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HomeMy WebLinkAbout02 URGENCY ORDINANCE NO. 1399Agenda Item 2 AGENDA REPORT Reviewed: City Manager Finance Director N/A MEETING DATE: APRIL 25, 2011 TO: WILLIAM A. HUSTON, INTERIM CITY MANAGER FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: URGENCY ORDINANCE NO. 1399 ENACTING REVISION TO THE GRADING AND EXCAVATION CODE PROVISIONS SUMMARY: Proposed Urgency Ordinance No. 1399 is an urgency ordinance pursuant to Government Code Section 36937 and shall take effect immediately. On November 17, 2003, the City of Tustin City Council adopted Ordinance No. 1275 amending the City's Water Quality Ordinance and Ordinance No. 1280 revising the City's Grading and Excavation Ordinance. These ordinances were enacted to implement revised Regional Water Quality Control Board regulations as required by State and federal law. Since the adoption of these ordinances, private properties and responsible public agencies have complied with State and federal laws. However, one local agency has claimed exemption from Grading and Excavation Ordinance and Water Quality standards set forth by the federal and State law and has caused violations to occur with respect to construction practices. Additional future construction is eminent; therefore, Urgency Ordinance No. 1399 is needed to clarify the intent of the applicable Code provisions and for the preservation of the public peace, health, and safety. RECOMMENDATION: That the City Council adopt Urgency Ordinance No. 1399 by at least a four-fifths vote. FISCAL IMPACT: Urgency Ordinance No. 1399 is a City -initiated project. There is no direct fiscal impact associated with the proposed ordinance. ENVIRONMENTAL: Urgency Ordinance No. 1399 is not subject to the California Environmental Quality Act (CEQA) pursuant to Title 14 California Code of Regulations, Section 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in 15378) because it Urgency Ordinance No. 1399 Page 2 has no potential for resulting in physical change to the environment, directly or indirectly. The adoption of Urgency Ordinance No. 1399 would clarify the need of grading permits and Water Quality Management Plans and will improve water quality and the environment as whole. BACKGROUND AND DISCUSSION: Under the NPDES Permit system, the Regional Water Control Board (Santa Ana Region) requires the County of Orange and all municipalities within the County to enforce the State's water quality standards with respect to new development and/or significant redevelopment in each jurisdiction. On November 17, 2003, the City of Tustin City Council adopted Ordinance No. 1275 amending the City's Water Quality Ordinance and Ordinance No. 1280 revising the City's Grading and Excavation Ordinance. These ordinances were enacted to implement revised Regional Water Quality Control Board regulations as required by State and federal law. The purpose of the water quality regulations under Ordinance No. 1275 is to control and regulate urban runoff from new development for the purpose of reducing pollutants entering the City's municipal storm water drainage system and to avoid polluting water between here and the ocean (Attachment 2). These provisions do not distinguish between private and public properties. With the adoption of the Regional Water Quality Control Board's "Third Term Permits" in 2002, all cities and the County of Orange entered into a cooperative agreement for these drainage regulations to apply uniformly throughout Orange County. The federal storm water regulations specify that the Drainage Area Management Plans (DAMP) include a description of planning procedures including a comprehensive master plan to develop, implement, and enforce controls to reduce the discharge of pollutants from areas of development/redevelopment. Under the DAMP requirements, a property owner proposing a new development and/or significant redevelopment must submit a water quality management plan to the City for review and approval. There is no difference between pollutants from public and private properties. The Tustin Unified School District (TUSD) commenced construction on three projects, a High School Science Center, Quad activity area at its existing high school site at 1171 EI Camino Real, and the Heritage project at 15400 Lansdowne. When TUSD commenced construction activity on the high school site, City staff informed TUSD that the construction activity was subject to City of Tustin drainage and grading regulations and a Grading permit and Water Quality Management Plans would be required. The Tustin Unified School District has commenced and in some cases completed grading work on all three of the above -stated projects without first obtaining City -approved grading and water quality management plan for these projects. The City of Tustin received no notification that TUSD would be proceeding with construction without Urgency Ordinance No. 1399 Page 3 further compliance with the Tustin City Code. There were and continue to be violations of City ordinances. Attachment 3 identifies violations that occurred circa 2010. The Tustin Unified School District has on its construction projects continued to violate local ordinances, federal and State water quality laws by stockpiling in the public right- of-way and failing to employ necessary best management practices as was evidenced on April 6-8, 2011, costing the City in excess of $1300.00 (Attachment 4). The Tustin Unified School District intends to commence construction and grading activities (Gymnasium and hardscape improvements adjacent to the sidewalk/EI Camino Real) without the benefit of a grading permit and an approved WQMP, and their preliminary plans are inconsistent with local ordinances (Attachment 5). The Tustin Unified School District, due to its practices, is causing a WQMP violation as was evident on April 19, 2011, at County Tustin Family Campus and the Heritage site. The Tustin Unified School District's grading practices, sediment control or lack thereof between property lines caused the violation. Lack of adequate BMPs causes a WQMP violation for the County of Orange and facilitates an illicit discharge into the storm drain system. The County requested TUSD's assistance in abating the conditions. The County stated the TUSD contractor was non-responsive (Attachment 6). While other responsible public agencies comply with local, State, and federal laws related to grading and water quality management, the TUSD continues to identify that the Tustin City Code lacks clarity and/or that TUSD is exempt from the requirements. Other responsible public entities proposing development in the City of Tustin have obtained grading permits and water quality management plans prior to commencing construction including: Rancho Santiago Community College District; South Orange County Community College District; the County of Orange; and the City of Tustin. Government Code Section 53097 clearly states that a school district shall comply with a city ordinance regulating drainage improvements and conditions, regulating road improvements and conditions, or requiring the review and approval of grading plans as these ordinance provisions relate to the design and construction of on-site improvements which affect drainage, road conditions, or grading, and shall give consideration to the specific requirements and conditions of city or county ordinances relating to the design and construction of off-site improvements. Further, a 1988 Attorney General's Opinion (in part) affirms Government Code Section 53097 prevents a school district from exempting itself from drainage improvement, road improvement, or grading ordinances or from conditions relating to the provision of on-site improvements. Adoption of this urgency ordinance will resolve any confusion on behalf of the TUSD, ensure clarity, and allow the City to protect the public health, safety, and welfare by protecting property and impaired waters. Without the ordinance, the TUSD will continue to claim the ordinance lacks clarity, and the District will continue to violate the local, State, and federal laws. This urgency ordinance will ensure that the needed regulatory measures are in place to protect the Urgency Ordinance No. 1399 Page 4 public life, safety, and welfare by protecting public and private properties and impaired waters. California Government Code 36937 allows for an ordinance to take effect immediately, if it is an ordinance related to the immediate preservation of the public peace, health, or safety, containing a declaration of the facts constituting the urgency, and is passed by a four-fifths vote of the City Council. Elizabeth A. Binsack Community Development Director Attachments: 1. Ordinance No. 1399 2. Storm Drain photo 3. Circa 2010 violations at Tustin High School and Heritage Elementary School 4. April 2011 Violations at Heritage Elementary School 5. Email from Elizabeth Binsack to Pete Burns dated April 21, 2011 6. Tustin Family Campus and Heritage Elementary School photo ATTACHMENT Ordinance 1399 ORDINANCE NO. 1399 AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, REPEALING SUBSECTION 6 A OF SECTION 8906 AND AMENDING SUBSECTION F OF SECTION 8924 OF THE TUSTIN CITY CODE RELATING TO GRADING AND EXCAVATION. The City Council of the City of Tustin hereby ordains as follows.- SECTION ollows: SECTION 1: FINDINGS 1. On November 17, 2003, the City of Tustin adopted Ordinance No. 1275 amending the City's Water Quality Ordinance and Ordinance No. 1280 revising the City's Grading and Excavation Ordinance. These ordinances were enacted to implement revised Regional Water Quality Control Board regulations as required by State and federal law. 2. The Regional Water Control Board (Santa Ana Region) has adopted a National Pollution Discharge Elimination System Permit ("NPDES Permit") which sets forth water quality urban runoff standards for new development within its jurisdiction. As noted in Ordinance No. 1275 (City Code section 4900 et seq.), under the NPDES Permit system, the County of Orange and all municipalities within the County are designated co -permittees and are charged with the enforcement of State's water quality standards with respect to new development in each jurisdiction. 3. Ordinance No. 1280 was specifically adopted by the City of Tustin in 2003 to amend the City's Grading and Excavation Ordinance to incorporate and interface with specific water quality regulations adopted in Tustin Ordinance No. 1275 as mandated by the State of California Regional Water Quality Control Board (Santa Ana Region) requiring municipalities to adopt regulations for that municipality to have regulations for accepting urban runoff into municipal storm drainage systems. 4. With the adoption of the Regional Water Quality Control Board's "Third Term Permits" in 2002, the permittees were required to modify new development/significant redevelopment water quality regulatory programs to meet the NPDES Third Term Permits requirements. These regulatory requirements are set forth in the County of Orange Drainage Area Management Plan (DAMP). Concurrently, all cities and the County of Orange entered into a cooperative agreement for these drainage regulations to apply uniformly throughout Orange County. The federal storm water regulations specify that the drainage area management plans include a description of planning procedures including a comprehensive master plan to develop, implement, and enforce controls to reduce the discharge of pollutants from areas of development/redevelopment. 5. The purpose of the water quality regulations under Ordinance No. 1275 is to control and regulate urban runoff from new development for the purpose of reducing Ordinance No. 1399 Page 1 of 5 pollutants entering the City's municipal storm water drainage system. City Code section 4902(a)(1) provides that: "all new development and significant redevelopment within the City shall be undertaken in accordance with: (A) The DAMP (Orange County Drainage Area Management Plan), including but not limited to the development project guidance; and (B) Any conditions and requirements established by the Community Development Department and Public Works Department, which are reasonably related to the reduction or elimination of pollutants in storm water runoff from the project site. The DAMP establishes drainage requirements for new development and/or significant redevelopment to control storm water runoff from the development activity. These provisions do not distinguish between public and private properties. 6. Under the DAMP requirements, a property owner proposing a new development and/or significant redevelopment must submit a water quality management plan to the City for review and approval. There is no difference or distinction to be made between pollutants from public and private property. 7. Section 4903 of Ordinance No. 1275 and Section 8923 et seq. of Ordinance No. 1280 authorize City inspections of an owner's property to insure that structural or nonstructural erosion control methods and water quality systems required under a water quality management plan are, in fact, instituted and maintained in accordance with that plan. 8. Grading permit and Erosion Control inspection regulations are integrally related to the water quality urban runoff requirements of Ordinance No. 1275. Under City Code Sections 8909, 8910, and 8911, a grading permit is not to be issued unless the proposed development's grading and drainage plans comply with the water quality urban runoff requirements of Ordinance No. 1275. Under City Code section 8905, grading inspections by Community Development Department Code enforcement staff are conducted on the development site to insure that the work performed is in accordance with the approved grading and drainage work authorized by the grading permit, including installation of Best Management Practices requirements set forth in approved WQMP plans. If a permit is exempt, then under City Code section 8923, Erosion Control and Water Quality requirement systems still apply. 9. Tustin Unified School District ("TUSD") commenced construction on three projects, a High School Science Center and Quad activity area at its existing high school site at 1171 EI Camino Real, and the Heritage Elementary School project at 15400 Lansdowne. When TUSD commenced construction activity on the high school site, City staff informed TUSD that the construction activity was subject to City of Tustin drainage and grading regulations and thus, a grading permit and Water Quality Management Plan would be required. Ordinance No. 1399 Page 2 of 5 10. The City of Tustin received no notification that the Tustin Unified School District would be proceeding with construction without further compliance with the Tustin City Code. 11. The Community Development Department, Building Division, has not yet approved a grading permit for any of the three projects. TUSD has commenced and in some cases, completed grading work on all three of the above -stated projects without first obtaining City -approved grading and water quality management plans for these projects. 12. Since the adoption of City Ordinances No. 1275 and No. 1280 in November 2003, responsible public entities proposing development in the City of Tustin have obtained grading permits and water quality management plan approval prior to commencing construction including, Rancho Santiago Community College District, South Orange County Community College District, the County of Orange, and the City of Tustin. 13. The Regional Water Quality Board conducts audits of the City of Tustin to determine whether the City is enforcing water quality management plan requirements for developments carried out by private and public entities. The City of Tustin can be fined by the Regional Board for failure as a co -permittee to enforce MS4 permit water quality requirements. 14. TUSD has on its construction projects continue to violate local ordinances and federal and state water quality regulation by, for instance, stockpiling in the public right-of-way and failing to employ necessary best management practices as was evidenced on April 6-8, 2011, costing the City in excess of $1300.00. 15. TUSD intends to commence construction and grading activities (Gymnasium and hardscape improvements adjacent to the sidewalk/EI Camino Real) without the benefit of a grading permit and an approved WQMP. The preliminary plans submitted by TUSD are inconsistent with local ordinances. 16. TUSD has further caused a WQMP violation on April 19, 2011, at County Tustin Family Campus and the Heritage site. TUSD's grading practices, sediment control or lack thereof between property lines caused the violation due to a lack of adequate BMPs. This action by TUSD caused a WQMP violation for the County of Orange and facilitates an illicit discharge into the storm drain system. The County requested TUSD's assistance in abating the conditions, but the County has informed the City staff that TUSD's contractor was non-responsive. 17. While other responsible public agencies comply with local, state, and federal laws relating to grading and water quality management, TUSD continues to claim that the Tustin City Code lacks clarity and/or that TUSD is exempt from its requirements. Section 53097 clearly states that a school district shall comply with any city ordinance regulating drainage improvements and conditions, regulating road Ordinance No.1399 Page 3 of 5 improvements and conditions, or requiring the review and approval of grading plans as these ordinance provisions relate to the design and construction of on-site improvements which affect drainage, road conditions, or grading, and shall give consideration to the specific requirements and conditions of city or county ordinances relating to the design and construction of off-site improvements. Furthermore, in part, a 1988 Attorney General's Opinion affirms government Code Section 53097 prevents a school district from exempting itself from drainage improvement, road improvement, or grading ordinances or from conditions relating to the provision of on-site improvements. Adoption of this Urgency Ordinance will resolve any confusion on behalf of TUSD, ensure clarity, and allow the City to protect the public health safety and welfare by protecting property and impaired waters. 18. Without this ordinance, TUSD will continue to claim the ordinance lacks clarity and may continue to violate local, state, and federal laws. This urgency ordinance will ensure that the needed regulatory measures are in place to protect the public life, safety, and welfare by protecting public and private properties and impaired waters. 19. This Urgency Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Title 14 California Code of Regulations, Section 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in 15378) because it has no potential for resulting in physical change to the environment, directly or indirectly. The adoption of this Urgency Ordinance will only clarify the need of a grading permit and a Water Quality Management Plan and will improve water quality and the environment as whole. SECTION 2: CODE AMENDMENT (1) Subsection A 6 of City Code section 8906, "Permits Required" of Chapter 9 "Grading and Excavation," of the Tustin Municipal Code is hereby repealed in its entirety. (2) Subsection F of section 8924 is hereby amended in its entirety to read as follow "If any grading subject to Section 8906 A of this chapter has been commenced without a grading permit, the property owner may be required to prepare and implement an erosion and sediment control system plan as well as other plans required under the water quality requirements which have been approved by the Building Official. In the event of failure by the property owner to install an approved erosion and sediment control system and/or other systems necessary to comply with water quality requirements, the Building Official may cause emergency work to be done to protect adjacent properties." Ordinance No. 1399 Page 4 of 5 SECTION 3. This urgency ordinance is enacted pursuant to Government Code section 36937 and shall take effect immediately. PASSED AND ADOPTED by the City Council of the City of Tustin, at a special meeting on the day of , 2011. JERRY AMANTE, Mayor ATTEST: PAMELA STOKER, City Clerk APPROVED AS TO FORM: DOUGLAS HOLLAND, CITY ATTORNEY Ordinance No. 1399 Page 5 of 5 ATTACHMENT 2 Storm Drain photo r— rr I;j c,. ". •'i{j 'fir. f 7 �h'�s��e^� i'aaaaaaa�' aaaaa�aa �aaaaaaaa� v I v ATTACHMENT 3 Circa 2010 violations at Tustin High School and Heritage Elementary School ®%ice l;0 �r a 4 A. lk Amen Adomp-nr 111 11 Ll Not 111 11 Ll `; [" t 13 Vol, cm 44� Vol, y 1 1 ' \ V� Y y•g�1dL P PA44�� q�.��ri�'�'•; !r� 1 y�� • 4j' 7k -4 E 'tlo t, it v al -T, jw CD C.) Z:l (m 0 13 CD C.) Z:l Aok +Uaa q e r c a i 1-1 Al Ayr ATTACHMENT 4 April 2011 Violations at Heritage Elementary School Photos Taken April 7, 2011 On Landsdowne Road 7.-- -*4* Mv - R It, ,-P -- WA I E D HUMPING s a ■ ! .J I A. AA .a C7- O Co :j Ile ANNULI CL oor I A117 u ATTACHMENT Email from Elizabeth Binsack to Pete Burns dated April 21, 2011 Binsack, Elizabeth From: Binsack, Elizabeth Sent: Thursday, April 21, 2011 11:33 AM To: 'Burns, Peter' Subject: TUSD Grading WQMP Comments THS Peter, Thank you for the single set plans that you dropped off last week and the draft WQMP regarding the grading improvements around the gymnasium and the hardscape improvements along EI Camino Real. I am glad that we were able to discuss the project as no paperwork was provided that identified the scope of the project. Therefore, we (Public Works and Building and Planning staff members) could only review that which was provided. Below are our comments. If you would like to meet to discuss them, please let me know. • A soils nor hydrology report were provided. A soils report to ensure the subgrade treatment of the pavement areas shown on the plans is consistent with the soils properties and its recommendations; and, a hydrology calculations/report for the verification of the drainage pipe sizes and flow rates for storm drain systems are necessary. • The submitted grading plans did not provide basic grading construction general notes for grading construction, including paving and erosion control notes to ensure compliance with city ordinances, standards, and common practices. A list of standard notes are listed on the City of Tustin's website. • The plan currently shows surface/sheet flow over the sidewalk and into the sub -drainage system along EI Camino Real. Show how flows will be diverted into a drain system. Acceptance into a public storm drain needs to be approved by the City. • Clarify the line shown as [Prop. 8" sw] on sheet (C-4) AD1-C1. • Revise the invert elevation of the station 13+55.08 on sheet (C-6) AD1-C3 so the slope of the pipes does not create flow obstruction to the system. • Within the WQMP - Please change "Los Angeles Regional Board" to "Santa Ana Regional Board". • Within the WQMP - Please include Peters Canyon Channel and San Diego Creek Reach 1 as impaired water bodies. • Section IV, Page 11, Source Control BMPs: N1 (Education for Property Owners, Tenants and Occupants) has been checked "not applicable". Please provide an explanation in the column on the right. • Section IV, Page 12, Source Control BMPs: Item g, Hillside landscaping, has the "Included" box checked. The site is not in a hillside area. Please check the "Not Applicable" box. 1 • Section IV, Page 13, Treatment Control BMPs: The box for proprietary control measures has been checked twice. Please describe what type of proprietary BMP(s) will be used, or check the "No" box if none are being used. • Section IV, Page 13, Treatment Control BMPs: Below the chart, please provide a narrative on how the vegetated grassy swale will treat the pollutants of concern and provide calculations to show that it is adequate for the proposed project. • Some of the information shown on the Precise Grading Plan, WQMP, and the Landscape Plan is inconsistent. (We are only looking at the landscaping plan because the area is identified as a BMP.) The Landscape Plan shows drywells in the planter areas. The Precise Grading Plan and Utility Plan shows drain inlets in the planter areas that connect to the underground storm drain system. The WQMP does not mention the drywells. If drywells are being used as BMPs, they should be addressed in the WQMP. • The Landscape Plan shows a bio-swale with drywells in the landscape area west of the swimming pool with reference to the Precise Grading Plan. Cross-section G on the Precise Grading Plan, Sheet (C-4) AD1-C1 shows a gravel trench in this area. The table in the WQMP, Section IV, Page 13, Treatment Control BMPs has "No" checked for Infiltration Trench and "Yes" checked for Vegetated Grass Swale. Please clarify which treatment control BMP is being used and make the plans and WQMP consistent with one another. • The landscape area west of the swimming pool which contains the bio-swale and/or infiltration trench does not have water draining into it, except for what falls directly from the sky. The Precise Grading Plan and Utility Plan shows the rest of the site drainage being collected in drain inlets and connected to the underground storm drain system with no treatment. The WQMP should contain calculations for whichever treatment control BMP(s) are used and the Precise Grading and Utility Plan should indicated how water is routed to the treatment control BMP(s) for treatment. • The Administrative Plaza Parkway drainage cannot sheet flow over the sidewalk into the public right-of-way as shown on the WQMP and grading plan. This area needs to be addressed in the WQMP with an explanation, calculations, and details for whatever treatment control BMP(s) are used. • A Covenant and Agreement Regarding Operation and Maintenance (O&M) Plan to Fund and Maintain Water Quality Best Management Practices (BMP), Consent to Inspect, and Indemnification ("Covenant & Agreement") with the County Clerk -Recorder is necessary. The applicant shall submit one (1) set of executed "Covenant & Agreement" to the Public Works Department for review and processing. • Prior to any work in the public right-of-way, an Encroachment Permit shall be obtained from and applicable fees paid to the Public Works Department. ECtza6ethA. Binsack Community Devefvpment Director City of Tustin 2 ATTACHMENT Tustin Family Campus and Heritage Elementary School photo Photos Taken April 19, 2011 At County of Orange Tustin Family Campus 0,- O ° O00 Ammn� rJ O VI (n A D In m D A - n A C G) A m D MM m m r'D=vl Nwo_ z n C 0 W m n mm D CD 0 Z O O 0 ti Z z o m D Z Z D D D D Z A D m— 2 Z f+A'I _ Z Z C-) n n D O m D Z m m m i = D y 1 y O Z O A Z m m y O m 0,- O O O00 Ammn� O m _ SO OS n _j Z Z m I Ln m A F m D A - n A C G) A m D MM A r'D=vl Nwo_ A<D nD 0 W m n mm D CD 0 Z O O A m ti Z m D Z = � D b pA C) m— m �z m zz to n A C-) nz Z � y m O ti Q 1 y O A Z Z Z m m � x � VIN (7O O -' Z m' 'Om 0 mZ-y� AA -1 SAS Ammn� O m _ SO OS n _j Z Z m I Ln m Z m h J D b O D D m D MM A r'D=vl Nwo_ z oo nD -Mzm n mm D CD 0 zz z� m O~ O 0 x z b Cl O A = � D b pA C) �z m zz to n A nz Z � y m O No WF"- 3wP aroitxx+itOOMY vAtNKK ifuLtrvnN +VlOGLl7E!'+?*!I+?Mn......-^- --_ •'�s.trines 3 ea wrrY `r.:+u¢,�a�a.__. 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