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HomeMy WebLinkAbout3.3 SupplementalFrom: Debbie Pedro Sent: Thursday, June 02, 20113:22 PM. To: Victoria Ortland Subject: FW: Letter concerning Hearing on Proposed Maintanance Plan for "Barron Creek" Attachments: img-602143704-0001.pdf . IM11-411 img-602143704-000 i.pdf (384 KB... Please forward to the Planning Commissioners. -----Original Message ----- From: Atkinson, Steve (mailto:SAtkinson@LUCE.com] Sent: Thursday, June 02, 2011 3:01 PM To: Cynthia Richardson; Debbie Pedro Cc: Richard Chiu Subject: Letter concerning Hearing on Proposed Maintanance Plan for "Barron Creek" We represent the owner of the property at 26170 W Fremont that is most impacted by the proposed maintenance plan. Attached is a letter we are submitting to the Planning. Commission for tonight's hearing. We also are planning to attend and perhaps participate in the public hearing. The gist of the letter is that there is a better approach to the issues with this watercourse, rather than implementing a stop gap maintenance plan, and we,are prepared to work with Town staff to develop and implement that better plan. We would appreciate it if this letter was distributed to the Commission at tonight's meeting and also placed in the record for the Negative Declaration. We are copying the City Engineer because it is our understanding that the maintenance plan in question is being proposed by that Department. Plase do not hesitate to contact me if there are any questions. Steve Atkinson -----0 ************** CONFIDENTIAL Luce, Forward, Hamilton & Scripps LLP This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments without reading, printing, copying or forwarding it, and please notify us. http://www.luce.com/ Please consider the environment before printing this email. 1 LvcE FoRwARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP STEVE ATKINSON, PARTNER DIRECT DIAL NUMBER 415.356.4617 DIREcr FAxNtimm 415.356.3886 EMAIL ADDRESS SATKINSON(OLUCE.COM June 2, 2011 James Abraham, Chair And Planning Commissioners Planning Commission Town of Los Altos Hills 26379 Fremont Road Los Altos Hills, California 94022 Re: `Barron Creek" Restoration Project Dear Chairman Abraham and Commissioners: 121 Spear Street Suite 200 San Francisco, CA 94105 415.356.4600 415.356.4610 fax WWW.luce.cam We are writing on behalf of Dr. Romesh Wadhwani and Kathleen Wadhwani, who own and reside at the property at 26170 W. Fremont Road, which is the site of the proposed restoration activities for Barron Creek. As discussed in more detail. below, Dr. Wadhwani has great concerns about the effectiveness of the proposed maintenance work and believes that an alternative approach would better protect his property and minimize the Town's long term maintenance liabilities. The channel described in the Initial Study is in fact a wholly artificial drainage ditch constructed by the City about 12 years ago. The resultant channel has created a number of ongoing environmental issues and maintenance difficulties which the proposed "restoration and maintenance" proposal does not effectively address. Rather than pursuing this inadequate stop- gap maintenance, the Town should join with Dr. Wadhwaniin obtaining the necessary approvals to construct a more permanent solution which addresses the issues and would minimize the Town's long term maintenance obligations. In addition to our clients' concerns about the substance of the Town's proposed maintenance of this artificial channel, we have identified several issues with the Town's processes, as identified below. 1. Back rg-ound Approximately 13 years ago, Dr. Wadhwani purchased the property at 26170 W. Fremont ("Property") and subsequently constructed a home. The Property has an approximately 200 foot east -west frontage along West Fremont and extends south from West Fremont about 550 feet. The watercourse in question, which is part of the Barron Creek watershed, enters his Property from a culvert near the southeast corner of the Property, flows westward along the south side, turning north to run along the west boundary of the Property, until it enters another culvert at West Fremont on the northwest corner of the Property. The watercourse flows in what is essentially a man made, rip -rap -lined ditch that was constructed approximately 12 years ago. 301258149.1 CARMEL VALLEY/DEL MAR • LOS ANGELES . RANCHO SANTA FE • SAN DIEGO • SAN FRANCISCO LucE FORWARD ATTORNEYS A7 LAW - FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP James Abraham, Chair Planning Commission June 2, 2011 Page 2 As stated in the Initial Study, the watercourse has been claimed as being within the jurisdiction of the US Army Corps of Engineers ("ACE") and the California Department of Fish and Game, and is also subject to regulation by the Regional Water Quality Control Board ("RWQCB'�. However, the current artificial watercourse to our understanding was constructed without any oversight or review by ACE or the RWQCB. 2. Discussion A. The Maintenance Plan Is Deficient And Town Should Join Dr. Wadhwani In Pursuing A Better Approach. According to the Initial Study/proposed Negative Declaration, the Town is proposing an "annual maintenance" project for a segment of `Barron Creek" which runs along the west and south sides of the Property. More specifically, the proposal is to remove "up to" 19 willow trees growing in the channel, to remove other non-native invasive vegetation (weeds) growing in the channel, and to plant willow pole cutting along the bank as "mitigation" for removal of the existing willow trees in the channel. In connection with the removal of the willow trees, a temporary cofferdam is to be installed. The proposed maintenance, including removal of weeds and willows, might very temporarily improve water flow in the channel. However, as explained below, it does not represent a long term solution, and might even hamper the Town from pursuing a better solution. Moreover, as is also explained below, there is an alternative solution which we are confidant would address the long term issues created by the existing drainage configuration, in a way which would not only protect nearby properties from flooding but would also reduce the Town's long term maintenance costs. We believe that, with Town support, this alternative plan could be approved by the other agencies with jurisdiction. Any discussion of what to do with this drainage channel must begin with a recognition of a fact that the Negative Declaration completely ignores: the drainage channel in question is not a natural creek channel in any respect. The Property at 26170 W. Fremont was originally an apricot orchard with drainage flows from the La Paloma culvert flowing overland from the southeast corner to the northwest corner of the Property, and then flowing into the W. Fremont Road culvert near the northwest corner of the Property. In approximately 2000, the existing artificial drainage channel was constructed around the southern and western perimeters of the Property. 301258149.1 LucE FoRwARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARO, HAMILTON & SCRIPPS LLP James Abraham, Chair Planning Commission June 2, 2011 Page 3 The current configuration of the drainage ditch presents a number of significant environmental problems: 1. As constructed, the channel rip rap does not promote a significant beneficial riparian habitat. 2. Shallow constructed slopes combined with rip rap promote stagnant pools that breed mosquitoes. 3. Rip rap makes it difficult for native flora to become established. 4. Geotextile fabric layer below the rip rap impedes any significant rooting of most riparian flora. 5. Localized flooding can occur at the culvert of West Fremont Road where it can most endanger homes and travel along Fremont Road. Moreover, the current configuration of the drainage channel presents significant issues with respect to long term operation and maintenance: 1. The existing channel is currently accessible only by a narrow footpath on Dr. Wadhwani's Property, making ongoing maintenance operations along 700 feet of channel problematic. 2. With the proposed channel maintenance program, the Town would be obligated to continue to spend scarce resources on a stretch of man made channel, that has little or no environmental value. 3. Ongoing maintenance as described in the Town's proposal would do little to curb the problem of "root bulking" whereby the flow line of the channel is raised higher than its design flow line and so diminishes the carrying capacity of the channel. There is a better way to address the problems created by the existing deficient drainage channel. BKF, the experienced engineering firm retained by Dr. Wadhwani, has developed a plan by which the channel on the west side of the Property would be placed in a culvert. This would provide many advantages over the current conditions: 301258149.1 LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP James Abraham, Chair Planning Commission June 2, 2011 Page 4 1. A culvert along the west side of the Property would enable construction of a headwall that would reduce the risk of overland flooding by allowing any excess flows (beyond the culvert's capacity) to temporarily pond at the south stretch of the channel, away from existing development and W. Fremont Road. 2. Utilizing a culvert along the west side of the Property would provide a pathway for improved Town access to facilitate maintaining the remaining open channel at the south end of the Property. 3. Once the culvert is installed, the Town would no longer be required to continue to spend its scarce funds on ongoing vegetation removal for this stretch. 4. As documented in the report by Live Oak Associates, the stretch of drainage channel on the west side of the Property provides minimal, if any, biological benefits. Any minimal impacts from placing this portion of the manmade drainage channel in a properly engineered culvert could readily be mitigated by improvements elsewhere on the Property, or off site nearby if required by the reviewing agencies. While culverting the drainage on the west side of the Property would incur one time construction costs, Dr. Wadhwani is prepared to fund that work as well as the engineering and other costs to obtain any necessary approvals form the RWQCB and CDFG. He is willing to make this commitment because the current situation poses a threat to his Property, from both potential flooding and potential disease vectors (mosquitoes) that may breed in improperly ponded water in the current problematic drainage channel. B. The Process For Consideration Of The Maintenance Plan Is Flawed. Although Dr. Wadhwani had previously expressed concerns about the condition of the drainage channel on his Property, and had proposed that all or part of the drainage channel be placed in a culvert, he was neither consulted nor advised regarding the recent biological study or the Town's proposed maintenance. The Town's lack of communication with him on this issue is somewhat disturbing. Dr. Wadhwani received notice of the June 2, 2011 hearing on approximately May 23. It is unclear exactly when the Initial Study/Negative Declaration was released. According to the staff memo posted on Tuesday, May 31, the plan is to finalize the Negative Declaration on June 16. We are currently reviewing whether the Negative Declaration was properly noticed. 301258149.1 LvcE FoRwARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP James Abraham, Chair Planning Commission June 2, 2011 Page 5 The agenda for the June 2 hearing lists as item 3.3 "Initial Study and Negative Declaration for the Barron Creek Restoration/Maintenance Project," which indicates that they only action will concern the Initial Study and Negative Declaration. However, the staff memo attached to the agenda states that in addition to review of the Negative Declaration, the Planning Commission is being asked to make recommendations not just on the Initial Study and Negative Declaration, but also on the maintenance project itself. Since action on the maintenance plan was not specifically noted on the agenda, we have some questions as to whether a recommendation on the maintenance plan was properly noticed/agendized. Therefore, we would urge the Commission not to take any action on the proposed maintenance project itself on June 2. Moreover, since the CEQA mandated review period for the Negative Declaration apparently runs until June 16, we question the appropriateness of the Commission making any recommendation on the Negative Declaration at this time. Conclusion As explained above, the proposed "restoration and maintenance" project for the artificial drainage channel that is considered part of Barron Creek is at best a stop -gap measure that will not effectively address the problems with the existing drainage channel at 26170 West Fremont. Dr. Wadhwani's engineers have developed a well thought out plan to place the drainage channel on the west side of the Property in a culvert, which will substantially alleviate the existing issues. It will also result in a long term reduction in the Town's maintenance costs for this area. We urge the Commission not to take any action either to recommend approval of the Negative Declaration or the maintenance project itself. Deferring action will provide an opportunity for Dr. Wadhwani's team to meet with Town staff, and to develop a modified proposal for the Town's consideration. We look forward to working with the Town both to refine Dr. Wadhwani's culvert concept and also to assist the Town in obtaining any necessary regulatory approvals for such a culvert. Please contact us if you have any questions. Very trul s, Steve . 'nso / of LUCE, FORWARD, HAMILTON & SCRIPPS LLP cc: Dr. Romesh Wadhwani Eric Biland, BKF Richard, Chiu, Jr. PE, City Engineer Debbie Pedro, AICP, Planning Director 301258149.1