Marin County Municipal Code Ch. 23.08 Excavating, Grading and Filling

No person, firm, corporation or public agency shall do any grading on any lands in the unincorporated area of Marin County, or shall cause or permit such to be done, except as permitted in this chapter.

(Ord. 2802 § 2 (part), 1983)

Any grading in the coastal zone, as defined by the Coastal Act of 1976, may also be subject to a coastal development permit pursuant to Chapters 22.56 and 22.57 of this code. Different standards, as set forth in Chapters 22.56 and 22.57, are applicable to projects located in coastal districts.

(Ord. 2802 § 2 (part), 1983)

It is in the public interest, and is necessary for the promotion and protection of the public safety, convenience, comfort, prosperity, general welfare and the county's natural resources, to establish minimum requirements for grading in order to:

(1) Preserve and enhance the natural beauties of the land, streams, bays and shorelines;

(2) Reduce or eliminate the hazards of earthslides, mudflows, rockfalls, undue settlement, erosion, siltation, sedimentation and flooding;

(3) Protect and enhance the water quality of watercourses, water bodies and wetlands and vegetation for wildlife habitat;

(4) Regulate de facto development caused by uncontrolled grading.

(Ord. 2802 § 2 (part), 1983)

As used in this chapter:

(1) "Agricultural operation" means any land-related activity for the purpose of cultivating or raising plants or animals, or conserving or protecting lands for such purposes when conducted on agriculturally zoned lands, and is not surface mining or borrow-pit operations nor preparation for construction or construction of any structure for human occupancy.

(2) "Bank" means the elevation of land which confines waters of a stream to their natural channel in their normal course of flow. Top of bank is the limit of such elevation confining waters to channel, and above such elevation the waters will leave the channel and disperse in an uncontrolled manner.

(3) "Cut." See "Excavation."

(4) "Depth of fill" means the vertical dimension from the exposed-fill surface to the original ground surface.

(5) "Depth of excavation (cut)" means the vertical dimension from the exposed-cut surface to the original ground surface.

(6) "Director of public works" means the director of public works of Marin County, California, acting either directly or through his or her authorized deputies.

(7) "Earth" means all material (including soil, rock, sand, etc.) which overlies bedrock and may include the decomposed zone of bedrock which can be excavated readily by mechanical equipment.

(8) "Embankment." See "Fill."

(9) "Emergency" means a sudden, urgent, usually unforeseen occurrence or occasion requiring immediate action or attention.

(10) "Erosion" means the wearing away and transporting of earth material as a result of the movement of wind, water or ice.

(11) "Excavation (cut)" means the removal of naturally occurring earth materials by mechanical means, and includes the conditions resulting therefrom.

(12) "Existing grade" means the elevation of the ground surface at a given point prior to excavating or filling.

(13) "Fill (embankment)" means the deposit of soil, rock or other materials placed by man and includes the conditions resulting therefrom.

(14) "Grading" means any excavation, stripping, cutting, filling, stock-piling, or any combination thereof which alters land or vegetation.

(15) "Grading plan" means a plan prepared in accordance with this chapter showing grading and related work.

(16) "Grading work" means grading and related work, such as, but not limited to, drainage improvements and erosion and sediment control.

(17) "Nonstormwater discharge" means any discharge that is not entirely composed of stormwater.

(18) "Parcel (lot)" means land described as a lot or parcel in a recorded deed or shown as a lot or parcel on a subdivision map or parcel map on file in the county recorder's office.

(19) "Permit" means a written grading permit issued pursuant to this chapter authorizing certain grading work.

(20) "Permittee" means any person to whom a permit is issued pursuant to this chapter.

(21) "Rainy season" means the period of the year during which there is a substantial risk of rainfall. For the purpose of this chapter, the rainy season is defined as from October 15 to April 15, inclusive.

(22) "Sedimentation" means the process by which mineral or organic matter is removed from its site of origin, transported and deposited by water, wind, or gravity.

(23) "Site" means any lot or parcel of land or combination of contiguous lots or parcels of land, whether held separately or joined together in common ownership or occupancy, where grading is to be performed or has been performed.

(24) "Slope" means an inclined ground surface. The inclination of which may be expressed as the ratio of horizontal distance to vertical distance.

(25) "Soil." See "Earth."

(26) "Top of bank." See "Bank."

(27) "Watercourse" means any natural or manmade channel for transporting water, including the streambed and the banks, whether continuously flowing or intermittent.

(Ord. 2802 § 2 (part), 1983)

(Ord. No. 3631, § I, 2015)

For the purposes of this chapter, the following activities, in addition to those enumerated in Section 23.08.026, shall require a permit:

(1) Artificial movement of over two hundred fifty cubic yards of earth;

(2) Artificial movement of earth which creates a roadway or access drive whose length exceeds two hundred fifty feet or whose longitudinal slope exceeds twenty percent;

(3) Artificial movement of earth leaving any cut bank over eight feet in vertical height, or any cut below a line sloping down at a grade of two horizontal to one vertical from the ground at any property line (see sketch);

(4) Filling in the following manner:

(a) Artificial movement of earth leaving a fill earth bank over three feet in vertical height, or filled earth over three feet deep (see sketch), or

(b) Artificial addition of earth over one foot in vertical height placed on terrain with a slope greater than five horizontal to one vertical (see sketch), or

(c) Artificial addition of earth above a line sloping up at a grade of two horizontal to one vertical from the ground at any property line (see sketch);

[Figure]

(5) Movement of earth within, or along the banks of, any watercourse or within fifty feet from the top of any watercourse at locations within the "city-centered corridor" or one hundred feet from the top of bank of any watercourse at locations within the "inland rural corridor" as identified within the Marin countywide plan;

(6) Removal, plowing under, or burial of over ten thousand square feet of vegetation on slopes exceeding fifteen percent.

(Ord. 2959 § 2 (part), 1987)

Within the unincorporated territory of Marin County, there exists a number of subdivisions which were plotted and recorded prior to the adoption of the county's first subdivision ordinance on April 3, 1953 (Ordinance 640) and which subdivisions created legal lots of record. However, portions of these subdivisions were not physically developed or improved. In numerous instances the designated streets have not been improved, were mapped without regard to topography, soil conditions, potential or actual slides, presence of drainage ways and other safety concerns; and such streets, where they exist, were not graded and paved and utilities including electric power, water mains, sanitary sewer lines and fire hydrants were never installed.

Continuing development and buildout of the subdivisions which contain these paper streets has resulted in less-than-adequate facilities for fire suppression vehicles, turnaround facilities for fire suppression vehicles, and other service vehicles. There exists inadequate provision for: on-street parking, fire hydrants, drainage facilities, existing vegetation management, soils conditions, landscaping and watercourses. The increased buildout rate has resulted in traffic burdens within adjoining and nearby established residential areas due to the absence of a traffic circulation plan when such subdivisions were plotted.

(1) Grading and excavation permit required for paper streets; artificial movement of earth or any other activities resulting in the creation of a street or roadway. In those instances where a paper street is proposed for development and improvement (e.g., the construction and/or development of a roadway to permit the passage of vehicles or any similar development and improvement within the said paper street right-of-way), said proposed development shall be subject to the securement of a grading and/or excavation permit as set forth in this section and its subparts.

(2) Applicability. The provisions and measures set forth in this section are declared to be applicable on a countywide basis and shall apply in all instances where a paper street is proposed for development; provided, however, that the provisions set forth in this section shall not become effective unless and until the Marin County Board of Supervisors adopts a specific resolution for application of said regulations within all or part of the unincorporated territory of Marin County.

In the event that permits for entitlements are or have been sought for the subject property through the provisions of Section 22.82.027, the provisions of that section shall govern and no grading or excavation permits for the proposed improvements as otherwise required by this section shall be required; provided, that the information required under Section 23.08.026(5) is submitted by and evaluated by the director of public works as part of the review conducted pursuant to Section 22.82.027.

(3) Definitions.

a. "Paper street" means, for the purpose of this section, any street, or portion of a street, road or public vehicular access shown on a subdivision map recorded prior to April 3, 1953, which is undeveloped and/or unimproved, excluding "driveways" as defined in Section 23.08.026(3)(b).

b. "Driveway" means, for the purpose of this section, any private vehicular access extending from any improved and previously paved access and which length does not exceed two hundred fifty feet or whose longitudinal slope does not exceed twenty percent. In those instances where a driveway is proposed to cross or transverse a paper street right-of-way, the information requirements set forth in Section 23.08.026(5)(a through f) shall govern and apply.

(4) Site Preparation and Exceptions. For the purposes of this chapter, any land clearing, including brush and tree removal to permit surveying, grubbing or similar activity which disturbs or alters existing site conditions on either paper street rights-Of-way and/or vacant and undeveloped lots and/or parcels of record adjoining, abutting or indirectly accessed by a paper street (or streets) shall be subject to the grading and excavation permit provisions of this chapter, except as follows:

a. Parcels and/or paper streets on which tree trimming and brush removal are recommended by a local fire district for the purpose of reducing fuel hazards or establishing and/or maintaining emergency access.

b. Parcels and/or paper streets on which the average natural slope does not exceed ten percent, provided the director of public works administratively finds and determines that such brush or tree removal activity will not generate cumulative or adverse impacts when such land clearing exceeds a total of a one thousand square foot area.

c. Minor tree and brush removal on parcels and/or paper streets which, in the opinion of the director of public works is necessary for routine maintenance purposes. This exception permits removal of brush and small trees up to six trees with a trunk diameter of six inches or greater as measured at four feet above ground level.

(5) Information Required for Issuance of Grading and Excavation Permit. In order to assure compliance with county public health and safety standards when a paper street is proposed for development through the grading and excavation permit approval process pursuant to the provisions of this chapter, the following information shall be concurrently submitted, in addition to the standard requirements otherwise set forth in Section 23.08.025.

a. Full and complete topographic information relative to the paper street from the point of its proposed connection with an improved street to service the lot (or lots) proposed for development. All ownership, legal interest, or control of all lots and parcels along the street or streets by the applicant shall be disclosed. In those instances where the owner of said lot or lots owns and possesses, controls, or has a legal interest in, additional lots on the same or connecting paper street, the director of public works may require full and complete topographic information for the length of the paper street or paper streets which services all the parcels under such ownership, legal interest or control. All such ownership interest or other agreements which potentially access the paper street in question shall be revealed and specified at the time of application;

b. A conceptual grading plan for all access and lot improvements showing existing and proposed contours, cuts and fills, and gradients;

c. The location and amount of all proposed on-street parking facilities and the location of turnaround areas for emergency services vehicles (fire trucks, ambulances and law enforcement vehicles);

d. The location, type and size of fire hydrants and other utility services;

e. A conceptual street design and improvement plan for that portion of the street proposed for development. Additional circulation plans and/or traffic studies may be required by the director of public works to allow evaluation of area circulation, alternative roadway connections, and/or additional street extensions when the length of extension and number or location of connections are determined to possibly result in significant impacts on connecting roads, intersections or the surrounding community;

f. The director of public works may require the submission of hydro-logic data and hydraulic analysis if the proposed changes in natural grades, drainage, impervious surface, and removal of vegetation could potentially result in drainage impacts on the subject and other properties. If adverse drainage problems are identified, a mitigation plan may also be required.

(6) Noticing. Notwithstanding the public noticing requirements set forth in this chapter, the director of public works may cause and direct expanded public notice to assure maximum feasible public awareness of any grading and excavation permit approval processed pursuant to Chapter 23.08, et. seq.

(Ord. 2959 § 2 (part), 1987)

(1) Projects which would normally require a permit under the provisions of Section 23.08.025, but which are performed as emergency measures during natural disasters to safeguard life and property and/or public safety may be started immediately. The work shall be reported to the director of public works within three working days following its commencement, a permit sought under the provisions of Section 23.08.060(2) and appropriate measures subsequently completed pursuant to the requirements of any resultant permit.

(2) The following grading shall be exempt from the provisions of this chapter:

(a) Grading done by or on behalf of a public agency that assumes full responsibility for the work;

(b) Maintenance of existing firebreaks and roads to keep the firebreak or road substantially in its original condition;

(c) Grading necessary for agricultural operations unless such grading will create a cut or a fill presenting an undue potential for failure which would endanger any structure intended for human or animal occupancy or any public road, or could obstruct any watercourse or drainage conduit;

(d) Grading in the course of development of a subdivision or land division in accordance with an approved grading plan covered by a subdivision or land division improvement agreement pursuant to Title 20, which is controlled by the provisions of Title 24, "Development Standards";

(e) Surface mining or quarrying in accordance with an approved grading plan and valid permit issued pursuant to Chapter 23.06;

(f) Construction of a dam in accordance with an approved grading plan and valid permit issued pursuant to Chapter 11.04;

(g) Grading within a creek in accordance with an approved grading plan and valid permit issued pursuant to Chapter 11.08;

(h) Grading in accordance with an approved grading plan and a valid street improvement agreement with the county;

(i) Grading in accordance with an approved plan for a county contract approved by the director of public works.

(3) Subject to the determination of the director of public works, and except as otherwise provided. Certain grading operations shall be exempt from the provisions of this chapter when conditions (a) through (d) of this subsection (3) exist:

(a) The work is being performed incidentally to a building permit, except in those instances and circumstances regarding paper streets where Section 23.08.026 otherwise governs, to a building permit or individual sewage disposal permit issued by the county; and

(b) The work is being performed in accordance with approved grading plans and the conditions of such permit; and

(c) No excavation or embankment is being created whose slope exceeds two horizontal to one vertical; and

(d) No excavation or embankment is being created which exceeds twenty feet in vertical height.

Note: Such exemption may be denied by the director where, in his opinion, conditions exist which justify more extensive review under the provisions of this chapter.

(Ord. 2959 § 2 (part), 1987; Ord. 2802 § 2 (part), 1983)

Applicant shall submit to the department of public works the following information: in the instance where a grading permit is required under the provisions of Section 23.08.026, the additional information required in Section 23.08.026(5) shall also be submitted concurrently.

(1) A completed application form as prescribed by the department. The application shall be signed by the owner or such party deemed to be authorized as agent for the owner.

(2) A nonrefundable fee as established in the current "Resolution of the Marin County Board of Supervisors Establishing Fees for Permit Administered by the Department of Public Works," to cover the cost of processing the application, and an inspection fee determined by the director of public works to cover the cost of inspection.

If any work requiring a permit is begun without a permit, the permit fees shall be doubled to compensate for the extra work involved in inspecting completed or partially completed work.

(3) Two Sets of Plans and Specifications. Unless waived by the director of public works, the plans shall be prepared by an engineer licensed by the state of California and shall show the following:

(a) A vicinity sketch or other data which adequately indicates the site location, including locations of creeks, lakes, and wetlands.

(b) Property lines of the property on which the work is to be performed, and the limits of clearing and grading.

(c) Location of all buildings or structures in the vicinity of the proposed work.

(d) Accurate contours showing the topography of the existing ground.

(e) Elevations, dimensions, location, extent and the slopes of all proposed grading shown by contours and/or other means.

(f) Details of all drainage devices, walls or other protective devices to be constructed in connection with, or as a part of, the proposed work.

(g) A notation stating the amount and location of any material to be deposited in areas other than that shown on the plans.

(h) Nature and location of vegetation, including the location, trunk diameter and type of all existing trees in the proximity of the work area which have a trunk diameter of six inches or greater.

(4) Additional Plans and Information. Where the director of public works determines that the proposed work poses undue erosion potential and/or risk to adjacent property, roadways, the watershed or related elements, he or she may require additional plans, reports and information such as any, or all, of the following:

(a) A map showing the drainage area and estimated runoff of the area of work and adjacent areas.

(b) Revegetation plans and specifications.

(c) Soils Investigation Report. Such report shall include data regarding the nature, distribution and strength of existing soils, conclusions and recommendations for grading procedures and design criteria.

(d) Geological Report. Such report shall include an adequate description of the geology of the site and conclusions and recommendations regarding the effect of geologic conditions on the proposed work and adjacent areas.

(e) Erosion and Sedimentation Control Plan (ESCP). Such plan shall be in accordance with Chapter 24.04, Article VIII, Grading, and shall include all temporary and permanent devices necessary to avoid drainage and erosion related problems both during and after construction. Such plans may be required to show maps, designs, specifications, schedules and water quality control measures. Winterization plans shall be required where applicable if construction spans the rainy season. The project applicant will follow the most recent version of the Marin County Stormwater Pollution Prevention Program (MCSTOPPP) Construction Erosion and Sediment Control Plan Applicant Package to prepare the ESCP, and shall include at a minimum the items shown in Section 24.04.625.

The public works director shall require modifications of approved erosion control plans if during the course of construction at a site unanticipated conditions occur or the plans prove inadequate for the intended purpose.

An erosion and sedimentation control plan shall be required year-round for projects:

1. Subject to a grading permit.

2. Subject to a building permit or other permit where the agency determines that the project has the potential for significant erosion and/or significant nonstormwater discharges of sediment and/or construction site waste.

3. Where the graded portion of the site includes more than ten thousand square feet of area having a slope greater than fifteen percent.

4. Where grading will occur within fifty feet from the top of bank of any watercourse at locations within the "city-centered corridor" or one hundred feet from the top of bank of any watercourse at locations within the "inland rural corridor" as identified within the Marin countywide plan.

(5) Security Deposit. Where the director of public works determines that due to certain circumstances such as, but not limited to, an unusually large scope of work and/or time constraints associated with the commencement of the rainy season, there is an undue potential for the project to not be completed in a timely, workmanlike manner, the applicant may be required to post a cash deposit or other such security as approved by the director of public works in an amount determined sufficient to insure compliance with the conditions of the permit and repair of any damage which may be caused as a result of the work. In the case of failure of the permittee to comply with the conditions of the permit or repair damage within a reasonable time after notification to do so by the department of public works, the department may have such work done and deduct the cost therefrom from the deposit.

(Ord. 2959 § 2 (part), 1987: Ord. 2802 § 2 (part), 1983)

(Ord. No. 3631, § I, 2015)

Notice of all applications for grading permits shall be given by causing a notice thereof to be mailed to all persons whose names and addresses are shown on the last equalized assessment roll of the county as owners of real property contiguous to the property associated with the subject application, also to affected public agencies and interested community groups in the vicinity of the subject project.

(Ord. 2802 § 2 (part), 1983)

In cases where the work creates a cut or a fill less than twenty feet in vertical height, the application and all collateral material shall be reviewed by the director of public works who shall approve, conditionally approve or deny the application where the work is associated with any of the following:

(1) Filling in conformance with an approved master plan, development plan, tentative subdivision map, preliminary land division map or design review plan, use permit, or coastal permit;

(2) Grading of a corrective or emergency nature;

(3) Excavating for archaeological purposes;

(4) Work which the director of public works determines to be minor or incidental;

(5) Grading within the provisions of Section 23.08.025, where there are significant environmental issues as determined by the environmental review process, shall be referred to the planning commission and acted upon in accordance with Section 23.08.070. In all other cases, the director of public works shall consider and address each of the following issues in his decision on the application:

(a) Whether the proposed work is compatible with any adopted general plan, specific plan or applicable zoning,

(b) Whether the proposed excavating, grading or filling is the minimum necessary to achieve the contemplated purpose,

(c) Whether the proposed work will unduly and unnecessarily:

1. Destroy, or accelerate the destruction of habitats essential to wildlife or benefit to the public

2. Create unsightly scars or severely diminish the scenic beauty of the land in a manner which will adversely affect the aesthetic qualities of the county

3. Interfere with or diminish natural waterways by siltation, sedimentation or bank erosion.

(Ord. 2802 § 2 (part), 1983)

In all other cases, or in cases within the ambit of Section 23.08.060 (where the director of public works determines that significant environmental problems are involved), the application shall be referred to the planning commission which may approve, conditionally approve, or deny the application. The planning commission shall consider and address each of the following issues in their deliberations:

(1) Whether the proposed work is compatible with any adopted general plan, specific plan or applicable zoning;

(2) Whether the proposed excavating, grading or filling is the minimum necessary to achieve the contemplated purpose;

(3) Whether the proposed work will unduly and unnecessarily:

(a) Destroy, or accelerate the destruction of habitats essential to wildlife of benefit to the public,

(b) Create unsightly scars or severity diminish the scenic beauty of the land in a manner which will adversely affect the aesthetic qualities of the county, (c) Permanently interfere with or diminish natural waterways, by siltation, sedimentation or bank erosion.

(Ord. 2802 § 2 (part), 1983)

The director of public works and/or the planning commission shall deny the permit application if:

(1) The proposed work will endanger any private or public property, result in the depositing of debris on any public way, or adversely affect functioning of any existing drainage course or drainage channel;

(2) The land area for which the grading is proposed, or any land affected thereby, is subject to geological or flood hazards to a degree that no amount of corrective work can eliminate or substantially reduce the hazards to the property endangered thereby.

(Ord. 2802 § 2 (part), 1983)

A permit may be issued subject to such conditions as the director of public works or the planning commission deems necessary to avoid slides, caving, excess settlement, erosion, sedimentation, loss of wildlife habitat, flooding or other related hazards. Such conditions may include, but are not limited to, maximum bank slopes, controlled compaction of fills, retaining walls, interception of surface drainage, sub-surface drains, other drainage structures, erosion and sedimentation control measures, storm damage precautions, preservation or restoration of existing vegetation, protective plantings, landscaping, control of dust and mud, protection of traffic, and cleanup and removal of debris.

(Ord. 2802 § 2 (part), 1983)

If the work is done in accordance with an approved master plan, development plan, tentative subdivision maps, preliminary land division map or design-review plan, use permit or coastal permit, an additional bond may be required to be deposited with the department of public works. This bond shall be sufficient in amount to cover the cost of restoring the area of work to its natural appearance or state if the approval expires prior to final completion of the work.

(Ord. 2802 § 2 (part), 1983)

Where the work authorized by any permit is not commenced within six months of the date of issuance or as otherwise indicated on the face of the permit, or where the work is not completed within two years of the date of issuance, or sooner if indicated on the face of the permit, except where extensions of time are specifically allowed in writing by the director of public works, the permit shall expire and become void.

(Ord. 2802 § 2 (part), 1983)

All work shall be performed in accordance with the approved plans and specifications and any conditions included as a part of the permit. Any changes or modifications shall have prior written approval of the director of public works.

Notification of issuance of permits shall be posted in public view at the site and shall indicate that approved plans and specifications are available for review at the department of public works. Failure to comply with such plans and specifications shall result in suspension or revocation of the permit and possible penalties as provided in this code.

(Ord. 2802 § 2 (part), 1983)

Violators of this chapter shall be punished as provided for in Title 1.

(Ord. 2802 § 2 (part), 1983)

The appeal procedure contained in Chapter 22.89 shall apply to all actions taken under this chapter, except that actions of the director of public works granting or denying a permit may be appealed in writing, within five days after the action, to the planning commission.

(Ord. 2802 § 2 (part), 1983)