San Rafael Municipal Code Ch. 17.10 Dumping, Dredging and Construction Within Tidal Waterways

San Rafael tidelands, shorelines, waterways, canals, beaches, or salt marshes are vital natural resources which can provide great benefits to present and future human generations. They offer scenic views, open space, recreational activities such as fishing, swimming, boating, walking, wildlife habitats, opportunities for water transportation and sites for homes and for water-oriented resorts and industries. They fulfill an indispensable role in preserving the climate and air purity of the city.

These benefits could be destroyed or seriously diminished by uncontrolled filling, excavation or construction. Therefore, it is the purpose of this title to encourage the fullest development of these potential benefits with a minimum of physical disturbance and to set forth the standards and procedures by which filling, excavation and construction in tideland areas will be controlled.

(Ord. 1017 § 1 (part), 1971).

This title shall apply to all portions of San Pablo Bay and San Rafael Bay, tidelands, shorelines, waterways, canals, beaches or salt marshes within the city which are below an elevation of 7.5 feet mean lower low water datum and to contiguous land between that elevation line and either a point one hundred feet (100') inland or the nearest publicly maintained road, whichever is closer. The following items shall not be subject to this title:

(1) Any structure, fill or excavation which is not within and which does not encroach on the tidelands and waterways as defined herein;

(2) Any emergency work necessary to prevent or to minimize imminent damage to land or improvements from floodwaters. Such emergency work shall be reported in writing within ten (10) days after the start of such work to the department of public works;

(3) Any structure, fill or excavation which the director of public works or his designee ("director") finds to be minor or incidental, including repair or replacement in kind of an existing structure or structures not requiring any new fill or excavation;

(4) Any structure, fill or excavation which has been approved prior to May 17, 1971, as part of any application, action or permit by the planning commission or the planning director, except that such structure, fill or excavation shall not be deemed to have been approved for a building permit. Where a development is subject to other provisions of the municipal code, approval of any fill, excavation, or structure within the scope of this title, which is contained in the development, shall be subject to the findings of subsection (4) of Section 17.10.040;

(5) Any structure, fill or excavation which is behind secure dikes, which existed prior to June 16, 1971, and which is normally not subject to tidal action by virtue of the dike, or which is only temporarily under tidal action due to defective tide gates;

(6) Within creeks, estuaries and rivers the applicability of this title shall extend downstream from certain defined points as follows:

(A) San Rafael Canal: The bridge at the northbound off-ramp of Highway 101 eastward (Irwin Street),

(B) The north fork of Las Gallinas Creek: Highway 101 eastward,

(C) Any other navigable waters annexed by the city.

(Ord. 1017 § 1 (part), 1971).

(Ord. No. 1922, § 5, 6-16-2014)

Notwithstanding the provisions of any other city ordinance, it is unlawful for any person, firm, corporation or public agency to permit, cause to permit, do or cause any of the following:

(1) Dump, deposit or construct within or fill with materials, dirt, earth, mud, garbage, untreated sewage, solid waste, vessels or parts of vessels of any kind, or any material whatsoever in or on any of the tidelands designated in Section 17.10.020, except in compliance with Section 17.10.040.

(2) Excavate, dredge or remove any dirt, earth, mud, sand, gravel or any other material from any of the tidelands designated in Section 17.10.020, except in compliance with Section 17.10.040.

(3) Construct or place any pier, dock, wall, bulkhead, breakwater or other structure on any of the tidelands designated in Section 17.10.020, except in compliance with Section 17.10.040.

(Ord. 1813 § 2, 2003: Ord. 1017 § 1 (part), 1971).

(Ord. No. 1922, § 6, 6-16-2014)

(1) Filing and Content of Application for a Tidelands Permit. Application for fill, excavation or structures within tidelands as defined in Section 17.10.020 shall be made to the department of public works in the form of an application for a tidelands permit. The application shall include information showing existing and proposed grades, extent and amount of proposed fill or excavation, location of all existing and proposed structures, a tentative plan for the future development of the area, and sufficient detail to allow a determination of the impact of the proposal on the navigability, appearance and safety of the waterways.

(2) Action by Director of Public Works.

(a) If the application includes only a structure and/or if the proposed fill or excavation covers less than one (1) acre, the director of public works or his designee ("director"), shall approve, conditionally approve or deny the application within ninety (90) days after the date the application is deemed complete, unless a later date is agreed to by the applicant.

(b) The director shall provide not less than ten (10) days written notice by first class mail to occupants and to owners (as shown on the county assessor's latest tax roll) of properties located within three hundred feet (300') of the proposed structure, fill or excavation and to any homeowners' association in the neighborhood of the proposed structure, fill or excavation, advising of the filing of an application for a tidelands permit, describing the proposed structure, fill or excavation and its location, and providing an opportunity to submit written comments regarding the application to the city prior to the director's action on the application. Failure to mail or receive notice shall not invalidate any proceedings under this title.

(c) The director shall consider, in arriving at his decision, applicable regional and state plans for tidal waterways and the criteria, standards, and policies developed by agencies administering such regional and state plans, applicable CEQA requirements, and any written comments submitted by interested parties.

(3) Action by Planning Commission.

(a) If the proposed fill or excavation covers one (1) acre or more, the planning commission shall consider the application and the recommendations of the director thereon. If the proposed project includes any other applications that must be reviewed and acted upon by the planning commission, the application for tidelands permit shall be processed and acted upon concurrently with such other applications.

(b) The planning commission shall consider the application at a public hearing set after not less than ten (10) days written notice by first class mail to occupants and to owners (as shown on the county assessor's latest tax roll) of properties located within three hundred feet (300') of the proposed fill or excavation and to any homeowners' association in the neighborhood of the fill or excavation. Failure to mail or receive notices shall not invalidate any proceedings under this title.

(c) The planning commission shall consider, in arriving at its decision, applicable regional and state plans for tidal waterways and the criteria, standards, and policies developed by agencies administering such regional and state plans, applicable CEQA requirements, and any other oral or written evidence submitted at or prior to the public hearing.

(4) Findings. The director or the planning commission shall approve or conditionally approve applications where it is found that:

(a) The encroachment of the tidelands is the minimum necessary to achieve the purpose of the proposed work;

(b) The proposed fill, excavation or construction will not unduly and unnecessarily:

(i) Inhibit navigation, or access to publicly owned tidelands,

(ii) Cause, or increase the likelihood of, water pollution,

(iii) Cause, or increase the likelihood of, flooding of adjoining lands,

(iv) Destroy, or accelerate the destruction of habitats essential to species of fish, shellfish and other wildlife of substantial public benefit,

(v) Diminish the scenic beauty of the shoreline in a manner which will impede future construction of parks, boat harbors and recreation facilities,

(vi) Create a safety hazard in connection with settlement of fill or earthquakes, or

(vii) Diminish natural waterways by siltation, sedimentation or bank erosion;

(c) The proposal is in substantial harmony with any adopted city general plan or specific plan;

(d) Public benefits will be created to offset some of the detriments which may be caused by the nature of the proposal. However, this finding is not required:

(i) Where the application covers lands wholly above elevation 7.5 feet mean lower low water datum, or

(ii) Where the size or potential uses of the parcel are so limited that creation of a public benefit would be infeasible and where the amount and effect of fill, excavating or structures are minimal,

(iii) If the water frontage of any presently existing parcel is less than two hundred fifty feet (250') or its area is less than two and one-half (2½) acres, in the absence of any evidence to the contrary, it shall be presumed that there will be no detriments which are required to be offset by public benefits.

(iv) These public benefits may be realized, through development of new recreational opportunities; or provision of new public access to the water; or enhancement of shoreline appearance; or establishment of water transportation; or facilities for land or air transportation where all other alternatives have been exhausted; or construction of water-oriented industry or development of marine food supplies or other benefits considered by the planning commission to be of comparable importance.

(6) Expiration and Extension of Tidelands Permits. A tidelands permit shall expire one (1) year from the effective date of the approval, unless a different expiration date is stipulated at the time of approval. Prior to the expiration of such a permit, the applicant may apply to the department of public works for an extension. The director may make minor modifications of the permit at the time of extension if he finds that there had been a substantial change in the circumstances surrounding the original approval. Extensions may be granted for a period of no more than one (1) year from the time of expiration of the original permit. If a building permit or excavation permit was issued during the effective life of a tidelands permit the expiration date of the tidelands permit shall be automatically extended to concur with the expiration date of the building permit or excavation permit.

(Ord. 1243 § 1, 1976; Ord. 1017 § 1 (part), 1971).

(Ord. No. 1922, § 7, 6-16-2014)

Guarantees, sureties or other evidence of compliance may be required in connection with the approval of a tidelands permit.

(Ord. 1017 § 1 (part), 1971).

Failure to comply in any respect with an approved permit shall constitute grounds for the immediate stoppage of work involved in the noncompliance.

(Ord. 1017 § 1 (part), 1971).

Chapter 14.84 shall apply to all appeals regarding actions taken under this title. Appeals from the fill committee shall follow the procedure set forth in Section 14.84.020.

(Ord. 1017 § 1 (part), 1971).