HomeMy WebLinkAboutRes 06-154 Frindge-Toed Lizard - Fee IncreaseCITY OF PALM DESERT
DEPARTMENT OF COMMUNITY DEVELOPMENT
STAFF REPORT
REQUEST: Consideration of a Fringe -Toed Lizard Habitat Conservation Plan Fee
Increase
SUBMITTED BY: Phil Drell, Director of Community Development
DATE: November 16, 2006
CONTENTS:
Staff Recommendation
Executive Summary
Background
Draft Resolution No. 06-154
Nexus Study
Staff Recommendation:
That the City Council approve Resolution No. 06-154 increasing the fee for
coverage under the Coachella Valley Fringe -Toed Lizard Habitat
Conservation Plan to $2,371 per disturbed acre.
Executive Summary:
When the Coachella Valley Fringe -Toed Lizard Habitat Conservation Plan
(CVFTLHCP) was adopted in 1986, the $600 per acre mitigation fee was not
indexed to land cost inflation. Subsequent biological studies revealed that
more land than anticipated needed to be acquired resulting in a significant
funding shortfall. These original plan deficiencies were to be corrected in the
Multiple Species Habitat Conservation Plan (MSHCP). With the delay in the
MSHCP, the Department of Fish and Game agreed to allow extension of the
FTLHCP if the mitigation fee were increased pursuant to a nexus study. The
nexus study has determined the appropriate fee to be $2,371 per disturbed
acre. The Building Industry Association has reviewed the study and agrees
with its conclusions.
Background and Discussion:
In 1986, a Coachella Valley Fringe -Toed Lizard (CVFTL) Habitat Conservation Plan
(HCP) was approved and resulted in the issuance of an ESA Section 10(a)
incidental take permit ("Permit") by the U.S. Fish and Wildlife Service (USFWS) to
Staff Report
Fringe -Toed Lizard HCP Fee Increase
Page 2
November 16, 2006
the Cities and County to authorize take of CVFTL resulting from land development
and other activities covered by the HCP. The California Department of Fish and
Game (CDFG) did not sign the HCP or authorize incidental take of CVFTL
associated with the HCP because a permitting process had not been established
under CESA at the time the HCP was developed, but CDFG nonetheless
participated in implementation of the HCP. The Cities and the County entered a
Memorandum of Understanding with USFWS and CDFG on March 21, 2001 (2001
MOU) whereby CDFG made a Consistency Determination pursuant to Section
2080.1 of the Fish and Game Code finding that the FWS permit in combination with
the mitigation provided in the Memorandum of Understanding is consistent with
CESA. The Parties to the 2001 MOU agreed that the CVFTL can best be protected
by inclusion of the species in the MSHCP, and included in the MOU certain
measures to be implemented on an interim basis to protect the CVFTL until the
MSHCP is in place. The 2001 MOU, as subsequently amended, expired June 30,
2006; however, the MSHCP has not been implemented because the City of Desert
Hot Springs did not approve it. The Cities and the County desire to maintain the
Permit for the CVFTL in effect until the revised MSHCP and related documents can
be prepared and incidental take permits issued by the FWS and CDFG.
Loss of the Consistency Determination would have several ramifications:
1. California Endangered Species Act:
Projects that may "take" the lizard will be required to obtain individual permits
from DFG.
2. Litigation on the Federal Permit:
The federal lizard permit is vulnerable to litigation as the federal permit only
permits "take" that is "incidental to an otherwise lawful activity." The Center
for Biological Diversity in a letter to FWS dated May 30, 2006, threatened
litigation on the CVFTL HCP.
3. California Environmental Quality Act (CEQA):
Projects in potential lizard habitat may now be required to do full
environmental impact reports because of the CEQA "mandatory findings of
significance" provision for endangered species. As the CVFTL HCP fee
mitigation area is quite large, the CEQA ramifications are potentially
significant.
Staff Report
Fringe -Toed Lizard HCP Fee Increase
Page 3
November 16, 2006
CDFG informed the Cities and the County through the Coachella Valley Association
of Governments (CVAG) that it would extend the Consistency Determination for the
CVFTL Permit under certain conditions, including that the Cities and the County
consider a revised CVFTL mitigation fee based on a Nexus Study. A revised fee is
appropriate because USFWS and CDFG have previously expressed concern
relative to the adequacy of the original CVFTL HCP. The MSHCP is intended to
address those concerns. To maintain the CVFTL Permit in effect until the
completion of the MSHCP, a new fee is needed to ensure acquisition of the lands
needed to adequately conserve the CVFTL until the MSHCP can be completed and
implemented. This report documents the legal and policy basis to support adoption
of the revised CVFTL mitigation fee by the Cities and the County of Riverside.
A Nexus Study intended to satisfy the requirements of California Government Code
66000 et seq. with respect to the establishment of a new fee or increase in the
amount of an existing fee was performed by MuniFinancial under contract to CVAG.
This Nexus Study determined the new fee to be $2,371 per disturbed acre.
FISCAL ANALYSIS:
The current CVFTL HCP fee is $600 per disturbed acre. The revised fee determined
by the Nexus Study is $2,371 per disturbed acre. It is estimated that 1,331 acres
would develop and pay the fee each year, making the annual revenue from the
revised fee $3,155,801. While the City incurs staff time in determining and collecting
the CVFTL HCP fee, loss of the Consistency Determination would require staff to
review individual projects with regard to impacts to the CVFTL.
Submitted by:
Director of Community Development
Approval:
Carlos L. Ortega
City Manager
Appro
Homer Cro
ACM for D
opment Services
�ITY COUNCILION:
APPROVED DENIED
RECEVED ,,OTHER��'
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NOES:
ABSENT:
ABSTAIN:
VERIFIED BY: 7Y 1
Original on File wit `W City Clerk's Office
(W pdocs\tm\sr\cvltl hc.cc)
RESOLUTION NO. 06-154
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, INCREASING THE FRINGE -
TOED LIZARD MITIGATION FEE FOR DEVELOPMENT
WITHIN HISTORICAL HABITAT AS IDENTIFIED IN THE
COACHELLA VALLEY FRINGE -TOED LIZARD HABITAT
CONSERVATION PLAN.
WHEREAS, the City Council of the City of Palm Desert, California, did on the 16th
day of November, 2006, hold a duly noticed public hearing on the above described
increase; and
WHEREAS, the Cities of the Coachella Valley, County of Riverside, Coachella
Valley Association of Governments, California Department of Fish and Game, U.S. Fish
and Wildlife Service and The Nature Conservancy cooperated in the preparation of the
Coachella Valley Fringe -Toed Lizard ("CVFTL") Habitat Conservation Plan ("HCP"), which
was implemented through agreements and other documents signed by the parties
(collectively the "HCP Agreement"); and
WHEREAS, all new development projects within certain designated historical habitat
areas of the CVFTL as identified in the HCP Agreement ("designated mitigation fee area")
will have direct and cumulative impacts on the CVFTL, its potential habitat or the ecological
processes necessary to sustain that habitat such that mitigation is necessary in order to
preserve the species; and
WHEREAS, all new development within the designated mitigation fee area will
directly or indirectly benefit by funding a comprehensive approach to habitat mitigation; and
WHEREAS, the HCP Agreement has identified, as a priority, critical sand source
area that must be purchased for conservation in order to adequately protect the CVFTL
and its habitat; and
WHEREAS, each newly developed acre within the designated mitigation fee area
has approximately the same proportionate impact on the loss of habitat so that each
proposed acre to be disturbed is proportionate to the total cost of acquiring the priority sand
source areas identified in the HCP Agreement: and
WHEREAS, the HCP Agreement provides for the acquisition and protection of
designated priority sand source areas and provides that acquisition be funded primarily
through a mitigation fee last established at $600 per disturbed acre, to be collected from
land owners who obtain grading or building permits from the Cities or County for projects
within the designated mitigation fee area; and
WHEREAS, substantial evidence exists that the current $600/acre fee is insufficient
to acquire all priority sand source areas previously identified as necessary to insure viable
preserves capable of perpetuating the species; and
RESOLUTION NO. 06-154
WHEREAS, an increase in the fee is needed to insure acquisition of the priority
sand source area needed to adequately conserve the CVFTL; and
WHEREAS, an updated Nexus Study has now been completed, a copy of which has
been available for public review for more than ten (10) days; and
WHEREAS, the Nexus Study has considered the remaining acreage of priority sand
source areas to be purchased for conservation, the projected cost of acquisition, and the
anticipated amount of acreage within the designated mitigation fee area to be developed,
which data demonstrates that the mitigation fee must be increased to $2,371 per disturbed
acre in order to meet the above -referenced goals of the HCP; and
WHEREAS, the formula for determining the increase in the mitigation fee is
calculated on a per acre basis relative to each proposed project as its size is measured in
acres such that there is a reasonable relationship between the increased fee to be charged
for each proposed project and the corresponding impact of that project on that
proportionate cost of conservation of priority sand source area necessary for habitat
protection; and
WHEREAS, notice of the public hearing on the adoption of this Resolution has been
given as required by law; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm
Desert, California, that the Fringe -Toed Lizard mitigation fee imposed through the HCP
Agreement shall be raised to $2,371/acre effective February 1, 2007.
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert City
Council, held on this day of , 2006, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
RACHELLE D. KLASSEN, City Clerk
City of Palm Desert, California
2
JAMES FERGUSON, Mayor
John Wohlmuth, Executive Director
Coachella Valley Association of Governments
73-710 Fred Waring Drive, Suite 200
Palm Desert, CA 92260
Dear Mr. Wohlmuth,
Desert Chapter
Building Industry Association
of Southern California
77-570 Springfield Lane
Suite E
Palm Desert, California 92211
October 4, 2006 760.960.2476
fax 760.772.9372
www.Des&tchapteecom
E Mad: Bu@DesertChapteroom
We have had the opportunity to review the `Fringe -Toed Lizard Habitat Mitigation
Fee Administrative Draft', dated September 8, 2006. We appreciate the time Jim
Sullivan has taken to better explain the process for mitigating this endangered
species. Based on the drafted fee study and the additional materials and explanations
provided, the BIA accepts the conclusions for mitigation of the Fringe -Toed Lizard
for this following year as a revised Multiple Species Habitat Conservation Plan is re-
circulated.
Respectfully,
Executive Director
An Affiliate of the National Association of Home Builders and the California Building Industry Association
CITY Of PRLffl OESERT
73-510 FRED WARING DRIVE.
PALM DESERT, CALIFORNIA 92260-2578
TEL: 760 346-0611
FAX: 760 34I-7098
infoC)palm-descrt.org
NOTICE OF PUBLIC HEARING REGARDING A COACHELLA VALLEY FRINGE -
TOED LIZARD HABITAT CONSERVATION PLAN FEE INCREASE
Notice is hereby given by the CITY OF PALM DESERT that a PUBLIC HEARING on the
following item will be held before the PALM DESERT CITY COUNCIL AT THE CIVIC
CENTER COUNCIL CHAMBER located at 73-510 Fred Waring Drive, Palm Desert,
California on Thursday, November 16, 2006 at 4:00 p.m.
SUBJECT: A Public Hearing to consider an increase in the Coachella Valley Fringe -Toed
Lizard Habitat Conservation Plan mitigation fee. Based on a nexus study prepared in
conformance with the requirements of California Government Code 66000 et seq., the
mitigation fee required to complete implementation of the plan is proposed to be increased
to $2,371 per disturbed acre. If adopted, the new fee would generally apply to the
development of all undisturbed vacant parcels between the Whitewater Storm Channel and
Interstate 10.
ADDITIONAL INFORMATION: Pursuant to the California Govemment Code, please take
notice as follows: If you challenge the action described in this written notice in court, you
may be limited to raising only those issues you or someone else raises at the public
hearing, or in written correspondence delivered to the City of Palm Desert at, or prior to,
the Procedure Section 1094.5. The City of Palm Desert complies with the Americans with
Disabilities Act. If you require reasonable accommodations for this meeting, contact the
City Clerk's Office at (760) 346-0611, Ext. 304 at least three (3) working days prior to the
public hearing. If you have any questions about the above mitigation fee or want to submit
comments, you may contact Phil Drell at (760) 346-0611 ext. 481.
Publish: Desert Sun RACHELLE D. KLASSEN, City Clerk
11/05/06 and 11/10/06 City of Palm Desert, California
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