HomeMy WebLinkAbout4.05 Tr7075 Final MapSUBJECT:
CITY CLERK FILE #600-60
AGE N DA STATE M E NT
CITY COUNCIL MEETING DATE: April 3t 2001
Approval of Final Tract Map - Tract 7075, (GHC Investments, LLC)
Report Prepared by: Lee S. Thompson, Public Works Director
EXHIBITS ATTACHED:
1)
2)
3)
4)
5)
6)
7)
Resolution Approving Final Tract Map 7075
Resolution Approving Parkland Dedication In Lieu Fees ·
Letter dated October 3, 2000, from David E. Moser, Attorney
for Greenbriar Homes, including Resolution 83-3 of the
California Regional Water Quality Control Board (RWQCB)
Letter dated March 15, 2001, from David E. Moser to Ms.
Sherryl Freeman, Attomey for the RWQCB
Letter dated February 26, 2001, from the City to Ms. Sherryl
Freeman, Attorney for the RWQCB
Reduced copy of Final Tract Map 7075
Tract. Developer Agreement
RECOMMENDATION' ' Adopt resolution approving Final Tract Map 7075 and resolution
, ~cepting Parkland In Lieu Dedication Fee for use at Emerald
Glen Park and/or Dublin Ranch Phase I Neighborhood Park
FINANCIAL STATEMENT:
The developer is providing performance and labor and materials
bonds to guarantee construction of the street, grading, and utility
improvements and will pay the cost of construction inspection.
Once the improvements have been constructed and accepted, the
City will incur maintenance costs for the City-maintained
improvements.
DESCRIPTION: Final Tract Map 7075 is located in Eastern Dublin bounded by
County of Alameda property on the west, Tract 6979 on the south, East Bay Regional Park District
on the north, and Tassajara Road on the east. The development consists of two phases: 1 )Greenbriar
Development, Phase I, comprised of 126 single-family and clustered units; and 2) lots 127 through 131,
designated for the future development oft he remaining 319-dwelling units of the project.
Final Tract Map 7075 divides the Parcel into single-family and clustered residential units and includes
dedication of the streets within the Greenbriar Development.
g:\develop\greenbriar\agst7075
COPIES TO:
GHC Investments, LLC.
ITEM NO.
The improvement plans and the Final Tract Map have been reviewed and found to be in conformance with
the Tentative Map and Conditions of Approval. All of the required fees, bonds, insurance certificates, and
signed Tract Developer Agreement have been submitted.
The Regional Water Quality Board has requested that the Developer submit a report of waste discharge
and obtain waste discharge requirements. However, Staff is satisfied that the Developer's plans are in
conformance with the City's NPDES permit issued by the Regional Water Quality Control Board (Order
97-030, NPDES Permit No. CAS002983 1) and other applicable RWQCB water quality controls. The
developer has filed the required Notice of Intent in order to qualify for the State Water Resources Control
'Board's stormwater general permit for construction sites. In response to concems raised by the Regional
Board during the project's CEQA review, and to comply with the County-Wide Stormwater Management
Plan, the Phase I project approval includes clustering and reduced private street and sidewalk surfaces in
order to minimize both land disturbance and impervious surfaces.' In addition to project site planning, the
proposed outfall structure has been designed to control stormwater and to control erosion at the outfall
site.
Staff also notes that the developer has obtained a Section 1603 Streambed Alteration Permit from the
State Department of Fish and Game. Even if the development were subject to the stormwater report of
waste discharge permit application requirement, issuance of the Section 1603 permit qualifies the project
for a waiver from the requirement under Regional Board Resolution 83-3. To date, Staff has received
messages from the State' s legal counsel advising that this waiver for stormwater discharge permit
requirements may be terminated for specific projects. However, despite several requests, Staff has
received neither a written opinion from the State' s legal counsel, nor any other evidence that the RWQCB
has terminated the established waiver for this project. Based on the evidence before the City, Staff is
satisfied that the project construction and operation will comply with the City' s stormwater control
requirements, including the City' s NPDES permit and the County-Wide Stormwater Management Plan
and all RWQCB requirements.
Staff recommends that the City Council adopt the resolution approving Final Tract Map 7075 and the
resolution accepting the Parkland In Lieu Dedication Fee for use at Emerald Glen Park and/or Dublin
Ranch I Neighborhood Park.
-2-
RESOLUTION NO. - O1
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING FINAL MAP FOR TRACT 7075
(GREENBRIAR LAND COMPANY)
WHEREAS, the Final Map for Tract No. 7075, in the incorporated territory of the City of Dublin,
State of California, has been presented to this City Council for approval, all in accordance with the
provisions of the Subdivision Map Act of the State of California and the City of Dublin Municipal Code; and
WHEREAS, the Developer, G.H.C. Investments, LLC, has executed and filed with the City of Dublin
a contract to improve Tract No. 7075 in accordance with the Final Map of said Tract No. 7075, the Tract
improvement plans and specifications attached thereto; and
WHEREAS, said contract is secured by bonds in the amount of $3,967,690 for site improvements and
Tassajara Road improvements, conditioned upon faithful performance of said contract; and
WHEREAS, said contract is secured by bonds in the amount of $1,983,845 for site improvements for
the benefit of laborers and materials upon the work and improvements, conditioned upon payment for labor
performed or material furnished under the terms of said contract;
NOW, THEREFORE, BE IT RESOLVED that said contract and bonds be and they are hereby
approved.
BE IT FURTHER RESOLVED that the Final Map Of Tract 7075 substantially complies with the
previously approved tentative map. Particularly with respect to the Regional Water Quality Control Board
request that the Developer file a report of waste discharge under Water Code Section 13260 et seq., the City
Council finds that any requirement for such a filing is inapplicable, as follows:
1. Developer has filed the required Notice of intent and is covered by the Statewide General Permit
for Stormwater Discharges Associated with Construction Activity.
2. Developer has obtained a Section 1603 Streambed Alteration Permit from the State Department of
Fish and Game.
3. Regional Water Quality Control Board Resolution 83-3 established a waiver from stormwater
waste discharge requirements for minor stream channel alteration projects which are covered by a Section
1603 Streambed Alteration Permit. There is no evidence before the City that the waiver has been terminated,
either generally or for Developer.
4. Staff has reviewed the Final Map and subdivision improvement plans and is satisfied that the
project construction and operation will comply with RWQCB and water quality requirements, including the
City's NPDES permit (No. CAS002983 1) and the County-Wide Stormwater Management Plan.
BE IT FURTHER RESOLVED that the Final Map of Tract 7075 be and the same is hereby
approved; and that rights to areas marked as the following Lanes: Maymont, and Somerset; the area marked
as the following Drive: Creekview; the area marked as the following road: Tassajara; and the area marked
as the following Court: Maymont; and those strips of land marked as Public Service Easement (P.S.E.),
Emergency Vehicle Access Easement (E.V.A.E.), Storm Drain Easement (S.D.E.), and Open Space and Trail
Easement as offered for dedication to public use in conformity with the terms of dedication be, and they are
hereby accepted and subject to improvement; and that the Clerk of this City Council be and is hereby
directed to transmit said Map to the County Recorder for filing.
PASSED, APPROVED AND ADOPTED this 3rd day of April, 2001.
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Mayor
City Clerk
g:\develop\greenbriar\reso7075
2
RESOLUTION NO. - 01
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
ACCEPTANCE OF PARKLAND DEDICATION
IN LIEU FEES FOR FINAL TRACT MAP 7075
WHEREAS, pursuant to Section 8-7.1 of the Subdivision Ordinance 1-91, as adopted by the City of
Dublin, and City of Dublin Municipal Code 9.28.020, each residential use shall as a condition to the approval of
Final Subdivision Map, dedicate or reserve lands, pay fees in lieu thereof, or a combination of both, for park
and/or recreational purposes; and
WHEREAS, in its action on the Tentative Map of the subject Tract, the Planning Commission of the City
of Dublin did determine in accordance with Section 8-7.1 of the aforesaid Subdivision Ordinance that a fee in lieu
of land dedication for park and recreational facilities is to be paid, and said fee to be used for the development of
park and recreational facilities within a period of five years from the date of adoption of this resolution to serve the
residents of the subject tract; and
WHEREAS, the Developer has paid to the City a remittance amount as prescribed in accordance with
Section 8-7.6 of aforesaid Subdivision Ordinance 1-91; furnished by the Tract Developer and identified as follows:
Tract: 7075
Subdivider: G.H.C. Investments, LLC
Amount: $ 570,024
The proposed In Lieu Fee is to be used for acquisition and/or construction of Emerald Glen Park and/or
Dublin Ranch Phase I Neighborhood Park.
NOW, THEREFORE, BE IT RESOLVED that the aforesaid remittance is hereby accepted as performance
of said subdivider's obligation under Section 8-7.1 et seq. of the aforesaid Subdivision Ordinance 97-1.
PASSED, APPROVED AND ADOPTED this 3rd day of April, 2001.
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Mayor
City Clerk
g:develop\greenbriar\resopark.doc
IN~CCUTCHEN, DOYLE, BROWN & ENERSEN, LLP
Privileged and Confidential:
Attorney/Client Communication
VIA FACSIMILE AND U.S. MAIL
Date: October 3, 2000
From:
Re:
Tim Quinn, Greenbriar Homes
John Zentner, Zentner and Zentner
David E. Moser
Yarra Yarra - Report of Waste Discharge Issue
Direct: (415) 393-204t
dmoser@mdbe.com
As we discussed last week, this memo summarizes my findings regarding the
Report of Waste Discharge CROWD") issued raised by the Regional' Water Quality Control
Board CRWQCB").
I. RWQCB LETTERS
The RWQCB has sent m,o letters. The first letter (November, 1999) provided
comments to the City on the CEQA document. The second letter (September 20, 2000), directed
to Greenbriar, reiterated a portion of the CEQA comment letter.
In the first letter, the RWQCB identified a number of concerns: impacts to
xvetlands, riparian waters and species; impacts to red-legged frogs; the need to file a Notice of
Intent CNOI,) to qualify for the ston~water general permit for construction sites larger than five
acres; stormwater design measures and treatment controls pursuant to the City's stormwater
proyam; alleged inadequacy of the rock apron for 1!he outfalls; potential flow alteration impacts
of stormwater discharge; potential for erosion impacts to occur as a result of locating outfalls
above the ordinary high water mark; submittal of Report of Waste Discharge CROWD")
required if th6 outfalls do not. in fact require a Section 404 permit from the Corps (and therefore
do not require a Section 40t water quality certification from the RWQCB).
In the second letter, the RWQCB made a general r&fafence to project concerns
expressed by other agencies, and reiterated its demand that Greenbriar file a ROWD if a 404
permit and 401 certification ~vill not be obtained.
ATTORNEYS AT
LAW
Three Embarcadero Center San Fran~isc0 Pala All0
San Francisco, California 94111-4067 Los Angeles Taipei
Tel. (415} 393-2000 Fax (415
www.mcculchen.corn
October 3, 2000
· Page 2
II. DESCRIPTION OF THE ROWD PROCESS
The Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.)
established the water pollution control program for the state. It was adopted in 1969, prior to
passage of the federal Clean Water Act. It is implemented by the State Water Resources Control
Board CSWRCB"), and the individual RWQCB's. A copy of the relevant provisions of this long
statute are enclosed.
Section 13260 is the provision which requires a "discharger" of"waste" to file a
ROxArl). It says:
(a) All of the following persons shall file with the
appropriate regional 'board a report of the discharge, containing the
information which may be required by the regional board:
(1) Any person discharging waste, or
proposing to discharge waste, within any region that could affect
the quality of the waters of the state, other than into a community
sewer system.
The Act does not define the term "discharge." Section 13050 defines the terms
"waste" and "waters of the state" as follows:
"Waste" includes sewage and any and all other waste substances,
liquid, solid, gaseous, or radioactive, associated with human
habitation, or of human or animal origin, or from any producing,
manufacturing or processing operation, including waste placed
within containers of whatever nature prior to, and for purposes of,
disposal.
"Waters of the state" means any surface water or groundwater,
including saline xvaters, within the boundary of the state.
Section 13261 makes it illegal to fail to file a Report of Waste Discharge, or pay
an associated fee, %vhen so requested by a regional board."
Ifa ROW"D is filed, then Section !.3264 makes it illegal to initiate the new,
discharge of waste until (a) the RWQCB issues "waste discharge requirements" (this is a type of
permit), (b) the RWQCB waives the issuance of waste discharge requirements under Section
13269 (under that section, the RWQCB can also waive the requirement of filing a RO~rD), or (c)
t20 passes following the filing of the RO\VD.
October 3, 2000
Page 3
Ill.
POTENTIAL "DISCHARGES" FROM THE PROJECT, AND
ASSOCIATED PERMITTING REQUIREMENTS
It appears that the RWQCB is concerned about a number of potential discharges
which may be associated with the project. However, it is not clear exactly which discharge(s) the
RWQCB believes trigger the need to file a ROWD. These potential discharges, and the
associated permitting issues, are discussed below.
A. Stormwater Discharge Associated with Construction
Construction on the site could result in the discharge to the creek of waste in the
form of stormwater. However, this discharge is covered under the SWRCB's general permit for
stormwater discharges from construction sites larger than five acres. Greenbriar has apparently
qualified for coverage under this general permit by having already submitted the requisite Notice
of Intent. Under the terms of that general permit, all construction-related stormwater discharges
are covered. This includes construction of the outfall.
B. Post-Construction Discharge of Stormwater
into the creek.
This is consistent with the way municipal stormwater is usually regulated, and consistent with
the information Tim obtained from the City. The RWQCB expressed some concern in its 1999
letter about whether the City was complying with its municipal stormwater permit vis-i-vis this
project. It would be useful to brief the RWQCB staff on the changes made to the project, and
about the Stormceptor rectmology you intend to use.
Post-construction, the new residential community will be discharging storn~water
This appears to be covered by the Giiy of Dublin's municipal stormwater permit.
C. Filling of Waters of the State Without a 404 Permit
The remaining category of"discharge of waste" which the RWQCB appears to be
concerned about is the possible filling of"waters of the state" without a 404 Peruair and ~-01
Water Quality Certification. There are txvo locations where the RWQCB appears ~o believe this
could occur. First, in its 1999 letter the RWQCB makes reference to a pond and ephemeral creek
on the site. As we discussed last week, such features do not exist. Second is the construction of
the outfalls. However, as designed there apparently will be no filling of waters of the state in
co~mection with that work.
Even if the RWQCB disagrees with that conclusion regarding the outfail, it
appears they have already waived the requirement that Greenbriar obtain waste discharge
requirements. In t 983, the RWQCB adopted Resolution 83-3 "Waiving Waste Discharge
Requirements For Specific Types of Discharge" (copy attached). The Resolution recites that
UctoOer 3,
Page 4
Section 13269 authorizes the RWQCB to waive waste discharge requirements when it is not
against the public interest, then it lists a large number of discharges for which WDRs are in fact
waived. These include "minor stream channel alterations" when they are regulated by
Department of Fish and Game Section 1603 permits.
As a result, once DFG issues the pending 1603 permit, to the extent any WDRs
were necessary for the construction of the outfall they appear to have already been wi~ived by the
RWQCB consistent with the Porter-Cologne Act.
Ill. - NEXT STEPS
It appears that while the RWQCB continues to be concerned about the project, the
exact nature of their concern, and in particular the alleged source of their legal jurisdiction, is
very unclear. tn part the RWQCB staff may simply be unaware of tIi&' changes to the project
which occurred following submission of their 1999 comment letter. As we discussed, the two of
you will seek to meet with Keith Lichten of the RWQCB to go through each of their stated
concerns, and explain how they in fact have been addressed through modifications tO the project.
You should also seek to have him specifically identify what "discharge of waste" he believes
triggers the need for a ROWD. Ideally, following such a meeting the RWQCB would either
rescind their letter requiring the filing of a ROWD, or issue a waiver of such requirement
pursuant to Section 13269.
/{DSIONAL WAIER QUALITY CONTROL BOARD
SAN FRANCISCO..BAY REGION --
EESOLU~0N N0.
WAIVING WASTE DISCHARGE REQUI~
FOR SPECIF/C TYPES-OF DISCHARGE
Resolution 88-
i. ~HEREAS, Water Code Section 1~260(a) requ~.res that any person disch~rging
wastes or proposing to discb-rge wastes within the region, other than to a
community sewer system, that could affect the quality of the waters of the
state, sb~l ] file a report of waste disc .harge;
II. ~, the Regional Water Qu~!~ty ControlBoard, SanFrancisco Bay Region, ....
(hereinafterBoard),'has a statutory obligation to prescribe waste discharge
requirements except where a waiver is not against the public interest pursuant-"'
to CalifO~a Water Code Section 43269; and
III.
WRTMtEAS, waiving requirements for certain specific types of wast& discharge
is not against the public interest because it avoids ,m~ecessary expenditures
of Board resources; sand
iV. ~, many types of waste discharges have a-rel~tively'insignificant~dverse
%fleet on the waters of the state; and ,
VI.
~, ~any waste dischargers are willing to self-regulate their discharges
and thereby protect the waters of the state; and
~FERZAS, mauy waste' dischargers are effectively r'egulated by local government
or other state agencies; and
~FEREAS, state-of-the-art makes significant improvements in specific tees of
discharges unreasonable; and '-
WM~REAS, this Regional Board has determined that there are no State mandated
local costs under Section 2231 of the Revenue and Taxation Code as a result
o~ this resolution because such regulation is not an executive regulation by.
virtue of Section 2209 of the Revenue and Taxation Code; and
W~, this' Regional Board ba~ prepared a negative declaration in accordance
with ~he California Environmental Quality Act (Public Reso,urces Code, Sectfon
21000 et seq.) and the State guidelines, and the Board determines that there
w{]] be no substantial adverse cha~ge in the environment as a result of the
project; and
X. ~, the Board on April 20, q983, held a hearing in Osd~2and, California,
and considered ~]] evidence concerning this matter:
XI.
TFM~E~XIRE EE IT EESOLVED, that the California ~eEionalWater' Quality Control
Board, San Francisco Bay Region, waives waste discharge requirements for the
specific types of waste discharges shown on the attachment to this resolution
except for those dischargers for which waste discharEe requirements have been
adopted;
XIIi
HE IT FURTHER RESOLVED, that the Boards adopt~ the Negative Declaration
prepared for this project and directs the Executive Officer to file
s!l appropriate notices; and
PEso: ......
-
~T~hTATIVE PSSOLUTION ' ..
· of
.. ~WAI~ING iWASTE .DISCHARGE REQUIREMENTS
FOR SPECIFIC TYES OF DISCHARGE ':-:
Page 2
HE IT FURTMMR RESOLVED, 'that this action waiving waste discharge requirements
is conditions! and may be terminated for any t3~pe of discharge or any specific
discharger at any time.
I, FRED H. DE, Executive Officer, do hereby certify the foregoing is a
full, true and correct copy of a Resolution adopted by the California Regional
Water Quality Control Board, San. Francisco Bay Region, on April 20, 1983-
Attachment (_~ pages)
FREDH. DIERKER
Executive Officer
c~Ctt~ntC of c~ce~ ~d ~lch wt~ ~t
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A~nd~ ~ ~f ~s~ PI~, for
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~ump ~t ~ ~icd by eva~rati~ or ~;
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~r de~o~tmtcs t~t it ix nont~c,
~p ~a shall ~ ~tor~ to ~o~t~cttcn .
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p~t ~c~ted ~ ~],ere thc~ in ~o F~tcn7
t~l (i.t. ztorig~, ~mdltng. or t~nzf~r) for '
con~ct wl~ ~e~ votes, r~w ~tcr~:, ~
t~i~ or ~a~o~ ~u~n~ (e.=. office
~cc .~n.~B'; "pu,~tlcidc C'~i~u;
Docx~:.t" d'.tcd Tcb. 10, '?'~'
3. rZ~nor ~t~eam c~mncl
o
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1, ~nd, ~:avel, and quarry oFerati~n-~o
~, r~=nll a~tal~ ~ing op~r&tio~ and
-~tal r~covmr ~ratlong,
Co~t_~ucticm activities {e.g. alewater-
Induntrial we~tc~ utilized for aoil
Where all operations and waz~ waters are
fined to lsa-d; operating unr~c; local permit.
Board reviews via local
ReC3~at!on Act of 1975-
Where all o~.~rmtiona arc confined to land, no
toxic materials are utilized in recovery oper-
Ations.
Water contains no con~titucnt~ of concern;
rc~idu~ chlorine i~ 0"0 mg/~ upon discharge
to e~urface watcrao
Where an opcrating/malntenance plan ~ae; been
approved by .the Executive Officer;
Operating/cainten~ncc pt~n
. gutface xn/noff; Tcotec~
~tcr~; and minimi=e~ odor and
vector nuisance potcnti~lo
Where activity is loonted in area~ removed
from wate~aysand little impact oF surface
~r g-roundwater~ is expected,
Where industry demonstrates ucntoxic content
of industrial ~t~; ~d~agriculturalappli--
cat!caB used; and record~ sub=it%ed of amoua~ts
utlize~.
{L~or hydro projects '
~Jcct~ ~hcre ap~licatinn for Water
A~!iuy _.Certification is r~u~rcd
c,~. mzren~ complcxc~., etc.)
Operating under m County or State approvcd
Timber Earyes=lag Plan,
Operating undtr ~atcr 'ri.ghts permit ~r. om
or Fish and Game agreements ~d no water
quality :tmpact~ expected.
Where project !~ not expected to have a signif-
icant wcter quality effect; project complies
~ith Fishery Agencie~ agreements; or where
~pplicaat aeries to certain pro5ec~ .-~'
Sec No. 10 Above.
condition= and =tipclarion5 to mitigate and/or
prevent water quality impacts.
22, So;tic +~-k/leachfield systems.
· Local irrigation return water in qu~utities
and qualities consistent with ~ood irri~ation
, ]~-ac~fces,
Where ~ischarger~as County p~.--,it and r~fd ·
.~t ~ been ~n~d ~ confo~cc with
conditi~ cf~rd r~s~utian waivh~ need
for ~e~rts of ~astc D~gc fur ~dividu~
septic ~achfield ~tcm ~ ~at unity.
Where disch~rg=r h~s County permit ~nd E~id
~t ~u ~ca issued h confo~c~ with
conditions of ~d Resolution wAi~g need
for ~c~rts of W~te D~sc~g~ for h~ividud
~te ~eatm~nt~d di~ syste~ ut~z~g
mc~d cr eva~piration design ~d u~
S~O~'a Guidc~s ~or,~d ~yst~cs.
~itad Co~t= p~ot.~ fur co~d ~d
eva~p~ation ~stc~ ~y bc apTroved by
th~ccutivc Officer.
i~, C!;J~a II izjection well.operations in
thu ,zplcratiqn and ~od~ctiom for
Where d/zcharg~r files application with C~l.-
Diw. of OLT and G~c; underground hJection will
not impair lm-esen~ or future bcncficiA~l usem
Cf ground~ater=; ther~ ta no surface discharge
other than nontoxic. produced well w~tcr; ar~
~ite ~rill be restored to pre-conz%ructiou ~tate
within 60 days of completion or ~bandonmcni o[
well.
Subsurface: wh~re/~rmitted b'y County Health
Officer under w~ivcr r=~olution from t~egional
Board.
Surface: Only in Countice ~-ith pru~_m
apprcvcd by the Regional Bc~.
Applieu only to irrigati~r~turro
watara-oriZinatLu~ in Region; for
S~iauaMar=h, s~e ~a=in Plan Pro-
Current B~ard Waiver Resolution=
Cou_lty Re.-. N~.
ll - ~-eda 512, . 80-9
C~nt/'a Costs 83-2 -
83-1
599
~ ~tco
otransplraticn =y~te-_=' arc :ppro:'
az cf ~ ~e~o!ution. See
'~uide~%s for Mo~d Sy~e~"
"U~d~-~= for
Sy=te=" (both j~. '~O)' ~d
for ~e C~n~l cf
~asta~a~r ~stment &
Sy=tcc" (dated Apr~
See S3,tCBHcmnrandum of Agrc~m~'
~th eel. I~t. of Co:~.~iv- o
~d ~S ~cmo dated Nov. 16, 19~2 ·
r~: HOA.
:
in item= 22 and 23
~e Mecor=ndum of ~adcrztandlng:
D~cember 1992 for I;~ps County
wincry~urfsce dirTcoal-
MC~VH3BN, DOYI,~BROW~I~LLP
Mar~h 15, 2001
Direct. (415)
VIA FAC$IMYI,F~ AiYl) MAIL
Sheryl Fr~rmm, Esq.
Regional Water Quality Control Board
1515 Clay Street, Suite 1400
Oakland, CA 94612
Greenbriar Homes - Dublin Project
Dear Ms. Freeman:
As you know, Cn'eenbriar H~aes Communities, Inc. CGreenbriaf') has beer
engaged in discussions with RWQCB staff about its project along Tassajara Cr~k for many
months. The Board staff has ass~rtcd tlmt Gree~briar must submit a Report of Waste
Discharge (''FOWl)"), and secure Wss~ Discharge Requirements C'WDRs'). C. vreenb~at
has made numexous, significant c.hang .to d~. project to address Board staff's concerns, but
disagrees that it is required to submit an ROWD. '
I detailed ~'s legal reasoning in a. lcttcr to you dated October 10,
2000, The Board staff appears mainly to be conccnacd with the construction of the -
stormvnxter outfall strucun~ which will discharge into the crcck, My letter c0cplnmed that the
RWQCB adopted a Resolution (No, 83-3) which expressly waives WDP, s for ramor sU'eam
channel ahcra~ons which are regulated by the Department of Fish and Oame C'DF(~')
pursuant to Fish and Gamo Code Sections 1600-1603, and that the Orecarat project has
secured a Section 1603 a2rCClTlcnt with DFG. Wc discussed these issues in early February,
when I again provided you with a copy of my October letter. Earlier tkis month, you left
voicemail messages for both Kit Faubion (representing the City of Dublin) and I, stating your
conclusion that "savhls" lang~¢ in KcsolutlOn 83-3 authorizes Board smff to require an
ROWD and WDRs whcncvcr they deem il to b~ appwpriatc, notwithstanding ate express
waiver granted by the Board itself in Resolution 83-3.
Although wc have not received any writtcn rcsponsc from you to my October
letter, earlier this week you faxed to the Dublin City Attorney a copy of RWQCB Resolution
70- 1 l, pursuant to which ate Board delegated certain authorities to the Executive Officer. Our
ATTORNEYS AT LAW
Three Embarcadero CoMer
San FranCISCO, California 94111-4097
TeL (416) 393-2000' Fox 1415} 393-2286
WWw, mCCUtcheh:eDm
San Francisco Affiliate
· Los Angeles Telpsi
Pale Alto
Walnut Creek
Sheryl l~reemsn, Esq.
Kit Faubion, Esq.
March 15, 2001
presumption is thst you believe ResolUtion 70-1 l authorizes the Executive Officer, and in
turn RWQCB staff, to require an ItOWD despite the clear waiv~ provided by Resolution 83-
3. We disagree.
By i~s own terms. Resolution ~3-:~ is ~n action of the Board itself; waivin~
V~DRs for several specific types of discharb.~. In the l~solution, the Board undcrstaudably
reserves the riSht to "tcnnirmte" the waive/. Buz that right is reserved to the Board, not to the
Executive Officer or Board start. To conclude that Board staff can unilsteralIy impose a
requirement which the Bom'd has expressly waived would r~nder Resolution 83-3
mear~in~lcss. It would also be inconsistent with Resolution 70-11 and Water Code Section
13223(a), which prohibits the Board from delet~arin8 to the Bxecutive Officer the power to
prornulgatc "any r~,ulation.' Resolution 83-3 js effectively a regulation, as it a regulatory
action of genera! applicability which confers certain fights on the regulated community as a
whole. Only the Board has the authority t~ issue such ix regulation, e2-xd likewise only the
Board has the authority to rcvokc it.
Here, the Board clearly has the authority to revoke or modify Resolution 83-3,
but it has not done so. The Executive Officer does not Rave such authority. Accordingly, the
Greenbriar project is covered by the express waiver in Resolution 83-t, and is therefore not
required to file a KOWD or seek the issuance of WDRs.
Should you Rave any questions or concerns about our position, please coast
me ixiaz~ediately.
Sincerely yours,
e~ Ki~ Faub~on, ~sq.
CITY OF DUBLIN
P.O. Box 2340, Dublin, California 94568
· City OfficeS, 100 Civic Plaza, Dublin, California 94568
February 26, 2001
Sherryt Freeman, Esq.
Counsel to the Board
. Regional Water Quality Control Board
1515 Clay Street, Suite 1400
Oakland, CA 94612
SUBJECT: Greenbriar Residential Project in Dublin
Dear Ms. Freeman:
This letter follows up a voice mail message to you yesterday moming from Kathleen Faubion in the
Dublin City Attomey's office. As you know from written and telephoneNoice mail correspondence with
Greenbriars attorney and the City's attorney, Greenbriar is requesting .approval of a Final Map for
Phase 1 of their residential project. City Staff has reviewed their Final Map submittal and determined
that the only outstanding issue is the Regional Board's request for a Report of Waste Discharge
(ROWD). I understand that you are reviewing this and other issues 'raised by Greenbriar's attorney in
his October 20, 2000, letter and January 10, 2001, follow-up letter.
-It is our understanding that even if an ROWD were otherwise required for certain discharges, the
requirement is waived under Regional Board Resolution No. 83-3 (copy attached.) More specifically,
Resolution 83-3 includes a waiver ,for projects with Department of Fish and Game approved
Streambed Alteration Permits. Greenbriar has. obtained a Streambed Alteration Permit for their Phase
I stormwater outfall,'a Copy of which has apparently been furnished to you by their attorney. It
appears, therefore, that any ROWD requirement has been ·waived. To date, neither the City's nor
Greenbriar's attomeys has received an indication from your office that the above-referenced waiver
has been terminated, therefore the waiver appears 'to remain valid. If you disagree with this.
conclusion, please let me know by the end of business on Monday, March 12, 2001.
Thank you for your attention to this matter.
Public Works Director
Attach.
cc: Tim Quinn, Greenbriar
Elizabeth Silver, City Attorney
Dennis Carrington, Senior Planner
g:\develop\greenbriar\ltr rwqcb
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LEEGIO.NAL WATER QUALITY CONTROL BOARD
SAN FEANCISCO.,BA~ REGION
WAIVING WASTE DISCHARGE EEQUIREMENTS
FOR ZPECIFtC ~YPES .0F DISCHARGE
Resolution 88-
~, Water Code Section 1~260(a) req~es that any person ~{sch~rging'
wastes 'or proposing to discharge wastes ~itb~n the region, other tb~ to a
community sewer system, that could affect the quality of the waters of the
state, ~ha3_l file a report of waste disc ~h~rge; and
%~M~AS, the ]~egional Water Quality Control Board, San }L~ancisco ~ay Region, ....
(h~re~n'-Ifter Board), 'has a statutory obligation to prescribe waste discharge
requirements except wher.e a waiver ~s not ag~n-~t the public interest pursuant- "'
'to C~foraia Water Code Section ~3269; and
III.
W~, waiving requirements' for certain specific types of ~ast& discb~_rge
is not against the public interest because it avoids ~nnecesssry expenditures
of Board resources; and
iV. '~, ~y types of waste discharges have a-rel~tivety'imsignific~nt~dverse
;effect on the ~aters of the state; and ,
V. ~, many waste dischargers are willingto self-regulate their discharges
and thereby protect the waters of the state; and
~2qEAS, many waste' dischangers are effectively r'egulated by local government
or other state aEenciesl.and
~~, state-of-the-art _m~kes significant improvements in specific ~ypes of
discharges unreasonable; and '-
W~F~AS, this Regional Board has determined that there are no State mandated
local costs under Section 2231 of the Revenue and Taxation Code as a result
of this resolution because such regulation is not an executive regulation b~
virtue of Section 2209 of the Revenue and Taxation Code; and
~rB'~°~J~S, this' Regional Boar~ ~s prepsred'a negative declaration in accordance
with the CaliforniaEnvir0nmental Quality Act (Public Resources Code, Sectfon
2~OO0 et seq.) and the State guidelines, and the Board determines that there
w~ be no substantial adverse c~ge in the environment as a result of the
project; and
Xi.
Xii;
~C~S, the Board on ~pril 20, 1983, held a hearing in 0a~2and,
and considered all evidence concerning this matter:
California,
T~ EE IT EESOLVED, that the California RegionalWater' Quality Control
Board, San Frscisco Bay Eegion, waives waste discharge requirements for the
specific types of waste discharges shown on the attachment to this resolution
e~cept for those dischargers for which waste discharge requirements have been
adopted;.
E IT ~ET~r~tF~SOLVED, that the Boards adopt~ the Negative Declaration
prepared for this pro~ect and directs the Executive Officer to file
all appropriate notices; and
~TA~IV~ tESOtjJTION ': -- -
. 'tWAZ~Z~S 'WASUZ .~zscmm~ ~qs~~s -. '
~ 'F~ SE~C TYES '0F DISC~ - .;.: ... Pa~e 2
.~. E IT ~TM ~OL~, 'lhat t~s action w~g vaste ~scb~.Tge requ~ements
is co~itio~ ~d my be termSn-ted for my t~ of ~_~c~ge or sy s~cifi:
d~c~ger at ~y time.
I, FRED H- DTIIRKER, Executive Officer, do hereby certify the foregoing is a
full, true and correct copy of a Resolution adopted by the California Regional
Water Quality Control Board, San. Francisco Bay Eegion, on ~pril 20, 1983-
Attachment (~ pages)
FP3EDH- DIERKER
Exe cutire Officer
BOUNDARY MAP
NOT~: FOR SHEET INDEX,
SEE SHEET 3
REFERENCES:
(l) PAleC~. MAP 6879, 225 PM 67
(2) IRACr 6979, 242 M 25
IIiRACr 6925, 241 M 39
( ~ mAcr 6962, 24? M 29
ALAMEDA COUNTY
I~'E' 2439 IM 213
PAECEL M4P 7357
244 PM 7
130
127
1114.99yU-U)
Tg4CT 6964 ~ .~ LS S*IZ 24Z U 39 TRACT 6963
z~7 ~ 4~ ~ ~ z45 ~ a~
T A S
VICINITY MAP . ~ J
128 ~ ~4eAmt'S I
0 200 400 600
( IN FEET )
i inch = ~00 fL
NOTES:
1. ALL MONUMENT UNE TIES ARE AT RIGHT ANGLES
TO THE MONUMENT UNE UNLESS OTHERWISE N01[O.
BASIS OF BEARINGS
THE BEARING NOJ'24'16"E OF THE MONUMENT UNE
OF TASSAJARA ROAD AS SHOWN ON 1RACT 6925
BLED JULY 16, 1998 IN BOOK 241 OF MAPS
AT PAGES 39-52, ALAMEDA COUNTY RECORDS.
WAS USEO AS THE BASIS O~ BEARINGS FOR THIS MAP,
LEGEND
= 1RACT BOUNDARY
LOT MNE
-- MONUMENT UNE
.............................................. MONUMENT TIE UNE
NEW EASEMENT AS NOlO
EXISTING EASEMENT AS NOEO
EXISTING LOT UNE
~ SET CITY OF OUBUN STANDARD MONUMENT
STAMPEO RC~ 25281
~) FOUND MONUMENT, STAMPED AS NOIED
EVAE EMERC~NCY VEHICLE ACCESS EASEMENT
PSE PUBUC SERVICE EASEMENT
PDE PRIVA11~ ORIVEWAY EASEMENT
WLE WAIERUNE EASEMENT
PBDE PRIVAI[ STORM DRAIN EASEMENT
SSE SANITARY SEWER EASEMENT
PSAE PRIVAE SIRBET ACCESS EASEMENT
PAW~ PRIVAI~ ACCESS AND WAI~RUNE EASEMENT
REA RECIPROCAL EASEMENT AREA
(M-M) MONUMENT TO MONUMENT
(e) RADIAL
(T) TOTAL
(1) SEE REFERENCES PER SHEET 2
SNF SEARCHEO FOR, NOT POUND
ALAMEDA COUNrf RECORDS
CITY OF DUBUN
ALAMEDA COUNTY. CALIFORNIA
RUGGERI-JENSEN-A;ZAR & ASSOCIATES
CIVIL ENGINEERS, PLANNERS, SURVEYORS
P~ASANTON, CAUrORNIA
JANUARY 2001
JOB NO, 961121 SHEET 2 OF 15 SHEETS
CITY OF DUBLIN
TRACT DEVELOPER AGREEMENT
This agreement is made and entered into this __ day of' , 2001, by and
between the City of Dublin, a municipal corporation, hereinafter referred to as "CITY", and
G.H.C. Investments, LLC hereinafter referred to as "DEVELOPER".
WITNESSETH
WHEREAS, it has been determined by the City Council of the City of Dublin, State of.
California, that DEVELOPER, as a subdivider, desires to improve .and dedicate certain public
improvements shown on Tract Map 7075, in accordance with the requirements and
conditions set forth within the City of Dublin Planning Commission Resolution No. 00-I0
adopted on February 22, 2000; the requirements of the Subdivision Map Act of the State of
California and the Subdivision Ordinance of the City of Dublin; and those certain plans and
specifications for said development approved by said City Council, and now on file in the office
of the Public Works Director/City Engineer, which are hereby referred to for a more definite
and distinct description of the work to be performed under this Agreement as though set forth
at length herein; and
WHEREAS, Developer intends to satisfactorily complete the required improvement as
described in Exhibit "A" attached hereto within the time hereinafter specified, and City intends
to accept Developer's offer(s) of dedication of said improvement(s) in consideration for
Developer's satisfactory performance of the terms and conditions of this Agreement: ·
NOW, THEREFORE, in consideration of the mutual promises, conditions and
covenants herein contained, the parties agree as follows:
1. Completion Time. Developer. will commence the work required by this
Agreement within sixty (60) days following the date on which City executes this Agreement.
Developer shall complete said work not later than four hundred twenty (420) days following
said date of execution. Time is of the essence in this Agreement. Upon completion,
Developer .shall furnish!City with a complete and reproducible set of final as-built plans,
including any authorized modifications.
2. Bonds Furnished. Concurrently with the execution of this Agreement, Developer
shall furnish City with a Faithful Performance Bond and a Labor and Materials Bond. Each
bond shall be in a form prescribed by City,' and shall be issued by a company duly and legally'
licensed to conduct a general surety business in the State of California. Each bond shall
become a part of this Agreement.
G\develop\greenbriar\trctagmt7075.doc
Page I
a. Faithful Performance'Bond. Developer shall furnish City with bonds
conditioned upon the faithful performance of this Agreement, said bonds to be in the total
penal sum of $ 3,967,690.
b. Labor and Materials. Bond. Developer shall furnish City with a'bond
conditioned upon payment of all claims for labor and materials used or consumed in the
performance of this Agreement. Said bond shall comply with the .laws of the State of
California, and with Title 15, Part 4, Division 3 of the Civil Code of the State of California
(commencing with Section 3082). Said bonds shall be in the total penal sum of $ '1,983,841i.
3. Insurance Required. Concurrently with the execution of this Agreement,
Developer shall furnish City with evidence of insurance coverage as specified below.
ao Worker's Compensation Insurance. Statutory coverage as required to
cover the full liability of Developer in accordance with the provisions of Division IV of the Labor
Code ofthe State of California, and an employer's liability insurance coverage with a limit of
not less than $100,000 per occurrence to cover any claims arising from employment not
covered by worker's compensation laws.'
b. ComPrehensive General Liability Insurance. Minimum limits of liability
shall not be less than $1,000,000 per occurrence combined single limit bodily injury and
property damage coverage; any deductible provision shall not exceed $1,000 per claim, and
each and every policy must contain a cross liability or severability of interests clause.
c. Comprehensive Automobile Liability Insurance. Minimum limits of liability
shall be not less than $1,000,000 per occurrence combined single limit bodily injury and
property damage coverage; coverage shall include owned, non-owned, ,and hired vehicles,
and each and every policy must contain a cross liability of seVerability of interests clause.
d. Other Requirements. All insurance policies shall be issued by a company
legally licensed to transact business in the State of California, shall be issued at Developer's
own cost and expense, shall be maintained by Developer in full force and effect during the life
of this contract, and must have an "A.M. BEST" rating of B+, X or better. All certificates of
insurance shall name the City and its officers, agents and employees as additional insureds,
shall contain a provision that awritten notice of cancellation or reduction in coverage shall be
furnished the City (10) ten days in advance of the effective date thereof, and shall state that
such coverage is primary to any other coverage of City.
4. Work Performance and Guarantee. Developer shall secure the services of those
skilled in the trade, profession, or calling necessary to perform the work to be accomplished
under the terms of this contract, and shall guarantee and maintain the work for a' period of one
(1) year following the completion and acceptance thereof against any defective workmanship
or defective materials furnished in the performance of this Agreement, and any acceptance of
the work by City will not operate as a release to Developer or Developer's bondsmen from the
aforesaid guarantee.
G',develop\g reenbriar\trctagmt7075.doc
Page 2
5. Inspection of the Work. Developer shall guarantee free access to City through
its Public Works Director/City Engineer and his designated representative for the safe and
convenient inspection of the work throughout its construction. Said City representative shall
have the authority to reject all materials and workmanship which are not in accordance with
the plans and specifications, and all such materials and or work shall be removed promptly by
Developer and replaced to the satisfaction of City without any expense to City in strict
accordance with the improvement plans and specifications.
6. Agreement Assignment.' This Agreement shall not be assigned by Developer
without the written conseat of City.
7. Abandonment of Work. If the work to be' done under this Agreement is
abandoned for more than sixty (60) dayS, or if this' Agreement is assigned by Developer
without written consent of City subject to Section 17.1 of the Development Agreement
between the City of Dublin and G.H.C. Investments, LLC, or if City through its City Engineer
determines that the said work or any part thereof .is being unnecessarily or unreasonably
delayed or that Developer is willfully violating any of the conditions or covenants of this
Agreement or is executing this Agreement in bad faith, the City shall have the authority to
order Developer to discontinue all work or any part thereof under this Agreement, and
'Developer shall cease to continue the work or such part thereof as City may designate, and
City shall thereupon have the power to obtain by Agreement, purchase, rental or otherwise, all
labor, equipment, and materials deemed necessary to complete the work and to use such
materials as may be found upon the line of such work. Developer and his sureties shall be.
liable for all expenses incurred by City for the acquisition and use of such labor, equipment,
and materials.
8. Use of Streets or Improvements. At all times prior to the final acceptance of the
work by City, the use of any or all streets and improvements'within the work to be performed
under this Agreement sl-fall be at the sole and exclusive risk of Developer.. The issuance of
any building or occupancy permit by City for dwellings located within the tract shall not be
construed in any manner to constitute a partial or final acceptance or. approval of any or all
such improvements by City.. Developer agrees that City's Building Official may withhold -the
issuance of building or occupancy permits when the work or its progress may substantially
and/or detrimentally affect public health and safety.
9. Safety Devices. Developer shall provide and maintain such guards, watchmen,
fences, barriers, regulatory signs, warning lights, and other' safety devices adjacent to and on
the tract site as may be necessary to prevent accidents to the public and damage to the
property. Developer shall furnish, place, and maintain such lights as may be necessary for
illuminating the said fences, barriers, signs, and other safety devices. At the end of all work to
be performed under this Agreement, all fences, barriers, regularcry signs, warning lights~ and
other safety devices (except such safety items as may be shown on the plans and included in
the items of work) shall be removed from site of the work by the Developer, and the entire site
left clean and orderly.
G\;develop\greenbriar\trctagmt7075,d~c
Page 3
10. Acceptance of Work. Upon notice of the completion of all tract work and the
delivery of a set of final as-built plans to City by Developers, City, through its City Engineer or
'his designated representative, shallLexamine the tract work without delay, and, if found to' be in
accordance with said plans and specifications and this Agreement, shall accept the work and
notify Developer or his designated agents of such acceptance.
11. Patent and Copyright Costs, in the event that said plans and specifications
require the use of any material, process or publication which is subject to a duly registered
patent or copyright, Developer shall be liable for, and shall indemnify City from any fees, costs
or litigation' expenses, including attorneys' fees and court costs, which may result from the use
of said patented or copyrighted material, process or publication.
12. Alterations in Plans and Specifications. Any alteration or alterations made in the
plans and specifications which, are a part of this Agreement or any provision of this Agreement
shall not operate to release any surety or sureties from liability on any bond or bonds attached
hereto and made a part hereof, and consent to make such alterations is hereby given, and the
sureties to said bonds hereby waive the provisions of Section 2819 of the Civil Code of th'e
State of California.
13. Liability.
a. Developer Primarily Liable. Developer shall be responsible for any and all
loss., accident, neglect, injury or damage to person, life or property which may be the result of
or may be caused by construction, operations, in connection with this agreement and for which
City might be held liable. Developer shall protect and indemnify the City of Dublin, the City
Council, the City Engineer and/or any officer, agent or employee of the City, and save them
harmless in every way from all suits or actions at law for damage or injury to persons, life or
property that may arise or be occasioned in any way because of construction operations or
execution of this Agreement~ except for negligence or willful misconduct of the City.
b. Design Defect. If, in the opinion of the City, a design defect in the work of
improvement becomes apparent during the course of construction, or within one (1) year
following acceptance by the City of the improvements, and said design defect, in the opinion of
the City, may substantially impair the public health and safety, Developer shall, upon order by
the City, correct said design defect at his sole cost and expense, -and the sureties under the
Faithful Performance and Labor and Materials Bonds shall be liable to the City for the
corrective work require;d.
c. Litigation Expenses. In the event that legal action is instituted by either
party to this Agreement, and said action seeks damages for breach of this Agreement or
seeks to specifically enforce the terms of this Agreement, and, in the event judgment is
entered in said action, the prevailing party shall be entitled to recover its attorneys' fees and
court costs.
G~develop\greenbriar\trctagmtT075.doc
Page 4
,14. INDEMNIFICATION. DEVELOPER agrees to indemnify, defend and hold
harmless CITY, and its elected and appointed councils, boards, commissions, officers, agents,
empoyees, and representatives from any and all claims, costs (including legal fees and costs)
and liability for any fines or penalties which may arise directly or indirectly as a result of
DEVELOPER's not filing a Report of Was~te Discharge with the Regional Water Quality Control
Board ("Board") in connection with the construction of the storm drain outfall for Tract 7075.
a. 'City Cooperation. If CITY is named as a party to any legal action
(including any administrative enforcement proceeding), CITY will cooperate !with
DEVELOPER, will appear in such action or proceeding, and will not unreasonably withhold
approval of a settlement otherwise acceptable to DEVELOPER.
b. Survival Provisions. The provisions of this section shall survive
completion of the work required by this agreement and acceptance of the storm drain outfail
by the CITY. The provisions of this section are applicable to any costs (including legal fees
and costs), fines or penalties imposed as a result of any action (including any administrative
enforcement proceeding) commenced by the Board within the applicable three (3) year statute
of limitations period for actions based on the Porter-Cologne Water Quality Control Act related
to construction of the storm drain outfall.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate
at Dublin, California, the day and year first above written.
CITY OF DUBLIN
By
ATTEST:
Mayor
DEVELOPER
GHC Investments, LLC
a Delaware limited liability company
By: Greenbriar Homes Communities, Inc.
a California corporation
Its Manager
By: ~ / Patrick Costanzo, ~.
Its Senior Vice President
City Clerk
Page 5
G\develop~greenbriar\trctagmt7075.doc ; -~