MAY 31, 2005 WEED ABATEMENT REQUEST FOR LOWER FILIORUM -- 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 MAY 31, 2005 WEED ABATEMENT REQUEST FOR LOWER FILIORUM -- 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



TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL

FROM: DIRECTOR OF PLANNING, BUILDING, AND CODE ENFORCEMENT

DATE: MAY 31, 2005

SUBJECT: WEED ABATEMENT REQUEST FOR LOWER FILIORUM -- 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. 2005-__ , thereby approving the proposed weed abatement request with conditions of approval.

DISCUSSION

On May 17, 2005, the City Council considered the appeal filed by the South Coast Chapter of the California Native Plant Society, the Sierra Club and York Long Point Associates objecting to the Director’s conditional approval of a weed abatement request submitted by York Long Point Associates for their Lower Filliorum property. After hearing public testimony on the matter, the City Council agreed (4-0) to uphold the Director’s approval with additional and modified conditions of approval. The City Attorney has prepared an amended resolution memorializing the Council’s action. The resolution is attached for the Council’s review and adoption.

ADDITIONAL INFORMATION

At the May 17th City Council meeting, York Long Point Associates representatives stated that they believe the unauthorized cactus removal on their property cited by staff was performed by Southern California Edison (SCE) crews. As a result, the City Council directed Staff to contact SCE about the allegation. According to a phone conversation with Scott Gobble, SCE region manager, SCE’s records indicate that an SCE crew was in the Lower Filiorum area last November (the time frame when the cactus removal occurred) doing line repair work but SCE had no crews on the property for the purpose of weed clearing around the utility poles. Based on the conversation with Mr. Gobble, Staff believes that the mitigation for the cactus removal should remain the responsibility of the applicant as described in condition No. 8 of the attached Resolution.

Respectfully submitted:

Joel Rojas,

Director of Planning, Building

and Code Enforcement

Reviewed:

Les Evans,

City Manager

Attachments

Resolution No. 2005-__

Public correspondence

RESOLUTION NO. 2005-__

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DENYING APPEALS OF STAFF’S CONDITIONAL APPROVAL OF A REQUEST FOR EXEMPTION FROM THE RANCHO PALOS VERDES COASTAL SAGE SCRUB CONSERVATION ORDINANCE (CHAPTER 17.41 OF TITLE 17 OF THE RANCHO PALOS VERDES MUNICIPAL CODE), UPHOLDING STAFF’S CONDITIONAL APPROVAL AND MODIFYING THE CONDITIONS OF APPROVAL FOR WEED ABATEMENT ACTIVITY ON A 54.5 ACRE PORTION OF THE 93.7 ACRE POINT VIEW (LOWER FILIORUM) PROPERTY

WHEREAS, On May 20, 2003, the City Council of the City of Rancho Palos adopted Ordinance No. 391U, an interim ordinance relating to the conservation and management of Coastal Sage Scrub Habitat ("CSS") and establishing regulations and procedures applicable thereto; and,

WHEREAS, in accordance with the provisions of Government Code Section 65858, a public hearing was duly noticed, pursuant to the provisions of Government Code Section 65090, to be held at the regular City Council meeting of July 1, 2003, so that the City Council could receive public testimony regarding the Ordinance No. 391U; and,

WHEREAS, on July 1, 2003, the City Council of the City of Rancho Palos Verdes extended Ordinance No. 391U through May 16, 2004; and,

WHEREAS, on May 4, 2004, the City Council of the City of Rancho Palos Verdes extended Ordinance No. 391U through May 16, 2005; and,

WHEREAS, by letter dated September 20, 2004, York Long Point Associates ("YLPA") requested that the City grant an exemption from the Ordinance, and specifically Section 17.41.060 F thereof, to permit weed abatement of non-CSS areas on 54.5 acres of the 93.7-acre "Point View" property, that is not occupied by threatened or endangered species; and,

WHEREAS, in accordance with the Ordinance, the Director of Planning, Building and Code Enforcement (the "Director") reviewed YLPA’s request for exemption from the Ordinance, which review included consultation with the City’s wildlife biologist consultant, Dr. Patrick Mock, who has expert experience in biological issues in the City; and,

WHEREAS, Dr. Mock’s review of the application involved review of the applicant’s July 2004 biological assessment, as well as previous environmental documents concerning the subject property, which Dr. Mock requested in 2003, and concluded with a letter from Dr. Mock dated November 9, 2004, in which Dr. Mock concluded that, in his opinion, the biological information submitted by the applicant is consistent with the Ordinance; and,

WHEREAS, the Director, with concurrence of Dr. Mock, determined that the weed abatement activity for which YLPA sought exemption from the Ordinance meets the requirements of Section 17.41.060 F of the Ordinance, but only if YLPA complies with certain conditions, which are set forth in the Director’s decision; and,

WHEREAS, the Director determined that the weed abatement activity for which YLPA sought exemption from the Ordinance is exempt from the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines Section 15304, provided that the weed abatement activity is completed in strict compliance with certain conditions that are set forth in the Director’s decision; and,

WHEREAS, on February 15, 2005, the Director informed YLPA by letter that the proposed weed abatement activity was determined to be exempt from CEQA and exempt from the Ordinance, and that YLPA’s request was granted subject to certain conditions of approval as set forth in the approval letter; and,

WHEREAS, on February 16, 2005, the Director informed YLPA by letter that there was a typographical error in the language for condition of approval No. 5 and therefore clarified the language of the condition; and,

WHEREAS, pursuant to Section 17.41.080 of the Ordinance, a 15-calendar day period within which to appeal the Director’s decision to the City Council commenced on February 16, 2005, during which YLPA could not exercise the entitlement granted by the Director’s conditional approval; and,

WHEREAS, on March 2, 2005, and within the 15 calendar day appeal period, the Palos Verdes-South Bay Group of the Sierra Club (hereafter the "Sierra Club") filed a letter electronically dated March 2, 2005, appealing the Director’s determination on YLPA’s request for exemption from the Ordinance and setting forth its bases for appeal therein; and,

WHEREAS, on March 3, 2005, and within the 15 calendar day appeal period, the California Native Plant Society - South Coast Chapter (hereafter the "CNPS") filed a letter dated March 1, 2005, appealing the Director’s determination on YLPA’s request for exemption from the Ordinance and setting forth its bases for appeal therein; and,

WHEREAS, on March 3, 2005, and within the 15 calendar day appeal period, YLPA filed a letter dated March 3, 2005, appealing the Director’s determination on YLPA’s request for exemption from the Ordinance and setting forth its bases for appeal therein; and,

WHEREAS, on April 19, 2005, the City Council adopted Urgency Ordinance No. 419U which enacted modified regulations for the protection of CSS habitat, which repealed Ordinance No. 391U, which was the operative ordinance at the time of the Director’s review and determination on YLPA’s request for exemption from the Ordinance. Ordinance 419U is substantially the same as Ordinance No. 391U, and the minor changes in the language do not change the standards or process applicable to YLPA’s request for approval of the weed abatement activities; and,

WHEREAS, on May 17, 2005, the City Council held a duly noticed appeal hearing in accordance with the provisions of Chapter 17.80 of the Rancho Palos Municipal Code, at which time all interested parties were given an opportunity to be heard and present evidence; and,

WHEREAS, the City Council undertook a de novo review of the decision of the Director in accordance with Section 17. 80.070 F. of the Rancho Palos Verdes Municipal Code.

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

Section 1: The weed abatement activity proposed by YLPA is a discrete project, and is unrelated to other applications for land use entitlements on the YLPA property. As such, for purposes of CEQA, the "project," as that term is defined by CEQA Guidelines Section 15378, includes all activities associated with weed abatement maintenance activities that are to be completed in compliance with the conditions of approval adopted by the City Council.

Section 2: The weed abatement project is separate and independent from other land use applications related to the subject property, including the pending Moratorium Exclusion application, and represents maintenance activity rather than a development entitlement, and is not a first step toward any development entitlement for the subject property, as some of the appellants assert. Such future development as may be contemplated in separate development applications on file with the City is not foreseeable based solely on the completion of site maintenance activities such as weed abatement. Performance of the weed abatement activity will not undermine CEQA because, contrary to assertions by certain appellants, the activity will not affect the alternatives and mitigation measures that will be analyzed and considered in the EIR under preparation for Landslide Moratorium Exclusion No. 10, which is the first step toward potential development of the subject property, and entails the foreseeable impacts associated with a significant amount of grading related to geotechnical stabilization of the subject property.

Section 3: The stated purposes of the Ordinance are to establish

"policies, regulations, and standards necessary to ensure that the city will continue to realize benefits provided by its natural environment…by providing requirements and procedures that reduce potential adverse impacts on threatened or endangered species, which would be created or indirectly induced by the unregulated removal of CSS habitat and other vegetation that is occupied by threatened or endangered species, regardless of whether such removal occurs in connection with proposed and existing developments."(Ordinance, Section 17.41.020.)

Based on the substantial evidence embodied in the reports submitted and reviewed by the City Council, each of which are incorporated herein by reference, the City Council finds and determines that the weed abatement project which must be completed subject to the conditions of approval set forth in Exhibit A hereto, does not have the potential for significant adverse impacts, and exemption from CEQA is proper. Further, the City Council hereby finds and determines that substantial evidence of a reasonable possibility that the activity will have a significant effect on the environment due to unique circumstances has not been presented by the appellants, and that there are no unique circumstances associated with the mowing of vegetation, which expressly is to exclude CSS habitat and other vegetation on properties that are occupied by threatened or endangered species, as required by CEQA Guidelines Section 15300.2(c).

Section 4: The City Council in its independent judgment determines that the weed abatement project is exempt from CEQA pursuant to CEQA Guidelines Section 15304 (Class 4 Categorical Exemption for Minor Alterations to Land) (hereafter the "Exemption"), which exempts "minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees…." The project involves removal of vegetation, but such removal is limited to areas that are at least 50 feet from CSS patches that exist on the property. Further, all weed abatement activity must be monitored by a qualified biologist to ensure that no CSS habitat, including any cactus patches or sensitive plants that may be encountered, are disturbed during the abatement process and no vegetation is removed that is on properties occupied by threatened or endangered species. The Sierra Club and CNPS appeals contend that the Exemption is inapplicable because of an example set forth in Guidelines Section 15304; however, the list to which appellants cite is representative only, and is not exhaustive by the express language of the exception. Instead, the activities proposed by YLPA are similar in scale and scope to the examples cited in CEQA Guidelines Section 15304.

Section 5: The City Council, in its independent judgment, and having weighed the evidence presented in the Staff Report and in written and oral testimony, including biological studies and reports, finds and determines that there is no reasonable possibility that the weed abatement activity will have a significant impact on the environment due to unusual circumstances which would negate the applicability of the Exemption.

First, there are no unusual circumstances surrounding the proposed weed abatement activity, which consists of mowing of weeds in areas that contain no CSS on properties that are not occupied by threatened or endangered species, as confirmed and monitored by a qualified biologist. The Sierra Club and CNPS appeals cite no unusual circumstance that would preclude application of the Exemption. Conjectural potential future impacts from future development of the property, which is being analyzed pursuant to an Environmental Impact Report ("EIR") that is being prepared to analyze the future grading of the subject property, are not found to constitute an unusual circumstance that would negate application of the Exemption. The Sierra Club and CNPS appeals cite to an Initial Study completed for a separate development project in support of their assertions; however, the potential impacts identified in that Initial Study will be analyzed in an EIR, which is being prepared for that separate development project. The referenced Initial Study is inapplicable to the proposed weed abatement maintenance activity with which no development is contemplated. (See also Section 8 below.)

Second, there is no possibility of a significant impact on the environment due to the weed abatement because of the manner in which the abatement must be completed, including the requirement for on-site monitoring by a qualified biologist throughout the abatement process. For these reasons, the exception to the Exemption set forth in CEQA Guidelines Section 15300.2(c) is inapplicable in this case.

Section 6: The Sierra Club and CNPS appeals erroneously assert that the fair argument standard applies to this project and that therefore an EIR is required. Their arguments are incorrect for the following reasons:

The fair argument standard applies when determining whether a negative declaration or an EIR is required for a project. The fair argument standard is inapplicable to circumstances where a project is categorically exempt from the provisions of CEQA. The proper standard to be applied to this application is set forth in CEQA Guidelines Section 153002.(c), discussed in Section 5 above, which requires unusual circumstances to negate the applicability of a categorical exemption from the provisions of CEQA.

Nonetheless, the City Council finds that substantial evidence has not been presented by the appellants to support a fair argument that the proposed weed abatement activity, which shall be completed in compliance with the conditions set forth in Exhibit A, would have a significant adverse impact on the environment because: (1) the weed abatement activity can consist only of mowing or bush-hogging (no disking); (2) the weed abatement may only be performed during non-breeding bird season (September 1 to February 15) unless a qualified biologist selected by the City performs nest surveys prior to initiating the abatement activity; (3) those performing the weed abatement must maintain a 50-foot buffer around CSS patches so that they will not be impacted by the abatement activity; (4) the weed abatement must be monitored by a qualified biologist to ensure that the abatement activity is confined to the areas that do not contain CSS (including any cactus patches or sensitive plants that may be encountered and any vegetation that is occupied by a threatened or engendered species, whether mapped or discovered in the field during abatement activity); (5) and that no CSS may be removed or disturbed unless separate permits are obtained from the City and the United States Fish and Wildlife Service ("USF&WS"). As set forth above, the City’s biological consultant who reviewed YLPA’s request for exemption from the Ordinance reached this conclusion after reviewing the biology reports submitted by YLPA.

Section 7: Because the weed abatement activity is exempt from CEQA, there is no obligation to coordinate the weed abatement activity with either the USF&WS or the California Department of Fish and Game ("CDFG"). Contrary to the Sierra Club and CNPS assertions, when a project is exempt from CEQA consultation with responsible agencies is not required, and Public Resources Code Section 21080.3 is inapplicable. Nonetheless, staff transmitted the Director’s decision and supporting information to the Resource Agencies to keep them informed of the City’s actions.

Section 8: The Initial Study completed for Landslide Moratorium Exclusion No. 10, upon which appellants rely for the assertion that an EIR is required for the weed abatement activities, is not relevant to the weed abatement activities and the requested exemption from the Ordinance. This finding is based on the fact that the Initial Study was completed at the first stage of a long-term development project proposal that, if approved by the City, would involve vast amounts of remedial grading to address geotechnical issues related to site stability. That proposed grading is likely to cause significant environmental impacts upon all vegetation that is located on the areas of the subject property where the proposed grading is to occur. On the other hand, the weed abatement activity involves mowing weeds without disruption to the soils (disking is not allowed) and without impact on CSS or threatened or endangered species, and would allow for re-growth of the mowed plant material during the coming year.

Section 9: The July 2004 biological assessment submitted by the applicant contains the information required by the urgency ordinance and was prepared by a qualified biologist at least 6 months before the vegetation removal was set to commence, in accordance with the Ordinance. The vegetation removal has not commenced due to the review time needed to process the weed abatement request and the subsequent appeals.

Section 10: The City’s consulting biologist, Dr. Mock, independently reviewed the methodologies and conclusions contained in the applicant’s biological assessment, and concluded that 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, 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, and as set forth on the proposed weed abatement location maps.

Section 11: Based on Dr. Mock’s review of the biological assessment and other relevant documentation regarding the biological resources in the area of the proposed weed abatement, although there may be a short-term effect on the non-CSS vegetation, this impact will not significantly impact wildlife movement between the Upper Filiorum and Abalone Cove areas, and does not constitute a significant adverse effect pursuant to CEQA. Further, alternate wildlife movement routes are available, and after weed abatement activities, the Point View site still would have sufficient vegetative cover to allow for wildlife movement through the area.

Section 12: CSS areas and drainage courses are excluded from the proposed weed abatement activity, and mowing, rather than disking, will minimize the potential for disturbing any undetected rare plants that may be present on the site.

Section 13: The applicant’s July 2004 biological assessment, which consists of field surveys performed in April and May 2004, is adequate to meet the purposes of the Ordinance to ensure that the areas proposed for weed abatement contain no protected CSS habitat and are not occupied by threatened or endangered species. This finding is based in part on the independent review of the biological assessment information by the City’s consulting wildlife biologist, Dr. Mock. Furthermore, a condition of approval has been imposed that requires a qualified biologist be present on site to supervise the proposed weed abatement activities to ensure that previously undiscovered threatened, endangered or sensitive species will not be adversely impacted by the proposed weed abatement.

Section 14: The conditions of approval required by the Director’s approval are necessary to ensure that the weed abatement is completed in conformance with the requirements of the Ordinance. However, condition of approval number 7 has been removed to address the YLPA appeal’s contention that the requirement to remove all of the non-native acacia within the weed abatement area is unreasonable, burdensome and beyond the scope of the Urgency Ordinance No. 391U. A complete set of the conditions of approval imposed by this approval are set forth in Exhibit A attached hereto.

Section 15: The Ordinance does not supercede or conflict with the Natural Overlay Control District (Rancho Palos Verdes Municipal Code Section 17.40.040) because the Ordinance does not allow the "removal or destruction of rare of endangered species of vegetation or wildlife." The allowed weed abatement activity completed in compliance with the conditions of approval will not result in removal or destruction CSS or other rare or endangered species of vegetation or wildlife. Development or alteration of land, as that term is defined in Section 17.96.2200 of the Municipal Code, and which is subject to the Natural Overlay Control District limitations, does not include vegetation removal so long as the vegetation removed is not "rare or endangered species of vegetation" and no threatened or endangered species of wildlife is removed or destroyed, and therefore is in- applicable in this case.

Section 16: The recitals, conclusions, determinations and findings set forth in this resolution are equally applicable under both Ordinance No. 391U, the ordinance under which the Director’s decision was rendered, and Ordinance No. 419U, the ordinance pursuant to which this decision and the appeals of the Director’s decision were heard and considered.

Section 17: The time within which the judicial review of the decision reflected in this Resolution, if available, must be sought is governed by Section 1094.6 of the California Code of Civil Procedure and any other applicable short periods of limitation.

Section 18: For the foregoing reasons and based on the information and findings included in the Staff Report, Minutes and other records of these proceedings, the City Council of the City of Rancho Palos Verdes hereby upholds the Director’s determination allowing weed abatement on the 54.5 acre area of the 93.7 acre southerly parcel owned by YLPA, and conditionally approves YLPA’s request to undertake weed abatement activities in this area subject to the conditions of approval, as set forth in the Exhibit "A" attached hereto and incorporated herein by this reference, which are necessary to protect the public health, safety and welfare.

PASSED, APPROVED, AND ADOPTED this 31st day of May 2005, by the following vote:

AYES:

NOES:

ABSTENTIONS:

ABSENT:

_______________________

Mayor

ATTEST:

____________________
City Clerk

State of California )
County of Los Angeles ) ss
City of Rancho Palos Verdes )

I, CAROLYNN PETRU, City Clerk of the City of Rancho Palos Verdes, hereby certify that the above Resolution No. 2005-__ was duly and regularly passed and adopted by the said City Council at a regular meeting thereof held on May 31, 2005.

_________________________________

City Clerk

Exhibit A

Conditions of Approval

  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. A 50-foot wide buffer shall be provided around the CSS patches that are shown on the submitted map, which are to be excluded from weed abatement. The buffer boundaries shall be staked and clearly flagged for the abatement personnel to see and avoid.
  4. The abatement activity shall be performed only during the non-breeding bird season (September 1 to February 15), unless a qualified biologist selected by the City performs a nests survey prior to initiating the abatement activity and a 50-foot wide buffer is provided around any identified active nests during the weed abatement activity. A copy of the survey shall be provided to the monitoring biologist required in Condition 5.
  5. A qualified biologist selected by the City shall monitor all of the weed abatement activity to ensure that such abatement activity is limited to the areas proposed on the submitted map and that no CSS habitat, including any cactus patches, native grasses or other sensitive plants that are listed as covered species in the City’s NCCP, that may be encountered, are disturbed during the abatement process. All weed abatement activities shall be conducted within the view of the biologist. At least one week prior to commencing the proposed weed abatement, the applicant shall submit a proposed plan of operation to the City so that the City can determine if the proposed weed abatement will be conducted in the presence of the qualified biologist or if more than one qualified biologist must be present on site so as to be able to view all of the weed abatement activities that are to be conducted concurrently. All of the costs associated with the required biological monitoring shall be paid for by the applicant. Prior to commencement of the weed abatement, the applicant shall establish a Trust Deposit with the City and shall deposit into the account an amount determined by the City as sufficient to cover the cost of the biological monitor(s) selected by the City. The applicant shall deposit additional funds in the trust deposit upon request by the City. Any unused funds will be returned to the applicant when the weed abatement project is completed.
  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.
  7. A qualified biologist approved by the City shall conduct a grassland assessment and rare plant survey after the weed abatement activities are completed. The applicant shall submit a copy of the completed grassland assessment and rare plant survey to the Director of Planning, Building and Code Enforcement within one week of its completion.
  8. Due to the unauthorized removal of two 5-foot by 5-foot patches of coastal prickly pear cactus, which is part of the CSS plant community, from the subject property in or around November, 2004, in violation of Section 17.41.090 of the Rancho Palos Verdes Municipal Code, this approval is contingent upon mitigation of that habitat loss by the replanting of 150 square feet (a 3:1 mitigation ratio) of prickly pear cactus in the area where the cactus was removed. The replanting must be completed prior to commencing the conditionally approved weed abatement activity. The property owner must maintain this replanted area for a minimum period of five years to ensure that the cactus is thriving.