HomeMy WebLinkAbout2006-03-14; City Council; NS-783; Habitat Management Plan ImplementationORDINANCE NO. NS-783
1
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
2 CARLSBAD, CALIFORNIA AMENDING THE LOCAL COASTAL
PROGRAM AND TITLE 21 OF THE MUNICIPAL CODE BY THE
3 ADDITION OF A NEW CHAPTER 21.210 TO THE ZONING
ORDINANCE RELATING TO THE REQUIREMENTS,
4 STANDARDS, AND PROCEDURES FOR HABITAT
PRESERVATION AND MANAGEMENT IN CONFORMANCE
5 WITH THE CITY'S HABITAT MANAGEMENT PLAN AND BY
AMENDING OTHER EXISTING CHAPTERS TO ESTABLISH
6 CONSISTENCY AND IMPLEMENTATION OF THE HABITAT
MANAGEMENT PLAN.
7 CASE NAME: HABITAT MANAGEMENT PLAN
IMPLEMENTATION
8 CASE NO.: ZCA 05-01
9 The City Council of the City of Carlsbad, California does ordain as follows:
10 SECTION 1: That Title 21 of the Carlsbad Municipal Code is amended by the
11 addition of a new Chapter 21.210 to read as follows:
12
Chapter 21.210
13
Habitat Preservation and Management Requirements
14 Sections:
21.210.10 Purpose and Intent
15 21.210.11 Definitions
21.210.12 Applicability
6 21.210.13 Habitat Preservation Requirements
21.210.14 Habitat Management Requirements
21.210.15 Permits Required
21.210.16 HMP Permit
21.210.17 Habitat Management Plan Amendment
19 21.210.18 Guidelines
21.210.19 Enforcement Measures - Violations and Remedies
20 21.210.10 Purpose and Intent.
21 The purposes and intent of this chapter are to:
22 A. Implement the goals and objectives of the land use and the open space/conservation
elements of the Carlsbad general plan;
23 B. Implement the city's habitat management plan, the Implementing Agreement and
conditions, the North County Multiple Habitat Conservation Plan (MHCP), the state's
24 Natural Communities Conservation Plan (NCCP) and 10(a)1 (B) permit conditions;
C. Preserve the diversity of natural habitats in the city and protect the rare and unique
25 biological resources located within those habitats;
D. Assure that all development projects comply with the habitat preservation and
26 conservation standards contained in the habitat management plan;
E. Provide a process for permitting limited, incidental impacts to occur to natural habitat
27 areas and the species located therein; and
F. Provide a process for allowing minor amendment from the habitat preservation and
28 conservation standards under limited, specified circumstances.
1 21.210.11 Definitions.
2 The following definitions are established:
A. Whenever the following terms are used in this chapter, they shall have the meaning
3 established by this section:
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 HMP5 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
ic 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.
17 It includes both natural and native habitat.
6. "Habitat In-Lieu Mitigation Fee" means a per-acre fee charged for impacts to on-
lg site habitat as an alternative to acquiring off-site habitat to mitigate for such
impacts.
19 7. "Habitat Management Plan" means the comprehensive plan which identifies how
the city can preserve and conserve the diversity of habitat and protect rare
20 species and biological resources within the city while allowing for additional
development consistent with the city's General Plan and its Growth Management
21 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
22 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
23 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
24 conserved for their habitat value due to permitting actions occurring in the past
before approval of the HMP. "Proposed" hardline preserve areas are properties
25 whose preservation and development areas have been planned as part of the
HMP. These areas have been agreed-upon in coordination with the landowners,
26 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
27 conservations are in conformance with the HMP, the development will be allowed
under the HMP.
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1 9."HMP" means the Carlsbad Habitat Management Plan (dated December 1999 as
amended, final approval November 2004).
2 10. "HMP Permit" means the permit required when a development project impacts,
either directly or indirectly, habitat in the city.
3 11. "Implementing Agreement" or "IA" means the legal document which defines the
roles, responsibilities, activities and conditions that will be undertaken by the city
4 and the wildlife agencies to provide for the preservation, conservation and
management of habitat and the species covered under the HMP.
5 12. "Incidental Take Permit" means the taking of an HMP Covered Species incidental
to and not the purpose of carrying out otherwise lawful activities.
6 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.
8 14. "MHCP" means the Multiple Habitat Conservation Plan, a comprehensive
subregional plan which addresses multiple species habitat needs and the
9 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.
, fi 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.
2Q 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
22 have not yet been planned as part of the HMP. Instead, preservation and
conservation standards have been developed for these properties which must be
23 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
24 Department of Fish and Game.
25 21.210.12 Applicability
26
A. All development projects and fuel modification activities in the City shall comply with the
27 habitat preservation and conservation standards contained in the City's Habitat
Management Plan (HMP) as well as the Implementing Agreement, Permit conditions, the
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1 MHCP, the NCCP and 10(a)1(B) permit conditions, and the requirements contained in
this chapter. All requirements of the HMP are incorporated herein by reference.
2 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
3 chapter are fulfilled.
4
21.210.13 Habitat Preservation Requirements.
5 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
6 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.
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
,o the project is located shall be credited toward the mitigation ratios.
If at least 67% of the habitat on the property where the development project is
2Q 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)1(B)
permits; 2) the proposed on-site preservation would reduce the City's ability to
22 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.,
23 habitat exists in a small, isolated patch or patches outside of the Focus Planning
Area, and containing no Narrow Endemic species).
24 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
25 determined by the City in consultation with the wildlife agencies.
D. Additional conditions. In addition to the requirements, standards and conditions
26 contained in A, B and C of this Section, the following additional conditions of coverage
shall apply to all development projects. These conditions are intended to reference
27 existing requirements and conditions contained in the HMP, IA, MHCP, and NCCP and
10(a)1(B) permit conditions; the conditions listed below are not intended to add
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1 additional requirements or conditions above those contained in the HMP, IA, MHCP, and
NCCP and 10(a)1(B) permit conditions:
2 1. Impacts to Narrow Endemic Species shall be avoided to the maximum extent
practicable in conformance with the Narrow Endemic Species Policy contained in
3 the MHCP and incorporated herein by reference, however where impacts to a
Narrow Endemic Species population are demonstrated to be unavoidable,
4 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.
5 Relocation of the Narrow Endemic Species cannot be used to meet the 5%
numeric standard.
2. Grading for a development project during wildlife breeding seasons shall be
prohibited, except as provided by the HMP and MHCP, unless a minor
adjustment is specifically approved by the city and the wildlife agencies.
3. All development projects shall be located and designed to minimize overall
impacts to natural habitat.
4. All fuel modification (brush management) zones required as a result of the
9 development project, and as required by the Fire Marshal, shall be located
outside the preserve areas, shall be considered impacted and shall be mitigated
10 according to C of this section.
5. 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 3:1 ratio and 4) will be mitigated in ways that assure no net loss of
habitat value or function.
6. 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
r 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).
7. 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.
, o 8. All development projects shall comply with the applicable standards of the MHCP
(dated March 2003) and the measures to minimize impacts to covered species
2Q 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
22 conservation standards contained in Section D.7, Standards 7-13 and 7-14 of the
HMP as incorporated into the Local Coastal Program.
23 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
24 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
25 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
26 suitable habitat on a per acre basis comparable to the land being developed.
27
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1
21.210.14 Habitat Management Requirements.
2 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
3 all habitat preserve areas within the boundaries of the property in which the project is located
according to the provisions of this section:
4 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
5 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
6 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.
C. Conservation easement required. 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.
. 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
, R 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
2Q 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
22 Director. The preserve management plan shall include the following:
An overall vision of the preserve area, its role in the Citywide preserve
23 system and its regional relationship.
The baseline biological conditions as identified in field surveys of the
24 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
25 area and the known or expected threats to the biological value of the area.
iii. Identification of resource management goals and specific conservation
26 objectives based on the vision for the preserve area and baseline
biological conditions.
27 iv. Area-specific management directives based on the resource goals and
conservation objectives.
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1 v. A description of preserve-level and subregional monitoring activities which
shall be consistent with the HMP and MHCP Volume I and II.
2
Appendix D of the citywide Open Space Management Plan contains an outline of the
3 required format for preserve management plans.
4 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
5 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
6 needs and area-specific management directives.
7
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
9 be processed concurrently with any other development permits required by Titles 15, 18,
20 and 21 of the Municipal Code.
11 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:
17 1. 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
2Q 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
22 applicant submits subsequent surveys conducted during the acceptable time of the
year.
23 2. 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
24 preserve area consistent with the proposed hardline preserve area figures
contained in the HMP.
25 3. 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
26 conditions contained in the HMP and MHCP, IA, any applicable permit conditions in
the NCCP and 10(a)1(B) permits, the hardline preserve boundaries which would
27 result from compliance with the standards and how the project is being located on
the least biologically sensitive portion of the property.
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1 4. For projects which impact narrow endemic species, the following information shall
be provided:
2 a. A graphic depiction of all narrow endemic species located on the property
where the development project is located;
3 b. A written biological description of the status of the narrow endemic species;
c. Quantification of both preservation of narrow endemic species and impacts to
4 narrow endemic species associated with the project including direct and
indirect effects on an area and individual plant basis;
d. A written report of the feasibility or infeasibility of total avoidance of narrow
endemic species population(s);
e. 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.
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 7-11 of the HMP.12 6. An analysis of how the development project complies with the additional
preservation conditions contained in Section 21.210.13(D) of this chapter.
A description of proposed additional mitigation consistent with Section 21.210.13(C
and E) of this chapter.
8. Any other information, data or analysis deemed necessary by the Planning
, Director.
B. 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
17 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
, n 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
2Q 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
22 procedures contained in Chapter 21.54, Sections 21.54.140 and 21.54.150 of this Title
shall apply.
23 C. 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
24 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
25 appropriate decision-making body or official pursuant to Subsections A and B of this
section.
26 D. Required findings. No HMP permit shall be approved unless the decision-making body
or official finds that:
27 1 • The development project complies with the purpose and intent provisions of
Section 21.210.10 of this chapter.
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1 2. The proposed development is in compliance with all provisions of the Carlsbad
Habitat Management Plan (HMP), the Implementing Agreement, the Multiple
2 Habitat Conservation Plan (MHCP), the Natural Community Conservation Plan
(NCCP) and 10(a)1(B) permit conditions, the preservation requirements set forth
3 in Section 21.210.13 of this chapter and the management requirements set forth in
Section 21.210.14 of this chapter.
4 3. The project design as approved by the city has avoided and minimized impacts to
habitat and covered species to the maximum extent feasible.
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
6 related to construction and operation of the project and will not appreciably reduce
the likelihood of survival and recovery of the species.
8 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 har<
areas and the processing of certain City projects not shown as har<
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
17 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
19 from the wildlife agencies, consistency findings shall be prepared and adopted as
part of the normal development permitting process for the project.
20 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
21 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
22 and the Planning Director shall make consistency findings.
3. Other minor amendments.
23 a. Minor amendments may also be considered for the following cases:
The total impact to habitat is less than one acre, the habitat is not occupied by
24 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
25 21.210.13(E) of this chapter;
The development project is an essential public works project resulting in a
26 public facility or infrastructure that benefits the community at large and strict
adherence to the requirements would render the project completely infeasible;
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1 iii. Strict application of the requirements of this chapter would result in
development of less than 25% of the property. Development shall occur on
2 the least biologically sensitive portion of the property.
iv. The alternate design results in a biologically superior development.
3 b. Process for minor amendments for these cases. A request for a minor
amendment shall be processed concurrently with any other permit required for
4 the development project. Supporting data and information shall be submitted by
the applicant for the minor amendment which clearly demonstrates that the
5 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
7 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)1(B) permits].
c. 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
12 The proposed project and all project alternatives have been analyzed in an
appropriate environmental (CEQA) document; and
The impacts to habitat have been minimized
practicable; and
iv. The project has mitigated its impacts to the maximum extent practicable.
iii. The impacts to habitat have been minimized to the maximum extent
practicable; and
14 v. The project does not reduce the ability to meet the specific habitat
5 conservation obligations of the HMP, IA, MHCP, and NCCP and 10(a)1(B)
permits.
B. Major amendments. Removal of lands from conserved areas, or reconfiguration of
hardline areas resulting in a decrease of acreage, quality of habitat, or function of the
17 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
18 amendments shall require public, environmental review (CEQA and NEPA) and will be
subject to the following amendment process:
19 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
20 species. The purpose of the review meeting will be to determine whether adequate
information is available to consider approval of the change.
21 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
22 of additional information necessary to properly evaluate the proposed changes; or
have determined that additional data collection and analysis is necessary for
23 adequate evaluation of the impacts of the proposed change.
_. 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.
25 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
27 an amendment of the Plan which shall then be presented to the City Council for
approval and adoption.
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21.210.18 Guidelines
2 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
limited to, wetland preservation and mitigation. The Planning Director shall have the
authority to approve and publish any guidelines.
21.210.19 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. 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
11 violation. Corrective action may include a higher mitigation ratio than specified in
Table 11 of Section D.6 of the HMP.
3. 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
21.51.140 of this code shall apply to the Planning Director's determination.
4. 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
17 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
18 with the county recorder releasing the property from the notice of violation.
5. Prohibition of Development Permits. Any property which has a notice of HMP
19 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
20 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
21 recorder.
6. Investigation Fee. An investigation fee established by City Council resolution shall
22 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
23 any person from the performance of the corrective work or otherwise complying
with the requirements of this chapter.
24 7. Criminal Penalities. Each person, firm or corporation who commences or does any
activity contrary to the provisions of this chapter, or otherwise violates the
25 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
26 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
27 code.
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1 8. 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
2 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
3 public nuisance in the manner provided by law. Any failure, refusal, or neglect to
obtain a permit as required by this chapter shall be prima facie evidence of the fact
4 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.8
SECTION 2: That Section 21 of the Carlsbad Municipal Code is amended by
adding a new (6) to Section 21 .33.01 0 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
12
SECTION 3: That Title 21 of the Carlsbad Municipal Code is amended by adding
a new Section 21 .33.045 to the O-S Open Space Zone to read as follows:
"21.33.045. Open space preserved in conformance with the Habitat
Management Plan.
16 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
,o except as provided below:
(1) 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
2Q 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;
22 (2) Planting and maintaining of locally native trees, shrubs and other
native landscaping elements in order to restore or enhance the habitat
23 area as required by the Habitat Management Plan and city and other
regulatory agency permits and approved by the Wildlife Agencies in
24 the Habitat Management Plan and/or MHCP including the
appurtenances necessary to maintain the native landscaping placed
25 thereon;
(3) Trails which are approved as part of the citywide trail program and
26 which are located in conformance with city and other regulatory
agency permits and are consistent with the Habitat Management Plan
27 and MHCP Volume I, section 6.3.8 for public access, and approved by
the Wildlife Agencies;
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1 (4) Passive recreation uses such as hiking, picnicking and bird watching if
allowed by the city and other regulatory agency permits and approved
2 by the Wildlife Agencies;
(5) Existing utility easements;
3 (6) Additional easements, subject to approval of the Wildlife Agencies,
that are consistent with the preservation of the natural condition of the
4 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
11 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."
15 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:
17 "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.
19 95.120."
2Q 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:
22 "21.95.140.
E. Inside the coastal zone, the decision-making body or official may approve
23 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
24 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."
25
SECTION 6: That Title 21 of the Carlsbad Municipal Code is amended by adding
26
a new (d) to Section 21.203.040(A)(1) to read as follows:
27
"21.203.040(A)(1)
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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
2 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)."
3
EFFECTIVE DATE: This ordinance shall become effective thirty (30) days after
4
its adoption, and the City Clerk shall certify to the adoption of this ordinance and cause it to be
published at least once in a publication of general circulation in the City of Carlsbad within
6
fifteen days after its adoption. (Not withstanding the preceding, this ordinance shall not become
effective within the City's Coastal Zone until approved by the California Coastal Commission.)8
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INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City
Council on the 7th day of March 2006, and thereafter.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Carlsbad on the 14th day of March 2006, by the following vote, to wit:
AYES: Council Members Lewis, Hall, Kulchin, Packard
NOES: None
ABSENT: Council Member Sigafoose
ABSTAIN: None
APPROVED AS TO FORM AND LEGALITY
RONALD R. BALL, City Attorney
3-
CLAUDE A. LEw, Myor
ATTEST:
LORRAINE M. WOOD, City Clerk
(SEAL)
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