HomeMy WebLinkAboutCC RES 09-13RESOLUTION NO. 09-13
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, CERTIFYING THE FINAL ENVIRONMENTAL
IMPACT REPORT FOR THE CORNISHE OF BIGHORN PROJECT (SCH #
2004091012), ADOPTING ENVIRONMENTAL FINDINGS PURSUANT TO
THE CALIFORNIA ENVIRONMENTAL QUALITY ACT, ADOPTING A
STATEMENT OF OVERRIDING CONSIDERATIONS, ADOPTING A
MITIGATION MONITORING AND REPORTING PROGRAM, AND
APPROVING THE SUBDIVISION OF 11.87 ACRES FOR TWO HOME
SITES WEST OF INDIAN COVE, ADJACENT TO THE "CANYONS OF
BIGHORN" GOLF CLUB -CASE NO. TT 31676
WHEREAS, the City Council of the City of Palm Desert, California, did on the 12th Day of
February 2009, hold a duly noticed public hearing to consider the request by Cornishe of Bighorn,
LLC for approval of the above noted; and
WHEREAS, the City Council of the City of Palm Desert, California, previously considered the
Project at its hearing held on the 20th Day of November 2008;
WHEREAS, at its November 20, 2008, hearing, the City Council heard testimony from the
public and other interested persons regarding the Project and its impacts, including those discussed
below, and consideration of the Project was continued until February 12, 2009, for further
consideration; and
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 16th
day of September, 2008, hold a duly noticed public hearing to consider the said request and by its
Resolution No. 2486 approved TT 31676; and
WHEREAS, said application has complied with the requirements of the "City of Palm Desert
Procedure for Implementation of the California Environmental Quality Act, Resolution No. 02-60," in
that the Director of Community Development has determined that the project may significantly impact
the environment, and certification of the environmental impact report is recommended with a
statement of overriding considerations (SCH # 2004091012)
WHEREAS, at said public hearing, upon hearing and considering all testimony and
arguments, if any, of all interested persons desiring to be heard, said City Council did find the
following facts and reasons to exist to justify the approval of said request:
1. That the design or improvements of the proposed map is consistent with applicable
general and specific plans.
• The design of the subdivision leaves 10.41 acres of undisturbed or
renaturalized open space which is consistent with the study zone designation on the
general plan which is intended to review the project based on the property's hillside
characteristics.
2. That the site is physically suitable for residential development.
• There are adjacent utilities close by and preliminary review of grading plans
has shown the site is physically suitable. Similar residential development has been
successfully accomplished on adjacent property.
RESOLUTION NO. 09-13
3. That the design of the tract map or the proposed improvements are not likely to cause
substantial environmental damage or substantially and avoidably injure fish or wildlife
or their habitat.
• An environmental impact report has been prepared that has identified potential
significant environmental impacts, and a statement of overriding considerations has
been included.
4. That the design of the parcel or the type of improvements is not likely to cause serious
public health problems.
• The subdivision will be developed in concert with oversight by all applicable
governmental agencies to avoid any public health problems.
5. That the site is physically suitable for the type of development.
• Preliminary review of plans has shown that the site is physically suitable for the
project as proposed. There is access to the site, utilities are available and the grading
and construction necessary to develop two homes are regularly accomplished on
similar sites in the vicinity.
6. That the proposed density of the map is consistent with applicable general and specific
plans.
• The map proposes two residential lots which are consistent with the study zone
of the general plan. The study zone was placed on the property in recognition of the
PR zoning on property that appeared over 10% slope -which would make it eligible for
HPR zoning. The project's density is consistent with HPR density requirements even if
it were re -designated as hillside residential. There is no specific plan applicable to the
property.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert,
California, as follows:
1. That the above recitations are true and correct and constitute the findings of the City
Council in this case.
2. The City Council finds that it has reviewed and considered the Final EIR in evaluating the
Project, that the Final EIR is an accurate and objective statement that fully complies with
CEQA and the State CEQA Guidelines, and that the Final EIR reflects the independent
judgment of the City Council. The City Council certifies the Environmental Impact Report
based on the following findings and conclusions:
a. All significant environmental impacts from the implementation of the
proposed Project have been identified in the EIR and, with
implementation of the identified mitigation measures, all impacts will be
substantially lessened, though even with implementation of all feasible
mitigation measures, some impacts will remain significant and
unavoidable. As to those impacts that remain significant, the City
Council finds that specific economic, legal, social, technological, and
2
RESOLUTION NO. 09-13
other benefits of the Project outweigh those adverse impacts, as
explained in the attached Statement of Overriding Considerations.
b. Other reasonable alternatives to the proposed Project that could
feasibly achieve the basic goals and objectives of the proposed Project
have been considered and rejected in favor of the proposed Project.
3. Pursuant to Public Resources Code section 21081, the City Council hereby adopts the
CEQA Findings and Statement of Overriding Considerations attached to this
Resolution as Exhibit A.
4. Pursuant to Public Resources Code section 21081.6, the City Council hereby adopts
the Mitigation Monitoring and Reporting Plan attached to this Resolution. In the event
of any inconsistencies between the mitigation measures as set forth herein and the
Mitigation Monitoring and Reporting Program, the Mitigation Monitoring and Reporting
Program shall control.
5. The documents and materials that constitute the record of proceedings on which these
Findings have been based are located at 73-510 Fred Waring Drive, Palm Desert,
California 92260. The custodian for these records is the City Clerk. This information is
provided in compliance with Public Resources Code section 21081.6.
6. That the City Council does hereby approve TT 31676 subject to conditions attached.
7. Staff is directed to file a Notice of Determination with Riverside County within five (5)
working days of final Project approval.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert City
Council, held on this 12th day of February, 2009, by the following vote, to wit:
AYES: FERGUSON, KELLY, and SPIEGEL
NOES: FINERTY
ABSENT: BENSON
ABSTAIN: NONE
ATTEST:
CHELLE D.ZLASSSid, CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
Xe‘i,e94,&
ROBERT A. SPIEGEL, i4Y
3
RESOLUTION NO. 09-13
CONDITIONS OF APPROVAL
CASE NOS. TT 31676
Department of Community Development:
1. The development of the property shall conform substantially with exhibits on file with the
Department of Community Development, as modified by the following conditions.
2. All requirements of any law, ordinance or regulation of the state, city and any other
applicable government entity, including, but not limited to, obtaining any necessary permits
from such agencies as the U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service,
California Department of Fish and Game, Regional Water Quality Control Board, among
others, shall be complied with as part of this map.
3. Recording of final map shall take place within 2 years of the date of this approval unless an
extension of time is granted; otherwise said approval shall become null, void and of no
effect whatsoever.
4. Building design and landscaping on the properties shall conform to design standards in
Section 25.15.050 (Hillside Planned Residential) of the City's Zoning Ordinance in addition
to the mitigation measures contained in the EIR.
5. Garage floors shall be a minimum 10 feet lower than pad heights.
6. A conservation easement shall be recorded on Lot B acceptable to the City Attorney.
7. The dwelling and landscape design for the two single-family residences shall comply with
the architectural guidelines for the adjacent Canyons at Bighorn.
8. All mitigation measures identified in CEQA FINDINGS (26 pages, attached as Exhibit A)
shall be incorporated into the planning, design, development, and operation of the project.
9. The applicant, its successors and assigns, shall defend, indemnify, and hold harmless
the City of Palm Desert (including its agents, officers, and employees) from any action,
claim, or proceeding against the City that attacks, challenges, or seeks to set aside this
approval with counsel chosen by the City, subject to applicant's approval of counsel and
expense at the sole expense of the applicant. If the City is aware of such an action or
proceeding, it shall promptly notify the applicant and cooperate in the defense.
Applicant upon such notification shall deposit with City sufficient funds in the judgment
of the City Finance Director to cover any expense of defending such action without any
offset or claim against said deposit to assure that the City expends no City funds. This
condition does not prohibit the City from participating in the defense of the action or
proceeding.
4
RESOLUTION NO. 09-13
Department of Public Works:
GENERAL
1. Landscaping maintenance of any common areas and property frontages shall be
provided by a homeowners association and or property owner, shall be water efficient in
nature and in accordance with the City of Palm Desert landscape design standards.
Applicant shall be responsible for executing a declaration of Conditions, Covenants and
Restrictions, which declaration shall be approved by the City of Palm Desert and
recorded with the County Recorder. The declaration shall specify: (a) the applicant
shall oversee the formation of a property owners association; (b) the property owners
association shall be formed prior to the recordation of the Map; and (c) the
aforementioned landscaping shall be the responsibility of the property owners
association. Landscaping plans shall be submitted for review simultaneously with
grading plans.
2. A complete preliminary soils investigation, conducted by a registered soils engineer,
shall be submitted to, and approved by, the Department of Public Works prior to the
issuance of a grading permit.
3. The maintenance of any retention areas shall be by the homeowners association and
stipulated in the CC&R's.
BONDS AND FEES
1. Drainage fees, in accordance with Section 26.49 of the Palm Desert Municipal Code
shall be paid prior to recordation of final map.
2. Signalization fees, in accordance with City of Palm Desert Resolution Nos. 79-17 and
79-55, shall be paid prior to recordation of final map.
3. The project shall be subject to Transportation Uniform Mitigation Fees (TUMF).
Payment of said fees shall be at the time of building permit issuance.
4. A standard inspection fee shall be paid prior to issuance of grading permits.
5. Grading bonds are required.
DESIGN PLANS
1. Storm drain/retention area design and construction shall be contingent upon a drainage
study prepared by a registered civil engineer that is reviewed and approved by the
Department of Public Works prior to start of construction.
2. Complete grading and improvement plans and specifications on electronic files shall be
submitted to the Director of Public Works for checking and approval prior to issuance of
any permits
3. Improvement plans for utility systems shall be approved by the respective provider or
service districts with "as -built" plans submitted to the Department of Public Works prior
to project final. Easements for utilities on private streets shall be granted on final map.
5
RESOLUTION NO. 09-13
4. Pad elevations, as shown on the tentative map are subject to review and modification in
accordance with Chapter 27 of the Palm Desert Municipal Code.
REQUIRED CONSTRUCTION
1. Full improvements of interior streets based on residential street standards in
accordance with Section 26.40 of the Palm Desert Municipal Code shall be provided.
2. All public and private improvements shall be inspected by the Public Works
Department.
3. Applicant shall comply with provisions of Palm Desert Municipal Code Section 24.12,
Fugitive Dust Control as well as Section 24.20, Storm water Management and
Discharge Control.
4. Prior to the start of construction, the applicant shall submit satisfactory evidence to the
Director of Public Works of intended compliance with the National Pollutant Discharge
Elimination System (NPDES) General Construction Permit for storm water discharges
associated with construction. Developer must contact Riverside County Flood Control
District for informational materials.
SPECIAL CONDITIONS
1. All grading shall be done under direct supervision of a registered soils engineer. In the
event any archaeological resources, historic resources, or traditional burial sites are
unearthed or discovered, the Project shall comply with the provisions and conservation
measures set forth by CEQA (§§ 21083.2, 21084.1) and the CEQA Guidelines (§
15064.5).
2. Provision for the continuation of any existing access rights which may be affected by
this project shall be included prior to recordation of the final map.
3. Prior to recordation of the final map and the issuance of any permits associated with
this project, applicant shall provide evidence of legal access rights.
Fire Department:
1. All buildings shall be accessible by an all weather roadway extending to within 150' of all
portions of the exterior wall of the structure. The roadway shall not be less than 24' of
unobstructed width and 13'6" of vertical clearance. Dead-end roads in excess of 150' shall
be provided with a minimum 45' radius tum-around.
2. The required water system including fire hydrants shall be installed and accepted by the
appropriate water agency prior to any combustible building materials being placed on
the lot. Three sets of water plans are to be submitted to the Fire Marshal.
3. The applicant or developer shall prepare and submit to the Fire Marshal's office for
approval, a site plan designating required fire lanes.
4. Blue dot retro-reflectors shall be placed in the street 8" from centerline to the side that
the fire hydrant is on, to identify hydrant locations.
6
RESOLUTION NO. 09-13
EXHIBIT A
CEQA FINDINGS
I. INTRODUCTION
The City of Palm Desert (the "City") has considered the proposed project, as submitted by Cornishe of
Bighorn, LLC (the "Applicant"). The proposed Cornishe of Bighorn project (the "Project") consists of the
subdivision of a 12 acre site to create two residential lots for the development of one single family home
on each lot. The City's findings regarding the Project are as follows:
A. PROJECT DESCRIPTION
The original tract map for the Project was filed in August of 2003. The original tract map proposed the
development of up to 57 dwelling units on four residential lots. The initial application was revised to
propose 38 dwelling units, which was evaluated as the proposed project (the "Original Project") in the
Draft EIR. The 38 units were to be located in seven multi -unit structures on five residential lots occupying
approximately 4.32 acres of the Project site. The remaining undeveloped areas were intended to remain
in perpetual open space. Access to the Project site was to be provided via two access points, a 30-foot
easement that would traverse Dead Indian Creek north of the Project site, and a 20-foot road connecting
to the Indian Cove neighborhood within the Canyons at Bighorn community to the east. As an alternative
to the Original Project, the Applicant proposed an eight -lot single-family subdivision with access restricted
to the east at Indian Cove. Impacts of the eight -unit alternative were evaluated in the Draft EIR as the
Reduced Project Alternative. In addition, the City directed its consultant to include a two -unit residential
alternative for analysis in the Draft EIR. Impacts of the two -unit alternative were evaluated in the Draft
EIR as the Hillside Limited Alternative.
In response to the comments received on the Draft EIR, the Applicant explored options for a smaller
project and in November 2006, submitted to the City a newly revised tentative tract map for a two -lot
residential alternative, herein referred to as the New Preferred Alternative. The New Preferred Alternative
provides specific Tots, pad areas for each residence, and associated garages as well as the grading
necessary to create those pads. Although the Draft EIR complied with CEQA and the State CEQA
Guidelines regarding the analysis of the Original Project, the City circulated the New Preferred Alternative
for public review and comment to augment the Draft EIR. The Project addressed in these findings is the
New Preferred Alternative.
B. LEGAL REQUIREMENTS
Public Resources Code section 21002 states that "public agencies should not approve projects as
proposed if there are feasible alternatives or feasible mitigation measures available which would
substantially lessen the significant environmental effects of such projects[.]" Section 21002 further states
that the procedures required by CEQA "are intended to assist public agencies in systematically identifying
both the significant effects of proposed projects and the feasible alternatives or feasible mitigation
measures which will avoid or substantially lessen such significant effects."
Pursuant to Section 15091 of the State CEQA Guidelines, the City may only approve or carry out a
project for which an EIR has been completed that identifies any significant environmental effects if the
City makes one or more of the following written finding(s) for each of those significant effects
accompanied by a brief explanation of the rationale for each finding:
RESOLUTION NO. 09-13
1. Changes or alterations have been required in, or incorporated into, the project
which will avoid or substantially lessen the significant environmental impact as
identified in the EIR; or
2. Such changes or alterations are within the responsibility and jurisdiction of a
public agency other than the City, and such changes have been adopted by such
other agency, or can and should be adopted by such other agency; or
3. Specific economic, social, legal or other considerations make infeasible the
mitigation measures or project alternatives identified in the EIR.
Notably, section 21002 requires an agency to "substantially lessen or avoid" significant adverse
environmental impacts. Thus, mitigation measures that "substantially lessen" significant environmental
impacts, even if not completely avoided, satisfy section 21002's mandate. (Laurel Hills Homeowners
Association v. City Council (1978) 83 Cal.App.3d 515, 521 ("CEQA does not mandate the choice of the
environmentally best feasible project if through the imposition of feasible mitigation measures alone the
appropriate public agency has reduced environmental damage from a project to an acceptable level");
Las Viraenes Homeowners Federation. Inc. v. County of Los Anaeles (1986) 177 Cal. App. 3d 300, 309
("[t]here is no requirement that adverse impacts of a project be avoided completely or reduced to a level
of insignificance ... if such would render the project unfeasible").)
CEQA requires that lead agencies adopt feasible mitigation measures or alternatives to substantially
lessen or avoid significant environmental impacts. An agency need not, however, adopt infeasible
mitigation measures or alternatives. (State CEQA Guidelines, § 15091, subds. (a), (b).) Public
Resources Code section 21061.1 defines "feasible" to mean "capable of being accomplished in a
successful manner within a reasonable period of time, taking into account economic, environmental,
social, and technological factors." State CEQA Guidelines section 15091 adds "legal" considerations as
another indicia of feasibility. (See also Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Ca1.3d
553, 565.) Project objectives also inform the determination of "feasibility." (City of Del Mar v. City of San
Diego (1982) 133 Cal.App.3d 401, 417.) "'[F]easibility' under CEQA encompasses 'desirability' to the
extent that desirability is based on a reasonable balancing of the relevant economic, environmental,
social, and technological factors." (Id.; see also Seauovah Hills Homeowners Assn. v. City of Oakland
(1993) 23 Cal.App.4th 704, 715.)
Environmental impacts that are less than significant do not require the imposition of mitigation measures.
(Leonoff v. Monterey County Board of Supervisors (1990) 222 Cal.App.3d 1337, 1347.) For those
significant effects that cannot be mitigated to a less than significant level, the public agency is required to
find that specific overriding economic, legal, social, technological, or other benefits of the proposed
project outweigh the significant effects on the environment (see, Pub. Res. Code § 21081(b)).
The California Supreme Court has stated, "[t]he wisdom of approving ... any development project, a
delicate task which requires a balancing of interests, is necessarily left to the sound discretion of the local
officials and their constituents who are responsible for such decisions. The law as we interpret and apply
it simply requires that those decisions be informed, and therefore balanced." (Citizens of Goleta Valley v.
Board of Supervisors (1990) 52 CaI.3d 553, 576.) In addition, perfection in a project or a project's
environmental alternatives is not required; rather, the requirement is that sufficient information be
produced "to permit a reasonable choice of alternatives so far as environmental aspects are concerned."
Outside agencies (including courts) are not to "impose unreasonable extremes or to interject [themselves]
within the area of discretion as to the choice of the action to be taken." (Residents Ad Hoc Stadium Com.
v. Board of Trustees (1979) 89 Cal.App.3d 274, 287.)
C. SUMMARY OF ENVIRONMENTAL FINDINGS
At a regular session assembled on November 20, 2008, the City Council determined that based on all of
the evidence presented, including, but not limited to, the Final EIR, written and oral testimony given at
meetings and hearings, and submission of comments from the public, organizations and regulatory
RESOLUTION NO. 09-13
agencies, the following environmental impacts associated with the Project are: 1) less than significant and
do not require mitigation; or 2) potentially significant and but can be avoided or reduced to a level of
insignificance through the identified mitigation measures. This document contains the findings required
under the California Environmental Quality Act ("CEQA") (Public Resources Code, §§ 21000 et seq.) and
the State CEQA Guidelines (California Code of Regulations, title 14, §§15000 et seq.).
A Mitigation Monitoring and Reporting Program ("MMRP") has been prepared pursuant to Public
Resources Code Section 21081.6, which requires adoption of a MMRP for projects in which the lead
agency has required changes or adopted mitigation to avoid significant environmental effects. The City is
the lead agency for the proposed Project and is, therefore, responsible for administering and
implementing the MMRP. The primary purpose of the MMRP is to ensure that the mitigation measures
identified for the Project are implemented, thereby minimizing identified environmental effects. The
MMRP would be in place throughout all phases of the Project, including during design (pre -construction),
construction, and operations (post -construction both prior to and post -occupancy). The City Department
of Community Development shall be responsible for administering the MMRP activities via staff, other City
departments (e.g., Department of Building and Safety, Department of Public Works, etc.), consultants,
and contractors. The Community Development Department will also ensure that monitoring is
documented through reports and that deficiencies are promptly corrected. The designated environmental
monitor (e.g., City building inspector, project contractor, certified professionals, etc., depending on the
provisions specified in the MMRP) will track and document compliance with mitigation measures, note
any problems that may result, and take appropriate action to enforce the implementation of the mitigation
measures as required.
No comments made in the public hearings conducted by the Planning Commission or City Council or any
additional information submitted to the City has produced any substantial new information requiring
recirculation or additional environmental review of the Final EIR under CEQA because no new significant
environmental impacts were identified, no substantial increase in the severity of any environmental
impacts would occur, and no feasible Project mitigation measures or Project alternatives as defined in
State CEQA Guidelines section 15088.5 were rejected. Additionally, no substantial evidence exists which
indicates that any of the circumstances described in State CEQA Guidelines section 15162 would require
preparation of a subsequent or supplemental EIR.
II. ENVIRONMENTAL EFFECTS AND MITIGATION MEASURES
These findings summarize the data and conclusions contained in the final environmental impact report
("FEIR") for the Project, which includes the Draft EIR, dated December 2005, the New Preferred
Alternative, an Addition to the Draft EIR, dated March 2008 ("DEIR Addition"), the Responses to
Comments, and the entire administrative record, all of which are incorporated into these findings as if set
forth in full. Consistent with the requirements of CEQA, and the State CEQA Guidelines, the FEIR
discusses environmental effects in proportion to the severity and probability of occurrence. The FEIR
identifies a number of potentially significant adverse environmental effects of the Project. The FEIR also
identifies mitigation measures which would reduce or eliminate potential adverse effects. These effects
and the mitigation measures are summarized below.
A. IMPACTS DETERMINED TO BE LESS THAN SIGNIFICANT
In accordance with CEQA Guidelines Section 15128, the FEIR described categories of potential effects
that were not found to be significant and were therefore not discussed in detail in the FEIR. An Initial
Study was prepared for the Project in September 2004 and is included as Appendix A in the FEIR. The
Initial Study indicates why the Project's potential effects on these issues were determined not to be
significant and were therefore eliminated from further consideration in the FEIR. The issue areas
determined to be less than significant by the Initial Study include the following:
3
RESOLUTION NO. 09-13
• Agricultural Resources
• Historic and Paleontological Resources
• Geology/Soils
• Hazards/Hazardous Materials
• Mineral Resources
• Population/Housing
• Public Services
• Recreation
• Utilities/Service Systems
Based on the Initial Study and the whole of the record, the Project was determined not to result in
significant impacts in any of the foregoing issue areas.
B. EFFECTS THAT CAN BE MITIGATED TO A LESS THAN SIGNIFICANT LEVEL
The City Council finds that the following environmental impacts identified in the EIR are potentially
significant but can be mitigated to a less than significant level. Other impacts set out below were
determined to be Tess than significant, but were considered in full in the EIR. The potentially significant
impacts and the mitigation measures which will reduce them to a less than significant level are set out in
the EIR and are summarized as follows:
AESTHETICS
Potential Impact
The Project would alter the natural appearance of the Project site and introduce new sources of Tight, but
such alterations would not be significant.
Finding
Mitigation measures are not required for impacts that are Tess than significant. Nevertheless, pursuant to
CEQA section 21081(a)(1), changes or alterations have been required in, or incorporated into, the Project
which further reduce the already less than significant effect.
Rationale
The Project would alter the natural appearance of less than half of the area of the Project site. The
dwelling and landscape design for the two single-family residences would comply with the architectural
guidelines for the adjacent Canyons at Bighorn, appearing as a minor extension of that community.
Compliance with the Comprehensive General Plan policies and Municipal Code requirements and
completion of design review by the City's Architectural Review Commission, will ensure that the Project
would not substantially degrade the existing visual character or quality of the site or surrounding area,
notwithstanding the area required for site preparation and grading. Therefore, the impacts to on -site
aesthetic resources would be less than significant.
4
RESOLUTION NO. 09-13
The Project would not substantially affect views from the surrounding residential uses to the east and
north or from public views across SR-74, a state scenic highway. Therefore, the Project, well over 1,000
feet from the highway, would not substantively affect the scenic content of such views.
All related projects would be subject to the City's permitting and approval process. Furthermore, each
related project, identified for cumulative impacts assessment, is located sufficiently distant from the
Project site as to have a minimal cumulative effect. As such, no significant cumulative impacts regarding
aesthetics, views, and light or glare would occur.
Overall, the Project's aesthetic impacts would be less than significant. However, mitigation measures are
imposed to further ensure that aesthetic impacts remain less than significant.
Mitigation Measures
Mitigation Measure IV.A-1: All open areas not used for buildings, roadways, driveways, parking areas,
or walkways shall be landscaped to reduce visibility of the Project improvements from adjacent properties
in accordance with a Landscape Plan to be prepared by a licensed landscape architect to the satisfaction
of the Community Development/Planning Department. The Landscape Plan shall specify plant materials,
heights upon planting or box sizes, and locations. Remaining existing natural landscape areas shall be
retained and maintained in accordance with the Landscape Plan.
Mitigation Measure IV.A-2: All night lighting installed within the Project site shall be shielded and
directed in a manner so that such lighting does not shine upwards or towards the lambing pen to the
south of the Project site and, thus, is generally not visible from the existing sheep pens. In addition,
lighting shall not be a high glare type of lighting, shall be directed away from nearby residential uses and
shall be confined to the site.
References:
DEIR Addition, at pp. 25-29.
CULTURAL RESOURCES
Impacts
The Project will have a less than significant effect on cultural resources.
Finding
CEQA does not require the imposition of mitigation measures where impacts will be less than significant.
Rationale
The Project would not disturb, damage, or degrade any potentially unique historic, archaeological or
paleontological resources or sites and, therefore, would have no adverse impact upon such
resources/sites.
A field survey was also conducted to inspect the ground surface for prehistoric and historic artifacts and
cultural features. Based on the results of the cultural resources record search, there were no recorded
historic resources within the boundaries of the project area. Additionally, no recorded cultural resources
were discovered during the field survey conducted for the project site. However, six cultural resources
were recorded within a one -mile radius of the project area. Thus, the project could potentially encounter
sub -surface archaeological resources during grading and construction activities at the site.
5
RESOLUTION NO. 09-13
In the event any archaeological resources, historic resources, or traditional burial sites are unearthed or
discovered, the Project would be required to comply with the provisions and conservation measures set
forth by CEQA (§§ 21083.2, 21084.1) and the CEQA Guidelines (§ 15064.5). As such, impacts of the
Project would be Tess than significant.
As with the Project, all other related projects would be required to comply with CEQA and the CEQA
Guidelines. Therefore, cumulative impacts regarding historic, archaeological and paleontological
resources would also be less than significant.
Mitigation Measures
None required.
References
Draft EIR, at p. 171.
DEIR Addition, at p. 44-45.
Final EIR, Response to Comment 4.
HYDROLOGY
Impacts
The Project will have a Tess than significant effect on hydrology.
Finding
CEQA does not require the imposition of mitigation measures where impacts will be Tess than significant.
Rationale
The Project would introduce a relatively small amount of impervious surface areas on -site altering the
site's hydrology marginally. Runoff flows and volumes, and sediment Toads would be increased slightly
over existing conditions for ultimate discharge into Dead Indian Creek.
The Project would require permits from the U.S. Army Corps of Engineers, the California Department of
Fish and Game, the Colorado River Basin Regional Water Quality Control Board, and the Coachella
Valley Water District for the construction of the access road over the natural drainage channel along the
site's eastern boundary. However, no access roads are proposed across Dead Indian Creek. Therefore,
impacts to "jurisdictional waters" would be reduced in comparison to the potential impacts of the Original
Project.
The Project would also include on -site drainage improvements in accordance with City requirements. As
such, with compliance with the applicable rules and regulations, impacts regarding hydrology and surface
water quality attributable to the Project would be Tess than significant, and no mitigation would be
required.
Cumulative impacts regarding hydrology and surface water quality would also be less than significant with
the Project. Each related project would be required to comply with City, state, and federal requirements.
In addition, each related project would be evaluated individually by the City to ensure adequate system
6
RESOLUTION NO. 09-13
capacity. As such, cumulative impacts regarding hydrology and surface quality would be Tess than
significant.
Mitigation Measures
None required.
References
DEIR Addition, at pp. 45-47.
LAND USE AND PLANNING
Impacts
The Project will have a Tess than significant effect on land use planning.
Finding
CEQA does not require the imposition of mitigation measures where impacts will be less than significant.
Rationale
The Project would be consistent with the City's General Plan and zoning code. The Project would appear
as a minor extension of the adjacent Canyons at Bighorn community and would be subject to
Architectural Review by the City. Therefore, no adverse compatibility relationships with the adjoining
residential land uses or the Bighorn Institute are predicted to occur, and no division of community effects
would ensue. The Project's impact on Land Use and Planning would be less than significant, and no
mitigation measures would be required. As each related project would be required to comply with the
City's land use policies and zoning regulations, and as the location of the Project would be located distant
from other related projects, no cumulative impacts would occur.
Additionally, the CVMSHCP's Land Use Adjacency Guidelines are intended to avoid or minimize indirect
effects from development adjacent to, or within Conservation Areas. Indirect effects are referenced as
"edge effects" and include noise, lighting, drainage, intrusion of people into adjacent conservation areas
and the introduction of non-native plants, or predators (i.e. dogs,
cats, etc.), and does not apply to existing permitted land uses or development. While it is noted that these
are guidelines only and that the City determines whether or not these guidelines are applicable on a case -
by -case basis, the Project would be required to conform with these
land use adjacency guidelines. Mitigation Measures IV.C-1 through IV.C-9, see below, which are
required as part of the Project, are concurrent with these guidelines as they are intended to
minimize indirect effects of the project by limiting when construction would occur, prohibiting
dogs on -site, and by requiring that mechanical equipment and activities be screened from view or
be located to the north of residences such that noise, lighting, and intrusion of predators, and etc.
would be avoided. With the implementation of those recommended mitigation measures, the Project
would be consistent with the land use adjacency guidelines.
Mitigation Measures
None required.
References
7
RESOLUTION NO. 09-13
DEIR Addition, at pp. 47-49.
Final EIR, Response to Comment 2.
C. EFFECTS THAT WILL REMAIN SIGNIFICANT DESPITE IMPOSITION OF ALL FEASIBLE MITIGATION
MEASURES
The City Council finds that the following environmental impacts identified in the EIR are potentially
significant. Mitigation has been identified that will reduce the impact to the extent feasible; however, there
is no feasible mitigation that will completely eliminate that significant impact. The potentially significant
impacts and the mitigation measures which will reduce them to the extent feasible are set out in the EIR
and are summarized as follows:
AIR QUALITY
Impacts
The Project would exceed localized significance thresholds for NO. emissions during construction, which
would be a significant impact. All other emissions associated with the Project are Tess than significant.
Finding
Pursuant to CEQA section 21081(a)(1), changes or alterations have been required in, or incorporated
into, the Project which mitigate this effect to the extent feasible. Specific economic, legal, social ,
technological or other considerations, including considerations for the provision of employment
opportunities for highly trained workers, make infeasible any other mitigation measures or alternatives
identified in the environmental impact report for the project. As explained in Section IV, below, specific
overriding economic, legal, social, technological, and other benefits of the project outweigh this significant
effect on the environment.
Rationale
During construction, emissions from the Project would not exceed regional and local SCAQMD
significance thresholds for ROC, CO, SOx, PM10, or PM2,5. The Project would, however, exceed localized
significance thresholds for NO.. As such, mitigation measures IV.B-1 through IV.B-9, among others, shall
be imposed to reduce NO. and other emissions from the Project. Specifically, mitigation measures IV.B-4
through IV.B-7 will reduce NO. emissions during construction by reducing engine use as much as
possible. However, even with implementation of the mitigation measures, the Project's construction
emissions would exceed NO. threshold levels, resulting in significant construction air quality impacts.
Utilizing SCAQMD localized significance thresholds (LST) for humans as an indicator of potential impacts
upon the bighorn sheep during construction, the Project would have a Tess than significant impact on
sheep in the nearby lambing pen.
Emissions during the operational phase of the Project would be approximately five percent of those
forecast for the Original Project, which the Draft EIR (December 2005) determined to be less than
significant.
The DEIR Addition analyzed the Project's greenhouse gas (GHG) emissions. Operational emissions
would be less than one -tenth of the Project's construction emissions, which the DEIR Addition found to be
a level of statistical insignificance. The Project would also comply with the goals of the State of California
as it would incorporate energy reducing features such as the installation of efficient appliances, fixtures,
and infrastructure.
8
RESOLUTION NO. 09-13
Regarding the City's determination of significance, State CEQA Guidelines section 15064(b) provides that
the "determination of whether a project may have a significant effect on the environment calls for careful
judgment on the part of the public agency involved, based to the extent possible on scientific and factual
data" and further that an "ironclad definition of significant effect is not always possible because the
significance of an activity may vary with the setting." The State CEQA Guidelines further indicate that
even when thresholds are established, they may include "identifiable quantitative, qualitative or
performance level of a particular environmental effect (.]" (State CEQA Guidelines, § 15064.7.)
Some suggest that a zero emissions threshold would be appropriate in a climate change analysis;
however, the City rejects that suggestion. First, prior CEQA case law makes clear that the "one additional
molecule" rule is not consistent with CEQA. (Communities for a Better Environment v. California
Resources Agency, 103 Cal.App.4th 98 (2002).) Second, such a rule appears inconsistent with the
State's approach to mitigation of climate change impacts. AB32 does not prohibit all new greenhouse
gas emissions; rather, it requires a reduction in statewide emissions to a given level. Thus, AB32
recognizes that greenhouse gas emissions will continue to occur.
The California Air Pollution Control Officers Association published a White Paper (January 2008) that
explored several options for setting numeric, non -zero thresholds. The White Paper acknowledges
medium to high uncertainty as to each potential numeric threshold "due to the uncertainty associated with
the effectiveness of AB 32 implementation overall, the new character of GHG reduction strategies on a
project basis, the immaturity of GHG reduction technologies or infrastructure (such as widespread
biodiesel availability), and the uncertainty of GHG reduction effectiveness of certain technologies (such as
scientific debate concerning the relative Iifecycle GHG emissions of certain biofuels, for example)."
Application of those thresholds, however, may first require enactment of a specific Climate Action Plan in
a general plan or other large scale policy document. Based on the above, the City finds that none of the
potential numeric thresholds would be appropriate for application to this Project. Thus, for the purposes
of analyzing this Project, and consistent with one of the CAPCOA's identified approaches to climate
change analysis, the City has analyzed potential climate changes impacts without setting a specific
threshold.
Nevertheless, the City notes that several air districts have attempted to develop numeric thresholds. For
example, the San Joaquin Valley Air Pollution Control District recommended a threshold of 38,477 metric
tons of CO2eq for a dairy project; though, it has not proposed formal adoption of that threshold at this
time. Also, the South Coast Air Quality Management District (SCAQMD) is currently in the process of
setting a greenhouse gas threshold. At this time, and for discussion purposes only, the SCAQMD's
Working Group proposed a threshold of 3,000 metric tons of CO2eq, plus exceedance of Title 24
requirements. While not determinative, these thresholds are relevant to the City's overall consideration of
this project's emissions and their ultimate significance. Specifically, at 39 metric tones per year of CO2eq,
the Project falls far below either of the two proposed thresholds described above. Based on all of the
above, the City finds that the Project's contribution to climate change will not be cumulatively
considerable.
Finally, as the Project would be consistent with the underlying growth assumptions on which the Air
Quality Management (AQMP) is based, the long term increase in emissions that would occur as a result
of development of the Project site would not be cumulatively considerable.
Mitigation Measures
Mitigation Measure IV.B-1: Water three times daily or apply non -toxic soil stabilizers according to
manufacturers' specifications, as needed to reduce off -site transport of fugitive dust from all unpaved
staging areas and unpaved road surfaces. Additionally, install AQMD approved track -out prevention
devices for construction vehicles leaving the Project site.
Mitigation Measure IV.B-2: All private streets shall be swept as needed during construction, but not
more frequently than hourly, if visible soil material has been carried onto adjacent paved roads.
9
RESOLUTION NO. 09-13
Mitigation Measure IV.B-3: Construction equipment shall be visually inspected prior to leaving the site
and loose dirt shall be washed off with wheel washers as necessary.
Mitigation Measure IV.B-4: All construction equipment shall be properly tuned and maintained in
accordance with manufacturer's specifications.
Mitigation Measure IV.B-5: General contractors shall maintain and operate construction equipment to
minimize exhaust emissions. During construction, trucks and vehicles in loading and unloading queues
shall have their engines turned off when not in use to reduce vehicle emissions. Construction activities
should be phased and scheduled to avoid emissions peaks and discontinued during second -stage smog
alerts.
Mitigation Measure IV.B-6: To the extent possible, petroleum powered construction activity shall utilize
electricity from power poles rather than temporary diesel power generators and/or gasoline power
generators.
Mitigation Measure IV.B-7: On -site mobile equipment shall be powered by alternative fuel sources (i.e.,
methanol, natural gas, propane or butane) as feasible.
Mitigation Measure IV.B-8: The Applicant shall, as feasible, install solar or low -emission water heaters
that exceed the requirements of the National Appliance Energy Conservation Act (NAECA) and the
American Society of Heating, Refrigeration and Air Conditioning Engineers (ASHRAE), to reduce energy
consumption.
Mitigation Measure IV. B-9: The Applicant shall, as feasible, install energy -efficient appliances (i.e.,
ENERGY STAR) to reduce energy consumption.
References
DEIR Addition, at pp. 29-36.
California Air Pollution Control Officers Association, "CEQA & Climate Change: Evaluating and
Addressing Greenhouse Gas Emissions from Projects Subject to the California Environmental Quality
Act," (January 2008).
San Joaquin Valley Air Pollution Control District, "Supplemental Environmental Impact Report, Van Der
Kooi Dairy (SCH # 2006011107)," Appendix C.
South Coast Air Quality Management District, "Draft Guidance Document — Interim CEQA Greenhouse
Gas (GHG) Significance Threshold," (October 2008).
BIOLOGICAL RESOURCES
Impacts
The Project would not adversely affect sensitive biological communities or species. However, the Project
could adversely affect captive Peninsula Bighorn Sheep at the Bighorn Institute. Therefore, the Project is
presumed to have a significant adverse biological impact.
Finding
Pursuant to CEQA section 21081(a)(1), changes or alterations have been required in, or incorporated
into, the Project which mitigate this effect to the extent feasible. Specific economic, legal, social ,
10
RESOLUTION NO. 09-13
technological or other considerations, including considerations for the provision of employment
opportunities for highly trained workers, make infeasible any other mitigation measures or alternatives
identified in the environmental impact report for the project. As explained in Section IV, below, specific
overriding economic, legal, social, technological, and other benefits of the project outweigh this significant
effect on the environment.
Rationale
The New Preferred Alternative would not adversely affect sensitive communities, nesting habitat for
sensitive birds, sensitive plant species, the barefoot gecko (Coleaonyx switaki), the desert tortoise
(Gopherus agassizi), the burrowing owl (Athene cunicularia), wildlife movement, nor free roaming
specimens of the Peninsular bighorn sheep (Ovis canadensis cremnobates), as the site either does not
provide such habitat or is well removed from the established ranges of the respective species. Impacts to
wildlife movement would also be less than significant.
Concern for impacts to captive adult bighorn sheep and born lambs in the lambing pen on the Bighorn
Institute property south of the Project site has been a significant factor in developing several previous
alternatives, as well as the New Preferred Alternative (the "Project" addressed in these findings). As set
forth in the FEIR, documented evidence is inconclusive regarding the threshold of disturbance that would
be detrimental to the captive breeding program for Peninsular Bighorn Sheep operated by the Bighorn
Institute. In connection with the approval of the Altamira (now Canyons at Bighorn) project, forty
biologists and others having knowledge and familiarity with bighorn sheep opined as to a reasonable
separation between ongoing human activity in a built environment and the lambing pens at the Bighorn
Institute. The biologists provided a wide range of opinions, varying from no separation to over a mile. In
an effort to settle litigation regarding the Altamira project among the City, the Bighorn Institute, and
Altamira, a legal, not biological, compromise was ultimately agreed upon to establish a 400 yard buffer
between construction activity on the Canyons at Bighorn property and the Lambing pen at the Bighorn
Institute. There is thus no definitive scientific basis to establish that a buffer of 400 yards or any other
distance is required to protect the captive breeding program at the Bighorn Institute. The Cornishe
Property was specifically excluded in the legal settlement from the buffer area. (Final EIR, at pp. 11-2 to II-
4; also Response to Comment 5.)
Bighorn sheep are understood to be more responsive to visual stimuli than they are to audio stimuli. Site
preparation for and construction of two large homes with subsequent landscaping would occur in plain
view of the lambing pen. Such intense visual construction activities could be expected out of an
abundance of caution to significantly impact the bighorn sheep in the pen. For the purposes of the FEIR,
construction is defined as grading, excavation, framing, siding, roofing, landscaping, installation of doors
and windows, and any interior work that utilizes pneumatic tools or compressors that would be located
outside the proposed residences.
Following construction, the orientation of the access driveway from the Indian Cove Neighborhood to the
southerly side of two proposed residential Tots dictates that all vehicular access must approach the
lambing pen prior to approaching the two residences even though construction of the driveway would
remain within the lower elevations of the Project site with berms or walls along the alignment as
necessary to reduce glare and views of on -coming traffic from the lambing pen. As no design information
is available, it cannot be said that the two residences would be entirely oriented to the north, leaving
entirely passive facades facing the lambing pen to the south. Thus, activity associated with normal
residential occupancy, including vehicular arrivals and departures for occupants, visitors and guests,
maintenance, mail delivery and other deliveries, as well as some of the associated outdoor activities and
nighttime illumination of outdoor and indoor spaces can be presumed to be visible from the pen. The
understanding of sheep behavior is not sufficiently refined to specify an activity level (i.e., 38 dwellings or
two dwellings) at which the sheep's response is activated. Therefore, it must be conservatively assumed
that the New Preferred Alternative could still have the potential to significantly impact captive adult sheep
and born Iambs in the lambing pen through visual and, to a lesser degree, auditory habituation. Mitigation
is recommended to attempt to reduce this impact, although complete elimination of the impact is not
possible given the proximity of the Project site to the lambing pen in its current location.
11
RESOLUTION NO. 09-13
With implementation of the mitigation measures, such as Mitigation Measure IV.C-3, which provides that
the proposed homes shall be designed to screen activities from the lambing pen to the extent feasible,
impacts of the Project on biological resources would be substantially lessened. However, in the absence
of definitive scientific evidence, the City conservatively assumes that the Project would still have the
potential to significantly impact captive adult sheep and born Iambs in the lambing pen through visual
and, to a lesser degree, auditory habituation.
In response to comments received from the United States Fish and Wildlife Service, additional studies
were performed to determine the feasibility of erecting visual barriers to screen activities on the Project
site from the lambing pen on the Bighorn Institute's property. (See Final EIR, Response to Comment 2.)
The visual analysis demonstrates that the obstruction of views of the proposed residential Tots from the
lambing pen can be feasibly accomplished in large part through the erection of a system of barriers
consisting of a combination of walls, berms, and vegetation ranging in height from zero to 12 feet. Visual
barriers required to screen all activity on the Project site, however, would have to be as high as 26 feet in
some locations. Visual barriers higher than 15 feet are not feasible in the Project setting due to adverse
visual impacts caused by such barriers. A series of several short, parallel barriers of 12 to 15 feet in
height located perpendicular to the line of sight northwest of the on -site access road could screen visible
roadway activity from some portions of the lambing pen. This system of barriers in conjunction with
others designed to screen activity on the residential lots would substantively accomplish the intent to
screen the visibility of on -site activity from the view of sheep in the lambing pen. However, such a system
of barriers cannot be expected to completely screen all visible on -site activity from the lambing pen.
Thus, impacts to biological resources during construction and operation of the Project remain significant
and unavoidable. Mitigation measures identified above substantially lessen potentially significant
environmental effects on biological resources to the extent feasible. Based on the FEIR and the whole of
the record, feasible measures are not available to further reduce potential impacts on captive adult sheep
and born Iambs in the lambing pen through visual and auditory habituation to below a level of
significance.
The Project is one of thirty-two private projects that was analyzed for cumulative impacts and is covered
in the Coachella Valley Multiple Species Habitat Conservation Plan (CVMSHCP), for which a take permit
has recently been issued. Under the CVMSHCP, any loss of habitat can be mitigated through a donation
of public and privately owned land to the Reserve or through payment of fees for habitat restoration.
Therefore, implementation of the New Preferred Alternative would not have a significant cumulative
impact on naturally occurring plant and wildlife species. The cumulative impact on the Bighorn Institute
would remain significant.
Mitigation Measures
Mitigation Measure IV.C-1: Garage openings shall be oriented easterly away from the lambing pens to
the maximum extent practicable.
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.
Mitigation Measure IV.C-3: The proposed residences shall be designed so that, to the maximum extent
practicable, all activities and facilities associated with their occupancy, including indoor and outdoor
residency, landscape and other maintenance, mechanical equipment, recreational facilities, etc., be
located to the north of the residences or screened from view from the lambing pen by barriers high
enough to be effective.
12
RESOLUTION NO. 09-13
Mitigation Measure IV.C-4: No construction activities, as defined in this document, should occur during
the lambing season, which extends from January 1 to June 30. If any construction activities should occur
during the nesting season that extends beyond the lambing season (July 1st to August 31st), all suitable
habitat in the development/disturbance area of the Project shall be thoroughly surveyed for the presence
of nesting birds by a qualified biologist prior to removal. If any active nests are detected within a 300-foot
buffer of the construction activity, a buffer of at least 100 feet (300 feet for raptors) shall be delineated,
flagged, and avoided until the nesting cycle is complete or the nest has failed as determined by the
biological monitor.
Mitigation Measure IV.C-5: A biologist shall conduct a pre -construction survey, per USFWS protocols,
to ensure that no desert tortoises are affected by the project. If it is determined that tortoises may be
affected, a desert tortoise conservation plan addressing the appropriate construction management and
ongoing operational practices shall be prepared.
Mitigation Measure IV.C-6: A pre -construction survey, conducted according to reserve agency
protocols, shall be performed in order to ensure that no burrowing owls are affected by the Project. If it is
determined that burrowing owls may be affected, a burrowing owl conservation plan addressing the
appropriate construction management and ongoing operational practices shall be prepared.
Mitigation Measure IV.C-7: In order to minimize stress and disturbance to Peninsular bighorn sheep at
the Bighorn Institute, no dogs shall be permitted on the Project site, either as residents or as visitors.
Mitigation Measure IV.C-8: A permanent fence and/or wall shall be constructed around the developed
parts of the Project site to prevent free -roaming sheep from entering developed areas. The design and
location of the fence and/or wall shall be developed in consultation with a biologist and the Bighorn
Institute. No landscaping or surface water shall be allowed to occur outside the fence to prevent sheep
from being attracted to the site and exposed to danger or human activity.
Mitigation Measure IV.C-9: The Applicant shall pay the applicable Local Development Mitigation Fee.
The estimated Local Development Mitigation Fee is $5,730 per acre of development for the first year of
plan implementation. (The average annual increase of the Local Development Mitigation Fee is projected
at 3.29 percent.) Final Project design shall comply with and incorporate the Land Use Adjacency
Guidelines and all other applicable portions of the MSHCP.
References
DEIR Addition, at pp. 36-44.
Final EIR, at pp. II-2 to ll-4; Responses to Comments 2, 5, 8, 9, 11, 12, 13, 17, 19, and 22.
Final Recirculated Coachella Valley Multiple Species Habitat Conservation Plan and Natural Community
Conservation Plan (MSHCP) and the Final Recirculated Coachella Valley MSHCP Environmental Impact
Report/Statement (September 2007).
NOISE
Impacts
The Project would result in construction noise that could adversely affect captive Peninsula Bighorn
Sheep at the Bighorn Institute. The Project would also contribute a cumulatively considerable impact
related to roadway noise at Cahuilla Way. Construction would not adversely affect nearby residences,
and project -level operational noise impacts would be less than significant.
13
RESOLUTION NO. 09-13
Finding
Pursuant to CEQA section 21081(a)(1), changes or alterations have been required in, or incorporated
into, the Project which mitigate this effect to the extent feasible. Specific economic, legal, social ,
technological or other considerations, including considerations for the provision of employment
opportunities for highly trained workers, make infeasible any other mitigation measures or alternatives
identified in the environmental impact report for the project. As explained in Section IV, below, specific
overriding economic, legal, social, technological, and other benefits of the project outweigh this significant
effect on the environment.
Rationale
The Project's construction noise impacts at the nearest residential sensitive receptors would be less than
significant. Due to the amount of proposed site preparation and grading, the earthwork and concrete
work for two large residential homes and associated auxiliary structures would require more than three
months to complete resulting in a likely significant construction noise impact on captive adult sheep and
newborn Iambs in the nearby lambing pen. Vibration impacts associated with construction would be less
than significant, and no mitigation measures would be required.
After construction, the occupancy and use of the two dwellings under the New Preferred Alternative would
increase noise levels from on -site operations due to vehicular movement and normal occupancy of the
premises relative to the existing conditions. However, the incremental increase in noise levels would be
well below the 3 dBA CNEL significance threshold. Therefore, impacts to the existing and future sensitive
residential receptors within the adjacent Canyons at Bighorn community would be less than significant.
Operational noise impacts upon bighorn sheep in the lambing pen would be Tess than significant.
Nonetheless, mitigation measures are proposed.
As the Project would result in a potentially significant noise impact during construction to the lambing
pens in the Bighorn Institute, it is anticipated that the cumulative noise impacts would also remain
potentially significant to the Bighorn Institute during construction.
Cumulative roadway noise impacts would be significant, as buildout of the Canyons at Bighorn would
exceed the 3 dBA CNEL incremental threshold by 4.5 dBA CNEL along Cahuilla Way, east of SR-74.
The New Preferred Alternative would contribute to these cumulative noise levels resulting in significant
cumulative noise impacts on Cahuilla Way. No other public or private roadway segments would result in
a cumulative noise impact.
Mitigation Measures
The following mitigation measures are proposed to reduce the impacts of the New Preferred Alternative.
Please note that Mitigation Measures IV.C-1 through IV.C-3 are repeated here from Subsection 3,
Biological Resources above.
Mitigation Measure IV.C-1: Garage openings shall be oriented easterly away from the lambing pens to
the maximum extent practicable.
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.
14
RESOLUTION NO. 09-13
Mitigation Measure IV.C-3: The proposed residences shall be designed so that, to the maximum extent
practicable, all activities and facilities associated with their occupancy, including indoor and outdoor
residency, landscape and other maintenance, mechanical equipment, recreational facilities, etc., be
located to the north of the residences or screened from view from the lambing pen by barriers high
enough to be effective.
Mitigation Measure IV.G-1: Construction equipment shall be fitted with residential grade mufflers, where
readily available in the construction equipment fleet that regularly serves the City of Palm Desert area.
Prospective contractors shall demonstrate a good faith effort to locate such construction equipment for
use throughout the duration of Project construction.
Mitigation Measure IV.G-2: To the extent feasible, construction activities shall be scheduled so as to
avoid operating several pieces of heavy equipment simultaneously.
Mitigation Measure IV.G-3: Engine idling from construction equipment such as bulldozers and haul
trucks shall be limited, to the extent feasible.
Mitigation Measure IV.G-4: The construction staging area shall be located as far as feasible from
sensitive receptors.
Mitigation Measure IV.G-5: Construction activities shall be limited to between the hours of 6:00 A.M. and
7:00 P.M., Monday through Friday from July 1st through September 30th and between the hours of 7:00
A.M. and 6:30 P.M., Monday through Friday from October 1st through December 31 st. On Saturdays,
construction activities shall be limited to between the hours of 8:00 A.M. and 5:00 P.M. No construction
shall be allowed on Sundays, Federal holidays.or during the January through June lambing season.
Such limitation shall be placed as a condition on the grading permit in a manner meeting the approvals of
the City Engineer and the Building Official.
Mitigation Measure IV.G-6: Power maintenance equipment including leaf blowers, mowers, sanders,
saws, and other similar equipment, shall not be used along the southern and western side of the
residences nearest the Bighorn Institute lambing pens.
Mitigation Measure IV.G-7: Stationary equipment (i.e., pool machinery and HVAC equipment) shall be
designed so as to be enclosed on all sides with sound attenuation treatment on the southern and western
side of the residences, nearest the lambing pens. In addition, mechanical equipment for the residences
shall be located on the northern side of the buildings or screened from view from the lambing pen by
barriers high enough to be effective.
Mitigation Measure IV.G-8: Additional CC&Rs shall be developed that implement noise restrictions in
the development and especially in the southwestern portion of the Project site. These would include
restrictions on fireworks, gas powered blowers, the use of loud vehicles and management of on -site
celebrations or similar events.
References
DEIR Addition, at pp. 49-53.
TRANSPORTATION AND CIRCULATION
Impacts
Construction traffic associated with haul trucks importing fill soils would cause a short-term significant
impact on private streets within the adjacent Canyons at Bighorn community. Cumulative construction
15
RESOLUTION NO. 09-13
traffic associated with build -out of the Canyons at Bighorn plus the Project would also be considered
cumulatively considerable.
Finding
Pursuant to CEQA section 21081(a)(1), changes or alterations have been required in, or incorporated
into, the Project which mitigate this effect to the extent feasible. Specific economic, legal, social ,
technological or other considerations, including considerations for the provision of employment
opportunities for highly trained workers, make infeasible any other mitigation measures or alternatives
identified in the environmental impact report for the project. As explained in Section IV, below, specific
overriding economic, legal, social, technological, and other benefits of the project outweigh this significant
effect on the environment.
Rationale
Construction traffic associated with haul trucks importing fill soils would cause a short-term significant
impact on private streets within the adjacent Canyons at Bighorn community. The Project's import of
35,900 cubic yards of soil, is estimated with 64 haul truck trips per day resulting in an increase of 0.1 or
more in the Traffic Intrusion on Residential Environment (TIRE) index. A mitigation measure is
recommended to reduce the amount of fill soils to be imported by the Project to the extent feasible.
However, the amount of haul truck trips alone that would be required to import even a somewhat reduced
volume of fill to the Project site via the Canyon's private roadway system could be unexpected to the
Canyons at Bighorn residents, and perceived as intrusive. As such, construction impacts to the Canyons
at Bighorn community would be considered potentially significant.
During operations, the Project would involve a nominal incremental addition of 19 daily vehicle trips to
existing or future private traffic on the Indian Cove, Rock Creek, Canyon Drive private roadway segments
within the Canyons at Bighorn. This small increase on any existing/future private street volume of 90 or
more vehicles per day would not cause an increase of 0.1 in the TIRE index. Therefore, during the
operation of the Project, less than significant impacts would occur along the private roadways within the
Canyons community. As with the Original Project, traffic impacts of the Project (i.e., the New Preferred
Alternative) to the public roadway system would remain less than significant.
Cumulative traffic impacts would be localized for all related projects and would affect areas immediately
adjacent to or surrounding each particular project site. The nearest identified project is the remaining
buildout of the Canyons at Bighorn community. As such, the ongoing construction of that project along
with the Project would result in potentially significant cumulative impacts during construction. No
cumulative impacts are anticipated upon public roadway segments at roadway intersections operating at
levels of service worse than LOS D.
Mitigation Measures
Mitigation IV.C-2 is proposed above in Subsection 3, Biological Resources, and is recommended to also
reduce construction traffic impacts. The following below repeats the mitigation measure as presented
above:
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) proposed building pad improvement and 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 of 820 and 809 feet above sea level on Lots 1 and 2, respectively.
References
16
RESOLUTION NO. 09-13
DEIR Addition, at pp. 54-56.
Final EIR, Response to Comment 10.
III. FINDINGS REGARDING PROJECT ALTERNATIVES
Three alternatives to the Original Project were identified in the Draft EIR, which included a No Project/No
Build Alternative, a Reduced Project Alternative (Eight Single -Family Units), and a Hillside Limited
Alternative (Two Single -Family Units). In addition, the New Preferred Alternative (referred to in the
findings above as the Project) was analyzed in the New Preferred Alternative, an Addition to the Draft
EIR. Based on an analysis of these alternatives, an environmentally superior alternative was identified.
Each of the alternatives has been evaluated in relation to its ability to accomplish the Project objectives
set forth in the Draft EIR. The Project objectives are as follows:
1. Land Use Planning Objectives
• Accommodate projected regional growth in a location that is adjacent to existing
infrastructure, urban services, transportation corridors, and employment centers.
• Cluster development on the site to preserve regionally significant ecological areas and
other natural open space while reducing landform alteration and maintaining the scenic
views.
• Provide a range of recreational opportunities, including pedestrian paths that are
accessible to residents.
• Provide development that is compatible with surrounding residential communities.
2. Design Objectives
• Provide residential streets, access roadways, drainage facilities and other infrastructure
consistent with City of Palm Desert municipal codes and design standards.
• Provide attractive architecture and landscaping that enhances the project site while
complementing the surrounding desert landscape.
• Provide a complementary outdoor lighting plan that promotes safety and avoids adverse
lighting impacts on surrounding uses.
3. Economic Objectives
• Maximize the value of the site with clustered residential uses consistent with the City of
Palm Desert General Plan and Zoning Ordinance and with anticipated market demands.
• Provide housing which supports the economic future of the region in an area in which the
necessary infrastructure is in place.
4. Resource Conservation Objectives
• Provide open space in a manner that is compatible with the protection of significant
natural resources.
17
RESOLUTION NO. 09-13
• Minimize impacts to sensitive biological resources through site design and development
standards.
Unavoidable significant impacts can occur as a result of project impacts, cumulative impacts, and as a
secondary effect from the implementation of a mitigation measure. Based on the analysis contained in
the New Preferred Alternative document, the Cornishe at Bighorn project will result in the following
significant and unavoidable environmental impacts:
• Regional construction air quality emissions for NOx;
• Biological impacts (during construction and operation) to captive adult sheep and born
Iambs in the lambing pen through visual and auditory habituation;
• Construction noise audible to the bighorn sheep at the Bighorn Institute could exceed the
3 month threshold; and
• Construction traffic to the Canyons at Bighorn Community.
Because significant environmental effects would remain even after application of all feasible mitigation
measures, the City Council must adopt findings on the feasibility of Project alternatives. If there is a
feasible alternative to the Project, decision makers must decide whether it is environmentally superior to
the Project.
Public Resources Code section 21061.1 defines "feasible" to mean "capable of being accomplished in a
successful manner within a reasonable period of time, taking into account economic, environmental,
social, and technological factors." State CEQA Guidelines section 15091 adds "legal" considerations as
another indicia of feasibility. (See also Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Ca1.3d
553, 565.) Project objectives also inform the determination of "feasibility." (City of Del Mar v. City of San
Diego (1982) 133 Cal.App.3d 401, 417.) '[F]easibility under CEQA encompasses 'desirability' to the
extent that desirability is based on a reasonable balancing of the relevant economic, environmental,
social, and technological factors." (Id.; see also Seauovah Hills Homeowners Assn. v. City of Oakland,
(1993) 23 Cal.App.4th 704, 715.)
The California Supreme Court has stated, "[tjhe wisdom of approving ... any development project, a
delicate task which requires a balancing of interests, is necessarily left to the sound discretion of the local
officials and their constituents who are responsible for such decisions. The law as we interpret and apply
it simply requires that those decisions be informed, and therefore balanced." (Citizens of Goleta Valley v.
Board of Supervisors (1990) 52 Ca1.3d 553, 576.) In addition, perfection in a project or a project's
environmental alternatives is not required; rather, the requirement is that sufficient information be
produced "to permit a reasonable choice of alternatives so far as environmental aspects are concerned."
Outside agencies (including courts) are not to "impose unreasonable extremes or to interject [themselves]
within the area of discretion as to the choice of the action to be taken." (Residents Ad Hoc Stadium Com.
v. Board of Trustees (1979) 89 Cal.App.3d 274, 287.)
The four identified alternatives, as well as the identified environmentally superior alternative, are
summarized below.
A. No Project/No Build Alternative
1. Description of the No Project/No Build Alternative
The No Project/No Build Alternative assumes that the Project would not be developed, and that the
development of the Project site with new uses and structures would not otherwise occur. Thus, the
18
RESOLUTION NO. 09-13
physical conditions of the site would remain as they are today, and all of the Project's significant effects
would be avoided. (Final EIR, at II-5.)
2. Finding Regarding Feasibility of the No Project/No Build Alternative
The No Project/No Build Alternative would preclude development on the property, and as a result the
Land Use Planning, Design, and Economic Objectives that have been set forth for the Project would not
be met, leaving the Project site with no economically viable use. Thus, this Alternative was considered
but, because it would fail to achieve any of the Project Objectives identified above, the City Council finds
that it is infeasible and rejects it on that basis.
B. Reduced Project Alternative (Eight Single -Family Units)
1. Description of the Reduced Project Alternative
The Reduced Project Alternative would develop eight single-family units. It would develop thirty dwelling
units less than the Original Project, but six units more than the New Preferred Alternative. Under the
Reduced Project Alternative, the single-family dwelling units would generally be located within the same
location as the larger townhome buildings proposed by the Original Project. The access road would
occur exclusively via the Indian Cove neighborhood from the east similar to the New Preferred Alternative
but different from the Original Project's proposed 30-foot wide access road from the north. This roadway
would be constructed similar to the New Preferred Alternative and would be approximately 25 feet in
width. Recreational amenities would not be provided under the Reduced Project Alternative, different
from the Original Project's proposed pool and park.
The Reduced Project Alternative would not eliminate any of the significant and unavoidable impacts
resulting from the New Preferred Alternative; rather, it would result in greater impacts on the environment
than the New Preferred Alternative. (Final EIR, at 11-5.)
2. Finding Regarding Feasibility of the Reduced Project Alternative
The Reduced Project Alternative does not meet the Land Use Planning and Economic Objectives of the
Project to the degree possible under the Original Project. Further, because the New Preferred Alternative
would involve only two units located in relatively close proximity, while approximately nine acres would
remain as permanent open space, it would accomplish the clustering objective to a much greater degree
than the Reduced Project Alternative. Similarly, the Reduced Project Alternative would not meet the
Resource Conservation Objectives to the degree possible under the New Preferred Alternative.
Thus, having considered and balanced these economic, environmental, and social factors, the City
Council finds this Alternative to be infeasible and rejects it on that basis.
C. Hillside Limited Alternative (2 Single -Family Units)
1. Description of the Hillside Limited Alternative
The Hillside Limited Alternative would develop two single-family units, thirty-six dwelling units fewer than
the Original Project. Under this Alternative, the two dwelling units would be developed in the extreme
19
RESOLUTION NO. 09-13
northeastern portion of the Project site, at a distance of approximately 300 yards from the closest point of
the lambing pen to the Project site. This Alternative would be designed to achieve a completely passive
character that appears as natural when seen from the lambing pen within the Bighorn Institute property as
can be reasonably accomplished. Access would be provided from the east via the Indian Cove section of
the Canyons at Bighorn community.
The assessment of this Alternative in the EIR was based on very conceptual design parameters, which
did not include any specific design studies. On that conceptual basis, the EIR concluded that, if
implemented, the Hillside Limited Alternative would reduce each of the Original Project's unmitigable
significant impacts to less than significant levels. Based on that assessment, the Hillside Limited
Alternative would also have less impact than the New Preferred Alternative in some respects. (Final EIR,
at 11-6.)
Though the Hillside Limited Alternative would have fewer impacts that the Original Project or the New
Preferred Alternative, it would result in adverse environmental effects of its own. The northeastern corner
of the site identified for development under the Hillside Limited Alternative is largely located within the
floodplain of Dead Indian Creek. Thus, the Hillside Limited Alternative does not possess sufficient
elevation to permit views of the Coachella Valley. The portion of the site that does not lie within the
floodplain of Dead Indian Creek is not large enough to accommodate more than a single lot. (Final EIR,
at 11-4.)
Significant grading would, therefore, be required to raise the building site above the floodplain of the
Creek in order to meet the objectives of the Project. Such grading would disturb riparian habitat and
permanently alter existing drainage patterns within the Creek. The City Council finds that these are
unacceptable biological and hydrological impacts.
2. Findings Regarding Feasibility of the Hillside Limited Alternative
The Hillside Limited Alternative fails to achieve many of the Project Objectives. Regarding the land use
planning objectives, this alternative would not achieve clustering that maintains scenic views and avoids
sensitive ecological areas because it would place development within the floodplain of Dead Indian
Creek. For the same reasons, this alternative would fail the design objective of creating a project that
complements the desert landscape. Similarly, by placing development within a floodplain, this alternative
would fail the resource conservation objectives of protecting and minimizing impacts to natural resources.
Additionally, and as explained in greater detail below, the cost to construct the Hillside Limited Alternative
would be higher than the expected residual land value. Thus, because this alternative would result in a
negative economic value, it is economically infeasible. As a result, this alternative would fail to satisfy the
Project's economic objective of maximizing the site's value.
Having considered and balanced these economic, environmental, and social factors, the City Council
finds this Alternative to be infeasible and rejects it on that basis.
D. New Preferred Alternative
1. Description of the New Preferred Alternative
The New Preferred Alternative would be similar to the Hillside Limited Alternative as it would develop two
single-family units, thirty-six dwelling units less than the Original Project. The units would develop less
than half of the eastern portion of the Project site, at a distance of approximately 240 yards from the
closest point of the lambing pen to the Project site. Similar to the Hillside Limited Alternative, the New
20
RESOLUTION NO. 09-13
Preferred Alternative would be designed to achieve a passive character similar to the adjacent Canyons
at Bighorn community. Access would also be provided via Indian Cove. (Final EIR, at pp. 11-6 to II-7.)
As with the Hillside Limited Alternative, the New Preferred Alternative would result in considerably less
environmental impacts in all issue areas when compared with the Original Project.
This reduced impact profile could potentially be reduced even further if the amount of imported fill soils
deemed necessary to raise the proposed pad heights sufficiently to provide Coachella Valley views from
one-story residences therein could be substantively reduced. Mitigation Measure IV.C-2 requires
consideration of such reduction in the development of the Project's grading plan. Because the site plan is
preliminary, the exact amount of fill required is not known, and the EIR analyzed the worst -case scenario.
Reducing soil imports to the degree that views of the Coachella Valley are no longer achieved is not
economically feasible, however, as described in greater detail below.
Construction of the New Preferred Alternative would result in significant regional air quality impacts during
construction, biological impacts upon captive sheep in the lambing pen at the Bighorn Institute during and
following construction, noise and traffic impacts on the private roads within the Canyons at Bighorn
community during construction, though considerably less than the Original Project. (Final EIR, at p. 11-4;
DEIR Addition, at pp. 57-59.)
2. Findings Regarding the Feasibility of the New Preferred Alternative
The New Preferred Alternative would achieve nearly all of the Land Use Planning, Design, Economic, and
Resource Conservation Objectives for the Project. At the same time, it would avoid or substantially
lessen all of the significant adverse effects of the Original Project.
E. Environmentally Superior Alternative
Of the alternatives analyzed for the Project, the No Project/No Build Alternative is considered the
environmentally superior alternative as it eliminates the significant impacts that would occur under the
New Preferred Alternative and the Original Project to less than significant levels. However, as explained
above, the No Project Alternative would not meet any of the Land Use, Design, and Economic objectives
established for the Project, and was rejected as infeasible.
In accordance with the CEQA Guidelines requirement to identify an environmentally superior alternative
other than the No Project/No Build Alternative, the Hillside Limited Alternative is the environmentally
superior alternative. Implementation of the Hillside Limited Alternative would result in fewer
environmental impacts in all issue areas when compared with the Original Project and the New Preferred
Alternative. As construction of the New Preferred Alternative would result in significant regional air quality
impacts during construction, biological impacts on captive sheep in the lambing pen at the Bighorn
Institute during and following construction, noise impacts during construction, and traffic impacts on the
private roads within the Canyons at Bighorn community during construction, impacts of the New Preferred
Alternative would be more severe than those that would occur under the Hillside Limited Alternative.
Although some of these impacts could be reduced if the amount of imported fill soils could be
substantially reduced, the ultimate extent of such reduction cannot be known until final project plans are
produced. Therefore, the worst case scenario provided in the EIR is assumed to occur.
As explained above, however, the Hillside Limited Alternative would require development within the
floodplain of Dead Indian Creek. Such development could result in potentially significant biological and
hydrological impacts due to the need to undertake significant grading to raise the building site above the
21
RESOLUTION NO.09-13
floodplain of the Creek. Further, that Alternative would fail to meet several key project objectives. Finally,
that Alternative would not be economically feasible.
The New Preferred Alternative would achieve the Land Use Planning, Design, Resource Conservation
and Economic Objectives for the Project to an extent that the Hillside Limited Alternative would not. In
comparison, if it were feasible, the Hillside Limited Alternative would be more effective in achieving some
of the stated Resource Conservation Objectives than the New Preferred Alternative. However, as the
New Preferred Alternative would optimize a balance between the Original Project and the Hillside Limited
Alternative, it would meet most of the Project Objectives for the property.
For the reasons described above, the City Council finds that the New Preferred Alternative represents the
most appropriate balance between the competing economic, environmental, and social factors implicated
in the selection of the alternative described above, and rejects all other alternatives as infeasible.
IV. STATEMENT OF OVERRIDING CONSIDERATIONS
The City Council of the City of Palm Desert finds that the mitigation measures described in the FEIR will,
when implemented, mitigate or substantially lessen most of the significant effects identified in the FEIR.
Nonetheless, certain significant environmental impacts of the Project are unavoidable even after
incorporation of all feasible mitigation measures. For such effects, pursuant to Public Resources Code
Section 21081(b) and State CEQA Guidelines sections 15093 and 15043, the City Council has balanced
the benefits of the Project against such unavoidable adverse environmental risks in approving it.
In this regard, the City Council hereby finds that all feasible mitigation measures identified in the FEIR
have been and will be implemented with the Project and that any significant unavoidable effects
remaining are acceptable due to the following specific economic, social, and other considerations,
including but not limited to Project benefits, based upon the findings set forth above, in the FEIR, and in
the public record of the consideration of this Project.
The Project's significant and unavoidable adverse impacts are the following:
• Regional construction air quality emissions for NOx;
• Biological impacts (during construction and operation) to captive adult sheep and born Iambs
in the lambing pen through visual and auditory habituation;
• Construction noise impacts due to the anticipated duration of construction in excess of the
three month threshold at which significant noise impacts can be expected to occur; and
• Construction traffic impacts to the Canyons at Bighorn community.
A. EQUITABLE CONSIDERATIONS
The City's General Plan has long designated the Project site as an area for residential development.
(General Plan, Land Use Element.)
The FEIR and the administrative record for this Project document that the Bighorn Institute located its pen
facilities with full knowledge, or with the potential for full knowledge, of the planning activities of the City of
Palm Desert. This includes a recognition, actual or constructive, that the Project site was and is zoned
and planned for residential uses. The evidence available in the public records of the Bureau of Land
Management even note that this consideration was taken into account, particularly in the appraisal report
22
RESOLUTION NO. 09-13
establishing the value of the Bighorn Institute property. (Memorandum Appraisal Report, R&PP, Bighorn
Research Institute — CA —14622, Lease with Option to Patent, Robert S. Leonard, June 20, 1984.) It
must be assumed that the Bighorn Institute knew of this issue and considered the location of its 30-acre
pen so close to the boundary with future development in the City of Palm Desert to be acceptable.
The extent to which the Bighorn Institute must have considered this proximity acceptable at one time, but
no longer considers it acceptable, is a factor of internal concern to the Bighorn Institute operations. The
City of Palm Desert is not considering a general plan amendment or zone change on the Project site from
open space to residential, but rather an implementation of its existing General Plan. If problems have
arisen that were not expected by the Bighorn Institute at the time that the Bighorn Institute established its
operations so close to residentially zoned property, the City Council of the City of Palm Desert believes
that it is incumbent upon the Bighorn Institute to look to its own site or another site to mitigate impacts to
its facilities as they now exist or may exist in the future.
The establishment of an open space buffer with no uses in it imposes a burden on the City of Palm
Desert of potential litigation, inequity, and loss of revenue. Such a burden is created by a a potential
conflict that the Bighorn Institute could have foreseen during the City's General Plan Update process.
There was ample opportunity through the planning and zoning process for the Bighorn Institute to make
the City of Palm Desert aware of any conflicts with its facility. However, the Bighorn Institute chose to
locate its 30-acre pen only 300 feet from the boundary of the Project site, which is the City's municipal
boundary. It would be unreasonable for the Bighorn Institute to assume that the City of Palm Desert
would now alter its general planning program to accommodate an adjacent land use which had willingly
moved so close to the City.
Precluding development of the Project site would also deprive the City of the substantial revenue from
this Project, as well as the Project's contribution to the City's jobs/housing balance. It should also be
noted that the two single family residences proposed to be constructed as part of the Project will be
located approximately the same distance from the Bighorn Institute's 30-acre pen as the residence of the
Director of the Bighorn Institute.
These overriding considerations are only stated in an abundance of caution provided there is any impact
to the Bighorn Institute facility at all. As documented above, there is no scientific consensus that a buffer
of 400 yards, or any other distance, is required. The City of Palm Desert is persuaded by those experts
who believe that no buffer, or only a small buffer, is necessary to mitigate all effects. (Letters from
Professor Paul Krausman to Patrick Perry, dated June 25, 2008, and November 15, 2006.) Therefore,
there are no significant effects that need to be overridden in this sense. However, to the extent that
unanticipated impacts may occur, and recognizing the permanence of the Project once it is established,
the City Council of the City of Palm Desert sets forth the above rationale for proceeding with the Project in
view of the slight potential for these impacts.
B. ECONOMIC CONSIDERATIONS
As set forth in the FEIR and in the administrative record for the Project, a 400 yard buffer was established
around the Bighorn Institute's 30-acre lambing pen in connection with the approval of the Altamira project,
now the Canyons of Bighorn development, in 1991. The establishment of the 400 yard buffer was the
result of a legal compromise agreed to in order to settle litigation regarding the Altamira project. The
Project site lies almost entirely within the 400 yard buffer area, but the City agreed as part of an additional
settlement of pending litigation, that the Project site is specifically excluded from the effect of the 400 yard
buffer and that development of the Project site would not be precluded due to its location within the 400
yard buffer area.
The only portion of the 12-acre Project site that lies outside the buffer area consists of approximately
9,900 square feet, or slightly less than '/< acre, which lies entirely within the streambed of Dead Indian
Creek, which is designated as "waters of the United States" for purposes of the Federal Clean Water Act.
23
RI LUTION NO. 09-13
Development within waters of the United States would require approval of a permit by the United States
Army Corps of Engineers and approval of a streambed alteration agreement by the California Department
of Fish and Game. Development within the streambed would modify existing drainage patterns and
disturb existing riparian habitat areas to a greater extent than the proposed Project, thereby creating
greater environmental impacts with respect to those issues than the proposed Project. Because of the
existing development within the adjacent Canyons at Bighorn project, it would also not be possible to
provide vehicular access to the portion of the property located outside of the buffer area without crossing
a portion of the buffer. Restricting development only to that portion of the property located outside the
buffer area is therefore not environmentally preferable or physically feasible.
In addition to the foregoing limitations, the Applicant has presented evidence that even if permits could be
obtained from the Army Corps of Engineers and the California Department of Fish and Game to develop
within the streambed of Dead Indian Creek, the cost of such development would exceed the resulting
value of the property. (Letter from Patrick Perry to Mayor Jean Benson, et al., November 12, 2008.)
According to the Applicant, total costs incurred for the development of the Project through August 31,
2008 are $3,503,240, including the purchase price of the property as well as taxes, interest, consultants'
fees, and application fees, including the cost of preparation of the FEIR. The elevation of the portion of
the property located outside of the buffer area ranges from 780 feet to 776 feet above mean sea level.
Existing adjacent building pads located along Dead Indian Creek average approximately 12 to 14 feet
above the highest point of the adjoining creek bed. Construction of a building pad on the portion of the
property located outside of the buffer area would require extensive retaining walls and the import of at
least 6,000 cubic yards of fill, excluding the amount of grading required to provide access to the property.
According to evidence presented by the Applicant, total construction costs associated with the
development of the Project as proposed are estimated to be approximately $1,101,200. The costs
associated with developing only that portion of the Property located outside the buffer area are estimated
to be incrementally less by approximately $362,015, resulting in total costs of approximately $739,185. In
addition to costs already incurred by the Applicant, the total value of the resulting lot would have to be
$4,242,425 in order for development outside of the buffer area to be economically feasible. According to
information provided by the Applicant, based on the value of comparable property within the adjoining
Canyons at Bighorn development, the market value of the portion of the property located outside the
buffer area, if developed as described, would be less than $2,000,000. Development of only that portion
of the property that is located outside the buffer area would therefore not be economically feasible. Nor
would it effectively achieve the following stated Project objectives:
• Cluster development on the site to preserve regionally significant ecological areas and
other natural open space while reducing landform alteration and maintaining the scenic
views.
• Provide development that is compatible with surrounding residential communities.
• Provide attractive architecture and landscaping that enhances the project site while
complementing the surrounding desert landscape.
• Maximize the value of the site with clustered residential uses consistent with the City of
Palm Desert General Plan and Zoning Ordinance and with anticipated market demands.
• Provide housing which supports the economic future of the region in an area in which the
necessary infrastructure is in place.
According to evidence presented by the Applicant, the market value of the property if developed as
proposed is' approximately $7,000,000. If the City were to limit development to only that portion of the
Project site located outside of the 400 yard buffer area, the economically viable use of the property would
be significantly diminished and possibly reduced to nothing, thereby exposing the City to a potential
regulatory takings action by the Applicant, which could result in a significant financial burden on the City's
resources. A restriction on all development of the Project site located within the 400 yard buffer area
24
RESOLUTION NO. 09-13
would also eliminate possible revenue to the City in the form of increased property taxes that would
accrue as a result of the development of the Project site for two high -end single family homes.
C. OVERALL PLANNING CONSIDERATIONS
The City Council of the City of Palm Desert has for some time had an adopted General Plan,
comprehensively updated March 15, 2004 by City of Palm Desert Resolution No. 04-20, which has been
harmonized with the City's policies for overall growth of both housing and jobs. The City has chosen in its
general planning scheme to concentrate the job producing uses in the center of the City principally along
Highway 111, or in the northern portion of the City in proximity to Interstate 10, while using as residential
areas portions of the City away from Highway 111 and Interstate 10. (City of Palm Desert, General Plan.)
The Project site is the last remaining residentially zoned property located along the City's southern
boundary for which development has not yet been approved. The Project as proposed fully complies with
applicable use and density standards. The extent to which the Project is not developed, or is not
developed as proposed, would prevent the City from realizing its full expectation. In adopting these
policies, it is important to note that the City strove for balance between environmental quality objectives,
fiscal responsibility, and land use patterns.
Short term construction air quality impacts and traffic impacts on the adjacent Canyons at Bighorn
development will be limited in duration and will cease following completion of grading on the Project site.
Construction has been ongoing on portions of the adjacent Canyons at Bighorn development for a
number of years, including, most recently, in the adjacent Indian Cove community. The potential impacts
associated with the construction of the Project are not unlike those that the adjacent community has been
and still is experiencing. As discussed in the findings above, operational air quality and traffic impacts will
be less than significant. The ability of the City to implement its overall planning goals and realize the
economic benefits due to the Project outweigh the temporary and unavoidable impacts due to
construction.
The proposed two lot subdivision is designed to be sensitive to the existing landscape and compatible
with surrounding uses. It effectively balances the firmly established rights of the property owner with
protection of the environment and will place one of the last remaining pieces of undeveloped property
along the City's southern boundary into productive use. If developed as proposed, the Project will also
result in the preservation of approximately eight acres of the property as protected open space. (DEIR
Addition, at p. 19.)
D. SPECIFIC PROJECT BENEFITS
The City, after balancing the specific economic, legal, social, technological, and other benefits of the
proposed Project, has determined that the unavoidable adverse environmental impacts identified above
may be considered "acceptable" due to the following specific considerations which outweigh the
unavoidable, adverse environmental impacts of the proposed Project. Each of the separate benefits of
the proposed Project, as stated herein, is determined to be, unto itself and independent of the other
Project benefits, a basis for overriding all unavoidable adverse environmental impacts identified in these
Findings. Each benefit set forth below constitutes an overriding consideration warranting approval of the
Project, independent of other benefits, despite each and every unavoidable impact. Project benefits
include:
• Accommodating an incremental portion of projected regional growth in a location that is
adjacent to existing infrastructure, urban services, transportation corridors, and
employment centers. (DEIR Addition, at pp. 47-49.)
25
RESOLUTION NO. 09-13
• Clustering development on the site to preserve regionally significant ecological areas and
other natural open space. (Id. at p. 19.)
• Providing attractive architecture and landscaping that enhances the project site while
complementing the surrounding desert landscape. (DEIR Addition, at pp. 47-49.)
• Providing open space in a manner that is compatible with the protection of significant
natural resources. (Id. at 19.)
• Implementing the City's General Plan and Zoning Code for residentially zoned property
along the City's southern boundary. (Id. at 47-49.)
Based on the entire record of proceedings, the City finds that the foregoing equitable, economic, and
overall planning considerations outweigh the significant, unavoidable impacts of the Project as identified
in the FEIR. The substantial evidence demonstrating the benefits of the Project are found in these
findings, and in the documents found in the record of proceedings.
26