THE CITY OF RANCHO PALOS VERDES ORDINANCE NO. 391U THE CITY OF RANCHO PALOS VERDES ORDINANCE NO. 391U

ORDINANCE NO. 391U

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 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, particularly if such removal occurs during the breeding season of the gnatcatcher that occurs annually between February 15 and August 31. Similar impacts could occur from removal of occupied habitat that is not CSS.
    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. Action by the director.

17.41.080. Appeal.

17.41.090. 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 and other vegetation 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 a regulatory process for approval of, weed abatement and other activities undertaken on properties that are greater than two acres in size to ensure that such activity does not jeopardize the continued viability of any endangered or threatened species due to the removal of or impact to occupied habitat.

17.41.030. Application of chapter. This chapter shall apply to all properties in the city that are greater than two acres in size 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 including weed abatement activities. "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, weed abatement, 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. j. "Weed abatement" means, for the purposes of this chapter only, the removal of vegetation by any means, on any property in the City that is greater than two acres in size, but excluding minor tree trimming and minor removal or maintenance of minor ornamental vegetation that does not constitute or contain CSS and is not occupied by an endangered or threatened species.

      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, or weed abatement on any property containing CSS habitat, or on any property greater than two acres in size and that is 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, provided that the party seeking exemption submits a request to the director for an exemption determination based on one of the following grounds:

    11. Removal of CSS or any other form of habitat modification or weed abatement 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 issued or 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. This exemption does not require a request or determination by the director prior to undertaking the habitat removal or modification or weed abatement;
    14. Loss of CSS that is the result of a natural event, such as landslide, fire or flood.
    15. Removal of CSS pursuant to a validly issued 4(d) permit;
    16. Weed abatement of non-CSS vegetation provided that the applicant or owner first submits a current biological survey identifying those areas of the property that contain CSS, those areas that contain no CSS, and demonstrating that no areas of the property are occupied by threatened or endangered species. The biological survey shall be prepared by a qualified registered biologist within the last 6-months before vegetation removal is commenced, and shall contain, at a minimum, the following:

(i). a plot plan generally depicting the subject property and the area(s) where vegetation is proposed to be removed, identifying all property lines and the location of any and all CSS on the property,

(ii) a 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,

(iii) a description of the type of CSS present on the property and its habitat value,

(iv) evidence and documentation establishing whether any vegetation community on the site is occupied by endangered or threatened species, and

(v) evidence and documentation establishing that the proposed activity does not "take" a protected species under either the federal or state endangered species acts

17.41.070. Action by the director. Upon receipt of a request for an exemption determination for weed abatement or habitat modification or removal under one of the exemptions set forth in Section 17.14.060, the director shall promptly review the accompanying material as required by Section 17.41.060, 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 proposed removal is exempt, the director shall issue a written notice to proceed to the property owner; or

b. If the director determines that the proposed activity is not exempt, no habitat removal or modification activities shall be conducted unless and until a 4(d) permit is obtained, or until adequate information is provided to warrant the granting of a notice to proceed.

17.41.080 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.

17.41.090 Violations and penalties. A violation of any 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. Further, the City shall not accept for processing, or grant approval of, any application for development, use, permit, or other entitlement pursuant to Titles 15, 16, or 17 of the Municipal Code until such time that the property owner has complied with the provisions of this chapter and other applicable provisions of the Municipal Code.

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.

(a). 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, or other occupied vegetation, appreciably reduces the likelihood of the continued survival of the gnatcatcher.

(b) Without the adoption of this ordinance, property owners could remove habitat without any review by the City or FWS to ensure that the habitat is not occupied by a threatened or endangered species.

(c) 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.

(d) The City has been informed by a letter dated May 16, 2003, from York Long Point Associates that that organization intends to "mow grass/weeds", or conduct "weed abatement activities," on an approximately 90 to 100 acre area that has been previously shown to contain CSS plant communities, and which has the potential to be occupied by the Gnatcatcher, and without completion of a biological survey of the site to ascertain whether the 90 to 100 acre weed abatement area is currently occupied by the Gnatcatcher, it is possible that the weed abatement activity could violate the City’s NCCCP 4(d) permit requirements and the Federal Endangered Species Act.

(e) The breeding season of the Gnatcatcher is from February 15 through August 31 of each year, and during this period Gnatcatchers and their habitats are particularly sensitive to disturbances, whether that habitat is CSS or non-CSS.

(f) An ordinance is necessary to ensure that the City receives notice of proposed habitat modifications and weed abatement activities in order to ensure that such activities do not threaten the continued survival of the gnatcatcher, and to provide a regulatory process by which habitat modification and/or weed abatement activities can be approved and undertaken, after completion of appropriate site specific surveys. The modification or removal of occupied habitat, whether CSS or non-CSS, 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.

(g) 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 conduct weed abatement and habitat removal or modification activities without first requesting an exemption determination from the City for their proposed actions.

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. This ordinance establishes a regulatory process for the protection of the environment. Accordingly, the City Council finds the ordinance to be exempt from CEQA as a Class 8 Categorical Exemption 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.

Section 8. This Urgency Ordinance shall be effective for 45 days from its date of adoption, unless otherwise extended in accordance with the provisions of Government Code Section 65858 (a).

PASSED, APPROVED AND ADOPTED THIS 20th day of May 2003.

 

/s/ Douglas W. Stern

Mayor

 

Attest:

 

/s/ Jo Purcell

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, do hereby certify that the whole number of members of the City Council of said City is five; the foregoing Ordinance No. 391U was duly and regularly adopted by the City Council of said City at a regular meeting thereof held on May 20, 2003, and that the same was passed and adopted by the following roll call vote:

AYES: Clark, Gardiner, McTaggart, and Mayor Pro Tem Ferraro

NOES: None

ABSENT: Mayor Stern

ABSTAIN: None

___________________________

City Clerk