915 L Street, C-425 Sacramento, Ca. 95814

915 L Street, C-425 Sacramento, Ca. 95814

December 15, 2010

Chair and Members of the Board

County of Sacramento

700 H Street

Sacramento, Ca. 95814

Re: Florin Vineyard Gap Community Plan and specific comments on the following projects –

Gardner Park Rezone, 65 acres rezoned largely from A-10 to RD5 and 7 (379 single family lots) County Control No: 2004-0218) 12.9 acres of Swainson’s Hawk foraging habitat mitigation

Caselman Ranch, 50 acres rezoned from A-10 to RD-5 and RD -7, (177 single family and 84 half plex lots) (County Control Number 2004-0233) 12.5 acres of Swainson’s Hawk mitigation

Champion Oaks Residential 46.6 acres rezoned from AR 10 mostly to RD 5

Champion Oaks Commercial 18.4 acres rezoned from A-10, developer Taylor Village Sacramento Investments. These started as one project (04-0139) and then were split into residential and commercial. The Swainson’s Hawk mitigation is 10.65 and 4.6

Florin Vineyards 101.6 acres rezoned from mostly AR 10 to various RD designations (372 single family lots)(County Control Number 2004-0207) 30.1 acres of Swainson’s Hawk mitigation.

Villages at Elder Creek Estates 86.3 acres from mostly AR-10 to RD designations (494 single family lots) (County Control Number 04-0208). 18.9 acres of mitigation.

Dear Supervisors MacGlashan, Nottoli, Peters, Serna, and Yee:

Friends of the Swainson’s Hawk believes that wildlife is part of California's future and we're dedicated to seeing the California population of Swainson's Hawks flourish for all generations to come.FOSH is a volunteer group providing grassroots vigilance for wildlife and habitat in the Central Valley. This letter addresses our concerns about the proposed County adoption of the FEIR and Plan and project approvals for the Florin-Vineyard Gap Community Plan. We request that you not approve these today, and ask for a consultation between Legal Counsel, DERA and Friends of the Swainson’s Hawk.

The EIR for the community plan covers 3,766 acres of proposed development. The EIR relies on a flawed methodology for assessing Swainson’s Hawk impacts that bears no relation to conditions on the ground and is clearly in violation of CEQA. The cumulative impact of the Swainson’s Hawk mitigation program in the FEIR is several thousand acres of unmitigated impacts. We urge the board not to adopt the FEIR and the Plan until this error is corrected, impacts are correctly assessed, and mitigation adopted is adequate to offset impacts.

We have identified six projects (named above) that are before the board for project and EIR approval for which Swainson’s Hawk impact assessment is improper and mitigation provided is inadequate, whereby a total of 320.6 acres of foraging habitat would be removed with only 89.65 acres to be preserved to mitigate impacts. This plan and these projects violate the County’s Swainson’s Hawk mitigation ordinance. We urge the board not to approve these projects until they adequately mitigate for their impacts.

Please note that there are the following deficiencies and lack of consistency between projects on mitigation measures:

1. All projects: survey required for active nesting habitat are not adequate to identify nesting habitat and are not required to be done during nesting season.

2. All projects with tree removal: no assessment of nesting habitat loss and mitigation for nesting habitat loss. (Villages at Elder Creek Estates, Champion Oaks Residential, Caselman Ranch)

3. Champion Oaks Residential – no measures to reduce take of Swainson’s Hawk were included in this approval though other projects contained some standard language on this issue; also adequate GGS mitigation has been deferred.

We have submitted letters on both the Draft and Final Environmental Impact Reports which are attached. The core of our concern is the DERA’s methodology for assessing impacts solely based on the zoning for the property. This methodology results in an arbitrary and inaccurate assessment of impacts and provides an invalid exception to the County’s Swainson’s Hawk Mitigation Ordinance (attached) which requires a 1:1 mitigation ratio.

Quote from DERA methodology page 1 (“Swainson’s Hawk: Environmental Impacts and Issues, A Guide for the Unincorporated Areas of Sacramento County, attached):

“ As a baseline, DERA assumes that properties zoned AG-40 and larger have 100% habitat value, AG-20 properties have 75% and AR-10 properties have 25% habitat value. Properties zoned AR-5 and smaller, such as AR-2, AR-1, the urban Residential Densities (RD-1 thru 40), commercial and industrial zonings, retain no habitat value. Table 1 below illustrates the continuum of habitat values by zoning and Table 2 provides the possible impact scenarios based on different starting and ending zonings.”

This is an erroneous assumption which, when applied to the Florin Vineyard Gap Community Plan area in general and to the properties listed in specific, leads to a false assessment of project impacts on Swainson’s Hawk foraging habitat.

Quote from DERA methodology page 2 (“Swainson’s Hawk: Environmental Impacts and Issues, A Guide for the Unincorporated Areas of Sacramento County, attached):

“There are exceptions to the methodology including the Elverta Specific Plan area, Rancho Murieta area and some properties with unique characteristics.”

It has been our position that the Florin Vineyard Gap Community Plan area is quite similar to the Elverta Specific Plan area and Rancho Murieta plan area in that it is a large open landscape providing Swainson’s Hawk foraging habitat. It should have been treated as an exception to the methodology. In fact, at 3,766 acres, the Florin-Vineyard Gap plan area is over twice as large an open area suitable for Swainson’s Hawk foraging than Elverta Specific Plan, and several times larger than the Rancho Murieta area that is exempted from the methodology used here. To quote from our DEIR comment (attached):

“The Community Plan area is comprised of open fields with some individual structures and small clusters of structures scattered irregularly throughout, mostly along existing roads and often separated by considerable distances. Much of the area is presently zoned AR-10 or A-10, with some AR-20, A-20, and AR-5, but aerial photographs in the DEIR show that most of the land presently zoned AR-20, A-20, AR-10, A-10, and AR-5, is presently undeveloped fields, much of which is not interrupted by structures.”

The DEIR states that California Department of Fish and Game (CDFG) approved the methodology. CDFG has never approved the application of the methodology to the Florin Vineyard Gap Community Plan nor to the projects named in this comment letter. Moreover, CDFG raised the concern, in its letter of March 9, 2006 (attached, the letter used by the County to claim CDFG approval of their methodology):

"that there were specific areas --- that are already zoned AR5 or lower, that are still

generally undeveloped, and that we believe that these should not fall under the new

provisions because loss of these areas would potentially have a significant impact on

Swainson's Hawk. Examples include the Elverta Specific Plan and Rancho Murietta."

The situation in the proposed Florin-Vineyard Community Plan is identical to that which

concerned CDFG as to Elverta Specific Plan and Rancho Murietta, except to the extent that

much of the FV Community Plan area is AG-10 or AR-10 (rather than AR5).

As pointed out by our legal counsel in correspondence previously submitted (attached):

1) The Methodology employed by DERA underwent no CEQA review, and thus does not presumptively establish full mitigation for any discretionary project. See Calif. Native Plant Society, et al v County of El Dorado(3rd District, January 28, 2009) page 32, which pertained to the validity of a mitigation fee ordinance. The Methodology is not even an ordinance.

2) Under CEQA an EIR must evaluate impacts by comparing the project to the existing

physical conditions on the site. (CEQA Guideline §15125). The California Courts of

Appeal have repeatedly held that the environmental baseline is the existing physical

condition, and have overturned EIRs which, as with the Florin-Vineyard Gap EIR, used

the currently permissible future intensity of development as the environmental baseline

from which to assess the impacts of the proposed project. See Woodward Park

Homeowners Ass’n v City of Fresno, (2007) 150 Cal. App. 4th 683, 707 – 710;

Environmental Planning Council v. County of El Dorado(1982) 131 Cal. App. 3rd 350 at

354; City of Carmel v. Board of Supervisors(1986) 183 Cal. App 3rd 229, 246 (agency

must consider impacts of rezoning on existing physical environment: comparison of a

project possible under existing zoning with a project possible under proposed new zoning

“bears no relation to real conditions on the ground”). Agencies in assessing impacts of a

project should compare project impacts against the existing physical environment, rather

than a hypothetical more impacted future environment that might occur without the

project under the existing zoning or general plan. (Remy, Thomas, et al., Guide to the

California Environmental Quality Act(11th ed) p. 199; CEQA Guideline 15125.)

As an example of how arbitrary and capricious the methodology is, please note that Florin and Bradshaw Northeast (Control Number 2004-0204), a 47.4 acre project very similar to the projects listed in this comment letter, has a mitigation ratio of 1:1 based on its zoning, not its physical use.

Regarding the DERA methodology for assessing impacts on Swainson’s Hawk of development in the plan area, I am appending all available public documentation on its development. I also request that County DERA and planning staff provide as part of the record any other board reports, memorandum, research reports and internal County communications describing the methodology, its development and purpose.

As a personal note, I was involved in reviewing the County’s consideration of this change in methodology in 2005 and 2006. I was repeatedly told, and the documentation attached confirms this, that the purpose of the change in methodology was to provide financial relief for small landowners and small parcels. At no time during consideration of this methodology was an area exceeding 3,000 acres in size ever discussed. In fact, areas of large size were specifically exempted (Rancho Murieta and Elverta Specific Plan). Yet DERA employed this methodology in assessment of the Florin-Vineyard Gap Plan and projects.

Example: Staff Report approved April 12, 2006 (attached) refers to the agenda item as ”develop a solution that would provide relief for small agricultural-residential property owners from the high Swainson’s Hawk mitigation fees.” [emphasis added]

Example: Staff report for the Agenda of May 31, 2005, Swainson’s Hawk Ordinance. Quote from page 5:

“The Board directed staff to consider a solution for the situation in Agricultural Residential areas where a small property owner could face large mitigation fees due to the increase in land values. . . . .Initial discussions are exploring the possibility of conducting an analysis for all five to 15 acre parcels [emphasis added] (a statistical analysis to be conducted to determine the upper range) zoned AR-2, AR-1, A-1 and A-2. This analysis would result in some type of habitat suitability analysis. . . . incorporated into the CEQA document for individual projects as they came in for approval. . . . providing some relief from the high fees an Agricultural-Residential owner may face.”

The Board will note that in 2005, the Board faced a crisis in the Swainson’s Hawk mitigation program because the fees charged had failed to achieve the promised CEQA mitigation for a number of projects. As reported to the Board on April 27, 2005:

“The major legal issue facing the Swainson’s Hawk ordinance results from

skyrocketing land prices, the comparatively low $2,500 per acre fee and the $2,500 per acre cap on spending to acquire land or easements. Given these fees and spending limits, it is questionable, at today’s land prices, if the ordinance will be able to adequately mitigate for take of foraging habitat already permitted in addition to any future take permitted at such a low fee. This situation obviously opens the County to question, scrutiny and possible legal action from concerned parties for failure to properly mitigate under CEQA, as illustrated in the letter from Attorney James P. Pachl representing Friends of the Swainson’s Hawk and the Sierra Club”. (Pachl letter attached.)

While the Board corrected the problem identified and analyzed in 2004 and 2005, the truth is that the program as a whole carries a large mitigation deficit from the earlier period. We have recently analyzed the County’s mitigation program and quantified that deficit. We intend to discuss this issue further with the County because it is a substantial CEQA mitigation deficit.

We urge the County not to add to its CEQA mitigation deficit for Swainson’s Hawk impacts by adopting the proposed Florin-Vineyard Plan and the specific projects noted in this letter.

Sincerely,

Judith Lamare, Ph.D., President

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