Swainson Hawk Incident Illustrates the Futility of Relying on Developer Agreements –
Swainson Hawk Incident Illustrates the Futility of Relying on Developer Agreements – The problem here is that while developer agreements are binding, they are only binding between the council and the developer. There is no assurance to the neighbors that conditions will be adhered to. Moreover, as one neighbor raised this past Tuesday, by going ahead with the project before the council even saw concrete proposals for the townhomes, the council was effectively surrendering its leverage.
As City Attorney Harriet Steiner explained on Tuesday as the council formalized the agreement through approval of two consent items again by 3-2 votes:
“The development agreement set forth the conditions that the council approved in their motions at the last meeting regarding what would happen on parcel C and how that would work. The developer agreement is binding on the developer and on the city unless and until it’s amended. That would require a notice and hearing by the planning commission and the city council before it was amended.”
The Council has recourse if the developer does not adhere to the agreement, They can bring it up for a vote and according to Ms. Steiner change the zoning if the developer fails to comply. However, the neighbors have no recourse if the Council decides to change its mind. Councilmember Souza pointed out that he will be on the council for the next few years and intends to enforce the agreement.
Deborah Laird, one of the neighbors spoke during public comment and stated that the neighbors are concerned that granting the entitlements before the creekside option has been approved could effectively surrender its leverage to compel a developer to provide a design that meets the criteria that Councilmember Souza put forward at the March 16 hearing.
She objected to putting forward this item before the other details were worked out. They are particularly concerned that council will lose leverage as it attempts to gain the open space and address other concerns neighbors have raised. She asked that this be part of the development agreement, enforced, and not negotiated away.
Tim Ranstrom also spoke and told the council that his concern “is that with the council’s direction of measuring the creek buffer at the top of the bank it means that the lots have to adjusted for at least part of the parcel which doesn’t leave enough room for backyards or front yards with enough room for parking in the existing space. Therefore all of those lot lines are going to have to move.”
His concern was that by locking into place the other parts of the project, we would constrain our ability to reconfigure this project as needed.
Councilmember Lamar Heystek articulated his problems with the current situation:
“Two weeks I warned the council that it would be inadvisable to take action on something that we really couldn’t enforce. The development agreement may be changed at any point… The council decided to approve the project without any real assurance that that is going to happen. The development agreement can be changed at any time. My hope is that the council if it wished to have acted on the Willowbank Park project that the maps and all the entitlements and all of the specifications related to parcel C would be before the council at the same time. However… there really isn’t any leverage to enforce that if the council wished to change the development agreement. So there really isn’t any promise that any one of us, especially I, can make to that concept.”
Sue Greenwald also supported postponing the action until the details can be worked out:
“As you heard, the neighbors all agree that we should have development here, that that’s okay. That seems to be a consensus that that’s acceptable. However, I haven’t been really happy with the last couple of subdivisions, infill projects, I felt that we’ve lost really the one thing that’s distinguishing about Davis and the open space department. Particularly in this case we have that asset, Putah Creek, that we have actually gone out and spent tax dollars to buy riparian land around Putah Creek. And here we could do so much more than we’ve done. I agree with Mr. Ranstrom that if we buy the other two parts of the project, we constrain our ability to reconfigure this project.”
She liked the townhouses that were presented, but she thinks the whole project needs to be shifted from the creek to protect the buffer and the creek area.
As this turns out, this is not simply an academic exercise. As one of the neighbors pointed out to me, the city is allowing the developer to start construction in spite of the mitigated measures required in the development agreement, as there is an active Swainson’s hawk nest about 800 feet from the area they are grading.
As the development agreement currently reads, “Mitigated Negative Declaration #5-08 has been prepared for this project and declares that impacts of the project will be less than significant with the mitigation measures adopted…” Moreover, “The Planned Development District is subject to the mitigation measures in the environmental negative declaration prepared for this project.”
These required mitigation measures include mitigating for the loss of Swainson’s Hawk Nesting Habitat.
The section on that mitigation is lengthy, but necessary to show the potential impact of the development on the Swainson Hawk and the measures required of the developers that they have agreed to:
Mitigation Measure 2. Loss of Swainson’s Hawk Nesting Habitat Swainson’s hawk nesting has historically occurred near the site along the north Putah Creek channel and the El Macero Golf Course, and these areas may support nesting in the future. Swainson’s hawks are known to nest within one-quarter mile of the proposed project. Implementation of the proposed project could result in the loss of nesting habitat or lead to the failure of active nests, which would be considered potentially significant. The following mitigation measure would be necessary to reduce the adverse effects to Swainson’s hawk nesting habitat to a less than significant level.
2a) If avoidance of project activity (grading or new construction) during the breeding season is not feasible, a qualified biologist shall conduct a pre-construction survey to determine the nesting status of Swainson’s hawk on site and within one-quarter mile of the project site. This shall be a condition of any grading permit. The survey shall be conducted no less than 14 days and no more than 20 days before the beginning of construction (including equipment and materials staging) between the months of April and early September. If no active nests are found during the survey, no further mitigation for nesting Swainson’s hawk shall be required.
2b) If during the focused survey mitigation for nesting Swainson’s hawk nests are identified onsite or within one-quarter mile of the proposed, no construction shall be allowed until a qualified biologist determines that the young have fledged (able to forage independently from adults), or that the nest has failed and becomes inactive. Any trees containing nests that must be removed as a result of the proposed project shall only be removed during the non-breeding season (September to March). Additional mitigation measures may be necessary in this instance as dictated by the California Department of Fish and Game.
In an email from Mike Webb, a Principle Planner for the City of Davis, it becomes clear that these measures may not be adhered to. The city and developer rely on their own biologist to make a determination as to whether the development is in complaince with the Swainson’s hawk mitigation measures.
Writes Mr. Webb:
“The City’s Wildlife Biologist has conducted a pre-construction survey and determined that at least one pair of hawks are preparing a nesting site within one-quarter mile of the project site. In his professional opinion he believes that the nesting site may become the active nest for that pair, but that there is no evidence of eggs or typical nesting behavior (such as the female staying at the nest on a consistent basis or both hawks displaying defensive behavior) to indicate that this nest site is their territory.”
So notice right here that the mitigation measure requires that “if during the focused survey mitigation for nesting Swainson’s hawk nests are identified onsite or within one-quarter mile of the proposed, no construction shall be allowed until a qualified biologist determines that the young have fledged (able to forage independently from adults), or that the nest has failed and becomes inactive.”
However, the city and the developer have skirted that requirement by suggesting “there is no evidence of eggs or typical nesting behavior.”
Mr. Webb continues explaining that preliminary construction activity has begun and then explained, “The hawk activity has continued even with this activity.”
Mr. Webb continues:
“The developer has retained the services of Ed Whistler (a well regarded and highly qualified local biologist), who has been on site and in the area monitoring the site activities and the hawks since Tuesday, March 30th. Mr. Whistler’s assessment of the situation is consistent with that of the City Biologist. Both biologists believe that the activities taking place on the site to date do not conflict with the Mitigation Measures nor do they appear to be causing any threat to the nesting activities of the Swainson’s hawk. On the contrary, both biologists believe that the site activities currently take place may actually benefit the hawks, since the site disturbance is encouraging increased activity of small prey that are the primary food source for the hawks.”
Read that last sentence again, “both biologists believe that the site activities currently take place may actually benefit the hawks.” So you have activity that is in clear violation of the developer agreement and they justify it by claiming that these activities are helping the hawks.
As the neighbor pointed out, “I find it very disturbing that the city can choose which mitigation measures they should follow, and which ones they can redefine on the fly.”
Perhaps this is a good example as to why neither the neighbors nor Mr. Heystek or Ms. Greenwald are simply willing to take the developer agreement as an iron-clad agreement. No wonder no one trusts the developer agreement or the promises of the council majority. The only recourse for the neighbors here is to either appeal to council and hope that they take the rare step of overruling staff or to file an expensive and time-consuming lawsuit.
—David M. Greenwald reportin
…..sometimes, “direct action” needs to be considered when all other legitimate remedies are blocked.
Another concern highlighted by this posting – citizens’ inability to trust that development agreements with have the teeth to compel compliance by the parties to them – is one of precedent.
Infill projects such as Willowbank Park will be the engine of housing expansion in Davis for the forseeable future. There has been a precedent set by this project of 1) majority Council project approval in a two-stage process, which granted all requested zoning and GP amendment entitlements *before* the complete project was even seen (much less reviewed formally) by commissions and the Council, and 2) Staff’s puzzling hesitance to require implementation of mitigation measures as specified in the newly approved Development Agreement.
Neighbors are troubled by this pattern and concerned that this situation will play out over again with future infill projects. Other infill locations may very well pose similar challenges relating to wildlife and habitat prtection; if standards for mitigation are already in place, and a project’s qualification for these standards has been shown, why not implement them?
Swainson’s Hawk presence on a development site is a BIG deal. If this were a larger peripheral development site there would be much study and consultation regarding mitigation, including 1:1 land set-asides for habitat protection. I guess because this is a small infill site the City seems to look the other way. If I were a neighbor of a future infill site (check out the HESC rankings to see who’s in the crosshairs next) I’d be mobilizing my neighbors to lay the groundwork for fights over issues like this – because you can’t tell me this is the only site in Davis that has sensitive habitat and wildlife. Wonder how these issues played out for the Chiles Ranch neighbors?
Hope Stephen Souza has a long memory for the promises he makes from the Council dais!
Wow , Unbelievable. you people that are living in the same area think your homes did not have a impact on the Swainson’s Hawk. In lays the problem with America! Elitism. It is OK for me to do it. But not you. Pathetic. I think you should spend more time with your nose in our constitution and understanding freedom and America then in other peoples business. I for one see several homes within 1/4 mile of nesting hawks. I think you starting your cars and driving down the streets, mowing your lawns, your kids running around screaming may be having a huge impact on the hawks also. I feel you people living within 1/4 mile of the nests should move out of your homes for 4 months while they nest. Seriously. OHH wait, Only what you think about the situation is what matters. I personally think you people crying don’t give a damn about the hawk, I think it is something else. “Not in my neighborhood”