(Ord. 06-23, 7/11/2023)
This article provides for the adoption of fees to be used for the conservation of habitat for covered species in mitigation of the impacts of development in eastern Contra Costa County and procedures to implement the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan.
(Ord. 06-23, 7/11/2023)
As used in this article:
a. 
"Affected development projects"
means the development projects to which this article applies, as set forth in Section 9.2.708.
b. 
"Covered species"
means those species of plants and animals whose conservation and management are provided for by the HCP/NCCP for which limited take is authorized pursuant to the state and federal permits.
c. 
"Development fee"
means the fee described in Chapter 9.3.1 of the HCP/NCCP and imposed on development projects pursuant to Section 9.2.712(a).
d. 
"Development fee zones"
means the three areas depicted as Zones I, II, and III on the map attached as Exhibit A to the ordinance codified in this article and in the detailed map data used to create Exhibit A, both of which are incorporated herein by reference and attached to the ordinance codified in this section. The development fee imposed on a development project is determined based on the development fee zone in which the project is located.
e. 
"Development project"
means any project undertaken for the purpose of development, including a project involving the issuance of a permit for construction or reconstruction, but not a permit to operate.
f. 
"HCP/NCCP"
means the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan, approved by the Board of Supervisors on December 19, 2006, as may be revised from time to time.
g. 
"HCP/NCCP implementation fees"
means the development fee and the wetland mitigation fee.
h. 
"Implementing agreement"
means the January 22, 2007, Implementing Agreement for the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan by and between East Contra Costa County Habitat Conservancy, County of Contra Costa, City of Pittsburg, City of Clayton, City of Oakley, City of Brentwood, Contra Costa County Flood Control and Water Conservation District, East Bay Regional Park District, United States Fish and Wildlife Service, and California Department of Fish and Game.
i. 
"Implementing entity"
means the East Contra Costa County Habitat Conservancy, a joint exercise of powers agency formed by the County and the cities of Brentwood, Clayton, Oakley, and Pittsburg to oversee the implementation of the HCP/NCCP.
j. 
"Jurisdictional wetlands and waters"
means State and federally regulated wetlands and other water bodies that cannot be filled or altered without permits from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. Section 1251 et seq.), from the State Water Resources Control Board under either Section 401 of the Clean Water Act or the Porter-Cologne Water Quality Act (California Water Code, Section 13000 et seq.), or from the California Department of Fish and Game under Section 1602 of the California Fish and Game Code, as further explained in Chapter 1.3.5 of the HCP/NCCP.
k. 
"Project applicant"
means a property owner, or duly designated agent of the property owner, who has submitted to the City a request for approval of a development project on the property.
l. 
"Public facilities"
includes public improvements, public services, and community amenities.
m. 
"State and federal permits"
means the permit issued by the California Department of Fish and Game to the City and other local agencies on August 6, 2007, authorizing take of covered species pursuant to the HCP/NCCP and the Natural Community Conservation Planning Act (permit number 2835-2007-01-03), and the permit issued by the United States Fish and Wildlife Service to the City and other local agencies on July 25, 2007, authorizing incidental take of covered species pursuant to the HCP/NCCP and the federal Endangered Species Act (permit number TE160958-0), as those documents may be amended from time to time.
n. 
"Take"
has the same meaning provided by the federal Endangered Species Act of 1973, as amended (16 U.S.C. Section 1531 et seq.) ("FESA") and its implementing regulations with regard to activities subject to that act, and also has the same meaning provided in the California Fish and Game Code with regard to activities subject to the California Endangered Species Act (Fish and Game Code, Section 2050 et seq.) and the Natural Community Conservation Planning Act (Fish and Game Code, Section 2800 et seq.). Specifically, take is defined in FESA to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct" (16 U.S.C. Section 1532(18)) and in California Fish and Game Code Section 86 as "to hunt, pursue, catch, capture, or kill or attempt to hunt, pursue, capture, or kill."
o. 
"Urban Development Area"
means the areas designated for urban development that are either (1) within the area designated as the "Initial Urban Development Area" as generally depicted on the map attached as Exhibit B to the ordinance codified in this article, incorporated herein by reference, or (2) areas added to or removed from the initial urban development area according to the procedures set forth in Section 3.50 of the implementing agreement.
p. 
"Wetland mitigation fee"
means the fee described in Chapter 9.3.1 of the HCP/NCCP and imposed on development projects pursuant to Section 9.2.712(b).
(Ord. 06-23, 7/11/2023)
a. 
This article applies to all development projects within the City of Oakley that are within the urban development area except for the following:
1) 
Any development project that will permanently disturb less than one acre. The "acreage of land permanently disturbed" by a project, as that term is defined in Chapter 9.3.1 of the HCP/NCCP, shall be determined by the Community Development Director or his designee.
2) 
Any development project that the Community Development Director or his designee determines is contained entirely within an area mapped as urban, turf, landfill, and/or aqueduct land cover types in the HCP/NCCP, as generally depicted on Exhibit A attached to the ordinance codified in this article and in the map data used to create Exhibit A.
3) 
Any development project of a type not covered by the HCP/NCCP within the Urban Development Area, as set forth in Chapter 2.3.1 of the HCP/NCCP.
4) 
Development projects with vested rights pursuant to an agreement by and between the project applicant and the City.
5) 
Development projects exempt under any provision of law.
6) 
Development projects where the City determines based on written evidence submitted by the project applicant that application of the article would deprive the project applicant of all reasonable economic use of the property in violation of federal or state constitutional prohibitions against the taking of property without just compensation.
b. 
The development projects to which this article applies, as set forth above, may be referred to as the "affected development projects."
(Ord. 06-23, 7/11/2023)
a. 
The purpose of the development fee is to mitigate for impacts to open space, habitat and species covered by the HCP/NCCP. The development fee revenues will be used to fund the acquisition of land that does or could provide habitat for covered species, the management and enhancement of that land and habitat, and the administrative actions necessary to accomplish these tasks, as more particularly set forth in the HCP/NCCP, incorporated herein by reference.
b. 
The purpose of the wetland mitigation fee is to mitigate for impacts to jurisdictional wetlands and waters, riparian woodland/scrub, or stream buffers. The wetland mitigation fee revenues will be used to fund the restoration, creation and management of jurisdictional wetlands and waters and riparian woodland/scrub, and the administrative actions necessary to perform these tasks, as more particularly set forth in the HCP/NCCP.
(Ord. 06-23, 7/11/2023)
The City Council of the City of Oakley finds and determines as follows:
a. 
There is a need to establish a comprehensive framework to protect and conserve species, wetlands, natural communities, and ecosystems in East Contra Costa County, while improving and streamlining the environmental permitting process for impacts of future development on rare, threatened, and endangered species.
b. 
To meet the need identified in subsection (a) of this section, the City participated as a member of the East Contra Costa County Habitat Conservation Plan Association, a joint exercise of powers authority, to develop the HCP/NCCP and the implementing agreement. The City Council finds that the HCP/NCCP, implemented in accordance with the implementing agreement, will provide comprehensive species, wetlands, and ecosystem conservation and contribute to the recovery of endangered species within East Contra Costa County; balance open space, habitat, and urban development; reduce the cost and increase the clarity and consistency of federal and state permitting; consolidate and streamline these processes into one, locally controlled plan; encourage, where appropriate, multiple uses of protected areas; share the costs and benefits of the HCP/NCCP as widely and equitably as possible; and protect the rights of private property owners.
c. 
Adoption and implementation of this article will enable the City to promote the health, safety and welfare of all of its residents by helping to achieve the conservation goals set forth in the HCP/NCCP, to implement the associated implementing agreement, and to preserve the ability of affected property owners to make reasonable use of their land consistent with the requirements of the National Environmental Policy Act, the California Environmental Quality Act, the Federal Endangered Species Act, the California Endangered Species Act, the California Natural Community Conservation Planning Act, and other applicable laws.
d. 
Based on the HCP/NCCP and the data and analyses referenced therein, there is a reasonable relationship between the use of the HCP/NCCP implementation fees and the type of development projects subject to the fees. The development fee will be used to implement the HCP/NCCP by funding the acquisition of land, the enhancement and management of habitat, and the other public facilities identified in Section 9.2.710 in order to mitigate for impacts to open space, habitat, and covered species caused by affected development projects. The wetland mitigation fee will be used to implement the HCP/NCCP by funding the restoration, creation, and management of jurisdictional wetlands and waters and riparian woodland/scrub, and the other public facilities identified in Section 9.2.710(b) in order to mitigate for impacts to jurisdictional wetlands and waters and riparian areas caused by affected development projects. The HCP/NCCP implementation fees will not apply to all types of development projects, but only to those that impact open space, habitat suitable for one or more covered species, jurisdictional wetlands and waters, or riparian areas. In this way, the HCP/NCCP implementation fees will be used only for purposes reasonably related to the types of development projects that will be subject to the fees.
e. 
Based on the HCP/NCCP and the data and analyses referenced therein, there is a reasonable relationship between the need for the public facilities to be funded by the HCP/NCCP implementation fees and the type of development projects on which the fees are imposed because the need for these facilities, which include the acquisition of land and the management, enhancement, restoration, and creation of habitat, arises from the development projects to which the fees will apply, i.e., development projects of all types that disturb open space, habitat, jurisdictional wetlands and waters or riparian areas.
f. 
Based on the HCP/NCCP and the data and analyses referenced therein, there is a reasonable relationship between the amount of the HCP/NCCP implementation fees and the cost of the public facilities or portion of the public facilities attributable to the development projects on which the fees will be imposed. The costs of the public facilities needed to mitigate cumulative impacts from development projects subject to the fees were estimated by projecting the extent of future development impacts, calculating the open space or habitat acreage to be acquired, managed, enhanced, restored, and created to offset these impacts, and estimating the overall costs of acquiring and preserving this acreage for the thirty (30) year term of the state and federal permits. The fees were then calculated based on these costs, as follows:
1) 
The method of calculating the development fee amount for individual affected development projects reflects the cost of the public facilities attributable to individual affected development projects based on:
a) 
Area of the affected development project, as the cost of acquiring sufficient open space or habitat land to mitigate for the impacts of a particular development project is directly proportional to the acreage of that project; and
b) 
Location of the affected development project, as the need for the public facilities varies in proportion to the intrinsic habitat or open space value of the land impacted by the project. Thus, fees are tiered so that the highest fee amounts are imposed in Development Fee Zone II, which is deemed to have the highest intrinsic value per acre. A fee equal to fifty percent (50%) of the highest fee amount is imposed in Development Fee Zone I, which is deemed to have substantial but lower intrinsic value per acre, and a fee equal to twenty-five percent (25%) of the highest fee amount is required in Development Fee Zone III, which is deemed to have the lowest intrinsic value per acre.
2) 
The method of calculating the wetland mitigation fee amount for individual affected development projects reflects the cost of the public facilities attributable to those individual affected development projects based on:
a) 
Type of jurisdictional wetlands and waters and riparian woodland/scrub to be impacted by the affected development project, as the type of jurisdictional wetlands and waters and riparian woodland/scrub to be restored or created must effectively replace the type being impacted by the particular project. The cost of restoring or creating jurisdictional wetlands and waters and riparian woodland/scrub depends on (1) the specific construction tasks necessary to restore or create these areas and (2) the different mitigation ratios applicable to the restoration or creation of various types of jurisdictional wetlands and waters and riparian woodland/scrub, these ratios having been established in the HCP/NCCP to require relatively more restoration or creation of those types of jurisdictional wetlands and waters and riparian woodland/scrub that have a higher habitat value and function for covered species and/or are more difficult to restore or create, and therefore must be restored or created in larger amounts to offset the anticipated failure of a portion of the acreage restored or created; and
b) 
Area of jurisdictional wetlands and waters and riparian woodland/scrub to be impacted by the affected development project, as the cost of restoring or creating jurisdictional wetlands and waters and riparian woodland/scrub is directly proportional to the acreage being restored or created, which in turn is directly proportional to the acreage being impacted by the project.
(Ord. 06-23, 7/11/2023)
HCP/NCCP implementation fees are hereby adopted to fund the public facilities identified in Section 9.2.710, as follows:
a. 
Development Fee.
1) 
Except as otherwise provided in subsections (d) and (f) of this section, a development fee shall be imposed upon and collected from any and all affected development projects for each acre of land permanently disturbed, as follows:
Location of Affected Development Project
Development Fee
Development Fee Zone I
$19,871.91 per acre
Development Fee Zone II
$39,743.83 per acre
Development Fee Zone III
$9,935.96 per acre
2) 
The Community Development Director, or his designee, shall determine in which of the three development fee zones an affected development project is located, pursuant to Exhibit A attached to the ordinance codified in this article and the map data used to create Exhibit A.
3) 
The development fee for each affected development project shall be calculated by multiplying the fee for the applicable development fee zone by the acreage of the site permanently disturbed by the project, as determined by the Community Development Director or his designee pursuant to Chapter 9.3.1 of the HCP/NCCP.
4) 
Upon or before the issuance of a grading permit or, if no grading permit is issued, upon or before issuance of a building permit, the project applicant shall either (a) pay the entire development fee or, (b) with the prior written approval of the City, pay at least sixty-seven percent (67%) of the development fee and execute an agreement with the City, in a form approved by City Attorney, to provide additional funding payments through assessments on the subject parcels or other mechanisms, provided that assessments or other funding mechanisms are legally authorized for this purpose and approved by the implementing entity, pursuant to the requirements of Chapter 9.3.1 of the HCP/NCCP.
5) 
The development fee amount applicable to an affected development project shall be the development fee amount in effect at the time a grading permit is issued or, if no grading permit is issued, at the time the first building permit is issued for the project. Notwithstanding the foregoing, a project applicant may request to pay the development fee in a calendar year prior to the calendar year in which the grading permit or first building permit is issued. This request may be granted by the Community Development Director or his designee only in accordance with Section 13.2.2.1 of the implementing agreement and Chapter 9.3.1 of the HCP/NCCP. If such request is granted, the applicable development fee shall be the development fee in effect during the calendar year in which the fee is to be paid, including any adjustments made pursuant to Section 9.2.714.
b. 
Wetland Mitigation Fee.
1) 
Except as otherwise provided in subsections (e) and (f) of this section, in addition to a development fee, a wetland mitigation fee shall be imposed upon and collected from any and all affected development projects that will fill, dredge, or remove jurisdictional wetlands and waters or riparian woodland/scrub, and from any and all affected development projects that have been granted an exception to the stream setback established pursuant to Conservation Measure 1.7 of the HCP/NCCP.
2) 
The wetland mitigation fee applicable to affected development projects that will fill, dredge, or remove jurisdictional wetlands and waters or riparian woodland/scrub varies by the land cover type impacted by those projects. The Community Development Director or his designee shall determine which of the land cover types will be impacted by an affected development project and the corresponding fee amounts in accordance with Exhibit C, incorporated herein by reference and attached to the ordinance codified in this section, and in accordance with Chapter 9.3.1 of the HCP/NCCP. The wetland mitigation fee applicable to an affected development project that has been granted an exception to the stream setback shall be determined by the Community Development Director or his designee based on the acreage of setback encroachment, in accordance with Chapter 9.3.1 of the HCP/NCCP and Exhibit C.
3) 
Upon or before the issuance of a grading permit or, if no grading permit is issued, upon or before issuance of a building permit, the project applicant shall pay the wetland mitigation fee determined for the affected development project.
4) 
The wetland mitigation fee amount applicable to an affected development project shall be the wetland mitigation fee amount in effect at the time a grading permit is issued or, if no grading permit is issued, at the time the first building permit is issued for the project. Notwithstanding the foregoing, a project applicant may request to pay the wetland mitigation fee in a calendar year prior to the calendar year in which the grading permit or first building permit is issued. This request may be granted by the Conservation and Development Director or his designee only in accordance with Section 13.2.2.1 of the implementing agreement and Chapter 9.3.1 of the HCP/NCCP. If this request is granted, the applicable wetland mitigation fee shall be the wetland mitigation fee in effect during the calendar year in which the fee is to be paid, including any adjustments made pursuant to Section 9.2.714.
c. 
Condition of Approval.
1) 
Compliance with this article, including but not limited to the payment of the fees specified herein, as applicable, shall be a condition of approval of all affected development projects.
d. 
Dedications.
1) 
On a case-by-case basis, and upon a voluntary offer by the project applicant, the City may accept a dedication of land in lieu of some or all of the development fee that would otherwise be imposed upon a development project. Any offer of dedication may be considered for acceptance only if the land dedication is determined by the implementing entity to be consistent with the HCP/NCCP and implementing agreement. The amount of the development fee for which the dedication would substitute shall be determined by the implementing entity pursuant to Section 13.2.2.2 of the implementing agreement and Chapters 8.6.7 and 9.3.1 of the HCP/NCCP.
2) 
If required to comply with the Stay Ahead provision set forth at Chapter 8.6.1 of the HCP/NCCP and Section 9.2 of the implementing agreement, the City may require that some or all affected development projects offer a dedication of land in lieu of some or all of the development fee that would otherwise be imposed.
e. 
Creation/Restoration of Habitat.
1) 
On a case-by-case basis, and upon a voluntary offer by the project applicant, the City may accept the restoration or creation of jurisdictional wetlands and waters or riparian woodland/scrub in lieu of some or all of the wetland mitigation fee that would otherwise be imposed on an affected development project. The offer of restoration or creation of jurisdictional wetlands and waters or riparian woodland/scrub in lieu of some all or a portion of the wetland mitigation fee may be considered for acceptance only if the restoration or creation is determined by the implementing entity to be consistent with the HCP/NCCP and implementing agreement. The amount of the wetland mitigation fee for which such restoration or creation would substitute shall be determined by the implementing entity pursuant to Conservation Measures 2.1 and 2.2 and Chapter 9.3.1 of the HCP/NCCP.
f. 
Separate Take Authorization.
1) 
On a case-by-case basis, a project applicant that possesses separate and final approval from the United States Fish and Wildlife Service and/or California Department of Fish and Wildlife for incidental take of all federally or state listed species that may be adversely affected by the development project may apply to the City to pay a fee, the amount to be negotiated by the project applicant with the implementing entity, to support the conservation of habitat and open space under the HCP/NCCP in lieu of the HCP/NCCP implementation fees. If the Community Development Director or his designee determines that the mitigation and conservation requirements under the separate approval are equivalent to or exceed what would be required under this article, the City may determine that no further fees are required for purposes of complying with the HCP/NCCP, in which case the HCP/NCCP implementation fees described herein shall not be required of the project.
g. 
Fee Transmittal.
1) 
All fees collected hereunder shall be transmitted to the County Auditor-Controller quarterly, within thirty (30) days of the end of the quarter within which the fee was collected, for deposit into a separate account or fund, and for investment, accounting and expenditure in accordance with the provisions of this article, the HCP/NCCP, the implementing agreement, and the Mitigation Fee Act.
(Ord. 06-23, 7/11/2023)
The development fee and wetland mitigation fee shall on March 15 of each year be adjusted automatically as follows:
a. 
The development fee shall be adjusted as provided in Exhibit D and based on the formula in Exhibit E, as explained in Chapter 9.3.1 of the HCP/NCCP. As shown in Exhibit D and Exhibit E, both of which are incorporated herein by reference and attached to the ordinance codified in this section, one portion of the development fee amounts in effect before March 15 of each year shall be increased or decreased by the same percentage as the percentage of increase or decrease in the Office of Federal Housing Finance Agency Annual Home Price Index for the Oakland-Berkeley-Livermore, California Metropolitan Division for the twelve (12) month period ending December 31. The remaining portion of the development fee amounts shall be increased or decreased by the same percentage as the percentage of increase or decrease in the Consumer Price Index for the San Francisco-Oakland-Fremont Combined Statistical Area (U.S. Bureau of Labor Statistics) for the twelve (12) month period ending December 31.
b. 
The wetland mitigation fee shall be adjusted as provided in Exhibit D attached to the ordinance codified in this article. As shown in Exhibit D, the wetland mitigation fee amounts in effect before March 15 of each year shall be increased or decreased by the same percentage as the percentage of increase or decrease in the Consumer Price Index for the San Francisco-Oakland-Fremont Combined Statistical Area (Bureau of Labor Statistics) for the twelve (12) month period ending December 31.
(Ord. 06-23, 7/11/2023)
a. 
The City shall require project applicants for any and all affected development projects to submit an application for take authorization to the Planning Division for review simultaneously with the submittal of the request for approval of the project. The Community Development Director may require that the application be submitted on one or more standard application forms. The application for take authorization must include the following information:
1) 
A description of the affected development project, including maps, detailed information on the project footprint, extent of construction, and extent of any ongoing maintenance activities covered by the HCP/NCCP consistent with Chapter 2 of the HCP/NCCP.
2) 
One or more reports documenting the methods and results of planning surveys and the methods of applicable preconstruction surveys and construction monitoring, in accordance with Chapter 6 of the HCP/NCCP. The Community Development Director or his designee may allow specific components of the required surveys, including some or all of the results of planning surveys and the methods of applicable preconstruction surveys and construction monitoring, to be provided after the submittal of the initial application and prior to approval of the development project; however, the application for take authorization is not complete until all items in this subsection (a) have been submitted.
3) 
Evidence of compliance or planned compliance with applicable avoidance and minimization measures, in accordance with Chapter 6 of the HCP/NCCP.
4) 
Quantification of the anticipated acreage of land permanently disturbed, consistent with Chapters 6.2 and 9.3.1 of the HCP/NCCP.
5) 
Estimated HCP/NCCP implementation fees due and/or documentation of proposed land dedication and/or proposed habitat restoration or creation, consistent with Section 9.2.712.
6) 
Other information as directed by the Community Development Director in accordance with the HCP/NCCP.
b. 
The City may grant take authorization to a project applicant only upon satisfaction of all of the following conditions:
1) 
The application for take authorization is deemed by the Community Development Director to be complete.
2) 
The conditions of approval for the project require the project applicant to comply with all terms and conditions of the implementing agreement, the HCP/NCCP, and the state and federal permits that apply to the project. These terms and conditions include but are not limited to the following:
a) 
Payment of the required HCP/NCCP implementation fees and/or approval by the City of an offer of land dedication and/or habitat restoration or creation, pursuant to the requirements of Section 9.2.712.
b) 
Compliance with all relevant surveys, monitoring, avoidance, minimization and conservation measures determined by the Community Development Director to apply to the project, pursuant to Chapter 6 of the HCP/NCCP.
c) 
The City determines that extension of take authorization is consistent with the HCP/NCCP, implementing agreement, the state and federal permits, and all applicable federal, state, and local laws and regulations.
(Ord. 06-23, 7/11/2023)
Any judicial action or proceeding to attack, review, set aside, void, or annul the fees established by this article must be commenced within one hundred twenty (120) days after the effective date of this article. Any action to attack an increase adopted pursuant to Section 9.2.714 must be commenced within one hundred twenty (120) days after the effective date of the increase.
(Ord. 06-23, 7/11/2023)