17.35.100 Specific MSCP land use and development regulations

17.35.100 Specific MSCP land use and development regulations.

In addition to the general MSCP development regulations listed in CVMC 17.35.090, the following specific land use and development regulations shall apply to all land uses and to development proposals in a project area that do not qualify for an exemption from this chapter:

A. Land uses and development are permitted within the 100 percent conservation areas consistent with the Chula Vista MSCP subarea plan and this section. If any portion of the project area is located within a 100 percent conservation area, the following regulations shall apply to that portion of the project area located within the 100 percent conservation area:

1. Uses Permitted. The following uses are permitted in 100 percent conservation areas:

a. Access for litter and trash removal, maintenance, repair, and refurbishment;

b. Replacement of structures in existing locations;

c. Passive recreation such as hiking and bird watching;

d. Other recreation such as mountain biking, horseback riding, boating, sun bathing, fishing, and swimming as in accordance with an approved project, an approved area-specific management directive or as determined by the appropriate managing entity;

e. Fencing that does not significantly, adversely affect the full functioning of the preserve, including wildlife movement as approved by the appropriate managing entity;

f. Scientific research related to habitat conservation, monitoring and habitat restoration and enhancement activities, subject to approval by the appropriate managing entity;

g. Access for law enforcement agencies, fire control agencies, the National Guard, the Immigration and Naturalization Service (INS), and Border Patrol; and

h. Existing uses operating legally at the time take authorization is granted to the City by the wildlife agencies until the land has been provided to the City or other entity by an irrevocable offer of dedication or conveyed by easement or fee title to the preserve, whichever comes first, including:

i. Existing, permitted uses allowed by right in CVMC Title 19 (zoning);

ii. Uses deemed to be legal, nonconforming uses pursuant to CVMC Title 19 (zoning);

iii. Accessory and conditionally permitted uses pursuant to CVMC Title 19 (zoning);

iv. Existing agricultural and grazing uses outside of Otay Ranch;

v. Existing agricultural and grazing uses within Otay Ranch in accordance with Chapter 17.30 CVMC (Otay Ranch grazing); and

vi. Existing mining, extraction and processing facilities consistent with the Chula Vista MSCP subarea plan.

2. Conditionally Compatible Uses. The following uses are conditionally permitted in 100 percent conservation areas, consistent with the Chula Vista subarea plan:

a. New mining extraction and processing facilities; and

b. Flood control; and

c. Roads and infrastructure; and

d. Other planned facilities not covered under subsection (A)(2)(c) of this section; and

e. Other future facilities not covered under subsection (A)(2)(c) of this section; and

f. Otay Valley Regional Park plan uses.

3. The following uses are not permitted:

a. The following uses shall not be permitted without prior issuance of the appropriate permit from the City:

i. Clearing and/or grubbing of natural vegetation, for purposes unrelated to biological enhancement, prior to issuance of a clearing and grubbing permit;

ii. Clearing and/or grubbing of natural vegetation, for purposes unrelated to biological enhancement, grading, excavation, or placement of soil, rock, sand, gravel or other material prior to issuance of a land development permit;

iii. Construction or placement of any building or structure prior to the issuance of a building permit;

b. Recreational off-highway vehicle use;

c. Storage of materials such as chemicals and equipment; and

d. Dispersal of biosolids.

a. Development shall be limited to the maximum extent practicable to achieve project objectives and shall be located on the least environmentally sensitive portions of the project area in accordance with the MSCP implementation guidelines. Such development shall be designed to avoid impacts to covered species to the maximum extent practicable. Encroachment into more environmentally sensitive areas shall only be authorized to achieve project objectives.

b. Development must avoid impacts to covered narrow endemic species to the maximum extent practicable. A list of the covered narrow endemic species is included in the Chula Vista MSCP subarea plan and MSCP implementation guidelines. Measures for protection of narrow endemic species shall be required such as management, enhancement, restoration and/or transplantation in accordance with the MSCP implementation guidelines.

i. Where impacts to a covered narrow endemic species population are demonstrated to be unavoidable, impacts shall be limited to five percent of the total narrow endemic species population within the project area, except as provided by subsection (A)(4)(b)(ii) of this section. Written findings of equivalency must be made by the City in accordance with CVMC 17.35.080(B). The City will forward its written findings of equivalency to the wildlife agencies. The wildlife agencies may submit to the City, within 30 days of a receipt of mailed notice of written findings from the City, a written finding of nonconcurrence on the facts of the City’s findings. If such written finding of nonconcurrence is made within 30 days of receipt of mailed notice of findings from the City, the City must confer with the wildlife agencies to resolve narrow endemic species issues with the proposed development. If the wildlife agencies do not respond within 30 days after receipt of mailed notice, the City shall deem the written findings accepted.

ii. If, after comprehensive consideration of avoidance and minimization measures, impacts exceed five percent of the covered narrow endemic species population within the project area, a determination of biologically superior preservation, must be made in accordance with CVMC 17.35.080(B). The City will forward its written determination of biologically superior preservation to the wildlife agencies for review. The wildlife agencies may submit to the City, within 30 days of receipt of mailed notice of findings from the City, a written finding of nonconcurrence on the facts of the City’s findings. If such written finding of nonconcurrence is made within 30 days of receipt of mailed notice of findings from the City, the City must confer with the wildlife agencies to resolve narrow endemic species issues with the proposed development. If the wildlife agencies do not respond within 30 days after receipt of mailed notice, the City shall deem the written findings accepted.

c. Development of planned and future facilities shall be in accordance with the following siting criteria:

i. Planned and future facilities shall be located through developed or developing areas where feasible and shall use existing roads, trails, and disturbed areas to the maximum extent practicable.

ii. Planned and future facilities shall avoid, to the maximum extent practicable, impacts to sensitive biological resources and covered species. Where avoidance of sensitive biological resources and covered species has been demonstrated by the applicant to be infeasible, impacts to sensitive biological resources and covered species resulting from planned and future facilities shall be minimized and located in the least environmentally sensitive portion of the project area in accordance with the MSCP implementation guidelines.

iii. Planned and future facilities shall avoid, to the maximum extent practicable, impacts to wetlands. If avoidance of wetlands is not possible, any impacts to wetlands shall require mitigation in accordance with Section 5.2.4 and Table 5-6 of the Chula Vista MSCP subarea plan, as adopted on May 13, 2003, and as may be amended from time to time.

iv. Where roads traverse the preserve, they shall, to the maximum extent practicable, provide for wildlife movement in areas that are graphically depicted on and listed in the MSCP subregional plan generalized core biological resource areas and linkages map (see Figure 1-4 of the Chula Vista MSCP subarea plan) as a core biological area or a regional linkage between core biological areas.

v. At wildlife crossings, road bridges for vehicular traffic shall be preferred over box culverts and pipe culverts. Box culverts shall only be used when they can achieve the wildlife movement goals for the specific location. To the maximum extent practicable, wildlife crossings shall be designed as follows:

(A) The substrate shall be left in a natural condition and planted with native vegetation if appropriate;

(B) A line-of-sight from one end to the other shall be provided; and

vi. To minimize habitat disruption, habitat fragmentation, impediments to wildlife movement, and impacts to breeding areas, roads and/or right-of-way widths shall be narrowed from existing City design and engineering standards to the maximum extent practicable.

d. No single future facility project shall permanently impact more than two acres of covered habitat without concurrence from the wildlife agencies. Temporary impacts associated with future facilities shall not be included in the limitations for permanent impacts to natural vegetation; however, all areas of temporary impacts shall be revegetated pursuant to the MSCP implementation guidelines. If the two-acre single project threshold is to be exceeded, the City shall notify in writing and provide applicable project information to the wildlife agencies. The wildlife agencies may submit to the City, within 30 days of a receipt of mailed notice and information from the City, a written response of nonconcurrence. If such written finding of nonconcurrence is made within 30 days of receipt of mailed notice from the City, the City shall confer with the wildlife agencies to resolve the future facility issue. If the wildlife agencies do not respond within 30 days after receipt of mailed notice, the City shall deem the written findings accepted.

e. The cumulative permanent impacts to covered habitats from all future facilities for all projects shall not exceed a total of 50 acres without concurrence from the wildlife agencies. If the 50-acre threshold is to be exceeded, the City shall notify in writing and provide applicable project information to the wildlife agencies. The wildlife agencies may submit to the City, within 30 days of a receipt of mailed notice and information from the City, a written response of nonconcurrence. If such written finding of nonconcurrence is made within 30 days of receipt of mailed notice from the City, the City shall confer with the wildlife agencies to resolve the future facility issue. If the wildlife agencies do not respond within 30 days after receipt of mailed notice, the City shall deem the written findings accepted.

f. Mitigation shall be provided pursuant to CVMC 17.35.110.

g. For construction areas adjacent to occupied Quino checkerspot butterfly habitat, dust control measures (e.g., watering) will be applied during grading activities.

B. Land uses and development are permitted within 75 to 100 percent conservation areas consistent with the Chula Vista MSCP subarea plan and this section. If any portion of the project area is located within a 75 to 100 percent conservation area, the following shall apply to that portion of the project area located within the 75 to 100 percent conservation area:

a. Permitted land uses include those uses permitted in the underlying zone.

a. Development shall be permitted in 25 percent of the 75 to 100 percent conservation area within the project area. Projects shall be designed to avoid impacts to covered species to the maximum extent practicable and the 25 percent development area shall be located on the least environmentally sensitive portions of the 75 to 100 percent conservation area within the project area. The following list, in order of increasing sensitivity, shall be used to determine the least environmentally sensitive portions of the 75 to 100 percent conservation area within the project area. This list shall be used in combination with site-specific biological information submitted pursuant to CVMC 17.35.060, and with other considerations such as, but not limited to, potential edge-effects from existing and proposed development, preserve configuration, habitat quality, wildlife movement, and topography.

i. Areas devoid of vegetation, including previously graded areas and agricultural fields;

ii. Areas of nonnative vegetation, disturbed habitats and eucalyptus woodlands;

iii. Areas of chamisc or mixed chaparral, and nonnative grasslands;

iv. Areas containing coastal scrub communities;

v. All other upland habitat communities;

vi. Occupied habitat of listed species, narrow endemic species, and all wetlands; and

vii. All areas necessary to maintain the viability of wildlife corridors.

b. Development shall avoid impacts to covered narrow endemic species to the maximum extent practicable. A list of the covered narrow endemic species is included in the Chula Vista MSCP subarea plan and MSCP implementation guidelines. Measures for protection of narrow endemic species shall be required such as management, enhancement, restoration and/or transplantation in accordance with the MSCP implementation guidelines.

i. Where impacts to a covered narrow endemic species population are demonstrated to be unavoidable, impacts shall be limited to 20 percent of the total narrow endemic species population within the project area, except as provided by subsection (B)(2)(b)(ii) of this section. Written findings of equivalency will be made by the City in accordance with CVMC 17.35.080(B).

ii. If, after comprehensive consideration of avoidance and minimization measures, impacts exceed 20 percent of the covered narrow endemic species population within the project area, a written determination of biologically superior preservation, must be made by the City in accordance with CVMC 17.35.080(B). The City will forward its written determination of biologically superior preservation to the wildlife agencies for review. The wildlife agencies may submit to the City, within 30 days of receipt of mailed notice of findings from the City, a written finding of nonconcurrence on the facts of the City’s findings. If such written finding of nonconcurrence is made within 30 days of receipt of mailed notice of findings from the City, the City must confer with the wildlife agencies to resolve narrow endemic species issues with the proposed development. If the wildlife agencies do not respond within 30 days after receipt of mailed notice, the City shall deem the written findings accepted.

c. Mitigation shall be provided pursuant to CVMC 17.35.110.

C. Land uses and development are permitted within development areas outside of covered projects consistent with the Chula Vista MSCP subarea plan and this section. If any portion of the project area is located within a development area, the following regulations shall apply to that portion of the project area located within the development area outside of covered projects:

a. Permitted land uses include those uses permitted in the underlying zone.

a. Encroachment into natural vegetation is not limited except as may be provided by CVMC 17.35.090(A)(2) and/or (A)(3).

b. Development shall avoid impacts to covered narrow endemic species to the maximum extent practicable. A list of the covered narrow endemic species is included in the Chula Vista MSCP subarea plan and the MSCP implementation guidelines. Measures for protection of narrow endemic species shall be required such as management, enhancement, restoration and/or transplantation in accordance with the MSCP implementation guidelines.

i. Where impacts to a covered narrow endemic species population are demonstrated to be unavoidable, impacts shall be limited to 20 percent of the total narrow endemic species population within the project area, except as provided in subsection (C)(2)(b)(ii) of this section. Written findings of equivalency will be made by the City in accordance with CVMC 17.35.080(B).

ii. If, after comprehensive consideration of avoidance and minimization measures, impacts exceed 20 percent of the covered narrow endemic species population within the project area, a written determination of biologically superior preservation, will be made by the City in accordance with CVMC 17.35.080(B). The City will forward its written determination of biologically superior preservation to the wildlife agencies for review. The wildlife agencies may submit to the City, within 30 days of receipt of mailed notice of findings from the City, a written finding of nonconcurrence on the facts of the City’s findings. If such written finding of nonconcurrence is made within 30 days of receipt of mailed notice of findings from the City, the City must confer with the wildlife agencies to resolve narrow endemic species issues with the proposed development. If the wildlife agencies do not respond within 30 days after receipt of mailed notice, the City shall deem the written findings accepted.

c. Mitigation shall be provided pursuant to CVMC 17.35.110. (Ord. 3004 § 1, 2005).