SUMMARY ACTION MINUTES

Transcription

1 STRIVING FOR EXCELLENCE SUMMARY ACTION MINUTES BOARD OF SUPERVISORS Regular Meeting TUESDAY, SEPTEMBER 14, 2010 Closed Session 9:00 a.m. Regular Meeting 10:00 a.m. MERCED COUNTY ADMINISTRATION BUILDING 2222 M STREET BOARD ROOM, THIRD FLOOR MERCED, CALIFORNIA (209) LARRY T. COMBS COUNTY EXECUTIVE OFFICER JOHN PEDROZO..DISTRICT 1 HUBERT HUB WALSH, JR..DISTRICT 2 MICHAEL G. NELSON..DISTRICT 3 DEIDRE F. KELSEY.DISTRICT 4 CHAIRMAN JERRY O BANION..DISTRICT 5 Lydia A. Beiswanger, Chief Clerk JAMES N. FINCHER COUNTY COUNSEL All supporting documentation is available for public review in the Office of the Clerk of the Board of Supervisors located in the County Administration Building, Third Floor, 2222 M Street, Merced, California, During regular business hours, 8:00 a.m. 5:00 p.m., Monday through Friday. The Agenda is available online at Any material related to an item on the Agenda submitted to the Clerk after distribution of the Agenda packet is available for public inspection in the Office of the Clerk of the Board Members of the public are advised that all pagers, cellular telephones and any other communication devices are to be turned off upon entering the Board Chambers HEARING ASSISTANCE DEVICES ARE AVAILABLE FOR PUBLIC USE INQUIRE WITHIN THE BOARD OF SUPERVISORS OFFICE Persons who require accommodation for any audio, visual or other disability in order to review an agenda, or to participate in a meeting of the Board of Supervisors per the American Disabilities Act (ADA), may obtain assistance by requesting such accommodation in writing addressed to the Clerk of the Board, 2222 M Street, Merced, CA or telephonically by calling (209) Any such request for accommodation should be made at least 48 hours prior to the scheduled meeting for which assistance is requested 1

2 The Agenda is divided into three sections: CONSENT CALENDAR These matters include routine financial and administrative actions and are approved by a single majority vote. SCHEDULED ITEMS These items are noticed hearings, work sessions and public hearings. REGULAR CALENDAR These items include significant policy and administration actions. Immediately after approval of the CONSENT CALENDAR, if the time of the hearing of SCHEDULED ITEMS has not arrived, the REGULAR CALENDAR will be considered. SCHEDULED ITEMS Closed sessi ons 9:00 A. M. THE PUBLIC IS INVITED TO SPEAK ON ANY ITEM ON THE AGENDA - TESTIMONY IS LIMITED TO FIVE MINUTES PER PERSON CLOSED SESSION - CONFERENCE WITH REAL PROPERTY NEGOTIATOR: It is the intention of the Board to meet in Closed Session concerning a Conference with Real Property Negotiator(s) Mark Hendrickson, Director-Commerce, Aviation and Economic Development pursuant to Government Code Section as follows: Castle Properties CLOSED SESSION - CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION: It is the intention of the Board to meet in Closed Session concerning Existing Litigation pursuant to Government Code Section (a): David Fuentes v. Edward Noukam, Merced County Superior Court case no. CU CLOSED SESSION: It is the intention of the Board to meet in Closed Session pursuant to Government Code Section 54957: PUBLIC EMPLOYEE PERFORMANCE EVALUATION. Title: County Counsel THE BOARD RECESSED AT 9:00 A.M. TO MEET IN CLOSED SESSION AND RECONVENED AT 10:00 A.M. WITH ALL MEMBERS PRESENT AND THE CHAIRMAN ADVISES THERE IS NO ACTION TAKEN GOVERNMENT CODE SECTION COMPLIANCE (LATE AGENDA ITEMS) Open session 10:00 A. M. PLEDGE OF ALLEGIANCE PUBLIC OPPORTUNITY TO SPEAK ON ANY MATTER OF PUBLIC INTEREST WITHIN THE BOARD'S JURISDICTION INCLUDING ITEMS ON THE BOARD'S AGENDA, EXCEPT FOR THOSE ITEMS SPECIFICALLY SCHEDULED AS PUBLIC HEARINGS (Testimony limited to five minutes per person) REVIEW BOARD ORDER SEE PAGE 10 PRESENTATION Court Appointed Special Advocates (CASA) for Children of Merced County Presenters: Nancy Young-Bergman, Ph.D.-CASA President; Presiding Judge John Kirihara and Commissioner Harry Jacobs REVIEW BOARD ORDER SEE PAGE 10 2

3 10:00 A. M. APPROVAL OF CONSENT AGENDA CALENDAR (Items #1-23) APPROVED AS RECOMMENDED AYES: ALL PLANNING - PUBLIC HEARING - PROPOSED ORDINANCE, POSSIBLE ADOPTION To consider a Tier I Development Agreement with River West Investments regarding development of 1, acres within the Villages of Laguna San Luis Community Plan that established the Specific Urban Development Plan (SUDP) on property located on the north and south sides of State Highway 152 and west of Interstate 5. The SUDP contains a variety of Residential, Commercial, Mixed Use, Industrial, and Public Land Uses and Zoning Designations RECOMMENDATION: Determine the Tier 1 Development Agreement is consistent with the EIR certified for the Villages of Laguna San Luis Community Plan and Zone Change and no subsequent EIR is required in accordance with Section 15162(a) of the CEQA Guidelines based on the two findings contained in the Staff Report; approve Ordinance thereby entering into a Tier 1 Development Agreement with property owners based on five Findings and adopt Ordinance as titled: An Ordinance approving a Tier 1 Development Agreement and authorizing the Development of Certain Parcels within the Villages of Laguna San Luis Community Plan in accordance with Government Code Section and Ordinance No REVIEW BOARD ORDER SEE PAGES 10 THROUGH 14 PLANNING - PUBLIC HEARING To consider an Appeal of the Planning Commission Project CEQA Determination and approval of Minor Subdivision No. MS and Administrative Permit No. AA Appeal submitted by John Williams on behalf of Valley Citizens and Justin Bernard; Application submitted by Property Owner-George/Jeanne Simmons, Applicant-Blohm Road Joint Venture George Simmons (MS07-027) and Don Chapin Company (AA08-033) to subdivide 26.9 acres into four parcels: Parcel 1=15.00 acres, Parcel 2=3.46 acres, Parcel 3=3.46 acres and Parcel 4=5.00 acres and Administrative Permit No. AA proposes to construct a concrete batch plant on a 4.03 acre portion of proposed Parcel 1 (15.0 acres) on property located at the southeast corner of Henry Miller Avenue and Volta Road in the Volta SUDP, property is designated Industrial and Neighborhood Commercial in the General Plan and is zoned M-1 (Light Industrial) and C-1 (Neighborhood Commercial) RECOMMENDATION: Deny the Appeal and adopt the Initial Study and Mitigated Negative Declaration prepared for MS and AA based on four CEQA Findings; and approve Minor Subdivision No. MS and Administrative Permit No. AA based on 11 Findings and subject to 29 Conditions of Approval REVIEW BOARD ORDER SEE PAGES 14 THROUGH 25 REPORTS/BOARD DIRECTION County Executive Officer, County Counsel, Board of Supervisors Members 3

4 CONSENT CALENDAR (Items #1-23) APPROVED AS RECOMMENDED WITH CORRECTION TO CONSENT ITEM NO. 1 AYES: ALL Public Works 1. Adopt Resolution authorizing the designation of handicap parking on a portion of the west side of Bryant Middle School in Dos Palos and authorize necessary markings for notification to motorists. REVIEW BOARD ORDER SEE PAGE Approve Budget Transfer in the amount of $20,000 for Highway 59 Cell 6 Landfill Gas Collection System. Ag. Commissioner 3. Approve and authorize Chairman to sign Renewal Contract No with Calif. Dept. of Food and Agriculture for Light Brown Apple Moth Pest Detection/Emergency Projects and adopt Resolution. ADOPTED RESOLUTION NO Planning 4. Approve and authorize Chairman to sign Renewal Contract No with Ed Grossman dba Snelling Restoration Group, LLC to update contract indemnity language, extend the term and add consultant services relative to Lakeview Estates Subdivision (MAS ) environmental review. 5. Approve and authorize Chairman to sign Renewal Contract No with Robert Klousner dba Planning Partners to update contract indemnity language, lower professional liability to $1 million from $5 million and add consultant services relative to Lakeview Estates Subdivision (MAS ) environmental review. Treasurer 6. Approve and authorize Chairman to sign Amendment to Contract No with Wells Fargo Bank, N.A. for Banking Services to the County of Merced. 7. PULLED Probation 8. Approve and authorize Chairman to sign Renewal Contract No with Sheriff to provide meals and laundry services for the Iris Garrett Juvenile Justice Correctional Complex. 9. Approve and authorize Chairman to sign Renewal Contract No with City of Atwater to house up to two deputy probation officers at the Atwater Police Department. Human Services Agency 10. Approve and authorize Chairman to sign Renewal Contract No with University of California, Davis for staff training and development. 11. Approve and authorize Chairman to sign Renewal Contract No with Mental Health for provision of one full time licensed Mental Health clinician for counseling services. 4

5 12. PULLED Sheriff 13. Approve Budget Transfer in the amount of $16,000 for purchase of two body scan metal detecting chairs at Correctional Facility, funds to be offset by Sheriff's Correctional Facilities Trust. (4/5 Vote Required) Mental Health 14. Approve Budget Transfer in the amount of $5,000 for furniture purchased in FY 2008/09 and $3,750 for replacement of TV's at Marie Green Inpatient and Crisis Stabilization Units, Realignment Trust funds exist to cover cost. (4/5 Vote Required) Board Recognition 15. Proclaim the month of September, 2010 as "Alcohol and Drug Addiction Recovery Month" in Merced County as recommended by Mental Health. 16. Proclaim the month of September, 2010 as "Railroad Safety Month" in Merced County which coincides with the California Legislature designation for the State of California. 17. Authorize Certificate of Recognition to BBR (Bikes, Boards and Racing) for recognition of Ribbon Cutting. 18. Authorize Certificate of Recognition to Fahren's Park Subway in recognition of Ribbon Cutting. 19. Authorize Certificate of Recognition to JS West Family Farms in recognition of Behaviorally Enriched Colony Barn. 20. Authorize Certificate of Recognition to Felix Torres Center in recognition of Ribbon Cutting * Grand Opening. 21. Authorize Certificate of Recognition to Rabobank in recognition of Ribbon Cutting. 22. Authorize Certificate of Recognition to Officer Phillip W. Riggins in recognition of 30 years of dedicated service to the residents of Merced County and the California Highway Patrol. 23. Authorize Certificate of Recognition to Castle Bloss Clinic in recognition of Ribbon Cutting. REGULAR CALENDAR BOARD ACTION PUBLIC WORKS 24. Approve plans and specifications for "Repair of Main Jail Exercise Yard Wall and Security Screen", authorize advertisement and bid opening and the Public Works Director to award project to lowest responsible bidder if within established budget, authorize Chairman to sign Contract subject to review of Counsel; approve use of Sheriff's "In Custody Drug Treatment Program" funds in the amount of $43,230 with report back on actions taken and approve necessary budget transfer-$43,230. (4/5 Vote Required) AUTHORIZED CONTRACT NO AS RECOMMENDED AYES: ALL 5

6 25. Contract with Lake Yosemite Sailing Association to manage the seasonal rental of sailboat slips and provide the annual maintenance of the sailboat slips. AUTHORIZED CONTRACT NO AS RECOMMENDED AYES: ALL AG. COMMISSIONER 26. Contract with Calif. Dept. of Food and Agriculture to provide European Grapevine Moth Regulatory Activities due to unanticipated detection prior to budget submittal, adopt Resolution and approve necessary Budget Transfer. (4/5 Vote Required) REVIEW BOARD ORDER SEE PAGE 25 MENTAL HEALTH 27. Authorize the Mental Health Director to sign and submit the MHSA Housing Program Application and all necessary documents to State Dept. of Mental Health and Calif. Housing and Finance Agency to utilize the remaining $1,072,900 of available MHSA funds to purchase a pre-existing apartment complex of an estimated eight units in Los Banos in order to develop a low-income housing development in conjunction with Community Action Agency, and direct Mental Health to return to the Board for acceptance of funds. REVIEW BOARD ORDER SEE PAGES 25 AND Add personnel in connection with Mental Health Services Act Innovation Plan: one Quality Assurance Specialist and one Office Assistant I/II and establish and allocate an Extra Help Family/Community Development Partners position; adopt amendment to Salary and Position Allocation Resolutions and approve the necessary budget transfer-$250,854. (4/5 Vote Required) ADOPTED RESOLUTION NO (POSITION) AND NO (SALARY) AS RECOMMENDED AYES: ALL 29. Contract with Community Social Model Advocates, Inc. for the provision of Medical Director services and oversight. AUTHORIZED CONTRACT NO AS RECOMMENDED AYES: ALL 30. Contract with Merced County Association of Governments (MCAG) for the Continuum of Care Homeless Project. AUTHORIZED CONTRACT NO AS RECOMMENDED AYES: ALL 31. Contract with Lifestyle Management Inc. for provision of First Offender and Multiple Offender Drinking Driver Program services to residents. AUTHORIZED CONTRACT NO AS RECOMMENDED AYES: ALL COMMERCE, AVIATION AND ECONOMIC DEVELOPMENT 32. Encourage foreign investment in Merced County for the purpose of creating new jobs and investment through the EB-5 Visa Program and authorize CAED to actively promote Merced County as a location from which to attract foreign investment to create jobs in our county, increase investment and stimulate economic growth. APPROVED AS RECOMMENDED AYES: ALL 33. Resolution in support of partnering with the Calif. Emerging Technology Fund in a public awareness campaign entitled, Get Connected! for the purpose of promoting and supporting the deployment of broadband technology to close the digital divide in Merced County and throughout California; direct Staff to coordinate with MCAG for appropriate distribution to other agencies; and authorize the use of Merced County as a champion partner on the 6

7 websites and printing of materials pertaining to Get Connected! ADOPTED RESOLUTION NO AS RECOMMENDED AYES: ALL DEPT. OF WORKFORCE INVESTMENT 34. Contract with City of Dos Palos formally agreeing to the designation of the Director of DWI as the new Merced County Enterprise Zone Manager (Supplemental MOU). AUTHORIZED CONTRACT NO AS RECOMMENDED AYES: ALL 35. Contract with Merced County Office of Education to fulfill the Bridges to Success Grant requirements of high school graduation, work experience and educational training to 100 At- Risk Merced County Youth at a cost not to exceed $450,000. REVIEW BOARD ORDER SEE PAGE Accept Report outlining the changes in funding and staffing in Dept. of Workforce Investment in response to discussion at August 24, 2010 Final Budget Hearings. REVIEW BOARD ORDER SEE PAGES 26 AND 27 HUMAN SERVICES AGENCY 37. Authorize the Chairman to sign and submit Subvention Certificate of Compliance with the California Dept. of Veterans Affairs requesting FY 2010/2011 Subvention Funds for County Veterans Service Office funds. APPROVED AS RECOMMENDED AYES: ALL 38. Authorize the Chairman to sign and submit Medi-Cal Certificate of Compliance with California Dept. of Veterans Affairs requesting FY 2010/2011 Subvention Funds for Medi- Cal Cost Avoidance Program funds for County Veterans Service Office for veterans and/or their dependents. APPROVED AS RECOMMENDED AYES: ALL DEPT. OF ADMINISTRATIVE SERVICES 39. Authorize the cancellation of the Vehicle Tracking System (RFP 6486) for Public Works- Transit Department from the Request for Proposal process as recommended. APPROVED AS RECOMMENDED AYES: ALL 40. Declare one each of: desktop computer, printer, single pedestal metal desk and two secretarial chairs and twenty each stackable chairs as Surplus Property and authorize the donation of said Surplus Property to George Washington Carver Center. APPROVED AS RECOMMENDED AYES: ALL BOARD OF SUPERVISORS 41. Authorize Special Board Project Funds-District One in the amount of $1,500 to be forwarded to the Sheriff Department to offset overtime costs of deputy supervision for Sheriff Explorers at Le Grand High School Football Games. APPROVED AS RECOMMENDED AYES: ALL 42. Authorize Special Board Project Funds-District Three in the amount of $12,535 to be forwarded to the Atwater Historical Society for repairs to the old tank house at the Bloss House. APPROVED AS RECOMMENDED AYES: ALL 7

8 43. Authorize Special Board Project Funds-District Three in the amount of $9,600 to be forwarded to the Castle Air Museum to assist with the costs of on-site improvements for ADA compliance to the restrooms and other facilities. APPROVED AS RECOMMENDED AYES: ALL 44. Authorize Special Board Project Funds-District Three in the amount of $15,000 to be forwarded to Commerce, Aviation and Economic Development to use for improvements at Castle including new awnings for the terminal and cleanup of the hanger. APPROVED AS RECOMMENDED AYES: ALL 45. Authorize Special Board Project Funds-District Four in the amount of $1,200 to be utilized to reimburse Public Works-Building for cost of paint, supplies and equipment rental to paint the Law Library. APPROVED AS RECOMMENDED AYES: ALL BOARD APPOINTMENTS 46. Assessment Appeals Board Appointed Robert Haden, representing Attorney Category, until September 4, APPROVED AS RECOMMENDED AYES: ALL 47. May Day Fair Board Reappointed Kim Rogina, representing District Two, until July 1, APPROVED AS RECOMMENDED AYES: ALL EXECUTIVE OFFICE 48. Accept the resignation of Robert Lewis as Merced County Planning Director, effective September 15, 2010, and confirm the appointment of Assistant County Executive Officer Jim Brown as Interim Planning Director and Interim Secretary of the Airport Land Use Commission. APPROVED AS RECOMMENDED AYES: ALL BOARD INFORMATION & POSSIBLE ACTION ACCEPTED AND PLACED ON FILE PULLING INFORMATION ITEM NO. 51 AND 52 FOR SEPARATE ACTION AYES: ALL 49. Commerce, Aviation and Economic Development re: Notification of approval by Dept. of Housing and Community Development of expansion of the Merced County Regional Enterprise Zone for a total acreage of REVIEW BOARD ORDER SEE PAGE Commerce, Aviation and Economic Development re: Notification of Contract with Ag. Commission for Landscape Maintenance for the Animal Control Shelter at Castle Commerce Center. CONTRACT NO Public Works re: Notification of Contract Award to Cen-Cal Demolition, Inc. for District Attorney Tenant Improvements (Demolition). REVIEW BOARD ORDER SEE PAGE East Merced Resource Conservation District re: Support of Agritourism and the Calif. Agricultural Homestay Bill (AB 1258 & SB 2168) and urging the Board to discuss and give 8

9 direction on establishing and including zoning guidelines for Agritourism and Farmstay operations in Merced County prior to the adoption of the General Plan Update. REVIEW BOARD ORDER SEE PAGE State Water Resources Control Board re: Notification of Public Comment by October 19, 2010 re: Underground Storage Tank Cleanup Fund, meeting notification for Case Closure Recommendation pursuant to Health and Safety Code Section : Claim Number 14560: Site Address, Sacramento Valley Crane Services, Inc., Sacramento, CA State Water Resources Control Board re: Notification of Public Comment by October 19, 2010 re: Underground Storage Tank Cleanup Fund, meeting notification for Case Closure Recommendation pursuant to Health and Safety Code Section : Claim Number 14002; Site Address: Silver Gas & Food Service, Sacramento, CA State Water Resources Control Board re: Notification of Public Comment by October 19, 2010 re: Underground Storage Tank Cleanup Fund, meeting notification for Case Closure Recommendation pursuant to Health and Safety Code Section : Claim Number 11469; Site Address: Walnut Grove Elementary School, Walnut Grove, CA State Water Resources Control Board re: Notice of Opportunity to Comment on Proposed approval of Amendments to the Water Quality Control Plan for the Sacramento River and San Joaquin River Basins (Basin Plan) to address selenium control in the San Joaquin River Basin. ADOPTED RESOLUTIONS IN MEMORY OF JOSEPH WELCH, JOSEPHINE ROYER, AND GEORGE RANDOLPH AND AJOURNED MEETING UNTIL TUESDAY, SEPTEMBER 28, 2010 AT 10:00 A.M. 9

10 BOARD ORDERS SUMMARY ACTION MINUTES SEPTEMBER 14, :00 A.M. SCHEDULED ITEM PUBLIC OPPORTUNITY The Chairman calls for anyone interested in speaking at the Public Opportunity. Director of Probation Brian Cooley introduces Scott Ball as the new Director of Probation. Elaine Lai and Johnny Moua, University of California-Merced students, state they are before the Board to provide a progress update on the Center of Excellence on Health Disparities at UC Merced Program they are completing since their last update of August 10, 2010 and review the number of applicants interested in participating and the departments and agencies they are contacting and working with. Present: O Banion, Pedrozo, Walsh, Nelson, Kelsey 10:00 A.M. SCHEDULED ITEM PRESENTATION The Chairman introduces Nancy Young-Bergman, Ph.D., President of Court Appointed Special Advocates (CASA) for Children of Merced County. Ms. Young-Bergman reviews a powerpoint covering statistics and highlights the following: A Dim Future for Foster Children, What Happens to Children Facing Our Court System, Finding Creative Solutions in a Challenging Economy, Making CASA a Reality, The History of CASA, The CASA Advocate is Key, How it Works: The CASA Process, Our Objectives for CASA in Merced County, Our CASA of Merced County Mission Statement, and the list of Board of Directors. Ms. Young-Bergman introduces Judge Kirihara and Commissioner Jacobs. Presiding Judge John Kirihara states he is in support of the CASA Program and states CASA provides support and gives children a voice and in turn can provide support and information to judges on a daily basis. Commissioner Harry Jacobs provides an example of a full Dependency calendar court day and states he finds CASA acts as another set of eyes and ears for the children. Following discussion, the Board thanks the CASA volunteers for their efforts and for improving the lives of our community. Present: O Banion, Pedrozo, Walsh, Nelson, Kelsey 10

11 10:00 A.M. SCHEDULED ITEM PLANNING PUBLIC HEARING ORDINANCE NO The time and date previously set for a public hearing to consider a Tier I Development Agreement with River West Investments regarding development of 1, acres within the Villages of Laguna San Luis Community Plan that established the Specific Urban Development Plan (SUDP) on property located on the north and south sides of State Highway 152 and west of Interstate 5. The SUDP contains a variety of Residential, Commercial, Mixed Use, Industrial, and Public Land Uses and Zoning Designations and consider Proposed Ordinance titled: An Ordinance approving a Tier 1 Development Agreement Authorizing the Development of Certain Parcels within the Villages of Laguna San Luis Community Plan. Assistant Developmental Services Director Bill Nicholson reviews the Staff Report and states a Letter from Rick Telegan, Manager of Pinnacle Pointe, LLC dated August 11, 2010 was received only to correct the record and to ensure that when the Tier 1 Development Agreement is fully executed, notarized, and recorded, that it does not cloud title to their property, a 40 acre parcel, APN , owned by Pinnacle Pointe, LLC. Mr. Nicholson confirms that parcel is not included. Senior Planner Dave Gilbert reviews the powerpoint highlighting the following: Proposal; Map; Background; Tier 1 Development Agreement; Article 1 General Provisions; Article 2 Development of the Property; Article 3 Applicant s Obligations; Article 4 County Obligations; Development Agreement Determinations; Correspondence 1; Correspondence 2; Environmental Review; and Required Action. The Board discusses environmental review, development process and requirements, community plan requirements, infrastructure improvements and required mitigation measures. County Counsel James Fincher reads into the record a statement in the Agreement, page 11 Nothing in this Section shall prevent County from adopting mitigation measures as part of the Subsequent Entitlements arising out of any required environmental review under CEQA. The Chairman asks if there is anyone present wishing to speak. Tim Terron, Sacramento, advises he has worked with the Planning Staff for over a year on this program and is in favor of the Tier 1 Development Agreement and the staff recommendation. Amanda Carbajal, Executive Director of Merced County Farm Bureau, submits letter dated September 14, 2010 from the Merced County Farm Bureau asking the Board to not move forward so that staff can evaluate the financial ramification for the County and its constituents and speaks in opposition of the Tier 1 Development Agreement due to concerns with the update to the general plan and water issues on the Westside. Jean Okuye, Valley Land Alliance, submits letter and speaks in opposition of the Tier 1 Development Agreement and states concern with the term of 20 years. The Chairman closes the public hearing. Counsel Fincher advises Planning states this is the first Tier 1 type of Development Agreement but this is an agreement that is done statewide and is more common in urban areas. 11

12 He further states the Marsha Burch letter being unique, for Merced County this is the first and this development agreement differs greatly between other development agreements in other areas. Mr. Nicholson responds to questions stating the general plan update is not updating any community plan directly, the SUDP boundaries are being taken as a given and the plan is a larger policy planning for the county, there may be policies about growth of community plans or if we want to start a new town or a new community plan, there may be policies for that but we are not looking for any changes in terms of the Villages Community Plan in 2008 adopted by the Board. There may be relevance if the county decided to change policies regarding urban areas in some way but we have not at all gotten in any detail changes to any existing community plans. Following a lengthy discussion and upon motion of Supervisor Nelson, seconded by Supervisor Pedrozo, duly carried, the Board determines that the Tier 1 Development Agreement is consistent with the Environmental Impact Report (EIR) certified for the Villages of Laguna San Luis Community Plan and Zone Change and no subsequent EIR is required in accordance with Section 15162(a). of the CEQA Guidelines based on two CEQA Findings: 1. When an EIR has been certified or a negative declaration adopted for a project, no subsequent EIR shall be prepared for that project unless the lead agency determines on the basis of substantial evidence in the light of the whole record, one or more of the following: (1). Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previous identified significant effects; (2). Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or (3). New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR, was certified as complete or the negative declaration was adopted, shows any of the following: (A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration. (B) Significant effects previously examined will be substantially more severe than shown in the previous EIR. (C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measures or alternative, or (D) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. As this is a Tier 1 agreement only, none of these circumstances exist and a supplemental EIR is not therefore required at this time. 12

13 2. The determination that the application is exempt from CEQA review reflects the independent judgment of the County. Ayes: O Banion, Pedrozo, Walsh, Nelson, Kelsey Brian Vail, West Investments, appears before the Board and states it is not the Rick Telegan property mentioned, it is another LLC and he purchased the property and it is accurately reflected in the agreement. Upon motion of Supervisor Nelson, seconded by Supervisor Pedrozo, duly carried, the Board adopts Ordinance No. 1879, thereby entering into a Tier 1 Development Agreement (Contract No ) between Merced County and property owners AKT Villages of San Luis Investors; LLC, Antioch Aviation Associates; The Edward A. Prewett and Mary A. Prewett Family/Survivors Trust; The Edward A. Prewett and Mary A. Prewett Family QTip Trust; AKT Santa Nella Solar Investors, II, LLC; Brian C. Vail and Telegan Santa Nella LLC relative to the Villages of Laguna San Luis based on the following 5 Project Findings: 1. The proposed ordinance to adopt a Tier 1 Development Agreement is necessary to develop 1, acres within the Villages of Laguna San Luis Community Plan and establishes the development of the property, the developer obligations, and the County obligations. 2. The proposed Tier 1 Development Agreement will cover properties located on the north and south sides of Highway 152 and west of Interstate 5 and specifically identified as Assessor Parcel Number s ; , 013, 058, 060, 064; ; , 005, 013; , 007, 008, 037, 088 & The Planning Commission has made the following determinations as required in Ordinance No. 1361: a. The Tier 1 Development Agreement is consistent with the General Plan and any applicable specific plan and zoning. b. The Tier 1 Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located. c. The Tier 1 Development Agreement is in conformity with and will provide public convenience, general welfare, and good land use practice. d. The Tier 1 Development Agreement will not be detrimental to health, safety, and general welfare. e. The Tier 1 Development Agreement will not adversely affect the orderly development of property or the preservation of property values. f. The Tier 1 Development Agreement will promote and encourage the development of the proposed project by providing a greater degree of requisite certainty. 4. The public hearing has been adequately noticed and advertised pursuant to Government Code section

14 5. The Tier 1 Development Agreement will be subject to annual review by the Merced County Development Services Director, who will make a finding as to the good faith compliance by the developer as to its terms. Ayes: O Banion, Pedrozo, Walsh, Nelson, Kelsey 10:00 A.M. SCHEDULED ITEM PLANNING PUBLIC HEARING The time and date previously set for a public hearing to consider an Appeal of the Planning Commission Project CEQA Determination and approval of Minor Subdivision No. MS and Administrative Permit No. AA Appeal submitted by John Williams on behalf of Valley Citizens and Justin Bernard; Application submitted by Property Owner-George/Jeanne Simmons, Applicant-Blohm Road Joint Venture George Simmons (MS07-027) and Don Chapin Company (AA08-033) to subdivide 26.9 acres into four parcels: Parcel 1=15.00 acres, Parcel 2=3.46 acres, Parcel 3=3.46 acres and Parcel 4=5.00 acres and Administrative Permit No. AA proposes to construct a concrete batch plant on a 4.03 acre portion of proposed Parcel 1 (15.0 acres) on property located at the southeast corner of Henry Miller Avenue and Volta Road in the Volta SUDP. Assistant Developmental Services Director Bill Nicholson submits a Memorandum dated September 14, 2010, which summarizes the issues of concern raised by Williams Research and where issues are addressed in the record and provides Two Letters from Williams Research received September 13, 2010 for Administrative Permit No. AA and Minor Subdivision No. MS The Chairman states a letter was submitted from John Williams dated September 9, 2010 requesting the matter be rescheduled and this is provided to the Board as a Supplemental Document. Following discussion and upon motion of Supervisor Nelson, seconded by Supervisor Pedrozo, duly carried, the Board denies the request from John Williams to continue the hearing to a later time. Ayes: O Banion, Pedrozo, Walsh, Nelson, Kelsey Planner Jeff Fugelsang reviews the powerpoint highlighting the following areas: Project Introduction; Vicinity; Proposed Parcel Map; Plot Map; Site Photos; General Plan Consistency; Consistency with Zoning Code, Subdivision Code and Subdivision Map Act; Environmental Review; Planning Commission Review; Appeal to the Board of Supervisors and Recommendation and Motions before the Board. Discussion is had on the current zoning, Volta SUDP boundaries and non-conforming homes. The Chairman asks if there is anyone present wishing to speak. Maureen McCorry, San Joaquin et al, requests the Board reject the mitigated negative declaration and direct the applicant to prepare an EIR as evidenced by the appellants and the 14

15 organization at the July 14, 2010 Planning Commission and submits a letter dated September 13, Don Chapin, applicant (AA08-033) and owner of Don Chapin Company Inc., states his business has been incorporated since 1975, he has a long history of doing business in this community and would like to extend it to this area; this is a thorough and complete package and the staff has done a great job dealing with this and he hopes the Board looks at this application based on its merits. Chris Roofer, The Morning Star Company, states he has been through 25 years of environmental studies, the area proposed is barren and therefore doubts there are any environmental impacts and there should be zero disruption to wildlife in the area. The Chairman closes the public hearing. The Chairman requests Staff comment on the documents that were received that came in after the public comment period. Planner Jeff Fugelsang reads into the record the letters that were received in the last two days by Staff: Appellant John Williams, Williams Research, on behalf of Valley Citizens and Justin Bernard; Dale LaForest & Associates regarding noise impacts; clarification letter by Smith Engineering and Management relative to earlier letter submitted; and Autumn Wind Associates, Inc. addressing potential air impacts. Planner Jeff Fugelsang comments and addresses Ms. McCorry s comments and reviews the record on file provided to the Board relative to grassland ecological plan area and wetlands surrounding area land use and ecological area; Chevron letter and Chapin agreement to protocol which is part of the Board record and he reads this into the record. He states staff contacted Kim Forest, Wildlife Refuge Manager, U.S. Fish and Wildlife Office-Los Banos, and she stated this was in the community of Volta and not adjacent or close to the wildlife refuge and would not have direct impact; and Volta Community Services District relative to receipt of water and they have no issues with the project. He further comments in the Planning Commission package there is a letter from CDFG stating the mitigation measures are adequate for the project. Mr. Fugelsang reviews the William Research letter comments and states reference is made to the City of Greenfield Project and refers to the community of Volta as a City and the Volta community is not a City and therefore, there will be no annexation. He reviews concerns and comments stating these have been addressed in all or part of the Planning Commission Staff Report, Planning Commission Minutes, Board Reports and in the Mitigated Negative Declaration and reviews the concerns addressed: hydraulic issues, traffic issues, agricultural resources concerns and issues of wildlife refuge. Mr. Fugelsang states Mr. Macenski will address the technical concerns. Environmental Consultant Trevor Macenski, Michael Brandman Associates, reviews the letters received after the public comment period and states he will review technical concerns and is the primary author of this document. He states the concerns were generally with noise, traffic, air quality and water use and are part of the Initial Study Mitigated Negative Declaration and addresses the matters point by point for the record. 15

16 Mr. Macenski begins the review with the Williams Research Letter dated September 14, He states the letter identifies the project as the Don Chapin Batch Plant and has a typo in the title as the project is MS and not 037 as referenced. The letter provides information as it relates to CEQA court case findings and standards for an Environmental Impact Report (EIR) and states let it be clarified that a Mitigated Negative Declaration was prepared and it was determined that an Environmental Impact Report (EIR) was not needed due to the scope of this project. Furthermore, the type of analysis that would be included in an EIR was also included in this Initial Study Mitigated Negative Declaration. He also addresses the Fair Argument Test, Point B of the letter, stating this is relative to bringing up a fair argument in opposition to a project or identifying an impact which has not been evaluated as it relates to that in the administrative record and to date there has not been a fair argument presented on a technical resource area that was not addressed in the Initial Study Mitigated Negative Declaration. He further reviews and responds on the technical issues of concern that are addressed and found in the Initial Study Mitigated Negative Declaration: Water quality impacts. He states the impacts are addressed as required by CEQA and addressed both construction and non-operational impacts. Traffic impacts. He notes all trip generation levels were identified as heavy truck trips for air quality purposes and noise as well as traffic for road impact agreement. Noise impacts. He states the appellant provided additional technical study as it relates to noise in the community of Los Banos and took noise measurements on opposite side of a road that a sound wall currently exists and then tried to speak to the impacts to the residents where the sound walls actually protects. He states this is a misrepresentation of actual noise level that is existing in community currently and for point of clarification the document does have mitigated measures to reduce noise level for construction activities. He further addresses the following concerns: burden on government to gather adequate information and investigate environmental impacts; Bishop area vs. County of Inyo; credible expert testimony and differences between experts; Plant production levels; Noise impacts and concern on early operation noise and facility operation; Traffic impacts and evaluation of traffic analysis submitted; air quality impacts underestimated; Greenfield Batch Plant; fine particular matter; comments regarding mitigated negative declaration not accurately describing project impacts; reference to cast concrete production; project will affect significant agricultural resources; additional impacts from subdivision with assumption of actual use and built homes; and missing proposed mitigation measures. Environmental Consultant Macenski states point of clarification on the following: Operation and construction of the facility. He states Mitigation Measure will prevent particulate matter, dust during construction, as well as health risk assessment to assure no air borne health risks would affect the surrounding community; Water usage impacts and water quality impacts and the facility. He states it is pertinent to mention the facility is designed so that no water will run offsite and be captured and reused. Furthermore, the Regional Water Quality Resource Board, State and local utilities services district advised water would not be a problem and letters are documented. Water usage in the nearby Wildlife Refuge. Point of clarification, the State, Federal and local all commented and had no concern with the project; Also pertinent to mention, it was ascertained that water usage would affect the nearby refuge and that is false and is documented; 16

17 Average production figures could peak over was concern. He states there is an operational statement and has been addressed; in addition, the applicant also agreed to a condition clarifying this and will produce report upon staff s request to assure that he is operating within these limits; Environmental Consultant Macenski addresses the following concern with the Williams Research Letter: Concern with noise analysis; Permanent levels of construction will allow significant impacts that were not analyzed; Noise impacts are significant and does not address high speed rail and Chapin production. Environmental Consultant Macenski states point of clarification on the following: Incorrect statement regarding noise standard - does not apply to residents of Volta which is incorrect and it is taken into account; Incorrect statement regarding appellant noise report - pointed out that these residents will suffer from a significant unmitigated noise increase report. He clarifies that an Initial Study Mitigated Negative Declaration was prepared and found no significant impacts; Several other comments were directed specifically to Trevor and are opinion based comments; And point to address is there is an operational statement and an applicant s willingness to provide figures as requested by county and is Condition Approval No. 2. Planner Fugelsang comments on public utilities commission working with the county on road impact fees and states the warning signals are in place and are working. Mr. Fugelsang reviews the Dale LaForest & Associates letter dated September 13, 2010 and responds to the concern that existing noise line does not include the high speed rail issue. Environmental Consultant Macenski addresses the following concerns with the Dale LaForest & Associates Letter: Noise would not exceed limits; level of noise and numerous R-1 and R-2 homes would be impacted by the noise. Mr. Fugelsang also responds to concerns on the homes impacted. Mr. Fugelsang reviews the Smith Engineering and Management Letter dated July 29, 2010, that was received yesterday clarifying the word adequate should have been Inadequate in original analysis and Staff has noted. Environmental Consultant Mr. Macenski states for point of clarification on letter from Smith Engineering and Management, this is a Follow-up Letter to a Supplemental Analysis provided after the public comment period and the analysis was inaccurate and assumed the project trip generation was based on the 70 th percentile. Environmental Consultant Macenski addresses the following concerns with the Letter dated September 14, 2010 by Autumn Wind Association: Environmental review documents of the batch plant; vehicle trips; reference to the 70 th percentile rates; additional comments on Air Quality; reference to concrete blocks and trip generations. Mr. Macenski states many concerns are opinion based and does not question the technical preparation of the Initial Study Mitigated Negative Declaration. 17

18 County Counsel James Fincher states there was considerable time and staff effort to refute all the concerns raised, but one thing the appellant never raised in the record and that was what was his geographical nexus to this project. Most of the submittals contained an address in Portland, Oregon and a phone out of the area code and there is nothing in this record to state what his nexus is to this project and that is a requirement by CEQA. Following discussion and upon motion of Supervisor Nelson, seconded by Supervisor Pedrozo, duly carried, the Board denies the appeal by John Williams on behalf of Valley Citizens and Justin Bernard alleging Violation of CEQA by the Planning Commission. Ayes: O Banion, Pedrozo, Walsh, Nelson, Kelsey Upon motion of Nelson, seconded by Supervisor Pedrozo, duly carried, the Board adopts the Initial Study and Mitigated Negative Declaration prepared for Minor Subdivision No. MS and Administrative Permit No. AA based upon the four CEQA findings. 1. An Initial Study/Mitigated Negative Declaration was prepared for the project in accordance with the guidelines set forth by the California Environmental Quality Act (CEQA) and meets the requirements for the preparation of CEQA documents. 2. The 13 Mitigation measures identified in the Initial Study/Mitigated Negative Declaration are appropriate for the project to mitigate potential impacts to a less than significant level, meet the goals and intents of CEQA, and have been agreed to by the landowner/applicant as prepared by the environmental consultant representing the County and the applicant for the project. 3. The Initial Study/Mitigated Negative Declaration was posted for the required 30-day review period from April 15, 2010 to May 17, This determination is solely based on the independent judgment of the County. Ayes: O Banion, Pedrozo, Walsh, Nelson, Kelsey Planner Fugelsang states there was a concern of the appellant on the annual production rates and he suggests the Board adopt a Condition of Approval which states: The maximum annual production of the concrete batch plant shall not exceed 70,000 cubic yards of concrete per year and upon request, the applicant shall produce the records to County Staff to show compliance. The Chairman asks the applicant if this is in compliance with this plant. The applicant, Mr. Chapin, states Yes. Upon motion of Supervisor Nelson seconded by Supervisor Pedrozo, duly carried, the Board approves Minor Subdivision No. MS and Administrative Permit No. AA based on the 11 project Findings and subject to the following 30 Conditions: Project Findings 1. Minor Subdivision No. MS proposes to subdivide 26.9 acres into four parcels: Parcel 1 = 15.0 acres, Parcel 2 = 3.46 acres, Parcel 3 acres = 3.46 acres and Parcel 4 = 5.0 acres. 2. Administrative Permit No. AA proposes to construct a concrete batch plant on a 4.03 acre portion of proposed Parcel 1 (15.0 acres). 18

19 3. The project site is located at the southeast corner of Henry Miller Avenue and Volta Road in the Volta Specific Urban Development Plan (SUDP). 4. The property is designated Industrial and Neighborhood Commercial in the General Plan and is zoned M-1 (Light Industrial) and C-1 (Neighborhood Commercial). 5. The projects are consistent with the Merced County Zoning Code and General Plan. 6. MS is consistent with the Merced County Subdivision Code and the State Subdivision Map Act. 7. The applications comply with all applicable development standards of the Merced County Zoning Code. 8. The proposed Administrative Permit, if operated in compliance with County and State regulations and the conditions of approval, will not be a nuisance nor detrimental to the public health, safety or general welfare. 9. The public hearing has been adequately noticed and advertised. 10. The proposals were referred to the following County agencies for review: Department of Public Works/Roads Division, Public Works/Building & Safety Division, Fire Department, and Environmental Health Division. Referrals were also sent to the State Department of Fish and Game, State Department of Conservation, State Energy Commission, State Air Resources Board, State Public Utilities Commission, State Resources Agency, State Department of Water Resources, State Water Resources Control Board, San Joaquin Valley Air Pollution Control District, Regional Water Quality Control Board (Sacramento), Central California Irrigation District, Merced County Fire Department, Grassland Water District, Army Corps of Engineers, City of Los Banos Planning Department, United States Department of Fish and Wildlife Service, Volta Community Services District, and the Native American Heritage Commission. 11. The applications are subject to all applicable Local, State, and Federal regulations. Conditions of Approval Planning & Community Development Department 1. A parcel map, including all parcels involved, shall be recorded within two (2) years of the approval date as required by the Subdivision Map Act and Merced County Subdivision Code. 2. Administrative Permit No. AA is granted to allow a 4.03 acre concrete batch plant on Proposed Parcel 1 (15.0 acres) of Minor Subdivision No. MS07-027, in accordance with the approved Plot Plan and Operational Statement. 3. Concrete batch plant hours of operation shall be from 5:00 am to 6:00 pm, Monday through Saturday. 4. Minor Modifications to this permit may be approved by the Development Services Director upon submittal of an acceptable application. 19

20 5. The property shall comply with the landscaping and irrigation requirements in Section of the Merced County Zoning Code. 6. The project site shall comply with the parking requirements in Section of the Merced County Zoning Code. 7. A seven (7) foot opaque landscaping screen or wall shall be installed to screen the parking and storage area from public right-of-ways and adjacent properties as required in Section of the Merced County Zoning Code. 8. The applicant/property owner shall comply with all applicable conditions contained in Planning Commission Resolution For the purpose of condition monitoring, an inspection fee in the amount of $ shall be required. This fee shall be paid within 30 days of the approval date. Should additional inspections be required, inspection time shall be billed to the applicant at the established hourly rate at the time of the inspection. 10. The applicant shall comply with all applicable local, state and federal standards and regulations. County Counsel 11. George Simmons and Don Chapin Company has the contracted duty (hereinafter "the duty") to indemnify, defend and hold harmless, County, its Board of Supervisors, commissions, officers, employees, agents and assigns (hereinafter "COUNTY") from and against any and all claims, petitions, demands, liability, judgments, awards, interest, attorney's fees, expert witness and consultant fees and other costs and expenses of whatsoever kind or nature, at any time arising out of or in any way connected with the performance of this Agreement, whether in tort, contract, writ of mandamus, or otherwise. This duty shall include, but not be limited to, claims, petitions, or the like for bodily injury, property damage, personal injury, contractual damages, writ of mandamus, or otherwise alleged to be caused to any person or entity including, but not limited to employees, agents, commissions, boards, and officers of George Simmons and Don Chapin Company. George Simmons and Don Chapin Company's liability for indemnity under this Agreement shall apply, regardless of fault, to any acts or omissions, willful misconduct, or negligent conduct of any kind, on the part of the George Simmons and Don Chapin Company, its employees, subcontractors, agents, and officers. The duty shall extend to any allegation or claim of liability, or petition, except in circumstances found by a jury or judge to be the sole and legal result of the willful misconduct of COUNTY. This duty shall arise at the first notice of filing a lawsuit, claim, petition, or allegation of liability against COUNTY. George Simmons and Don Chapin Company will on request and at its expense, defend any action suit or proceeding arising hereunder. This clause and shall not be limited to any claim, petition, demand, liability, judgment, award, interest, attorney's fees, expert or consultant witness fees, legal research fees, staff and administrative costs, administrative record costs, materials, and costs and expenses of whatsoever kind or nature, that may arise during the term of this Agreement, but shall also apply to all such claims and the like, after the term of this contract, including but not limited to actions arising from public interest, land use and environmental legal actions, brought against the COUNTY following PROJECT approval, modification, denial, or the exercise or exhaustion of administrative appeals. Attorney's fees shall include any and all 20