CC SR 20231003 01 - Portuguese Bend Landslide Declaration of Local Emergency
CITY COUNCIL MEETING DATE: 10/03/2023
AGENDA REPORT AGENDA HEADING: Regular Business
AGENDA TITLE:
Consideration and possible action to consider declaring a local emergency and/or
adopting an urgency ordinance prohibiting new construction within one or more of the
various landslides within the greater Portuguese Bend Landslide Complex.
RECOMMENDED COUNCIL ACTION:
1. Consider the “pros and cons” prepared by the Office of the City Attorney regarding
whether to adopt a declaration of local emergency pursuant to Government Code
§§ 8630 et seq., within one or more specific areas within the greater Portuguese
Bend Landslide Complex together with the necessary findings “conditions that
threaten life, property, public order, or public safety”;
2. If warranted, adopt Resolution No. 2023-__ adopting a declaration, pursuant to
Public Resources Code §§ 21080 et seq. and California Environmental Quality Act
(CEQA) Guidelines §§ 15269, 15300.2(d), and 15301(d), that the exemptions from
CEQA for actions to mitigate an emergency apply to the City’s actions because
emergency conditions exist within (1) the greater Portuguese Bend Landslide
Complex, and/or (2) the Abalone Cove Landslide, and/or (3) Klondike Canyon
Landslide, or all of the above, together with the necessary findings that "a sudden,
unexpected occurrence, involving a clear and imminent danger, deman ding
immediate action to prevent or mitigate loss of, or damage to, life, health, property,
or essential public services” and “including soil or geologic movements” requiring
immediate remediation;
3. If warranted, and in addition or in the alternative, adopt, by a four-fifths vote of the
entire City Council, Interim Urgency Ordinance No. U___, pursuant to Government
Code §§ 36937 and 65858 for the immediate preservation of the public peace,
health, and safety, prohibiting new construction within one or more of the various
landslides, excepting therefrom actions necessary to prevent or mitigate loss of, or
damage to, life, health, property, or essential public services” and “including soil or
geologic movements” requiring immediate remedial action; and,
4. Direct Staff to provide support services to the Abalone Cove Landslide Abatement
District (ACLAD) and the Klondike Canyon Landslide Abatement District (KCLAD)
which have the statutory authority and responsibility to address the landslide(s)
occurring within their geographic boundaries to address the accelerating land
movement, to expedite needed remedial actions.
FISCAL IMPACT: Unknown.
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Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: William W. Wynder, City Attorney
REVIEWED BY: Same as below
APPROVED BY: Ara Mihranian, AICP, City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Resolution No. 2023-__ declaring a state of local emergency within one or more
of the various landslides (page A-1) – Forthcoming as late correspondence
B. Interim Urgence Ordinance No. U____ prohibiting new construction within one or
more of the various landslides (page B-1) – Forthcoming as late correspondence
C. Map of the greater Portuguese Bend Landslide Complex including ACLAD and
KCLAD boundary limits (page C-1)
BACKGROUND:
On September 19, 2023, the City Council received a presentation from Cal Water and
Southern California Gas Company on their responsiveness to recurring breaks in their
respective systems and their proposed short- and long-term mitigation efforts to minimize
impacts to land movement that has increased in recent months.
At that meeting, numerous residents provided public testimony regarding accelerating
land subsidence within the Portuguese Bend Landslide and the Abalone Cove Landslide,
characterizing the same as requiring an immediate response. Many residents testified
that in the Klondike Canyon area of the Seaview and Portuguese Beach Club
neighborhoods, recent water line breaks or leaks have resulted in significant land
movement which were characterized as resulting in an emergency requiring immediate
remediation or mitigation work.
Councilmember Alegria suggested it might be time to declare a state of emergency after
dealing with water-related landslide issues in the City for decades. In response, the City
Council directed Staff and the Office of the City Attorney to provide a report to the
community on the authority of the City to declare a state of local emergency and to further
consider under which circumstances the CEQA will permit emergency action(s) to
address this land movement. This staff report responds to the City Council’s request.
DISCUSSION:
Since 2007, the City has been using monitoring points to measure the movement of the
greater Portuguese Bend Landslide Complex (Landslide). Based on recent
measurements from existing data points, land movement has accelerated this year as
observed, among other things, in roadway cracks, sinkholes, structure damage, utility
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infrastructure damage, and trail damage throughout the Portuguese Bend Reserve, a
subarea of the Palos Verdes Nature Preserve. To respond to the increased movement,
the City is assessing its access to available resources, including county, state and federal
resources, as well as providing assistance to the two existing Geologic Hazard Abatement
Districts (ACLAD and KCLAD). To proceed expeditiously with short- and long-term
solutions to the land movement, particularly in anticipation of heavy rains as part of an El
Niño winter, tonight’s agenda report is to identify a path forward for the community.
In terms of short-term measures that may need to be expedited, the City is considering
the following:
• Installing surface pipes and/or surface drains to convey water to the ocean to
minimize percolation into the ground;
• Filling fissures;
• Maintaining existing dewatering wells to ensure adequate operation;
• Installing additional dewatering wells including supporting ACLAD and KCLAD
with their installation of additional dewatering wells;
• Maintaining and repairing trails and fire roads for access by emergency
responders within the Palos Verdes Nature Preserve, particularly Portuguese
Bend and Forrestal Reserves;
• Providing on-call services to immediately respond, 24/7, to incidents related to
land movement; and/or,
• Coordinating the implementation of mitigation measures with utility and public
agencies including, but not limited to, Southern California Edison (SCE),
California Water (Cal Water), Southern California Gas (SOCAL Gas); Los
Angeles County Public Works Sewer, Los Angeles County Sanitation District, Los
Angeles County Flood Control District, and wireless carriers (i.e. Crown Castle,
Verizon, ATT, TMobile, etc.).
In an effort to permit some and/or all of these, or other short -term measures, the City is
exploring tools that can be utilized to expedite the process including declaring a local
emergency and/or adopting an urgency ordinance prohibiting construction as discussed
in this report.
It should be noted that some of the short-term measures under consideration may include
components identified in the City’s Portuguese Bend Landslide Remediation project
which the City was recently selected as a grant recipient from Federal Emergency
Management Agency (FEMA) in the amount of $23.33 million. According to the terms of
the grant, proceeding with construction of any of the remediation measures on the project
site is prohibited until final approvals are issued by FEMA. Thus, to avoid jeopardizing the
grant, the City is calling for a meeting with officials from Cal OES and FEMA to discuss
how short-term measures can begin sooner than later to minimize land movement from
impacting public and private property including roads and utilities.
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The “Pros and Cons” of Declaring a Local Emergency
The City Council, and/or the City Manager (to be ratified by the City Council within seven
days of such a declaration) has the legal authority, provided it can make the appropriate
findings, to declare the existence of a local emergency within one or more of the various
landslides within the greater Portuguese Bend Landslide Complex. However, standing
alone, there are various factors that the City Council may wish to review in considering
declaring a local emergency, as summarized below:
The “Pros”
• A declaration of local emergency affords the City the ability to reach out to state
and federal partners for emergency funding for remedial projects.
• The Rancho Palos Verdes Municipal Code (RPVMC) confers additional powers on
the Disaster Council (consisting of the City Council, City Manager, and staff) and
the Director of Administrative Services not otherwise existing under the RPVMC.
• These emergency powers include:
a. To make and issue rules and regulations on matters reasonably
related to the protection of life and property as affected by such
emergency; provided, however, such rules and regulations must be
confirmed at the earliest practicable time by the city council,
b. To obtain vital supplie s, equipment, and such other properties
found lacking within the local agency (city) and needed for the
protection of life and property and to bind the city for the fair value
thereof and, if required immediately, to commandeer the same for
public use,
c. To require emergency services of any city officer or employee
and
d. To requisition necessary personnel or material of any city
department or agency, and
e. To execute all of his ordinary powers as city manager, all of the
special powers conferred upon him by resolution or emergency
adopted by the city council, all powers conferred upon him by any
statute, by any agreement approved by the city council, by any
other lawful authority.”
• A declaration of local emergency affords the City immunity from liability pursuant
to Government Code § 866.
• An alternative to, or in addition to, a declaration of local emergency, the City
Council could, assuming it can make the necessary findings, adopt a n interim
urgency ordinance prohibiting consideration of new construction within one or
more of the various landslides, excepting therefrom actions necessary to prevent
or mitigate loss of, or damage to, life, health, property, or essential public services ”
and “including soil or geologic movements” requiring immediate remedial action.
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• Because such an urgency ordinance would affect the ability to construct housing,
the Government Code requires the City refrain from enforcing, if adopted, an
urgency ordinance until it has been submitted to, and approved by, Department of
Housing and Community Development (“HCD”).
The “Cons”
• A declaration will not necessarily free up county, state or federal funding or other
resources to address, remediate or mitigate the circumstances warranting such a
declaration.
• Even without a declaration of local emergency, Public Contract Code § 1102
already allows the City Council to procure the necessary equipment, services, and
supplies for those purposes, without giving notice for bids to let contracts”
irrespective of the declaration of a local emergency. (Public Contracts Code §
22050.) However, this statutory exemption from the requirements under the Public
Contracts Code only applies to a “public facility.”
• Even without a declaration of local emergency , CEQA exempts specific actions
necessary to prevent or mitigate an emergency. Pub. Res. Code § 21080(b)(4); 14
Cal. Code Regs. § 15269(c). Under Pub. Res. Code § 21060.3, an emergency is
defined to include occurrences such as landslide. Pub. Res. Code § 21060.3.
• A declaration of local emergency may not simplify or shorten the times necessary
to state and federal wildlife agency needed for permitting or the time and effort
needed to obtain Army Corps of Engineers § 404 permit(s) to address conditions
existing within these landslides.
• Potential unintended consequences to pending or future real estate transactions .
An Important and Related Issue
It is worth noting that State law allows the creation of one or more Geologic Hazard
Abatement Districts (“GHADs”) with these landslides. A GHAD has both the authority and
the responsibility to address and mitigate land subsidence within its geographic
boundaries. There is in existence and operating within the various City landslides two
GHADs known as ACLAD and KCLAD formed in 1981 and 1982, respectively.
These GHADs are governmental districts, independent of the City, formed for the
prevention, mitigation, abatement or control of a “geologic hazard,” which is defined as
an actual or threatened landslide, land subsidence, soil erosion, earthquake, fault
movement or any other natural or unnatural movement of land or earth.
With or without a declaration of local emergency, the City can rightfully reach out to and
coordinate with these GHADs, considered the Lead Agencies, to assist in addressing and
remediating the conditions existing within their geographic boundaries. Further discussion
on permitting mitigation projects for GHADs can be found later in this report.
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The Authority to Declare a State of “Local Emergency”
(1) State Law Provisions
Government Code § 8680.9, provides that a condition of extreme peril to persons or
property may be proclaimed a state of “local emergency” by the City Council in
accordance with Government Code § 8630 The purpose of a local emergency
proclamation is to provide extraordinary police powers; immunity for emergency actions;
authorize issuance of orders and regulations; activate pre -established emergency
provisions; and is a prerequisite for requesting state or federal assistance.
A local emergency proclamation can only be issued by a governing body (city, county, or
city and county) or an official designated by local ordinance. The proclamation should be
issued within 10 days of the incident and ratified by the governing body within 7 days.
Renewal of the resolution should occur every 60 days until terminated.
Moreover, as provided in Government Code § 8632 “[s]tate agencies may provide mutual
aid, including personnel, equipment, and other available resources, to assist political
subdivisions during a local emergency or in accordance with mutual aid agreements or at
the direction of the Governor.” As set forth in the California Government Code, Title 2,
Division 1, Chapter 7.5 – California Disaster Assistance Act (“CDAA”), only a governing
body of a city (mayor or chief executive), county (chairman of a board of supervisors or
county administrative officer), or city and county may seek financial assistance through
CDAA, by order of a Director’s Concurrence or Governor’s Proclamation. The request for
CDAA can be included in a local emergency proclamation; however, it is more appropriate
to request CDAA on separate letterhead once the governing body has identified, and can
certify, local resources are insufficient and the situation is beyond its capabilities.
(2) Rancho Palos Verdes Municipal Code
Chapter 2.24 of the RPVMC provides the City Council the authority to declare a state of
local emergency where there is “actual or threatened existence of conditions of disaster
or of extreme peril to the safety of persons and property within this city caused by such
conditions as air pollution, fire, flood, storm, epidemic, riot, or earthquake, or other
conditions, including conditions resulting from war or imminent threat of war, but other
than conditions resulting from a labor controversy which conditions are or are likely to
be beyond the control of the services, personnel, equipment and facilities of this city,
requiring the combined forces of other political subdivisions to co mbat.” (RPVMC §
2.24.040.)
The RPVMC further authorizes the City Council to empower Staff to “carry[] out of plans
for the protection of persons and property within this city in the event of an emergency;
the direction of the emergency organization; and the coordination of the emergency
functions of this city with all other public agencies, corporations, organizations, and
affected private persons.” (RPVMC § 2.24.010.)
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The RPVMC creates a “Disaster Council” consisting of “[t]he mayor, who shall be
chairperson, and the members of the city council; [t]he director of emergency services,
the assistant directo r of emergency services and the chiefs of emergency services as
are provided for in the emergency plan adopted under Section 2.24.080, all of whom
shall be ex officio and nonvoting members of the Disaster Council.
In addition, the RPVMC provides the power and duties of the Disaster Council and the
Director of Emergency Services, including the authority of the City Council “to proclaim
the existence or threatened existence of a local emergency if the city council is in
session.” (RPVMC § 2.24.060.) Among the enumerated powers of the City Council
under RPVMC § 2.24.060 are the following:
“1. Request the city council to proclaim the existence or threatened
existence of a local emergency if the city council is in session, or to issue
such proclamation if the city council is not in session. Whenever a local
emergency is proclaimed by the director, the city council shall take action
to ratify the proclamation within seven days thereafter or the proclamation
shall have no further force or effect;
2. Request the Governor to proclaim a state of emergency when, in the
opinion of the director, the locally available resources are inadequate to
cope with the emergency;
3. Control and direct the effort of the emergency organization of this city
for the accomplishment of the purposes of this chapter;
4. Direct cooperation between an d coordination of services and staff of the
emergency organization of this city; and resolve questions of authority and
responsibility that may arise between them;
5. Represent this city in all dealings with public or private agencies on
matters pertaining to emergencies as defined in this chapter;
6. In the event of the proclamation of a local emergency as provided in this
chapter, the proclamation of a state of emergency by the Governor or the
Director of the State Office of Emergency Services, or the exi stence of a
state of war emergency, the director is empowered:
a. To make and issue rules and regulations on matters reasonably
related to the protection of life and property as affected by such
emergency; provided, however, such rules and regulations must be
confirmed at the earliest practicable time by the city council,
b. To obtain vital supplies, equipment, and such other properties
found lacking and needed for the protection of life and property and to bind
the city for the fair value thereof and, if r equired immediately, to
commandeer the same for public use,
c. To require emergency services of any city officer or employee
and, in the event of the proclamation of a local emergency in this city or a
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state of emergency in the county in which this city is located or the
existence of a state of war emergency, to command the aid of as many
citizens of this community as he deems necessary in the execution of his
duties; such persons shall be entitled to all privileges, benefits, and
immunities as are provided by state law for registered disaster service
workers,
d. To requisition necessary personnel or material of any city
department or agency, and
e. To execute all of his ordinary powers as city manager, all of the
special powers conferred upon him by this ch apter or by resolution or
emergency plan pursuant to this chapter adopted by the city council, all
powers conferred upon him by any statute, by any agreement approved
by the city council, by any other lawful authority.”
Following consideration of this report and input from the public, should the City
Council deem it warranted to do so, attached is a draft Declaration of Local
Emergency in a form acceptable to the City Attorney that can be considered and
adopted as is, or with modifications read into the rec ord, at this City Council
meeting (Attachment A).
The Authority to Adopt an “Interim Urgency Ordinance”
The City Council could, if deemed necessary, adopt an interim urgency ordinance to
prohibit new construction within one or more of the various landslides, and or the greater
Portuguese Bend Landslide Complex for the immediate preservation of the public peace,
health, or safety, pursuant to the express authority of Government Code § 65858. Only
one such moratorium can be adopted by a city, howeve r “upon termination of a prior
interim ordinance, the legislative body may adopt another interim ordinance pursuant to
this section provided that the new interim ordinance is adopted to protect the public safety,
health, and welfare from an event, occurrence, or set of circumstances different from the
event, occurrence, or set of circumstances that led to the adoption of the prior interim
ordinance.”
In 2005, the City Council adopted a “moratorium” applicable to the Seaview neighborhood
pursuant to Interim Urgency Ordinance No. 427U, which temporarily halted construction
and the processing of permits within the boundary limits of the KCLAD (referred to as the
Blue Zone in the Landslide Moratorium Ordinance). Ordinance No. 427U was adopted
because in May 2005, following the unusual winter rains during the winter of 2004-2005,
the indications that this area was experiencing accelerated landslide movement
appeared. Ordinance No. 427U was extended, and later was repealed by Ordinance No.
459U and 526, which terminated the moratorium and made updates to Sections
15.20.040 and 15.20.050 of the RPVMC (Landslide Moratorium Ordinance).
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The proposed interim urgency ordinance that the City Council may consider is broader in
scope and proposes to encompass the entire Portuguese Bend Landslide Complex
(including the ACLAD and KCLAD boundary limits) based on a much more significant and
alarming increase in the amount of land movement within the greater landslide.
In accordance with Government Code Sections 65858 and 66300, should the City Council
determine to adopt such an interim urgency ordinance, it must make findings that:
(1) The approval of the development of housing development projects, as
defined in Government Code § 65905.5 would have a specific, adverse impact
upon the public health or safety. As used in this paragraph, a “specific, adverse
impact” means a significant, quantifiable, direct, and unavoidable impact, based
on objective, identified written public health or safety standards, policies, or
conditions as they existed on the date that the ordinance is adopted by the
legislative body.
(2) The interim ordinance is necessary to mitigate or avoid the specific,
adverse impact identified pursuant to paragraph (1).
(3) There is no feasible alternative to satisfactorily mitigate or avoid the
specific, adverse impact identified pursuant to paragraph (1) as well or better, with
a less burdensome or restrictive effect, than the adoption of the proposed interim
ordinance.
The City has the burden to establish the necessary findings by a “preponderance of the
evidence.” The findings with the supporting evidence are articulated in greater detail in
the draft interim urgency ordinance attached to this staff report (Attachment B).
Additionally, Government Code § 66300(b)(1) provides that “with respect to land where
housing is an allowable use, . . . an affected city shall not enact a development policy,
standard, or condition that would have [the effect of . . . i]mposing a moratorium or similar
restriction or limitation on housing development, including mixed -use development, within
all or a portion of the jurisdiction of the affected . . . city, other than to specifically protect
against an imminent threat to the health and safety of persons residing in, or within the
immediate vicinity of, the area subject to the moratorium. . . .”
The statute further provides that the City may not enforce such a moratorium on housing
until the ordinance has been submitted to, and the City has received approval from HCD.
In light of the alarmingly increased rate of land movement in all sections of the various
landslides, its imminent threat to public and private property, and in light of the City’s
upcoming Portuguese Bend Landslide Remediation Project, it is arguable that HCD would
approve the moratorium, or require some narrowing, which can be achieved at the time
of renewal.
The City Council may separately or in combination of declaring a local emergency,
and by four-fifths vote of the entire City Council, adopt an interim urgency
ordinance prohibiting construction for the immediate preservation of the public
peace, health, and safety, within the greater Portuguese Bend Landslide Complex
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until land movement is managed to rates recorded in recent years. Excepting
therefrom actions necessary to prevent or mitigate loss of, or damage to, life, health,
property, or essential public services” and “including soil or geologic movements”
requiring immediate remedial action.
The Authority and Responsibility of the Abalone Cove and Klondike Canyon
GHADs in Addressing the Landslides
(1) The 1979 Beverly Act (Public Resources Code §§26500-26601)
Authorizing the Formation of GHADs.
A GHAD is a political subdivision of the state and are accountable to the State Controller’s
Office. It is not an agency or instrumentality of the City. (§ 26570.) A GHAD is governed
either by a board consisting of five property owners within the district or the legislative
body forming the district. (§ 26567.) There are several advantages to formation of a
GHAD.
First, GHADs are authorized to acquire, construct, operate, manage and maintain
improvements on public or private lands and accept such improvements undertaken by
anyone. (§ 26580.) “Improvement” means any activity that is necessary or incidental to
the prevention, mitigation, abatement, or control of a geologic hazard, including, without
limitation, construction, maintenance, repair or operation of any improvement. (§ 26505.)
Second, GHADs are authorized to levy and collect property owner assessments to pay
for the costs and expenses of the maintenance and operation of any improvements
acquired or constructed pursuant to the GHAD Law. (§ 26650.)
These assessments attach as liens on property and may be collected at the same time
and in same manner as general taxes on real property. (§ 26654.) All assessment
proceedings must comply with Proposition 218’s notice and protest procedures for new
or increased property related fees. (Cal. Const., art. XIII D, § 6.)
Third, and significantly, under state law, GHAD improvements or other remediation
efforts caused to be undertaken under the GHAD Law and all activities in connection
therewith also qualify as an emergency under CEQA. (§§ 26601 & 21080(b)(4).) County
of Ventura v City of Moorpark (2018) 24 Cal.App.5th 377 (upholding beach restoration
project by geologic hazard abatement district as exempt under CEQA). It bears repeating,
Public Resources Code § 26601 specifies that improvements undertaken under the
geologic hazard abatement law, and all activities in furtherance of such
improvements, are exempt from CEQA as specific actions to prevent or mitigate an
emergency under Pub. Res. Code § 21080(b)(4) – see discussion under Additional
Information.
(2) The ACLAD and KCLAD
There is in existence and operating within the various City landslide areas two GHADs
commonly known as the ACLAD and the KCLAD. These GHADs are governmental
districts formed for the prevention, mitigation, abatement or control of a “geologic hazard,”
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which is defined as an actual or threatened landslide, land subsidence, soil erosion,
earthquake, fault movement or any other natural or unnatural movement of land or earth.
(Pub. Res. Code §§ 26525, 26507.)
These two GHADs are authorized to utilize the Improvement Act of 1911 (Sts. & Hy. Code
§§ 5000, et seq.), Municipal Improvement Act of 1913 (Sts. & Hy. Code §§ 10000, et
seq.), or the Improvement Bond Act of 1915 (Sts. & Hy. Code §§ 8500, et seq.) to pay for
the costs of improvements made pursuant to the GHAD Law. These GHADs are also
authorized to levy and collect assessments to pay for the cost of maintenance and
operation of any improvements. (Pub. Res. Code § 26650.)
These two GHADs are provided a degree of immunity from liability for damages caused
by injury to persons or property as a result of gradual earth movement or actions taken to
abate such hazard provided that the board has (1) found the existence of such hazard on
the basis of adequate evidence; (2) determined appropriate remedial action to abate such
hazard; and (3) undertaken to implement such remedial action. (Gov. Code § 866.)
Accordingly, the City Council may rightfully turn to both ACLAD and KCLAD to address
short- and long-term mitigation measures to the land movement, including the
“emergency” spoken of by the residents at the last City Council meeting. The City, as
property owners within the two GHADs, pays its annual assessment and participate at
the monthly meetings.
Indeed, prudence would seem to dictate that, were the City to directly involve itself into
the land movement within the geographic boundaries of these two GHADs, the City may
be assuming a liability that has been statutorily assigned to these two state agencies.
(3) The Scope of GHAD Exemptions or a Declaration of Local Emergency
on Permitting Requirements by the State and Federal Wildlife
Agencies and/or the Federal Army Corps of Engineers
Notwithstanding the possible declaration of local emergency and irrespective of the
authority of the GHADs efforts to remediate or mitigate the land subsidence occurring in
these landslides, short- and long-term remediation projects may require approvals and/or
permits from various state and federal agencies including the following:
State Agencies
Department of Fish and Wildlife (“CDFW”) If the improvements may (1) impact rare,
endangered, threatened or special status
species and/or their habitats and/or (2)
may alter a “waterway” which includes
intermittent streams. (Fish & Game Code
§ 1602)
Regional Water Quality Control Board If the improvements may result in
discharges of dredged or fill material into
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waters of the state. (e.g. NPDES permits,
water quality certifications)
Federal Agencies
Army Corps of Engineers If any creek or streambed that may be
impacted by the improvements falls within
the definition of “waters of the United
States” (e.g. Section 404 permits for
discharges into Waters of the United
States).
Fish and Wildlife Service If the improvements may impact a species
listed on the federal Endangered Species
List or its critical habitat. (“Take Permits”
under 16 USC §1538(a).
If any approvals and permits required by state agencies are discretionary, these agencies
must comply with CEQA prior to issuing them. Accordingly, these agencies would have
to independently determine if the proposed improvements fall within the CEQA
emergency exemptions described above.
If any approvals and permits required by federal agencies are discretionary the federal
agencies would have to comply with federal counterpart to CEQA, the National
Environmental Policy Act (“NEPA”). Like CEQA, NEPA provides exclusions from its
requirements for certain actions to address emergencies.
However, the existence of the City Council-approved Natural Community Conservation
Plan/Habitation Conservation Plan (NCCP/HCP) may expedite state or federal wildlife
agency approvals for remediation efforts within these landslide. The NCCP/HCP has
been adopted City-wide and the possible habitat “takes” required to remediate the
landslides are included as “Covered Projects” within City Council-adopted NCCP/HCP.
ADDITIONAL INFORMATION:
Emergency Exceptions to the Requirements of CEQA
CEQA exempts specific actions necessary to prevent or mitigate an emergency. Pub.
Res. Code § 21080(b)(4); 14 Cal. Code Regs. § 15269(c). Under Pub. Res. Code §
21060.3, an emergency is a sudden, unexpected occurrence, involving a clear and
imminent danger, demanding immediate action to prevent or mitigate loss of, or damage
to, life, health, property, or essential public services. "Emergency" is defined to include
occurrences such as fire, flood, earthquake, landslide, riot, accident, or sabotage. Pub.
Res. Code § 21060.3.
This exemption has therefore been limited in the CEQA Gui delines and in case law to
events that involve clear and immediate danger and demand immediate action. It does
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not extend to correction of a hazardous ongoing condition when immediate action in
response to imminent danger from a specific event is not invol ved, even if corrections
might prevent significant harm. Western Mun. Water Dist. v Superior Court (1986) 187
CL.App.3d 1104, 1111 (plan to reduce groundwater levels to prevent liquefaction in event
of earthquake not exempt from CEQA, because no substantial evidence of emergency);
Castaic Lake Water Agency v City of Santa Clarita (1995) 41 Cal.App.4th 1257 (adoption
of community recovery plan not exempt from CEQA because plan focused predominantly
on economic development rather than repair of earthquake-damaged property). See also
Los Osos Valley Ass'n v City of San Luis Obispo (1994) 30 Cal.App.4th 1670, 1682.
Based on this case law, the Guidelines specify that this exemption does not include long -
term projects to prevent or mitigate a situation that has a low probability of occurring
in the short term. 14 Cal. Code Regs. § 15269(c). The fact that a condition has
existed for some time, however, does not defeat the use of the emergency
exemption if immediate action is required. CalBeach Advocates v City of Solana
Beach (2002) 103 Cal.App.4th 529 (emergency exemption properly applied to seawall
permit when seawall was necessary to prevent collapse of bluff on which homes were
located, even though bluff fracture began to occur months before).
The exclusion for projects that would address a situation that has a low probability of
occurring in the short term does not apply if the expected time to conduct CEQA review
would create a risk to public health, safety, or welfare, or if activities such as risk mitigation
or facility integrity improvements are proposed in response to an emergency at a similar
existing facility. 14 Cal. Code Regs. § 15269(c)
CEQA includes a separate exemption for emergency repairs to public service facilities
necessary to maintain service. Pub. Res. Code § 21080(b)(2). Under 14 Cal. Code Regs.
§ 15269(b), this exemption applies to repairs to publicly or privately owned facilities
necessary to maintain service essential to the public health, safety, or welfare, including
repairs that require a reasonable amount of planning in order to address an anticipated
emergency.
As previous reported, Public Resources Code § 26601 specifies that improvements
undertaken under the geologic hazard abatement law, and all activities in furtherance
of such improvements, are exempt from CEQA as specific actions to prevent or mitigate
an emergency under Pub. Res. Code § 21080(b)(4). County of Ventura v City of Moorpark
(2018) 24 Cal.App.5th 377 (upholding beach restoration project by geologic hazard
abatement district as exempt under this section). The following emergency projects have
been deemed exempt from the requirements of CEQA:
• Projects to maintain, repair, restore, demolish, or replace property or
facilities damaged or destroyed as a result of a disaster in a disaster-stricken area
in which a state of emergency has been proclaimed by the Governor pursuant to
the California Emergency Services Act. This includes projects that will remove,
destroy, or significantly alter an historical resource when that resource represents
an imminent threat to the public of bodily harm or of damage to adjacent property
or when the project has received a determination by the State Office of Historic
Preservation pursuant to Section 5028 (b) of Public Resources Code.
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• Emergency repairs to publicly or privately-owned service facilities
necessary to maintain service essential to the public health, safety or welfare.
Emergency repairs include those that require a reasonable amount of planning to
address an anticipated emergency.
• Specific actions necessary to prevent or mitigate an emergency. This does
not include long-term projects undertaken for the purpose of preventing or
mitigating a situation that has a low probability of occurrence in the short term, but
this exclusion does not apply (i) if the anticipated period of time to conduct an
environmental review of such a long-term project would create a risk to public
health, safety or welfare, or (ii) if activities (such as fire or catastrophic risk
mitigation or modifications to improve facility integrity) are proposed for existing
facilities in response to an emergency at a similar existing facility.
CONCLUSION:
The City Council certainly has the authority to declare, with appropriate findings, a state
of “local emergency” within one or all of the landslides noted above. As noted, attached
is a draft of such declaration for City Council consideration and possible ac tion. And, there
are circumstances under which the City could obtain emergency CEQA clearance (all as
detailed above) to effectuate remedial action to address the landslide(s).
In the alternative, or even in the addition to, the declaration of a local emergency, the City
Council could determine to adopt an interim urgency ordinance prohibiting new
construction within one or more of the various landslides, excepting therefrom actions
necessary to prevent or mitigate loss of, or damage to, life, health, property, or essential
public services” and “including soil or geologic movements” requiring immed iate remedial
action. Because such an ordinance would affect the ability to construct housing, the
Government Code requires the City refrain from enforcing the ordinance until it has been
submitted to, and approved by, HCD.
The complicating factor is that significant portions of these landslide areas fall within the
boundaries of two GHADs who have the statutory responsibility to address and mitigate
the ongoing land movement. Moreover, Public Resources Code § 26601 specifies that
improvements undertaken under the geologic hazard abatement law, and all activities
in furtherance of such improvements, are exempt from CEQA as specific actions to
prevent or mitigate an emergency under Pub . Res. Code § 21080(b)(4). Were the City to
act unilaterally with respect to any of the properties with either or both of these GHADs
the City may be inadvertently creating a liability that it does not now have.
ALTERNATIVES:
In addition to Staff’s discussed option, the following alternative actions are available for
the City Council’s consideration:
1. Take no action and simply receive and file this report
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2. Take such other action as the Council deems appropriate
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