March 18, 2014

Developer agrees to restore section of creek to protect against flooding in Merced

The Merced city attorney is reporting that the city and developer Bellevue Ranch West have settled their disagreement over grading along Fahrens Creek. According to the attorney, the developer has agreed to restore the changes it made to the waterway and pay for the aerial radar assessment the city ordered in December. The banks of the waterway are important to protect homes from flooding.

Baxter Ranches has agreed to restore areas along Fahrens Creek where experts say someone did work that increased the threat of flooding, Merced City Attorney Greg Diaz announced Monday.

Along with restoring the east side of Fahrens Creek to the way it was in 2006, Baxter Ranches agreed to pay for an aerial radar assessment that could cost as much as $100,000. The City Council approved the agreement unanimously.

“I’m just glad the parties were able to come to an agreement to get it restored rather than litigation,” Mayor Stan Thurston said.

Going to court could have been lengthy and expensive for the city and the developer, he said.

The land in question is part of Bellevue Ranch West, a housing development on both sides of Cardella Road between G Street and Highway 59. The land has been owned by Baxter Ranches since September 2012.

The developer admits that grading took place, but denies much of it was the fault of recent development. “Grading” is an engineering term used to describe the process of using heavy machinery to raise or lower land elevation.

The City Council voted to pay for the aerial radar scan and the assessment by geologists in December. The scan allowed city staff to determine if grading occurred and its extent.

The assessment came after a Sept. 10 California Department of Fish and Wildlife letter to Baxter Ranches ordered the developer to “immediately stop all filling, grading and farm activities on the property.”

The Fish and Wildlife letter stated that the developer “substantially altered the seasonal wetlands and swales (depressions) adjacent to Fahrens Creek.” The agency determined that dirt had been moved into the flood control areas along the creek, and “multiple acres” of habitat had been disturbed or filled in with dirt.

The letter also ordered the developer to take steps to restore the changes, including a written plan.

Real estate developer Greg Hostetler, owner of the development, admitted that workers had damaged about 2 acres of wetlands, but he maintains it was done accidentally by tractor drivers. He suspects it was a misunderstanding or that markers used by the drivers were lost somewhere in the process.

However, Hostetler said he is not at fault for any dirt moved into the floodplain, which includes the waterway and the extra space at the edge of the creek meant to catch excess water and prevent flooding.

He contends any dirt pushed into the plain was done before he became the owner, adding the land was not maintained for years. Hostetler said it was best that the parties worked out a settlement and that it will have a “happy ending.”

“I think it’s the right thing to do. We need to move forward,” he said.

Once the proper permits are issued, Hostetler said, the restoration process should not take long. He estimated the work on the roughly 50 acres needing restoration should be complete before the next rainy season.

As part of the settlement, Bellevue Ranches agreed to pay for an analysis of the west side of Fahrens Creek to determine whether any changes were made to it. If so, the developer agreed to restore it as well.

The city agreed it will issue any necessary permits to allow for the creek’s restoration and to waive any cost for staff time up to this point.

The U.S. Department of Fish and Wildlife could require restoration related to the wetlands.

According to city staff, the developer who owned Bellevue Ranch before Hostetler’s Baxter Ranches built flood control banks along the east side of Fahrens Creek. In April 2006, the Merced area saw major flooding, but the controls along Fahrens Creek protected the homes in the Bellevue Ranch development.

The city’s concern lies in protecting homeowners, as well as protecting itself from litigation if flooding were to occur.

The flooding that Bellevue avoided in 2006 damaged some 275 properties in the Beachwood-Franklin area.

A federal lawsuit by affected residents in that flooded area named the city, Merced County and Merced Irrigation District as defendants.

The case carried on for about three years, and the city spent about $3 million on outside attorney fees as well as $1.5 million on a settlement.

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