San Jose Municipal Code Ch. 9.54 Discing Restriction

A. Except as specifically provided otherwise in Sections 9.54.020, 9.54.030 and 9.54.040, it shall be unlawful for any person or entity to disc, plow or otherwise break into or turnover soil upon any real property within the city at any time or for any purpose, including without limitation for weed or vegetation management or abatement, when the real property, or portion thereof, meets one of the following criteria:

1. The real property is two acres or greater in size or, together with any contiguous real property, constitutes a part of an area that is two acres or greater in size and that real property, or the portion thereof that constitutes a part of an area that is two acres or greater in size, is vacant; or

2. There is known to be one or more occupied burrowing owl burrows present on a real property of any size at any time within the immediately preceding thirty-six-month period.

B. For the purposes of this chapter, real property shall be considered contiguous even if it is separated by a street, utility easement, railroad right-of-way or other similar feature, element or facility.

C. For the purposes of the chapter, a burrowing owl burrow shall be considered occupied when a burrowing owl is currently using the burrow or has used the burrow at any time within the immediately preceding thirty-six-month period, even if the burrow is temporarily unoccupied.

(Ord. 26419.)

The provisions of Section 9.54.010 shall not apply to the discing or plowing activities described in Section 9.54.010 performed by a person on:

A. That portion of real property that is actively being used for the production of agricultural products when the discing activity is performed in connection with that agricultural production activity; or

B. Real property that is less than two acres in size and upon which a one-family or two-family dwelling is located that is being used solely for residential occupancy; or

C. That portion of real property that is disced for fire break purposes along the perimeters of real property adjacent to roadways, creeks, buildings and occupied properties, provided, however, that such fire breaks may not exceed thirty feet in width measured from the nearest property line; or

D. Real property located in areas that have been identified by the city, upon the advice of a qualified ornithologist, as having little or no potential as burrowing owl nesting habitat. The locations and boundaries of these areas, and any changes, deletions or other modifications thereto, shall be set forth in a resolution adopted by the city council.

(Ord. 26419.)

This chapter is not intended to and shall not be used or interpreted to prevent or prohibit the development or improvement of real property pursuant to and in full compliance with all planning, building or grading permits or approvals.

(Ord. 26419.)

A. Notwithstanding any specific provision of this chapter to the contrary, whenever the provisions of federal or state law, or regulations duly promulgated thereunder, are more restrictive than or cover matters not addressed by this chapter, then those provisions of the federal or state law or regulation shall prevail, apply and control.

B. This chapter shall not prohibit the discing of lands that are required by the state or federal government, or an agency thereof, as a condition of a permit to relocate or otherwise protect burrowing owls or other animal or plant species.

(Ord. 26419.)