DATE: March 5, 2024
TO: Board of Supervisors
SUBMITTED BY: Steven E. White, Director
Department of Public Works and Planning
SUBJECT: Appeal Planning Commission’s approval of Unclassified Conditional Use Permit No. 3709, Variance Application No. 4112, and Certification of Environmental Report No. 8077 (Appellant: Advocates of The Environment; Applicant: OPA Pistachio)
RECOMMENDED ACTION(S):
TITLE
1. Consider Appeal of the Planning Commission’s approval of Unclassified Conditional Use Permit No. 3709 and Variance Application No. 4112 proposing to allow a pistachio processing facility including irrigation of approximately 3,740 acres of agricultural land with process water, and waiver of height limitations for specific structures to permit 48 silos at 50-feet and the two proposed huller buildings at 42.5-feet (maximum 35-foot allowed) in the AE-20 (Exclusive Agricultural, 20-acre minimum parcel size) Zone District.
2. If the Appeal is denied and the Planning Commission’s approval of Unclassified Conditional Use Permit No. 3709 and Variance Application No. 4112 is upheld, the Board should Adopt the proposed Resolution consisting of the following actions:
a. Find that the Final EIR (FEIR) was presented to, reviewed, and considered by the Board; and
b. Find that the decision to certify the FEIR reflects the Board’s independent judgement; and
c. Adopt the California Environmental Quality Act (CEQA) Findings of Fact and Statement of Overriding Considerations, approve the Mitigation Monitoring and Reporting Program and certify the Environmental Impact Report prepared for the proposed project, and EIR No. 8077 prepared for the Stamoules Pistachio Processing Facility; and
d. Direct staff to complete and file a Notice of Determination in compliance with State law; and
e. Make the required Findings specified in Fresno County Zoning Ordinance, Section 873(F) and 877(A) to uphold Unclassified Conditional Use Permit No. 3709 and Variance Application No. 4112; and
f. Approve Unclassified Conditional Use Permit No. 3709 and Variance Application No. 4112, with mitigation measures, conditions of approval and project notes.
The project site is proposed on a 98-acre portion of a 316.22-acre parcel, located at the northwest corner of W. Muscat Avenue and S. Newcomb Avenues approximately 9.7 miles south of the City of Firebaugh (APN 019-150-64S). The 3,760 acres of agricultural land to receive process water is located approximately two miles to the northeast of the project site at its closest point.
REPORT
This item comes before your Board on appeal of the Planning Commission’s approval of the subject applications (6 to 2 with one Commission vacancy) at its January 25, 2024, hearing. Staff notes that the Zoning Ordinance requires your Board determine, independent from the Planning Commission, whether the Unclassified Conditional Use Permit Application (UCUP) and Variance Application (VA) should be approved, approved with the stated conditions, or denied. A copy of the Planning Commission’s action is included in Attachment A which includes the Mitigation Monitoring and Reporting Program, Conditions of Approval, and Project Notes as approved by the Planning Commission. The Planning Commission Staff Report is included as Attachment B. This item pertains to a location in District 1.
ALTERNATIVE ACTION(S):
If your Board is unable to make the required findings for granting UCUP No. 3709 and VA No. 4112 and overturn the Planning Commission’s approval, you may make a motion to approve the appeal, citing in the motion how the required findings cannot be made, and deny UCUP No. 3709 and VA No. 4112.
FISCAL IMPACT:
There is no Net County Cost associated with the recommended action. Pursuant to the County’s Master Schedule of Fees, the Applicant/Owner has paid $10,208.00 to the County in land use processing fees for the subject land use applications and $192,940.00 associated with preparation of EIR No. 8077. The Appellant paid $508 to appeal the Commission’s decision.
DISCUSSION:
The project proposes to allow a pistachio processing facility comprised of a four-phase project consisting of two drive-over dumping pits, two pre-cleaning areas, two 22,040 square-foot huller buildings at 42.5 feet in height, 40 dryers, 48 silos with a height of 50 feet and a 155,169 square-foot processing building in the AE-20 Zone District. The project’s height variance would permit the 48 proposed silos to be 50-feet in height and the two proposed huller buildings to be 42.5-feet in height (maximum 35-foot allowed) in the AE-20 Zone District. The proposal also includes a request to allow process water from the proposed facility to be conveyed via existing subsurface piping to irrigate approximately 3,760 acres of agricultural land owned by the owner. The DEIR and FEIR are included as Exhibits 8 and 10 of Attachment B.
Pursuant to Zoning Ordinance Section 837(F), to approve a CUP, the following Findings must be made:
1. That the site of the proposed use is adequate in size and shape to accommodate said use and all yards, spaces, walls and fences, parking, loading, landscaping, and other features required by this Division, to adjust said use with land and uses in the neighborhood.
2. That the site for the proposed use relates to streets and highways adequate in width and pavement type to carry the quantity and kind of traffic generated by the proposed use.
3. That the proposed use will have no adverse effect on abutting property and surrounding neighborhood or the permitted use thereof.
4. That the proposed development is consistent with the General Plan.
5. That the conditions stated in the resolution are deemed necessary to protect the public health, safety, and general welfare.
Pursuant to Zoning Ordinance Section 877(A), to approve a Variance, the following Findings must be made:
1. There are exceptional or extraordinary circumstances or conditions applicable to the property involved which do not apply generally to other property in the vicinity having the identical zoning classification.
2. Such Variance is necessary for the preservation and enjoyment of a substantial property right of the applicant, which right is possessed by other property owners under like conditions in the vicinity having the identical zoning classification.
3. The granting of a Variance will not be materially detrimental to the public welfare or injurious to property and improvement in the vicinity in which the property is located.
4. The granting of such a Variance will not be contrary to the objectives of the General Plan.
At the January 25, 2024, Planning Commission hearing, the property owner, applicant’s representative, and two additional individuals provided testimony in support of the project stating the project would reduce truck traffic currently going to an existing pistachio processing facility in Firebaugh, would increase the pistachio processing capacity in Fresno County, would increase the project applicant’s industry competitiveness, provide jobs, and help improve the local economy. Three members of the public provided testimony in opposition to the project expressing concern that the project would interfere with traffic safety along W. Panoche Road and the S. Newcomb Avenue intersection due to existing conditions in the area. Conditions cited included that the project will narrow road widths, create high traffic volumes, and cause poor turning visibility. Those in opposition also expressed concern with the project site entrance which is proposed to be off Panoche Road. The applicant’s representative emphasized the traffic issues were adequately addressed in the Environmental Impact Report as per the California Department of Transportation (Caltrans) and stated that the applicant was willing to work with the neighboring property owner to address site entrance issue.
After receiving staff’s presentation and considering public testimony in support of and in opposition to the subject application, the Planning Commission made a motion to approve the project on a vote of six to two. On January 29, 2024, an appeal was filed on the Planning Commission’s approval. The appeal stated the Draft Environmental Impact Report (DEIR) violates CEQA as its infeasibility finding lacks substantial evidence, it is feasible to adopt mitigation, the project’s Greenhouse Gas (GHG) impacts must be fully mitigated, and operations emissions reductions offsets are feasible. The appellant had previously provided a letter to staff, which was included as an exhibit to the Planning Staff Report (pages 13 through 16 of Exhibit 11, Attachment B). The appellant did not attend the Planning Commission Hearing. A copy of the appeal is included as Attachment C. Staff has also included late correspondence distributed to the Planning Commission at its January 25, 2024 hearing as Attachment E.
If your Board is able to make the required Findings for granting UCUP No. 3709 and VA No. 4112, it would be appropriate to make a motion to adopt the proposed resolution on file with the Clerk, which adopts Notice of Determination (Attachment D) prepared for the project based on Environmental Impact Report No. 8077, and uphold the Planning Commission’s approval by stating the basis of approved being the ability to make the required Findings and approving UCUP No. 3709 and VA No. 4112 subject to the mitigation measures, conditions of approval, and project notes, included as Attachment A, Exhibit C.
Staff recommends that if your Board approves the request, the following indemnification condition also be included in your motion:
The Applicant shall enter into an agreement indemnifying the County for all legal costs associated with its approval of EIR No. 8077, CUP No. 3709, VA No. 4112 and provide security in an amount determined by the County for any such legal costs incurred. The agreement and payment of security shall be due unless the litigation period has expired, in which case the requirements for the indemnification agreement and security shall be considered null and void.
If your Board is unable to make the required Findings for granting approval of CUP No. 3709 and VA 4112, it would be appropriate to make a motion stating the reasons the Findings cannot be made and uphold the appeal, thereby overturning the Planning Commission’s approval decision of the Conditional Use Permit and Variance.
ATTACHMENTS INCLUDED AND/OR ON FILE:
Attachments A - E
On file with Clerk - Attachment B, Exhibits 8 and 9
On file with Clerk - Resolution
CAO ANALYST:
Salvador Espino