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HomeMy WebLinkAbout2005-12-07; Planning Commission; Resolution 59941 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLANNING COMMISSION RESOLUTION NO. 5994 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING APPROVAL OF A ZONE CODE AMENDMENT TO ADD A NEW CHAPTER 21.210 AND TO AMEND OTHER EXISTING CHAPTERS OF THE CODE FOR PURPOSES OF IMPLEMENTING THE CITY’S HABITAT MANAGEMENT PLAN. CASE NAME: HABITAT MANAGEMENT PLAN IMPLEMENTATION CASE NO: ZCA 05-01 WHEREAS, in accordance with Section 21.52.020 of the Carlsbad Municipal Code, the Planning Director has prepared an amendment to Title 21 of the Municipal Code (Zoning Ordinance) relating to implementation of the City’s Habitat Management Plan; and WHEREAS, the proposed amendment is set forth in the draft City Council Ordinance, Exhibit “A’ dated December 7, 2005, and attached hereto HABITAT MANAGEMENT PLAN IMPLEMENTATION - ZCA 05-01; and WHEREAS, the Planning Commission did on the 7th day of December, 2005, hold a duly noticed public hearing as prescribed by law to consider said request; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all persons desiring to be heard, analyzing the information submitted by staff and considering any written cQmments received, the Planning Commission considered all factors relating to the Zone Code Amendment. NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission as follows: A) That the foregoing recitations are true and correct. B) That based on the evidence presented at the public hearing, the Planning Commission RECOMMENDS APPROVAL of THE HABITAT MANAGEMENT PLAN IMPLEMENTATION - ZCA 05-01, based on the following findings: ... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Findinps: 1. 2. 3. 4. That the proposed Zone Code Amendment ZCA 05-01 is consistent with the Land Use and Open Space and Conservation Elements of the General Plan which provide for the protection and preservation of designated natural habitats in the City through the implementation of the City’s Habitat Management Plan. That the proposed Zone Code Amendment is consistent with the Habitat Management Plan, the approval of the Plan by the state and federal wildlife agencies, the Implementing Agreement for the Plan and the conditions of the citywide Incidental Habitat Take Permit issued by the Federal Government. That the proposed Zone Code Amendment is consistent with the State Coastal Act and the City’s Local Coastal Program in that it will protect natural habitat and biodiversity in the city by implementing the habitat preservation standard contained in the State Coastal Plan and the Local Plan. That the proposed ZCA reflects sound principles of good planning in that it serves to protect natural habitats in the city in conformance with the Habitat Management Plan. PASSED, APPROVED AND ADOPTED at a regular meeting of the Planning Commission of the City of Carlsbad, held on the 7th day of December, 2005, by the following vote, to wit: AYES: Chairperson Segall, Commissioners Baker, Cardosa, Dominguez, Heineman, Montgomery, and Whitton NOES: ABSENT: CARLSBAD PLANNING COMMISSION ATTEST: h DON NEU Assistant Planning Director PC RES0 NO. 5994 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXH I BIT “A” December 7.2005 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA AMENDING THE LOCAL COASTAL PROGRAM AND TITLE 21 OF THE MUNICIPAL CODE BY THE ADDITION OF A NEW CHAPTER 21.210 TO THE ZONING ORDINANCE RELATING TO THE REQUIREMENTS, STANDARDS, AND PROCEDURES FOR HABITAT PRESERVATION AND MANAGEMENT IN CONFORMANCE WITH THE CITY’S HABITAT MANAGEMENT PLAN AND BY AMENDING OTHER EXISTING CHAPTERS TO ESTABLISH CONSISTENCY AND IMPLEMENTATION OF THE HABITAT MANAGEMENT PLAN. CASE NAME: HABITAT MANAGEMENT PLAN IMPLEMENTATION CASE NO.: ZCA 05-01 The City Council of the City of Carlsbad, California does ordain as follows: SECTION 1: That Title 21 of the Carlsbad Municipal Code is amended by the addition of a new Chapter 21.210 to read as follows: Chapter 21 210 Habitat Preservation and Management Requirements Sections: 21 21 0.10 21.210.1 1 21 21 0.12 21.210.13 21.210.14 21 21 0.1 5 21 21 0.16 21.210.17 21 21 0.18 21 21 0.19 21.210.20 Purpose and Intent Definitions Applicability Habitat Preservation Requirements Habitat Management Requirements Permits Required HMP Permit Exemption from Requirements Habitat Management Plan Amendment Guidelines Enforcement Measures - Violations and Remedies 21 21 0.10 Purpose and Intent. The purposes and intent of this chapter are to: A. Implement the goals and objectives of the land use and the open space/conservation elements of the Carlsbad general plan; B. Implement the city’s habitat management plan, the Implementing Agreement and conditions, the North County Multiple Habitat Conservation Plan (MHCP), the state’s Natural Communities Conservation Plan (NCCP) and 1 O(a)l (B) permit conditions; C. Preserve the diversity of natural habitats in the city and protect the rare and unique biological resources located within those habitats; D. Assure that all development projects comply with the habitat preservation and conservation standards contained in the habitat management plan; E. Provide a process for permitting limited, incidental impacts to occur to natural habitat areas and the species located therein; and F. Provide a process for allowing minor amendment from the habitat preservation and conservation standards under limited, specified circumstances. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21.21 0.1 1 Definitions. The following definitions are established: established by this section: A. Whenever the following terms are used in this chapter, they shall have the meaning 1. “Conditions of Coverage” means the measures to avoid, minimize and mitigate for impacts to habitat and the covered species located therein and the conditions and terms of the approval of the HMP by the wildlife agencies contained in the HMP Implementing Agreement. 2. “Conservation” means to keep protected habitat and the species located therein from loss, decay or depletion and to move the species toward recovery. Conservation also describes all actions related to maintaining and managing habitat and providing a viable habitat preserve system in the city. Conservation and preservation are similar terms and are used in much the same way. Preservation connotes the act of setting aside or securing habitat, whereas conservation is generally more broad and includes activities such as management of the habitat. 3. “Covered Species” means the species for which take authorization is provided because long-term viability has been determined to be adequately maintained under the HMP as identified in lists 1, 2, and 3, Exhibit “A to the Implementing Agreement. The HMP addresses the species identified as list 1 in a manner sufficient to meet all of the criteria for issuing an incidental take permit. Take authorization for species of lists 2 and 3 is contingent on other MHCP Subarea Plans being permitted and/or funding for enhanced management of preserved areas. 4. “Development Project” means any use of a property, including grading, clearing and grubbing, construction, alteration of any magnitude or activities incidental thereto which requires a discretionary or ministerial permit, entitlement or approval issued under Titles 15, 18, 20 or 21 of the Municipal Code. 5. “Habitat” means the environment or the environmental conditions of a specific location where species or a population of such species lives, occurs or occupies. It includes both natural and native habitat. 6. “Habitat In-Lieu Mitigation Fee” means a per-acre fee charged for impacts to on- site habitat as an alternative to acquiring off-site habitat to mitigate for such impacts. 7. “Habitat Management Plan” means the comprehensive plan which identifies how the city can preserve and conserve the diversity of habitat and protect rare species and biological resources within the city while allowing for additional development consistent with the city’s General Plan and its Growth Management Plan. In so doing, the Plan allows the city to issue permits and authorization for the incidental take of rare species in conjunction with private development projects, public projects, and other activities which are consistent with the Plan. 8,“Hardline Preserve Areas” means properties which are already part of or are planned to be part of the HMP habitat preserve system. “Existing” hardline preserve areas are depicted on Figure 5 of the HMP and have already been conserved for their habitat value due to permitting actions occurring in the past before approval of the HMP. “Proposed” hardline preserve areas are properties whose preservation and development areas have been planned as part of the HMP. These areas have been agreed-upon in coordination with the landowners, the City, U.S. Fish and Wildlife Service, and the California Department of Fish and Game. If the area proposed for development and proposed for conservations are in conformance with the HMP, the development will be allowed under the HMP. -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21.21 9.“HMP means the Carlsbad Habitat Management Plan (dated December 1999 as amended, final approval November 2004). IO. “HMP Permit” means the permit required when a development project impacts, either directly or indirectly, habitat in the city. 11. “Implementing Agreement” or “IA means the legal document which defines the roles, responsibilities, activities and conditions that will be undertaken by the city and the wildlife agencies to provide for the preservation, conservation and management of habitat and the species covered under the HMP. 12. “Incidental Take Permit” means the taking of an HMP Covered Species incidental to and not the purpose of carrying out otherwise lawful activities. 13. ”Management of Habitat” means all the activities and actions necessary to ensure that the habitat preserve system in the city remains viable and protected for the species that are located there including maintenance, biological monitoring and adequate funding for same. 14. “MHCP” means the Multiple Habitat Conservation Plan, a comprehensive subregional plan which addresses multiple species habitat needs and the preservation of natural vegetation in a 175 square mile area in northwestern San Diego County. 15. “Mitigation” means measures undertaken to diminish or compensate for the negative impacts of a development project or activity on areas of habitat, native vegetation or species located therein including minimizing the impact by feasible avoidance, repairing or restoring the area of impact or compensating for the impact by replacing or providing substitute resources. 16. “Narrow Endemic Species” means native species with restricted geographic distributions, soil affinities and/or habitats, and for purposes of the HMP, species that in addition have important populations within the Plan area, such that substantial loss of these populations or their habitat within the HMP area might jeopardize the continued existence or recovery of that species and therefore special conservation standards are required. 17. “NCCP” means the Natural Community Conservation Planning Act of 1991. 18. “Preserve” means an area set aside and managed for the protection of wildlife and biological resources. 19. “Preservation” means to keep in safety; protect from danger or harm; to keep intact or unimpaired; maintain. Preservation and conservation are similar terms and are used in much the same way. Preservation connotes the act of securing the land and its values, whereas conservation generally is more broad and includes activities such as management of the land and its resources. 20. “Property Analysis Record (PAR)” means a computerized database methodology used to calculate the costs associated with the management, maintenance and monitoring of natural habitat areas. 21. “Standards Areas” means properties whose preservation and development areas have not yet been planned as part of the HMP. Instead, preservation and conservation standards have been developed for these properties which must be complied with when a development project is submitted for the property. 22. “Wildlife Agencies” means the U.S. Fish and Wildlife Service and the California Department of Fish and Game. 12 Applicability A. All development projects and fuel modification activities in the City shall comply with the habitat preservation and conservation standards contained in the City’s Habitat Management Plan (HMP) as well as the Implementing Agreement, Permit conditions. the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MHCP, the NCCP and 10(a)l(B) permit conditions, and the requirements contained in this chapter. All requirements of the HMP are incorporated herein by reference. B. No grading of habitat in the City, including clearing and grubbing, shall occur pursuant to Title 15 of the Municipal Code until all the processing and permitting requirements of this chapter are fulfilled. 21.210.13 Habitat Preservation Requirements. The provisions of this section shall apply to all development projects as follows: A. Hardline Preserve Areas. Properties or areas of the City identified in the HMP as existing hardline preserve areas are shown on Figure 5 of the HMP. Properties or areas of the City identified in the HMP as proposed hardline preserve areas are shown on Figures 8 through 25 and 34 through 40 of the HMP. These areas shall be prohibited from development located in or encroaching into the hardline preserve area. Minor modifications to the boundaries of the proposed hardline preserve area shall only be allowed if approved as an equivalency finding pursuant to Section 21.210.18 of this chapter. Incidental take of covered species and direct impacts to habitat shall only occur outside the boundaries of the hardline preserve areas. Hardline preserve areas are to be designated as biological open space and preserved in such designation in perpetuity. B. Standards Areas. Properties or areas of the city identified in the HMP as standards areas (HMP Figure 26) shall comply with all the habitat preservation standards contained in Section D.3(C) of the HMP which are incorporated by reference. Incidental take of covered species and direct impacts to habitat shall not be permitted in these areas until a development project is approved which complies with the standards and provides any land to the habitat preserve areas as required by the standards. C. Additional mitigation. In addition to setting-aside land for the preserve area, all impacts to habitat and covered species shall be mitigated as follows: a. All development projects which impact habitat shall provide on-site or off-site replacement habitat in accordance with the mitigation ratios contained in Table 11 in Section D.6 of the HMP. Preference shall be given for on-site mitigation unless off-site mitigation provides for improved quality or configuration of open space. Replacement habitat shall be identified as part of the approval of the development project. b. Larger, connected areas of habitat that is not impacted by development or brush management and preserved on-site within the boundaries of the property where the project is located shall be credited toward the mitigation ratios. c. If at least 67% of the habitat on the property where the development project is located is preserved, the project shall not be required to obtain off-site mitigation land in compliance with the mitigation ratios except if: 1) the project would otherwise be inconsistent with the HMP, IA, MHCP, and NCCP and 10(a)l(B) permits; 2) the proposed on-site preservation would reduce the City’s ability to meet the specific habitat conservation obligations in the HMP; and /or 3) the areas to be preserved on site would not benefit the City’s preserve system (e.g., habitat exists in a small, isolated patch or patches outside of the Focus Planning Area, and containing no Narrow Endemic species). d. Mitigation of impacts through habitat restoration or habitat creation shall be allowed in limited circumstances and shall be mitigated at a higher ratio as determined by the City in consultation with the wildlife agencies. D. Additional conditions. In addition to the requirements, standards and conditions contained in A, B and C of this Section, the following additional conditions of coverage shall apply to all development projects: 1. Impacts to Narrow Endemic Species shall be avoided to the maximum extent practicable in conformance with the Narrow Endemic Species Policy contained in -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. 3. 4. 5. 6. 7. 8. 9. the MHCP and incorporated herein by reference, however where impacts to a Narrow Endemic Species population are demonstrated to be unavoidable, impacts shall be limited to 5% of the total Narrow Endemic Species population within the boundaries of the property where the development project is located. Relocation of the Narrow Endemic Species cannot be used to meet the 5% numeric standard. Grading for a development project during wildlife breeding seasons shall be prohibited unless a minor adjustment is specifically approved by the city and the wildlife agencies. All development projects shall be located and designed to minimize overall impacts to natural habitat. All fuel modification (brush management) zones required as a result of the development project, and as required by the Fire Marshal, shall be located outside the preserve areas, shall be considered impacted and shall be mitigated according to C of this section. Impacts to wetland and riparian habitats shall be avoided to the maximum extent possible. All development projects that would affect these habitats must demonstrate that the impacts: 1) cannot be avoided by a feasible alternative, 2) have been minimized to the maximum extent practicable, 3) mitigated at a minimum 3:l ratio and 4) will be mitigated in ways that assure no net loss of habitat value or function. Impacts to vernal pools shall be avoided. In the event that no project alternative is feasible that avoids all impacts on a particular property, the impacts must be minimized and mitigated to achieve a no net loss of biological functions and values through strict adherence to the Wetland Avoidance and Mitigation Criteria (Section 3.6.1 of MHCP Volume I), Standard Best Management Practices (MHCP Appendix B), and Revegetation Guidelines (MHCP Appendix C). In the standards areas, 67% of coastal sage scrub and 75% of the gnatcatchers located in the area shall be preserved. Some areas may preserve more or less than these percentages due to parcel size, location, resources, or long term conservation potential as approved by the City and the Wildlife Agencies. All development projects shall comply with the applicable standards of the MHCP (dated March 2003) and the measures to minimize impacts to covered species described in Section D.6, Table 9 and Appendix C of the HMP. All development projects located in the coastal zone shall also be required to comply with the additional, general conservation standards contained in Section D.7, Standards 7-1 through 7-12 of the HMP and the additional, parcel-specific conservation standards contained in Section D.7, Standards 7-1 3 and 7-14 of the HMP as incorporated into the Local Coastal Program. E. Habitat in-lieu mitigation fee. Development projects which are subject to additional mitigation pursuant to Subsection C of this section and which impact habitat types D, E and F listed in Table 11 of the HMP shall pay a fee in an amount to be determined by City Council resolution, in-lieu of providing on-site or off-site mitigation land. The fee shall be used to fund the acquisition of habitat land in the MHCP as required by the HMP and Implementing Agreement. The fee shall be adjusted as necessary to acquire suitable habitat on a per acre basis comparable to the land being developed. 21 .210.14 Habitat Management Requirements. All development projects shall be required to provide for the permanent management, maintenance and biological monitoring in perpetuity of all on site and off site mitigation land and all habitat preserve areas within the boundaries of the property in which the project is located according to the provisions of this section: -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Standard of management. All preserve areas shall be managed, maintained and monitored according to the standards contained in Section F.2 of the HMP, Volume 2 and 3 of the MHCP and the Citywide Open Space Management Plan. B. Funding of management. Based upon the management plan required by Subsection B of this Section, the developer shall provide a non-wasting endowment or other secure financial mechanism acceptable to the Planning Director to the identified conservation entity in an amount sufficient for management, maintenance and monitoring of the preserve areas and mitigation land in perpetuity. The endowment will be tied to the preserved land for which it is provided and will be held by the City or a third-party financial entity approved by the City with demonstrated success in managing endowments. Only the interest accrued from the endowment shall be paid to the property manager. A conservation easement shall be placed on all preserve areas to ensure the area will be preserved in perpetuity, managed and maintained for its biological value and to prevent uses which will impair or interfere with the conservation of the area. At a minimum, the required conservation easement shall include the following: i. Identification of grantee, underlying land ownership, and third party beneficiaries including the City and the Wildlife Agencies. ii. Permitted and prohibited uses. iii. Grantor’s duties and responsibilities as per the preserve management plan, which may be amended from time to time. iv. Enforcement provisions. D. Preserve Management Plan. Prior to recordation of a final map (if applicable) or prior to issuance of a grading permit, the developer shall be required to submit a plan to identify how the preserve areas and mitigation land will be managed and maintained for the first year after the areas are set-aside for preservation. The plan shall include the costs for managing and monitoring the areas in perpetuity and shall identify a conservation entity, subject to approval by the Planning Director, to serve as preserve manager and who possesses the necessary biological qualifications and experience to manage and monitor the preserve areas in perpetuity. The plan shall be based on the results of a Property Analysis Record (PAR) or other method acceptable to the Planning Director. The plan shall commit the preserve manager to prepare a permanent Preserve Management Plan and annual work plans and shall give the city the right to enforce the preparation and execution of the plans. The plan shall be approved by the Planning Director. The preserve management plan shall include the following: i. An overall vision of the preserve area, its role in the Citywide preserve system and its regional relationship. ii. The baseline biological conditions as identified in field surveys of the property not more than one-year old including an identification of the covered species that occur or have the potential to occur in the preserve area and the known or expected threats to the biological value of the area. iii. Identification of resource management goals and specific conservation objectives based on the vision for the preserve area and baseline biological conditions. iv. Area-specific management directives based on the resource goals and conservation objectives. v. A description of preserve-level and subregional monitoring activities which shall be consistent with the HMP and MHCP Volume I and II. C. Conservation easement required. Appendix D of the citywide Open Space Management Plan contains an outline of the required format for preserve management plans. -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E. Annual work plan. Each year, the Preserve Manager shall be obligated to submit to the Planning Department an annual work plan for each preserve area. The work plan shall identify specific problems and how they will be addressed, the planned monitoring and management actions for the year and include a prioritization of specific management needs and area-specific management directives. 21.210.15 Permits Required. A. Impacts to habitat and covered species shall not occur in the city until the permits required by this chapter have been approved. The permits required by this chapter shall be processed concurrently with any other development permits required by Titles 15, 18, 20 and 21 of the Municipal Code. 21.210.16 HMP Permit. An HMP permit shall be required for any development project which directly or indirectly impacts natural habitat in accordance with the procedures set forth in this section. A. Application requirements. An application for an HMP permit may be made by the record owner or owners of the property affected by the development project or the authorized agent of the owner or owners. The application shall be filed with the Planning Director upon application forms provided by the Planning Director. At the time of filing the application, the applicant shall pay a processing fee in an amount specified by City Council resolution. The application shall be accompanied by a biological report, which allows for detailed review to determine compliance with this chapter. The biological report shall include the following: 1. 2. 3. 4. A biological survey prepared by a biologist which identifies the location and quantifies all habitat and vegetation on the property (or any offsite work area). The survey shall also identify any covered species, the location of any offsite wetland, riparian habitat, oak woodland, nesting raptors or narrow endemic species located within 100 feet of the property. If the biological survey is conducted outside the acceptable time of year for identifying narrow endemic species, but the biologist identifies that narrow endemic species could be present on the property, then surveys for narrow endemic species must be conducted during acceptable time of year in accordance with wildlife agencies protocols if such protocols exist. The processing of the HMP permit application will be held in abeyance until the applicant submits subsequent surveys conducted during the acceptable time of the year. For projects located in a proposed hardline area, a map shall be submitted showing the precise boundary of the proposed development area and the proposed preserve area consistent with the proposed hardline preserve area figures contained in the HMP. For projects located in the standards areas, an analysis shall be submitted which exactly and clearly identifies how the project complies with the standards and conditions contained in the HMP and MHCP, IA, any applicable permit conditions in the NCCP and 10(a)l(B) permits, the hardline preserve boundaries which would result from compliance with the standards and how the project is being located on the least biologically sensitive portion of the property. For projects which impact narrow endemic species, the following information shall be provided: a. A graphic depiction of all narrow endemic species located on the property where the development project is located; b. A written biological description of the status of the narrow endemic species; -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. C. D. c. Quantification of both preservation of narrow endemic species and impacts to narrow endemic species associated with the project including direct and indirect effects on an area and individual plant basis; A written report of the feasibility or infeasibility of total avoidance of narrow endemic species population(s); A written description of project design features that reduce indirect effects such as edge treatments, landscaping, elevation differences, minimization and/or compensation through restoration or enhancement and consistently with the MHCP adjacency standards. d. e. 5. For projects which impact wetlands, the following information shall be provided: a. A graphic depiction of all wetlands located on the property where the development project is located; b. A written biological description of the status of the wetlands; c. Quantification of proposed impacts to wetlands associated with the project; d. Written analysis of the inability to avoid impacts to wetlands; e. Written description of project design features that minimize impacts to wetlands including buffers as described in Section 7-1 1 of the HMP. 6. An analysis of how the development project complies with the additional 7. A description of proposed additional mitigation consistent with Section 21.210.13(C 8. Any other information, data or analysis deemed necessary by the Planning Review process. An application for a HMP permit or HMP permit amendment shall be processed and approved concurrently with any other development permits required by Titles 11, 15, 18, 20 and 21 of this code. The same decision-making body or official which has the authority to finally approve, conditionally approve or deny the other development permits required for the project shall have the authority to finally approve, conditionally approve or deny a HMP permit. Amendments to HMP permits shall be acted on by the same decision-making body that approved the original HMP permit and any subsequent HMP permit amendments. The decision of the decision-making body or official is final and effective ten calendar days after the adoption of the resolution or written decision, unless within such ten-day period the applicant or any other interested person files a written appeal utilizing the same appeal procedure applicable to the other permits which are processed concurrently with the HMP permit. If no other discretionary permits are being processed concurrently with the HMP permit, then the appeal procedures contained in Chapter 21.54, Sections 21.54.140 and 21 54.150 of this Title shall apply. Incidental take permit. If a development project impacts an HMP covered species and an incidental take permit is required under the authority of the citywide incidental take permit issued for the HMP, the Planning Director shall have the authority to issue the take permit as long as an HMP permit has been approved for the project by the appropriate decision-making body or official pursuant to Subsections A and B of this section. Required findings. No HMP permit shall be approved unless the decision-making body or official finds that: 1. The development project complies with the purpose and intent provisions of Section 21.21 0.10 of this chapter. 2. The proposed development is in compliance with all provisions of the Carlsbad Habitat Management Plan (HMP), the Implementing Agreement, the Multiple Habitat Conservation Plan (MHCP), the Natural Community Conservation Plan (NCCP) and 1 O(a)l (B) permit conditions, the preservation requirements set forth preservation conditions contained in Section 21.210.1 3(D) of this chapter. and E) of this chapter. Director. -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in Section 21.21 0.13 of this chapter and the management requirements set forth in Section 21.210.14 of this chapter. 3. The project design as approved by the city has avoided and minimized impacts to habitat and covered species to the maximum extent feasible. 4. If applicable, the take of covered species is consistent with the Citywide incidental take permit issued for the HMP, will be incidental to otherwise lawful activities related to construction and operation of the project and will not appreciably reduce the likelihood of survival and recovery of the species. 21.210.17 Habitat Management Plan Amendment. Certain HMP implementation actions will require an amendment to the HMP as follows: A. Minor amendments. 1. Equivalency findings. Minor changes to the boundary of a proposed hardline preserve areas or other HMP maps which do not reduce the acreage or quality of habitat are considered minor amendments to the HMP and can be approved by the City with equivalency findings. The city shall provide written notice of the equivalency findings to the wildlife agencies, and unless the agencies object within 30 days of notification, the change will be considered automatically approved. If objections are raised, the City will meet with the agencies to resolve the objection and written approval of the change from the Agencies will be required. Consistency findings. The conversion of standards areas to hardline preserve areas and the processing of certain City projects not shown as hardline preserve areas in the HMP are considered minor amendments to the HMP and can be approved by the City with consistency findings as follows: a. Conversion of standards areas to hardline preserve areas. If the Planning Director determines that the new hardline preserve area boundary conforms to the standards contained in Section D.3(C) of the HMP, the Director shall consult with the wildlife agencies as part of the environmental review process for the development project. If objections to the new preserve area boundaries are not received during the public review period for the environmental review process from the wildlife agencies, consistency findings shall be prepared and adopted as part of the normal development permitting process for the project. b. City projects. For city projects not proposed as hardline preserve areas and not requiring any discretionary review and permitting process, the city shall review the project for compliance with the standards contained in Section 21.210.13. If the city project complies, it shall be determined to be consistent with the HMP and the Planning Director shall make consistency findings. a. Minor amendments may also be considered for the following cases: i. The total impact to habitat is less than one acre, the habitat is not occupied by a covered species, does not impact a Narrow Endemic Species or a wetland and the habitat mitigation in-lieu fee is assessed pursuant to Section 21.210.13(E) of this chapter; ii. The development project is an essential public works project resulting in a public facility or infrastructure that benefits the community at large and strict adherence to the requirements would render the project completely infeasible; iii. Strict application of the requirements of this chapter would result in development of less than 25% of the property. Development shall occur on the least biologically sensitive portion of the property. 2. 3. Other minor amendments. iv. The alternate design results in a biologically superior development. -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. C. B. Major Process for minor amendments for these cases. A request for a minor amendment shall be processed concurrently with any other permit required for the development project. Supporting data and information shall be submitted by the applicant for the minor amendment which clearly demonstrates that the project design, siting and size are the minimum necessary to make the project feasible or provide an economically viable use of the property. The Planning Director shall consult with and obtain approval from the wildlife agencies in reviewing a request for a minor amendment. The minor amendment shall require the approval or conditional approval of the Planning Commission or City Council based on whichever authority is the final decision-maker on the concurrent permit(s) [Note: Such projects may require a Major Amendment (described below) depending upon the nature of the impact and conflict with the HMP, IA, MHCP, and NCCP and 10(a)l(B) permits]. Required findings. No minor amendment request shall be approved unless the decision-making body finds that: i. If applicable, the project is an essential public works project that will service the community at large; and ii. The proposed project and all project alternatives have been analyzed in an appropriate environmental (CEQA) document; and iii. The impacts to habitat have been minimized to the maximum extent practicable; and iv. The project has mitigated its impacts to the maximum extent practicable. v. The project does not reduce the ability to meet the specific habitat conservation obligations of the HMP, IA, MHCP, and NCCP and 10(a)l(B) permits. amendments. Removal of lands from conserved areas, or reconfiguration of haidline areas resulting in a decrease of acreage, quality of habitat, or function of the conserved area shall constitute a major amendment to the HMP. Additions to the covered species list shall also require a major amendment to the plan. Major amendments shall require public, environmental review (CEQA and NEPA) and will be subject to the following amendment process: 1. The City will initiate a pre-amendment review with the wildlife agencies. In this review, the City will present a report that identifies the change or the affected species. The purpose of the review meeting will be to determine whether adequate information is available to consider approval of the change. 2. Within 90 days of the review meeting, the wildlife agencies will notify the City that they have sufficient information to act on the proposed change; have specific items of additional information necessary to properly evaluate the proposed changes; or have determined that additional data collection and analysis is necessary for adequate evaluation of the impacts of the proposed change. 3. Where specific items of additional information are requested, the City will provide the information to the extent it is reasonably available within 90 days. Where additional data collection and analysis are requested, the agencies will provide a detailed explanation of what is required and the purpose of the data and analysis. 4. Once the additional information is received, the agencies shall notify the City within 30 days whether the change is approved. If approved, the change shall constitute an amendment of the Plan which shall then be presented to the City Council for approval and adoption. 21.21 0.18 Guidelines A. From time to time, the Planning Director may upon review by the City Attorney prepare guidelines to assist in the implementation of this chapter or the HMP, including but not -1 0- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 limited to, wetland preservation and mitigation. The Planning Director shall have the authority to approve and publish any guidelines. 21 21 0.19 Enforcement Measures - Violations and Remedies A. Whenever the Planning Director determines that a violation of this chapter has occurred or an individual has impacted habitat without the benefit of a HMP permit, the following enforcement measures and remedies may be undertaken by the Planning Director, in lieu of or in addition to any remedial actions undertaken in accordance with Section 15.16.140 of the Municipal Code. 1. 2. 3. 4. 5. 6. 7. 8. Stop Work Notice: The Planning Director shall issue a stop work order demanding that all activities in violation of this chapter be stopped until a valid HMP permit is obtained and corrective action is authorized by the Planning Director. Corrective Action. The Planning Director, in consultation with the Wildlife Agencies, shall determine the extent of corrective action necessary to cure the violation. Corrective action may include a higher mitigation ratio than specified in Table 11 of Section D.6 of the HMP. Owner-Notification. The owner of the property shall be notified in writing that a violation has occurred. The notification shall specify the location, nature and extent of the activity or condition which contributed to the violation, the corrective action needed to cure the violation and the period of time deemed necessary by the Planning Director to correct the violation. The appeal process contained in Section 21 SI .I40 of this code shall apply to the Planning Director’s determination. Record Notice of Violation. In the event that the owner does not correct the violation in the manner or within the time period requested by the Planning Director, the Planning Director shall record a notice of HMP violation against the property with the county recorder. Upon completion of any corrective action and/or issuance of a valid HMP permit and upon payment of the investigation fee required pursuant to this section, the Planning Director shall file a notice of release of HMP violation with the county recorder releasing the property from the notice of violation. Prohibition of Development Permits. Any property which has a notice of HMP violation recorded against it shall be prohibited from obtaining or using any development permit pursuant to Titles 18, 20 and 21 of this code until after all corrective actions are taken in accordance with the requirements of the Planning Director and, a notice of release of violation has been recorded with the county recorder. Investigation Fee. An investigation fee established by City Council resolution shall be paid by the person responsible for the violation in accordance with the provisions of this chapter. The payment of such investigation fee shall not relieve any person from the performance of the corrective work or otherwise complying with the requirements of this chapter. Criminal Penalities. Each person, firm or corporation who commences or does any activity contrary to the provisions of this chapter, or otherwise violates the provisions of this chapter, is guilty of an infraction. Every day during any portion of which any violation of any provisions of this title is committed, continued or permitted by such person, firm or corporation, shall be deemed a separate violation and shall be punishable as provided in this title and in Section 1.08.010(b) of this code. Abatement of Public Nuisance. Any activity commenced or done contrary to the provisions of this chapter, or other violation of this chapter, shall be, and the same is declared to be, a public nuisance. Upon order of the City Council , the City Attorney shall commence necessary proceedings for the abatement of any such public nuisance in the manner provided by law. Any failure, refusal, or neglect to -1 1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 obtain a permit as required by this chapter shall be prima facie evidence of the fact that a public nuisance has been committed in connection with any activity commenced or done contrary to the provisions of this chapter. 9. Civil Action. The City Attorney may, at the request of the Planning Director, initiate any appropriate civil action in a court of competent jurisdiction to enforce the stop work notice, including the required corrective actions, including the recovery of any funds expended by the city to abate any public nuisance resulting from an unlawful act as defined in Section 15.16.170 of the Municipal Code and any additional civil penalties provided for by law. SECTION 2: That Section 21 of the Carlsbad Municipal Code is amended by adding a new (6) to Section 21.33.010 of the 0-S Open Space Zone to read as follows: “21.33.010(6). Protect areas set-aside and preserved as natural habitat and the biological resources located in the areas in conformance with the City’s Habitat Management Plan.” SECTION 3: That Title 21 of the Carlsbad Municipal Code is amended by adding a new Section 21.33.045 to the 0-S Open Space Zone to read as follows: “21 -33.045. Open space preserved in conformance with the Habitat A. Notwithstanding Sections 21.33.020, 21.33.030 and 21.33.040 of this chapter, no development, uses, structures or activities shall be permitted in areas zoned for open space which have been set-aside and preserved for natural habitat in conformance with the City’s Habitat Management Plan except as provided below: (I) Activities related to the management, maintenance and biological monitoring of the habitat by the managing entity as required by the Habitat Management Plan and city and other regulatory agency permits and approved by the Wildlife Agencies in the Habitat Management Plan and/or MHCP in order to preserve and protect the property for natural habitat purposes. Fuel modification activities are not allowed within the preserve areas; (2 Planting and maintaining of locally native trees, shrubs and other native landscaping elements in order to restore or enhance the habitat area as required by the Habitat Management Plan and city and other regulatory agency permits and approved by the Wildlife Agencies in the Habitat Management Plan and/or MHCP including the appurtenances necessary to maintain the native landscaping placed thereon; (3) Trails which are approved as part of the citywide trail program and which are located in conformance with city and other regulatory agency permits and are consistent with the Habitat Management Plan and MHCP Volume I, section 6.3.8 for public access, and approved by the Wildlife Agencies; (4) Passive recreation uses such as hiking, picnicking and bird watching if allowed by the city and other regulatory agency permits and approved by the Wildlife Agencies; Management Plan. (5) Existing utility easements; -1 2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (6) Additional easements, subject to approval of the Wildlife Agencies, that are consistent with the preservation of the natural condition of the property, do not impair or interfere with the conservation values of the property and do not compromise the overall levels of conservation in the preserve or adversely affect preserve and species goals; (7) Fencing as required by the managing entity and which does not adversely affect wildlife movement and approved by the Wildlife Agencies; (8) Signing which identifies the property as a habitat preserve and informs persons of the nature and restrictions on the property and approved by the Wildlife Agencies; and (9) Other, minor ancillary uses or structures which have been specifically approved as part of the Habitat Management Plan or as allowed by city or other regulatory agency permits and approved by the Wildlife Agencies. Ancillary structures that are specific to a project development, such as storm drains or detention basins, shall be allowed outside the preserve (any exceptions shall follow the appropriate process for a boundary adjustment B. A Conservation Easement shall be placed on all open space areas set- aside and preserved as natural habitat in conformance with the Habitat Management Plan. The Conservation Easement shall ensure that the property will be preserved in perpetuity and will be managed and maintained for its natural habitat value. The easement shall specifically list all allowable and prohibited open space uses.” SECTION 4: That Title 21 of the Carlsbad Municipal Code is amended by adding a new (3) to Section 21.95.140 of the Hillside Development Regulations to read as follows: “21.95.140(3). The proposed modifications will result in the preservation of natural habitat as required by the City’s Habitat Management Plan and the required amount of preservation could not be achieved by strict adherence to the requirements of Section 21. 95.120.” SECTION 5: That Title 21 of the Carlsbad Municipal Code is amended by adding a new (E) to Section 21.95.140 of the Hillside Development Regulations to read as follows: “21.95.140. E. Inside the coastal zone, the decision-making body or official may approve encroachments to slopes of twenty-five percent grade and over in order to preserve natural habitat s required by the City’s Habitat Management Plan, in accordance with Chapter 21.203 of the Municipal Code, provided that the required amount of preservation could not be achieved by strict adherence to the requirements of Sections 21.95.120(A) and (B) of this chapter.” SECTION 6: That Title 21 of the Carlsbad Municipal Code is amended by adding a new (d) to Section 21.203.040(A)(I) to read as follows: “21.203.040(A)(1) d. Notwithstanding (a) and (b) above, encroachments to slopes of twenty- five percent grade and over may be permitted in order to preserve natural habitat as required by the City’s Habitat Management Plan and the required amount of preservation could not be achieved by strict adherence to the to the requirements of (a) and (b).” -1 3- 1 , 1 ! 1( 11 1; 1: 1' 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EFFECTIVE DATE: This ordinance shall become effective thirty (30) days afte its adoption, and the City Clerk shall certify to the adoption of this ordinance and cause it to bt published at least once in a publication of general circulation in the City of Carlsbad withir fifteen days after its adoption. (Not withstanding the preceding this ordinance shall not becomt effective within the City's Coastal Zone until approved by the California Coastal Commission.) Ill Ill Ill Ill Ill I// Ill Ill Ill /I/ Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill -14- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on the day of 2005, and thereafter. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the day of 2005, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: APPROVED AS TO FORM AND LEGALITY RONALD R. BALL, City Attorney CLAUDE A. LEWIS, Mayor ATTEST: LORRAINE M. WOOD, City Clerk (SEAL) -1 5-