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RESOLUTION Setting Aside and Vacating City Council Resolution No. 2013-043 that Affirmed the Board of Zoning Adjustments' Decision to Adopt the Mitigated Negative Declaration and Mitigation Monitoring Program Project and Approving a Height Variance as Set Forth in Board of Zoning Adjustments ("BZA") Resolution No. 01-13 Adopting the Mitigated Negative Declaration and Mitigation Monitoring Program Project for the Halus Power Systems Wind Turbine Project ("The "Project") Pursuant to the California Environmental Quality Act ("CEQA"); and BZA Resolution No. 02-13 Approving a Height Variance for the Project Pursuant to the City of San Leandro's Zoning Code; and Prohibiting Halus from Undertaking and/or Suspending Any Construction of the Project or Any Activity Pursuant to or in Reliance on the Vacated Project Approvals (Board of Zoning Adjustments Resolution Nos. 01-13, 02-13, and City Council Resolution No. 2013-043) Unless and Until the City Fully Complies with CEQA; All in Accordance with a Peremptory Writ of Mandate Issued by the Alameda County Superior Court (complies with writ of mandate)
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WHEREAS, an application was received from Halus Power Systems ("Halus") for a proposed development project ("Project") that included building a 100-foot tall single wind turbine on its property on an industrial site; and
WHEREAS, the City of San Leandro processed the application in accordance with applicable laws and procedures and the application was reviewed and considered by the City's Board of Zoning Adjustments ("BZA"); and
WHEREAS, on February 7, 2013, the BZA adopted Resolution No. 01-13, adopting a Mitigated Negative Declaration and Mitigation Monitoring Program for the Halus Wind Turbine Application; and
WHEREAS, on February 7, 2013, the BZA adopted BZA Resolution No. 02-13 approving a Height Variance for the Halus Wind Turbine Project; and
WHEREAS, on April 1, 2013, the City Council adopted Resolution No. 2013-043 affirming the Board of Zoning Adjustments' Decision to Adopt a Mitigated Negative Declaration and Mitigation Monitoring Program and to Approve a Height Variance for the Halus Wind Turbine Application and denying the Heron Bay Homeowners Association's Appeal; and
WHEREAS, on May 1, 2013, Heron Bay Homeowners Association challenged the City's adoption of a Mitigated Negative Declaration and Mitigation Monitoring program, and approval of a height variance to allow a 100-foot tall horizontal axis wind turbine (the "Project") by filing a writ of mandate in the Alameda Superior Court; and
WHEREAS, on April 24, 2014, the Alameda County Superior Court issued a peremptory writ of mandate commanding the City to set aside and vacate BZA Resolution Nos. 01-13 and 02-13, and City Council Resolution No. 2013-043 as well as any and all previously adopted Project approvals and findings; and
WHEREAS, the City Council, acting as the governing body of the City of San Leandro, shall exercise its police power over its subordinate boards and commissions, to take all actions in the best interests of the City, and as ordered by a State Court having jurisdiction over the City.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
San Leandro:
1. Through the exercise of its police power, in compliance with the peremptory writ of mandate issued by the Alameda County Superior Court, sets aside and vacates:
a. Board of Zoning Adjustments Resolution No. 01-13 adopting the Mitigated Negative Declaration and Mitigation Monitoring Program Project for the Halus Power Systems Wind Turbine project pursuant to the California Environmental Quality Act ("CEQA"); and
b. Board of Zoning Adjustments Resolution No. 02-13 approving a height variance for the Project pursuant to the City of San Leandro's Zoning Code; and
c. City Council Resolution No. 2013-043 affirming the Board of Zoning Adjustments' decision to adopt the Mitigated Negative Declaration and Mitigation Monitoring Program Project and approve a height variance.
2. In compliance with the peremptory writ of mandate issued by the Alameda County Superior Court, hereby prohibits Halus from undertaking any construction of the "Project" or any activity pursuant to or in reliance on the vacated "Project" approvals (BZA Resolution Nos. 01-13, 02-13, and City Council Resolution No. 2013-043) unless and until the City fully complies with CEQA as set forth in the Judgment and Statement of Decision.
3. Directs the City Attorney to file a return to the peremptory writ of mandate issued by the Alameda County Superior Court, demonstrating the City's compliance with the writ.