Rancho Palos Verdes City Council
   

TO:

TO: MAYOR STERN AND MEMBERS OF THE CITY COUNCIL

FROM: THE DIRECTOR OF PLANNING, BUILDING AND CODE

ENFORCEMENT AND THE CITY ATTORNEY

DATE: MARCH 4, 2003

SUBJECT: ORDINANCE RELATING TO THE CONSERVATION AND MANAGEMENT OF COASTAL SAGE SCRUB HABITAT AND ESTABLISHING REGULATIONS AND PROCEDURES RELATING TO REMOVAL OF UNOCCUPIED HABITAT

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, and

Read by title only, waive further reading and introduce 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, And Amending the Rancho Palos Verdes Municipal Code

BACKGROUND

At its February 4, 2003, meeting the City Council considered a draft ordinance that would have required property owners intending to remove any Coastal Sage Scrub Habitat ("CSS"), regardless of whether the habitat is occupied by a threatened or endangered species, to first obtain a permit from the City. In response to concerns that were expressed about requiring another permit be obtained from the City, a revised ordinance has been prepared for further Council consideration.

The revised ordinance proposes a notice procedure that will allow the City keep track of any CSS habitat that is removed and to require any person who seeks to remove CSS habitat to provide a biological study to ensure that the habitat that is to be removed is not occupied by threatened or endangered species.

DISCUSSION

The revised ordinance that is attached to this report was drafted to address concerns regarding unregulated and undocumented removal of CSS habitat, which were raised previously by the City Council. The ordinance will assist in implementing the current NCCP Interim Habitat removal process, which was initiated by the City when the Council approved the NCCP Interim Habitat Loss Permit Guidelines in 1997. The proposed ordinance will allow the City to continually monitor habitat removal to insure compliance with the limitations appurtenant to the 4(d) process, so that the maximum 5% acreage cap is not exceeded.

Essentially, the ordinance will require that a person seeking to remove habitat will be required, as a prerequisite, to notify the Director of Planning, Building and Code Enforcement. As part of the notice, the applicant will be required to supply a plot plan and a current biological survey of the area where the removal is proposed. If the maps and studies on file in the City support the determination set forth in the biological survey, the Director will issue a notice to proceed. On the other hand, if it appears that the habitat that is to be removed is within 100 feet of habitat that previously was identified as occupied, then the Director will notify the applicant in writing and will have another biological survey prepared at the applicant’s expense. If the second survey demonstrates that the habitat is not occupied, the Director will issue the notice to proceed. On the other hand, if the habitat is occupied, then the Director will notify the applicant that he or she must obtain a 4(d) permit from the City.

The ordinance provides that decisions by the Director to issue a notice to proceed, or alternately a notice to suspend the proposed habitat removal, may be appealed to the City Council. The ordinance also establishes the violations and penalties for failing to follow the process, 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.

Finally, the ordinance makes clear that any authorization by the City to remove CSS is invalid, if the property owner or its representatives discover that the habitat is occupied. This requirement makes clear the priority of federal laws prohibiting the take of listed species, and ensures that the City’s regulation would not permit activities otherwise prohibited under federal or state law.

CEQA COMPLIANCE

The proposed ordinance would establish a regulatory process for the protection of the environment, and therefore qualifies for a Class 8 exemption from the requirements of CEQA pursuant to State CEQA Guidelines Section 15308 and Appendix E of the City of Rancho Palos Verdes’ Local CEQA Guidelines.

CONCLUSION

Adopting the urgency ordinance, and introducing the regular ordinance, will prevent the removal of CSS in the City, unless a notice and review process is first completed, and will codify the process into the Municipal Code.

Respectfully submitted:
Joel Rojas
Director of Planning, Building and Code Enforcement

Carol Lynch
City Attorney

Reviewed by:
Les Evans
City Manager

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.

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. CSS conservation and management is consistent with the efforts of the City and the requirements of the United States Fish and Wildlife Service and the California Department of Fish and Game 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. Notice required.

17.41.080. Action by the director.

17.41.090. Appeal.

17.41.100. Permit required.

17.41.110. 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 requirements and procedures 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 that is occupied by threatened or endangered species, 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 establishes notice requirements for proposed removal of coastal sage scrub habitat to ensure that such removal does not jeopardize the continued viability of any endangered or threatened species due to the removal of occupied habitat.

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:

  1. "City" means the City of Rancho Palos Verdes.
  2. "City council" means the city council of the City of Rancho Palos Verdes.
  3. "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.
  4. "Department of Fish and Game" means the California Department of Fish and Game.
  5. "Director" means the Director of Planning, Building and Code Enforcement for the City of Rancho Palos Verdes.
  6. "Fish and Wildlife Service" means the United States Fish and Wildlife Service.
  7. "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.
  8. "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.
  9. "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.
  10. 17.41.050. Prohibited conduct. 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 habitat that is present on any parcel of land within the geographical limits of the City without first complying with the provisions of this Chapter.

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

  11. 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 another governmental entity;
  12. 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;
  13. 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
  14. Loss of CSS that is the result of a natural event, such as landslide, fire or flood.

Even though the situations listed above are exempt from the requirements of this chapter, written notice of the removal or loss of CSS shall be provided to the director within thirty days following the date when the CSS was eliminated, which specifies the address of the property where the CSS was located and an estimate of the amount of CSS that was eliminated.

17.41.070 Notice required.

a. Unless exempted from the provisions of this chapter by Section 17.41.060, at least fifteen (15) business days prior to commencing any 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, the property owner shall notify the director in writing of his or her intent to undertake such activities.

b. The notice required by this section shall be in a form prescribed by the director and shall be accompanied by the following information:

    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. The timeframe when the proposed habitat modification is to be performed;
    3. A list of all equipment, if any, and the method(s) to be used in performing the habitat modification work on the subject property;
    4. 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;
    5. 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
    6. A current biological survey prepared by a qualified biologist no more than six months before the date of the notice, which includes, at a minimum, the following:
    1. a description of the type of CSS present on the property and its habitat value;
    2. evidence and documentation establishing whether the CSS is occupied by endangered or threatened species; and
    3. evidence and documentation establishing that the proposed activity does not "take" a protected species under either the federal or state endangered species acts.

17.41.080. Action by the director. Upon receipt of a notice of proposed habitat removal or modification, the director shall promptly review the notice and all accompanying material, including the biological survey. After completing this review, the director shall take one of the following actions:

a. If the information provided by the property owner demonstrates to the satisfaction of the director that the CSS habitat in question is not occupied by a threatened or endangered species, the director shall issue a written notice to proceed to the property owner; or

b. If the director determines that the CSS habitat in question is located within 100 feet of habitat previously identified as occupied by a threatened or endangered species, as shown on the maps and reports maintained by the City and on file in the Planning Department, the director shall: (i) notify the property owner in writing that no removal or modification of CSS may commence for 30 days, and (ii) retain an independent biologist at the property owner’s expense to review the biological survey provided by the property owner and confirm whether the CSS habitat in question is occupied. If the independent biologist retained by the City confirms the information in the biological survey provided by the property owner and determines that the CSS habitat on the property is not occupied, the director shall issue a written notice to proceed to the property owner. If, alternatively, the independent biologist retained by the City determines that the CSS habitat on the property is occupied, the director shall immediately notify the property owner in writing that no habitat removal or modification activities shall be conducted until a 4(d) permit is obtained.

17.41.090 Appeal. The applicant or any interested person may appeal the director’s decision on the notice to the City Council, pursuant to Chapter 17.80 (Hearing Notice and Appeal Procedures) of this title. The property owner shall not remove or alter any CSS habitat until the appeal period has been exhausted.

17.41.100 Permit required. Unless authorized by 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 or the Fish and Wildlife Service pursuant to its authority under the Federal Endangered Species Act, 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 habitat that is occupied by a threatened or endangered species within the geographical limits of the City. Accordingly, if, after obtaining a written notice to proceed from the director pursuant to this chapter and undertaking CSS habitat modification activities, the property owner discovers that the habitat on the property is occupied, the property owner shall immediately cease all habitat modification activities and notify the director that the habitat is occupied. No further habitat modification activities may be undertaken until the property owner obtains a 4(d) permit.

17.41.110. 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"). The unregulated removal of occupied CSS habitat appreciably reduces the likelihood of the continued survival of the gnatcatcher. Without the adoption of this ordinance, property owners can remove habitat without any review by the City or FWS. The City has been advised that owners of certain properties in the City have removed CSS previously, and that these property owners will continue to remove CSS habitat in the future. An ordinance is necessary to provide notice to the City in order to ensure that such activities do not threaten the continued survival of the gnatcatcher. The modification or removal of occupied CSS habitat jeopardizes the continued survival of the gnatcatcher, 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 to remove CSS habitat without providing notice of their proposed actions to the City. 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. This ordinance has been reviewed in accordance with the requirements of the California Environmental Quality Act (CEQA), the State CEQA Guidelines (14 Cal. Code Regs. § 15301), and the City’s environmental guidelines. The ordinance establishes a regulatory process for the protection of the environment. Accordingly, the City has issued a Class 8 Categorical Exemption for the ordinance in accordance with the State CEQA Guidelines (14 Cal. Code Regs. § 15308).

Section 7. 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.

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

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, AND AMENDING THE RANCHO PALOS VERDES MUNICIPAL CODE

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. CSS conservation and management is consistent with the efforts of the City and the requirements of the United States Fish and Wildlife Service and the California Department of Fish and Game 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. Notice required.

17.41.080. Action by the director.

17.41.090. Appeal.

17.41.100. Permit required.

17.41.110. 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 requirements and procedures 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 that is occupied by threatened or endangered species, 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 establishes notice requirements for proposed removal of coastal sage scrub habitat to ensure that such removal does not jeopardize the continued viability of any endangered or threatened species due to the removal of occupied habitat.

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:

  1. "City" means the City of Rancho Palos Verdes.
  2. "City council" means the city council of the City of Rancho Palos Verdes.
  3. "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.
  4. "Department of Fish and Game" means the California Department of Fish and Game.
  5. "Director" means the Director of Planning, Building and Code Enforcement for the City of Rancho Palos Verdes.
  6. "Fish and Wildlife Service" means the United States Fish and Wildlife Service.
  7. "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.
  8. "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.
  9. "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.
  10. 17.41.050. Prohibited conduct. 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 habitat that is present on any parcel of land within the geographical limits of the City without first complying with the provisions of this Chapter.

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

  11. 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 another governmental entity;
  12. 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;
  13. 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
  14. Loss of CSS that is the result of a natural event, such as landslide, fire or flood.

Even though the situations listed above are exempt from the requirements of this chapter, written notice of the removal or loss of CSS shall be provided to the director within thirty days following the date when the CSS was eliminated, which specifies the address of the property where the CSS was located and an estimate of the amount of CSS that was eliminated.

17.41.070 Notice required.

a. Unless exempted from the provisions of this chapter by Section 17.41.060, at least fifteen (15) business days prior to commencing any 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, the property owner shall notify the director in writing of his or her intent to undertake such activities.

b. The notice required by this section shall be in a form prescribed by the director and shall be accompanied by the following information:

    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. The timeframe when the proposed habitat modification is to be performed;
    3. A list of all equipment, if any, and the method(s) to be used in performing the habitat modification work on the subject property;
    4. 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;
    5. 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
    6. A current biological survey prepared by a qualified biologist no more than six months before the date of the notice, which includes, at a minimum, the following:
    1. a description of the type of CSS present on the property and its habitat value;
    2. evidence and documentation establishing whether the CSS is occupied by endangered or threatened species; and
    3. evidence and documentation establishing that the proposed activity does not "take" a protected species under either the federal or state endangered species acts.

17.41.080. Action by the director. Upon receipt of a notice of proposed habitat removal or modification, the director shall promptly review the notice and all accompanying material, including the biological survey. After completing this review, the director shall take one of the following actions:

a. If the information provided by the property owner demonstrates to the satisfaction of the director that the CSS habitat in question is not occupied by a threatened or endangered species, the director shall issue a written notice to proceed to the property owner; or

b. If the director determines that the CSS habitat in question is located within 100 feet of habitat previously identified as occupied by a threatened or endangered species, as shown on the maps and reports maintained by the City and on file in the Planning Department, the director shall: (i) notify the property owner in writing that no removal or modification of CSS may commence for 30 days, and (ii) retain an independent biologist at the property owner’s expense to review the biological survey provided by the property owner and confirm whether the CSS habitat in question is occupied. If the independent biologist retained by the City confirms the information in the biological survey provided by the property owner and determines that the CSS habitat on the property is not occupied, the director shall issue a written notice to proceed to the property owner. If, alternatively, the independent biologist retained by the City determines that the CSS habitat on the property is occupied, the director shall immediately notify the property owner in writing that no habitat removal or modification activities shall be conducted until a 4(d) permit is obtained.

17.41.090 Appeal. The applicant or any interested person may appeal the director’s decision on the notice to the City Council, pursuant to Chapter 17.80 (Hearing Notice and Appeal Procedures) of this title. The property owner shall not remove or alter any CSS habitat until the appeal period has been exhausted.

17.41.100 Permit required. Unless authorized by 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 or the Fish and Wildlife Service pursuant to its authority under the Federal Endangered Species Act, 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 habitat that is occupied by a threatened or endangered species within the geographical limits of the City. Accordingly, if, after obtaining a written notice to proceed from the director pursuant to this chapter and undertaking CSS habitat modification activities, the property owner discovers that the habitat on the property is occupied, the property owner shall immediately cease all habitat modification activities and notify the director that the habitat is occupied. No further habitat modification activities may be undertaken until the property owner obtains a 4(d) permit.

17.41.110. 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. This ordinance has been reviewed in accordance with the requirements of the California Environmental Quality Act (CEQA), the State CEQA Guidelines (14 Cal. Code Regs. § 15301), and the City’s environmental guidelines. The ordinance establishes a regulatory process for the protection of the environment. Accordingly, the City has issued a Class 8 Categorical Exemption for the ordinance in accordance with the State CEQA Guidelines (14 Cal. Code Regs. § 15308).

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.

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