The purpose of this article is to provide regulations to protect designated environmentally sensitive habitat areas consistent with the City of Carmel-by-the-Sea Local Coastal Program Land Use Plan and the California Coastal Act.
(Ord. 2004-01 § 1, 2004; Ord. 2004-02 § 1, 2004)
A. 
General. This section sets forth regulations for the protection and enhancement of environmentally sensitive habitat areas (ESHAs).
B. 
Applicability. The provisions of this overlay district apply to all new development or substantial alteration of existing development proposed within designated ESHA or within ESHA buffer areas (located within 30 feet of designated ESHA). Sites that are within an ESHA or ESHA buffer area, and are subject to these overlay regulations, are mapped in the Land Use Plan of the Local Coastal Program.
C. 
Permits for Development within the ESHA Overlay District. Unless exempted by CMC § 17.52.100, Development Excluded from Coastal Permit Requirements, all new construction, additions, design alterations or changes in land use in the ESHA overlay district shall require a coastal development permit in accordance with the provisions of this title, in addition to any other permit(s) required by law. Development undertaken pursuant to such a permit shall conform to the plans, specifications, terms and conditions approved in granting the permit. Notice, hearing and appeal procedures are established in Chapter 17.52 CMC, Permit Procedures, and Chapter 17.54 CMC, Appeals.
D. 
Biological Resources Report. A coastal development permit application for development on a site that is subject to this section shall include a biological resources report that complies with the following requirements.
1. 
Qualifications of Preparer. The report shall be prepared by individuals qualified by education, training, or experience to draft these reports in a professional and competent manner, and who are on the City's list of consulting biologists. The Director, upon receipt of a resume demonstrating an individual's special capabilities, may authorize acceptance of additional experts. The Director's decision to accept or deny consulting biologists shall be final.
2. 
Report Contents. The biological resources report shall:
a. 
Include a biological survey of the site that identifies the type and location of sensitive resources and documents the habitat values of the property. The report shall also evaluate the impact that existing and proposed development may have on the habitat, including whether the existing and proposed development will result in a significant disruption of habitat values. The report shall identify feasible alternatives to avoid disrupting the habitat values. If avoidance is not possible, mitigation measures shall be identified that protect the resource from disturbance or degradation, and a program for monitoring and evaluating the effectiveness of the mitigation measures.
b. 
Identify potential significant impacts on the habitat from noise, sediment, and other potential disturbances that may occur during project construction.
c. 
Verify that proposed setbacks from ESHAs will be adequate to protect the ESHA from disturbance or degradation or recommend, where applicable, more effective setbacks. Setbacks for privately held property in Pescadero Canyon shall serve to minimize disruption of habitat values while leaving a reasonable minimum area for development of a single residential dwelling.
d. 
Recommend performance criteria for revegetation of the site, including milestones for the reestablishment of native vegetation cover in ESHA and EHSA buffer areas affected by development. All projects involving an increase in lot coverage or tree removal shall be conditioned to provide an appropriate number and mix of native trees and/or native shrubs consistent with ESHA habitat.
e. 
Recommend other conditions of approval for habitat maintenance and the restoration of damaged habitats. At a minimum, other conditions shall include:
i. 
An agreement by the landowner to dedicate and manage steep slopes, areas adjacent to riparian resources or areas that serve as a buffer for habitat of special status species as conserved open space. Vegetation removal and slope destabilization from foot traffic should be reduced by controlling access, drainage and through appropriate site design.
ii. 
Limitation of site development to avoid direct loss or indirect effects on native trees.
iii. 
Avoidance of removal of native vegetation to the fullest extent possible.
iv. 
Removal of invasive shrub species that can be removed without resulting in substantial erosion.
v. 
Prohibition of the use of heavy equipment on intact native soils that support native vegetation important to the habitat and on steep slopes (excavation along slopes shall be conducted by hand).
E. 
General Development Standards.
1. 
Performance Standards. All development adjacent to or within an ESHA shall comply with the following requirements:
a. 
New development shall be designed, sited, constructed, and maintained so as to avoid, or minimize if avoidance is not feasible, disruption of the habitat values in the ESHA.
b. 
New development within an ESHA shall be limited to uses that are dependent upon the resource.
c. 
Where feasible, damaged habitats shall be restored as a condition of development approval.
d. 
Development shall be consistent with the biological continuance of the habitat.
2. 
Vegetation Removal. Existing native vegetation in the ESHA overlay district shall not be removed unless authorized through coastal development permit approval to accommodate construction or to maintain public safety. After construction, disturbed areas shall be replanted to provide for the reestablishment of native vegetation cover to the degree specified by an approved landscaping plan prepared pursuant to Chapter 17.34 CMC, Landscaping. Existing, nonnative invasive vegetation growing on private property located in the ESHA or within 30 feet of the ESHA shall be removed as part of the landscaping plan unless the decision-making body determines (a) that vegetation removal would cause unwarranted damage to ESHA resources, or (b) that the difficulty of removing the invasive plants would be an excessive burden given the scope and nature of the approved development.
3. 
Exotic Landscaping. Landscaping in areas adjacent to ESHAs with exotic plants shall be limited to immediate outdoor living space immediately adjacent to the proposed development. Invasive nonnative plants including but not limited to Pampas grass, Acacia, Genista, ivy and nonnative iceplants pose a threat to indigenous plant communities and shall not be approved as part of any proposed landscaping.
4. 
Fencing. Fencing shall not be allowed with ESHAs; fencing adjacent to ESHAs shall be restricted to that which will not impact public views or the free passage of native wildlife and shall employ design and materials determined by the City to be compatible with the visual and biological character of the habitat.
5. 
Resource Protection During Construction. Habitat areas containing vegetation that is essential to the maintenance of the habitat and/or rare or endangered plant or animal species shall be protected from disturbance by construction activities. Temporary wire mesh fencing shall be placed around habitat prior to construction, and protected areas shall not be used by workers or for the storage of machinery or materials. Inspections for compliance shall occur prior to and during construction.
6. 
Fertilizer, Herbicide, and Other Chemical Use. The use and disposal of any fertilizer, herbicide, or other chemical for invasive species removal shall follow the written directions of the manufacturer, shall comply with all conditions required by the City, and shall be accomplished in a manner that will fully protect adjacent native vegetation. In no case shall the use of fertilizer, herbicide, or other chemical be allowed within 100 feet of a riparian habitat.
F. 
Streams and Riparian Vegetation. Development adjacent to a stream shall be sited and designed to protect the habitat and shall be compatible with the continuance of the habitat.
1. 
Limitation on Streambed Alteration. Channelization, dams or other substantial alteration of stream channels are limited to:
a. 
Water supply projects; provided, that quantity and quality of water from streams shall be maintained at levels necessary to sustain functional capacity of streams, wetlands, estuaries and lakes.
b. 
Flood control projects, where such protection is necessary for public safety or to protect existing commercial or residential structures, when no feasible alternative to streambed alteration is available;
c. 
Construction of improvements to fish and wildlife habitat; and
d. 
Maintenance of existing flood control channels. Streambed alterations shall not be conducted unless consistent with all applicable provisions of the Local Coastal Program and these regulations and if applicable, permit approval from the California Department of Fish and Game, the U.S. Army Corps of Engineers, and California State Water Resources Control Board.
2. 
Riparian Setbacks. New development shall be setback from the upland edge of riparian vegetation a minimum of 100 feet, except as provided in subsection (F)(2)(b) of this section, and as follows:
a. 
Permitted Uses Within the Setback. Permitted uses are limited to passive recreation, educational (interpretive) facilities, utility lines, pipelines, drainage and flood control facilities, bridges and pedestrian trails, if the City first finds that:
i. 
Alternative locations and routes are infeasible or more environmentally damaging; and
ii. 
Adverse environmental effects are mitigated to the maximum extent feasible.
b. 
Riparian Habitat Setback Adjustment. Coastal development permit approval may include the reduction of a minimum riparian setback if the City first makes the findings required by subsection (F)(2)(a) of this section, and all the following findings; provided, that in no case shall structures be allowed closer than 30 feet from a stream bank.
i. 
The adjustment is necessary to allow a principal permitted use of the property and redesign of the proposed development would not allow the use with the standard setbacks; and
ii. 
The adjustment is the minimum that would allow for the establishment of a principal permitted use.
3. 
Removal or Alteration of Riparian Vegetation. Proposals for the removal or alteration of riparian vegetation shall be set forth in the landscaping plan required in Chapter 17.34 CMC, Landscaping. The removal, cutting or alteration of vegetation that protects a riparian habitat shall not be permitted except:
a. 
For streambed alterations allowed by subsection (F)(1) of this section;
b. 
Where no feasible alternative exists;
c. 
Where an issue of public safety exists;
d. 
Minor public works projects, including but not limited to utility lines, pipelines, driveways and roads, where the Planning Director determines no feasible alternative exists; or
e. 
To locate a principally permitted use on an existing lot of record where no feasible alternative exists, and the review authority first makes all the findings provided in subsections (F)(2)(a) and (F)(2)(b) of this section.
G. 
Required Findings. A coastal development permit on a site that is subject to the requirements of this section may be approved only when the review authority first finds that there will be no significant negative impact on the sensitive habitat, and the proposed development and use will be consistent with the biological continuance of the habitat, in addition to all other findings required by these regulations for the coastal development permit by CMC § 17.52.020, Development Applications, and Chapter 17.64 CMC, Findings Required for Permits and Approvals.
(Ord. 2004-01 § 1, 2004; Ord. 2004-02 § 1, 2004)