Malibu Municipal Code § 4.8 Mitigation

A. New development shall be sited and designed to avoid impacts to ESHA. If there is no feasible alternative that can eliminate all impacts, then the alternative that would result in the fewest or least significant impacts shall be selected. Residual adverse impacts to ESHA shall be fully mitigated, with priority given to onsite mitigation. Off-site mitigation measures shall only be approved when it is not feasible to fully mitigate impacts onsite or where off-site mitigation is more protective in the context of a Natural Community Conservation Plan that is certified by the Coastal Commission as an amendment to the Malibu LCP. Mitigation shall not substitute for implementation of the project alternative that would avoid impacts to ESHA. The permit shall include conditions that require implementation of all feasible mitigation measures that would significantly reduce adverse impacts of the project.

B. When mitigation measures are required by Section 4.8 (A) of the Malibu LIP for impacts to ESHA, such measures including habitat restoration and/or enhancement shall be monitored for a period of no less than five years following completion. Specific mitigation objectives and performance standards shall be designed to measure the success of the restoration and/or enhancement. Mid-course corrections shall be implemented if necessary. Monitoring reports shall be provided to the City annually and at the conclusion of the five-year monitoring period that document the success or failure of the mitigation. If performance standards are not met by the end of five years, the monitoring period shall be extended until the standards are met. The restoration will be considered successful after the success criteria have been met for a period of at least 2 years without any maintenance or remediation activities other than exotic species control. At the City's discretion, final performance monitoring will be conducted by an independent monitor supervised by the city biologist and paid for by the applicant. If success criteria are not met within 10 years, the applicant shall submit an amendment proposing alternative mitigation.

All new development shall include mitigation for unavoidable impacts to ESHA from the removal, conversion, or modification of natural habitat for new development, including required fuel modification and brush clearance, except as provided in Section 4.8.2 of the Malibu LIP for impacts to wetlands. The acreage of habitat impacted shall be determined based on the size of the approved development area, road/driveway area, required fuel modification on the project site, and required brush clearance, if any, on adjacent properties.

One of the following three Habitat Impact Mitigation methods shall be required: (1) habitat restoration; (2) habitat conservation; or (3) in-lieu fee for habitat conservation. The permit shall include conditions setting forth the requirements for habitat mitigation.

A. Habitat Restoration

1. This method includes mitigation of habitat impacts through the restoration of an area of degraded habitat equivalent to the affected habitat (based on the final approved project). Prior to issuance of the coastal development permit, the applicant shall identify the area of disturbed or degraded habitat that is proposed to be restored. The applicant shall also submit a habitat restoration plan, prepared by a qualified biologist or resource specialist, designed to restore the area in question for habitat function, species diversity, and vegetation cover. The restoration plan shall include provisions for monitoring the restoration site for a period of no less than five years, including criteria for determining restoration success, and mid-course corrective measures. The restoration will be considered successful after the success criteria have been met for a period of at least 2 years without any maintenance or remediation activities other than exotic species control. At the City's discretion, final performance monitoring will be conducted by an independent monitor supervised by the city biologist and paid for by the applicant. If success criteria are not met within 10 years, the applicant shall submit an amendment proposing alternative mitigation. The City shall determine that the proposed restoration site is of equivalent type and acreage to the impacted habitat. The area of habitat to be restored shall be permanently preserved through the recordation of an open space deed restriction that applies to the entire restored area. The open space deed restriction shall be recorded prior to issuance of the coastal development permit. The habitat restoration shall be carried out prior to or concurrently with construction of the development project. In any case, the restoration project shall be complete prior to the issuance of certificates of occupancy for any structures approved in the coastal development permit.

2. Performance bonds shall be required prior to the issuance of the coastal development permit to guarantee the compliance with the restoration of the habitat mitigation area prior to occupancy clearance as follows: a) one equal to the value of the labor and materials and b) one equal to the value of the maintenance and monitoring for a period of 5 years. Each performance bond shall be released upon satisfactory completion of items (a) and (b) above. If the applicant fails to either restore or maintain and monitor according to the approved plans, the City may collect the security and complete the work on the property.

B. Habitat Conservation. This method includes the mitigation through the conservation of an area of intact habitat equivalent to the affected habitat (based on the final approved project). Prior to issuance of the coastal development permit, the applicant shall identify the parcel(s) containing the area of intact habitat of equivalent type and acreage to the impacted habitat that will be permanently preserved for habitat impact mitigation. The mitigation parcel shall be restricted from future development and permanently preserved through the recordation of an open space deed restriction or open space easement. The open space deed restriction shall be recorded prior to issuance of the coastal development permits. If the mitigation parcel is larger in size than the impacted habitat area, the excess acreage may be used to provide habitat impact mitigation for other development projects that impact ESHA.

1. Implementation of Conservation Measures. The Planning Manager's determination that the habitat impact mitigation conditions of development on a coastal development permit have been met prior to the issuance of the permit through habitat conservation shall be based on submittal of all of the following (in addition to those requirements noted above):

a. Evidence of the purchase of development rights on a donor site and recordation of a dedication to the City of Malibu of a permanent, irrevocable open space easement in favor of the City on the retired lot(s) that need not allow public use of the lot(s) but which conveys an interest in the lot(s) that insures that the future development on the lot(s) is prohibited and that restrictions can be enforced, the text of which has been approved pursuant to procedures in Coastal Permit Procedures Section 13.19 of the Malibu LIP (recorded legal documents); and

b. Evidence that recorded documents have been reflected in the Los Angeles County Tax Assessor Records.

C. In-lieu Fee for Habitat Conservation

1. Prior to issuance of the coastal development permit, the applicant shall provide evidence or guarantee that compensatory mitigation, in the form of an in-lieu fee, has been paid to mitigate habitat impacts. The fee shall be based on the habitat type, the cost per acre to restore or create comparable habitat type, and the acreage of habitat affected (based on the final approved project).

2. The fee shall be paid into the Habitat Impact Mitigation Fund, administered by the Santa Monica Mountains Conservancy. The accumulated fees shall be used for the acquisition or permanent preservation of natural habitat areas within the Santa Monica Mountains Coastal Zone. Fees paid to mitigate impacts of development approved within the City may be used to acquire or preserve habitat anywhere within this area. Priority shall be given to acquisition or permanent preservation of properties containing areas designated ESHA, and to properties contiguous with existing parklands containing natural habitat.

A. Any new development that includes dike or fill development in wetlands for a use permitted under the Coastal Act and the LCP shall include mitigation for unavoidable impacts to wetland habitat. Wetland impact mitigation shall include, at a minimum, creation or substantial restoration of wetlands of the same type as the affected wetland or similar type. The acreage of wetland habitat impacted shall be determined based on the approved project.

B. Prior to issuance of the coastal development permit, the applicant shall identify an area of disturbed or degraded wetland habitat of equivalent type and acreage sufficient to provide mitigation of the wetland impacts according to the following ratios (number of acres of created or restored habitat required for each acre of wetland habitat impacted), as applicable:

C. These mitigation ratios shall be minimum standards unless the applicant provides evidence establishing, and the City finds, that creation or restoration of a lesser area of wetlands will fully mitigate the adverse impacts of the dike or fill project. However, in no event will the mitigation ratio be less than 2:1 unless, prior to the development impacts, the wetland creation or restoration proposed as project mitigation is completed and is empirically demonstrated, based upon a report provided by the applicant from a qualified biologist or resource specialist, to meet performance criteria that establish that the created or restored wetlands are functionally equivalent or superior to the impacted wetlands.

D. Prior to issuance of the coastal development permit, the applicant shall submit wetland habitat creation, restoration, management, maintenance and monitoring plans for the proposed wetland mitigation area prepared by a qualified biologist and/or resource specialist. The plans shall provide a 100 foot restored buffer as measured from the upland limit of the wetland area, and at a minimum include ecological assessment of the mitigation site and surrounding ecology; goals, objectives and performance standards; procedures and technical specifications for wetland and upland planting; methodology and specifications for removal of exotic species; soil engineering and soil amendment criteria; identification of plant species and density; maintenance measures and schedules; temporary irrigation measures; restoration success criteria; measures to be implemented if success criteria are not met; and long-term adaptive management of the restored areas for a period of not less than 10 years. The City shall determine that the proposed restoration site is of equivalent type and acreage to the impacted wetland habitat.

E. The area of wetland habitat to be restored shall be restricted from future development and permanently preserved through the recordation of an open space deed restriction that applies to the entire restored area and buffer. The open space deed restriction shall be recorded prior to issuance of the coastal development permit. The habitat restoration shall be carried out prior to or concurrently with construction of the development project. In any case, the wetland restoration or creation project shall be complete prior to the issuance of certificates of occupancy for any structures approved in the coastal development permit.

F. Performance bonds shall be required prior to the issuance of the coastal development permit to guarantee compliance with the restoration of wetland habitat prior to occupancy clearance as follows: a) one equal to the value of the labor and materials and b) one equal to the value of the maintenance and monitoring for a period of 10 years for the restoration of wetland habitat. Each performance bond shall be released upon satisfactory completion of items (a) and (b) above. If the applicant fails to either restore or maintain and monitor according to the approved plans, the City may collect the security and complete the work on the property. The permit shall contain conditions that set forth the above requirements.

(Ord. 366 § 3(D), 2012; Ord. 303 § 3, 2007)