HomeMy WebLinkAbout03_Recommendation_of_Disincentives_to_Illegal_Grading 2014-06-05
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Butte County Department of Development Services
TIM SNELLINGS, DIRECTOR | PETE CALARCO, ASSISTANT DIRECTOR
7 County Center Drive
Oroville, CA 95965
(530) 538-7601 Telephone
(530) 538-7785 Facsimile
www.buttecounty.net/dds
www.buttegeneralplan.net
To: Honorable Chair and Planning Commission
From: Stacey Jolliffe and Tom Fossum
Subject: Discussion of Penalties for Grading Violations
Date: June 5, 2014
Executive Summary
At its May 22, 2014 hearing, the Planning Commission made a unanimous motion directing
staff to investigate disincentives to illegal grading for discussion at its June 5, 2014
meeting and for a potential recommendation to the Board of Supervisors.
The Planning Commission’s direction was given at the end of a hearing for a grading
permit that the Planning Commission denied and following a discussion of illegal grading in
general, especially in the foothills.
This report provides additional information relative to possible penalties for grading without
permits by withholding building permits until grading violations are remedied and by
recovering costs associated with investigating violations in order to discourage illegal
grading via Butte County Code (BCC).
Your Commission may wish to forward one or more of the following recommendations to
the Board regarding penalties for illegal grading. “The Planning Commission recommends
that the Board of Supervisors:
Direct staff to investigate the potential to utilize existing Chapter 41 of the BCC,
including sections 41-6.1 Notice of Noncompliance and/or 41-7 Notice of Violation,
to prevent the issuance of permits or entitlements except permits necessary to
remedy the noncompliance/violation, and to recover investigative costs;
Modify the Grading Ordinance such that it would prevent the issuance of any permit
or entitlement until grading violations are remedied;
Modify the Grading Ordinance to enable the recovery of investigative fees for sites
graded without permits.”
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Background
As noted by the Planning Commission at its May 22, 2014 meeting, the Grading Ordinance
(Chapter 13, Article 1 of BCC) currently contains limited provisions to discourage or
penalize grading without permits. See Attachment A for BCC §13-16 Violations. While
grading permits can be more time-consuming and costly to obtain after grading has
occurred, this has not proven to be a deterrent to unpermitted grading, notably unpermitted
grading associated with marijuana cultivation in the foothills.
Under current provisions, sites with grading violations may (or may not) obtain building
permits and other discretionary permits and entitlements while grading violations are
pending. If the foundation of a structure is physically tied to the grading violation, building
permits will be delayed or withheld until grading violations are remediated to ensure the
stability of the structure and consistency with building codes. If however, the foundation of
a structure is not physically tied to the grading violation, permits such as well, septic and
building permits are not withheld until illegal grading is remedied
Proposed Code Amendments are currently being processed to Chapter 13, Grading of
BCC. Proposed modifications would make it clear that grading plans must be prepared by
a licensed engineer. Other modifications have been discussed such as increasing the
amount of soil that can be moved without the need for a grading permit; at this time no final
direction has been provided in regards to this issue from the Board of Supervisors.
Analysis
One path to delaying or withholding building permits until a violation is remedied is found in
existing Code Enforcement provisions of BCC Chapter 41 Code Enforcement Policies and
Procedures, including sections 41-6.1 Notice of noncompliance and/or 41-7 Notice of
violation. Once a notice of violation or notice of noncompliance is issued, permits and
entitlements cannot be issued, except permits necessary to remedy the
noncompliance/violation.
The use of Chapter 41 Code Enforcement appears to be an administratively intensive, but
flexible, means of withholding/delaying building permits until grading violations are
remedied. Under Chapter 41, a notice of non-compliance or a notice of violation could be
issued for a specific property to withhold/delay the issuance of certain building permits.
While this requires extra administrative processes, it also enables the County to make a
distinction between minor grading without health and safety effects (in which case building
permits may be issued) and major grading with adverse health and safety effects (and
which needs to be remedied prior to the issuance of any permit or entitlement).
Chapter 41 also enables the County to recover costs for investigation and remediation of
public nuisances, such as junk in public view, when owners fail to clean up their properties
after citation and court order. However, these existing code provisions have not been
utilized to date to remedy grading violations, presumably because they are administratively
intense, ill-suited to grading violations, and/or not supported by the Board of Supervisors.
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Alternatively, the Grading Ordinance, Chapter 13 of BCC, could be modified to enable the
recovery of investigative costs and/or to withhold the issuance of building permits until
illegal grading is remedied. Chapter 13 Grading of BBC could be modified by the Board of
Supervisors to charge up to actual costs to investigate illegal grading, with applicable
findings, up to but not exceeding the cost to the County. If it can be demonstrated that
grading without permits requires additional investigation and staff time to process, higher
fees may be charged for processing grading permits after earthwork is performed.
It is not clear at what point additional fees would dissuade illegal grading or that
investigative and staff processing costs would be high enough to discourage unpermitted
grading activities.
A more persuasive discouragement for illegal grading (or encouragement to bring illegal
grading into compliance with BCC) may be found by delaying permits and entitlements for
a parcel/site until illegal grading activities have been remediated. Since it has been found
that illegal grading is a threat to the public health and safety, the Board can adopt
amendments to the Grading Ordinance such that permits and entitlements would not be
issued until illegal grading activities have been permitted or remediated. This would
appear to provide additional incentives for individuals to comply with grading requirements.
Attachment: Section 13-16 of Butte County Code
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Attachment A
Section 13-16 of Butte County Code
13-16 Violations.
(a) Revocation of Permit: Whenever any alleged violation of the terms of a grading
exemption, determination of exemption, or a grading permit is brought to the attention of
the director, he shall, after determining that a violation does exist, either give the
permittee a written notice to comply within ten (10) days, or, where continuation of the
violation may adversely affect the public health, safety or welfare, give the permittee
written notice of suspension of the exemption, determination of exemption, or permit and
operations thereunder. Said notices shall be personally served or sent by registered
mail, return receipt requested, and shall be effective on the date of the personal service
or mailing thereof. If the permittee does not comply with such a notice to comply within
thirty (30) days or if the permittee has been given a notice of suspension, the director
shall request the question of the revocation of the exemption, determination of
exemption, or grading permit to be placed on the agenda of the next regular planning
commission meeting. Any exemption, determination of exemption, or grading permit
may be revoked or modified by the planning commission in the same manner as
specified for use permits in section 24-45.65 of this Code.
(b) Public Nuisance: Any grading in violation of the terms of this article or any permit issued
hereunder is hereby declared to be a public nuisance and may be abated in the manner
provided by law.
(c) Remedies Cumulative: The remedies provided in this article are cumulative and not
exclusive. Nothing in this article bars any legal, equitable, administrative or summary
remedy to which any aggrieved public agency, person, firm, corporation or partnership
may otherwise be entitled.
(Ord. No. 2680, § 2, 4-26-88; Ord. No. 2738, § 1, 3-7-89; Ord. No. 4011, § 1, 12-8-09