consisting of lands suitable for agricultural uses and other lands, as a tree farm. Proposed storage areas are located on the periphery of the main areas proposed for agricultural use. This factor could be met if the non-agricultural uses are contained within the designated area, and the stored equipment is properly maintained to avoid the discharge of pollutants.
e. Public service and facility expansions and permitted uses do not impair agricultural viability, either through increased assessment costs or degraded air and water quality. The applicant has submitted a list of equipment to be stored at the site (including two bulldozers, three loaders, two excavators, one grader, four trailers, one discing tractor, two water trucks, one portable saw mill, one wood splitter, four shipping containers, and four tool sheds). The applicant states that the listed equipment is used for both agriculture and construction.
The type and extent of the proposed equipment and materials storage uses exceed the extent to which the property is used for agricultural purposes and is thereby the primary use of the property. The dominance of this non-agricultural use impairs the agricultural viability of the property by consuming land that would otherwise be available for agricultural production, and by discharging pollutants that have deleterious impacts on soil and water quality. This factor is not met.
Due to non-compliance with the above criteria and non-compliance with other LCP policies as outlined in this section, Planning staff recommends denial of the appeal and the requested permits.
3. Compliance with the Williamson Act
In 2013, the Board of Supervisors adopted the Williamson Act Uniform Rules and Procedures. The Program identifies minimum eligibility criteria (e.g., land use designation, income requirements, etc.) for contracts, exceptions for certain criteria and limitations of compatible uses (non-agricultural uses) as they relate to agricultural uses on the property. Through this Program, the Agricultural Advisory Committee (AAC) and Agricultural Commissioner, in certain circumstances, are charged with reviewing contract Program compliance and exception requests for recommendation to the Board of Supervisors.
The property is under an active Williamson Act contract (AP69-03) entered into by Tom, Elsie, and Eugene Pastorino in 1969. The applicant states that hay production is the ongoing qualifying commercial agricultural operation and provided two lease agreements between the landowner and two different lessees initiated on January 1, 2018. However, the information provided is not sufficient to substantiate a commercial agricultural use, where full compliance with the Williamson Act would need to demonstrate such use over the previous 3 of 5 years.
The County’s Williamson Act Program requires that, the Agricultural Advisory Committee (AAC) review exceptions to the minimum income requirements for agricultural commodities and issue a Determination of Compatibility for non-agricultural (compatible) uses on the property. Staff recommends contract non-renewal based on non-compliance with the Program, as discussed below.
a. Minimum Requirement for Crops
As a qualifying commercial agricultural operation, the sale of agricultural commodities requires a minimum of $10,000 in annual sales per parcel. The applicant has not provided a current Schedule F Profit or Loss from Farming form as requested by staff. The applicant has only provided tax documentation for reporting of self-employment income of $5,300 for 2017.
On April 9, 2018, the AAC recommended denial of PAD and CDP permits and denied the income exception for the existing Williamson Act Contract.
On June 18, 2018, the applicant provided a revised plan showing cultivation areas and six new hoop houses on prime soils near the creek, three existing hoop houses in a northwest section of the property, and an area intended for a tree farm on the other side of the ‘horseshoe road”. He provided photos of recently established agricultural uses at the property, including hay production in the former staging area. He also provided documentation intended to substantiate commercial agricultural use of the property. After review of the documents, staff has found that the minimum income requirement of $10,000 has not been met and only 1 year of reported income was noted, for which staff has not received the Internal Revenue Service accepted document. In order to maintain compliance with the Williamson Act Program, the applicant must have met the income requirement for the past 3 of 5 years. While it is understood that Richard Rogers did not have ownership of the property before mid-2015, the tax benefit received from an active contract assumes ongoing commercial agriculture. At this time, the County’s compliance review of this contract would be “non-compliant with a recommendation for non-renewal.” At some point in the future, Richard Rogers may begin a new contract provided establishment of a commercial agriculture operation for 3 of 5 years and compliance with all other Williamson Act Program criteria.
b. Determination of Compatibility
In order to make a Determination of Compatibility (DOC) as required by the Williamson Act Program, the Agricultural Advisory Committee reviews existing and proposed compatible uses to determine whether the uses are compatible with and incidental to the agricultural use on the parcel. On April 9, 2018, the AAC recommended denial of the permits and did not issue a DOC based on the determination that the proposed construction and equipment storage use was not compatible with and incidental to the agricultural use on the parcel.
The following is an analysis of the property’s compliance with DOC criteria:
(1) The primary use of the parcel would continue to be existing commercial agriculture. As discussed above in Section 3.a, based on the documentation provided to staff, the on-site agricultural use has not been adequately substantiated and does not meet Williamson Act Program requirements (namely the $10,000 per year income requirement for a commercial agricultural operation). Therefore, the proposed construction equipment and storage use appears to be the primary use of the parcel.
(2) The proposed compatible use would not substantially interfere with the existing agricultural use on the subject parcel or any other property within the AGP: As discussed above in Section 2 in relation to LCP Policy 5.6(5), the equipment and associated materials proposed for storage at the property are neither secondary to nor compatible with agricultural uses.
(3) The proposed compatible use would not hinder or impair agricultural operations in the area by significantly increasing the permanent or temporary human population of the area. The proposed use involves the on-site use and storage of equipment and materials for agricultural use and property and road maintenance. The applicant has not indicated a need for additional employees. Therefore, the proposed use is not likely to increase the permanent or temporary human population of the area.
(4) The proposed compatible use would not significantly displace or impair current or reasonably foreseeable agricultural operations on the parcel, or any other property within the AGP. As discussed previously, the equipment and associated materials storage is neither secondary to nor compatible with agricultural uses. Under the current proposal, in which income requirements for commercial agriculture have not been met, the proposed use of equipment and materials storage is the primary use of the property. The dominance of this use impairs the agricultural viability of the property by consuming land that could be used agriculturally and degrades soil and water quality.
(5) The remaining portion of the parcel not subject to the proposed compatible use would be able to sustain the agricultural use. The applicant has proposed all areas of prime soils, with the exception of a portion of the ‘horseshoe road’, for agricultural use and a large 260,000 sq. ft. flat area, consisting of land suitable for agricultural uses and other lands, for a tree farm.
Should the Board of Supervisors authorize the Notice of Non-Renewal (Attachment R), the filing of this document would begin the 9-year non-renewal contract phase out process. Following the end of the 9 years, the contract will expire and then only normal zoning restrictions would apply.
Pursuant to the California Land Conservation Act of 1965, a property owner may file a written protest (appeal) of a County-initiated Notice of Non-Renewal. In filing a written protest, a landowner has up to 3 years to substantiate compliance with the County’s Williamson Act Program in order for the parcel to remain under contract. If evidence of compliance is submitted, the County may withdraw the Notice of Non-Renewal thereby retaining the contract. Otherwise, the Board may deny the appeal which would result in lifting of the property tax stay and continuing the 9-year non-renewal phase out until contract expiration.
4. Conformance with Zoning Regulations
In order to qualify for approval and issuance of a PAD Permit, the project must comply with the substantive criteria for the issuance of a PAD Permit, as applicable and as delineated in Section 6355 of the Zoning Regulations. An analysis of project compliance with criteria for conversion of Prime Agricultural Lands and criteria for conversion of Lands Suitable for Agriculture and Other Lands is discussed in Section 2 of this report in relation to LCP Policies 5.6 and 5.8.
Analysis of Project Compliance with Other Criteria for a PAD Permit
The proposal does not comply with the following applicable policies:
a. The encroachment of all development upon land which is suitable for agricultural uses and other lands shall be minimized. Proposed storage locations (totaling 1.3 acres in size) are outside of areas of prime soil but are located upon lands suitable for agricultural uses and other lands, as shown on the Site Plan (Attachment D). These lands, are contiguous to prime soil and have been farmed in the past. The use of 1.3 acres of previously farmed land for construction storage is inconsistent with regulations that require such conversions to be minimized.
b. Development shall be located, sited and designed to carefully fit its environment so that its presence is subordinate to the pre-existing character of the site, and its surrounding is maintained to the maximum extent practicable. The manner in which the owner has constructed the ‘horseshoe road’ and his conduct of the proposed use has resulted in significant environmental impacts, as described in the CDFW Report.
Sensitive Habitats: Grading, vegetation removal, and in-stream work associated with the construction/improvement of the ‘horseshoe road’, which runs alongside the creek, has impacted San Gregorio creek and associated riparian areas. Work was completed without required permits from both the County (Coastal Development, Grading, and Building Permits) and CDFW (Streambed Alteration Agreement). On May 23, 2012, CDFW issued an Administrative Notice of Violation of Fish and Game Code Section 1602 (Attachment J). Impacts to creek and riparian areas are outlined in that Administrative Notice of Violation, include dumping of sediment into the creek and discharge of petroleum-based deleterious substances (such as vehicle oil/fluids, hydraulic fluid, asphalt, and other unknown substances). The violation case is still pending and has not been resolved.
Geologic Hazards: As shown on the Geotech and Grading Plan (Attachment E), the applicant has placed boulders as a stabilization measure in areas of large road cuts and landsliding. The County’s Geotechnical Consultant has reviewed the measures and states that the measures are not adequate to properly stabilize the roadway alignment. To stabilize the roadway alignment, the large active landslide (Area F on Attachment E) that is moving beneath the roadway (probably moving fractions of an inch per year) would need to be stabilized. The actively moving landslide which has a depth on the order of 40 feet would likely require subsurface “stitch piers”, where a mass grading solution is not viable because of environmental impacts. These would be cylindrical concrete and steel reinforced piers on the order of 2 to 3 feet in diameter extending about 60 feet in depth (if lateral tie-backs were also used to help add lateral support to the piers). The plans as proposed the plans are not adequate to ensure the stability of the road, which is necessary to support the proposed use. It will likely be infeasible for the applicant to accom-modate the cost of these measures and obtain required permits from both the County and CDFW for the completed work and the additional geotechnical work due to the significant environmental impacts of associated with the construction/ improvement of the ‘horseshoe road’.
c. No use, development or alteration shall substantially detract from the scenic and visual quality of the County; or substantially detract from the natural characteristics of existing major water courses, established and mature trees and other woody vegetation, dominant vegetative communities or primary wildlife habitats. See discussion of impact to Sensitive Habitats above.
d. Where possible, structural uses shall be located away from prime agricultural soils. Portions of the ‘horseshoe road’ are located in areas of prime soils. Also, the applicant proposes six new hoop houses are located on prime soils. Proposed storage locations are shown by the submitted maps as being outside of areas of prime soil, but have and will likely continue to encroach onto prime soils.
e. All development permitted on a site shall be clustered. Areas of flat land which are outside of flood zones and prime soil areas are limited at this property. The applicant proposes to cluster four areas of storage (totaling 1.3 acres in size) in a southeast portion of the property. As shown in plans submitted on June 18, 2018, the applicant has recently constructed an unpermitted vegetable preparation building in a northwest section of the site. Four of the structures in the northeastern section of the property are not located in proximity to other structures. The applicant has also recently built an unpermitted bathroom and unpermitted solar array structure near the existing barn and house.
5. Conformance with Grading Regulations
Per Section 9290 (Grading Regulations) of the County Ordinance Code, the following findings must be made in order to issue a grading permit for this project. Staff’s review of the project is discussed below:
a. That the granting of the permit will not have a significant adverse effect on the environment. As described previously in this report, the grading activities associated with the construction of the ‘horseshoe road’ have caused significant environmental impacts to San Gregorio Creek, associated habitat, and fish and wildlife.
b. That the project conforms to the criteria of Chapter 8, Division VII, of the San Mateo County Ordinance Code, including the standards referenced in Section 9296. As described in Section 4.b of this report above, the geotechnical measures implemented by the applicant are not adequate to properly stabilize the roadway alignment. To stabilize the roadway alignment, the large active landslide (Area F on Attachment E) that is moving beneath the roadway (probably moving fractions of an inch per year) would need to be stabilized
c. That the project is consistent with the General Plan. As described in Section 1 of this report, the project does not comply with General Plan policies to minimize land use conflicts with agriculture nor policies pertaining to the protection of sensitive habitat.
As the project does not meet the required findings for the issuance of the requested after-the-fact Grading Permit, Section 9298 (Enforcement) requires the Community Development Director to enforce the provisions of Grading Regulations. The regulations require that, if the Community Development Director determines that grading or clearing has been done without a required permit, or that grading or land clearing has been done in violation of any of the terms and conditions of an issued permit, or that any person has otherwise failed to comply with these regulations, the Community Development Director shall do the following:
a. Direct that a Stop Work Order be issued on all construction being carried out on the property affected by the violation, if one has not yet been issued under Section 9299.1. On January 26, 2016, the County issued a Stop Work Notice for grading and stormwater violations.
b. In the event that any violation presents an immediate threat to the public health or safety, require that the property owner or permit applicant, as may be appropriate, take such steps as are necessary to protect the public health or safety, in accordance with the procedure set forth in Section 9298.3. The violations pose a threat to public health and safety by causing significant adverse impacts to important environmental resources. The submitted application does not include the actions necessary to protect the public from these impacts, leading, as a result, to the need for a restoration order.
c. Require that the property owner or permit applicant, as appropriate, prepare and implement a grading plan which meets the requirements of the Grading Regulations and which accomplishes one of the following:
(1) Restores the property to the condition which existed prior to the violation;
(2) Requires such remedial work as is necessary to make the grading or land clearing work already completed conform with all requirements of the Grading Regulations;
(3) Requires such remedial work as is necessary to mitigate impacts of the grading work so that such work conforms as nearly as possible to all requirements of this chapter. The Community Development Director’s determination shall be guided by the factors set forth in Section 9298.4.
Section 9298.4 (Restoration or Remedial Work) states that, in determining what remedial action shall be required, the Planning Director shall consider restoration to original condition as the most appropriate remedy, conformance with all requirements of the Grading Regulations as the next most appropriate remedy, and mitigation to conform as nearly as possible to the requirements of the Grading Regulations as the least appropriate remedy. In making the necessary determination, the Planning Director shall consider:
a. The amount of grading which has been done in violation of this chapter.
b. The amount of grading which would be necessary to either restore the property to its original condition or to bring the grading into conformance with the requirements of the Grading Regulations.
c. The environmental damage which would occur as a result of either restoring the property to its original condition or bringing the grading into conformance with the requirements of the Grading Regulations.
d. The economic feasibility of either restoring the property to its original condition or bringing the grading into conformance with the requirements of the Grading Regulations.
e. The degree of culpability of the person committing the violation.
f. Any other factor relevant to a proper determination of the matter.
This section also states that, before any work may commence, the property owner or permit applicant, as appropriate, shall provide a bond or other equivalent security, in the amount estimated for completion of the work. In the event the property owner or permit applicant fails to do the required work, the Community Development Director shall direct that the proceeds of the security be used to complete the required work.
Restoration Order and Further Enforcement
In consultation with County Counsel and CDFW staff, and in the event that the Board of Supervisors denies the appeal and requested permits, the Community Development Director will pursue a Restoration Order to require the restoration of the area of the “horseshoe road” to the condition prior to the violations and the restoration of other impacted areas with documented violations. The Community Development Director will require a bond or other equivalent security in the amount estimated for completion of the work. The County will consult with CDFW staff regarding the scope and method of the restoration work.
For non-grading related violations, Code Compliance will continue to pursue enforcement of corrective measures pertaining to the removal of non-agriculturally related equipment, materials, and pollutants, the unpermitted construction of the vegetable preparation building, bathroom, converted storage container, and solar array.
B. ENVIRONMENTAL REVIEW
Regarding the appeal of the Planning Commission’s decision to deny the requested permits, pursuant to Section 15270 (Projects Which are Disapproved) of the California Environmental Quality Act (CEQA) Guidelines, CEQA does not apply to projects which a public agency rejects or disapproves.
Regarding non-renewal of the subject Williamson Act Contract, the project is exempt from environmental review pursuant to the CEQA Guidelines, Section 15061(b)(3); the action has no potential for causing a significant effect on the environment, and therefore, is not subject to CEQA.
C. REVIEW BY THE CALIFORNIA COASTAL COMMISSION (CCC)
The California Coastal Commission was sent a project referral on February 20, 2018. No comment letter was received.
D. REVIEWING AGENCIES
County Building Inspection Section
County’s Geotechnical Consultant
County Code Compliance Section
California Historical Resources Information System (CHRIS)
California Department of Fish and Wildlife (CDFW)
California Coastal Commission (CCC)
California Department of Forestry and Fire Protection
County Counsel has reviewed and approved the materials as to form and content.
FISCAL IMPACT:
Code Compliance staff has and will continue to pursue administrative fines and other remedies to cover the costs of enforcement and abatement. The District Attorney is also pursuing civil penalties against Richard Rogers for violations of the Fish and Game Code, Health and Safety Code, and Business and Professions Code.
Non-renewal of the subject Williamson Act Contract will gradually increase property tax revenues and remove the tax subsidy reserved for properties that meet Williamson Act requirements for agricultural production.
ATTACHMENTS
A. Recommended Findings of Denial
B. Vicinity Map
C. Site Plan, submitted January 9, 2018
D. Revised Site Plan, submitted June 18, 2018
E. Geotech and Grading Plan, submitted January 9, 2018
F. Flood Zone Map, submitted January 9, 2018
G. Application for Appeal, dated July 25, 2018 (Note: No additional letter was submitted)
H. Letter of Decision for the Planning Commission Hearing of July 11, 2018
I. Letter from James Rogers, dated July 11, 2018
J. CDFW Administrative Notice of Violation of Fish and Game Code Section 1602, dated May 23, 2012
K. Code Compliance Section Letter, dated July 26, 2017
L. CDFW Environmental Impact Assessment for the Property of Rogers, Richard K., San Gregorio Creek, unnamed tributaries and immediate vicinity, San Mateo County, dated May 10, 2018 (Note: While this staff report outlines violations on the subject property, additional violations on an adjoining property (APN 082-160-080) are included in the CDFW Report.)
M. Biological Resources Evaluation, Skylonda Equipment, APNs 082-120-050, 082-120-040, and 082-160-040, San Mateo County, California, prepared by MIG/TRA Environmental Sciences, Inc., dated May 2016.
N. Notice of Violation (VIO 2018-00142) issued by the County on June 9, 2018.
O. Site Photos
P. Letter from Applicant to Melissa Ross (Senior Planner), dated June 17, 2018.
Q. Resolution authorizing the Planning and Building Department to file a Notice of Non-Renewal of a California Land Conservation Contract
R. Notice of Non-Renewal of California Land Conservation Contract
Note: Attachment M is available online at:
<https://planning.smcgov.org/events/planning-commission-hearing-jul-11-2018>