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CC RES 2004-001RESOLUTION NO. 2004 -01 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES GRANTING APPEALS FROM STAFF'S CONDITIONAL APPROVAL OF A REQUEST FOR EXEMPTION FROM THE RANCHO PALOS VERDES COASTAL SAGE SCRUB CONSERVATION ORDINANCE (CHAPTER 17.41 OF TITLE 17 OF THE RANCHO PALOS VERDES MUNICIPAL CODE) AND REVERSING STAFF'S CONDITIONAL APPROVAL OF THE EXEMPTION REQUEST TO ALLOW WEED ABATEMENT ACTIVITY ON THE 93.7 ACRE POINT VIEW (LOWER FILIORUM) PROPERTY, WHEREAS, On May 20, 2003, the City Council of the City of Rancho Palos adopted Ordinance No. 391 U, an interim ordinance relating to the conservation and management of Coastal Sage Scrub Habitat ( "CSS ") and establishing regulations and procedures applicable thereto. Ordinance No. 391 U added a new Chapter 17.41, known by its short title as the "Rancho Palos Verdes Coastal Sage Scrub Conservation Ordinance" (hereafter the "Ordinance ") to the Rancho Palos Verdes Municipal Code, and was valid for a 45 -day period pursuant to Government Code Section 65858; and, WHEREAS, in accordance with the provisions of Government Code Section 65858, a public hearing was duly noticed, pursuant to the provisions of Government Code Section 65090, to be held at the regular City Council meeting of July 1, 2003, so that the City Council could receive public testimony regarding the Ordinance No. 391 U; and, WHEREAS, on July 1, 2003, the City Council of the City of Rancho Palos Verdes extended Ordinance No. 391 U by 10 months and 15 days through May 16, 2004; and, WHEREAS, the Ordinance, exempts all weed abatement performed by Los Angeles County Weed Abatement crews and all weed abatement performed by private individuals pursuant to a written plan or order issued or required by the Los Angeles County Fire Department or by another governmental entity. Therefore, on July 14, 2003, the property owner requested an exemption under the Ordinance to perform weed abatement on 21.6 acres of the properties, in accordance with a specific Fire Department Inspection Report. Given the public safety concern cited in the Fire Department order, on July 17, 2003, City Staff authorized the work to proceed immediately; and WHEREAS, by letter dated September 25, 2003, York Long Point Associates CYLPA") requested that the City grant an exemption from the Ordinance, pursuant to Section 17.41.060 F thereof, to permit certain additional weed abatement of non -CSS areas of the Point View property in addition to those areas identified in the July 17, 2003 order from the Los Angeles County Fire Department; and, WHEREAS, in accordance with the Ordinance, the Director of Planning, Building and Code Enforcement (the "Director ") reviewed YLPA's request for exemption from the Ordinance, which review included consultation with the City's wildlife biologist consultant, Dr. Patrick Mock, who has expertise in biological issues in the City; and, WHEREAS, Dr. Mock reviewed the application, the applicant's September 2003 biological assessment and thirteen other environmental documents, and based on that review, Dr. Mock concluded that, in his opinion, the biological information submitted by the applicant is consistent with the requirements of the Ordinance; and, WHEREAS, the Director, with concurrence of Dr. Mock, determined that the weed abatement activity for which YLPA sought exemption from the Ordinance meets the requirements of Section 17.41.060 F of the Ordinance, but only if YLPA complies with certain conditions that were set forth in the Director's decision; which is memorialized in a letter from the Director dated November 7, 2003, and, WHEREAS, the Director determined that the weed abatement activity for which YLPA sought exemption from the Ordinance is exempt from the California Environmental Quality Act ( "CEQA ") pursuant to CEQA Guidelines Section 15304, provided that the weed abatement activity is completed in strict compliance with certain conditions that are set forth in the Director's decision; and, WHEREAS, pursuant to Section 17.41.080 of the Ordinance, a fifteen calendar day period in which to appeal the Director's decision to the City Council commenced on November 7, 2003, during which YLPA could not perform the work authorized by the Director's conditional approval; and, WHEREAS, on November 24, 2003, and within the 15 calendar day appeal period, because the appeal period would otherwise have expired on a Saturday, the South Coast Chapter of the California Native Plant Society (hereafter the "CNPS ") filed a letter dated November 21, 2003, appealing the Director's determination on YLPA's request for exemption from the Ordinance and setting forth its bases for appeal therein and in a subsequent letter that was submitted after the appeal deadline; and, WHEREAS, on November 24, 2003, and within the 15 calendar day appeal period, the Palos Verdes South Bay Group of the Sierra Club (hereafter the "Sierra Club ") filed a letter dated November 22, 2003, appealing the Director's determination on YLPA's request for exemption from the Ordinance and setting forth its bases for appeal therein; and, WHEREAS, on December 16, 2003, the City Council held a duly noticed appeal hearing in accordance with the provisions of Chapter 17.80 of the Rancho Palos Municipal Code, at which time all interested parties were given an opportunity to be heard and present evidence; and, WHEREAS, the City Council undertook a de novo review of the decision of the Director in accordance with Section 17. 80.070 F. of the Rancho Palos Verdes Municipal Code; Resolution No. 2004 -01 Page 2of2 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS: Section 1: The stated purposes of the Ordinance are to "establish policies, regulations, and standards necessary to ensure that the city will continue to realize benefits provided by its natural environment... by providing requirements and procedures that reduce potential adverse impacts on threatened or endangered species, which would be created or indirectly induced by the unregulated removal of CSS habitat and other vegetation that is occupied by threatened or endangered species, regardless of whether such removal occurs in connection with proposed and existing developments. "(Ordinance, Section 17.41.020.) Based on the arguments presented by the appellants and the testimony and evidence that was presented at the hearing, the City Council finds and determines that there is a reasonable possibility that the proposed weed abatement project may cause significant adverse impacts, so that an exemption from CEQA is improper, for the reasons set forth in Sections 2 and 3, below. Section 2: The City Council in its independent judgment determines that the weed abatement project is not exempt from CEQA pursuant to CEQA Guidelines Section 15304 (Class 4 Categorical Exemption for Minor Alterations to Land) (hereafter the "Exemption "), which exempts "minor public or private alterations in the condition of land, water, and /or vegetation which do not involve removal of healthy, mature, scenic trees...." The project involves removal of vegetation from areas of the property where weed abatement activities have not been performed previously. Although the September 2003 biological assessment submitted by the applicant contains the information required by the urgency ordinance and was prepared by qualified biologist at least six months before the vegetation removal is to commence in accordance with the Ordinance, the City Council finds that reliance on that survey is not appropriate. As demonstrated by appellants, the biological survey was not performed during the spring, which is the best time of year to identify the plant species that are present on the portion of the site where the weed abatement activities are to be performed. During later times in the year, rare or sensitive plants that may be located on the site are dormant; therefore, surveys completed when sensitive plants may be dormant may not completely identify the site's plant resources. Thus, in the absence of a biology study that is performed in the spring, it cannot be determined whether the proposed weed abatement will adversely affect rare or sensitive plant species that may be located on the site. Accordingly, the City Council concurs with the appellants' contention that the Categorical Exemption set forth in CEQA Guidelines Section 15304 is inapplicable to this application because in the absence of a biology study that is conducted on the subject properties in the spring, there is a reasonable possibility that the proposed weed abatement could have an adverse impact upon rare or endangered plant species. Resolution No. 2004 -01 Page 3of3 Section 3: The City Council, in its independent judgment, and having weighed the evidence presented in the Staff Report and in written and oral testimony including biological studies and reports, finds and determines that because there is a reasonable possibility that the weed abatement activity will have a significant impact on the environment, the proposed weed abatement activity is subject to the requirements of CEQA. Thus, an initial study and the corresponding level of environmental review, which is based upon the conclusions reached in the initial study, must be prepared in connection with this application, and prior to making a determination on the application for exemption. Section 4: Based upon the evidence in the record and the testimony that was presented to the City Council, the proposed weed abatement does not fall within the exemption from the Ordinance set forth in Section 17.41.060 A for vegetation removal performed for fire protection purposes in response to a written plan or order from the Los Angeles County Fire Department. The record of this matter demonstrates that the Applicant already performed weed abatement on the subject properties in response to a written order from the Fire Department. Staff s consultation with the Fire Department about this proposed additional weed abatement demonstrated that the applicant already had complied with the prior order that had been issued, and that the Fire Department had not ordered the applicant to take any further action to remove any additional vegetation from the subject properties. At the public hearing, it was noted that because this is now the rainy season, there is no emergency situation or other circumstance that requires the applicant to remove additional vegetation from the property at this time. Accordingly, the City Council finds that the proposed additional weed abatement activities do not fall within the provisions of Paragraphs A through E of the Ordinance (Section 17.41.060 of the Rancho Palos Verdes Municipal Code). Section 5: The Ordinance prohibits weed abatement activities on property that is occupied by threatened or endangered species. The 93.7 -acre Point View property consists of all of an 84.1 -acre parcel, and a portion of a separate legal parcel that is 228.3 acres in size. The 228.3 -acre parcel is known to be occupied by the Gnatcatcher, which is a species that is listed as "threatened" pursuant to the provisions of the Endangered Species Act. Therefore, weed abatement on the 228.3 -acre parcel cannot be permitted under Section 17.41.060 F of the Ordinance. Section 6: Until a biology study is conducted in the spring to determine if rare or sensitive plants that will be adversely affected by the proposed weed abatement are present on the portion of the properties where the weed abatement is proposed to occur, it cannot be determined whether the proposed weed abatement would violate the Natural Overlay Control District (Rancho Palos Verdes Municipal Code Section 17.40.040, hereafter the "NOCD ") which applies to the subject properties. This is so because the NOCD performance criteria apply to all "uses, development and alterations of land," as that phrase is defined by Rancho Palos Verdes Municipal Code Section 17.96.2200,which includes "removal or destruction of rare or endangered species of vegetation orwildlife." In the absence of a biology study that is performed in the spring when the species are not Resolution No. 2004 -01 Page 4 of 4 dormant, it is unclear whether the removal or destruction of rare or endangered vegetation would occur as a result of the proposed weed abatement, which could trigger among other things, a limitation on weed abatement activity such that no more than 20 percent of the vegetation on the site can be removed (NOCD, Section 17.40.040 C. 5). Further, it is unclear whether any of the NOCD performance criteria would be violated. Section 7: The time within which the judicial review of the decision reflected in this Resolution, if available, must be sought is governed by Section 1094.6 of the California Code of Civil Procedure and any other applicable short periods of limitation. Section 8: For the foregoing reasons and based on the information and findings included in the Staff Report, Minutes and other records of these proceedings, the City Council of the City of Rancho Palos Verdes hereby reverses the Director's determination, denies the application and grants the appeals. This action is being taken without prejudice to the applicant's right to file a new application with the City to perform this weed abatement work, provided that the requirements of CEQA are fully satisfied in connection with that application by the preparation of an initial study and the corresponding environmental documentation that results from the analysis contained in the initial study. This decision also is without prejudice to the applicant's ability to perform weed abatement activities in response to a written plan or order issued by the Los Angeles County Fire Department or other similar directive, as specified in Section 17.41.060 of the Municipal Code. PASSED, APPROVED, AND ADOPTED t Attest: City Clerk tate of California ) County of Los Angeles ) ss City of Rancho Palos Verdes I, JO PURCELL, City Clerk of the City of Rancho Palos Verdes, hereby certify that the above Resolution No. 2004 -01 was duly and regularly passed and adopted by the said City Council at a regular meeting thereof held on January 6, 2004. City Clerk Resolution No. 2004 -01 Page 5of5