HomeMy WebLinkAboutAgenda Packet 03/12/1996 IEW COPY
ATASCADERO CITY COUNCIL BLUM d2
REGULAR MEETING
MARCH 12, 1996
CITY.ADM INISTRATION BUILDING
6500 PALMA AVENUE, 4TH FLOOR ROTUNDA RO M
7:00 P.M.
George Ray George Harold David
Luna Johnson Highland Carden Bewley
This agenda is prepared and posted pursuant to the requirements f Government
code Section 54954.2. By listing a topic on this agenda, the City Council has expressed its
intent to discuss and act on each item.:In addition to any action identified in t e brief general
description of each item, the action that may be taken shall include. A referr V to staff with
specific requests for information;continuance,specific direction to staff conte ing the policy
or mission of the item; discontinuance of consideration 'authorization to -enter into
negotiations and execute agreements pertaining to the item; adoption or approval; and,
disapproval.
Copies of the staff reports or other documentation relating to each it9m of business
referred to on the agenda are on file in the office of the City Clerk (Room 08) and in the
Information Office (Room 103), available for public inspection during City Hall 5usiness hours.
The City Clerk will answer any questions regarding the agenda.
In compliance with the Americans with Disabilities Act, if you need sp Pdal assistance
to participate in a City meeting,or other services offered by this City, please contact the City
Manager's Office, (805) 461-5010, or the City Clerk's Office, (805) 461-5074. Notification
at least 48 hours,prior to the meeting or time when services are needed will assist the City
staff in assuring that reasonable arrangements can be made to provide acc4msibility to the
meeting or service.
CLOSED SESSION - 6:00 P.M. i4"' Floor Club Rm.):
1. CONFERENCE WITH LABOR NEGOTIATOR:
Agency negotiator: City Manager
Employee organizations: -Management; Mid-Management/Professional; Fire
Captains; Firefighters; Atascadero Sergeants Service Orgn.; Atascadero Police
Officers Assoc.; Atascadero Public Safety Technicians Orgn.; Service Employees
Intl. Union; Confidential Employees
2. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
Name of Case: Santa Lucia Neighbors Assoc. V. City of At scadero
REGULAR SESSION 7:00 P.M.: (P/ease see Rules of Public Particioati)n back page)
CALL TO ORDER
PLEDGE OF ALLEGIANCE
ROLL CALL
SPECIAL PRESENTATIONS:
• Special recognition of Atascadero LionsClub for rebuilding the pier at Atascadero Lake
COMMUNITY FORUM:
City Attorney: Status report on the Millhollin Mine (verbal)
Deputy City Attorney: Status report on the adult book store (verbal)
A. CONSENT CALENDAR: Al!matters listed under Item A Consent Calendar, are
considered to be routine and will be enacted by one motion in the form listed below.
There will be no separate discussion on these items. A member of the Council or
public may, by request, have any item removed from the Consent Calendar, which
shall then be reviewed and acted upon separately after the adoption of the Consent
Calendar.
1. CITY COUNCIL MINUTES - February 21, 1996 (Special Meeting)
(City Clerk's recommendation: Approve)
2. CITY COUNCIL MINUTES - February 27, 1996
(City Clerk's recommendation: Approve)
3. APPROVAL OF WARRANTS - January, 1996
(Staff recommendation: Approve)
4. CONSIDERATION OF NEW LOCATION FOR CHILDREN'S MURAL PROJECT AT
LAKE PARK PAVILION
(Staff/Parks & Rec."Commission recommendation: Approve proposed location)
5. RESOLUTION NO. 18-96 Opposing Proposition 199 relative to mobilehome rent
control and protesting the attempt to remove local government control
(Staff recommendation: Adopt)
6. RESOLUTION NO. 19-96 - Supportingintroduction and adoption of a validating act
in response to Santa Clara County Local Transportation Authority v Guardino
(League°of CA Cities recommendation: Adopt)
B. PUBLIC HEARINGS:
1. GENERAL PLAN AMENDMENT 95007, 6625 NAVAJOA AVE.
A. Resolution No. 15-96 - Approving an amendment to the General Pian Land
Use Map of the Land Use Element at 6625 Navajoa Ave.
(Planning Commission recommendation: Adopt)
B. Ordinance No. 301 - Amending the official zoning maps by rezoning certain
real property at 6625 Navajoa Ave. from CP (Commercial Professional) to
RMF 10 (PD#7) (ZC 95-010; Gearhart)
(Planning Commission recommendation:I Motion to introduce and adopt on
first reading by title only)
C. Tentative Parcel Map 95006 - Subdivision of one parcel located at 6625
Navajoa Ave. into four lots to accommodate residential development
(Planning Commission recommendation: Approve)
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2. TENTATIVE TRACT MAP 94005, 9244-9248 SAN RAFAEL RD.
A. Ordinance No. 299 - Amending Map 23 of the official zoning maps by
rezoning certain real properties at 9244-9248 San Rafael Rd. from RMF/10 to
RMF/10 (PD7) (ZC 94007 - O'Reilly/Vaughan)
(Planning Commission recommendation: Motion to introduce and adopt on
first reading by title only)
B. Tentative Parcel Map 94005 - Consideration of application`,to subdivide a
1.60 acre property into nine (9) lots for single family residential development
using the Planned Development Overlay Zone #7 (PD7) (O'Reilly Family
Trust)
(Planning Commission recommendation: Approve)
C. REGULAR BUSINESS:
1. MILLHOLLIN MINE - Receive new information
(Staff recommendation: Provide staff direction)
2. 1995 COMMUNITY DEVELOPMENT BLOCK GRANT FUNDING - Consideration of a
revised spending plan for the funding of ADA improvements to the City Administra-
tion Building
(Staff recommendation: Approve)
3. ATASCADERO SEXUALLY-ORIENTED BUSINESS ORDINANCE
A. Ordinance No. 298 - Establishing the Atascadero Sexually-Oriented Business
Ordinance by dispersing sexually-oriented businesses and limiting them to
specified zoning districts; providing for licensing and regulation of sexually-
oriented businesses and employees; and providing additional health and
safety regulations for sexually-oriented businesses
(Staff recommendation: Motion to adopt on second reading by title only)
B. Ordinance No. 300 - Amending the Zoning Ordinance text to implement and
conform to the provisions of the Atascadero Sexually-Oriented Business
Ordinance (ZC 95-005; City of Atascadero)
(Staff recommendation: Motion to adopt on second reading by title only)
4. FACTORY OUTLET CENTER FISCAL ANALYSIS
(Staff recommendation: Review and accept)
5. PRESENTATION OF 1994-95 FINANCIAL AUDIT
(Staff recommendation: Review and accept)
S. CONSIDERATION OF PROPOSED PLAN TO EXPAND PARKING LOT FOR THE LAKE
PARK PAVILION
(Staff recommendation: Provide direction)
D. COMMITTEE REPORTS (The following represent standing committees. Informative
status reports will be given, as felt necessary.):
1 . S.L.O. Council of Governments/S.L.O. Regional Transit Authority
2. City/School Committee
3. County Water Advisory Board/Nacimiento Water Purveyors Advisory Group
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4. Economic Round Table
5. Finance Committee
6. Air Pollution Control District
7. North County Council
8. Ad Hoc Regional Water Management Committee
9. Integrated Waste Management Authority
E. INDIVIDUAL DETERMINATION AND/OR ACTION:
1. City Council
2. City Attorney
3. City Clerk: Request to appoint a Council subcommittee (2 Councilmembers) to
interview candidates for Youth Representative on the Parks & Recreation
Commission
4. City Treasurer
5. City Manager
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RULES OF PUBLIC PARTICIPATION:
The City Council welcomes and encourages your ',ideas and
comments as a citizen. To increase the effectiveness of your
participation, please familiarize yourself with the following rules of
decorum:
O Members of the audience may speak on any item on the agenda, in the order
the item(s) are addressed by the Council, as directed by the Mayor. Items not
on the agenda should be submitted during the Community Forum period (see
below).
O Persons wishing to speak should step to the podium and state their name and
address, for the official record.
O All remarks shall be addressed to Council, as a whole, and not to any individual
member thereof.
O No person shall be permitted to make slanderous, profane or personal remarks
against any elected official, commissions and staff.
O A person may speak for five (5) minutes.
O No one may speak for a second time until everyone wishing to speak has had
an opportunity to do so, and no one may speak more than twice on any item.
O Council Members may question any speaker; the speaker may respond but,
after the allotted time has expired, may not initiate further discussion.
O The floor will then be closed to public participation and open for Council
discussion.
COMMUNITY FORUM:
O The Community Forum period is provided to receive comments from the public
on matters other than scheduled agenda items.
O A maximum of 30 minutes will be allowed for Community Forum, unless
Council authorizes an extension.
O State law does not allow the Council to take action on issues not on the
agenda; staff may be asked to follow up on such items.
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Agenda Item: A-1
Meeting Date: 03/12/96
ATASCADERO CITY COUNCIL
SPECIAL MEETING
February 21, 1996
MINUTES
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The Mayor called the meeting to order at 12:37 p.m. and led the Pl4dge of Allegiance.
ROLL CALL:
Present: Councilmembers Johnson and Luna, Mayor Highland
Absent: Councilmembers Bewley and Carden
Also Present: Lee Price, City Clerk
Staff Present: Andy Takata, City Manager; Steve DeC�mp, City Planner;
Art Montandon, City Attorney and Gary Kaiser, Assistant
Planner
Special Guests: John G. Parrish Ph.D. Executive lOffi er
c Dwayne
Homdahl, Chairman and State Mining and Geology Board,
Senior Legal Counsel from the State Department of
Conservation Mining and Geology Board
PURPOSE Of MEETING:
The City Council met to conduct a public workshop relative to the requirements of
the California Surface Mining and Reclamation Act (SMARA) Of 1975 and the
extent to which such requirements affect continuing operations at the Millhollin
Quarry located in the 11600 block of Santa Lucia Road in Atascadero.
MEETING HIGHLIGHTS:
Dr. Parrish introduced himself and other representatives from the State Mining and
Geology Board. He reported that they had met with City staff and a sub-
committee of the City Council in the morning and had visited the quarry. He
explained that they had come to provide technical expertise and !information in an
effort to clarify lead agency authority and assist with conflict resolution. Dr.
Parrish summarized the intent of SMARA and emphasized that permitting and
conditions of operation are delegated to local jurisdictions. In addition, he noted
that the Board acts as a back-stop for local government by overseeing the
functions of the Department of Mining and Geology and by responding to concerns
of SMARA lead agencies.
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Page 1
Councilman Luna inquired if SMARA has any provisions concerning water run-off
and the monitoring of same. Dr. Parrish replied that there are regulations that
address this issue and pointed out that the lead agency is authorized to contact
the mine operator to require that situations be resolved. Councilman Luna voiced
concerns regarding run-off from the Millhollin Quarry into Graves Creek and
directed staff to contact Mr. Millhollin on this matter.
Joan Grey-Fuson reported on recent case law (Hansen Brothers Enterprises v.
Board of Supervisors of Nevada County) relative to vested rights and emphasized
that the Courts are looking for objective evidence illustrating specific intent as to
the area planned for mining. Councilman Johnson asked if the "map" submitted by
Mr. Millhollin would be considered valid in light of Hansen Brothers. Ms. Grey-
Fuson replied that the map is objective and does appear to show intent. Dr.
Parrish commented that the burden of objective proof is on the mine owner and
added that, under SMARA, if there is substantial alteration from a written plan, the
lead agency or the Mining and Geology Board shall require an amended
reclamation plan.
Dr. Parrish explained that County staff submitted for certification its ordinance to
the Board of Supervisors (the lead agency at the time) in December of 1980, but it
was not certified until September of 1981 . He stated that the Millhollin Quarry
reclamation plan was approved without a Board-certified ordinance in March of
1980. Ms. Grey-Fuson added that it appears the County of San Luis adopted its
SMARA ordinance without the required public hearing.
Public Comments:
Fred Strong, representing Glenn and Darlene Millhollin, argued that there is strong
correlation with the Hansen Brothers case and requested that the City Council
consider the intent of the written plan. He explained that the plan was based
upon the State Law in existence at the time and was prepared without any
guidelines. It covers two parcels totaling 42 acres, he said, and noted that the
language "on-going and continuous" appears on the face of the plan. He added
that the sketch illustrating the mining area is not to scale and explained that the
plan reflects that. Overall, the intent of the plan is clear, he concluded.
Doug Marter, 10890 Santa Lucia Road, asserted that he objects to people
complaining about the mine, when in fact the mine existed years before they
moved to the area. He said the noise and traffic are minimal and stressed that
water run-off from the mine is cleaner than what runs off most people's homes.
Jim Hartzell of Templeton reported that he owns and operates three mines in the
County and complained that he has been waiting for eight years to get approval
from the County Planning Department on one of his reclamation plans. Dr. Parrish
advised him to contact that the Mining and Geology Board, who will either contact
the County to ensure responsiveness, or go over their heads and review/approve
the reclamation plan for the operation. Dr. Parrish added that eight years is not
responsive.
John Negranti of Cayucos reported that he, too, is a mine owner in the
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Page 2
unincorporated area of the County and gets no support from County
administration. He asked for clarification who is the lead agency. Dr. Parrish
replied that the local jurisdiction, in this case the County, is the lead agency. Mr.
Negranti reported that the County has charged him for inspections that have not
been made. Dr. Parrish indicated that this matter was not under the Board's
jurisdiction and suggested that Mr. Negranti contact the County.
Marcia Torgerson, 6200 Llano Road, verbalized concerns that the neighbors have
relative to the reclamation plan. She commented that one of the two parcels was
sub-divided in the 80's and one of those new parcels was eventually sold thereby
altering the plan filed by Mr. Millhollin. Ms. Torgerson asked if the City, as lead
agency, can require that the mine owner survey the sight and require an amended
reclamation plan. And if so, she continued, could the mine still operate in the
interim.
Dr. Parrish commented that the reclamation plan was adequate at the time it was
filed with the County. He emphasized, however, that the planis inadequate by
today's standards and reiterated that it appears the adoption process is
challengeable. He clarified that impacts such as noise, dust, traffic, etc. are local
issues and are not addressed by SMARA. The City, as lead agency, he continued,
must make an annual inspection to 1) see that the mining operotion is within its
original intended boundaries and 2) adjust up or down financial' assurances. He
confirmed that the City can require a sight survey as part of the annual inspection
noting that it is imperative to know what the boundaries are in order to do the
inspection. He added that a valid, understandable map of the area is required by
SMARA. Dr. Parrish also reported that the City can close the mine if there is
refusal to file an amended reclamation plan, if the mine violates the plan or
extracts materials beyond the boundaries. He stated further that SMARA
provisions mandate a revised amendment plan if there is substantial change and
clarified that it is the lead agency that defines "substantial changes". He also
mentioned that if there is disagreement by either party, it may be appealed to the
Mining and Geology Board. .
Marcia Torgerson asked if SMARA addresses changes over the years to the
surrounding area and pointed out that when the mine began operating many years
ago, there were few homes nearby. She noted that the area has changed
significantly with numerous homes surrounding the mine and wondered if this fact
has any bearing on expanded mining activity. Joan Grey-Fuson commented that
Hansen Brothers indicates that there is a vested right to increase with market
demand. Dr. Parrish added that local zoning law becomes important in these kinds
of situations and noted that local governing bodies must make' decisions about
residential development near commercial mining operations.
Daphne Fahsing, 5105 Llano Road, asked for an explanation about what the City
should have done when the neighbors first complained about the mine over two
years ago. Dr. Parrish commented that the City, as lead agency, has been
responsive and has tried to establish interim methods even though they may not
have always worked. He explained that the City has reviewed a number of
policies and has taken continuous action. He added that this workshop marks the
beginning of resolution.
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Councilman Johnson inquired if view shed is addressed by SMARA. Dr. Parrish
explained that the Act does not, however, this factor is considered at the CEQA
(California Environmental Quality Act) stage. He noted that the lead agency does
have the ability to address the issue of view shed during the permitting process
and when considering development adjacent to or near an operative mine.
Jim Brenton, 11465 Santa Lucia Road, asked for further explanation of what the
lead agency's role is in establishing boundaries and related financial assurances.
Dr. Parrish stated that the lead agency is responsible for interpreting, based upon a
survey and/or study, determine the financial assurances required to reclaim the
land. Mr. Brenton asked if an amended reclamation plan meeting today's
standards would be required if mining activity extends beyond the established
boundaries. Dr. Parrish reported that expansion beyond the vested limits would
not only require an amendment to the reclamation plan, but would also require a
permit.
Councilman Luna asked staff what a survey of the sight would cost. Gary Kaiser
indicated that it has been estimated at $1,200.
Don Messer, 7555 Cristobal, spoke in favor of allowing the mine to continue its
present operations because it provides a vital resource for the entire County. He
noted that Paradise Valley resident Roger Vierra (who could not be present) also
supports Mr. Millhollin's right to maintain the quarry. In addition, Mr. Messer read
a letter from Kent Williams of Atascadero who supports continued operations.
Jim Rabourn, 11705 Santa Lucia Road, remarked that mining has exceeded the
intent of the reclamation plan and that the City has allowed residential growth in
the area. It would intolerable, he said, if the mine is allowed further expansion.
---Closed to the public---
The Council expressed appreciation to the members of the Mining and Geology
Board. Mayor Highland reported that the matter would be on the City Council
agenda March 12"' at which time the Council expects to take action.
THE MEETING WAS ADJOURNED AT 2:10 P.M.
MINUTE RECORD A PREPARED BY:
LEE PRICE, C.M.0
CITY CLERK
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jAgenda Item: A-2
Meeting Date: 03/12/96
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ATASCADERO CITY COUNCIL
i
FEBRUARY 27, 1996
MINUTES
CLOSED SESSION:
The City met in Closed Session at 6:30 p.m. for purposes of discussions pertaining to:
1. CONFERENCE WITH LABOR NEGOTIATOR:
Agency negotiator: City Manager
Employee organizations: Management; Mid-Managementl'Professional; Fire
Captains; Firefighters; Atascadero Sergeants Servige Organization.;
Atascadero Police Officers Assoc.; Atascadero Public Spfety Technicians
Organization.; Service Employees Intl. Union
At 7:00p-m., the City Council adjourned Closed Session. The City Attorney noted
that there had been direction given to the labor negotiator.
REGULAR SESSION - 7:00 P.M.:
The Mayor called the meeting to order at 7:07 p.m. Councilpers�n Carden led the
Pledge of Allegiance.
ROLL CALL:
Present: Councilmembers Bewley, Carden, Johnson, Luna and
Mayor Highland
Absent: None
Also Present: Rudy Hernandez, City Treasurer and Lee Price, City Clerk
Staff Present: Andy Takata, City Manager; Steve DeCfamp, City Planner;
Art Montandon, City Attorney; Roy Hanl,ley, Assistant City
Attorney; Brady Cherry, Director of Community Services;
Brad Whitty, Finance Director; and BOd McHale, Police
Chief
PRESENTATIONS:
Proclamation observing March 4, 1996 "DeAnza Day" in Atasca0ero
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The Mayor presented the proclamation to Lindsay Hampton, on behalf of Amigos
de Anza of San Luis Obispo County. Ms. Hampton announced that the Heritage
Trails Fund committee is planning a large event for November (no date certain)
involving commemorative walks and rides, as well as a relay, and invited
participation.
Proclamation observing March 7, 1996 "Arbor Day"
The Mayor presented the proclamation to Marj Mackey of the Native Tree
Association. Ms. Mackey reported on activities planned for March the 7t''
Presentation of donation from Atascadero Land Preservation Society (ALPS)
toward the purchase of Stadium Park (Marjorie Mackey, Chair, ALPS Fundraising
Committee)
Marj Mackey presented to the Mayor a check for $10,000 representing the first
payment of the pledge by ALPS to assist with the purchase of Stadium Park.
Lindsay Hampton, ALPS Chairman, read a prepared statement relative to the
recent tree trimming at Stadium Park (see Exhibit A).
REGULAR REPORTS:
City Attorney: Status report on the Millhollin Mine (verbal)
Art Montandon provided a brief report on a special meeting held on February 21s'
and explained that the matter would be brought back for action by the City
Council on March 12tH 0
Deputy City Attorney: Roy Hanley deferred to Agenda Item #13-1 .
COMMUNITY FORUM:
The following individuals commented on recent tree trimming performed by the
California Department of Forestry in Stadium Park:
Certified Arborist and resident James Patterson reported that he, at the request of
the City Manager, had walked through Stadium Park to assess the situation and
provided a report. He noted that while the apparent rationale was to provide
access along the easement, most of the cutting had been outside of that realm.
He reported that there were many examples of poor pruning techniques which may
impair natural tree repair and added that he wasn't able to determine why some
trees were trimmed the way they were. Emphasizing that he meant no disrespect
to the crew, he pointed out that they are trained in certain fire suppression
techniques and were asked to do something outside of their training. Mr.
Patterson explained that his biggest concern is continuous violations of the City's
tree ordinance and questioned whether or not the City is really dedicated to the
preservation of the community's native oak forest. He asserted that the City
Council is responsible for enforcing the ordinance and encouraged them to address
this matter. He suggested that a steering committee be appointed to develop a
vision and implementation plan for the future of Stadium Park.
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Geraldine Brasher, 3202 Monterey Road, agreed that a steering committee as
suggested by James Patterson be established and proposed that the committee be
kept small and include representatives from the City and members of ALPS and the
Atascadero Native Tree Society (ANTA).
Eric Greening, 7365 Valle, expressed concern that the tree trimming was a direct
violation of Transportation Enhancement Act (TEA) grant requirements to preserve
the natural habitat. He articulated strong disapproval and urged the drafting of a
written contract with the people of Atascadero ratified by the City Council calling
for no further cutting of trees in Stadium Park. He, too, spoke; in support of the
establishment of a committee to plan for the future of Stadium Park.
Rose Flaherty, ALPS member, criticized tree trimming techniques and the outcome.
Ursula Luna, Atascadero Historical Society, congratulated the City Council for
receiving the first donation from ALPS and spoke to the issue of tree removal and
trimming in Stadium Park. She also shared concern for viollating TEA Grant
requirements and spoke to the issue of tree protection ;and preservation
throughout the City. She proposed that the City Council re-revaluate the tree
ordinance and ensure its enforcement.
Joan O'Keefe, 9985 Old Morro Road, voiced similar concerns and criticized
management for the attitude taken during this situation.
Rick Mathews, member of ANTA, demanded that the damage, done is a direct
violation of the City's Tree Ordinance. He urged the Council to ensure
enforcement of the ordinance and to emphasize community-wide environmental
education. Mr. Mathews also reported that ANTA is sponsoring a seedling
planting event and explained that details will follow on March 7t''.'
Dorothy McNeil, 8765 Sierra Vista, observed that weed abatement is the only fire
management law on the books and asked who profits from the wood that was cut.
Nancy Koren, 7365 Valle, expressed dismay and pointed out that the planning
process for Stadium Park has not yet begun.
Lon Allan, 6850 Santa Lucia, argued that the tree trimming was not as bad as
many are saying it is and suggested that those who wonder, go up and see it for
themselves.
---end of testimony---
Andy Takata reported that James Patterson has volunteered his services to the
City to give seminars to the staff and public, as well as work with staff on the tree
ordinance. He noted that new policy has been adopted as a result of the incident
and summarized other actions taken. The Fire Chief apologized for the situation
and reported that staff will review current State and local laws to determine where
there are conflicts.
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Councilman Luna inquired as to who paid for the tree trimming and cutting. Chief
McCain reported that the crews were prisoners and Paso Robles School for Boys
residents supervised by the California Department of Forestry and clarified that the
City had not been charged for the work.
The City Manager accepted full responsibility and encouraged members of the
public who have concerns about the incident to contact him.
Council discussion followed. Councilman Luna argued that the tree ordinance is
not being adhered to and voiced concern that most of the trimming took place on
private property. Mayor Highland emphasized that the tree ordinance applies to
the City as well. Councilman Johnson commented that he would like the Council
to review the tree ordinance. Andy Takata assured the Council that before any
more brush is removed, the policy will be reviewed by the Council.
A. CONSENT CALENDAR:
The Mayor read the Consent Calendar, as follows:
1. CITY COUNCIL MINUTES - February 13, 1996
(City Clerk's recommendation: Approve)
2. CITY TREASURER'S REPORT - January, 1996
(City Treasurer's recommendation: Review & accept)
3. RESOLUTION NO. 14-96 - Approving the loan of Wastewater funds to the
General Fund
(Staff recommendation: Adopt)
MOTION: By Councilmember Luna, seconded by Councilmember Johnson
to approve the Consent Calendar; motion passed 5:0 by roll call vote.
B. PUBLIC HEARINGS:
1. ATASCADERO SEXUALLY-ORIENTED BUSINESS ORDINANCE
A. Negative Declaration
(Staff recommendation: Find to be adequate)
B. Ordinance No. 298 - Establishing the Atascadero Sexually-Oriented
Business Ordinance by dispersing sexually-oriented businesses and
limiting them to specified zoning districts; providing for licensing and
regulation of sexually-oriented businesses and employees; and
providing additional health and safety regulations for sexually-oriented
businesses
(Staff recommendation: Motion to introduce and adopt on first
reading by title only)
C. Ordinance No. 300 - Amending the Zoning Ordinance text to
implement and conform to the provisions of the Atascadero Sexually-
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Oriented Business Ordinance (ZC 95-005; City of Atascadero)
(Staff recommendation: Motion to introduce and adopt on first
reading by title only)
Roy Hanley and Steve DeCamp provided a joint staff report and responded to
questions from the Council.
Public Comments:
M'Lee Zalvidar, local resident and member of Citizens Coalition Against
Pornography, turned in an additional 500 signatures of residents opposed to
sexually oriented adult businesses.
Dan McPherson, also a member of Citizens Coalition Against Pornography, offered
an explanation for a previous memo to the City Council requesting that this matter
be continued and explained that it was not never the intention of those involved to
stall the passing of the proposed ordinance. The concerns have been addressed,
he said, and spoke in support of adoption.
Rusty Risch, resident and owner of Risch's Jewelers, provided some suggestions
for revisions to the ordinance and requested that the matter be Continued to allow
for the modifications.
Bonita Borgeson, 4780 Del Rio, asked if Janet LaRue (Senior Legal Counsel for the
National Law Center for Children and Families) had reviewed the final draft of
Ordinance No. 296 and proposed that, if not, she be asked to provide input. In
addition, Ms. Borgeson also inquired if the public will be notified when an
application is submitted for a sexually-oriented business.
Tom Austin, Citizens Coalition Against Pornography, submitted comments by
Donald Curtis (see Exhibit B). He suggested that the ordinance be continued to
ensure that all questions and concerns are addressed.
Bill Zimmerman, Planning Commissioner, read a prepared statement urging a
revision to the ordinance relative to access by minors accompanied by adults (see
Exhibit Q.
---end of testimony---
Roy Hanley addressed questions presented by the public. He reported that Janet
LaRue had provided him with a model adult businesses ordinance and other
relative studies. He explained that he had drafted the proposed ordinance by
combining a number of enforceable ordinances, including the model one and had
conferred with Ms. LaRue during the process. He commented that he did not feel
it necessary to request that she review the final draft and indicated further that he
himself has the credentials to address the issues and is comfortable with the
content. He also reported that no public hearing is required for, an application to
open a sexually-oriented business and cautioned that other cities have been
unsuccessful with attempts to enforce public notice provisions.
Responding to inquiries from the City Council, Roy Hanley advised that the
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Supreme Court has already ruled that minors cannot lawfully purchase obscene
materials unless accompanied by an adult and explained that, as long as there is
parental permission, the purchase does not constitute contribution to the
delinquency of a minor. He emphasized that the proposed ordinance is as strict as
it can legally be made as it relates to minors. Mr. Hanley also advised against
requiring personal background checks on applicants, or placing restrictions on
certain individuals because the courts have ruled that these actions impede on first
amendment rights.
Discussion ensued relative to language in Section 2-A(2) regarding the total
amount of floor area that may be used for display. Roy Hanley suggested that
quantifying the risk of removing the word "floor" is difficult. He reported that the
language has been upheld and that he had not seen any litigation that tested any
language removing the word. Councilmember Carden suggested that another
section be added that further clarifies and defines "display" space. Roy Hanley
recommended that, to keep the ordinance on track, the Council consider directing
staff to come back later with a modification. There was Council support to stay
within the time-line of the proposed ordinance, proceed and direct staff to come
back at a future date with a modification relevant to "display space".
MOTION: By Councilmember Luna, seconded by Councilmember Bewley
to find the Negative Declaration prepared for the recommended actions
adequate; motion passed 5:0.
MOTION: By Councilmember Luna, seconded by Councilmember Johnson
to waive the reading in full and introduce Ordinance No. 298 on first
reading; motion passed 5:0 by roll call vote.
MOTION: By Councilmember Luna, seconded by Councilmember Johnson
to waive the reading in full and introduce Ordinance No. 300 on first
reading; motion passed 5:0 by roll call vote.
The Mayor called a break at 9:14 p.m. At 9:27 p.m., the meeting reconvened.
2. RESOLUTION NO. 13-96 - Approving the Solid Waste Collection Franchise
Agreement with Atascadero Waste Alternatives, Inc.
(Staff recommendation: Adopt)
This matter was continued by mutual request.
C. REGULAR BUSINESS:
1. REQUEST FOR A RESOLUTION OPPOSING PROPOSITION 199, LIMITS ON
MOBILEHOME RENT CONTROL (Rancho Del Bordo Mobilehome Estates
Community Association)
(Staff recommendation: Provide direction)
Andy Takata introduced the item and requested direction. Councilmember Luna
commented in favor of adopting a resolution opposing Proposition 199 because it
shifts control from the local to state level. Councilmember Johnson agreed.
CC 02/27/96
Page 6
1
Public Comments:
John McGoff, 10025 EI Camino Real, spoke in opposition to State Proposition 199
relevant to mobilehome residency law arguing that the sole purpose of the bill is to
prevent adoption and enforcement of mobilehome rent control ordinances. He
pointed out that Atascadero does not have a rent control ordinance but urged the
Council to be proactive and take a stand against the bill. He reported that there
are six mobilehome parks containing 393 mobilehomes and noted that some parks
are experiencing high rents. He implored the Council to take action to protect
citizens against rent gouging.
Marj McGoff, 10025 EI Camino Real, emphasized that language ,of the bill is very
misleading and also encouraged the Council to take formal action in opposition.
Mary Joan Wallace, 10025 EI Camino Real, voiced similar concerns and
commented that mobilehome residents need the City's help.
---end of testimony---
MOTION: By Councilmember Luna, seconded by Councilmember Johnson
to direct staff to bring back a resolution opposing Proposition
199 and to include statements opposing the'' removal of local
control; motion unanimously passed.
D. COMMITTEE REPORTS (The following represent standing committees.
Informative status reports were given, as follows.):
1. S.L.O. Council of Governments (COG) - CouncilmemberCarden reported
that COG is monitoring the issue of radioactive waste transportation and
forwarded to the Council a copy of the Executive [director's written
explanation of recent COG action.
2. Economic Round Table - Councilmember Johnson reported that the Round
Table has explored options to fund the position of Economic Development
Director and will be forwarding information to the Council before the Mid-
Year budget review.
3. Ad Hoc Regional Water Management Committee - Mayor Highland
announced that this committee would meet the following week.
E. INDIVIDUAL DETERMINATION AND/OR ACTION:
1. City Council
Councilmember Bewley shared concern and frustration about skateboarders
congregating near certain businesses and on public walkways. Discussion ensued.
There was agreement to direct staff to bring back a modification to the existing
skateboard ordinance relevant to regulating skateboarding in the public right-of-
way and on properties open to public use.
CC 02/27/96
Page 7
Councilmember Luna voiced concerns regarding the condition of San Gabriel Road.
Andy Takata provided a status report and explained that the contractor is
required, under warranty, to perform certain types of maintenance. He noted that
he will have the Streets Division monitor the road for safety concerns.
2. City Clerk: Authorize City Clerk to recruit for citizens to serve on the
Building & Construction Board of Appeals (two terms expiring)
The City Clerk reported that terms for John Vial and Robert Fisher will expire in
April and requested authorization to recruit interested applicants. The City
Council gave said authorization.
3. City Manager
Andy Takata reported that a Closed Session regarding property negotiations was
requested. By unanimous vote, the City Council added the matter to the continued
Closed Session agenda.
ADJOURNMENT:
The City Council adjourned to Closed Session at 10:02 p.m. Closed Session
adjourned at 10:07 p.m. The City Attorney announced that no direction had been
given.
THE NEXT MEETING OF THE ATASCADERO CITY COUNCIL WILL BE TUESDAY,
MARCH 12, 1996 AT 7:00 P.M.
MINUTES RE ORDED ND REPARED BY:
LEE PRIC , CMC
CITY CLERK
Attachments: Exhibit A (Hampton for ALPS)
Exhibit B (Curtis)
Exhibit C (Zimmerman)
CC 02/27/96
Page 8
CC2/27/96
EXHIBIT A
Atascadero Land Preservation Society
P.O.Box 940,Atascadero,CA 93423
February 27, 1996
Mayor Highland
City Councillors
As Chairman of the Atascadero Land Preservation Society, I am compelled to speak
out about the tree cutting last week in Stadium Park. ALPS,was founded to preserve
and protect the most significant natural lands in Atascade3Co for future generations
to enjoy. In this capacity we have been raising money to help the City purchase
Stadium Park.
We were shocked and dismayed when we learned of the indiscriminate cutting
and saw the results. It was obvious that those wielding chainsaws didn't know
what they were doing and that serious damage was done to a ;number of trees.
Several of our supporters were so upset as to suggest that 'ALPS withhold our
donation to the City.
Our board members have visited the scene and spoken to City administrators
and those responsible. We all agree that the City is truly sorry the cutting
occurred , but that it resulted from a misguided attempt to be helpful and
provide fire mitigation and access for emergency vehicles.
Yes, errors in judgement were made, but they have been forthrightly acknowledged
(a rare thing these days) and those responsible have learned from the experience
that they must be much more sensitive in their actions dealing with our natural
habbitat.
We feel that nothing would be gained by our withholding the check from the
City for a few weeks or even halting our fund raising efforts. Revenge and
recriminations will accomplish nothing.
To say that the Fire Department has hung up its chainsaws for good is, perhaps,
injecting too much levity into a situation that must be taken seriously, but
they have learned a lesson and do realize the need for more education in tree
Page 2
trimming techniques and the need for closer supervision of cutting. To that
end, workshops are being planned with the help of local arborists.
It's always painful to learn through a tragic situation, but the Atascadero
Land Preservation Society hopes we all can profit from this episode and learn
to be more sensitive towards nature and each other.
Thank you.
Sincerely,
Lindsay Hampton
Chairman,
Atascadero Land Preservation Society
PRESENTATION TO ATASCADERO CITY COUNCIL
2 -27-96
CC2/27/96
ADULT BUSINESS ORDINANCE EXHIBIT B
I BELIEVE THE ORDINANCE HAS BEEN SUBMITTED TO YOU IN AN IMPROPER
MANNER .
IT DOES NOT REFLECT ALL CHANGES MADE BY THE PLANNING COMMISSION .
ESPECIALLY IMPORTANT IS THE CHANGE THE PLANNING COMMISSION
MADE TO REQUIRE THAT NO PERSONS UNDER 18 BE ADMITTED TO ADULT
B-USINESSES OR ALLOWED TO MAKE PURCHASES .
YOUR ATTORNEY SAID IN HIS FEBRUARY 15 MEMO TO YOU THAT HE
DIDN 'T INCLUDE THE CHANGES BECAUSE HIS RESEARCH INDICATES
THAT THEY AREN ' T IN ACCORD WITH A SUPREME COURT DECISION .
HOWEVER , HE SAYS YOU CAN INCLUDE THEM ALTHOUGH HE
RECOMMENDS THAT YOU DO NOT DO SO .
I BELIEVE THE ORDINANCE SHOULD HAVE BEEN SUBMITTED TO YOU
WITH THE CHANGES INTACT AND THE ATTORNEY COULD HAVE RECOMMENDED
THAT THE PLANNING COMMISSION VERSION BE MODIFIED . '
OR
THE ATTORNEY COULD HAVE RETURNED THE ORDINANCE TO THE PLANNING
COMMISSION FOR FURTHER CONSIDERATION BEFORE SUBMITTING IT TO
YOUR COUNCIL .
IN ANY EVENT THE PLANNING COMMISSIONERS DIDN ' T EVEN 11 RECEIVE
COURTESY COPIES OF HIS MEMO (AT LEAST AS OF 3 YESTERDAY
AFTERNOON ) . I LEARNED ABOUT THIS BY CHECKING THE COUNCIL
AGENDA PACKET AT THE LIBRARY LAST SATURDAY .
AS THIS IS AN ADULT BUSINESS ORDINANCE AND A PRIMARY CONCERN IS
THE HARMFUL EFFECTS ON CHILDREN AND MINORS EXPOSED TO THE EFFECTS
OF SUCH BUSINESSES ( SEE YOUR WHEREAS PROVISIONS)9 IT IS
INCOMPREHENSIBLE TO ME THAT ACCESS MUST BE GRANTED TO PEOPLE
UNDER 18 IF THEY ARE ACCOMPANIED BY AN ADULT OR THAT THEY ARE
ALLOWED TO MAKE PURCHASESIF AN ADULT SAYS IT IS OKAY.
CASINOS IN NEVADA DO NOT ALLOW MINORS IN THE GAMBLING AREAS
IF ACCOMPANIED BY PARENTS ( AT LEAST THEY DIDN ' T LAST TIME
I WAS IN NEVADA)
MOVIE THEATERS SHOWING X RATED FILMS DO NOT ALLOW 'MINORS UNDER
ANY CIRCUMSTANCES ( THIS WAS SAID TO BE A VOLUNTARY RULE BUT
IT IS UNIVERSAL IN ALL ADVERTISING1 +
THERE ARE BARS WHERE PEOPLE UNDER AGE ARE NOT ADMITTED.
IN FACT , I HAVE BEEN TOLD THAT MR . DIAMONDS RADIO ADS SAY
NO ONE UNDER 18 IS ADMITTED .
THERE ARE STATES THAT DO NOT ALLOW ANYONE TO SUBSCRIBE TO
ADULT SATELITE CHANNELS .
I BE'- IEVE THAT FURTHER RESEARCH IS NEEDED BEFORE AN ORDINANCE
ADMITTING MINORS IS APPROVED . WE HAVE THE TIME TO OBTAIN AN
ATTO?NEY GENERAL OR OTHER OPINION .
ADULT BUSINESS ORDINANCE
PAGE 2
WE SHOULD ALSO BE GIVEN THE CITATIONS AND COPIES OF THE DECISIONS
SO THAT WE CAN REVIEW THEM BEFORE FINAL ACTION IS TAKEN .
IF YOU DECIDE TO INCLUDE THE RESTRICTION THEN I HAVE NO OBJECTION
TO PROCEEDING TONIGHT .
THE DEPUTY CITY ATTORNEY ALSO REPORTED SEVERAL OTHER POSSIBLE
MODIFICATIONS . ALTHOUGH THEY WERE NOT RECOMMEDED PER SE THE
IMPLICATION IS THAT IT MAY BE A GOOD IDEA TO FURTHER WEAKEN THE
ORDIANCE AS THERE MAY BE NO COST/BENEFIT ADVANTAGE TO THE
TOUGHER VERSION .
AT THE PLANNING COMMISSION I STATED THAT I WAS VERY CONCERNED
ABOUT THE ALLOWANCE' OF ADULT BUSINESSES AS HOME OCCUPATIONS
ALTHOUGH I DIDN ' T SEE ANY WAY AROUND THIS. UPON REFLECTION
I THINK IT MAY BE POSSIBLE TO PROHIBIT ADULT HOME BUSINESSES .
THIS PROHIBITION SHOULD GET FURTHER CONSIDERATION AS THE
REGULAR RETAIL ADULT BUSINESSES WON ' T CONTEST SUCH AN EXCLUSION .
IN ANY EVENT WE SHOULD HAVE A THOROUGH ORDINANCE THAT WILL DO
WHAT NEEDS TO BE DONE , ESPECIALLY AS REGARDS PEOPLE UNDER 18 .
AT THE VERY LEAST , IF YOU FEEL YOU CAN ' T APPROVE THE ORDINANCE
AS APPROVED BY THE PLANNING COMMISSION I REQUEST THAT YOU
REQUIRE MORE RESEARCH AND RETURN THE ORDINANCE TO THE PLANNING
COMMISSION FOR FURTHER CONSIDERATION . THIS WILL ALSO GIVE
THOSE MEMBERS OF THE PUBLIC WHO WANT MORE TIME TO MAKE
SUGGESTIONS THE CHANCE TO DO SO .
WILLIAM ZIMMERMAN
6225 Lomitas Rd .
Atascadero , CA 93422
CC2/27/96
EXHIBiIT C
27 February 1994
„
Subject: The draft Ata.scadero Sexually OrientedBusiness Ordinance.
Under recommendation, what is meant by "the negative declaration?"
Under analysis: An ordinanceis a legal way to enforce end prevent legal
adult business owners from bringing blight, increased crime and a decrease
in;property values. On the other adult material should not be hindered from
expression.
Recommendation: A line should be drawn between the opposing views to define
what is legally allowed and what is not allowed. Another way of looking at
this is to define what is wholesome and uplifting and what pollutes and
corrupts individuals exposed to materials and activities in adult businesses.
The exhibits need to be explained.
Legal Framework— California law defines illegal pornography that is
"obscene matter" and "harmful matter If the matter found in an adult
business didn't approximate these descriptions, minors would not be restricted
from entering them. What is good for minors should be good far adults.
The Proposed Ordinances: Guards against adverse conditions that would
impair "revitalization efforts", cause a "skid row" effect and "to avoid
potentially deleterious impacts" on these sensitive uses.
Again the greatest trajedy would be pollution and corruption of the morals
of those who are aware of and through curiousity and patronageexpose
themselves totheunsavory influences of adult business.
Section 8--The second sentence of Section 8 of the ordinance sounds
like a disclaimer of the will to enforce against the deleterious effect on
the community. Double talking leaves the sincerity of the ordinance in
question. On the other hand the statement "neither is it the intent or
effect of this ordinance to in any way condone or legitimize .the distribution
of obscene or harmful to minors' material." is co rendable.
Near the top of page 4 "Whereas, the City Council . . . .further
finds that restricted hours of operation will further prevent the adverse
secondary effects of sexually oriented business;" Under "Houlrs of operation
in Section 21 the ordinance provides that the adult. : business be closed
between the hours of 2:00 a.m and 6:00 a.m on any particular day."
This does not sound like a significant "restriction of hours of operation."
The hours that the bowling alley has would be more appropriate.
D���Curtls
7
i
REPORT TO CITY COUNCIL Meeting Date: 03/12/96
CITY OF ATASCADERO Agenda. Item: A-3
Through: Andy Takata ., City Manager
From: Bradford Whitty, Finance Director
SUBJECT:
Payment. of Audited Bills and Payroll for the month of January,
1996 ,
RECOMMENDATION:
Approve certified City accounts paya-ble , payroll a.nd'"' pa.yroll vendor
checks for the month of January, 1996 .
Attached , for City Council review and approval , a.re ' the following:
A. Payroll
Period End 01/05/96 Ck. #24383-24535 127 , 449 . 82
Period Enol 01/19/96 Ck, »24560-24709 124 , 555 , 55
B , Special Payroll
• Dated 01/17/96 Ck, #24557 63 , 69
C, Payroll Vendors
Dated 01/12/96 Ck, »24540-24555 63 ,474 . 20
Dated 01/26/96 Ck, #24711-24c7� 5
28 56 ,034 , 6
Dated 01/31/96 Ck. #2407%-24070 33 , 177 , 10
D, Accounts Payable
Dated 01/31/96 Ck, #52638-53182 526 , 523 , 01
The undersigned certifies that the attached demands have been
released for payment in the total amount of $935, 2,,78,05 and that
funds are a.va.ila.ble for these dema.nds .
Dated :
BRADFORD WHIT Y, Fin6. hector
Approved by the City- Council a-t a. meeting held December 12, 1995 .
LEE PRICE, City Clerk
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MEMORANDUM
46
R -
REPORT TO CITY COUNCIL AGENDA ITEM: A 4
CITY OF ATASCADERO DATE: 03-12-96
THROUGH: Andrew J. Takata, City Manager
FROM: Brady Cherry, Director /;�-�
Department of Community Services
SUBJECT: APPROVAL OF NEW LOCATION FOR ATASCADERO LAKE PAVILION
MURAL PROJECT
RECOMMENDATION•
Staff and Parks and Recreation Commission recommend approval of the �roposed location.
BACKGROUND:
At the City Council meeting of January 23, 1996, the City Council directed staff to meet with
representatives of the State Hospital and the community to consider other locations for the
"Wetlands" Mural Project involving San Gabriel Elementary School children.
• After several trips around the Lake Park and Pavilion and a couple of meetings,' a location was
P P
suggested by Parks Supervisor, Bill White, that appears ideal. The area being recommended to
the City Council is adjacent to the landscaped area in front of the Pavilion, which is now only
used as a footpath. The Atascadero Native Tree Association (ANTA) has recently completed
a beautiful renovation of the landscaping in front of the Pavilion that includes a dry creek area.
The footpath is located between this area and the building. In the past, pgople have "tromped"
through this area, creating a well-worn, unofficial footpath between the Pavilion entrance and
the service area. Parks' staff realized that trying to prevent this foot traffic through the planter
was futile, so they placed some timbers along the area next to the landscaping. Thus, an
unimproved walkway is already in use.
The Mural Project participants feel that they can improve this area wAh the tiles with the
children's artwork on them, placed into the cement. Water will be allowed to continue to drain
across the walk where it does now. A shallow swale would be made in the walk.
City staff and the Parks and Recreation Commission believe that this is an excellent location for
the Project. Kelly Heffernon believes the project will nicely augment the AG.N.T.A. landscaping
project. Everyone involved is excited about this area. All concerned feel';,that the location will
be an enhancement to the landscaping and provide a useful public walkway.
000')3,0
FINANCIAL IMPACTS:
Due to the additional artist's design work necessary for the recommended location, City staff
is helping the Mural Project group to raise $300.00 to cover this expense. There will be no
direct cost to the City.
•
CAMYCOUNMMr[Pq.RPT
000011
M E M O R A N D U M
O: City Manager Andy Takata and City Council Members
M: Chief of Police and Linda Wargo, Arts in Mental
Health Director
SUBJ: Pavilion Ceramic Tile Art Project
DATE: Feb. 28, 1996
After reviewing many sites at the Lake with a committee including Bud
McHale, Brady Cherry, Janine Kirkpatrick, Linda Wargo, the children of San
Gabriel Elementary School, and park staff, we have reached a consensus for
a new location for the Wetlands Sidewalk Mural Project. We would like to
locate the project in the pathway between the main sidewalk that leads to
the front doors of the Lake Pavilion building and the sidewalk that leads
to the cafe and trash area.
This pathway runs closely in front of the Lake Pavilions building beginning
at the left of the building's front doors. The tile sidewalk would be
about three feet wide and would curve a little depending upon the position
of the landscape that has been beautifully redone.
According to park staff, the pathway was scheduled for renovation.
Ideally, we would like to work with park staff to enhance the walkway and
make it an exciting trail for everyone to explore. It is a win/win
The placement of the ceramic
location for. the City and the community.
walkway will integrate nicely with the terrain and building.
Currently, we have just finished working with the children of San Gabriel
Elementary School on the original design plan. Since we are now looking at
a new site, we will need three more weeks with the children to redesign the
mural. In order to maintain continuity with the children, it is very
important that not too much time elapse before we begin the redesign phase.
Also, the more time and -supplies involved, the more money the project
costs. We are anxious to move forward with the new location.
We are scheduled to meet with the children on March 15. We hope to hear
from you by March 13.
RIC D H. McHALE
i
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l G C-, 000012
i
REPORT TO CITY COUNCIL
CITY OF ATASCADERO Agenda Item: A-5
From: Andrew J. Takata, City Manager Meet Ing Date: 3/12/96
SUBJECT: Resolution opposing Proposition 199 relative to mobilehome rent control
RECOMMENDATION:
Adopt the attached Resolution No. 18-96.
BACKGROUND:
This item appeared on the City Council's February 27th agenda foll6wing receipt of a
request from the Rancho Del Bordo Mobilehome Estates Community Association that
the Council formally oppose Prop. 199. Following review and discussion, the Council
directed staff to prepare a resolution opposing this proposed legisjlation, specifically
• because it transfers control from local jurisdictions to the State. Attached for your
consideration is proposed Resolution No. 18-96.
AJT:cw
RESOLUTION NO. 18-96
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF ATASCADERO
OPPOSING PROPOSITION 199 WHICH PROPOSES
SIGNIFICANT CHANGES IN MOBILEHOME RENT CONTROL LAWS
WHEREAS, Mobilehome owners in our jurisdiction are overwhelmingly senior
citizens and low-income families living on fixed retirement or severely limited
incomes; and
WHEREAS, Nearly 100 California counties, cities and towns have passed some
form of a mobilehome rent protection ordinance to safeguard these vulnerable elderly
and low-income families from excessive rent increases; and
WHEREAS, The Council opposes any statewide preemption of local control to
make policy responding to the crisis in affordable housing, especially mobilehome
park space rents and vailability; and
WHEREA his initiative is being misrepresented as one which would assist
mobilehome ow ers meeting their rents, rather than one which would allow
mobilehome p: landlords to raise rents without restriction; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Atascadero to oppose Proposition 199 appearing on the March 1996 ballot and to
direct that such opposition be communicated to the City's state representatives, the •
Governor and the League of California Cities.
The foregoing resolution is hereby adopted on the following vote:
AYES:
NOES:
ABSENT:
ADOPTED: CITY OF ATASCADERO:
GEORGE P. HIGHLAND, Mayor
ATTEST:
LEE PRICE, City Clerk
APPROVED AS TO FORM:
ARTHER R. MONTANDON, City Attorney , _
f
1
REPORT TO CITY COUNCIL Meeting Date: 02/27/96
CITY OF ATASCADERO Agenda Item : C-1
From: Andrew J. Takata, City Manager
SUBJECT:
Request from Rancho Del Bordo Mobilehome Estates Community Association to
formally oppose Proposition 199 (Limits on Mobilehome Rent Control).
RECOMMENDATION:
Staff requests direction and offers the following options:
(1) Direct staff to bring back a resolution opposing Proposition 199, or
(2) Take no action.
BACKGROUND:
John J. McGoff, President of the Rancho Del Bordo Mobilehome Estates Community
Association has requested that the City Council, by resolution, express opposition to
Proposition 199, which will appear on the March 26th statewide ballot. Upon receipt
of Mr. McGoff's correspondence, staff copied each member of Council with his letter,
a copy of the proposed legislation and a request to indicate interest in this matter.
Councilmember George Luna has expressed interest in addressing this issue at the
Council level.
Attachments: Mr. McGoff's Letter of 1/25/96
Proposition 199
00
RECEIVED
Rancho Del Bordo CommunityFJT-A q(�
S
ioo2S in Camino Real, *78
Atascadero, CA 93422 ATASCADERO CITY
January ZS, 1996 Phone: 461-IIZS
Mr. Andy Takata- -City Manager
City of Atascadero
65oo Palma Avenue
Atascadero, CA 93422
Dear Mr. Takata:
I am writing to you as the President of the Rancho Del Bordo Mobilehome
Estates Community Association. We are a community of 126 homes,the largest in
the City of Atascadero.Mobilehome owners throughout California are facing a
threat to our life styles,the most serious of which could be the loss of one's home
through predatory practices of park owners.
The epitimiizzation of this threat is manifested in Proposition 199 which will
appear on the March 1996 ballot.The City of Atascadero ,through a resolution of
it's Council must express opposition to this fraud upon the voters of this city,
which not only abolishes all existing mobilehome ordinances ,but also transfers
power to Sacramento which properly belongs in a community.
Currently,the City and County of San Luis Obispo have rent stabilization
ordinances., in place since the 1980's. These ordinances not only helped to
stabilize rents,but also assisted the City/County to meet their goals for affordable
housing. ioo Other cities and counties have similar ordinances. These have been
attacked by park owners , city by city, county by county,without success. Prop
199 is the avenue these park- owners are pursuing to satisfy their current trend
toward"rent gouging".
Although California law currently provides some protection to mobilehome
residents from unlawful eviction, unfair leases or other unfair business practices
by park owners,state law is completely silent on the issue of how much rent a
park owner may charge . It is left to local jurisdictions,such as counties , cities
and towns,to fill the gap. Given this and others facts, it is critical that local
control be retained and any effort to usurp authority in any matter affecting its
citizens,be strongly opposed. We request consideration by the council of a
resolution urging a No vote on proposition 199.
Sincerel=: d
do cGoff
President, RDBMHEA
i
REPORT TO CITY COUNCIL
CITY.OF ATASCADERO Agenda Item: A-6
From: Andrew J. Takata, City Manager Meeting Date: 3/12/96
SUBJECT: Resolution supporting League of California Cities legislation that
designates December 14, 1995 as the effective date of the Santa Clara
decision.
RECOMMENDATION:
Adopt the.attached Resolution No. 19-96.
BACKGROUND:
As most of you ,are aware, the League of California Cities is urging cities to adopt
resolutions in support of a bill, authored by Senator Jack O'Connell, that designates
December 14, 1995 as the effective date of the Santa Clara decision. This proposed
legislation is being encouraged as vital to protecting municipal services in California.
Attached for your consideration is the League's announcement and urging regarding
Assembly Bill 1590 and proposed Resolution No. 19-96.
AJT:cw
00001'7
IN TH
i
February 16, 1996. Number Three
Cities Dave Work. O co nnell to
To Do To Ensure
Author League Bill '-.Massage of
Legislation Makes Dec. 14, 1995: the Effective
A bill number for the League
Date of Santa(CZara Decision
legislation is expected to be
assigned early next week and with Senator Jack.O'Connell, a Democrat from.Santa Barbara, will author
that the grass roots work begins. the League's legislation that designates December 14, 1995 as the effec-
If there-was ever a time for all. tive date of the Santa Clara decision..
cities to work their legislators, it
Also, we have been told that the bill.will be co-sponsored by two
is now. Call your legislators
both Senate and Assembly—sandrepublican senators—Senator Bill Craven.and Senator Bob Beverly.
ask them to support this impor
rant proposal. The legislation.is being put across the desk at.the time this alert goes to
-print which means a bill number will be announced early next week.
Tell them how services and We encourage those cities in Senator O'Connell's, Craven's and
therefore,your citizens, would be Beverly's districts to contact the senators and thank them for sponsor-
impacted if the effective date of ing this legislation which•is vital to protecting municipal services in this
December 14, 1995 for this court state.
decision is not implemented.
The O'Connell proposal to deal with the 'implementation of the recent
A sample resolution relating to Santa Clara/Guardino decision.does the following:
the Proposition 62 decision is on
page two of this alert for your use- . 1. Implements the court decision by confirming that Proposition 62
or modification. Then send t.to subjects all taxes imposed or increasedDecember 14, 1995 to the
your local legislators. majority voter requirements of Proposition 62.
Further information on the 2. Designates in statute that.December 14, 1995 is the effective date of
legislation and actions for city the Supreme Court Santa Clara/Guardino decision;
officials will be featured in future
editions of this alert. 3. Validates all taxes enacted prior to December 14, 1995
000013
1400 K Street, Sacramento, CA 95814 phone. 916/658-8200 fax:916/658-8240 e mail. Icc@statenet.com �a�.
SACRAMENTO OFFICE { �~ ..-
STATE CAPITOL.ROOM 2187 d'$ $t N r
SACRAMENTO.CA 95814
(916)445-5405 OW
CntthfurttttttPPl� E
SAN LUIS OBISPO OFFICE
1260 CHORRO STREET,SUITE A (
SAN LUIS OBISPO.CA 934010
(605)547-1800
SANTA BARBARA OFFICE SENATOR
228 WEST CARRILLO.SUITE F JACK O'CON N ELL COMMITTEES:
SANTA BARBARA,CA 93101 CHAIR:
(805)9662296 EIGHTEENTH SENATORIAL DISTRICT Toxics AND MANAGEMENT SAFETY
VENTURA OFFICE MEMBER:
89 S.CALIFORNIA STREET.SUITE E ! BUDGET AND FISCAL REVIEW
VENTURA.CA 9p3pn0p01 BUSINESS AND PROFESSIONS
ei�ualEDUCATION
ry GO, 1 996 INSURANCE
JUDICIARY
NATURAL RESOURCES
Andrew J.Takata, City Manager
City of Atascadero
6500 Palma
Atascadero, CA 93422
Dear Andrew:
As you are probably aware, on September 28, 1995,the California Supreme Court invalidated a 1/2 cent sales tax
imposed in 1986 by 54 percent of Santa Clara County's voters to fund local transportations projects(Santa Clara
County Local Transportation Authority v. Guardino). The Court determined that the sales tax was a"special tax"
because the proceeds were dedicated to a specific activity and required 2/3 voter approval to impose this special
tax.
Unforeseen, however, was the Court's reliance on Proposition 62 to invalidate the county tax. Under the City of
Woodlake v. Logan the requirement of Proposition 62 to receive majority voter approval for general taxes was
deemed unconstitutional several years ago. Consequently, cities and counties throughout the state instituted
utility, business, bed and sales taxes without voter approval. I believe that these local governments acted in good
faith, and in accordance with the law as they knew it to exist.
Consequently,the Guardino decision has left many local governments in a state of limbo. Because the ruling does
not explicitly advise whether local agencies should implement the decision prospectively, or whether retroactive
refunds are in order, all general taxes levied before the decision are in question.
To address this questoin I have introduced Senate Bill 1590. 1 do not believe that taxes imposed in accordance
with the law at the time they were levied should be affected by the Guardino decision. Passage of this bill would
clarify that the Guardino decision applies prospectively and that cities and counties that imposed taxes prior to the
Court's ruling should be held harmless for those actions.
I would appreciate your support of this legislation. Additionally, I would be interested to hear what, if any,taxes you
have imposed that could be affected by the Guardino decision.
Sincerely,
d
K O'CONNELL
ks
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000021
RESOLUTION NO. 19-96
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF ATASCADERO
SUPPORTING INTRODUCTION AND ADOPTION OF A
VALIDATING ACT IN RESPONSE TO SANTA CLARA COUNTY LOCAL
TRANSPORTATION AUTHOR/TY V. GUARD/NO
WHEREAS, The California Supreme Court recently issued a decision in the
case of Santa Clara County Local Transportation Authority v. Guardino, the effect of
which decision is to require voter approval for the imposition or increase of a general
tax as set forth in Proposition 62 (Government Code Section 53273); and
WHEREAS, The Guardino decision reverses prior court decisions which
previously found that voter-approval requirements of Proposition 62 were
unconstitutional; and
WHEREAS, If the collection of new taxes or tax increases adopted by elected
boards, subsequent to the effective date of Proposition 62 and prior to the effective
date of the Guardino decision, is prohibited and/or, if retroactive refund of tax
collection is mandated, then the City of Atascadero and a large number of other local
governments will experience severe financial crises, necessitating major reductions in
public safety and other vital public services, negating contractual commitments, and,
quite possibly, leading to default on credit obligations or, at the very least,
substantially reducing the credit-worthiness of local governments; and
WHEREAS, Extensive costs, fiscal uncertainty and a major threat to public
services are certain to arise from retrospective application of the Guardino decision
and from the confusion that will result if clear and timely policy direction is not
forthcoming from the state in the aftermath of the announcement of the Guardino
decision, thereby decimating services provided through the City's general fund; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Atascadero, as follows:
1 . That Senator Jack O'Connell and Assemblyman Tom Bordonaro are
urged to actively support the passage of a validating act requiring that
the Guardino decision only be applied prospectively; and
2. That such validating act be adopted as soon as possible; and
3. That the City Clerk is directed to forward this resolution to Senator
O'Connell and Assemblyman Bordonaro at the earliest date possible
after its adoption and to distribute copies to the Board of Supervisors
and the others cities within San Luis Obispo County.
000022
I
Resolution No. 19-96
Page 2 of 2
The foregoing resolution is hereby adopted on the following vote:
AYES:
NOES:
ABSENT:
ADOPTED:
CITY OF ATASCADERO:
GEORGE P. HIGHLAND, Mayor
ATTEST:
LEE PRICE, City Clerk
APPROVED AS TO FORM:
ARTHER R. MONTANDON, City Attorney
00001'3
REPORT TO CITY COUNCIL
CITY OF ATA SCADERO Agenda Itaem• •B-1 (A-C)
Through: Andrew Takata, City Manager Meeting Date. 03/12/96
File Number: GPA 95007
From: Steven L. DeCamp, City Planner ZC 10
950
F C_
SUBJECT:
Proposed amendment to the General Plan Land Use Map from "Office"
to "Low Density Multiple Family" , revision of the Zoning Ordinance
from "CP (Commercial Professional) " to "RMF 10 (Low Density
Multiple Family) with PD17 Overlay" , and concurrentsubdivision of
the parcel into four (4) lots to accommodate residential develop-
ment. Subject site is located at 6625 Navajoa ' Avenue (Kelly
Gearhart) .
RECOMMENDATION•
Staff recommends the following, actions as recommended by the
Planning Commission:
1 . Resolution No. 15-96 - Approve attached Resolution amending
the Land Use Map of the General Plan Land UseElement.
2 . Ordinance No. 301 - Read by title only and approve on first
reading amending the Zoning Map from CP to RI,F 10 with PD#7
Overlay.
3 . Approval of Tentative Parcel Map 95006 based On the Findings
contained in the staff report, dated February 20, 1996,. and
subject to the attached Revised Conditions ofApproval.
BACKGROUND:
On February 20, 1996, the Planning Commission conducted a public
hearing on the above-referenced applications. Ater discussion
(see the attached minutes excerpts) the Planning Commission, on a
6 : 0 : 1 vote, recommended approval of the General flan Amendment,
Zone Change and Tentative Parcel Map requests, subject to elimin-
ating Condition #21 and the addition of Condition 22 .
cc: Kelly Gearhart
Cannon Associates
Attachments: Resolution No. 15-96
Ordinance No. 301
Revised Conditions of Approval - FePruary 20, 1996
Planning Commission Staff Report - February 20, 1996
Minutes Excerpts - February 20, 1995
UU00�
DRAFT
RESOLUTION NO. 15-96
A RESOLUTION OF THE COUNCIL OF THE CITY OF ATASCADERO
APPROVING AN AMENDMENT TO THE GENERAL PLAN LAND USE MAP
OF THE LAND USE ELEMENT AT 6625 NAVAJOA AVENUE
(GPA 95-007 ; Gearhart)
WHEREAS, the City of Atascadero has grown considerably since incorporation; and
WHEREAS, the City's General flan Land Use Element,which was adopted in 1992 to
guide the City's general growth is in need of revision; and
WHEREAS; the Planning Commission of the City of Atascadero conducted a public
hearing on the subject amendments on February 20, 1996; and
WHEREAS, Government Code Section 65356 provides that a General Pian be amended
by the adoption of a resolution; and
WHEREAS, the Council of the City of Atascadero finds as follows:
1. The proposed General Plan amendment will not have a significant adverse affect
on the environment. The Negative Declaration prepared for the project is
adequate.
2. The proposed General Plan amendment recommended by the Planning
Commission is consistent with the goals and policies of the General Plan.
THEREFORE, the Council of the City of Atascadero does resolve to approve General
Plan Amendment 95-007 as follows:
1. Amendment to the General Plan Land Use Element, Land Use Map as shown on
the attached Exhibit A.
000025
Resolution No. 15-96
Page 2
On motion by and seconded by
the foregoing resolution is hereby adopted in its entirety by the
following roll call vote:
AYES:
NOES:
ABSENT:
ADOPTED:
CITY OF ATASCADERO, CA
By: GEORGE HIGHLAND, Mayor
ATTEST:
LEE PRICE, City Clerk
APPROVED AS TO FORM:
ARTHER R. MONTANDON, City Attorney
PREPARED BY:
STEVEN L. DeCAMP, City Planner
000026
DRAFT
ORDINANCE NO. 30t
t.
AN ORDINANCE O1F THE COUNCIL OF THE CITY OF
ATASCADERO AMENDING THE OFFICIAL ZONING MAPS BY
REZONING CERTAIN REAL PROPERTY AT 6625 NAVAJOA AVENUE
FROM CP (COMMERCIAL PROFESSIONAL) TO RMF 10 (PD#7)
(ZC 95-010; Gearharw)
WHEREAS,the proposed zoning map amendment is consistent:with the General Plan as
required by Section 65850 of the California Government Code; and
WHEREAS, the proposed amendment is in conformance 01,1th Section 65800 et seq. of
the California Government Code concerning zoning regulations; and
WHEREAS, the pr posed amendment will not have a significant adverse impact sur% n
-.._ r.
the environment. The Negative Declaration prepared for the project is adequate; and
WHEREAS, the Atascadero Planning Commission held a ni„blic hearing on February ?n
1996 and has recommended approval of Zone Change 95-010. r ,
NOW, THEREFORE, the Council of the City of Atascadero does ordain as follows:
Section I, Council Find ngg_
!• The proposal is compatible oath the surrounding ianrl l.:se and zoning.
.,b .
2. The proposal is consistent with the General Plan land ince element and other
elements contained in the General Plan.
3. The proposal will not resit in any significant adverse envirLlnmeRtal imparrts
The Negative Declaration prepared for the project is adequate.
.ertion 2. Zoning l"tao.
The Official Zoning flaps of the City of Atascadero on file in the City Community
Development Department are hereby amended as shown on the attached Exhibits A and B
which are hereby made a part of this ordinance by reference.
00'0027
i
Ordinance #301
Section 3. Publication.
The City Clerk shall cause this ordinance to be published once within fifteen (15) days
after its passage in the Atascadero News, a newspaper of general circulation, printed,
published, and circulated in the City in accordance with Section 36933 of the Government
Code; shall certify the adopting and posting of this ordinance and shall cause this ordinance and
this certification together with proof of posting to be entered into the Book of Ordinances of
the City.
Section 4. Effective Date.
This ordinance shall go into effect and be in full force and effect at 112:01 a.m. on the
31 st day after its passage.
On motion by and seconded by
the foregoing Ordinance is approved by the following role call
vote:
AYES:
NOES:
ABSENT:
DATE ADOPTED:
By:
GEORGE HIGHLAND, Mayor
ATTEST:
LEE PRICE, City Clerk
APPROVED AS TO FORM:
ARTHER R. MONTANDON, City Attorney
PREPARED BY:
STEVEN L. DeCAMP, City Planner
aUU011-18
Conditions of Approval
(As amended by the Planning Commission 2-21-96)
Tentative Parcel Map 95-006
6625 Navajoa Avenue
(Gearhart/Cannon Associates)
CONDITIONS OF APPROVAL:
Engineering Division
I. All public improvements shall be constructed in conformance with the City of
Atascadero Engineering Department Standard Specifications and Drawings or as
directed by the City Engineer.
2. The applicant shall enter into an Plan Check/Inspection agreement with the City.
Prior to recordation of the map, all outstanding plan check/inspection fees shall be
paid.
3. The applicant shall obtain an encroachment permit from the City Engineering
Department prior to the start of construction.
4. The applicant shall submit a Preliminary Soils Report for the property to determine
the presence of expansive soil or other soil problems and shall make
recommendations regarding grading of the proposed site. The applicant shall submit
a final soils report by the soils engineer prior to the final inspection. The report shall
certify that all grading was inspected and approved and that all work done is in
accordance with the plans and the preliminary report.
A separate document shall be recorded in conjunction with the parcel map or a note
shall be placed on the parcel map which states that a soils report has been prepared.
The document shall state the date of the report along with the name and address of
the soils engineer or geologist who prepared the report. The document shall
indicate any soils problems which may exist on the newly created lots.
5. All existing and proposed utility, pipeline, open space, scenic or other easements are
to be shown on the parcel map. If there are building or other restrictions related to
the easements, they shall be noted on the parcel map.
6. The relocation and/or alteration of existing utilities shall be the responsibility of the
applicant.
000029
7. The applicant shall install all new utilities (water, gas, electric, cable TV and
telephone) underground.
8. The applicant shall overlay any utility trenching in existing streetsto restore a
smooth riding surface as required by the City Engineer prior to the final inspection.
9. The applicant shall submit a grading and drainage plan, prepared by a registered civil
engineer, for review and approval by the City Engineer prior to the issuance of
building permits. The applicant shall submit a written statement from a registered
civil engineer stating that all work has been completed and is in full compliance with
the approved plans and the Uniform Building Code (UBC).
10. The applicant shall submit a black line clear Mylar (0.4 mit) copy and a blue line print
of the parcel map upon recordation.
If. The applicant shall submit a parcel map in substantial conformance with the approved
tentative map and in compliance with all conditions set forth in the City of
Atascadero Subdivision Ordinance and the Subdivision Map Act shall be submitted to
the City Engineer for approval. The parcel map shall be signed by the City Engineer
prior to it being placed on the agenda for City Council approval
12. The applicant shall submit road improvement plans prepared by aregistered civil
engineer for review and approval by the City Engineer prior to recordation of the
parcel map. Road improvement plans shall conform to the requirements of the City
Standard Specifications, Section 2 - Preparation of Plans. R-value testing shall be
done, and the pavement section designed by a registered civil engineer to the
satisfaction of the City Engineer. Road improvements shall include, but not be
limited to the following.
a. The applicant shall improve Navajoa Avenue from centerline to the property
frontage in conformance with City Standard 405 (Local) contiguous to the entire
property frontage, or as approved by the City Engineer. The improvements may
require the overlaying of the existing pavement to remedy an inadequate structural
section or to remedy a deteriorated paving surface. Transitions shall be constructed
where required to achieve a smooth join with existing improvements.
The applicant shall submit plans which demonstrate the relationship between the
proposed curb &gutter and the existing curb &gutter north of the project site.
b. The applicant shall provide a 5' wide offer of dedication contiguous to the
entire property frontage. Offers of dedication shall be provided for all proposed
public improvements which are constructed outside of the existing right-of-way.
Offers of dedication shall be recorded prior to, or in conjunction with, the parcel
map.
000030
13. All improvements within the right-of-way shall be covered with a 100% Performance
Guarantee and a 50% Labor and Materials Guarantee until the improvements are
deemed substantially complete by the City Engineer. Prior to the final inspection of
the improvements, and before the other guarantees mentioned in this condition are
released, a 10% Maintenance Guarantee shall be posted to cover the improvements
for a period of I year from the date of the final inspection. The guarantee amounts
shall be based on an engineer's estimate submitted by the project engineer and
approved by the City Engineer. The estimate shall be based on City standard unit
prices. The Guarantees posted for this project shall be approved by the City
Attorney.
14. Drainage facilities shall be constructed to City of Atascadero Standards. Each
improvement shall be designed so as to not increase the rate of flow of water onto
adjacent properties or as approved by the City Engineer.
I5. A six (6) foot Public Utility Easement (PUE) shall be provided contiguous to all street
frontages.
16. Drainage shall cross lot lines only where a private drainage easement has been
provided. Drainage from off-site areas shall be conveyed across the project site in
private drainage easements or as approved by the City Engineer.
17. The applicant shall demonstrate that the design capacity of the downstream drainage
improvements, or natural water courses, can adequately convey the total flow of
storm water from the fully developed watershed plus the developed project site
without adversely affecting other properties.
18. The applicant shall monument all property corners for construction control and shall
promptly replace monuments if disturbed. The applicant shall install, or bond for, all
final property corners and street monuments prior to the final inspection.
19. The applicant shall acquire title or interest in any off-site land that may be required
to allow for the construction of the improvements. The applicant shall bear all costs
associated with the necessary acquisitions. The applicant shall also gain concurrence
from all adjacent property owners whose ingress or egress is affected by these
improvements.
20. The applicant shall pay all sewer annexation fees prior to recordation of the parcel
map.
Fire Department
N.
Navajoa Avenue.-
000031
21. The applicant shall upgrade to City standards the existing fire hydrant located
approximately 100 - 150' east of the project site.
Planning Division
22. Prior to the recordation of the final map, General Plan Amendment 95-
007 and Zoning Ordinance Amendment 95-010 shall be approved and
effective.
23. Water shall be obtained from the Atascadero Mutual Water Company. Water lines
shall exist at the frontage of each parcel or its public utilities easement prior to
recordation of the final map.
24. All existing and proposed utility, pipeline, open space, or other easements are to be
shown on the final map. if there are building or other restrictions related to the
easements, they shall be noted on the final map.
25. A road maintenance agreement, in a form acceptable to the City Attorney, shall be
recorded with the deed to each parcel at the time it is first conveyed. A note to this
affect shall appear on the final map.
26. Approval of this tentative map shall expire two years from the date of final approval
unless an extension of time is granted pursuant to a written request prior to the
expiration date.
000032
CITY OF ATASCADERO Item: B. 2
STAFF REPORT
FOR: Planning Commission MEETING DATE: 2-20-96
BY: even L. DeCamp, City Planner FILE NO: GPA 95-007
ZC 95-010
TPM 95-006
SUBJECT:
Proposed amendment to the General Pian Land Use Map from "Office" to "Low Density
Multiple Family", revision of the Zoning Ordinance from "CP (Commercial Professional)" to
"RMF 10 (Low Density Multiple Family) with PD#7 Overlay", and concurrent subdivision of the
parcel into four (4) lots to accommodate residential development.
RECOMMENDATION:
The Planning Commission should make the following recommendations for the City Council's
consideration:
I. Find the Negative Declaration prepared for the project to be adequate.
2. Approve the attached draft Resolution approving General Pian Amendment 95-
007 amending the Land Use Map of the General Pian Land Use Element.
3. Approve the attached draft Ordinance approving Zoning Ordinance Amendment
95-010 amending the Zoning Ordinance Map.
4. Approve Tentative Parcel Map 95-006 based on the Findings for Approval shown
in Attachment F and the Conditions for Approval shown in Attachment G.
SITUATION AND FACTS:
. Applicant..................................................................................... Kelly Gearhart
2. Representative........................................................................... Kelly Gearhart
3. Project Address......................................................................... 6625 Navajoa Avenue
4. General Plan Designation........................................................ Office
000033
7
Staff Report 2
February 20, 1996
GPA 95-007
zc 95-010
TPM 95-006
5. Zoning District........................................................................... CP (Commercial Professional)
6. Site Area....................................................................................... 0.47 acres
7. Existing Use.................................................................................. Vacant
8. Environmental Status................................................................. Negative Declaration posted
January 25, 1996
BACKGROUND.•
The parcel proposed for redesignation and development was part of a larger ownership which
currently contains some professional office uses. Although this parcel has frontage on a
residential street, it remained in the CP (Commercial Professional) zoning district to allow for
what was anticipated to be expanded office type uses. The property has recently been sold to
the applicant who is seeking to develop the parcel for residential use.
ANALYSIS:
General Pian Amendment
The parcel for which the general plan amendment is proposed is currently vacant, although City
sewer maps indicate that a single family dwelling may have existed on the lot at some point in
the past. The property has historically been designated for "Office" development as part of a
larger ownership. Office uses do exist on a portion of that larger ownership, and the
anticipation has been that expanded office development would ultimately include this parcel.
Navajoa Avenue is primarily a residential street. Existing development along this street consists
of older single family homes and some small multiple family developments. The property on
the opposite side of Navajoa Avenue and that to the south of this site are Currently designated
for "Low Density Multiple Family" development on the General Plan Land Use Map. An
amendment to the General Plan to designate this property for multiple family development
would be consistent with existing development patterns.
There are numerous areas in Atascadero where commercial and residential uses are forced to
coexist in proximity to one another. Along the length of EI Camino Real, commercial uses abut
residential development along rear property lines. In several instances, residential uses are
virtually surrounded by commercial development as a remnant of some earlier land use
pattern. Likewise, along Morro Road, much of the commercial and office uses share property
000034
Staff Report 3
February 20, 1996
GPA 95-007
ZC 95-010
TPM 95-006
lines with residential property. In some locations commercially designated parcels have
frontage on both Morro Road and the parallel residential street.
The intrusion of commercial type uses into residential neighborhoods can and does cause
conflicts between neighboring uses. Commercial uses typically generate larger volumes and
different types-of traffic than do residential uses. The noise andlight created by commercial
land uses are typically detrimental to residential properties as well. Commercial type uses
which front on Morro Road tend to leave blank walls and parking lots as neighbors for adjacent
homes. These type of conflicts and incompatible uses should be avoided where possible for the
benefit of both the existing and future commercial and residential uses.
If approved,the proposed general plan amendment before the Commission would eliminate
one such area of potential conflict. If the parcel in question is developed for commercial use as
part of a larger project with frontage on Morro Road,the best that could be accomplished for
the residential neighborhood would be to "soften" the new development with landscaping and
sensitive building design. If the lot is developed for commercial or office use independently of
the larger land holding,few things could be done to mitigate the detrimental impacts on
surrounding residences. At a minimum, Navajoa Avenue would be expected to accommodate
increased commercial traffic in addition to the lose of continuity of the residential development
pattern.
Zoning Ordinance Amendment
The parcel before the Commission for consideration is currently zoned "CP (Commercial
Professional" consistent with its "Office" land use designation. This zoning district allows for
typical office uses in addition to limited general retail type rises. As discussed in the section
above, most of the allowed uses in the CP zone are neither compatible nor desirable when
located in a residential neighborhood.
The applicant has proposed that his parcel be designated RMF 10 (Low Density Multiple Family)
consistent with its proposed Land Use Map designation. Such a designation is also consistent
with the zoning of adjacent residential properties.
The applicant is further proposing that a PD#7 Overlay be applied to the property to allow for
a small lot subdivision. If approved, the PD#7 Overlay would allow for a four lot subdivision.
The density of development allowed under the PD#7 Overlay would not exceed the density
allowed under a straight RMF 10 designation. As shown on Attachment C, the proposed
subdivision meets all of the development standards established for PD#7 projects. This
000035
3
Staff Report 4
February 20, 1996
GPA 95-007
ZC 95-010
TPM 95-006
development will result in a project that is consistent in size and nature with other residential
uses in the surrounding area..
Tentative Parcel Map
The tentative parcel map is the "master plan of development" for the PD#7 Overlay zone. The
map proposes to divide the applicant's parcel into four (4) lots of approximately 5,000 square
feet each. Each lot would be developed with an approximately 1600 square foot, two story
home. Each of the dwellings would have two bedrooms and a den or study.
The subdivision of this property does not present any particular problems or challenges. The
property is relatively flat. There is a large (40") Oak tree located in the northeast corner of
the parcel that will be retained. The other large tree on the property is dead.
Findings for Approval of the tentative map are shown in Attachment F. Conditions of Approval
are included in Attachment G. There are no extraordinary or unusual con0itions of approval
recommended for this project.
CONCLUSIONS:
The proposed General Plan and Zoning Ordinance amendments will result in a development
pattern which is both consistent with surrounding development and preferable to that which
would be anticipated under the existing General Plan and Zoning designations. The ultimate
development of the property in accordance with the PD#7 Overlay will result in the availability
of additional moderate cost housing and an alternative to the primarily large lot single family
residential pattern available elsewhere in Atascadero.
Although it is desirable to maintain an adequate inventory of property zoned for commercial
and office type uses, numerous economic development studies have shown that this City has an
overabundance of property zoned for such uses. Removal of this 0.5 acre parcel from the
"office" inventory will not have detrimental consequences for economic development, and will
have a very positive affect on the adjacent residential neighborhood.
ATTACHMENTS:
Attachment A - Existing General Plan Map
Attachment B - Existing Zoning Map
Attachment C - Tentative Parcel Map/Planned Development Overlay
000036
Staff Report 5
February 20, 1996
GPA 95-007
ZC 95-010
TPM 95-006
Attachment D - Draft Resolution
Attachment E - Draft Ordinance
Attachment F - TPM Findings For Approval
Attachment G - TPM Conditions of Approval
00003'7
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Attachment C
Tentative Parcel Map
CITY OF ATASCADERO
ZC 915-010
COMMUNITY DEVELOPMENT TPM e95-006
DEPARTMENT
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Attachment D
DRAFT
RESOLUTION NO.
A RESOLUTION OF THE COUNCIL OF THE CITY OF ATASCADERO
APPROVING AN AMENDMENT TO THE GENERAL PLAN LAND USE MAP
OF THE LAND USE ELEMENT AT 6625 NAVA)OA AVENUE
(GPA 95-007; Gearhart)
WHEREAS, the City of Atascadero has grown considerably since incorporation; and
WHEREAS, the City's General Plan Land Use Element, which was adopted in 1992 to
guide the City's general growth is in need of revision; and
WHEREAS; the Planning Commission of the City of Atascadero conducted a public
hearing on the subject amendments on February 20, 1996; and
WHEREAS, Government Code Section 65356 provides that a General Plan be amended
by the adoption of a resolution; and
WHEREAS,the Council of the City of Atascadero finds as follows:
I. The proposed General Plan amendment will not have a significant adverse affect
on the environment. The Negative Declaration prepared for the project is
adequate.
2. The proposed General Plan amendment recommended by the Planning
Commission is consistent with the goals and policies of the General Plan.
THEREFORE, the Council of the City of Atascadero does resolve to approve General
Plan Amendment 95-007 as follows:
1. Amendment to the General Plan Land Use Element, Land Use Map as shown on
the attached Exhibit A.
0
0000,11
Resolution No.
Page
On motion by and seconded by
the foregoing resolution is hereby adopted in its entirety by the
following roll call vote:
AYES:
NOES:
ABSENT:
ADOPTED:
CITY OF ATASCADEPO, CA
By: GEORGE HIGHLAND, Mayor
ATTEST:
LEE PRICE, City Clerk
APPROVED AS TO FORM:
ARTHER R. MONTANDON, City Attorney
PREPARED BY:
STEVEN L. DeCAMP, City Planner
i
0000112
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DRAFT Attachment E
ORDINANCE NO.
AN ORDINANCE OF THE COUNCIL OF THE CITY OF
ATASCADERO AMENDING THE OFFICIAL ZONING MAPS BY
REZONING CERTAIN REAL PROPERTY AT 6625 NAVAJOA AVENUE
FROM CP (COMMERCIAL PROFESSIONAL) TO RMF 10 (PD#7)
(ZC 95-010; Gearhart)
WHEREAS, the proposed zoning map amendment is consistent with the General Plan as
required by Section 65860 of the California Government Code; and
WHEREAS, the proposed amendment is in conformance with Section 65800 et seq. of
the California Government Code concerning zoning regulations; and
WHEREAS, the proposed amendment will not have a significant adverse impact upon
the environment. The Negative Declaration prepared for the project is adequate; and
WHEREAS, the Atascadero Planning Commission held a public hearing on February 20,
1996 and has recommended approval of Zone Change 95-010.
NOW, THEREFORE, the Council of the City of Atascadero does ordain as follows:
Section 1. Council Findings.
I. The proposal is compatible with the surrounding land use and zoning.
2. The proposal is consistent with the General Plan land use element and other
elements contained in the General Plan.
3. The proposal will not result in any significant adverse environmental impacts.
The Negative Declaration prepared for the project is adequate.
Section 2. Zoning Mai
The Official Zoning Maps of the City of Atascadero on file in the City Community
Development Department are hereby amended as shown on the attached Exhibits A and B
which are hereby made a part of this ordinance by reference.
000044
Ordinance #
Section 3. Publication.
The City Clerk shall cause this ordinance to be published once within fifteen (15) days
after its passage in the Atascadero News, a newspaper of general circulation, printed,
published, and circulated in the City in accordance with Section 36933 of the Government
Code; shall certify the adopting and posting of this ordinance and shall cause this ordinance and
this certification together with proof of posting to be entered into the Book of Ordinances of
the City.
Section 4. Effective Date.
This ordinance shall go into effect and be in full force and effect at 12:01 a.m. on the
31 st day after its passage.
On motion by and seconded by
the foregoing Ordinance is approved by the following role call
vote:
AYES:
NOES:
ABSENT:
DATE ADOPTED:
By:
GEORGE HIGHLAND, Mayor
ATTEST:
LEE PRICE, City Clerk
APPROVED AS TO FORM:
ARTHER R. MONTANDON, City Attorney
PREPARED BY:
STEVEN L. DeCAMP, City Planner
0000,1
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CITY OF ATASCADERO Exhibit B
COMMUNITY DEVELOPMENT PD#7 Master Plan _
DEPARTMENT
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J0047
Attachment F
Findings ,vr Approval
Tentative Parcel Map 95-046
6625 Navajoa Avenue
(Gearhart/Cannon Associates)
ENVIRONMENTAL FINDING:
The proposed Tentative Parcel Map will not have a significant impact on the environment. The
Negative Declaration prepared for the project is adequate.
MAP FINDINGS:
1. The proposed map is consistent with the applicable General or Speicific Plan.
2. The design and/or improvement of the proposed subdivision is consistent with the
applicable General or Specific Plan.
3. (he site is physically suitable for the proposed type of development.
4. The site is physically suitable for the proposed density of development.
5. The design of the subdivision andfor the proposed improvements, will not cause
substantial environmental damage or substantially and avoidably injure fish and wildlife
or their habitat.
6. The design of the subdivision, and the type of improvements, will not conflict with
easements acquired by the public at large for access through or use of property within
the proposed subdivision; or substantially equivalent alternate easements are provided.
7. The design of the subdivision and/or the type of proposed improvements will not cause
serious public health problems.
0000,18
Attachment G
Conditions of Approval
Tentative Parcel Map 95-006
6625 Navajoa Avenue
(Gearhart/Cannon Associates)
CONDITIONS OF APPROVAL:
Engineering Division
I. All public improvements shall be constructed in conformance with the City of
Atascadero Engineering Department Standard Specifications and Drawings or as
directed by the City Engineer.
2. The applicant shall enter into an Plan Checklinspection agreement with the City.
Prior to recordation of the map, all outstanding plan check/inspection fees shall be
paid.
3. The applicant shall obtain an encroachment permit from the City Engineering
Department prior to the start of construction.
4. The applicant shall submit a Preliminary Soils Report for the property to determine
the presence of expansive soil or other soil problems and shall make
recommendations regarding grading of the proposed site. The applicant shall submit
a final soils report by the soils engineer prior to the final inspection. The report shall
certify that all grading was inspected and approved and that all work done is in
accordance with the plans and the preliminary report.
A separate document shall be recorded in conjunction with the parcel map or a note
shall be placed on the parcel map which states that a soils report has been prepared.
The document shall state the date of the report along with the name and address of
the soils engineer or geologist who prepared the report. The document shall
indicate any soils problems which may exist on the newly created lots.
5. All existing and proposed utility, pipeline, open space, scenic or other easements are
to be shown on the parcel map. If there are building or other restrictions related to
the easements, they shall be noted on the parcel map.
6. The relocation and/or alteration of existing utilities shall be the responsibility of the
applicant.
000040
7. The applicant shall install all new utilities (water, gas, electric, cable TV and
telephone) underground.
8. The applicant shall overlay any utility trenching in existing streets to restore a
smooth.riding surface as required by the City Engineer prior to the final inspection.
9. The applicant shall submit a grading and drainage plan, prepared by a registered civil
engineer, for review and approval by the City Engineer prior to the issuance of
building permits. The applicant shall submit a written statement from a registered
civil engineer stating that all work has been completed and is in full compliance with
the approved plans and the Uniform Building Code (UBC).
10. The applicant shall submit a black line clear Mylar (0.4 mil) copy and a blue line print
of the parcel map upon recordation.
11. The applicant shall submit a parcel map in substantial conformance with the approved
tentative map and in compliance with all conditions set forth in the City of
Atascadero Subdivision Ordinance and the Subdivision Map Act shall be submitted to
the City Engineer for approval. The parcel map shall be signed by the City Engineer
prior to it being placed on the agenda for City Council approval.
12. The applicant shall submit road improvement plans prepared by a registered civil
engineer for review and approval by the City Engineer prior to recordation of the
parcel map. Road improvement plans shall conform to the requirements of the City
Standard Specifications, Section 2 - Preparation of Plans. R-valuetesting shall be
done, and the pavement section designed by a registered civil engineer to the
satisfaction of the City Engineer. Road improvements shall include, but not be
limited to the following:
a. The applicant shall improve Navajoa Avenue from centerline to the property
frontage in conformance with City Standard 405 (Local) contiguous to the entire
property frontage, or as approved by the City Engineer. The improvements may
require the overlaying of the existing pavement to remedy an inadequate structural
section or to remedy a deteriorated paving surface. Transitions shall be constructed
where required to achieve a smooth join with existing improvements.
The applicant shall submit plans which demonstrate the relationship between the
proposed curb &gutter and the existing curb &gutter north of the project site.
b. The applicant shall provide a Y wide offer of dedication contiguous to the
entire property frontage. Offers of dedication shall be provided for all proposed
public improvements which are constructed outside of the existing right-of-way.
Offers of dedication shall be recorded prior to, or in conjunctionj with, the parcel
map.
000050
13. All improvements within the right-of-way shall be covered with a 100% Performance
Guarantee and a 50% Labor and Materials Guarantee until the improvements are
deemed substantially complete by the City Engineer. Prior to the final inspection of
the improvements, and before the other guarantees mentioned in this condition are
released, a 10% Maintenance Guarantee shall be posted to cover the improvements
for a period of 1 year from the date of the final inspection. The guarantee amounts
shall be based on an engineer's estimate submitted by the project engineer and
approved by the City Engineer. The estimate shall be based on City standard unit
prices. The Guarantees posted for this project shall be approved by the City
Attorney.
14. Drainage facilities shall be constructed to City of Atascadero Standards. Each
improvement shall be designed so as to not increase the rate of flow of water onto
adjacent properties or as approved by the City Engineer.
15. A six (6) foot Public Utility Easement (PUE) shall be provided contiguous to all street
frontages.
16. Drainage shall cross lot lines only where a private drainage easement has been
provided. Drainage from off-site areas shall be conveyed across the project site in
private drainage easements or as approved by the City Engineer.
17. The applicant shall demonstrate that the design capacity cf the downstream drainage
improvements, or natural water courses, can adequately convey the total flow of
storm water from the fully developed watershed plus the developed project site
without adversely affecting other properties.
18. The applicant shall monument all property corners for construction control and shall
promptly replace monuments if disturbed. The applicant shall install, or bond for, all
final property corners and street monuments prior to the final inspection.
19. The applicant shall acquire title or interest in any off-site land that may be required
to allow for the construction of the improvements. The applicant shall bear all costs
associated with the necessary acquisitions. The applicant shall also gain concurrence
from all adjacent property owners whose ingress or egress is affected by these
improvements.
20. The applicant shall pay all sewer annexation fees prior to recordation of the parcel
map.
Fire Department
21. The applicant shall install one (1) fire hydrant along the proposed new accessway
approximately eighty feet (80) from its intersection with Navajoa Avenue.
000051
22. The applicant shall upgrade to City standards the existing fire hydrant located
approximately 100 - ISO' east of the project site.
Planning Division
23. Water shall be obtained from the Atascadero Mutual Water Company. Water lines
shall exist at the frontage of each parcel or its public utilities easement prior to
recordation of the final map.
24. All existing and proposed utility, pipeline, open space, or other easements are to be
shown on the final map. If there are building or other restrictions related to the
easements, they small be noted on the final map.
25. A road maintenance agreement, in a form acceptable to the City Attorney, shall be
recorded with the deed to each parcel at the time it is first conveyed. A note to this
affect shall appear on the final map.
26. Approval of this tentative map shall expire two years from the date of final approval
unless an extension of time is granted pursuant to a written request prior to the
expiration date.
000052
MINUTES EXCERPTS
Planning Commission Meeting -- February 20, 1996
SUBJECT: B. HEARINGS, APPEARANCES, AND REPORTS
2 . TENTATIVE PARCEL MAP 95006/GENERAL PLAN AMENDMENT
95007/ ZONE CHANGE 95010 :
Application filed by Kelly Gearhart for amendment to
the General Plan Land Use Map from "Office" to "Low
Density Multiple Family" , revision of the Zoning
Ordinance from "CP (Commercial Professional) " to "RMF-
10 (Low Density Multiple Family) with PD #7 Overlay" ,
and concurrent subdivision of the parcel into four (4)
lots to accommodate residential development . Subject
site is located at 6625 Navajoa Ave.
STAFF RECOMMENDATION: (DeCamp)
Staff recommends the following actions :
1 . Find the Negative Declaration prepared for the project
adequate .
2 . Approve the attached draft Resolution approving General Plan
Amendment #95007 amending the Land Use Map of the General
Plan Land Use Element .
3 . Approve the attached draft Ordinance approving Zoning
Ordinance Amendment #95010 amending the Zoning Ordinance
Map.
4 . Approve Tentative Parcel Map #94006 based on the Findings
for Approval shown in Attachment F and the Conditions for
Approval shown in Attachment G.
At this point, Mr. Decamp asked that the following modifications be
made to the Planning Commission Conditions of Approval on Tentative
Parcel Map #95006 : 1) Condition #21 should be eliminated; and 2) the
following condition should be added: "Prior to the recordation of the
final map, General Plan Amendment #95007 and Zoning Ordinance
Amendment #95010 shall be approved and effective. "
Commissioner Johnson stood down because of a possible conflict of
interest on this matter.
TESTIMONY:
John Falkenstein, of Cannon Associates, represented the applicant and
indicated that he was satisfied with the staff report as written. He
answered questions the Commission had.
000053
Planning Commission Meeting -- February 20, 1996
ACTION: Find the Negative Declaration prepared for the project
adequate .
Motion: Wallace
Second: Zimmerman
AYES : Wallace, Zimmerman, Sauter, Bowen, Hageman, Edwards
NOES : None
ABSENT: None
ACTION: Approve the attached draft Resolution approving General Plan
Amendment #95007 amending the Land Use Map of the General
Plan Land Use Element .
Motion: Wallace
Second: Zimmerman
AYES : Wallace, Zimmerman, Sauter, Bowen, Hageman, Edwards
NOES : None
ABSENT: None
ACTION: Approve the attached draft Ordinance approving Zoning
PP g g
Ordinance Amendment #95010 amending the Zoning Ordinance
Map.
Motion: Wallace
Second: Bowen
AYES : Wallace, Bowen, Sauter, Hageman, Zimmerman, Edwards
NOES: None
ABSENT: None
ACTION: Approve Tentative Parcel Map #95006 based on the Findings
for Approval shown in Attachment F and the: Conditions for
Approval , as amended above, and shown in Attachment G.
Motion: Bowen
Second: Wallace
AYES : Bowen, Wallace, Sauter, Hageman, Zimmerman, Edwards
NOES : None
ABSENT: None
000054
i
REPORT TO CITY COUNCIL
CITY OF ATASCADERO Agenda Item• B-2
Through: Andrew Takata, City Manager Meeting Date: 03/12/96
File Number: ZC 94007
TPM94005
Via: Steven L. DeCamp, City Planner
From: Doug Davidson, Senior Planner
SUBJECT:
Consideration of a tentative tract map application Ito subdivide a
1 . 60 acre property into nine (9) lots for single family residen-
tial development using the Planned Development Ovferlay Zone #7
(PD7 ) . Subject site is located at 9244-9248 San Rafael (O'Reilly
Family Trust) .
RECOMMENDATION•
Staff recommends the following actions as recommended by the
Planning Commission:
( 1) Approval of Zone Change 94007 as follows :
(a) Motion to waive reading in full, and read by title only
Ordinance No. 299; and
(b) Motion to introduce Ordinance No. 299 on first reading by
title only; and
(2) Approval of Tentative Parcel Map 94005 based on the Findings
contained in the staff report, dated Februarys 20, 1996, and
subject to the attached Revised Conditions ofApproval.
BACKGROUND:
On February 20, 1996, the Planning Commission conducted a public
hearing on the above-referenced applications . After discussion
(see the attached minutes excerpts) the Planning Commission, on a
7 :0 vote, recommended approval of the Tentative Parcel Map and Zone
Change requests, subject to eliminating proposed , Lot #9 (added
Condition #22 ) .
cc: O' Reilly Family Trust
Vaughan Surveys
Attachments : Ordinance No. 299
Revised Conditions of Approval - February 20, 1996
Planning Commission Staff Report - February 20, 1996
Minutes Excerpts - February 20, 1996 '
ORDINANCE NO. 299
AN ORDINANCE OF THE COUNCIL OF THE CITY OF
ATASCADERO AMENDING MAP 23 OF THE OFFICIAL ZONING
MAPS BY REZONING CERTAIN REAL PROPERTIES AT 9244-9248
SAN RAFAEL ROAD FROM RMF/10 TO RMF/10 (PD7)
(ZC 94007: O'REILLY/VAUGHAN)
WHEREAS, the proposed zoning map amendments are consistent
with the General Plan in effect at the time of application
acceptance, as required by Section 65860 of the California
Government Code; and
WHEREAS, the proposed amendments are in conformance with
Section 65800 et seq. of the California Government Code concerning
zoning regulations; and
WHEREAS, the proposed amendments will not have a significant
adverse impact upon the environment. The Negative Declaration
prepared for the project is adequate; and
WHEREAS, the Atascadero Planning Commission held a public
hearing on February 20, 1996, and has recommended approval of Zone
Change 94007 .
NOW, THEREFORE, the Council of the City of Atascadero does
ordain as follows :
Section 1 . Council Findings.
1 . The proposal is compatible with surrounding land uses and
the zoning in effect at the time of application
acceptance.
2 . The proposal is consistent with the General Plan
in effect at the time of application acceptance.
3 . The proposal will not result in any significant adverse
environmental impacts. The Negative Declaration
prepared for the project is adequate.
4 . Modification of development standards or processing
requirements is warranted to promote orderly and
harmonious development.
5 . Modification of development standards or processing
requirements will enhance the opportunity to best utilize
special characteristics of an area and will have a
beneficial effect on the area.
000056,
Ordinance No. 299
40 Page 2
6. Benefits derived from the overlay zone cannot be
reasonably achieved through existing development
standards or processing requirements.
7 . The proposed plans offer certain redeeming features to
compensate for requested modifications.
Section 2 . Zoning Map.
Map number 23 of the Official Zoning Maps of the City of
Atascadero on file in the City Community Development Department is
hereby amended to reclassify the parcels listed below, and shown on
the attached Exhibit A, which are hereby made apart of this
ordinance by reference.
Ptn. Lot 9; Block 35; Atascadero Colony
Assessor' s Parcel Is 045-361-027/028
Development of said property shall be in accordance with the
standards of the Planned Development Overlay Zone No. 7, the Site
Plan shown on the attached Exhibit B, and any '',conditions of
approval imposed during the approval of this zone change, Tentative
Tract Map 94005, and/or any other associated applications .
Section 3 . Publication.
The City Clerk shall cause this ordinance to be published once
within fifteen ( 15 ) days after its passage in the Atascadero News,
a newspaper of general circulation, printed, published, and
circulated in the City in accordance with Section 36933 of the
Government Code; shall certify the adopting and posting of this
ordinance and shall cause this ordinance and this certification
together with proof of posting to be entered into the Book of
Ordinances of the City.
Section 4 . Effective Date.
This ordinance shall go into effect and be in full force and
effect at 12 :01 a.m. on the 31st day after its passage.
On motion by and seconded by
, the foregoing Ordinance is approved by
the following roll call vote:
AYES:
NOES:
ABSENT:
00005'7
Ordinance No. 299"
Page 3
ADOPTED:
CITY OF ATASCADERO
By:
GEORGE P. HIGHLAND, Mayor
ATTEST:
LEE PRICE, City Clerk
APPROVED AS TO FORM:
ARTHER R. MONTANDON, City Attorney
PREPARED BY:
STEVEN L. DECAMP, City Planner
000058
REVISED CONDITIONS OF APPROVAL
Tentative Tract Map #94005
9244-9248 San Rafael (O'Reilly/Vaughan)
Revised by the Planning Commission February 20, 1996
CONDITIONS OF APPROVAL:
Fire Department Conditions
1 . Prior to the recordation of the Parcel Map, a new fire
hydrant shall be installed to serve the cul-de-sac,
approximately in front of Lot #2 . The precise type and
exact location of said fire hydrant shall be as approved
by the Fire Marshall and City Engineer.
Engineering Division Conditions
2-- All imnrnva lents fihal l lap- r-nnsfr1ir_tRH im n fnrmanc-P with
City of Atascadero Engineering Department Standard
Specifications and Drawings or as directed by the City
Engineer.
3 . The applicant shall enter into an Plan Check/Inspection
agreement with the City. Prior to recordation of the map,
all outstanding plan check/inspection fees shall be paid.
4. An encroachment permit shall be obtained from the City
Engineering Department prior to the start of construction.
5 . A Preliminary Soils Report shall be prepared for the
property to determine the presence of expansive soil or
other soil problems and shall make recommendations
regarding grading of the proposed site. A final soils
report shall be submitted by the soils engineer prior to
the final inspection and shall certify that all grading
was inspected and approved and that all world done is in
accordance with the plans and the preliminary report.
A separate document shall be recorded in conjunction with
the final map stating that a soils report has been
prepared. The document shall state the date of the report
along with the name and" address of the soils engineer or
geologist who prepared the report. The document shall
indicate any soils problems which may exist 'i on the newly
created lots .
6. All improvements within the right-of-way shall be covered
with a 100% Performance Guarantee and a 50% Labor and
Materials Guarantee until the improvements are deemed
substantially complete by the City Engineers Prior to the
1
000059
final inspection of the improvements, and before the
Performance, Labor and Materials Guarantees are
released, a 10% Maintenance Guarantee shall be posted to
cover the improvements for a period of 1 year from the
date of the final inspection. The guarantee amounts shall
be based on an engineer' s estimate submitted by the
project engineer and approved by the City Engineer. The
estimate shall be based on City standard unit prices. The
Guarantees posted for this project shall be approved by
the City Attorney.
7. A six (6) foot Public Utility Easement (PUE) shall be
provided contiguous to all street frontages.
8. All existing and proposed utility, pipeline, open space,
scenic or other easements are to be shown on the final
map. If there are building or other restrictions related
to the easements, they shall be noted on the final map.
9. The relocation and/or alteration of existing utilities
shall be the responsibility of the developer.
10. The applicant shall install all new utilities (water, gas,
electric, cable TV and telephone) underground.
Utilities shall be extended to the property line frontage
of each lot or its public utility easement.
11. Any utility trenching in existing streets shall be
overlayed to restore a smooth riding surface as required
by the City Engineer.
12. Drainage facilities shall be constructed to City of
Atascadero Standards. Each improvement shall be designed
so as to not increase the rate of flow of water onto
adjacent properties. Drainage shall cross lot lines only
where a private drainage easement has been provided for
such purpose. Drainage from off-site areas shall be
conveyed across the project site in private drainage
easements.
13. A grading and drainage plan, prepared by a registered
civil engineer, shall be submitted for review and approval
by the City Engineer prior to the recordation of the final
map. A registered civil engineer shall provide a written
statement that all work has been completed and is in full
compliance with the approved plans and the Uniform
Building Code (UBC) .
14. Road improvement plans prepared by a registered civil
engineer shall be submitted for review and approval by the
City Engineer prior to recordation of the final map. Road
improvement plans shall conform to the requirements of the
2
000060
i
City Standard Specifications, Section 2 - Preparation of
Plans. R-value testing shall be done, and the pavement
section designed by a registered civil engineer to the
satisfaction of the City Engineer. Road improvements
shall include, but not be limited to the following:
a. San Rafael Court shall be improved from centerline to
the property frontage in conformance with City
Standard 405 (Local) contiguous to the entire
property frontage, or as approved by the City
Engineer. The improvements may require the
overlaying of the existing pavement to remedy an
inadequate structural section or to remedy a
deteriorated paving surface. Transitions shall be
constructed where required to achieve a smooth join
with existing improvements.
b. The on-site street shall be fully improved to City
Std 405 (Local) .
C. A fifty (50) foot wide offer of dedication shall be
provided for Catalpa Court.
d. The Catalpa Court cul-de-sac shall be fully improved
to City Standard 415 (Typical Cul-de-Sac, urban) and
shall incorporate curb, gutter and sidewalk. An
offer of dedication for the cul-de-sac in conformance
with City Standards shall be provided.
e. Slope easements shall be provided on each side of the
right-of-way as needed to accommodate cut or fill
slopes.
f. A five (5) foot wide offer of dedication shall be
provided along the entire San Rafael Court property
frontage.
g. A cross gutter in conformance with City Standard 421
shall be constructed at the intersection of Catalpa
Court and San Rafael Court, or as approved by the
City Engineer.
15. All property corners shall be monumented for construction
control and shall be promptly replaced if disturbed. All
final property corners and street monuments shall be
installed, or bonded for, prior to acceptance of the
improvements.
16 . A black line clear Mylar (0.4 mil) copy and a blue line
print of the tract map shall be provided to the City upon
recordation.
3
000061
17. A Mylar copy and a blue line print of as-built improvement
plans, signed by the registered engineer who prepared the
plans shall be provided to the City Engineer prior to the
final inspection. A certification shall be included that
all survey monuments have been set as shown on the tract
map.
18. A final map in substantial conformance with the approved
tentative map and in compliance with all conditions set
forth in the City of Atascadero Subdivision Ordinance and
the Subdivision Map Act shall be submitted to the City
Engineer for approval. The final map shall be signed by
the City Engineer prior to it being placed on the agenda
for City Council approval.
19. The applicant shall acquire title or interest in any off-
site land that may be required to allow for the
construction of the improvements. The applicant shall
bear all costs associated with the necessary acquisitions.
The applicant shall also gain concurrence from all
adjacent property owners whose ingress or egress is
affected by these improvements.
20. All work shall be completed, or bonded, prior to
recordation of the final map. The applicant shall enter
into a Subdivision Agreement with the City if the work is
to be bonded. The Subdivision Agreement shall be
submitted for review and approval by the City Attorney and
the City Engineer. The Subdivision Agreement shall be
recorded in conjunction with the final map.
21. Sewer annexation fees shall be paid prior to the
recordation of the final map.
Planning Division Conditions
22. The Tract Map shall be revised to an eight (8) lot
subdivision by eliminating Lot #9 so that there is no
proposed residential unit to the rear (west) of Lots 6 and
7.
23. Prior to recording the map, Zone Change 94007 (Ordinance
299 ) shall be approved and effective.
24. Exterior fencing shall be consistent throughout the
project: Design and appearance of fences and/or walls
shall be reviewed by the Planning Division and found to be
compatible with the design of the dwelling units.
Fencing, per this condition, includes both the perimeter
fencing of the entire 1.6 acre site and the fencing
4
000062
between the individual units. Fencing along the freeway
must either respect the highway right-of-way or be
reviewed and approved as an encroachment by Caltrans. In
order to preserve an open feeling of community, fencing
for the individual parcels shall not extend into the front
setback beyond the front of the residence.
25. A landscape plan, with primary emphasis along the freeway
frontage, shall be submitted with the final map. An
encroachment permit, including responsibilities for
maintenance, shall be obtained from Caltransprior to
recording the final map.
26. Construction of the new residences along theifreeway shall
comply with the noise mitigation measures of the Noise
Element as contained in Volume III - Acoustical Design
Manual. (Note: Normal construction practices under
current building codes should accomplish the; necessary
noise level reduction without further mitigation. )
27. The side setback of the residence on corner Lot 8 shall be
revised to a minimum of 12 feet along the entire length as
required by the PD7 standards.
28. This tentative map approval shall expire two (2) years
from the date of final approval unless an extension of
time is granted pursuant to a written request received
prior to the expiration date.
5
000063
CITY OF ATASCADERO Item: B . 1
STAFF REPORT
FOR: Planning Commission Meeting Date: February 20, 1996
BY• oug Davidson, Senior Planner File No: TPM #94005
SUBJECT:
Consideration of a tentative tract map application to subdivide a
1.60 acre property into nine (9 ) lots for single family
residential development using the Planned Development Overlay
Zone #7 (PD7) .
RECOMMENDATION:
Staff recommends the following actions:
1. That the Negative Declaration prepared for the project be
found adequate under the requirements of the California
Environmental Quality Act (CEQA) ; and
2. That Tentative Tract Map #94005 be recommended for approval
to the City Council based on the Findings for Approval
contained in Attachment J and the Conditions of Approval
contained in Attachment K.
3. That Zone Change 94007 be recommended for approval to the
City Council based on the Findings contained within Draft
Ordinance 299 (Attachment L) .
A. SITUATION AND FACTS:
1. Applicant. . . . . . . . . . . . . . . . . . . .O'Reilly Family Trust
2. Representative. . . . . . . . . . . . . . .Vaughan Surveys
3. Project Address. . . . . . . . . . . . . .9244-9248 San Rafael
4 . Site Area. . . . . . . . . . . . . . . . . . . . 1.60 acres
6. Zoning. . . . . . . . . . . . . . . . . . . . . . .RMF-10 (Res. Mult. Family,
10 units/acre maximum)
7. General Plan Designation. . . . .Low Density Single Family
8. Existing Use. . . . . . . . . . . . . . . . .Vacant
9. Environmental Status. . . . . . . . .Negative Declaration
posted January 30, 1996
1
000()64
B. ANALYSIS:
The proposed project is the subdivision of a 1.6 acre parcel into
J
nine lots for single family residential development'. The
proposed lots range from approximately 4,000 square feet to 8, 000
square feet. The minimum lot size in the RMF-10 zone is one-half
acre; thus the applicant is requesting the Planned Development
Overlay Zone #7 (PD7) to allow for a small lot subdivision.
Hence, the following analysis will focus primarily on the
findings and standards of the PD7 zone and the Subdivision
Ordinance.
Planned Development Overlay Zone No.7
Planned Development Overlay Zones (Section 9-3.641); are used to
modify development standards "to promote orderly and harmonious
development and to enhance the opportunity to best utilize
special characteristics of an area. " The intent of the PD zones
is to provide a "beneficial effect" that cannot be realized by
applying the existing standards. As contained in Zoning
Ordinance Section 9-3.651, the PD7 Zone was established for small
lot subdivisions.
A thorough preliminary review of this project occurred during the
determination of completeness phase. This resulted' in the
project ultimately being designed in compliance with these
standards. The building setbacks and coverage requirements are
satisfied, as well as the amount of landscaping and open space
design. (The only exception to setback compliance is the San
Rafael street side setback which is slightly short -- Condition
#25 ensures that the minimum 12 feet is provided. ) Adequate
parking is provided with each unit having a two-car garage and a
guest space provided in the driveway. Catalpa Court is designed
per City standards, including the minimum frontage.
While the City standards have all been satisfied, there are two
instances where meeting the requirement does not necessarily
ensure the intent. First, the front setback requirement of 15
feet at residence and 20 feet to garage is intended to recess the
garage and showcase the residence within a subdivision. Proposed
Lot 4 provides an example of this, while proposed Lot 7 is not
what was envisioned in the PD standards. The remainder of the
parcels show the garage and residence at approximately equal
front setbacks. In this case, the subdivision is designed with
little margin for error and the minimum setbacks have been
observed. The number of different layouts and floor plans will
avoid visual monotony.
Secondly, the width and radius of the Catalpa Court cul-de-sac is
designed to City standard. The result is a considerable portion
(one-half acre) of the site devoted to the new right-of-way.
2
000065
I
This is not the first time Planning staff has questioned the
imposition of full-width City standard road improvements. It
seems in some cases, usually residential settings, that the City
Engineering standards are contrary to the historical Colony
street pattern, as well as modern "neotraditional" planning
ideas. This is an issue for another time, however, as much time
and energy has been expended toward designing this subdivision to
City standards.
The PD Overlay is the appropriate method to establish smaller lot
sizes in the multiple family zones. In this case, the
"beneficial effect" is a home ownership opportunity and the
existing inhibiting standard is the one-half acre minimum lot
size requirement. The minimum lot size may be decreased as long
as the overall density is not exceeded. Nine (9) two-bedroom
units are the allowed maximum density on a site of this size and
terrain in the RMF-10 zone. These lot sizes are net acreage -
the right-of-way of the cul-de-sac is subtracted from the site.
The PD7 zone is a good tool to cluster a residential development
and preserve some valuable open space, or provide for a small lot
subdivision of relatively similar lot sizes. This is clearly the
latter type; an "infill" project which closely reflects the lot
sizes and layout of the neighboring development; i.e. , the
surrounding mobilehome subdivision (Cuesta Court and Pinewood
Court) and Patria Village to the south (Attachment C) . Indeed,
this type of development is far more compatible in this location
than apartment or condominium units.
Subdivision Ordinance
Tentative Tract Map 94005 (Tract 2166) is a vesting map (Article
III - Chapter 4) . This basically confers a vested right to
proceed in developing the project in accordance with the
regulations in effect at the time the map was approved. Since
the approval is vested and subsequent City ordinance changes
cannot be applied, Section 11-5.003 also requires that additional
information be provided on vesting maps. In this case, the
specific nature of the PD Overlay process would have necessitated
the additional site and building design information.
The fundamental considerations in subdivision design are
contained in Chapter 8 of the Subdivision Ordinance (Section 11-
8. 101) as follows:
"The layout of streets and lots within a subdivision shall
be consistent with the densities and types of uses
authorized by the General Plan, specific plans, and zoning.
The subdivision design shall also recognize the physical
conditions of the site, such as slope, soil types, and
adjacent land use, which may further limit uses of the
property. The subdivider must simultaneously consider such
3
000066
factors as terrain, solar exposure, development objectives,
and options available under these regulations in order to
design a subdivision which best meets the needs of those who
will occupy it as well as the community as a whole. "
Generally, staff believes that this project is a good symbol of
the above language. The site and building design will be
compatible in a complementary way, not in an identical fashion.
The lot layout is varied throughout the subdivision and there are
eight different floor plans. The only duplicated floor plan is
shown in Attachment G as an example. Living areas range from
approximately 1,000 square feet to 1,500 square feet, exclusive
of the two-car garage, patio, and covered porch. Although not a
mobilehome subdivision like the neighboring developments, the
elevations (Attachments E and F) show a fitting perspective.
The one drawback in the lot design of the subdivision is Lot 9.
Were it not for Lot 9, the subdivision would be a miniature
community - all residences would gain access from, and face
toward, the new cul-de-sac. Lot 9 does not relate to the rest of
the subdivision and seems to be an afterthought. With that said,
staff is not recommending that proposed Lot 9 be eliminated.
Subtracting the overly large cul-de-sac from the site area and
allowed density has greatly reduced the number of potential
units. Up to 12 two-bedroom apartment or condominium units could
be constructed without a new City street. Lot 9 will function
adequately, meets the PD 7 standards, and will be architecturally
compatible with the other dwelling units.
C• CONCLUSIONS•
The proposed project is in compliance with the City' s development
standards, as contained primarily in the PD7 section of the
Zoning Ordinance. Furthermore, besides meeting these specific
standards, the proposed PD carries out some of the 'following
fundamental policies of the Housing Element:
"Continue to encourage, where suitable, Planned Development
Overlay Zones (PD) , particularly the PD7 zone sof small lot
subdivisions for single family ownership. " (g.VI-32(e)
"The City will encourage "infill" and intensification of
land which is suited to meet housing needs within the Urban
Services Line. " (p.VI-44(b)
"Encourage the use of vacant parcels zoned for residential
use for new housing. " (p.VI-44(c)
By taking advantage of what a site has to offer and recognizing
its surroundings, the project would make a distinctive
contribution toward meeting the City' s housing needs.
4
000067
ATTACHMENTS:
Attachment A - Location Map (General Plan)
Attachment B - Location Map (Zoning)
Attachment C - Surrounding Lot Sizes
Attachment D - Tentative Tract Map
Attachment E - North Elevation
Attachment F - East Elevation
Attachment G - Floor Plan Example
Attachment H - Supplemental Development Statement
Attachment I - Negative Declaration
Attachment J - Findings for Approval (Map)
Attachment K - Conditions of Approval
Attachment L - Draft Ordinance 299
5
000068
ATTACHMENT A
. .
CITY OF ATASCADERO LOCATION/ZONING MAP
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00007"
ATTACHMENT E
CITY OF ATASCADERO ELEVATIONS (NORTH)
COMMUNITY DEVELOPMENT TTM 94005/zC 94007
DEPARTMENT
UNIT
son
NORTH ELEVATION
F.L.HENDERSON b ASSOCIATES,INC.
5275 EL CAMINO REAL
ATASCADERO.CA93422
000073
ATTACHMENT F
k : CITY OF RTAS C
ADERO ELEVATIONS (EAST)
- ' COMMUNITY DEVELOPMENT TTM 94005/zC 94007
DEPARTMENT
A ,
1
1
EAST ELEVATION
RL HENDERSON&ASSOCIATES,INC.
A275 EL CAMINO REAL
ATASCADERO.CA 83422
000074
ATTACHMENT G
CITYOF
ATASCADERO FLUOR PLAN
`-1 4- aid - COMMUNITY DEVELOPMENT TTM' 94005/zC 94007
DEPARTMENT
F.L.HENDERSON&ASSOCIATES,INC.
5275 EL CAMINO REAL
ATASCADERO,CA 93422
UNIT C & F STR.
BATH
LOT 3 & 6 PATIO
SQUARE FOOTAGE
LIVING SPACE:
1,322 SF
GARAGE 427 SF
MSTR. RM.
COVERED PORCH 62 SF
PATIO 147 SF
WALK—I
CLO.
— r r
PATIO '
DINING BATHRM.
CLO' LAUND.
BEDIRM.#2
LIVING RM.
KITCHEN
GARAGE
DEN 201 x iv INSIDE
COVERED
PORCH r.—�------------—
i a
FLOOR PLAN
000075
VAU+GHAN SURVEYS - ATTACHMENT H
1101 Riverside Avenue - Paso Robles, CA 93446
(805) 238-5725 - FAX (805) 238-5835 TTM 9 4 0 0 5/Z C 94007
December 15, 1994
SUPPLEMENTAL DEVELOPMENT STATEMENT
The proposed development for the parcel owned by the O'Reilly Trust on San Rafael Court
requires a change in the existing zoning. The current zoning map for the City of Atascadero
assigns the present land designation for this parcel as RMF-16. Because the proposal calls
for single family dwelling units instead of multi-family, a change to PD-7 is being requested.
A primary reason to justify the zoning change is because the development upon this property
is an infill project. The access to utilities for this site is already provided and therefore would
not require substantial adjustments in order to complete the project. The vesting tentative
tract map shows the present location of the facilities for sewer, cable and electricity.
Since the site is close to the Atascadero State Hospital and surrounding commercial districts,
this parcel could provide affordable housing for employees. The employees of businesses
surrounding this area are expected to benefit from this development due to the interest in
purchasing a home within close proximity to work. Currently, the surrounding residences are
either long term mobile home owners or apartment renters. For these reasons, the northern
side of Atascadero does not have a high number of available affordable housing. The
County of San Luis Obispo lacks the amount of affordable houses to sustain their current
population, and this proposal would greatly aid this situation.
Currently, the O'Reilly parcel could be considered an eyesore due to the lack of
maintenance. If the property were developed, the planned houses and their landscaping
would enhance the adjoining and surrounding properties. The site is currently used by
various residents as a dumping ground for garbage. The southern side of the property,
which runs along San Rafael Road has a number of empty and broken bottles which create
both a hazard and deterrent to the rest of the neighborhood. This would be eliminated since
people are less likely to dispose of these items on someone's front lawn. Without all of this
waste, the current and future homeowners would have an attractive environment.
For these reasons, including the proximity and accessibility to Highway 101, there is an
interest in developing this parcel of land. This would begin with changing the zoning from
RMF-16 to PD-7.
0000'76
ATTACHMENT 1
CITY OF' ATASCADERO
It
ENVIRONMENTAL COORDINATOR
64 NEGATIVE DECLARATION
COMMUN=DEVELOPMENT DEPT. 6500 PALMA AVE. ATASCADERO. CA 93422 (805) 461-5035
APPLICANT: O' RE I LLY FAMILY TRUST VAUGHAN SURVEYS
C/O WESTON O ' REILLY 1101 RIVERSIDE AVENUE
STAR ROUTE BOX 67 PASO ROBLES, CA 93446
SAN ARDO, CA 93450
PROJECT TITLE: TENTATIVE TRACT MAP 94005 (TRACT 2166)
PROJECT LOCATION: 9244-9248 SAN RAFAEL ROAD
PROJECT DESCRIPTION: PROPOSED CREATION OF A SMALL LOT SUBDIVISION; NINE (9)
PARCELS FOR SINGLE FAMILY RESIDENTIAL DEVELOPMENT USING PLANNED DEVELOPMENT
OVERLAY ZONE #7 (PD7) .
FINDINGS:
1. The project does not have the potential to degrade the environment.
2. The project will not achieve short-term to the disadvantage of long-term!environmental goals.
3. The project does not have Impacts which are individually limited. but comulatively considerable.
4. The project will not cause substantial adverse effects on human beings either directly or indirectly.
DETERMINATION:
Based on the above findings, and the information contained in the initial study(made a part hereof by refer-
ence and on file in the Community Development Department), it has been determined that the above project
will not have an adverse impact on the environment.
STEVEN L. DECAMP
CITY PLANNER
Date Posted: JANUARY 30, 1996
Date Adopted: FEBRUARY 20, 1996
CDD 11-89
0000'77
ATTACHMENT J - Findings for Approval
Tentative Tract Map #94005
9244-9248 San Rafael Road (O'Reilly/Vaughan)
February 20, 1996
ENVIRONMENTAL FINDING:
The proposed project will not have a significant impact on the
environment. The Negative Declaration prepared for the project
is adequate.
MAP FINDINGS•
1. The proposed subdivision is consistent with applicable
General and Specific Plans.
2. The design and/or improvement of the proposed subdivision is
consistent with applicable General and Specific Plans.
3. The site is physically suitable for the type of development
proposed.
4. The site is physically suitable for the density of the
development proposed.
5. The design of the subdivision, and/or the proposed
improvements, will not cause substantial environmental
damage or substantially and avoidably injure fish and
wildlife or their habitat.
6. The design of the subdivision, and the type of the
improvements, will not conflict with easements acquired by
the public at large for access through or the use of
property within the proposed subdivision; or substantially
equivalent alternate easements are provided.
7. The proposed subdivision design, and/or the type of
improvements proposed, will not cause serious public health
problems.
0000'78
ATTACHMENT K -- Conditions of Approval
Tentative Tract Map #94005
9244-9248 San Rafael (O'Reilly/Vaughan)
February 20, 1996
CONDITIONS OF APPROVAL:
Fire Department Conditions
1. Prior to the recordation of the Parcel Map, a new fire
hydrant shall be installed to serve the cul-de-sac,
approximately in front of Lot #2. The precise type and
exact location of said fire hydrant shall be as approved
by the Fire Marshall and City Engineer.
Engineering Division Conditions
2. Al l ilIIpcnnts shall hLe—c anstr»cted
im rontormanr_P .with
the City of Atascadero Engineering Department Standard
Specifications and Drawings Ior as directed by the City
Engineer.
3. The applicant shall enter into an Plan Check/Inspection
agreement with the City. Prior to recordation of the map,
all outstanding plan check/inspection fees shall be paid.
4. An encroachment permit shall be obtained from the City
Engineering Department prior to the start of construction.
5. A Preliminary Soils Report shall be prepared for the
property to determine the presence of expansive soil or
other soil problems and shall make recommendations
regarding grading of the proposed site. A final soils
report shall be submitted by the soils engineer prior to
the final inspection and shall certify that all grading
was inspected and approved and that all work', done is in
accordance with the plans and the preliminary report.
A separate document shall be recorded in conjunction with
the final map stating that a soils report has been
prepared. The document shall state the date' of the report
along with the name and address of the soils engineer or
geologist who prepared the report. The document shall
indicate any soils problems which may exist on the newly
created lots.
6. All improvements within the right-of-way shall be covered
with a 100% Performance Guarantee and a 50% Labor and
Materials Guarantee until the improvements are deemed
substantially complete by the City Engineer. Prior to the
1
000079
final inspection of the improvements, and before the
Performance, Labor and Materials Guarantees are
released, a 10% Maintenance Guarantee shall be posted to
cover the improvements for a period of 1 year from the
date of the final inspection. The guarantee amounts shall
be based on an engineer' s estimate submitted by the
project engineer and approved by the City Engineer. The
estimate shall be based on City standard unit prices. The
Guarantees posted for this project shall be approved by
the City Attorney.
7. A six (6) foot Public Utility Easement (PUE) shall be
provided contiguous to all street frontages.
8. All existing and proposed utility, pipeline, open space,
scenic or other easements are to be shown on the final
map. If there are building or other restrictions related
to the easements, they shall be noted on the final map.
9. The relocation and/or alteration of existing utilities
shall be the responsibility of the developer.
10. The applicant shall install all new utilities (water, gas,
electric, cable TV and telephone) underground.
Utilities shall be extended to the property line frontage
of each lot or its public utility easement.
11. Any utility trenching in existing streets shall be
overlayed to restore a smooth riding surface as required
by the City Engineer.
12. Drainage facilities shall be constructed to City of
Atascadero Standards. Each improvement shall be designed
so as to not increase the rate of flow of water onto
adjacent properties. Drainage shall cross lot lines only
where a private drainage easement has been provided for
such purpose. Drainage from off-site areas shall be
conveyed across the project site in private drainage
easements.
13. A grading and drainage plan, prepared by a registered
civil engineer, shall be submitted for review and approval
by the City Engineer prior to the recordation of the final
map. A registered civil engineer shall provide a written
statement that all work has been completed and is in full
compliance with the approved plans and the Uniform
Building Code (UBC) .
14. Road improvement plans prepared by a registered civil
engineer shall be submitted for review and approval by the
City Engineer prior to recordation of the final map. Road
improvement plans shall conform to the requirements of the
2
000080
City Standard Specifications, Section 2 - Preparation of
Plans. R-value testing shall be done, and the pavement
section designed by a registered civil engineer to the
satisfaction of the City Engineer. Road improvements
shall include, but not be limited to the following:
a. San Rafael Court shall be improved from centerline to
the property frontage in conformance with City
Standard 405 (Local) contiguous to the entire
property frontage, or as approved by the City
Engineer. The improvements may require;. the
overlaying of the existing pavement to remedy an
inadequate structural section or to remedy a
deteriorated paving surface. Transitions shall be
constructed where required to achieve a' smooth join
with existing improvements.
b. The on-site street shall be fully improved to City
Std 405 (Local) .
C. A fifty (50) foot wide offer of dedication shall be
provided for Catalpa Court.
d. The Catalpa Court cul-de-sac shall be fully improved
to City Standard 415 (Typical Cul-de-Sao, urban) and
shall incorporate curb, gutter and sidewalk. An
offer of dedication for the cul-de-sac in conformance
with City Standards shall be provided.
e. Slope easements shall be provided on each side of the
right-of-way as needed to accommodate cut or fill
slopes.
f. A five (5) foot wide offer of dedication shall be
provided along the entire San Rafael Court property
frontage.
g. A cross gutter in conformance with City, Standard 421
shall be constructed at the intersection of Catalpa
Court and San Rafael Court, or as approved by the
City Engineer.
15. All property corners shall be monumented for construction
control and shall be promptly replaced if disturbed. All
final property corners and street monuments Shall be
installed, or bonded for, prior to acceptance of the
improvements.
16. A black line clear Mylar (0.4 mil) copy and a blue line
print of the tract map shall be provided to the City upon
recordation.
3
00081
I
17. A Mylar copy and a blue line print of as-built improvement
plans, signed by the registered engineer who prepared the
plans shall be provided to the City Engineer prior to the
final inspection. A certification shall be included that
all survey monuments have been set as shown on the tract
map.
18. A final map in substantial conformance with the approved
tentative map and in compliance with all conditions set
forth in the City of Atascadero Subdivision Ordinance and
the Subdivision Map Act shall be submitted to the City
Engineer for approval. The final map shall be signed by
the City Engineer prior to it being placed on the agenda
for City Council approval.
19. The applicant shall acquire title or interest in any off-
site land that may be required to allow for the
construction of the improvements. The applicant shall
bear all costs associated with the necessary acquisitions.
The applicant shall also gain concurrence from all
adjacent property owners whose ingress or egress is
affected by these improvements.
20. All work shall be completed, or bonded, prior to
recordation of the final map. The applicant shall enter
into a Subdivision Agreement with the City if the work is
to be bonded. The Subdivision Agreement shall be
submitted for review and approval by the City Attorney and
the City Engineer. The Subdivision Agreement shall be
recorded in conjunction with the final map.
21. Sewer annexation fees shall be paid prior to the
recordation of the final map.
Planning Division Conditions
22. Exterior fencing shall be consistent throughout the
project. Design and appearance of fences and/or walls
shall be reviewed by the Planning Division and found to be
compatible with the design of the dwelling units.
Fencing, per this condition, includes both the perimeter
fencing of the entire 1.6 acre site and the fencing
between the individual units. Fencing along the freeway
must either respect the highway right-of-way or be
reviewed and approved as an encroachment by Caltrans. In
order to preserve an open feeling of community, fencing
for the individual parcels shall not extend into the front
setback beyond the front of the residence.
4
000082
i
23. A landscape plan, with primary emphasis alone the freeway
frontage, shall be submitted with the final map. An
encroachment permit, including responsibilities for
maintenance, shall be obtained from Caltrans 'i, prior to
recording the final map.
24. Construction of the new residences along the freeway shall
comply with the noise mitigation measures of ' the Noise
Element as contained in Volume III - Acoustical Design
Manual. (Note: Normal construction practices under
current building codes should accomplish the necessary
noise level reduction without further mitigation. )
25. The side setback of the residence on corner Lot 8 shall be
revised to a minimum of 12 feet along the entire length as
required by the PD7 standards.
26. This tentative map approval shall expire two °; (2) years
from the date of final approval unless an extension of
time is granted pursuant to a written request received
prior to the expiration date.
5
000083
i
Attachment L
TTM 94005/ZC 94007
ORDINANCE NO. 299
AN ORDINANCE OF THE COUNCIL OF THE CITY OF
ATASCADERO AMENDING MAP 23 OF THE OFFICIAL ZONING
MAPS BY REZONING CERTAIN REAL PROPERTIES AT 9244-9248
SAN RAFAEL ROAD FROM RMF/1O TO RMF/1O (PD7)
(ZC 94007 : O'REILLY/VAUGHAN)
WHEREAS, the proposed zoning map amendments are consistent
with the General Plan in effect at the time of application
acceptance, as required by Section 65860 of the California
Government Code; and
WHEREAS, the proposed amendments are in conformance with
Section 65800 et seq. of the California Government Code concerning
zoning regulations; and
WHEREAS, the proposed amendments will not have a significant
adverse impact upon the environment. The Negative Declaration
prepared for the project is adequate; and
WHEREAS, the Atascadero Planning Commission held a public
hearing on February 20, 1996, and has recommended approval of Zone
Change 94007. !
NOW, THEREFORE, the Council of the City of Atascadero does
ordain as follows:
Section 1. Council Findings.
1. The proposal is compatible with surrounding land uses and
the zoning in effect at the time of application
acceptance.
2. The proposal is consistent with the General Plan
in effect at the time of application acceptance.
3. The proposal will not result in any significant adverse
environmental impacts. The Negative Declaration
prepared for the project is adequate.
4. Modification of development standards or processing
requirements is warranted to promote orderly and
harmonious development.
5. Modification of development standards or processing
requirements will enhance the opportunity to best utilize
special characteristics of an area and will have a
beneficial effect on the area.
000084
Ordinance No. 299
page 2
6. Benefits derived from the overlay zone cannot be
reasonably achieved through existing';: development
standards or processing requirements.
7. The proposed plans offer certain redeeming features to
compensate for requested modifications.
Section 2. Zoning Map.
Map number 23 of the Official Zoning Maps of the City of
Atascadero on file in the City Community DevelopmentDepartment is
hereby amended to reclassify the parcels listed below, and shown on
the attached Exhibit A, which are hereby made a part of this
ordinance by reference.
Ptn. Lot 9; Block 35; Atascadero Colony
Assessor's Parcel #s 045-361-027/028
Development of said property shall be in accordance with the
standards of the Planned Development Overlay Zone No. 7, the Site
Plan shown on the attached Exhibit B, and any conditions of
approval imposed during the approval of this zone change, Tentative
Tract Map 94005, and/or any other associated applications.
Section 3. Publication.
The City Clerk shall cause this ordinance to be published once
within fifteen ( 15) days after its passage in the Atascadero News,
a newspaper of general circulation, printed, published, and
circulated in the City in accordance with Section 36933 of the
Government Code; shall certify the adopting and posting of this
ordinance and shall cause this ordinance and this certification
together with proof of posting to be entered into the Book of
Ordinances of the City.
Section 4. Effective Date.
This ordinance shall go into effect and be in full force and
effect at 12:01 a.m. on the 31st day after its passage.
On motion by and seconded by
the foregoing Ordinance Xs approved by
the following roll call vote:
AYES:
NOES:
ABSENT:
000085
Ordinance No.299
Page 3
DATE ADOPTED: By:
GEORGE P. HIGHLAND, Mayor
ATTEST:
LEE PRICE, City Clerk
APPROVED AS TO FORM:
ARTHER R. MONTANDON, City Attorney
PREPARED BY:
STEVEN L. DECAMP, City Planner
000086
EXHIBIT A
CITY OF AIASCADERO ORDINANCE 299
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000087 i
EXHIBIT B
CITY OF ATA.SCADERO ORDINANCE 299
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•000088
MINUTES EXCERPTS
Planning Commission Meeting -- February 20, 1996
SUBJECT: B. HEARINGS APPEARANCES, AND REPORTS
1 . TENTATIVE TRACT MAP 94005/ZONE CHANGE 94007:
Application filed by the O'Reilly Family Trust (Vaughan
Surveys) for the creation of a 9-unit small lot
subdivision using Planned Development Overlay Zone 17 .
Subject site is located at 9244-9248 San Rafael Road.
STAFF RECOMMENDATION: (Davidson)
Staff recommends the following actions:
1 . That the Negative Declaration prepared for the project be found
adequate under the requirements of the California Environmental
Quality Act (CEQA) ; and
2 . That Tentative Tract Map #94005 be recommended for approval to
the City Council based on the Findings for Approval contained in
Attachment J and the Conditions of Approval contained in
Attachment K.
3. That Zone Change #94007 be recommended for approval to the City
Council based on the Findings contained within Draft Ordinance
299 (Attachment L) .
TESTIMONY:
Bryce Dilger, of Vaughan Surveys, who represented the applicant agreed
with the staff report and commended staff on the fair, honest and
responsive work done on the project. He addressed the Commission' s
concerns about drainage and retaining walls . Regarding noise along
the freeway, he indicated that there is a proposed 4 to 5 foot wall
along the freeway which will act as an earthen and acoustical sound
barrier.
Joe Black, 10515 Cuesta Court, whose house is at the rear of the
project, expressed concern about drainage and fencing.
ACTION: Eliminate lot #9 from the Tentative Tract Map #94005 so that
the orientation of buildings would not approximate what is
proposed on lot #9 .
Motion: Johnson
Second: Wallace
AYES : Johnson, Wallace, Sauter, Bowen, Zimmerman, Edwards
NOES : Hageman
ABSENT: None
000090
Planning Commission Meeting -- February 20, 1996
ACTION: Based on the amended tract map, find that the Negative
Declaration prepared for the project is adequate under the
requirements of the California Environmental Quality Act
(CEQA) .
Motion: Bowen
Second: Johnson
AYES: Bowen, Johnson, Wallace, Sauter, Hageman, Zimmerman,
Edwards
NOES: None
ABSENT: None
ACTION: Recommend Zone Change 194007 for approval to the City
Council based on the Findings contained within Draft
Ordinance 299 (Attachment L) .
Motion: Wallace
Second: Johnson
AYES : Wallace, Johnson, Sauter, Bowen, HageMan, Zimmerman,
Edwards
NOES: None
ABSENT: None
At this point, Mr. DeCamp asked that the following text be added to
the Planning Commission Conditions of Approval on the map: "Prior to
the recordation of the final map, Zoning Ordinance Amendment #94007
shall be approved and effective." This assures that there will be no
final map filed prior to the approval of the Zoning Ordinance.
ACTION: Recommend approval of the amended Tentative Tract Map #94005
(with the elimination of Lot #9) to the City Council based
on the Findings for Approval contained in Attachment J and
the Conditions of Approval contained in Attachment K with
the added condition indicated above.
Motion: Johnson
Second: Wallace
AYES : Johnson, Wallace, Sauter, Bowen, Hageman, Zimmerman,
Edwards
NOES : None
ABSENT: None
000091
i
i
REPORT TO CITY COUNCIL
CITY OF ATASCADERO Agenda I�em: C-1
Through: Andrew J. Takata, City Manager Date: March 12, 1996.
Via: teven L. DeCamp, City Planner
From: Gary Kaiser, Associate Planner Ghel File No: SMARA
SUBJECT:
j
Consideration of new information concerning the Mil!.hollin
Quarry.
RECOMMENDATION:
1. The Council should consider new information which has become
available as a result of recent State Mining aqd Geology
Board (SMGB) involvement; and
2. Upon consideration of new information, the City Council
should direct staff to notify the mine operatokr that an
amended Reclamation Plan is required by the Surface Mining
and Reclamation Act (SMARA) .
Option:
3. The Council may also direct staff to provide the Council
with monthly status reports on the progress ofj an amended
Reclamation Plan.
BACKGROUND:
Background information with respect to the City' s dealings with
surface mines in general and the Millhollin Quarry lin particular
is both extensive and common knowledge to the point! that it is
not practical nor necessary to reiterate herein. Thus, only the '
historical synopsis provided to the Council in September of 1995
(for a hearing which never came to pass) has been attached for
reference (Attachment A) .
Since September of 1995, the Quarry has continued to operate more
or less in voluntary compliance with operational parameters
previously agreed to while the lawsuit filed by agrieved members
of the neighborhood remains to be resolved in the lourts. On
February 21, 1996, the Executive Officer, Chairman,j and Senior
Staff Counsel of the SMGB visited Atascadero and m�t with members
of the City Council, staff and public to discuss SMARA
requirements and, in particular, to assist the City in it' s
continued search for a solution to the issues and shared
frustrations besetting the Millhollin Quarry.
1
000092
j
The City' s authority to require a new Reclamation Plan for the
Quarry was reaffirmed by SMGB representatives as was the City' s
ability to be reimbursed for any reasonable costs associated with
conducting annual inspections. In addition, SMGB representatives
explained a recent California Supreme Court ruling (Hansen
Brothers Enterprises v The Board of Supervisors of Nevada County
et al. ) which sheds light on the extent to which vested mining
operations like the Millhollin Quarry are entitled to continue
and expand (Attachment B), .
ANALYSIS•
The matters of SMARA compliance and vested land use rights are
related but may, and should, be treated as separate matters for
the time being.
SMARA Compliance -- Heightened Need for Amended Reclamation Plan
After gaining lead agency status in 1992 and completing the first
mine inspections in 1993, the Council determined the 1980
Reclamation Plan for the Millhollin Quarry inadequate and in need
of amendment. At that time, the determination was based on the
Plan' s technical inadequacies and inconsistencies and the fact
that it was approved by the inappropriate parties without benefit
of required public hearings, environmental review and State
Geologist review.
As a result of recent SMGB involvement, however, it is now known
that the County of San Luis Obispo was not a legitimate lead
agency at the time it approved the 1980 Reclamation Plan and was
therefore not authorized to approve reclamation plans whether
adequate or not. This tidbit of information is crucial, as SMARA
Subsection 2774.5(c) now applies which mandates the Plan' s
amendment for that reason only.
Options Available if Necessary to Ensure Compliance
Having established that an amended Reclamation Plan is indeed
required, the mine operator must ,be notified pursuant to SMARA
Subsection 2774. 1(a) . Essentially, a letter must be drafted and
sent to Mr. Millhollin by personal service or certified mail.
If the mine operator does not take appropriate, good faith steps
(in the opinion of the lead agency) to comply with this SMARA
requirement the City may then issue an order to cease further
mining activities until the mine is brought into compliance.
Such an order cannot be issued within thirty (30) days of the
notice described above, however, and the mine operator must be
provided a noticed hearing. Finally, if an order is issued and
the quarry continues to operate without a City-approved
Reclamation Plan, substantial monetary penalties (up to $5,000. 00
per day) may be imposed.
2
000092 . /
Knowing that an amended Reclamation Plan cannot possibly be
approved within thirty (30) days of receipt, let alone within
thirty (30) days of notification, staff does not feel it would be
appropriate to initiate forced closure at this juncture.
CONCLUSIONS•
The recently-discovered fact that San Luis Obispo County did not
have the legal authority to approve Reclamation Plans in 1980
elevates the need for an amended Reclamation Plan from a mere
local desire to a state mandate. Moreover, the SMARA requirement
that an amended Reclamation Plan be approved holds regardless of
vested rights. In other words, even if Mr. Millhollin has a
vested right to continued use of the quarry he must do so in full
compliance with SMARA. Whereas the affect of technical and
procedural inadequacies of the 1980 Plan can be debated, the need
for Reclamation Plan amendment in light of this recent discovery
cannot be.
The need for an amended Reclamation Plan notwithstanding, staff
continues to feel that it is in the community's best interest to
work with the mine operator in the interim such as to avoid the
matter of vested rights being determined by the courts. If it
suspects good faith efforts are not being undertaken in pursuit
of Reclamation Plan compliance, the Council could schedule a
hearing to consider the issuance of a formal order to cease
mining activities until an amended Reclamation Planis approved.
Such an order should not, however, be issued prematurely.
In closing, the new information now being presented to the
Council is neither good nor bad from anyone's standpoint.
Whereas some may find satisfaction in the City' s strengthened
ability to require an amended Reclamation Plan, those same
individuals may not like the Supreme Court' s ruling in the Hansen
Brothers case and the idea that vested rights may indeed extent
beyond any single, cartoon-like rendering contained in the
existing Reclamation Plan. As stated previously, ultimate
resolution of this issue promises to be the product ''. of
reasonableness, fairness and compromise on the partof all
parties involved.
Attachments:
Attachment A - Historical Synopsis
Attachment B - Hansen Brothers Supreme Court Ruling
Attachment C - Surface Mining and Reclamation Act (SMARA)
3
000092, 2-
BRIEF HISTORY OF MILLHOLLIN QUARRY -- August 1, 1995
1945: Quarry established (prior to SMARA)
1980: County Approves Reclamation Plan (no "permit to
mine" required)
1991: Heightened public pressure for City to regulate
Quarry
April 1992: Council adopts Ordinance 242 Re mining & reclamation
June 1992: Atascadero certified by State Mining & Geology
Board as lead agency under SMARA
June 1993: Final Inspection Report (by Sierra-Pacific)
presented to City Council. . .Salinas River Pit
closed; Millhollin' s Rec. Plan & financial
assurances deemed inadequate; timeframe established
for Millhollin Quarry compliance
Sept. 1993: Revised Rec. Plan and financial assurances
received. . . Rec. Plan unacceptable, financial
assurances routed to State for review
Dec. 1993: Council grants add'1 time for Rec. Plan
preparation; financial assurances deemed
unapproved; Quarry to remain closed in interim;
City Attorney to report back Re legal options
March 1994: Council receives status report/legal options. . .
financial assurances approved; Council agrees to
continued negotiations with additional caveat for
Interim Operational Plan to address neighborhood
concerns
May 1994: Draft Operational Plan received but placed on hold
for public input
June 1994: First neighborhood meeting held
Sept. 1994: Second neighborhood meeting held
Sept. 1994: Interim Operational Agreement approved by Council
Nov. 1994: Writ of Mandate filed against City, Millhollins and
County by Santa Lucia Neighbors Assn.
March 1995: Closure & Residential Re-use Plan (current
tentative tract map application) deemed complete;
draft Initial Study sent to applicant for
consideration prior to environmental determination
000092,;
June 1995: Interim Operational Agreement expired; Superior
Court throws out CEQA and SMARA claims and denies
request for preliminary injunction
June 1995: Applicant notified of environmental, determination
. . . notwithstanding additional info. provided, EIR
would be required for proposed closure plan.
June 1995: EIR determination appealed; applicant requests to
suspend appeal hearing until the September 12, 1995
Council agenda to allow EIR scope/cost to be
explored.
Sept. 1995: EIR appeal withdrawn; applicant to reconsider plans
to close mine.
000092. E
300 Daih-Appellate Report- Wednesday,January 10, 1996
REAL PROPERTY governing the continuation of a nonconforming use,
that use may not expand onto arras of the property that
Diminishrn w
Asset DoctriA lies to �'�•�ng used at the time the zoning.ordinance
$ became. effective Resolution of the question is
Aggregate Minmg.Operation„But complicated in this case.because the mining operations
Inadequate Record Requires Additional= at the Bear's Elbow Mine owned and operand by
Evidence. plaintiff Hansen Brothers Enterprises (Hansen
Brothers) are for materials that are not distributed
Cite as 96 Daily Journal D.A.R. 300' uniformly throughout the Property and none 1s maned_
continuously. One; the removal of gravel and rods
from the riverbed and its adjacent bank area is for a
HANSEN DRQ]jgM Tr%yS type ofrock and gravel that was once a replenishing
Plaintiff and Appellant; resource: Theother-mining operation has been toV.
.
BOARD OF SUPERVISORS OF qua `the"hillside" about 600 feet from the river for
rock_ That.. area-has contributed, relatively small
NEVADA.COUNTY et a1. amounts-of.rods to the-aggregate produced on the
Defendants and Respondents. property imr thea past Under plainti$s proposal for
No_SO44011 future development;. rock-quarrying farther" into the
hillsides-off-the:propert)r- away from the, river will
.CL App.CO 17070 - constitrrtr the, principal source• of the crushed rock
Nevada- component a the aggregate produced from. materials
Super.CL No.41465- on the propea r.:,
Supreme Court of California: Tate punciptes that govern this area of law; while
Filed Ianuacy 8:1196x. aur__ important to, both- sem.. Wig: -
eruterprises and the industries,
am-dependent oa
The principal issue in..this.c aw is whether-the- their outpuL:..They are.-also.of great.concern to local
"diminishing asseC doctrine is applicable to a mining• gove mmenta officials.charged with responsibility tor..
Operation which is curried on as a 1 g-; ��non g properties under their; .
legal-.nonconforming- eliminate nonconforming»sea of
user under a.zoning ordinm=that,presently excludes .
mining from the permissible uses of the property. The. The Court of Appeal held that Hansen Brothers'
1954- Nevada County Land Use and Development proposal for future mining constituted an impermissible
ordinance which-governs the property thatis-the.subject. intensification of the nonconforming.use. It therefore`-
of this dispute. also - forbids continuation of, affirmed the judgment of ft superior court;which had
nonconforming uses which have ceased operation-for denied-a petition for-a peremptory writ of mandate tae
periods in excess of 180 days. Therefore;:because.the set aside a.decision of the Nevada County Board of
mining operation" at issue is,part of am aggregate,•
aggregate
business, we must also decide whether the is m wifoor ie lw to my othw portion of dw lot or pared of twd-
business itself, including.all-aspe=of that" oculi ,aR-ant yma of the adoption_of oris (her a s �
business,is the nonconforming use,or if the individual Chaetm
mining operations which recover .then "EL If d w non OD°f�use is dixon ieaed fa a period of ole
Components n-- r m-at hundred-eigky(180) days a mom any fddowiig use shed be in
po — sand, gravel, a� rock taken firnn a wity.,d applicable requirements of this Chapter.- (Nevada
riverbed and its banks anti rock quarried-from.a.hillside- C.oway L=tUee aed.nveiopmr t cod,sec 29.g Lu 29.z)
—are the nonconforming use which:the-owner-has.x
vested right to continue. 3. The parties and:administruive agraass refer to both she area ta-
The question of whether the diminishing-asset,- be T"irr7Odm dw finue and this ares as bulakae. Ooe- -Allan
doctrine is recognized. in California arises
How reined to the quarried ora 60o feet Gem dw mw as":neem
under both the ' bear tor�di�tub-R°,8om the hig�w.halsidr- our rafaencs'tor•
express terms of the-Nevada: County►.. . 7+ili:ider wadw both areM Wet.the tetter'bok'to reser to tbw
Zoning ordinance= and a
. y'•:appllCdhl4''rtlleSt-_ are
_ _' �__. . -
4.- defined for an ptmpcees
L' A legal nonconforming use•is ora thud Brasted rcJavant-horwasr "[Allo.or my-part oC the process iusvoived kk the
1aw*d r babrar n. mining of mmermk ou mimed lands by mmovntg owrbmdm and
zoning rmmction became effective and that is not it coafaemity-with the directly four do mineral dmoom opm pit monog of rrmuersk nowally
Ordinance when it cWtubues diereaRc. (HM v. City If.Manbatma vq-odl mumu by the auger a aetbod,..dredgag aid quaryir _a
Beach (1971) 6 Ca1.3d 279. 283; City of'Uidab_v. Cowery ofsurface-worst launcher to as tmdagwuid mint.. Sur£aos-mining, .
Mendocino(1987)196 CaLApp.3d 47,56) The teas orthe land;not its operatiaea roan include but are not limited to`
owe g nasl*at the time the use becomes noncndbrmi ddasmrx.thw... "(a)•taplwwdidiltariomor ' - gakeehog.'
right to runtime dee use. Tramfw of tills dos nut affeat the rigs to;: - "(b)Thsprodnrtioa mddiWmdofmmngwaste.
cont—a lawful nonconforming use which runs with da kn&(See-SA.:.. "(e)- Pe"aG6rg and.mapkntory.tadvitis." (Pub: Rea-Codas.
titeQuWim 'Municipal Corporations (3d ed 1994) §25.125. p.•33: §2735.}
(McQuidinr Anderson,Arnaicm[ivr of Zoning(3d ed 1986):§640 All shaaary ref rcom ata.to the Public Raourc s Code nudes
Seq age. City of Las Angles v_Cage(1954) 127 CaLApp.2d 442;- of=vAw noted:
County of Orange v Goldring(1953)121 CaLApp.2d 442.)
S_ An amicus cmiaa brief in suppmt of Nevada County haat bene
2. The ondinaumoe provides -Any un hwfully is ettistahoe d the ISW on behalf of 21 other counties Sbay-two cities and towss have.
time this Chapter or snre Wane is thereto take effect,',bougie meh use.. joined in that brit They argue both that Hames Brothas hes no right
does not conform w due provisiws of this Chapter, any cattinna asp to ea�armd�untiring aperatioea nt tM satire ora shame ere its
follows po would
A. No such use shall be enlarged a imaritied. Na shad �1>tatremgmAwsaf thad'muoshbg natant doctrine in Ca4fanis would-
*FJ eslerrded to a my surd` be coetrwy.to-tbe.neer* of the.Lapiuwm+4 ptensaably that intent
time a the occupy > area of tmd than dot occuppied at the m"yor "mm gvMa,�g zgring and a- -g, (Ser~ Lg
adoption of this Ordin.rmoe Na shad arty such use be moved PukResoruosCode§2710;Gov.Code§65000 at seq.)
ot}mm" ,
Wednesday, January 10, 1996 Daily Appellate Report 301
I
upervisors(the Board)denying approval of the mining integral part of that nonconforming use, but the right is
Jo ;E
Wan. The Board had. concluded that, while Hansen limited to the area over which the owners objectively ! .r
Brothers had a vested right to mine a portion of its manifested an intent to expand the quarry in 1954. r:
property, any right it might have had to quarry the Nonetheless, as we explain below, betaause a court
hillside area of its property for rock had been lost by cannot determine on this record that Hansen Brothers is }
discontinuance for periods in excess of 180 days, and entitled to the relief it seeks, the petition for writ of t
that Hansen Brothers' proposal for future mining mandate to compel the Board to approve a Surface
constituted an impermissible intensification of the Mining and. Reclamation Act (§2719, et seq.)
nonconforming use. Because the Court of Appeal reclamation plan for the Hansen Brothers' property was l
agreed with the last conclusion, it did not address the properly denied by the superior court. However Hansen 1i
questions related to the nature of plaintiffs Brothers is entitled to have the order denving approval
nonconforming use,whether the right to continue the of the plan set aside and to have its:; application '`t
nonconforming use had been lost under the cessation reconsidered. We shall therefore reverse the judgment
provision of the ordinance, or whether the scope of a of the Court of Appeal affirming the superior court
Vested right to mine extends over the entire parcel, judgment denying Hansen Brothers' petition for writ of
co that the . g asset doctrine ismandate, but we shall do so with directions that on j
taco tit orm a also conclude that the setting aside its judgment the superior blurtconduct '1
r
nonconforming use which claim further proceedings. (See Code Civ. Prot;., § 1094.5,
a right to continue is the aggregateproduction business subd.(e).) „that was being operated on the property its predecessors
owned in 1954 when the Nevada County zoning I' .
ordinance was adopted. That business; and the
nonconforming use, includes all. aspects of the Background a
operation that were Integra►parts or ute ousrness at that Hansen Brothers owns and operates the Bear's
time, including mining replenishable materials from Elbow Mine, an aggregate business.in which the
the riverbed and banks and quarrying rock from the materials combined and sold as aggregate are obtained 5:
hillside; crushing, combinin and storm the mined
g. g by surface mining and quarrying on part of a 67 plus ,
and selling or acre tract of land comprised of several parcels. Most of
materials which compose aggregate;
tyucidne the ays4gte from the property. Consistent the property on which the business operates lies in.
with the diminishing asset doctrine applicable to Nevada County. Seven acres are in Placer County. i
,extractive operations, the right of normal expansion of The property straddles the Bear River, wlhich at that
nonconforming use in this case includes extending location forms the boundary between the two counties,
e rock quarry aspect of the business into those other and includes property at the confluence) of Willow
areas of the property owned in 1954 into which the Creek and the Bear River. The property is'in a remote, j{
owners had then objectively manifested an intent to mountainous area northwest of Colfax and south of
mine in the future.6 Grass Valley. It is made up of riverbed, adjacent
We reach these conclusions on thebasis of hillsides, and a flat ,ward area which is used' for
undisputed evidence in the record that Hansen processing and storage. Recently a few holnesites have
Brothers' predecessors in interest were operating the been developed near the mine.
aggregate business, including extraction of sand and The aggregate produced at the Bear's Elbow Mine is
gravel from the riverbed and quarrying the hillside area sold. for road building, concrete. filters and water
of the property for rock in 1954. Nonetheless, the purification systems, and other uses. Prior to
record is inadequate to permit us or the lower courts construction of the Rollins Reservoir Dam ion the river i
and administrative bodies to determine (1)whether the upstream from Bear's Elbow Mine, most of the rock, t
nonconforming use which Hansen Brothers claims a sand,and gravel used for the aggregate was taken from 1
vested right to continue extends to all of the Nevada the riverbed and banks where the flow 9f the river ~E
County property it identifies as the Bear's Elbow Mine replenished the supply and the cost of extraction was i y
and over which it claims.a vested right to continue lower than on the hillsides which have been held in
operations,or(2) the extent of the area over which an reserve and are, therefore, largely unexcavated. Some (;
intent to quarry for rock was objectively manifested in quarrying for rock took place on both the Pacer County
1954. and Nevada County hillsides within a few hundred feet i.
We also conclude that the evidence does not support of the Bear River,however. The rock is mixed with the
the rulings of the Court of Appeal and the superior riverbed aggregate materials as needed to meet buyers' '!
court that Hansen Brothers' proposal for future rock specifications. Some sales are of blended materials
quarrying would be an impermissible intensification of from the riverbed, the banks of the river
and the
the nonconforming use of its property. Finally, we hillside. In others the materials are sold separately.
conclude that the evidence supports the finding of the Since construction of the upstream dam, the reservoir
superior court that Hansen Brothers' overall aggregate behind the-dam has retained the migrating;gravels and
production business has not been discontinued. the river no longer deposits sufficient quantities of
Therefore Hansen Brothers has not lost the right to gravel to meet market demand. Therefore the drainage '
continue and expand its quarrying activity as an channel of the river is not to be mined again unless a
significant amount of material is washed into the area.
4L,Whdher-U--d^u^ishi^g asset do.;Z has any application to a Future extraction will be principally rock gsarried from
le or replenishing resource such as the riverbed rock and gravel the hillside of the Nevada County property.
is not an issue in this case. Our holding that the dirtunW Ing avet-
doctrine is recognized in Califomia should not be read as expressing any
opinion on that quedum
I
0o0o .
302 Daily Appellate Report Wednesday,Januarys 10, 1996
Production of aggregate from sand, gravel,and rode
mined and gvarried7 on the Bear's Elbow Mine
property commenced almost 50 years ago. Arlie
Hansen and a brother began working at the Bear's
Elbow Mine in 1946 as employees of the original
owners. George Rondim and Gustave Volliner, who
had established the business after claiming the property
under a placer mining claim. The Hansen brothers Q
purchased the mine in 1954. Hansen Brothers, a
corporation formed by the brothers, now owns and '
operates the business. Arlie Hansen testified before the
planning commission that the Bear's Elbow mining •rte
operation has been continuous since 1954, and that the
operation included"taking the available material from
the river and combining it withmaterial from• the
banks,the hillsides and producing a usable material... .
." In his testimony before the Board,he stated that as �.
long as he has been associated with the operation of the
Bear's Elbow mine, material has bees taken from both
the hillside and the riverbed to form the aggregate that
is produced and sold Quarried material has been
stored on the site both before and after processing. A -
combination of river gravel and hillside rock is used to +j
produce aggregate at the Bear's Elbow Mine, as the ;--4 ,---t
individual gravels are used for different purposes but o
can be combined for use where neither would be
suitable by itself 9
At present,aggregate is occasionally picked up by a Q.t
customer on the mineproperty or it is trudwd to a
customer, but most is trucked to and sold at another
yard owned by,Hansen Brothers. Hansen Brothers
presented evidence that the equipment at.the mine-is
maintained m working order and that the company
continues to remove aggregate from the site for use at
the other Hansen Brothers yard in Grass Valley. Orson •*"'{
Hansen,-the president of Hansen Brothers,testified that
material had been sold directly from.the mute within
the year preceding his testimony, but the firm has no
records that might establish the amount of material that
has been taken from the mine each year, because the
materials are weighed as sold at the other yard. There
7. A"quarry"'tis similar to a mica,in the segs that the material
removed be it owe rode or stone or valuable maebik is removed
because of its value for some other purposes[than development of the t�
site). It is distinguished from a mine in the fact that it is usually open at •F.4 Q
the top and front...and in the ordinary acceptation of the tum,in the Z C
dunhaw of the material extracted..." (!n re Kdw(1905).147 Cal.
609,610-611.) !�
While mimog is the ung tear,amactitg had tock is
commonly referred to in the uxlustry as"qusrryuk&" Taking sand and ^` W
gravel from a river bed is"alluvial smug,"while taking thane rmterials W
from flood plain terraces adjacent to a river is tensed"terrace miug."
(Sea, e.g..Sferna Club v. County of Sonoma(1992) 6 CaLApp.4th "e+
1307, 1313-1314.) Refereras herein to Hanawm Brothers' past and �3
proposed emvam of rock from the hillside will use the to. quarrying
to distimmish this aspect of its operations ban the mining for sand and V
gavel in the riverbed and bank �
A"'mind"is defined as"all mineral bearing properties of wbatr-w Q
kind or character,whether tmdagound,or m a quarry or pit or any
other source from which any mincrai substance is or may be obtained" ^
^t
(12200.) r
^ i
• aaals' meow any naturally ooc uffmg chemical element or
Mi
conmponnd, or groups of elements and oompotmds, formed Som
morxsmc prooesses and a wrac substances,odudm&but not limited t0.
coal.peat, and bh mmmous rock, but ec4uding gecuhunnai resources.
natural gen,and petrokum." (§2005.)
& Aggegate from the.Bear's Elbow Mina is sold to stew county;
city, and forestry units. The comb-arced product is more subk and
durable,and meet:the gc neral specifications of the suis&
Text continued on page 30;r
000092, -7
I 8
Wednesday,Jamiaiy f6,_1996- �Ijai7yAppellate Repoit�M 3 r
Text continued from page 302
was contrary evidence in the form of testimony by
persons who live close enough to the mine to observe -M
its operation that one of those witnesses had been
unable to ptutchase gravel at the mine recently and t
others had seen no quarrying activity.and had keen only p
an occasional trnddoad of material being removed.9
The volume of. material•that has been mined and
quarrieda in past years has been driven by market forces
and has varied from year to.year: Demand for the
aggregate is seasonal and fluctuates with the nerds of
the building industry. At times aggregate production
has been w much as •133,330 cubic yards (200,000
tons)of material,a year,but only-20%000 cubic yards of
To a i� rode haw bec r quarried:from-the Placer County and
j n -Nevada County hillside arras of the property dtuing the
Decisions 50 years the business has been in operation': Of that, t`
44,700 cubic yards.of rock have came from ft hillside •�
ain Nevada County.lo The plant manaStir testified
rea
at the, November 1989 hearing before the county ,;
planning commission- thar during.the 15-toi 20 years
t
Ythat he had been associated with the operation,
approximately 3.million..tons-of,aggregate !had been ,
Faster p it Bear's Elbow Mine. One-thiiO of that
consisted of bwe•to& Ow fifth of the toad was rode
taken from the• hillside quarry 11 The last hillside
You'd quarrying.took place in December 1988;but?there-had
been periods.of 180 dam.and to 3nor to j
that nz -W-Idch no because ii
Have
iles o The
aggregateproduction and.sales opezation had
been-continuous, however, and at the tinite of the I
hearing about 6,000 tons. of material from previous j t
to sit mining were stored on the site for use as needed. The
total annual average yield of rock over 34 years of !'
operation is 6,200 cubic yards, of which only 1,300
Behind _ sic yards is from.the Nevada County side of the
mine.
Unlike the recovery of aggregate materials from the
the Bench riverbed and the banks of the river where;the rand,
rock, and gravel are exposed or readily accessible,
Hansen. Brothers' proposedquarrying of rock on the
All
9. Ore witness testified thatte
in r part two years he bad seen only Cyt •;r
three orfour truck&go by on the Fwd.and had not heard*W operation �4
at the mine other dm the tracks Another wetness testified*ML she is J'
ebb to hew the Smvd-opersim.mmnin when it a w rldog,stunt rt had
Ninth C14-eui}` .- not been.rumiog,dad thert had not been.trucks going up,ata dawn the ." t
road. It has basically closed down" She testified that the last time the {'
ourOmire was operating on a.full-time taw,that i;for more d m one bo-
Opinions--`
pinions'"` or having momdua rone truck on the road.was a 1986. •Ilse had been
one truck on the road in 1989.
,,} A reodatLof tete Willow Creat:Acres tract adjoining the T=nY site j
the next day testified that until 1986 residents were able to purdsase 1gravel at the.
in the Tunr>ete.but since then it has not been available, Sinom Ow winter of
1986.1987 he had not met trucks on the toads adjacent tol,the mice and
»ttIhe quwry is close&^
10. This figure is an estnnate by Alan Hew a phdtograrttmetric `
cnaneer, made on the basis of axial ph Womplts takelt at intervals 4
betwom 1955 and 1988. The estimate of Nevada Coutity quarrying
LUS ANGELES oovemonly the am-war the river which the witness termed stream I
�n 1���O't R� bank." Hess vi not ewe the amount ro tockrivequarried 5vm a site.
u to �i
now ove*'gtvwn with trees,located farther fmm the river an the higlfar I
urn which he termed"hillside." Hess was called by Hartsln Brothers to
atimste-%UsWe"rock production The"strearn bank"aria Gum vAuc h
(213) 229-5412 :ALL {. he testified this material«ore is part of0e ant which the parties te&rto
as
–hillside." 3
,1. The Court of Appeat,wnsWering only hillside production. ;
aroncoualy stated that the none produced ':09.000 c*btc yards of i
aggregate"bemmen 1955 and 1989.
000092, ?
304 Daily�Rpellate Report Wednesday, January 10 o 1996
hillside will require removal of approximately 1 million requirement to its operations which are in conformity
cubic yards of topsoil overburden. The topsoil will be with all other environmental requirements.
stored on the property and used in the reclamation A reclamation pian must include, inter glia,
Process when it will be spread over the quarry area, information regarding the "anticipated quantity and
"he rock below the overburden is mctamorphic bedrock type of minerals for which the surface minittg operation
and fractured bedrock. is to be conducted" and"[a] description oC and a plan
for, the type of surface mining to be employed, and a
II time schedule that will provide for the completion of
surface mining on each segment of the mined lands so
The Mining Plan that reclamation can be initiated at the earliest possible
This actiou arose out of Hansen Brothers' efforts to time on those portions of the mined lands that will not
compiv t--'ith the Surface Minine and Reclamation Act be subject to further disturbance by the surface mining
Of 1975 (y 2710 et seq.) (hereafter SMARA). In that operation." (§2772,subds. (c)(2), (6).)
act. the Legislature found both that minting is"essential In an effort to comply with SMARA. and claiming a
to the continued economic well-being of the state and to vested right to mine the entire 60 plus acre area
the needs of s ciery, and that the reclamation of mined covered by its reclamation plan, Hansen Brothers
lands is necessary to prevent or minimize adverse submitted a plan for mining and quarrying all of the
affects on the environment and to protect the public hillside area on the Nevada County portion of the 67
health and safety." (§2711, subd. (a).) The acres it now owns and designates as the Bear's Elbow
Legislature declared an intent to ensure that adverse Mine. The reclamation plan projected mining over the
environmental impacts are prevented or minimized and next 100 years or more. In conformity with a "check
to encourage the production and conservation of the box" preprinted form supplied by the county, the
minerals while giving consideration to recreational and plan estimated f iture mining in the broad production
other values. (§2712.subd.(b).) ranges specified on the form, indicating that it
To achieve those goals, SMARA requires that anticipated removing 5,000 to 50,000 cubic yards or
persons conducting surface mining operations obtain a 50,000 to 250,00 cubic yards of material annually.
Permit and obtain approval of a reclamation plan from Hansen Brothers estimated the total reserves remaining
gnatedlead agency for areas subjected to post_ in the hillsides of its tract at 5 trillion cubic.yards. The
January 1. 1976, mining-.. (§§ 2770, 2776.)12 The plan proposed the eventual removal over 100 years of
Board has enacted a mining ordinance with procedures the entire 5 million cubic yards of rock at a rate
or review of reclamation plans as required by SMARA, ranging from 5,000 to 250,000 cubic yards per year,
and it is the. lead agency in this matter, Bemuse with 500,000 cubic yards of waste. The plan proposed
Hansen Brothers operated the Bear's Elbow Mine prior excavation of the hillside area to a maximum
to the enactment of SMARA, the permit requirement anticipated depth of 350 feet in the course of exposing
woes not apply to those operations for which it may and quarryin hat would be a vertical wall of rock.
claim a vested right(§ 2776).13 Hansen Brothers does When the un tanning comnu§Zpn reviewed the
not contest the applicability of the reclamation plan pian, it conclu n rothers had lost
vested, nonconforming use status it might have as any
'
the Nevada County hillside area of the Bear's Elbow
t1. Craver.ond 'xion iiCi a riveraed is soun mining within Mine through discontinuance of quarrying in that area.
e meaning of scct on:7;5. icily at L7ciair v.Couxry qi Alendocrrro. The commission also concluded that, if Hansen
uvra.196 Cal.App.3d 47,50,fn.3.)
'he county conceded in its answer to the Brothers had a vested right to the hillside, the
that mining o petition tun writ of mandateQuarry
s perations have been conducted on the prooery since :946proposed excavatiba would be a prohibited
ti
and that Zile operation nas "4 nanous times" included extraction of intensification of the nonconforming useit
aUrprocegatesstn irvm the hillsides widthe quarrying is inn ;is well as the determined for those reasons that a permit would be tv
processing,storage and sate or the tttitted materisis on the site, while it for the
cornesr«t Hansen Brothers' right to continue quarrying rock frail the requiredProposed hillside operation, and
Ulsiae it did not contest its right to continue mining in the sucambed or consequently took no action on the reclamation plan.
conducting the other activities that are part of the agVvgm busumm Hansen Brothers appealed to the Board,arguing that
711Coperation from the rnBoard had he n%drd that the hillside quarrying was a»dtfferem it conducted an integrated business which included
oPeer rpetatton due to the diffawx:- m materials, both minin and "On-Sate COnVeyanCe, crushing,
extraction procedurm vid environmentai .impact:. s well as location." g
it did not consider whcdw it was pan of an ongoing aggregate sorting, washing, storage, and transportation of the
Production business. mined product," an overall operation that had been
conducted unintemioted since 1946. It claimed that, as
3. Sailor 2776: -No person who has obtained a vested right toart of that business.
conduct surface mining operations onor co January 1. 1976. shall be Pquarrying On the hillside had been
roqu rea to s,xaire a Permit pursuatit to this chapter as long as the vested conducted every two or three years, with the material
tight continues;no substarival changes are mads in the operation except stored for ongoing use. Whenever the supply of rock
accordance with with this w. :s person shalt be deemed to have vested was near depletions,new quarrying was undertaken.
rgtsts iL prior to January 1119'76.ants as long as he or she has,in goodThe Board rejected the"unitary operation"argument
faitn area an reliance upon a permit or other authorvation,if the permit or
ether aumonzation was ree i re4 uitige tiv comniencod surface mining and found that: "fait various times in the. past,
operations and incurred suttarantial liabilities for work and materials operations at the Bear's Elbow Mine have included
t ecessa"'�br.. .., both in-the-riverbed extraction of aggregate and
W'tr"ry to the assertion.,�a'r'ia ainae counties am cities.Hansen hillside quarrying of rock outside the riverbed, together
;ir uv=eOut does ria clairm a vtcted right to conduct unrevUlated mining with processing,storage and sale of mined materials on
vM,W, a permit. :t asserts only that section 2776 exempts it &vin
%rn�:n a canditionat use permit to continue the mining operation that site." The Board also found. however. that Hansen
t `.. :onducUn0
9 pntir to January :. i976. aril which was a legal Brothers had discontinued the hillside quarrying
ioncont:r-uig use at that time.
000092. E
' Wednesday,January 10, 1996 Daily Appellate Report 305 A
„s
oa for 180 days or more and therefore,14 been largely inactive since 1986 except for storage of
tn, the county land use and development aggregate and one or two trips per year by trudta to or
ordinance,had last its vested nonconforming use status from the site, and evidence that one arra previously
as to that,aspect of the mining operations The Board used as a rock quarry was overgrown with trees fifteen
found: '"The hillside operation is a-different operation feet tall, the court found that the hillside quarry :r
from the river:;operation due tai the difference in operations were separate operations that had been
materials, extraction procedures and environmental discontinued for the statutory period.
impacts, as well as-location.and.has lost_its legal non The court also found that the quarrying operation
conforming use status. Storage of quarriedmaterials.in proposed by Hansen Brothers was a substantial
and of itself is insufficient to constitute continuance of. expansion and intensification of use, basing that
the hillside operation." F1nafty;:the..Board:ruled that decision on comparison of previous use land the ;
the reclamation,. plan contemplated: enlarged- or.. . maximum proposed use under the reclamation plan.
intensified:operations and-changes in. ,
operation that including a.projected increase to 120, ten yard truck
were so alas to be Outside the rights that-were trips per year instead of the one or two per year since
vested.under both section 2776 and.the land use and 1986. Therefore, the court held, the county may
&W1Opme9 ordinance. The Board denied the appeal, require that.Hansen Brothers obtain a conditijoaal use
from the commission recommendation.. It.rejected.the- permit for any renewed quarrying.on the hillside.
reclamation:plan•and denied Hansen Brothers'claim to° The.Court of Appeal majority affirmed.the judgment
a the.hillside arra.without a denying Hansen Brothers' petition for writ of yba�ate
co On8111SC t,ls It did soon the ground that Hansen Brothers'
appealed the former ruling to the: operation- would: constitute- an enlargement or j '�►
State Board,. of Mining: and Geology pursuant w intensification of the permissible nonconforming use
SMARA; and:sought review of the Board's.ruling.that beyond its vested right to mine the property. rhe.curt
a conditional use, permit was required for- future rejected. Hansen Brothers' argument that increased
quarrying.bg-the petition for writ of administrative production to meet market demand was a le
mandate (Code Civ: Prod., § 1094.5) which underlies expansion of a nonconforming use. Because the Court it
this.appe L It-claimed in.the petition,as relevant here, of Appeal concluded that the Hansert Brothers' vested
that themwasno evidence that.its hillside operation on mining right did not encompass the proposed volume of
the Beae's Elbow Mine was an operation different from mineral extraction, the court found it unneoossary to
its riverbed operation,.and that the Board's action had address Hansen Brothers' arguments.that it had a light
AW Property without.just.compensation. Hansen to quarry the entire Nevada County area of its property 1
argued:that the Board erroneously bdhrcated. under the "diminishing asset" doctrine recopized in I L
aggregate= mining operation into two McCaslin v. City of Monterey Park. (19$8) 163
mines — one on the, hillside and the-other in the CaLApp.2d 339, 349, and that the Board ;and the
riverbed-
superior court erred in treating its hillside and riverbed f
The trial, court denied. the petition for writ of mining activities as separate operations when ruling
mandate. After reviewing the evidence in the that it did not have a vested right to mine the entire !'
administtative record and exercising its independent Nevada County area of the tract
judgment- based- on that. evidence (see Haloco Hansen Brothers repeats all of those argut rents in
ErgineerfngCb:v.South Central Coast Regional Com. this covet. We first address the law applipable to
(1986)-42 Cal.3d.52,64-65:.Strumsky. v.. Sar Diego nonconforming uses and mining in particular. We then
Cowrty=Employees RedmmentAssrr (1974) 11 Cal.3d consider how,these rules.apply to the Bear's Elbow
28, 34L-thea court found that,;the aggregate business Mine and Hansen Brothers' proposal for future �
had:not been:-discontinued.for a period.of six months. operations at the mine: i
but hillside quarrying. had. been: discontinued for i
perrodst of.that-length:. Reasoningathe verb : ah
miring andhillsnde quarrying were separate operations,.
the-court•ruled:;that Hansen Brothers did not have a Scope-of Vested Mining Rights
: i
vested,ngirt fo'quatryon the hillside; and that if it ever A. Zoning and related constitutional principles
had such:a right,it had.beea lost by discontinuance of underlying.Hamsem Brothers'vested rights claior. i
quartrngforapenodin excess of six months. It based The lower courts and the parties all recognize the �1
thatruling.on Hansen Brothers' inability to produce constitutional principles under which Hansen Brothers
evident to-show the extent.of recent operations, the claims a vested right to mine-the hillside areas of its E�:
testiMWT bY'neartrY residents that the operation had property. Adoption of a zoning ordinance.whith is not
t� �earbitrary and does not unduly restrict the use of private
war based on.admsd rude.on behave of property is a permissible-exercise of the poligc power
Halals Brod—that Wb:ar adrachon had Lapsed for d1&or roars and does not violate the taking clause of the Fifth
pa+ods otthros yeam or ruam tewmony of the piaci m=uW that thus no bdbi
beAmendment of the United States Constitution. and
Wan ds quamyitrg its the area dose to the river sinus 1988:
0mlograpiw ad field impodion- ,how .,cry tined hilt comparable provisions-of the California Constitution.
dim and oo"versa caecal habide&grub tote on the am-of the. even when the law restricts an existing use of the
Wbi& fwdw away 5e1tr the•river that hadz been quarried ac an affected property.- (Perm Central Transp. Co. v. New
lWorquthd�but dm had trees up to 15 Cat high growing on it and York City(1978) 438 U.S. 104;125;Euclid v.;Ambler.
et�h to r och"bcurred W had ban oo w"ed Co.(1926)272 U.S.365..Beverly Oil Co..v. Cily of Los '
Y Angeles(1953) 40 Cal.2d 552.-558-559;Jones v. City
of Los Angeles(1930)211 Cal. 304,307.)
15. 'rhr Road did nor,arra doe roe,dont°*Hanun Beedws' A zoning ordinance or land use regulation which
wed nigh to ooetioe ruining the riverbed and baniL operates prospectively. and denies the owner the
306 Daily Appellate Report Wednesday Jarniary 10 1996
appotiimity to exploit an interest in the Property that B. Vested rights to mining, quarryin& and other
the owner, believed would be available• for future extractive uses-the "diminishing asset"doctri:ii*
development,or diminishes the value of the property, is In general, the state has the- power to
not invalid and does not bring about a compensable the extraction or removal of natsa prodders
taking unless all beneficial use of the property is land as it does to prohibit other uses. (Consolidated
denied. (Lucas v. South Carolina Coastal.Council Rock Products Co. v. City.of Los Angeles(1962) 57
(1992) 505 U.S. [120 L�Fd.2d 798, 112 S.CL Cal.2d 515, 529; Beverly Oil Co. v. City of Los
2886]; Penn: Central. Transp. Co. v. New York City, Angeles,.supra,40 Cal.2d 552,558.)16
supra, 438 U.S. 104, 130;Hensler v. City of Glendale Unlike other nonconforming uses of property which
(1994)8 Cal.4th 1, 11-12;Furry v..City of Sacramento operate within an existing structure orboundary,
(1979) 24 CaUd 862, 872.) If the law effects an mining uses anticipate extension•of mining into arras
unreasonable, oppressive, or unwarranted interference of the property,that were not being exploited at the time
with an existing use, or a planned use for which a. a zoning change caused the use to be nonconforming.
substantial meat 1n*development costs has been The question thus arises whether this extension is a
made, the ordinance may be invalid as applied to that Prohibited prop�y �� P expansion of a nonconforming use lino
compensation is. paid, however, another a= of the property. In those jririsdictions
(Beverly.Oil Co. v. City of Las Angeles, sup% 40 which have considered the question, the answer is a
Cal.2d 552, 559; Pillage of Terrace Park v.Errett(2d qualified"no" order the"diminishing asyeC
Cir. 1926) 12 F.2d 239.) Zoning Ordinances and other an exception to the rule banning expansion of a
�ndav d regulations customarily, Ming.uses nonconforming use, that is specific to- minting
questions:asto the constitutionality of their enterprises,
application to- those uses,. "'The rights of users of When a mining or quarrying.operation is a-lawful
propertyas those rights. existed.at the time of the nonconforming use progression of the mining or
adoption of a ming ordinance are well recognized and quarrying activity iM mer areas of the property is not
have d%W3 been ProftctaL" (yOk*, Zmug Law necessarily a prohibited expansion or change- of
and Practice,¢132,p 255.). , location of the nonconforming use: When time is
Accordingly, a Provision-which. exem pasting objectives evidence of the owner's intent to.expand a.
nOncOnformmg uses."is ordinarily included in zoning mining operation,and.that intent existed at the time of
ordinances because of the hardship. and doubtfW the zoning change, the use may expand- into
eonstimtionahty of compelling the. immedmLe contemplated arra.- `"The very nature and use of-an
discontinuance of nonconforming uses." (County of extractive business contemplates the eonnimianoe of
Sar Diego v.McClurken-(1951) 37 Cal.2d 683, 686. such use of the entire parol of land as a whole,withwt
See also Jones v. City.of Los Angeles,supra, 211 Cal. limitation or restriction to the 'immediate
304, 310-311.) The exemption may ether apt as excavated at the time the ordinance was passed-
existing use altogether or allow a limited period of mineral extractive operation is susceptible of use
20
continued operation adequate for amortization of the has value only in the place where the resources are
owners' investment in the-particular use. (See, e.g., found, and once the-minerals are extracted it cannot
Metr`4*4, Ina v. City of San Diego (1980) 26 again be used for that purpose. `Quarry property is
CaUd 848, revd..453 U.S. 490; National Advertising generally a orae-use property. The rode must be
Co. V. County of Monterey (1970) 1 CaUd 875; quarried at the site where it exists, or not at all. An
Livingston Rock eta Co. V. County of L.A. (1954) 43 absolute prohibition,therefore,practically amounts to a
CALM 12i.) taking of the property since it denies the owner the
When dna of an existing use is permitted by right to engage in the only business for which the land
a zoning ordinance, the continued nonconforming use is fitted.' (Morton v. Superior Court, 124 Cal.App. 2d
must be similar to the use existing at the time the 577, 582; Lockard Y. City of Los Angeles, 33 Cal-2d
zoning ordinance-became effective (See Rehfeld v. 453, 467; Trans-Oceanic Oil Corp. v. Saha Bw bara
City and County of San Francisco (1933) 218 CaL 83; (1948)85 Ca1.App.2d 776, 789; Wheeler v. Gregg, 90
City of Yuba City v. :Cherrrfaysky'(1931) 117 CaLApp. CaLApp.2d 348- Borough-of Cheswick v.•Bechnrmr,
569.) Intensification or expansion of the posting 352 Pa.79[42 A2d 601;Lamb v.A.D.McKee,Inc. 10
nonconfo'ming use,or.moving the operation to another N.J.Mise.649[160 A 5631; Pillage of Terrace,Pw*v.
location on the property is not permitted. (County of Finn,6 12 F.2d 240,243'.) An entire tract is generally-
San Diego v McClurken, supra, 37 Cal.2d 683, 687- regarded as- within the exemption of an Basting
688: See also 8A McQuillin,supra, §25.206, p. 114.) nonconforming use. al the entire tract,is not so
"[Rn determining whether the nonconforming use was used at the time of the passage or effective date of the ;r
the same before and afterthe passage of a zoning zoning law." (McCaslin v. City of Monterey Park,
ordinance, each case must stand on its own facts" supra, 163 CaLApp.2d 339,349(McCaslin).)
(Edmonds v. County of Los Angeles(1953) 40 CaUd
642.651. See also,Livingston Rock eta Co.v. County
of LA.supra, 43 Cal.2d 121, 127; City of La Mesa v. 16. In re x tso,s Wa. t47 CaL 609, wbich hdd that por—
Nved& Gambrel!Mill (1956) 146 CaLApp2 —d 762, Pdid am caend to sb-hm prof a"i of goatrymg rock sad steoa
768.) - fines Pcopaw in d=W=ed ares of the City and County of Sea
Normae is not a nonconforming use,-However, and Fnmmw ` was decided befete the commudond ratidicy of
adiomoes was cftW a and by F.ucUd v Ambkr Ca.satpm 272 U_&
mono may ri prohibited if a nonconforming use has 365. a aed other nee.deaded Was oomptWun mn xamog reg iv—
been veoluatanlq abandoned._ (Bill v_City of Manhattan had bees evoo®emed as a ceo�owgy pamimUo esaeir of
Beach,supra,6 CaUd 279,286.) POhm Power was effectively dwapprowd w Conselida�
md
Products Co.v.Cay olLaeAngeies,supra,57 CaUd 515,528-529.
Wednesday, January 10, 1996 Daily Appellate Report 307
This rule is generally applicable in those states in nonconforming use to a gravel pit would be a problem
which the question has arisen.17 The Court of Appeals "because- such use consumes the land; and can only
of New York recognized and applied the rule to a continue if allowed to expand" (Flan an v Town of '
nonconforming use involving extraction of sand, Hollis (N.H. 1972) 293 A.2d 328, 329) but held that
gravel,topsoil,and fill from a 25-acre parcel of land in restriction of future expansion to a edr
ge
Syracuse Aggregate Corp. v. Weise (1980) 51.N.Y.2d of the area and to a depth no greater than thaalready
278 [414 N.E.2d 6511. Rejecting a claim that the excavated was reasonable. In Hawlans v. Talbot
operation could not be extended into areas not yet (Minn. 1957) 80 N.W.2d 863, 865, the court
excavated when the zoning was changed, the court recognized that a gravel pit was a"diminishing.asset"
expuniquelamed: "By use i nue, quarrying_involves a and that if operation under a noacpnforming use
land. As opposed to other exception to a zoning ordinance prohibited expansion
noncoorming uses in which the land. is merely beyond the area already excavated,the ordinance would
incidental to the activities conducted upon it . . . effectively prohibit any further use of the land. It held,
quarrying contemplates the excavation and sale of the as a matter of statutory construction, that such
Corpus of the land.itself as a resource. Depending.on expansion was not precluded.
customer needs,the land will be gradually excavated in Other jurisdictions which recognize the i
order to supply the various grades of sand and gravel "diminishing asset"exception to restricted expansion of
demanded Thus as.a matter of practicality as well as nonconforming uses are Alaska (Stephan & Sons v !
economic necessity,a quarry operator will not excavate Municipality of Anchorage (Alaska. 1984} 685 P.2d
his entire parcel of land at once,but will leave areas in 98), Utah (Gibbons & Reed Company v North Salt �[
reserve, virtually untouched until they are actually Lake City (Utah 1967) 431 P.2d 559,-562-563), New ;
Jerseys (Moore v.. Bridgewater Tp. (N-J.
"It is because of the unique realities of gravel mining Super.0 LApp.Div. 1961). 173 A.2d 4130, 437), and
that most courts which have,addressed the particular Wisconsin- (Smart- v. Dane CouBaird of
issue !t
involved herein have recognized that quarrying Adjustments(Wis. 1993)501 N.W.2d 74.785).18- �#
constitutes the use of land as a `diminishing asset.' A vested right to quarry or emavate the entire area
(See, e.g., County of Du Page v. Elmhurst-Chicago of a
g parcel on which the. nonoonfalrming. use is
Stone Co., 18 111.2d 479, 165 N.E.2d 310.) recognized requires more than the use of a part of the
Consequently,these courts have been nearly unanimous property for that purpose when the zoning.law becomes r }
in holding that. quarrying,. as a nonconformingr
use, effective, however. In addition then mast be evidence
cannot be limited to the land actually excavated at the that the owner or operator at the time the use became {
Um of enactment of the restrictive ordinance because nonconforming had exhibited an intent';°to extend the [
do so would, in effect, deprive the landowner of his use to the entire property owned at that times In
use of the property as a quarry. (Syracuse Aggregate Syracuse Aggregate Corp.Y. Weise,suprc,414 N.E.2d
Corp.V. Weise,supra,414 N.E.2d 651,654-655.) 651, for example, the court concluded that the entire
The Supreme Court of Illinois recognized the property could be used for quarrying because the 1
"diminishing asset" doctrine in County of Du Page v. "owner engage(dj in substantial quarrying activities on i
Elmhurstt-Chicago Stone Co., supra 18 I11.2d 479 [165 a distinct parcel of land over a long period of time and
N.E.2d 3101. "This is not the usual case of a business these activities clearly manifest Mr intent to
conducted within buildings,nor is the land held merely appropriate the entire parcel to the particular business
as a site or location whereon the enterprise can be— of quarrying.. . ." (Id. at p.655,italics*dded.)
conducted indefinitely with existing facilities. In a Similarly; in Town of Wolfeboro (Plonning Bd) v.
quarrying business the-land itself is a material or Smith(N.H. 1989) 556 A.2d 755, the court recognized
resource. It constitutes a diminishing asset: and is extension of quarrying into additional areas of a parcel
consumed in the very process of use. Under such facts as a continuation, not an expaosion, of a
the ordinary concept of use, as applied in determining nonconforming use. However, construing the statute
the existence of a nonconforming use, must yield to the that permitted continuance. of excavation as a !'1
realities of the business in question and the nature of its nonconforming.use,the court held that the".`land area
operations. We think that in uses of a diminishing which is used' " for that purpose had to have been
asset the enterprise is `using' all that land which "clearly designated as an-area for future=cavation by 1;
contains the Particular asset and which constitutes an an objective manifestation of the intent of the excavator
integral part of the operation, notwithstanding the fad to continue an operation onto that po-ricular land
that a particular portion may not yet be under actual area.. (Id. at p. 757, italics added.) The court
excavation. It is in the very nature of such business summarized the applicable vile as Hollows: "In
that reserve areas be maintained which are left vacant conclusion, we holdthat a party w4o desires to'
or devoted to incidental uses until they are needed.
Obviously it cannot operate over an entire tract at It it is not dear whether Pamov,mia hes adopted this
Once.- (Id at p.313.) appro,& In Borough ofChanack v Bwhnan.-pM 42 Aad 60.the
The New Hampshire Supreme Court recognized that oomt construed a bol nonoont'orttmrg use law as ionom new USM but 1
application of the normal restriction on expansion of a ra exPammm of a um 1t then#Wd that expenpon of a sum and
loam:c acuon Nato= to dw atue tract bemg Wed at the time a
17. zonig oodaumw became effective was pamuoble,sating the to dewy
Fx°°pn°n are Ada )'.
aadtmarts (Btttenco v. Quinn (1947) the fight of o9artsion would depriw the owners of the use of their
0 Masa 687(71 N.E.2d 2351;Town of Wayland V.Les 1950)325 propaty tie effectively as a proluNtion of all use would have donq and
637(9l N.E.2d 8351[E--tier permitted only from sant pit in this could not have been the mW9 of the ad'maooe. (42 A.2d at p.62.)
Boarwd o A �l) m 650 uxucut A2d S g h er v. Zoning But R KObblehouse Qu--v-Bd.(Pa.Cmmw.CL 1993)630 gn Townthip Zoning
/• PP- ( 7)
000092, /z
308 Dalby impel ate Report Wednesda .Jammy J.., 96
contiacte excavation operations. . . must meet a three. enacted.:and even four-years later,extended only to two
pronged test: First; her must.prove that excavation to five acres. On that basis-the court concluded that the
activities were activrdy being pursued when the- law evidence-"in no way manifestly indii:ated am objective
became effective; second„he must pmve that drr area intent to approp�the entire(parcell" (685.P2 at
that he desires to excavate was clearly intended to be p; 102),- and; affirmed the superior
excacourt'judgment
excavated as measured:by objective mmrijestations whicdr had upheld that ruling; % '
and not by subjective intent;and-third, he mast prove The.right to expand mining or,quarrying operations
that the continued operations do=not; and/or will-not; orr'the- property, is. limited; byj"the exteae that the
have a substantially different and adverse impact.on the particular material is being excavated when-ther zoning
neighborhood - (.14-at-p. 759,. italics added.) In law became effective:a I%i?rfi 1�riirty,of Dir Page v:
Gibbons & Reed'Cornparry•v: Norda Salt"l aice>City, Ghry:Wltecrtoir Bank supra, 1x69 N.E'.2d 310, whip the
supra; 431'P.2d-559,-the property had been used'for court•appliel': doctrine to A
roads and' for stioedCpiling sand;°andk"gravdremoved" parcel of land from whichaggregate was mined, it
fivm other parceLi&= The owner testified'than shortly described;the rule'as permitting.use of all the-Iaad
before the enaCtIRCutof the-zoning-ordh ante:contracts "whictO- ontains the:--particular. asset and: which-
Aw- the=-removal_.af"fiW. on= &er parcel-:..had been consdutes-aa,integralpart of:ttk-opmdoe'(Id: acp:.
negotiated;that~at tLlS imehe•iatendedto continwhis. 313)•and'tiel&thatLthe�osrnwwas"using•ail-of its 40=
graver.operadonsono:tha+parcel:and,than-Z-million= acre':.ttacr whicdf<tontainedP gravel and'aggregates
Yards:.a gravekhadrbeeariemoved firotwthe propertlr; . notwabstandingtherfacl that�theentire,=a was not yet-
Fat'thorarreasons•tlaparcebwasanrfruegrai1artofthc - under'coc;avatioa:"{7d'afp� 15) -
gravel-operdambeforethe mniir d mge`wasadopted- ng--use-may- nov.1
and=its:um.ftrthwt pmP _was nat4' - extended to=adjaan►t""Pmpect9'aattrired after ther zoning
ex}raasiMQCtI>-use.,• V&at:p 364>)z:The,area=intim c bmw were'inio,,drba-ems'"tri the:extent thai=the
whicdr...noatco g'Q _Ping`opt'000ldn be transf adv of tIL-property-themselves."had:a.vestect
extended ia►Moore�s I Btt ght engage` iw� tha&nonconforming use. on the
430 : were i. dS 'TP•,suprnrr;173•AZd ri tui
on>!q those: dura why the owner= batt transferred: property. The court rccogniud d ds.in-
mm fcstc am.o6joctivwirment t&cmm&ftopemdbm, McCasIbr-"where- its,stated:; ,IOW coursa: plans
(lit,atp 437)P='Aad im1V11 Dbblehoas--Quarrier-w nonconforming uw.of the-property'in question cannot
Mar/borough 7 ip:ZWdng-Bd .sup v,-63W A:Zd' bo,=pnde&-ov.=wn&d-to-auseparAc
93-7,944;tl1G parcel . :::-
aoa�apheld denial:of thcright to quarry= WMcCaslin; Apw. 163 Cal.App 2d at p. 350.) Int-that
PM of-a.tractrbecanse':thane:was:ibsufCienrevidenm rase the,applicable•mmnf ordirmum coummed-that
that this.area_hacVbc -Jdevxrted•to!the'nonooROOrming restriction-(id at p.344);but that=is the rule of general
use:. application: (See 8A
In tltc most-recent., c fin• supra $25.208, p:•
applying-thy limitation; 128; and'ces cited.) In another quarrying.case, a
Stephan &SOns=W.Municipality of AiTchoram supra; New laser court Valet`than evert-though the: quarry
68S-P'.2d'98; tha-Alaska-Supreme-Court•snmmazized owners been-permitted by-the previous owner of an
the scope"-of;a,.vested` rigW recognized:-.:under the adjacent:tract to,carry.equipment across.the adiacem
diminishing Wim, noting-that"the-owner of a tract;quarrying was-not being conducted era that tract.
nonconformingumasa•gravel'pirdom-mWaoemarily Therettw=wlen;thar:goarry.owner acquired the tract
haver th-rightto:us-,,the entire tract.. Rather, the:ase after--.a zoning=: thangie. went into effect the'
must"'manifestly implW that the entire'property was nonoonforming'goatry,optratian could not be extended
such use prior to adoption ofthe-... .. ontOthe new=tract'w-11Wuse-at the-timer the-ordinancir
ordinate.'n'.(685-P.2darp-102.). : was,adopted'estabiishod.the ttbn�orming.tise•whicdr.
The-ratioaalefac.the`diminishing assets`doctrine is defendant-was entitled bur continual,(Sb.&g r v Smrmef
that the:vel nahae oran-ewavahng-business rs-the '.Braen r-Some-(N.J Sup.CL App.DW-. I951)- 8S.A.W
co inning use=a the land;and that this.usa is what is 279;.,281:yZ';==::;:: ,l-M. " _,.re =
endorsedbytthcnonoo guse-concept. Thus,.the: Evew where madtitIL--paw are in tha saner
doctrim holdsthaw'a>s owner."ara=nonconforming use ownership anther time w zoning law renders mining use
may sometimes-befound top have.a.vested,right-to use nonconforming, extension of the use into parcels not
an entire tract even:-though°only a portion of the tract being mined at that time is allowed only if the parcels
was.used when the restrictive ordinance-was enacted.' had bear part of the mimng operation. (Dolomite
6 R Powell,The Law of RMI'Property M 871[31[ifil, Prvductr Co. v.-Kipers (1965) 23 A.D.2d 339 [260
at 79C-178 tar -17% (Rohan rev ori; 1979)._ The N.Y.S.2d=9181 affil:.19,I :Y.X 739•[owner may not
detetnining femoris`whether thea Harare of the:initial "tacV- a"noneonforming=-,use on, one pared used for
noncoU forming use;;ia-the light of the.character and quarrying onto•others owned!and held for future use
adaptability to such use oEtlte entire pawl,manifestly when the zoning law became effective};Smort v Dam-
implies.that the entire.property was appropriated to Comfy.Bel of A#ustnrentx'supnz 177 %&2&445-
soch use prior to adoptioa[ of the-r+estricfm zoning [501 N.WW2d<',782j [mining may'•be expanded- to.
aadinanol' [Citafon}=The-mercinteation-orhapeon coatigttoespai+ced owned by same entity; i€eocavatloar .
the part of the:landaffner to extend the use over the operations ecce do existenceon-part oaf the land,and ad*
entire tract is dna the intent must berobjectivdy of the land constitntingan integral part of dwopaation"
manifested byL thepumt operanone (Fn omrtte&)" was. "mF use" whm-the-mnrn8 chamW tel,
(685 P.2d atp¢IOt-102.): Stephan&So=*. Alivddpotity-of Anchorage, srrpv.
The zoning board had limited'the owners of graven 685 P'Zdt aC p.-102;f[L 6-["The diminishing-asset
pit operations to I3 a=- of a 53-acre•parcel, The doctrine no:m ilywill`mt countemn=the extension or
SaPaeme Court noted that the operation.had been on&- a use,beyond-the boundaries of th_tract on which the
relativedy small scale at. the time the ordinance was use"waai mrtiated:whm theapplia6k zoMS`lawweartF
000092 :>
w
i .
Wednesday,January 10; 1996 Daffy Appellate Report 309
Ito effect See 4A. Rathkopf,The Law of Zoning and Examiners(1968)68 Cal.2d 67,71;Mora»v.Board of
Planning §51.07[4)[al (4th ed. 1983); see also Medical Examiners (1948) 32 Cal.2& 301, 308;
Midland Park Coal&Lumber Co. Y. Terhune, 56 A.2d McMillen v. Civil Service Commn. (1992) 6 I
717 (N.J. 1948); Syracuse Aggregate Corp. v. Weise, Cal.App.4th 125, 129.)
51 N.Y.2d 278,. 434 N.S.S.2d 150, 414 N E.2d 65.1, As to the issues on which the evidence in the t;
655 (1980); Davis v Miller, 163 Ohio St 91, 126 administrative record is undisputed, however, the
NY-2d 49,51 (1955).").) ultimate conclusion to be drawn from the evidence is a
Were the rule otherwise,zoning laws could be easily question of law. (Halaco Engineering Qb. v. South
avoided by acquiring Property abutting a tract on which Coast Central Regional Com., supra, 42 Cal.3d 52,
the nonconforming use operated and expanding into the 74.)
new Property, even though the original owners of the Hansen Brothers argues that under McCpslin it has a 1.
newly acquired property had no vested right to such use right to mine and quarry the entire 60 acres of its `
of the property. Nevada County property 19 The Court of Appeal, it
Amici curiae counties and cites _ argue, contends, failed to properly apply the law governing i
notwithstanding McCaslin, that the diminishing asset nonconforming uses and the diminishing asset doctrine !:
doc Ulne is not the law of California. Their-only basis to its operation of the Bear's Elbow Mine. Hansen
for this suggestion, however, is that the decision was Brothers claims that since 1946.the Bear's. Ibow Mine .�
distinguished by the Court of Appeal in Paramount has been an"integrated°' mining operatioilL It asserts
Rock Co. v. County of San Diego (1960) 18o. that this includes not only the riverbed mining and
CaLApp.2d 217, 228, but Paramount Rock did not hillside quarrying on which the lower courts and the
question the applicability of the doctrine to extractive county agencies focused, but also the on-site
uses. Instead, the court distinguished the case before it conveyance, crushing, sorting, washing, *torage, and
on the ground that the owner sought to build a plant transportation of the mined product. It.claims, in
for, and commence a.rock crushing operation on,land essenoe,that the proper focus of the.noncooforming use
that theretofore had been used only for extraction of question is not on the discrete mining opierations, but
sand and premixing of materials for ready-mix on the conduct of the aggregate production business. �
concrete. That proposed operation was not one that is . On that basis it argues that the Court of Appear erred in
subswitially the same as.the use to which the property concluding (1) that quarrying the hillside was a l
had been put before the zoning ordinance became separate"use" of the property, (2) that this use of-thelirnh )
tlul absence of a� basis for con property � been discontinued' and (3) that even if �
Wean ordinance, which concluding that a Hansen Brothers had a vested right to quarry the
g permits the continuation of. hillside, the operation proposed in the SMARA
nonconforming uses, intended its ban on expansion to application was an impermissible intensiOcation and
other areas of the property to apply to miring uses, enlargement of the lawful nonconforming mining
McCaslin provides the applicable rule. The McCaslin operation which Hansen Brothers had a vested right to
court's application of-the diminishing asset doctrine continue notwithstanding the 1954 zoning ordinance.
there is entirely consistent with this court's recognition We shall address each question in turn. Ernst however.
in Lockard v. City of Los Angeles (1949) 33 CiO.2d ,*- mnct consider whether those rights that Hansen
453,467,that"[sluch a business must operas-, if at all, Brothers may nave externa to the entire 60 plus acres
where the resources are found." If it n;ay not expand,it that are identified on its SMARA reclamation plan as
cannot continue. Recognition of the diminishing asset the Bear's Elbow Mine.
doctrine is also consistent with the legislative intent
underlying SMARA which seeks to minimize A. Extent of Bear's Elbow Mine in 1954.
ecological degradation from mining enterprises. Were As we have noted earlier, a vested right to continue
the dumumshmg asset doctrine inapplicable,.a mining a nonconforming use extends only to the property on
enterprise would be required to immediately initiate which the use existed at the time zoninj regulations lit
mmun9 on all areas of its Properly lest, under a. changed and the use became a nonconforming use.
subsequent zoning change,its right to further mining Undisputed evidence•in the record establishes, and
t.
be extinguished. the county concedes, that Hansen Brothers and its
predecessors in interest operated the, aggregate
lv production business at the Bear's Elbow Mine in 1954
at the time the Nevada County zoning ordinance was
Application to the Bean's Elbow Mine enacted Hansen Brothers argues that, it is also
Because the administrative decision denying undisputed that its Nevada County property]is a 60-acre
approval of Hansen Brothers' reclamation plan property.
effectively precludes continuance of the company's
aggregate production business unless it applies for and
is granted a conditional use.permit the
pekoe by county, the 19. Hagen Brahera aoem that this right e>mts s:a aorta of w
snperror court property exercised its independent 000ddutiorud taw. Whodur there has bees or may be a compaualble
gment in making factual determinations based on taltiag of any part of its property is not an ismer in this prooeeding.
a str;tdve � Beeauas the imam in.the pdRioa for writ of mandate would be
reco (Slrumsky v. San Diego of other. mm. in its. oomplaim 4kgi,+g inverse ;
ounty Employees Retirement Asn., supra, 11 Cal3d coodmo etion and,eating deetnuory relied;Vial of iter claim that it is
28, 34-35. See Halaco Engineering.Co. v. South exempt fram the permit raftiremet of the Nevada Cauty Development
Central Coast Regional Com.,supra,42 Ca0d 52,63- Code was bdiwcated fiam tw other counta. To expedite review of the
66.) Those findings must be upheld on appeal from the stpenorcoroandate.Hamm
urt f
Brodmn ace on. As a them has
superior court judgment if they are supported by beat no adiudicum of its mmu omtdarmatm claim
substantial evidence. (Yakov v. Board of Medical
000 2
I
310 Daffy Appellate Report Wednesday;January 10, 1996
Hansen Brothers is correct in its assertion that there Inasmuch as the county admitted that Hansen
is no dispute that it owns contiguous parcels of Nevada Brothers was using this property in its Bear's Elbow
County property, including that on which the Bear's Mine business in-1954, it must be included in the area
Elbow Mine was established in 1946, and that chase over which Hansen Brothers' aggregate mining rights
parcels total 60 acres Some of those parcels. were vested. The property description indicates that this
conveyed to Hansen Brothers after 1954,however. .The parcet is less than three acres in sim
record does not confirm that all of the parcels, over (2) A deed-dated Jnly 22. 1982 from Artie-Hansea
which-Hansen Brothers claimed vested mining rights im and Sibley Hansen quitclaiming to Hansen Brothers the
its SMARA application,went:part of the Bear's Elbow "Patented mining claim known as the Bears Elbow
Mime in 1946 or 1954. The record-is also devoid of Placer Mining Claim located.on.a portion of Saxim
evidence that the owners of those parcels themselves 32, Township-15-Northi.Rango.91,East,Mount Diablo
held vested mining rights in the transferred.property at Meridian -CoTax•Mining:District,:Nevada County and.
.the time they. were deeded--to.-Hansen Brothers. Placer County, mom particularly described in that
Examination of the record reveals that while the aunty certain patent granted July 14,. 1981, recorded in the
has admitted that Hansen Brothers and its predecessors official•records of,Nevada County on- September 2,.
in interest have been conducting.mining operations at 1981,document munber 81,23586,and recorded in the
the Bear's: Elbow-Mune since-,1946, that- admission' offci -.records.of.Placer County--on October.l6; 1981,
encompassed%onlys the pared that-was-the origmal�site recording numbec40517"-
of the Bear's.Elbow Mm&m d•oner of the.three parcels- (3)�,11e:July 14,-1991,United-States Land Patens to
conveyed to-Hansen Brothers atter 1954: >, b< Arlie Hansen'and Karst mHansen for tha Bear's Elbow
The: petition.Eur wft.oC mandateim thisi.maser. Placer;: Mining- Claim :>described above; with
alleged that"at all timesherein•mentionek-petitioner•: accompanying field notes:; The deed recited that the.
has arndacted:$-mininx operatim o more;particularly- ."preniismherciwgrmted 28.898 acrcL72t- -
described as quarzy►ing.amd mining-aggregate Hansen: Other doc tmwnts: in Ahe--record- confirm that. thr-
has.wed:mimng-oUrudt; sand.-ands=gravel:for Bear's Elbow- Placer Mining Claim was the daim
aggregate-LOM the:subject:property sin=1946 and.has located by,:Vollmer and.-Rondini in-1945 and operated
owned.and. operated: the mine: since- 1954. -.That by Hansen-Brothers'. predwwors in interest in 1954
aggregate mining operation inclndes;but is,=limited when the zoning ordinance was enacted: These two
to the quarrying-frouLthe river and from;the:hillside.oa< properties vov�er only 32 acres;however,not the 60 phis-
the subject property-• • `•Tba!*subiect Proputr was acres:= identified int- Hansen Brothers' SMARA
idemified.udmtde nlxd in exhibit ktathc peoidm application:
Exhibit A to the petition consists.og:copies of thm Tho-- SMARA._ application- was armed- by
daamiarts: - copies of deeds to Hansea•Brothers for two additional
parcels;but as.those properties ware-not identified in 0
(1) A deed by A-& Viscia and Eduar Viscia the petition for writ of mandate; the county did not
conveying a.parcel off Nevada-County-property admit.that they had beedt part of the Bear's Elbow Mme
to Hansen Brothers= in: 1968: . The record in 1954 and the record does not otherwise demonstrate
contains no evidence that this parcel was part of that either Hansen- Brothers or its predecessors in
the Bear's Elbow Mine: in. 1954-or that the•: interest had.vested mining rights on those parcels at
grantees had vested mining rights on that pa rceL that time.0
in 1954 and continued.to have suchrights.ice: In-response to the court's-request for supplemental
1968 when the tract.was conveyed to Hansen. briefing.on tha extent of tum property operated as a
Brothers. However, this deed was. part of mine ins-1954, the County-confirmed that Nevada
exhibit A to Hansen Brothers' second amended County records establish. that the sixty-seven acre
petition for writ of mandate- which alleged.that parcel Hansen- Brothers.now describes as the Bear's
Hansen Brothers had ooadacxed• mining. Elbow- Minc-is in-.fad-comprised- of four- separate
operations on the "sabjea property" described . parcels, threw.of-which- were conveyed to Hansen
in exhibit,A
'Ibn county o@em no at)lamtim far its appeao<dy moomittmt
The aunty admitted in its resp a w P to the petition that posiian an duetted mioma vAi&ho-also bean d6wodumm for periods
Hansen Broth= `tis, and since September 21, I954, in--=0f I oo day:
has been.the owner of the property described in Exhibit
A (`The subject property'): Petitioner has conducted a• ohtan a Fars brier md daaind p cat o out aufc for soasta Corexdave to
the since.. 1946 v.Grams Roc*camg a((i9M 48Q�7z;�7a.r.) Coastal COat)!r'R
mmmg 0per8ll0�II' property-
which„ at various fumes.- has included- the. in4he
riverbed ext=atxion of aggregate and.hillside.quarrying. 22. lboae F i nee:(1) A naiad soaves Laud Psu t(ria.04-
of rodr,.together with processing, storage:and sale.of ��lsLI �.� �Qa„��1"4,4,
the.mined materials on sit-,including activities related. mn pwcd appmara to haw been part ardw aeigod 1945 daunt but ribs
thereto."m ieawd coohirm c Mem tthat it nmeiaed sum 1954 or I91W
(2) A Sma deed from WiBaw Crack FWetpnm to Hosea Bsarhias
20. lbn coolly also oomoaded ibst Eiamim Hrothas'"'smrfaos �m�Inc,dared May 21,IM I di the property see"Lot 1
�6 I i oa the>�Ply 1 " d Office
ar Creek-Aw Cam y R c tlsossa m the Offir+d Map tbaeaof Sled m lbs
aside it ea a b camdaw the slime wilbat ssbihdia4 =a Off'ioe dribs Couety Reoadst d lbs Couisy d Navadn.... W71ow
^� Crack Ac ms iso=*dribs thing sts and lw psroeb res gWg freta fw
ooioaa60ed°�tie to twat"aroma sine. Thaw isin evWonn in dw rmoord d t Willoai
bot dmy dm the babide quay apersoea gwfi m for■scb Cuda Ea wprim befd vessed•mimgri81t m nets psi attba tion of
aermmt,thomrs fibs a4he�ivaised amactien opeatim may. the tramsI , or dw ea6er of ftm parcelt was bairg used for mitss6
pmrpom im 1954.
000092, /<
Wednesday,January 10, 1996 Daily Appellate Report 311
4 after 1954. The county argues on that basis continuing -existence of the use at the tune of the
rlieni'slight of the absence of evidence that lawful enactment of the ordinance." (Melton v. City of San
forming mining use existed on the three after- Pablo (1967) 252 Ca1.App.2d 794, 804:)', Hansen
acquired parcels in 1954, that, even if Hansen Brothers Brothers has failed to carry that burden insofar as its
has a right to quarry rock from the hillside (which it SMARA reclamation plan asserted a vested right to
disputes), that right cannot extend beyond the quarry a 60 plus acre parcel of Nevada County land.
boundaries of the original twenty-eight acre parcel. The evidence is insufficient to support a finding that
Hansen Brothers does not dispute the absence of Hansen Brothers is entitled to a writ of mandate to
evidence in the record that the after-acquired properties. compel the Board to approve its SMARA r4clamation
were being used for mining purposes in 1954. Instead plan as presented.23 Before that question can be
it argues that its SMARA reclamation plan describes resolved, the extent of the property on which Hansen i
the property as consisting of various parcels totaling 60 Brothers may assert the right to continue a
acres in Nevada County. It also seeks to rely on the nonconforming use must be determined by the superior
Boards finding that it has been allowed to continue a court on remand.
legal nonconforming use on that property since ,
adoption of the zoning ordinance, and on the Board's B Separate•use ;�.
failure to contest earlier that it has a right to continue We next address the nature of the use to which the i;
that nonconforming use. It argues in effectthat'the Hansen Brothers' property was being put in 1954 when i
s either est
county r' coped W argue before this caul that that use became nonconforming. The Court of Appeal,
the entire 67 acres was not owned and operated as part superior court, and administrative bodies 1concluded
of the Bear's.Elbow Mine in 1954, or that the county that: Hansen Brothers' riverbed gravel mining and 'E
has waived that claim hillside rock quarrying operations were separate and
however,as.Hansem Brothers has acknowledged,the that quarrying had been discontinued for ai period in
fads related to the acreage owned and-operated:as a excess-of the. 180-day limit for nonconforming uses if
mine in 1954 are undisputed. Therefore, the Board's established by the zoning.ordinance. Hansen Brothers !�
findings of fact are not determinative.. The coact must argues, that its placer mining and rock jquarrying
make its own decision as.to the legal impact of those operations are part of a-"single use of its property for +i,
facts and is not bound by any concessions of lawthat a the production of aggregate. We agree. In 1954,when
Party may have made. (Greener v. Workers' the zoning ordinance was adopted, Hansen!Brothers'
Compeirsation Appeals Bd. (1993) 6 Ca1.4th 1028, predecessors were using the Bear's. Elbow Mine
1043, fn. 11.) Indeed, the county lacks the power to. property for an aggregate production and salt business.
or consent to violation of the zoning law. (City Mining for sand and gravel and quarrying for rock ;
ntana v. Atkinson (1963) 212. Cal.App.2d 499, were integral parts of that business. Contrary to the
508; Western Surgical Supply Co. v. Affleck conclusion of Justice Mosk and Justice Kennard, the
(1952) 110 Cal.App.2d 388.) nonconforming use of the property was not and is not
Even were there an equitable basis for claiming an simply mining in which riverbed mining and rock
estoppel to assert the applicability of a zoning quarrying were separate uses of the property. The
ordinance to property in some circumstances (see City evidence, which neither Justice Kennard nor Justice
of Long Beach v. Mansell (1970) 3 Cal.3d 462, 493), Mosk mentions,is undisputed. The nonconforming use
no basis for doingso appears in this case as there is no of the property has always been the operation of an
evidence of detrimental reliance on the Board's failure aggregate production business of which mining for the
to note the dates of acquisition of the three parcels components is an aspect. We agree that the$codings of
Hansen Brothers now claims are all part of the Bear's the superior court and the Board that rock quarrying j
Elbow Mine. "Mhe owner of property or one has been discontinued for periods in excess of 180 days, t
proposingthe true e off he fads and the lawaffecting it cannot justify his t y material thaof and when n the ghas riverbed. minis am roduced smaller gttanh�of
by � by
pointing to similar ignorance in government bodies: substantial evidence: Those findings aro- not
Negligence which may be less than culpable in. a- dispositive, however; because both the Board and the
government body, charged with the administration and superior court proceeded on the erroneous premise that ;
regulation of vast amounts of land under diverse the unitary nonconforming use of the property for the I
ownership, cannot be so easily excused in one whose production of aggregate could be compartrrnentaliud i
interest is focused on a particular piece of property." into two mining uses and an aggregate production
(County of Los Angeles v. Berk(1980) 26 CaUd 201, business.
221.) Moreover,estoppel will not-be recognized"when. In determining the use to which the land was being
to do so would nullify 'a strong rule of policy adopted put at the time the use became nonconforlming, the
for the benefit of the public. . . .' " (Id. at p. 222; see overall business operation must be considerodl. "jOfne
also. City of Long Beach v. Mansell, supra, 3 Cal.3d entitled to a nonconforming use has a ngkt to . . .
462.496-497.)
The evidence therefore establishes only. that 23. our conc,niot that Hamm Brothers has not icsuiblishW a t
whatever vested rights to mine and quarry its property right to mice the anti a 60 acres cowed by its SMARA reclamation plc
Hansen Brothers has exist on the 28.89&acre placer da not Preclude:„hr>tission of a vvvisW plan or new hearing oa the
mining claim patented to its predecessors and conveyed o
jftin 1982,and on the 3-acre Vrscia parcel which the tet,at the tune they were conveyed to Hansen Btahrsz
1111prty admitted in its response to the petition was Because there= does not support the eststerm of shin rights on
operated as part of the mine in 1954. the entire 60 aces`however,our concuoont here with regard to Haman
'The burden of proof is on the party asserting a right Brothers'vested rights to opera the Bear's Elbow Minei refer only to
to a nonconforming use to establish the lawful and 1}1e 2 parcels over which Hamer Beechen has asublishad vsated right:
i
006092 , /6
7 I
312 Daily Appellate Report Wednesday, January IQ 1996
engage in uses normally incidental and awdllay to the the hillside as needed to produce aggregate.in 1954 i
nonconforming use. . . . Furthermore, open areas in undispute&24
connection with an improvement existing at the time of The land on which the mine operates was ori
the adoption of zoning regulations are exempt from claimed as a placer mine.25 Although the record does
such regulations as a nonconforming use if such open not include documents-that establish that hard rock was
ureas were in use or partially used in connection with to be recovered or extracted under the placer mining.
the use existing when the regulations were adopted." claim,the patent recitesthat the owners were granted a
(8A McQuillan. mpra at §25.200, p. 89. italics right to extract rock from the 29 acres covered by the
added.) The mining uses of the Hansen Brothers' patem26
ply areincidental aspects of the aggregate Therefore.the evidence dQeq not support the finding
production business. of tht superior crnuttlW'lAitgea Brothers did not have
In the context of a business-like that operated by a vested"right-to_quanyw&from the-hillsides of the
Hansen. Brothem this approach is- illustrated in -
Pwwnount Rock Co. v. Cour o Sar Diego,
180 Cal. Zd 217. County f erg tea, _ ....
App• Thmre, at the time the land in Ze Arlie Harron.airs ordrs od&al owner-of the Bear's Foo„
issue was rezoned,the lessee was operating a ready-mix attho mme an°° an
1946 d hod owned
concrete busies Said W8S removed on-the �1 premises. aaked st4*_1g before dw Bored whahw"m
washed,elsewhere, and returned to the site,where it_ mer thers dw you peodoos and
was-mixed with rods.gravel, and cement and.loaded ,eu"Iernwpo deduneyuivocally -Yeewoao,-
into trucks equipped to add water and mix the matenaLv
to foam concrete.. After-the land-was;rezoned, the. -: ;' sA"PINOW'a'didinvoidud bum's.Nodes or.•tieie for
less=-constructed a.rock crushing plant an thesites "fie ndnnWcL�mw bei made;,i&"•s smwelly plots wbm sold is
found,erpedaily:by the Was of•a river.usm
=ccessfilly sought.to MioiWer "des-bed of s-moaotria
111e comityinn of taneW-Whdr w the= mt of the subteaaoesm.dirmsis aaataifeg
rile rock n8 plant which the Imssee Claimed was grsvd bidscdsey b w tong bean lmown to east-int and they
aW iUtWal pert of its pro-mi=l concreWbustw SS. " ', have been gems =Mood iwbK and penally%n ma d m the beds
Appeal affirmed the• gmentafadeatriwrs inwbids the gxv4:wuAopoaded by flwid-acban.and=
which wrm either from their
relief to the County, rieject ing the dater that the rock- bo&4 by s orupon` the
crushing Plant was au wpermeambert asrth a rode tern been buried,by mso•af oonvalim;
Integral part of the business the emu"by vok;anso or other nasal faoa' (Gregary.pamh akw
plaintiff had been operating,and holding that the plant (1887)?3 cat: 109, 1r4.). " •fc11.iam tonneuy attic pfim acv
was not a part of the nonconforming use to-which the declered.to iactude alt Fa.ms of depadC'esoepcmg veins of qoaU or
ply was being put at the time the=zoning ordmanoe other rode in pis=.- (Id atp.115.y
was adopted.. (Pmmnowrt Rock Co. v. County. of San• "•A biome in the earth's CM9.an ooeraog in its rods.and
Diego, supra 180 Ca1.App.2d 217, 230;): The court- made by soma face of mt Min*Nidi the mineral is deported,
noted,however,that under the oadinance theiess=was moo-to,baosomeW to a lode io the judgment of geologists Bot to
entitled to-operate the pre-mix business, includingP�d mmot the bass and its walk are only of if�ortaaos as
sand pit the- mdiamrgdw baundrtieswilha which he my look far and teaaouairty
effect to find the as he web A cont moos body of mineralized rode
Construing a-local ordinance in State v.Brangarner lying within any other•weir-defined boundwie on the owwa safaoe,
(1959) 110 Ohio App. 173 (168 N.E.2d 9011• the Ohio -d nodert,'woow egnrdlroof daft m•his eyes,a tads; Ws am of
Court that of Appeals reached a similar conclusion,holding l+p�plirsbla- to,�zosse o Aw�as and
rade lying,w �
ung use in issue there was mining,. bonodQiee dmety sepsratag iL livor the osghhaing rvdc.' -
quarrying,and Pig UMCOOnC,including.the"Use (Peppsrdt-e.K-y:(19bi)198 CdApp�2425.33 36.)
of all structures necessary or.incidentalthe am •-"rens two enn Azo-elememr of s lode we(s)the mioerni-
We have found' no authority for refiusing to g tam which'mint be-in.plsoe and baw romonoble trend and-
recognize a vested right to continue a-component of a and(N)dm ressonoMy�amiss an each side oftbe
business that itself has a vested right-to continue using same U nor`ap m t �" wt..'llel'-re�s(1969)
=M 667,670.1 See also Hedley an Won voL 1(3d ed)#289:
the land on which it is located for operatiasi of the Gnsn yr'Postraak&-73 Cat:109:111-114:Americas utaoing Law,
bmdnm An a88regaoe business does notdiffer floor � sI ) pp` 140-141.r
of the materials that other land uses simply,because mining for some or all
comprise aggregate is a componenr - 26. " Thr claim may hr m bean made pumsent to the Stens I.md
0f the busmen. Unless an independent-aspect of the plaow CWm Ad;as 1892 arppto"K to the bdaw law permtmg
business bad been discontinued,.the use may not be for vahubie—ii depo.m an pubho lanae(30 U.M
broken down into component parts and vested rights §22)6which t*evided:"rhal any p—on atehariaed to ager urian ender
recognized for less than the entire business operation. des»>mo6'laws:of the.(hired state may mea lauds that as dandy
vale obis for building stens under dw provisions of the taw in elation to-
We recognize that the placer mining operation plaow mineral doisoL.. (Ad of Aug..,1892,dr.373,f 1.27 Stat-
recovers sand and gravel f ni a riverbed and its banks, 342;30 use j 161.) Teas taw was e$ecd.ety repsrled,in past is
while the quarrying Operation will recover hard tuck 1953 whin•an additional doome,wan eommod, whish prvddsd the
fi+om a hillside that rises ai a dis<anoe of severe!. -af,"CommostoftAndoda a-04 vvalowbi�a m est�ori b
hundred yards fmm the river: These cow differ °=of the coining lawn of the Unted States ee en to give e$eftw
and are not part of a single depositor lode. The mining- va6di"anymimag claim hero t located nod:mcis mining broo..
and Quarrying methods also differ. NOnehmlCss, the 'Ca®°n vwiodW wand in this Ad does aft mcisde deposm of
use of the land at the time the Akvada County zoning "*ic'are vabmbls boc a d w depom has some property
Ordinance became effective was forgg g,� Big t diatifct ofd rpedrl valor" (Act of July 23.1953.PU L ria
un and sale aggregate was.not being. 84-167.69 SWL36k 30 U.S.0¢.161.som 3.)
produced only fm, sand and gravel taker from the To-bo-vaiosbir for w eomomif tone arise the niers ag of.*
riverbed. The evidence that tock was being taken firm Wwal im die sass most haw bees merlmnbie whir the deist
mode,La.:ther prion a-would brig wwo ded the coat of mrrracxi�
(Uniftsf2anv t;,olmew(1%9)390U.&5".)
-
0000921 /7
Wednesday,January 10, 1996 Daily Appellate Repot 313
Elbow Mine as it existed in 1954. The record were maintained throughout the period and the plant
instead that rode was being to=from the could be made operational within two hours.
Elbow
that time as an integral part of the aggregate This court has also equated discontinuance of a
business. However, the parties offered no other nonconforming use with voluntary abandons (see
evidence regarding, and neither the administrative HIII v. CIty of Manhattan Beach,supra, 6 Cal.3d 279,
bodies nor the superior court made findings on; 286), but we have never expressly held.that the terms
whether"`the naidue of the initial nonconforming use, are synonymous. Although abandonment of a
in the light of the character and adaptability to such use nonconforming use terminates it in all jurisdictions i.
of the entire parcel, manifestly implies that the entire aAcQ villin, supnz §25.191, p. 681 ordinances or
1miftl Property was appropriated to [mining and statutes which provide that discontinuance- of a
quarrying] use. prior to adoption of the restrictive nonconforming use terminates it have not. bees i
zoning ordinance.' " (Stephan&Sores v.Municipality uniformly consoned. Some have been held to create a
of longe, supra, 685 P.2d. at p. 102.) This presumption of abandonment by nomrse for the I
question too mast be.addressed on remand before a statutory period, others considered to be evidence of
ruling is made on Hansen Brothers' SMARA plan sine abandonment In still other jurisdictions the
resolution of that question is crucial to a determination nonconforming use is terminated when the spocifiad
d the extent Hansen Brothers'vested mining_rigfrnt. period of nonuse occurs, regardless of the intent of the ;I:
landowner_ (Id. at-pp. 68.69.) As we have noted, the
C. DfsaoNrtliwatcr of use parties have not offered any evidence of the :gis }
Article- 29, sec tion L41 29.2(B) (hereafter understanding or intent underlying the use of the tem }
Development, Cade section 29.2(8)) of the Nevada "discontinued"'in Development Code section 292(B)X
County Land Use and.Development Cede provides:: "If The:superior court treated quarrying as a urate
the -in I arming use is discomtinvod for a period of operation and decided the cessation goeuioa based only
one hundred eighty(180) days or more, any following on actual inac ivity-at.the quarry without regard to the
nae- shalt be- in with all applicalile . aggregate business and without tom Bering 1
r+ogmtemeats of this Chapttx" Previsions lr3ce this intent to abandon. The evidence.supports the;wnrt's
further the purpose of zoning laws- which seek tm finding that quarrying was discontinued for pediods in
eliminate nonoordorming uses. The ultimate purpose excess of 180 days. As we have noted earlier,h0wem,
Of zoning is . . . to reduce aff noueonforming uses the. county admitted that: Hansen Brothers "has 4
wrth in to =ftmhy as speedily as is ducted a mining operation on the subject property
Propersakluar& for the: interests of since 1946 which at various times,has included in-tie- ,.
(Dlarelt v. County of Monterey(1932) river-bed extraction of aggregate and hillside qusnying
128, 131.) We have recognized that, of rade, together with Pte& MM90 'Sale of
Oen this purpose.courts should follow a strict policy the mine materials on
Site,.incinding aCnivities belated i
against extension or expansion cf throw uses (County thereto; . . The county has thus conceded that the
Of Sar Diego v. McClurken, supra, 3T Cal.2d 683, aggregate business has not been discontinued, end the
667.) That polies necessarily applies toattempts to evidence supports the superior court's finding on that
Bond nonooMorming uses which have ceased poinL
OPC18fim In-construing eootinaation of an ordinance which limits The county argues nonetheless that Hansen BIrothers
uses,however,the court has lost any right it might have had to quarry rink from
mural also assume that the county did not intend an the hillside because that aspect of the businesshis been
aibitrary or irrational application of its provisions. discontinued for periods in excess of the 1817 days
The term "discontinued' in a zoning regulation permitted under the zoning ordinance for
dealing with a. nonconforming use is sometimes nonconforming uses.28 We have concluded, however,
deemed to be synonymous with "abandoned," that the nonconforming use which Hansen Brothers had
Cessation of sae alone does not constitute- a right to continue is the aggregate production and sale
abaodonmeat "(Albandonment, of a nonconforming.. business and that rode quarrying is an integral part of
ma ordinarily depends upon- a eoncarrreaoe of two that business.. T'hterdoree, since the aggregate business
factors (1)An intention to abandon;and-(2)-an overt itself has not been discontinued, Hansen Brothers has
acs,, or failure to acs; which carries the '
owner does not claim or retain implication the not lost the right to firaue quarrying on its property as
arty interest in the right necessary to its production of aggregate. The 130-day
to the use (8A. McQuillin, lsapral. provision applies to the nonowftniing use itself;not to
$25.192; 1 Anderson, American I,aw of Zoning. the various components of the business 29
§6.58). Mere cessation of use does not of itself amount.
to absndonmetit although the duration of nonose may 2z Mw county a�the do`mss ausosaa��
be a factor is determining whether the nonconforming abandonment by non.uss to phw out the ucu oertfasm* ueL;. We
use hes been abandoned (101 C1 S. Zoning § 199)." bye to read this as.a concemike the"d6cosiouer as used in
(Union Queries,. Inc. v. Board of Coranty Com rs Code section 291M meats vomoury and into 6-d
(Kan. 1970) 478 P.2d 181, 186-187.) In Sotrntlternaboodomnat
E4a+pnmgxt Co. v Winstead (1986) 80 N.C.AW 526. 2s. Again the county's teposition seems i0000siWat wAh its
1342 S.E.2d 5241, the court held that under. the • d purpose to miromme site degraddim wee the q etedcon
ordt>mnce the failure to operate a ooneaem trodod fey we would mew continuous end •�••.�
fatality for six month, during a business °Q"sr�"s w"t"'n the agar w er�toR tact,tun a�enl,t times
while the operator filled orders from another , �rwour ,was adequate tolmsd dw f
pico4 was nes a cessation-of operation. There, as in
this case, the plant. appment, tuveatory, and utilities 29. we.waul not conclude,for instaoo4 that a durylbuaim
operatmg as a noon darning use with ficilities for boating ta&and e
006,092,a
314 Darty Appellate Report Wednesday, January 10, 1996
Since we have concluded that the aggregate mining. Our conclusion that Hansen Brothers continues t
Production. and sales business was the land use for have a vested right to continue quarrying bar
.redCfor
which Hansen Brothers had a vested right in 1954, the use in making aggregate does not compel a conclusion
fact that rock quarrying may have been discontinued for that this right extends to quarrying the amount of rock
180 days or more is irrtlevanL Hansen Brothers has a proposed in its SMARA proposal "Gives the objective
vested right to.continue all aspects of its aggregate of zoning to eliminate nonconforming uses, oonrts
business at the Bear's Elbow Mine. This is not to say throughout the country generally follow a strict-poiicy_
that future inactivity at the mine may not result in against their extension or enlargeinenN``(County of
termination of that vested right or that the county might San Diego v. McClukenn, supra, 37 Cal 7d 683, 687,
not:conclude that the property is no longer being used and uses cited at fm 1;Parainoant Rock Co.v.County
fforaggregate pro and ais currently in um only as of Sot Diego, supra; 180 CaLApp2d 217, 229:. See
for storage stockpiled material. McQuilliin,supra g 25.206;p:114.)
The most recent decision of this court to address the
D. Fxpansion or intensifrcanoor of use: question of intensified'use. Eabnonds v. County of Los
The final question is whether substantial evidence . Angeles,supra; 40 CaL2d 642,did so-in the context of
Supports the-finding that Hansen Brothers' proposal for a trailer park which was maintained.for 20'trailers at
future quarrying would be an impermissiblethe time.a zoning ordinance which excluded that use
intensification of its nonconforming use. was adopted. The number of trailers increased
As is customary in zoning ordinances,the Nevada thereafter to 48, at which point the owners sought a
County ordinance provides in article 29,. section L-11 permit to legalize; the-mcsrase; but also claimed- a
29.2(A) of-the. Land Use. and Development Code. vestedright to use the property for-that many-trailers:
(Development- Code section 29.2(A))::. -No-. such The court-analogized, the-rakpansion oa adding new
[mncororming]use shall,be enlarged or intensified." buildings and concluded that the increase was"clearly
Relying.on Development Code section-29.2(A), the a different use of the property than that radsting.whea
county argues that quarrying operations on the scale thezoning.ordinance was adopted,noting that it would
Proposed is the SMARA application would be an require an increase in the size of a'`utility house'W for
impermissible- intensification: of the-nonconforming necessary sanitary facilities:" (Id.at p.651.).
use. Therefore Hansen Brothers may not undertake the _ Ln County of Sam Diego v. McC urkem supra, 37
mining proposed in the.SMARA application without CaL2d 683, the-owner had.used the land for-heavy
applying for and obtaining a conditional use permit industrial purposes, among" which was storage of
gasoline7 in movable tanks above ground.. After
m king sod wring butter,had&wwiurod and thus ka dw.rigs!to zoning ordinance restricted that type of land use, 0
resume beets momficturing for mv"mooche whso res demand for owner placed four permanently 'installed gasoline
butes wn low•ncrwi beats vM adequate to uhaL the ne4 and the storage tanks on the property. 'The.county sought their
� ru ven Pao the a othwpuspma. removal. We upheld the county's right- to dor so,
q�*y a souid a epee strut however,it is not a holding that the tanks were not o an on of
aU car tea the moos should be ooaanred as tamioamg a g �Y
n00000 bio los numn um when the mined numrw is aced aid being the nonconforming use, but a new and different use
and as made i with n®ng renewed o*ss neco miry to replemh the slam they had a diffaereat purpose, storage,of gasoline
tt�hava oeaed m end eom of how des.county iaeoded for service stations as opposed to industrial use. (Id at
180day iimrtaioo to apply to m=g apararioos cin that ,=,w xxL p•688.)
was we to ocasona the Nevada county aedinmos as to mmaing a In Edmonds v: County of Los Angeles, supra, 40
noomakaniog mming use wheorwr muting owed for 180 day:even Cal.2d'642,651, the additional.trailers to be placed on
dough the miofd enamel was bang stored and used as neoaawy,we the property were-equated to additional strucatres, a
would haw to sostns the the oamy coutemptaed that the property
wouid loft cies n00000ftn log one sums unkas mining opaatin.were type of changed or intensified use which most
renewed every sic otontht whdbw or not additional moteriai wet Jurisdictions ref m to- permit' as part -of a
waded. Mw took in o opernioo,files aha of llama Brothers wouid nonconforming use. (See McQuillan,supra, §25.206,
be ten -mocy blasting ace degs'aa m of the see in«der to shears the p. 114.) County of San Diego v.McC1u ler n,supra; 37
tight to coniums a nonosohnniog um inaaad of occaaciooai extractcion CaL2d 683, involved both a new use and placing
of rod`as treaded additional structures on-the Because Hansen
We bees.to attsbtas the idsot to the oormty,and lbs language of ply
the adcio.oss does ooh oonxW the roup Brothers' mining is not a new use and ander the-
30
diminishing asset doctrine may extend over the whole
aoa
3o ses to hh ma tet county los conceded that Hamm Baus a vaned right to apaste its busimee m res a uproperty, the question here differs. It involves only an
BBear'ss'
ERww Mins arty wt need not aeons now whdhw Development cone increased volume of production by the costing use.
sedciou 29.1M a uanded to asomoticaily termnum au nonconforming Decisions in other jurisdictions hold that the natural
use whaorw ref no he cased for/80 days,or if it doe so oniy if rot and reasonable expansion of a quarry business to meet
oaf hr been vohranily ab-doped for that period. we otwrvve. increased demand is not an impermissible enlargement
bomva; tha the buaofa of agpopm mining sad sok in Nevada
Com,is aeoe wrily seeaooi sod dependent oo fluctuoung norimt or change in the use of the property. In Frank Casilio
dmaod. Faced wdb scimitar questions is applycimg lavas ta>stimtmg &Sons v. Zoning Nearing Bd. eta (ftCommw. CL,
no�wm��to quarrying operamm bon the K,mas 1976)364 A.2d 964, 970, the court acknowledged the
4T8 w tell,amd�K Ina v.Board of Cowwwy can's rule applicable in that state that a nonconforming use
mpvk oresou supreme Cort in FO.Bidso v includes"the right of natural expansion so lwW as that
Baker Rock Crudit Co. (ter. 196x)438 P.M 98&held that whin on is reasonable and no nnnar to
queried tock was stoekpcilfd and nits was being made from tints
arodopite these was no ahanec®ea or*woormonot of use of thewelfare of the community,'" but held that an M' cr�*
prepaty for quarrying eves though aham bed been no gnnying.or from an occasional truckload of sand and gravel.
cmWmg of rock for tet period of disocnon mm spsd6ad to lbs leaving the property each day to as many as 30 a day
'pph"�`01dfOfOOL was not reasonable.
000092, �y
Wednesday, January 10, 1996 Dally Appellate Report 315
r
Town of Wolfeboro (Planning Ed) v. Sinith, line, has been operated as a single entity since it was
556 A 2d at page 759; the court held that while established in 1946.
mise in intensity of a non conforming use,is not More importantly,however,the SMARA application.
necessarily a change or expansion, "an increase in form is not designed for, and alone is not an adequate
intensity which serves to change the character or basis upon which, to decide, the question of
purpose of the nonconforming use will be considered to impermissible intensification.. The.application form
have changed the use." does not establish the actual amount of material that is
In Union Quarrtex Inc.v.Board of County Com'rs, to be mined in any given year or time, and offers only
supra, 478 P.2d 181, 187, a small quarrying operation estimates in broad ranges of the passible annual mining
which sold rock to neighboring farmers was sold to a volume and of the total amount of material that may be
company which carried on substantial quarrying and removed over a 100-year period_
sold a large volume of rock. The trial court farad that Hansen Brothers' SMARA reclamation plan
this was not an enlargement of the original, lawful indicated only that between 5,000 and 250G000 cubic t
nonconforming use. In affirming. that judgment, the yards of material were to be removed.annually. The 3
Kansas Supreme Court held that it came withm the.rule Court of Appeal assumed that the upper end of the j
that a natural growth of the business or an increase in range, 250,000 cubic yards,rather than the bwest end, 1
the business done is.not an impermissible change in a 5,000 cubic yards, would be- removed eaph yea0l
nonconforming use_ Because there is-no,evidence of the actual Jamoutit of
Again, while we have no evidence of the material to be extracted annually,the.evtdenoe does not f
understanding of the legislative body which enacted support time conclusion of them superior court and the !
Development Code.section-29.2(A) of the meaning.of Cant of Appeal that Hansen Brothers*is not!entitled to
the term "enlarged or intensified,''._ the general rule approval of its-SMARA plan without a conditional use
appears to be that an increase in business-volume alone permit because the Proposed volumeoU extraction !i
is not an expansion..of a. nonconforming use. (8A . would not bea permissible nonconforming`;use of the
McQuillin, .supra. §25.207,.'p-125.) Consistent with property. ;?
that understanding and the presumption than the intent Nothing in sections 2774 and 2776 requires that all !i
was to enact a reasonable ordinance that would not be questions of intensified use be addressed in conjunction
applied arbitrarily or unreasonably, we conclude that with approval-.of a SMARA reclamation plan,however.
section 29.2(A)does.not prohibit a gradual and natural All that need be established is that the applicant had i
increase in a lawfiil, nonconforming use of a property, obtained a vested right to conduct surface mining 7
including quarry property. BY way of example, we operations prior to January 1, 1976, and the proposed
that a grocery store- operating as a lawful, mining.is not a substantial change in the operation:
nforming use in.an area of increasing population Impermissible intensification of a nonconforming use is
Would not. be restricted to the same number of more appropriately addressed at such time as increased
customers and volume of business conducted when the production actually occurs. The issue is no different,
zoning ordinance was enacted. Neither an increase in and the county's remedies are the same, as would exist
the number of patrons or in the volume of goods sold independent of the SMARA application wore Hansen
would beconsidered an enlargement or intensification Brothers' business to:increase. When it appears that a
of the use And where increased population creates.an nonconforming use is being expanded, the county may
increased demand for the aggregate used in. road order the operator to restrict the operation to its-former
construction,, anincreasein production to meet that level, and seek an,injunction if the owner does not
demand would not be construed as ane
niargement or obey. (City of Fontana v. Atkinson, supra,. 212
intensification of the use. CaLApp.2d 499, 508-509.) See, e.g.,, Town- of Los
Based only on the. SMARA reclamation plan, the Altos Hills v.Adobe Creek Properties, Inc. (1973) 32 1
superior court and Court of Appeal concluded. that CaLApp.3d 488. Sex also themodified o on in F. i
Hansen Brothers' removal of the quantity of rode O.Bither v.Baker Rock Crushing Co.,suer ,438 P.2d
estimated in that plan would constitute an 988,mod.440 P.2d 368J i
impernmissible intensification of use of the land.. They Therefore, when the area over which Hansen
based that conclusion in part on the assumption that the Brothers has vested rights is determined, and if that
volume of rock quarried could be considered separately area is less than 60 acres, a-new or.amendei SMARA
from the overall volume of aggregate produced from 're:lamation plan will be necessary. Even if the plan is
the Bear's Elbow Mine,and in part on reasoning that it unchanged,however,the intensification of use question
was appropriate to compare the proposed volume of must be reconsidered on remand if the county continues
future extraction only with past hillside production to require determination of that question before
from the Nevada• County portion of the mine, even approval of a SMARA reclamation platy Unless
though a grater quantity orrock had been-produced Hansen Brothers proposes immediate. removal' of
from the-Placer County area and overall production quantities of rock which substantially exceed the-
included material from the riverbed area of the mim amount of aggregate materials extracted in past Years,
We concluded above that the vested interest held by there is no impermissible intensification of user i
Hansen Brothers is..use of its Bear's Elbow Mine
Property for production and sale of aggregate, and that 31. Thu asswr,p;o„ ipored the flucmating naMm of Hum=
included the extraction of all aggregate Brothers,aggregate buaunas and failed to comder that the Plea called
rents. It was error_ therefore to treat the for removal of 5 mAtion orbic yards in 100 year:,or an OwW of only
separately
when consideringthe 50.000 orbic yever yew.vyear,leaa thaw the amour:ofmaMerial removed
intensification of use question, and to dude sO1A t11e a°O in Pf 1Of y—
producion from the Placer County area. It is 32. 11w county has not a:Krted that the-emphasis on rode
undisputed that the mine, which straddles the county vuar*rrta is a subst,miat dump is the naane of the operation wahm the
'i
i
316 Daibr Appellate Report Wednesday, January 10;1996
If the county elects to abandon the effort to address relevant to this issue. The rock-quarrying aspect of the
the inteasific ation of use question in advance of actual business, however, has taken place primarily, if not
mining as part of the SMARA reclamation plan exclusively, near the river rather than farther up the
approval process,the county is not without remedies if hillside. While the record suggests that some activity
mining activity at the Bear's Elbow Mine increases in occurred farther up the hillside, it does not establish
the future to a Irml that the county believes is what, exactly, that activity was or whether it occurred
excessive. As with any other nonconforming use, the before or after the zoning ordinance took effect. If
county may seek an injunction or other penalties Hansen Brothers were to satisfy the requirements of the
authorized by the zoning ordinance, whenever it diminishing asset doctrine as: to part or all of.its
believes that production at the mine.has reached a level property,_thea,the-quarrying:of those areas would be
that constitutes an impermissible intensification.of the exempt from the ordinance:'s-permit requirement as
nonconforming use for which Hansen Brothers has a part of the existing nonconforming use. What the trial
vied right court must decide on remand, as to this issue;. is
whether and, if so. to-what geographical extent the
V_ requirements of the diminishing asset doctrine have
been satisfied_
DLSPOSPTION With this understanding, I concur in the plurality
The judgment of the Court of Appeal is reversed opinion.
with directions to order the superior court to vacate its.
order denying Hansen Brothers' petition for writ of WERDEGAR,J.
M andate and to conduct further proceedings consistent LUCAS,C.J.
with. this opinion to determine if Hansen Brother's
SMARA plan should be approved.
DISSENTING OPINION BY
BAXTER,J. MOSK,J
WE CONCUR I dissent I would aT= the Court of Appeal's
LUCAS,C.T. judgment:.
ARABIAN,J. On considering factual issues the plurality opinion
imperiously concludes that:
The planning commission was wrong.
CONCURRING OPINION The board of supervisors was wrong. 10
BY WERDEGAR,J The superior court was wrong.
The Court of Appeal was wrong.
I concur. I write separately to articulate my To the contrary. it is the plurality opinion that is
understanding of what the plurality opinion has wrong.
determinedabout the vitality of the diminishing asset The questions before us.are (1) whether substantial
doctrine and its application to this case, evidence supports the superior donut's findings that
First and foremost, California. recognizes the Hansen Brothers proposed to resurrect a long-
diminishing asset doctrine. Second.- in applying the abandoned mining operation on its-land-and greatly
doctrine to this case"and determining the.nature of the intensify the exploitation of that land,and(2)whether,
existing nonconforming use, we look to Hansen if.the findings are supported by substantial evidence,
Brothers' Nevada County operation with all of its the law requires a conditional use permit before Hansen
component parts as a whole. Thos, Hansen Brothers' Brothers..may begin the proposed expansion. The
entire operation of placer mining and rock quarrying to, plurality opinion's conclusion that no permit is
produce aggregate is the existing nonconforming use_ required rests on insufficient deference to the superior
Third, the diminishing asset doctrine permits.Hansen court's factual findings.
Brothers to quarry, as part of the. existing. To mat the requirements of the Surface Mining and
nonconforming use,any area of the property for which Reclamation Act of 1975(Pub.Resources Code, §2710
it can satisfy the doctrine's requirements. Specifically, et seq.), Hansen Brothers needed toe submit a
Hansen Brothers must show" ' that the area[it]desires reclamation plan to: the- board of supervisors for
to excavate was clearly intended to be excavated[when approval. (Id., §§2728,2770.) The board rejected the
the land use ordinance became effective], as measured plan because it ran counter to a Nevada Comity
by objective manifestations and not by subjective intent ordinance that provides:
" (Phrr.opt,ante,p.26,italics omitted.) "Any use lawfully in existence at the time this
As the plurality opinion explains, the record is not Chapter [Lm, the county's zoning regulations] or
presently adequate to permit us to decide whether the amendments thereto tabes effect, although such use
diminishing asset doctrine assists Hansen Brothers and, does not conform to the provisions of this Chapter,may
if it dom how far from the river the doctrine might coarinucas follows:
permit Hansen Brothers to move its quarrying "A. No such use shall be enlarged or-intensified.
operations. Past activities on the hillside may be Nor shall any such use be extended to occupy a grater
area-of land than that occupied at the time of
morins a(macbm 76. ft only d o dna intmai6ed ata is soda a adoption of this Ordinance. Nor shall any such use-to
27
dna W Ttaadfom wa =prm-no opinion on wheabar. if Hamra moved in whole or in part to any other portion of the lot
sultana no Wow pmduoa aggregate at the Bear's E bow Mice and the or parcel,of land occupied at the time of the adoption of
opwaoon beaomea swWly a mdc quarry,dw penmt exaaap—of aeaioo this Chapter or amendment thereto.
2776 will coaairaw to apply. ryq
Wesday, January 10, 1996 Daily Appellate Report 317
D. If the nonconforming use is discontinued for a Ca1.App.2d 442, 459), the law aims. to evounially
period off one-hundred eighty (180) days or mom.any eliminate it (City of Los Angeles v. Wolfe (11971) 6
following use shall be in,conformity with all applicable Cal.3d 326, 337). However, to avoid constitutional
requirements of this Chapter." problems an existing nonconforming: use will be i
The board of supervisors also informed Hansen tolerated as long as it does not expand to a significant i
Brothers that to pursue its plan it would need to obtain extent (Edmonds v. County of Los Angeles(1953) 40
a conditional use permit Hansen Brothers filed a Cal.2d 642, 651• Sabek Inc. v. County of Sonoma
petition for writ of administrative mandate (Code Civ. (1987) 190 Cal.App.3d 163, 166-167.) "71M
Proa., § 1094.5) and a coamiaintfor-damages and.for underlying. spirit- of a comprehensive zoning plan
injunctive and declaratory relief necessarily implies the restriction, rather than the
Tae superior recut denied Hansen Brothers any
extension, of a nonconforming use of land!, and
relief It ruled that because of the abandonment and the therefore...a condition that the lawful noneonthrming
proposed expansion of the nonconforming use. Hansen use of land existing at the time of the adoptioaj of the
Brothers had no right to- engage in the mining it. ordinance may continue must be held.to contemplate
proposed.. Specifically. it found, with- regard- to only a continuation of substantially thesame use which
abandonment, that "the [hillside] operation has been existed at the time of the adoption of the ordinance,andlargely i
inactive since 1986 except for storage of not some other and different kind of nonooafbrming.
aggregate and one or two trips.per year by trucks to or use which the owner of the land..might wsubsequently ,
from the. site: The_area previously used as a rock find to be-profitable or advantageous:... (County-of
Quarry is overgrown with trees 15 feet tall_ All of these . Orange-v. Goldring:(1953)_l21 C;i App.2d:442; 447, I i
factors. call the Court to conclude the hillside quoting In re-Boa (1942) 236 Mo.App. 566- [159.. t!.
quarry operations were separate operations.that had S.W.W 367, 372].) Moreover, the use nam be !!
been discontinued for the: statutory period" With continuous;. if abandoned, it may not be rearmed.
regard to enlargement, it found,that.".[m]ining with a "'"A nonconforming use is a lawful use existing on
total production of 5,000,000 cubic yards of material,as the- effective date of the zoning restriction. -and i{
reflexed in the: proposed. reclamation plan; is a continuing since that.time in noncoaformanoe to.the
substantial change and expansion and intensification[,1 ordinance." [Citations.} Nomuse is not a `4
as illustrated by the fact such proposed me, world nonconforming use.... This rule is consistent lith.the y
involve 120 [10-cubic-yard] truck- trips per day as further nde that reuse may be prohibited other a ;
qdhiwdto the one or two per year shown by the nonconforming use is voluntarily abandoned." ill v.
OJEW since 1986." City of Manhattan- Beach (1971) 6 Cal.3d279,
wWhere a superior coot_is required.to make... an 285-286.)
Independent judgment upon the record of an Substantial evidence supports the superior court's i
administrative proceeding., the scope of review on findings of abandonment and proposed intensification.
appeal is limited. An appellate court must sustain the As regards abandonments a neighbor of Sansen {'
superior court's findings= if substantial evidence Brothers presented to the board of supervisors ai series
supports them. [Citations.] In reviewin&the evidence, of photographs and testified that the hillside hag"trees
an appellate court must resolve all conflicts in favor of of 10- to 15 years. growing over them. ' The
the party prevailing is the superiorcourt and mustgive photographs evidently became the center of the board's
that party the benefit of every reasonable inference in attention as other neighbors discussed them. O*e said
support of the judgment -When more; than one that the photographs showed that the hillside
inference can be reasonably deduced from the facts,the- excavations were"just primarily top soil"and that the
appellate coot cannot substitute its deductions for those presence of tall trees made it"quite obvious that none j.
of the superior court" (Pasadena,Unified Sak Dist.v. of that quarrying operation has gone on for: many. +
Commis ion-on Professional Competence (1977) 20 Years." The foregoing evidence caused one member of j
Cal.3d 309, 314.) The superior court was required-tothe board to state, "I was much impressed by the
maim an indiepictKient:record here judo on the administrative photographs that we had of the sites which had been
( Engineering Co.v.South Central once upon a time quarried. And upon those tikes we
Coast Regional Com.(1986)42 CALM 52,64,fir. 10.) have 25-and 30-foot trees indicating that certainly for
Whether the standard sex forth m Pasadena Unified a good number of years that site has been undisturbed
Sch. Dist. v. Commission our professional Competence, [qj The documentation I have before meshows
supra,20 CaL3d 309, 314,applies in every instance we. me that those areas haven't been mined in years and
need not decide. It is clear that it applies in this case. years and years."
A ruling that a nonconforming use was intensified or Yet another neighbor sent a handwritten lextal to the
abandoned involves a question of fact that we review on board of supervisors,stating in part: "We have a home
a deferential standard. (See McCaslin v. City of m the community where the Hansen Brothers are
Monterey Park (1958) 163 Cad.App.2d 339, 348• cf wanting to start a new mining operation alongside the
Texas Mat Theatres v. City of Albuquerque(1982) 97 Bear River. Our house-is on'a hill overlooking the
N.M. 282, 288 [639 P.2d 569, 5751 [applying New river and the beautiful wooded hills around it During
substantial evidence standard].) the 344 years we have lived here. the Hansen's [sic]
turning to the question whether substantial gravel operation has bum inactive.evW We lava never
suppom the superior court's findings of seen any Hansen trucks on- the:road or any ruining,
abandonment and intensification; we must review the activity at the site. We have observed only a couple[ofT
law applicable to those matters. piles of gravel which have stayed there untouched....
Because a. nonconforming use "endangers the Indeed, there was testimony that more than 20
benefits to be derived from a comprehensive zoning neighboring property owners signed a petition against 000092. Z/1-
Plan" (City of Los Angeles v. Gage (1954) 127 Hansen Brothers' plan, declaring in part that can
i
318 Dailly Appellate Report Wednesday,January IO 1996
personally attest to the tacit of activity at the gravel property owners already using their land in
quarry over the last few years." prolubited manner to continue doing so, asi*
As regards intensification: recall that there was "nonconforming use. This ease concerns the degree
evidence that previous excavations consisted of carts in. which public entities may regulate the scope of a
the topsoil. Under the reclamation plan, Hansennonconforming use; the nonconforming use Dere is
Brothers world begin a drill-and-blast operation-that mining.
would carve out SOO 000 cubic yards of Originally, plaintiff's mining operations consisted
overburden--approximately, the volume of 200,000 almost entirety of scraping up graven that had washed
standard-sized Pickup mucic beds-,and would excavate down a river, but plaintiff also operated a small rock
and remove from the site an average of 50,000 cubic quarrr ott-lands adjacent•=to tbe-river. After a county
yards of material-a rough equivalent to the volume of ordinance was passed prolubiting mining in the area
20.000 picdarp oudc beds-every year for the next involved,plaintiffwas permitted to continue mining as
centwy. a nonconforming use. Now, because an upstream dam
As one witness, a registered civil engineer and has-rendered plaintiff-s riverbed operations virtually
lawyer with 40 years' experience in mining, told the worthless,plaintiff seeks to greatly expand the intensity
Planning commission, "they're talking about making a of its quarrying operations and to remove rock at an
cut there with vertical rock faces at about 20-1oot arinial- rate of-up- to 250 times grew than past
intmvals-benched of[sic]about 300 feet high.. . ' And removal-by plaimi$ The county Planning commission,
it's about a half a mile long. And you don't get rock to the county board-of supervisors, the superior court,and
stand at those angles without it being of a quality that it- the-Qourt of Appeal-.aff�concluded that whatever right
has to be drilled and blasted." The previously quoted plaintiff enjoyed to- scoop-gravel from the rivabed
handwritten letter stated:- "The mining operation-the coaWnot be converte&intar-a right to quarry rock out of
Hansen[s].are proposing would be.a total change from the'=adpoeti hillsides; and that plaintiff's planned
the operation we have observed over the past 3fr yeam expansion exceeded the scope of its right to miner the
They have never touched the hills or land rock. A property as a•nonconforming use. A majority of this
commencement of such activity would be a great couri3s'comes to a:contrary conclusion, holding that
disruption of the tranquility and. beauty-of the-stable plaintiff's• two mining operations - those in the
community which has built up in this area-an area riverbed and those on the adjacent land - must be
which is zoned for light farming.... It would•be as viewed as a single nonconforming use. The majority
activity completely incompatible with the single-family directr the Court of Appeal to remand the case to the
parcels and open spaces currently in this community."' tr t court for reconsideration- in light of this
In sum, the record contains substantial evidence.to conclusion.
support the superior court's findings of abandonment I disagree with the-majority. Substantial evi
and proposed intensified user33 supports the determinations by the board of
Fairly examined, the record reveals that-'Hansen and the-trial' coot..that plaints$s mining of the
Brothers proposes to move its nonconforming mining riverbed and-its-mining of:the adjacent land were
operation from a riverbed olid a rive:banic to nearly separate uses. Viewed in this light;plaintiff's proposed
pristine hillsides where its new mine will create a plan•!represents a substantial inteasifiptioa of its
moonscape. It. is, as the superior court found, a previous mining operations,and is therefore beyond the
P "separate operation[] .." And this scope of its nonconforming.us&
destruction will occur without so much as the
requirement of a permit34 I
I cannot agree with this doleful outcome, which will
occur in violation of settled legal principles. I therefore Since 1946,mining-has been conducted on land that
dot. plaintiff purchased in 1954. The land is located.on the
MOSK,L Bear River,which divides Nevada and Placer Counties
the site-is a wooded, scenic area near the town of
Colfax, in the Sierra foothills. The-mining involves
DISSENTING OPINION BY KENNARD,J roughly 60 acres,most of-which is in Nevada Co mty-M
In 1954, the Nevada County Board of Supervisors
When a Public entity enacts a zoning ordinance adopteda zoning ordinance prohubiting mining in an
prohibiting owners of private Property from using their area that included plaintiffs property: Nevertheless,as
land is a specified manner, it generally permits those
35. Jonston Banter's load opinion has ban signed by dw chief
33. It is true that no evkknoe suppats the wpaia eom-s Justice and Jusbca Arabian. A foto h Juneau Jusbw Wadeyr,concocts
concivaiou that these wand be 120 larse buck trips per day under the m Jumbo*Banters opoia6 althougls she has not
rig:ssd;t. Beeasoi nes
Icad plana DDDR relied an testimony the ovmatarod the as+m>trer on b� diffarUMM betwen the views e�sv,ed is Junior
Of MIGORWO Nevatbeiaes,12 trips a day(a figure BOXIces kad opinion and Justice Wadegrr's oonamrbg opmos,IUM
s wpoeud by substaaial evidence)by large tucks over what testimony the•tam-'Majerityt'to refe oolkaxivaiy to Justices Bauer. Arsbiso6
revsakd to be narrow and wiodiog ra&is a great from WerdePr.and the Chief Justice When ref ming to Justm Busees
dvtusily no week moeemea at WL War ias.l ding witit thelesd opioioa."
Bra s'leave opm the quer m whryhar 36. As dw ked opinion nater.p ain iff acquired some potties of
iMMONE_ awonoodamring urs wi11 evrmaity the property at isme after 1954. Without s conditiond use permit
establish,hoes that In court's fndum atready PLOW My—them portions oftbe property only if they��hejadw PAY opinion's hokliog dmd. byby te-t� evi&nw of probkm with �391) Because hawno pores�it m®g (�opquastd with the led opinion's tsasment
mfmifitatim I ' ' I Ice appera t and a remedy is sought and obtaaded, of this issue.1 do no discuss the facts 0000aremg the points is time at
30w-dIMISIF @aY we!!aireadY have baa inflicte& which plaintiff acquired its property.
Wednesday, January 10, 1996Da>l7y Appellate Reportj
319
uthorized by another ordinance, Nevada County Land hearings, the following evidence was presented
and Development Code, article 29, section L-11 regarding plaintiff s mining activities.
(hereafter section 29.2), the county has permitted In 1954, and for many years thereafter, plaintiff's
plaintiff to continue its mining operations. Under primary mining activity consisted of harvesting gravel
section 29.2, when the county adopts a zoning that washed down the ear BRiver (hergafter also
ordinance prohibiting certain activities or `arses," referred to as riverbed mining). These materials were
Property owners who are already engaged in those uses stored on site and sold. To accommodate;customers
may continue to do so,as a"nonconforming use." who wanted riverbed gravel mixed with hardrock,
Section 29.2 strictly limits the scope of plaintiff also operated small quarries on either side of
nonconforming uses: they may not be "enlarged or the river to extract rocfc.39 Depending on this needs of
intensified," "extended to SPY & greater area of its customers, plaintiff sold gravel and rock, or a
land," or "moved in whole or in part to any other combination of the two. The record does not disclose
portion of the (property owner' s] land-" Also, any how much of the gravel sold by plaintiff was mixed
nonconforming use that is"discontinued for a period of with rock,or how many of plaintiffs customers bought
one hundred eighty(180)days or more" loses-its status such a mixture.
as a nonconforming use.37 Nor does the record show how much gtavol,plaint;$
In 1989, plaintiff submitted a"recJamatiion plan" to and its predecessors removed annually from the Bear
Nevada County to comply with California's Surface River.- Bill Goss, plaintiffs plant manager,;estimated
Mining and Reclamation Act of 1975. (Pub. Resources that during the 18 years he had worked at the site, the
Code,-§2710 et. seq.; hereafter SMARA) This state total amount of materials harvested from thio riverbed
law requires those engaged in surface mining to submit and mined from the
to a local agency,in this case the Nevadan was y million
County Board tons. According to Goss, one-fifth of this; total (or {
Of Supervisors,a reclamation plan describing the efforts 600,000 tons)was rode extracted from the quarries and
minimizing adverse. environmental the r
to be made in est graveL taken from the- riverbed; . Other }
effects resulting from the- mining. No- mining is evidence, however, showed that a far smaller portion j
Permitted unless the agency approves the p1an.3a was actually mined from the quarries. Alan.Hess, a
Plaintiff's reclamation_plan is set forth on a form photogrammetric engineer, estimated, based on aerial +`
fnrnjshed by Nevada County. According to the.plan, photographs of the site, that in the 43 yews during
the hillsides.on plaintiff's property contain 5 million which the mining had been conducted(ire than twice
cubic yards of rock. Plaintiff proposes to remove all of the length of time during which plant manager Goss
this rock over the course of the next 100 or more years. had worked for plaintiff,only 266,000 tons of rock had
1, form requires those submitting a reclamation plan been removed from the Placer.County side of;the river, {
be—by chexddng the appropriate boxes on the and only 72,000 tons(or 45,000 cubic yards)!had been
— the amount of materials that will be mined. quarried from the Nevada County side..
Plainti$checked 2 boxes,indicating that,depending on After construction of the Rollins Reservoir Dam,
demand of its customers,it intended to remove between upstream from plaintiffs property, the amount of
5,000 to 50,000, or between 50,004 and 250,000,cubic gravel washing down the river declined dramatically.40
yards Per year. Plaintiff expects to remove I million In early 1986, a flood washed a substantial quantity of
cubic yards of"overburden"covering the rode. Most of sand and gravel over the dam; plaintiff harvested those
that material will be used to build access roads needed materials in 1986 and 1987. Thereafter,; plaintiff
in the excavation process; 150,000 cubic yards of ceased its riverbed mining, but continued to More rock
Overburden, described as "soil," will be stored on the and gravel on the property. Although witnesses for
Ply and used in the reclamation process, plaintiff asserted that plaintiff continued to operate the
Implementation of the plan will necessitate drilling and quarry,42 neighbors opposed to plaintiff's re0lamation
blasting, and will require excavation of plaintiffs plan provided conflicting,evidence. Randall Atkins,
hillsides to a depth of 350 feet. who lived near the mine,told the planning commission
Both the-Nevada County Planning Commission and that he had purchased gravel from plaintiff in i the past,
the Nevada County Board of Supervisors conducted but that in recent years he had been unable ito do so
separate hearings to decide whether plaintiffs because, in his words, "there is no operation there."
redamation plan should be approved At those Atkins's comments were confirmed by Bill 1Dicicson,
who also lived.near the mine. According to other
witnesses living near the mine,there had been:no more
37. Section 29.2 provides in full than three trucks travelingalong the road to the mine
—odn-ft thereto takes�,epatahoe st the rime ibis Chapter or aNhothgh web use don not 000fam to in the year and a half preceding the hearing before the
the?�1°m ofthis� Chaptw.may cwtimm as followrc Pig commission And in a letter dated Qlctober 3,
A. No such uw shall be enlarged or ugawfied, Nor shall coy audh
use be emended to o-upy a greater arse of Iaad thm that,occupied at the
time of the 39. For o rrvemeooe,I refer to the subd o hahve ed ficin the
adoptim of Ordmasce Nor dull awry sorb nae be moved
in whok err,in pat to any other portion of the lot or panel of Iand aw ser"gravel"and the hardrock quaeried frau the sdjagcnt land as
ooa+pied at the time of tb, adoption of this Chapter or amendment -rock.-although these roma no doubt lack tetdmical ptecisiogt.
thereto.
"B. If the noscortf use is 40. Se"� `h'i�s mentioned that the dam was+already m.
hundred eighty (180 ° duoonti-ed for a period of ane existence in 1986,but no evidence was Wzoduced c"M the date
with ) days or morn coy following use skull be in on which the dam was completed. The dam was probably m the
apphabie requirements of this Chapter." curly 1980':
1W
l'l�also submitted a reclamation plan.to the Placer 4l. Notvvittntardi the mdenoe that quarrying aotiv�ity had
o ° P a Pr1pPeny oaauted on both sides of the river,all witames maYiphe�i only.cop
lacaradVproved*mtfrs om qu apperehaty the one located on the north side of the river, is
County.
000092 , Z/
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i
1
320 Daffy Appellate Report Wednesday January 10, 1996
1988,-Nevada County' Counsel James Curtis stated that (County of San.Diego v.McClurken (1951) 37 CaL2d
he had visited the mine and concluded that-"ft last 683,686:)
time any ung occurred on land was more than three A property owner's. right to contimte a
yes ago'" nonconforming use, however, is a right that is limited,
TIe Nevada County Plaaning,Commission,acting in. narrowly construed, and subject to ultimate extinction..
its opacity.as.a local agency.under. SMARA, denied;-. "[Z]oning legislation looks to the future in regulating
approva[of plaintiffs.reclamation.Pian- As relhvant . district-development:and the eventual liquidation of-
heM enc commissionn also-concluded.that the.
mining nonconforming'. uses . within a prescribed period
operations•descaibed.im the plan exceeded the•scope.of.- commensurate. with the investment involved.
Plaintffs nonconformirMuse..it section 29.2,..the• . [Citation.] The mere fact that some hardship•may
county Ordilla= gavernrng:.nonconforming uses;.the thereby be experienced is not;contmlhng, for `every
COMcontinue its. openthe Pl y that plaintiff could, exercise of tire-police.power is apt to affect adversely
mining OPCrations.; .if.' it obtained. a the.Property interest of somebody,' " (Livingston Rock.
conditional use permit. - ete-COL v..County.of LA.(1954)43 CaL2d 121, 127.).
The. planning commission determined. that the- As&result, "Cants-throughout the country generally
mining described iceplaintiffs reclamation plan,was follow. a strict. policy against [the] extension. or .
not-.within.the scope of plai=Ws� nonco�rming..use - ealarg ' Of non no g-uses. (County of Sm
nonuse . (1);,miamg udder.,tlie..pWposc%Lplan�wouW. Diego-v:.-McClurkei% mpm 37 Ca1.2d at P. 687: see_ j
violate'saxiote.2 r-rs
-that also City of LosAngelea t+�Wolje(1971)6 Ca13d 326,
uses may tat be'"eailatgod :intensifiocl, :and..(2)- 331-[rh,—. policy,of;the; law is for elimination. of
plaintiff lrad gaarnodrna rack fora period of marc than:, nonconforming uses�
IWdays anti tlii6reforc-wasdeemedaci>> , . With these principles-ia.mind,I tars to section,29.2,
its nght,ta mise the:aaad_ Plaintiff aPPraled-the tba xmconformm&use ordinance at isstiG and apply it.
'"s`decision to trim County Beard o£Y to the factsof this c
u 6 fckuphetd t5e mgoominisswn„
Praintiff t5en filed:a:
mandatepeatroa_ for administrative-
ut the,-superior-court. seddng.as jtid'Cut -:
determination,tiat.th;e-muffing described inAls�pern it. As L have noted-previously, section 29.2 provides
aPPLcatiaa- was, a. P „ooi�ation, of-its.. that a nonconforming,use may not."be7 extended. to
Ping: nonoortforming uses..and-'that.it..could. OCCUPY-a greater area of land'and may not"be moved
eagagC is- such:. operations.. wi wmo . a=. . m whole or.
oonditionaL.use:' Ix obtaining: 1�to any other Portion"of the land in
Pte- ...After_ as independent question: ._Thus, onits face, section 29.2.seemingly
Omminatialf'of the. record„the:.saperior• would bar plaintiff from extending its mining activities
court ruled that'plaintiff.had received,a,fair-hearing., to anypart of its property not being mined when the-
before the Nevada County Plaaming;Commissioa:and zoning.,,ordinance prohibiting mining was enacted in
the Bond.of Supe visom;The:court fotmd.that(1)-the 1954.
nuning.desaibed.in plaintiff's reclamation plan was a- As applied- to mining and: similar activities, a
"substantial expansion.. and inteosificacion of nay prohibition against expanding the use to other portions
previous use Of the.property;and,that(2)plaintiff had- of the land may be tantamount to prohibiting the use
abandoned. its right to. mine the: hillsides on:-.its altogether. A.leading.treatise explains: "Application
Pi°Pcrty-.The.Co-rtofAppealalarmed. of the.rule that anonoonformin
g use may not be.
extended to land not soy used prior to the enactment of a
restrictive ordinance may work a singular hardship
As a-general:rnie�_Ioca1 where the-.use in question involves the removal of
use their: � entities•tray natural-products from the earth... Quarries and sources
zoning,:P� ta�peohubit a..property. owner . of topsoil are parocularfy vahxrable bourse. their
front.-using.,the_property,:in.a, specified manner, and .very-nature they commence on one spot and sped to
such' restrictions, ordinarily will:..not, constitute a . additional,ground as-the. gravel, coal, or topsoil is
"talair r'"that would entitle.the property,owner to"just. exhausted.." (1- Andetsom, The. American- Law of
Codon"--wider the Fifth,Amendmentt to. the. Zoning(3d ed 1986)-§652,p.604;fns.omimed.)
United States Constitution- (Penn Central Trmup: Caa To-address this problern;courts in other states have
v. City of.New.York(1978) 439 US. 104,.125.) But developed what is now known as the diminishing asset
"because of the hardship and doubtfd constitutionality" doctrine., under which a. landowner may not .be
Of fcdnddmg,a.ProPertyc Ownerfrom conducting a use prohibited:from extending as otherwise permissible
that is already ongoing when am ordinance prohibiting nonconforming use onto adjacent portions of the
that use is.encted,most zoning ordinances permit any owner's property .if the use consists of extracting
sack _use.'to Conti=. as. a 'nonconforming use." nonrenewable resources from the earth (See 1
Anderson,OP- cit sup v. §652,pp.604.605 [and cases
�- t> s Ba an roma rose.ptaioritL trod cited therein).) Before today's decision,by this court,
abaoaoma the rift ro oro.t>ts nm.maa of its iao4 a denammed tint the- status of the diminishing asset doctrine in
a " '°ab""�emmmr.rxgra�ds°m'!,°""ar California was somewhat uncertain because only one
43 Pt x=W ens also appealed Nevada caaws rejection of Published decision.by a California court, McCaslin v..
plsiuH's iedamnion prat, That appoak howavar,was mann to mss. City ofMontemy Panic(1958) 163 CaLApp.2d 339,had
Sum ism am ceolM A,--I (-Wrb ens oppore dy postponed addressed the diminishing asset issm
cvolofion of ten appeN Pence dW"cone a of this kbPUen)6 mad wn In McCaslin, the plaintiff mined
decomposed
�ofp s t w mve"0"--tThm'ha granite at a 70-acre site in Monterey panic11m city
Pian is ms's imOf md°`"m first enacted a zoning ordinance prohibiting mining,
— 000092 , k.
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1
Wednesday, January 10, 1996 Dally Appellate Repott 321
I;
enacted a second ordinance prohibiting any therefore the diminishing asset doctrine should not
cion of the plaintiffs mine onto adjoining apply to such mining.
property. The trial court enjoined enforcement of the Furthermore, although the diminishing asset
second'ordinance. In affirming that Wiling, the Court doctrine permits mine operators to extend their mines
of Appeal stated: "Defendants assert that . . . plaintiff to portions of their property not previously ex0avated,
was limited to excavating that portion of the property the doctrine does not restrict the power of a
already excavated. We do not agree. The very nature governmental entity to limit, as was done he=n, the
and use of an extractive business contemplates the intensity of the operator's mining activities. 'Thus, in
continuance of such use to the entire pared of land as a this case the doctrine has no bearing on that portion of
whole, without limitation, or restriction to the section 29.2 providing that a nonconforming Use may
immediate area excavated at the time the ordinance was not be"intensified.—
passed."passed." (McCaslin v. City of Monterey Parr supra,
163 Cal.App.2d at p. 349.) Although McCaslin did not Iy
use the term"diminishing asset doctrine,"the passage I
have just quoted indicates McCaslin Is acceptance, in Here, the county planning.commission, the,county
substance,of the principles.underlying the doctrine. board of supervisors..the trial court and the Court of '
The majority in this.case embraces the diminishing- Appeal all determined that the excavationproposed in
asset doctrine. In essence, the majority creates a plaintiff's reclamation plan. exceeded the sgope of
presumption that any local governmental entity plaintiffs nonconforming use; because it violated j
enacting a zoning ordinance that permits a property section 29.2's requirement that nonconforming uses
owner to continue to engage in nonconforming uses but may not be "intensified." They therefore concluded
prohibits expansion of those uses to other portions of' that, without'a conditional use permit, Plainti could f
the owner's property has adopted the diminishing asset not engage in the mining-operations describe4 in its
doctrine. (Lead opn.,ante,at p. 30.) I have no quaird reclamation phoL45 They-reached this eonclusift by a j
with this conclusion insofar as-it applies to mines that. two-step process. ;
extract materials from the ground; it should not, Fust,they found that pLtimiffs riverbed mining and '.
however, apply to a minethat, as here, extracts its rock quarrying were two separate "uses"' of its
materials washing down a stream orriver.44 property, rejecting plaintiffs assertion that all of its
Although .a number of decisions from other mining operations were an indivisible unit . $ccond,
jurisdictions have adopted the diminishing asset they compared plaintiffs rock quarrying operation to
d ' e:, no count, so far as my research has disclosed, the quarrying proposed in plaintiffs reclamation plan, `
lied the doctrine to a riverbed mine. (See and concluded that the intensity of the quarrying in the
v. Talbot (Minn. 1957) 80 N.W.2d 863, 864 reclamation plan gnarly exceeded that of pis inti
z gravel pit]; Stephan & Sons- v. Municipality of previous quarrying operations:.
Anchorage (Alaska 1984) 685 P.2d 98,. 99 [same]; The lead opinion rejects the first step of that
Gibbons & Reed Company v. North Salt Lake City analysis. It asserts that the issue of whether plaintiffs
(Utah 1967) 431 P.2d 559; 563 (same]; County of Du reclamation plan proposes an intensification!of its
Page v. Elmhurst-Chicago Stone Co. (Ill. 1960) 165 previous mining activity should be decided by
N.E.2d 310, 311 [open pit limestone quarry];Moore v. comparing plaintiff's proposal to the amount mined in
Bridgewater Tp. (N.LSuper.CtApp.Div. 1961) 173 plaintiffs entire operation; including the amount
A.2d 430, 431 [stone quarry]; Smart v. Dane County extracted from the river. I disagree.
Bd.of Adjustments (Wis. 1993),501 N.W.2d 782, 783 Although closely related, plaintiff's riverbed mine
[mine described as "pit"; materials extracted not and the quarry from which it extracts rock are separate
named]; Syracuse Aggregate Corp. v. Weise (N.Y. operations that remove different types of materials;
1980) 414- N.E.2d 651, 652-653 [sand, gravel, and neither operation depends on the other for its continued
topsoil excavation].) Unlike other mines, the."assets" existence. Before construction of the Rollins Reservoir
of a riverbed mine do not "diminish": the owner can Dam, plaintiffs mining operation was devoted almost
"mine" the same area again and again, removing new entirety to the removal of gravel from the river. On
sand and gravel that washes downstream. By its very some occasions, at the request of customers, pininti$
nature, such a mine is not.designed to spread over the mixed the gravel extracted from the river witJt rock
entire land; rather, the mine is confined to the bed of quarried from the adjacent land. Other customers.
the body of water on which it is located As I explained however, purchased either gravel only, or rock only.
earlier,underlying the creation of the diminishing asset Thus, although plaintiff sometimes combined the rock
doctrine was the recognition that. in general, mining mined from the quarry with the-gravel mined from the
operations must move from one spot to another, to river, plaintiff offered no evidence that the corldmied
allow for extraction of materials from additional operation of the quarry was an indispensable part of the
ground after exhaustion of a previous mining source. riverbed mining operation, or vice versa. Because-the
That cannot be said of a mining operation that extracts
materials washing down a stream or a river, and
45. The plan ung coraoiNiM the boats of uWavisors,the trial
44. The lead opinion declines to address whether the datmmhing —wL and the Court of Appeal aim ddaatine4 is the aftanat(m that
applies to such mines,assorting that it is not an irate in PlairaCs plan req=W a conditional use port art because plawtiff bad !
([.cad opn,onr�at p.S.6t 6.) But as-I all explain in pant abandoned the right to alms the land en its property. Because t
[V, it rr m issue.because it is relevant to the question whether dw plairaffs reclaautiao plan represented a sttbataotid' S--
s riverbed mine and its quarry may be viewed separately to of pIA-tiff's oporatia%and thus n onsito d a conditional use.
detaTnum whetter planruW proposes an udensifkation of its use of the Pel 1 do not address this aftanstive grand relied an by the Omaieg
property- ommusawn.the board of uVervoom the trial cotat,ud the cant of
Appal.
000092 . ;x/
322 Daily Appellate Report Wednesday, Jamiary 10, 1996
riverbed mine and the quarry on the adjacent land independent aspect of the business." namely, its
produced,in essence,two separate"products"extracted riverbed•mining operation_ The.plaa specifically states
from different parts of the property and sold to different that."no:additional gravel removal-is expected.in the
customers,the county board of supervisors and the trial 100 year flood-channel of the. Bear ' This
court could properly regard the mining of the riverbed means that the: riverbed. mine-.will cease to exist_
and the mining of the quarry as two separate "uses" Because plaintiff proposes to discontinue "an
rather than a single nonconforming use: independent aspect- of the business" (the. riverbed
The fundamental difference,between riverbed mines mine), even under the lead.opinion's_ analysis the
and quarries, as I have set forth.: in part IIT;. ante.. county board.of supervisoman*.the trial.court could
provides an additional ground for treating them as two break down plaintiff's.mining use into.its"component
separate"uses" instead of a single-nonconforming use parts." Accordingly, in determining whether plaintiff's
in deciding whether a change in either operation reclamation plan represents anintensification of
amounts to-an intensification. As I have pointed out. Plaintiff's previous mining activities, the county board
the diminished asset doctrine appliesto quarries but not of supervisors and the trial court could-property ignore
to riverbed mines bei riverbed mines, are the discontinued"component part" (the riverbe&mine)
continually replenished when new materials arc washed and base the intensificatiolt determination only'our the
downsumun,-'and.operators. of such mines therefore sole part remaining, the quarry.
need not expand to other portions:ortheir property..to For the reasons,sets:forth,abom the Nevada-County
continue in:operation.....Because. a`quarryneeds. to Planning Commission;,cher Nevada County Board of
expand simply. to routine_to.exist~ determining.. Supervisors.the.trialcourt,and the Court.of Appeal,
whether such:expamort.amoams'to.an inteosificatios correctly concluded:that plaintiff`s, quarry and' its
or instead is. simply-a- nary`cdensiotr d-the riverbed,'.mine• are not an- indivi e;- integrated
existing mina presents an issue that is entirely different operation: --but instead'- aretwo separate- uses
from deciding.whether. a:riverbed minds.proposed Accordingly,. in].determining whether plaundfris
expansion of operations._iS an,-intensification of its reclamationplan.` which' did not involve• riverbed
existing use:_ For this reason, its is appropriate:for mining; represented` a change- in the- intensity of
nonconforming use purposes to-regard,a.riverbed mire plaintiff's. nonconforming use, these entities properly
and a land-based quarry as.two separate."uses"rather compared the intensityof the mining activities phdiniff
than a single nonconforming"use-"'_ proposed in the.pian to plaintiffs previous quarrying
To support its conclusion that plaintiff's riverbedactivities; without consideration of piaindWs riverbed
gravel mine and its nearby rock quarry.must be viewed mining operations_ Based on this comparison.these
as one nonconforming use the lead opinion,quoting-a entities concluded, that plaintiffs reclamation: plan
respected=treatise~ states:. I:`[Olrm.entitled•to a. proposes a. substantial intensification of plaintiff s
nonconforming use has a right to-. : . engage in uses previous quarrying- activities. As I shall- explain,
normally incidental to and auxiliary to the substantial evidence supports this conclusion.
nonconforming use. . . .'""' (I.ead.opn:, ante„p. 40, In. the 43 years(1946-1989) during which mining
quoting&A M QuIu ;Municipal Corporations(3d ed has been conducted on plaintiffs land,- a total of
1994) §25.200• p.89.) The lead opinion appears to roughly 45,000 cubic yards, os roughly 1,000 cubic
suggest .that plaintiff's. quarry is a use "normally yards per year, hasbeen removed from the quarry in
incidental to and auxiliary to"plaintiffs riverbed mine. Nevada- County 4& Pisu rtiff now proper to quarry
and that the two mines should therefore be treated as an between S,000 and 250,000 cubic yards of rock per
yew
indivisible unit But haq,as I have shown;substantial' over the...next cmuny. Thus, plain .
seeks
evidence supports. the. trial' court's conclusion that authorization to remove rock hon:its hillsides at a rate
plainti$'s- quarry was not Just; an "amdliary"" W that is as much as 250-times greater than Plaint$has
plaintiffs riverbed mires,but a.separate, independent taken out in the Past-
-use4&. To gui&the trial court-in_its consideration.aEthe
The, lead opinion also.,advances the theory that intendficatiion issue on.remand..the lead-opinion stasis
plaintiffs quarry is am "integral part" of plaintiffs .that,a"gradualandnanaarincrease intb*volnme-afa
mining business,.which in the past consisted primarily- mining operation- is not an i of the
of mining-.the riverbed.. (Lead opn,.ante..at pp. 39, operation,.and therefore does not violatc section 292's
44.) It states: "Unless an independent aspect of the. prevision- that nonconforming uses, may not be
brtww-w had been discontinued, the use may not.be "intensified." -(Lea& apn:, ane, at_Q. 52.) This
broken down into component parts.and.vested rights statemem hardly seems:consistent with this- court's
recognized for less than the entire business operation. "strict Policy against.[the]extension or enlargerneur of
(Md at pp.40-41,italics added) In this case.however, n0000nforming. use (Cown' of SanDiego v.
pis reclamation plan pis to discouduae"an McC7w*e r: sap% 37 CaL2d at P. 687), and the
ptp on- is zoning lei tth,;a`tnooconforming
46. Qa a pditiast for admiMir MdM msMdrs dnUsgirg M -Uses . will eventually be extinguish "within a
admitstratiwardrlblsubs MllYa�eetsafiMdsesetdvaa.-Inert prescrilied period c0nunensuratc with the investment
W in eta Cam an trial caart tart"•came. as odwwdstjudAmat involved." (Livingston Ropy eta Co.v.County of L.A.,
ow tin evidtana=a bed m above of dive " ifihs[a�i s pier,43 CaL2d at P. 127-IL Bat even if a
fi "gradual
faW=*Mot sapper"bt thrr uncut of dw evidmoa.'"-(Baioeo - -
E@Vnewwt.C&.v SoMdr Cinod Cori*RggionW Casa(14 6)42
Cal3d_52:,.64..fes:.1Q,v twee Mnmslq v. Saw Qtesa COWKP, - 47. - Ram nm the res t>miwffdos ant expect to 0=60M
EapiorearR/tb=ww Alar.(1974)11 Cat.3d=32.) A.r aviawing 6 gavd fine dm river is that.s s remit of the building of the
asatsma v 0wW the trill court's fiodkW so keg s fty ere SMppatad Roilas R4MVW Dwo.there s no sone ravel to toad.
bf nbatanid widm m remah au&wmi minnows favor of chs'
piety R-MOM s the:ridoats (Pasadwom Utr/bd Sek Dtst v 4L Ad&bomL rode baa bee quarried ham drt porbm of
C0ets0w4Npf lFsdo iCmVejmm(1977)211CaL743096314.) pi=WA@'spropMWlocatedaMdie1'taerrCmatyaidsof*&"vrt
1
Wednesday, January 10, 1996 Daihr Appellate Report 323
I�
W&increase would not vio"ate section 29.2, the MODIFICATION
Nevada County Board of Supervisors and the trial court-
could reasonably conclude that the intensification PROBATE AND TRUSTS
proposed by plaintiff which includes mining operations
on a scale up to 250 times greater than-thoscconducted . Symbol W r"th No Fixed Meanie Cannot
by plaintiff in the past,is not gradual and natural.-49' ge Substitrrttd for fiords Induating
CONCLIISION Donative Intent
For the reasons ser�forth-above, I would affirm the Cite as 96 Daily JoumahD.A.R. 323
judgment of the Court of Appeal Estate of TAI IUN WONG,Deceased.
_ i
KENNARD;J. M ZHAO,as Administrator,etc.,.
I CONCUR: Petitioner and Respondent-
V.
GEORGE,J. v.
TAI-SEM WONG,et al., �
Contestants and Appellants. ;
-Jud®,of the Siena Superior Court sitting under marmot t by the
chtirpmsao ofthe Awicial.Commcil,
Attorneys for-Appellant: Na.ROM 97
Deipenbrodc,; Wuff, Plant Bt Hannegan, The - (Santa Clara County r,
Diepeabrocic-Law Firm, John- V. Diepenbrodc and Sfornia Cour of Appeal I
Marls D.Harrison for Plaind and Appellant. California Court of Appeal j
James S.B and Daniel-T_Fi Sixth Appellate District
Burling tzpatridc as Amici Filed January 8, 1996 s
Curiae on behalf of Plaintiff and.Appellant..
Attorneys for Respondent: THE COURT: is
t
J A- Curtis, County Counsel, and Harold-F–
Chief Deputy County Counsel,for Defendants
aiokiondtmts.
K Peter Klein, County Counsel(Mendocino),Frank It is ordered that the opinion filed herein on .
Zotter, Jr., Deputy County Counsel, Dwight L. Herr, December 7, 1995,shall be modified as follows:
County Counsel(Santa Cruz),Jonathan Wittwer,Chief 1.The last sentence of the second paragraph,on page.
Deputy County Counsel,.Shute, Mihaly dt Weinberger three shall end after the word attorney thereby deleting
and.Fran M. Layton as Amici. Curiae on behalf of "to whom she is now married."
Defendants and Respondents. 2_The second to last sentence in the first paragraph
on page 14 shall delete the word "considerable"ibefore _
the word estate.. i
49. The lead opus asserts that,-the SMARA appliatian fano
is not designed for,and,lane is not an adequate basis upon which to This,modificationdoesnot affect the judgment i
decide,the quadion of imp—able utteotificm-- (L-dopa.ants. The petition for rehearing is denied.
at p.53.) The ked opinion mgp is that Nevada Conray wait until it_
determines that plaiatffs mining activities have cmeeded the aooprof Wunderlich,I.
its nonconforming use,after which it an seek injuthaive relicE (!d,pW
54.56x) But the Nevada County Hoard of Supervisors•eoodonon that Acting P.J.
plai- a radsmatioo ptm --ded that scope of pis Mita a,L-
acnooe6 los use was based cot adyou d=SMARA appliatiatform;
but aim an the' oon&KWioka bydm pi=wing.cwmdnica .. _
and dm by the board. That kadopodon's a Mmum a not a good one,
eithr Som plaiRi@'a pmpocdw or°the:county's It would bit much• Estate of Tai rk Wong;C.A. 6th.filed December 7,-
name afcieot far plaioWto detamioe the soup,of its right to mice its 1995 by WmukMch,J.
Ropy tel—Ilasnuff bVas that subdosuatiavettmem in onployam i
and equmnse t neemmy to 000duet the opastioos dersibed in its j+
radamsuca pleak than to opa Isom have
berm simil rty,the couray�mtan.tsw ilt.be b saved Wit con halt The full text of this case appears at 95 Daily.
illegal activeia oaplaoti s land before those activium;have bogus. Journal DAR 16225 oir December 11, 1995.
' II
Los Angeles Daily Journal
To Subscribe Call: (2.13) 229-5300
_. 00'0092 . .
DMG 40
®f CALIFORNIA DEPARTMENT OF CONSERVATION 26
DIVISION OF MINES AND GEOLOGY NOTE
(Revised 1/96)
CONTENTS:
SURFACE MINING AND RECLAMATION ACT OF 1975 PAGE
Public Resources Code, Division 2, Chapter 9, Section 2710 et seq.
GeneralProvisions ......................................................................... ..................................2
Definitions...................................................................................... ..................................4
DistrictCommittees ..........................................................................................................4
State Policy for the Reclamation of Mined Lands ......................... ..................................5
Reclamation of Mined Lands and the Conduct of Surface Mining'',Operations................6
Areas of Statewide or Regional Significance................................. ................................ 14
FiscalProvisions ............................................................................ ................................ 15
NOTATION RELATING TO LIABILITY LIMITATIONS FOR
REMEDIATION/RECLAMATION OF ABANDONED MINES ......................16
ANNUAL REPORTING REQUIREMENTS AND REPORTING FEE
Public Resources Code, Division 2, Chapter 2
Section2207.................................................................................................................... 17
SITE INSPECTIONS CONDUCTED BY
THE DEPARTMENT OF CONSERVATION
Public Resources Code, Division 2, Chapter 2
Section2208................................................................................. ..........,..................19
PURCHASE AND USE OF MINED MATERIALS BY STATE AGENCIES
Public Contract Code, Division 2, Part 2, Chapter 2
Section10295.5............................................................................................................... 19
STATE MINING AND GEOLOGY BOARD
RECLAMATION REGULATIONS
California Code of Regulations, Title 14, Division 2, Chapter 8, Subehapter 1
Article 1. Surface Mining and Reclamation Practice................... ................................20
Article 6. Mineral Resource Management Policies...................... ................................21
Article 9. Reclamation Standards.................................................:................................22
Article 11. Financial Assurance Mechanisms................................ ................................26
Publications and Information Office,601 K Street,14th Floor,MS 14-33,Sacramento,CA 95614-3532,(916)445-5716. MAIL ORDER,P.O.Boz 2960,Sacramento,CA 95812.
Southern California Regional Office,107 South Broadway,Room 1065,Los Angeles,CA 90012-4402,(213'620-3560. .
Bay Area Regional Office,185 Berry Street,Suite 210,San Francisco,CA 94107,(415)904-7701.
DOUGLAS P.WHEELER,Secretary PETE WILSON,Governor B.B.BLEVINS,Interim Director
THE RESOURCES AGENCY STATE OF CALIFORNIA DEPARTMENT OF SERVATION
000092,zg
1
SURFACE MINING AND RECLAMATION ACT OF 1975
As amended by:
Senate Bill 1300, Nejedly- 1980 Statutes Senate Bill 1569, Rogers - 1992 Statutes
Assembly Bill 110, Areias - 1984 Statutes Assembly Bill 3098 , Sher - 1992 Statutes
Senate Bill 593, Royce - 1985 Statutes Assembly Bill 723, Sher- 1993 Statutes
Senate Bill 1261, Seymour- 1986 Statutes Assembly Bill 904, Sher- 1993 Statutes
Assembly Bill 747, Sher- 1987 Statutes Assembly Bill 867, Sher- 1994 Statutes
Assembly Bill 3551, Sher- 1990 Statutes Senate Bill 273, Leslie - 1995 Statutes, and
Assembly Bill 3903, Sher- 1990 Statutes Senate Bill 614, Craven et a/- 1995 Statutes
Assembly Bill 1506, Sher- 1991 Statutes
Article 1. General Provisions
(b) Onsite excavation and onsite earthmoving
§ 2710. This chapter shall be known and may be activities which are an integral and necessary part of a
cited as the Surface Mining and Reclamation Act of construction project that are undertaken to prepare a site
1975. for construction of structures,landscaping, or other land
§ 2711. (a)The Legislature hereby finds and declares improvements, including the related excavation, grading,
that the extraction of minerals is essential to the compaction, or the creation of fills, road cuts, and
continued economic well-being of the state and to the embankments, whether or not surplus materials are
needs of the society, and that the reclamation of mined exported from the site, subject to all of the following
lands is necessary to prevent or minimize adverse effects conditions:
on the environment and to protect the public health and (1) All required permits for the construction,
safety. landscaping, or related land improvements have been
(b)The Legislature further finds that the reclamation approved by a public agency in accordance with applicable
of mined lands as provided in this chapter will permit the provisions of state law and locally adopted plans and
continued mining of minerals and will provide for the ordinances, including, but not limited to, Division 13
protection and subsequent beneficial use of the mined (commencing with Section 21000).
and reclaimed land. (2) The lead agency's approval of the construction
(c) The Legislature further finds that surface mining project included consideration of the onsite excavation and
takes place in diverse areas where the geologic, onsite earthmoving activities pursuant to Division 13
topographic,climatic,biological,and social conditions are (commencing with Section 21000).
significantly different and that reclamation operations and (3) The approved construction project is consistent
the specifications therefore may vary accordingly. with the general plan or zoning of the site.
§ 2712. It is the intent of the Legislature to create (4) Surplus materials shall not be exported from the
and maintain an effective and comprehensive surface site unless and until actual construction work has
mining and reclamation policy with regulation of surface commenced and shall cease if it is determined that
mining operations so as to assure that: construction activities have terminated, have been
(a) Adverse environmental effects are prevented or indefinitely suspended, or are no longer being actively
minimized and that mined lands are reclaimed to a usable pursued.
condition which is readily adaptable for alternative land (c) Operation of a plant site used for mineral
uses. processing, including associated onsite structures,
(b) The production and conservation of minerals are equipment, machines, tools, or other materials, including
encouraged, while giving consideration to values relating the onsite stockpiling and onsite recovery of mined
to recreation, watershed, wildlife, range and forage, and materials, subject to all of the following conditions:
aesthetic enjoyment. (1) The plant site is located on lands designated for
(c) Residual hazards to the public health and safety industrial or commercial uses in the applicable county or
are eliminated. city general plan.
§ 2713. It is not the intent of the Legislature by the (2) The plant site is located on lands zoned industrial
enactment of this chapter to take private property for or commercial, or are contained within a zoning category
public use without payment of just compensation in intended exclusively for industrial activities by the
violation of the California and United States applicable city or county.
Constitutions. (3) None of the minerals being processed are being
§ 2714. This chapter does not apply to any of the extracted onsite.
following activities: (4)All reclamation work has been completed pursuant
(a);Excavations or grading conducted for farming or to the approved reclamation plan for any mineral
onsite construction or for the purpose of restoring land extraction activities that occurred onsite after January 1,
following a flood or natural disaster. 1976.
2
00009' , -
(d) Prospecting for, or the extraction of, minerals for (2) This exemption shall be available only if slope
commercial purposes and the removal of overburden in stability and erosion are controlled in accordance with
total amounts of less than 1,000 cubic yards in any one subdivision (f► of Section '3704 and subdivision (d) of
location of one acre or less. Section 3706 of Subchapter 1 of Chapter 8 of Division 2
(e) Surface mining operations that are required by of Title 14 of the California Code of Regulations and, upon
federal law in order to protect a mining claim, if those closure of the site,the person closing the site implements,
operations are conducted solely for that purpose. where necessary, revegetation measures and postclosure
(f) Any other surface mining operations that the uses, in consultation with the Department of Forestry and
board determines to be of an infrequent nature and which Fire Protection.
involve only minor surface disturbances. § 2715. No provision of this chapter or any ruling,
(g) The solar evaporation of sea water or bay water requirement, or policy of the board is a limitation on any
for the production of salt and related minerals. of the following:
(h) Emergency excavations or grading conducted by (a) On the police power.of any city or county or on
the Department of Water Resources or the Reclamation the power of any city or county to declare, prohibit, and
Board for the purpose of averting, alleviating, repairing, abate nuisances.
or restoring damage to property due to imminent or (b) On the power of the Attorney General, at the
recent floods, disasters, or other emergencies. request of the board, or upon his own motion, to bring an
(i) (1) Surface mining operations conducted on lands action in the name of the People of the State of California
owned or leased, or upon which easements or rights-of- to enjoin any pollution or nuisance.
way have been obtained, by the Department of Water (c) On the power of any state agency in the
Resources for the purpose of the State Water Resources enforcement or administration of any provision of law
Development System or flood control,and surface mining which it is specifically authorized or required to enforce or
operations on lands owned or leased, or upon which administer.
easements or rights-of-way have been obtained, by the (d)On the right of any person to maintain at any time
Reclamation Board for the purpose of flood control,if the any appropriate action for relief against any private
Department of Water Resources adopts,after submission nuisance as defined in Part 3 (commencing with Section
to and consultation with, the Department of 3479) of Division 4 of the Civil Code or for any other
Conservation, a,reclamation plan for lands affected by private relief.
these activities, and those lands are reclaimed in (e)On the power of any lead agency to adopt policies,
conformance with the standards specified in regulations standards,or regulations imposing additional requirements
of the board adopted pursuant to this chapter. The on any person if the requirements do not prevent the
Department of Water Resources shall provide an annual person from complying with the provisions of this chapter.
report to the Department of Conservation by the date (f) On the power of any city or county to regulate the
specified by the Department of Conservation on these use of buildings,structures:and land as between industry,
mining activities. business, residents, open space (including agriculture,
(2) Nothing in this subdivision shall require the recreation,the enjoyment of scenic beauty, and the use of
Department of Water Resources or the Reclamation Board natural resources), and other purposes.
to obtain a permit or secure approval of a reclamation § 2716.Any person may commence an action on his
plan from any city or county in order to conduct surface or her own behalf against the board, the State Geologist,
mining operations specified in paragraph (1). Nothing in or the director for a writ of mandate pursuant to Chapter
this subdivision shall preclude the bringing of an 2 (commencing with Section 1084) of Title 1 of Part 3 of
enforcement action pursuant to Section 2774.1, if it is the Code of Civil Procedure`ito compel the board,the State
determined that a surface mine operator, acting under Geologist, or the director bo carry out any duty imposed
contract with the Department of Water Resources or the upon them pursuant to this chapter.
Reclamation Board on lands other than those owned or § 2717. (a) The board.shall submit to the Legislature
leased, or upon which easements or rights-of-way have on December 1 st of each'year a report on the actions
been obtained, by the Department of Water Resources or taken pursuant to this chapter during the preceding fiscal
the Reclamation Board, is otherwise not in compliance year. The report shall include a statement of the actions,
with this chapter. including legislative recommendations, which are
(j) (1) Excavations or grading for the exclusive necessary to carry out more completely the purposes and
purpose of obtaining materials for roadbed construction requirements of this chapter.
and maintenance conducted in connection with timber (b) For purposes of ensuring compliance with Section
operations or forest management on land owned by the 10295.5 of the Public Contract Code, on and after July 1,
same person or entity. This exemption is limited to 1993, the department shall, at a minimum, quarterly
excavation and grading that is conducted adjacent to publish in the California Regulatory Notice Register, or
timber operation or forest management roads and shall otherwise make available upon request to the Department
not apply to onsite excavation or grading that occurs of General Services or any other state agency, a list
within 100 feet of a Class One watercourse or 75 feet of identifying all of the following:
a Class Two watercourse, or to excavation for materials (1) Surface mining operations for which a report has
that are, or have been, sold for commercial purposes. been submitted pursuant to Section 2207 which indicates
3
000092. 5/
that the reclamation plan and the financial assurances § 2730. "Mining waste"includes the residual of soil,
have been approved. rock, mineral, liquid, vegetation, equipment, machines,
(2) Surface mining operations for which an appeal is tools,or other materials or property directly resulting from,
pending before the board pursuant to subdivision (e) of or displaced by, surface mining operations.
Section 2770, provided that the appeal shall not have § 2731. "Operator" means any person who is
been pending before the board for more than 180 days. engaged in surface mining operations, himself, or who
§ 2718. If any provision of this chapter or the contracts with others to conduct operations on his behalf,
application thereof to any person or circumstance is held except a person who is engaged in surface mining
invalid,such invalidity shall not affect other provisions or operations as an employee with wages as his sole
applications of the chapter which can be given effect compensation.
without the invalid provision or application, and to this § 2732. "Overburden" .means soil, rock, or other
end the provisions of this chapter are severable. materials that lie above a natural mineral deposit or in
§ 2719.Notwithstanding any other provision of law, between mineral deposits, before or after their removal by
neither the state nor any county, city, district, or other surface mining operations.
political subdivision shall be exempt from any fee § 2732.5. "Permit"means any authorization from, or
imposed upon a mining operation pursuant to subdivision approval by, a lead agency, the absence of which would
(d) of Section 2207. preclude surface mining operations.
§ 2733. "Reclamation" means the combined process
Article 2. Definitions of land treatment that minimizes water degradation, air
pollution, damage to aquatic or wildlife habitat, flooding,
§ 2725. Unless the context otherwise requires, the erosion, and other adverse effects from surface mining
definitions set forth in this article shall govern the operations,including adverse surface effects incidental to
construction of this chapter. underground mines, so that mined lands are reclaimed to
§ 2726. "Area of regional significance" means an a usable condition which is readily adaptable for alternate
area designated by the board pursuant to Section 2790 land uses and create no danger to public health or safety.
which is known to contain a deposit of minerals, the The process may extend to affected lands surrounding
extraction of which is judged to be of prime importance mined lands, and may require backfilling, grading,
in meeting future needs for minerals in a particular region resoiling, revegetation, soil compaction, stabilization, or
of the state within which the minerals are located and other measures.
which, if prematurely developed for alternate § 2734. "State policy"means the regulations adopted
incompatible land uses,could result in the permanent loss by the board pursuant to Section 2755.
of minerals that are of more than local significance. § 2735. "Surface mining operations" means all, or
§ 2727. "Area of statewide significance" means an any part of,the process involved in the mining of minerals
area designated by the board pursuant to Section 2790 on mined lands by removing overburden and mining
which is known to contain a deposit of minerals, the directly from the mineral deposits, open-pit mining of
extraction of which is judged to be of prime importance minerals naturally exposed, mining by the auger method,
in meeting future needs for minerals in the state and dredging and quarrying, or surface work incident to an
which, if prematurely developed for alternate underground mine. Surface mining operations shall
incompatible land uses,could result in the permanent loss include, but are not limited to:
of minerals that are of more than local or regional (a) Inpiace distillation or retorting or leaching.
significance. (b) The production and disposal of mining waste.
§ 2727.1 "Idle" means to curtail for a period of one (c) Prospecting and exploratory activities.
year or more surface mining-operations by more than 90
percent of the operation's previous maximum annual Article 3. District Committees
mineral production, with the intent to resume those
surface mining operations at a future date. § 2740. In carrying out the provisions of this chapter,
§ 2728. "Lead agency"means the city,county, San the board may establish districts and appoint one or more
Francisco Bay Conservation and Development district technical advisory committees to advise the board.
Commission, or the board which has the principal In establishing districts for these committees, the board
responsibility for approving a surface mining operation or shall take into account physical characteristics, including,
reclamation plan pursuant to this chapter. but not limited to, climate, topography, geology, type of
§ 2729. "Mined lands" includes the surface, overburden, and principal mineral commodities. Members
subsurface,and ground water of an area in which surface of the committees shall be selected and appointed on the
mining operations will be, are being, or have been basis of their professional qualifications and training in
conducted,including private ways and roads appurtenant mineral resource conservation, development and
to any such area, land excavations, workings, mining utilization, land use planning, mineral economics, or the
waste, and areas in which structures, facilities, reclamation of mined lands.
equipment, machines, tools, or other materials or § 2741.The members of the committee shall receive
property which result from,or are used in,surface mining no compensation for their services, but shall be entitled to
operations are located.
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their actual and necessary expenses incurred in the irreversible land uses which would preclude mineral
performance of their duties, extraction:
(1) Standard metropolitan statistical areas and such
Article 4. State Policy for other areas for which inform$tion is readily available.
the Reclamation of Mined Lands (2) Other areas as may be requested by the board.
(b) In accordance with a time schedule, and based
§ 2755. The board shall adopt regulations which upon guidelines adopted by the board,the State Geologist
establish state policy for the reclamation of mined lands shall classify, on the basis solely of geologic factors, and
in accordance with the general provisions set forth in without regard to existing land use and land ownership,
Article 1 (commencing with Section 2710)of this chapter the areas identified by the Office of Planning and
and pursuant to Chapter 4.5 (commencing with Section Research, any area for which classification has been
11371) of Part 1 of Division 3 of Title 2 of the requested by a petition which has been accepted by the
Government Code. board, or any other areas as_ may be specified by the
§ 2756. State policy shall apply to the conduct of board, as one of the following:
surface mining operations and shall include, but shall not (1) Areas containing little or no mineral deposits.
be limited to, measures to be employed.by lead agencies (2) Areas containing significant mineral deposits.
in specifying grading, backfilling, resoiling, revegetation, (3)Areas containing mineral deposits,the significance
soil compaction,and other reclamation requirements,and of which requires further evaluation.
for soil erosion control, water quality and watershed The State Geologist shall,require the petitioner to pay
control, waste disposal, and flood control. the reasonable costs of classifying an area for which
§ 2757. The state policy adopted by the board shall classification has been requested by the petitioner.
be based upon a study of the factors that significantly (c) The State Geologist shall transmit the information
affect the present and future condition of mined lands, to the board for incorporation into the state policy and for
and shall be used as standards by lead agencies in transmittal to lead agencies.
preparing specific and general plans, including the § 2762. (a)Within 12 months of receiving the mineral
conservation and land use elements of the general plan information described in Section 2761,and also within 12
and zoning ordinances. The state policy shall not include months of the designation Of an area of statewide or
aspects of regulating surface mining operations which are regional significance within';its jurisdiction, every lead
solely of local concern, and not of statewide or regional agency shall, in accordance'!with state policy, establish
concern, as determined by the board, such as, but not mineral resource management policies to be incorporated
limited to, hours of operation, noise, dust, fencing, and in its general plan which will:.
purely aesthetic considerations. (1) Recognize mineral information classified by the
§ 2758. Such policy shall include objectives and State Geologist and transmitted by the board.
criteria for all of the following: (2)Assist in the management of land use which affect
(a) Determining the lead agency pursuant to the areas of statewide and regiomal significance.
provisions of Section 2771. (3) Emphasize the conservation and development of
(b) The orderly evaluation of reclamation plans. identified mineral deposits.
(c) Determining the circumstances, if any, under (b) Every lead agency shall submit proposed mineral
which the approval of a proposed surface mining resource management policies to the board for review and
operation by a lead agency need not be conditioned on a comment prior to adoption.
guarantee assuring reclamation of the mined lands. (c) Any subsequent amendment of the mineral
§ 2759. The state policy shall be continuously resource management policy',previously reviewed by the
reviewed and may be revised. During the formulation or board shall also require review and comment by the board.
revision of the policy, the board shall consult with, and (d) If any area is classified by the State Geologist as
carefully evaluate the recommendations of, the director, an area described in paragraph (2) of subdivision (b) of
any district technical advisory committees, concerned Section 2761, and the lead agency either has designated
federal,state,and local agencies,educational institutions, that area in its general plan as having important minerals
civic and public interest organizations, and private to be protected pursuant to subdivision (a), or otherwise
organizations and individuals. has not yet acted pursuant tolsubdivision(a), then prior to
§ 2760.The board shall not adopt or revise the state permitting a use which would threaten the potential to
policy, unless a public hearing is first held respecting its extract minerals in that area, the lead agency shall
adoption or revision. At least 30 days prior to the prepare, in conjunction with preparing any environmental
hearing, the board shall give notice of the hearing by document required by Division 13 (commencing with
publication pursuant to Section 6061 of the Government Section 21000), or in any event if no such document is
Code. required, a statement specifying its reasons for permitting
§ 2761. (a) On or before January 1, 1977, and, as the proposed use, and shall forward a copy to the State
a minimum, after the completion of each decennial Geologist and the board for review.
census,the Office of Planning and Research shall identify If the proposed use is subject to the requirements of
portions of the following areas within the state which are Division 13 (commencing with Section 21000), the lead
urbanized or are subject to urban expansion or other agency shall comply with the public review requirements
5
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of that division. Otherwise,the lead agency shall provide accordance with the lead agency's mineral resource
public notice of the availability of its statement by all of management policies and shall also, in balancing mineral
the following: values against alternative land uses, consider the
(1) Publishing the notice at least one time in a importance of the mineral resources to the state and
newspaper of general circulation in the area affected by nation as a whole.
the proposed use. § 2764. (a) Upon the request of an operator or other
(2) Directly mailing the notice to owners of property interested person and payment by the requesting person
within one-half mile of the parcel or parcels on which the of the estimated cost of processing the request, the lead
proposed use is located as those owners are shown on agency having jurisdiction shall amend its general plan, or
the latest equalized assessment role. prepare a new specific plan or amend any applicable
The public review period shall not be less than 60 specific plan, that shall, with respect to the continuation
days from the date of the notice and shall include at least of the existing surface mining operation for which the
one public hearing. The lead agency shall evaluate request is made, plan for future land uses in the vicinity
comments received and shall prepare a written response. of, and access routes serving, the surface mining
The written response shall describe the disposition of the operation in light of the importance of the minerals to their
major issues raised. In particular,when the lead agency's market region as a whole; and not just their importance to
position on the proposed use is at variance with the lead agency's area of jurisdiction.
recommendations and objections raised in the comments, (b) In adopting amendments to the general plan, or
the written response shall address in detail why specific adopting or amending a specific plan, the lead agency
comments and suggestions were not accepted. shall make written legislative findings as to whether the
(e)Prior to permitting a use which would threaten the future land uses and particular access routes will be
potential to extract minerals in an area classified by the compatible or incompatible with the continuation of the
State Geologist as an area described in paragraph (3) of surface mining operation, and if they are found to be
subdivision (b) of.Section 2761, the lead agency may incompatible,the findings shall include a statement of the
cause to be prepared an evaluation of the area in order to reasons why they are to be provided for, notwithstanding
ascertain the significance of the mineral deposit located the importance of the minerals to their market region as a
therein. The results of such evaluation shall be whole or their previous designation by the board, as the
transmitted to the State Geologist and the board. case may be.
§ 2763. (a) If an area is designated by the board as (c) Any evaluation of a mineral deposit prepared by a
an area of regional significance, and the lead agency lead agency for the purpose of carrying out this section
either has designated that area in its general plan as shall be transmitted to the State Geologist and the board.
having important minerals to be protected pursuant to (d)The procedure provided for in this section shall not
subdivision (a) of Section 2762,or otherwise has not yet be undertaken in any area that has been designated
acted pursuant to subdivision (a) of Section 2762, then pursuant to Article 6 (commencing with Section 2790) if
prior to permitting a use which would threaten the mineral resource management policies have been
potential to extract minerals in that area,the lead agency established and incorporated in the lead agency's general
shall prepare a statement specifying its reasons for plan in conformance with Article 4 (commencing with
permitting the proposed_ use, in accordance with the Section 2755).
requirements set forth in subdivision(d)of Section 2762.
Lead agency land use decisions involving areas Article 5. Reclamation of Mined Lands and
designated as being of regional significance shall be in the Conduct of Surface Mining Operations
accordance with the lead agency's mineral resource
management policies and shall also, in balancing mineral § 2770. (a) Except as provided in this section, no
values against alternative land uses, consider the person shall conduct surface mining operations unless a
importance of these minerals to their market region as a permit is obtained from, a reclamation plan has been
whole and not just their importance to the lead agency's submitted to and approved by, and financial assurances
area of jurisdiction. for reclamation have been approved by, the lead agency
(b) If an area is designated by the board as an area of for the operation pursuant to this article.
statewide significance, and the lead agency either has (b) Any person with an existing surface mining
designated that area in its general plan as having operation who has vested rights pursuant to Section 2776
important minerals to be protected pursuant to and who does not have an approved reclamation plan shall
subdivision (a) of Section 2762,or otherwise has not yet submit a reclamation plan to the lead agency not later
acted pursuant to subdivision (a) of Section 2762, then than March 31, 1988. If a reclamation plan application is
prior to permitting a use which would threaten the not on file by March 31, 1988, the continuation of the
potential to extract minerals in that area,the lead agency surface mining operation is prohibited until a reclamation
shall prepare a statement specifying its reasons for plan is submitted to the lead agency. For purposes of this
permitting the proposed use, in accordance with the subdivision, reclamation plans may consist of all or the
requirements set forth in subdivision(d)of Section 2762. appropriate sections of any plans or written agreements
Lead agency land use decisions involving areas previously approved by the lead agency or another
designated as being of statewide significance shall be in agency, together with any additional documents needed
6
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to substantially meet the requirements of Sections 2772 application,or(3)failed to review and approve reclamation
and 2773 and the lead agency surface mining ordinance plans or financial assurances as required by subdivisions
adopted pursuant to subdivision (a) of Section 2774, (c) and (d), may appeal that action or inaction to the
provided that all documents which together were board.
proposed to serve as the reclamation plan are submitted (f) The board may decline to hear an appeal if it
for approval to the lead agency in accordance with this determines that the appeal raises no substantial issues
chapter. related to the lead agency's review pursuant to this
(c) If a person with an existing surface mining section.
operation has received lead agency approval of its (g) Appeals that the board does not decline to hear
financial assurances for reclamation prior to January 1, shall be scheduled and heardat a public hearing within 45
1991,the lead agency shall administratively review those days of the filing of the appeal, or any longer period as
existing financial assurances in accordance with may be mutually agreed upon by the board and the person
subdivision (d) prior to January 1, 1992. The review of filing the appeal. In hearing an appeal, the board shall
existing financial assurances shall not be considered a only determine whether the reclamation plan or the
project for purposes of Division 13 (commencing with financial assurances substantially meet the applicable
Section 21000). Any person with an existing surface requirements of Sections 2772, 2773, 2773.1, and the
mining operation which does not have financial lead agency surface mining ordinance adopted pursuant to
assurances that received lead agency approval prior to subdivision (a) of Section 2774. A reclamation plan or
January 1, 1991, shall submit financial assurances for financial assurances determined to meet these
reclamation for review in accordance with subdivision(d). requirements shall be approved. A reclamation plan or
(d) The lead agency's review of reclamation plans financial assurances determined not to meet these
submitted pursuant to subdivision (b) or of financial requirements shall be returned to the person filing the
assurances pursuant to subdivision (c) is limited to appeal with a notice of deficiencies, who shall be granted,
whether the plan or the financial assurances substantially once only, a period of 30 days,or a longer period mutually
meet the applicable requirements of Sections 2772, agreed upon by the operator and the board, to correct the
2773, and 2773.1, and the lead agency surface mining noted deficiencies and submit'the revised reclamation plan
ordinance adopted pursuant to subdivision(a)of Section or the revised financial assurances to the lead agency for
2774, but, in any event, the lead agency shall require review and approval.
that financial assurances for reclamation be sufficient to (h)(1) Within 90 days of a surface mining operation
perform reclamation of lands remaining disturbed. becoming idle, as defined in Section 2727.1, the operator
Reclamation plans or financial assurances determined to shall submit to the lead agency for review and approval,
substantially meet these requirements shall be approved an interim management plan. The review and approval of
by the lead agency for purposes of this chapter. an interim management plan shall not be considered a
Reclamation plans or financial assurances determined not project for purposes of Division 13 (commencing with
to substantially meet these requirements shall be returned Section 21000). The approved interim management plan
to the operator within 60 days. The operator has 60 shall be considered an amenolment to the surface mining
days to revise the plan or financial assurances to address operation's approved reclamation plan, for purposes of
identified deficiencies, at which time the revised plan or this chapter. The interim management plan shall provide
financial assurances shall be returned to the lead agency measures the operator will implement to maintain the site
for review and approval. Except as specified in in compliance with this chaptIer, including, but not limited
subdivision (e) or (i), unless the operator has filed on or to, all permit conditions.
before July 1, 1990, an appeal pursuant to subdivision (2)The interim management plan may remain in effect
(e) with regard to nonapprova(of the reclamation plan, or for a period not to exceed five years, at which time the
has filed on or before January 1, 1994, an appeal lead agency shall do one of the following:
pursuant to subdivision (e) with regard to nonapproval of (A) Renew the interim management plan for another
financial assurances, and that appeal is pending before period not to exceed five years, if the lead agency finds
the board, the continuation of the surface mining that the surface mining operator has complied fully with
operation is prohibited until a reclamation plan and the interim management plan.
financial assurances for reclamation are approved by the (B) Require the surface mining operator to commence
lead agency. reclamation in accordance with its approved reclamation
(e) Any person who, based on the evidence of the plan.
record, can substantiate that a lead agency has either(1) (3) The financial assurances required by Section
failed to act according to due process or has relied on 2773.1 shall remain in effect during the period that the
considerations not related to the specific applicable surface mining operation is idle. If the surface mining
requirements of Sections 2772, 2773, and 2773.1, and operation is still idle after the expiration of its interim
the lead agency surface mining ordinance adopted management plan, the surface mining operation shall
pursuant to subdivision (a) of Section 2774, in reaching commence reclamation in accordance with its approved
a decision to deny approval of a reclamation plan or reclamation plan.
financial assurances for reclamation, (2) failed to act (4) Within 60 days of the receipt of the interim
within a reasonable time of receipt of a completed management plan,or a longennperiod mutually agreed upon
7
000092, W°'
by the lead agency and the operator, the lead agency procedures adopted by the lead agency pursuant to
shall review and approve the plan in accordance with its Section 2774. If a question arises as to which public
ordinance adopted pursuant to subdivision (a) of Section agency is the lead agency, any affected public agency, or
2774, so long as the plan satisfies the requirements of the affected operator,may submit the matter to the board.
this subdivision, and so notify the operator in writing. The board shall notify in writing all affected public
Otherwise, the lead agency shall notify the operator in agencies and operators that the matter has been
writing of any deficiencies in the plan. The operator shall submitted, specifying a date for a public hearing. The
have 30 days,or a longer period mutually agreed upon by board shall designate the public agency which shall serve
the operator and the lead agency, to submit a revised as the lead agency, giving due consideration to the
plan. capability of the agency to fulfill adequately the
(5) The lead agency shall approve or deny approval requirements of this chapter and to an examination of
of the revised interim management plan within 60 days which of the public agencies has principal permit
of receipt. If the lead agency denies approval of the responsibility.
revised interim management plan, the operator may § 2772. (a) The reclamation plan shall be filed with
appeal that action to the lead agency's governing body, the lead agency, on a form provided by the lead agency,
which shall schedule a public hearing within 45 days of by any person who owns, leases, or otherwise controls or
the filing of the appeal, or any longer period mutually operates on all, or any portion of any, mined lands, and
agreed upon by the operator and the governing body. who plans to conduct surface mining operations on the
(6) Unless review of an interim management plan is lands.
pending before the lead agency, or an appeal is pending (b)All documentation for the reclamation plan shall be
before the lead agency's governing body, a surface submitted by the lead agency to the department at one
mining operation which remains idle for over one year time.
after becoming idle as defined in Section 2727.1 without (c) The reclamation plan shall include all of the
obtaining approval of an interim management plan shall following information and documents:
be considered abandoned and the operator shall (1) The name and address of the surface mining
commence and complete reclamation in accordance with operator and the names and addresses of any persons
the approved reclamation plan. designated by the operator as an agent for the service of
(i) Any enforcement action which may be brought process.
against a surface mining operation for operating without (2) The anticipated quantity and type of minerals for
an approved reclamation plan, financial assurance, or which the surface mining operation is to be conducted.
interim management plan, shall be held in abeyance (3) The. proposed dates for the initiation and
pending review pursuant to subdivision(b), (c), (d),or(h) termination of surface mining operation.
or the resolution of an appeal filed with the board (4) The maximum anticipated depth of the surface
pursuant to subdivision (e), or with a lead agency mining operation.
governing body pursuant to subdivision (h). (5)The size and legal description of the lands that will
§ 2770.5. Whenever surface mining operations are be affected by the surface mining operation, a map that
proposed in the 100-year flood plain for any stream, as includes the boundaries and topographic details of the
shown in Zone A of Flood Insurance Rate Maps issued by lands, a description of the general geology of the area, a
the Federal Emergency Management Agency, and within detailed description of the geology of the area in which
one mile, upstream or downstream,of any state highway surface mining is to be conducted, the location of all
bridge, the lead agency receiving the application for the streams, roads, railroads, and utility facilities within, or
issuance or renewal of a permit to conduct the surface adjacent to,the lands,the location of all proposed access
mining operations shall notify the Department of roads to be constructed in conducting the surface mining
Transportation that the application has been received. operation, and the names and addresses of the owners of
The Department of Transportation shall have a period of all surface interests and mineral interests in the lands.
not more than 45 days to review and comment on the (6) A description of, and a plan for, the type of
proposed surface mining operations with respect to any surface mining to be employed, and a time schedule that
potential damage to the state highway bridge from the will provide for the completion of surface mining on each
proposed surface mining operations. The lead agency segment of the mined lands so that reclamation can be
shall not issue or renew the permit until the Department initiated at the earliest possible time on those portions of
of Transportation has submitted its comments or until 45 the mined lands that will not be subject to further
days from the date the application for the permit was disturbance by the surface mining operation.
submitted, whichever occurs first. (7)A description of the proposed use or potential uses
§ 2771. Whenever a proposed or existing surface of the mined lands after reclamation and evidence that all
mining operation is within the jurisdiction of two or more owners of a possessory interest in the land have been
public agencies, is a permitted use within the agencies, notified of the proposed use or potential uses.
and is not separated by a natural or manmade barrier (8)A description of the manner in which reclamation,
coinciding with the boundary of the agencies, the adequate for the proposed use or potential uses will be
evaluation of the proposed or existing operation shall be accomplished, including both of the following:
made by the lead agency in accordance with the
8
000092,
(A) A description of the manner in which These standards shall apply to each mining operation,
contaminants will be controlled,and mining waste will be but only to the extent that they are consistent with the
disposed. planned or actual subsequent use or uses of the mining
(B) A description of the manner in which affected site.
streambed channels and streambanks will be rehabilitated § 2773.1. (a) Lead agencies shall require financial
to a condition minimizing erosion and sedimentation will assurances of each surface;mining operation to ensure
occur. reclamation is performed in accordance with the surface
(9)An assessment of the effect of implementation of mining operation's approved reclamation plan, as follows:
the reclamation plan on future mining in the area. (1) Financial assurances may take the form of surety
0 0) A statement that the person submitting the bonds, irrevocable letters of'.credit, trust funds, or other
reclamation plan accepts responsibility for reclaiming the forms of financial assurances specified by the board
mined lands in accordance with the reclamation plan. pursuant to subdivision (0, which the lead agency
(1 1) Any other information which the lead agency reasonably determines ate adequate to perform
may require by ordinance. reclamation in accordance'; with the surface mining
(d) An item of information or a document required operation's approved reclamation plan.
pursuant to subdivision(c)that has already been prepared (2) The financial assurances shall remain in effect for
as part of a permit application for the surface mining the duration of the surface mining operation and any
operation, or as part of an environmental document additional period until reclamation is completed.
prepared for the project pursuant to Division 13 (3) The amount of financial assurances required of a
(commencing with Section 21000), may be included in surface mining operation for any one year shall be
the reclamation plan by reference, if that item of adjusted annually to account for new lands disturbed by
information or that document is attached to the surface mining operations, inflation, and reclamation of
reclamation plan when the lead agency submits the lands accomplished in accordance with the approved
reclamation plan to the director for review. To the extent reclamation plan.
that the information or document referenced in the (4) The financial assurances shall be made payable to
reclamation plan is used to meet the requirements of the lead agency and the department. Financial assurances
subdivision(c),the information or document shall become that were approved by the lead agency prior to January 1,
part of the reclamation plan and shall be subject to all 1993, and were made payable to the State Geologist shall
other requirements of this article. be considered payable to the department for purposes of
(e) Nothing in this section is intended to limit or this chapter. However, if a surface mining operation has
expand the department's authority or responsibility to received approval of its financial assurances from a public
review a document in accordance with Division 13 agency other than the lead agency, the lead agency shall
(commencing with Section 21000). deem those financial assurances adequate for purposes of
§ 2773. (a) The reclamation plan shall be applicable this section, or shall credit them toward fulfillment of the
to a specific piece of property or properties, shall be financial assurances required by this section, if they are
based upon the character of the surrounding area and made payable to the public agency, the lead agency, and
such characteristics of the property as type of the department and otherwise meet the requirements of
overburden, soil stability, topography, geology, climate, this section. In any event, if a lead agency and one or
stream characteristics,and principal mineral commodities, more public agencies exercise jurisdiction over a surface
and shall establish site-specific criteria for evaluating mining operation,the total amount of financial assurances
compliance with the approved reclamation plan,including required by the lead agency?;and the public agencies for
topography, revegetation and sediment, and erosion any one year shall not exceed that amount which is
control. necessary to perform reclamation of lands remaining
(b) By January 1, 1992, the board shall adopt disturbed. For purposes of this paragraph, a "public
regulations specifying minimum, verifiable statewide agency" may include a federlal agency.
reclamation standards. Subjects for which standards (b) If the lead agency or the board, following a public
shall be set include, but shall not be limited to, the hearing, determines that the operator is financially
following: incapable of performing reclamation in accordance with its
(1) Wildlife habitat, approved reclamation plan, or has abandoned its surface
(2) Backfilling, regrading, slope stability, and mining operation without cornmencing reclamation, either
recontouring, the lead agency or the director shall do all of the
(3) Revegetation. following:
(4) Drainage, diversion structures, waterways, and (1) Notify the operator by personal service or certified
erosion control. mail that the lead agency or,the director intends to take
(5) Prime and other agricultural land reclamation. appropriate action to forfeit;the financial assurances and
(6) Building, structure, and equipment removal. specify the reasons for so doing.
(7) Stream protection. (2)Allow the operator 60 days to commence or cause
(8) Topsoil salvage, maintenance, and redistribution. the commencement of reclamation in accordance with its
(9) Tailing and mine waste management. approved reclamation plan and require that reclamation be
9
000092. 17
completed within the time limits specified in the approved irrevocable letters of credit, and trust funds, which the
reclamation plan or some other time period mutually board determines are reasonably available and adequate to
agreed upon by the lead agency or the director and the ensure reclamation pursuant to this chapter, but these
operator. mechanisms may not include financial .tests. These
(3) Proceed to take appropriate action to require mechanisms may include reclamation bond pool programs.
forfeiture of the financial assurances if the operator does (f)On or before March 1, 1993,the board shall adopt
not substantially comply with paragraph (2). guidelines to implement this section. The guidelines are
(4) Use the proceeds from the forfeited financial exempt from the requirements of Chapter 3.5
assurances to conduct and complete reclamation in (commencing with Section 11340) of Part 1 of Division 3
accordance with the approved reclamation plan. In no of Title 2 of the Government Code, and are not subject to
event shall the financial assurances be used for any other review by the Office of Administrative Law.
purpose. The operator is responsible for the costs of § 2774. (a) Every lead agency shall adopt ordinances
conducting and completing reclamation in accordance in accordance with state policy which establish procedures
with the approved reclamation plan which are in excess for the review and approval of reclamation plans and
of the proceeds from the forfeited financial assurances. financial assurances and the issuance of a permit to
(c)Financial assurances shall no longer be required of conduct surface mining operations, except that any lead
a surface mining operation, and shall be released, upon agency without an active surface mining operation in its
written notification by the lead agency, which shall be jurisdiction may defer adopting an implementing ordinance
forwarded to the operator and the director; that until the filing of a permit application. The ordinances
reclamation has been completed in accordance with the shall establish procedures requiring at feast one public
approved reclamation plan. If a mining operation is sold hearing and shall be periodically reviewed by the lead
or ownership is transferred to another person, the agency and revised, as necessary, to ensure that the
existing financial assurances shall remain in force and ordinances continue to be in accordance with state policy.
shall not be released by the lead agency until new (b) The lead agency shall conduct an inspection of a
financial assurances are secured from the new owner and surface mining operation within six months of receipt by
have been approved by the lead agency in accordance the lead agency of the surface mining operation's report
with Section 2770. submitted pursuant to Section 2207, solely to determine
(d) The lead agency shall have primary responsibility whether the surface mining operation is in compliance
to seek forfeiture of financial assurances and to reclaim with this chapter. In no event shall a lead agency inspect
mine sites under subdivision. (b). However, in cases a surface mining operation less than once in any calendar
where the board is not the lead agency pursuant to year. The lead agency may cause such an inspection to
Section 2774.4,the director may act to seek forfeiture of be conducted by a state-registered geologist, state-
financial assurances and reclaim mine sites pursuant to registered civil engineer, state-licensed landscape
subdivision (b) only if both of the following occurs: architect, or state-registered forester, who is experienced
(1) The financial incapability of the operator or the in land reclamation and who has not been employed by
abandonment of the mining operation has come to the the surface mining operation in any capacity during the
attention of the director. previous 12 months. All inspections shall be conducted
(2) The lead agency has been notified in writing by using a form developed by the department and approved
the director of the financial incapability of the operator or by the board. The operator shall be solely responsible for
the abandonment of the mining operation for at least 15 the reasonable cost of the inspection. The lead agency
days, and has not taken appropriate measures to seek shall notify the director within 30 days of the date of
forfeiture of the financial assurances and reclaim the mine completion of the inspection that the inspection has been
site; and one of the following has occurred: conducted. The notice shall contain a statement regarding
(A) The lead agency has been notified in writing by the surface mining operation's compliance with this
the director that failure to take appropriate measures to chapter, shall include a copy of the completed inspection
seek forfeiture of the financial assurances or to reclaim form, and shall specify which aspects of the surface
the mine site shall result in actions being taken against mining operations, if any, are inconsistent with this
the lead agency under Section 2774.4. chapter. If the surface mining operation has a review of
(B) The director determines that there is a violation its reclamation plan, financial assurances, or an interim
which amounts to an imminent and substantial management plan pending under subdivision (b), (c), (d),
endangerment to the public health, safety, or to the or (h) of Section 2770, or an appeal pending before the
environment. board or lead agency governing body under subdivision(e)
(C) The lead agency notifies the director in writing or (h) of Section 2770, the notice shall so indicate. The
that its good faith attempts to seek forfeiture of the lead agency shall forward to the operator a copy of the
financial assurances have not been successful. notice, a copy of the completed inspection form, and any
The director shall comply with subdivision (b) in supporting documentation, including, but not limited to,
seeking forfeiture of financial assurances and reclaiming any inspection report prepared by the geologist, civil
mine sites. engineer, landscape architect, or forester.
(e) The board may adopt regulations specifying (c) Prior to approving a surface mining operation's
financial assurance mechanisms other than surety bonds, reclamation plan, financial assurances, including existing
10
000092 , 3Y
financial assurances reviewed by the lead agency director the information requwired under this section shall
pursuant to subdivision (c) of Section 2770, or any be cause for action under Soction 2774.4.
amendments, the lead agency shall submit the plan, § 2774.1. (a) Except a&provided in subdivision (i) of
assurances, or amendments to the director for review. Section 2770, if the lead agency or the director
All documentation for that submission shall be submitted determines, based upon an annual inspection pursuant to
to the director at one time. When the lead agency Section 2774, or otherwise confirmed by an inspection of
submits a reclamation plan or plan amendments to the the mining operation, that a surface mining operation is
director for review, the lead agency shall also submit to not in compliance with this+chapter, the lead agency or
the director, for use in reviewing the reclamation plan or the director may notify the operator of that violation by
plan amendments,information from any related document personal service or certified mail. If the violation extends
prepared, adopted, or certified pursuant to Division 13 beyond 30 days after the date of the lead agency's or the
(commencing with Section 21000), and shall submit any director's notification,the lead agency or the director may
other pertinent information. The lead agency shall certify issue an order by personal service or certified mail
to the director that the reclamation plan is in compliance requiring the operator to comply with this chapter or, if
with the applicable requirements of Article 1 the operator does not have on approved reclamation plan
(commencing with Section 3500)of Chapter 8 of Division or financial assurances, cease all further mining activities.
2 of Title 14 of the California Code of Regulations in (b)An order issued unde4 subdivision(a)shall not take
effect at the time that the reclamation plan is submitted effect until the operator has been provided a hearing
to the director for review. before the lead agency for orders issued by the lead
(d) (1) The director shall have 30 days from the date agency, or board for orders issued by the director,
of receipt of a reclamation plan or plan amendments concerning the alleged violation. Any order issued under
submitted pursuant to subdivision (c), and 45 days from subdivision (a) shall specify which aspects of the surface
the date of receipt of financial assurances submitted mine's activities or operations are inconsistent with this
pursuant to subdivision(c),to prepare written comments, chapter,shall specify a time for compliance which the lead
if the director so chooses. The lead agency shall evaluate agency or director determines is reasonable, taking into
any written comments received from the director relating account the seriousness of the violation and any good
to the reclamation plan, plan amendments, or financial faith efforts to comply with applicable requirements, and
assurances within a reasonable amount of time. shall set a date for the hearing, which shall not be sooner
(2) The lead agency shall prepare a written response than 30 days after the date of the order.
to the director's comments describing the disposition of (c) Any operator who violates or fails to comply with
the major issues raised. In particular, if the lead agency's an order issued under subdivision (a) after the order's
position is at variance with any of the recommendations effective date, as provided in subdivision (b), or who fails
made, or objections raised, in the director's comments, to submit a report to the director or lead agency as
the written response shall address,in detail,why specific required by Section 2207, shall be subject to an order by
comments and suggestions were not accepted. Copies the lead agency or the director imposing an administrative
of any written comments received and responses penalty of not more than five thousand dollars ($5,000)
prepared by the lead agency shall be forwarded to the per day,assessed from the original date of noncompliance
operator. with this chapter or Section`2207. The penalty may be
(3) To the extent that there is a conflict between the imposed administratively by the lead agency or the
comments of a trustee agency or a responsible agency director. In determining the amount of the administrative
that are based on the agency's statutory or regulatory penalty, the lead agency or,the director shall take into
authority and the comments of other commenting consideration the nature, Circumstances, extent, and
agencies which are received by the lead agency pursuant gravity of the violation or violations, any prior history of
to Division 13 (commencing with Section 21000) violations, the degree of culpability, economic savings, if
regarding a reclamation plan or plan amendments, the any, resulting from the violation, and any other matters
lead agency shall consider only the comments of the justice may require. Orders setting administrative
trustee agency or responsible agency. penalties shall become effective upon issuance thereof and
(e) Lead agencies shall notify the director of the filing payment shall be made to the lead agency or the director
of an application for a permit to conduct surface mining within 30 days, unless the operator petitions the
operations within 30 days of such an application being legislative body of the lead: agency, the board, or the
filed with the lead agency. By July 1, 1991, each lead superior court for review as provided in Section 2774.2.
agency shall submit to the director for every active or idle Any order shall be served 11 by personal service or by
mining operation within its jurisdiction, a copy of the certified mail upon the operator. Penalties collected by the
mining permit required pursuant to Section 2774, and director shall be used for no purpose other than to cover
any conditions or amendments to those permits. By July the reasonable costs incr rred by the director in
1 of each subsequent year, the lead agency shall submit implementing this chapter ovSection 2207.
to the director for each active or idle mining operation a (d) If the lead agency or the director determines that
copy of any permit or reclamation plan amendments, as the surface mine is not in compliance with this chapter,so
applicable, or a statement that there have been no that the surface mine presents an imminent and
changes during the previous year. Failure to file with the substantial endangerment to the public health or the
11
000092. ?�9
i
environment,the lead agency or the Attorney General,on issuance thereof,unless the operator petitions the superior
behalf of the director, may seek an order from a court of court for review as provided in subdivision (e). Any order
competent jurisdiction enjoining that operation. shall be served by personal service or by certified mail
(e)Upon a complaint by the director,the department, upon the operator. Payment of any administrative penalty
or the board,the Attorney General may bring an action to which is specified in an order issued under subdivision(c),
recover administrative penalties under this section, and shall be made to the lead agency or the director within 30
penalties under Section 2207, in any court of competent days of service of the order; however, the payment shall
jurisdiction in this state against any person violating any be held in an interest bearing impound account pending
provision of this chapter or Section 2207, or any the resolution of a petition for review filed pursuant to
regulation adopted pursuant to this chapter or Section subdivision (e).
2207. The Attorney General may bring such an action on (e) Any operator aggrieved by an order of the
his or her own initiative if, after examining the complaint legislative body or the board issued under subdivision (c)
and the evidence, he or she believes a violation has may obtain review of the order by filing in the superior
occurred. The Attorney General may also seek an order court a petition for writ of mandate within 30 days
from a court of competent jurisdiction compelling the following the issuance of the order. Any operator
operator to comply with this chapter and Section 2207. aggrieved by an order of a lead agency or the director
(f) The lead agency has primary responsibility for setting administrative penalties under subdivision (c) of
enforcing this chapter and Section 2207. In cases Section 2774.1, for which the legislative body or board
where the board is not the lead agency pursuant to denies review, may obtain review of the order in the
Section 2774.4,enforcement actions may be initiated by superior court by filing in the court a petition for writ of
the director pursuant to this section only after the mandate within 30 days following the denial of review.
violation has come to the attention of the director and The provisions of Section 1094.5 of the Code of Civil
either of the following occurs: Procedure shall govern.judicial proceedings pursuant to
(1)The lead agency has been notified by the director this subdivision, except that in every case the court shall
in writing of the violation for at least15days, and has exercise its independent judgment. If the operator does
not taken appropriate enforcement action. not petition for a writ of mandate within the time limits set
(2) The director determines that there is a violation by this subdivision, an order of the board or the legislative
which amounts to an imminent and substantial endanger- body shall not be subject to review by any court or
ment to the public health or safety, or to the agency.
environment. § 2774.3. The board shall review lead agency
The director shall comply with this section in ordinances which establish permit and reclamation
initiating enforcement actions. procedures to determine whether each ordinance is in
(g) Remedies under this section are in addition to, accordance with state policy, and shall certify the
and do not supersede or limit,any and all other remedies, ordinance as being in accordance with state policy if it
civil or criminal. adequately meets,or imposes requirements more stringent
§ 2774.2. (a) Within 30 days of the issuance of an than, the California surface mining and reclamation
order setting administrative penalties under subdivision policies and procedures established by the board pursuant
(c) of Section 2774.1, the operator may petition that to this chapter.
legislative body of the lead agency,if the lead agency has § 2774.4. (a) If the board finds that a lead agency
issued the order, or the board for orders issued by the either has (1) approved reclamation plans or financial
director, for review of the order. If the operator does not assurances which are not consistent with this chapter, (2)
petition for review within the time limits set be this failed to inspect or cause the inspection of surface mining
subdivision, the order setting administrative penalties operations as required by this chapter, (3) failed to seek
shall not be subject to review by any court or agency. forfeiture of financial assurances and to carry out
(b) The legislative body of the lead agency or the reclamation of surface mining operations as required by
board shall notify the operator by personal service or this chapter, (4) failed to take appropriate enforcement
certified mail whether it will review the order setting actions as required by this chapter, (5) intentionally
administrative penalties. In reviewing an order pursuant misrepresented the results of inspections required under
to this section, the record shall consist of the record this chapter, or (6) failed to submit information to the
before the lead agency or the director, and any other department as required by this chapter, the board shall
relevant evidence which, in the judgment of the exercise any of the powers of that lead agency under this
legislative body or the board, should be considered to chapter, except for permitting authority.
effectuate and implement the policies of this chapter. (b) If, no sooner than three years after the board has
(c) The legislative body or the board may affirm, taken action pursuant to subdivision (a), the board finds,
modify, or set aside,in whole or in part,by its own order, after a public hearing,that a lead agency has corrected its
any order of the lead agency or the director setting deficiencies in implementing and enforcing this chapter,
administrative penalties reviewed by the legislative body and the rules and regulations adopted pursuant to this
or the board pursuant to this section. chapter, the board shall restore to the lead agency the
(d) Any order of the legislative body or the board powers assumed by the board pursuant to subdivision(a).
issued under subdivision (c) shall become effective upon
12
000092, �
(c) Before taking any action pursuant to subdivision days, the board shall assume full authority for reviewing
(a), the board shall first notify the lead agency of the and approving reclamation plans submitted to the lead
identified deficiencies, and allows the lead agency 45 agency until the time the lead agency's ordinances are
days to correct the deficiencies to the satisfaction of the revised in accordance with state policy.
board. If the lead agency has not corrected the (b) If, upon review of a lead agency's revised
deficiencies to the satisfaction of the board within the ordinance, the board finds the ordinance is still not in
45-day period, the board shall hold a public hearing accordance with state policy, the board shall again
within the lead agency's area of jurisdiction, upon a 45- communicate the ordinance's deficiencies in writing to the
day written notice given to the public in at least one lead agency. The lead agency shall have a second 90-
newspaper of general circulation within the city or day period in which to revise) the ordinance and submit it
county, and directly mailed to the lead agency and to all to the board for review. If tlpe board again finds that the
surface mining operators within the lead agency's revised ordinance is not in accordance with state policy or
jurisdiction who have submitted reports as required by if no revision is submitted, the board shall assume full
Section 2207. authority for reviewing and approving reclamation plans
(d)Affected surface mining operators and interested submitted to the lead agency until the time the lead
persons have the right, at the public hearing, to present agency's ordinances are revised in accordance with state
oral and written evidence on the matter being considered. policy.
The board may, at the public hearing, place reasonable (c) In any jurisdiction in iwhich the lead agency does
limits on the right of affected surface mining operators not have a certified ordinan4e, no person shall initiate a
and interested persons to question and solicit testimony. surface mining operation unless a reclamation plan has
(e) If, after conducting the public hearing required by been submitted to, and approved by, the board. Any
subdivision(c), the board decides to take action pursuant reclamation plan, approved by a lead agency under the
to subdivision (a) the board shall, based on the record of lead agency's ordinance which was not in accordance
the public hearing, adopt written findings which explain with state policy at the timeof approval, shall be subject
all of the following: to amendment by the board or under the ordinance
(1) The action to be taken by the board. certified by the board as being in accordance with state
(2) Why the board decided to take the action. policy.
(3) Why the action is authorized by, and meets the (d)Reclamation plans approved by the board pursuant
requirements of, subdivision (a). to this section shall not be subject to modification by the
In addition, the findings shall address the significant lead agency at a future datelbut may be amended by the
issues raised, or written evidence presented, by affected board. Reclamation plans approved by the board shall be
surface mining operators, interested persons, or the lead remanded to the lead agencyupon certification of the lead
agency. The transcript of testimony and exhibits, agency's ordinance,and the lead agency shall approve the
together with all papers and requests filed in the reclamation plan as approved by the board, except that a
proceedings, shall constitute the exclusive record for subsequent amendment as may be agreed upon between
decision by the board. the operator and the lead agency may be made according
(f) The lead agency, any affected surface mining to this chapter. No additional public hearing shall be
operator,or any interested person who has presented oral required prior to the lead asency's approval. Nothing in
or written evidence at the public hearing before the board this section shall be construed as authorizing the board to
pursuant to subdivision (d) may obtain review of the issue a permit for the conduct of mining operations.
board's action taken pursuant to subdivision (a) by filing § 2774.6. (a) On or before March 1, 1995, the
in the superior court a petition for writ of mandate within department shall submit to the Governor and the
30 days following the issuance of the board's decision. Legislature a report, prepared by a qualified consultant,
Section 1094.5 of the Code of Civil Procedure governs which may include an educational institution, which
judicial proceedings pursuant to this subdivision, except evaluates the effectiveness' of lead agencies and the
that in every case the court shall exercise its independent department in implementing this chapter and Section
judgment. If a petition for a writ of mandate is not filed 2207, and in meeting the intent of the Legislature as set
within the time limits set by this subdivision, the board's forth in Section 2712. The roport shall be prepared to the
action under subdivision(a)shall not be subject to review extent that funds are appropriated by the Legislature for
by any court or agency. this purpose. Prior to encumbering any funds for
§ 2774.5. (a) If, upon review of an ordinance, the preparation of the report, the board may conduct a public
board finds that it is not in accordance with state policy, hearing to receive and respond to public comments
the board shall communicate the ordinance's deficiencies concerning the scope of issues to be addressed.
in writing to the lead agency. Upon receipt of the written (b) The report shall include, but is not limited to, an
communication, the lead agency shall have 90 days to evaluation of all of the following:
submit a revised ordinance to the board for certification (1)Compliance with this chapter and Section 2207 by
as being in accordance with state policy. The board shall operators of surface mines lead agencies, the State
review the lead agency's revised ordinance for Geologist, the department, and the board.
certification within 60 days of its receipt. If the lead (2) Compliance with the reclamation requirements
agency does not submit a revised ordinance within 90 prescribed in Section 2773.
13
000092 , �/�
(3) The adequacy of resources needed to carry out plan shall not be undertaken until such amendment has
this chapter and Section 2207. been filed with, and approved by, the lead agency.
(4) The adequacy of information available for § 2778. (a) Reclamation plans, reports, applications,
purposes of preparing the report. and other documents submitted pursuant to this chapter
(5) Any recommended changes to administrative are public records, unless it can be demonstrated to the
regulations or recommendations for further legislation. satisfaction of the lead agency that the release of that
§ 2775. (a) An applicant whose request for a permit information, or part thereof, would reveal production,
.to conduct surface mining operations in an area of reserves, or rate of depletion entitled to protection as
statewide or regional significance has been denied by a proprietary information. The lead agency shall identify
lead agency, or any person who is aggrieved by the such proprietary information as a separate part of the
granting of a permit to conduct surface mining operations application. Proprietary information shall be made
in an area of statewide or regional significance, may, available only to the director and to persons authorized in
within 15 days of exhausting his rights to appeal in writing by the operator and by the owner.
accordance with the procedures of the lead agency, (b) A copy of all reclamation plans, reports,
appeal to the board. applications, and other documents submitted pursuant to.
(b) The board may, by regulation, establish this chapter shall be furnished to the director by lead
procedures for declining to hear appeals that it agencies on request.
determines raise no substantial issues. § 2779. Whenever one operator succeeds to the
(c) Appeals that the board does not decline to hear interest of another in any incompleted surface mining
shall be scheduled and heard at a public hearing held operation by sale, assignment, transfer, conveyance,
within the jurisdiction of the lead agency which exchange, or other means, the successor shall be bound
processed the original application within 30 days of the by the provisions of the approved reclamation plan and the
filing of the appeal, or such longer period as may be provisions of this chapter.
mutually agreed upon by the board and the person filing
the appeal. In any such action, the board shall not Article 6. Areas of Statewide
exercise its independent judgment on the evidence but or Regional Significance
shall only determine whether the decision of the lead
agency is supported by substantial evidence in the light § 2790.After receipt of mineral information from the
of the whole record. If the board determines the decision State Geologist pursuant to subdivision (c) of Section
of the lead agency is not supported by substantial 2761,the board may by regulation adopted after a public
evidence in the light of the whole record it shall remand hearing designate specific geographic areas of the state as
the appeal to the lead agency and the lead agency shall areas of statewide or regional significance and specify the
schedule a public hearing to reconsider its action. boundaries thereof. Such designation shall be included as
§ 2776. No person who has obtained a vested right a part of the state policy and shall indicate the reason for
to conduct surface mining operations prior to January 1, which the particular area designated is of significance to
1976, shall be required to secure a permit pursuant to the state or region, the adverse effects that might result
this chapter as long as the vested right continues and as from premature development of incompatible land uses,
long as no substantial changes are made in the operation the advantages that might be achieved from extraction of
except in accordance with this chapter. A person shall the minerals of the area, and the specific goals and
be deemed to have vested rights if, prior to January 1, policies to protect against the premature incompatible
1976, he or she has, in good faith and in reliance upon a development of the area.
permit or other authorization, if the permit or other § 2791.The board shall seek the recommendations of
authorization was required,diligently commenced surface concerned federal, state, and local agencies, educational
mining operations and incurred substantial liabilities for institutions, civic and public interest organizations, and
work and materials necessary therefor. Expenses private organizations and individuals in the identification of
incurred in obtaining the enactment of an ordinance in areas of statewide and regional significance.
relation to a particular operation or the issuance of a § 2792,Neither the designation of an area of regional
permit shall not be deemed liabilities for work or or statewide significance nor the adoption of any
materials. regulations for such an area shall in any way limit or
The reclamation plan required to be filed under modify the rights of any person to complete any
subdivision(b)of Section 2770,shall apply to operations development that has been authorized pursuant to Part 2
conducted after January 1, 1976, or to be conducted. (commencing with Section 11000) of Division 4 of the
Nothing in this chapter shall be construed as Business and Professions Code, pursuant to the
requiring the filing of a reclamation plan for, or the Subdivision Map Act (Division 2 (commencing with
reclamation of, mined lands on which surface mining Section 664101 of Title 7 of the Government Code), or by
operations were conducted prior to January 1, 1976. a building permit or other authorization to commence
§ 2777. Amendments to an approved reclamation development, upon which such person relies and has
plan may be submitted detailing proposed changes from changed his position to his substantial detriment, and,
the original plan. Substantial.deviations from the original which permit or authorization was issued prior to the
14
000092 .`1,
designation of such area pursuant to Section 2790. If a (A) (i) Reclamation and restoration of abandoned
rdeveloper has by his actions taken in reliance upon prior surface mined areas.
egulations obtained vested or other legal rights that in (ii) For purposes of this subparagraph, "abandoned
law would have prevented a local public agency from surface mined area" means mined lands that meet all of
changing such regulations in a way adverse to his the following requirements:
interests, nothing in this chapter authorizes any (1) Mining operations have ceased for a period of one
governmental agency to abridge those rights. year or more.
§ 2793. The board may, by regulation adopted after (11)There is no interim management plan in effect that
a public hearing, terminate, partially or wholly, the meets the requirements of Section 2770.
designation of any area of statewide or regional (III) There are no approved financial assurances that
significance on a finding that the direct involvement of are adequate to perform reclamation in accordance with
the board is no longer required. this chapter.
(IV) The mined lands are adversely affected by past
Article 7. Fiscal Provisions mineral mining, other than mining for coal, oil, and gas,
and mineral material mining.
§ 2795. (a) Notwithstanding any other provision of (B) Reclamation and restoration of abandoned milling
law,the first two million dollars ($2,000,000)of moneys and processing areas.
from mining activities on federal lands disbursed by the (C) Sealing, filling, and grading abandoned deep mine
United States each fiscal year to this state pursuant to entries.
Section 35 of the Mineral Lands Leasing Act,as amended (D) Planting of land adversely affected by past mining
(30 U.S.C. Sec. 191), shall be deposited in the Surface to prevent erosion and sedimentation.
Mining and Reclamation Account in the General Fund, (E) Prevention, abatement, treatment, and control of
which account is hereby created, and may be expended, water pollution created by abandoned mine drainage.
upon appropriation by the Legislature,for the purposes of (F) Control of surface subsidence due to abandoned
this chapter. However, if in any fiscal year, the amount deep mines.
of money disbursed to the state pursuant to Section 35 (G) The expenses necessary to accomplish the
of the Mineral Lands Leasing Act is less than twenty purposes of this section.
million dollars ($20,000,000), then only the first one (3) To the extent those expenditures are allowed by
million one hundred thousand dollars ($1,100,000) of the applicable statutes:
Ohat money shall be deposited in the Surface Mining and (A) Grants to lead agencies for the purposes of
eclamation Account for the next fiscal year. carrying out this chapter.
(b) Proposed expenditures from the account shall be (B) Implementation of this chapter and Section 2207
included in a separate item in the Budget Bill for each by the department, which may include an offsetting
fiscal year for consideration by the Legislature. Each reduction in the amount of reporting fees collected from
appropriation from the account shall be subject to all of each active and idle mining operation and deposited in the
the limitations contained in the Budget Act-and to all Mine Reclamation Account pursuant to subdivision (d) of
other fiscal procedures prescribed by law with respect to the Section 2207, as determined by the director.
the expenditure of state funds. (c) The Abandoned Mine'•Reclamation and Minerals
§ 2796. (a) The Legislature hereby establishes a Fund shall be the depository for all moneys from mining
state abandoned minerals and mineral materials mine activities on federal lands, as to)lows:
reclamation program for the purpose of administering (1) (A) Disbursements mode by the United States
funds received by the state under the Surface Mining each fiscal year to this state pursuant to Section 35 of the
Control and Reclamation Act of 1977, or through Mineral Lands Leasing Act (310 U.S.C. Sec. 191), with
amendments to the federal general mining laws (30 respect to royalties levied on the production of locatable
U.S.C. Secs. 1, 12A, 16, 161, and 162, and 602, et minerals or mineral concentrates from any mining claim
seq.). located on federal lands in the state pursuant to the
(b)There is hereby created in the State Treasury,the pending federal legislation amending the federal general
Abandoned Mine Reclamation and Minerals Fund. The mining laws, but excluding ;oil, gas, and geothermal
money in the fund may be expended, upon appropriation revenues.
by the Legislature, as required by federal legislation (B) The federal funds specified in this paragraph do
amending the federal general mining laws, and for the not include the funds deposited in the Surface Mining and
following purposes: Reclamation Account pursuant%to Section 2795,the funds
(1) Development of an inventory of mined lands, deposited in the Geothermal Resources Development
water, and facilities eligible for reclamation. Account pursuant to Section 3820,or the funds deposited
(2) Establishment by the director of the abandoned in the State School Fund pursuant to Section 12320 of
minerals and mineral materials mine reclamation program the Education Code.
0pursuant to the pending federal legislation amending the (2) Grants made by the Secretary of the Interior to
ederal general mining laws, if enacted, that provides for this state from the Abandoned'Minerals Mine Reclamation
all of the following. Fund pursuant to the pending federal legislation amending
15
000092,i
the federal general mining laws,for the implementation of NOTE: Section 2796 shall become operative upon the
an abandoned minerals and mining materials mine effective date of any federal legislation which is enacted
reclamation program. requiring the payment of a royalty on the production of
(d) The expenditure of money from the Abandoned locatable minerals, produced from any mining claim
Mine Reclamation and Minerals Fund shall reflect the located or converted on federal lands in this state,
following priorities and other priorities as specified in excluding royalties paid on oil, gas, and geothermal lease
federal statute in the following ranking: activities,and not already subject to disposition under any
(1)The protection of public health and safety and the of the following:
environment from the adverse effects of past minerals (1) The Mineral Lands Leasing Act (30 U.S.C. Sec. 191).
and mineral materials mining practices. (2) The Geothermal Steam Act of 1970 (30 U.S.C. Sec.
(2) The protection of property that is in extreme 100).
danger as a result of past minerals and mineral materials (3) The Materials Act of 1947 (30 U.S.C. Sec. 601).
mining practices. (4) The Mineral Leasing Act for Acquired Lands
(3) The restoration of land and water resources (30 U.S.C. Sec. 351).
previously degraded by the adverse effects of past
minerals and mineral materials mining practices.
(e)Proposed expenditures from the Abandoned Mine
Reclamation and Minerals Fund shall be included in a
separate item in the Budget Bill for each fiscal year for
consideration by the Legislature. Each appropriation from
the fund shall be subject to all the limitations contained
in the Budget Act and to all other fiscal procedures
prescribed by law with respect to the expenditure of
state funds.
LIABILITY LIMITATIONS FOR
REMEDIATION/RECLAMATION OF ABANDONED MINES
See Water Code Section 13397 et seq.
(Added by SB 1 108 [Leslie, Chapter 878, Statutes of 19951)
NOTE: While this section amends the California Water
Code, liabilities under the federal Clean Water Act may
remain until similar federal amendments are adopted.
16 000092 , �/
ANNUAL REPORTING REQUIREMENTS
AND REPORTING FEE
Public Resources Code Section 2207
(Repealed and added by AB 3551, Chapter 1097, Statutes of 1990, Sher,
Amended by AB 3903, Chapter 1101, Statutes of 1990, Sher, AB 1509, Chapter 845,.
Statutes of 1991, Sher, AB 3098, Chapter 1077, Statutes of 1992, Sher, and
SB 741, Chapter 1287, Statutes of 1993, Rogers)
§ 2207(a)The owner,lessor,lessee, agent,manager, (b) Every year, not later than the anniversary date
or other person in charge of any mining operation of established by the director, the person submitting the
whatever kind or character within the state shall forward report pursuant to subdivision(a)shall forward to the lead
to the director not later than July 1, 1991,and every year agency,upon forms which shall be furnished by the board,
thereafter not later than an anniversary date established a report which provides all of the information specified in
by the director, upon forms which will be furnished by the paragraphs (1) to (14), incllusive, of subdivision (a).
board, a report which identifies all of the following: (c) Subsequent reports shall include only changes in
(1) The name, address, and telephone number of the the information submitted for the items described in
person, company,or other owner of the mining operation. subdivision (a), except that, instead of the approved
(2) The name, address, and telephone number of a reclamation plan,the repor>fs shall include any reclamation
designated agent who resides in this state, and who will plan amendments approved during the previous year.The
receive and accept-service of all orders, notices, and reports shall state whether review of a reclamation plan,
processes of the lead agency, board, director, or court. financial assurances, or an interim management plan is
(3)The location of the mining operation,its name,its pending under subdivision (b), (c), (d), or (h) of Section
mine number as issued by the Bureau of Mines or the 2770, or whether an appeal before the board or lead
director, its section, township, range, latitude, longitude, agency governing body is pending under subdivision(e)or
and approximate boundaries of the mining operation (h) of Section 2770. The director shall notify the person
marked on a United States Geological Survey 7%s-minute submitting the report and the owner's designated agent in
or 15-minute quadrangle map. writing that the report and the fee required pursuant to
(4) The lead agency. subdivision(d)have been received,specify the anniversary
(5) The approval date of the mining operation's date by which the mining operation shall submit reports,
reclamation plan. specify the mining operation's mine number if one has not
(6) The mining operation's status as active, idle, been issued by the Bureau of Mines,and notify the person
reclaimed, or in the process of being reclaimed. and agent of any deficiencies in the report within 90 days
(7) The commodities produced by the mine and the of receipt. That person or$gent shall have 30 days from
type of mining operation. receipt of the notification to correct the noted deficiencies
(8) Proof of annual inspection by the lead agency, and forward the revised reports to the director and the
starting with the 1992 report. lead agency. Any person who fails to comply with this
(9) Proof of financial assurances. section, or knowingly provides incorrect or false
(10)Ownership of the property,including government information in reports required by this section, may be
agencies, if applicable, by the assessor's parcel number, subject to an administrative penalty as provided in
and total assessed value of the mining operation. subdivision (c) of Section 2774.1.
(11) The approximate permitted size of the mining (d)(1)The board shall impose,by regulation,pursuant
operation subject to Chapter 9 (commencing with to paragraph (2), an annual reporting fee on, and method
Section 2710), in acres. for collecting annual fees from, each active or idle mining
(12) The approximate total acreage of land newly operation. The maximum: fee for any single mining
disturbed by the mining operation during the previous operation shall not exceed two thousand dollars ($2,000)
calendar year. annually and shall not be less than fifty dollars ($50)
(13) The approximate total of disturbed acreage annually.
reclaimed during the previous calendar year. (2) The board shall adopt, by emergency regulations,
(14) The approximate total unreclaimed disturbed a schedule of fees authorized under paragraph(1)to cover
acreage remaining as of the end of the calendar year. the department's cost in +carrying out this section and
0 5)The total production for each mineral commodity Chapter 9 (commencing with Section 2710), as reflected
produced during the previous year. in the Governor's Budget. In establishing the schedule of
(16)A copy of any approved reclamation plan and any fees to be paid by each active and idle mining operation,
amendments or conditions of approval to any existing the fees shall be calculated on an equitable basis reflecting
reclamation plan approved by the lead agency. the size and type of operation. The board shall also
17
000092. 4A
consider the total assessed value of the mining operation, (f) For purposes of this section, "mining operation"
the acreage disturbed by mining activities,and the acreage has the same meaning as "surface mining operation" as
subject to the reclamation plan. defined in Section 2735, unless excepted by
(3) For the 1991-92 fiscal year the total revenue Section 2714. For the purposes of fee collections only,
generated by the reporting fees established pursuant to "mining operation" may include one or more mines
this subdivision shall not exceed, and may be less than, operated by a single operator or mining company on one
one million one hundred thirty-two thousand dollars or more sites, if the total annual combined mineral
($1,132,000), which shall be adjusted in the 1992-93 and production for all sites is less than 100 troy ounces for
1993-94 fiscal years to reflect increases in the cost of precious metals,if precious metals are the primary mineral
living, as measured by the California Consumer Price Index commodity produced, or less than 100,0.00 short tons if
for all urban consumers, calendar year averages,using the the primary mineral commodity produced is not precious
percentage change in the previous year. Beginning in the metals.
1994-95 fiscal year, and for subsequent fiscal years the (g) Any information in reports submitted pursuant to
total revenue generated by the reporting fees shall not subdivision (a) which includes or otherwise indicates the
exceed, and may be less than, the amount of one million total mineral production, reserves, or rate of depletion of
dollars ($1 000,000), as adjusted for the cost of living any mining operation shall not be disclosed to any member
beginning with the 1991-92 fiscal year and annually of the public,as defined in subdivision(f)of Section 6252
thereafter. If the director determines that the revenue of the Government Code. Other portions of the reports
collected during the preceding fiscal year was greater or are public records unless excepted by statute. Statistical
less than the cost to operate the program, the board shall bulletins based on these reports and published under
adjust the fees to compensate for the overcollection or Section 2205 shall be compiled to show, for the state as
undercollection of revenues. a whole and separately for each lead agency, the total of
(4) The emergency regulations adopted pursuant to each mineral produced therein. In order not to disclose
paragraph(2) shall be adopted by the board in accordance the production, reserves, or rate of depletion from any
with Chapter 3.5 (commencing with Section 11340) of identifiable mining operation,no production figure shall be
Part 1 of Division 3 of Title 2 of the Government Code. published or otherwise disclosed unless that figure is the
The adoption of these regulations is an emergency and aggregated production of not less than three mining
shall be considered by the Office of Administrative Law as operations. if the production figure for any lead agency
necessary for the immediate preservation of the public would disclose the production, reserves, or rate of
peace, health, safety, and general welfare. depletion of less than three mining operations or otherwise
(5) The reporting fees established pursuant to this permit the reasonable inference of the production,
subdivision shall be deposited in the Mine Reclamation reserves, or rate of depletion of any identifiable mining
Account, which is hereby created. Any fees, penalties, operation, that figure shall be combined with the same
interest, fines, or charges collected by the director or such figure of not less than two other lead agencies
board pursuant to this chapter or Chapter 9 (commencing without regard to the location of the lead agencies. The
with Section 2710) shall be deposited in the Mine bulletin shall be published annually by June 30th or as
Reclamation Account. The money in the account shall be soon thereafter as practicable.
available to the department and board,upon appropriation
by the Legislature, solely to carry out this section and
Chapter 9 (commencing with Section 2710), and up to
three hundred thousand dollars ($300,000) shall be
available to the department upon appropriation by the
Legislature to contract for preparation of the report
required by Section 2774.6.
(6) In case of late payment of the reporting fee, a
penalty of not less than one hundred dollars($100)or 10
percent of the amount due, whichever is greater, plus
interest at the rate of 1 '/z percent per month, computed
from the delinquent date of the assessment until and
including the date of payment, shall be assessed. New
mining operations which have not submitted a report shall
submit a report prior to commencement of operations.
The new operation shall submit its fee according to the
reasonable fee schedule adopted by the board, and the
month that the report is received shall become that
operation's anniversary month.
(e) The lead agency may impose a fee upon each
mining operation to cover the reasonable costs incurred
in implementing this chapter and Chapter 9 (commencing
with Section 2710) .
18
000092 . ,�1�,'
I
SITE INSPECTIONS CONDUCTED BY THE
DEPARTMENT OF CONSERVATION
Public Resources Code Section 2208
(Amended by AB 2943 [Allen, Chapter 999, Statutes of 19$21)
§ 2208. The director or a qualified assistant may at
any time enter or examine any and all mines, quarries,
wells, mills, reduction works, refining works, and other
mineral properties or working plants in this state in order
to gather data to comply with the provisions of this
chapter.
PURCHASE AND USE OF MINED MATERIALS
BY STATE AGENCIES
Public Contract Code Section 10295.5
(Amended by AB 3098 [Sher, Chapter 1077, Statutes of 19921
and AB 723 [Sher, Chapter 278, Statutes of 19931)
10295.5 (a) Notwithstanding any other provision of inorganic processes and organic substances,including,but
law,no state agency shall purchase or utilize sand,gravel, not limited to, coal, peat, and bituminous rock, but
aggregates, or other minerals produced from a surface excluding geothermal resources, natural gas, and
mining operation subject to the Surface Mining and petroleum.
Reclamation Act of 1975 (Chapter 9 (commencing with (d) The requirements of this section shall apply to
Section 2710) of Division 2 of the Public Resources mining operations on federal lands or Indian lands that are
Code), unless the operation is identified in the list subject to the Surface Mining and Reclamation Act of
published pursuant to subdivision (b) of Section 2717 of 1975 (Chapter 9 (commencing with Section 2710) of
the Public Resources Code as having either of the Division 2 of the Public Resources Code) pursuant to a
following: memorandum of understanding between the Department
(1) An approved reclamation plan and financial of Conservation and the federal agency having jurisdiction
assurances covering the affected surface mining over the lands.
operation. (e)(1) This section does not apply to construction or
(2) An appeal pending before the State Mining and maintenance contracts if the contractor has entered into
Geology Board pursuant to subdivision(e)of Section 2770 a written subcontract, executed prior to July 1, 1993, for
of the Public Resources Code with respect to the the purchase of materials from a mine operator that would
reclamation plan or financial assurances. not otherwise qualify under the list published pursuant to
(b) The Department of General Services shall revise subdivision (b) of Section 2717 of the Public Resources
its procedures and procurement specifications for state Code.
purchases of sand, gravel, aggregates, and other minerals (2) This subdivision shall become inoperative on
to ensure maximum compliance with this section. July 1, 1996.
(c) For purposes of the section, "minerals" means (f) This section shall become operative on
any naturally occurring chemical element or compound,or July 1, 1993.
groups of elements and compounds, formed from
0
19
000092, �f
STATE MINING AND GEOLOGY BOARD
RECLAMATION REGULATIONS
Article 1.Surface Mining and Reclamation Practice
§ 3500. Purpose. It is the purpose of this subchapter Surface Mining Operations. In addition. to the
to establish state policy for the reclamation of mined provisions of Section 2735 of the Act, borrow pitting,
lands and the conduct of surface mining operations in streambed skimming,segregation and stockpiling of mined
accord with the general provisions set forth in Public materials(and recovery of same)are deemed to be surface
Resources Code, Division 2, Chapter 9, Section 2710 et mining operations unless specifically excluded under
seq. (Surface Mining and Reclamation Act of 1975, as Section 2714 of the Act or Section 3505 of these
amended by Statutes of 1980)• regulations.
Note: Authority cited: Section 2755, Public Resources Temporarily Deactivated Operation. A surface mine
Code. Reference: Sections 2710-2795, Public Resources that has been closed down and that the operator has
Code. maintained in the expectation of reopening it when the
§ 3501.Definitions. The following definitions as used conditions justify.
herein shall govern the interpretation of these regulations: Topsoil. The upper part of the soil.profile that is
Angle of Repose. The maximum angle of slope relatively rich in humus, which is technically known as the
(measured from horizontal plane) at which loose A-horizon of the soil profile.
cohesionless material will come to rest on a pile of similar NOTE: Authority cited: Section 2755, Public Resources
material. Code. Reference: Sections 2726-2735, Public Resources
Backfill. Earth, overburden, mine waste or imported Code.
material used to replace material removed during mining. § 3502. The Reclamation.Plan.
Borrow Pits. Excavations created by the surface (a) Objectives. Reclamation plans shall be developed
mining of rock,unconsolidated geologic deposits or soil to to attain the objectives of Public Resources Code Section
provide material (borrow) for fill elsewhere. 2712(a)-(c).
Critical Gradient. The maximum stable inclination of (b) Reclamation Plan Elements. In addition to the
an unsupported slope under the most adverse conditions information required by Public Resources Code Section
that it will likely experience, as determined by current 2772, the following elements shall be included in the
engineering technology. reclamation plan:
Excavations for On-Site Construction. Earth material (1)The environmental setting of the site of operations
moving activities that are required to prepare a site,for and the effect that possible alternate reclaimed site
construction of structures, landscaping, or other land conditions may have upon the existing and future uses of
improvements (such as excavation, grading, compaction, surrounding lands.
and the creation of fills and embankments), or that in and (2)The public health and safety, giving consideration
of themselves constitute engineered works(such as dams, to the degree and type of present and probable future
road cuts, fills, and catchment basins). exposure of the public to the site.
Grading. To bring an existing surface to a designed (3) The designed steepness and proposed treatment
form by cutting, filling, and/or smoothing operations. of the mined lands' final slopes shall take into
Minerals.Any naturally occurring chemical element or consideration the physical properties of the slope material,
compound,or groups of elements and compounds,formed its probable maximum water content, landscaping-
from inorganic processes and organic substances, requirements, and other factors. In all cases, reclamation
including, but not limited to, coal, peat, and bituminous plans shall specify slope angles flatter than the critical
rock,but excluding geothermal resources,natural gas,and gradient for the type of material involved. Whenever final
petroleum. slopes approach the critical gradient for the type of
Person.Any individual,firm,association,corporation, material involved, regulatory agencies shall require an
organization, or partnership, or any city, county, district, engineering analysis of the slope stability. Special
or the state or any department or agency thereof. emphasis on slope stability and design shall be necessary
Reclamation Plan. The applicant's (operator's) completed when public safety or adjacent property maybe affected.
and approved plan for reclaiming the lands affected by his (4) Areas mined to produce additional materials for
surface mining operations conducted after January 1, backfilling and grading, as well as settlement of filled
1976, as called for in Section 2772 of the Act. areas, shall be considered in the reclamation plan. Where
Resoiling. The process of artificially building or ultimate site uses include roads, building sites, or other
reconstructing a soil profile. improvements sensitive to settlement, the reclamation
Stream Bed Skimming. Excavation of sand and gravel plans shall include compaction of the fill materials in
from stream bed deposits above the mean summer water conformance with good engineering practice.
level or stream bottom, whichever is higher. (5) Disposition of old equipment.
20
000092 , � '
(6) Temporary stream or watershed diversions. characteristics, and climate of the mined areas shall be
(c) Adequacy. In judging the adequacy of a particular used.
reclamation plan in meeting the requirements described NOTE: Authority cited: Section 2755, Public Resources
herein and within the Act, the lead agency shall consider Code. Reference: Sections 2756 and 2757, Public
the physical and land-use characteristics of the mined Resources Code.
lands and their surrounding area pursuant to Public § 3504. Administration by Lead Agency.
Resources Code Section 2773. (a) Record Keeping. The lead agency shall establish
NOTE: Authority cited: Section 2755, Public Resources and maintain inhouse measures and procedures to ensure
Code.Reference:Sections 2712(a)—(c),2756-2757,2770 organized record-keeping and monitoring of surface mining
and 2772-2773, Public Resources Code. reclamation under its jurisdiction. The lead agency shall
§ 3503. Surface Mining and Reclamation Practice. forward a copy of each permit and approved reclamation
The following are minimum acceptable practices to be plan to the California Division of Mines and Geology
followed in surface mining operations: (Sacramento).
(a) Soil Erosion Control. (b) Performance Assurances. The lead agency shall
(1) The removal of vegetation and overburden,if any, ensure that the objectives of the reclamation plan will be
in advance of surface mining shall be kept to the attained. This may include provisions for liens, surety
minimum. bonds or other security, to guarantee the reclamation in
(2) Stockpiles of overburden and minerals shall be accordance with the approved reclamation plan.
managed to minimize water and wind erosion. NOTE: Authority cited: Section 2755, Public Resources
(3) Erosion control facilities such as retarding basins, Code. Reference: Sections 2757, 2758(b), 2774(a) and
ditches, streambank stabilization, and diking shall be 2778, Public Resources Code.
constructed and maintained where necessary to control § 3505. Special Provisions.
erosion. (a) Exemptions. In addition to the provisions of Public
(b) Water Quality and Watershed Control. Resources Code Section 2714(a). (c) and (d), any surface
(1) Settling ponds or basins shall be constructed to mining operation that does nmt involve either the removal
prevent potential sedimentation of streams at operations of a total of more than 1000 qubic yards of minerals,ores,
where they will provide a significant benefit to water and overburden, or involve more than one acre in any one
quality. location, shall be exempt from the provisions of the Act.
(2) Operations shall be conducted to substantially (b) Vested Rights. The permit and reclamation plan
prevent siltation of ground-water recharge areas. requirements for persons with vested rights are stated in
(c) Protection of Fish and Wildlife Habitat. All Public Resources Code Section 2776.
reasonable measures shall be taken to protect the habitat Where a person with vested rights continues surface
of fish and wildlife. mining in the same area subsequent to January 1, 1976,
(d) Disposal of Mine Waste Rock and Overburden. he shall obtain an approval of,a reclamation plan covering
Permanent piles or dumps of mine waste rock and the mined lands disturbed by such subsequent surface
overburden shall be stable and shall not restrict the natural mining. In those cases where an overlap exists (in the
drainage without suitable provisions for diversion. horizontal and/or vertical sense) between pre- and post-
(e) Erosion and Drainage. Grading and revegetation Act mining, the reclamation plan shall call for reclamation
shall be designed to minimize erosion and to convey proportional to that disturbance caused by the mining after
surface runoff to natural drainage courses or interior the effective date of the Act.'^
basins designed for water storage. Basins that will store NOTE:Authority cited:Sections 2714(d)and 2755,Public
water during periods of surface runoff shall be designed to Resources Code. Reference: Sections 2714, 2758(c) and
prevent erosion of spillways when these basins have 2776, Public Resources Code.
outlet to lower ground.
(f) Resoiling. When the reclamation plan calls for Article 6. Mineral Resource Management Policies
recoiling, coarse hard mine waste shall be leveled and
covered with a layer of finer material or weathered waste. § 3675.Definitions. The following definitions as used
A soil layer shall then be placed on this prepared surface. herein shall govern the interpretation of these regulations:
Surface mines that did not salvage soil during their initial Compatible Land Use.Land uses inherently compatible
operations shall attempt, where feasible, to upgrade with mining and/or that require a minimum public or
remaining materials.The use of soil conditioners,mulches, private investment in structures, land improvements, and
or imported topsoil shall be considered where revegetation which may allow mining because of the relative economic
is part of the reclamation plan and where such measures value of the land and its improvements. Examples of such
appear necessary. It is not justified, however, to denude uses may include, but shall not be limited to, very low
adjacent areas of their soil, for any such denuded areas density residential, geographically extensive but low
must in turn be reclaimed. impact industrial, recreational, agricultural, silvicultural,
(g) Revegetation. When the reclamation plan calls for grazing, and open space.
0revegetation the available research addressing Incompatible Land Use;. Land uses inherently
revegetation methods and the selection of species having incompatible with mining and/or that require public or
good survival characteristics,for the topography,resoiling private investment in structures, land improvements, and
21
1
000092,
landscaping and that may prevent mining because of the (2) they are consistent with the planned or actual
greater economic value of the land and its improvements. subsequent use or uses of the mining site.
Examples of such uses may include, but shall not be (b) Where an applicant demonstrates to the
limited to, high density residential, low density residential satisfaction of the lead agency that an exception to the
with high unit value,public facilities,geographically limited standards specified in this article is necessary based upon
but impact intensive industrial, and commercial. the approved end use, the lead agency may approve a
NOTE: Authority cited: Section 2755, Public Resources different standard for inclusion in the approved
Code. Reference: Sections 2761-2762, Public Resources reclamation plan. Where the lead agency allows such an
Code. exception, the approved reclamation plan shall specify
§ 3676. Mineral Resource Management Policies. verifiable,site-specific standards for reclamation.The lead
Lead agency mineral resource management policies agency may set standards which are more stringent than
adopted pursuant to the provisions of PRC Section 2762 the standards set forth in this Article;however, in no case
shall include but not be limited to, the following: may the lead agency approve a reclamation plan which
(a) A summary of the information provided by the sets any standard which is less stringent than the
classification and/or designation reports, or incorporation comparable standard specified in this Article.
of PRC Sections 2710 et seq., and state policy by (c) When substantial amendments are proposed to
reference, together with maps of the identified mineral reclamation plans which were approved prior to January
deposits or incorporation by reference of the classification 15, 1993, the standards set forth in this Article shall be
and/or designation maps provided by the Board. applied by the lead agency in approving or denying
(b) Statements of policy in accordance with the approval of the amended reclamation plan.
provisions of PRC Section 2762(a). (d) The standards in this Article shall not apply to
(c) Implementation measures that shall include: mining operations:
(1) Reference in the general plan of the location of (1) which completed reclamation prior to January 15,
identified mineral deposits,and a discussion of those areas 1993,in conformance with an approved reclamation plan;
targeted for conservation and possible future extraction by or
the lead agency. (2) for which a reclamation plan has been approved
(2) Use of overlay maps or inclusion of information on prior to January 15, 1993.
any appropriate planning maps to clearly delineate NOTE: Authority cited: Sections 2755, 2756 and 2773,
identified mineral deposits and those areas targeted by the Public Resources Code. Reference: Section 2773, Public
lead agency for conservation and possible future Resources Code.
extraction. § 3701. Definitions.. The following definitions shall
(3) At least one of the following: govern the interpretation of these regulations:
(A) Use of special purpose overlay zones, mineral "Arid",means landscapes with an average annual
resource/open space zoning, or any other appropriate precipitation of five inches or less.
zoning that identifies the presence of identified mineral "Contamination" means an impairment of the quality
deposits and restricts the encroachment of incompatible of the waters of the state to a degree whichcreates a
land uses in those areas that are to be conserved. hazard to the public health through poisoning or through
(B) Record, on property titles in the affected mineral the spread of disease.
resource areas, a notice identifying the presence of "Highwall" means the unexcavated face of exposed
identified mineral deposits. overburden and ore in a surface mine.
(C) Impose conditions upon incompatible land uses in "Indigenous Plants" means plants occurring naturally
and surrounding areas containing identified mineral in an area, not introduced.
deposits for the purpose of mitigating the significant land "Native Species" means plant species indigenous to
use conflicts prior to approving a use that would California, using pre-European as the historic time
otherwise be incompatible with mineral extraction. reference.
NOTE: Authority cited: Section 2755, Public Resources "Noxious Weeds" means any species of plant that is
Code. Reference: Sections 2757 and 2761-63, Public or is likely to become destructive or difficult to control or
Resources Code. eradicate, and is termed to be so by the Director of the
Department of Food and Agriculture in section 4500,Title
Article 9. Reclamation Standards 3 of the California Code of Regulations, pursuant to the
Food and Agriculture Code section 5004 et seq.
§ 3700. Applicability. Reclamation of mined lands "Vegetative Cover" means the vertical projection of
shall be implemented in conformance with the standards the crown or shoot area of a species to the ground surface
in this Article. expressed as a percentage of the reference area
(a) The standards shall apply to each surface mining (percentage can be greater than 100 percent).
operation to the extent that: "Vegetative Density"means the number of individuals
(1) they are consistent with required mitigation or stems of each species rooted within the given reference
identified in conformance with the California area.
Environmental Quality Act, provided that such mitigation "Vegetative Species-richness" means the number of
is at least as stringent as the standards; and different plant species within the given reference'area.
22
000092, 50
i
"Wetlands" for the purposes of these regulations,the other methods approved by the lead agency as appropriate
,definition of wetlands shall be the same as defined in the for the approved end use.
California Fish and Game Code,section 2785,subdivision (b) Where backfilling is required for resource
(g). conservation purposes (e.g., agriculture, fish and wildlife
NOTE: Authority cited: Sections 2755, 2756 and 2773, habitat, and wildland conservation), fill material shall be
Public Resources Code. Reference: Section 2773, Public backfilled to the standards required for the resource
Resources Code. conservation use involved.
§ 3702. Financial Assurances. Lead agencies shall (c) Piles or dumps of mining waste shall be stockpiled
require financial assurances for reclamation in accordance in such a manner as to facilitate phased reclamation.They
with Public Resources Code section 2773.1 to ensure that shall be segregated from topsoil and topsoil substitutes or
reclamation is performed in accordance with the approved growth media salvaged for use in reclamation.
reclamation plan and with this article. (d) Final reclaimed fill slopes, including permanent
NOTE:Authority cited: Sections 2755,2773 and 2773.1, piles or dumps of mine waste rock and overburden, shall
Public Resources Code. Reference: Sections 2773 and not exceed 2:1 (horizontai:vertical), except when site-
2773.1, Public Resources Code. specific geologic and engineering analysis demonstrate
§ 3703. Performance Standards for Wildlife Habitat. that the proposed final slope,'will have a minimum slope
Wildlife and wildlife habitat shall be protected in stability factor of safety that;is suitable for the proposed
accordance with the following standards: end use, and when the proposed final slope can be
(a) Rare, threatened or endangered species as listed successfully revegetated.
by the California Department of Fish and Game, (California (e)At closure, all fill slopes,including permanent piles
Code of Regulations, Title 14, sections 670.2-670.5) or or dumps of mine waste and overburden, shall conform
the U. S. Fish and Wildlife Service, (50 CFR 17.11 and with the surrounding topography and/or approved end use.
17.12) or species of special concern as listed by the (f) Cut slopes, including,final highwalls and quarry
California Department of Fish and Game in the Special faces,shall have a minimum slope stability factor of safety
Animals List, Natural Diversity Data Base, and their that is suitable for the proposed end use and conform with
respective habitat,shall be conserved as prescribed by the the surrounding topography and/or approved end use.
federal Endangered Species Act of 1973, 16 U.S.C. (g) Permanent placement':of piles or dumps of mining
section 1531 at. seq., and the California Endangered waste and overburden shall root occur within wetlands
Species Act, Fish and Game Code section 2050 et seq. If unless mitigation acceptable to the lead agency has been
avoidance cannot be achieved through the available proposed to offset wetland impacts and/or losses.
alternatives, mitigation shall be proposed in accordance NOTE: Authority cited: Sections 2755, 2756 and 2773,
with the provisions of the California Endangered Species Public Resources Code. Reference: Section 2773, Public
Act, Fish and Game Code section 2050 et seq., and the Resources Code.
federal Endangered Species Act of 1973, 16 U.S.C. § 3705. Performance Standards for Revegetation.
section 1531 et seq.. Revegetation shall be part of the approved plan,
(b) Wildlife habitat shall be established on disturbed unless it is not consistent with the approved end use.
land in a condition at least as good as that which existed (a) A vegetative cover suitable for the proposed end
before the lands were disturbed by surface mining use and capable of self-regeneration without continued
operations, unless the proposed end use precludes its use dependence on irrigation, soil amendments or fertilizer
as wildlife habitat or the approved reclamation plan shall be established on disturbed land unless an artificially
establishes a different habitat type than that which existed maintained landscape is consistent with the approved
prior to mining. reclamation plan. Vegetative cover or density, and
(c) Wetland habitat shall be avoided. Any wetland species-richness shall be, where appropriate, sufficient to
habitat impacted as a consequence of surface mining stabilize the surface against effects of long-term erosion
operations shall be mitigated at a minimum of one to one and shall be similar to naturally occurring habitats in the
ratio for wetland habitat acreage and wetland habitat surrounding area. The vegetative density, cover and
value. species richness of naturallyoccurring habitats shall be
NOTE: Authority cited: Sections 2755, 2756 and 2773, documented in baseline studies carried out prior to the
Public Resources Code. Reference: Section 2773, Public initiation of mining activities.iHowever, for areas that will
Resources Code. not be reclaimed to prior cone itions, the use of data from
§ 3704. Performance Standards for Backfilling, reference areas in lieu of basgline site data is permissible.
Regrading, Slope Stability, and Recontouring. Backfilling, (b) Test plots conducted;simultaneously with mining
regrading, slope stabilization, and recontouring shall shall be required to determine the most appropriate
conform with the following standards: planting procedures to be followed to ensure successful
(a) Where backfilling is proposed for urban uses (e.g., implementation of the proposed revegetation plan. The
roads, building sites, or other improvements sensitive to lead agency may waive the tequirement to conduct test
settlement), the fill material shall be compacted in plots when the success of the proposed revegetation plan
accordance with section 7010,Chapter 70 of the Uniform can be documented from experience with similar species
Building Code, published by the International Conference and conditions or by relying on competent professional
of Building Officials(1991),the local grading ordinance,or
23
UUUU9ti. S/
i
advice based on experience with the species to be prevent spreading to nearby areas;and(3)to eliminate fire
planted. hazard.
(c) Where surface mining activities result in (1) Protection measures, such as fencing of
compaction of the soil, ripping, disking, or other means revegetated areas and/or the placement of cages over
shall be used in areas to be revegetated to eliminate individual plants, shall be used in areas where grazing,
compaction and to establish a suitable root zone in trampling,herbivory,or other causes threaten the success
preparation for planting. of the proposed revegetation. Fencing shall be maintained
(d) Prior to closure, all access roads, haul roads, and until revegetation efforts are successfully completed and
other traffic routes to be reclaimed shall be stripped of any the lead agency authorizes removal.
remaining roadbase materials,prepared in accordance with (m) Success of revegetation shall be judged based
subsection 3705(g), covered with suitable growth media upon the effectiveness of the vegetation for the approved
or topsoil, and revegetated. When it is not necessary to end use, and by comparing the quantified measures of
remove roadbase materials for revegetative purposes,lead vegetative cover, density, and species-richness of the
agencies may set a different standard as specified in reclaimed mined-lands to similar parameters of naturally
section 3700(b) of this Article. occurring vegetation in the area. Either baseline data or
(e) Soil analysis shall be required to determine the data from nearby reference areas may be used as the
presence or absence of elements essential for plant standard for comparison. Quantitative standards for
growth and to determine those soluble elements that may success and the location(s) of the reference area(s) shall
be toxic to plants, if the soil has been chemically altered be set forth in the approved reclamation plan.
or if the growth media consists of other than the native Comparisons shall be made until performance standards
topsoil. If soil analysis suggests that fertility levels or soil are met provided that,during the last two years,there has
constituents are inadequate to successfully implement the been no human intervention, including, for example,
revegetative program, fertilizer or-other soil amendments irrigation, fertilization, or weeding. Standards for success
may be incorporated into the.soil. When native plant shall be based on expected local recovery rates. Valid
materials are used,. preference shall be given to slow sampling techniques for measuring success shall be
release fertilizers, including mineral and organic materials specified in the approved reclamation plan. Sample sizes
that mimic natural sources,and shall be added in amounts must be sufficient to produce at least an 80 percent
similar to those found in reference soils under natural confidence level.There are standard statistical methods in
vegetation of the type being reclaimed. commonly available literature for determining an 80
(f) Temporary access for exploration or other short- percent confidence level on a site-by-site basis. Examples
term uses on and lands shall not disrupt the soil surface of such literature include, but are not limited to, D.
except where necessary to gain safe access. Barriers shall Mueller-Dombois and H. Ellenberg, 1974, "Aims and
be installed when necessary to gain safe access. Barriers Methods of Vegetation Ecology", John Wiley and Sons,
shall be installed when necessary to prevent unauthorized Inc., or C. D. Bonham, 1988, "Measurements for
vehicular traffic from interfering with the reclamation of Terrestrial Vegetation", John Wiley and Sons, Inc., and
temporary access routes. are available at many university libraries: The texts are
(g)Native plant species shall be used for revegetation, also available at some local libraries through the Inter-
except when introduced species are necessary to meet the Library Loan Program.
end uses specified in the approved reclamation plan.Areas NOTE: Authority cited: Sections 2755, 2756 and 2773,
to be developed for industrial, commercial, or residential Public Resources Code. Reference: Section 2773, Public
use shall be revegetated for the interim period, as Resources Code.
necessary, to control erosion. In this circumstance, non- § 3706. Performance Standards for Drainage,
native plant species may be used if they are not noxious Diversion Structures, Waterways, and Erosion Control.
weeds and if they are species known not to displace (a) Surface mining and reclamation activities shall be
native species in the area. conducted to protect on-site and downstream beneficial
(h) Planting shall be conducted during the most uses of water in accordance with the Porter-Cologne
favorable period of the year for plant establishment. Water Quality Control Act,Water Code section 13000,et
(i) Soil stabilizing practices shall be used where seq., and the Federal Clean Water Act, 33 U.S.C. section
necessary to control erosion and for successful plant 1251, et seq.
establishment.-Irrigation may be used when necessary to (b) The quality of water, recharge potential, and
establish vegetation. storage capacity of ground water aquifers which are the
(j) If irrigation is used, the operator must demonstrate source of water for domestic,agricultural, or other uses
that the vegetation has been self-sustaining without dependent on the water, shall not be diminished, except
irrigation for a minimum of two years prior to release of as allowed in the approved reclamation plan.
the financial assurances by the lead agency, unless an (c) Erosion and sedimentation shall be controlled
artificially maintained landscape is consistent with the during all phases of construction, operation,reclamation,
approved end use. and closure of a surface mining operation to minimize
(k) Noxious weeds shall be managed: (1) when they siltation of lakes and watercourses, as required by the
threaten the success of the proposed revegetation; (2)to Regional Water Quality Control Board or the State Water
Resources Control Board.
24
(d) Surface runoff and drainage from surface mining In addition to the standards for topsoil salvage,
activities shall be controlled by berms, silt fences, maintenance, and redistribution, non-prime agricultural
sediment ponds. revegetation, hay bales, or other erosion lands shall be reclaimed so as:to be capable of sustaining
control measures, to ensure that surrounding land and economically viable production of crops commonly grown
water resources are protected from erosion, gullying, in the surrounding areas.
sedimentation and contamination.Erosion control methods NOTE: Authority cited: Sections 2755, 2756 and 2773,
shall be designed to handle runoff from not less than the Public Resources Code. Reference: Section 2773, Public
20 year/I hour intensity storm event. Resources Code.
(e) Where natural drainages are covered, restricted, § 3709. Performance Standards for Building,
rerouted, or otherwise impacted by surface mining Structure, and Equipment Removal.
activities, mitigating alternatives shall be proposed and (a)All equipment,supplies and other materials shall be
specifically approved in the reclamation plan to assure that stored in designated areas (as shown in the approved
runoff shall not cause increased erosion or sedimentation. reclamation plan). All waste shall be disposed of in
(f) When stream diversions are required, they shall be accordance with state and local health and safety
constructed in accordance with: ordinances.
(1)the stream and lake alteration agreement between (b) All buildings, structures, and equipment shall be
the operator and the Department of Fish and Game; and dismantled and removed prion!to final mine closure except
(2) the requirements of the Federal Clean Water Act, those buildings,structures,and equipment approved in the
Sections 301 (33 U.S.C. 1311) and Section 404 (33 reclamation plan as necessary for the end use.
U.S.C. 1344)and/or Section 10 of the Rivers and Harbors NOTE: Authority cited: Sections 2755, 2756 and 2773,
Act of 1899 (33 U.S.C. 403). Public Resources Code. Reference: Section 2773, Public
(g)When no longer needed to achieve the purpose for Resources Code.
which they were authorized,all temporary stream channel § 3710. Performance? Standards for Stream
diversions shall be removed and the affected land Protection, Including Surface land Groundwater.
reclaimed. (a) Surface and groundwater shall be protected from
NOTE: Authority cited: Sections 2755, 2756 and 2773, siltation and pollutants which may diminish water quality
Public Resources Code. Reference: Section 2773, Public as required by the Federal Clean Water Act, sections 301
Resources Code. et seq. (33 U.S.C. section 13!11), 404 et seq. (33 U.S.C.
§ 3707.Performance Standards for Prime Agricultural section 1344), the Porter-Cologne Act, section 13000 et
Land Reclamation. In addition to the standards for topsoil seq., County anti-siltation ordinances,the Regional Water
salvage, maintenance, and redistribution, the following Quality Control Board or the State Water Resources
standards shall apply to mining operations on prime Control Board.
agricultural lands where the approved end use is (b) In-stream surface mining operations shall be
agriculture: conducted in compliance with Section 1600 et seq.of the
(a) Mining operations which will operate on prime California Fish and Game Code, section 404 of the Clean
agricultural lands,as defined by the U.S.Soil Conservation Water Act, and Section 10 of the Rivers and Harbors Act
Service, shall return all disturbed areas to a fertility level of 1899 (33 U.S.C. 403).
as specified in the approved reclamation plan. (c) Extraction of sand and gravel from river channels
(b) When distinct soil horizons are present, topsoil shall be regulated to control channel degradation in order
shall be salvaged and segregated by defined A, B, and C to prevent undermining of bgidge supports, exposure of
soil horizons. Upon reconstruction of the soil, the pipelines or other structures i buried within the channel,
sequence of horizons shall have the A atop the B, the B loss of spawning habitat, lowering of ground water levels,
atop the C, and the C atop graded overburden. destruction of riparian vegetation, and increased stream
(c) Reclamation shall be deemed- complete when bank erosion(exceptions maybe specified in the approved
productive capability of the affected land is equivalent to reclamation plan).Changes in channel elevations and bank
or exceeds, for two consecutive crop years, that of the erosion shall be evaluated annually using records of annual
premining condition or similar crop production in the area. extraction quantities and benchmarked annual cross
Productivity rates, based on reference areas described in sections and/or sequential aerial photographs to determine
the approved reclamation plan, shall be specified in the appropriate extraction locations and rates.
approved reclamation plan. (d) In accordance with requirements of the California
(d) Use of fertilizers or other soil amendments shall Fish and Game Code section 1600 et seq., in-stream
not cause contamination of surface or ground water. mining activities shall not cause fish to become entrapped
NOTE: Authority cited: Sections 2755, 2756 and 2773, in pools or in off-channel pits, nor shall they restrict
Public Resources Code. Reference: Section 2773, Public spawning or migratory activities.
Resources Code. NOTE: Authority cited: Sections 2755, 2756 and 2773,
§ 3708.Performance Standards for Other Agricultural Public Resources Code. Reference: Section 2773, Public
,Land. The following standards shall apply to agricultural Resources Code,
lands, other than prime agricultural lands, when the
approved end use is agriculture.
25
§ 371 1. Performance Standards for Topsoil Salvage, NOTE: Authority cited: Sections 2755, 2756 and 2773,
Maintenance, and Redistribution. When the approved Public Resources Code. Reference:Section 2773, Public
reclamation plan calls for revegetation or cultivation of Resources Code.
disturbed lands,the following performance standards shall § 3713. Performance Standards for Closure of
apply to topsoil salvage, maintenance, and redistribution Surface Openings.
activities: (a) Except those used solely for blasting or those that
(a) All salvageable topsoil suitable for revegetation will be mined through within one year,all drill holes, water
shall be removed as a separate layer from areas to be wells, and monitoring wells shall be completed or
disturbed by mining operations. Topsoil and vegetation abandoned in accordance with each of the following:
removal shall not precede surface mining activities by (1) Water Code sections 13700, et seq. and 13800,
more than one year, unless a longer time period is et seq.;
approved by the lead agency. (2)the applicable local ordinance adopted pursuant to
(b) Topsoil resources shall be mapped prior to Water Code section 13803;
stripping and the location of topsoil stockpiles shall be (3) the applicable Department of Water Resources
shown on a map in the reclamation plan. If the amount of report issued pursuant to Water Code section 13800;and
topsoil needed to cover all surfaces to be revegetated is (4) Subdivisions (1) and (2) of section 2511(g) of
not available on site, other suitable material capable of Chapter 15 of Title 23 regarding discharge of waste to
sustaining vegetation (such as subsoil) shall be removed land.
as a separate layer for use as ,a suitable growth media. (b) Prior to closure, all portals, shafts, tunnels, or
Topsoil and suitable growth media shall be maintained in other surface openings to underground workings shall be
separate stockpiles. Test plots may be required to gated or otherwise protected from public entry in order to
determine the suitability of growth media for revegetation eliminate any threat to public safety and to preserve
purposes. access for wildlife habitat.
(c) Soil salvage operations and phases of reclamation NOTE: Authority cited: Sections 2755, 2756 and 2773,
shall be carried out in accordance.with a schedule that:(1) Public Resources Code. Reference: Section 2773, Public
is set forth in the approved reclamation plan;(2)minimizes Resources Code.
the area disturbed; and (3) is designed to achieve
maximum revegetation success allowable under the mining Article 11. Financial Assurance Mechanisms
plan.
(d)Topsoil and suitable growth media shall be used to § 3800. Purpose. It is the purpose of this article to
phase reclamation as soon as can be accommodated by specify additional financial assurance mechanisms to
the mining schedule presented in the approved reclamation assure reclamation pursuant to Public Resources Code
plan following the mining of an area. Topsoil,and suitable Section 2710 et seq. (Surface Mining and Reclamation
growth media that cannot be utilized immediately for Act, as amended).
reclamation shall be stockpiled in an area where it will not NOTE: Authority cited: Section 2773.1,Public Resources
be disturbed until needed for reclamation. Topsoil:and Code. Reference: Section 2773.1(e), Public Resources
suitable growth media stockpiles shall be clearly identified Code.
to distinguish them from mine waste dumps. Topsoil and § 3801. Authority. Review, approval, adjustment,
suitable growth media stockpiles shall be planted with a enforcement, notification, forfeiture and all other
vegetative cover or shall be protected by other equally responsibilities of the lead agency, operator and
effective measures to prevent water and wind erosion and Department of Conservation with respect to financial
to discourage weeds. Relocation of topsoil or suitable assurances shall be conducted as prescribed in Public
growth media stockpiles for purposes other than Resources Code Section 2710 et seq. unless expressly
reclamation shall require prior written approval from the outlined in this article.
lead agency. NOTE:Authority cited: Section 2773.1, Public Resources
(e) Topsoil and suitable growth media shall be Code. Reference: Section 2773.1(e), Public Resources
redistributed in a manner that results in a stable, uniform Code.
thickness consistent with the approved end use, site § 3802. Definitions. The following definitions shall
configuration, and drainage patterns. govern the interpretation of this article:
NOTE: Authority cited: Sections 2755, 2756 and 2773, (a) "Budget Set Aside" means a financial assurance
Public Resources Code. Reference: Section 2773, Public mechanism, meeting the requirements of Section 3806.2
Resources Code. of this article, by which a government entity proposes to
§ 3712. Performance Standards for Tailing and Mine make specific identified monies within the entity's budget
Waste Management. available to perform reclamation pursuant to the approved
State Water Resources Control Board mine waste reclamation plan.
disposal regulations in Article 7 of Chapter 15 of Title 23, (b) "Financial Assurance Amount"means that amount
California Code of Regulations, shall govern mine waste of money necessary to conduct and complete reclamation
and tailings, and mine waste disposal units shall be on the mined lands in accordance with the approved
reclaimed in conformance with this article. reclamation plan, plus a reasonable estimate of the
26
O(Y0092. Sir
administrative costs and expenses which would be NOTE: Authority cited: Section 2773.1, Public Resources
incurred by the lead agency or the Department of Code. Reference: Section 2773.1(e), Public Resources
Conservation, the total of which shall be calculated in Code.
accordance with section 3804, and shall constitute an § 3805. Review by the%Department of Conservation.
obligation to pay by the operator. Pursuant to Section 2774(c), Public Resources Code,
(c) "Financial Assurance" means an instrument, fund the lead agency shall subrinit a copy of the proposed
or other form of Financial Assurance as provided in Financial Assurance and the Calculation of Financial
Section 2773.1(a) and (e) of the Public Resources Code Assurance Amount submitted by the operator pursuant to
and this Article. Section 3804 to the Director of the Department of
(d) "Pledge of Revenue" means a financial assurance Conservation for review. With this submittal the lead
mechanism meeting the requirements of Section 3806.1, agency shall include the information and documentation
of this Article, by which a governmental entity proposes relied upon in calculating the amount of the proposed
to make specific, identified future revenue available to Financial Assurance and indicate to the Director that the
perform reclamation pursuant to the approved reclamation Financial Assurance Amount is adequate for the lead
plan. agency or the Department of Conservation to conduct and
NOTE: Authority cited: Section 2755, Public Resources complete reclamation on the mined lands in accordance
Code. Reference: Sections 2726-2734, Public Resources with the approved reclamation plan. The Director shall
Code. have 45 days, upon receipt,?to prepare written comments
§ 3803. Financial Assurance Mechanisms. As regarding the proposed Financial Assurance, if he/she so
outlined by this article, financial assurances may take the chooses.
form of any one or a combination of the following, which NOTE: Authority cited: Section 2774, Public Resources
the lead agency, upon review by the Department of Code. Reference: Section 2774(c), (d), Public Resources
Conservation, reasonably determines are adequate to Code.
perform reclamation in accordance with the approved § 3806. Surface mining operations owned and
reclamation plan. operated by state or local governmental entities.
(a) For non-governmental entity operators: In addition to the mechanisms provided in Public
(1) Surety bonds; Resources Section 2773.1 and this article, a financial
(2) Irrevocable letters of credit; and assurance mechanism for reclamation for a surface mining
(3) Trust funds; operation owned and operated by the state, county, city,
(b) For governmental entity operators: district,or other political subdivision may be in the form of
(1) Surety bonds; a:
(2) Irrevocable letters of credit; (a) Pledge of Revenue; or
(3) Trust funds; (b) Budget Set Aside.
(4) Pledges of Revenue; or These financial assurance mechanisms may only be
(5) Budget Set Aside. used by the state, county, dity, district, or other political
NOTE: Authority cited: Section 2773.1, Public Resources subdivision.
Code. Reference: Section 2773.1(e), Public Resources NOTE: Authority cited: Section 2773.1, Public Resources
Code. Code. Reference: Section 2773.1(e), Public Resources
§ 3804. Calculation of Financial Assurance.Amount. Code.
(a) The Financial Assurance Amount shall be § 3806.1. Pledge of Revenue.
calculated as prescribed in Public Resources Code Section (a)A pledge of revenue shall consist of a resolution or
2773.1 and based on: other appropriate document!from the governing body of
(1) an analysis of the physical activities and materials the state, county, city, district, or other political
necessary to implement the approved reclamation plan; subdivision responsible for reclamation of the mined lands
(2) the lead agency's unit costs, or costs for third pursuant to the approved reclamation plans. The
party contracting, for each of these activities, if resolution or document shall remain effective continuously
applicable; throughout the period in which the pledge of revenue is
(3) the.number of units of each of these activities, if used to satisfy the requirements of Section 2773.1,Public
applicable; Resources Code.
(4) a contingency amount not to exceed 10% of the (b) The pledge of revenue shall contain the following
reclamation costs. items:
(b)The calculated amount should not include the cost (1)The resolution or document establishing the pledge
of completing mining of the site. of revenue;
(c) In order for the lead agency or the Department of (2) The types and sources of pledged revenue;
Conservation to determine what annual adjustments, if (3) The period of time that each source of revenue is
any, are appropriate to the Financial Assurance Amount, pledged to be available;
the operator shall annually submit to the lead agency a (4) The calculation amount of the financial assurance
revision of the written calculation required under Section prepared pursuant to Section 3804; and
3804(a).
27
(5) The authorization for the lead agency or the (b) The set aside shall contain the following items:
Department of Conservation to use the proceeds of the (1) A resolution or other appropriate document
pledge to conduct and complete reclamation if the lead establishing the set aside or line item including proof of
agency or the Department of Conservation determines that approval by the governing body or appropriate official of
the operator is incapable of performing the reclamation the state, county, city, district or other political
covered by the pledge pursuant to Section 2773.1(b). subdivision;
(c) The state, county, city, district, or other political (2) The types and sources of specific funds;
subdivision may pledge any following types of revenue (3) The period of time that each funding source is to
that it controls and that will be available in a timely be available;
manner to conduct and complete reclamation: (4)The calculation amount of the financial assurance
(1) Fees, rents, or other charges; prepared pursuant to Section 3804; and
(2) Tax revenues within statutory limitations; and/or (5) The authorization for the lead agency or the
(3) Other guaranteed revenues that are acceptable to Department of Conservation to use the funds to conduct
the lead agency and the Board. and complete reclamation if the lead agency or the
(d) If the governmental entity ceases at any time to Department of Conservation determines that the operator
retain control of its ability to allocate any pledged revenue is incapable of performing the reclamation covered by the
to conduct and complete reclamation, the entity shall set aside pursuant to Section 2773.1(b).
notify the lead agency and the Department of NOTE: Authority cited: Section 2773.1, Public Resources
Conservation and shall obtain alternative coverage within Code. Reference: Section 2773.1(e), Public Resources
60 days after control lapses. Code.
NOTE: Authority cited: Section 2773.1, Public Resources
Code. Reference: Section 2773.1(e), Public Resources
Code.
§ 3806.2. Budget Set Aside.
(a)A Budget Set Aside shall consist of a specific fund
or line item set aside by the state, county, city, district or
other political subdivision responsible for reclamation of
the mined lands. .The Budget Set Aside shall remain in
effective continuously throughout the period in which the
Budget Set Aside is used to satisfy the requirements of
Section 2773.1, Public Resources Code.
28
000092. S(
i
REPORT TO CITY COUNCIL
CITY OF ATASCADERO Agenda Item: C-2
Through: Andy Takata, Meeting Date: March 12, 1996
City Manager
Via: / Brady Cherry, Community Services Director',
From: Doug Davidson, Senior Planner FileNo: 1995 CDBG
SUBJECT:
Consideration of a revised spending plan for the 1905 Community
Development Block Grant (CDBG) funding of ADA improvements to the
City Administration building.
RECOMMENDATION:
Expend the 1995 CDBG allocation for this program toward
preparation of the ADA Self-Evaluation and Transition Plan, as
opposed to installing actual improvements.
BACKGROUND:
• In April of last year, the City Council allocated the City' s
annual CDBG allotment of $248,600 toward a variety of projects.
Among them was a $25,000 disbursement for ADA improvements, such
as drinking fountains, door handles, and signs, in the
Administration building. As indicated below, staffbelieves that
this $25, 000 allocation should be used to prepare a Self-
Evaluation and Transition Plan in conformance with the ADA
federal law. City staff will be recommending to the Council on
April 8, 1996 that $15,500 of the 1996 CDBG allocation be devoted
to making some improvements for handicapped accessibility in the
Administration building.
The American Disabilities Act became law in 1990. the law calls
for each jurisdiction to have a "Self-Evaluation and Transition
Plan" in place by 1992. The City does not have such a plan for
any of its public facilities. The decision last year to start
allocating some resources toward ADA compliance recognized the
fact that the City is out of compliance with ADA and that the
City needs to begin addressing accessibility issues» The
starting point to implement the ADA improvement program is the
Self-Evaluation and Transition Plan - an inventory of
deficiencies and the Capital Improvement Plan for correcting
them. Over the last year, the Community Services Director has
searched for interested and qualified local personsor
organizations to prepare the plan. The intent was to offer about
$15, 000 of the allocation to prepare the pian and use the
remaining $10,000 to begin some of the most needed improvements.
None of the groups contacted, among them SLOCO ACCESS, a non-
000093
i
profit advocacy group for the disabled and the Cal Poly
Architecture Department, were interested in such an offer (see
attached correspondence) . Thus, City staff is requesting Council
authorization to expend the 1995 CDBG allocation of $25,000
toward hiring a consultant to prepare the mandatory Self-
Evaluation and Transition Plan. If this is deemed appropriate by
the Council, the staff will then be requesting that $15,500 of
the 1996 grant be used to begin implementing some improvements as.
directed by this plan.
Lastly, unlike the previously approved revision to the Loaves and
Fishes CDBG grant, the City does not have to formally change the
SLO County Consolidated Plan or its CDBG expenditures. Under
CDBG guidelines, both plan preparation and actual improvements
for ADA compliance qualify under the eligible program of "removal
of architectural barriers. " Programs to benefit physically
challenged individuals are automatically assumed to benefit the
low and moderate income segment of the population.
CONCLUSIONS:
Before beginning the installation of ADA improvements in the City
Administration building, an evaluation should be conducted to
determine the focus, phasing, and priority of such improvements.
The ADA'.s own scheduling deadlines acknowledge that the Self-
Evaluation and Transition Plan is the starting point for
compliance with the law.
ATTACHMENTS: Letter from SLOCO ACCESS
Letter from Cal Poly Architecture
0000911
► A
a
A
Ad
rNovember 7, 1995
rjj::�_ '.' 0
CC ESS City of Atascadero
Department of Community Services
Mr. Brady Cherry, Director
6500 Palma Avenue
Atascadero, Ca. 93422
Dear Mr. Cherry,
I want to take this opportunity to personally thank you for allowing
SLOCO ACCESS to review the City of Atascadero's draft Request for
Services and Scope of Work to perform an A.D.A. Self-Assessment
Board of Directors and Transition Plan.
Don Shear p
President The ADA Com Nance Committee of SLOCO ACCESS, as well as our
Board of Directors, has reviewed the proposal. After considerable
Paul Wolff deliberation, we have concluded that we must decline providing the
Vice President services as outlined in the RFP dated 1 October 1995.
Scot L. Bennett ✓ We had two major concerns. First, we concluded that the budgeted
Secretary
grant funds of $15,000 were insufficient for us to professionally comply
on Anderson with the proposed scope of work. Secondly, we had a fundamental
Treasurer concern about potential conflicts of interest. SLOCO ACCESS is
primarily an advocacy group, promoting the rights and privileges of
Flicka Dukes persons with disabilities. As such, we advocate against discrimination
Cherie F;tch and monitor ADA compliance by commercial establishments and by
municipal entities. Contracting to work on the" City's Transition Plan
Don Lowe would compromise this advocacy role.
Vickie Landis Thank you for considering us for this important project. We remain
available and well qualified to provide consultation concerning special
Steve Mathieu needs or solutions. We would appreciate your keeping us informed
about the status of the project.
Sincerely,
Do ar
SLOCO Access, Inc.
Pre ' ent
San Luis Obispo
ifornia 93401
one _� 83 93 4 -
327
000095
CAL POEY
l_,ALfiVOBNIA hOLYTEI'HMC liAH 1VHHSI I
SAN Luis OBISPU, ('A 1)W,
ARCHI I FC I URF DITAR I NIEN-L
(;i115) -156 1 ;10
10 January 1996
Brady Cherry,
Director of Community Services
City of Atascadero
6500 Palma Avenue
Atascadero, Ca. 93422
Dear Mr. Cherry;
Thank you for sending us the Draft Request For Services and Scope of Work to
perform an A.D.A. self -assessment and transition plan for the city of Atascadero.
We are interested in consulting with the city of Atascadero on this project, but feel that
we would best be of service to the city in only working on the Transition Plan or the
elements that relate to the physical and architectural barriers to access. We are not
interested in working with the Self Assessment and elements that relate to the non-
physical barriers to access. After review of the Draft Request For Services, we feel that
the budgeted grant funds of $15,000 were insufficient for us to perform the total scope
of work indicated. We do feel, however, that the Transition Plan and the elements of
the Draft Request For Services that pertain to physical and architectural barriers to
access can be accomplished within the budgeted grant funds of $15,000.
Our team from Cal Poly would consist of Paul Wolff, Professor Emeritus, graduate and
undergraduate architecture students involved in universal" and barrier free design
studies and myself as team leader. Wolff and I along with the student members have
taught and worked together in the design and research of accessibility, A.D.A and
universal design projects. We have assisted the Western Law Center for Disability
Rights as "expert witnesses", and consultants on architectural barrier and A.D.A. legal
issues. We are part of a special research and education project of the "Universal
Design Education Project", sponsored by Adaptive Environments, Boston and jointly
funded by the U.S. Justice Department. Finally, we helped development, write and
implement the A.D.A.Transition Plan for the Cal Poly campus, prioritizing projects and
assisting in the allocation of funds for barrier removal as members of Cal Poly's
Disable Student Service Campus Access Committee. We would propose to use a
similar methodology used at Cal Poly for the city of Atascadero Transition and barrier
removal plans.
000096
Paul Wolff is an architect and professor emeritus at Cal Poly and has taught barrier-
free and universal design for over thirteen years. As past director of the Barrier-Free
Research Unit of the Design and Construction Institute at Cal Poly, he developed the
"Access to Parks" guidelines for the program and facilities of the State of California
Department of Parks and Recreation.
I am a full professor at Cal Poly, teaching architecture design and practice with a
special emphasis on accessability and universal design. 1 am in charge of the courses
on the A.D.A. and architectural barriers. I am also a registered architect with over
fifteen years experience in design and accessibility work in California.
Thank you for considering us to assist the city of Atascadero on this project. Please
contact me at 756-1791 if you would like more information. I look foward to talking
with you more about our team, qualifications and the project.
Sincerely,.
Bradford C. Grant, Professor
Architect
00009'7
i
REPORT TO CITY COUNCIL
CITY OF ATASCADERO Item No: C-3(A-B)
Through: Andy Takata, City Manager Meeting ]',pate: 3-12-96
File No: ZC 95-005
From: teven L. DeCamp, City Planner
SUBJECT:
1 . Consideration of the draft "Atascadero Sexually Oriented
Business Ordinance" and,
2 . Amendment of the City' s Zoning Ordinance to implement the
Atascadero Sexually Oriented Business Ordinance.
RECOMMENDATION:
1 . Approve Ordinance #298 (Atascadero Sexually Oriented
Business Ordinance) on second reading by titlelonly.
2 . Approve Ordinance #300 amending the Zoning Ordinance to
implement Ordinance #298 on second reading by title only.
BACKGROUND:
On February 27 , 1996 the City Council conducted a public hearing
on the subject of the draft "Atascadero Sexually Oriented
Business Ordinance" and related amendments to the Z6ning
Ordinance necessary to effectively implement the new ordinance.
The Council found the Negative Declaration to be adoquate and
approved Ordinances #298 and #300 on first reading. ;
At your first hearing, the Sexually Oriented Business Ordinance
was inadvertently numbered 296. The correct numberjfor this
Ordinance is 298 . Ordinance #300 has been modified'; internally to
reflect this change.
ATTACHMENTS : Exhibit A - Draft Ordinance #298
Exhibit B - Draft Ordinance #300
I
I
I 000098
ORDINANCE NO. 298
AN ORDINANCE OF THE CITY OF ATASCADERO '
ESTABLISHING THE ATASCADERO SEXUALLY ORIENTED
BUSINESS ORDINANCE BY DISPERSING SEXUALLY
ORIENTED BUSINESSES AND LIMITING THEM TO
SPECIFIED ZONING DISTRICTS; PROVIDING FOR
LICENSING AND REGULATION OF SEXUALLY
ORIENTED BUSINESSES AND EMPLOYEES; AND
PROVIDING ADDITIONAL HEALTH AND SAFETY
REGULATIONS FOR SEXUALLY ORIENTED BUSINESSES
WHEREAS, sexually oriented businesses in the incorporated area of the City of
Atascadero require special supervision from public safety and health agencies of the
County in order to protect and preserve the health, safety and welfare of the patrons of
such businesses as well as citizens of the City; and
WHEREAS, the City Council and staff have conducted an extensive review of land
use studies concerning the secondary effects of sexually oriented businesses in other
cities including, but not limited to, Garden Grove, California (1991); Phoenix, Arizona
(1986); Minneapolis, Minnesota (1980); Houston, Texas (1983); Indianapolis, Indiana
(1984); Amarillo, Texas (1977); City of Los Angeles, California (1977); Cleveland, Ohio
(1977); Austin, Texas (1986); Seattle, Washington (1989); Oklahoma City (1986);
Beaumont, Texas ( 1982); Pleasanton, California (1995) and Whittier, California (1978);
have conducted its own meetings involving real estate appraisers, commercial businesses,
residential owners, and parents in Atascadero ; and
WHEREAS, from review of other cities' studies and their own contacts with and
testimony from its citizens there is convincing documented evidence that sexually oriented
businesses, because of their very nature, have a deleterious effect on both existing
businesses around them and the surrounding residential areas adjacent to them, causing
among other adverse secondary effects, increased crime and downgrading of property
values; and
WHEREAS, it is recognized that sexually oriented businesses, due to their nature,
have serious objectional operational characteristics, particularly when they are operating
in close proximity to each other, thereby contributing to crime, lower property values, urban
blight and downgrading of the quality of life in the adjacent area; and
WHEREAS, the City Council finds that sexually oriented businesses commonly
involve or contribute to unlawful sexual activities including prostitution, sexual liaison of
casual nature; and
1
000099
WHEREAS, increased crime and unhealthful conduct tend to accompany,
concentrate around and be aggravated by sexually oriented businesses including but not
limited to prostitution, pandering, exposing minors to harmful materials, possession and
distribution of obscene materials and child pornography, possession and sale of controlled
substances and violent crimes against persons and property; and
WHEREAS, concern over sexually transmitted diseases, including AIDS, is a
legitimate health concern of the City which demands reasonable regulations of sexually
oriented business in order to protect the health and well being of the citizens; and
WHEREAS, the City Council has considered in part, each of the following matters:
(a) areas within close walking distance of single and multiple family dwellings should be
free of sexually oriented business uses: (b) areas where children could be expected to
walk, patronize, or frequent to be free of sexually oriented business uses; (c) sexually
oriented business uses should be located in areas of the City which are not in close
proximity to residential uses, churches, parks, or other public facilities and schools; (d) the
image of the City of Atascadero as a pleasant attractive place to reside will be adversely
affected by the presence of sexually oriented business uses in close proximity to
residential land uses, churches, parks and other public facilities, and schools; (e) sexually
oriented business land use should be regulated by zoning to separate it from other
dissimilar. uses just as any other land use should be separated from uses with
characteristics different from itself; (f) residents of the City of Atascadero and persons who
are non-residents but use the City for shopping and other commercial needs will move
from the community or shop elsewhere if sexually oriented businesses land uses are
allowed to locate in close proximity to residential uses, churches, parks, and other public
facilities, and schools; (g) merchants in the commercial area of the 'City are concerned
about the adverse impact and the character and quality of the City in the event that
sexually oriented business land uses are located within close proximity to residential uses,
churches, parks, and other public facilities, and schools, and that isuch locations will
reduce retail trade to commercial uses in the vicinity, thus reducing property values and
tax revenues to the City; and that such adverse affect on property values and business
would cause the loss to some commercial districts within the City leading to further
deterioration of the commercial quality of the City, and (h) no evidence has been
presented to show that location of sexually oriented businesses within the City will improve
the commercial viability or quality of life of the community; and
WHEREAS, zoning, licensing and other police power regulations are legitimate
reasonable means of accountability to insure the operator of sexually oriented businesses
comply with reasonable regulations and are located in places which minimize the adverse
secondary effects which naturally accompany the operation; and
WHEREAS, the City recognizes the possible harmful effects on Children and minors
exposed to the effects of such businesses and the deterioration of respect for family
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values, and the avoidance of such businesses which necessitate children walking through
or visiting in the immediate neighborhood of such businesses; and 0
WHEREAS, the City Council finds that there would be a deterioration in the quality
of businesses which chose to operate in and around such sexually oriented businesses;
and
WHEREAS, the City Council desires to minimize and control these adverse
secondary effects and thereby protect the health, safety and welfare of the citizens; protect
the citizens from increased crime; preserve the quality of life; preserve the property values
and the character of surrounding neighborhoods and businesses, deter the spread of
urban blight and protect against the threat to health from the spread of communicable and
social diseases; and
WHEREAS, the City Council recognizes that the exceptions, where sexually
oriented businesses are permitted to be established without regard to distance regulations,
are either inward looking configurations, or those isolated from direct view from public
streets, parks, schools, boys' clubs, girls' clubs, or similar youth organizations, public
buildings, religious institutions or residential districts or uses. This configuration reduces
the adverse secondary effects associated with sexually oriented businesses by
segregating such businesses away from the aforementioned sensitive uses, and placing
them in a location where they do not effect the public health, safety, and moral climate of
the community as a whole. It decreases the problems of harassment of neighborhood
adults and children, littering of sexually explicit reading material and paraphernalia,
loitering, and visual blight. In addition, this promotes the City's interests by shifting part of
the regulatory burden to the private sector. A shopping center or resort complex has its
own signage, paint and landscaping restrictions, as well as hours of operation, parking,
and security. The City is relieved from some of the regulatory burden while protecting the
City's commercial tax base; and
WHEREAS, the City Council has considered the decisions of the United States
Supreme Court regarding local regulation of sexually oriented businesses, including but
not limited to Young v. American Mini-Theaters, Inc., 427 U.S. 50 (1976) reh. denied 429
U.S. 873; Renton v. Playtime Theaters, 475 U.S. 41 (1986) reh. denied 475 U.S. 1132;
FW/PBS Inc. v. Dallas, 493 U.S. 215 (1990); and Barnes v. Glen Theater, 501 U.S. 560
(1991); and City of National City v. Wiener, et al. , 3 Cal.4th 832(1993). Topanga Press,
Inc. et al. v. City of Los Angeles, 939 F. 2d 1524 (1993); and
WHEREAS, the City Council has determined that locational criteria alone do not
adequately protect health, safety and general welfare of the people of Atascadero and
thus certain requirements with respect to the ownership and operation of sexually oriented
businesses is in the public interest.
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i
WHEREAS, the City Council consistent with sale and consumption of alcohol and
outside advertising limitations further finds that restricted hours of operation will further
prevent the adverse secondary effects of sexually oriented business;
WHEREAS, it is not the intent of this ordinance to suppress any speech activities
protected by the First Amendment, but to enact a content neutral ordinance which
addresses the adverse secondary effects of sexually oriented businesses; the City's
interest in regulation of sexually oriented business establishmentsis unrelated to the
suppressing of free expression.
WHEREAS, experience in other cities indicates that a permitted concentration of
adult entertainment establishments and their proliferation throughout the community would
be inconsistent with the community goals of the City's General Plan.
WHEREAS, the adoption of an adult entertainment ordinance will aid in preserving
the quality of the community that permits Atascadero to continue as a "colony" of fine
homes with a quality business environment.
WHEREAS, the image and vitality of the City of Atascadero as a pleasant and
attractive place to reside and do business will be adversely affected3 by the presence of
sexually oriented land uses in close proximity to residential land uses, churches, parks
and other-public facilities, schools, and certain commercial zones.
WHEREAS, regulation of sexually oriented business land uses should be
developed to prevent deterioration and\or degradation of the community before the
problem exists, rather than in response to an existing problem.
WHEREAS, no evidence has been presented to show that location of sexually
oriented business land uses within the City will improve the commercial viability of the
community.
WHEREAS, a reasonable regulation of the location of sexually oriented land uses
will provide for the protection of the image of the community and its property values, and
protect the residents of the community from the adverse effects of such sexually oriented
land uses, while providing to those who desire to patronize such businesses, an
opportunity in areas within the City which are appropriate for location of such land uses.
NOW THEREFORE, The City Council of the City of Atascadero does ordain as
follows:
SECTION 1. PURPOSE AND INTENT.
It is the purpose and intent of this Ordinance to regulate sexually oriented
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businesses to promote the health, safety, morals, and general welfare of the citizens of the
City and to establish reasonable and uniform regulations to prevent any deleterious
location and concentration of sexually oriented businesses within the City, thereby
reducing or eliminating the adverse secondary effects from such sexually oriented
businesses. The provisions of this ordinance have neither the purpose nor effect of
imposing a limitation or restriction on the content of any communicative materials,
including sexually oriented materials. Similarly, it is not the intent nor effect of this
ordinance to restrict or deny access by adults to sexually oriented materials protected by
the First Amendment, or to deny access by the distributors and exhibitors of sexually
oriented entertainment to their intended market.
SECTION 2. DEFINITIONS.
For the purposes of this division, certain terms and words are defined as follows-.-
A.
ollows:A. "Sexually oriented businesses" are those businesses defined as follows:
1. "Adult arcade" means an establishment where, for any form of
consideration, one or more still or motion picture projectors, slide projectors,
or similar machines, or other image producing machines, (including but not
byway of limitation any machine or device that produces images by use of
computer software, optical discs, compact discs or similar method), for
viewing by five or fewer persons each, are regularly used to show films,
motion pictures, video cassettes, slides, or other photographic reproductions
which are characterized by the depiction or description of"specified sexual
activities" or"specified anatomical areas".
2. "Adult Bookstore", "Adult Novelty Store" or "Adult Video Store" means a
commercial establishment which devotes more than 25% of the total floor
area used for display, sale or rental to display, sell or rent, for any form of
consideration any of or combination of the following:
a. Books, magazines, periodicals or other printed matter, or
photographs, films, motion pictures, video cassettes, slides, or
other visual representations (including but not by way of
limitation any machine or device that produces images by use
of computer software, optical discs, compact discs or similar
method), which are distinguished by 'their emphasis on
depiction or description of "specified sexual activities" or
"specified anatomical areas," or defined as obscene matter or
harmful matter by California Penal Code Sections 311, or 313,
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or their respective successor sections;
b. Instruments devices orara hernalia which are designed
P P
for use or marketed primarily for stimulation of human genital
organs or for sadomasochistic use or abuse of themselves or
others.
c. An establishment may have other principal business purposes that
do not involve the offering for sale rental or viewing of materials
depicting or describing "specified sexual activities" or "specified
anatomical areas", and still be categorized as adult bookstore, adult
novelty store, or adult video store. Such other businesspurposes will
not serve to exempt such establishments from being categorized as
an adult bookstore, adult novelty store or adult video store so long as
it meets the 25% threshold as described in 2 (a) and (b) above.
3. "Adult cabaret" means a nightclub, bar, restaurant "bottle club", or similar
commercial establishment, whether or not alcoholic beverages are served, which
regularly features: (a) persons who appear nude or in a state of nudity or seminude;
(b) live performances which are characterized by the exposure of "specified
anatomical areas" or by "specified sexual activities", or (c) films, motion pictures,
video cassettes, slides, or other photographic reproductions, (including but not by
way of limitation any machine or device that produces images by use-of computer
software, optical discs, compact discs or similar method), which are characterized
by the depiction or description of " specified sexual activities" or "specified
anatomical areas". An adult cabaret is a sexually oriented business.
4. "Adult motel' means a motel, hotel or similar commercial establishment which:
(a) offers public accommodations, for any form of consideration, which provides
patrons with closed-circuit television transmissions, films, motion pictures, video
cassettes, slides or other photographic reproductions a substantial portion of the
total presentation time of which is characterized by the depiction or description of
"specified sexual activities" or "specified anatomical areas" and which advertises
the availability of this sexually oriented type of material by means of a sign visible
from the public right-of-way, or by means of any off-premises advertising including
but not limited to, newspapers, magazines, pamphlets or leaflets, radio or
television, or (b) offers a sleeping room for rent for a period of time less than ten
(10) hours; or (c) allows a tenant or occupant to sub-rent thejsleeping room for a
time period of less than ten (10) hours. An adult motel is a sexually oriented
business.
5. "Adult motion picture theater" means a commercial establiishment where films,
motion pictures, video cassettes, slides or similar photographic reproductions
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00010,1
(including but not by way of limitation any machine or device that produces images
by use of computer software, optical discs, compact discs or similar method), which
are characterized by the depiction or description of"specified sexual activities" or
"specified anatomical areas" are regularly shown for any form of consideration. Use
is regular when the specified presentations constitute a substantial part of the
theater's revenues. An adult motion picture theater is a sexually oriented business.
6. "Adult Theater" means a theater, concert hall, auditorium, or similar commercial
establishment which, for any form of consideration, regularly features persons who
appear in a state of nudity or live performances which are characterized by
exposure of"specified anatomical areas" or by "specified sexual activities." Such
activity is regularly featured when the specified activity appearances, or
performances, or any combination thereof, constitute a substantial part of all the
theater's activities, appearances, or performances. An adult theater is a sexually
oriented business.
7. "Massage parlor" means any place where, for any form of consideration or
gratuity, massage, alcohol rub, administration of fomentations, electric or
magnetic treatments, or any other treatment manipulation of the human body which
occurs as a part of or in connection with "specified sexual activities", or where any
person providing such treatment, manipulation, or service related thereto, exposes
his or her "specified anatomical areas".
8. "Nude Model Studio" meansany place where a person, who regularly appears
,
in a state of nudity or displays specified anatomical areas, is provided for money
or any form of consideration to be observed, sketched, drawn, painted,
sculptured, photographed, or similarly depicted by other persons. A nude model
studio is a sexually oriented business.
9. "Sexual encounter establishment" means a business or commercial
establishment, that as one of its primary business purposes, offers for any form of
consideration, a place where two or more persons may congregate, associate, or
consort for the purpose of"specified sexual activities" or the exposure of "specified
anatomical areas" or activities when one or more of the persons is in a state of
nudity or semi-nude. The definition of sexually oriented businesses shall not include
an establishment where a medical practitioner, psychologist, psychiatrist, or similar
professional person licensed by the state engages in medically approved and
recognized sexual therapy. A sexual encounter establishment is a sexually oriented
business.
B . "Employee" means a person who works or performs in and/or for a sexually oriented
business, regardless of whether or not said person is paid a salary, wage or other
compensation by the operator of said business.
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C. "Establishment" means and includes any of the following:
1. The opening or commencement of any such business as a new business;
2. The conversion of an existing business, whether or not a sexually oriented
business, to any of the sexually oriented businesses defined in this chapter;
3. The addition of any of the sexually oriented businesses defined in this chapter
to any other existing sexually oriented business; or
4. Addition of sexually oriented business to an existing business if the addition
results in enlarging the place of business. Enlargement means an increase in the
size of the building or area in which the business is conducted by either
construction or use of an adjacent building or any position thereof, whether located
on the same or an adjacent lot.
5. The relocation of any such sexually oriented business.
D . "Nudity or State of Nudity" means: (a) the appearance of human bare buttock,
anus, male genitals, female genitals, or the areola or nipple of the female breast;
or (b) a state of dress which fails to opaquely and fully cover a human buttocks,
anus, male or female genitals, pubic region or areola or nipple of the female
breast.
E. "Operator" means and includes the owner, permit holder, cugtodie n,
manager, operator or person in charge of any permitted or licensed premises.
F. "Permitted or Licensed Premises" means any premises that, requires a license
and/or permit and that is classified as a sexually oriented business.
G . "Permittee and/or Licensee " means a person in whose name a permit and/or
license to operate a sexually oriented business has been issued, as well as
the individual listed as an applicant on the application for a permit and/or
license.
H. "Person" means an individual, proprietorship, partnership, corporation, association,
or other legal entity.
I. "Public building" means any building owned, leased or (held by the United
States, the state, the county, the city, any special district, school district, or
any other agency or political subdivision of the state or ithe United States,
which building is used for governmental purposes.
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J. "Public park" or "recreation area" means public land which has been designated
for park or recreational activities including but not limited to a park, playground,
nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts,
pedestrian/bicycle paths, open space, wilderness areas, or similar public land within
the city which is under the control, operation, or management of the city park and
recreation authorities.
K . "Religious institution" means any church, synagogue, mosque, temple or building
which is used primarily for religious worship and related religious activities.
L. 'Residential District or Use" means a single family, duplex, townhouse, multiple
family, or mobile park or subdivision and campground as defined in the Municipal
Code.
M. "School' means any public or private educational facility including but not limited
to child day care facilities, nursery schools, preschools, kindergartens, elementary
schools, primary schools, intermediate schools, junior high schools, middle
schools, high schools, vocational schools, secondary schools, continuation
schools, special education schools, junior colleges, and universities. School
includes the school grounds, but does not include the facilities used primarily for
another purpose and only incidentally as a school.
N. "Semi-Nude" means a state of dress in which clothing covers no more than the
genitals, pubic, region, and areolae of the female breast, as well as portions of
the body covered by supporting straps or devices.
0 . "Sexually Oriented Business" means an adult arcade, adult bookstore, adult
novelty shop, adult video store, adult cabaret, adult motel, adult motion picture
theater, adult theater, massage parlor, sexual encounter establishment, or nude
model studio.
P. "Specified Anatomical Areas," as used in this division means and includes
any of the following:
1. Less than completely and opaquely covered human genitals, pubic region,
buttocks, anus, or female breasts below a point immediately above the top of
the areolae; or
2. Human male genitals in a discernibly turgid state, even if completely
and opaquely covered.
Q . "Specified Sexual Activities," as used in this Division, means and includes any of
the following:
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00010'7
1. The fondling or other intentional touching of human genitals, pubic region,
buttocks, anus, or female breasts;
2. Sex acts, normal or perverted, actual or simulated, including intercourse,
oral copulation, or sodomy;
3. Masturbation, actual or simulated; or
4. Human genitals in a state of sexual stimulation, arousal or tumescence;
5. Excretory functions as part of or in connection with any of the activities
set forth in subdivisions (1) through (4) of this subsection.
R. "Substantial Enlargement of a Sexually Oriented Business" means increase
in the floor areas occupied by the business by more than 15%, as the floor
areas exist on the effective date of this ordinance.
SECTION 3. ESTABLISHMENT AND CLASSIFICATION OF
BUSINESSES REGULATED.
A. The establishment of a sexually oriented business shall be permitted only in the CS
(Commercial Services) and I (Industrial) zones, and shal'I be subject to the
following restrictions. No person shall cause or permit the establishment of any of
the following sexually oriented businesses, as defined above,!within 1,000 feet of
another such business or within 1,000 feet of any religious:institution, school,
boys' club, girls' club, or similar existing youth organization, or public park or public
building.
1. adult arcade
2. adult bookstore, adult novelty store or adult video store
3. adult cabaret
4. adult motel
5. adult motion picture theater
6. adult theater
7. massage parlor
8. sexual encounter establishment or
9. nude model studio.
B. Nothing in this Section prohibits the location of sexually oriented businesses within
retail shopping centers in all zones and within zones wherein such activities will
have their only frontage upon enclosed malls or malls isolated from direct view
from public streets, parks, schools, religious institutions, boys' clubs, girls' clubs,
or similar existing youth organization, public buildings or residential districts or uses
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000105
without regard to the distance requirements of subsection A. above.
C. Nothingin this SE►ction prohibits the location of a home occupation that otherwise
complies with the Atascadero Municipal Code.
D. No sexually oriented business shall be established within the Downtown Zone 1
(Pedestrian Commercial Zone), Downtown Zone 2 , (Downtown Commercial
Zone), Downtown Zone 3 (Restaurant and Entertainment Zone) or Downtown
Zone 4 (Commercial Zone).
SECTION 4. MEASUREMENT OF DISTANCE.
As regarding Section 3, paragraph A., distance between any two sexually
oriented businesses shall be measured in a straight line, without regard to intervening
structures, from the closest exterior structural wall of each business. The distance
between any sexually oriented business and any religious institution, public or private
elementary or secondary school, boys club, girls club, or similar existing youth
organization, or public park or public building or any properties zoned for residential use
or used for residential purposes shall also be measured in a straight line, without regard
to intervening structures or objects from the nearest portion of the building or structure
used as part of the premises where the sexually oriented business is conducted, to the
nearest property line of the premises of a religious institution, public or private elementary
or secondary school, boys club, girls club, or similar existing youth organization, or
public park or public building or any properties zoned for residential use or used for
residential purposes.
SECTION 5. LOCATION OF SEXUALLY ORIENTED BUSINESSES.
The City of Atascadero's Zoning Ordinance hereby requires that
sexually oriented businesses shall be permitted only as provided in Section 3 in which
such use is listed as permissible. Permits for sexually oriented businesses shall be
required and governed by the procedures and policies specified in Section 8 et. seq. of
this division. In addition, any sexually oriented business shall be subject to the
following restrictions:
1. The person commits a misdemeanor, if he operates or causes to be operated
a sexually oriented business except as provided in Section 3.
2. The person commits a misdemeanor if he operates or causes to be operated
a sexually oriented business within 1,000 feet of: (a) any religious institution; (b)
any school; (c) a public park adjacent to any residential district; (d) a boys
club, girls club, or similar existing youth organization, except as provided in
Section 3. B.
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3. A person commits a misdemeanor if he operates or causes to be operated a
sexually oriented business within 1,000 feet of another such business, which will
include, any adult arcade, adult book store, adult video store, adult cabaret,
adult motel, adult motion picture theater, adult theater, massage parlor or any
sexual encounter establishment, except as provided in Section 3. B.
4. A person commits a misdemeanor if he causes or permits the operation,
establishment, or maintenance of more than one sexually oriented business
within the same building, structure, or portion thereof, except as provided in
Section 3_B., or causes the substantial enlargement of any sexually oriented
business in any building, structure or portion thereof containing another
sexually oriented business.
5. It is a defense to prosecution under this section if a person appearing in a
state of nudity did so in a modeling class operated:
a. by a proprietary school, licensed by the State of California; a
college, junior college, or university supported entirely or partly by
taxation;
b. by a private college or university which maintains and operates
educational programs in which credits are transferable to a college,
junior college, or university supported entirely or partly by taxation;
or
c. in a structure:
(1) which has no sign visible from the exterior of the structure and
no other advertising that indicates a nude person is available for
viewing; and
(2) where, in order to participate in a class a student must enroll
at least three (3) days in advance of the class; and'.
(3) where no more than one nude model is on thepremises
at any one time.
SECTION 6. REGULATIONS GOVERNING EXISTING SEXUALLY
ORIENTED BUSINESSES.
A. Any sexually oriented businesses lawfully operating on, the effective date of this
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000110
ordinance that is in violation of Sections 3 and 5 of this division, shall be deemed
a non-conforming use. A non-conforming use will be permitted to continue for a
period of five years, with a possible extension of two years to be granted by the
Planning Commission only upon a convincing showing of extreme financial hardship
which is defined as the recovery of the initial financial investment in the
nonconforming use, unless sooner terminated for any reason or voluntarily
discontinued for a period of thirty (30) days or more. Such non conforming uses
shall not be increased, enlarged, extended or altered except to a conforming use.
If two (2) or more sexually oriented businesses are within 1,000 feet of one another
and otherwise in a permissible location, the sexually oriented business which was
first established and continually operating at the particular location is the
conforming use and the later established business(es) is non-conforming, except
as provided in Section 3.13.
B. A sexually oriented business lawfully operating as conforming use is not
rendered a non-conforming use by the location, subsequent to the grant or
renewal of a sexually oriented business permit and/or license, of a church,
public or private elementary or secondary school, public park, public building,
residential district, or residential lot within 1,000 feet of the sexually oriented
business. This provision applies only to the renewal of valid permit and/or
license and does not apply when an application for a permit and/or license
is submitted after a permit and/or license has expired or has been revoked.
C. Any establishment subject to the provision of this section shall apply for the
permit provided for by Section 10 within thirty (30)days of the effective date of this
ordinance. Any establishment, existing prior to the effective date of this ordinance,
shall comply with the regulations pertaining to Sections 20, 22, and 30, within sixty
(60) days of the effective date of this ordinance, and all other applicable permit
regulations within thirty (30) days of the effective date of this ordinance.
SECTION 7. INJUNCTION
A person who operates or causes to be operated a sexually oriented business
without having a valid permit due to locational restrictions is subject to a suit for injunction
as well as prosecution for the criminal violation. Such violation shall be punishable by a
fine of $1,000. 00 and/or thirty (30) days imprisonment, and if an injunction must be
sought, attorneys fees and costs will be assessed at the discretion of the Court against
the sexually oriented business.
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UUQ1II
SECTION 8. SEXUALLY ORIENTED BUSINESS PERMIT: PURPOSE
AND INTENT.
It is the purpose of this ordinance to regulate sexually oriented businesses to
promote the health, safety, morals and general welfare of the citizens of the City, and to
establish reasonable and uniform regulations to prevent deleterious effects of sexually
oriented businesses within the City. The provisions of this Ordinance have neither the
purpose nor effect of imposing a limitation or restriction on the content of any
communicative materials, including sexually oriented materials. Similarly, it is not the
intent nor effect of this Ordinance to restrict or deny access by adults to sexually
oriented materials protected by the First Amendment, or to deny access by the
distributors and exhibitors of sexually oriented entertainment to their"'»intended market.
Neither is it the intent or effect of this Ordinance to in any way condone or legitimize the
distribution of obscene or harmful to minors' material
SECTION 9. PERMIT REQUIRED
A. No sexually oriented business shall be permitted to operate without a valid sexually
oriented business permit issued by the City for the particular',;type of business. It
shall be unlawful and a person commits a misdemeanor if he/she operates or
causes to be operated a sexually oriented business without said permit.
B. The City Manager or his/her designee is responsible for granting, denying,
revoking, renewing, suspending, and canceling sexually oriented business permits
for proposed or existing sexually oriented businesses. The CityManager or his/her
designee is also responsible for ascertaining whether a proposed sexually oriented
business for which a permit is being applied for complies; with all locational
requirements of Sections 3, S, and 6 of this Ordinance, all applicable zoning laws
and/or regulations now in effect or as amended or enacted' subsequent to the
effective date of this Ordinance in the City and the City Comprehensive Plan.
C. An application for a permit must be made on a form provided by the City. Any
person desiring to operate a sexually oriented business shall file with the City an
original and two copies of a sworn permit application on the standard application
form supplied by the City or designee.
D. The completed application shall contain the following information and shall
be accompanied by the following documents:
1. If the applicant is:
a. an individual, the individual shall state his/her legal name and any
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000112
aliases and submit satisfactory proof that he/she is eighteen years of age;
b. aP artnership, the partnership shall state its complete name, and the
names of all partners, whether the partnership is general or limited, and a
copy of the partnership agreement, if any;
c. a corporation, the corporation shall state its complete name, the date of
its incorporation, evidence that the corporation is in good standing under the
laws of California the names and capacity of all officers, directors and
principal stockholders, and the name of the registered corporate agent and
the address of the registered office for service of process.
2. If the applicant intends to operate the sexually oriented business under a name
other than that of the applicant; he must state 1) the sexually oriented business's
fictitious name.
3. The single classification of permit for which the applicant is filing.
4. The location of the proposed sexually oriented business, including a
legal description of the property, street address, and telephone number(s),
if any.
5. The applicant's mailing addresses and residential address.
6. A sketch or diagram showing the configuration of the premises, including a
statement of total floor space occupied by the business. The sketch or diagram
need not be professionally prepared, but it must be drawn to scale or drawn with
marked dimensions of the interior of the premises.
7. If a person who wishes to operate a sexually oriented business is an individual,
he/she must sign the application for a permit as applicant. If a person who wishes
to operate a sexually oriented business is other than an individual, each individual
who has a ten percent (10%) or greater interest in the business must sign the
application for a permit as applicant. If a corporation is listed as owner of a sexually
oriented business or as the entity which wishes to operate such a business, each
individual having a ten percent (10%) or greater interest in the corporation must
sign the application for a permit as applicant.
8. If a person wishes to operate a sexually oriented business which shall exhibit on
the premises films, video cassettes, or other video reproductions which depict
specified sexual activities or specified anatomical areas, then said person shall
comply with the application requirements stated at Section 20 et. seq.
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G . Applicants for a permit under this Section shall have a continuing duty to promptly
supplement application information required by this Section in the event that said
information changes in any way from what is stated on the application. The failure
to comply with said continuing duty within thirty (30) days from the date of such
change, by supplementing the application on file with the City.Manager or his/her
designee, shall be grounds for suspension of a permit.
H. In the event that the City Manager or his/her designee determines or learns at any
time that the applicant has improperly completed the application for a proposed
sexually oriented business, he/she shall promptly notify the applicant of such fact
and allow the applicant ten (10) days to properly complete the application. (The
time period for granting or denying a permit shall be stayed during the period in
which the applicant is allowed an opportunity to properly complete the application.)
I. The premises must be inspected and found to be in compliance with health, fire and
building codes and laws.
J. The applicant shall be required to pay a non-refundable; application fee of
one hundred dollars($100. 00) at the time of filing an application under this Section
of this Ordinance.
K . Prior to obtaining any permit or license to operate any sexually oriented business
defined in this Ordinance, and as part of any application for a permit under this
Section, the applicant shall obtain from the City or its designee a certification that
the proposed location of such business complies with the locational requirements
of Section 5 and 6 of this Ordinance.
L. The fact that a person possesses other types of State or City permits and/or
licenses does not exempt him/her from the requirement of obtaining a sexually
oriented business permit.
SECTION 10. INVESTIGATION AND APPLICATION.
A . Upon receipt of an application properly filed with the City and upon payment of the
non-refundable application fee, the City or its designee, shall immediately stamp the
application as received and shall immediately thereafter send photocopies of the
application to any other City agencies responsible for enforcement of health, fire
and building codes and laws. Each department or agency shell promptly conduct
an investigation of the applicant, application and the proposed sexually oriented
business in accordance with its responsibilities under law and as set forth in this
Ordinance. Said investigation shall be completed within twenty (20) days of receipt
of the application by the City or its designee. At the conclusion of its investigation,
each department or agency shall indicate on the photocopy of the application its
16
000114
approval or disapproval of the application, date it, sign it, and, in the event it
disapproves, state the reasons therefor.
B. A department or agency shall disapprove an application if it finds that the proposed
sexually oriented business will be in violation of any provision of any statute, code,
ordinance, regulation or other law in effect in the City. After its indication of
approval or disapproval, each department or agency shall immediately return the
photocopy of the application to the City or its designee.
SECTION 11. ISSUANCE OF PERMIT.
A . The City Manager or his/her designee, shall grant or deny an application for a
permit within thirty (30) days from the date of its proper filing. Upon the expiration
of the thirtieth (30th) day, unless the applicant requests and is granted a reasonable
extension of time,the applicant shall be permitted to begin operating the business
for which the permit is sought, unless and until the City or its designee, notifies the
applicant of a denial of the application and states the reasons(s) for that denial.
B . Grant of Application for Permit
1. The City Manager or his/her designee, shall grant the application unless one or
more of the criteria set forth in Section C below is present.
2. The permit, if granted, shall state on its face the name of the person or persons
to whom it is granted, the expiration date, and the address of the sexually oriented
business.
C. Denial of Application for Permit
1. The City Manager or his/her designee, shall deny the application for any of the
following reasons:
a. An applicant is under eighteen years of age.
b. An applicant has failed to provide information required by this
Section or permit application for the issuance of the permit or has
falsely answered a question or request for information on the
application form.
c. The premises to be used for the sexually oriented business have
not been approved as being in compliance with health, fire and
building codes by the department or agency responsible under law for
investigating said compliance.
17
000115
d. The application or permit fees required by this Ordinance have not
been paid.
e. An applicant of the proposed business is in violation of, or is not
in compliance with, any of the provisions of this Ordinance including
but not limited to the zoning locational requirements for a sexually
oriented business under Sections 3, 5, and 6.
f. The granting of the application would violate a statute; ordinance, or court
order.
2. If the City Manager or his/her designee, denies the application, he/she
shall notify the applicant of the denial and state the reasons(s) for the denial.
3. If a person applies for a permit for a particular location within a period of twelve
(12) months from the date of denial of a previous application for a permit at the
location, and there has not been an intervening change in the Circumstances which
could reasonably be expected to lead to a different decision regarding the former
reasons for denial, the application shall be denied.
SECTION 12. ANNUAL PERMIT FEE
The annual fee for a sexually oriented business permit is !Eight Hundred Fifty
Dollars ($850.00).
SECTION 13. INSPECTION
A. An applicant or permittee shall permit representatives of the Code
Enforcement Office, the County Health Department, and the Fire Department to
inspect the premises of a sexually oriented business for thel purpose of insuring
compliance with the law, at any time it is occupied or open for business.
B . It shall be unlawful and a person who operates a sexually oriented business
regardless of whether or not a permit has been issued for said business under this
Ordinance, or his/her agent or employee commits a misdemeanor if he/she refuses
to permit such lawful inspection of the premises at any time that it is occupied or
open for business.
SECTION 14. EXPIRATION OF PERMIT.
A. Each permit shall expire one (1) year from the date of issuance and may be
renewed only by making application as provided in Section 11 (for renewals, filing
of original survey shall be sufficient) of this Ordinance. Application for renewal shall
18
000116
be made at least thirty (30) days before the expiration date, and when made less
than thirty (30) days before the expiration date, the expiration of the permit will not
be affected.
SECTION 15. REVOCATION OF PERMIT.
A . The City Manager or his/her designee shall revoke a permit if a cause of
suspension in Section 15. of this Ordinance occurs and the permit has been
suspended within the preceding twelve(12) months.
B . The City Manager or his/her designee, shall revoke a permit upon determining that:
1. A permittee gave false or misleading information in the material submitted
during the application enhance the applicant's opportunity for obtaining a
permit; or
2. A permittee or an employee has knowingly allowed possession, use or
sale of controlled substances in or on the premises; or
3. A permittee or an employee has knowingly allowed prostitution on the
premises; or
4. A permittee or an employee has knowingly allowed any act of sexual
intercourse, sodomy, oral copulation, masturbation, or any other specified sexual
activities to occur in or on the permitted premises.
C. When the City Manager or his/her designee, revokes a permit, the revocation
shall continue for one (1) year and the permittee shall not be issued a
sexually oriented business permit for one (1) year from the date revocation
became effective. If, subsequent to revocation, the City Manager or his/her
designee finds that the basis for revocation under Section 15 of this
Ordinance has been corrected, the applicant shall be granted a permit if at
least ninety (90) days have elapsed since the date revocation became
effective. If the permit was revoked under Section 15 of this Ordinance, an
applicant may not be granted another permit until the number of years
required under Section 16. have elapsed.
SECTION 16. REVIEW OF PERMIT DENIAL, SUSPENSION
OR REVOCATION.
After denial of an application, or denial of a renewal of an application, or suspension
or revocation of a permit, the applicant or permittee may seek prompt review of such
19
000lLl"7
administrative action through the City Council or special City Review Board if one is
established by the City.
SECTION 17. TRANSFER OF PERMIT.
A. A permittee shall not operate a sexually oriented business under the authority of a
permit at any place other than the address designated in the application for permit.
B . A permittee shall not transfer his permit to another location.
C . Any attempt to transfer a permit either directly or indirectly, in violation of this
Section is hereby declared void and the permit shall be deemed revoked.
SECTION 18. REGULATIONS PERTAINING TO EXHIBITION OF
SEXUALLY EXPLICIT FILMS OR VIDEOS IN VIDEO
BOOTHS.
A. A person who operates or causes to be operated a sexually► oriented business,
other than a sexually oriented motel/hotel and regardless of whether or not a permit
has been issued to said business under this Ordinance, which exhibits on the
premises in a viewing room of less than one hundred fifty (150) square feet of floor
space, a film, video cassette or other video reproduction which depicts specified
sexual activities or specified anatomical areas, shall comply with the following
requirements:
1. Upon application for a sexually oriented business permit,
the application shall be accompanied by a diagram of the premises showing
a plan thereof specifying the location of one or more manager's stations, the
location of all overhead lighting fixtures and designating any potion of the premises
in which patrons will not be permitted. A manager's station may not exceed
thirty-two (32) square feet of floor area with no dimension greater than eight (8)
feet. The diagram shall also designate the place at which this permit will be
conspicuously posted, if granted. A professionally prepared diagram in the nature
of an engineer's or architect's blueprint shall not be required; however, each
diagram should be oriented to the north or to some designated street or object and
should be drawn to a designated scale with marked dimensions sufficient to show
the various internal dimension of all areas of the interior of the premises to an
accuracy of plus or minus six (6) inches. The City Manager=or his/her designee,
may waive the foregoing diagram for renewal applications if the applicant adopts
a diagram that was previously submitted and certifies that the configuration of the
premises has not been altered since it was prepared.
2. The application shall be sworn to be true and correct by the applicant.
20
000118
3. No alteration in the configuration or location of a managers station may be made
without the prior approval of the City or its designee.
4. It is the duty of the owners and operator of the premises to insure that at least
one employee is on duty and situated at each manger's station at all times that any
patron is present inside the premises.
5. The interior of the premises shall be configured in such a manner that there is
an unobstructed view from a manager's station of every area of the premises to
which any patron is permitted access for any purpose, excluding restrooms.
Restrooms may not contain video reproduction equipment. If the premises have two
or more manager's stations designated, then the interior of the premises shall be
configured in such a manner that there is an unobstructed view of each area of the
premises to which any patron is permitted access for any purpose from at least one
of the manager's stations. The view required in this subsection must be by direct
line of sight from the manager's station.
6. It shall be the duty of the owners and operator, and it shall also be the duty of
any agents and employees present on the premises to insure that the view area
specified in Subsection 5 remains unobstructed by any doors, walls, merchandise,
display racks or other materials or person at all times and to insure that no patron
is permitted access to any area of the premises which has been designated as an
area in which patrons will not be permitted in the application filed pursuant to
Subsection a. of this Section.
7. No viewing room may be occupied by more than one person at any one time. No
holes, commonly known as"glory holes," shall be allowed in the walls or partitions
which separate each viewing room from an adjoining viewing room or restroom.
8. The premises shall be equipped with overhead lighting fixtures of sufficient
intensity to illuminate every place to which patrons are permitted access and an
illumination of not less than two (2.0) foot candle as measured at the floor level.
9. It shall be the duty of the owners and operator and it shall also be the duty of any
agents and employees present on the premises to insure that the illumination
described above is maintained at all times that any patron is present on the
premises.
B. A person having a duty under Section 9 "a" (1) - (9). commits a misdemeanor if
he/she knowingly fails to fulfill that duty.
21
000119
SECTION 19. PROHIBITIONS REGARDING MINORS AND SEXUALLY
ORIENTED BUSINESSES.
A person commits a misdemeanor if he/she operates or causes to be operated a
sexually oriented business, regardless of whether or not a permit has been issued for said
business under this Ordinance, and knowingly or with reasonable cause to know, permit,
suffer, or allow:
A. Admittance of a person under eighteen (18) years of age to the business premises
unless accompanied by a parent or guardian;
B. A person under eighteen (18) years of age to remain at the business premises
unless accompanied by a parent or guardian;
C. A person under eighteen (18) years of age to purchase goods or services at
the business premises without the specific consent of a parent or guardian;
or
D. A person who is under eighteen (18) years of age to work at the business premises
as an employee.
SECTION 20. ADVERTISING AND LIGHTING REGULATIONS.
A. it shall be unlawful and a person commits a misdemeanor if he/she operates
or causes to be operated a sexually oriented business, regardless of whether or not
a permit has been issued for said business under this Ordinance, and advertises
the presentation of any activity prohibited by any applicable $tate statute or local
ordinance.
B. It shall be .unlawful and a person commits a misdemeanor if he/she operates
or causes to be operated a sexually oriented business, regardless of whether or not
a permit has been issued for said business under this Ordinance, and displays or
otherwise exhibits any materials depicting, describing, or relating to specified
sexual activities or specified anatomical areas from any public property or way
outside the building area of the business. This provisions shall apply to any
display, decoration, sign, show window, or other opening. This,prohibition shall not
extend to advertising of the existence or location of such sexually oriented
business.
C. The permittee shall not allow any portion of the interior premises to be visible from
outside the premises.
D. All off-street parking areas and premise entries of the sexually oriented business
. 22
000120
shall be illuminated from dusk to closing hours of operation with a lighting system
which provides an average maintained horizontal illumination of one (1.0) foot
candle of light on the parking surface and/or walkways. This required lighting level
is established in order to provide sufficient illumination of the parking areas and
walkways serving the sexually oriented business for the personal safety of patrons
and employees and to reduce the incidence of vandalism and criminal conduct. The
lighting shall be shown on the required sketch or diagram of the premise.
E. Nothing contained in this Section of the Ordinance shall relieve the operator(s) of
a sexually oriented business from complying with the requirements of the City of
commonly known as the Sexually Oriented Business Ordinance, as it may be
amended from time to time, or any subsequently enacted City ordinances or
regulations, nor shall anything contained herein relieve a sexually oriented
business from complying with other development, performance, design, and
signage requirements of the Zone in which they are located.
SECTION 21. HOURS OF OPERATION.
A. It shall be unlawful and a person commits a misdemeanor if he/she operates or
causes to be operated a sexually oriented business, regardless of whether or not
a permit has been issued for said business under this Ordinance, and allows such
business to remain open for business, or to permit any employee to engage in a
performance, solicit a performance, make a sale, solicit a sale, provide a service,
or solicit a service, between the hours of 2:00 a.m. and 6:00 a.m. of any particular
day.
B. It shall be unlawful and a person commits a misdemeanor if, working as an
employee of a sexually-oriented business, regardless of whether or not a permit has
been issued for said business under this Ordinance, said employee engages in a
performance, solicits a performance, makes a sale, solicits a sale, provides a
service, or solicits a service between the hours of 2:00 a.m. and 6:00 a.m. of any
particular day.
SECTION 22. NUDITY AT SEXUALLY ORIENTED BUSINESSES
PROHIBITED.
A. The United States Supreme Court decision in Barnes v. Glen Theater, Inc., 501
U.S. 560, 111 (1991) which upheld the rights of cities to prohibit live public
exposure of a person'(s) private parts, specifically applies to sexually oriented
businesses (regardless of whether or not a permit has been issued to said
businesses under this Ordinance), including said businesses where no alcoholic
beverages are sold, served, or consumed at the premises.
23 i
000121
B . Public nudity is prohibited within the City of Atascadero including any sexually
oriented business. Any sexually oriented business which is found in violation of this
section shall have its permit suspended pursuant to the provisions of Section 15.
SECTION 23. ADDITIONAL CRIMINAL PROHIBITIONS FOR THE OPERATION OF
A SEXUALLY ORIENTED BUSINESS WITHOUT A VALID PERMIT.
A. In addition to the criminal provisions found at other sections of this Ordinance,
the following additional criminal provisions shall also apply to sexually oriented
businesses.
B. It shall be unlawful and a person commits a misdemeanor if hie/she operates or
causes to be operated a sexually oriented business, regardless of whether or
not a permit has been issued for said business under this Ordinance, and said
person knows or should know that:
1. The business does not have a sexually oriented business permit under this
Ordinance for any applicable classification;
2. The business has a permit which has been revoked; or
3. The business has a permit which has expired.
SECTION 24. EXEMPTIONS.
A. It is a defense to prosecution for any violation of this Ordinance that a person
appearing in a state of nudity did so in a modeling class operated:
1. By a college, junior college, or university supported entirely or partly by
taxation;
2. By a private college or university which maintains and operates educational
programs in which credits are transferable to a college, junior,college, or
university supported entirely or partly by taxation; or:
3. Ina structure:
a. Which has no sign visible from the exterior of the structure and no
other advertising that indicates a nude person is available for
viewing; and
24
000122
b. Where, in order to participate in a class a student must
enroll at least three days in advance of the class; and
c. Where no more than one nude model is on the premises at any
one time.
SECTION 25. CRIMINAL PENALTIES AND ADDITIONAL LEGAL,
EQUITABLE, AND INJUNCTIVE RELIEF.
A . In addition to whatever penalties are applicable under the California Penal Code,
if any person fails or refuses to obey or comply with or violates any of the criminal
provisions of this Ordinance, such person upon conviction of such offense, shall be
guilty of a misdemeanor and shall be punished by a fine not to exceed Five
Hundred Dollars ($500.00) or by imprisonment not to exceed sixty (60) days in the
City jail, or both, in the discretion of the Court. Each violation or noncompliance
shall be considered a separate and distinct offense. Further, each day of continued
violation or non-compliance shall be considered as a separate offense.
B. Nothing herein contained shall prevent or restrict the City from taking such other
lawful action in any court of competent jurisdiction as is necessary to prevent or
remedy any violation or non-compliance. Such other lawful actions shall include, but
shall not be limited to, an equitable action for injunctive relief or an action at law for
damages.
C. All remedies and penalties provided for in this Section shall be cumulative and
independently available to the City and the City shall be authorized to pursue any
and all remedies set forth in this Section to the full extent allowed by law.
D. The owners, operators and managers of premises which constitute a sexually
oriented business are responsible for compliance with this Code.
SECTION 26. SEVERABILITY
If any section, subsection or clause of this ordinance shall be deemed to be
unconstitutional or otherwise invalid, the validity of the remaining sections, subsections
25
000123
and clauses shall not be affected thereby and shall remain in effect.
The foregoing ordinance approved and adopted at a meeting of the Cit Council
9 9 Pp P 9 Y
held on , 19_, by the following vote:
AYES: NOES: ABSTENTIONS:
ATTEST:
BY:
Lee Price, City Clerk
BY: BY:
George Highland, Mayor Andrew Takata, City Manager
APPROVED AS TO FORM AND CONTENT:
BY
Roy A. Hanley, Deputy City Attorney
26
0001211
0
ORDINANCE NO. 300
AN ORDINANCE OF THE COUNCIL OF THE CITY OF
AMENDING THE ZONING ORDINANCE TEXT TO
IMPLEMENT AND CONFORM TO THE PROVISIONS OF THE
ATASCADERO SEXUALLY ORIENTED BUSINESS ORDINANCE
(ZC 95-005; City of Atascadero)
WHEREAS, the proposed Zoning Ordinance text amendments are
consistent with the General Plan as required by Section 65860 of
the California Government Code; and
WHEREAS, the proposed amendments are in conformance with
Section 65800 et seq. of the California Government Code
concerning zoning regulations; and
WHEREAS, the proposed amendments will not have a significant
adverse impact upon the environment. The Negative Declaration
prepared for the project is adequate; and
WHEREAS, the Atascadero Planning Commission held a public
hearing on February 6, 1996 and has recommended approval of Zone
Change 95-005 .
NOW, THEREFORE, the Council of the City of Atascadero does
ordain as follows :
Section 1 . Council Findings.
1 . The proposals are compatible with the surrounding land
use and zoning.
2 . The proposals are consistent with the General Plan
Land Use Element and other elements contained in the
General Plan, and specifically, policies pertaining to
downtown development and revitalization as expressed in
the General Plan Downtown Element.
3 . The proposals will not result in any significant
adverse environmental impacts. The Negative
Declaration prepared for the project is adequate.
0001 14'a
Ordinance No. 300
Section 2 . Zoning Text.
The Zoning Ordinance text is hereby amended as folows :
1 . Section 9-3 . 212 (Commercial Professional ',Zone Allowable
Uses ) is amended by the addition of:
(z) Sexually Oriented Businesses (see Ordinance# 298)
2 . Section 9-3 .222 (Commercial Retail Zone Allowable Uses)
is amended by the addition of:
( 11) Sexually Oriented Businesses (see Ordinance# 298)
3 . Section 9-3 .232 (Commercial Service Zone Allowable
Uses ) is amended by the addition of:
(o) Sexually Oriented Businesses (see Ordinance# 298)
4 . Section 9-3 . 302 (Industrial Park Zone Allowable Uses)
is amended by the addition of:
( z) Sexually Oriented Businesses (see Ordinance# 298)
5 . Section 9-3 . 312 (Industrial Zone Allowable Uses) is
amended by the addition of:
( j ) Sexually Oriented Businesses (see Ordinance# 298)
6 . Section 9-3 . 701 (Land Use Definitions) is amended by
the addition of:
Sexually Oriented Business : Any business defined by
the Atascadero Sexually Oriented Business Ordinance as
an Adult Arcade, Adult Bookstore, Adult Novelty Store,
Adult Video Store, Adult Cabaret, Adult Motel, Adult
Motion Picture Theater, Adult Theater, Massage Parlor,
Sexual Encounter Establishment, or Nude Model Studio is
a sexually oriented business .
Section 3 . Publication.
The City Clerk shall cause this ordinance to be published
once within fifteen ( 15) days after its passage in 'the Atascadero
News, a newspaper of general circulation, printed, published, and
circulated in the City in accordance with Section 36933 of the
Government Code; shall certify the adopting and posting of this
ordinance and shall cause this ordinance and this certification
together with proof of posting to be entered into the Book of
000126
Ordinance No. 300
Ordinances of the City.
Section 4 . Effective Date.
This ordinance shall go into effect and be in full force and
effect at 12 :01 a.m, on the 31st day after its passage.
On motion by and seconded by
, the foregoing Ordinance is approved
by the following role call vote:
AYES:
NOES:
ABSENT:
DATE ADOPTED:
By:
GEORGE P. HIGHLAND, Mayor
ATTEST:
LEE PRICE, City Clerk
APPROVED AS TO FORM:
ARTHER R. MONTANDON, City Attorney
PREPARED BY:
STEVEN L. DeCAMP, City Planner
00012'7
r
REPORT TO CITY COUNCIL Meeting D te: 3112196
CITY OF ATASCADERO Agenda It I
m: C-4
Through: Andy Takata, City Manager
From: Brad Whitty, Finance Dir— or
j
i
SUBJECT: Fiscal report on the Atascadero Factory Outlet�
I
RECOMMENDATION: Staff recommends City council review and accept this report
BACKGROUND:
j
The City Council has previously requested an update on the fiscal imp#ct of having the
Factory Outlet in the City of Atascadero. This reports intends to fulfill that request.
The owners of the Factory Outlet approached the City in 1991 to develop the property
located at the comer of El Camino Real and Del Rio Road. The City r ived a "Focused
Environmental Impact Report" from the consultant SEDES dated January 1992. Following
a year of review by the City, a limited obligation improvement bond was issued by the City
in June 1993, with a contract signing with the Camino Real Fashion C utlets Center for
public improvement financing occurring in August 1993. Construction began immediately
thereafter, with completion in October 1994. Stores began opening in No ember 1994 with
most spaces opened by June 1995. I
Discussion:
;
i
The methodology used here will be to follow the benefits and costs as pre ented in the E1R
and which are summarized in Attachment A of this staff report.
The EIR provided by the consultant SEDES included a fiscal impa-t section which
described the cost of providing City services versus the expected revenues that the project
would generate. Section N, Part J Fiscal Impacts, is included as Attachment B of this staff
report to facilitate comparison with the results of the project thus far.
Sales Tax revenues were measured from fourth quarter 1994 to third q,anter 1995 while
other actual revenues shown in attachment A were measured over thelperiod from July
1993 to December 1995 unless otherwise noted on the statement. Openditures were
measured from July 1993 to December 1995 unless otherwise noted on the statement.
i
Attachment A shows that the City is receiving more revenues from the commercial property
I
j 000128.0
i
s
than it was as raw land. The City receives direct impacts of property taxes, sales taxes,
and business licenses fees. Additionally, the indirect impacts (Attachment B) as shown in
the SEDES report include wages from the jobs and induced economic activity. The report
utilized a turnover ratio of 1.9 for every dollar of activity. (See Attachment B, Page IV-58)
Conclusion:
The Factory Outlet has brought increased revenues and jobs to the City of Atascadero.
While there are associated costs to the City of having the Outlet, the overall economic
impact appears to be in the City's best interest.
Enclosures: Attachment A-Fiscal Impact Analysis
Attachment B-Excerpt from SEDES EIR on fiscal impacts
000128 .1
Attachment A City of Atascadero
Factory Outlet
Fiscal Impact Analysis j
Through 12/31/95
REVISED
Prior To
Direct Impacts Development Estimate Actual Note#
REVENUES
Ongoing
Property Taxes $1,650 20,600 18,2010 1
Sales Taxes N/A - 166,000 125,797 2
Local Transportation Fund N/A 452 3210 1
Business License Fees N/A 4,500 4,640
Sewer Usage Charges N/A N/A 5,200 1
Subtotal - Ongoing $1,650 191,552 148,957
One Time:
Developer Fees N/A 177,000 87,330 3
Permit Fees N/A N/A 29,0310 3
Total - Revenue Impacts $1,650 368,552 265,317
EXPENDITURES
Ongoing:
Sewage Treatment N/A 23,600 5,200
• Police Protection N/A 25,000 41,600
Fire Protection N/A 18,600 7510
Streets Maintenance N/A 1,740 100
Assessment Obligation N/A 83,000 23,260 4
Subtotal - Ongoing 0 151,940 70,9110
One Time:
P E &A Staff Costs N/A N/A N/A 5
Total - Expenditure Impacts 0 151,940 70,9110
Net - Ongoing $1,650 39,612 $78,047
Net - One Time N/A 216,612 194,407
Notes:
1. The Revenues shown are the amounts through December 1995.
2. The actual includes 4th gtr'94, 1st,2nd, &3rd gtrs.'95. The Factory Outlet was partially opened
for the 4th gtr'94 and sales tax reported was for two months rather than three.
3. Waived fees amounted to$125,673.52 development fees&$4,450.00 permit fees.
4. The City has an additional payment$23,260 due 4/8/96 for sales taxes received through 8/95.
The City's obligation for 3rd gtr'95 will not be paid until 12/96&4/97.
5. Actual time not recorded by staff on project.
• REVISED 3/12/96
i
I
Attachment A City of Atascadero
Factory Outlet
Fiscal Impact Analysis
Through 12/31/95
* Prior To f
Direct Impacts, Development Estimate Actual Note#
REVENUES
Ongoing:
Property Taxes $1,650 20,600 18,2001 1
Sales Taxes N/A 166,000 125,797 2
Local Transportation Fund N/A 45g 3201 1
Business License Fees N/A 4,50 4,6401
Sewer Usage Charges N/A N/P=+ 5,200 1
Subtotal - Ongoing , $1,650 191;552 148,95
One Time:
Developer Fees NM 1.77,000 87,330 3
Permit Fees NIA °'N/A 29,03Q) 3
Total - Revenue Impacts $1,6-150% ;s 368,552 236,287
o-
EXPENDITURES
Ongoing:
Sewage Treatment N/A \3,600 5,200Police Protection N/A41,600
Fire Protection N/A 750
Streets Maintenance N/Aw 100
Assessment Obligation N/A 831000 23,26q 4
Subtotal - Ongoing 1lS 151,940 70,910
One Time:
P E &A Staff Costs = N/A N/A A 5
Total - Expenditure Impacts 0 151,940 7 , 10
a
Net - Ongoing $1,650 39,612 $78,04
Net - One Time N/A 216,612 165,377
yk
Notes:
1. The Revenues shown are the amounts through December 1995.
2. The actual includes 4th gtr'94, 1st, nd, &3rd gtrs.'95. The Factory Outlet was partially opened\
for the 4th gtr'94 and sales tax reported was for two months rather than three.
3. Waived fees amounted to$125,67.52 development fees&$4,450.00 permit fees.
4. The City has an additional payme�t$23,260 due 4/8/96 for sales taxes received through 6/$5.
The City's obligation for 3rd gtr'90will not be paid until 12/96&4/97.
5. Actual time not recorded by staff:<on project.
f
•
0001 8.D.,
l
Attachment B
The audible increase of noise at there ' athe south may
be De, ei rty owner requests mitigation, acoustical
J. FISCAL IMPACTS
1. Environmental Issue
This section examines the fiscal impact of the proposed project in terms of the cost
of providing City services versus the expected revenues that the proposed project
would generate.
2. Environmental Setting
The City of Atascadero was incorporated in 1979. The City experienced rapid
growth in both revenues and expenditures during its first decade of existence.
During this period,while the population of the City increased about 44%factoring
out inflation, revenues to the City increased by 130%, and City expenditures
increased by about 150%. Part of this large discrepancy is attributed to initial start-
up costs of the City, and the City's providing more and higher levels of service to
residents than did the county prior to incorporation.
The largest single fund within the City's budget is the General Fund. The General
Fund receives monies from various taxes such as property taxes, sales taxes, and
transient occupancy taxes, among others. Funds received from State and Federal
sources such as cigarette and gas taxes also end up in the General Fund. Other
funds originate from fees charged for various City services such as recreation
programs.
In addition to the General Fund, the City maintains several "enterprise" funds.
Such funds operate independently of the General Fund and are typically supported
through fees levied on the users of such services. Examples of enterprise funds
include waste-water treatment,the City's Dial-A-Ride program,park concessions
and the zoo.
Table 2 displays the City's revenues sources as shown in the City's adopted
1991192 budget.
Table 2 General Fund Revenue Sources For Atascadero- 1991/92
Revenue Source Dollars Percent of
Total Bud et
Pro Taxes $ 2,270,000 31.62%
Sales Taxes $ 1,900,000 26.47%
Other Taxes $ 516,000 7.19%
Int vernmental $ 1,083,200 15.09%
Fees and Charges $ 938,573 13.08%
Other Revenues $470,050 6.55%
Total $ 7,177,823 10090
Source: Atascadero City Budget,1991/92
00012.8 .3
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The following table summarizes General Fund appropriations for d e City for fiscal
year 1991/92.
Table 3 General Fund AP ns For Atascadero- 1991/'91
Deparoment Dollars Percent of
Total Budget
General Government $316,255 4.45
Police $ 2,054,300 28.89
Fut $ 1,066,300 15.00
Public Works/Engineering $ 346,905 4.88
92EEEMk RTTI. t $ 765,617 10.77
Community Services $ 1,410,723 19.84
Administrative Services $ 666,335 9.37
Non- tal $ 483,688 6.80
Total 7,110,123 100
Source: AU=admv City Budge.1991/92
While Tables 2 and 3 show a slight General Fund surplus, in reality, payments
for debt service and capital projects give the City a balanced General Fund balance
for 1991/92.
3 . Impacts
The proposed project will affect the City's fiscal position bath directly and
indirectly. Directly, the City's revenues will increase (relative to the no-project
alternative) from increased property taxes,.sales taxes, and developer fees. The
City's costs will also increase because additional services such as road
maintenance, street lighting, police and fire services will be required. Indirectly,
the City will see benefits arising from increased wages of new employees, and the
multiplier effects of such wages on the local economy.
Direct Ben _rits
Property taxes
The proposed project site encompasses five vacant assessor's parcels of land.
Information from the San Luis Obispo County Secured Preliminary Assessment
Roll for 1991/92 shows that the assessed valuation of this land is currently
$917,799. It is important to note that the two parcels nearest Det'Rio Road have
not been reassessed since 1978 and 1980; thus were those parcels to resell today,
there assessed valuation would be much higher. There ire no current
improvements on any of these parcels.
The property tax rate in San Luis Obispo County (and the State of California) is
one percent of a property's assessed valuation. Atascadero currently receives 20%
of this amount from the County; the County retains the resit. Thus if no
improvements are made to the property,the City can expect to receive_
$917,799 valuation x I% tax rate x 20% Atascadero proportion:= $1,835.60 in
property tax revenue from the project site in 1991/92.
If the land is not sold, the value of the land is appreciated two perent per year as
allowed under Proposition 13. If the land (or any portion thereof) is sold, it will
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be reassessed for taxation purposes at its fair market value. Additionally,
improvements will also be valued at their fair market value. While simple in
• concept, in practice such valuation can be quite difficult The County Assessor
uses three approaches to determine value_ comparable sales,replacement cost, and '
the income approach. `
For income producing commercial properry such as the proposed project, the
income approach is used to determine fair market value. This approach evaluates
the gross income the property could generate in comparison to the operating costs
to estimate the net income from the property. This value is then used to estimate
what an investor would be willing to pay for the property_ Additionally,industrial
equipment and inventories are subject to personal property taxation.
Without detailed information on the size of buildings, amount of equipment,
average inventories,and operating expenses,it is difficult to estimate the value of
such improvements_ This in turn makes difficult the task of estimating property
taxes that the proposed project would generate. However, some generalized
assumptions can provide a reasonable approximation.
An acre of vacant commercial land with highway frontage in Atascadero currently
sells for approximately$230,000 (Atascadero Realty, personal communication).
The cost of construction for commercial buildings can range from$75 per square
foot for an unimproved building (no interior partitions, light fixtures,carpeting,
etc.) to$125 per square foot for an improved building.
The applicant proposes to construct 88,000 square feet of building to house retail
fashion outlets. Assuming this is the basis for improvement valuation, the value of
improvements will range from about$6.6 million to$11 million. The cost of land
(6.7 acres Qa $230,000 per acre), adds approximately $1.5 million to the range.
Thus the expected property tax the City would receive ranges from:
$8.1 million x I% tax rate x 20%Atascadero proportion=$16,200/year, to,
$12.5 million x 1% tax rate x 20%Atascadem proportion=$25,000/year.
It is important to note that the above range does not take into account the potential
income the site may generate nor the value of equipment, machinery or inventories
that are subject to property taxation. Using the potential income approach to
assessing the value of such uses would result in higher valuations. Thus, the
above range of values is probably conservative.
Retail sales taxes
The applicant proposes to construct 88,000 square feet of retail commercial space
to house a Factory Outlet center. Though no specific clients have entered into lease
agreements for space in the project, this analysis assumes the majority of the
clients will be clothing stores typical of other such outlet centers.
The Urban Land Institute (ULI) conducts surveys of shopping centers and
publishes the results in a document entitled, Dollars and Cents of Shopping
Centers: 1990. That document breaks out various information relevant to
shopping centers by geographic region and size of the shopping center. For
regional shopping centers in the western United States, the median annual sales
volume per square foot of gross leasable area ranges from about $150 for
iv-55 000126.S
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women's ready-to-wear clothing to about $226 for special apparel unisex
I clothing.
Applying these figures to 88,000 square feet of gross leasable a=suggests total,
annual retail sales ranging from about $13.2 million to$23 e3ilkea about
$20 million. Atascadem currently receives one cent of the 7.25% sales tax rate
*applied in San Luis Obispo County, or one percent of taxable retail sales. Thus,
the City can expect between $132,000 and $230,000 per year in sales tax
revenues.
The California Transportation Development Act('TDA)provides the City with one-
quarter of one percent of sales taxes specifically designated for transportation
purposes. The so-called Local Transportation Fund(LTF) may be used for public
transit, bikeways or street and road purposes. Given the estimates of retail sales
above,the City's LTF would increase by less than$1,000.
Deye�pment impact fees
Atascadere currently charge development impact fees for residential and
commercial development within the city. Specifically, the city charges the
following razes per square foot for commercial projects located within the Urban
Services Line(USL):
Drainage $0.245
Streets,Roads and Bridges $1.166
Public Safety $0.452
Parks $0.128
Miscellaneous $0.023
TOTALS $2.014
• Thus, at $2.014 per square feet, the proposed project would be required to pay
$177,232.
It is important to note two caveats to the development fee impact;revenue: 1) this
revenue is a one-time payment, as opposed to property and sales taxes that recur
each year, and 2) development impact fees must be used for specified capital
projects as listed in the City's five year capital improvement program; the funds
can not be simply added to the City's General Fund_
Other revenues
The proposed project will generate other revenues for the City. !Building permit
fees, business license fees,plan check and other fees will be charged at various
stages of project construction and development. However, with tithe exception of
business licenses,such revenues are one-time fees that offset services provided by
the City to facilitate developmenL Thus,these revenues(and costs)are assumed to
balance each other and not included in this analysis.
Business license fees are charged for all businesses operating within the City. The
City charges a base fee of$50 per commercial establishment plus$10 per full-time
employee and$5 per part-time employee.
While the occupants of the proposed project remain unknown;, the number of
employees can be estimated reasonably well. Retail stores tend to be fairly labor
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intensive. A 1986 study for the Urban Land Institute cites a figure of 5.08
employees per 1,000 square feet of retail workspace (Gruen, et al, 1986).
Applying this average to the propoSed Outlet Center yields about 450 jobs created
by the project. It is not currently known how many retail establishments will i
occupy the Outlet Center. Based on the approximately 450 employees that the
project would generate,the City could expect:
($50 base fee x Number of stores) + (450 full-time employees x $10 per
employee) =Base Fee+$4,500 per year.
AM=Udatims limit
California state law limits the ability of cities and counties to spend certain
revenues beyond established criteria_ The so-called"Gann" Limit allows cities to
increase their annual spending by amounts that account for inflation and population
�� - In recent Years,the City of Atascadero was nearing that limit
Passage of Proposition 11 I in June of 1990 provided additional flexibility to cities
in calculating their annual spending limits. As a result; in June of 1991, the City
of Atascadero amended their past appropriations limits, and increased their 1991-
92 limit to provide a larger cushion between actual expenditures and the adopted
limit Based on projected expenditures for 1991-92, the City expects to be
$615,928 below the adopted spending limit
This project alone will probably not cause the City to exceed the adopted spending
limit. However, should the Limit be reached, the City has two options: 1) it can
return the money to the residents(through a variety of means),or 2) it can ask the
voters to exempt the City from the adopted limit
Indirect B nefit •
Wages
While not affecting the City directly (here we refer to the City as the legal entity
rather than the community at large), the addition of commercial enterprises will
generate wages for employees,which in turn will generate demand for other goods
and services within the community.
The jobs that the proposed Outlet Center would provide are primarily hourly wage
jobs. Some management positions will obviously be created, but the majority of
,lobs will be sales clerks,janitorial and other types of maintenance work- For the
purpose of analysis, we assume the average annual wages of all workers to be
$20,000. Applying this average to the estimated 450 employees suggests an
average annual payroll of approximately$9 million.
Induced.2M flgMic-A.•:;;.t..,
Economists use multipliers to quantify the total economic activity that results from
a given economic action. For example,if one spends a dollar in a doughnut shop,
that dollar provides the baker with the opportune
other commodity). t}'spend a dollar on shoes (or any
Various studies cite spending multipliers ranging from 1.S to as high as 3.5,
though a recent study of the econorme impact of Cal Poly State University cited
N-57 000128.-f
1.9 as a conservative figure (Papakyriasis, et al, 1991). Appljying 1.9 to the
estimated wages suggests total economic value of approximatel' $17.1 million,
with a range from$13.5 million to$31.5 million. While this amo t does not end
up on the City coffers, to the extent that such"multiplied" Wono c activity is in
the retail sector,additional sales rax revenues will generated.
Surmnaaz
The following tables summarize the fiscal and economic benefits to the City.
Table 4 Direct and Indirect Economic Benefits
Direct Impacts Low Estimate High timate
Pmperty Taxes $ 16,200 $ 25,000
Sales Taxes $ 132,000 $ 200,000
Local Transportation Fund $ 33,000 $ 57,500
DeveiFees 1 $ 177,000 $ 177,000
BusiCrota
icense Fees -$4,500 + $4,500 +
! - Direct Im acts $ 362,700 $ 464,000
t
Indirect Impacts Low Estimate 10gh Estimate !
Wages $ 9,000,000 $ 9,000,000
Induced Economic Activity $ 4,500,000 $22,500,000
Total - Indirect Impacts $ 13,500,000 $ 131,500,000
i Developer fee is a one time, first yeas bawfiL
Costs
iThe cost of providing services to the proposed project is detailed below. The City
of Atascadero provides public services including sewage treatment, police
protection, fire protection, parks and recreation programs, d other general
government functions. Water is provided by the Atascade Mutual Water
Company. Schools-are operated by the Atascadero Unified Sch 1 District Solid
waste disposal is provided by Wil-Mar Disposal, a private company, which
operates under a private franchise agreement with the City.
Water Delivery- Setting
Water service is provided to the City by Atascadero Mutual !Water Company
(AMWC), which is owned by lot owners within the Colony. AMWC extracts
about 2,530 acre-feet of water per year from wells that tap into;the Paso Robles
Groundwater Basin. Five shallower wells withdraw water fron# gravel deposits
underlying the Salinas River,located on the easterly edge of the City.
Peak demand for water occurs during the summer and has surpassed 10 million
gallons per day. AMWC has a current storage capacity about i million gallons
per day. An additional 3 million gallon storage tank is planned to meet expected
future demand.
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Water Delivery-Costs
The Atascadero Mutual Water Company (AMWC) provides water service to
properties located within the Atascadero Colony boundary. The proposed project
site lies within the boundary; therefore the site will be served by AMWC. While
providing service to the site may increase costs of providing water service, such
costs are borne by members of the AMWC. Thus,no fiscal impact to the City will
result
Sewage Treatment_-Setting
The City collects, treats and disposes of sewage from development within the
Urban Services Line (USL). The Draft LUE indicates that in 1989, the City
provided sewage service to 3,264 dwellings (out of 8,031 total dwellings in the
City),or about 40% of the total population. The treatment plant has a capacity of
about 1.8 million gallons per day(mgd).Currently the average dry weather flow is
about 1.1 mgd, with a peak dry weather flow of about 1.75 mgd. Peak wet
weather flows (dry weather flow, plus storm water runoff and/or groundwater
infiltration)can be as much as twice the dry weather flow(about 3.4 mgd).
Lands outside of the Urban Services Line are required to provide on-site sewage
disposal through the use of septic systems. Failure of older septic systems has
been a continual problem in the City. According to the Draft LUE, the Soil
Conservation Service considers much of the land outside the Urban Services Line
to be "severe'for septic systems, meaning that most systems require engineered
plans. The Draft Pian requires percolation tats for each lot prior to issuance of a
building permit.
The City currently sets priorities for the provision of sewer services to new
customers. Areas within the Urban Services Line with failed (or failing) septic
systems are given fust priority, followed by other lands within the USL and
finally, failed systems beyond the USL.
Sewage Treatment-Costs
The site of the proposed project lies inside of the City's urban services line (USL).
Both the existing and proposed update of the City's general plan set priorities for
the provision of sewer services to new customers. Areas within the USL with
failed (or failing) septic systems are given first priority, followed by other lands
within the USL and finally,failed systems beyond the USL.
The proposed project would add additional annual costs to the City for 1)
maintenance of additional system infrastructure,and 2)treatment of the additional
effluent. The Effluent:Disposal section of this document cites the need for a
sewage lift station and approximately 8,770 feet additional sewer line to adequately
treat the 20,000 gallons of effluent per day the project is expected to generate.
Assuming that the applicant is required to install such improvements, the cost to
the City would be limited to periodic maintenance. Such costs are included in the
facility's operating costs and discussed below.
The City's sewage treatment facility currently treats about 1.1 million gallons per
day during average dry weather flows. The operating cost for the facility during
fiscal year 1990/91 was approximately$926,000 including debt service. Dividing
the treated effluent by the operating cost yields an average annual cost of about
N-59 0001121 `3
$1.18 dollars per gallon/day. Assuming that this average holds, the incremental
cost of sewer system maintenance to the City will be$23,600(20,000 gallons per
day x$ 1.18 dollars per gallon per year.)
Police Rmtection -Settin�
The City recently relocated the Police Station to the corner of Fd Camillo Real and
Rosario to be more centrally located. The new station is expected to serve the
needs of the police department as it grows to meet the needs of the City in the
future. Currently, the City provides about 1.2 officers per 1000 people. The
Police Chief has indicated that the prefmTed level of service would:.be 1.5 officers
per 1000. In addition to sworn officers,a number of support staff including clerks
and dispatchers are needed for the efficient operation of the department:.
The Long Range Fiscal Analysis identifies the need for a computer software
upgrade including a dispatch system in 1993/94,and a new base communication
station and mobile portable units the following year. Aside from these items, no
major capital improvements are required to adequately serve the build out
Population.
Police Protection-Costs
i
The proposed Factory Outlet center will require periodic police services for
security and investigations of property crimes such as theft and v4ndalism. The
Atascadero Police Department estimates that the proposed facility would require the
services of approximately half a sworn officer each year(Bill Watton,Atascadero
Police Department, personal communication). The cost of sworn officer to the
City is approximately $50,000 per year including salary and benefits. Thus the
proposed project would increase the need for police services by about$25,000 per
year.
Fire Protection- Setting
The City provides fire protection within the City limits, and hash a mutual aid
agreement with the California Division of Forestry. The fire department operates
out of two fire stations, providing structural and wiidland fire protection,
emergency medical service and fire prevention to the public. The fire department
would like to have a 9 minute reflex time over 90% of the City, aro a 10 minute
reflex time over 95% of the City for fire response ("reflex time'" differs from
response time in that reflex time includes the time elapsed from actually receiving a
call for assistance to arriving at the scene,while response time is simply the time it
takes td drive to the scene). The department would like to have an &minute reflex
time for emergency medical care over 90%of the City and 10 minute reflex time `
over 9590 of the City.
Currently, the City maintains about a 12.5 minute reflex time Citywide. The City
plansto shorten this time by constructing a third fire station on the west side of the
City to better serve the suburban residential neighborhoods. A founth fire station
will likely be needed in the southwestern part of the City within the next eight to
ten years.
The Long Range Fiscal Plan indicates a need for the third fire station within the
next five years and the fourth within the next eight to ten years.
Funding to
purchase the land for the former was included for fiscal year 1991/92 in the five
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year Capital Improvement Plan, but was omitted from the final budget.
Negotiations are currently under way to acquire land for station number three on
San Ramon Road north of Del Rio Road.
Fire Protection-Costs
Fie protection for the proposed site would be provided by the downtown fire
station. Response time from the downtown station is about seven minutes;reflex
time is about nine to ten minutes. The Department is concerned whether their
existing equipment is sufficient for fire fighting requirements at the site The large
roof area of the proposed building increases the difficulty of fighting fires with
ground ladders. Aerial apparatus mounted to trucks would be preferred, though
the City currently has no such facilities(Vem Elliot,Fire Marshall,memo to Doug
Davidson,June 13, 1991)
The Fire Department has required that the applicant install fire hydrants and
building sprinklers, and to inssne sufficient room for fire truck maneuvering to
minimi'r potential fire hazard. None of these measures will increase the annual
operating costs of the department
The addition of structures and improved property within the City will incrementally
increase the cost of providing fie protection. One way of deriving this incremental
cost is divide the additional square footage.of building into the total commercial
square footage in the City,and applying the resulting proportion to the proportion
of fire operating costs that are attributable to commercial property. In 1987, about
2.2 million square feet of commercial buildings existed in the City,and on average
about 92,000 additional square feet are built each year(Crawford Multari&Starr,
1990). Thus about 2.6 million square feet of commercial currently exist
The City's 1991192 adopted budget estimates of about $1.1 million for the fire
department. If one assumes that half of the fire departments calls go to residential
areas, the remainder-can be attributed to commercial development Thus about
$550,000 is spent on fire protection for 2.6 million square feet of commercial
uses. This results in a cost of about$0.21 per square foot At this rate, 88,000
square feet of new commercial building arta will increase the fire department's cost
by roughly$18,600 per year.
Parks and Ration -Setting
The City of Atascadero Department of Community Services is responsible for all
recreation programs, parks, the Charles Paddock Zoo, facilities, and street
maintenance. The City currently provides about 195 acres of park facilities,
including the zoo. The City also sponsors recreation activities such as swimming,
teen activities, arts and crafts, and sports programs. San Luis Obispo County
operates Heilman Regional Park and Chalk Mountain Golf Course, which are
located just east of the City limits. School yards provide additional playing fields.
Parks and Recreation-Costs
The proposed project may indirectly increase population by attracting employees.
Such population may incrementally increase the demand for recreation services.
However, City's adopted development impact fees (12.8 cents per square foot of
non-residential construction)for parks and recreation will mitigate any impact
3
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The Department of Community Services maintains roads and landscaping in public
rights-of-way within the City. The City spent approximately 18460,000 during
. fiscal year 1990/91 for street maintenance. This covered about 150 miles of
roadway within the City. This equates to approximately 58 cerIts per lineal foot
per year
While the exact dimensions of all roadway improvements are notcurrently known,
the recommended list of traffic mitigations outlines likely roadw4y improvements
necessary to accommodate the project. The proposed project with result in
approximately 3,000 lineal feet of public roads being added to the City's street
inventory, mostly in the form of adding lanes to existing roadways (Keith
Higgins, personal communication). At $0.58 per foot, this will add
approximately $1,740 per year of street maintenance costs. Even if the actual
amount of increased roadway were to double, the resulting fiscal impact would not
be considered to be significant
Schools- Setting
Public schools are provided to the City by the Atascadero UniS$d School District
which covers a large area from the City eastward to the County iline. The district
has four elementary schools, one junior high school, one comprehensive high
school and one continuation school. The district has purchased additional
properties to construct an elementary/junior high school and another elementary
school from kindergarten through fourth grade.
The capacities and enrollment of existing schools as of May, 199!1 are as follows:
Planned Capacity Enrollment
Lewis Avenue Elementary 489 548 !
Monterey Road Elementary 589 716
Santa Rosa Elementary 614 680
San Gabriel Elementary 626 1 729
Atascadero Junior High 759 1813
Atascadero Senior High 1,390 1,195
Oak Hills Continuation H.S. 75 75
TOTALS: 4,542 4,756
The junior and senior high schools also serve the unincorporated communities of
Santa Margarita,Creston and the Carrisa Plains.
With the exception of the high school, all facilities are currently operating at or
beyond capacity.The District currently has over 500 students at the elementary and
junior high levels that are not adequately housed, and the District expects this
condition to persist into the foreseeable future. While the District receives the legal
maximum developer fees ($1.58 per square foot of residential construction, and
$0.26 per square foot of commercial construction),such revenues are used to lease
temporary facilities because they are insufficient to finance permanent buildings.
Schools- Costs
The Atascadero Unified School District was contacted and has no concerns
regarding this proposed project. Any impacts that may result from increased
IV-62 60.1 8.13'�
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1001 c
Planned Capacity E=Umen
Lewis Aven ementary 489
Monterey Ro ntary 589 16 i
Santa Rosa Eieme 614 686 I
San Gabriel Elem 0 626 729
Atasc.adero Junior High 759 813
Atascadero Senior High 1,39 1,195
Oak Hills Continuation ILS. 75
TOTALS: 4,542 4,756
The junior and senior high also a the unincorporate communities of,
Santa Margarita,Creston a Carrisa P
With the exccptio the high school, all fact7ia currently operating at or
beyond cang District c =dy has over 500 s is at the elementary and
junior high els that are not adequately housed, an a District expects this
condiao persist into the foreseeable fume. While the ct receives the legal
maxi Xcdeveloper fees (SI-58 per square foot of residen nstruuction, and
per square foot of commercial construction),such revenues used to lease
facilities because they are insufficient to finance permanm uildings.
Schools -Costs
The Atascadero Unified School District was contacted and has no cone..
population induced by the project willbe mitigated by school fees collected at the.
time of construction.
Summary•Proiecr Costs
] I*
Table 5 SEM of Proiecr Costs
ServiceI Estimated Ennl Cost
Sewer $
Police $
Fur $ '18,600
Parks&Sa=ts STotal Cost S
4. Mitigation/Significance '^
The proposed project wM generate more revenues than necessary to offset the
ongoing maintenance and operating costs associated with the projects. Thus,the ;
significant fiscal impacts of the projdtt are beneficial and requite no mitigation. -.a
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REPORT TO CITY COUNCIL Meeting tate: 3/12/95
CITY OF ATASCADERO Agenda Idem: c-5
Through: Andy Takata, City Manager
From: Brad Whitty, Finance Direeto��
SUBJECT: City of Atascadero's audited financial statements for the year
ending June 30, 1995.
RECOMMENDATION: Staff is recommends that the City Council accept the audited
financial statements for the fiscal year ending]June 30, 1995.
BACKGROUND:
The 199495 financial audit was performed by the accounting firm Moss �evy & Hartzheim,
Certified Public Accountants (MLH). This audit represents the third year that the firm has
audited the City's finances. The financial statements were distributed to you under a
separate cover. A copy of the independent auditor's report is shown as Attachment A:
DISCUSSION:
i
MLH continues to not express an opinion on the General Fixed Assets Account Group
because the City has not maintained a complete record of the historicaiI costs associated
with the assets. Prior to August 1993, the City had centralized purchasing which facilitated
the upkeep of the fixed assets because that individual tracked items and was responsible
for the fixed asset module. Since August 1993, purchasing has been de-centralized and
handled by the individual departments with the responsibility resting wilth the department
heads.
The unrecovered principal balance of $1,155,283 from the City's, Orange County
investments has been reclassified as an accounts receivable rather than expensed as
shown in the previous year. Fund balancestretained earnings have been reserved for such
receivables as appropriate. This was done to follow other cities handling been,
the outstanding
balance.
MLH has given the City a "Going Concern" statement for the third ye#r as discussed in
Note 20 to the financial statements (Page 39). The City's General Fund Inas an unreserved
fund balance of $(755,360) and a $650,711 reserved for due from other funds. The
unreserved fund balance is where funds could be used to fund expenditures in the ensuing
years if it had a positive balance. The large shift in the fund balance is mostly due to
recognizing the Police Impact Fee and Parks & Recreation Impact Fee Funds in the
OU01:f,9,6 .
General Fund. Previously, these fund's losses had been recognized in other impact fee
funds. Attachment B to this report illustrates the City's General Fund unreserved fund
balances since 1991. Generally, the unreserved fund balance should be at least 5% of
General Fund expenditures in order to remove the going concern issue. The reserve for
due from other funds are those funds who owe the General Fund from past borrowings to
fund their deficit operations. Some of these funds as indicated in Note 20 (Page 39) may
not be able to repay the General Fund on a timely basis and will have to write-off at least a
portion of the loans.
Attachment C-1 presents the balance sheet for the General Fund only for the years ending
1994 and 1995. The. General Fund as presented here includes the Donations Fund,
Payroll Trust Fund, TRAN Repayment Fund, Aquatics, Recreation, Emergency Services,
Police Training, and Weed Abatement Funds. The $939,283 due to other funds is the
amount the General Fund borrowed from Wastewater through Resolution 14-96. The fund
balance portion has changed because of reserving the fund balance to account for the
"due from" amounts. Attachment C-2 presents comparative balance sheets for the
Wastewater fund for the same fiscal years. The fund had $1,519,080 in outstanding
receivables at June 30, 1995. Current liabilities had a minimal change from $129,108 to
$158,355.
Attachments D-1 through D-4 are comparative income statements for the Governmental
Fund types which includes the General Fund. The most notable change in the,revenues
portion of the General Fund was the decrease in interest earnings which was caused by
Orange County. The large increase in salary and benefits expenditures occurred from the 45
increased workers compensation costs.
Attachment E is MLH's Management Recommendations Letter along with staffs responses
to those recommendations. Some of the recommendations have been mentioned in prior
audits and others are new.
Note 20 (Page 39), outlines what management is doing with regards to correcting the City's
fiscal situation. The City's fiscal outlook will only improve through the combined efforts of
the City Council, Staff, and the citizens of Atascadero. Such efforts are imperative if the
City wishes to continue directing its destiny.
Enclosures: Attachment A-Auditor's Report
Attachment B-General Fund's Unreserved Fund Balance
Attachment C-1 -General Fund Comparative Balance Sheets
Attachment C-2-Wastewater Comparative Balance Sheet
Attachment D-1 -General fund Comparative Income Statement
Attachment D-2-Special Revenues Comparative Income Statement
Attachment D-3-Capital Projects Comparative Income Statement
Attachment D-4-Debt Service Comparative Income Statement
Attachment E-MLH's Management Recommendations Letter and Staff
response
QQQ1��, j
i
Attachment A
MOSS, LEVY & HARTZHEINi
CEORED PUBLIC ACCOUNTANTS
'A PARTNERSHIP OF PROFESSIONAL CORPORATIONS
PARTNERS:
802 EAST MAIN STREET
R08E7T M.MOSS,C.EA.• SANTA MARIA.CA 934$4
PHONE:(805)925-2519
RONALD A.LEVY.C.P.A.' FAX:(805)925-2147
CRAIG A.HARTZHEIM.C.P.A.•
INDEPENDENT AUDITORS' REPORT ON FINANCIAL STAT / NTS
Honorable Mayor and City Council
City of Atascadero
Atascadero, California
We have audited the accompanying general-purpose financial statements of the City of
Atascadero, as of June 30, 1995 and for the fiscal year then ended,as listed in the table of contents.
These general-purpose financial statements are the responsibility of the City of Atascadero's
management. Our responsibility is to express an opinion on these general-purpose financial
statements based on our audit
We conducted our audit in accordance with generally accepted auditing standards. Those
standards require that we plan and perform the audit to obtain reasonable assurance about whether
the general-purpose financial statements are free of material misstatement1 An audit includes
examining, on a test basis, evidence supporting the amounts and disclosures is the general-purpose
financial statements. An audit also includes assessing the accounting principles used and significant
estimates made by management,as well as evaluating the overall general-purpose financial statement
presentation. We believe that our audit provides a reasonable basis for our opinion.
As discussed in Note 4 to the general purpose financial statements,the City was participant
in the Orange County Investment Pools (the Pool). The County of Orangee,,California, (Orange
County) and the Pool filed petitions for bankruptcy protection in December 1994. The City
recovered a majority of its deposit with Orange County in May 1995 and has taken legal actions to
recover the remaining balance. However, the outcome of these actions cannot presently be
determined- Accordingly, the unrecovered principal balance has been reclassified as "Due from
Orange County" in the accompanying general-purpose financial statements and fund
balances/retained earnings have been reserved for such receivable as appropriate.
The City also does not maintain a complete record of the historical cast of its fixed assets.
Accordingly,the financial statements do not include the general fixed assets group of accounts,which
should be included in order to conform with generally accepted accounting principles. The amount
that should be recorded in the general fixed assets account group is not known.
In our opinion, except for the effect on the financial statements of the collectibility of the
Orange County receivable and the omission of the general fixed assets account group, the general-
purpose financial statements referred to above present fairly, in all material respects, the financial
position of the City of Atascadero, as of June 30, 1995, and the results of its ioperations and cash
flows of its proprietary fund types for the year then ended in conformity with generally accepted
accounting principles. 004129..
OFFICES: BEVERLY HILLS•SANTA MARTA
_OF.GPA:s.CALIFORNIA sOCIM OF MUNIDFML FINANCE OFR ERS•G1UF0RN1A As�CIAt10N OF SCMOOL 81,19WESS OFF1CiALS
Our audit was made for the purpose of forming an opinion on the general-purpose financial
statements taken as a whole. The combining and individual fund financial statements listed in the
table of contents are presented for the purposes of additional analysis and are not a required part
of the general-purpose financial statements of the City of Atascadero. Such information has been
subjected to the auditing procedures applied in the audit of the general-purpose financial statements
and, in our opinion, except for the effect of the collectibility of the Orange County receivable, is
fairly presented in aU material respects in relation to the general-purpose financial statements taken
as a whole.
The accompanying financial statements have been prepared assuming that the City of
Atascadero, California will continue as a going concern. As discussed in Note 20 to the financial
statements, the City has an unreserved fund balance of$(755,360) in the general fund. This raises
substantial doubt about the City's ability to continue as a going concern unless it can increase its
revenues and other sources and reduce its expenditures and other uses. Management's plans in this
regard are also described in Note 20. These financial statements do not include any adjustments that
might result from the outcome of this uncertainty.
MOSS, LEVY & HARTZHEIM
February 8, 1996
000129.3
Attachment B City of Atascadero
General Fund's
Undesignated Unreserved Fund Balances
Unreserved* Total*'"
3
Fund Balance $ Change Fund Balance
i
1991 624,626 1,575,480
(770,975)
1992 (146,349) (45,518)
(344,310)
1993 (490,659) (79,166)
(122,210)
1994 (612,869) 32,875
(177,491)
1995 (790,360) 47,964
Notes:
* Unreserved Undesignated Fund balance is that portion which is available
to fund ongoing operations in the current year.
** Total Fund Balance is the net of Reserved and Unreserved portions of
funds that may or may not be available to fund current operations.
UUU129 .N
1
Attachment C-1 City of Atascadero
General Fund
Balance Sheets
June 30, 1995 and 1994
Assets and Other Debits 1995 1994
Cash and Investments $57,700 $77,718
Restricted Cash:
TRAN Repayment 1,360,000 2,070,969
Receivables:
Due From Orange County 152,613 0
Due From San Luis Obispo County 208,079 0
Accrued Interest 16,640 45,788
Other Receivables 331,129 189,367
Due From Other Funds 650,711 241,353
Performance Bond Deposits 311,276 262,776
Total Assets and Other Debits $3,088,148 $2,887,971
Liabilities and Fund Equity
Liabilities:
Accounts Payable 125,230 184,034
Due to Other Funds 939,283 0 .
Accrued Salaries&Benefits 125,006 83,462
Accrued Interest Payable 59,634 69,806
Other Payables 10,540 6,540
Deposits 348,194 412,229
Compensated Absences 132,297 99,025
Note Payable 1,300,000 2,000,000
Total Liabilities 3,040,184 2,855,096
Fund Equity:
Fund Balances-Reserved:
Reserved for Due From Orange County 152,613
Reserved for Due From Other Funds 650,711
Fund Balances-Unreserved:
Designated:
Library 35,000 32,875
Undesignated: (790,360)
Total Fund Equity 47,964 32,875
Total Fund Liabilities&Fund Equity $3,088,148 $2,887,971
0001:9,5
Attachment C-2 City of Atascadero
Wastewater Fund
Balance Sheets
June 30, 1995 and 1994
Assets and Other Debits 1995 1994
Cash and Investments $2,624,948 $2,823,319
Receivables:
Due From Orange County 540,619 0
Due From San Luis Obispo County 70,423 0
Accrued Interest 78,199 53,853
Other Receivables 817 82,173
Due From Other Funds 978,461 0
Total Current Assets 4,293,467 2,959,345
Fixed Assets:
Property, Plant and Equipment 11,746,368 11,553,738
Less:Accumulated Depreciation (3,872,425) (3,599,695)
Net Fixed Assets 7,873,943 7,954,043
Other Assets:
Interfund Advances Receivable 18,418 20,558
18,418 20,558
Total Assets and Other Debits $12,185,828 $10,933,946
Liabilities and Fund Equity
Liabilities:
Accounts Payable 43,083 25,401
Due to Other Funds 0 0
Accrued Salaries&Benefits 5,723 4,094
Accrued Interest Payable 8,846 10,130
Deferred Revenue 1,129 3,468
Compensated Absences 34,574 26,015
Loan Payable- current portion 20,000 20,000
Bonds Payable-current portion 45,000 40,000
Total Current Liabilities 158,355 129,108
Long-Term Liabilities:
Loan Payable (less current portion) 1,095,000 1,115,000
Bonds Payable(less current portion) 95,000 140,000
Total Long-Term Liabilities 1,190,000 1,255,000
Fund Equity:
Contributed capital 533,731 499,331
Retained Earnings
Reserved 540,619
Unreserved 9,763,123 9,050,507
Total Fund Equity 10,837,473 9,549,838
. Total Fund Liabilities&Fund Equity $12,185,828 $10,933,946
OOOlti9.b
Attachment D-1
City of Atascadero
Comparative Statement of Revenues, Expenditures, and Changes In Fund Balances
General Fund
For Fiscal Years Ended
June 30, 1994 95
$Change
1995 1994 ++)
Revenues:
Taxes and Assessments $4,737,187 $4,788,479 ($51,292)
Licenses and Permits 385,083 370,413 14,670
Intergovernmental Revenues 1,169,828 1,016,266 153,562
Charges for services 703,549 746,212 (42,663)
Fines and Forfeitures 34,238 37,225 (2,987)
Use of Money and Property 22,635 200,054 (177,419)
Other Revenue 175,480 30,577 144,903
Total Revenues 7,228,000 7,189,226 38,774
Expenditures:
Salaries and Benefits 5,296,409 5,021,850 274,559
Supplies and Services 1,673,584 1,689,598 (16,014)
Capital Outlay 33,418 190,914 (157,496)
Debt Service 100,234 221,098 120,864
Total Expenditures 7,103,645 7,123,460 (19,815)
Excess of Revenues over(under)
Expenditures 124,355 65,766 58,589
Other Financing Sources(Uses):
Operating Transfers In 30,158 100,717 (70,559)
Operating Transfers Out (148,000) (150,913) 2,913
Proceeds from Issuance of Capital Leases 125,459 (125,459)
Discount from issuance of TRAN (11,823) (11,823)
Unrealized Loss in Orange County (20,399) 20,399
Total Other Financing Sources and Uses (129,665) 54,864 (184,529)
Excess of Revenues and Other Sources over
(under) expenditures and other uses (5,310) 120,630 (125,940)
Fund Balance- Beginning 32,875 (79,166) 112,041
Equity Transfer (11,455) 11,455
Prior Year Adjustment 20,399 2,866 17,533
Fund Balance- Ending $47,964 $32,875 15,089
000129.1
Attachment D-2
City of Atascadero
Comparative Statement of Revenues, Expenditures, and Changes in FundBalances
Special Revenue Funds
For Fiscal Years Ended
• June 30, 1994 and 1995
$Change
1995 1994 ++)
Revenues:
Taxes and Assessments $2,100 $2,188 ($88)
Licenses and Permits 301,756 351,606 (49,850)
Intergovernmental Revenues 834,319 459,199 375,120
Charges for services 117,250 116,995 255
Use of Money and Property 80,662 146,077 (65,415)
Other Revenue 42,960 27,367 15,593
Total Revenues 1,379,047 1,103,432 275,615
Expenditures:
Salaries and Benefits 441,777 381,185 ? 60,592
Supplies and Services 695,043 315,503 379,540
Capital Outlay 858 0 858
Total Expenditures 1,137,678 696,688 440,990
Excess of Revenues over(under)
Expenditures 241,369 406,744 (165,375)
MOther Financing Sources(Uses):
Operating Transfers In 50,000 52,913 ! (2,913)
Operating Transfers Out (308,611) (483,325) i 174,714
Unrealized Loss in Orange County 0 (183,157) 1 183,157
Total Other Financing Sources and Uses (258,611) (613,569) 354,958
Excess of Revenues and Other Sources over
(under) expenditures and other uses (17,242) (206,825) 189,583
Fund Balance- Beginning 749,977 920,324 (170,347)
Prior Year Adjustment 192,553 01 192,553
Fund Balance-Ending $925,288 $713,499 211,789
000129.3
Attachment D-3
City of Atascadero
Comparative Statement of Revenues, Expenditures, and Changes in Fund Balances
Capital Projects Funds
For Fiscal Years Ended
June 30, 1994 and 1995
$Change
1995 1994
Revenues:
Taxes and Assessments $57,010 $113,898 ($56,888)
Licenses and Permits 4,637 0 4,637
Intergovernmental Revenues 679,917 41,405 638,512
Use of Money and Property 13,081 121,798 (108,717)
Other Revenue 0 8,077 (8,077)
Total Revenues 754,645 285,178 469,467
Expenditures:
Supplies and Services 107 21,000 (20,893)
Capital Outlay 855,899 2,525,622 (1,669,723)
Total Expenditures 856,006 2,546,622 (1,690,616)
Excess of Revenues over(under)
Expenditures (101,361) (2,261,444) 2,160,083
Other Financing Sources (Uses):
Operating Transfers In 180,453 297,608 (117,155)
Proceeds from Issuance of Bonds 0 2,589,186 (2,589,186) .
Bond Issuance Costs 0 (153,941) 153,941
Unrealized Loss in Orange County 0 (159,730) 159,730
Total Other Financing Sources and Uses 180,453 2,573,123 (2,392,670)
Excess of Revenues and Other Sources over
(under) expenditures and other uses 79,092 311,679 (232,587)
Fund Balance-Beginning 258,003 (38,702) 296,705
Prior Year Adjustment 128,012 (14,974) 142,986
Fund Balance- Ending $465,107 $258,003 207,104
000129,!
i
Attachment D-4
City of Atascadero
Comparative Statement of Revenues, Expenditures, and Changes in Fundi Balances
Debt Service Funds
For Fiscal Years Ended
June 30, 1994 and 1995
$Change
1995 1994
Revenues:
Taxes and Assessments $442,108 $210,754 $231,354
Use of Money and Property 29,872 32,133 (2,261
Total Revenues 471,980 242,887 229,093
Expenditures:
Debt Service 589,097 463,551 125,546
Total Expenditures 589,097 463,551 125,546
Excess of Revenues over(under)
Expenditures (117,117) (220,664) 103,547
Other Financing Sources(Uses):
Operating Transfers In 196,000 183,000 13,000
Proceeds from issuance of bonds 414,170 (414,170)
Unrealized Loss in Orange County (48,471) 48,471
Total Other Financing Sources and Uses 196,000 548,699 (352,699)
Excess of Revenues and Other Sources over
(under) expenditures and other uses 78,883 328,035 (249,152)
Fund Balance-Beginning 786,095 366,866 419,229
Prior Year Adjustment 48,471 91,194 (42,723)
Fund Balance-Ending $913,449 $786,095 127,354
•
000129.10
Attachment E
MOSS, LEVY &, HArJZHEIM
CERTIFIED PUBLIC ACCOUNTANTS
'A RWrNMHIP OF PRCFfOONAL CORPORATIONS
FARMERS: 902 EASr MAIN STRFEr
ROBERT M.MOSS;C.P.A' SAMA MARIA.CA 93454
AX:
RONALD A.LEVY,C.P.A.• FAX:
FAX:(8(8057 92-1--2147
(80"1925.2579
CRAG A.HARTZHEM C.P.A.'
February 8, 1996
Mr. Brad Whitty
City of Atascadero
6500 Palma Avenue
Atascadero, CA 93471
Re: Audit findings resulting from, the annual audit of no City of Atascadero for the year ended
June 30, 1995.
Dear Mr. Whitty,
Having completed the annual audit of the nay's records for the fiscal year ended June 30,
1995, I would like to take this opportunity to bring to your attention a number of observations,
recommendations and suggestions I feel are appropriate at this time.
Some of the following recommendations and suggestions have been mentioned in prior
audits, and may also include actions already instituted or.in progress. Some are of a long-term
nature and may not be immediately feasible.
1_ The City has an unreserved fund balance of ($755,360) in the general fund and a total
general fund balance of$47,694. Assuming the aty does eventually collect the additional
amounts due from Orange County and the balances due from other fiords, this fund balance
still only represents 0.66%of the general fund's total expenditures and other outgo. This is
considerably less than the amount of reserves recommended by the State of California and
prudent business practices.
Of the amounts due from other funds,there are six funds with interfund payables totaling
$566,366.These funds are the Police Impact Pees Fund,the Packs and Recreation Impact
Fees Fund, thel Lake Pavilion Operating Fund, the Zoo Operating Fund, the 1989
Certificates of Participation Debt Service Fund,and the Local Transportation Fund.These
six .funds have displayed a consistent pattern of expenditures and other outgo exceeding
revenues and other sources. If this pattern were to continue, as is currently expected, the
general fund will eventually have to write-off the interfund loam for these funds.
These items raise substantial doubt about the City's ability to continue as a going concern.
The City must increase its revenues and other sources and reduce its expenditures and/or .
other uscs.
000129,1 i
OFFICES: BEVERLY HILLS•SANTA MARIA
MOOR AMM CAN*GMVX OF CDA;•CAUiOMA 30MIV OF C PAy•CM rOMM 3=1V OF MWOCM S MHIQ OrPCM-GVJFG'M AVOCUnDA&a'90CM ori W-CFFICW
2. The City does not have a formal drug free workplace policy. In order to receive federal
grants, the City must have a drug-free workplace Policy in effeet. The policy must be
at risk
distributed to all employees involved with the federal monies- The nd i�t the City adopt a
rently
of losuag past and future federal monies. We strongly revo
drug free workplace policy.
tiles throughout the year. The funds
3. The City did not charge intorest on interfund pays converse and s
selected to loan monies did not receive any Merest on the loaned balance ly
the funds owing monies were not charged an interest expense on the " koans. The City
should charge interest on temporary mterbwd loans. We recommend that the City charge
interest at a rate equal to that earned on City deposits.
4. The City needs to improve their record keeping for Lake Pavilloa and Recreation deposits.
'The Recreation Department created a list showing each receipt taken in and each refund
check issued.however this list was not created until six months after yeah end. The deposit
at shows amounts on deposit for events which occurred in previous yearn amounts that have
been over-refunded to patrons,amounts which have been under-refit od to patrons, and
amounts that cannot be matched to the receipt or refimd because 1 the names of the
depositing individual and the individual receiving the refund check did 1.not agree.
The City should maintain running lists of lake pavilion and recreation deposits. When a
customer makes a deposit,the City should enter the renters name,the receipt number,the
amount of the deposit,the date of the went,and the outstanding deposit balaruce. After the
event has occurred the City should enter the amount of the refute the refund chceknuc�a• m the amount taken into revenue by the City and an outstanding balance of zero on the same
line of the list that the receipt was logged to This method of mating teceipts and refunds
allows the City to quickly determine which deposit balances are still out4tanding and should
reduce the slumber of errors being made when refunding deposits. In. addition, the City
should carefully examine the list and make a determined effort to ate patrons who are
entitled to a refimd. Other amounts should be written off or talon into revenue as
appropriate.
5. The Cites cnrrent method of accounting for capital projects does not provide adequate
documentation. The City currently runs all capital projects through the Capital Projects
Fund and thou trranders monies from other funds into the Capital Projects Fund based on
the amounts expected to be paid for budgeted projects.cost, as amount tpaa from the
lanned prajects are
abandoned or postponed and they almost ab aye c
budgeted amount. In addition,the City does not always have clear documentation mentation showing
that the restricted monies from the various funds can be spent on the 1proieets indicated.
The City should develop aa alternative method of accounting for capital projects. 'The City
should dearly document how much of the project is for drainage,public works,etc. This
support should be part of the construction or engineering.documentIltiau• not a finance
department decision We also suggest that the City book capital projects directly to the
funds expending the money. This would eliminate the need for journal entries transferring
the monies over from the paying fmmds and would stili allow tracking of the total project cost
by using one department number for each project;
000129.+a
6. The City of Atascadero went over budget in many departments and foods- This practice is
in direct violation of State Law. Although the City cher have a purchase order
encumbranoa system,this system is not consistently used in a correct manner by department
heads. Often department heads purchase items prior to eom&tfi*a purchase order. This
allows them to circumvent the limit on appropriations.
Ws recommend that the City strongly enforce a policy that requires all expenditures. to be
roviewed prior to cutting a checl. if it appears that an expenditure will cause a department
to go over budget in any particular luxe item, a deck should not be issued until the
department head resolves the situation. The department head may either notify the finance
department that he is transferring money between line items in his budget or he may have
the City Council approve a budget amendment,giving him mare motxeY to spend
The recommendations and suggestions herein noted are of a general nature only and are not to be
taken as criticism of current management. Should you wish to have a mon detailed explanation or
assistance in executing thcrn,i would be happy to be of assistance in any Way
MOSS.LEVY &HART.
A. , C.P.A.
i
000109.i3
Attachment E
•"r • °� CITY OF ATASCADERO
CAD FINANCE DEPARTMENT, .
March 4, 1996
Ron A. Levy, CPA
802 East main Street
Santa Maria, CA 93454
Re: Response to Audit Recommendations Letter for the City of Atascadero's year ending
June 30, 1995.
Dear Mr. Levy:
I want to take the opportunity to thank you and your audit staff for the completion of the
audit and for providing the recommendations and suggestions that can improve the quality
of the City's financial reporting capabilities. I provide the following responses to your
findings and recommendations. The responses will be numbered to correspond with the
items described in your letter.
1. Going Concern: City's Response-The City created a community taski force in 1995
and the group is charged with closely reviewing the service levels of departments,
identify problems, and prescribe revenue enhancement alternatives. The results are to
be brought before the City Council for review and approval. The City has raised fees
in areas such as Recreation, Aquatics, and the Zoo which has shown improvement in
those funds.
2. Drug-Free Workplace Policy:. City's Response-The City concurs with your
recommendation.-The City began work on this item in December 1995. I It is not
known at this time when the drug-free workplace policy will be in place.
3. Interfund Interest Charges: City's Response-Resolution 14-96 was passed which
establishes a loan from the Wastewater to the General Fund and stipulated interest to
be paid for the borrowing. The spreadsheet which distributes interest earnings will be
modified to calculate interest charges when a fund has negative cash. That interest
will be posted to the fund making the loan through resolution at the end of every fiscal
year.
ojoj1 9_i4
6500 PALMA AVENUE - ATASCADERO,CA 93422
[tisk Management(805)461-5014 Finance (805)461-5016 Business License.(8QS)461-5017 City Fac(8051461-0606
4. Security Deposits: City's Response Finance and Recreation staff have established
procedures to account for the security deposits held by the City. The procedures
outlined in your recommendation are presently being practiced.
5. Documenting Capital Projects: City's Response-The Capital Projects Fund will be
reviewed by the Finance Director, City Engineer, and City Planner to establish better
documentation procedures. One item in place is the use of a Capital Projects Matrix
to determine which funds are funding the various projects. The Finance department
will review the City's Chart of Accounts and the financial software package to
determine if the projects can be tracked within each fund rather than through one fund.
6. Expenditures: City's Response-The city concurs with your recommendation.
Management will discuss the procedures and implement stronger review and
processing procedures of expenditures.
Please contact me if you wish to discuss these items in detail with myself or other City
staff. Thank you.
Sincerely,
CITY OF ATASCADERO
Bradford Whitey
Finance Director
cc: City Council
City Manager
Department Heads
vV03�.�,15
MEMORANDUM
REPORT TO CITY COUNCIL AGENDA ITEM: C-6
CITY OF ATASCADERO 1DATE: 03-12-96
THROUGH: Andrew J. Takata, City Manager
FROM: Brady ,.Cherry, Director.tom
Department of Community Services
SUBJECT: CONSIDERATION OF PROPOSED PLAN TO EXPAND AND IMPROVE
PARKING IN LAKE PARK AND PAVILION PARKING LOT.
RECOMMENDATION:
Provide staff direction to publicly bid the project for Spring budgeting]for next Fiscal Year
(July, 1996).
BACKGROUND:
Last summer, the City Council requested that the City Engineer develop a plan to expand
parking around the Lake Park Pavilion prior to implementing a "No Parking Zone" along
Marchant Way. The planned no parking zone will obviously impact an already limited and
overburdened parking area. Staff has attempted to find the most economical way to expand the
parking in the Pavilion area, as no funds are budgeted this fiscal year for he project. When this
item was considered last summer, the plan at that time called for organiz ng and improving the
vacant lot next to the AARP building and creating spaces on Pismo S reet. That plan was
deemed to be insufficient, and staff was directed to look into other alternatives that included
other areas also.
DISCUSSION:
Attached hereto is an expanded plan that may provide up to 33 additional spaces. The plan
utilizes the "Boneyard" storage area, the vacant lot next to the AARP building, adds some
"compact" spaces and some new head-in type spaces.
A minimum number of disabled parking spaces will be needed. These spaces will reduce the
total number of new spaces. The park and zoo staff have indicated that they need the bone yard
storage space and would like to keep it in this area. Relocation of this storage area to another
place in the park will add increased costs to the project.
While some of the work to install the additional parking can be done "in-house", some of the
work cannot. All materials and supplies would have to be absorbed by the current budget. In
addition, the retirement of Bob Maxwell in early April will leave an already short-handed crew
1
0001;30
limited even more as to the jobs they can handle. (His position will be filled in July). A look
at the remaining streets division budget appears to indicate that this would be very difficult.
FISCAL IMPACT:
North Coast Engineering estimates that the parking expansion project would cost $19,689 to
contract. Community Services Department staff believe by doing as much as possible "in-
house" and eliminating the paving, the project would be reduced to about $11,000. As this is
not a budgeted project, and very little money remains in the streets division budget for working
on streets related projects within the right-of-way, installing the added parking would reduce
needed street maintenance work this Fiscal Year. Only $10,000 remains in the street
maintenance material account for the remainder of the year.
C:\CrrYCOUN\PvPrkng.RFr
000131
NORTH COAST ENGINEERING, INC.
ESTIMATED FOR PROJECT: LAKEPARK ADDED PARKING
BY: RDK
DATE: 02-29-96 CITY OF ATASCADERO
REV. DATE:
ITEM QUANTITY UNIT COST TOTAL
EARTHWORK-DEMOLITION
GRADING (LS) 1 $2,000.00 $2,000.00
EXPORT(CY) 100 5.00 500.00
REMOVE TREE(EA) 7 250.00 1,750.00
SUBTOTAL '» $4,250.00
PAVEMENT
6"AC BERM (LF) 165 4.00 660.00
THICK(IN)
A.C. PAVEMENT(SF) 2.5 7770 0.63 4,856.25
CLASS II BASE (SF) 6.0 7770 0.42 3,263.40
SUBTOTAL $8,779.65
MISCELLANEOUS
PARKING LOT ITEMS:
STREET SIGNS (EXIT ONLY) (EA) 2 100.00 200.00
20' STALL LINES -TWO COAT(EA) 40 5.00 200.00
WHEEL STOPS (EA) 40 25.00 1,000.00
ARROWS (EA) 4 10.00 40.00
SUBTOTAL > $1,440.00
TOTAL OF CONSTRUCTION ITEMS $14,469.65
CONTINGENCY @ 20 % 2,893.93
CONSTRUCTION TOTAL $17'363:5$
ENGINEERING/STAKING/TEST @ 15% ' 2,325.38
GRAND TOTAL $19,688.96
THIS PRELIMINARY OPINION AS TO COSTS IS NOT TO BE CONSTRUED AS A GUARANTEE
COSTS. N.C.E. HAS NO CONTROL OVER THE COSTS OFLABOR, MATERIALS, EQUIPMENT
FUTURE MARKET CONDITIONS OR CONTRACTOR'S BIDDING METHODS. THE ACTUAL C
OF CONSTRUCTION MAY VARY FROM THE ESTIMATES AND/OR THE PROJECT BUDGET.
(CC)K:\QPROPRVT\RDK\LAKEPARK.WB2 PRICE LIST UPDATED 6-1-94
00013,
PRELIMINARY COST ESTIMATE PAGE 1
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