Larry Kahn has appealed the decision made by the Lake County Planning Commission on December 12, 2024, to approve Major Use Permit (UP 23-05) for the AG Forest Wood Processing Bioenergy Project which would allow the development of a wood processing and bioenergy facility, located at 755 E State Highway 20 in Upper Lake (APN 004-010-04) (Exhibit A).
Background
Scotts Valley Energy Corporation (Applicant) has received grant funding from the U.S. Department of Commerce's Economic Development Administration to develop a facility to process forest wood, removed from local forests to lower wildfire risk, into bioenergy. Biomass material will come from the contractors that are removing biomass such as tree branches from powerline rights-of-way and operations from forest clearing for reduction of fuel resources to help protect communities. The facility will operate as a central forest wood management and processing system for forest thinning biomass collected throughout Lake County. Exhibit B includes the staff report from the Planning Commission meeting. Exhibit C includes the Minutes for the meeting.
The project was originally scheduled for consideration by the Planning Commission on October 24, 2024, (Exhibit D), but was continued to December 12, 2024, to give the Community Development Department (CDD) and the Applicant time to address community concerns at a municipal advisory council meeting (Western Regional Town Hall [WRTH]). At the WRTH meeting on November 20, 2024, the Applicant, Community Development Department Director, and Staff addressed several concerns from the October 24, 2024, Planning Commission meeting: project’s size and visibility from State Highway 20, air quality, possible removal of debris on the parcel, where the biomass materials come from, waterways on the parcel, flood zone, site plans, truck traffic, nearby neighbors, employees, etc. The Applicant provided a demonstration using polyvinyl chloride (PVC) pipe to illustrate how large the biomass equipment would be with the help of participants from the meeting. Exhibit G includes the presentation that was presented to the WRTH by the Applicant.
Following the WRTH meeting, the Planning Commission again considered the Project on December 12, 2024, and approved the major use permit based on the Findings and subject to the Conditions included in the Staff Report, dated December 12, 2024 (Exhibit B).
Exhibit J includes a CEQA Handbook for Bioenergy and Wood Products Businesses Outreach.
Reason for Appeal Summary
Appellant Larry Kahn provided the following reasons for the appeal (Exhibit A):
1. Findings not yet submitted by licensed engineer, and not yet considered by the Planning Commission, for alleged violations of varying codes/laws/regulations. Please see attached for alleged Business and Profession code violations of application as submitted.
2. Findings not yet submitted, and not yet considered by the Planning Commission, on the designation of Highway 20 Scenic Highway that this project allegedly does not comply with.
3. Findings not yet submitted, and not yet considered by the Planning Commission, on gravel placement on Prime Ag Lands and other Prime Ag land protections.
4. Findings not yet submitted on alleged Air Quality Department and Staffing deficits for monitoring this approved project.
5. Findings not yet submitted, and not yet considered, of alleged Air Quality Contaminants from the approved Project.
Appeal Discussion
An appeal of approval of Major Use Permit (UP 23-05) was filed on December 12, 2024, to the Community Development Department. The Appellant submitted a written statement detailing the above listed reasons for their appeal. According to the Appellant’s statements, the reasons for the appeal include the following:
1. Findings not yet submitted by licensed engineer for alleged violations of varying codes/laws/regulations.
Response: The appeal states that the project plans violate the following Business and Professions Codes (BPCs) 5536, 5536.1, 5536.2, 6735, 6735.3, 6735.4, 6787, 8726, 8792. A summary of each Code is provided in Exhibit I.
While the County is required to comply with all applicable State regulations related to land surveying and engineered plans, as well as the Lake County Code Chapters 5, 30, and 29, neither the final building nor grading plans are required at this stage of the use permit approval. These plans are required for completeness review of all projects, however, after approval of the use permit and prior to grading and building permit issuance. Further, Chapter 30 of the Lake County Code specifies when engineered plans are required, and if engineered plans are required, they must comply with the California Business and Professions Code. If grading plans are found to be out of compliance, pursuant to Lake County Code Article 56, Selection 21-56, subsection 56.7 (b) the grading permit can be appealed to the Board of Supervisors.
The 2022 California Building Code, Section 107[A] 107.1 requires that all construction documents shall be prepared by a registered design professional where required by the statutes of the jurisdiction in which the project is to be constructed. Based on the Lake County Code Chapter 5, Article III, Section 5-12, subsection 12.2, if building plans are approved by the Director of the Building and Safety Department but determined to be out of compliance with local and State regulations, “any person has the right to appeal that decision in writing to the Board of Appeal”. This appeal mechanism allows individuals to challenge the Director's determination regarding the compliance of building plans with the Lake County Code by submitting a formal written appeal to the designated Board of Appeals. In California, if a county does not have a dedicated Board of Appeals for building code matters, the governing body of the county, as specified in California Health and Safety Code Sections 17920.5 and 17920.6, serves as the local appeals board. Therefore, since the Planning Commission approved the project, it would need to be appealed to the Board of Supervisors.
At the time of a permit submittal, the site plans must comply with the Lake County Code Zoning Ordinance Article 55, Section 21-55, subsection 55.2. The plans provided for Use Permit (UP 23-05) under this section for the approval of the applicable use permit do meet the requirements listed in Article 55.
2. Findings not yet submitted on the designation of Highway 20 Scenic Highway that this project allegedly does not comply with.
Response: The Scenic Highway Program is found in the California Code, Streets and Highways Code Sections 260 through 263. The State Scenic Highway System includes a list of highways that are either eligible for designation as State scenic highways or have been officially designated. Although Route 29 near Lower Lake/Route 20 East of Clearlake Oaks is eligible for designation, it has not been officially designated a Scenic Highway. Further, this section of highway is not impacted by the project or near the project site.
The project site has an overlay zone of “SC” Scenic Combining that is subject to the requirements in the Lake County Code Zoning Ordinance Article 34. This includes meeting the performance standards in Section 21-34.10, subsection 34.11. Screening has been addressed through the use permit with the adoption of the following mitigation measure:
AES-1: Prior to construction activities, a landscaping plan shall be submitted to the Community Development Department that includes the appropriate visual screening using drought resistant or indigenous vegetation. Water conservation shall be applied with the use of drip irrigation.
On the County’s Google Earth shape file, a 500’ setback has been identified from State Highway 20. However, the project site is beyond the setback.
In addition, with the exception of the water tank foundation, no permanent infrastructure is proposed with the project. The Applicant will be required to return the property to the same conditions existing at the time the lease agreement was entered into.
3. Findings not yet submitted on gravel placement on Prime Ag Lands and other Prime Ag land protections.
Response: Pursuant to the California Environmental Quality Act, Division 13, Chapter 2.5, Section 21061.2 in determining whether impacts to agricultural resources are significant environmental effects, lead agencies may refer to the California Agricultural Land Evaluation and Site Assessment (LESA) Model prepared by the California Department of Conservation. Due to the parcel’s designated “Prime Farmland” classification by the California Department of Conservation, a LESA assessment was prepared, and the Project which includes the gravel placement was found to have a less than significant impact on the prime farmland (Exhibit H).
4. Findings not yet submitted regarding the alleged Air Quality Department and Staffing deficits for monitoring this approved project.
Response: A Request for Review was sent to the Lake County Air Quality Management District (LCAQMD) on September 27, 2023, and comments were received. The comments have been added to the record, and mitigation measures recommended were incorporated into the Project requiring the Applicant to apply for an Authority to Construct permit among other things from the LCAQMD (Exhibit E). Whether the LCAQMD can or will process an Authority to Construct permit when an application is filed in the future is not an element of this use permit analysis.
5. Findings not yet submitted of alleged Air Quality Contaminants from such Project. This includes the air flow/lack of air flow within the community of Upper Lake.
Response: Comments and reports containing information and opinions on criteria for air pollutants and greenhouse gas emissions related to the Project were analyzed by staff. Based on this analysis, staff concluded that emissions fell well below the California Air Resources Board’s (CARB) thresholds of significance (Exhibit F). Air quality information on the project was provided by the Applicant’s representative (Thomas Jordan), and was discussed at the October 24, 2024, and December 12, 2024, Planning Commission meetings, and at the Western Region Town Hall meeting on November 20, 2024 (Exhibit E).
Lastly, according to the LCAQMD, Lake County meets all Ambient Air Quality Standards (State and Federal) for clean, healthful air quality. Exceptions to this only occur during major wildfire events.
FINDINGS OF APPROVAL
On December 12, 2024, the Planning Commission found that, with the mitigation measures proposed in Initial Study, IS 23-10, the project would not have significant impact on the environment and adopted a Mitigated Negative Declaration. Required Findings of Approval can also be found in the Planning Commission Staff Report (Exhibit B). The Planning Commission also made the required “Findings of Approval” for Major Use Permit (UP 23-05).
EXHIBITS: Exhibit A:-Appeal Form (PL-25-22; AB 24-06)
Exhibit B:-Planning Commission Staff Report (December 12, 2024)
Exhibit C:-Planning Commission Meeting Minutes (December 12, 2024)
Exhibit D:-Planning Commission Meeting Agenda (October 24, 2024)
Exhibit E:-Lake County Air Quality Management District Comments
Exhibit F:-CARB Ambient Air Quality Standards and Air Quality Information
Exhibit G:-WRTH Site Presentation 11-18-2024 REV3
Exhibit H: -Land Evaluation & Site Assessment (LESA)
Exhibit I: -Business and Professions Codes Summary
Exhibit J:-CEQA Handbook for Bioenergy and Wood Products Businesses Outreach
Exhibit K:-Public Comments