Rancho Palos Verdes City Council
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TO:

TO: MAYOR STERN AND MEMBERS OF THE CITY COUNCIL

FROM: THE DIRECTOR OF PLANNING, BUILDING AND CODE ENFORCEMENT AND THE CITY ATTORNEY

DATE: FEBRUARY 4, 2003

SUBJECT:ORDINANCE PROHIBITING THE REMOVAL OF COASTAL SAGE SCRUB HABITAT IN THE ABSENSE OF THE ISSUANCE OF A 4(d) PERMIT BY THE CITY

RECOMMENDATION

Read by title only, waive further reading and adopt Urgency Ordinance No. ___U, An Ordinance of the City of Rancho Palos Verdes Relating To the Conservation and Management of Coastal Sage Scrub Habitat, Establishing Regulations and Procedures Applicable Thereto, Amending the Rancho Palos Verdes Municipal Code and Declaring the Urgency Thereof.

BACKGROUND

Two years ago, concerns were raised about a property owner who appeared to be removing coastal sage scrub habitat ("CSS") from his property. At that time, the City Council raised concerns about whether the activity was lawful. Under the Federal Endangered Species Act, the only CSS that could not be removed without a federal permit was habitat that was occupied by an endangered or threatened species. Since there was no evidence that the habitat that was being removed was occupied habitat, there was no mechanism in place that could prevent the removal of the CSS.

Meanwhile, the City was in the process of preparing its NCCP, and had entered into a Planning Agreement with the California Department of Fish and Game to accomplish that goal. As part of that agreement, the City Council approved Interim Habitat Loss Permit Process Guidelines. By approving those Guidelines, the City could issue interim take, or 4(d) permits, to allow the removal of certain CSS, provided that the removal did not exceed five percent (5%) of the total amount of the CSS in the City. Both the Federal Endangered Species Act and State law allow this process. However, this process typically has been applied in the context of removal of CSS in connection with some type of development project.

During this same time period, the City entered into agreements with the two owners of the large holdings of undeveloped land in the Moratorium Area to purchase their properties for open space purposes. In connection with one of the purchase agreements, the property owner who had removed the CSS from his property agreed not to remove additional CSS and to limit future weed abatement work to areas that previously had been cleared of weeds and other vegetation.

Although the City has continued the process of preparing the NCCP and still is working with the Peninsula Land Conservancy and state and federal officials to obtain the funding necessary to purchase the large properties in the Moratorium area, sufficient funding has not yet been obtained, and the purchase of the properties has not been completed.

Late last year, the same property owner once again commenced weed abatement activities that allegedly included the removal of some CSS. Then-Council Member Stern inquired if the City could adopt an ordinance that would prevent this activity. The City Attorney’s Office has conducted research on that issue. Based upon that research, it does not appear that either federal or state law preempts the City from adopting an ordinance that would prevent the removal of CSS without first obtaining a permit from the City. Such a process also provides the additional benefit of regulating removal of all CSS in the City, since any CSS that is removed counts against the 5% cap that was imposed as part of the NCCP/4(d) process.

DISCUSSION

The ordinance that is attached to this report is designed to address the concerns about the unregulated removal of CSS habitat, which were raised previously by the City Council. The ordinance is based upon the current NCCP Interim Habitat removal process, which was implemented by the City when the Council approved the NCCP Interim Habitat Loss Permit Guidelines in 1997. The proposed ordinance will incorporate the 4(d) process into the Municipal Code.

Essentially, the proposed ordinance clarifies that the requirement of obtaining a 4(d) permit to remove CSS habitat applies to the removal of any CSS habitat in the City and is not limited to habitat removal that occurs in connection with development projects. The ordinance also codifies the process that Staff has been following in issuing 4(d) permits since the Council approved the Interim Habitat Loss Guidelines. The ordinance sets forth the findings that must be made to grant a permit and states that appropriate conditions may be imposed on the issuance of a permit. The ordinance further provides that decisions by the director on applications for 4(d) permits may be appealed to the City Council. Finally, the ordinance establishes the violations and penalties for failing to obtain the required permit, which include criminal misdemeanor penalties. It also allows the City to require the violator to perform re-vegetation activities and pay a fine sufficient to cover the City’s cost of achieving compliance and the cost of ensuring that the new CSS is maintained until it is fully established.

CONCLUSION

Adopting the urgency ordinance and introducing the other ordinance will prevent the removal of CSS in the City unless a 4(d) permit is issued by the director or the City Council and will codify the process to obtain the permit into the Municipal Code.

ADDITIONAL INFORMATION

If the City Council concurs with the approach that is being suggested by Staff, Staff will prepare a non-urgency version of the same ordinance to present to the City Council at a public hearing at the next Council meeting. Staff also anticipates that a resolution will be presented to the City Council, which will amend the NCCP Interim Habitat Loss Permit Process Guidelines to eliminate any inconsistencies between that document and the process that is set forth in the ordinance.

Respectfully submitted:

_____________________________________________

Joel RojasCarol Lynch

Director of Planning, Building and City Attorney

Code Enforcement

 

Reviewed by:

________________________

Les Evans

City Manager

ORDINANCE NO.

AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES RELATING TO THE CONSERVATION AND MANAGEMENT OF COASTAL SAGE SCRUB HABITAT, ESTABLISHING REGULATIONS AND PROCEDURES APPLICABLE THERETO, AMENDING THE RANCHO PALOS VERDES MUNICIPAL CODE AND DECLARING THE URGENCY THEREOF.

THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY ORDAIN AS FOLLOWS:

Section 1.The City Council finds and declares all of the following:

    1. Pursuant to the authority provided by the Natural Community Conservation Planning Act of 1991(commencing with Section 2800 of the California Fish and Game Code), the City has entered into a formal planning agreement with the California Department of Fish and Game ("DFG") for the purpose of implementing a natural community conservation plan ("NCCP") to provide for the regional protection and perpetuation of natural wildlife diversity while allowing compatible land use and appropriate development and growth in areas where there is coastal sage scrub ("CSS") habitat.

    2. The City is actively engaged in the planning and preparation of a NCCP pursuant to the planning agreement. During the planning period, it is desirable to ensure that activity in the City is consistent with the goals, objectives, and efforts of the NCCP process through the adoption of regulations that both respect property rights and protect the public health, safety and general welfare.

    3. CSS habitat supports a unique diversity of plant and wildlife species and is a valuable natural resource for the City and its residents. The United States Fish and Wildlife Service ("FWS") has identified CSS habitat as critical habitat essential to the conservation of several endangered and threatened species, including the coastal California gnatcatcher (the "gnatcatcher").

    4. Unregulated development and other activity in environmentally sensitive CSS habitat areas, and the unregulated removal of CSS, results in the elimination of critical habitat, reduces the natural species diversity in the City, and appreciably reduces the likelihood of the continued survival of the gnatcatcher.

    5. Unregulated modification or removal of CSS habitat jeopardizes the continued survival of the gnatcatcher, increases the fragmentation of habitat areas, and thwarts the City’s efforts to prepare a NCCP final preserve plan.

    6. A comprehensive conservation and resource management system for CSS provides a focus that can effectively address cumulative impact concerns, minimizes habitat fragmentation, promotes natural resource management and conservation, provides an option for identifying and ensuring appropriate mitigation for impacts on wildlife, and supports the City’s efforts to prepare a NCCP final preserve plan.

    7. CSS conservation and management can provide for efficient use and protection of limited natural resources while also promoting greater sensitivity to important elements of the City’s critical natural diversity.

    8. CSS conservation and management is consistent with, and will support, the natural resource management activities of the City in its role as lead agency in the preparation of the sub-regional NCCP for the Palos Verdes Peninsula Sub-area.

Section 2. Title 17 of the Rancho Palos Verdes Municipal Code is hereby amended by adding Chapter 17.41 thereto to read as follows:

"Chapter 17.41. Coastal Sage Scrub Conservation and Management.

17.41.010. Short title.

17.41.020. Purpose and intent.

17.41.030. Application of chapter.

17.41.040. Definitions.

17.41.050. Prohibited conduct.

17.41.060. Exemptions.

17.41.070. Permit required.

17.41.080. Application process.

17.41.090. Action by the director.

17.41.100. Findings.

17.41.110. Conditions.

17.41.120. Notice of decision.

17.41.130. Appeal.

17.41.140. Violations and penalties.

17.41.010. Short Title. This chapter shall be known and may be cited as the "Rancho Palos Verdes Coastal Sage Scrub Conservation Ordinance."

17.41.020. Purpose and intent. This chapter establishes policies, regulations, and standards necessary to ensure that the City will continue to realize the benefits provided by its natural environment. The City Council finds and declares that it is necessary to adopt this chapter to promote the public health, safety and general welfare by providing criteria that reduce potential adverse impacts on threatened or endangered species, which could be directly created or indirectly induced by the unregulated removal of CSS habitat regardless of whether such removal occurs in connection with proposed and existing developments. Coastal sage scrub habitat has been designated by the United States Fish and Wildlife Service as critical habitat essential for the continued survival of, among other species, the coastal California gnatcatcher. Therefore, this chapter:

    1. Maintains coastal sage scrub habitat in a healthy and non-hazardous condition through good conservation practices;

    2. Establishes and maintains appropriate natural diversity in plant and wildlife species by preserving coastal sage scrub habitat in its natural state to the maximum extent possible;

    3. Provides standards and procedures to obtain 4(d) permits for habitat modification purposes;

    4. Regulates the manner in which coastal sage scrub, a specifically identified critical habitat within the City is maintained, enhanced or removed, in order to ensure a proper relationship between inherent, unique features of these lands and urban uses, both existing and future;

    5. Maintains and enhances coastal sage scrub plant communities necessary for the continued survival of valuable land-based wildlife and vegetation;

    6. Preserves the natural character of the Rancho Palos Verdes Peninsula;

    7. Reduces impacts of development and human activity on CSS habitat;

    8. Regulates and minimizes losses of CSS habitat and ensures that such losses do not foreclosure the City’s future conservation planning efforts;

    9. Protects and preserves areas of CSS habitat with high conservation value to the maximum extent possible;

    10. Ensures that all losses of CSS habitat are adequately mitigated to minimize the impact of such losses on the diversity of wildlife within the City;

    11. Maintains the existing coastal sage scrub of the City in its natural state to the maximum extent possible, to the extent commensurate with the protection of the public health and safety, including mandated fire protection policies, and encourages the re-establishment of appropriate native plants when CSS habitat is removed;

    12. Establishes a review process that ensures the orderly conservation and management of CSS habitat and involves consultation and coordination with the applicable federal or state resource agencies, as appropriate.

      13. 17.41.030.Application of chapter. This chapter shall apply to all coastal sage scrub, whether occurring naturally or introduced through man-made re-vegetation efforts, located within the geographical limits of the City, including any areas subsequently annexed by the City, unless state or federal law prescribes otherwise.

      17.41.040. Definitions. For the purposes of this chapter, the following definitions shall apply unless the context clearly requires otherwise:

    13. "City" means the City of Rancho Palos Verdes.

    14. "City council" means the city council of the City of Rancho Palos Verdes.

    15. "Coastal sage scrub or coastal sage scrub plant community ("CSS")" means a vegetation community composed of relatively low-growing summer deciduous and succulent plants. Coastal sage scrub is the more general name for vegetation communities known as maritime succulent scrub, Diegan (or Riversidian) sage scrub, southern coastal bluff scrub, inland sage scrub, alluvial fan scrub, and mixtures of vegetation communities containing coastal sage elements and providing suitable gnatcatcher habitat. Characteristic plants of this community include, but are not limited to, California sagebrush (Artemisia californica), ashy-leaf buckwheat (Eriogonum cinereum), California sunflower (Encelia californica), coyote brush (Baccharis pilularis), California buckwheat (Eriogonum fasciculatum), lemonadeberry (Rhus integrifolia), purple sage (Salvia leucophylla), black sage (Salvia mellifera), prickly pear and cholla cactus.

    16. "Critical habitat" means the specific areas within the geographic area that are occupied by an endangered or threatened species that is listed in accordance with the federal endangered species act, on which are found those physical or biological features (i) essential to the conservation of the species and (ii) which may require special management considerations or protection.

    17. "Department of Fish and Game" means the California Department of Fish and Game.

    18. "Director" means the Director of Planning, Building and Code Enforcement for the City of Rancho Palos Verdes.

    19. "Fish and Wildlife Service" means the United States Fish and Wildlife Service.

    20. "Gnatcatcher" means the coastal California gnatcatcher (Polioptila californica), a small insectivorous songbird that inhabits almost exclusively the coastal sage scrub plant community, although it is found in other plant communities. The gnatcatcher has been listed as a threatened species under the federal endangered species act. The continued existence of the gnatcatcher is threatened by habitat loss and fragmentation occurring in conjunction with urban and agricultural development.

    21. "Habitat modification" means altering, clearing, cutting, destroying, relocating, or removing any coastal sage scrub, or any other act, which causes, or may be reasonably expected to cause the reduction in habitat value of a coastal sage scrub plant community. "Habitat modification or removal," includes, but is not limited to, damaging the plant or root systems by machinery, storage of materials, or soil compaction, excessive pruning, paving with concrete, asphalt, or other impervious material in the immediate vicinity of the coastal sage scrub, or in a manner which may reasonably be expected to kill a coastal sage scrub plant community, using herbicides to control or kill coastal sage scrub vegetation, or excessive or inadequate irrigation.

    22. "Natural communities conservation plan" means a plan for the conservation of natural communities using an ecosystem approach prepared pursuant to the State of California’s Natural Communities Conservation Planning Act.

      23. 17.41.050. Prohibited conduct. Except under the authority of a 4(d) permit issued by the City pursuant to the provisions of the City’s Natural Communities Conservation Plan (NCCP) Interim Habitat Loss Permit Process Guidelines and the provisions of this Chapter, it shall be unlawful for any person, firm, business, corporation, or any other entity to clear, cut, destroy, relocate, trim, prune, burn, remove or otherwise injure or perform habitat modification work on any CSS that is present on any parcel of land within the geographical limits of the City.

      17.41.060. Exemptions. The provisions of this Chapter and Section 17.76.160 shall not apply to any of the following:

    23. Removal of CSS or any other form of habitat modification for the purpose of fire protection, such as the establishment of fuel modification zones and fire breaks, thinning or brush clearing; provided such actions follow a written plan or a written order that is required by the Los Angeles County Fire Department or by other governmental entity;

    24. Removal of CSS or any other form of habitat modification required by any written local, county, state, or federally mandated health and safety order; provided such removal or clearing of vegetation follows a written plan approved and required by the applicable City, State, or Federal government;

    25. Removal of CSS or any other form of habitat modification performed by the City or by another governmental entity or by a utility in response to an emergency, in order to protect the public health and safety; and

    26. Loss of CSS that is the result of a natural event, such as landslide, fire or flood.

      27. 17.41.070Permit required. A 4(d) permit is required for all alteration, clearing, cutting, destruction, modification, relocation, removal or habitat modification of CSS, regardless of whether the habitat modification is to be performed in connection with a development project or any other activity, unless such habitat modification is expressly exempted from the provisions of this chapter by Section 17.41.060. Any habitat modification must comply with all applicable local, state, and federal regulations, including, without limitation, both the federal and state endangered species acts.

      17.41.080Application process.

    27. The application for a 4(d) permit shall be filed with the director on forms provided by the City.

    28. The application for a 4(d) permit shall be accompanied by such information as the director may reasonably require for a complete understanding of the request and shall include, at a minimum, all of the following:

    1. A plot plan of the subject property, drawn at a reasonable scale, identifying all property lines, easements, existing and proposed structures, existing topographic conditions, and the location of all CSS on the property;

    2. A list of all equipment, if any, and the method(s) to be used in performing the habitat modification work on the subject property.

    3. An accurate calculation in acres, or fractions thereof, of the total area of CSS located on the subject property, and the total area, or fractions thereof, of CSS that will be the subject of the alteration or habitat modification;

    4. Any additional plans, drawings or calculations deemed necessary by the director to demonstrate that the proposed application complies with the provisions of this title; and

    5. The filing fee established by resolution of the city council.

    6. A biological survey prepared by a qualified biologist that indicates the type of CSS that is present on the property, whether the CSS is occupied by endangered or threatened species and its habitat value.

17.41.090Action by the director. Not later than sixty (60) days after the application for a 4(d) permit is deemed complete, the director shall either grant, deny, or conditionally grant the permit.

17.41.100Findings. To grant a 4(d) permit, the director, or the City Council on appeal, must make the following findings:

  1. That the permit will result in no significant adverse effect on neighboring properties. Factors to be considered in making this finding shall include, but not be limited to, increased runoff, and other significant adverse impacts.

  2. That the permit is consistent with the general plan, coastal specific plan, or any other applicable plan.

  3. That the permit is consistent with the City’s adopted NCCP Interim Habitat Loss Guidelines and with any applicable sub-regional process, if established;

  4. That the habitat loss allowed by the permit will not cumulatively exceed the five percent (5%) maximum take of CSS, which is set forth in the City’s adopted NCCP Interim Habitat Loss Guidelines;

  5. That the permit does not "take" a protected species under either the federal or state endangered species acts;

  6. That the permit will not modify the coastal sage scrub habitat in such a manner as to preclude connectivity between areas of high habitat value;

  7. That the permit will not preclude or prevent the City from preparing a NCCP final preserve plan;

  8. That the permit will minimize, to the maximum extent practicable, the loss of coastal sage scrub habitat;

  9. That the permit will not appreciably reduce the likelihood of survival and recovery of any federally or state listed species; and

  10. That the permit will allow habitat modification that is incidental to otherwise lawful activities.

    11. 17.41.110Conditions. In granting a 4-(d) permit, the director, or the City Council on appeal, shall impose conditions on the permit which are reasonably necessary to ensure that the proposed habitat alteration will comply with the City’s adopted NCCP Interim Habitat Loss Guidelines and the provisions of this chapter. Noncompliance with any condition of a habitat modification permit shall constitute a violation of this chapter and shall be punishable accordingly. The conditions imposed may relate to one or more of the following:

  11. The value of the coastal sage scrub habitat impacted;

  12. The appropriate mitigation for the proposed loss of coastal sage scrub habitat;

  13. The necessary federal or state permits, if applicable;

  14. The impact of the proposed modification on wildlife species, particularly those species listed as endangered or threatened under the federal or state endangered species acts;

  15. The mitigation necessary to ensure the continued existence of coastal sage scrub dependent wildlife and plant species;

  16. The mitigation necessary to ensure the coastal sage scrub habitat continues to support a high density and diversity of species;

  17. The mitigation necessary to minimize habitat fragmentation and ensure the proposed modification of coastal sage scrub habitat does not interfere with functional wildlife corridors and habitat linkages;

  18. The appropriate replacement and/or restoration of habitat, including habitat enhancement, creation, and/or transplantation of coastal sage scrub species;

  19. Payment of fees in lieu of, or in addition to, habitat restoration;

  20. The mitigation necessary to ensure that any new CSS that is planted will be properly maintained for a period, which is the greater of, five years or until the habitat is established and thriving;

  21. Other mitigation measures determined by the director to be reasonably necessary to protect the health, safety, and general welfare.

17.41.120Notice of decision. The director shall provide written notice of his or her decision approving or denying a 4(d) permit to the applicant and to any interested persons pursuant to section 17.80.040 (Hearing Notice and Appeal Procedures) of this title and to the Department of Fish and Game and the Fish and Wildlife Service.

17.41.130Appeal. The applicant or any interested person may appeal the director’s decision on an application for a 4(d) permit to the City Council, pursuant to Chapter 17.80 (Hearing Notice and Appeal Procedures) of this title. No permit shall be effective, and no alteration to a habitat authorized by a permit shall be initiated until the appeal period has been exhausted.

17.41.140. Violations and penalties. A violation of any of provision of this chapter is a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in the county jail for a period not exceeding six (6) months, or by both such fine and imprisonment. Any person found to have violated any provision of this chapter shall be deemed guilty of a separate and distinct offense for each day, or portion thereof, during which such violation continues, and shall be punishable accordingly. In addition to the foregoing, the City may require re-vegetation work be performed by the violator, at a ratio to be determined by the director, and may assess a fine in an amount necessary to assure that the CSS that was improperly removed can be replaced and maintained for a minimum period of five years or until the CSS is reestablished and sufficient to cover any other costs incurred by the City in achieving compliance with this Chapter. "

Section 4. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this ordinance, or the application thereof to any person or place, is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remainder of this ordinance. The City Council hereby declares that it would have adopted this ordinance, and each and every section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.

Section 5.Urgency findings.CSS habitat supports a unique diversity of plant and wildlife species and is a valuable natural resource for the City and its residents. The United States Fish and Wildlife Service ("FWS") has identified CSS habitat as critical habitat essential to the conservation of several endangered and threatened species, including the coastal California gnatcatcher (the "gnatcatcher"). Unregulated development and other activity in environmentally sensitive CSS habitat areas, and the unregulated removal of CSS, results in the elimination of critical habitat; reduces the natural species diversity in the City, and appreciably reduces the likelihood of the continued survival of the gnatcatcher. Without the adoption of this ordinance, property owners can remove habitat that is not occupied by endangered or threatened species. The City has been advised that CSS has been removed previously by owners of certain properties in the City, and that these property owners will continue to remove CSS habitat in the future, unless an ordinance is adopted that restricts or prevents such activities. The unregulated modification or removal of CSS habitat jeopardizes the continued survival of the gnatcatcher due to increases of the fragmentation of habitat areas, which will adversely affect the City and its residents. Such activities also thwart the City’s efforts to prepare a NCCP final preserve plan. In order to protect the public health, safety and welfare, it is necessary for the City of Rancho Palos Verdes to adopt an urgency ordinance, which will become effective immediately, so that property owners cannot continue the unregulated removal of CSS habitat. Therefore, this ordinance is necessary for the protection of the public health, safety and welfare and shall take effect immediately upon adoption as an urgency ordinance.

Section 6. The City Clerk shall cause this Ordinance to be posted in three (3) public places in the City within fifteen (15) days after its passage, in accordance with the provisions of Section 36933 of the Government Code. The City Clerk shall further certify to the adoption and posting of this Ordinance, and shall cause this Ordinance and its certification, together with proof of posting, to be entered in the Book of Ordinances of the Council of this City.

Section 7. This Ordinance shall go into effect and be in full force and effect at 12:01 a.m. on the thirty-first (31st) day after its passage.

PASSED, APPROVED and ADOPTED this _____ day of __________________, 2003.

_______________________________

Mayor

ATTEST:

_______________________

City Clerk