0 - CC SR 20191029 01 - NCCP HCPPUBLIC HEARING
Date: October 29, 2019
Subject: Consideration and possible action to adopt the final Rancho Palos Verdes Natural
Communities Conservation Plan/Habitat Conservation Plan (NCCP/HCP)
Recommendation: (1) Adopt Resolution No. 2019-__, thereby adopting the final Rancho Palos
Verdes Natural Communities Conservation Plan/Habitat Conservation Plan
(NCCP/HCP)
(2) Initiate code amendment proceedings to amend the Rancho Palos Verdes
Municipal Code to reflect the NCCP/HCP as follows:
a.Title 15 (Fire Code);
b.Title 16 (Subdivision Ordinance);
c.Chapter 17.41 (Coastal Sage Scrub Ordinance);
d.Chapter 17.70 (Site Plan Review);
e.Chapter 17.72 (Coastal Permit Process); and
f.Chapter 17.76 (Grading Ordinance);
(3) Direct Staff to prepare the Preserve Access Protocol (PAP) for the City
Council adoption at a future duly-noticed public meeting; and
(4) Authorize Staff to record the NCCP/HCP-required conservation easements
for the Preserve properties.
Subject Property/Location: Citywide
1.Report of Notice Given: City Clerk
2.Declare Public Hearing Open: Mayor Duhovic
3.Request for Staff Report: Mayor Duhovic
4.Staff Report & Recommendation: Katie Lozano, Senior Administrative Analyst
5.Council Questions of Staff (factual and without bias):
6.Testimony from members of the public:
The normal time limit for each speaker is three (3) minutes. The Presiding Officer may grant additional time to a representative speaking
for an entire group. The Mayor also may adjust the time limit for individual speakers depending upon the number of speakers who
intend to speak.
7.Declare Hearing Closed/or Continue the Public Hearing to a later date: Mayor Duhovic
8.Council Deliberation:
The Council may ask staff to address questions raised by the testimony, or to clarify matters. Staff and/or Council may also answer
questions posed by speakers during their testimony. The Council will then debate and/or make motions on the matter.
9.Council Action:
The Council may: vote on the item; offer amendments or substitute motions to decide the matter; reopen the hearing for additional
testimony; continue the matter to a later date for a decision. Public Hearing
Cover Sheet
RANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 10/29/2019
AGENDA REPORT AGENDA HEADING: Public Hearing
AGENDA DESCRIPTION:
Consideration and possible action to adopt the final Rancho Palos Verdes Natural
Communities Conservation Plan/Habitat Conservation Plan (NCCP/HCP)
RECOMMENDED COUNCIL ACTION:
(1) Adopt Resolution No. 2019-__, thereby adopting the final Rancho Palos Verdes
Natural Communities Conservation Plan/Habitat Conservation Plan (NCCP/HCP)
(2) Initiate code amendment proceedings to amend the Rancho Palos Verdes
Municipal Code to reflect the NCCP/HCP as follows:
a. Title 15 (Fire Code);
b. Title 16 (Subdivision Ordinance);
c. Chapter 17.41 (Coastal Sage Scrub Ordinance);
d. Chapter 17.70 (Site Plan Review);
e. Chapter 17.72 (Coastal Permit Process); and
f. Chapter 17.76 (Grading Ordinance);
(3) Direct Staff to prepare the Preserve Access Protocol (PAP) for the City Council
adoption at a future duly-noticed public meeting; and
(4) Authorize Staff to record the NCCP/HCP-required conservation easements for
the Preserve properties.
FISCAL IMPACT: None
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: Katie Lozano, Senior Administrative Analyst
REVIEWED BY: Ara Mihranian, Director of Community Development
Cory Linder, Director of Recreation and Parks
APPROVED BY: Doug Willmore, City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Resolution No. 2019-___ adopting the NCCP/HCP (Page A-1)
B. Final NCCP/HCP (Page B-1)
C. Final Appendices (Page C-1)
D. Final Implementing Agreement (Page D-1)
E. NCCP/HCP Frequently Asked Questions (Page E-1)
F. Responses to Comments on the NCCP/HCP and associated Environmental
Assessment (Page F-1)
G. Grant documents for Filiorum, Portuguese Bend, and Malaga Canyon
Reserves (Page G-1)
H. Conservation easements (Page H-1)
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BACKGROUND AND DISCUSSION:
The state’s Natural Community Conservation Planning Act of 1991 provides for the
preparation and implementation of large-scale natural conservation plans. The purpose
of these plans is to identify and provide for the area -wide protection of natural wildlife
diversity, while allowing for compatible and appropriate development and growth. A
Natural Community Conservation Plan (NCCP) is intended to provide comprehensive
management and conservation of multiple species, including, but not limited to, species
listed under the California Endangered Species Act (CESA). The Federal section 10
Habitat Conservation Planning (HCP) process under the Federal Endangered Species
Act (ESA) of 1973, as amended also provides an opportunity for incidental take and
species protection and habitat conservation within the context of non-Federal
development and land use activities. The targeted primary imperiled species to be
protected under the NCCP/HCP are the coastal California gnatcatcher and the cactus
wren, among others.
Because of the relatively high concentration of coastal sage scrub (CSS) habitat that
supports federally-protected and sensitive species within the City, and the growing
intensity of development pressures on these areas combined with the ability t o
streamline the entitlement process for City projects (i.e. storm drain, road repairs, and
landflow remediation projects), in 1996, the City of Rancho Palos Verdes entered into a
Planning Agreement with the California Department of Fish and Wildlife (CDFW ) and
the U.S. Fish and Wildlife Service (USFWS), hereafter collectively referred to as the
“Wildlife Agencies,” to develop a NCCP/HCP that would encompass the entire City. An
important objective of the NCCP/HCP for the City is to obtain an “umbrella” permit from
the Wildlife Agencies for Covered Projects and Activities.
1996 through 2019 Timeline
Beginning in 1996, the following milestones occurred as summarized in the timeline
below:
1996: City enters into a Planning Agreement with the Wildlife Agencies to
develop an NCCP/HCP.
1996-1999: NCCP W orking Group consisting of representatives from the City,
the Wildlife Agencies, the Palos Verdes Peninsula Land
Conservancy (PVPLC), and the public completed phases 1 and 2 of
NCCP/HCP, including mapping vegetation and sensitive species in
City, developing potential Preserve configurations, and engaging
the community.
1999-2004: The Draft NCCP/HCP is prepared.
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August 30, 2004: City Council adopts the Draft NCCP/HCP, certifies the related
Environmental Impact Report (EIR), and approves the draft
Implementing Agreement (IA).
2004-2017: City, Wildlife Agencies, and PVPLC update various components of
the NCCP/HCP, including reassessing the acreage losses
associated with City-covered projects over the 40-year permit term
and the reconfiguration of the Preserve.
October 2, 2017: City Council conducts a public workshop to receive a status update
on NCCP/HCP and to review latest draft. City Council directs staff
to finalize the NCCP/HCP for adoption by City Council.
March 28, 2018: The City Council approves the 2018 Draft NCCP/HCP including the
IA and conservation easements; approves Addendum No. 1 to the
2004 City Council-Certified Final EIR; and directs City Staff to
submit these documents along with the permit application to the
Wildlife Agencies to initiate the Federal Register 60-day public
comment period for the Wildlife Agencies’ subsequent permit
decisions.
October 31, 2018: The Draft NCCP/HCP and the Draft Environmental Assessment
(EA) and associated documents were published in the Federal
Register for a 60-day public comment period, concluding on
December 31, 2018.
April 4, 2019: The USFWS recirculated the documents for an additional 30-day
public comment period which concluded on May 6, 2019 resulting
in 118 public comments for the combined public comment periods.
May 2019: The USFWS, City, and PVPLC collaborated to respond to the
public comments.
October 11, 2019: Responses to comments on the NCCP/HCP were released to the
public via listserv message and public notice in the Peninsula
News.
October 14, 2019: The City and PVPLC held a Preserve Public Forum with the
primary agenda topic being the NCCP/HCP to optimize public
outreach in advance of tonight’s meeting.
1. Adoption of the Final NCCP/HCP
The attached Final NCCP/HCP (Attachment B) provides the following:
A description of the purpose and need for the NCCP/HCP
o For the City to obtain state and Federal permits from the Wildlife Agencies
for Covered Projects/Activities, which include City and private projects
o To provide conservation for wildlife and their habitat while accommodating
appropriate economic development
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o An overview of the regulatory framework existing with the State and
Federal governments (regardless of Plan adoption)
The proposed Preserve design
o Describes the City’s preferred Preserve design
A description of the Covered Projects and Activities
o Describes the 17 covered City Projects and Activities and 5 Covered
Private Projects (see below)
o Describes the habitat avoidance and minimization measures for the
Covered Projects and Activities
The local plan review and approval process
o Describes the City implementation of the Plan
o Describes process for amendments
o Discusses changed and unforeseen circumstances
Biological objectives and methodology
o The overall objective of the NCCP/HCP is to ensure that the biological
values of natural resources where land is preserved are maintained over
time. This section explains the wildlife species survey meth odologies,
plant species monitoring methodologies, habitat restoration objectives ,
and invasive plant removal programs.
Funding and financing of NCCP/HCP
o Discusses the anticipated costs and the funding commitments that have
been made
Preserve management and reporting
o Describes the various reports required and their associated schedules
Covered Projects and Activities
The table below provides a summary of allowable habitat loss associated with the
Covered Projects and Activities, which aligns with the mitigation provided by the
Preserve dedication boundaries.
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Salient Differences between the 2018 Draft and Final NCCP/HCP
The attached Final NCCP/HCP (Attachment B) is essentially the same as the 2018
Draft NCCP/HCP that the City Council approved on March 28, 2018, with the exception
of the following salient differences:
Fuel Modification Map shown as Figure No. 5-1 was updated to reflect the most
recent requirements of the Los Angeles County Fire Department and the Weed
Abatement Division of the L.A. County Department of Agricultural Commissioner.
Although the acreage of fuel modification within the Preserve has increased, the
acreage of permitted loss is not increasing. Thus, no changes to the acreage loss
table is needed. However, this means that the City will have to monitor and
document fuel modification activities within the Preserve to ensure no additional
loss occurs without appropriate approvals from the Wildlife Agencies.
Section 5.4 “Other Covered Projects” was clarified to describe the short- and
long-term activities, such as operation and maintenance activities, permitted to
occur within the Preserve that will not result in permanent habitat loss. This
clarification was requested by a member of the public to avoid confusion with
covered public projects located outside the Preserve.
Section 5.4.1 was slightly modified to remove redundancies.
Figure 2-2 was corrected to remove the incorrect “Vacant” designation from a
property within the Portuguese Bend Community.
In addition to the above, based on the responses to public comments and further review
of the document, the USFWS has made some minor typographical, formatting, and
clarifying wording changes to the NCCP/HCP. These combined changes are shown in
track changes (deleted text shown as strike-through and added text shown as
underlined) in the attached NCCP/HCP document (Attachment B) which is also
available on the City’s website. Corresponding changes have been carried through to
the Implementing Agreement. If adopted, a clean version will be attached to the
adopted resolution for the record. The Wildlife Agencies will evaluate the NCCP/HCP
and associated documents in their determination to issue permits.
Responses to Comments on the NCCP/HCP and EA
The combined original and extended public comment periods on the NCCP/HCP and
EA garnered 118 public comments of which 58 expressed support of the document, and
the remaining 60 expressed concerns on a variety of topics related to the NCCP/HCP.
In response, the City in collaboration with the USFWS, prepared the required
Responses to Comments, which were made available for public review on October 11,
2019 (Attachment E). As part of the Responses to Comments, 33 Master Responses
were prepared and placed at the beginning of the document to address the most
commonly expressed concerns and questions. The following is a summary of the most
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common public concerns (shown in italics) followed by a summary of the City’s
responses:
The NCCP/HCP negatively impacts private property owners.
A common public concern is that the NCCP/HCP is a set of rules and regulations that
impact all private properties by imposing restrictions that deny residents control of their
private property. The NCCP/HCP does not impose any restrictions that are more
restrictive than existing California Environmental Quality Act (CEQA) requirements. The
intent of the NCCP/HCP is to streamline the permit process, provide cost savings, and
to give certainty on mitigation requirements for applicants proposing projects that may
potentially impact protected habitat. Typically, this level of planning allows for smaller
mitigation ratios because mitigation is identified through the thoughtful preserve design
on a larger scale for a given area.
The City’s NCCP/HCP may impact private properties in two scenarios. The first is
development on private property with CSS. Of the approximately 15,500 private
properties in the City, approximately 986 contain CSS. The majority of these private
properties that support CSS are located on neutral land. Neutral land has existing
development constraints pursuant to the City’s Municipal Code or other restrictions,
such as extreme slopes (greater than 35% or geologic constraints) that prohibit
development on that portion of a property. Factoring these constraints, the City
estimates there are approximately 43 private properties that are not designated as
having neutral lands, meaning that if development were proposed in the area of the lot
where CSS occurs, the property owner would be eligible for an Incidental Take Permit
(ITP) through the City’s ITP issued under the NCCP/HCP. The NCCP/HCP streamlines
permitting because private development applicants would receive their ITP s directly
from the City, and would not have to conduct studies and prepare habitat conservation
plans to support ITP applications when species are impacted, greatly reducing
processing time.
The second scenario under which the NCCP/HCP may impact private properties is new
development on properties that directly abut the Preserve. This new development will
be analyzed during the CEQA review process, and development standards will be
implemented as conditions of approval for the project’s entitlement pertaining to fencing,
lighting, equestrian use, landscaping, fuel modification, and stormwater/urban runoff.
However, it must be stressed again, that the NCCP/HCP impact on these private
properties imposes no additional burden beyond what the development of these
properties face when dealing with CEQA. In fact, the adoption of an NCCP/HCP would
make any potential development less burdensome for those property owners. These
development standards are designed to protect the conservation value of the Preserve
by abutting development and do not result in an outright denial of a project but one that
minimizes potential impacts.
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How will recent changes made to the implementing regulation for the ESA by the
federal administration impact the NCCP/HCP?
The federal administration’s recent changes to the implementing regulations for the ESA
do not materially impact the NCCP/HCP. In August 2019, the Federal Administration
made changes to the regulations implementing sections 4 and 7 of the ESA. Section 4
addresses adding or removing species from the Act’s protections and designating
critical habitat; section 7 covers consultations with Federal agencies.
The revisions to the ESA regulations are prospective only; therefore, the changes to the
section 4 regulations, including the rescission of the “blanket rule” under section 4(d)
which had automatically given threatened species the same protections as endangered
species, only impact future threatened species’ listings or reclassifications from
endangered to threatened status and do not a pply to species already listed as
threatened. The federally-listed species within the NCCP/HCP plan area are either
endangered (Palos Verdes blue butterfly and El Segundo blue butterfly) or threatened
and already covered by a 4(d) rule (coastal California gnatcatcher). Therefore, the
changes to the ESA section 4 regulations have no effect on the NCCP/HCP and its
covered species.
The revisions to the ESA section 7 regulations clarify, interpret, and implement portions
of the ESA concerning the interagency consultation procedures. The revisions codify
alternative consultation mechanisms that may provide greater efficiency for how ESA
consultations are conducted; establish a deadline for informal consultations to provide
greater certainty for Federal agencies and applicants of timely decisions, without
compromising conservation of ESA-listed species; and add and revise certain
definitions to further improve the consultation process. The USFWS is required to
consult under section 7 before it issues a permit under section 10. Because the section
7 consultation for the NCCP/HCP permit has not been completed, the revised
regulations will apply to the consultation. However, the revised regulations will not
substantively change the consultation process for the NCCP/HCP.
Species not listed under the ESA or CESA should not be included in the
NCCP/HCP.
Sensitive species not listed in the ESA and/or CESA are commonly included in
NCCP/HCP’s to avoid time consuming plan amendments and afford the City the benefit
of the “No Surprises Rule.” The City’s NCCP/HCP proposes coverage for 10 species
(four animals and six plants). The species and their Federal and State protected
statuses are listed below.
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While ITPs are required only for listed species, NCCP/HCPs may, and commonly do,
include conservation measures for candidate, proposed, and other non -listed species in
the event that they are listed during the permit term . In fact, NCCP/HCPs are intended
to address the conservation needs of a diversity of species at a regional scale. In doing
so, it is anticipated that performing such conservation would prevent the need for future
listings of species as threatened or endangered. Including non -listed species in a
NCCP/HCP also avoids the requirement of a new ITP or burdensome amendments to a
NCCP/HCP in the event that a species becomes listed during the NCCP/HCP permit
term (40 years for the City). It provides the City and landowners with assurances and
certainty about what is required for projects that proceed under the NCCP/HCP. An
additional benefit to the City is the “No Surprises Rule.” This rule states that, without the
City’s consent, new conditions regarding the coverage of a non-listed species cannot be
imposed to a properly implemented NCCP/HCP in the event the species is listed. The
City, in coordination with the NCCP/HCP working group and Wildlife Agencies, chose to
include the cactus wren, and six sensitive plant species as covered species in its
NCCP/HCP in anticipation that they are likely to be listed at some time during the 40-
year permit term. Absent the NCCP/HCP, CEQA would still require development project
applicants to mitigate for these sensitive species as conditions of project approval.
City Attorney’s Opinion to Certain Comments
The City Attorney’s Office provided legal opinions to the following two comments:
Is the City required to adopt a NCCP/HCP with the acceptance of Federal and
State grant funds for the acquisition of certain Preserve properties?
The considered opinion of the City Attorney’s Office is that declining to adopt the
NCCP/HCP is likely to endanger the grants that the City used to purchase a sizable
portion of what is now the 1,400-acre Preserve.
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The City’s goal has been to obtain the joint Federal/State take permits since 1996, when
the City entered into a Planning Agreement with Wildlife Agencies for the purpose of
developing a subarea plan for the preservation of habitat for endangered, threatened,
and sensitive species. The creation of the Preserve has been within the context of
obtaining a take permit for the entire City under an NCCP/HCP, to facilitate habitat
preservation and development. This is reflected not just by the City’s actions since
1996, but also in the grant documents for the funds used to purchase, the executed
conservation agreements, and the draft updated conservation agreement.
A number of the grants expressly state that the acquisition and creation of the Preserve
was intended to satisfy the requirements, and for the implementation, of the
NCCP/HCP. Specifically, we are referring to the grant documents for funds used to
purchase the Malaga Canyon, Filiorum, and Portuguese Bend properties (totaling about
$18 million in funds, and used to purchase almost 670 of the 1,400-acre Preserve
acres) (Attachment F).
One of the Portuguese Bend grant agreements (for $10 million) required the City to
enter into a conservation easement. Another grant agreement, for $1.5 million,
specifically provides that the scope of the grant is for acquisition of real property “for the
purposes of open space, public access and habitat preservation, including protecting
threatened and endangered coastal habitat on the Palos Verdes Peninsula … and
implementation of the Rancho Palos Verdes Natural Communities Conservation
Planning … Subarea Plan.” This grant agreement has as one of its exhibits the
Introduction chapter of the Plan, and this grant also requires that the City enter into a
conservation easement (a deed restriction).
The grants for the Malaga Canyon property provide that the property shall be held and
used to protect the “California gnatcatcher habitat and potential habitat for the Palos
Verdes butterfly, the coastal cactus wren and other rare species found within and
adjacent to the Rancho Palos Verdes Natural Community Conservation Plan and
Habitat Conservation Plan … area, restoration and management, wildlife-oriented
education and research, and for compatible public or private uses, all as may be
consistent with wildlife habitat preservation and protection of sensitive biological
resources….”
The $5.5 million grant for the Filiorum property includes a detailed project summary,
which begins, “This project would provide funds to the City of Rancho Palos Verdes …
to acquire approximately 160.5 acres of the Upper Filiorum property … in order to
implement the City’s Natural Communities Conservation Plan.” The grant explains that
the Preserve “is being assembled under a plan being prepared under the state’s Natural
Community Conservation Planning … Act.” One of the exhibits to the grant document is
the NCCP Preserve Design Map. The Coastal Conservancy’s staff recommendation
describes in some detail how the creation of the Preserve and the NCCP will enhance
the City’s ability to protect endangered species and affect projects.
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The mechanism that the Wildlife Agencies require to ensure that the Preserve is
dedicated to open space and habitat conservation in perpetuity is a conservation
easement against all Preserve properties (deed restrictions are required by the grants).
Some have already been executed, with the PVPLC being the holder of the easement,
and the Wildlife Agencies being beneficiaries.
The executed conservation easements (for the Portuguese Bend/Agua Amarga and
Upper Filiorum properties) are tied to the NCCP/HCP. For example, the conservation
easement for the Portuguese Bend/Agua Amarga properties state that the easement
“provides mitigation for certain impacts of projects that are located within the City of
Rancho Palos Verdes … and are identified in the Natural Communities Conservation
Plan … for the City.” The document prohibits activities that are inconsistent with the
NCCP. At the time of execution of the document, the 2004 NCCP had been approved
by the City Council, and both the City and the Wildlife Agencies have been operating in
reliance of the City’s ultimate adoption of the citywide NCCP/HCP.
The Wildlife Agencies require that the City enter into an updated conservatio n easement
for the entire 1,400-acre Preserve. The updated conservation easement includes this
specific language:
“The [Preserve] is part of the Habitat Reserve required to be preserved and
managed in perpetuity by Federal Endangered Species Act Incidental Take
Permit TE-______and State of California _______permit ______(collectively
‘Permits’) according to the [Rancho Palos] Verdes Natural Community
Conservation Plan and Habitat Conservation Plan dated ________, 2018
(‘NCCP/HCP’) and the [NCCP/HCP] Implementation Agreement] (‘IA’) dated
_________________, the terms of which are incorporated by reference in this
Conservation Easement. Grantor, Grantee, CDFW, and USFWS each has a
copy of the NCCP/HCP, the IA, and the Permits.”
The purposes of the conservation easement “are to ensure the [Preserve] will be
retained forever in its natural, restored or enhanced condition consistent with the habitat
protection requirements of the NCCP/HCP, IA, and Permits and to prevent any use of
the Property that will impair or interfere with the Conservatio n Values of the Property.”
The conservation easement will restrict the use of the property to the projects and
activities listed in the NCCP/HCP, and will prohibit all uses of the property not consistent
with the NCCP/HCP.
Why, then, does the NCCP/HCP cover the whole City rather than just apply to the
Preserve? Because the Preserve is part of a citywide mitigation program provided by
the NCCP/HCP, allowing the City and the private landowner to take advantage of the
permits and to move forward with the Covered Projects and Activities described in the
NCCP/HCP. These Covered Projects and Activities are further subject to certain
parameters, which are also described in the NCCP/HCP.
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In short, the conservation easements and grant agreements are required by the Wildlife
Agencies to ensure that the Preserve is maintained for habitat conservation in
perpetuity and to mitigate the impacts of the City’s projects, consistent with the
NCCP/HCP. The assurances that these legal instruments provide for the properties that
are enrolled in the NCCP/HCP are necessary for the Wildlife Agencies to make their
findings that these lands will remain in conservation and be used for the purpose for
which they were acquired. Without the conservation easement and the NCCP/HCP, the
Wildlife Agencies are not likely to find that the use of the Preserve properties is
appropriately restricted and may compel the City to pay back the grants used for the
purchases.
Why is the Lower Filiorum Property owned by Jim York held to a different habi tat
mitigation requirement as cited in his litigation claim against the City?
On June 22, 2018, York Point View Properties LLC (“York PV”) filed a petition for writ of
mandate and complaint challenging the validity of the NCCP/HCP and the City’s March
2019 approval of the NCCP/HCP. The approval of the NCCP/HCP was not final at that
time, because the Wildlife Agencies had not completed the process they must follow to
accept it and issue ITPs. Jim York is the principal in York PV.
York PV alleges the requirement for the dedication of a 40-acre wildlife corridor on its
property exceeds what is required by the State CESA and Federal ESA and puts the
burden on it to mitigate impacts caused by other property owners. In particular, York PV
objects to the provision in the NCCP/HCP that requires the entire wildlife corridor on the
property be dedicated if any development on the property is approved. York PV
contends mitigation should be required only on the basis of a ratio relative to the
amount of CSS or other habitat disturbed by a development project. York PV contends
the 40-acre dedication requirement therefore is not reasonably related to development
on the property, is not proportional to development impacts and is therefore
unreasonable, arbitrary, and capricious.
Jim York has long been aware of the wildlife corridor requirement. He was involved in
negotiating not only the requirement, but the location of the corridor when the
NCCP/HCP was being formulated. In addition, in various contexts in the past, Jim York
has offered to dedicate the wildlife corridor.
In fact, the wildlife corridor is consistent with applying a 2:1 mitigation ratio to
development of York PV’s property. York PV’s property provides the only way to
maintain connectivity between important habitat areas. That connectivity is important
because wildlife needs to be able to travel through the habitat without barriers to live,
eat and mate, to ensure that they do not become vulnerable to extinction or diminished
genetic diversity that could lead to extinction. Developing any portion of the property
creates the risk that, if the wildlife corridor is not established concurrently with the first
development, further development could make preserving connectivity impossible, or
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the habitat could become degraded to the point that attempts at conservation would be
futile.
The NCCP/HCP that the City is proposing to adopt is not unique in establishing
“hardline” dedication requirements that are not based on a mitigation ratio. For example,
the cities of Carlsbad and San Diego have habitat conservation plans that include
“hardline” areas. In addition, the dedication requirement is not fundamentally different
from requirements to leave portions of large parcels as open space when development
occurs. Open space requirements have withstood judicial scrutiny.
Accordingly, the City Attorney’s Office believes it is unlikely that the NCCP/HCP will be
found to be deficient in terms of complying with statutes and regulations related to such
plans or that it would be found to be a taking of property.
In most litigation challenging conditions on development, a property owner must “ripen”
its claims by filing at least one development application and obtaining a final
determination from the decision-making body (in this case, the City Council) on what
development conditions will actually be imposed. To date, there has been no final
determination by the City Council regarding whether and how the dedication
requirement will be applied to York PV’s pending development applications for one large
single-family home and for a 37-lot subdivision.
In fact, York PV will benefit from the NCCP/HCP along with other property owners in
being able to rely on the City’s ITP rather than having to apply to the Wildlife Agencies
for its own take permit, which potentially could be subject to more onerous conditions.
The York PV lawsuit is scheduled for a hearing on the merits of York PV’s claims in May
2020. In the unlikely event York PV prevails, that could affect the validity and
effectiveness of the NCCP/HCP as a whole.
Implementing Agreement
The IA is the executed agreement which details the roles, responsibilities, and processes
for the City, PVPLC, and Wildlife Agencies to implement components of the Plan in
accordance with the Permits and applicable law. The IA closely mirrors the NCCP/HCP
document and includes:
The findings that the Wildlife Agencies must make to issue the permits
Description of the Plan
Reserve design and conservation strategy
Covered Projects and Activities (as described in Section 5 of the NCCP/HCP)
Information on the take authorizations
Obligations of the City, PVPLC, and Wildlife Agencies
Preserve management
Habitat monitoring, management, and reporting
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Plan funding requirements
Regulatory assurances
Permit term
Process for Plan amendments
Process for Plan environmental review
Information on suspension or revocation of the permits
Process for termination of the permits
Process for dispute resolution
The adoption of the NCCP/HCP will initiate the process to execute the IA with the
Wildlife Agencies.
2. Initiate Code Amendment Proceedings to the Rancho Palos Verdes Municipal
Code (RPVMC)
If the City Council adopts the NCCP/HCP this evening, the next steps for
implementation of the NCCP/HCP are outlined in NCCP/HCP Sections 6.3-6.5. These
steps require the following amendments be made to the RPVMC to ensure its regulatory
authority aligns with the provisions of the NCCP/HCP:
a. Fire Code – Amend Title 15 as it related to the City’s Fire Code to reflect the fuel
modification practices and zones within the Preserve, as well as to make any
parties found responsible for fires which burn in the Preserve financially
responsible for the cost of any necessary planned response described in the
NCCP/HCP.
b. Subdivision Ordinance - Amend Title 16 to ensure any future proposed
subdivisions involving vacant lots abutting the Preserve conform to the
development standards of the NCCP/HCP.
c. Coastal Sage Scrub Conservation and Management Ordinance - Amend Chapter
17.41 to incorporate and update the City’s CSS ordinance to reflect the
provisions of NCCP/HCP.
d. Site Plan Review Process - Amend Chapter 17.70 to ensure that provisions of
the NCCP/HCP are incorporated in the Site Plan Review evaluation process for
any Covered Activity within the Preserve, on a vacant lot abutting the Preserve,
or on a vacant lot outside the Preserve that supports CSS.
e. Coastal Permit Process - Amend Chapter 17.72 to ensure that all Coastal
Permits for Covered Activities within the Preserve, on a vacant lot abutting the
Preserve, or on a vacant lot outside the Preserve that supports CSS, will comply
with the NCCP/HCP.
f. Grading Ordinance - Amend Chapter 17.76 to ensure that any grading
associated with Covered Projects and/or Activities within the Preserve, on a
vacant lot abutting the Preserve, or on a vacant lot outside the Preserve that
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supports CSS or Covered Species, and conforms to the provisions of the
NCCP/HCP.
In addition to the above, the 2018 City Council-adopted General Plan was updated to
identify Preserve lands and their related land-use restrictions, the goals and objectives
of Section 4 of the NCCP/HCP, and the mitigation responsibilities to enable the City to
implement the NCCP/HCP. As part of the adoption of the related General Plan Land
Use Map, the City Council initiated the process to amend the Zoning Map, to among
other things, incorporate the boundaries of the Preserve by creating a new Op en
Space-Preservation zoning designation for all Preserve areas and to remove the
existing Natural Overlay Control District designation on any Preserve properties. Staff is
currently working on the update to the Zoning Map , which will be reviewed by the
Planning Commission and a recommendation forwarded to the City Council for its
consideration in 2020.
Lastly, if warranted, the City Council may be asked to consider approving an Interim
Resource Protection Ordinance to prevent important habitat areas or species from
being lost to brush clearance, conversion, or development in the period between signing
the IA and the issuance of ITP, and the City Council’s adoption of the amendments
described above to protect the Preserve and habitat.
3. Direct Staff to prepare the Preserve Access Protocol (PAP) for the City
Council-adoption at a future duly-noticed public meeting
Within 90 days of permit issuance, the City and PVPLC will develop and submit to the
Wildlife Agencies for approval a Preserve Access Protocol to facilitate access by
authorized vehicles to areas within the Preserve. The PAP will contain measures to
avoid and minimize environmental damage.
4. Authorize Staff to record the NCCP/HCP-required conservation easements
for the Preserve properties.
As previously reported, the Wildlife Agencies require a conservation easement to be
recorded for the properties that are to be placed within the NCCP/HCP Preserve. In
addition, the California Coastal Conservancy, California Wildlife Conservation Board,
and USFWS which provided funding for the Preserve properties, also require that
conservation easements be recorded on all open space properties purchased for
conservation and consistent with the grant agreements, as applicable.
The purpose of the conservation easement is to permanently limit certain uses of the
land in order to protect its conservation value for which the land was purchased. The
conservation easements reference the NCCP/HCP and allow for Covered Projects and
Activities, subject to minimization measures, to take place during the permit term (40
years) in the Preserve. A conservation easement obligates the grantee of the easement
to monitor the property to ensure that it is being used in accordance with the terms of
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the conservation easement. The grantee of the easement is also obligated to enforce
the terms of the conservation easement.
The NCCP/HCP designates the PVPLC as the holder of all conservation easements
recorded for Preserve properties owned by the City and that the City be the holder of
the conservation easement recorded on the portion of Agua Amarga Reserve owned by
the PVPLC. The Wildlife Agencies will not consider the properties as formally enrolled in
the Preserve until a conservation easement has been recorded on each property.
Conservation easements currently exist as a contingency for lands acquired with public
funds on some of the Preserve properties.
Within 90 days of the Wildlife Agencies’ issuance of the ITP, the conservation easement
will be recorded against all of the City-owned properties within the Preserve and will
replace conservation easements that were recorded previously against some of the
properties, such as the Switchback property, Portuguese Bend, Filiorum, Agua Amarga,
and Shoreline Park. A reciprocal conservation easement will also be recorded on the
sole Preserve property owned by the PVPLC (Lunada Canyon).
ADDITIONAL INFORMATION:
Financial Obligations
The City and PVPLC have financial obligations to the NCCP/HCP. Annual financial
obligations are broken into two categories, as shown in Appendix C of the NCCP/HCP:
(1) funding required to conduct the conservation requirements of the Plan, and (2) costs
associated directly with land ownership and public access/passive recreation. Annual
funding obligations have also been identified during the 40-year permit term, and post-
permit term. The charts below summarize City and PVPLC annual funding obligations
during the permit term and post-permit term.
Annual Preserve Management Costs During Permit Term
Fulfilling Conservation Requirements (City) $249,210
Fulfilling Conservation Requirements (PVPLC) $230,559
FULFILLING CONSERVATION REQUIREMENTS TOTAL: $479,769
Costs related to land ownership and public access (City) $1,286,209
Costs related to land ownership and public access (PVPLC) $19,460
COSTS RELATED TO LAND OWNERSHIP AND PUBLIC ACCESS TOTAL: $1,305,669
TOTAL ANNUAL PRESERVE MANAGEMENT COSTS: $1,785,438
Annual Preserve Management Costs Post Permit Term
Fulfilling Conservation Requirements (City) $94,910
Fulfilling Conservation Requirements (PVPLC) $22,030
FULFILLING CONSERVATION REQUIREMENTS TOTAL: $116,940
Costs related to land ownership and public access (City) $1,286,209
Costs related to land ownership and public access (PVPLC) $5,000
COSTS RELATED TO LAND OWNERSHIP AND PUBLIC ACCESS TOTAL: $1,291,209
TOTAL ANNUAL PRESERVE MANAGEMENT COSTS: $1,408,149
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A significant portion of the management and maintenance costs are in response to the
popularity of the Preserve by the general public. The growth of population in L.A.
County and the internet is largely responsible for increased awareness and use of the
Preserve, and the impacts on some Preserve neighbors. In response, the City has
increased costs related to management, including rules, enforcement, public safety,
maintenance, signage, parking solutions, and public education.
In addition to annual management costs, as a post-permit requirement to ensure the
continued conservation management, the Plan requires the City pay the PVPLC
$10,000 annually that is to be adjusted annually by the consumer price index (CPI-U)
(based on the rate in February), thereby removing any financial obligations related to
conservation management by the City post-permit (aside from $94,910 of estimated
Staff costs). The PVPLC’s investment strategy of the fund is anticipated to generate at
least $863,000 (adjusted for CPI-U) by the end of the 40 year-permit term which will
assure sufficient funding for the perpetual management of the conservation easements
of the Preserve.
The Plan also necessitates that the City maintain a dedicated Habitat Restoration Fund
of at least $50,000 (adjusted annually by the CPI-U) that may be used to fund a variety
of habitat restoration purposes including as payment to the PVPLC for its habitat
management defined in the City-PVPLC Management Agreement, as a contribution
toward the non-wasting endowment fund discussed above, or as a contribution to the
PVPLC to perform habitat conservation activities beyond the requirements of the Plan.
A detailed discussion on the financial obligations can be found in Section 8 of the
NCCP/HCP (Attachment B).
Public Noticing
A public notice announcing tonight’s public hearing and the release of the Responses to
Comments, as well as announcing the Preserve Public Forum, was published in the
Peninsula News on October 10, 2019. An additional notice was subsequently published
in the Peninsula News on October 24, 2019. Additionally, the notice was posted on the
City’s webpage and sent to Preserve listserv subscribers. Lastly, to ensure the
approximately 43 property owners with CSS on their property who may be impacted by
the NCCP/HCP were made aware of tonight’s meeting, public notices were mailed to
them on October 10, 2019.
Preserve Public Forum
On October 14, 2019, the City held its quarterly Preserve Public Forum on a special
night to primarily discuss the NCCP/HCP and the related responses to comments, as
well as to serve as public outreach in advance of tonight’s City Council meeting. At the
Public Forum, 12 individuals attended and the general comments pertained to Mr.
York’s inclusion and mitigation in the NCCP/HCP and that the future PAP minimize
impacts to habitat within the Preserve.
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ALTERNATIVES:
In addition to the Staff recommendation, the following alternative action is available for
the City Council’s consideration:
1. Identify issues and/or concerns and provide Staff with direction on how to
proceed with the NCCP/HCP process.
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