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Home My WebLink About0916I1 � i ' ► ► ► � 11 11 � 11 = i • 1 1 : B. LANDSCAPE COMMITTEE Commissioner Limont indicated that the next meeting would be September 17. C. PROJECT AREA 4 COMMITTEE Commissioner Schmidt was unable to attend. Ms. Aylaian reviewed the issues before the committee. D. PARKS & RECREATION Chairperson Tanner provided information on the issues before the Parks & Recreation Commission. XI. COMMENTS Commissioner Schmidt complimented staff on this presentation. She knew hundreds of hours had to go into it and thought it was really well done. She wasn't sure Phil Joy could hear her, but she wanted him to know that. Ms. Aylaian said she would pass that along. XII. ADJOURNMENT It was moved by Commissioner R. Campbell, seconded by Commissioner Schmidt, adjourning the meeting by minute motion. Motion carried 5-0. The meeting was adjourned at 8:00 p.m. ^------� ;. - y LAURI AYLAIAN, Secretary ATTEST: �,..--. % � ,�i.J'.. /,� / /�� z�-,..�-- VAN G. TANNER, Chair Palm Desert Planning Commission /tm 34 THE - ��- � 1/1/i LLIAMS LINABERG LAW FIRM, P� Septe�,u,ber 16, 2008 Vi� Facaimui�e 760-341-OS'74 Mr. Phit Joy, Associat� Planaer City of Palm Desext, Community Deve�opment Depar6ment 73-5 � 0 Fred Waring Ihive patm Desert, CA 92260-25?8 Re: Co�nr�ents on Final Eavu�onmental �mpact Re�ort on Cornishe of Bighora Project Dear N�. Joy: � �buis law office has the pleasiue of representing Bighorn Znstitute, a Ca�i�ornia non-pro8t researc�r orgami�ation located in thc County of �Liverside, iznmediate�y ad}acent to the pi�oposed Canishe of Bighora Project. �'hxs letter communicates the Institute's cvmments on the Finat Enviro�me�tal iTmpact Report (FEIIt) for Corn�ishe of Bighom (#200409�012) ax�d the City of Pa1ru Desert's StaffReport (3takffReport) for the Sept�rnber ],6, 2008 Pl�ning Commission pub�ic beaiing regarding. Cornishe o:f Bighom (Case No. TT 31676J: We rema�n adaman�ty opposed. to the cwrent pYa�s for the Cornisbe of Bighom projcct. � One o�ous main concerns is a shocipi�n�g i�t�accuracy in the Exeeutive Suz.txtna�y of the StaffReport (pg. �) rege�rding to tt�c captive herd, which incorrect�y stat�s, "The_sheep be]ong to the B�gt�orn Institute." The endangered Pe�o�sular bighorn sheep is a public trust species aad all of th�rn, including those �n the captive herd, aze the property of the public �nd are under the managemec�t jwoisdiction of the state and �edecal government Bighorn InsHtute acts mez�ely as caretakers of the captive k�e�rd. The Institute holds a,fed�a110(a)(1}(A) pennit and has ezatered a �e�oxandum of Unde,rstanding witk� and operates completely v.t�de�r th� supezvision and direction o�ihe Un�ted States Fish and Wildlife Sezv�'tce and Califomia Departme�t vf Fish aud Gama. We rzote, conversely, that the Cornishe oi Bigharn develope� doe9 not hold these rec�uired penmits, as discussed �uz�ther be�ow. . !:1'yCoxldad�3E9b0A i2361 �DOC 100 RAYvgW CIACLE Svust+ TowFat, StarE i 30 New�o�t �F,nCa, CA 92666-2994 TELEPHON E: 94�.8 3 3• 3088 FncseNtt.�: 949-83 3• 3 058 W � � WIi-LA W � COM jCAA fC WM$Q WLF-LA W. COM P�,EnsS �Srr oUn wanLoc, tvww. n tTPLItsF'r'H . A �RT�C,,,OM, PQtt DAtLY L�6�L N6W5 AND aBSERYAT[OHS THE w�� L1NdBERG LAW FIRM, i?G Nu. Phil Joy, Assoc�iate P�suner Segtember 16, �008 PagE 2 There is a conti.nu�d, blatau� disregard for the �Znportaac� tfie cagt�ve hcrd has in the zole o£Pezunsul� bighor,a sheep rccove7y. '�'he FEIR recogn�ze� that thcrc aze st�,l� significant; wimi;tigablc impacts to the capt�vc herd at Hxghora Institute w�t�a tlus projcct (FE�R pg. �I-4 and II=14). A,s such, we remain se�riously concern� fox tho welfar� oFthe federal- and state- chartercd re�covexy p�rograzn for the endangerec� Peninsulaz bigb.ona shecp and the cap#ive herd at Bigb;oxn Insdtut�. Bighorn, bastitute has released 124 bigham into the wi�ld since 1985, s.nd currently 67% of the 8an Jac�to Ma�mtaims population of bigho�cn eonsists of sheep ei.ther released fram ihe Insritute or ot€spring of captive-reared shecp. In 2002, the San Jacinto ewe gmup dropped to ,yust 4 adutt ewes and thc h�r� was in seziovs dangcr of dyi,x�tg ou� The state and f«l�ral waldlife ag�ncies decided to start reteasing captive�reazed bighorn &om ttxe Znstitute the�re anc� �ow thete are 12 adu�t ewes in the San Jacinto.Mout1taiz�s. An entire subecoup ��w�ld bighoin could have�beez� �ost, had it not beea for tt�e captivc breeding aac� wild populatior� augmentation pro�azrr at the J.ns't�tute. � � . The Staff Repoart a11�uc�es to the prospect that ttiat Cozz�uishe of Bigharn wi�llike]y become the prape�rty of Canyons at Bi,ghom in tb�e fuhue. The 5taff Report states that thc home designs "woufd be subject to the desig�n c�iteria contai�ed wi�thxn the EIlt and those at Bigbtarn Country C�ub, evea though it is not pazt o�that project yet" (Staff Repo�ct pg. 4). That said, it �ooks �ikc this proposed pzoject is quicklyb�coming a way £or Caayons at Bighorta, to e�panci thcrr propc�ty into the 400-yard, buffer in violatiox� of its agrcement with tbe Institute. If the Comishe prvpezty becomes the �roperty of Canyons at Bighorz�, then it must com�ly with a�� pz�evious mitigation measures set forth for Canyons at Bi�orn, which has a 400 yar� buffer of no development. The City of Palm Desert at�d persons involved in Cortushe of Bighom azbitraz�i�y, inex�licably a�d wxth no foundation decided vn a 240�yard buf�'e�r based on the location of the coz�servation/housing �acility at Bighom Institute. The 400 yard buffer was derived at from a pane� 0�29 bighorn sheep experts a�te� several m�e�ings, izate�se discussions and co�aszderation of relevant scientific ev�idence. Ind�ed, experts appointed by, Canyor�a at Bighorn participated in making that dccision, wh�ch'was ultimately ado�ted by the City. The buffer was z�.ot detez�nincd vne day in an o�£f ce a�ongst CitSr plann.ecs an�d recent �otential developers. We categoar�.cally reject t�e applieation o#'a 240-yazc� buffeT to th�s project. WE alsa take exception tP the positiort taken in the FEIR tha.t the ZnstitutE r�locate .its �faci}�ties. First, we note that the devE}oper who purc.hased the property did so aftEr the City had approved the 400-yard buffer and that buffer was of recorc� in mu�tip�e City dacuments, Since the �eveloper pure�ased the property with thts �rnow�edge and con.ducted its own c�ue di�igence regardiz�g the bona fides of the property, iE cannot �ow be heard to compkain as it docs. Such pretens�ons mus� be disrega�ded. Further, as the City knows �obn thc approvat proceas ciuring t:�nrdoaldce�l3c 0`,001�133617�DOC THE WILLIAMS WLF L,�NDBERG LAW FIRM, PG. Mr. Phil Jay, Associate Planne�r September 16, 2008 Page 3 the Canyons at Bighorn pxo,�ect, Tnstitute and other sciertttfic experts earlier consic�eced the same rec�uest but were u�nablc to find comparable propert3t to rclocate. More impartant, howevear. is the continu;ing success of the Institute's captive breeding p.rograzn. �t is unwise to fia somethir�g that �s not bro�Ceu. � �z� addition, every recovery pmgrarn must have on-site facilities to operate. Becausc the Institute's nearly 3 00 acrea is not fenced off fram public access, it has mandatory protoco ls in �lace to protect the e�ndangered Peni.nsular bighom, w1u'tch include biologists living on pmperty to monitor the sheep, pens an.d acces9 by occasional tr�spassers. There are also num,exous other protocols that the Ynstitute staff follows to reduce hnman disturbance far the f.acility. Bigtaorn Institute is not open to the public. The sta;f�'keeps all fac�lity operabions on the south and west side af the Iambing pen, away from ti�e most ses�sitiv� northeast side. The FEIIt response to comments states "txo em�irical evidence has bee�a prrse�ted which esta.blish�s thtesholds at wb�ch impacts do aot occur to tnighom sheep, and withit� which th�y do" (FE1R pg. N-43) with reg�d to a 240-yard buffer versus a 400.yard bU�er. Bighorn sheep in the ca;ptive herd are ezadangered; they arc not zoo animals. O#�spniz�g released from Bighaz.n Institute continue +o help the xecovery af this endangered species. Th,at brecding pzog�raxn makes Bighorn Inst�tute's program unic�ue, gnd it has had the unme�se success o�ve� the y�ars. �'k�te City caa�not simply proceed on a�aunch and approv� this development wi,th unsubstantiated and vague hapes that a 2.40-yazd buffcx is suf,�cient. The City shbuld not tum the captive pFns into an experiment. The captiv� bree�ing programt, overseen bX both sta:te acxd federal e�cperts, has bee� highly successful. Uc�inforn�ed c�ec�sions suc�t as the 240-yazd buff�r, made without scienti{c data, backup and consu�tation with t�ese experts, should be xejected. In fact, several alaeep experts from the Pe�insulax Bighorh Recovery Tea.an have subrnu�tted l�tters to the City Encowraging the City to u��o�d xhe prcviously-approve�d 400-yard bu�ec. The Cornishe of Bigt�om property has been desxg�ed as bighom sh�ep crit�cal habitat and on Aug�st 26, 2008, the U.B. Fish and Wil�life ServicE �ubliehed its proposed rule for revised critical habitat for b�gi�orn sheeP in the Pez��sular ranges. The Comishe of B�gk�orn pro�erty �s desi$natecl as critical habitat (Federal Register RIN 10I8-AV09). This designation now has a two-�'old impact on bighaxrt, one from a"take" and "harassmer,tt" staudpoit�t �uad th� oth,e�r from a habitat use standpo;uat. If Conushe of Bigk�orn is includec� in the £'tnal designatio�a for critical }�abitat, then zt must first co�duct a�andatory section 7 co.�sultation with the U.S. Fiah and Witdli�e service prior to the issuanc� af any devElopment permit�. Criven that tkae City and the devetoper now have fortnal notice of this critical habitat des�gnat�on, it would be irresponsible to proceed fttrther without first engagiug ix� the mandatory s.ection 7 consultation with tiae USFWS. J `,wdoc�dom�6T OOZt1�J617. DOC v1r�.,�' L �oBERG LAW FrIFtM, PG Nfr. P� Soy, Assoc�iate P1at�eF Septcmber 16, 2008 Page 4 We also note tliat the State of Cali�ornia Dcpartmez�t of Fisl� ar�d C3amE has desi,gnated this specxes as Chreatened, artd consequently, t�e developer must likewise consult with an obtain perm�Es to deveZop fi�orn� the Catifom�ia Aepartment of Fish an� Ga.me. We see no evidence of this cons�tation or permit in the FE1R. We z�ote, howe�ver, that CDFG supports the Inst�tute's position, a�d zec}uests tt�at the City ar�ci Developer zespect a 400-meter buffer, axinong other rec�uirements. � . ' We encourage tl�e City and Cozxuishe of Bigl�orn to �xpinre a�i possible alternative optians for f�s pFoperty so it is not .dire.etly or i�versely condemned, inclvding othet opporhm,ities far land eaehanges or canservat�on easernmts. We offer aur secvices to assist with tbiese attemative ef�orts. It is nat Sighorn, I�nstitute's inte�t to cause the property Qwsaers or ihe City unc�ue 5nancial har�s�ii.p; but it is the Institute's intent to maintain its co�tinwing, stsict biologica� ethic fvr the protectiou of this species and con�i�ue to work toward the recovery of this endangered species for al� af the many citizeius of Pa�m Desert, Riverside Cvunry, the gtea�ter Coachc�la Va11ey, anc� the Unitec� States. . We appreciate the oppoxhm�itg to present theso comments to the City of Palm Dese�t, W� sincecely hope the City takes ihese and our previous cvnnments into serious cons;�deration. Very truly yours, i�VLF � Ti�e Williams Lindberg Law �irm, PC � � _� � . J. Cra�g Williams • JCV�/ cc: l�embers of the Board.a€ Diu�ectors of B.�g�tom Institute Jim DeForge, Execu�ive Director, Highorn Instite�te P.S. I wat�c� also like to cor�ect a t},�pograghica� Error in rz�y May S, 2003 l�tter ta the City. mistakenl�y wrote "230 years" iunstead of "24� yards" on page 2, point #2. I apologiz� foz my error a�c� aaay coafus�on it maX have eaused. I appreciate the op�ortuiaity•to corxect the record. 7^,wdozldoc�3d9�IN12�(7�6 f 7,DOC MINUTES PALM DESERT PLANNING COMMISSION TUESDAY – SEPTEMBER 16, 2008 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * I. CALL TO ORDER Chairperson Tanner called the meeting to order at 6:01 p.m. II. ROLL CALL Members Present: Van Tanner, Chair Sonia Campbell, Vice Chair (arrived at 6:05 p.m.) Russ Campbell Connor Limont Mari Schmidt Members Absent: None Staff Present: Lauri Aylaian, Director of Community Development Bob Hargreaves, Deputy City Attorney Phil Joy, Associate Transportation Planner Spencer Knight, Landscape Manager Tonya Monroe, Administrative Secretary III. PLEDGE OF ALLEGIANCE Commissioner Limont led in the pledge of allegiance. IV. APPROVAL OF MINUTES None. V. SUMMARY OF COUNCIL ACTION Ms. Aylaian summarized pertinent September 11, 2008 City Council actions. VI. ORAL COMMUNICATIONS None. MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 VII. CONSENT CALENDAR None. VIII. PUBLIC HEARINGS Anyone who challenges any hearing matter in court may be limited to raising only those issues he, she or someone else raised at the public hearing described herein, or in written correspondence delivered to the Planning Commission at, or prior to, the public hearing. A. Case No. TT 31676 – CORNISHE OF BIGHORN, Applicant Request for a recommendation to the City Council to approve a tentative tract map known as Cornishe, and certification of an Environmental Impact Report for the subdivision of 11.87 acres into two home sites west of Indian Cove, a private street within the “Canyons at Bighorn Golf Club,” south of Dead Indian Creek. Mr. Phil Joy explained that this is a project that involves a federally listed endangered species and hillside development, so it was something that staff has really analyzed very carefully. The application was made over five years ago. That showed how closely they had been looking at this project. He said he would give them a brief presentation and background on the project. The City required an Environmental Impact Report (EIR) on this project and hired a consultant at the applicant’s expense to prepare it. They were also present and would go into further detail on some of the finer points of the EIR. Mr. Joy showed a picture of the project site, noting that it is approximately 12 acres adjacent to Bighorn Golf Club. He pointed out the location of the lambing pen that was really staff’s biggest concern, Indian Cove, and the access point provided to the property. He explained that this is a hillside piece of property and the slopes on this property were approximately the same as The Canyons when that area was developed. There is a large rock outcropping and an identified ridge line; they made sure there was no development close to that area. To review the history of the project, Mr. Joy stated that originally the project known as Altamira was submitted to the City, and through 2 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 numerous revisions to that project, eventually a project was approved that showed a 400 to 600 yard buffer on that project with the 600 yards on the more sensitive side to the lambing pen. That was immediately challenged in court; we were sued by a variety of folks. Ultimately an agreement was reached where funds were provided and ultimately no buffer was going to be required at all on this project in the areas Mr. Joy identified on the map; however, he stated that when the project started construction, the Department of Fish & Game stepped in and stated that the agreement was really void because they were not a party to it and the sheep belonged to the State of California at that time. They weren’t federally listed. That resulted in a new project that put the 400-yard buffer back on the project; instead of 600 yards it came down to 400 yards. Agreements were signed. He felt it was really important to note that these agreements did not pertain to the Cornishe property. This property was not part of the Canyons at Bighorn. No project was being proposed on the Cornishe property at that time, so they could not put conditions on a piece of property where a project was not being proposed. It would stand on its own. Mr. Joy stated that this resulted in the application five years ago on the subject piece of property. He explained that the project is zoned five units per acre for most of the property. There was a portion zoned Hillside Planned Residential. At five units per acre, initially 57 units were applied for; that was scaled down to 38 units and that was what they eventually started the EIR process on. It got scaled back repeatedly and the EIR identified a hillside limited alternative that scaled it down to the two home sites. The applicant prepared plans for that two home site project, which was before the Planning Commission now and that was re-circulated for comments through the EIR addition, the small volume before the Commission. He explained that the project basically consists of two home sites, leaving everything else by itself, and they would be identical to those home sites scattered around this neighborhood size wise with basically 20,000 square foot pads. Using the map, Mr. Joy showed the existing and legal access to their property, but said when The Canyons developed, they provided another access, so the access to these lots would be through the access provided by Bighorn and would follow down inside the ravine area, quite a bit lower than the driveways coming up to the pad sites. The activity areas, swimming pool, etc., would be on the side of the lots away from the sheep pens. 3 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 Another point staff worked on with the applicant was that the garages would be facing toward the Institute, which they were very sensitive to, and the mitigation measures listed that these be sunken garages, or tucked under, so they would not be at the same height as the regular ground for the houses, but tucked underneath so that would help screen and get rid of a lot of the noise generated from any vehicular activity. Looking at the project, reviewing all the regional plans, he pointed out the best place to develop home sites on these lots. He said one contour was 840 and goes all the way up to 850; there was an 830 contour; so conceivably they could have a lot at an 840 elevation and the other would be approximately 830. The homes were being proposed with elevations at 820 and 809, so they were quite a bit lower. One of the applicant’s intentions was to keep the lots down as far away from the Institute as they could, but also retain some kind of view looking down the valley. That was one of the considerations given. Of the 11.87-acre parcel, 10.4 acres of it would be either undisturbed natural open space, or renaturalized open space. They were basically saying that of the entire property, 88% of it would be open space and not including the driveways or the road. Mr. Joy said the applicant intended to develop these lots and sell them off. As potential buyers come in, they would submit house plans. They would have to conform to all mitigation measures listed in the EIR and try to replicate the design standards at Bighorn. They would also go through the City’s Architectural Review Committee in meeting our hillside design standards. He explained that how they arrived at the proposal had a lot to do with what was already done; they kind of used the existing house at the Institute as the basis and it went from there. Seeing where these house sites could be located on that plan and trying to mitigate the project so that all of the human activity would more or less be screened from the pens and they wouldn’t see what was going on at these houses. That was also a mitigation measure. Addressing some of the letters received on this project, yesterday staff received a letter from the Fish and Wildlife Service and they were requesting additional time to review this. On this letter they were requesting that we study relocating the driveways to the north part of the lots and staff looked at that previously in great detail. That would force these lots closer to the Institute and would probably involve a lot more grading because the area was really down in a ravine and was a natural 4 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 place to run the access street where it sunk down lower quite a bit. He also pointed out where the access would be for the other lot and stated that it would not be conducive. One of the important parts in the Fish and Wildlife Services letter was that approximately two weeks ago they came out with a listing where they are proposing that this site, and also the entire buffer area, be designated as critical habitat for the peninsular bighorn sheep. He believed the City would be responding to this because what we were told was that when the Institute was located at their facility, it was judged not to be bighorn habitat through their environmental assessment. Now they were coming back after this hearing was published for public hearing, after it was advertised, that’s when they came back and said no, we’re looking at this as critical habitat area. And that wasn’t stated in the letter, but the City found out about it more or less. He thought that was important to note. To put things in perspective, he stated that they were out looking at the property again today, and it would still be two and a half football fields away from the lambing pens, the original buffer for Bighorn was 400 yards away, four football fields, and now they were down to two and a half fields. That was still quite a significant distance. What they have tried to achieve with the houses being closer, what could they do to these house sites to make them less of an impact to the sheep. He thought they had done quite a bit compared to the houses at Bighorn when they were developed. First of all, during construction of the homes themselves, the homes at Bighorn are limited to no grading at all during lambing season. They could still do outdoor construction, just no grading. What they put as mitigation on this project is that no construction period could be done during lambing season and they felt that was a very significant mitigation measure to be placed on these houses. Second, all of the homes that back up to the lambing pens have their activity areas, swimming pools, etc., facing toward the lambing pens. This project is being conditioned so that the swimming pool, activity areas, will be on the opposite side of the homes from the lambing pens so the homes themselves would screen any kind of activity and the noise associated with those activities. Also, one existing Bighorn home sits at approximately 850 feet in elevation, while the home proposed for Cornishe would sit at approximately 820 feet in elevation. So that home is actually 30 feet higher than the proposed Cornishe homes and staff felt the height difference was very significant also. 5 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 One of the mitigation measures he alluded to before, and PCR would dive into those a little more thoroughly, is that there would be enough screen walls, mounding, planting and vegetation, things like that, so that all the human activity within eight feet of the ground would be screened and they wouldn’t be able to see any kind of human activity at all at this project. They felt that was very significant also. The last point he wanted to provide clarification on had to do with the proposed Statement of Overriding Considerations contained in their packets. Some of the letters received alluded to it. One letter (from The Williams Lindberg Law Firm dated September 16, 2008) stated that there would be significant impacts to the sheep from this project because a Statement of Overriding Considerations was being done. The way staff felt on this project was that they’ve mitigated this project enough that there would be minimum or no impact to the sheep and the Statement of Overriding Considerations was being done more or less in an overabundance of caution rather than stating that there will be impacts. This was similarly done when processing The Canyons at Bighorn project. Staff felt that this project was mitigated to death more or less and they put everything practical on this project and it was ready to be built without impacts to the Institute. He turned the presentation over to the consulting firm, Mr. Greg Broughton from PCR, who also had some people with him who might want to speak. After hearing his presentation, they would all be open for questions. Staff asked if the public hearing needed to be opened. Ms. Aylaian said no, our consultants worked as an extension of staff. Chairperson Tanner said he would wait to open the public hearing. Mr. Greg Broughton with PCR Services Corporation explained that they were obtained by the City a number of years ago to prepare the environmental documentation regarding what was at that time a very, very different project than what was before them now. It went through quite an evolution from what he understood was well over 50 units originally, to 38, and they evaluated that. The draft EIR identified a number of significant unmitigatable impacts due to that project. They looked at a series of alternatives, an eight-unit project, a four-unit project and they proposed a two-unit solution without a design or grading plan. That subsequently became, he believed, the basis of the origin of what is now called the new preferred alternative and the proposal that is before them. They prepared an evaluation of that alternative as an addition to the Draft Environmental Impact Report; that was circulated for public review and they obtained a considerable amount of comments on that, they prepared responses to all of those, etc. 6 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 Among those comments was a submittal by the U.S. Department of Fish and Wildlife Service which requested a sort of expansion of one of the mitigation measures and an exposition of it with regard to barriers that might be employed to provide barriers between what the sheep in the pen might be able to see and the visual activity zones themselves. Plainly on either of these lots it would be possible to build a structure where they have the activity area on the side of each home that is closest to the pen that well might be visible from within the pen, and because they believe that the sheep are more sensitive to visual stimuli, the Service was interested in seeing an evaluation of whether barriers could feasibly be designed and placed. That was a little difficult in this case because they don’t have actual home designs. They were told by the City that on those pads at 809 and 820 feet respectively they might be as much as 18 feet above that and for most of them, and most of the visual activity that would occur as might be seen from within the pen, most of that would be eight feet or less in height. So they took that as an indication. What was being shown on display were four section lines that they drew from the highest point in the pen through Lots 1 and 2 and then to others that pick up a portion of the driveway access, which the most recent letter from the Fish and Wildlife Service that was received today notes as greatest concern. He showed line of sight one and explained that what it was attempting to do was the line of sight from the highest point and a distance high up on the hill inside the pen looking down toward the lots. He had a blow up of one in the documents. They could see a portion of the natural slope which intercepts the view line that is connected from that view point high on the hill right down to a point against where the house might be, less eight feet high. This line of sight happened to be intercepted by the natural grade, notwithstanding that there have been excavations contemplated in this area. What that told them was that no wall in that particular area or barrier of any sort was needed. Going to line two, however, they could see where the excavation was proposed and yet the line of sight down to the eight-foot point down to the structure needed to be some eight feet high in order to intercept that. That was considered feasible. By barrier, they weren’t trying to design it or trying to say it was a block wall, or it’s a berm of natural material, or it’s even got vegetation which might achieve the effect; it’s a barrier of some form. Line 3 was a bit more complicated because it was trying to intercept the driveways that come from the cul-de-sac at the southern end of the access road and then the two driveways split from there on their way to Lots 1 and 2. What they could see was that the barriers, in order to have 7 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 the same effect, would be some 12.5 and 12 feet high respectively in order to achieve that. That was beginning to test the premise. On the other hand, that was the most conservative view because looking at an eight- foot position on this side of the driveway, most vehicles weren’t that tall. The fourth one, which was really trying to pick up the question if it was possible at the westernmost end of the cul-de-sac to have one large barrier that would be high enough there to obstruct views of the entire access road and what might be of most concern might be the headlights of the folks coming home shining up the hill as they approach the cul-de-sac. The answer was essentially no, it would have to be some 26-feet high he believed in order to shelter this entire area. It probably was simply impractical. It could shelter a good part of the cul-de-sac if it was a lesser height, but due to the alignment of the access road, it was probably impractical. Mr. Broughton said what they did in the final graphic was to identify where barriers might go and were indicated by dark lines. He said these could be quite successful in conjunction with whatever the built form of the units themselves might be. It could be quite successful in screening activity and these areas. He believed that was feasible. He also thought they could get some good screening with a series of barriers here, but didn’t think it was practical to screen all of the activity that might be associated with this, all the vehicles coming and going and whatever other activity there might be from view of the pen. They could get a long way towards it, but he doubted it could be perfect. In summary, they concluded that even with this kind of mitigation, that in view of the sensitivity of the sheep, of the recognized listing of the sheep as State and Federal sensitive species, and due to the what is known, as well as what is not known about the sheep and their sensitivity, they were recommending that the City err on the side of conservative appraisal and that was why they said even under all these circumstances they still think it is advisable to suggest that there could well be still a significant impact on sheep in pen. Ms. Aylaian said that concluded staff’s report. The recommendation was for approval of the proposed two-home subdivision and staff was available to answer questions, either from the consultant or the planner. Commissioner Schmidt asked if anyone knew the elevation of the pens. Mr. DeForge spoke from the audience and said 1,000 feet. 8 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 There were no other questions for staff or the consultant; Chairperson Tanner opened the public hearing and asked the applicant to address the Commission. MR. PATRICK PERRY, 515 S. Figueroa Street in Los Angeles, said he was appearing on behalf of the owner of the property, Cornishe of Bighorn. He believed that one or two of the Commissioners were here when the project first came before the Planning Commission. At that time what they were reviewing was a proposed four-lot subdivision. To go back through a little bit of the history of the project, and Mr. Joy touched on some of it, the majority of the property is currently zoned PR-5, which allowed five units per acre, Planned Residential. There was a portion of the property zoned HPR, Hillside Planned Residential, which permits one unit per five acres. Mr. Joy alluded to that on the map. Along the extreme eastern portion, he didn’t necessarily agree with the location where the line had been drawn; he thought it was further toward the east, but it hasn’t yet been determined exactly which portion is Hillside Planned Residential. When the original analysis was performed by the applicant back when they first submitted this project, it was determined that a total of 57 units could be developed on this property, at least under the density limitation pursuant to the zoning. A plan was presented subsequently which proposed 38 units and six separate structures. They were multifamily residential condominium-type units. That was what was studied in the original Draft Environmental Impact Report. One of the issues with that particular configuration was that it required two means of access to the property for Fire Department purposes. One of the means of access that was proposed was an existing easement of record which goes from the northern property boundary up through the th fairway of the 14 hole of the golf course at the Canyons at Bighorn project. That was not received favorably by Canyons at Bighorn. So in further consultations with them, he agreed to study a smaller project, and also they were concerned that they were proposing multifamily units; there are no multifamily units in their project. They felt it was not consistent with their development standards. He agreed to study an alternative which was eight single family residential home pads which would require only one means of access and they began discussions, negotiations, to effectively vacate / terminate his easement to the north in exchange for them allowing him an easement across their roads to gain access to his 9 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 property to the east. That was studied as an alternative in the Draft Environmental Impact Report. There was also an alternative in the original Draft Environmental Impact Report which was called the Hillside Limited Alternative which was proposed by the City which would have shoved all development up into the extreme northeast corner of the property and it was determined that that would not result in any significant and avoidable impacts on biological resources or any other category of impact. Subsequent to the circulation of that Draft Environmental Impact Report, it became apparent to him that there were remaining impacts or basically traffic impacts associated with any development that would have more than five single-family residential homes. At that point they agreed in order to eliminate that particular impact, to reduce the number of pads to four. That was the project that came before the Planning Commission and City Council two years ago. They undertook additional discussions with City staff and with personnel at The Canyons at Bighorn and understanding various other aspects of the project and impacts on the Bighorn Institute and other aspects, they further reduced the project to what they were seeing now. Even though this project results in fewer impacts than what was studied previously, out of an abundance of caution the City felt it was appropriate to re-circulate this particular alternative for public review and comments so that there was no question that the public did have sufficient opportunity to review this project and it was now coming before them again after a two-year period of discussion, further analysis and review, and so forth. Mr. Perry said they felt this was an appropriate project, both in scope and in scale. It left approximately 10 acres of the property as undeveloped natural open space which they were prepared to either place a conservation easement on or dedicate to a resource agency or an appropriate means of preserving that space. The end results in development of a little over two acres of the property. They have made the effort to push development as far to the northeast away from the lambing pen at the Bighorn Institute as they could and still have developable lots. They reviewed the correspondence received stating that any development within the 400-yard buffer that was originally established in connection with the approval of The Canyons project would not be acceptable and that all development should be placed outside the buffer. That only 10 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 included a small triangle in the very northeast corner, which was entirely within the streambed of Dead Indian Creek, approximately a quarter of an acre or 10,000 square feet in area. They felt that was not an economically viable alternative given the development costs and everything else associated with that, and the potential ability to sell that, it would not be possible to get any type of economic return and therefore, because that was economically unviable, being forced into developing on only that portion would result in a regulatory taking and would require payment of just compensation for the entire parcel. He stated that it was also significant to point out that in the Environmental Impact Report, as well as other studies that have been done in connection with this property, no impacts were ever identified with respect to free roaming sheep; the only impacts that have been identified were to the captive breeding herd that is maintained by the Bighorn Institute. The 400-yard buffer line was not established on the basis of any type of scientific consensus. There was a consortium of various biologists who were consulted when The Canyons at Bighorn project came forward to opine as to what an appropriate limit would be in order to protect the breeding activities of the Bighorn Institute. The recommendations were anything from zero feet to a mile. Ultimately, the 400 yards was established on the basis of a Settlement Agreement because of litigation that arose after the approval of The Canyons at Bighorn project. He had a copy of the Settlement Agreement which provides specifically, and this was a Settlement Agreement signed by the Bighorn Institute, and by the City, and by the then owners of the Cornishe of Bighorn project, who are the current owners as well, and he would explain that in a moment, which specifically provides none of the mitigation measures or conditions of approval that applied to what was then called the Altamira project would apply to this project or development on this property except to the extent that those mitigation measures were identified in connection with a particular development application; meaning that those mitigation measures do not apply to this property, that this property stands on its own in terms of impacts and potential mitigations, so there was no carryover and the Bighorn Institute agreed with that, as did the City. The owner of the property is a limited liability company that was established in 2003. The property was conveyed into a limited liability company at that time. The members of the limited liability company are the original owners of the property who purchased the 11 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 property in 1977. The Bighorn Institute established its operations in 1984 or 1986, so the ownership of the property predates the establishment of the Bighorn Institute; it predates the approval of The Canyons at Bighorn project, and the establishment of the buffer. This was something that was imposed over their objections at that time and was specifically recognized as something that did not apply to development on this property. Again, this was determined to not be suitable habitat for free roaming sheep. When the Bighorn Institute was first established, the Bureau of Land Management actually conveyed the property to the Bighorn Institute and conducted an environmental assessment at the time and found that it was appropriate for the Bighorn Institute to establish its operations on its property because that property was not suitable habitat for bighorn sheep. Since that time the Bighorn Institute has established its operations. The Canyons at Bighorn has developed a significant portion of its property. Now the US Fish and Wildlife Service is coming back and saying oh, we think we need to designate all of the property within this buffer area as critical habitat for the bighorn sheep. It seemed curious to them that when the entire area was undeveloped it was not suitable habitat; now that there is development completely surrounding the property, somehow that makes it more suitable as bighorn sheep habitat. Mr. Perry stated that there are some issues related as well to the grading that would take place. Some of the impacts were identified; one of them at least was trucks that would be hauling soil into the project and it was estimated that approximately just under 36,000 cubic yards of dirt would be moved in in order to be able to grade the pads to what is proposed here. A portion of that, approximately 20%, was for the grading of the road. The remainder of that was largely going into the lower pad shown as Lot 2 simply to get it above an elevation where it will not be impacted by flood waters within the streambed. This was consistent with the surrounding development. He had a drawing and pointed out Lot 2, and said it is at an elevation of 809, the same height as the pad directly across the ravine, so it was consistent with the existing height. The idea was that because they were willing, notwithstanding the fact that 57 units could potentially be developed here, they were reducing the number of units down to two and making all the rest of the property available as natural open space. In order to achieve a higher economic return, they wanted to be able to achieve views from the pads. The access road was also moved around to the south. They 12 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 did look in one of the studies at putting the access road to the north of the property, or north of the pads. As Mr. Joy indicated, what that did was push the pads farther to the south and closer to the sheep pens. Right now the pads were no closer than 255 yards to the sheep pens. That is the same location or the same distance as the nearest residential structure to the sheep pens, which coincidentally happens to be the residence of the director of the Bighorn Institute. They felt that if it was appropriate for the Director of the Bighorn Institute, it would be appropriate for these residential home sites as well. Every effort had been made to limit the impacts to the extent feasible on the Bighorn Institute. They recognize the importance of the Bighorn Institute, the work that they do in trying to increase the wild herd of free-roaming bighorn sheep. All of the activities, as Mr. Joy indicated, would be directed to the sides of the homes that are away from the sheep pens. So there would be a passive façade that will be actually located to the south and visible from the sheep pens: swimming pools, decks, outdoor terraces, and so forth, would have to be away and out of visible range of the sheep on the other side of the homes. They agreed that suitable visual screening that consists of berms, walls, vegetation, however they could achieve it, would be placed such that it would limit the visibility of any activities on this property from the sheep pens. There were further mitigations they agreed to and they also agreed with The Canyons at Bighorn that this project would be consistent with their architectural guidelines, with their landscape guidelines, that the purchasers of these homes, even though they are not on Canyons at Bighorn property, would be subject to all the limitations imposed on all the residents of the Bighorn Country Club project. Therefore, this would just appear as an extension of that particular project. He stated that he was available for any questions and would appreciate some opportunity to respond to any comments they might receive by members of the public. Commissioner R. Campbell understood that Palm Desert was not part of the agreement for 400 yards and Mr. Perry just stated they were. He asked for clarification. He understood that it was between Riverside (County) and The Canyons and Palm Desert was not a part of it. Mr. Perry said that was not his understanding. His understanding was that the City of Palm Desert was a party to the Settlement Agreement that established the 400-yard buffer. There was a 13 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 complicated series of transactions. At one time there wasn’t a letter and there was an agreement that in fact that the Bighorn Institute was going to relocate its pen such that it would have the buffer entirely on its own property. That was vetoed by the Department of Fish and Game, and in fact there was originally a 600-yard buffer proposed. The 400-yard buffer was then established, again, with the restriction that it would not apply to development that’s going to happen on this particular property that is now the Cornishe at Bighorn property. He had a copy of the Settlement Agreement and he submitted it when he was here two years ago at the request of the Planning Commission at the time, so it is in the file and the City was a party to that particular Settlement Agreement. Commissioner R. Campbell thanked him. Commissioner Schmidt asked for clarification as to the road easements. She asked for the location of the one established in 1959. Mr. Perry identified it on the plan as two dash lines that said existing 30-foot access easement for Instrument Number 90727 recorded 10/23/1959. He further clarified that it was the one that th went through the Canyons golf course, across the 14 fairway. Commissioner Schmidt asked if it was still an existing easement. Mr. Perry said yes. They have agreed with The Canyons that in exchange for allowing them to use this easement across their roads, they would terminate that easement. Commissioner Schmidt said the other access that shows the cul-de-sac and Lot A went off the drawings. She asked where it went. Mr. Perry indicated that it connected to Indian Cove, which is a cul- de-sac. He showed the location of the Cornishe property, the Indian Cove cul-de-sac, and said there’s an access easement that comes across which would become the access road for this property. Commissioner Schmidt asked which of those went over the Dead Indian Creek. Mr. Perry explained that the one that would go over Dead Indian Creek would be the one to the north. Dead Indian Creek is directly to the north of the Cornishe property. They were right along the edge of the streambed. So by vacating this particular easement, or 14 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 terminating this easement, they would again be reducing the potential impacts on water flow in the creek and so forth, not only reducing impacts on the golfers on the golf course at The Canyons at Bighorn. Commissioner Schmidt asked for the location of the ravine that needed filling. Mr. Perry said it is along the eastern portion of the property along the access road. He confirmed that it impacts the Lot A proposal. There was a small ravine and the road would follow it and then terminate at a low point. They tried to keep that as low as possible to reduce the visibility from the sheep pens. He thought it was also important to recognize that the visual studies that were done that Mr. Broughton presented were all performed from the highest point within the sheep pen. They would anticipate that the sheep were not always going to congregate on the highest point and the lower on the slope they were, the less visible or the lower the screens would have to be. They would also encourage the Bighorn Institute to the extent they are unable on their property to effectively screen visual impacts, to erect screens on their own property. He thought that would be an appropriate measure on their part and something they might even be willing to contribute to. Again, they didn’t want to disturb the sheep any more than necessary. To the extent that barriers on the Institute property would be effective, they would be willing potentially to participate in that as well. There were no other questions and Mr. Perry thanked the Commission. Chairperson Tanner said he would ask for testimony in FAVOR of the project. There was no response. Chairperson Tanner asked for testimony in OPPOSITION to the project, noting that he had three Requests to Speak cards and started with them. He invited Mr. J. Craig Williams to come forward. MR. J. CRAIG WILLIAMS, 100 Bayview Circle, South Tower, Suite 330 in Newport Beach, California, informed the Planning Commission that he is a member of the Bighorn Institute Board of Directors. He was also its attorney. He thought perhaps Mr. Campbell might be pleased to know that he was one of the people that drafted the Settlement Agreement with the City and the Institute and Altamira. At the time, he worked for Mr. Perry’s law firm: Allen, Matkins, Leck, Gamble & Mallory, and he would talk 15 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 about that a little bit later because he had some concerns about that. But it was in 1992, he believed, when he was last in these chambers and he marveled then, as he marveled again, at the beautiful mural that sat behind them and looked up into the mountains, because that was Palm Desert to him and always has been. In the 20-some years he has been coming out here, as a member of the Institute’s Board after he was its attorney, it had always caused him to love this place and hopefully retire out here once he got done practicing law in Newport Beach. Since he began to talk to them about the history a while ago, he would talk to them briefly about a number of issues, but starting a little bit with the history. At the time when the Institute was formed in 1982, the sheep were listed as a State endangered species controlled by the California Department of Fish and Game. And back in 1998, they were listed as a federally endangered species. So there are two regulatory agencies that control the Institute. They have a memorandum of understanding which they operate under with the California Department of Fish and Game, and they have a Section 10-A permit from the United States Fish & Wildlife Services. Both of those agencies supervise their work and provide comments to them in the Draft Environmental Impact Report. To move forward, there was an extended lawsuit. Of the people in this room, perhaps only Mr. Joy, Mr. DeForge and he himself were the only three people in this room who were here back in 1992 when that lawsuit was going on. The City was sued by the developer, Altamira, as was the Institute for the Institute’s speaking out, as he was doing today, against this project. They essentially beat back that lawsuit as a slap lawsuit that was brought by the developer to prevent their speaking to the Commission. The court sustained their side and they entered into the Settlement Agreement. Mr. Williams said they were correct that the City agreed to the 400- yard buffer. Mr. Perry was partially correct that the Agreement exempts the Del Gagnon property. What was known at the time was that the Del Gagnon property, subject to a later application by Del Gagnon for this, but as far as the Institute, the County, which was also sued, and the City was concerned, they all agreed that there would be a 400-yard buffer. That decision came as a result of approximately a year of consultations among 29 different biologists. He added that one of those, or two or three of those biologists, included biologists that were appointed by Altamira, the 16 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 predecessor to Canyons at Bighorn. So it was not a solely one- sided event. Those discussions took the course of a year and ranged from a mile to less than a mile, and ultimately agreed upon a minimum buffer of 400 yards to protect the lambing pen. There wasn’t much discussion, and hadn’t been much discussion, in either the Draft or the Final Environmental Impact Report of the ram pen, which was located slightly to the south west of the lambing pen. It is a seven- acre pen; it is higher than the lambing pen. There are presently two rams in the pen. During the rut period, some of the ewes are moved to the ram pen and one of the rams is moved to the lambing pen for breeding purposes. As they knew, the Institute is a captive breeding program that is known as a recovery center approved by the United States Fish and Wildlife Service. It is a treasure to the Coachella Valley. There are less than ten Federally-sanctioned recovery centers for endangered species in the entire United States. Several of them, not surprisingly, are located in California: San Diego, Catalina and Palm Desert. They should be proud that the recovery center has sustained this species for generations to come. In the course of the Institute’s proceedings, those 29 biologists all agreed that the 400-yard buffer would be in place as a protection for the lambing pen. They had some concerns for the sight lines presented tonight because the sight lines were taken without the benefit of coming to the pen itself. If they had been in the pen, which he didn’t think any of them had and he himself had not in fact having been on there for 20 years, but he had seen it. There is a rise below the top of the pen and there is a sight line from the right hand side of the pen that they would only know if they had been inside of the pen. Those sight lines were not analyzed in the Draft Environmental Impact Report or the Final Environmental Impact Report. In addition, there was no sight line analysis from the ram pen, which is equally the reason for the 400-yard buffer. He thought that was something that needed to be considered. They heard from Mr. Joy that the Fish and Wildlife Service has requested a continuance, and he again would request a continuance of the decision tonight for a couple of reasons. First, from a practical stand point; the public notice was issued on September 3, 2008. This hearing is September 16. That is 13 days. He believed the City ordinance, and the City Attorney could correct him if he was wrong, but he believed it required at least a 21-day 17 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 notice period and he believed comments for a Final Environmental Impact Report required a 30-day comment period. Mr. Williams stated that he submitted written comments earlier this afternoon to Mr. Joy. Unfortunately, they didn’t make it to the Commission. He submitted a copy (see attachment). He said it wasn’t his intent to go over those comments in depth tonight and he would entrust them to their reading, because they comment on the Final Environmental Impact Report and the issues they see there. So in that event, because of the shortened time period from a practical stand point, he thought it was appropriate for them to spend the time to read the four or so pages that the combination of the Institute and himself wrote this afternoon to submit to them tonight. He hoped they would get here earlier and into their packets earlier, and he apologized if it didn’t. The Fish and Wildlife Service, as noted in the end of that letter, has on August 28, rather recently and just a few days before the public notice was provided, issued a proposed rule designating the property, the entire property of Cornishe, as a critical endangered habitat, which once adopted would preclude any development on the property. Surprisingly, the Final and Draft Environmental Impact Reports take this kind of cavalier attitude, and he was going to call it cavalier and he wasn’t one to use a lot of adjectives, but it was a little frustrating because it says that the Fish and Wildlife Service has propounded these things the Draft and Final Environmental Impact Report calls landscape designations of critical habitat for the sheep. That was quite like saying that it’s okay to build in the Joshua Tree National Park because it contains a lot of acres right along the edge where no one ever goes and they could stick a couple of homes in there because it was kind of just a landscape designation. It seemed to him to be a bit incongruous to say on the one hand that they have to comply with the law, but on the other hand choose which laws they were going to disregard. Going back to the sight lines, Mr. Williams said there were a couple of problems with the Environmental Impact Reports beyond the fact that they are not sighted properly from the pens, they don’t use the right basis for the decision. If they looked at the map that was up on the screen, the map says that the sheep are three feet high. They are about three feet high at shoulder, but not three feet high at eye height. They were substantially higher than that, so the sight line was not actually correct from that standpoint. And the impact reports don’t mention the fact that sheep have eyesight that is 18 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 equivalent to using binoculars for humans, about eight times our eyesight. They can see a lot farther. Their hearing is actually a lot better than ours as well. The 29 biologists who met for approximately a year, one of the reasons they required the buffer was because of the hearing of the sheep. They specifically disclaimed Altamira’s proposal to build a wall and said it wouldn’t work, that it would actually frighten the sheep even more and stress them more because they couldn’t see what they heard. So blocking the view with a wall didn’t cut it then and doesn’t cut it now. The issue that Mr. Perry raised about not understanding why at the time the Institute got its patent from the Bureau of Land Management not designating the property as critical habitat or even sheep habitat at the time was largely because nobody surveyed it, nobody knew--there was no one there at the time looking at it over an extended period of time. So there was a surveyor that came out and looked at it and said there was no environmental impact because there are no sheep there. The Institute has been there over the years and has seen sightings on it. The Institute is not the one who designated it critical habitat that was Fish and Wildlife Service. In fact, they didn’t even know that this designation on August 28, this proposed rule to designate that entire property as critical habitat; they found out from Mr. Perry surprisingly enough. They didn’t find out from Fish and Wildlife Service. Mr. Williams stated that Mr. Perry also raised the issue of condemnation and says that the developer has been there on that property long before the Institute and long before Altamira. At the time, back in the early 90’s when the Institute was battling it out with Altamira was owned by Del Gagnon and the map company. Perhaps Mr. Perry could clear the issue up, but what he thought was interesting was that Mr. Perry didn’t mention, which was how much the Del Gagnon’s and the map company presently own in that new LLC that has been formed and what the percentage of interest is, whether they have controlling interest or non-controlling interest. If they don’t have the controlling interest, then the question becomes what due diligence was done by the new investor to find out whether the buffer was in place there before or not. As far as the condemnation was concerned, he wasn’t sure that it was an issue for the City as much as an issue for the federal government. They are the ones that are designating it as critical habitat so it can’t be developed. They get their advice from the City Attorney and he could advise them on that issue on whether it was 19 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 something the City needed to worry about or if it was something the federal institute needed to worry about. Mr. Perry also made some noise about the Institute house being about 240 yards away from the pen. Having been to that house himself and knowing the restrictions that are in place, he could tell them that there is no one who would want to live there and no one who would want to buy that house given the restrictions the Institute places on the use of that house. It’s there as part of, hopefully, a research facility and hospital that they plan to build on it for housing purposes, but not for the purposes of…there’s no pool outside, there’s virtually no cars that come up to it, and the use of it was tightly controlled and it is used as a point for watching the sheep, and also for keeping trespassers off the property. To liken the uses that occur at the Institute’s house on the property to the two houses that are going to be built, the uses aren’t going to be the same. They don’t hold parties there, they don’t have music blaring outside, there’s virtually no use that goes on outside the house. One of the concerns he had, in addition to the things mentioned in the letter he submitted to them, one of the concerns the Institute has is this kind of underlying thread that goes through the Draft Environmental Impact Report and the Final Environmental Impact Report, and in talking to staff, that ultimately these two parcels may be annexed into or brought into or purchased by Canyons at Bighorn. To him that seemed a pretty easy way to work their way around this buffer and, well this buffer doesn’t apply to me, let me build two houses and then *wink wink* later on I’m just going to sell it to Canyons at Bighorn and now they have two houses inside the buffer. Sounds like a law firm might be at work here, but that was just him. Lastly, Mr. Williams thought the thing that concerned the Institute most is, he thought should trouble this body as well, is that conflict of interest that he referenced earlier. This lawsuit was worked on by Allen Matkins, the one that involved the City. Allen Matkins is the law firm that now represents the developer and represented the Bighorn Institute during that lawsuit. He knew; he worked there. There are other lawyers who still work there who worked on this project who have what he considered to be attorney-client privileged information about communications with the Institute and the lawsuit. It troubled him, and they’ve raised it with Allen Matkins, with the developer, and have not received a satisfactory response. But it troubled the Institute that its former attorney is now directly opposite at advocating something that is not in the Institute’s best 20 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 interests. He thought that should weigh into their consideration in approval of the project. The Fish and Wildlife Service asked them to continue this hearing for the purposes of further study from the stand point of the August 28 designation of critical habitat on this property. They didn’t think they had been given enough notice to them to be able to comment on it appropriately, although they have provided comments. They thought it would be appropriate to continue the hearing for a short period of time to allow some consultation with Fish and Wildlife Service. He noted that, and he admitted that he didn’t read every single word, but read most of both reports; he didn’t see anything from the Fish and Game approving the take or harassment of a threatened species. So there was no permit or approval from the State at this point approving this project. That’s required under the California Endangered Species Act. There is no approval from the United States Fish and Wildlife Service for the take or harassment of the sheep under Section 10, and they have not conducted a Section 7 consultation with the Fish and Wildlife Service for a permit to develop the property. There was no streambed alteration agreement in front of them from the California Department of Fish and Game. You see a wash, you see them dealing with a ravine, but there’s no agreement. Fish and Wildlife Service in their letter to Commission said they need to have a streambed alteration agreement under California Fish and Game Code. It’s not here. So despite the fact that this thing has been going on for five years in various iterations and moving around quite a bit, it appears that not all the homework has been done yet. So for those reasons and for some of the reasons in the letter he didn’t specify to them tonight because he would commend it to their reading, he requested that they not deny the project, but at least continue it. On a final note, and hopefully to end on a positive note, the very end of that letter says that the Institute will work with Cornishe and the Bureau of Land Management, who they have a very good relationship with, to see if they can assist in a land exchange, a swap of property for property. Bureau of Land Management owns an awful lot of land. There’s an opportunity here for that land to be put in a conservation easement that is open space to the City and for the developer to obtain equivalent value of land somewhere else that he could build on or do whatever they could do with it, but it’s not the Institute’s intent to stand there as a roadblock. It’s their intent to ask them to consider all the issues before they make a 21 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 decision. They were also standing there with their hand out saying they will help. He believed that PCR has been to the Institute at least once, if not twice, and spoke with Mr. DeForge as the Director of the Institute. He said they have been very cooperative, provided data and information and was happy to continue that cooperation. He spoke to Mr. Perry maybe once, he made this offer, but it’s still on the table and they were still happy to talk about it. Lastly, he would play the sympathy card. He gave them some photographs of what it is they were dealing with. The top photograph showed a ewe and a lamb immediately after birth. If they looked closely at the top photograph, they could see that the lamb was still wet in terms of the birth. So that’s exactly what they are dealing with at the Institute and what they are trying to protect and he hoped they were as well. He thanked them. MR. GEORGE LINGENBRINK, 623 Indian Cove, stated that he is the direct neighbor to the Cornishe project. Until March or April of this year he hadn’t heard about Cornishe. His neighbors, who urged him to be part of this, informed him about the project. He received a copy of the report and voiced his concerns to Mr. Phil Joy. He couldn’t speak about the bighorn sheep. He heard a lot of things today regarding mitigation issues, yet in this report buried was the fact that the developer wants to import 36,000 cubic yards of dirt. His concern was not necessarily whether the property is divided into two, three, four, five properties, that are, what they heard today, are going to be for sale would refer to 36,000 compacted yards will appear on the property. Thirty-six thousand (36,000) cubic yards when transported are 45,000 to 52,000 cubic yards. That usually represents uncompacted fill and when dirt gets transported, it is uncompacted. That means that about 4500 to 5200 truckloads have to be imported right onto the property and drive off the property. That’s about 10,000 to 11, 000 truckloads. That is an operation that by itself will take months and all they’ve heard here from his perspective is about all mitigation issues taken, yet there is more stress being put on the environment and most likely the bighorn sheep and of course the residents. He thanked them. MS. HOLLY ROBERTS, 76-947 Tricia Lane, stated that she represents the Bureau of Land Management. She is the Associate Field Manager for the Palm Springs Field Office. She said their mission is to insure multiple uses on public lands. They normally do not stand behind any Council on things dealing with private issues. 22 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 They were there because they were significantly concerned over the potential impact to the Bighorn Institute and all the work they and their partners have been trying to do to recover this species. Many many years ago they gave them (Bighorn Institute) a recreation and public purpose lease specifically to see if they could get captive breeding and research going that would allow many of their partners to see if they could reestablish and have sustainable levels of this sheep. They also believed that the evidence and data being gathered by the Bighorn Sheep Institute was virtually irrefutable in the value of those sheep, the lambing pens and the amount of recovery that is actually taking place in the field right now. She believed that all of the wildlife management agencies including Fish & Game and the U.S. Fish and Wildlife Service also stand behind that. They are seeing significant recovery in some areas. She started her career many years ago working with bighorn sheep on the Arizona strip district, including captive breeding in outside pens; nothing quite like this Institute, but the amount of success they were seeing is quite significant. They wanted to make sure that people understand that these animals are flighty, they are nervous, they are difficult to manage and they didn’t want to see them habituated to humans and that activity. They supported fully the minimum 400-foot buffer to keep activity away from the breeding pens. This was the third time that BLM has stood up to say what their concerns are over this project and they would be delighted to entertain any other resolution, including the exchange that could help solve the impacts that have been identified for the Institute. They were for development, but in a manner that was going to recognize the needs of these sheep and not just on this instance, but in many instances to come as development continues in this valley. She wanted to leave them with two words that came out of the document regarding impacts to the sheep: significant and unmitigatable. There was no one else wishing to speak. Chairperson Tanner asked the applicant for rebuttal comments. Mr. Patrick Perry, appearing on behalf of Cornishe of Bighorn, 515 S. Figuero in Los Angeles, said he had a few points he would like to make in response to the comments they had heard. The first one concerned the 400-yard buffer and the justification for that buffer. Again, he maintained that the buffer came about as a result of a legal settlement and not on the basis of scientific evidence. They 23 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 have materials that he submitted to them from Dr. Paul Krausman who is a professor of wildlife conservation at the University of Montana. He has been on the property, has surveyed the situation, is a recognized expert in bighorn sheep behavior, has reviewed all the documents that have been prepared in connection with this case and in his professional opinion, a 400-yard buffer is not justified on the scientific literature and his opinion from having walked on the property was that placing the potential home sites in the proposed location would be no more impactful on the sheep than the homes that are outside the 400-yard buffer directly across the ravine. That those are just as visible and in fact would be more visible. Mr. Perry maintained that activities would be more visible on those homes because they did not have to meet the mitigation measure that those activities be located on the opposite side of the house from the side that the sheep would be able to view. They would be able to review Dr. Krausman’s comments at their opportunity. Mr. Perry stated that this was the first time he had heard that there were any issues associated with the ram pen. All of the issues had been the lambing pen and that’s the only thing they have ever heard from any of the representatives of the Bighorn Institute. With respect to potential environmental impacts associated with that, he would leave that to City staff and the environmental consultant, as well as issues related to the sight lines and whether they were taken in the appropriate location. The property owner didn’t participate in those particular sight line studies; those were done by staff and their consultant, so he wasn’t there to defend those. Again, with the public notice issue, he would let staff discuss whether or not proper public notice was provided. He stated that contrary to what Mr. Williams said, a 30-day public comment period is not required for a planned environmental impact report. An environmental impact report needs to be made available to public agencies for ten days prior to hearing on a certification and he believed that was done in this case. With respect to the rule on a critical habitat by the U.S. Fish & Wildlife, he stated that was a recent proposal. It is a proposal and has not been adopted. This is not critical habitat. A representative of Cornishe at Bighorn appeared at the hearing last week that was conducted by Fish & Wildlife and testified in opposition to that orally. They intend to prepare written comments. As far as they are concerned, whether or not this becomes critical habitat is entirely 24 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 speculative at this point. It has not been ultimately approved and they don’t know when it will be even if it were approved. Who owned the property at the time that it was originally purchased, there were three people: Del Gagnon, Guy Laliberte and Mario Pascucci. Del Gagnon sold out his interest at one point. They purchased the property together in 1977. Del Gagnon sold out his interest and the Limited Liability Company was formed in 2003. Guy Laliberte and Mario Pascucci remained members of the LLC. As two out of the three members, they still had a controlling interest. They owned the property in 1977 and continued to own the property at the time that the buffer area was imposed over their objections and at the time that the Bighorn Institute was established. With all due respect to the Bighorn Institute and to the Bureau of Land Management, they understand that the work that the Bighorn Institute does is very important. The Bighorn Institute established itself in 1984 on property that it knew was directly adjacent to property that was residentially zoned and planned for residential development. For the Bighorn Institute to come in now and say, okay, we located here knowing that the property was designated and zoned for residential development, however, our very presence is going to preclude that property owner from being able to develop its property in accordance with other laws applicable requirements is to him, and he wouldn’t know if he would go so far as to call it an outrage, but was certainly not something he believed a private property owner had the right to do to another private property owner. In their view, if the Bighorn Institute feels that the presence of these two homes will impact its operations, the Bighorn Institute should relocate its operations. The Bighorn Institute should not come and say, no, you can’t develop your property because I am here. This is what he referred to as the Yertle the Turtle approach to land use planning: I am lord of all that I see or all that my sheep see. And that was simply not an appropriate position, they feel, in this particular context. In terms of conflict of interest, Mr. Perry was not going to go into the issues related to legal conflicts of interest here. That was something they could discuss privately. It was something they examined and found not to be an issue from their perspective. Fish & Wildlife permits, they do not require a 10A permit from the Fish & Wildlife Service because they were not developing within 25 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 critical habitat. What is required here is a permit from the Army Corp of Engineers. There is a Section 7 consultation required before the Army Corp of Engineers could issue its permit. It had to go through Fish & Wildlife Service for a biological opinion. Fish & Wildlife Service does not have direct permitting authority here. They would be applying for an Army Corp of Engineers permit. They will be applying for a Fish & Game streambed alteration during that. He has been in contact with representatives in the Army Corp of Engineers and with representatives of California Fish & Game. What they have said is he needed to get the approvals from the City before they would approve the permits. Therefore, they have not obtained those permits because of instructions they received from those permitting agencies. As far as offers to do a land exchange or some other accommodation, Mr. Perry stated that he has been working on this project for six years and this was the first time he has ever received an offer from the Bighorn Institute, the Bureau of Land Management or anyone else with respect to doing some land exchange or some accommodation. They were not prepared to continue this item tonight to explore those possibilities. Yes, they were open. And he took back what he said. They did get an exploratory question from U.S. Fish & Wildlife if they would be willing to sell the property. They responded positively, yes, they would consider that possibility, let’s discuss it; he never heard back from them. That was three or four months ago. That was the only time they’ve ever been approached. Yes, they would be willing to undertake those discussions, but they were not willing to continue further proceedings with respect to this. It has been six years and they were finally here and were prepared to go forward at this time. With respect to Mr. Lingenbrink’s comments, they were sensitive to impacts on the neighboring landowners. They understood that it is a significant amount of dirt that is being brought in. As he explained earlier, Mr. Perry said they felt it was justified given what they are giving up on the property in terms of development potential. It is a temporary impact; yes, it would be a couple of months, maybe two and a half months, there will be truck trips going in and out passed these houses. The Canyons at Bighorn, and he spoke with representatives of the developer who moved over 700 million cubic yards of dirt in connection with that development; the development which includes Mr. Lingenbrink’s home and the homes of the other neighboring landowners with respect to this property. They would be moving dirt for a couple of months. It was a temporary impact 26 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 and they would do everything they could to minimize that impact on the neighbors. Construction is a disruptive process by its very nature. They would do what they could to minimize those disruptions, but there would be some disruption. So they were sensitive and would do what they could. He believed that covered all the issues that were raised that were worth discussing. He was available for any questions and thanked them for their time. MR. J. CRAIG WILLIAMS, 100 Bayview Circle, South Tower, Suite 330 in Newport Beach, stated that he needed to withdraw a statement. He said Mr. Perry was correct on the ram pen. He’d been advised by the Institute, not ever having been in it himself, that there are no sight lines from the ram pen to his property. He apologized for his misstatement and asked them to please consider that withdrawn as far as that issue was concerned. He thanked them. Ms. Aylaian stated that she would like to address a couple of issues. One was the legal noticing. She believed that the City Attorney wanted to address the inverse condemnation issue, and then they would ask the consultant to please explain some of the mitigation measures that have been identified for the import operations during grading. The legal notice was first published in the Desert Sun on August 25, 2008, not on September 3, and the local ordinance requires that the notice be published in a paper of general circulation no fewer than ten days and no more than 30 days in advance of the public hearing. Mr. Hargreaves concurred. He looked at the notice issues and concluded that the notice was appropriate. He hadn’t seen the letter, but as far as he knew, the notice was appropriate. Mr. Hargreaves stated that the issue of inverse condemnation was somewhat complicated, but stated simply, if a governmental agency be it the State, Federal Government or the City conditions a project in a way that renders that project economically infeasible then that particular agency is liable potentially for inverse condemnation. It was a rather complicated calculation. In this case, as they heard, this is the City’s chance to entitle or condition a project. After this, it will go to the Federal government and the State government will have opportunities to issue permits and condition the project. As Mr. Perry stated, and in Mr. Hargreaves’ experience, the Federal and State government will wait until the City acts first because they want to know what the project looks like 27 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 before they consider their streambed alteration permits and their 404 permits. If the City were to condition the project in such a way that is economically infeasible, the City would be potentially liable for inverse condemnation. If the City exercises in its own discretion and its own codes and feels the project is appropriate under its criteria and approves the project, then the Federal government and the State government get their opportunity to look at it pursuant to their own independent criteria and decide whether or not it meets their criteria and then they can condition and face that same inverse condemnation liability. With respect to the conflict of interest, he thought that was amongst the parties and wasn’t really a City issue. Ms. Aylaian asked if Mr. Broughton would address some of the issues contained in the reports that are required mitigation measures for import during the grading operations. Mr. Greg Broughton said there were a couple of aspects regarding mitigation that he would like to address. One of the mitigation measures they proposed and recommended is that, recognizing that the amount of import that’s proposed in order to create the pads, as well as the street or the access road about in the flood plain requires the import of a fairly large amount of soil, nearly 36,000 cubic yards. And that would be noticeable within the Canyons at Bighorn development. They recognized that, they were sensitive to that, and so what they specified on page II-12 of the Final EIR Mitigation Measure IV.C-2, “Site preparation and grading of the site shall be designed to balance on-site to minimize new import of fill materials to the extent feasible. Grading shall be restricted to that necessary for 1) reasonable vehicular access from the Indian Cove section of the Canyons at Bighorn to access the residences, 2) development of proposed building pad elevations, and 3) reasonable foundation excavations. To reduce the impacts associated with the site preparation/grading phase, building height shall be permitted to allow one- story above finished floor elevations no higher than 820 and 809 feet above sea level on Lots 1 and 2, respectively.” What they were recommending there was a serious exploration of what is feasible in the way of achieving this and presumably that would take subsequent study. As they knew, they had a grading plan proposed, they didn’t have structures, and until they have designed architecture it was a little difficult to understand exactly what might come into play. That also applied with regard to the sight lines and the potential for barriers. He thought Mr. Williams mistook the intent of the sight lines they examined. The purpose of that was not to do a design study by any sense, but to test the premise could barriers be effective in this situation. He thought they satisfied 28 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 themselves that the potential for barriers to be effective does exist, but until, again, they have structural design, there’s no point in trying to get specific. Mr. Broughton said Mr. Williams was correct that the topography of the pen is highly variable. Needless to say, they didn’t try to take a sight line from every point within the pen that would have been infeasible. The detail Mr. Williams mentioned about the height of the sheep he thought was pretty close to moot. If they were talking about bighorn giraffe, there might be sufficient height to make a difference, but the difference they were talking about might be a foot or two maximum above the three feet. Over that distance and over that height would make very little difference whatsoever—inches, in fact. What is recommended is once architecture is proposed and they know what it is they are trying to screen, a screening study be conducted to determined what sorts of barriers should be appropriate, what they would be comprised of, whether they would be solid or landscaping, etc. That concluded his remarks and he was available for questions. Commissioner Schmidt asked if any of the residences in the Canyons built or proposed to be inside that 400-yard limit. Mr. Joy replied that all of the homes within the Canyons project were all required to stay outside the 400-yard area. Commissioner Schmidt asked if there was any undeveloped property that could come in after this that would have the same problem. Mr. Joy said no. As part of that project, the Canyons was required to provide a conservation easement available to the Department of Fish & Game for that 400-yard buffer area. So it was pretty much undevelopable. Commissioner Schmidt said it was over. Mr. Joy concurred. Ms. Aylaian noted that if there were any questions the Commissioners might have regarding the processing, either by the State or Federal agencies after it goes through the City approval, the consultant could address those as well. Commissioner Schmidt asked if the City did not act on this, then the Federal agencies that would be involved will not act because the City did not act. She asked if that was correct. Ms. Aylaian said yes. Commissioner R. Campbell wasn’t sure where he would get the proper answer, but thought if he asked the question, he imagined the people out there would know which one should respond to it. One of his concerns he read in all the material, and he did spend some time doing that, but what he read in there was in one letter that stated that actually the 250 yards is 29 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 less of a concern as hikers out in the wild and they attempt to approach the sheep and he was told that was more unsettling than what this project would cause and he was told they normally don’t move until you are about 200 yards from them and then at that point they will move. He asked if that was somewhat correct or if he was way off base. Ms. Aylaian indicated that generally it would be appropriate to ask questions of staff at this point if the public hearing was closed. Commissioner R. Campbell thought the lady who had been involved in it could answer that question, but it had to be staff. MR. STEVE NELSON, Director of Biological Services at PCR Services Corporation, One Venture Suite 115 in Irvine, California, said the answer to that question depended on who you asked it of. One of the things they found in their extensive research and interviews with sheep experts and others knowledgeable about sheep is that there is actually not a lot that everybody agrees on based on their anecdotal observations or the empirical science that has been done on the animal. In some cases they’ll have a report that there was no flight response by a sheep when someone approached within a certain distance, and someone else would report that there was a flight response when they approached them and they were at a much greater distance than that. They haven’t been able to find anybody that can say, and have it agreed to by everybody, that this is the distance that they will flee. A hiker is going to illicit a greater response in sheep than a home; that might be simply a function of habituation, quite frankly, that they don’t flee when there is a home as opposed to on a trail someplace. Commissioner R. Campbell said that brought up something that he believed happened some time back. He thought it was during the drought and bighorn sheep were drifting down into the Rancho Mirage area and to the City Hall and no one seemed too terribly concerned about it other than they were afraid that cars or vehicles would be hitting the sheep. He had to assume, because he never saw anything after on TV, radio or in the newspaper, that after they satisfied their thirst and drifted back into the hills, that there wasn’t any adverse effect, which then made him wonder how much of an effect these two homes were going to be if they do interact on occasion with humans, along with the people feeding him. It made it very difficult for them to make a decision and make a proper decision if that was even possible. Mr. Nelson completely understood that; he is a Planning Commissioner for the City of Diamond Bar and he was faced with this all the time. He pointed out that their documentation and conclusion was that the conservative thing to do here was to say that there remained potentially 30 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 significant adverse impacts due to the visual and noise effects that could spill over onto the pens. That is the conclusion they had come up with and that was what they put before them, not for them to decide whether that conclusion was correct or incorrect, that was what they came up with. Commissioner R. Campbell stated that he still had a bit of a problem with some of this because he was sure the sheep could hear the planes going over, the helicopters going over, they could hear traffic up and down Highway 74 and he thought that probably something that goes on on a daily they get accustomed to and he didn’t think they felt threatened. He thought they felt threatened if they see something coming at them, something out of the ordinary. The homes being placed there would cause some problems, but not while the lambs are there. And once the homes are there, then the possibility exists that they would become quite accustomed to whatever noise that is different between 400 yards and 250 might make. That was his concern. Mr. Nelson wished he could say he was right or wrong, but he couldn’t. He could simply tell him what the literature said; it is all over the map. Commissioner R. Campbell thanked him. Chairperson Tanner closed the public hearing and asked for Commission comments. Commissioner Limont stated that she actually had an opportunity to go with Phil Joy up to the property and her concerns right off the bat when looking at this property and knowing it is not within Bighorn and looking at the staff report, were that the pad sizes were right against our hillside ordinance and right against what they were trying to accomplish as far as hillside building in this city. So immediately the pads she believed were too large. Because she wasn’t sure exactly where they would put the home sites, so she couldn’t comment on that, but thought they would be taking a look at the things that would affect what they’ve promised our residents as far as that hillside goes and start there. She could empathize with the concerns for the bighorn sheep and a really good point was brought up. If this is such a critical area, why hasn’t Fish & Game, why hasn’t BLM, why hasn’t the Bighorn Institute stepped in and bought this property. This has been going on a while. She was glad that at least had been brought up because she didn’t think the City of Palm Desert should be running interference on that issue. But also with regard to that Environmental Impact Report, as far as sending it forward, as long as Cornishe, since it isn’t part of Bighorn and doesn’t fall under that agreement, it was hard to stand up and say they had to have a 400-foot buffer; it was just not part of it. She thought there was also a concern that it could end up under 31 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 Bighorn; in other words, they didn’t want to allow a lesser buffer just so they could get the homes built and then fall under Bighorn. She had a huge problem with the pad sizes. Commissioner S. Campbell stated that at the time when the Bighorn Institute built their pen, they knew what the boundaries of the City of Palm Desert were going to be in that area, yet they chose to go ahead and build their pen very close to that boundary and it was acceptable at the time, but it was now no longer acceptable as it is. Also, as far as this project was concerned, she was a Commissioner also in 2006 and thought that the developer had come down a long way from the 30 plus homes they were trying to build to just two pads. Actually the way these pads would be stationed in that area, would be very well camouflaged to the Bighorn Institute and the pens. She concurred with Commissioner Russ Campbell regarding to the sheep. The sheep are accustomed to all such noises. The traffic, the barking of dogs late at night, while asleep; they could have a dog barking and hear it when everything was silent. So they are accustomed to humans as they are being fed by humans at the present time. Also, if Mr. DeForge can have his home 255 yards away from the pens, she could see no reason why these other homes wouldn’t be able to have the distance to the pens. Commissioner R. Campbell said basically his comments were in his questions. Chairperson Tanner stated that he looked at this and spent quite a bit of time looking at what has been done over the last, not just six years, but many years prior to that also. He looked at a project that was proposed with demands put on for 37 homes and he, too, was a Planning Commissioner in 2006 when this project was brought before them, and the comments were that there were too many homes for that particular area. It has come down to two homes. He was a little concerned about the lot size, but thought it was a give and take. He felt that the bighorn sheep are very valuable to the Coachella Valley and Palm Desert in particular, but he also thought there could be a working relationship between the two homes that were going to be constructed and the bighorn sheep. So he would be in favor of the project going forward, and that was his motion. Commissioner R. Campbell seconded the motion. Commissioner Schmidt said she had some comments. It was a very complicated issue; it has been on the table for a long time. Commissioner Limont made the assumption that the property in question was available to buy, and she had a feeling maybe it wasn’t available for some sort of trade. As a designer, she knew a little bit about land development and 32 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 developers and she was appalled that anyone would come in with a project for 70 units, or 38 units, or 10 units on that piece of ground. She saw two. Also as a designer she looked at that property and probably one home on it within the 400-yard minimum setback would work. But it was probably not economically feasible to the developers because it is an absolutely hideous site to develop; a ravine to get a road across and it was more like 70,000 cubic yards of dirt. She didn’t think there was any landscape barrier that would do what the Institute would like for shielding the sheep. The sheep are very used to wild prey such as the hundreds of coyotes they have up on that hill. She didn’t think they were worried about the dogs, although they might be. She didn’t feel a continuance was in anyone’s best interest on this. They have been told that and she heard it very clearly, so to her it was either a vote up or down. The reason she asked Van to let everyone else speak was because she wasn’t quite sure, maybe she missed something, but she would not be in a favor of this project as presented to them. She thought for the sake of getting everyone out of square one, they either approve it or turn it down, but don’t continue it. She asked if they were sure that the public notice was clearly the way it should have been. Mr. Hargreaves stated that he discussed it with Mr. Williams and he was still confident that they have proper public notice on this item. She thanked him. Chairperson Tanner noted that they had a motion and a second on the floor. He called for a vote. Motion carried 3-2 (Commissioners Limont and Schmidt voted no). It was moved by Chairperson Tanner, seconded by Commissioner R. Campbell, approving the findings as presented by staff and adopting Planning Commission Resolution No. 2486, recommending to City Council approval of Tentative Tract 31676, subject to conditions. Motion carried 3- 2 (Commissioners Limont and Campbell voted no). IX. MISCELLANEOUS None. X. COMMITTEE MEETING UPDATES A. ART IN PUBLIC PLACES Commissioner S. Campbell reported that the meeting would be September 17. 33 MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 16, 2008 B. LANDSCAPE COMMITTEE Commissioner Limont indicated that the next meeting would be September 17. C. PROJECT AREA 4 COMMITTEE Commissioner Schmidt was unable to attend. Ms. Aylaian reviewed the issues before the committee. D. PARKS & RECREATION Chairperson Tanner provided information on the issues before the Parks & Recreation Commission. XI. COMMENTS Commissioner Schmidt complimented staff on this presentation. She knew hundreds of hours had to go into it and thought it was really well done. She wasn’t sure Phil Joy could hear her, but she wanted him to know that. Ms. Aylaian said she would pass that along. XII. ADJOURNMENT It was moved by Commissioner R. Campbell, seconded by Commissioner Schmidt, adjourning the meeting by minute motion. Motion carried 5-0. The meeting was adjourned at 8:00 p.m. ________________________________ LAURI AYLAIAN, Secretary ATTEST: _____________________________ VAN G. TANNER, Chair Palm Desert Planning Commission /tm 34