Test, one, two, test.
Captions test.
♪ Why do we all ♪
♪ It should be ♪
♪ No one should feel this ♪
♪ Wish that there is it all ♪
♪ About the gifts and presents ♪
♪ Why not be ♪
♪ Lights that shine so bright ♪
♪ America of cheer ♪
♪ With the ones we missed ♪
♪ And having them so near ♪
for me imagine if no lonely souls call me foolish imagine if sad at Christmas
call me foolish all right good evening and welcome to the thursday december 14th
2023 regular meeting of the walnut creek planning commission uh at this time i'd
like to ask our commission secretary to please call the roll commissioner riser yes here
Commissioner Natting here Commissioner Lee zach here commissioner picket here
Commissioner Anderson is absent vice chair strongman here chairward here
Okay, so we're almost all here. We have a quorum so we'll proceed here
Next up in our agenda is the consent calendar
We have two items on the consent calendar. I would like with the approval of the Commission to
Pull item to be for discussion and I'd also like to move it
to
Well, it would be item for
B to put it after the the hearing on the
Conditional use permit that we're considering do we vote on that?
Yes, so moved
I'll take the vote commissioner Reiser. Yes
Commissioner Nate Ting? Yes. Commissioner Lezak? Yes. Commissioner Pickett? Yes.
Commissioner Anderson is absent. Vice Chair Strongman? Yes. Chair Ward? Yes.
Motion passes. Thank you all.
Thank you for that. So the next item is 2A on the consent calendar.
We should have doubled it up. Move to approve
the draft meeting minutes 2A on the consent calendar.
All right, well we didn't so we're gonna right that was my motion
Okay
So we're gonna vote on we have a motion and a second to approve the minutes
I'd also just like to point out that that when approving minutes if you're not at the meeting
You can still vote to approve those minutes because you're voting as a commissioner not as a person who is attesting to the
Accuracy of the minutes. So just if there's a question about that
So let's call the roll, please
Commissioner Reiser. Yes, Commissioner Nating. Yes, Commissioner Lezak. Yes, Commissioner Pickett. Yes
Commissioner Anderson is absent vice chair strongman. Yes chairward. Yes motion passes. Okay. Thank you very much
Okay, so at this time I'd like to move on to item three of the agenda, which is public communication
The public communications portion of the meeting is reserved for a comment on items not on the agenda
so this means items which are not the seven Hills Ranch item or the
Chacon auto repair CUP, not to those things other than that at this moment.
Under the Brown Act the Commission cannot act on items raised during public
communications but may respond briefly to statements made or questions posed
request clarification or refer the item to staff. Additionally I'd like to remind
everyone that not all speech is protected and that I will not tolerate
or allow hate speech during public comment at any meeting that I chair. Hate
has no place in our community and our words must reflect our community
commitment to equality and inclusion for all.
So with that, are there any members of the public
in the chamber who would like to present
public comment at this time?
Alrighty then, seeing none, let's move right on
to item four, public hearings.
And we're going to start with the first,
oh, first I'm gonna start by asking if any member
of the commission has had any ex-party communications
related to items on this evening's agenda.
Seeing a lot of no's.
Okay, so with that, we'll move on to Shaqone Auto Repair,
CUP Conditional Use Permit, application number Y23-076,
1205 Parkside Drive.
And I think we'll start with a staff presentation
by Brittany Lenoir, our Associate Planner.
Good evening, commissioners.
Brittany Lenoir, Associate Planner
with the Community Development Department.
So the project before you is a request
or a conditional use permit to operate an auto shop
at 1205 Parkside, suite 1215.
So the site is zoned commercial mixed use.
The purpose of the district is to encourage medium
to high intensity commercial and residential uses.
The project site is also designated
as mixed use commercial emphasis out of the general plan.
And that is intended to encourage both commercial
and residential.
And so the establishment of a business
and an existing commercial tenant space
will aid in preventing vacant commercial spaces
and will allow additional services and amenities
for surrounding businesses and residents of Walnut Creek.
Additionally, the site is zoned
or is a part of the North Downtown specific plan.
And this proposal meets many of those specific plan policies
including business preservation,
supporting a range of services,
and the policy to keep all repair uses
inside and screen from view.
So the Parkside Business Center,
this is where this business will go into,
you'll see on the screen that yellow arrow
is the tenant space.
And the Parkside Business Center is an established site
that consists of three commercial buildings
and a surface parking lot.
It has multiple existing retail, restaurant,
and auto service uses.
And Chacon Auto Repair will occupy that 1215 site there,
which is a single story tenant space in building number three.
And because it's single story,
that's the reason it needs the conditional use permit.
So basically the mixed use commercial zoning district
only allows auto services when the building's
in a multi-story building.
Since this is a single story,
it technically would not normally be allowed per the zoning,
but the prior use was a auto sales.
And so with a CUP, you can change a non-conforming use
to a new non-conforming use.
And so since the car sales was classified as non-conforming,
we can move forward with the CUP
for this new different non-conforming auto shop use.
So sales to service.
And so Chacon Auto Repair is a business that focuses
on fleet repair and maintenance.
And so the tenant space they will occupy is 1,750 square feet.
That includes an existing roll up door service area
as well as the office area and bathrooms.
So all services are going to be minor
and not include anything such as bodywork.
The hours of operation will be consistent
with the business park or business center
eight to 5 p.m. every day and by appointment only.
Additionally, there'll be no outdoor service or storage.
And so the project is exempt from CEQA review
since it's only a minor change of use
in an existing commercial tenant space.
And so staff does recommend planning commission move
to determine the project exempt from CEQA
and approve the conditional use permit
for the auto repair shop at 1205 Parkside Drive, suite 1215.
And I'm available for any questions you may have
and the applicant is also here as well.
Great, thank you very much for that presentation.
Do we have any commissioner questions?
Okay, seeing none, I'd like to open the public hearing
and the applicant will have 15 minutes for their presentation
if they so choose.
Come on up.
Good evening.
Steve DeCesras with Cardozo Properties.
Thank you for having us here.
Brittany, thank you for the work you did on this project.
I've got really nothing to say.
We support the staff's findings
and hope you guys do too.
Very short and sweet, appreciate it.
Do we have any questions from commissioners
for the applicant?
Okay, why don't you you can sit down if you'd like and thank you call you back up if we have more
All right. So does any member of the public wish to come to provide public comments at this time?
Not on this item. Okay. All right. Thank you
So I with that I will close the public hearing and bring it back to the Commission for any questions comments or deliberation
Commissioner Lisa
I'm gonna motion to approve the resolution for the conditional use permit application number y 23-0 7 6
the Chacon auto repair CUP 1205 Parkside Drive Suite 1215.
Okay, we have a motion and a second.
Commission Secretary, can you please record the vote?
Commissioner Reiser?
Yes.
Commissioner Neiting?
Yes.
Commissioner Lezak?
Yes.
Commissioner Pickett?
Yes.
Commissioner Anderson is absent.
Vice Chair Strongman?
Yes.
Chair Ward?
Yes.
Motion passes.
Okay, thank you very much.
All right, so now we're going to move on to the second hearing which was previously on
the consent calendar which is reconsideration of general plan consistency determination
pursuant to government code section 65402.
This item is being presented for reconsideration by this commission because some comment e-mails
were not included in the original packet that was given to us for our consideration.
So I would also like to point just to comment that while I was not at last sessions meeting
I did review the recording and I think all of us have have read all of the voluminous
comments and other materials that have been provided to us.
So if you could all keep that in mind when you make your comments that would be appreciated.
We love your comments not to say that we don't.
Is there a there's no staff presentation since we moved it from consent that's correct.
No, not at this time.
All right, so are there any commission questions
or comments at this time that anybody has,
given the new comments that came in
or any other things you want to discuss?
Just to note that I also reviewed the meeting
from last time and the comments, et cetera, so.
Great, thank you very much.
All right, so the time has arrived for members
of the public who wish to provide
public comment at this time.
We've been adhering to a two minute time limit
for this item since there's been so much interest.
And I have two comment cards here,
but obviously others are welcome to come on up as well.
So I have Steve Curtis and Carol Curtis.
Okay, ladies first.
Ladies first, I guess.
And she was.
I'll take that.
Now you know who I am.
All right, hi.
I'm Carol Curtis and I am the president of the
board of directors of the Heather Farms HOA
and our attorney delivered volumes of information
to you this afternoon and anyway, I won't do that.
I respect all the attorneys and how thorough they wanna be
but I am not gonna do that.
I have just three points that I want to reiterate
or iterate as the case may be.
The first one is that the zoning consistency determination
is really deceptive.
The action you're being asked to take
will negate the evidence used to support that action.
Well, how can that be?
The report cites a city map which does show
consistent land use designations.
It does not show that as a part
of the county's project approval,
the zoning will change.
And to a congregate care, which is not residential.
So the transfer of latte,
which will allow the Glen to go forward,
means the zoning will no longer be consistent.
It's a circular argument.
Point number two, as a condition of approval,
the city required our developer to dedicate lot A
to the city for a public purpose.
A large privately owned commercial development
is not a public purpose.
Allowing lot A to support a seasonal wetland
would be a public purpose.
And point number three, the current general plan
has a section called neighborhood traffic and parking.
In chapter five goal four, policy 4.1,
they seek to manage arterial and collector traffic
to minimize adverse effects on neighborhoods.
Adding commercial and employee traffic
is definitely an adverse effect on our neighborhood.
Given that March Bank's drive is a preferred bicycle route,
adding all this employee and commercial traffic
to that route also violates Goal 5's effort
to promote bicycle use.
So I ask you, how can working against these two stated goals
possibly be consistent with the general plan?
Thanks.
Thank you very much.
Next up, Steve Curtis.
My wife and I did not work with each other,
and I have some repeats,
so I'm trying to work on the fly here.
All right, much appreciated.
I respectfully request, perhaps, an additional,
as much as 90 seconds to complete my thought here.
My name is Steve Curtis, I live on Gilboa.
I'm both an architect and a real estate broker.
I submitted extensive written documents or comments,
which I hope you've all reviewed.
I wanna summarize a few of them.
The Kinross Rideaway was created
to provide the flexibility for the company
that at the time owned both sides of the Rideaway,
which accounts for its length into the portion
that is not yet built.
Laud A was specifically excluded from that right-of-way,
and contrary to the statement in today's agenda,
continues to be excluded from the right-of-way.
Attempting to include it is somewhat misleading.
Exactly who requested that exclusion is not known,
but it's probably discoverable in the public record
with planning department.
At the time of the creation of Laud A,
the stated purpose was to prevent the traffic
from Southern Hills Ranch Road to Kinross Drive.
But it was always about the commute
and commercial traffic created, not the physical connection.
The commute and commercial traffic on residential streets
that will be created by the access conflicts
with the general plan.
The wetlands and riparian habitat cover virtually
all of the Kinross right away
and onto adjoining private property,
both the Homeowners Association and 589 Club Duterres.
any level of paving on the right of way
will destroy the publicly owned wetlands and habitat
and likely also the privately owned portions
of the wetlands and habitat.
Kinross Drive is an 8% to 9% gradient
and poses a significant noise and safety hazard,
especially during conception when there will be
at least 5,000 loaded trucks passing within
less than 14 feet from the corner home at Adirondack
and Kenross Drive.
Not the property line, the home, 13 and a half feet.
40 trips, 20 ground trips a day per day,
five days a week for a year.
There's no peace and quiet for literally hundreds
of residents in their homes, townhomes, condos,
and apartments for that year.
And virtually no saleability for that period of time either.
as opposed to no homes on the sloping portion
of Seven Hills Ranch Road with a 4% gradient.
The logical path for improvement
of Seven Hills Ranch Road is directly to Walden and Civic
as an underutilized four-lane arterial,
not through Walnut Boulevard to Ignatia Valley.
Most of the existing trees to be removed are eucalyptus.
The developer also already owns the two properties
that create the only potential choke point
for the right-of-way.
The argument that all of the surrounding property
to Lot A conformed with the general plan.
She said that already.
A certified EIR accepted by the county is in litigation
and should not be used as a justification
for your actions today.
The potential transfer of Lot A is not in compliance
with the city's general plan and any vote in favor of it
is a vote against the best interests of the community
most affected by that decision.
Thank you.
Thank you very much.
All right, next up.
Good evening, Chair Ward, members of the commission.
My name is Bob Simmons.
I am here tonight as president
of the Walnut Creek Watershed Council,
a 501C3 organization.
The Walnut Creek Watershed is actually 146 square miles
in size and includes parts of nine cities and towns
in Contra Costa County, and this is the largest one.
One of our goals is to improve
and enhance riparian areas, including wetlands.
And I spoke at the last meeting
and been putting my glasses on
because I can't read otherwise, but,
And I don't think I'll need extra time,
but I would like a little bit
because I'm representing an organization
if it turns out that way.
First of all, I do wish to thank your efforts
in that prior meeting to address the Kinross Wetlands.
You are the first group in either the city or the county
to attempt any meaningful response
to the concerns for the Kinross Wetlands,
and I think that's important.
To answer a question from the prior meeting,
which I think is also reflected in the materials
you received today or yesterday from Mr. Clancy. Water does flow across Lade and into the
speaker property, so that is all part of the wetland area. If a road is built here, it
will result in the complete destruction of the Keneros Wetlands. In the first hearing
you asked staff to include a comment that mitigation was an important consideration
for you and I thank you for that but the problem is that mitigation is merely
compensation and does not is not consistent with protect and support in
in the destruction of city city owned wetlands and that's what this is is not
consistent with the general plan that that general plan includes an action
item of three point one point two that's that states the city should now the
quote begins create improve or improve riparian corridors riparian lands within
parks, wetlands, and buffer zones, end quotes. Destroying a wetland is not improving a wetland,
and while mitigation, when mitigation is required, there is no great or improved that wetland,
it is in fact destroyed. In, in consideration of sometimes the problems of, well, let me back,
I have a handout. There's eight copies, so there's enough for everybody on the dais,
And what I did was I drafted a couple whereas clauses
that are purely factual in nature,
at least that's how I look at them,
that describe that the fact is that there's a wetland there,
that's locally known as the Kinross wetlands,
and that the construction of a road at this location
will destroy those wetlands.
You know, for the past 70 years or so,
we have generally treated creeks and wetlands
in riparian zones as something to be paved over,
buried into the culvert or whatever,
but one of the goals of the Watershed Council
is actually to change the public mindset
with regard to wetlands and riparian areas.
This language, as I read it,
and I'm saying it this way,
would support a determination by you
not to find the sale a lot A in conformity.
But I suggest to you also
on the other side of that question,
if you, as a commission,
were to disagree with my thoughts on that,
it would also be a communication to the council
that you were aware of the Kenross Wetlands
when you made your determination.
This would be the first time any reference
to the Kenross Wetlands appeared in an official document.
And so I think it's important, whichever way you go,
to add these whereas clauses or something similar to them.
And with that, I thank you for your time.
I'll be listening for the rest of the evening.
Thank you very much.
All right, next up.
Good evening, commissioners.
I'm Leslie Hunt.
I'm president of Friends of the Creeks.
And like the other speakers,
I've had to adjust a lot of what I was gonna say
for the changed conditions.
So what I would like to do
is suggest a possible solution to the circularity
that Commissioner Reiser, I believe, noted last time.
No, I'm sorry, I must have been Mr. Lezak.
Anyhow, forgive me for the confusion,
but since those wetlands are there,
and since we have a creeks plan,
we were one of the early people to have one
because we are an environmentally oriented community.
The creek plan sets out standards
and the general plan sets them out as well
for
situating wetlands and creeks and taking care of them
and daylighting them and generally being good to them
instead of forgetting them in a hole.
The plan was written so long ago
that it didn't mention wetlands explicitly,
something which I hope will happen when the plan is updated.
But wetlands are very important to several
of the regulating agencies.
Wetlands are important because our climate is drying out
and our wildlife needs to drink.
So there are a lot of possibilities
in town, including the open space and other places,
where wetlands can be created.
And I would suggest, rather than letting the wetlands
be mitigated on speakers' property, which I believe
is the current suggestion, that we take it back
and ask for it to be mitigated in Walnut Creek
so that we get more out of it.
My other request to you is please, please, please do not
do anything final about this.
I know that the law is complicated and delicate
in this area where you're dealing with a strip
such as Lot A, but I would hope that you will not
do anything final until all the lawsuits are settled
and all the regulatory agencies are satisfied
and we know exactly what we're dealing with, thank you.
Thank you very much.
Do we have any other comments from members
the public at this time. Okay seeing none, if this is a public hearing I'm
closing it. I don't know what it is exactly at this point. It's still
consent that we open for discussion. Totally conflicting responses here.
Alright in any case at this time I'm bringing this issue back to the
Commission for comments questions or deliberation. Commissioner Lezak. So I'm
We'll ask staff to respond to some of the additional public comments that were
presented since our last meeting and tonight with respect to the comment
about land use relative to our general plan and the understanding that it being
being consistent with the land use,
the residential land use on the adjacent property.
We've discussed that the use being shown
in the general plan is currently shown
to be, I believe, residential for that property.
And there's been some comment
that the zoning would change or has changed.
Can you speak to that item and let us know
how that may or may not affect
our conformance decision tonight.
I'm Terri Kilgore, Assistant City Manager.
I'm gonna defer to Assistant City Attorney, Claire Lai.
Yes, so I can answer that.
So with respect, the land use on the city's general plan,
so you're correct, Commissioner Lezak,
that the surrounding properties are zoned.
I believe it's multifamily low,
and it's intending to provide some kind of transition.
But it's still residential uses.
the prezoning in the unincorporated area,
which is what the city would do if it's a place
that's not in the city's boundaries,
but it's in the sphere of influence
or in the unincorporated area.
The prezoning is also, as I understand, the residential.
And so the surrounding areas are residential.
And what the county is proposing to do
with respect to its land uses,
that is not a part of your determination.
That is what the county is proposing to change
has changed and whether or not that you know that alters the county's general
plan and the county's zoning determinations that is not a part of this
determination what you're considering tonight is the general plan and and it's
a general plan it's not he's owning determination it's the general plan with
respect to what the city has in place okay so I'm not an attorney and not
going to make a legal discussion out of this, but if the county has changed the zoning for
that parcel, and I don't know what the status of that final determination of that zoning
change may be, but if they do, and it's different from what our general plan says, is that somehow
inconsistency with our general plan? It would not be. Okay so and also at the
time of the project the County also has to make its own general plan consistency
and so through that process they would have determined that that is a that is
there's internal consistency with the County's general plan zoning. And when
the County does that and again I don't know what the status of that final
determination of that but would the the county would be then amending its
general plan as part of that decision is that is that right yes that's that is a
part of projects approval so that's already been that approval has been
issued by the county okay is is that counties determination final now I I
believe so since was last year I think I'm asking the question mainly because
there seems to be some kind of a challenge or a complaint relative to the
CEQA determination and I would think that the CEQA did that all of those
zoning changes are predicated on that CEQA determination. So yes so all of
those projects the land use changes zoning and the project was all
considered by the county. So yes that we are aware there is litigation for the
CEQA component of the project. However, again, that is not, that is not relevant
to this determination in that the land use decisions are made by the County. And
so what the County has decided about whether or not it's consistent with this
general plan, what rezoning actions are needed, and what rezoning actions
general plan amendments have been made, those are for the County's land use
determination. They're not a part of this determination about what or not the
component is consistent with a city's general plan. So for the purposes of this
discussion the project rezone that may or may not have been happened at the
county is still considered by the city to be consistent with the zoning that is
in our general plan so that that multi-family residential or whatever is
is still considered to be appropriate? No, so anything that's happening in the
County is completely separate than any action that's happening within the city.
So what the Planning Commission is reviewing now is lot A and then the
easement dedication acceptance which is completely within the city. So the
Planning Commission does not need to consider what the county did on their
property because that's that's that analysis is done with the county general
plan. We're only the Planning Commission is only looking at the city general plan
and actions within the city only.
Does that make sense?
And I'll also add, you're not considering
the project is consistent with our general plan.
You're really considering that the conveyance
and acceptance of dedication,
which as context may be used for that ultimate purpose
for the project and which is why we reference
that that doesn't change the surrounding land uses
because it's a form of residential use
and it's still consistent in the adjoining properties.
So let me one more time just try to paraphrase
what you're saying and that is
that whatever the zoning of that parcel may or may not be
in our general plan is not relevant
to this particular decision
because that parcel is not actually in the city.
And so it's zoning is determined
or its general plan consistency
is really considered by the county.
Yes, in terms of the land use decision
to approve that project.
Okay, so I'm gonna move on to one more question
so that I can be done and move this
to the other commissioners who may have questions.
And that is relative to the conversation
about the wetlands and its existence
and the conditions and a number of other things,
I know we're not reviewing a project
and we're not talking about their EIR or their CEQA,
but the question of whether or not there is a wetland
on a city parcel and how that may or may not affect
our determination of a consistency
with a general plan goal.
Do we know, does the city know whether or not
this is actually a designated wetland?
i.e. has anybody hired a biologist
to do a jurisdictional delineation of some kind
and had it reviewed, or is it just a drainage?
I mean, I saw the pictures, there's water there,
but I believe there are other reasons why to determine
whether something's actually a wetland
than just that water crosses it.
And again, I don't have any understanding here.
I know that there's letters in the file
that speaks to some process that might happen,
and we've suggested that it would be important
for the council to consider that.
And I think that we understand that that process
would move forward independent of this
and all of these things would happen.
And if it was determined to be some kind of a wetland
and the agencies that are in charge of this
decide that it's appropriate to allow mitigation,
which they may not.
They may say that it can't be, nothing could be built there,
but if they did, then there would be some place
that that mitigation might happen.
It might happen on their property
or it might happen somewhere else in the city.
And none of that is, from my understanding,
the determination of any of us,
it's more something that the agencies would decide.
So I've come back to the question, which was,
does the city actually know if it's a wetland?
Have we done any studies to determine that,
to help inform us, or more importantly,
the council in this decision?
So I'm gonna take my best shot at answering that
then look to my experts over here on the dais. So just as context the city is not
the lead agency on the CEQA analysis. We are a responsible agency in this
scenario which is different than how you would normally see a project like this
come forward. So in many ways we are reliant upon the EIR analysis done by
the county and to my knowledge they did look at the various drainage, wetlands,
mitigations as part of the draft and final EIRs. It's not accurate that the
only mechanism for mitigation is compensation as was stated earlier. There
are mitigation measures called out in the county EIR documents and so what
level of study they did, I'm going to defer to my experts over here, but the
city did not undertake separate analysis because we are in that sort of
or subsidiary position.
Sun or Claire, you wanna weigh in?
Yeah, and just specifically in the EIR,
there is discussion about the kind of
anticipated impact on the wetland,
and that's why the mitigation measures,
which is more than just compensation,
it also includes, for example,
delineation of wetland areas,
so they're required at, you know,
prior to construction or prior to taking action
to actually implement the development
to delineate wetlands and riparian areas,
and for example to install fencing
to conduct pre-construction survey.
And there is also kind of a regulatory mechanism
for them to kind of include additional areas
to acquire additional areas
where there is wetland presence.
So it's not just compensatory,
there is actually proactive measures
as a part of the mitigation plan to do that.
So the mitigation measure itself
provides a variety of options
on how to address it effectively.
And I guess where I'm going with this is,
if we're to make this determination based on the goal
that was explained to us and how one might interpret it,
it is possible from my perspective to say
that a wetland could be improved,
even if this wetland is delineated as a wetland
and we're to go away, it might in its own way
just be isolated and not really benefit a lot.
and the replacement of that at some ratio
might improve wetland conditions
and therefore might be consistent with the general plan.
The elimination of it alone may not,
is certainly not an improvement,
but the creation of at least that much wetland
in a better place could be improvement.
Compensation of just some fee is probably not,
but it could be if that money were to go,
as was suggested by a comment today,
somewhere else in the city to do this.
Again, so I'm just trying to understand the nuance
of very good comments by the public tonight
and how to kind of thread this into what I think
is still consistency with the general plan,
but in order for it to be consistent,
we've gotta have some comfort that in the wetland,
if it's there and we're not to acknowledge it's there,
but however we get there, we need to acknowledge
that somehow that that condition of benefiting
and improving wetlands is still gonna be maintained.
And that would be why I think I'm still in favor
of the language we talked about previously,
which was a suggestion that that be
a recommendation to council.
So that's all my questions for now.
And I know others have comments maybe,
so I'll turn this over to them.
Thank you, Terry.
Thank you.
All right, thank you, Commissioner Lezak.
As always, very helpful.
You have other comments or questions from commissioners.
Commissioner Pickett.
Could we start with an update
on where the city is negotiating with the neighbors?
The city is not negotiating with the neighbors?
They're not. No.
At this point in time, our negotiation is with speaker
and the proposed- That's the speaker.
Oh, okay. Sorry.
at the neighborhood across lot a yes lot a and we have reached terms and we will
be publishing those tomorrow morning as part of the council packet and so those
will be public then so we finally reach terms a couple days ago and so the
documents are now complete and ready to be vetted publicly with the community
and with the council and when it goes to council is it subject to discussion or
is it a done deal? It's complete, yeah I'm sorry, I was just gonna say it's
completely up to the council. In the EIR documents two routes were studied, one
utilizing Seven Hills Ranch Road and then the potential Kinross extension and
so it really is a choice for the council. We, staff was given direction on terms
the council would like to see and so staff went back and negotiated and now
we're bringing forward the packet, but it truly still is a choice.
And then to one of the comments that Commissioner Lezak mentioned
that I didn't answer, we are aware of the litigation.
We are aware of the CEQA challenges.
We are aware that there are other agencies and permits that
would need to be sought.
And so there is the potential, if those lawsuits were successful,
that this unwinds.
But that's considered in our proposed terms
as well of what would happen if the project itself does not
go forward.
OK.
So obviously, I'm assuming that you cannot disclose any of those terms
today, but we'll know them.
The public will know about them tomorrow.
Correct.
We were hoping to be publishing right now,
but we had some technical snafus.
So soon, very soon.
OK, so do we have the option tonight?
I'm not suggesting this is what I want to do,
but I want to look at what we can do.
Could we say it's consistent with the general plan
provided the wetlands is preserved?
I believe that's a possibility.
I'm going to look to our attorney.
Well, so the city's not in the position
to be altering the mitigation measures
because it is a responsible agency,
but that's what you're referring to as preserving the wetlands.
The city is not making the land use decisions on the project.
But tonight, to put it to context of the information that
was provided by our assistant city manager,
that this is a report under state law to the city council.
This is not a determination on the project.
It's not a decision or approval on the project.
I'm sorry, on the proposed conveyance and acceptance
of a dedication.
So it's not imposing conditions on the project itself.
And it's not trying to alter the mitigations that were packaged
as part of the EIR because that comes forward
with the analysis that was provided in that document.
So it's corresponding to the impact analysis
and what was studied to reduce those impacts.
That property is still in the city of Walnut Creek.
And the city does have jurisdiction over it,
not the county.
It's still is in the city on Creek and that existing right-of-way and an existing
50 square feet of property is still within the city limits
And so we do have authority over we aren't we have not ceded authority to the county to zone or do anything with that property
We have not given that authority away correct, and if I can just provide a quick clarification
And we may not be able to change the EIR
are, but my understanding is that this commission can
make whatever recommendation you would like to to the council.
The ultimate action and decision is the council's.
And they would make the final determination
if it's in compliance.
But this commission could recommend my understanding
what you see that they should consider in their decision
making.
Did I say that right, Claire?
OK.
All right.
So I think it would be helpful, Commissioner Lezak alluded to it,
least having some comments forwarded maybe not in resolution, comments
forward about that property and we are not ceding control of that property. We
are the Planning Commission is just talking about its general plan
consistency but the City Council has never given up the authority over that
property what happens to it. Correct. And they still own it they own that they own
that wetland and they could say we don't like that and work around it. They
certainly could. Okay so it just well it is a wetlands I've dealt with enough
wetlands I mean you could have a little stream of water two inches wide and the
Army Corps of Engineers and the United Nations claim it as a wetland so it is a
wetlands. So Mr. Simmons took the time and offered us some thoughtful whereas
conditions and I read those and with exception of one clause in the last one
I would say that in my opinion they're all true the only thing I would take
exception to is that the mitigation does not enhance the Ken Ross wetlands we
don't know what the mitigation is so we don't know what it does but with
exception of that is there any danger and do we risk the legal precedents of
what we're doing here on the legal process.
If we include these whereas's, it seems to me
they're just a statement of fact.
And I can't debate that any of them are unfactual.
And I must admit, I don't have the whereas's in front of me.
But for Mr. Simmons' comments, the notes I took, again,
it's not accurate that the only mitigation is compensation.
As noted before, there are other mitigations
anticipated in the larger EIR.
And then the Kinross wetlands, I'm
not familiar with it being named wetlands, per se.
So that may be new terminology.
I don't know if that's problematic, Claire.
Yeah, I think that the, and I agree that the third statement
regarding the destruction wetlands and the enhancements
of it, you know, given what is presented about the mitigation
measures and what the goals and the mitigation plans for them
are, you know, I don't necessarily
think that's helpful to include that just because of what's
presented to the commission.
I think the commission, if you choose to,
you could include descriptions that are, you know,
factored descriptions about what is happening,
with respect to if there's a wetland presence.
But I think ultimately, if you're,
if including the language is not,
it's a description, it's not contributing
to your ultimate conclusion about general plan consistency,
I don't think it's particularly helpful
to include that in the resolution.
Okay, and last question is,
explain the timing to me why we're doing this now
when we do have litigation,
we know we're aware of litigation
that's pending out there.
Certain things cannot happen until a lot of other stuff
happens.
So is there any urgency in doing this?
Can we do it next June?
That is certainly a council's discretion.
I think the terms and conditions that you
will see presented tomorrow are somewhat conditional
on the project moving forward in a more timely manner.
So we may lose some of the community benefits
that have been negotiated.
But could it feasibly go later?
Probably.
The thing I would note is that we, and correct me
Claire if I get this wrong, my understanding
is we are somewhat obligated to rely on the county's EIR.
So if our only reason for not proceeding with it
is that we think the EIR should be changed,
that's a bigger discussion potentially with the county.
Right.
And I'll just add to that.
The EIR is presumed to be valid unless it's successfully
challenged in the court, which is in order to validate it.
So SQL litigation is not uncommon
for any environmental document.
But just because there is a litigation file,
it does not put the validity of the document into question
unless a court ultimately issues an order for that.
And the city did offer, the CEQA EIR process for the county
was a public process and so the city had its engagement
in that process where a responsible agency,
the guidelines calls for us to rely on the conclusions
and the findings and the mitigation measures
and the county's AR for their lead agency role.
And so that's the status for us.
But it remains possible that a settlement
of the litigation may change some of the conditions
of the development, which may go back and have
to require renegotiation of the term.
So I'm just wondering why this is in the cart before the horse
situation when we have things out there that are uncertain.
Well, the time sensitivity of it is the applicant
is saying if the city would like to pursue a sale
and the community benefits associated with that,
The moment is now.
Otherwise, they may pivot to the alternative use.
And so I think it's a timely question.
Does the council have to act now?
No.
What you'll see in the staff report is that we present.
There's multiple options before the council.
And it's really their discretion of if they'd
like to pick one of these.
But if we simply postpone until next year,
one or more of the options may come off the table.
Well, just a little editorial.
I don't think we care if the project goes ahead or not
from the city standpoint.
City council may want something for it,
and if they're gonna build a new pool at Heather Farm Park,
that would be kind of nice.
We might like the project if they did so.
I doubt they're doing that.
But also, I don't think they're gonna go away.
From a negotiating standpoint,
they need us more than we need them.
So I just question the timing of this.
I'm not opposed to making a decision tonight.
I just think there's some better ways
that this could have been handled.
And that's my editorial comment.
OK, do you have further questions?
Commissioner Pickett.
I'm done.
Thank you.
Commissioner Needing.
Claire, do you have the actual mitigation measure for?
So there is a list of the measures
that are attached, the relevant sections
that are attached to the resolution.
I saw that the impact bio two and impact bio three.
Correct, yes, that's one of those.
So that affects riparian habitat mitigation measures
and perennial drainage, wetland mitigation measure.
Correct, and that's where I previously mentioned,
there is delineation required and then if there's areas that you know you
absolutely cannot avoid treading into the area then the developer would be
required to acquire other wetlands for example that's one or they would be
required to prepare a kind of a monitoring plan that's ongoing and that
compensates for that you know intrusion into the wetlands area.
So to be clear they need to they need to do their own resource permitting
outside of the EIR correct yes so I I think that's a really important thing
to understand that the Porter Cologne Act which is a state level and the Clean
Water Act which is a federal level protects the waters and so it doesn't
matter what the CEQA mitigation measure says, most mitigation, and if I'm
understanding correctly, the mitigation measure from CEQA requires the
resource permitting. So right off the bat you have not only the Porter-Colonak,
the Clean Water Act, you're involving Army Corps of Engineers, you're involving
Regional Water Quality Control Board, but in addition to that, depending on
on what kind of ephemeral feature it is.
You might also be triggering,
if I'm reading this correctly,
they talked about habitat,
enlisted habitat in the EIR.
Then that right there, if I'm not mistaken,
is also triggering Fish and Game Section 1602,
which would require an ITP,
a Lake and Streamit alteration agreement.
So right off the bat,
What I'm seeing here is that the compensatory mitigation
of what is going to be required can be not just
from a listed species perspective,
but it's also a waters perspective.
You're throwing in every state and federal agency
known to man that will provide the highest level
of compensatory mitigation.
What's that?
In the United Nations?
The engineers, yeah.
The United Nations, but that's what I'm seeing is that the reliance on protection is essentially
adhering to those very, very stringent laws and really the definitions of waters by the
state got even, if I'm not mistaken, Claire, got even more stringent, especially with all
of the EPA versus the Sackett case in Idaho.
now we're taking this so is everything I'm saying correct that this the person
the moment that we give away away that right away should it happen should city
council decide that that compensatory mitigation will be dictated by every
single agency known to man that I just said pursuant to all of the laws that I
just stated correct regardless of what because the seek was mandating it that
That is correct. I'll just be clear. The applicable laws will still apply and the CEQA mitigation is specific as to the impact and so it does incorporate those and it incorporates specifically, you know, the regulatory permitting that you were mentioning.
Perfect. Now in my experience, even if the compensatory mitigation, whether it's a three to one, four to one, two and a half to one, because I've seen them in various CEQA,
though it might be stated in the CEQA, it's really determined in the resource
permitting because the resource agencies have the absolute final say. So there's
nothing that you're saying that's not consistent with that so that I did want
to state that because I think I hear you about because waters also you know
contain plant and amphibians which are listed species protected species so and
what I would add is that you will see in the documents tomorrow from our
negotiations is that it's clearly stated that the applicant will comply with all
appropriate permitting standards for other agencies so you know that in some
ways that's theirs to manage and theirs to mitigate should there be further
mitigations required thank you anybody else okay so at this time I would
entertain a motion we have one forthcoming so I'm very much appreciate
all the comments the thousands of pages of stuff that we reviewed which actually
include a couple of letters from your friend miss Hart in the waterboard yes
so all that's in here and the discussion tonight including the additional
information for Mr. Simmons relative to the whereas is but I think I'm still
pretty comfortable with the resolution and recommendation that we made last
time that it covers the concerns that we had within the small box that is our
decision-making tonight so I'm gonna kind of go back to that language from
from the meeting two weeks ago and the motion that I made that night so I'm
gonna stick to you know approving the resolution that's the included in the
staff report with the whereas change that we made last time and stick with
the same comment suggestion that we made last time, even though it says speaks
here to that the mitigation measure in the Lead Agency's impact report, I think
what we meant there by speaking to that was that that process Commissioner
Neating just talked about is followed. Not per se that there be a specific
mitigation measure but that that process be handled and I think that's our way of
saying that if there is indeed a wetland here and the goal is to improve wetlands
that and this wetland is removed by virtue of this act that some other
process occurs so that there be a wetland improvement in its place and
that's how I make peace with that particular general angle and so that's
my motion is to stick to the same motion that I made two weeks ago.
Just do a small clarification that this resolution does not include the
the language that Commission has directed for deletion last time and so
it's it's without that whereas already. It's already without. So the
resolution that I'm making is the same resolution that is in the staff report
today which is consistent with what we had last time and I'm sticking with the
same suggestion language that we had last time because I still feel that
that's important and that's my motion does that make sense do you understand
that okay do we have a second a second okay can we please record the vote
Commissioner Reiser yes mr. Nating yes mr. leezak yes commissioner picket
commissioner Anderson is absent vice chair strongman yes chair Ward yes
Yes.
Motion passes.
OK.
Thank you very much.
Oh, you have a comment.
May I just share with the commission
that tomorrow when you see the documents posted for the city council
agenda first thing in the morning, there will be a supplemental later
that afternoon that reflects this commission's action.
So we're trying to get the bigger packet out.
It's a beast, and so we want to get everyone reading it
and understanding the proposed terms.
But we've made note in that the planning commission was meeting tonight
and would potentially have updated guidance,
so it'll take the attorneys a little bit
of time to write it up,
so that will come out a little later on Friday.
Great, thank you very much for that,
and thank you for your hard work
during this really busy time of year.
We do appreciate it very much.
Thank you.
Okay.
All right, with that,
we are going to move on to our next agenda item,
which is number five, commission considerations.
Do we have anything to consider?
None from staff.
Okay.
All right.
Do we have any item six, commission member
and staff reports or announcements?
All right, I just would like to say
this is our last meeting of the year
and I wanna thank our staff particularly
for all their incredibly hard work
and support of us during this entire year.
I think we saw some interesting and challenging things
and we really appreciate all of your help.
We couldn't, we literally could not do it without you.
So thank you very much.
And I'd also like for all who celebrate
to wish happy holidays to everybody as well.
So unless somebody else has an announcement or comment with that I 701
I'm going to adjourn this last meeting of 2023. Thank you very much. Happy New Year. Thank you