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Home My WebLink AboutCorrespondence Received on September 15, 2008 from Worden Williams, APC SEP. 15. 2'008; 2:42PM MGRDEN W-ILLIAMS APC NO, 1089 P. 1 I (ORDEN WILLIAMS, APC 462 STEVENS AVENUE, SUITE 102, SOLANA BEACH, CALIFORNIA 92075 PHONE: (858) 755-6604 E:Mail: info@wordenwilliams.com FAX; (858) 755-5198 Web Site:www.wordenwilliams.com FACSIMILE TRANSMISSION _ Date September 15, 20p8 Total Sheets: it 4 (Including Cover Sheet) TO: Planning Comriission City of Palm Desert, Community Development Department Fax No.: (760) 340-0574 Phone No.: (760) 346014.)611 P1NY: D. Way ne Brechtel " Re: Case No.TT 31676 - Comishe Of Bighorn Ite�rr i Letter dated September 15, 2008 rn Comments: For your immediate attention. Original Mailed: Yes -Xca. No ,. uA JOR OFFICE USE ONLY ajiz'T CODE: SIECLW-034 CLIENT NAME: MATTER NAME: CONFIDENTIALITY NOTICE The document accompanying this FACSIMILE transmission may contain confidential information which is legally privileged. The information is intended only for the use of the individual or entily named above. If you are not the intended recipient,or the person responsible for delivering it to the intended recipient,you are hereby notified that any disclosure,t opshng,dlsmbutlon or use of any of the information contained in mis transmission is shim PRQI-IIis t1,D If you have received this transmission in error,please Immediately notify tie by telephone and mail the original trenemicsion to us. Thank you. r Received,. Sep-15-08 02:47pm From- To-CITY OF PALM DESERT Page 01 SEP. 15. 2008 2:42PM WQRDEN ,WILLIAMS APC NO. 1089 P. 2 (..4w > i,; , - :I ' ORDEN WILLIAMS -APC Representing Public Agencies,Private Entities,and Individuals September 15, 2008 Via Facsimile and U.S. Mail AREAS OF PRACTICE ' PUBLIC AGENCY LAND USE AND ENVIRONMENTAL Honorable Planning Commission l city of Palm Desert- ,,,; . . REAL ESTATE Community Developr ient•Departrnent PERSONAL INJURY 73-510 Fred aring Drive ESTATE PLANNING ", Palm Desert, California' 92260-2578 AND ADMINISTRATION CIVIL LITIGATION Re; Case No. Tr.31676 - Cornishe Of Bighorn BUSINESS ' ;,fit., a; .444 .4% , Honorable Chair and Members of the Planning Commission: ATTORNEYS This office represents the Sierra Club and the Center for Biological Diversity with TRACY R.RICHMOND regard to matters involving Peninsular bighorn sheep, We write to urge denial of D.WAYNE BRECHTEL the above project because the impacts to the Bighorn Institute's lambing program KEN A.CARIFFE have not been reduced to below significance. Further, the proposed project would represent an unacceptable violation of the commitment to maintain a 400 TERRY M.GIRDS yard buffer between development and the Bighorn Institute and would jeopardize KRISTEN MBRIOE the,ongoing recovery of the endangered Peninsular bighorn. o,OwIG T WORDEN Of CounsaI Jet, The Bighorn-,Institute's. work is a critical part of the Recovery Program for W.SCOTT WILLIAMS Peninsular bighom„sheep. The entire Coachella Valley's population of bighorn Refired 1wwill be affected if,,the captive breeding and wild population augmentation Recovery Program at the Institute is impacted. The City and the region stand to OFFICE ene&from the sucgess of the lambing program. We urge the City to require the ab2 STEVENs AVENUE ' project proponents to design an alternative that honors the 400 yard buffer SUITE 102 previously established as the minimum distance necessary,to avoid impacts to the SOLANA BEACH Bighorn Institute. CALIFORNIA 92075 The City has no authority to modify the 400 yard buffer because it is a mitigation (B58)755-6604 TELEPHONE measure for a different project, now referred to as The Canyons, and was adopted (656)755.5198 FACSIMILE as,,a condition of approval-for that project in June, 1997. If the City wants to wwwwordenwililams,com modify this mitigation measure, then the City will have to amend the approval for 'The Canyons project by requiring additional mitigation of The Canyons prior to modifying the 400 yard buffer. The fact that the buffer property may have , , I . ., A Y Received'°'`,Sep-15-08 02:47pm From- To-CITY OF PALM DESERT Page 02 4 SEP. 15. 2008 2:42PM WORDEN WIL.LIAMS APC NO. 1089 P. 3 Planning Commission VV September 15, 2008 Page 2 been sold to another entity after The Canyons project approval does not eliminate the buffer condition. The new buyer purchased the property with full knowledge of the buffer condition, and it is entirely proper to hold the new property owner to the standard which was in place prior to the ownership transfer. The City has made previous CEQA findings indicating that the 400 yard buffer was necessary. The statements in the Staff Report that the 400 yard buffer number has no scientific basis are not supported by the evidence in the record. As the Staff Report indicates, over 40 biologists with knowledge of bighorn sheep were consulted before the 400 number was selected. (Staff Report, p. 12.) While the biologists did not agree, nevertheless, the 400 yard number was selected based on the input of over 40 scientists. To now indicate that the number is meaningless is simply not credible. The comparisons in the Staff Report and the letter from Patrick A. Perry suggest that because the Bighorn Institute's Executive Director's house is closer than 400 yards, there should be no issue with the proposed private development being within the 400 yard buffer_ This;is not a proper,comparison. There is a huge difference between the uses that are Conducted by Institute staff, which are to facilitate the lambirwg program, and the uses that would be conducted,ort a_private,.lot. Activities of all Bighom Institute staff are carefully regulated to ensure that;thy,coo not harm the captive breeding program. The same level of restriction would not be possible with respect to privately developed parcel within the 400 yard buffer. There is no evidence that the I-Iillside Limited Alternative is infeasible. The City's proposed finding that this alternative is impractical and infeasible is conclusory, and is not supported hy:substantial evidence.. The Hillside.Limited Alternative was not analyzed in enough detail tp;document these.conclusions. The fact that the alternative may need a U.S. Army Corps of Engineers permit is,not evidence of infeasibility. Certainly, such a project may be less desirable, given that the down valley views may be reduced, but that is not evidence of infeasibility. The City cannot make the finding that feasible mitigation measures have been implemented until this) env1ronmgntally superior alternative is explored in greater detail. The,City also cannot make the finding that the design of the tract map or the proposed iniwovernents are not likely toy„cause substantial environmental damage or substantially and av9, bly injure fish or=wildlife or their habitat. ,;(Finding number 3 in the draft resolution approving the Tract Map,.) Finally,;the City has no ability to enforce the mitigation measure prohi iting dogs ton the properly, making the mitigation measure meaningless. Tha Statement of Overriding Considerations seems to suggest that the whole problem is the fault of the Bighorn ;Institute for locating the lambing pens in the current location. Apparently the.Bighorrr; Institutes located its pen facilities "with full knowledge, or with the potential for full knowledge." (Staff Report, p. 26.) In other words, the Institute should }. f a 4 .1�,� 14°' Via. o RacaiuBd l"'Sap-15-08 02:47p1m From- To-CITY OF PALM DESERT Paga 03 SEP ,15. 2008 2;43PM WORDEN WILLIAMS APC Na 1089 P. 4 Planning Commission September 15, 2008 Page 3 , have known that the City`woulde be willing to approve development without appropriate "Mitigation in violation of State law; that the City would be willing to enter into settlement agreements without the intent to honor them; and that the City would be willing to ignore previous CEQA findings regarding the establishment of the 400 yard buffer as mitigation for significant impacts. Suffice it to say, we do not accept Staffs position that the City's prior to tvmmitment to a 400 yard buffer was a meaningless gesture. The more relevant argument is that, as detailed in the letter from Patrick A. Perry of Allen Matkins dated September 8, 2008, Comishe acquired the property in 2003, long after the 400 yard buffer which limits the development potential of the property, was in place. Cornishe knew about this development restriction, and purchased the property anyway. Cornishe cannot now claim that such a restriction is a "taking". Consideration of the Cornishe at Bighorn proposal must be delayed until adequate environmental review is completed. The environmental review must include consideration of additional mitigation measures and alternatives. They should, at minimum, honor the long,standing commitment to:400,yard buffer:to protect the ongoing work of the Bighorn Institute. To do otherwise would be a violation of the City's ethical and legal obligations to prevent harm to an endangered species in violation of both State and Federal law. We sincerely hope the .:City agrees. and denies: the project as proposed and directs that additional environmental review and project modifications be done to ensure any new proposal honors the 400 yard buffer. Sincerely, WORDEN WILLIAMS:, APC , DWayne Brechtel dwb@wordcnwilliamc.com DWB:lg cc: Client • Received Sep-15-08 02:47pm From- To-CITY,OF PALM DESERT Page 04