Rancho Palos Verdes City Council
   

TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL

FROM: DIRECTOR OF PLANNING, BUILDING, AND CODE ENFORCEMENT

DATE: DECEMBER 16, 2003

SUBJECT: ZON2003-00634 (WEED ABATEMENT REQUEST FOR LOWER FILORUM)

-- AN APPEAL OF THE DIRECTOR’S DETERMINATION THAT A PROPOSED WEED ABATEMENT ACTION, AS CONDITIONED, IS EXEMPT FROM THE PROHIBITIONS OF THE CITY’S COASTAL SAGE SCRUB URGENCY ORDINANCE

RECOMMENDATION

Staff recommends that the City Council adopt Resolution No. 2003-__, thereby modifying the conditions of approval for the proposed weed abatement request, and deny the appeals.

BACKGROUND

The City is actively engaged in the preparation of a Natural Communities Conservation Plan (NCCP) for the City. The purpose of the NCCP is to provide for the regional protection of critical habitat while allowing for compatible local land use. The U.S. Fish and Wildlife Service has identified Coastal Sage Scrub (CSS) as critical habitat essential to the

conservation of several endangered and threatened species, including the coastal California gnatcatcher. There is approximately 1,250 acres of CSS habitat within the City of Rancho Palos Verdes.

On May 16, 2002, York Long Point Associates notified Staff in writing that they intended to perform weed abatement on most of the 94-acre Point View property (Lower Filiorum) and on portions of Middle Filiorum. There was no justification given for the proposed weed abatement, no Fire Department Orders cited and no mention of a fire hazard of any kind. Staff immediately expressed a concern about the proposed weed abatement, since the City’s NCCP map indicates that the area proposed for weed abatement is known to contain protected CSS habitat and the federally protected California gnatcatcher has been known to nest in nearby habitat. Staff requested that the property owner not proceed with the proposed weed abatement until a biological study could be performed to ensure that no gnatcatchers were occupying the site of the proposed weed abatement. Although the property owner was willing to exclude two CSS bubble areas from the proposed weed abatement, the property owner was not willing to perform a biological assessment prior to performing the proposed weed abatement.

Therefore, in order to avoid the unregulated removal of CSS while the NCCP is being prepared, and to avoid any harm to any nesting gnatcatchers, on May 20, 2003, the City Council adopted Urgency Ordinance No. 391U establishing regulations and procedures for the conservation and management of CSS habitat (see attached Ordinance No. 391U). On July 1, 2003, the City Council extended the urgency ordinance to May 16, 2004.

The adopted urgency ordinance prohibits weed abatement on any property containing coastal sage scrub (CSS) habitat, unless the proposed weed abatement qualifies for an exemption as described in the ordinance. On September 25, 2003, the City received a request from the applicant seeking an exemption to perform weed abatement on 54.5 acres of the 93.7 acre Point View (Lower Filiorum) property. On November 7, 2003, after a review of the weed abatement exemption request, including consultation with the City’s consulting biologist, the Director determined that the information provided by the applicant demonstrates that the proposed weed abatement is exempt and may proceed, provided specific conditions are met. On November 24, 2003, the South Coast Chapter of the California Native Plant Society and the Sierra Club appealed the Director’s determination to the City Council. Since an appeal challenging the exemption determination has been filed, the proposed weed abatement is now on hold, pending the outcome of the appeal hearing.

DISCUSSION

The Provisions of the Urgency Ordinance

The adopted urgency ordinance prohibits weed abatement on any property containing coastal sage scrub (CSS) habitat, unless the proposed weed abatement qualifies for any one of the following exemptions:

  1. Removal of CSS or non-CSS for fire protection purposes, provided there is a written fire plan or fire order;
  2. Removal of CSS or non-CSS for compliance with any other written health and safety order;
  3. Removal of CSS or non-CSS by governmental agencies in response to an emergency in order to protect public health and safety;
  4. Loss of CSS or non-CSS due to a natural disaster
  5. Removal of CSS pursuant to a validly issued "interim" take permit that is issued by the City and Resource Agencies while the NCCP is being prepared;
  6. Weed abatement of non-CSS vegetation provided a biological study is provided demonstrating that no areas of the property are occupied by threatened or endangered species.

The ordinance was written in a manner to easily exempt legitimate weed abatement activities that are necessary to be carried out for public safety, such as fire protection. On the other hand, if weed abatement is proposed beyond what is minimally required to fulfill a public safety order, the request is scrutinized to ensure that the weed abatement does not result in the loss of CSS or adversely impact any endangered or threatened species.

After the urgency ordinance was adopted, Staff authorized multiple informal exemptions and approved two formal exemptions so that weed abatement for fire prevention purposes could proceed as usual during the summer months on privately and publicly owned, undeveloped parcels throughout the City. For example, recognizing that hundreds of vacant property owners are responsible for clearing their properties of vegetation to meet the Fire Department mandated minimum clearance widths, Staff considered all weed abatement performed by LA County Weed Abatement crews and all weed abatement performed by private individuals to meet the Fire Department’s standards to be actions necessary to follow a written plan or order. Therefore, all such actions were allowed to proceed without the need to submit any application or make any inquiry to the City.

In addition, Staff approved a formal exemption request to perform weed abatement on portions of the York Long Point Associates’ Lower Filiorum and Middle Filiorum properties for fire prevention purposes. Specifically, on July 14, 2003, the property owner requested an exemption under the urgency ordinance to perform weed abatement on 21.6 acres of the properties, in accordance with a specific Fire Department Inspection Report. Given the public safety concern cited in the Fire Department order, on July 17, 2003, City Staff authorized the work to proceed immediately.

Review of the Applicant’s Weed Abatement Exemption Request

On September 25, 2003, the City received an additional exemption request from York Long Point Associates seeking an exemption to perform weed abatement on 54.5 acres of the 93.7 acre Point View (Lower Filiorum) property (see attached request, with accompanying map, dated September 25, 2003). As indicated on the attached map, the areas proposed for weed abatement are in addition to the areas cleared earlier in the summer in accordance with their July 14, 2003 exemption request. In their September 25th request, the applicant did not state that the weed abatement was necessary to fulfill any fire or other public safety order. The applicant was seeking a request under subsection 17.41.060.f of the urgency ordinance (exemption category #6 listed above).

In accordance with the requirements of the urgency ordinance, the applicant submitted a biological assessment of the 94-acre Point View site dated September 2003. Since the proposed weed abatement involves non-CSS vegetation, the purpose of the biological assessment requirement is to ensure that that the areas proposed for weed abatement contain no protected CSS habitat and are not occupied by threatened or endangered species. The applicant’s biological assessment was forwarded to the City’s NCCP consultant, Dr. Patrick Mock, who is a Wildlife Biologist, for review. Dr. Mock reviewed the applicant’s biological assessment and requested copies of the various reports and documents referenced in the applicant’s September 2003 biological assessment. In response to Dr. Mock’s request, the applicant transmitted 13 various documents to Dr. Mock on or around October 16, 2003 (letter attached). After reviewing all the biological information submitted by the applicant, Dr. Mock notified Staff on October 20, 2003 that, in his opinion, the biological information submitted by the applicant is consistent with the urgency ordinance, as the proposed work would occur in areas dominated by non-CSS vegetation (letter attached). In order to avoid impacts to CSS, and any rare plants that may have been undetected by previous biological surveys, the City’s consultant biologist provided Staff with specific recommendations for carrying out the work.

After reviewing the body of information submitted by the applicant, consulting with Dr. Mock, and reviewing the language of the urgency ordinance with the City Attorney, the Director determined that the information provided by the applicant adequately demonstrates that the proposed weed abatement is exempt and may proceed, provided specific conditions are met (please see attached letter November 7, 2003). This determination was made for the following reasons:

  1. The biological assessment submitted by the applicant contains the information required by the urgency ordinance and has been prepared by a qualified biologist at least 6 months before the vegetation removal is to commence, also in accordance with the urgency ordinance;
  2. The applicant’s biological assessment demonstrates that the proposed weed abatement will occur in non-CSS habitat and will not involve vegetation that is occupied by any threatened or endangered species. This is because the weed abatement is proposed in a manner that would avoid areas of CSS and other sensitive species described and identified in the applicant’s biological assessment (see proposed weed abatement location maps).
  3. The City’s consulting biologist independently reviewed the methodologies and conclusions contained in the applicant’s biological assessment.

To ensure that the proposed weed abatement avoids impacts to known existing CSS habitat, avoids impacts to any sensitive or rare vegetation, and avoids impacts to any individual CSS plants, like cactus, which may have been undetected by previous biological surveys, the Director required that the weed abatement work be carried out in accordance with 6 conditions of approval. These conditions are:

  1. The weed abatement shall be limited to mowing or brush-hogging the weed patches shown on the submitted map. Soil disturbance shall be minimized to preclude potential erosion or sedimentation impacts onsite and offsite.
  2. Any disturbed soils or bare ground within 50 feet of the western drainage and central swale shall be seeded with native forbs and grasses to control erosion and sedimentation.
  3. The abatement activity shall be performed only during the non-breeding bird season (September 1 to February 15).
  4. A 50-foot wide buffer shall be provided around the CSS patches that are shown on the submitted map to be excluded from weed abatement. The buffer boundaries shall be staked and clearly flagged for the abatement personnel to see and avoid.
  5. A qualified biologist shall monitor all of the weed abatement activity to ensure the abatement activity is limited to the areas proposed on the submitted map and that no CSS habitat, including any cactus patches that may be encountered, are disturbed during the abatement process.
  6. No CSS habitat, either shown on the submitted map habitat or encountered in the field may be removed or disturbed without the approval of an interim take (4d) permit by the City and U.S. Fish and Wildlife Service.

Based on consultation with the City Attorney, the Director determined that the approved weed abatement activity qualifies as a categorical exemption in accordance with the California Environmental Quality Act (CEQA). This was based on the fact that if the weed abatement activity is carried out as proposed and in strict compliance with all of the conditions of approval listed above, no impacts to rare, endangered or threatened plant or animal species would result. Whereas, any deviation from the approved conditions of approval could trigger the need for additional environmental review, including but not limited to the preparation of a Mitigated Negative Declaration or EIR.

The applicant, along with the interested parties on record, received notification of the Director’s determination on November 7, 2003, and were given 15 days, or until November 24, 2003, to file an appeal. Since the urgency ordinance does not specify an appeal fee, the submittal of an appeal fee was not required. Two timely appeals were filed on November 24, 2003. One appeal is by the South Bay Group/Angeles Chapter of the Sierra Club (attached), and one is by the South Coast Chapter of the Native Plant Society (attached). In accordance with the urgency ordinance, the appeals were scheduled for hearing by the City Council and the applicant was notified that the proposed weed abatement work could not be performed until the appeal is heard (hearing notice attached).

Weed Abatement Appeal

The grounds for the appeal, as described in the attached appeal letters, are similar in that, among other things, both appellants raise concerns about the quality and adequacy of the biological studies presented by the applicant, the need for more stringent conditions and the need for further CEQA analysis. Staff has categorized the appeal issues raised into subject headings and has provided a discussion under each heading.

The weed abatement request is not consistent with CEQA and an EIR should be prepared.

In their appeal letter dated November 21, 2003, the California Native Plant Society (CNPS) raises the following concerns on this issue:

We believe that the Urgency Ordinance's restriction of consideration only to areas with demonstrated occupancy by endangered species ignores the protections intended by CEQA for special status species and species of local significance.

We believe that the Urgency Ordinance was never intended to be a substitute for the DEIR process and that circumventing the current DEIR would be a violation of CEQA.

Unless the Fire Department makes a specific order for vegetation clearance, no vegetation removal or "weed abatement" should be allowed to occur on this site without the full evaluation of impacts to species and habitat in a complete DEIR process.

In their appeal letter dated November 23, 2003, the Sierra Club raises the following concern on this issue:

We believe that this determination under the City’s Urgency Ordinance No. 391U undermines the broad range of protections to habitat and species that are afforded under the California Environmental Quality Act (CEQA) and that there will be significant impacts to species and habitat if the proposed "weed abatement" is allowed to proceed. We therefore request that the City’s determination be reversed and that the proposed "weed abatement" not be permitted until a full environmental impact analysis has been completed.

As noted earlier, after consultation with the City Attorney, the Director determined that the approved weed abatement activity qualifies as a categorical exemption in accordance with the California Environmental Quality Act (CEQA). Specifically, the Director determined that the proposed weed abatement is an action that qualifies as a project and therefore is subject to CEQA review. As a result of the CEQA review, the Director determined that the proposed project, if carried out as proposed and in strict compliance with all of the conditions of approval, would not result in any significant effect on the environment as any impacts to endangered, rare, or threatened plant or animal species would be avoided. Furthermore, the biological assessment reports provided by the applicant contain sufficient "substantive evidence" to conclude that there would be less than a significant impact with the proposed weed abatement, if carried out in accordance with the conditions of approval. As a result, the project was determined to qualify as a categorical exemption under CEQA section 15304 - Minor Alterations to Land (attached). Any deviation from the approved conditions of approval could trigger the need for additional environmental review, including but not limited to the preparation of a Mitigated Negative Declaration or EIR.

The weed abatement is part of the Point View project and therefore should not proceed until an EIR for the Point View Project is certified

In their appeal letter dated November 21, 2003, the California Native Plant Society (CNPS) raises the following concern on this issue:

The proposed vegetation clearing would occur on the majority of the same site as that which is currently the subject of a DEIR for the Point View Project. The EIS for this project indicates that there are numerous potentially significant impacts to sensitive species and habitat on the site. Many of these impacts could be caused by the vegetation clearance itself.

In their appeal letter dated November 23, 2003, the Sierra Club raises the following concern on this issue:

The site of this proposed vegetation clearance comprises the majority of the proposed Point View Project site and thus should be considered to be part of the project itself. It is inappropriate for any vegetation clearing to be approved or performed anywhere on the Point View Project site until the EIR process for that project is completed, unless such vegetation clearing is specifically mandated by the fire marshal.

The Point View project proposes to exclude 60 acres from the City’s Landslide Moratorium in order to develop a future residential planned development consisting of 84 single-family homes. To allow for development of the site as proposed, approximately 2 to 4 million cubic yards of remedial grading would be required to remove existing landslide material. As a result of this proposed action, most of the existing vegetation from the 94-acre site, including existing CSS habitat, would be removed or impacted. As a result, the Initial Study for the Point View project has concluded that the proposed project would result in potentially significant impacts to Biological Resources. Because of these and other potentially significant impacts, an EIR is being prepared for the Point View project.

Although the weed abatement is proposed to occur on the Point View project site, the project will be carried out in a manner that would avoid the areas of known CSS habitat. Furthermore, in accordance with the conditions of approval, the weed abatement will consist of mowing down the existing vegetation, thereby leaving the actual plants in the ground. Furthermore, a qualified biologist will monitor the work to ensure that any sensitive plants or CSS plants encountered during the work will be avoided. As a result, none of the impacts that are anticipated as a result of the Point View project would occur as a result of the proposed weed abatement. Furthermore, if the weed abatement work is carried out in accordance with the conditions of approval, the site conditions would be back to what they are now in about a year with no loss of habitat value or diversity. Therefore, if the weed abatement work occurs and the Point View project is withdrawn or never built, there would be no net long-term adverse effect on the biological resources on the site.

Impacts to the NCCP must be considered

In their appeal letter dated November 21, 2003, the California Native Plant Society (CNPS) raises the following concern on this issue:

The lower part of the Filiorum site is important for habitat connection. We believe that clearing vegetation from this site without adequate review in the formal DEIR process is not consistent with the goals, objectives, and efforts of the NCCP process.

In their appeal letter dated November 23, 2003, the Sierra Club raises the following concern on this issue:

The proposed Point View project site is identified in the draft NCCP as an important habitat linkage area for the Federally Threatened California Coastal Gnatcatcher and the Coastal Cactus Wren, a Species of Special Concern. Consequently, much of this broad area is targeted for protection in the proposed NCCP Preserve. This application for "Weed Abatement" would undeniably impact vegetation covering the majority of the Point View project site. Both the potential loss of sensitive plant species and the potential loss of vegetation used by wildlife for nesting or foraging need to be considered. In addition to such direct losses, clearing of vegetation on this site may impact wildlife movement. What impacts would this clearing of vegetation have on the viability of the surrounding NCCP Preserve and its dependent species?

Staff believes that the proposed weed abatement, as conditioned, would not be in conflict with the goals, objectives and efforts of the City’s NCCP. This is because the weed abatement is required to be carried out in a manner that would avoid any impacts to CSS habitat, which is the primary habitat the NCCP is designed to preserve. While it is correct that the NCCP habitat reserve is designed to provide habitat connections between areas of habitat, and that the Point View project area has been identified as a critical habitat linkage area (between Upper Filiorum and Abalone Cove), the City’s NCCP consultant, Dr. Patrick Mock, does not believe that the weed abatement activity would significantly affect wildlife movement through the site. Dr. Mock believes that although there may be a short-term affect during the six-month period between the mowing activities and when the grass vegetation will recover its structural characteristics after the first growing season, there are alternative wildlife movement routes available as well as sufficient vegetative cover left onsite to allow for wildlife movement through the area.

Sensitive Species need to be protected

In their appeal letter dated November 21, 2003, the California Native Plant Society (CNPS) raises the following concern on this issue:

Sensitive species are protected under CEQA, however it appears that no adequate sensitive plant surveys were done for this site.

In their appeal letter dated November 23, 2003, the Sierra Club raises the following concern on this issue:

Impacts to species that may be locally rare, significant or sensitive must be considered in addition to impacts to federally listed species. Potential cumulative and direct impacts to plant species and both resident and migratory wildlife species must be fully evaluated. The application for "Weed Abatement" on the project site must not be allowed to circumvent the project DEIR or any of these evaluations.

Although no rare plant surveys were done for the site, according to the City’s consulting biologist, no sensitive species are likely to be affected since the CSS and drainage areas are excluded from the proposed weed abatement. Nonetheless, to address this issue, as recommended by the City’s consulting biologist, requiring that the vegetation be mowed rather than tilled or disked, will minimize the potential for disturbing any undetected rare plants that may be present on site.

As recommended by the City’s consulting biologist, a spring survey of the grassland would be appropriate to determine whether there are any rare plant species on the site. If detected, their significance can be determined during the CEQA process for the Point View project, since that project, would remove most of the existing vegetation from the site, whereas the weed abatement activity would only mow down the vegetation but not remove it.

Concerns about quality and adequacy of the applicant’s biological assessment

In their appeal letter dated November 21, 2003, the California Native Plant Society (CNPS) raises the following concern on this issue:

We have grave concerns about the representation, quality and adequacy of the biological studies, which are cited in support of the proposed vegetation clearing. These studies were never circulated for public input and comments. During our initial review we have discovered statements in these studies that misrepresent the involvement of the California Native Plant Society and statements that misrepresent the involvement of our Conservation Chair, Angelika Brinkmann-Busi.

In their appeal letter dated November 23, 2003, the Sierra Club raises the following concerns on this issue:

Although the applicant has cited numerous biological reports, these reports were only made available to the public a few days before the deadline for appeal. There has not been adequate time to review or comment on the quality of these documents. Indeed, there has been only minimal public notice that this application even exists. Lacking any public review, these documents cannot be relied upon to be complete or accurate and thus should not form the basis for any decision by the Director.

A detailed map is needed to delineate where brush clearing will take place relative to gnatcatcher, cactus wren and sensitive species sightings on the property, especially in the northwest section.

In accordance with the urgency ordinance, and as previously discussed, the purpose of the biological assessment requirement is to ensure that that the areas proposed for weed abatement contain no protected CSS habitat and are not occupied by threatened or endangered species. The methodologies and conclusions contained in the applicant’s biological assessment were independently reviewed by the City’s consulting biologist and it was concluded that the applicant’s biological assessment adequately demonstrates that the proposed weed abatement will occur in non-CSS habitat and will not involve vegetation that is occupied by any threatened or endangered species. Furthermore, the biological assessment reports provided by the applicant contain sufficient "substantive evidence" to conclude that there would be a less than a significant impact with the proposed weed abatement, if carried out in accordance with the conditions of approval, and thus categorically exempt in accordance with CEQA.

It should also be noted that although the body of biological information that exists for the Point View site is being relied on as to whether the weed abatement meets the exemption criteria called for in the urgency ordinance, it is not going to be the sole basis for dictating how the weed abatement is to be carried out. As discussed below, Staff is recommending that additional conditions of approval be added to ensure that any CSS or sensitive plants encountered on the site, which may not be identified in current biology reports, be avoided.

More stringent conditions are needed

In their appeal letter dated November 21, 2003, the California Native Plant Society (CNPS) raises the following concern on this issue:

Although we appreciate the detailed conditions required by the City for this vegetation clearance, we believe that those conditions are not adequately protective. For instance, there should be no soil disturbance. Additionally, the biologist charged with supervising this work must be independent of the applicant/project proponent. The biologist should be hired by the City and paid for by the applicant. Furthermore the biologist should have the authority to stop all work if impacts to sensitive species are observed or become apparent.

In their appeal letter dated November 23, 2003, the Sierra Club raises the following concerns on this issue:

While the City has made an effort to set conditions on its approval in order to safeguard habitat and species, we do not believe that those conditions are stringent enough.

In particular, the biologist monitoring weed abatement activity must be independent and free of conflicts of interest. For that reason, the biologist should be selected, hired and directed by the City rather than by the applicant.

What is the protocol if a sensitive plant or wildlife species is encountered in the vegetation clearing operation? That protocol must be clearly defined in advance.

Protective buffers should not be limited only to the CSS patches indicated on the applicant’s map. Sensitive species should also be protected by buffer zones from any clearing activities.

Staff believes that the proposed conditions are approval are necessary to ensure that the weed abatement is carried out in a manner that avoids impacts to CSS habitat and any threatened or endangered species. As discussed throughout this report, Staff believes that as long as the project is carried out in strict accordance with the conditions of approval, adverse impacts to CSS and sensitive plants will be avoided and the project qualifies as an exemption from CEQA. Therefore, to further ensure this, Staff recommends that the following additional conditions of approval be placed on the project:

  1. A qualified biologist that is selected, hired and directed by the City shall monitor the entirety of the proposed weed abatement work. The applicant shall pay for the entire cost of said monitoring biologist.
  2. The City’s monitoring biologist shall ensure that any CSS vegetation or any sensitive plants listed on Table III of the applicant’s Biological Assessment dated September 2003 encountered during the course of the weed abatement activity shall not be mowed down.
  3. The City’s monitoring biologist shall ensure that the required 50-foot buffers around the CSS patches shown on the biological maps, as well as other conditions of approval are adhered to.
  4. If the applicant’s employees or hired workers do not abide by the direction given by the City’s monitoring biologist, the weed abatement activity shall immediately cease.
  5. The applicant shall allow the Director of Planning, Building and Code Enforcement, or his designee to enter upon the 94-acre Point View site at any time to inspect the weed abatement work during the course of the weed abatement activity.

Lack of proof of previous disking

In their appeal letter dated November 21, 2003, the California Native Plant Society (CNPS) raises the following concern on this issue:

This application implies that the vegetation removal will occur only in areas that have been previously and regularly disked and mowed. We are unaware of any demands from the Fire Department that may have required such clearance. We are only aware of a previous request for Fuel Modification from the Fire Department for the periphery of this property earlier this year. At that time the Fire Department did not request any clearances for this broad area. We would like to see documentation of when any disking and mowing on this site has previously occurred.

As discussed earlier, in July of this year, Staff approved a formal exemption request to perform weed abatement on portions of the York Long Point Associates’ Lower Filiorum and Middle Filiorum properties in response to a written Fire Department order. As a result, weed abatement was performed on 21.6 acres of the properties, as shown on the attached map. Although Staff is aware that vegetation clearing for fuel modification purposes has been performed in previous years on the property, Staff does not have documentation of where exactly such previous clearing has occurred.

Staff also takes exception to the statements made by the applicant that all the weed abatement will occur "in areas that have been previously and regularly disked and mowed". Based on aerial photographs and previous weed abatement requests, it does not appear that all 54.5 acres that are proposed to be mowed, have been previously mowed or disked. Nonetheless, since this is not one of the criteria contained in the urgency ordinance Staff did not factor this information into its decision and did not pursue the matter further with the applicant.

Additional Correspondence and Issues

In addition to the appeal letters, Staff has received a number of other letters from individuals related to the proposed weed abatement The additional correspondence, includes but is not limited, to the following letters:

A letter from Victor Horchar to the U.S. Fish and Wildlife Service dated November 12, 2003 raising a concern that an erroneous reference in the biological assessment leaves the reader with the impression that previous biological work performed by Angelika Brinkman Busi was completed in affiliation with the California Native Plant Society.

A letter from Mary Oreb, resident at 9 Fig Tree, dated November 25, 2003 raising a concern that the urgency ordinance should be repealed because it hinders fire protection.

An additional letter from the California Native Plant Society dated December 8, 2003 that provides a very thorough biological review of the project application.

A letter from an attorney’s office, representing the California Native Plant Society, dated December 8, 2003, which raises CEQA concerns and requests that the weed abatement application be denied or a decision withheld until the Point View project EIR is completed, that the request is not consistent with the Natural Overlay Control District, and the application should be denied because a portion of the northern parcel (Parcel 2 on the map) site is occupied by the threatened California gnatcatcher.

A letter from York Long Point Associates, dated December 8, 2003, expressing concerns with the exemption process, particularly that it is an impediment to wildfire prevention.

Staff believes that most of the issues raised in this additional correspondence are addressed in the Staff responses to the various appeal points found earlier in this Staff Report. However, there are some additional issues raised that Staff would like to address.

Impediment to Wildfire Prevention

As explained earlier in this Staff Report, the urgency ordinance was written in a manner to easily exempt legitimate weed abatement activities that are necessary to be carried out for public safety, such as fire protection. On the other hand, if weed abatement is proposed beyond what is minimally required to fulfill a public safety order, the request is scrutinized to ensure that the weed abatement does not result in the loss of CSS or adversely impact any endangered or threatened species.

This past summer, Staff considered all weed abatement performed by LA County Weed Abatement crews and all weed abatement performed by private individuals to meet the Fire Department’s standards (attached) to be actions necessary to follow a written plan or order. Therefore, all such actions were allowed to proceed without the need to submit any application or make any inquiry to the City. In addition, on July 14, 2003, the property owner requested an exemption under the urgency ordinance to perform weed abatement on 21.6 acres of the properties, in accordance with a specific Fire Department Inspection Report. Given the public safety concern cited in the Fire Department order, on July 17, 2003, City Staff authorized the work to proceed immediately.

The applicant’s pending request proposes to perform weed abatement in areas that extend beyond the areas cleared as part of their July 14, 2003 Fire Order exemption request. In their current request, the applicant did not state that the weed abatement was necessary to fulfill any fire or other public safety order.

It should be noted that the Fire Department contacted Staff to inquire about the City’s urgency ordinance because the applicant informed them that the City was prohibiting all weed abatement clearing. Once Staff explained that the urgency ordinance exempts weed abatement that is necessary to meet a Fire Department order or to meet the minimum clearing distances mandated by the Fire Code, the Fire Department expressed no concerns with the urgency ordinance. They further stated that they did not believe the ordinance is an impediment to wildfire prevention.

Relationship to the City’s Natural Overlay Control District

According to the City’s zoning map, most of the Point View project area lies within the City’s Natural Overlay Control District. As described in section 17.40.040 of the Development Code (attached), the purpose of this district is to maintain land and water areas necessary for the survival of valuable land and marine based wildlife and vegetation. According to the performance criteria of the district, vegetation clearing within the District is strictly limited or, under certain circumstances, prohibited.

The urgency ordinance does not supercede nor modify the existing natural overlay district protections found in the Development Code. Both ordinances apply independently of each other. However, Staff determined that the performance criteria of the Natural Overlay Control District would not apply to the proposed weed abatement because the proposed work, if carried out in strict accordance with the conditions of approval, would not result in the "removal or destruction of rare or endangered species of vegetation or wildlife". According to Development Code section 17.40.040.C, the Natural Overlay Control District criteria shall be used to assess all "uses, development alterations of land" and the Code contains a definition of "Use development or alteration" (section 17.96.2200). The definition includes the "removal or destruction of rare or endangered species of vegetation or wildlife". However, as pointed out above, if the work is carried out as conditioned, all the known CSS and any encountered CSS or other sensitive plants will be avoided therefore ensuring that there will be no "removal or destruction of rare or endangered species of vegetation or wildlife".

Limiting the weed abatement to the southern 84.1-acre parcel (Parcel 1)

In the letter from the attorneys representing the California Native Plant Society, it is alleged that the exemption is not appropriate because a portion of the property is occupied by the California Gnatcatcher. In fact, the northern parcel (Parcel 2), where weed abatement is proposed on approximately seven acres, is occupied by the Gnatcatcher. Although Staff believes that the other conditions of approval adequately protect the Gnatcatcher (because weed abatement is not allowed in areas that are occupied by the Gnatcatcher, and because there can be no removal of CSS as part of the weed abatement activities), preventing weed abatement activities on Parcel 2 will further accomplish the goals of the Ordinance. Accordingly, Staff recommends that another condition be added to restrict the weed abatement activities to only the southern parcel (Parcel 1) and that all weed abatement on Parcel 2 be prohibited.

Coordination with the Resource Agencies

Staff has kept the State and Federal Resource Agency representatives abreast of the City’s urgency ordinance status and of the applicant’s weed abatement application. The Director’s decision, along with the supporting information, was transmitted to the Resource Agencies, along with other interested parties. Thus far, the Resource Agencies have not formally notified the City about any concerns with the conditional approval of the applicant’s weed abatement request. Informally, they have expressed concerns to Staff about the applicant’s motives, and have noted that the conditions of approval placed on the weed abatement request seem appropriate.

Staff will be meeting with Resource Agency representatives on the afternoon of December 18th, 2003. Staff intends to discuss this issue with them and will provide the Council with any additional information as to their position on this matter at the hearing.

ALTERNATIVES

The following alternatives to the Staff recommendation are also available for the City Council’s consideration:

    1. Deny the applicant’s weed abatement request and direct Staff to return with a Resolution of denial at the next meeting;
    2. Direct the applicant to revise their submitted Biological Assessment to address the concerns raised by the public and withhold making a decision on the appeal until the revised Biological Assessment is re-submitted and reviewed by the City’s biological consultant;
    3. Approve the weed abatement request with additional restrictions and/or conditions beyond those recommended thus far by Staff.

CONCLUSION

On May 20, 2003, the City Council adopted Urgency Ordinance No. 391U establishing regulations for the procedures for the conservation and management of Coastal Sage Scrub habitat. The adopted Urgency Ordinance prohibits weed abatement on any property containing coastal sage scrub (CSS) habitat, unless the proposed weed abatement qualifies for an exemption as described in the ordinance. On September 25, 2003, the City received a request from the applicant seeking an exemption to perform weed abatement on 54.5 acres of the 93.7 acre Point View (Lower Filiorum) property. In accordance with the urgency ordinance, the exemption request was reviewed by the City, which included consultation with the City’s consulting biologist. Based on this review, the Director determined that the information provided by the applicant demonstrates that the proposed weed abatement is exempt and may proceed, provided specific conditions are met. The California Native Plant Society and Sierra Club filed an appeal, challenging the exemption determination. Staff believes that no new information has been raised in the appeal to warrant denial of the weed abatement request but does believe that the conditions of approval can be made more stringent to ensure that impacts to CSS habitat and other sensitive species are avoided. Therefore, Staff is recommending that the City Council adopt Resolution No. 2003-__, thereby modifying the conditions of approval for the proposed weed abatement request and dismissing the appeals.

Respectfully submitted:

Joel Rojas,

Director of Planning, Building

and Code Enforcement

Reviewed:

Les Evans,

City Manager

Attachments

Resolution No. 2003-__

Urgency Ordinance (Ordinance 391U)

Weed Abatement Request (with maps) dated September 25, 2003

Applicant’s Biological Assessment dated September 2003

Letter from applicant dated October 16, 2003

Letter from Dr. Patrick Mock dated October 20, 2003

Director determination on weed abatement request dated November 7, 2003

California Native Plant Society appeal letter dated November 21, 2003

Sierra Club appeal letter dated November 23, 2003

Public Notice dated November 29, 2003

Letter from Sierra Club dated November 6, 2003

Letter from Mary Oreb dated November 25, 2003

Letter from Victor Horchar to USFWS dated November 12, 2003

Letter from California Native Plant Society dated December 8, 2003

Letter from Chatten-Brown & Associates dated December 8, 2003

Letter from applicant dated December 8, 2003

CEQA Section 15304

Development Code Section 17.40.040

LA County Fire Department Brush Clearance Requirements