Rancho Palos Verdes City Council
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OCTOBER 5, 2004 CODE AMENDMENT REGARDING DISCLOSURE OF LANDSLIDE REMEDIATION ACTIVITES FOR CERTAIN PROJECTS OCTOBER 5, 2004 CODE AMENDMENT REGARDING DISCLOSURE OF LANDSLIDE REMEDIATION ACTIVITES FOR CERTAIN PROJECTS

TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL

FROM: COUNCIL MEMBER STERN AND THE CITY ATTORNEY

DATE: OCTOBER 5, 2004

SUBJECT: CODE AMENDMENT REGARDING DISCLOSURE OF LANDSLIDE REMEDIATION ACTIVITES FOR CERTAIN PROJECTS

RECOMMENDATION

Refer the Draft Ordinance, proposing revisions to Section 15.20.100 (Moratorium on Land Use Permits), 16.20.120 (Soils/geology report), and 17.76.040 (Grading permit) of the Municipal Code to the Planning Commission for review and recommendation at a noticed public hearing.

DISCUSSION

Historically, various properties in of the City have been subject to land instability including, but not limited to, the Portuguese Bend landslide area, which is subject to the Landslide Moratorium established by Chapter 15.20 of the Rancho Palos Verdes Municipal Code. Owners of property with stability issues, regardless of whether they are located in the landslide moratorium area, often seek to undertake fairly extensive remedial grading in order to stabilize the property, including slopes, sometimes with the hopes of enabling the property to be subdivided and developed.

The goal of this proposal is to provide purchasers of residential real property in Rancho Palos Verdes with notice of conditions which most purchasers of residential real property would deem material to their decision to purchase real property. I deem this particularly appropriate given the residential nature of our city, the substantial investment that most residents will make in their real property, and the importance of such decision being as well informed a decision as is reasonably possible, balancing the benefit with the burden imposed by such a notice requirement. The mechanism suggested by this ordinance is designed to provide a reasonable tool to achieve that result, while not unreasonably burdening owners of real property. Once placed on notice by this mechanism, the purchaser/owner will be capable of obtaining whatever additional information or professional opinions that person deems prudent under the specific circumstance. It is also the goal of this proposed ordinance to alert owners to the geological situation regarding their property so that there is a greater likelihood that they shall not undertake projects that undermine the remedial effort previously undertaken.

Although City records generally contain information regarding such remedial grading activities, there presently is no mechanism to place potential purchasers and subsequent owners of these properties on notice of the fact that significant remedial grading has been performed to stabilize the property. Disclosure of substantial remedial grading activity would help ensure that property owners are aware of the history of the property. Use of the proposed "notice" mechanism shall make it more likely that purchasers will exercise the level of due diligence appropriate under the circumstances to obtain any additional information they chose. It shall be up to the purchaser to obtain whatever additional information the purchaser deems material. If property owners are aware of the previously completed work, they are in a better position to make informed decisions regarding the real property. Also, it is less likely that they will undertake site modifications that could impact the site stability. Therefore, I am proposing an ordinance that would require disclosure of significant remedial grading through recordation of a covenant against the stabilized property so as to provide notice to potential purchasers and subsequent owners of the property. The purchasers of real property will then obtain notice of such remedial action as part of their preliminary title report during the normal purchase and escrow process.

Originally, I proposed that the ordinance include a requirement that disclosure of significant remedial grading be made whenever a property is sold. Cities are able to adopt ordinances that require additional disclosures be made when a property is sold, pursuant to Civil Code Section 1102.6a. However, the City Attorney raised the concern that a subsequent purchaser of land where remedial grading had been performed might not be aware of the remedial grading and would inadvertently violate the City’s Code by failing to disclose the remedial grading that had been performed by a prior owner. It is not the intent of this legislation to place a burden on such persons, nor to become a trap for the unwary. Thus, at the suggestion of the City Attorney, the focus of the proposed legislation is upon recording appropriate notice, which then remains of record for any subsequent purchaser, and is not dependent upon knowledge being passed from one owner to the next.

It is not the intent of the proposed ordinance to impose an obligation that the full geological reports be provided and data be delivered to any person. Once the notice has been recorded, it shall be a matter left up to the purchaser and the seller to address regarding the additional information that a buyer may seek, and a seller may choose to provide.

My intent is that the owner who performs the work should have to disclose the fact that remedial grading had been performed to enable the land to be subdivided and developed. My intent is not to place a disclosure obligation on a subsequent owner of the land who may not even be aware (or remember) that significant remedial grading had been performed prior to that person’s ownership of the property, nor to impose an obligation that the full geological reports be provided. Accordingly, the current ordinance requires only that a covenant be recorded when significant remedial grading is performed on land that has been excluded from the moratorium area or in connection with subdivision of the property. Requiring the covenant will put future purchasers on notice but will not place additional obligations on subsequent purchasers of these properties when they sell the property to someone else.

THE ORDINANCE

The proposed ordinance would require recordation of covenants running with the land when property owners undertake certain activities or seek certain entitlements from the City, including the following:

  • Exclusion from the Landslide Moratorium pursuant to Municipal Code Section 15.20.100, when any remedial grading activities are required as a condition of approval or are undertaken as a prerequisite to approval of the requested Landslide Moratorium Exclusion.

  • Subdivision of property for residential purposes when the subdivision involves property that has been, or will be subject to significant remedial grading. The ordinance defines significant remedial grading as "remedial grading with the purpose of enhancing soil stability or reducing geotechnical hazards due to land movement and which (1) involves an excavation, fill or combination thereof, in excess of 1,000 cubic yards in any two-year period, or (2) an excavation ten feet or more below natural grade or a fill ten feet or more above natural grade."

ADDITIONAL INFORMATION

CEQA

Staff has reviewed the proposed code amendment for compliance with the California Environmental Quality Act (CEQA), and determined that the proposed ordinance is not a "project" pursuant to CEQA. The proposed ordinance "is covered by the general rule that CEQA applies only to projects, which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment [as is the case here] the activity is not subject to CEQA." (State CEQA Guidelines Section 15061(b)(3).)

PLANNING COMMISSION REVIEW

Pursuant to Section 17.68.020 of the Rancho Palos Verdes Municipal Code, "[a]n amendment to any part of [Title 17] pertaining to development or a change of zone of any property within the city shall be adopted pursuant to this chapter," which requires that the Planning Commission hold a public hearing (Section 17.68.040(B)). As such, if the City Council wishes to proceed with the recommended ordinance, the Council should refer the draft ordinance to the Planning Commission for its review and recommendation, after which the draft ordinance could be introduced to and adopted by the City Council.

CONCLUSION

Adoption of the proposed ordinance would advance two goals.

  • It will serve to provide material information to purchasers to land within the city, providing greater likelihood that purchasers make informed decisions with an opportunity to obtain important and material information regarding the geological conditions of the real property.

  • It will advance the City’s goal of avoiding further land stability problems and issues by providing notice to owners of certain sensitive properties of the soil conditions and remediation activities to which the properties have been subjected.

  • It achieves these goals with minimal burden on the land owner who engages in the remdial action, without imposing a new burden on a subsequent landowner.

FISCAL IMPACT

Staff does not expect any significant fiscal impact other than an incremental increase in the cost of obtaining certain remedial grading permits, landslide moratorium exclusions, and subdivisions when such projects are conditioned to record the disclosure covenant contemplated by the draft ordinance.

ALTERNATIVES

In addition to the recommendation, the following alternatives are available for the City Council’s consideration:

  1. The City Council could consider broader application of the covenant requirement by modifying the proposed definition of significant remedial grading to include smaller types of project, or by making the requirement applicable to all subdivisions rather than only residential subdivisions.

  2. The City Council could consider narrower application of the covenant requirement by modifying the proposed definition of significant remedial grading to include only larger scale projects.

  3. Based upon City Council discussion and public testimony, the City Council may determine that further disclosure requirements are not needed, and opt not to proceed with the proposed ordinance.

  4. The City Council may decide to take no action on the draft Ordinance, thereby disapproving this code amendment.

Respectfully submitted:

Council Member Stern and the City Attorney

Reviewed:

Les Evans

City Manager

Attachments:

Draft Ordinance

ORDINANCE NO. ___

AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES AMENDING CHAPTERS 15.20, 16.20 AND 17.76 OF TITLES 15, 16 AND 17, RESPECTIVELY, OF THE MUNICIPAL CODE REGARDING CONDITIONS OF APPROVAL TO REQUIRE RECORDATION OF COVENANTS THAT DISCLOSE THE NATURE AND SCOPE OF SIGNIFICANT REMEDIAL GRADING UNDERTAKEN ON CERTAIN PROPERTY

WHEREAS, the City of Rancho Palos Verdes is unique in that significant portions of the property within the City’s corporate boundaries are subject to conditions, including landslides, that affect the stability and developability of those properties; and,

WHEREAS, when significant remedial grading to stabilize the property and slopes is completed on property for which a landslide moratorium exclusion has been granted, or as a condition of approval of a landslide moratorium exclusion or in connection with a proposed subdivision of property, disclosure of the significant remedial grading to potential purchasers and subsequent owners is necessary to protect the public health, safety and welfare because such disclosure will help ensure that future property owners are aware of the geotechnical sensitivity of their property and will assist in avoiding future grading or construction activities that may compromise site stability; and,

WHEREAS, on [Insert Date of Notice of PC Hearing], a notice of a public hearing on this ordinance was published in the Palos Verdes Peninsula News; and,

WHEREAS, the Planning Commission held a duly noticed public hearing on [Insert Planning Commission Hearing date], 2004, at which time the public was given the opportunity to provide testimony; and,

WHEREAS, on [Insert Date of Notice of CC Hearing], a notice of a public hearing on this ordinance was published in the Palos Verdes Peninsula News;

WHEREAS, the City Council held a duly noticed public hearing on [Insert City Council Hearing date], 2004, at which time the public was given the opportunity to provide testimony; and

WHEREAS, pursuant to the California Environmental Quality Act, Public Resources Code §§21000 et seq., ("CEQA"), and the State and Local CEQA Guidelines, the proposed ordinance is not a project, as that term is defined by State CEQA Guidelines §15378, that is subject to the provisions of CEQA. Further, the disclosure ordinance "is covered by the general rule that CEQA applies only to projects, which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment -as is the case here- the activity is not subject to CEQA." (State CEQA Guidelines, §15061(b)(3).) The disclosure ordinance has no potential for causing any significant effect on the environment, because no physical alterations to the environment could be approved or allowed by simply requiring the disclosure of significant remedial grading.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY FIND, DETERMINE, AND ORDER AS FOLLOWS:

Section 1: The City Council has reviewed and considered amending Titles 15, 16 and 17 of the Rancho Palos Verdes Municipal Code to effect full disclosure of significant remedial grading to potential purchasers and subsequent owners of residential properties under certain circumstances.

Section 2: The City Council finds that there is no substantial evidence that the proposed amendments to Titles 15, 16 and 17 of the Municipal Code would result in any significant environmental effects, because the amendment requires nothing more than disclosure of certain remedial grading, as defined herein. The City Council hereby finds, based on its own independent review, that it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. Therefore, the ordinance is exempt from the provisions of CEQA, no further CEQA analysis is required for this ordinance.

Section 3: The City Council finds that the amendments to Titles 15, 16 and 17 of the Municipal Code are necessary to preserve the public health, safety, and general welfare in the area.

Section 4: The City Council hereby amends Section 15.20.100 D. of Section 15.20.100 of Chapter 15.20 of Title 15 of the Rancho Palos Verdes Municipal Code to read as follows:

15.20.100 Exclusions

D. Conditions on Issuance of Approval. In granting any exclusion under this chapter, the City Council may impose such conditions as may be reasonably necessary to preserve the intent of the goals and policies of the general plan and the Municipal Code, which conditions shall include, but are not limited to, recording a covenant against the property documenting the nature and scope of any significant remedial grading, which is performed to enhance soil stability or reduce geotechnical hazards due to land movement or the presence of natural hazards on said property and which: (1) involves an excavation, fill or combination thereof, in excess of 1,000 cubic yards in any two-year period, or (2) an excavation ten feet or more below natural grade or a fill ten feet or more above natural grade.

Section 5: The City Council hereby adds a new paragraph F to Section 16.20.120 of Chapter 16.20 of Title 16 of the Rancho Palos Verdes Municipal Code to read as follows:

F. Approval of a tentative parcel map, tentative tract map, or any final map that creates residential lots, shall be conditioned to require recordation of a covenant against the property if development of the subdivision requires significant remedial grading, which is defined as remedial grading with the purpose of enhancing soil stability or reducing geotechnical hazards due to land movement and which: (1) involves an excavation, fill or combination thereof, in excess of 1,000 cubic yards in any two-year period, or (2) an excavation ten feet or more below natural grade or a fill ten feet or more above natural grade. In addition, a note shall be placed on the final map stating that significant remedial grading is required in order to develop the subdivision. The final map note and covenant shall document the nature and scope of the significant remedial grading that is to be performed to enhance soil stability and reduce geotechnical hazards due to land movement or the presence of natural hazards.

Section 6: The City Council hereby adds a new paragraph 9 to Section 17.76.040 G. of Chapter 17.76 of Title 17 of the Rancho Palos Verdes Municipal Code to read as follows:

17.76.040 G. Conditions on Issuance.

9. The recordation of a covenant against the property subject to any significant remedial grading, defined as remedial grading with the purpose of enhancing soil stability or reducing geotechnical hazards due to land movement in conjunction with, or in preparation for, residential subdivision of the property and which: (1) involves an excavation, fill or combination thereof, in excess of 1,000 cubic yards in any two-year period, or (2) an excavation ten feet or more below natural grade or a fill ten feet or more above natural grade. The covenant shall document the nature and scope of the significant remedial grading completed to enhance soil stability and reduce geotechnical hazards due to land movement or the presence of natural hazards.

Section 7: The City Clerk shall certify to the adoption of this ordinance and shall cause the same to be posted in the manner prescribed by law.

PASSED, APPROVED and ADOPTED this ___ day of _______, 2004.

________________________________

Mayor

ATTEST:

_________________________________

City Clerk

State of California )

County of Los Angeles ) ss

City of Rancho Palos Verdes )

I, JO PURCELL, City Clerk of the City of Rancho Palos Verdes, hereby certify that the above Ordinance No. ___ was duly and regularly passed and adopted by the said City Council at a regular meeting thereof held on __________, 2004.

__________________________

City Clerk

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