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CC Resolution 15029 (The Neighborhood at Lost Gamos, A Proposed Mixed-Use Project)1 RESOLUTION NO. 15029 RESOLUTION OF THE CITY OF SAN RAFAEL CITY COUNCIL ADOPTING AN INITIAL STUDY/MITIGATED NEGATIVE DECLARATION AND APPROVING THE MITIGATION MONITORING AND REPORTING PROGRAM FOR A GENERAL PLAN AMENDMENT (GPA 20-001), ZONE CHANGE (ZC 20-002), VESTING TENTATIVE PARCEL MAP, AND ENVIRONMENTAL AND DESIGN REVIEW PERMIT (ED 20-058), FOR THE CONSTRUCTION OF A MIXED-USE PROJECT CONSISTING OF 192 RESIDENTIAL APARTMENT UNITS, A 5,600 SQUARE-FOOT MARKET, A 5,000 SQUARE FOOT COMMUNITY CENTER, AND 225 AT-GRADE AND SEMI-SUBTERRANEAN PARKING SPACES, ON A 10.24 ACRE SITE LOCATED AT THE SOUTHERLY TERMINUS OF LOS GAMOS DRIVE NORTH OF OLEANDER DRIVE (THE NEIGHBORHOOD AT LOS GAMOS) (APNS: 165-220-06 AND 165-220-07) WHEREAS, on December 22, 2020, Christopher Hart, applicant, submitted applications for a General Plan Amendment (GPA 20-001) from Hillside Resource Residential to Neighborhood Commercial Mixed Use; Zone Change (ZC 20-002) from Planned District – Hillside Development Overlay District (PD-H) and Residential – Hillside Development Overlay District (R2a-H) to Planned Development District (PD); Vesting Tentative Parcel Map to combine and adjust the boundaries of the existing parcels; and Environmental and Design Review (ED 20-058) for a mixed-use project with 192 multi-family residential units; an approximately 5,600-square-foot market; a 5,000-square-foot community center; and 225 at-grade and semi-subterranean parking spaces; on a 10.24 acre site located at the southerly terminus of Los Gamos Drive north of Oleander Drive; and WHEREAS, on September 30, 2021, the applicant held a Neighborhood Meeting via zoom which was duly noticed to the residents and property owners within 300’ of the project site and notice of the meeting was also posted on the site; and WHEREAS, on October 5, 2021, the project was considered by the Design Review Board (DRB) which recommended approval of the project subject to conditions to reconsider a darker color palette for the walls of the structures, to try to provide a more natural and less formal arrangement of the proposed trees on the project, to mitigate the impact of the tall retaining walls in the Village Commons, and for the project to come back for final review of the design details by the DRB when building permits were submitted; and WHEREAS, as required by the California Environmental Quality Act (CEQA) Guidelines, staff determined that the applications for a general plan amendment, zone change, vesting tentative parcel map, and environmental and design review permits, are a ‘project,’ making it subject to environmental review. Pursuant to CEQA Guidelines Section 15063, an Initial Study/Mitigated Negative Declaration (IS/MND) was prepared to determine the potential environmental impacts of the project. The IS/MND is supported by several technical studies including air quality, noise, geotechnical and traffic); and WHEREAS, as demonstrated in the preparation of the Initial Study/Mitigated Negative Declaration (IS/MND), all potentially significant effects on the environment identified in the IS/MND can be mitigated to less-than-significant levels with implementation of the recommended mitigation measures, including impacts to Aesthetics, Air Quality, Biological Resources, Cultural and Tribal Cultural Resources, Geology and Soils, and Hydrology and Water Quality. Therefore, consistent with CEQA Guidelines Section 15070, the Initial Study supports and recommends adoption of a Mitigated Negative Declaration; and WHEREAS, consistent with the requirements of the CEQA Guidelines, a Mitigation Monitoring and Reporting Program (MMRP) was prepared which outlines the procedures/steps and requirements 2 for implementing all mitigation measures identified in the Initial Study/Mitigated Negative Declaration. The MMRP is attached hereto as Attachment A and incorporated by reference; and WHEREAS, the subject site was posted with a public notice regarding the Mitigated Negative Declaration prepared for this project and notices were published in a local newspaper of general circulation in the area and mailed to surrounding property owners within 300 feet, pertinent agencies (including responsible and trustee agencies), organizations and special interest groups in conformance with the CEQA Guidelines Section 15072; and WHEREAS, copies of the IS/MND were submitted to the State Office of Planning and Research (OPR) and made available for a 30-day review period by pertinent agencies and interested members of the public, commencing on November 2, 2021 and concluding on November 30, 2021; and WHEREAS, the City has evaluated the comments received by public agencies, utilities, organizations, special interest groups and persons who have reviewed the Initial Study/Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program, including the letter received from the California Department of Fish and Wildlife, commenting on the adequacy of the Initial Study/Mitigated Negative Declaration and recommending additional mitigation measures and conditions of approval. Staff has added these mitigation measures to the revised MMRP and MND and the proposed conditions to the project conditions; and WHEREAS, on December 14, 2021, the Planning Commission held a duly-noticed public hearing on the proposed project, the IS/MND and MMRP, and the applications for General Plan Amendment, Zone Change, Vesting Tentative Parcel Map, and Environmental Design Review Permits, for the mixed- use project at the terminus of Los Gamos Drive, accepting all oral and written public testimony and the written report of the Department of Community Development. On a vote of 5-0-2 (Commissioners Mercado and Previtali absent), the Planning Commission adopted Resolution 21-10, recommending that the City Council adopt the IS/MND and approve a Mitigation Monitoring and Reporting Program; and WHEREAS, on February 7, 2022, the City Council held a duly-noticed public hearing on the proposed project, accepting and considering all oral and written public testimony and the written report of the Department of Community Development; and WHEREAS, the custodian of documents which constitute the record of proceedings upon which this decision is based is the Community Development Department; NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Rafael does hereby adopt the Mitigated Negative Declaration and approves the Mitigation Monitoring and Reporting Program as presented in Attachment A based on the findings that: a) The City exercised its independent judgment in evaluating the Mitigated Negative Declaration which has been considered in conjunction with the comments received during the public review period and at the Planning Commission hearing. Based on this review, the City Council finds and determines that: 1) there is no substantial evidence that the project will have a significant impact on the environment; and 2) project mitigation measures have been incorporated into the project which will reduce the potential impacts to less-than-significant levels. b) A Mitigation Monitoring and Reporting Program has been prepared for adoption to ensure implementation of, and compliance with, all conditions required to mitigate any impact to a less- than-significant level. All mitigation measures have also been included as conditions of the project’s approval by separate Resolution. 3 I, Lindsay Lara, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the San Rafael City Council held on Monday, the 7th day of February 2022, by the following vote to wit: AYES: COUNCILMEMBERS: Bushey, Hill, Kertz, Llorens Gulati & Mayor Kate NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None LINDSAY LARA, City Clerk Exhibit A: Mitigation Monitoring and Reporting Program Exhibit B: Response to Comments Mitigation Monitoring and Reporting Program 1 Los Gamos Apartments Exhibit A MITIGATION MONITORING AND REPORTING PROGRAM Los Gamos Apartments Mitigation Measure Implementation Procedure Monitoring Responsibility Monitoring / Reporting Action & Schedule Non-Compliance Sanction/Activity Monitoring Compliance Record (Name/Date) I. AESTHETICS I(d). Mitigation Measure AES-1: Prior to the Building Permit final inspection, the project applicant shall submit to the satisfaction of the Community Development Department Director, a post-installation photometric lighting study showing that the lighting on site complies with the approved lighting levels per ED18-100 and the requirements of SRMC 14.16.227. The project applicant shall also demonstrate to the Building Division that outdoor lighting fixtures meet the requirements of the California Energy Code (known as Part 6, Title 24 of the California Code of Regulations) Require as a condition of approval Planning Division Building Division Incorporate as condition of project approval Planning Division verifies appropriate plan/study obtained prior to issuance of building permit Deny project Deny issuance of building permit or halt work in reliance of the permit if the lighting study does not demonstrate compliance III. AIR QUALITY III (b). Mitigation Measure AQ-1: Include basic measures to control dust and exhaust during construction. During any construction period ground disturbance, the applicant shall ensure that the project contractor implement measures to control dust and exhaust. Implementation of the measures recommended by BAAQMD and listed below would reduce the air quality impacts associated with grading and new construction to a less-than-significant level. The contractor shall implement the following best management practices that are required of all projects: 1. All exposed surfaces (e.g., parking areas, staging areas, soil piles, graded areas, and unpaved access roads) shall be watered two times per day. Require as a condition of approval Project sponsor obtains approvals from appropriate agencies prior to issuance of building permits Planning Division Building Division Incorporate as condition of project approval Building Division verifies appropriate approvals obtained prior to issuance of building permit If construction activity is found out of compliance, Project sponsor halts work immediately Deny project Deny issuance of building permit Stop Work Order or revocation of permit Mitigation Monitoring and Reporting Program 2 Los Gamos Apartments MITIGATION MONITORING AND REPORTING PROGRAM Los Gamos Apartments Mitigation Measure Implementation Procedure Monitoring Responsibility Monitoring / Reporting Action & Schedule Non-Compliance Sanction/Activity Monitoring Compliance Record (Name/Date) 2. All haul trucks transporting soil, sand, or other loose material off-site shall be covered. 3. All visible mud or dirt track-out onto adjacent public roads shall be removed using wet power vacuum street sweepers at least once per day. The use of dry power sweeping is prohibited. 4. All vehicle speeds on unpaved roads shall be limited to 15 miles per hour (mph). 5. All roadways, driveways, and sidewalks to be paved shall be completed as soon as possible. Building pads shall be laid as soon as possible after grading unless seeding or soil binders are used. 6. Idling times shall be minimized either by shutting equipment off when not in use or reducing the maximum idling time to 5 minutes (as required by the California airborne toxics control measure Title 13, Section 2485 of California Code of Regulations [CCR]). Clear signage shall be provided for construction workers at all access points. 7. All construction equipment shall be maintained and properly tuned in accordance with manufacturer's specifications. All equipment shall be checked by a certified mechanic and determined to be running in proper condition prior to operation. 8. Post a publicly visible sign with the telephone number and person to contact at the City of San Rafael Building Division regarding dust complaints. This person shall respond and take corrective action within 48 hours. The Air District's phone number shall also be visible to ensure compliance with applicable regulations. III(b). Mitigation Measure AQ-1a: All diesel-powered off- road equipment, larger than 25 horsepower, operating on the site for more than two days continuously shall, at a minimum, Require as a condition of approval Planning Division Incorporate as condition of project approval Deny project Mitigation Monitoring and Reporting Program 3 Los Gamos Apartments MITIGATION MONITORING AND REPORTING PROGRAM Los Gamos Apartments Mitigation Measure Implementation Procedure Monitoring Responsibility Monitoring / Reporting Action & Schedule Non-Compliance Sanction/Activity Monitoring Compliance Record (Name/Date) meet U.S. EPA particulate matter emissions standards for Tier 2 engines with CARB-certified Level 3 Diesel Particulate Filters or equivalent. • The use of equipment meeting U.S. EPA Tier 4 standards for particulate matter would also meet this requirement. • Use of equipment that includes alternatively -fueled equipment (i.e., non-diesel) would meet this requirement. • Other measures may be the use of added exhaust devices, or a combination of measures, provided that these measures are approved by the City and demonstrated to reduce community risk impacts to less-than-significant levels. Project sponsor provides equipment list prior to issuance of building permits Public Works Department / Building Division Building Division verifies appropriate approvals obtained prior to issuance of building permit If construction activity is found out of compliance, Project sponsor halts work immediately Deny issuance of building permit Stop Work Order or revocation of permit III(c) Mitigation Measure AQ-2: Include high-efficiency particulate filtration systems in residential ventilation systems. The project shall include the following measures to minimize long-term increased cancer risk and annual PM2.5 exposure for new project occupants: 1. Install air filtration in residential dwellings. Air filtration devices shall be rated MERV 13 or higher. To ensure adequate health protection to sensitive receptors (i.e., residents), this ventilation system, whether mechanical or passive, all fresh air circulated into the dwelling units shall be filtered, as described above. 2. As part of implementing this measure, an ongoing maintenance plan for the buildings' heating, ventilation, and air conditioning (HV AC) air filtration system shall be required. 3. Ensure that the use agreement and other property documents: (1) require cleaning, maintenance, and monitoring of the affected buildings for air flow leaks, Require as a condition of approval Project sponsor obtains approvals from appropriate agencies prior to issuance of building permits Planning Division Building Division Incorporate as condition of project approval Building Division verifies appropriate approvals obtained prior to issuance of building permit Deny project Deny issuance of building permit Mitigation Monitoring and Reporting Program 4 Los Gamos Apartments MITIGATION MONITORING AND REPORTING PROGRAM Los Gamos Apartments Mitigation Measure Implementation Procedure Monitoring Responsibility Monitoring / Reporting Action & Schedule Non-Compliance Sanction/Activity Monitoring Compliance Record (Name/Date) (2) include assurance that new owners or tenants are provided information on the ventilation system, and (3) include provisions that fees associated with owning or leasing a unit(s) in the building include funds for cleaning, maintenance, monitoring, and replacements of the filters, as needed. IV. BIOLOGICAL RESOURCES IV(a). Mitigation Measure BIO-1a: The project sponsor shall conduct pre-construction surveys prior to initiation of any construction activities, including the following: • Rare Plant Survey. Prior to initiation of construction, a qualified botanist will survey for this species during their blooming season (April through November) to ensure these plants are not impacted. If individual plants are located within the development footprint, the qualified botanist will transplant individual plants to an area with the habitat requirements for this species in an area that will remain undisturbed within the Project Area. Require as a condition of approval Project sponsor designates qualified professional prior to start of construction and obtains approvals from appropriate agencies prior to issuance of building permits Planning Division Planning / Building Division Incorporate as condition of project approval. Project applicant conducts pre-construction survey before permit issuance. Planning / Building Division verifies survey conducted prior to issuance of building permit If biological resources are discovered during construction, Project Deny project Deny issuance of building permit Stop Work Order or revocation of permit Mitigation Monitoring and Reporting Program 5 Los Gamos Apartments MITIGATION MONITORING AND REPORTING PROGRAM Los Gamos Apartments Mitigation Measure Implementation Procedure Monitoring Responsibility Monitoring / Reporting Action & Schedule Non-Compliance Sanction/Activity Monitoring Compliance Record (Name/Date) • Special-Status Plant Survey and Avoidance. A qualified botanist shall conduct surveys during the appropriate blooming period for all special-status plants that have the potential to occur on or adjacent to the Project area prior to the start of ground - disturbing activities and prepare a report documenting survey findings. Habitat adjacent to the Project area should be surveyed if the Project may have indirect impacts off-site as a result of changes to hydrological conditions or other indirect impacts. More than one year of surveys may be necessary. Surveys and reporting shall be conducted following Protocols for Surveying and Evaluating Impacts to Special-Status Native Plant Populations and Sensitive Natural Communities. Surveys shall be submitted to CDFW for review and written acceptance. If special-status plants are found during surveys, the Project shall be re-designed to avoid impacts to special-status plants. If impacts to any special-status plants cannot be avoided completely during construction, the Project shall provide mitigation including on-site restoration, off-site habitat preservation, or another method accepted in writing by CDFW. The qualified botanist shall be knowledgeable about plant taxonomy, familiar with plants of the region, and have experience conducting botanical field surveys according to vetted protocols. • Tree Removal and Migratory Bird Protection. Tree and shrub removal will be conducted between September 1 and February 14, outside of nesting bird season, to the extent possible. Tree removal between February 15 and August 31 will require a Require as a condition of approval Project sponsor designates qualified professional prior to start of construction and obtains approvals from appropriate agencies prior to issuance of building permits Require as a condition of approval. Planning Division Planning Division sponsor stops work immediately Mitigation Monitoring and Reporting Program 6 Los Gamos Apartments MITIGATION MONITORING AND REPORTING PROGRAM Los Gamos Apartments Mitigation Measure Implementation Procedure Monitoring Responsibility Monitoring / Reporting Action & Schedule Non-Compliance Sanction/Activity Monitoring Compliance Record (Name/Date) nesting bird survey by a qualified biologist no more than 7 days prior to work occurring. • Active Bird Nest. If at any time of the year an active bird nest is observed within or near work sites, work within 50 feet of the observed nest shall cease, care shall be taken not to disturb the nest, and the work supervisor shall contact designated biologist for guidance on how to proceed. A no-work buffer will be implemented by the biologist as appropriate to protect the nest until the young have fledged. • Bat Tree Habitat Assessment and Surveys. Prior to any tree removal, a qualified biologist shall conduct a habitat assessment for bats. The habitat assessment shall be conducted a minimum of 30 to 90 days prior to tree removal and shall include a visual inspection of potential roosting features (e.g., cavities, crevices in wood and bark, exfoliating bark, and suitable canopy for foliage roosting species). If suitable habitat trees are found, they shall be flagged or otherwise clearly marked and tree trimming or removal shall not proceed unless the following occurs: a) in trees with suitable habitat, presence of bats is presumed, or documented during the surveys described below, and removal using the two-step removal process detailed below occurs only during seasonal periods of bat activity, from approximately March 1 through April 15and September 1 through October 15, or b) after a qualified biologist conducts night emergence surveys or completes visual examination of roost features that establish absence of roosting bats. Require as a condition of approval. Require as a condition of approval. Planning Division Planning Division Mitigation Monitoring and Reporting Program 7 Los Gamos Apartments MITIGATION MONITORING AND REPORTING PROGRAM Los Gamos Apartments Mitigation Measure Implementation Procedure Monitoring Responsibility Monitoring / Reporting Action & Schedule Non-Compliance Sanction/Activity Monitoring Compliance Record (Name/Date) Two-step tree removal shall be conducted over two consecutive days, as follows: • the first day (in the afternoon), under the direct supervision and instruction by a qualified biologist with experience conducting two-step tree removal, limbs and branches shall be removed by a tree cutter using chainsaws only; limbs with cavities, crevices or deep bark fissures shall be avoided; and • the second day the entire tree shall be removed. IV(a). Mitigation Measure BIO-1b: Burrowing Owl Habitat Assessment, Surveys, and Avoidance. Prior to Project activities, a habitat assessment shall be performed following Appendix C: Habitat Assessment and Reporting Details of the CDFW Staff Report on Burrowing Owl Mitigation4(CDFW 2012 Staff Report). The habitat assessment shall extend at least 492 feet (150 meters) from the Project site boundary or more where direct or indirect effects could potentially extend offsite (up to 500 meters or 1,640 feet) and include burrows and burrow surrogates. If the habitat assessment identifies potentially suitable burrowing owl habitat, then a qualified biologist shall conduct surveys following the CDFW 2012 Staff Report survey methodology. Surveys shall encompass the Project site and a sufficient buffer zone to detect owls nearby that may be impacted commensurate with the type of disturbance anticipated, as outlined in the CDFW 2012 Staff Report, and include burrow surrogates such as culverts, piles of concrete or rubble, and other non-natural features, in addition to burrows and mounds. Time lapses between surveys or Project activities Require as a condition of approval. Prior to the issuance of building permits, project sponsor designates qualified professional prior to start of construction and conduct assessments and surveys. Final survey to be conducted within 24 hours of ground disturbance. Prior to issuance of building permits, project sponsor designates qualified professional prior to start of construction to coordinate with CDFW to find Planning Division Planning / Building Division Incorporate as condition of project approval. Prior to issuance of building permit, qualified professional coordinates with CDFW to find appropriate off-site burrow locations. Prior to issuance of building permit, Planning / Building Division verifies permanent preservation of off- site burrow locations is satisfactory to CDFW. Deny issuance of building permit Stop work if final survey discovers burrowing owls. Mitigation Monitoring and Reporting Program 8 Los Gamos Apartments MITIGATION MONITORING AND REPORTING PROGRAM Los Gamos Apartments Mitigation Measure Implementation Procedure Monitoring Responsibility Monitoring / Reporting Action & Schedule Non-Compliance Sanction/Activity Monitoring Compliance Record (Name/Date) shall trigger subsequent surveys, as determined by a qualified biologist, including but not limited to a final survey within 24 hours prior to ground disturbance. The qualified biologis t shall have a minimum of two years of experience implementing the CDFW 2012 Staff Report survey methodology resulting in detections. Detected burrowing owls shall be avoided pursuant to the buffer zone prescribed in the CDFW 2012 Staff Report and any passive relocation plan for non-nesting owls shall be subject to CDFW review. Burrowing Owl Wintering Habitat Mitigation. If the Project would impact an occupied burrow (where a non-nesting wintering owl would be evicted as described above), the following habitat mitigation shall be implemented prior to Project construction: • Impacts to each burrow site shall be mitigated by permanent preservation of two occupied burrow sites with appropriate foraging habitat within Marin County, unless otherwise approved by CDFW, through a conservation easement and implementing and funding a long-term management plan in perpetuity. The Project may implement alternative methods for preserving habitat with written acceptance from CDFW. IV(a); Mitigation Measure BIO-1c: American Badger Preconstruction Wildlife Survey. Within one week prior to initiation of construction, a qualified biologist will survey the Project Area for potential American badger burrows. If potentially occupied burrows are detected, an avoidance appropriate off-site burrow locations. Require as a condition of approval. Prior to the issuance of building permits, project sponsor designates qualified professional to conduct assessment and surveys and Planning Division Planning / Building Division Incorporate as condition of project approval. Qualified professional conducts pre-construction survey before permit issuance. Planning / Building Division verifies survey conducted prior to issuance of building permit Incorporate as condition of project approval. Qualified professional conducts assessments Deny issuance of building permit Stop work if final survey discovers Mitigation Monitoring and Reporting Program 9 Los Gamos Apartments MITIGATION MONITORING AND REPORTING PROGRAM Los Gamos Apartments Mitigation Measure Implementation Procedure Monitoring Responsibility Monitoring / Reporting Action & Schedule Non-Compliance Sanction/Activity Monitoring Compliance Record (Name/Date) buffer will be approved by CDFW, and established to protect the burrow from construction impacts. If a sufficient buffer cannot be established, the biologist will prepare a relocation plan to be approved by CDFW and implemented prior to initiation of construction. If construction is suspended for more than 1 week or is initiated in an area more than 2500 feet from active construction, a new survey will be performed prior to re-starting work or starting work in new areas. to prior to start of construction. Require as a condition of approval. Prior to issuance of building permits, project sponsor designates qualified professional prior to start of construction to coordinate with CDFW to find appropriate off-site burrow locations. and surveys as outlined in the mitigation measure and provides copy of results to Planning Division. Planning / Building Division verifies assessments and surveys conducted prior to issuance of building permit. Planning / Building Division verifies final survey was conducted within 24 hours of ground disturbance.. suitable habitat trees. Deny issuance of building permit V. CULTURAL RESOURCES Mitigation Monitoring and Reporting Program 10 Los Gamos Apartments MITIGATION MONITORING AND REPORTING PROGRAM Los Gamos Apartments Mitigation Measure Implementation Procedure Monitoring Responsibility Monitoring / Reporting Action & Schedule Non-Compliance Sanction/Activity Monitoring Compliance Record (Name/Date) V(b). Mitigation Measure CULT-1: Protect Archaeological Resources Identified during Construction: The project sponsor shall ensure that construction crews stop all work within 100 feet of the discovery until a qualified archaeologist can assess the previously unrecorded discovery and provide recommendations. Resources could include subsurface historic features such as artifact-filled privies, wells, and refuse pits, and artifact deposits, along with concentrations of adobe, stone, or concrete walls or foundations, and concentrations of cer amic, glass, or metal materials. Native American archaeological materials could include obsidian and chert flaked stone tools (such as projectile and dart points), midden (culturally derived darkened soil containing heat-affected rock, artifacts, animal bones, and/or shellfish remains), and/or groundstone implements (such as mortars and pestles). Require as a condition of approval Project sponsor designates qualified professional pursuant to NAHC requirements and obtains approvals from appropriate agencies prior to issuance of building permits Planning Division Planning /Building Division Incorporate as condition of project approval Project sponsor to halt work immediately upon discovery of unknown resources Planning / Building Division verifies appropriate professionals/approva ls obtained prior to issuance of building permit Deny project Halt building permit V(c). Mitigation Measure CULT-2: Protect Human Remains Identified During Construction: The Project proponent shall treat any human remains and associated or unassociated funerary objects discovered during soil- disturbing activities according to applicable State laws. Such treatment includes work stoppage and immediate notification of the Marin County Coroner and qualified archaeologist, and in the event that the Coroner’s determination that the human remains are Native American, notification of NAHC according to the requirements in PRC Section 5097.98. NAHC would appoint a Most Likely Descendant (“MLD”). A qualified archaeologist, Project proponent, County of Marin, and MLD shall make all reasonable efforts to develop an agreement for the treatment, with appropriate dignity, of any human remains and associated or unassociated funerary objects (CEQA Guidelines Section 15064.5[d]). The Require as a condition of approval Project sponsor designates qualified professional pursuant to NAHC requirements and obtains approvals from appropriate agencies prior to issuance of building permits Planning Division Planning /Building Division Incorporate as condition of project approval Project sponsor to halt work immediately upon discovery of unknown resources Planning / Building Division verifies appropriate professionals/approva ls obtained prior to issuance of building permit Deny project Halt building permit Mitigation Monitoring and Reporting Program 11 Los Gamos Apartments MITIGATION MONITORING AND REPORTING PROGRAM Los Gamos Apartments Mitigation Measure Implementation Procedure Monitoring Responsibility Monitoring / Reporting Action & Schedule Non-Compliance Sanction/Activity Monitoring Compliance Record (Name/Date) agreement would take into consideration the appropriate excavation, removal, recordation, analysis, custodianship, and final disposition of the human remains and associated or unassociated funerary objects. The PRC allows 48 hours to reach agreement on these matters. Project sponsor to halt work immediately upon discovery of cultural resources Stop Work Order or revocation of permit VII. GEOLOGY AND SOILS VII(a)(ii). Mitigation Measure GEO -1: Prior to a grading or building permit submittal, the project sponsor shall prepare a design-level geotechnical investigation prepared by a qualified and licensed geotechnical engineer and submit the report to the City Engineer. Minimum recommendations include design of new structures in accordance with the provisions of the 2019 California Building Code or subsequent codes in effect when final design occurs. Final project design shall be consistent with the recommended seismic design coefficients and spectral accelerations are presented in the findings presented in Section 5.1 of the December 7, 2020 MPEG report. Require as a condition of approval Project sponsor prepare a design-level geotechnical investigation prepared by a qualified and licensed geotechnical engineer and submit the report to the City Engineer Planning Division Public Works Department Incorporate as condition of project approval Public Works Department / Building Division verifies appropriate design-level report prior to issuance of building permit Deny project Deny issuance of building permit VII(a)(iv). Mitigation Measure GEO-2: Supplemental exploration with exploratory trenches and geology site inspection/mapping further upslope shall be performed to better evaluate the potential for instability. Most of the suspected areas of instability within the site will be removed as part of the planned excavation and building construction. Undeveloped areas of instability within the project site should be over-excavated, subsurface drainage installed, and backfilled with engineered fill. Global stability of the site should be checked as part of building wall design. Debris catchment structure or deflection wall/berm may be needed upslope of the planned buildings if debris flow paths cross planned structures. Final project design shall be consistent Require as a condition of approval Project sponsor prepare a design-level drainage system design prepared by a qualified and licensed civil engineer and submit the report to the City Engineer Planning Division Public Works Department Incorporate as condition of project approval Public Works Department/ Building Division verifies appropriate design-level report prior to issuance of building permit Deny project Deny issuance of building permit Mitigation Monitoring and Reporting Program 12 Los Gamos Apartments MITIGATION MONITORING AND REPORTING PROGRAM Los Gamos Apartments Mitigation Measure Implementation Procedure Monitoring Responsibility Monitoring / Reporting Action & Schedule Non-Compliance Sanction/Activity Monitoring Compliance Record (Name/Date) with the recommended findings presented in Chapter 5 of the December 7, 2020 MPEG report. VII(b). Mitigation Measure GEO-3: Prior to a grading or building permit submittal, the project sponsor shall prepare a site drainage system prepared by a qualified and licensed civil engineer and submit the report to the City Engineer. Planned improvements or structures on shallow foundations should be setback from the unimproved drainage channel. The recommended setback distance is a 3:1 inclination from the channel bed or 10 feet from top of bank, whichever is greater. The site drainage system shall be designed to collect surface water from the maximum credible rainfall event and discharging it into an established storm drainage system. The project Civil Engineer is responsible for designing the site drainage system. In addition, an erosion control plan shall be developed prior to construction per the current guidelines of the California Stormwater Quality Association’s Best Management Practice Handbook. Additionally, regular monitoring of the upslope areas shall be performed, particularly during and following periods of heavy rainfall. Regular maintenance of upslope areas should also be performed and should include maintaining vegetative cover on slopes, clearing debris from the v-ditches and drain inlets, and promptly repairing any erosion or shallow instabilities that occur. Final project design shall be consistent with the recommended findings presented in Chapter 5 of the December 7, 2020 MPEG report. Require as a condition of approval Project sponsor prepare a design-level drainage system design prepared by a qualified and licensed civil engineer and submit the report to the City Engineer Planning Division Public Works Department Incorporate as condition of project approval Public Works Department/ Building Division verifies appropriate design-level report prior to issuance of building permit Deny project Deny issuance of building permit Mitigation Monitoring and Reporting Program 13 Los Gamos Apartments MITIGATION MONITORING AND REPORTING PROGRAM Los Gamos Apartments Mitigation Measure Implementation Procedure Monitoring Responsibility Monitoring / Reporting Action & Schedule Non-Compliance Sanction/Activity Monitoring Compliance Record (Name/Date) VII(d). Mitigation Measure GEO-4: Soils subgrades and fills shall be moisture conditioned above the optimum moisture content during site grading and maintained at this moisture content until imported aggregate base and/or surface flatwork is completed. Retaining structures shall be designed with a soil creep load where walls retain sloping ground. Foundations shall be designed to account for some expansive soil movement. Final project design shall be consistent with the recommended findings presented in Chapter 5 of the December 7, 2020 MPE G report. Require as a condition of approval Project sponsor obtains approvals from appropriate agencies prior to issuance of building permits Planning Division Public Works Department/B uilding Division Incorporate as condition of project approval Public Works Department/ Building Division verifies appropriate approvals obtained prior to issuance of building permit Deny project Deny issuance of building permit VII(f). Mitigation Measure GEO-5: Should paleontological resources be encountered during project subsurface construction activities located in previously undisturbed soil and bedrock, all ground-disturbing activities within 25 feet shall be halted and a qualified paleontologist contacted to assess the situation, consult with agencies as appropriate, and make recommendations for the treatment of the discovery. For purposes of this mitigation, a “qualified paleontologist” shall be an individual with the following qualifications: 1) a graduate degree in paleontology or geology and/or a person with a demonstrated publication record in peer-reviewed paleontological journals; 2) at least two years of professional experience related to paleontology; 3) proficiency in recognizing fossils in the field and determining their significance; 4) expertise in local geology, stratigraphy, and biostratigraphy; and 5) experience collecting vertebrate fossils in the field. If the paleontological resources are found to be significant and project activities cannot avoid them, measures shall be implemented to ensure that the project does not cause a substantial adverse change in the significance of the paleontological resource. Measures may include monitoring, Require as a condition of approval Project sponsor shall designate qualified paleontologist, consult with agencies as appropriate prior to issuance of building permits Planning Division Building Division Incorporate as condition of project approval Should paleontological resources be encountered during project subsurface construction activities located in previously undisturbed soil and bedrock, all ground- disturbing activities within 25 feet shall be halted. Planning / Building Division contacted and appropriate agencies alerted to discoveries Deny project Halt building permit Mitigation Monitoring and Reporting Program 14 Los Gamos Apartments MITIGATION MONITORING AND REPORTING PROGRAM Los Gamos Apartments Mitigation Measure Implementation Procedure Monitoring Responsibility Monitoring / Reporting Action & Schedule Non-Compliance Sanction/Activity Monitoring Compliance Record (Name/Date) recording the fossil locality, data recovery and analy sis, a final report, and accessioning the fossil material and technical report to a paleontological repository. Upon completion of the assessment, a report documenting methods, findings, and recommendations shall be prepared and submitted to the City for review. If paleontological materials are recovered, this report also shall be submitted to a paleontological repository such as the University of California Museum of Paleontology, along with significant paleontological materials. Public educational outreach may also be appropriate. The project applicants shall inform its contractor(s) of the sensitivity of the project site for paleontological resources and shall verify that the following directive has been included in the appropriate contract specification documents: “The subsurface of the construction site may contain fossils. If fossils are encountered during project subsurface construction, all ground-disturbing activities within 25 feet shall be halted and a qualified paleontologist contacted to assess the situation, consult with agencies as appropriate, and make recommendations for the treatment of the discovery. Project personnel shall not collect or move any paleontological materials. Fossils can include plants and animals, and such trace fossil evidence of past life as tracks or plant imprints. Marine sediments may contain invertebrate fossils such as snails, clam and oyster shells, sponges, and protozoa; and vertebrate fossils such as fish, whale, and sea lion bones. Vertebrate land mammals may include bones of mammoth, camel, saber tooth cat, horse, and bison. Contractor acknowledges and understands that excavation or removal of Mitigation Monitoring and Reporting Program 15 Los Gamos Apartments MITIGATION MONITORING AND REPORTING PROGRAM Los Gamos Apartments Mitigation Measure Implementation Procedure Monitoring Responsibility Monitoring / Reporting Action & Schedule Non-Compliance Sanction/Activity Monitoring Compliance Record (Name/Date) paleontological material is prohibited by law and constitutes a misdemeanor under California Public Resources Code, Section 5097.5.” X. HYDROLOGY AND WATER QUALITY X(a). Mitigation Measure HYDRO-1: Prior to issuing a grading or building permit, the project applicant shall prepare a Stormwater Pollution Prevention Plan (SWPPP) and/or Erosion and Sediment Control Plan (ESCP) in accordance with the requirements of the statewide Construction General Permit and the City of San Rafael Department of Public Works. The SWPPP shall be prepared by a Qualified SWPPP Developer (QSD). The SWPPP shall include the minimum Best Management Practices (BMPs) required for the identified risk level. The SWPPP shall be designed to address the following objectives: 1) All pollutants and their sources, including sources of sediment associated with construction, construction site erosion, and all other activities associated with construction activity are controlled; 2) Where not otherwise required to be un der a Regional Water Quality Control Board permit, all non‐stormwater discharges are identified and either eliminated, controlled, or treated; 3) Site BMPs are effective and result in the reduction or elimination of pollutants in stormwater discharges and authorized non‐stormwater discharges from construction activity. The erosion and sediment control plan shall include the rationale used for selecting BMPs including supporting soil loss calculations, as necessary; 4) Stabilization BMPs installed to reduce or eliminate pollutants after construction are completed. Require as a condition of approval Project sponsor submits SWPP/ESCP to San Rafael Department of Public Works prior to issuance of building permits Planning Division Public Works Department Incorporate as condition of project approval Public Works Department verifies appropriate approvals obtained prior to issuance of building permit Deny project Deny issuance of building permit Mitigation Monitoring and Reporting Program 16 Los Gamos Apartments MITIGATION MONITORING AND REPORTING PROGRAM Los Gamos Apartments Mitigation Measure Implementation Procedure Monitoring Responsibility Monitoring / Reporting Action & Schedule Non-Compliance Sanction/Activity Monitoring Compliance Record (Name/Date) 5) BMP implementation shall be consistent with the BMP requirements in the most recent version of the California Stormwater Quality Association Stormwater Best Management Handbook‐Construction or the Caltrans Stormwater Quality Handbook Construction Site BMPs Manual. X(a). Mitigation Measure HYDRO-2: Prior to a certificate of occupancy, the Project applicant shall verify that operational stormwater quality control measures that comply with the requirements of the current Phase II Small MS4 Permit have been implemented. Responsibilities include, but are not limited to: 1) Designing BMPs into Project features and operations to reduce potential impacts to surface water quality and to manage changes in the timing and quantity of runoff associated with operation of the project. These features shall be included in the design‐level drainage plan and final development drawings. 2) The proposed project shall incorporate site design measures and Low Impact Development design standards, including minimizing disturbed areas and impervious surfaces, infiltration, harvesting, evapotranspiration, and/or bio‐treatment of stormwater runoff. 3) The Project applicant shall establish an Operation and Maintenance Plan. This plan shall specify a regular inspection schedule of stormwater treatment facilities in accordance with the requirements of the Phase II Small MS4 Permit. 4) Funding for long‐term maintenance of all BMPs shall be specified. Require as a condition of approval Project sponsor submits Phase II Small MS4 Permit to San Rafael Department of Public Works prior to issuance of certificate of occupancy Planning Division Public Works Department Incorporate as condition of project approval Public Works Department verifies appropriate approvals obtained prior to issuance of certificate of occupancy Deny project Deny issuance of certificate of occupancy Mitigation Monitoring and Reporting Program 17 Los Gamos Apartments MITIGATION MONITORING AND REPORTING PROGRAM Los Gamos Apartments Mitigation Measure Implementation Procedure Monitoring Responsibility Monitoring / Reporting Action & Schedule Non-Compliance Sanction/Activity Monitoring Compliance Record (Name/Date) XVIII. TRIBAL CULTURAL RESOURCES XVIII(a). Mitigation Measure TRIBAL-1: Implementation of the unanticipated discovery measures outlined in Section V(b) and (d) above, address the potential discovery of previously unknown resources within the project area. If significant tribal cultural resources are identified onsite, all work would stop immediately within 50 feet of the resource(s) and the project applicant would comply with all relevant State and City policies and procedures prescribed under PRC Section 21074. Require as a condition of approval Project sponsor designates qualified professional pursuant to NAHC requirements and obtains approvals from appropriate agencies prior to issuance of building permits Planning Division Planning /Building Division Incorporate as condition of project approval Project sponsor to halt work immediately upon discovery of unknown resources Planning / Building Division verifies appropriate professionals/approva ls obtained prior to issuance of building permit Deny project Stop Work Order or revocation of permit Mitigation Monitoring and Reporting Program 18 Los Gamos Apartments Exhibit B MEMORANDUM DATE: December 7, 2021 TO: Planning Commission FROM: Sean Kennings, LAK Associates, LLC. SUBJECT: Response to California Department of Fish and Wildlife Comments on Los Gamos Apartments project Initial Study and Mitigated Negative Declaration (IS/MND) The City of San Rafael Planning Division received the attached letter from the California Department of Fish and Wildlife (CDFW) regarding the Los Gamos Apartments (LGA) project IS/MND. A numbering system has been established to address specific questions in the letter. Each of the comments in the letter has been assigned a number and responses are provided below. Staff has communicated with the CDFW staff person, Amanda Culpepper, and has confirmed the responses accordingly. Although the requested changes represent new information related to the project, it has been determined that the update does not present a material change in the baseline information, nor result in new findings that changes the impact significance criteria. As a result, pursuant to the California Environmental Quality Act (CEQA) Guidelines 15073.5(c), the ISMND has been revised with updated Mitigation Measures to reflect the suggested language by CDFW. CDFW Comment Letter, Amanda Culpepper, November 24, 2021 Response to Comment 1 – Lake or Streambed Alteration Notification: The comment suggests that the LGA project requires compliance with the California Fish and Game Code section 1600 et seq. to reduce potential impacts to an on-site ephemeral stream during construction of the pedestrian bridge crossing. Although the project does not propose improvements within the drainageway, the project should be evaluated by CDFW prior to building permit review and approval. A condition of approval has been developed requiring the applicant to submit for an LSA Notification to CDFW pursuant to Fish and Game Code section 1602 prior to Project construction for Project activities that may substantially alter the bed, bank, or channel of the ephemeral stream, including installation of a new bridge. Response to Comment 2 – Environmental Setting and Related Impact Shortcoming Riparian Habitat, Sensitive Natural Community, and Tree Removal: The comment suggests that the LGA project will be impacting riparian and oak woodland habitats. SAN RAFAEL THE CITY WITH A MISSION       Los Gamos Apartments ‐ CDFW ISMND Response to Comments  2    Additionally, the comment request information regarding tree removal in riparian areas. As discussed in the biological site assessment provided with the application, there are no riparian areas on site, and therefore, no tree removals in riparian zones. The comment also provides recommended replanting requirements to offset loss of tree removals. As discussed in the ISMND, the project is proposed to remove the minimal number of native trees, and the landscaping plan proposes to replace of some of these removed trees. The City of San Rafael does not have an adopted tree preservation policy or ordinance, however, tree removal and replacement is evaluated through the City’s Environmental and Design Review Permit Review Criteria (SRMC Section 14.25.050.G). The proposed project includes removal of 55 existing mature landscape trees on site but includes 210 replacement trees throughout the project site (approximately a 3.85:1 ratio). A condition of approval could be included to require larger size replacement trees, however, staff believes more trees should not be replanted on site due to concerns about defensible space for fire and fuel management. In addition, a condition of approval should be added to require a landscape plan revision prior to building permit submittal so that the south park pedestrian path avoids mature oak trees where practical. Response to Comment 3 – Burrowing Owl: The comment suggests that the LGA project will be impacting burrowing owl habitat. As discussed in the biological site assessment provided with the application, burrowing owl are usually found on flat, open grasslands or fields and are not expected on steeper, sloped sites. No burrowing owls nor nest or burrows were observed during the site reconnaissance. Furthermore, the example cited in the CDFW letter occurred north of the project site (north of St. Vincent’s) in an open field. However, IS/MND and the MMRP have been modified to include new mitigation requiring a pre-construction survey review for burrowing owl. Response to Comment 4 – American Badger: The comment suggests that the LGA project will be impacting American badger habitat, an animal considered a special status species (SSC). The applicant has provided an addendum memorandum from GANDA/Kleinfelder (attached) explaining that although American badger suitable habitat occurs on the project site, no badgers or badger dens were observed during the site reconnaissance. However, GANDA included a new avoidance and minimization measure is recommended that includes further pre- construction surveys to rule out any occurrences. The IS/MND and the MMRP have been modified to include new mitigation requiring a pre-construction survey to review for American badger. Response to Comment 5 – Roosting Bats: The comment suggests that the LGA project ISMND did not clearly evaluate the impacts to roosting bat habitat. The comment also suggests that tree removal associated with the project could lead to injury or death of bats, including pallid bat and western red bat, a potentially significant impact. As discussed in the biological site assessment provided with the application, no pallid bats roosts were observed within the study area, however the likelihood for occurrence on site is considered low. However, the IS/MND and the MMRP have been modified to include new mitigation similar to the language defined by CDFW.       Los Gamos Apartments ‐ CDFW ISMND Response to Comments  3    Response to Comment 6 – Mitigation Measures and Related Impact Shortcoming - Special-Status Plants: The comment request additional specificity for special status plant species as part of the pre-construction surveys. Specifically, CDFW is requesting that the project sponsor perform floristic botanical surveys and provide further information regarding success criteria for transplanted plant individuals. The IS/MND and the MMRP have been modified to include new language for the existing biological mitigation measure requiring a pre-construction survey to review for special status plants. Response to Comment 7 – General Comments: The comment is encouraging using native trees and shrubs to benefit native nesting birds and other wildlife in the landscaping plan. Typical conditions of approval require projects to incorporate native vegetation as part of the landscaping plan. Response to Comments 8 – Environmental Data: The comment is requesting that staff report of any special-status species and natural communities detected during Project surveys to the California Natural Diversity Database (CNDDB). Staff will incorporate a condition of approval that requires information to be uploaded to the CNDDB database as indicated by CDFW. Attachments: 1. California Department of Fish and Wildlife letter, dated November 24, 2021 2. American badger memorandum, GANDA/Kleinfelder, December 8, 2021 State of California – Natural Resources Agency GAVIN NEWSOM, Governor DEPARTMENT OF FISH AND WILDLIFE CHARLTON H. BONHAM, Director Bay Delta Region 2825 Cordelia Road, Suite 100 Fairfield, CA 94534 (707) 428-2002 www.wildlife.ca.gov Conserving California’s Wildlife Since 1870 November 24, 2021 Ms. Leslie Mendez City of San Rafael 1400 5th Avenue, 3rd Floor San Rafael, CA 94901 Leslie.Mendez@cityofsanrafael.org Subject: Los Gamos Apartments Development Project, Mitigated Negative Declaration, SCH No. 2021110004, City of San Rafael, Marin County Dear Ms. Mendez: The California Department of Fish and Wildlife (CDFW) received a Notice of Intent to Adopt a Mitigated Negative Declaration (MND) from the City of San Rafael (City) for the Los Gamos Apartments Development Project (Project) pursuant to the California Environmental Quality Act (CEQA) and CEQA Guidelines.1 CDFW is submitting comments on the MND to inform the City, as the Lead Agency, of potentially significant impacts to biological resources associated with the Project. CDFW ROLE CDFW is a Trustee Agency with responsibility under CEQA pursuant to CEQA Guidelines section 15386 for commenting on projects that could impact fish, plant, and wildlife resources. CDFW is also considered a Responsible Agency if a project would require discretionary approval, such as permits issued under the California Endangered Species Act (CESA) or Native Plant Protection Act, the Lake and Streambed Alteration (LSA) Program, or other provisions of the Fish and Game Code that afford protection to the state’s fish and wildlife trust resources. PROJECT DESCRIPTION SUMMARY Proponent: Colin Russell Architects Objective: The Project would develop a 10.24-acre lot into 192 multifamily residential units, a neighborhood market, a community center, and a walking trail. Primary Project activities include grading, excavation, trenching, building construction, concrete pouring, tree-removal, bridge installation, and landscaping. 1 CEQA is codified in the California Public Resources Code in Section 21000 et seq. The “CEQA Guidelines” are found in Title 14 of the California Code of Regulations, commencing with Section 15000.         Ms. Leslie Mendez City of San Rafael November 24, 2021 Page 2 Location: The Project is located at Los Gamos Drive approximately 0.5 miles south of the intersection of Los Gamos Drive and Lucas Valley Road, in the City of San Rafael, County of Marin. The approximate centroid of the Project is Latitude 38.01509°N, Longitude 122.54327°W and the Assessor’s Parcel Numbers are 165-220-06 and 165- 220-07. Timeframe: The MND does not specify a timeframe. ENVIRONMENTAL SETTING The Project covers approximately 10.24 acres of undeveloped land consisting of annual and perennial grassland, coyote brush (Baccharis pilularis) scrub, coast live oak (Quercus agrifolia) woodland, and valley oak (Q. lobata) woodland. CDFW considers valley oak woodland a sensitive natural community (CDFW 2021). The Project is adjacent to U.S. Highway 101 and commercial development to the east, and City of San Rafael Open Space to the west. Two ephemeral streams are present in the Project area. Special-status species with the potential to occur in or near the Project area include, but are not limited to, burrowing owl (Athene cunicularia), California Species of Special Concern (SSC); pallid bat (Antrozous pallidus), SSC; western red bat (Lasiurus blossevillii), SSC; American badger (Taxidea taxus), SSC; congested-headed hayfield tarplant (Hemizonia congesta ssp. congesta), California Rare Plant Rank (CRPR) 1B.22; and white-tailed kite (Elanus leucurus), a Fully Protected species. REGULATORY REQUIREMENTS Lake and Streambed Alteration CDFW requires an LSA Notification, pursuant to Fish and Game Code section 1600 et seq., for project activities affecting lakes or streams and associated riparian habitat. Notification is required for any activity that may substantially divert or obstruct the natural flow; change or use material from the bed, channel, or bank including associated riparian or wetland resources; or deposit or dispose of material where it may pass into a river, lake, or stream. Work within ephemeral streams, washes, watercourses with a subsurface flow, and floodplains are subject to notification requirements. The MND identifies that the Project will install a pedestrian bridge over an ephemeral stream (MND pages 18 and 47, and Figure 8). Project activities that would substantially alter the bed, bank, or channel, or the riparian habitat, of this ephemeral stream would require LSA Notification, see further recommendations below. In this case, CDFW would consider the CEQA document for the Project and 2 CRPR 1B plants are considered rare, threatened, or endangered in California and elsewhere. Further information on CRPR is available in CDFW’s Special Vascular Plants, Bryophytes, and Lichens List available at https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=109383&inline and on the California Native Plant Society webpage https://www.cnps.org/rare-plants/cnps-rare-plant-ranks.         Ms. Leslie Mendez City of San Rafael November 24, 2021 Page 3 may issue an LSA Agreement. CDFW may not execute the final LSA Agreement until it has complied with CEQA as a Responsible Agency. Raptors and Other Nesting Birds CDFW also has jurisdiction over actions that may result in the disturbance or destruction of active nest sites or the unauthorized take of birds. Fish and Game Code sections protecting birds, their eggs, and nests include sections 3503 (regarding unlawful take, possession or needless destruction of the nests or eggs of any bird), 3503.5 (regarding the take, possession or destruction of any birds-of-prey or their nests or eggs), and 3513 (regarding unlawful take of any migratory nongame bird). Migratory birds are also protected under the federal Migratory Bird Treaty Act. Fully Protected Species Fully Protected species, such as white-tailed kite, may not be taken or possessed at any time (Fish & G. Code, §§ 3511, 4700, 5050, & 5515). COMMENTS AND RECOMMENDATIONS CDFW offers the comments and recommendations below to assist the City in adequately identifying and/or mitigating the Project’s significant, or potentially significant, direct and indirect impacts on fish and wildlife (biological) resources. Lake or Streambed Alteration Notification As noted above, the Project would install a new bridge over an ephemeral stream (MND pages 18 and 47, and Figure 8). To comply with California Fish and Game Code section 1600 et seq. and reduce impacts to less-than-significant, CDFW recommends the following mitigation measure. Mitigation Measure BIO-2: Notification of Lake or Streambed Alteration For Project activities that may substantially alter the bed, bank, or channel of the ephemeral stream, including installation of a new bridge, an LSA Notification shall be submitted to CDFW pursuant to Fish and Game Code section 1602 prior to Project construction. If CDFW determines that an LSA Agreement is warranted, the Project shall comply with all required measures in the LSA Agreement, including but not limited to requirements to mitigate impacts to the ephemeral stream and riparian habitat. Permanent impacts to riparian habitat shall be mitigated by restoration of riparian habitat at a 3:1 mitigation to impact ratio based on acreage and linear distance as close to the project site as possible and within the same watershed. Temporary impacts shall be restored on-site in the same year as the impact.         Ms. Leslie Mendez City of San Rafael November 24, 2021 Page 4 Environmental Setting and Related Impact Shortcoming Riparian Habitat, Sensitive Natural Community, and Tree Removal The MND identifies that the Project is located within riparian and oak woodland habitat, including valley oak woodland (MND page 48). A fine scale vegetation mapping project in Marin County also classifies portions of the Project site as valley oak woodland (One Tam 2019). The valley oak woodland alliance is state rarity ranked S3, which CDFW considers a sensitive natural community (CDFW 2021). Sensitive natural communities are endemic communities that have limited distribution and are often vulnerable to project impacts (CDFW 2018). Only remnant patches of valley oak woodland remain in California (CIWTG). The Project would remove approximately 55 trees from the Project area, some which may be from riparian habitat and a sensitive natural community (MND page 48). CDFW recommends that the MND clarify how many trees would be removed from riparian habitat and a sensitive natural community. Additionally, it appears that the Project may impact riparian habitat on and adjacent to the ephemeral streams. While the MND identifies a 25-foot buffer will be implemented from the top-of-bank of the ephemeral streams (MND page 47), the bridge installation would shade existing vegetation and increase human presence and disturbance at the stream, even if the abutments are 25 feet away from the top-of-bank. The MND identifies that 210 replacement trees will be planted throughout the site and requires no further mitigation for tree removal, impacts to riparian areas, or impacts to the sensitive natural community (MND page 48). CDFW typically recommends replacement planting commensurate with the diameter at breast height (DBH) of the tree removed. Large DBH trees can take decades or longer to grow; therefore, removing large trees causes a temporal habitat loss that cannot be immediately offset. Planting a greater number of trees recovers lost canopy cover more quickly and increases the probability that one of the trees planted will reach the diameter of the removed tree. In addition, mature tree removal removes important food resources such as acorns from the area and removes habitat for a variety of tree nesting birds and tree roosting bats. Human activity and removal of habitat has contributed to the loss of a significant proportion of the total number of birds in the United States and Canada since the 1970s (Rosenburg et al. 2019). Based on the above, the loss of trees, sensitive natural community, and riparian habitat, is a potentially significant impact. To reduce impacts to less-than-significant, CDFW recommends including the following mitigation measure. Mitigation Measure BIO-3: Tree Replacement and Monitoring Any trees removed or impacted as a result of the Project shall be replaced pursuant to the below ratios. To ensure a successful planting effort, all plantings shall be monitored         Ms. Leslie Mendez City of San Rafael November 24, 2021 Page 5 and maintained as necessary for a minimum of five years. Oak trees, other trees, and all other plantings shall each have a minimum of 80% survival at the end of the minimum monitoring. If the planting survival is not meeting this goal, then the Project shall implement replacement planting, additional watering, invasive exotic eradication, or any other practice, to achieve these requirements. Replacement plants shall be monitored with the same survival requirements for five years after planting. Native oak tree replacement ratios: x 3:1 replacement for trees 5 to 8 inches DBH x 5:1 replacement for trees greater than 8 inches to 16 inches DBH x 10:1 replacement for trees greater than 16 inches DBH, which are considered old-growth oaks Replacement oaks shall come from nursery stock grown from locally sourced acorns, or from acorns gathered locally, preferably from the same watershed in which they are planted. The trees should be able to survive the last two years of a minimum five-year monitoring period without irrigation. Other tree species replacement ratios: x 1:1 replacement for non-native trees x 3:1 replacement for native trees 4 to 6 inches DBH x 6:1 replacement for native trees greater than 6 inches DBH Burrowing Owl The Project is within the winter range3 of burrowing owl, an SSC, and the grassland within and in the vicinity of the Project may provide suitable wintering and foraging habitat. There is a documented occurrence of burrowing owl approximately 1.7 miles northeast of the Project site according to the California Natural Diversity Database (CNDDB). In addition, the California Wildlife Habitat Relationships Predicted Habitat Suitability for the grassland portions of the site is High Suitability for burrowing owls. The MND does not address burrowing owl or identify methods to avoid potential impacts to burrowing owls. The Project could result in burrowing owl burrow abandonment, injury or mortality of adults, or loss of wintering owls. Burrowing owls are an SSC due to population decline 3 CDFW maintains range maps and life history accounts for all terrestrial species in California. The burrowing owl range map is available at https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=1872&inline=1         Ms. Leslie Mendez City of San Rafael November 24, 2021 Page 6 and breeding range retraction. Based on the above, the Project may potentially significantly impact burrowing owls. To reduce impacts to less-than-significant CDFW recommends the following mitigation measures. Mitigation Measure BIO-4A: Burrowing Owl Habitat Assessment, Surveys, and Avoidance Prior to Project activities, a habitat assessment shall be performed following Appendix C: Habitat Assessment and Reporting Details of the CDFW Staff Report on Burrowing Owl Mitigation4 (CDFW 2012 Staff Report). The habitat assessment shall extend at least 492 feet (150 meters) from the Project site boundary or more where direct or indirect effects could potentially extend offsite (up to 500 meters or 1,640 feet) and include burrows and burrow surrogates. If the habitat assessment identifies potentially suitable burrowing owl habitat, then a qualified biologist shall conduct surveys following the CDFW 2012 Staff Report survey methodology. Surveys shall encompass the Project site and a sufficient buffer zone to detect owls nearby that may be impacted commensurate with the type of disturbance anticipated, as outlined in the CDFW 2012 Staff Report, and include burrow surrogates such as culverts, piles of concrete or rubble, and other non-natural features, in addition to burrows and mounds. Time lapses between surveys or Project activities shall trigger subsequent surveys, as determined by a qualified biologist, including but not limited to a final survey within 24 hours prior to ground disturbance. The qualified biologist shall have a minimum of two years of experience implementing the CDFW 2012 Staff Report survey methodology resulting in detections. Detected burrowing owls shall be avoided pursuant to the buffer zone prescribed in the CDFW 2012 Staff Report and any passive relocation plan for non- nesting owls shall be subject to CDFW review. Please be advised that CDFW does not consider exclusion of burrowing owls (i.e., passive removal of an owl from its burrow or other shelter) as a “take” a voidance, minimization, or mitigation measure for the reasons outlined below. Therefore, to mitigate the impacts of potentially evicting burrowing owls to less-than- significant, Mitigation Measure BIO-3B outlined below should require habitat compensation with the acreage amount identified in any eviction plan. The long-term demographic consequences of exclusion techniques have not been thoroughly evaluated, and the survival rate of excluded owls is unknown. Burrowing owls are dependent on burrows at all times of the year for survival or reproduction; therefore, eviction from nesting, roosting, overwintering, and satellite burrows or other sheltering features may lead to indirect impacts or “take” which is prohibited under Fish and Game Code section 3503.5. All possible avoidance and minimization measures should be considered before temporary or permanent exclusion and closure of burrows is implemented to avoid “take.” 4 CDFW, then Department of Fish and Game, 2012. https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=83843&inline         Ms. Leslie Mendez City of San Rafael November 24, 2021 Page 7 Mitigation Measure BIO-4B: Burrowing Owl Wintering Habitat Mitigation If the Project would impact an occupied burrow (where a non-nesting wintering owl would be evicted as described above), the following habitat mitigation shall be implemented prior to Project construction: Impacts to each burrow site shall be mitigated by permanent preservation of two occupied burrow sites with appropriate foraging habitat within Marin County, unless otherwise approved by CDFW, through a conservation easement and implementing and funding a long-term management plan in perpetuity. The Project may implement alternative methods for preserving habitat with written acceptance from CDFW. American Badger The Project is within the range5 of the American badger, an SSC. The Project is located within grassland habitat that may be suitable for American badger. Badgers range throughout most of California and can dig burrows in a single day; therefore, the species may occupy the Project site and adjacent habitat prior to Project construction (Ministry of Environment Ecosystems 2007 as cited in Brehme et al. 2015). Additionally, the California Wildlife Habitat Relationships Predicted Habitat Suitability for the grassland portions of the site is High Suitability. An unprocessed CNDDB occurrence of a roadkill badger is approximately 4.2 miles north of the Project on Highway 101. This information confirms the species has occurred in the vicinity of the Project site and could use it and adjacent habitat. The Project may result in injury or mortality to adult or young badgers, or burrow abandonment. Therefore, project impacts to American badger would be potentially significant. To reduce impacts to less-than-significant, CDFW recommends that the MND: (1) further analyze the potential for American badger to occur on and adjacent to the Project site, and (2) include mitigation measures to ensure impacts are reduced to less- than-significant. These measures may include a qualified biologist surveying for the species including adjacent habitat prior to construction, avoiding occupied burrows including a sufficient buffer approved by CDFW, and preparing and implementing a CDFW-approved relocation plan if badgers are found on or adjacent to the Project site. 5 The American badger range map is available at https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=2598&inline=1         Ms. Leslie Mendez City of San Rafael November 24, 2021 Page 8 Roosting Bats The MND identifies that the Project area may provide habitat for sensitive bats such as pallid bat and western red bat (MND page 46). The trees in the Project area, some of which are proposed for removal, may provide suitable roosting habitat for bats. Tree removal associated with the Project could lead to injury or death of bats, including pallid bat and western red bat, a potentially significant impact. To reduce impacts to less-than- significant, CDFW recommends including the following mitigation measure. Mitigation Measure BIO-5: Bat Tree Habitat Assessment and Surveys Prior to any tree removal, a qualified biologist shall conduct a habitat assessment for bats. The habitat assessment shall be conducted a minimum of 30 to 90 days prior to tree removal and shall include a visual inspection of potential roosting features (e.g., cavities, crevices in wood and bark, exfoliating bark, and suitable canopy for foliage roosting species). If suitable habitat trees are found, they shall be flagged or otherwise clearly marked and tree trimming or removal shall not proceed unless the following occurs: a) in trees with suitable habitat, presence of bats is presumed, or documented during the surveys described below, and removal using the two-step removal process detailed below occurs only during seasonal periods of bat activity, from approximately March 1 through April 15 and September 1 through October 15, or b) after a qualified biologist conducts night emergence surveys or completes visual examination of roost features that establish absence of roosting bats. Two-step tree removal shall be conducted over two consecutive days, as follows: 1) the first day (in the afternoon), under the direct supervision and instruction by a qualified biologist with experience conducting two-step tree removal, limbs and branches shall be removed by a tree cutter using chainsaws only; limbs with cavities, crevices or deep bark fissures shall be avoided; and 2) the second day the entire tree shall be removed. Mitigation Measures and Related Impact Shortcoming Special-Status Plants The MND identifies that the Project may provide habitat for congested-headed hayfield tarplant, CRPR 1B.2 (MND page 46). The MND includes in mitigation measure BIO-1 a requirement for a rare plant survey for this species. Botanical field surveys should be floristic in nature, meaning that every plant taxon that occurs in the Project area is identified to the taxonomic level necessary to determine rarity and listing status. Focused surveys that are limited to habitats known to support special-status plants or that are restricted to lists of likely potential special-status plants are not considered floristic in nature and are not adequate to identify all plants in a project area to the level necessary to determine if they are special-status plants. In addition, mitigation measure BIO-1 identifies that if special-status plants are identified within the Project area, they will be         Ms. Leslie Mendez City of San Rafael November 24, 2021 Page 9 transplanted to appropriate nearby areas. Without floristic botanical surveys and further information regarding success criteria for transplanted individuals, the Project would not accurately identify and reduce potential impacts to less-than-significant. To reduce impacts to less-than-significant, CDFW recommends replacing the existing rare plant survey language in mitigation measure BIO-1 with the following mitigation measure. Mitigation Measure BIO-6: Special-Status Plant Survey and Avoidance A qualified botanist shall conduct surveys during the appropriate blooming period for all special-status plants that have the potential to occur on or adjacent to the Project area prior to the start of ground-disturbing activities and prepare a report documenting survey findings. Habitat adjacent to the Project area should be surveyed if the Project may have indirect impacts off-site as a result of changes to hydrological conditions or other indirect impacts. More than one year of surveys may be necessary. Surveys and reporting shall be conducted following Protocols for Surveying and Evaluating Impacts to Special-Status Native Plant Populations and Sensitive Natural Communities 6. Surveys shall be submitted to CDFW for review and written acceptance. If special- status plants are found during surveys, the Project shall be re-designed to avoid impacts to special-status plants. If impacts to any special-status plants cannot be avoided completely during construction, the Project shall provide mitigation including on-site restoration, off-site habitat preservation, or another method accepted in writing by CDFW. The qualified botanist shall be knowledgeable about plant taxonomy, familiar with plants of the region, and have experience conducting botanical field surveys according to vetted protocols. Please be advised that an LSA Agreement obtained for this Project would likely require the above recommended mitigation measures, as applicable. GENERAL COMMENTS In addition to the above recommendations, CDFW encourages landscaping using native trees and shrubs to benefit native nesting birds and other wildlife. As noted above, the removal of habitat for birds from human activities has contributed to the loss of a significant proportion of birds in the United States and Canada since the 1970s (Rosenburg et al. 2019). Planting native trees and shrubs is an opportunity to improve conditions for birds7. 6 Department of Fish and Wildlife, 2018. https://www.wildlife.ca.gov/Conservation/Survey-Protocols#377281280- plants 7 For native species recommendations and planting tips, review the Sonoma County Master Gardener document Gardening Success with California Native Plants: http://www.marinrcd.org/wp/wp- content/uploads/2015/02/Gardening-Success-with-CA-Natives_UCCE_Sonoma.pdf         Ms. Leslie Mendez City of San Rafael November 24, 2021 Page 10 CDFW notes that the MND refers to a Biological Technical Report (MND page 45). CDFW recommends that this report be included as an appendix to the MND so that species information and determinations of presence or absence may be thoroughly reviewed by the public and CDFW. ENVIRONMENTAL DATA CEQA requires that information developed in environmental impact reports and negative declarations be incorporated into a database which may be used to make subsequent or supplemental environmental determinations (Pub. Resources Code, § 21003, subd. (e)). Accordingly, please report any special-status species and natural communities detected during Project surveys to the CNDDB. The CNNDB field survey form, online field survey form, and contact information for CNDDB staff can be found at the following link: https://wildlife.ca.gov/data/CNDDB/submitting-data. FILING FEES The Project, as proposed, would have an impact on fish and/or wildlife, and assessment of filing fees is necessary. Fees are payable upon filing of the Notice of Determination by the Lead Agency and serve to help defray the cost of environmental review by CDFW. Payment of the fee is required for the underlying Project approval to be operative, vested, and final. (Cal. Code Regs, tit. 14, § 753.5; Fish & G. Code, § 711.4; Pub. Resources Code, § 21089). CONCLUSION CDFW appreciates the opportunity to comment on the MND to assist the City in identifying and mitigating Project impacts on biological resources. Questions regarding this letter or further coordination should be directed to Ms. Amanda Culpepper, Environmental Scientist, at (707) 428-2075 or Amanda.Culpepper@wildlife.ca.gov, or Ms. Melanie Day, Senior Environmental Scientist (Supervisory), at Melanie.Day@wildlife.ca.gov. Sincerely, Stephanie Fong Acting Regional Manager Bay Delta Region ec: Office of Planning and Research, State Clearinghouse (SCH No. 2021110004) Sean Kennings, LAK Associates, sean@lakassociates.com         Ms. Leslie Mendez City of San Rafael November 24, 2021 Page 11 Nicole Fairley, San Francisco Bay Regional Water Quality Control Board, nicole.fairley@waterboards.ca.gov REFERENCES Brehme, C.S.; Hathaway, S.A.; Booth, R.; Smith, B.H.; and Fisher, R.N. 2015. Research of American Badgers in Western San Diego County, 2014. Data Summary prepared for California Department of Fish and Wildlife and the San Diego Association of Governments. 24pp. (42pp. with Appendix). CDFW. 2018. Protocols for Surveying and Evaluating Impacts to Special Status Native Plant Populations and Natural Communities. https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=18959&inline CDFW. 2021. California Sensitive Natural Communities. Vegetation Classification and Mapping Program, August 18, 2021. https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=153609&inline CIWTG (California Interagency Wildlife Task Group). California Wildlife Habitat Relationship System. California Department of Fish and Game. Valley Oak Woodland. https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=67342&inline One Tam. 2019. Marin Fine Scale Vegetation Web Map. https://parksconservancy.maps.arcgis.com/apps/webappviewer/index.html?id=4e f2881436bc4365be881b17f69ab067 Rosenburg, Kenneth V.; Dokter, Adriaan M.; Blancher, Peter J.; Sauer, John R.; Smith, Adam C.; Smith, Paul A.; Stanton, Jessica C.; Panjabi, Avrind; Helft, Laura; Parr, Michael; and Marra, Peter P. 2019. Decline of the North American Avifauna. Science: 120-124.         Project No: 20211976.001A Page 1 of 1 December 7, 2021 © 2021 Kleinfelder www.kleinfelder.com KLEINFELDER 2601 Mission Street, Ste 600, San Francisco, CA 94110, +1 415-642-8969 December 7, 2021 Kleinfelder Project No.: 20211976.001A Mr. Chris Hart County Strategic Fund I, LLC 1899 Northgate Drive Ste 301 San Rafael, CA 94903 SUBJECT: The Neighborhood at Los Gamos Development Project Biological Technical Report Addendum for Potential for American Badger Dear Mr. Hart: I reviewed the feedback from the California Department of Fish and Wildlife (CDFW) to the City of San Rafael regarding your proposed project for the Neighborhood at Los Gamos Development Project (Project). CDFW has requested that American badger be included for consideration for the Project. American badger (Taxidea taxus), a Species of Special Concern, has potential to occur within the Project area. There is suitable grassland habitat in the project area, which is adjacent to grassland habitat to the west. No badgers or potential burrows were observed during the site visit August 20, 2019, and there were no CNDDB records within two miles, however as CDFW has cited in their letter from November 2021, a roadkill specimen was collected 4.2 miles north of the Project Area which confirms presence in the region. Therefore, following Avoidance and Minimization Measure is added to the Project: Measure 4a: Preconstruction Wildlife Survey. Within one week prior to initiation of construction, a qualified biologist will survey the Project Area for potential American badger burrows. If potentially occupied burrows are detected, an avoidance buffer will be approved by CDFW, and established to protect the burrow from construction impacts. If a sufficient buffer cannot be established, the biologist will prepare a relocation plan to be approved by CDFW and implemented prior to initiation of construction. If construction is suspended for more than 1 week or is initiated in an area more than 2500 feet from active construction, a new survey will be performed prior to re-starting work or starting work in new areas. Please append this letter to The Neighborhood at Los Gamos Development Project Biological Technical Report, prepared by Kleinfelder in January 2021. Sincerely, Sumudu Welaratna, Principal Professional KLEINFELDER cc: File