§ 16.55

The purpose of this chapter is to help establish a comprehensive framework to protect and conserve species, wetlands, natural communities and ecosystems in East Contra Costa County, while improving and streamlining the environmental permitting process for impacts of future development on rare, threatened and endangered species; to establish procedures to implement the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan; and to authorize fees to be used for the conservation of habitat for covered species in mitigation of the impacts of development within the City.

The following terms shall have the meaning set forth herein:

"Affected development project" means all development projects within the City's land use jurisdiction except for the development projects listed in Section 16.55.030 below.

"Covered species" means those species of plants and animals whose conservation and management are provided for by the HCP/NCCP for which limited take is authorized pursuant to the state and federal permits.

"Development fee" means the fee described in Chapter 9.3.1 of the HCP/NCCP and imposed on development projects pursuant to Section 16.55.060 of this chapter.

"Development fee zones" means the three (3) areas depicted as Zones I, II and III on the map attached hereto as Exhibit A and in the detailed map data gathered as part of the HCP/NCCP used to create Exhibit A, both of which are incorporated herein by reference and are on file with the Community Development Department.

"Development project" means any project undertaken for the purpose of development, including a project involving the issuance of a permit for construction or reconstruction, but not a permit to operate.

"Director" means the Community Development Director of the City, including his or her designated representatives.

"HCP/NCCP" means the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan, approved by the City Council on December 19, 2006, as may be revised from time to time and on file with the Community Development Department.

"HCP/NCCP implementation fees" means the Development Fee and the Wetland Mitigation Fee.

"Implementing agreement" means the February 20, 2007 Implementing Agreement for the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan by and between East Contra Costa County Habitat Conservancy, County of Contra Costa, City of Pittsburg, City of Clayton, City of Oakley, City of Brentwood, Contra Costa County Flood Control and Water Conservation District, East Bay Regional Park District, United States Fish and Wildlife Service, and California Department of Fish and Game.

"Implementing entity" means the East Contra Costa County Habitat Conservancy, a joint exercise of powers agency formed by Contra Costa County and the cities of Brentwood, Clayton, Oakley and Pittsburg to oversee the implementation of the HCP/NCCP.

"Jurisdictional wetlands and waters" means state-and federally-regulated wetlands and other water bodies that cannot be filled or altered without permits from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. § 1251 et seq.), from the State Water Resources Control Board under either section 401 of the Clean Water Act or the Porter-Cologne Water Quality Act (California Water Code, § 13000 et seq.), or from the California Department of Fish and Game under section 1602 of the California Fish and Game Code, as further explained in Chapter 1.3.5 of the HCP/NCCP.

ection 404 of the Clean Water Act (33 U.S.C. § 1251 et seq.), from the State Water Resources Control Board under either section 401 of the Clean Water Act or the Porter-Cologne Water Quality Act (California Water Code, § 13000 et seq.), or from the California Department of Fish and Game under section 1602 of the California Fish and Game Code, as further explained in Chapter 1.3.5 of the HCP/NCCP.

"Project applicant" means a property owner, or duly-designated agent of the property owner, who has submitted to the City a request for approval of a development project on a property subject to the land use jurisdiction of the City.

"Public facilities" includes public improvements, public services and community amenities.

"State and federal permits" means the permit issued by the California Department of Fish and Game to the County and other local agencies on August 6, 2007 authorizing take of covered species pursuant to the HCP/NCCP and the Natural Community Conservation Planning Act (permit number 2835-2007-01-03) and the permit issued by the United States Fish and Wildlife Service to the County and other local agencies on July 25, 2007 authorizing incidental take of covered species pursuant to the HCP/NCCP and the federal Endangered Species Act (permit number TE160958-0), as those documents may be amended from time to time.

"Take" includes the definitions provided by the federal Endangered Species Act of 1973, as amended (16 U.S.C. § 1531 et seq.) ("FESA") and its implementing regulations with regard to activities subject to that Act, the California Fish and Game Code with regard to activities subject to the California Endangered Species Act (Fish and G. Code, § 2050 et seq.) and the Natural Community Conservation Planning Act (Fish and G. Code, § 2800 et seq.). Specifically, take is defined in FESA to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct" (16 U.S.C. § 1532(18))and in the California Fish and Game Code section 86 as "to hunt, pursue, catch, capture, or kill or attempt to hunt, pursue, catch, capture, or kill."

"Urban development area" means the areas designated for urban development that are either (1) within the area designated as the "Initial Urban Development Area" as generally depicted on Figure 2.3 of the HCP/NCCP, incorporated herein by reference, or (2) areas added to or removed from the Initial Urban Development Area according to the procedures set forth in Section 3.50 of the Implementing Agreement.

"Wetland mitigation fee" means the fee described in Chapter 9.3.1 of the HCP/NCCP and imposed on development projects pursuant to Section 16.55.060 B of this chapter.

This chapter shall apply to all development projects, within the City's land use jurisdiction and within the Urban Development Area as the boundaries of these areas may change pursuant to the law or this chapter, except for the following:

A.

Any development project that will permanently disturb less than one acre. The "acreage of land permanently disturbed" by a project, as that term is defined in Chapter 9.3.1 of the HCP/NCCP, shall be determined by the Director.

B.

Any development project that the Director determines is contained entirely within an area mapped as urban, turf, landfill and/or aqueduct land cover types in the HCP/NCCP, as generally depicted on Exhibit A and in the map data used to create Exhibit A.

C.

Any development project of a type not covered by the HCP/NCCP within the Urban Development Area, as set forth in Chapter 2.3.1 of the HCP/NCCP.

D.

Any development project with vested rights pursuant to an agreement by and between the project applicant and the City existing as of the effective date of this chapter.

E.

Any development project exempt under any provision of law.

F.

Any development project where the City determines based on written evidence submitted by the project applicant that application of this chapter would deprive the project applicant of all reasonable economic use of the property in violation of federal or state constitutional prohibitions against the taking of property without just compensation.

16.55.040 - Administration and Application Procedures.

A.

The Director shall administer and apply the provisions of this chapter for the City. Such actions shall include, but not be limited to review of HCP/NCCP take authorization applications for completeness and verification that the appropriate HCP/NCCP implementation fee amount, where applicable, has been collected prior to site disturbance or the issuance of the first construction permit.

B.

Project applicants for any and all Affected Development Projects shall submit an application for take authorization to the Director for review simultaneously with the submittal of a request for approval of a development project. The Director may require that the application be submitted using an application form prepared by the Community Development Department. The application for take authorization must include the following information to be determined complete:

1.

Description of the Affected Development Project, including maps, detailed information on the project footprint, extent of construction and extent of any ongoing maintenance activities subject to the HCP/NCCP.

2.

One or more reports documenting the methods and results of planning surveys and the methods of applicable pre-construction surveys and construction monitoring, in accordance with Chapter 6 of the HCP/NCCP. The Director may allow specific components of the required surveys, including some or all of the results of planning surveys and the methods of applicable pre-construction surveys and construction

or more reports documenting the methods and results of planning surveys and the methods of applicable pre-construction surveys and construction monitoring, in accordance with Chapter 6 of the HCP/NCCP. The Director may allow specific components of the required surveys, including some or all of the results of planning surveys and the methods of applicable pre-construction surveys and construction

monitoring, to be provided subsequent to the submittal of the initial application and prior to approval of the development project; however, the application for take authorization is not complete until all items listed in this paragraph have been submitted.

3.

Evidence of compliance or planned compliance with avoidance and minimization, and conservation measures, in accordance with Chapter 6 of the HCP/NCCP.

4.

Quantification of the anticipated acreage of land permanently disturbed, consistent with Chapters 6.2 and 9.3.1 of the HCP/NCCP.

5.

Estimate of HCP/NCCP implementation fees due and/or documentation of proposed land dedication and/or proposed habitat restoration or creation, consistent with Section 16.55.060 of this chapter.

6.

Other information as determined by the Director in accordance with the HCP/NCCP.

7.

Payment of the HCP/NCCP administration fee, in accordance with Section 16.55.060 of this chapter.

C.

The City may grant take authorization to a project applicant only upon satisfaction of all of the following:

1.

The application for take authorization is deemed complete.

2.

The conditions of approval for the project require compliance with all terms and conditions of the Implementing Agreement, the HCP/NCCP, and the state and federal permits that apply to the project. Such terms and conditions include but are not limited to the following:

a.

Payment of the required HCP/NCCP implementation fees and/or approval by the City of an offer of land dedication and/or habitat restoration or creation, pursuant to the requirements of Sections 16.55.060 and 16.55.070, respectively, of this chapter.

b.

Compliance with all relevant surveys, monitoring, avoidance, minimization, and conservation measures determined by the Director to apply to the project, pursuant to Chapter 6 of the HCP/NCCP.

3.

The City makes a determination that extension of take authorization is consistent with the HCP/NCCP, the Implementing Agreement, the state and federal permits, all applicable federal, state and local laws and regulations, and the constitutions of the United States and the State of California.

To help fund the acquisition, management and monitoring of lands for the benefit of covered species, natural communities, biological diversity, ecosystem function, and all other implementation and administration requirements of the HCP/NCCP by the Implementing Entity, the City shall condition the approval of any and all Affected Development Projects upon the collection of the applicable Development Fee and, if applicable, Wetland Mitigation Fee, unless an alternative described in Section 16.55.070 is approved or required.

16.55.060 - HCP/NCCP Implementation and Administration Fees.

A.

Development Fee.

1.

The Development Fee shall be imposed upon and collected for each acre of land, or portion thereof, permanently disturbed.

2.

The Director shall determine in which of the three Development Fee Zones the Affected Development Project is located, pursuant to Exhibit A and the map data used to create Exhibit A.

3.

The Development Fee for each Affected Development Project shall be calculated by multiplying the fee for the applicable Development Fee Zone by the acreage of land permanently disturbed by the project, as determined by the Director pursuant to Chapter 9.3.1 of the HCP/NCCP. The Development Fee amount shall be based on the fee established by the City Council fee resolution in effect at the time of actual payment of the Development Fee to the City.

4.

Upon or before the issuance of a grading permit or, if no grading permit is issued, upon or before issuance of the first construction permit, the project applicant shall either (1) pay the entire Development Fee or, (2) with the prior written approval of the City, pay at least sixty-seven (67) percent of the Development Fee and execute an agreement with the City, in a form approved by the City Attorney, to provide additional funding payments through assessments on the subject parcel(s) or other mechanisms, provided that assessments or other funding mechanisms are legally authorized for this purpose, pursuant to the requirements of Chapter 9.3.1 of the HCP/NCCP.

5.

The Development Fee amount applicable to an Affected Development Project shall be the Development Fee amount in effect at the time a grading permit is issued or, if no grading permit is issued, at the time the first construction permit is issued for the project. Notwithstanding the foregoing, a project applicant may request to pay the Development Fee in a calendar year prior to the calendar year in which the grading permit or first construction permit is issued. Such request may be granted by the Director only in accordance with Section 13.2.2.1 of the Implementing Agreement and Chapter 9.3.1 of the HCP/NCCP. If such request is granted, the applicable Development Fee shall be the Development Fee in effect during the calendar year in which the fee is to be paid, including any adjustments made pursuant to this chapter.

B.

Wetland Mitigation Fee.

1.

In addition to a Development Fee, a Wetland Mitigation Fee shall be imposed upon and collected from any and all Affected Development Projects that will fill, dredge, or remove Jurisdictional Wetlands and Waters or riparian woodland/scrub, and from any and all Affected Development Projects that have been granted an exception to the stream setback established pursuant to Conservation Measure 1.7 of the HCP/NCCP.

2.

The Director shall determine which of the land cover types will be impacted by an Affected Development Project and the corresponding fee amounts in accordance in accordance with Chapter 9.3.1 of the HCP/NCCP and the Wetland Mitigation Fee amount established by the City Council fee resolution. The Wetland Mitigation Fee applicable to an Affected Development Project that has been granted an exception to the stream setback shall be determined by the Director, based on the acreage of setback encroachment, in accordance with Chapter 9.3.1 of the HCP/NCCP and the Wetland Mitigation Fee amount established by City Council fee resolution.

3.

Upon or before the issuance of a grading permit or, if no grading permit is issued, upon or before issuance of the first construction permit, the project applicant shall pay the Wetland Mitigation Fee determined for the Affected Development Project. The Wetland Mitigation Fee amount applicable to an Affected Development Project shall be the Wetland Mitigation Fee amount in effect at the time a grading permit is issued or, if no grading permit is issued, at the time the first construction permit issued for the project. Notwithstanding the foregoing, a project applicant may request to pay the Wetland Mitigation Fee in a calendar year prior to the calendar year in which the grading permit or first construction permit is issued. Such request may be granted by the Director only in accordance with Section 13.2.2.1 of the Implementing Agreement and Chapter 9.3.1 of the HCP/NCCP. If such request is granted, the applicable Wetland Mitigation Fee shall be the Wetland Mitigation Fee in effect during the calendar year in which the fee is to be paid, including any adjustments made pursuant to this chapter.

C.

The Development Fee and Wetland Mitigation Fee shall each be adjusted automatically for inflation or deflation in accordance with the requirements of the HCP/NCCP and the City Council fee resolution. All Development Fees and Wetland Mitigation Fees collected hereunder shall be transmitted to the County Auditor-Controller or a successor accounting entity established by the Governing Board of the East Contra Costa County Habitat Conservancy at least quarterly, within thirty (30) days of the end of the quarter within which the fee was collected, for deposit into a separate account or fund, and for investment, accounting and expenditure in accordance with the provisions of the Mitigation Fee Act.

D.

Administration Fee.

Each HCP/NCCP application shall be charged an HCP/NCCP administration fee to review each application request and collect and process the applicable Development Fee and Wetland Mitigation Fee. The amount of the HCP/NCCP administration Fee shall be established by resolution of the City Council and may be amended from time to time.

16.55.070 - Land and Other Options In Lieu of Fee.

A.

Dedications.

1.

On a case-by-case basis, and upon a voluntary offer by the project applicant, the City may accept a dedication of land in lieu of some or all of the Development Fee that would otherwise be imposed upon a development project. Any offer of dedication may be considered for acceptance only if the land dedication is considered by the Director to be consistent with the HCP/NCCP and Implementing Agreement. The Director shall determine the amount of the Development Fee for which such dedication would substitute in accordance with Section 13.2.2.2 of the Implementing Agreement and Chapters 8.6.7 and 9.3.1 of the HCP/NCCP.

2.

If required to comply with the "Stay Ahead" provision set forth in Chapter 8.6.1 of the HCP/NCCP and Section 9.2 of the Implementation Agreement, the City may require that some or all Affected Development Projects offer a dedication of land in lieu of some or all of the Development Fee that would otherwise be imposed.

B.

Creation/Restoration of Habitat. On a case-by-case basis, and upon a voluntary offer by the project applicant, the City may accept the restoration or creation of Jurisdictional Wetlands and Waters or riparian woodland/scrub in lieu of some or all of the Wetland Mitigation Fee that would otherwise be imposed on an Affected Development Project. The offer of restoration or creation of Jurisdictional Wetlands and Waters or riparian woodland/scrub in lieu of some or all of a portion of the Wetland Mitigation Fee may be considered for acceptance only if such restoration or creation is determined by the Director to be consistent with the

HCP/NCCP and Implementing Agreement. The Director shall determine the amount of Wetland Mitigation Fee for which such restoration or creation would substitute in accordance with Conservation Measures 2.1 and 2.2 and Chapter 9.3.1 of the HCP/NCCP.

C.

Separate Take Authorization. On a case-by-case basis, an applicant that possesses separate and final approval from the United States Fish and Wildlife Service and/or California Department of Fish and Game for incidental take of all federally-or state-listed species that may be adversely affected by the development project may apply to the City to pay a fee, the amount to be negotiated by the project applicant with the City, to support the conservation of habitat and open space under the HCP/NCCP instead of the HCP/NCCP implementation fees. If the Director determines that the mitigation and conservation requirements under the separate approval are equivalent to or exceed what would be required under this chapter, then the City may determine that no further fees are required for purposes of complying with the HCP/NCCP, in which case the HCP/NCCP implementation fees described herein shall not be required of the project.

A.

The City is authorized to enforce the provisions of this chapter by civil, criminal, and/or administrative action and/or any other proceeding or method permitted by law, including all enforcement provisions of this Code.

B.

Failure of any official or agency to fulfill the requirements of this chapter shall not excuse any applicant from the requirements of this chapter.

(Ord. 412, 2007)

Chapter 16.60 - CHILD CARE FACILITIES

Sections: