|
DATE: |
June 29, 2022 and August 17, 2022 |
07 |
SUBJECT
Title
ADMINISTRATIVE ITEM:
SECOND CONSIDERATION AND ADOPTION OF ORDINANCE:
ORDINANCE AMENDMENTS TO THE GRADING, CLEARING AND WATERCOURSES ORDINANCE TO STREAMLINE THE AGRICULTURAL CLEARING PERMIT PROCESS (DISTRICTS: ALL)
Body
OVERVIEW
On June 29, 2022 (10), the Board of Supervisors took action to further consider and adopt the Ordinance on August 17, 2022.
On October 10, 2018 (2), as part of the Options to Improve Housing Affordability in the Unincorporated Area, the Board of Supervisors (Board) directed staff to streamline grading permits related to housing and additionally to update the Grading, Clearing and Watercourses Ordinance (Ordinance) to decrease time and costs associated with processing Agricultural Clearing permits. Agricultural clearing is when natural vegetation is removed from land to allow for agricultural use, such as planting of crops for cultivation. Farmers are required to apply for Agricultural Clearing permits prior to the clearing of vegetation from their land, and the permits are subject to environmental review. The Board directed staff to comprehensively update the Ordinance in two phases. The first phase was to update the Ordinance for common projects like clearing associated with the installation of a groundwater well or landscaping, followed by a comprehensive update to all the grading standards.
In response to Board direction, staff reviewed other jurisdictions’ practices, legal requirements, stakeholder comments, and fiscal implications of various approaches to streamline the Agricultural Clearing process. On May 19, 2021 (6), staff presented to the Board a three-part approach to streamline the process for Agricultural Clearing Permits and address stakeholder comments that revised the options previously directed in 2018. The Board directed staff to amend the Agricultural Clearing Permits Process pursuant to Board Direction on October 10, 2018, selecting Option 1A - Direct staff to pursue a two-part agricultural clearing ordinance update approach. This approach, referred to as the Ordinance Update for Agricultural Clearing, includes (Part I) consolidating the agricultural regulations into a single chapter within the Ordinance and adding clarifying language and missing definitions, and (Part II) exploring agricultural permit streamlining in conjunction with the draft North County Multiple Species Conservation Plan (North County Plan) currently underway and the future draft East County Multiple Species Conservation Plan (East County Plan), which is expected to move forward after the North County Plan is complete. The Multiple Species Conservation Plan (MSCP) provides a framework that balances regional conservation efforts with streamlined building regulations and permit processes. By exploring agricultural permit streamlining in conjunction with the MSCP, the County can provide streamlining opportunities for applicants while ensuring protection of native habitats and wildlife for future generations. Environmental review has begun in Fiscal Year 2021-2022 for Part II and will take approximately three to four years to complete. This phased Ordinance update revised the previous 2018 Board direction by consolidating the comprehensive update under Part II and focusing Part I on making the Ordinance easier to understand by combining the agricultural requirements into one section and providing clarifications and missing definitions.
Today’s action addresses Part I of the Board’s request to amend the Ordinance to address stakeholder requests to reorganize the agricultural clearing and grading regulations into one chapter. This amendment will clarify definitions while maintaining the current discretionary permit requirements and preserving existing environmental protections for stormwater, erosion, and water quality. Since Board direction on May 19, 2021, staff has worked with stakeholders to consolidate the new chapter and clarify agricultural definitions, including grazing, grubbing, tilling, and trenching. Definitions are provided in the background section under Project Analysis, Part I.
The Ordinance contains regulations for development involving grading, clearing, and watercourses. It is comprised of eight chapters containing information related to thresholds for permit requirements, permit fees, regulations, and design standards for applicable development and contains related definitions.
RECOMMENDATION(S)
CHIEF ADMINISTRATIVE OFFICER
Consider and adopt the Ordinance (second reading) titled:
AN ORDINANCE AMENDING THE GRADING, CLEARING AND WATERCOURSES ORDINANCE, TITLE 8, DIVISION 7, OF THE SAN DIEGO COUNTY CODE TO CONSOLIDATE THE REGULATIONS RELATED TO AGRICULTURAL CLEARING AND GRADING, DATED MAY 20, 2022 (Clean Copy)(Attachment A).
EQUITY IMPACT STATEMENT
Planning & Development Services (PDS) is guided by several Regulatory Codes, Administrative Codes, and Board Policies to serve the region and customers consistently and equitably. The recommendation to amend the Grading, Clearing, and Watercourses Ordinance (Ordinance) will provide clarifying language and continue to guide departmental project processing practices. Improved clarity will result in a greater understanding of the regulations by the public, more efficient administration by staff, and the potential for reduced project review cycles, which saves cost and time for applicants. Amending the Ordinance supports the local economy by working with the public, the agricultural industry, and environmental stakeholders to clarify and improve permit processing and regulations.
FISCAL IMPACT
There is no fiscal impact associated with the ordinance amendments to the grading, clearing and watercourses ordinance as presented today. Funds for amending the Grading, Clearing, and Watercourses Ordinance (Ordinance) are included in the Fiscal Year 2021-22 Operational Plan in Planning & Development Services. The Part I Ordinance amendment will result in costs of $100,000, and the funding source is from the prior year General Fund fund balance. Approximately $135,000 of budgeted funds were allocated for project management, meetings, stakeholder engagement and outreach, research, and analysis. The staff recommendation for the Ordinance Update for Agricultural Clearing could be prepared using this existing budget. The total cost of the Ordinance Part I and II is $1,220,000. There will be no change in net General Fund costs and no additional staff years.
BUSINESS IMPACT STATEMENT
N/A
Details
ADVISORY BOARD STATEMENT
A GovDelivery email was sent out to all Community Planning and Sponsor Groups (CPSGs) in January 2021. Follow-up community meetings were held throughout 2021 and 2022 with the CPSGs who requested additional information. The Campo Community Planning Group chair requested staff to virtually present the Ordinance on January 24, 2022, and voted to approve Part I.
INVOLVED PARTIES
N/A
PLANNING COMMISSION VOTE
On February 25, 2022, the Planning Commission voted 6 Ayes, 0 No, 1 Absent to recommend approval to the Board of Supervisors to amend the Grading, Clearing, and Watercourses Ordinance.
BACKGROUND
The County of San Diego (County) Grading, Clearing, and Watercourses Ordinance (Ordinance) was initially adopted in 1996 to establish regulations and procedures for permitting earth movement (grading) and removing vegetation (clearing) to ensure public safety by preventing slope failure, foundation failure, expansive soil damage, and erosion and drainage problems. Developers or property owners for projects, such as commercial centers, wineries, or single-family homes, are required to obtain grading permits for movement of soil. Separately, clearing is the process of removing vegetation from a property and requires a clearing permit. Most often, clearing permits are sought by farmers. Farmers apply for Agricultural Clearing permits for the clearing of vegetation from their land for agricultural use and are subject to environmental review. Since its adoption, the Ordinance has been amended five times to address stakeholder comments and federal and State mandates, including removing agricultural clearing permit exemptions and adding stricter stormwater management practices.
On October 10, 2018 (2), the Board received the report on Options to Improve Housing Affordability in the Unincorporated Area and to streamline regulatory barriers. During the meeting, the Board directed staff to streamline grading permits related to housing and additionally to update the Ordinance to decrease time and costs associated with processing Agricultural Clearing permits. Approximately five to ten agricultural clearing permits are applied for each year; however, many are withdrawn due to environmental issues and associated permit processing and mitigation costs, such as groundwater, biological resources, and cultural resources. Up to three agricultural clearing permits are issued each year. Processing time is approximately one year, and processing costs range from $15,000 to $85,000 per permit. County Ordinances do provide some exemptions to clearing permits when certain criteria are met. A property owner can clear up to five acres with an existing or proposed residence in North and East County per the Ordinance. In South County, a property owner can clear up to two, five, or ten acres potentially, dependent on specific criteria such as property size, location, and the year an existing residence was built, per the Biological Mitigation Ordinance.
The Board prioritized streamlining Agricultural Clearing permits in a first phase to respond to comments from agricultural stakeholders that the current process is lengthy and costly, and the Ordinance is overly complex. Stakeholders have expressed that applying the regulations, which are dispersed throughout the Ordinance, is cumbersome and have requested the agricultural clearing requirements be consolidated into one chapter within the Ordinance. They also stated that the definition of activities considered as clearing needs clarification. The second phase to update the Ordinance will address grading for residential housing projects.
On May 19, 2021 (6), the Board directed staff to pursue the Ordinance update in two parts:
i) Part I - Consolidate all the agricultural regulations into a single chapter within the Ordinance while maintaining existing requirements and clarify language and add missing definitions.
ii) Part II - Analyze agricultural clearing exemptions as part of the North County Multiple Species Conservation Plan (North County Plan) accompanying Programmatic Environmental Impact Report (PEIR) and separately, under the Multiple Species Conservation Plan (MSCP) efforts, explore comprehensive agricultural clearing allowances under the North County Plan currently in development and the future East County Plan modeled after the South County Plan. Also, amend the Agricultural Clearing and Grading Permit process to pursue an ordinance update to address agricultural and residential clearing and grading requirements, thresholds, and permit processes (agricultural operations and residential development).
PROJECT ANALYSIS
On May 19, 2021(6), the Board directed staff to return in 16 months with an update to the Ordinance to consolidate the agricultural regulations into a single chapter within the Grading, Clearing and Watercourses Ordinance (Ordinance) while maintaining existing requirements, to clarify language and add missing definitions (Part I). The Ordinance currently includes the following Chapters:
• Chapter 1: Responsibilities & Enforcement
• Chapter 2: Grading Permits
• Chapter 3: Fees, Deposits, and Security
• Chapter 4: Design Standards and Performance Requirements
• Chapter 5: Clearing Regulations
• Chapter 6: Watercourses
• Chapter 7: Surface Mining
• Chapter 8: General Provisions and Definitions
Part I
Part I includes no changes to the existing agricultural clearing and grading regulations related to permitting, exemptions, and clearing standards-only reorganizing and clarifying the existing regulations. Currently, the agricultural grading regulations are dispersed throughout four chapters within the Ordinance. Included in Part I of staff’s recommendation, Sections 87.202(d) and 87.205, which outline the agricultural grading regulations, would be consolidated into the new agricultural chapter within the Ordinance. The agricultural clearing and grading regulations are proposed to be consolidated into one chapter, so the information is more comprehensive and easier to understand by being in one place. Additionally, this would include moving Sections 87.111, 87.301(b), and 87.305 related to agricultural permit exemptions for existing operations, fees and deposits, and waivers. These regulations will be consolidated from five chapters into one new chapter within the Ordinance:
1) Agricultural clearing regulations are currently contained within four chapters of the Ordinance:
a) Chapter 1: Responsibilities & Enforcement
i) Sec. 87.111
b) Chapter 3: Fees, Deposits, and Security
i) Sec. 87.305
c) Chapter 5: Clearing Regulations
i) Sec. 87.504
ii) Sec. 87.506
d) Chapter 8: General Provisions and Definitions
i) Sec. 87.803
2) Agricultural grading regulations are currently contained within four chapters of the Ordinance:
a) Chapter 1: Responsibilities & Enforcement
i) Sec. 87.111
b) Chapter 2: Grading Permits
i) Sec. 87.202(d)
ii) Sec. 87.205
c) Chapter 3: Fees, Deposits, and Security
i) Sec. 87.301(b)
ii) Sec. 87.305
d) Chapter 8: General Provisions and Definitions
i) Sec. 87.803
This reorganization is expected to improve implementation and provide a more easily understandable format while maintaining the current discretionary permit requirements and environmental protections for stormwater, erosion, and water quality. The Ordinance upholds compliance requirements with federal and state regulations such as Storm Water General Permits, storm water pollution prevention plans, National Pollutant Discharge Elimination System, and the State Comprehensive Water Quality Control Plan for the San Diego Basin, among others. No modifications are proposed to the Ordinance with respect to federal and state regulation compliance.
Additionally, Part I of the update will clarify language and add the following missing definitions to Section 87.803:
1. Grazing - means the use of cattle, sheep, or other livestock for the purposes of clearing vegetation.
2. Grubbing - means the removal of trees and/or stumps at the root.
3. Tilling - means to prepare (land) for the raising of crops by digging, stirring, overturning, plowing, or harrowing.
4. Trenching - means to dig out a deep furrow or ditch for a trench, commonly for pipeline or irrigation piping.
Coupled with the consolidation of the agricultural clearing regulations, this should help reduce confusion and improve usability of the Ordinance while preserving existing environmental protections for stormwater and water quality regulatory requirements which will remain the same, as explained above.
Part II
For Part II of this effort, the Board provided direction to pursue a comprehensive update to the Ordinance to address agricultural and residential clearing and grading, including reviewing requirements, thresholds, and permit processes. Part II will explore agricultural permit streamlining in conjunction with the draft North County Multiple Species Conservation Plan (North County Plan) currently underway and the future draft East County Multiple Species Conservation Plan (East County Plan), which is expected to resume after the North County Plan is completed. The Multiple Species Conservation Plan provides a framework that balances regional conservation efforts with streamlined building regulations and permit processes. For example, the South County Multiple Species Conservation Plan (South County Plan) allows for 3,000 total acres of agricultural clearing because the County took responsibility of paying the required mitigation for 3,000 acres of land when the South County Plan was originally adopted. This means that although Agricultural Clearing Permits are required, applicants are not responsible for the associated mitigation because the County provided a streamlined mitigation process to reduce applicant costs. The Planning & Development Services Department is looking to explore similar agricultural permit streamlining options in conjunction with the North County Plan and East County Plan for Part II. This effort will take approximately three to four years to complete. Environmental review has begun in fiscal year 2021-2022. This effort will include reviewing best practices, evaluating the benefits and risks, analyzing environmental impacts under CEQA, outreach to the public and stakeholders, drafting amended ordinance language, and returning to the Board for consideration in 2024 or 2025.
ENVIRONMENTAL STATEMENT
The adoption of the Grading, Clearing and Watercourses Ordinance (Ordinance) is exempt from environmental review under CEQA Regulations Section 15305. An action that restates or codifies existing law and adds clarifying language is a minor modification to land use limitations. Further, the adoption of the ordinance is subject to the common sense exemption, because it can be seen with certainty that there is no possibility that it may have a significant effect on the environment (Section 15061(b)(3) of the CEQA Guidelines) because these minor revisions do not cause substantive changes to the grading ordinance and have no potential to cause a physical change in the environment. Further, each grading project application will be reviewed under CEQA.
PUBLIC INPUT
The Grading, Clearing and Watercourses Ordinance (Ordinance) amendment included an extensive public outreach process that involved ongoing coordination with County specialists, Community Planning and Sponsor Groups, Design Review Boards and other external stakeholders. Staff sent email notifications in English and Spanish announcing the Project to community, environment, and business stakeholder groups and incorporated their input on the consolidated chapter.
Six public meetings and workshops for Part I were held between November 2021 and February 2022. A GovDelivery email was sent to all Community Planning Groups and Sponsor Groups, conservation and environmental groups, government agencies, land development industry associations, and the general public to obtain feedback for Part I. Staff presented the Project virtually to the Farm Bureau on November 2, 2021, the Building Industry Association on November 10, 2021, the Land Development Technical Working Group on November 18, 2021, and the Environmental Groups on November 19, 2021. No additional feedback was obtained by the respective groups for Part I. The Campo Community Planning Group chair requested staff to virtually present the Ordinance on January 24, 2022. The letters received from stakeholders stated that there were no further comments on Part I. Additionally, staff received a comment requesting that floodplain areas be redefined, specifically in Borrego Springs, in Part II of this effort. The County input letters are included in Attachment D.
The Ordinance amendment was advertised for a 43-day public disclosure period from December 2, 2021, to January 14, 2022. Over 65 consultant firms, agencies, and jurisdictions as well as over 600 individuals were noticed as part of this effort. Three emails were received from the Viejas Tribal Government, Endangered Habitats League and the Borrego Springs Community Sponsor Group requesting clarifications or providing recommendations for Part II of this effort and both are included in Attachment D.
DEPARTMENT REASONS FOR RECOMMENDATION
The Grading, Clearing and Watercourses Ordinance (Ordinance) amendment would address the Board of Supervisors’ (Board) and stakeholder requests to reorganize the agricultural clearing and grading regulations into one chapter, clarify definitions, and preserve existing environmental protections.
LINKAGE TO THE COUNTY OF SAN DIEGO STRATEGIC PLAN
Today’s proposed action supports the Strategic Initiatives of Equity, Empower, and Community in the County of San Diego’s 2022-2027 Strategic Plan by pursuing policy and program changes that enhance the community by providing cost-efficient innovative solutions and program changes to positively impact those involved in the land development process.
Respectfully submitted,
SARAH E. AGHASSI
Deputy Chief Administrative Officer
ATTACHMENT(S)
Attachment A - AN ORDINANCE AMENDING THE GRADING, CLEARING AND WATERCOURSES ORDINANCE, TITLE 8, DIVISION 7, OF THE SAN DIEGO COUNTY CODE TO CONSOLIDATE THE REGULATIONS RELATED TO AGRICULTURAL CLEARING AND GRADING, DATED MAY 20, 2022 (Clean Copy)
Attachment B - AN ORDINANCE AMENDING THE GRADING, CLEARING AND WATERCOURSES ORDINANCE, TITLE 8, DIVISION 7, OF THE SAN DIEGO COUNTY CODE TO CONSOLIDATE THE REGULATIONS RELATED TO AGRICULTURAL CLEARING AND GRADING, DATED MAY 20, 2022 (Strike-out/Underline Copy)
Attachment C - Ordinance Amendments to the Grading, Clearing and Watercourses Ordinance to Streamline the Agricultural Clearing Permit Process Notice of Exemption
Attachment D - Public Correspondence
Attachment E - Action Sheet