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Home My WebLink AboutORD NO 4470 ORDINANCE NO. --A...A 7 0 AN ORDINANCE AMENDING SECTIONS 15.78.010 AND 15.78.050 AND ADDING SECTION 15.78.090 TO THE BAKERSFIELD MUNICIPAL CODE RELATING TO HABITAT MITIGATION FEES. WHEREAS, in accordance with Government Code section 66018, the City Council of the City of Bakersfield held a public hearing on October 10, 2007 relative to an amendment to Chapter 15.78 of the Bakersfield Municipal Code; and WHEREAS, the law and regulations relating to the preparation and adoption of Negative Declarations, as set forth in the California Environmental Quality Act (CEQA) and City of Bakersfield's CEQA Implementation Procedures, have been duly followed by city staff and this Council; and WHEREAS, the proposed amendment is exempt from CEQA in accordance with CEQA Guideline Section 15061(b)(3), general rule, NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Bakersfield as follows: 1. All of the foregoing recitals are hereby found to be true and correct. 2. The proposed amendment is exempt from CEQA pursuant to CEQA Guideline 15061 (b )(3), general rule. 3. All required notices have been given. SECTION 1. Section 15.78.010 of the Bakersfield Municipal Code is hereby amended to read as follows: 15.78.010 Definitions. As used in this chapter, the following words and phrases are defined as follows: A. Accessory building or accessory structure means a building or structure detached from a principal building on the same lot and customarily incidental and subordinate to the principal building or use. B. Fee assessment area means the land within the Metropolitan Bakersfield Habitat Conservation Plan study area boundary. C. Grading means any excavation or filling or combination, including rough grading thereof as described in the most currently adopted California Building Code C:\DOCUME-1 \dcomeli\LOCALS-1 \T emp\X.Pgrpwise\ 15. 78.050-90HabitatMitFeesFnl.doc -- Page 1 of 6 Pages -- ~~K(:-~ ~ U' ..,'\ - t-- rn c- o Q ORIGINAL adopted as Bakersfield Municipal Code Chapter 15, Buildings and Construction Code. Grading is differentiated from seasonal superficial weed control activities. D. Habitat conservation plan (HCP) means a plan prepared pursuant to the provisions of 16 U.S.C. Section 1539. E. Habitat management lands means a parcel of land or an aggregation of parcels of land protected from future urban development or other disturbance, and managed as a unit for the conservation and protection of species covered by the MBHCP. F. Habitat mitigation fee (H.M.F.) means fees established by uncodified ordinance to be paid by urban development permittees to fund the implementation trust activities including, but not limited to, the cost of land acquisition, land endowment, habitat management land improvement, public facilities mitigation, and administration of the HCP program. G. Implementation trust means that body established pursuant to a joint powers agreement (JPA) between the city and the county for the purpose of carrying out the provisions of the MBHCP. H. Known den means a verified den site reflecting a documented history of use, either from actual observations of kit fox or from recent evidence of use, and plotted on a map maintained by the implementation trust. I. Natural land means undeveloped land which has not been significantly altered by human activity. Natural land generally includes open brushland/woodland, dense brushland/woodland, scrubland, riparian areas, wetlands, ephemeral flooded land, bare ground, sand dunes, rock outcroppings, grasslands, grasslands subject to grazing, and non-crop agricultural land which has retained natural contours or has reverted back to natural vegetation. Natural land does not include former agricultural land which has been leveled or graded to facilitate irrigation or production activities, and land which has been out of production for less than five consecutive years. J. Oilfield development means application and development for the purpose of petroleum extraction or enhancement of petroleum extraction. K. Open land includes natural land and land which has been significantly altered by agricultural or industrial use, but which has not been substantially developed for urban uses. L. 2081 permit means a permit issued under the California Endangered Species Act (Fish and Game Code Sections 2050-2098). M. Undeveloped means land not previously occupied by a building or used for a purpose subject to H.M.F. or land for which a permit was not issued prior to the effective date of the ordinance codified in this chapter. C:\DOCUME-1 \dcomeli\LOCALS-1 \T emp\X.Pgrpwise\ 15. 78.050-90HabitatMitFeesFnl.doc -- Page 2 of 6 Pages -- ?.;{l.i< '..- (...~ ., ~> () l' I Cj f - oi-'{!G:rJ(.L. N. Urban development means a change in land use from open land to any other land use for which a permit such as a grading permit, grading plan approval, building permit or use permit is required from the city, including, but not limited to, the construction of buildings on lots of record and projects undertaken directly by the city. The term does not include a change from natural land or open land to agricultural use, nor does it include a change from natural land, open land, or agricultural use to oil production, except for associated ancillary facilities for which the city exercises discretionary authority over the issuance of such permits or approvals pursuant to the California Environmental Quality Act. O. Urban development permit means issuance of a building permit by the city for a project that would result in urban development as defined in the implementation agreement for 10a(1)(B) and 2081 permits. Where a project would ultimately result in urban development, the term urban development permit also means issuance of a use permit or grading plan approval, or approval of activities undertaken by a public agency, including, but not limited to, public works construction and related activities, if applicable, by the city. P. Urban development permittee means landowners and other private parties that are grading, building, or conducting other development activities within the permit area as approved by the city. SECTION 2. Section 15.78.050 of the Bakersfield Municipal Code is hereby amended to read as follows: 15.78.050 Disposition of fees. The city will hold H.M.F. collected by it, and any fines collected pursuant to Section 15.78.090 of this Chapter, in a separate trust for payment of habitat mitigation trust activities as identified in the MBHCP implementation management agreement, which include but are not limited to the cost of land acquisition, land endowment, habitat management land improvement, public facilities mitigation, and administration of the HCP program. Funds shall be transferred to the implementation trust for use in implementation of the MBHCP upon request by the implementation trust. SECTION 3. Section 15.78.090 of the Bakersfield Municipal Code is hereby enacted to read as follows: 15.78.090 Violation/Penalty. A. Violation defined. It is a violation of this chapter to commence grading on a property subject to the H.M.F. fee and process without receiving final grading plan approval from the City of Bakersfield. C:\DOCUME-1 \dcomeli\LOCALS-1 \T emp\XPgrpwise\ 15. 78.050-90HabitatMitFeesFnl.doc -- Page 3 of 6 Pages -- 'O~Kf'", << or O' l0 , -,," t-- G"' r- l) CJ O!l!Glf\J/\L B. Violator defined. Violator means the property owner and, if the city can locate them, any person(s), company, companies, entity or entities (Le., grading company, engineer, contractor, developer) that is responsible for and/or physically carrying out the act of grading on the site. C. Hearing process. Upon discovery of an alleged violation, the city shall issue a stop-work order on the entire project in question. The stop-work order will be effectively immediately and the department head/director designated by the city manager shall hold a hearing at the time and place designated in the stop-work order, no sooner than ten days and no later than thirty days from the date of the stop-work order, and shall receive all evidence presented on the issues of whether a violation had taken place and the severity of the violation. The city shall cause to be mailed by registered or certified mail, postage prepaid, return receipt requested, with proof of service, a copy of the stop-work order to the owner of real property on which the violation exists. 1. The department head/director shall act in the capacity of administrative hearing officers ("hearing officer(s)" hereafter) and shall have the authority to receive all relevant evidence, swear witnesses, question witnesses, demand the production of documents and witnesses, and otherwise do all things necessary and proper to reach an informed decision upon the existence of a violation and the severity of such if appropriate. All testimony shall be taken under oath or affirmation or by sworn affidavit or declaration executed under penalty of perjury. The hearing officer(s) may consider all other issues relevant and reasonably necessary to reach the ultimate issues of the existence of a violation and the severity of such if appropriate. 2. The burden shall be upon the city to show the existence of any and all violations as noticed, and the severity of such if appropriate, by a preponderance of the evidence presented at the hearing. Only relevant evidence properly produced at the hearing may be considered by the hearing officer(s) in reaching a decision. 3. The hearing officer(s) shall cause the hearing to be tape recorded. Transcripts may be created at the expense of the person requesting the transcript. D. Order after hearing. 1. After the conclusion of the hearing, the hearing officer(s) shall render a decision within five working days on the existence of a violation and what penalties shall ensue. If a violation is found not to exist, the hearing officer(s) shall so notify in writing all persons who originally received notice; or, if such violation is found to exist, shall issue a written notice and order directing the existence of the violation, the severity of the violation and the fine imposed. The fine may include administrative costs in addition to an amount not to exceed three times the amount of the H.M.F. for the project in question. The amount of the fine (except for administrative costs) shall be deposited in the MBHCP trust fund and must be paid within thirty days of the hearing. Furthermore, the stop work order shall remain in effect until all of the conditions outlined C:\DOCUME-1 \dcomeIi\LOCALS-1 \T emp\xPgrpwise\ 15. 78.050-90HabitatMitFeesFnl.doc -- Page 4 of 6 Pages -- \()1\ t\' rr-: f i.! Cifl!(;lrJ/ in the order after hearing are complied with and the violator is responsible for all associated costs of compliance. 2. Except as provided in this section, after a decision by the hearing officer( s), any person subject to an order declaring the existence of a violation and a fine resulting therefrom may appeal the decision of the hearing officer to the city manager by filing a written request with the city clerk within ten days from the date appearing on the order declaring a violation to exist. The cost of appeal must be paid at the time the request for appeal is filed. 3. The stop-work order shall remain in effect until either the decision declares a violation does not exist or the fine stemming from the finding of a violation is paid. E. Criminal violations - Misdemeanors and infractions. Except as provided herein, any person, firm or corporation convicted of violating any of the provisions of this chapter, or for failing to comply with any notice or order given pursuant to this chapter, shall be subject to a fine of not more than five hundred dollars or by imprisonment in the county jail for a period of not more than six months, or by both such fine and imprisonment. Each such person, firm or corporation shall be charged with a separate offense for each and every day during any portion of which any violation of any provision of this chapter is committed, continued or permitted by such person and shall, upon conviction, be punished accordingly. SECTION 4. This Ordinance shall be posted in accordance with the provISions of the Bakersfield Municipal Code and shall become effective thirty (30) days from and after the date of its passage. ---00000--- C:\DOCUME-1 \dcomeli\LOCALS-1 \ T emp\XPgrpwise\ 15. 78.050-90HabitatMitFeesFnl.doc -- Page 5 of 6 Pages -- ~Ak',,:::- r~/< "- ,) .- () { C1 ,- c; Irl1tl . ~, ,L_ I HEREBY CERTIFY that the foregoing Ordinance was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on OCT ~ A ?nn7 ' by the following vote: cS? ABSTAIN: ABSENT: /,/~/ ~ ~ COUNCILMEMBER CARSON, BENHAM, WEIR, COUCH IIAt4S0N, SULlIVAN, SCRIVNER COUNCILMEMBER ~ COUNCILMEMBER ~ COUNCILMEMBER t-+~~ QamJl~ LL~ PAMELA A. McCARTHY, C CITY CLERK and EX OFFICIO of the Council of the City of Bakersfield APPROVED: By. APPROVED AS TO FORM: VIRGINIA GENNARO ::Ai}~Mr MICHAEL RICHARDS Deputy City Attorney C:\DOCUME-1 \dcomeli\LOCALS-1 \T emp\xPgrpwise\ 15. 78.050-90HabitatMitFeesFnl.doc -- Page 6 of 6 Pages -- <" 7) (-) ( I ()fl: (: i f-} /I'~.L AFFIDAVIT OF POSTING DOCUMENTS STATE OF CALIFORNIA) ) ss. County of Kern ) PAMELA A. McCARTHY, being duly sworn, deposes and says: That she is the duly appointed, acting and qualified City Clerk of the City of Bakersfield; and that on the DL.5~ day of OCTOBER, 2007 she posted on the Bulletin Board at City Hall, a full, true and correct copy of the following: Ordinance No. 4470 ,passed by the Bakersfield City Council at a meeting held on the 24th day of October. 2007 and entitled: AN ORDINANCE AMENDING SECTIONS 15.78.010 AND 15.78.050 AND ADDING SECTION 15.78.090 TO THE BAKERSFIELD MUNICIPAL CODE RELATING TO HABITAT MITIGATION FEES. PAMELA A. McCARTHY City Clerk and Ex Officio of the Council of the City of Bakersfield BY:~~~ DEPUTY City Clerk S:\DOCUMENT\FORMSIAOP .ORD.wpd 10/25/2007 ~p.1-: /~ r. '.j ,- c) c)r~~(~(l ,.. ORDINANCE NO. --A...A 7 0 POSTED ON ~ by City Clerk's Office City of Bakersfield by 9z AN ORDINANCE AMENDING SECTIONS 15.78.010 AND 15.78.050 AND ADDING SECTION 15.78.090 TO THE BAKERSFIELD MUNICIPAL CODE RELATING TO HABITAT MITIGATION FEES. WHEREAS, in accordance with Government Code section 66018, the City Council of the City of Bakersfield held a public hearing on October 10, 2007 relative to an amendment to Chapter 15.78 of the Bakersfield Municipal Code; and WHEREAS, the law and regulations relating to the preparation and adoption of Negative Declarations, as set forth in the California Environmental Quality Act (CEQA) and City of Bakersfield's CEQA Implementation Procedures, have been duly followed by city staff and this Council; and WHEREAS, the proposed amendment is exempt from CEQA in accordance with CEQA Guideline Section 15061 (b )(3), general rule, NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Bakersfield as follows: 1. All of the foregoing recitals are hereby found to be true and correct. 2. The proposed amendment is exempt from CEQA pursuant to CEQA Guideline 15061 (b )(3), general rule. 3. All required notices have been given. SECTION 1. Section 15.78.010 of the Bakersfield Municipal Code is hereby amended to read as follows: 15.78.010 Definitions. As used in this chapter, the following words and phrases are defined as follows: A. Accessory building or accessory structure means a building or structure detached from a prinCipal building on the same lot and customarily incidental and subordinate to the principal building or use. B. Fee assessment area means the land within the Metropolitan Bakersfield Habitat Conservation Plan study area boundary. C. Grading means any excavation or filling or combination, including rough grading thereof as described in the most currently adopted California Building Code C:\DOCUME-1 \dcomeli\LOCALS-1 \ Tern p\XPgrpwise\ 15. 78.050-90HabitatMitFeesFnl.doc -- Page 1 of 6 Pages -- (1. r,~; 1::. (( v." o' \\ \. ) OF~:Gi