Bakersfield Municipal Code Ch. 15.78 Metropolitan Bakersfield Habitat Conservation Plan

15.78.020 Designation of MBHCP Section 10(a)(l)(B) and Section 2081 permit area.

• Prior ordinance history: Ords. 3122, 3385, 3556 and 3817.

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 adopted as Bakersfield Municipal Code Chapter 15.05, California Building 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. “Incidental take permit” means the California Endangered Species Act incidental take permit (ITP) issued by the California Department of Fish and Wildlife pursuant to Fish and Game Code Section 2081, subdivisions (b) and (c), and California Code of Regulations, Title 14, Section 783 et seq.

I. “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.

J. “Natural land” means undeveloped land which has not been significantly altered by human activity. Natural land generally includes open brush land/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.

K. “Oilfield development” means application and development for the purpose of petroleum extraction or enhancement of petroleum extraction.

L. “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.

M. “2081 permit” means a permit issued under the California Endangered Species Act (Fish and Game Code Sections 2050 through 2098).

N. “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.

O. “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, covered activities listed in the ITP. Activities not included are also listed in the ITP.

P. “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.

Q. “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. (Ord. 4907 § 1, 2017; Ord. 4470 § 1, 2007; Ord. 4046 § 2, 2002)

15.78.020 Designation of MBHCP Section 10(a)(l)(B) and Section 2081 permit area.

All those certain lands located in the city of Bakersfield and county of Kern Metropolitan Bakersfield 2010 General Plan area are hereby constituted and shall be designated as the Metropolitan Bakersfield Habitat Conservation Plan program area. (Ord. 4046 § 2, 2002)

A. During the time the H.M.F. is in effect, prior to the approval of any urban development permit in the Metro Bakersfield Habitat Conservation Plan program area, the city will collect an H.M.F. With respect to use permits, the H.M.F. shall be paid prior to issuance of a grading or building permit, whichever comes first. If no grading or building permit is required for the use authorized by the use permit, the H.M.F. shall be paid prior to establishment of the authorized use.

B. An H.M.F. will not be required for the following:

1. Additions, remodels or reconstruction totaling not more than a fifty percent increase from the square
footage of pre-existing development.

2. Mobile home replacement.

3. Oil and gas production and extraction, including accessory or incidental structures and improvements.

4. Commercial agricultural practices, uses and structures, including, but not limited to, tillage, cultivation,
grading, ditching, storage, stacking, barns, equipment buildings and agricultural housing.

5. Development of any parcel for which the United States Fish and Wildlife Service and California
Department of Fish and Game has approved other mitigation procedures through issuance of 2081 and
10(a)(l)(B) permits constituting full mitigation.

6. Local public projects less than ten acres in size undertaken for strictly public purposes and incidental to
urban growth.

7. Demolition.

8. Those projects having already paid the interim HCP fee are exempt for the area covered by the previous
fee payment.

C. For parcels less than two and one-half acres in size, the H.M.F. shall be calculated for the entire gross acreage of the parcel.

D. For those parcels two and one-half gross acres or larger, the H.M.F. calculation shall be on the associated disturbance but not less than two and one-half gross acres. However, if the applicant can adequately demonstrate to the city that a portion of his parcel shall not be disturbed by, but not limited to, grading, drainage, or storage, the H.M.F. will not be calculated for that portion of the parcel. (Ord. 4046 § 2, 2002)

The city council shall, by resolution, establish the fee, on a gross acre basis, required under this chapter. (Ord. 4046 § 2, 2002)

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. (Ord. 4470 § 2, 2007; Ord. 4046 § 2, 2002)

A. An urban development permittee may transfer title to land in lieu of payment of a portion of the H.M.F. applicable to a predetermined area under development if preservation of the proposed land is consistent with the habitat management land acquisition criteria set forth in subsection B of this section, and is acceptable to the implementation trust as set forth in subsection C of this section.

B. Land is appropriate for acquisition as all or part of habitat management lands and may, at the discretion of the implementation trust, qualify in lieu of payment of H.M.F., if it is: (1) within one of the potential habitat management lands acquisition areas identified in the implementation/management agreement, and CDFG, USFWS, the Nature Conservancy, or other habitat management entity approved by CDFG has provided written notification to the implementation trust that they are willing to accept title and act as the management entity for such lands; or (2) in an area determined by the implementation trust and the CDFG advisor and USFWS advisor to the implementation trust to provide benefits to one or more of the species of concern, and CDFG, USFWS, the Nature Conservancy, or other habitat management entity approved by CDFG has provided written notification to the implementation trust that they are willing to accept title and act as the management entity for such lands. Notwithstanding this subsection and subsection C of this section, the transfer of title to land in lieu of the payment of H.M.F. shall not be included in the calculations conducted pursuant to Section 3.1.8 of the implementation/ management agreement for the purposes of determining the cumulative amount of habitat management lands, unless the transferred land qualifies as habitat management lands.

C. Landowners proposing transfer of title to land in lieu of payment of mitigation fees shall submit a petition for a transfer consistency determination to the implementation trust. The implementation trust shall be responsible for determining the completeness of the petition. The petition shall provide a description of the land proposed for transfer and, when land is not within a pre-approved area, a report prepared by a qualified biologist on the value of the land as habitat for species of concern. Additional information which may be required by the trust group includes a preliminary title report, or other similar document acceptable by the trust group, a preliminary site assessment for hazardous waste contamination, and correspondence from CDFG, USFWS, or any habitat management entity approved by CDFG and USFWS, regarding their ability and desire to accept title and management responsibilities. The petition shall be processed in accordance with the following time limits:

1. If, upon review of the petition, the implementation trust finds the information provided to be inadequate
for determining consistency, the trust shall, within forty-five days of receipt of the petition, provide the landowner with a written statement of the additional information required. The forty-five-day period can be
extended if both parties agree.

2. Upon receipt of an adequate petition, the implementation trust shall, within forty-five days of receipt of
the petition, issue a written determination with respect to the acceptability and consistency, and amount of
credit of the land proposed for transfer with the habitat management lands criteria set forth in subsection B
of this section. The forty-five-day period can be extended if both parties agree.

3. If the implementation trust fails to make a written determination of consistency or lack of consistency
within the forty-five-day period, the land proposed for transfer will be deemed to be acceptable and
consistent with the habitat management land acquisition criteria set forth in subsection B of this section. The
forty-five-day period can be extended if both parties agree.

D. The implementation trust is under no obligation to accept land that does not, in its sole discretion, provide benefits to one or more species of concern and does not benefit the MBHCP program.

E. If, in consultation with the USFWS and CDFG as advisors, the implementation trust determines that the land proposed for transfer is acceptable and consistent with the habitat management lands acquisition criteria set forth in subsection B of this section, the transfer may be used in lieu of payment of the portion of the mitigation fee attributable to the estimated cost of acquiring habitat management lands on an acre-per-acre basis. This means that an acre of in-lieu land may be accepted for each acre of the project requiring payment of the H.M.F. Only the acres sufficient to satisfy the H.M.F. for the project shall be permitted to be transferred prior to issuance of an urban development permit. The in-lieu land and payment of the mitigation fees are not transferable to the other project. Failure to develop the project shall not result in a refund of either the in-lieu land or related fees that were previously paid. Therefore, a property owner utilizing land title transfer in lieu of payment of the land value portion of the H.M.F. shall pay a fee in the amount of the H.M.F. attributable in the uncodified ordinance to the cost of fencing the habitat management lands, the cost of ensuring the management and enhancement of the habitat management lands as specified in the implementation/management agreement and the administrative costs attributable to the MBHCP program, as those fees exist at the time of payment. The H.M.F. shall not be satisfied for a project until these fees are paid and a grant deed to CDFG or its designee is recorded. In instances where the implementation trust determines the land being transferred represents unique habitat values or assists in achieving specific preservation or management goals of the MBHCP, the implementation trust may choose to pay all or a portion of these fees. (Ord. 4966 § 1, 2019; Ord. 4046 § 2, 2002)

A. No later than five working days prior to the initiation of any ground disturbance activities (grading start date) by an urban development permittee on parcels containing known dens, the urban development permittee shall notify the regional office of CDFG and USFWS of the intent to initiate ground disturbance activities and shall agree to permit appropriate access for salvage purposes.

B. Upon notification of the property owner, any person holding proper permits may remove and relocate kit fox from known dens within approved urban development permitted areas. Any person proposing to remove or relocate kit fox shall indemnify and hold harmless the property owner from and against any claims, damages, or causes of action arising from such removal or relocation. An urban development permittee is not required under this agreement or the MBHCP to pay the cost of the relocation or salvage activity or be responsible for obtaining necessary permits to relocate any species of concern. If, for any reason, the persons responsible for relocating species of concern are unable to carry out the relocation activities prior to the grading start date, the urban development permittee may proceed to engage in the supervised destruction of known dens and otherwise initiate approved construction activities.

C. If the CDFG or USFWS is unable to relocate the kit foxes by the grading start date, the urban development permittee shall then be required to eliminate the known den in the manner described by the city of Bakersfield which allows for the San Joaquin kit fox to escape the construction area prior to project grading.

D. The urban development permittee shall record and report to the implementation trust any sightings of San Joaquin fox during den destruction. (Ord. 4046 § 2, 2002)

The city council may, from time to time, by resolution adopt regulations for the administration and implementation of this chapter not inconsistent with it. Such regulations, and any amendments thereto, shall be adopted after a duly noticed public hearing. (Ord. 4046 § 2, 2002)

A. Violation Defined. It is a violation of this chapter to commence grading or urban development on a property subject to the H.M.F. and process without receiving final grading plan approval from the city of Bakersfield.

B. Violator Defined. Violator means the property owner and, if the city can locate them, any person(s), company, companies, entity or entities (i.e., 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 effective 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 or their designee 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 in the order after the hearings 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. (Ord. 4908 § 1, 2017; Ord. 4701 § 1, 2012; Ord. 4470 § 3, 2007)