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Ordinance 2012-13ORDINANCE NO. 2012-13 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY AMENDING THE GILROY CITY CODE ADDING CHAPTER 12.6 -- HABITAT CONSERVATION PLAN, TO ADOPT BY REFERENCE AND IMPLEMENT THE SANTA CLARA VALLEY HABITAT CONSERVATION PLAN/NATURAL COMMUNITY CONSERVATION PLAN INCLUDING AUTHORITY TO COLLECT THE LOCAL DEVELOPMENT MITIGATION FEES ADOPTED BY THE SANTA CLARA VALLEY HABITAT AGENCY FROM PROJECT APPLICANTS AND TO REMIT THE FEES TO THE AGENCY FOR FUNDING THE PRESERVATION OF NATURAL ECOSYSTEMS IN ACCORDANCE WITH THE PLAN WHEREAS, the Santa Clara Valley Habitat Conservation Plan/Natural Community Conservation Plan ( "HCP/NCCP ") has been developed to preserve the ecosystems of the majority of the central and southern portion of Santa Clara County which encompasses lands within unincorporated Santa Clara County, including the central portion of the Santa Clara Valley, portions of the Santa Cruz Mountains to the west, portions of the Diablo Range to the east, the Coyote watershed and portions of the Pajaro watershed, and a significant portion of the Guadalupe watershed ( "Plan Area ") to conserve and prevent further endangerment of the plant and animal species that are dependent upon those ecosystems and to comply with federal and state legal requirements for such preservation; and WHEREAS, the HCP/NCCP was prepared by the County of Santa Clara, the Cities of Gilroy, Morgan Hill, and San Jose, the Santa Clara Valley Water District, and the Santa Clara Valley Transportation Authority (collectively the "Local Partners ") in association with the U.S. Fish and Wildlife Service and the California Department of Fish and Game, and in consultation with stakeholder groups and the general public; and WHEREAS, the County of Santa Clara and the Cities of Gilroy, Morgan Hill, and San Jose formed the Santa Clara Valley Habitat Agency, a joint powers agency ( "Implementing Entity "), to implement the HCP/NCCP on behalf of the Local Partners, obtain long -term authorized Take coverage of covered plant and wildlife species through permits from the U.S. Fish and Wildlife Service and the California Department of Fish and Game for the Local 1AM1069318.1 ORDINANCE NO. 2012 -13 100912-04706163 4 Partners' own activities, and extend such authorized Take coverage to private project applicants under their jurisdiction; and WHEREAS, on October 15, 2012, the City Council certified the Environmental Impact Report (" EIR ") for the HCP/NCCP project and made appropriate findings pursuant to CEQA. WHEREAS, the HCP/NCCP was adopted by the City Council on October 15, 2012; and WHEREAS, the purpose and intent of this ordinance is to: • protect vegetation communities and natural areas within the Plan Area which are known to support endangered, threatened, or key sensitive populations of plant and wildlife species; • enable the City to achieve the conservation goals set forth in the HCP/NCCP; • create a system of reserves which will provide for permanent open space, community edges, and habitat conservation for species covered by the HCP/NCCP; • preserve the ability of affected property owners to make reasonable use of their land consistent with the requirements of applicable laws, which include but are not limited to the National Environmental Policy Act ( "NEPA ") (42 U.S.C. §§ 4321 - 4347), the California Environmental Quality Act ( "CEQA ") (Public Resources Code § 21000 et seq.), the Federal Endangered Species Act ( "ESA ") (16 U.S.C. §§ 1531 - 1544), the California Endangered Species Act ( "CESA ") (Fish & Game Code § 2050 et seq.), and the California Natural Community Conservation Planning Act ( "NCCPA ") (Fish & Game Code §§ 2800 - 2835); • ensure the collection of the Implementing Entity's local development mitigation fees to assist in the maintenance of biological diversity and the natural ecosystem processes that support this diversity; • provide a regulatory mechanism for applying the HCP/NCCP conditions of approval to public and private development projects to ensure that those projects will not have adverse impacts upon the sensitive plant and animal species covered under the Plan; and \LAC\1069318.1 ORDINANCE NO. 2012 -13 100912-04706163 • maintain economic development within the County by providing a streamlined regulatory process for sensitive species impacts so development can proceed in an orderly process; and WHEREAS, the Gilroy General Plan, which was adopted by the City Council on June 13, 2002 and has been amended from time to time ( "General Plan") incorporates the goals of the HCP/NCCP, and includes specific strategies to further the goals of the HCP/NCCP as follows: • Policy 20.01, Open Space Areas; Policy 20.02, Creek Protection. Ensure protection of creeks (including small canyons and seasonal creeks) that flow through the area, preserving their natural drainage function through adequate setbacks and easements. Action 20.13. Habitat and Urban Streams /Creek Protection. Comply with State and Federal laws regarding habitat protection to identify and protect areas of biological value, including creeks, native grasslands, oak woodlands and native riparian communities. • Policy 1.09, Clustered Development; Policy 20.01, Open Space Areas; Policy 20.03, Plant and Wildlife Habitats; Policy 20.04, Rare and Endangered Species, Action 20.0 Habitat Protection Ordinance, Action 20.1) Consultation on Fish and Wildlife Impacts. Ensure protection of natural resource and wildlife habitat areas. • Policy 1.09, Clustered Development; Policy 20.01, Open Space Areas. Respect the natural topography to the greatest extent possible, retaining significant natural features such as hillsides, trees, and heavily vegetated areas. • Hecker Pass Specific Plan Development Controls and Design Standards: Open Space. A variety of open space areas should be created through the design and development process, including active recreation areas, habitat protection areas, agricultural areas, scenic open spaces, and neighborhood open spaces (interspersed between clusters of residential development). For all open spaces, the Specific Plan should ensure (a) that open space dedications are permanent, and (b) that appropriate mechanisms are in place to address ongoing maintenance and management issues. 1AM1069318.1 ORDINANCE NO. 2012 -13 100912-04706163 4 Therefore, adoption of the HCP/NCCP and related actions, including adoption of this ordinance, is consistent with the Gilroy General Plan ( "General Plan"); and WHEREAS, the findings set forth herein are based on the Gilroy General Plan, the HCPlNCCP and the studies referenced therein, and the estimated acquisition, management and maintenance costs for reserve lands as set forth in the HCP/NCCP (a copy of the HCP/NCCP is on file in the Community Development Department); and WHEREAS, the California Constitution authorizes the City to enact measures that protect the health, safety, and welfare of its citizens; and WHEREAS, Government Code section 66000 et seq. authorizes the Implementing Entity to impose fees and other exactions to provide necessary funding for public facilities and management required to mitigate the adverse effects of new development projects on species and their habitats within the Plan Area; and WHEREAS, in accordance with the Implementing Agreement, the Implementing Entity may authorize the City to collect such fees from project applicants on behalf of the Implementing Entity and remit them to the Implementing Entity. THE CITY COUNCIL OF THE CITY OF GILROY, STATE OF CALIFORNIA, ORDAINS AS FOLLOWS: Chapter 12.6 is hereby added to the City of Gilroy Municipal Code to read as follows: CHAPTER 12.6 HABITAT CONSERVATION PLAN Sections: 12.6.1 Purpose 12.6.2 Adoption of Habitat Conservation Plan/Natural Community Conservation Plan by Reference 1LAC11069318.1 ORDINANCE NO. 2012-13 100912-04706163 y 12.6.3 Definitions 12.6.4 Application to Covered Activities 12.6.5 Mitigation Fees 12.6.6 Authorized Take Coverage 12.6.7 Guidelines 12.6.8 Interpretation 12.6.9 Operative Date 12.6.1. Purpose. The purpose of this Chapter is to implement the Santa Clara Valley Habitat Conservation Plan/Natural Community Conservation Plan ( "HCP/NCCP ") and the associated Implementing Agreement and Take Permits in order to provide a regulatory framework for promoting the protection and recovery of natural resources, including Covered Species, while streamlining the permitting process for both publicly funded and privately funded planned development in the City of Gilroy. The HCP/NCCP was developed by the County of Santa Clara, the Cities of Gilroy and Morgan Hill, the Santa Clara Valley Water District, and the Santa Clara Valley Transportation Authority (collectively the "Local Partners ") under the guidance of the U.S. Fish and Wildlife Service and the California Department of Fish and Game, and in consultation with stakeholder groups and the general public. As a result of the adoption of the HCP/NCCP by the City, the City (among the other Local Partners) is the recipient of long -term endangered species permits /authorized Take coverage from the U.S. Fish and Wildlife Service and the California Department of Fish and Game for the City's own activities. In addition to coverage of its own public projects, the City will be able to extend authorized Take coverage to private Project Applicants under its jurisdiction. Rather than separately permitting and mitigating individual projects, the HCP/NCCP evaluates natural resource impacts and mitigation requirements comprehensively in a manner that is more efficient and effective for at -risk species and their essential habitats. This approach allows the City to streamline mitigation requirements into one comprehensive program. The Take coverage authorized by the U.S. Fish and Wildlife Service ( "USFWS ") and the California Department of Fish and Game ( "CDFG ") also provides assurances that no further commitments of funds, land, or water will be required to address impacts on Covered Species beyond that 1LAC11069318.1 ORDINANCE NO. 2012-13 100912-04706163 described in the HCP/NCCP to address changed circumstances as long as the HCP/NCCP is properly implemented. In addition to strengthening local control over land use and species protection, the HCP/NCCP provides a more efficient process for protecting natural resources by creating new habitat reserves that will be larger in scale, more ecologically valuable, and easier to manage than the individual mitigation sites created under the current approach. This more efficient and streamlined approach to obtaining authorized Take coverage for both public and private projects will significantly reduce the time and resources previously required to obtain Take coverage on an individual project -by- project basis. All Covered Activities that occur within the Local Plan Area will be subject to applicable conditions and fees described in the HCP/NCCP unless the CDFG and USFWS have determined that the activity is not subject to, has already received the necessary take authorizations pursuant to, or has otherwise complied with federal and state endangered species laws, as verified by the Implementing Entity and described in Chapter 6.2 of the HCP/NCCP. 12.6.2. Adoption of Habitat Conservation Plan/Natural Community Conservation Plan by Reference. The HCP/NCCP is incorporated by reference as though fully set forth herein. Complete copies of the HCP/NCCP are available for inspection at the Office of the City Clerk and the Community Development Department. 12.6.3. Definitions. The definitions set forth in this section shall govern the application and interpretation of this division. Words and phrases not defined in this section shall be interpreted so as to give this division its most reasonable application. (a) "Building Permit" means a building permit for a building or structure, including a partial permit such as a foundation -only permit, a grading permit or any other ministerial permit or approval for a project that authorizes a ground- disturbing activity for a Covered Activity. (b) "Covered Activity" means any activity defined in Section 2.3 of Chapter 2 of the HCP/NCCP as a covered activity and not otherwise exempted from the requirements of the HCP/NCCP as provided in the HCP/NCCP. UMI069318.1 ORDINANCE NO. 2012 -13 100912-04706163 N (c) "Covered Species" means the species, listed and non - listed, whose conservation and management are provided for in the HCP/NCCP and for which incidental Take is authorized by the Wildlife Agencies pursuant to the Take Permits. Covered Species are also listed in Exhibit A to the Implementing Agreement. (d) "Habitat Conservation Plan/Natural Community Conservation Plan" or "HCP/NCCP" means the Santa Clara Valley Habitat Conservation Plan/Natural Community Conservation Plan adopted by the City Council on October 15, 2012, and any amendments thereto. (e) "Implementing Agreement" means that agreement made and entered into by and among the United States Fish and Wildlife Service ( "USFWS ") of the United States Department of the Interior, the California Department of Fish and Game ( "CDFG ") of the State of California Natural Resources Agency, the Santa Clara Valley Habitat Agency (the "Implementing Entity "), the County of Santa Clara ( "County "), the City of San Jose ( "San Jose "), the City of Gilroy ( "Gilroy "), the City of Morgan Hill ( "Morgan Hill "), the Santa Clara Valley Water District ( "Water District "), and the Santa Clara Valley Transportation Authority ( "VTA ") that defines the parties' respective roles and responsibilities and provides a common understanding of actions that will be undertaken to implement the HCP/NCCP. (f) "Implementing Entity" means the Santa Clara Valley Habitat Agency formed by and among the County of Santa Clara and the Cities of Gilroy, Morgan Hill, and San Jose pursuant to the Joint Powers Act, Gov. Code § 6500 et seq. (g) "Local Plan Area" means that portion of the geographic study area defined in the HCP/NCCP that lies within the City of Gilroy municipal boundary. (h) "Mitigation Fees" or "Fees" means any Habitat Plan fee(s) that applies to Covered Activities in the Local Plan Area as adopted by the Implementing Entity in accordance with Chapter 9 of the HCP/NCCP and the fee studies in support thereof, and any amendments to those fees, unless otherwise exempted from the fee requirements of the HCPlNCCP by the Implementing Entity. (i) "Planning Permit" means any discretionary permit or approval that authorizes a ground - disturbing activity for a Covered Activity including, but not limited to, a tentative subdivision map, parcel map, conditional use permit, architecture and site approval, building site approval, grading permit or any other discretionary permit, excluding general plan amendments, zoning and rezoning, annexation, specific plans, and area development policies. 1LAC\1069318.1 ORDINANCE NO. 2012 -13 100912-04706163 E:3 0) "Project Applicant" means any person or entity applying for a Planning Permit or Building Permit for a project authorizing a ground - disturbing activity for a Covered Activity, including any person or entity opting in to the HCP/NCCP pursuant to Chapter 6.2 of the HCP/NCCP. (k) "Take" and "Taking" have the same meaning provided by the Federal Endangered Species Act ( "ESA ") (16 U.S.C. §§ 1531 -1544) and its implementing regulations with regard to activities subject to the ESA, and also have the same meaning provided in section 86 of the California Fish and Game Code with regard to activities subject to the California Endangered Species Act ( "CESA ") (Fish & Game Code § 2050 et seq.), and the California Natural Community Conservation Planning Act ( "NCCPA ") (Fish & Game Code §§ 2800 - 2835). (1) "Take Permits" means the federal incidental Take permit issued by USFWS to the Implementing Entity, the County, San Jose, Gilroy, Morgan Hill, the Water District, and VTA (collectively, "Permittees ") based on the HCP/NCCP pursuant to Section I0(a)(1)(B) of the ESA, and the state incidental Take permit issued by CDFG to the Permittees based on the HCP/NCCP pursuant to Section 2835 of the California Fish and Game Code. 12.6.4. Application to Covered Activities. All Project Applicants for Covered Activities within the Local Plan Area shall comply with the conditions on Covered Activities listed in Chapter 6 of the HCP/NCCP. Each Planning Permit application (or Building Permit application where no Planning Permit is required) for a Covered Activity in the Local Plan Area shall include details of the methods and timing in which the project will comply with the HCP/NCCP in the form and manner required by the Director of the Community Development Department. Applicable conditions on Covered Activities from Chapter 6 of the HCP/NCCP as well as other measures required to implement the conservation strategy of the HCP/NCCP shall be included in each Planning Permit (or Building Permit where no Planning Permit is required) approval for a Covered Activity. 12.6.5. Mitigation Fees. (a) As a condition of each Planning Permit (or Building Permit where no Planning Permit is required) for a Covered Activity in the Local Plan Area, the Mitigation Fees shall be paid in full by the private Project Applicant to the City no later than the date of issuance by the City of a ILAM1069318.1 ORDINANCE NO. 2012 -13 100912 - 04706163 0 Building Permit. The Mitigation Fees shall be paid to the City at the time of issuance of the first Building Permit if more than one Building Permit is required for the project. These mitigation fees are in addition to any fees that may be charged by the City for processing Building Permits and Planning Permits. (b) If the Implementing Entity authorizes another manner of compensation in lieu of the Mitigation Fees (such as a land donation in lieu of payment of the Mitigation Fees), the Project Applicant shall provide the City with written documentation from the Implementing Entity of compliance with such alternative manner of payment and the dollar equivalent amount of such alternative manner of compensation. (c) In the event the City determines the project subject to the Planning Permit or Building Permit to be exempt from payment of the Mitigation Fees, for reasons specified in section 9.4.1 of the HCP/NCCP, no Mitigation Fees shall be required for the project. (d) The City shall transmit the Mitigation Fees to the Implementing Entity pursuant to the scheduled established by the Implementing Entity. 12.6.6. Authorized Take Coverage. Upon payment in full of the Mitigation Fees and approval of Planning or Building Permits incorporating all applicable HCP/NCCP conditions of approval, the Project Applicant shall receive authorized Take coverage for the Covered Activity in accordance with the terms of the HCP/NCCP, the Implementing Agreement, and the Take Permits. 12.6.7. Guidelines. The Director of the Community Development Department may adopt guidelines to assist in the implementation and administration of all aspects of this division with respect to Project Applicants. 12.6.8. Interpretation. In the event of a conflict between any term or requirement of this Chapter, the HCP/NCCP, the Implementing Agreement or the Take Permits, the term or requirement of the Take Permits shall govern. 1LAC11069318.1 ORDINANCE NO. 2012-13 100912-04706163 10 12.6.9. Operative Date. This Chapter shall be operative upon adoption by the Implementing Entity of the Mitigation Fees and the issuance of the Take Permits by the U.S. Fish and Wildlife Service and the California Department of Fish and Game. PASSED AND ADOPTED by the City Council of the City of Gilroy, State of California on this 5th day of November, 2012 by the following roll call vote: AYES: ARELLANO, LEROE- MUNOZ, TUCKER and PINHEIRO NOES: BRACCO, DILLON, WOODWARD ABSENT: NONE APPROVED: ert inheiro, Mayor \LAO C\1069318.1 ORDINANCE NO. 2012 -13 100912 - 04706163 I, SHAWNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the attached Ordinance No. 2012 -13 is an original ordinance, or true and correct copy of a City ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 5h day of November, 2012, at which meeting a quorum was present. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Gilroy this 6t' day of November, 2012. (Seal)