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HomeMy WebLinkAboutOrd 1994-2602 ORDINANCE NO. 2602 ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE MUNICIPAL CODE TO CREATE A VOLUNTARY COASTAL SAGE SCRUB (CSS) LOSS PERMIT PROCESS SANCTIONED UNDER SECTION 4(d) OF THE ENDANGERED SPECIES ACT ALTERNATIVE TO THE PROCESS PERMITTED UNDER SECTION 10(a) OF SAID ACT Whereas, in March, 1993, the Federal government listed the coastal California Gnatcatcher as a threatened species under the Endangered Species Act of 1973 (16 U.S.C. § 1531 et seq., hereinafter, the "Act"). The Act makes it a violation of federal law to carry out any activity which will result in a take of the species. "Take" of the gnatcatcher, broadly defined in the Act to include harm to or harassment of the species, is prohibited. Whereas, The U.S. Fish and Wildlife Service has promulgated a special rule under Section 4(d) of the Act, which will allow incidental take of the species if it results from activities which are conducted pursuant to either: (1) the State of California's Natural Communities Conservation Planning Act ("NCCP") and in accordance with an approved NCCP plan prepared consistent with the State's NCCP Conservation Guidelines and Process Guidelines; or (2) (during the period that such an NCCP plan is being prepared), the NCCP Conservation Guidelines and Process Guidelines published by the California Department of Fish and Game, if within an area under the jurisdiction of a local government agency which is enrolled and actively engaged in the preparation of an NCCP plan. This special rule became effective on December 10, 1993. Whereas, the NCCP Conservation Guidelines and Process Guidelines call for the regulation of all coastal sage scrub within the region, and establish a planning process for the protection of this habitat. The Guidelines further provide a process for issuance of habitat loss permits which local government agencies may adopt. Because the City of Chula Vista has formally enrolled in the NCCP I~rocess and is actively engaged in the preparation of an NCCP for the protection of Coastal Sage Scrub within the area under its jurisdiction, under the special rule promulgated under Section 4(d), incidental take of the gnatcatcher would not be a violation of the Act if authorized by a habitat loss permit issued by the City pursuant to the NCCP Conservation Guidelines and Process Guidelines. Whereas, without such a habitat loss permit process under Section 4(d), no development of habitat occupied by the gnatcatcher may occur unless authorized under Section 7 or 10(a) of the Act. Sections 7 and 10(a) set forth a permitting process which can take several years to complete. Failure to adopt a habitat loss permit process, thus requiring that proposed land development applications proceed under Section 7 and 10(a) processes, would halt all progress of development of occupied habitat in the region for a substantial time. Whereas, Sections 7 and 10(a) of the Act only regulate occupied coastal sage scrub habitat. The NCCP process contemplates protection of all coastal sage scrub habitat, which will result in protection of many species in addition to the coastal California Gnatcatcher. Ordinance No. 2602 Page 2 Whereas, Regulation of impact to coastal sage scrub within the City is necessary immediately because the Section 4(d) rule allows only 5% of all coastal sage scrub remaining in the region to be disturbed. Until the requirements of the ordinance are imposed, Coastal sage scrub unoccupied by the gnatcatcher will continue to be disturbed, posing a serious threat to the viability of the NCCP plan and foreclosing the City's option in prioritizing projects for the public peace, health and safety. The preservation of the public peace, health and safety requires that projects which impact Coastal sage scrub be reviewed in terms of impacts to this regional resource, not individually. Whereas, adoption of this ordinance is necessary on an urgency basis to eliminate the need for and the delays in costs of procuring incidental take permits under Section 7 or 10(a) of the Act on an individual project basis. The preservation of the public peace health and safety require that development in the region proceed with a reasonable degree of certainty. Whereas, the emergency action is necessary to adhere to very specific biological time periods with respects to impacts to the California gnatcatcher. Grading must be initiated during the non-breeding period or "biological window", the period of September 1 st through February 15th. Failure to begin grading during the upcoming "window" in the Rancho Del Rey SPA Ill area could result in delays of one year or longer to the construction of the Rancho Del Rey Junior High/Middle School, adjoining community park, and other desired public facilities which would serve both existing and future residents of this area. Whereas, the Rancho Del Rey Partnership currently has in escrow approximately 400 acres of off-site mitigation land in the O'Neal Canyon area (approved by the City Council on July 12, 1994) which is a keystone property within the regional open space preserve system. Close of escrow and resulting property preservation is tied to the immediate enaction of the 4(d) rule. Failure to enact the 4(d) rule could result in the loss of valuable habitat. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Chapter 17.30 ("Interim Coastal Sage Scrub Habitat Loss Permit Process") is hereby added to the Municipal Code, which Chapter 17.30 shall read as follows: "Chapter 17.30 - Interim Coastal Sage Scrub Habitat Loss Permit Process See 17.30.010 Purpose and Intent. It is the purpose of this section to implement, on an interim basis, a process that would allow the City of Chula Vista to issue permits for the taking (direct or indirect loss) of Coastal Sage Scrub (CSS) habitat, within the corporate boundaries of the City of Chula Vista, as an alternative to the existing mandatory process prescribed under Section 10 (a) of the Endangered Species Act. This process is intended to implement, on a voluntary basis, the provisions of the State of California Natural Community Conservation Plan Act and the United States of America Endangered Species Act of 1973, as mended, and as it related to 50 CFR 17.41, incidental take of Coastal California Gnatcatcher. Ordinance No. 2602 Page 3 Sec 17.30.020 General Authorization. As a voluntary alternative to those government agencies, public utilities, or persons wishing to process a "take" of Coastal Sage Scrub located within the annexed territorial limits of the City of Chula Vista, who prefer not to process an Endangered Species Act (ESA) Section 10(a) permit directly through the United States Fish and Wildlife Service (USF&WS), the City of Chula Vista may use its Land Use regulatory authority along with cooperative agreements and other authorities granted in cooperation with the State of California through the Natural Communities Conservation Planning (NCCP) Act, Southern California Coastal Sage Scrub Program, and the United States of America Endangered Species Act (ESA) authorization for incidental take of the Coastal California Gnatcatcher (Potiaptila Californica Californica) for activities conducted under the authority of the State of California NCCP pursuant to 50 CFR 17.41. Those government agencies, public utilities, or persons wishing not to process a 4(d) Take permit through the City of Chula Vista may process a Endangered Species Act (ESA) 10(a) permit directly through the USF&WS. Applicants wishing to pursue a 4(d) Take Permit through the City of Chula Vista shall agree to indemnify the City of Chula Vista, its officers, employees or agents in a form acceptable to the City, release the City of any and all liability for, and waive any and all claims against the City, its officers, employees or agents for exercising its authority provided including any claims for eminent domain or inverse eminent domain, and any loss that may be suffered as a result of implementing or conditioning a 4(d) Take Permit. The Director of Planning of the City of Chula Vista shall be responsible for issuance of 4(d) Take Permits in accordance with Section 17.30.052 through 17.30.054. Sec 17.30.040 CSS "Loss" Defined. When used in this Chapter, "loss" of or "taking" Coastal Sage Scrub shall be deemed to occur if all or any part of the plant community which constitutes Coastal Sage Scrub is directly or indirectly, intentionally or unintentionally, destroyed or disturbed in a manner that could impair the continued survival of any plant which constitutes a part of the plant community. Sec 17.30.045 "Coastal Sage Scrub" ("CSS") Defined. A natural community of plants approximately located on or within 15 miles of the Southern California and northern Baja, Mexico Pacific Ocean coast line which provides or is capable of providing habitat (flying, breeding, nesting, nurturing, foraging or dispersing areas) support for the California Gnatcatcher, including but not limited to the following characteristic species of plant: · California sagebrush (Artemisia californica) · Several species of sage (Salvia mellifera Salvia leucophylla, and Salvia apiana) · California encelia (Encelia californica) · Brittlebush (Encelia farinosa) · San Diego sunflower C~iguiera lacinata) · Buckwheats (including Eriogonum fasciculatum and Eriogonum cinereum) · Evergreen sclerophyllous sluubs such as Malosma laurina, Rhus integrifolia, and Rhus ovata See 17.30.050 Coastal Sage Scrub (CSS) Loss Permit Process. Ordinance No. 2602 Page 4 Sec 17.30.051 General Coastal Sage Scrub (CSS) Loss Process. Any loss of CSS done pursuant to this Chapter shall require an advance written permit ("Loss Permit") from the City issued pursuant to the requirements and conditions of this Chapter. If an applicant chooses to obtain authorization by processing a 4(d) Loss permit through the City of Chula Vista, rather than processing an Endangered Species Act Section 10(a) permit directly through the USF&WS, the issuance of the Loss Permit shah be coordinated with other permit processes of the City of Chula Vista, as provided for in Section 17.30.060; and be subject to the making of f'mdings as provided in Section 17.30.070 of this Chapter; be issued conditional on the mitigation of any loss as provided in Section 17.30.080; and be coordinated with other agencies such as the California Department of Fish & Game (CDF&G) and United States Fish and Wildlife Senrice (USF&WS) and the giving of appropriate notices as provided in Section 17.30.090. Sec 17.30.052 Adoption of Sensitive Habitat Map. For the purposes of this Chapter, the City Council of the City of Chula Vista authorizes the Director of Planning to certify an NCCP Sensitive Habitat Map for the Planning boundaries of the City of Chula Vista and adjacent area. Said map shah be used, in part, for determining those project sites that shah be subject to the 4(d) Loss Permit Process. See 17.30.053 Loss Permit Application Process. A. Application. 1. Projects Not Previously Entitled. For projects which, at the time of the adoption of this ordinance, have not received all previous entifiements to proceed, and have not submitted all required information and data in order to permit the City to grant enfitlements to proceed except for the issuance of a Loss Permit CNon-Pipeline Projects"), in order to obtain a Loss Permit, an applicant shah submit an application to the Director of Planning, on such form or forms as s/he may prescribe, but which, at a minimum, shah require sufficient project information to enable the Director to make the Required Findings, set forth below, and to allow environmental processing pursuant to the California Environmental Quality Act (CEQA). The application shah include information which clearly identifies existing habitats by type, and the ultimate envelope of habitats to be impacted by the project. An assessment of existing biological resources, and analysis of project impacts and proposed mitigation measures must be included. The biological information submitted shah include a biological assessment prepared for the project site in conformante with the State of California NCCP Scientific Review Panel(SRP] field survey guidelines, or a methodology accepted by the California Department of Fish & Game (CDFG) as equivalent. In addition, these assessments must follow the guidelines established by the City of Chula Vista Environmental Review Procedures. The biologieai assessment shah determine the CSS value (high, intermediate or lower) as indicated in areas designated by the Sensitive Habitat Map referred to in Section 17.30.030. An application for a Loss Permit shah include completed City application forms, including Ordinance No. 2602 Page 5 an Initial Study Application; and the number of sets of project site and development plans determined by the Planning Department to be adequate. The plans will clearly identify existing habitats by type and the ultimate envelope of habitat to be retained or impacted; required environmental documentation addressing 4(d) permit findings and proposed mitigation; and any applicant-proposed mitigation program or measures to satisfy Loss Permit requirements. This is in addition to materials which may have been submitted for other project permits. Projects requiring a 4(d) permit can apply for said permit simultaneously with their other discretionary permit actions or in the case of small projects and previously approved projects, simultaneously with grading permits. The 4(d) permit can also be applied for separately prior to other permits, but in no case can a development permit be issued prior to a required 4(d) permit approval. A project applicant shall submit a mitigation plan that demonstrates that the project is consistent with the f'mdings required in Section 17.30.070. The project must demonstrate capacity for funding appropriate mitigation, and mitigation must be legally assured. Habitat acquisitions and set-asides, when used, should occur in areas with long-term conservation potential. Any fees paid for habitat mitigation shall be maintained in an appropriate fund, dedicated to habitat mitigation, and separate from other development impact or other City funds. 2. Previously Entitled Projects. For projects which, at the time of the adoption of this ordinance, have received all previous entiflements to proceed, or have submitted all required information and data in order to permit the City to grant entiflements to proceed except for the issuance of a Loss Permit ("Pipeline Projects"), the Director is authorized to waive any of the application requirements set forth above in subsection A. 1. to the extent the information so waived is otherwise available to the Director in environmental and planning documents already in the possession of the City. B. Fees. The applicant for a Loss Permit shah pay such fee as the City determines is sufficient to permit the recovery of its cost of reviewing and granting same, as such fee is set forth in, and from time to time modified in, the City of Chula Vista Master Fee Schedule. Until such a fee is established by the City Council in the Master Fee Resolution, the fee shah be determined by the City Manager, or his designee. Said fee shah be estimated by the City at the time a completed application for a Loss Permit is submitted, and the applicant shall deposit the amount of said estimate with the City upon submittal of the application. The City shall not process an application for a Loss Permit until the required fee deposit has been made. The City staff shah charge its time and expenses against the deposit. If the City determines that the deposit is, or is likely to be, inadequate during the processing of the application, the City shall notify the applicant, and unless the deposit is supplemented by an additional deposit, the City shah terminate processing of the application. No Loss Permit shah be issued until all required fees have been paid. Any excess deposit after payment of the fees shall be returned to the applicant. Ordinance No. 2602 Page 6 C. Review of Application. After the City has determined that the application for a Loss Permit is complete and the required fees or deposit for fees has been made, the City, through the Planning Director, shah initially determine if the Property has CS S thereon, and the am ount, by acreage, which is proposed for loss under the requested Loss Permit. D. Required Findings. If the Director determines that the Property contains CSS, the Director shall determine if the following findings ("Findings") are true: 1. The habitat loss, as proposed for issuance under the Loss Permit, is consistent with the "interim loss criteria'I in the November, 1993 State Natural Community Conservation Program (NCCP) Conservation Guidelines (as specified in items a. through d. below) and, if a subregional interim loss process is established in a form approved by the City of Chula Vista at the time of the issuance of the Loss Permit, consistent with such approved subregional interim loss process. a. The habitat loss, under the Loss Permit as proposed by the Director for issuance, will not exceed on the date of issuance, when considered cumuladvely with all other loss of CSS occnrcing since March 21, 1993, exceed 5% by acreage of the then existing CSS within the region. b. The habitat loss, under the Loss Permit as proposed by the Director for issuance, will not preclude connectivity between areas of high habitat e. The habitat loss, under the Loss Permit as proposed by the Director for issuance, will not preclude or prevent the preparation of the subregional i',ICCP. d. The habitat loss, under the Loss Permit as proposed by the Director for issuance, has been minimized and mitigated in accordance with Section 4.3 ("Interim Mitigation") of the "Southern California Coastal Sage Scrub Natural Communities Conservation Planning Process Guidelines, dated 11/5/93, and thereafter, to the maximum extent practicable. 2. The habitat loss will not appredably reduce the likelihood of the survival and recovery of the Coastal California Gnatcatcher (Poriaptila Californica Californica). 3. The habitat loss is inddental to otherwise lawful activities. 4. Proposed mitigation is consistent with NCCP Process Guidelines requirements. E. Preparation of Draft Findings, and Proposed Terms and Conditions (including mitigation If the Director determines that the foregoing Findings are true, s/he shall use his or her discretion in granting a Loss Permit, and in doing so, may consider, among other things deemed appropriate, the following: Ordinance No. 2602 Page 7 a) The CSS on-site is not dense or classified as high quality; b) The CSS on-site is not in proximity to a high quality CSS stand; and, c) The CSS on-site is not located in a corridor between higher value CSS stands If the Director resolves to issue a Loss Permit, s/he shall prepare draft written findings, and such proposed terms and conditions, including mitigation measures, s/he deems appropriate upon which to issue the Loss Permit ("Draft Loss Permit"). F. Resource Agencies and Council Review of Gel'cain Pipefine Projects. For Pipeline Projects which have already undergone CEQA review and no change to the project design/permit are required in order to issue the Draft Loss Permit, the Draft Loss Permit shall not be issued for a period of 30 days ("Review Period") after a Notice of Availability of the Draft Loss Permit and Draft Loss Permit (including findings and intent to issue) has been distributed to the San Diego Association of Governments (SANDAG) and the California Department of Fish & Game CCDFG") and the U.S. Fish and Wildlife Service CUSF&WS") (the latter two of which shall, when referenced together, shall collectively be referred to as the "Resource Agencies"). The Notice of Availability of the Draft Loss Permit and Draft Loss Permit shah also be placed on the City Council agenda, as a consent agenda item unless the City Manager directs the item be placed on the agenda for action, for the soonest regular Council meeting scheduled to occur after the beginning of the Review Period as the agenda preparation schedule may permit. The Council shah have the right to express concerns and give directions to the Director regarding the decision to grant the Permit, or to add, delete or modify the terms and conditions t_hereof. Concerns and directions issued by the Council shall be forwarded to SANDAG and the Resource Agencies as soon as possible. No additional review by the general public, or public heating and noticing of the public will be required. SANDAG shaH, during the first 15 days of the Review Period, have the opportunity to review the Draft Loss Permit to verify that the proposed habitat loss does not exceed the maximum permitted habitat loss for the subregion. The USFW&S shall, during the Review Period, have the opportunity to review the Draft Loss Permit and to notify the City whether, in their opinion, the project and mitigation program are inconsistent with the Conservation Guidelines. If the USF&WS opines that the proposed Loss Permit is not consistent with the Conservation Guidelines, they shall have a maximum of 60 days after notification of their opinion of inconsistency to consult with CDFG and provide recommendations to the City for modifying the Draft Loss Permit (including modifying the project or terms and conditions of the Loss Permit), to eliminate the inconsistency. If USF&WS responds that the Draft Loss Permit is consistent with the Conservation Guidelines in less than 30 days, the Review Period shall end at the later of the date of such response or the first 15 days of the Review Period. If SANDAG confirms that the regional cumulative 5% habitat loss is not exceeded and if no notification is provided by the USF&WS within the above-noted 30 days, the proposed habitat loss shah be deemed approved and the 4(d) permit shah be granted. Ordinance No. 2602 Page 8 G. Public Review. For Non-Pipeline Projects, the Director of Planning (or his designee) shall provide the public agencies listed in subsection F. above with the same review rights as set forth therein for the same Review Period, and in addition thereto, shah make the Draft Loss Permit, including the findings, terms and conditions, available for public review as part of the environmental review process. H. Inconsistency with Guidelines. The Director shah either include such recommendations required by the USF&WS in the Draft Loss Permit, or shall not issue the Loss Permit. I. Issuance of Permit. The Director may issue the Draft Loss Permit in the form as modified by the requirements of the USF&WS and the requirements of the City Council that are consented to by the USF&WS, subject to such additional terms and conditions as he deems appropriate resulting from the application and review process but not inconsistent with the requirements or direction of the USF&WS or the City Council, including, but not limited to the following conditions: 1. The Loss Permit shall be issued only when development is eminent, and shah automatically expire six (6) months from issuance unless, in the opinion of the Director, substantial site work or other site development activities have not commenced. The Director is authorized to extend the termination date of the Loss Permit if requested by the applicant, but not for a period of time greater than six (6) months from the termination date of the originally issued Loss Permit, and then, only if the Director determines that the findings, terms and conditions on which the Loss Permit was originally issued still apply, the need for the extension is due to circumstances beyond the conu'ol of the applicant and that development will likely proceed prior to the expiration of the extended time period. See 17.30.102 Grant of Loss Permits by Fire Marshal. Without complying with the requirements of this Chapter or Section 10(a) of the Endangered Species Act, or the rules and regulations promulgated thereunder, the City of Chula Vista Fire Marshal is authorized to take CSS or to issue a Loss Permit to a property owner to take CSS where it is necessary in his or her opinion to mitigate an extreme fire danger that threatens humans or struetares occupied or capable of being occupied by humans, and then only to the extent necessary to mitigate such danger, but in no event more than 30 feet from any property line. In such eases, only thinning and pruning of CSS habitat will be allowed. SECTION 2. The City Council does hereby find that, based on the facts set forth in the recitals hereto, this ordinance is necessary as an emergency measure for Ordinance No. 2602 Page 9 preserving the public peace, health, safety, and general welfare, and may be introduced and adopted at one and the same meeting if passed by at least four affirmative votes. Presented by Approved as to form by Robert A. Leiter Boogaard' ' ~ Director of Planning City Attorney Ordinance No. 2602 Page 10 PASSED, APPROVED and ADOPTED by the City Council of the City of Chula Vista, California, this 16th day August, 1994, by the following vote: AYES: Councilmembers: Fox, Horton, Moore, Rindone NOES: Councilmembers: Nader ABSENT: Councilmembers: None ABSTAIN: Councilmembers: None Tim Nader, Mayor ATTEST: Beverly A~ Authelet, City Clerk STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss. CITY OF CHULA VISTA ) I, Beverly A. Authelet, City Clerk of the City of Chula Vista, California, do hereby certify that the foregoing Ordinance No. 2602 had its urgency reading and adoption at a regular meeting of said City Council on the 16th day of August, 1994. Executed this 16th day of August, 1994. Beverly A./Authelet, City Clerk