§ 23.05.036. Review, Approval and Permits.

a.

Timing and restrictions of approval. Grading permits are subject to the following timing requirements and restrictions:

(1)

A grading permit shall not be approved before:

(i)

Application for a construction permit, if the grading is proposed for creation of or access to a building site.

(ii)

Approval of a land use permit, land division, or General Plan amendment, if such approvals are required for completion of any project located on the same site; all required appeal periods shall have expired.

(iii)

Approval of any required permits from state or federal agencies.

(2)

Permits cannot be issued until the determination of adequate water and/or sewage disposal, fire safety plan, or other required site investigations are made, land disturbance shall be limited to the extent necessary to allow such an investigation, consistent with Section 23.05.032.b(11)(iii).

(3)

This Subsection shall not apply to subdivision improvements or road construction required as a condition of approval of a land division.

b.

Modifications to approved grading plans. Any alternatives or modifications to approved plans shall be approved by the Director or, where applicable, the Public Works Director. The issuance of a permit in compliance with the Grading Ordinance shall constitute an authorization to do only the work that is described or illustrated by the grading plans, erosion and sedimentation control plans, specifications approved by the Director or drainage plans approved by the Public Works Director.

c.

Special Circumstances.

(1)

Correction to hazardous condition. Whenever the Director determines that any existing excavation, constructed embankment or fill on land subject to County regulations has become a hazard to life and limb, endangers property, adversely affects the safety, use or stability of a public right-of-way or drainage channel, or creates a significant environmental impact, the Director shall notify the owner of the property, or other person or agent in control of the property. Corrections, remedies, and repairs made necessary by a hazardous situation may be made as required before permits are applied for or issued, at the discretion of the Director and pursuant to the procedures for emergency permitting as set forth in Section 23.03.045. Upon receipt of written notice from the Director, the owner or agent shall within the period specified therein:

(i)

Correct, repair or eliminate the condition; and

(ii)

Comply with the requirements of this Code, which may entail preparation of a grading plan, erosion and sedimentation control plan, Stormwater Pollution Prevention Plan, and obtaining any necessary permits, including emergency permits.

(2)

Emergency work. Section 23.03.045 establishes the procedures for issuance of emergency permits in situations that constitute an emergency. Corrections, remedies and repairs made necessary by an emergency situation involving the sudden, unexpected occurrence of a break, rupture, flooding or breach of an existing facility which presents an immediate threat to life, health or property, may be made as required before the grading permits are applied for or issued in compliance with the standards in Section 23.03.045. For the purposes of the Grading Ordinance, a threat to property may include potential damage to agricultural crops. Written notification and a description of the work shall be submitted to the Director as provided by Section 23.03.045. Permits for emergency work shall be applied for within 15 days of commencement of work. This shall include emergency work done under the Emergency Watershed Protection Program in cooperation with the USDA Natural Resources Conservation Service and the Resource Conservation Districts.

(3)

Unpermitted (as-built) grading. If grading operations are commenced before first securing a proper grading permit, no permit will be issued until all illegal grading has been stopped, except to restore the site to its original condition or to correct hazardous conditions to the satisfaction of the Director. Once the site is deemed safe, the owner shall obtain proper permits to rectify the code enforcement violation within a reasonable time as determined by code enforcement. If activities were exempt under Section 23.05.032, but failed to adhere to specified requirements for exemption, such as erosion and sedimentation control practices, these activities shall be considered unpermitted grading. Unpermitted grading is also subject to the following:

(i)

All unpermitted grading, which is not exempt under Section 23.03.032, shall require a grading permit. Grading which is listed as exempt under Section 23.03.032, but results in erosion and sedimentation control failures, shall also require a grading permit.

(ii)

Grading and drainage plans shall be prepared by a registered civil engineer. All plans shall be signed and stamped by the engineer of record. Plans must include a detailed written scope, description of the intended use of the grading area, and all required grading plan contents as specified in Section 23.05.038.

(iii)

A registered civil engineer or geotechnical engineer shall certify that the work performed meets the California Building Code and the Grading Ordinance. In the event that the work performed does not meet these grading standards, then the grading plans must show remedial work to correct deficiencies.

(iv)

The Director may require approval and implementation of an erosion and sedimentation control plan in the interim if weather or site conditions warrant such action.

(v)

If the engineer of record identifies a potentially hazardous condition as a result of the unpermitted site work, the engineer may recommend pursuing emergency permits for immediate remedial action subject to Subsection c(1).

(vi)

In the event that no grading permit or land use permit can be issued for such operations, the site shall be restored to an acceptable condition as determined by the Director under a restoration permit pursuant to Subsection c(4).

(4)

Denial of unpermitted grading and site restoration. If the Director requires restoration of a site, restoration plans, prepared by a certified sediment and erosion control specialist or by other qualified professionals at the discretion of the Director, shall be submitted for review and approval prior to any restoration. The permit holder shall pay a restoration permit fee, in addition to any applicable penalties, which shall be equal to the grading permit fee for both the unpermitted quantity and restoring quantities of grading material. Restoration shall be made in conformity with the approved plans.

d.

Environmental review.

(1)

Environmental determination. As required by Title 14 of the California Code of Regulations, all grading permit and restoration permit applications are to be reviewed by the Environmental Coordinator for an environmental determination in compliance with the California Environmental Quality Act (CEQA). This Section does not apply to those applications that are deemed exempt from the provisions of CEQA in compliance with section 15304, 15333, or 15061(b)(3) of the State CEQA Guidelines.

Exempt applications under Section 15304 of the State CEQA Guidelines include those that propose grading on terrain with slopes less than 10 percent, will involve less than 5,000 cubic yards of earthwork, do not involve site work in a waterway or wetlands, and are not located within a Sensitive Resource Area.

Exempt applications under Section 15333 of the State CEQA Guidelines include small habitat restoration projects.

Exempt applications under Section 15061(b)(3) of the State CEQA Guidelines include those projects where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.

In any case where a drainage plan is required by Section 23.05.040 and an environmental determination is not otherwise required by Section 23.02.034 (Development Plan), Chapter 23.07 (Combining Designations), or Section 23.05.032 (Exemptions from Grading Permits), the project application shall be subject to an environmental determination before a decision to approve the application, except for single-family residences when exempt from the provisions of CEQA.

Unless exempt, no action shall be taken to approve, conditionally approve, or deny a grading permit or drainage plan until it is:

(i)

Accompanied by a written determination by the Environmental Coordinator that the project is exempt from the provisions of CEQA; or

(ii)

Accompanied by a duly issued and effective negative declaration; or

(iii)

Accompanied by a certified environmental impact report.

(2)

EIR required. Where an environmental impact report (EIR) is required in compliance with CEQA and:

(i)

If a Development Plan is not required by other provisions of the title, a grading permit application shall be processed, reviewed, and approved according to all the provisions of Section 23.02.034 (Development Plan), and the criteria of Subsection e(1) (Criteria for Approval); or

(ii)

If the Development Plan is required by other provisions of this Title, a grading permit application shall be processed, reviewed, and approved according to the provisions of this Section, including a requirement that the grading permit application shall be consistent with and satisfy all conditions of approval of the Development Plan.

(3)

EIR not required. Where a grading permit is determined to be exempt from the provisions of CEQA or has been granted a proposed negative declaration, the Director or applicable Review Authority may approve the environmental determination and the permit where the proposed grading is in conformity with applicable provisions of this Title, provided:

(i)

The Director may require that grading operations and project designs be modified if delays occur that result in weather-generated problems not addressed at the time the permit was issued.

(ii)

Where a proposed negative declaration for a grading permit has been issued upon an agreement by the applicant to incorporate mitigation measures into the project that are necessary to reduce its environmental impacts, such mitigation measures shall be added and shown on the grading plans prior to permit issuance, and their completion and inspection shall be required prior to final inspection approval.

(iii)

The comment period for the negative declaration has expired and no comments have been submitted.

(iv)

The grading permit received an exemption under CEQA.

e.

Approvals.

(1)

Criteria for approval.

(i)

Grading plan. A grading permit may be issued where the Director first finds, where applicable, that:

(a)

Proposed grading is consistent with erosion and sedimentation control plan requirements (Section 23.05.042) and applicable standards (Section 23.05.048.c);

(b)

The proposed grading design is consistent with the characteristics and constraints of the site;

(c)

The extent and nature of proposed grading is appropriate for the use proposed, and will not create site disturbance to an extent greater than that required to establish the use;

(d)

Proposed grading is consistent with the intent of the General Plan and any applicable specific plan;

(e)

Proposed grading will not result in accelerated erosion, stream sedimentation, significantly reduced groundwater recharge or other adverse effects or hazards to life or property;

(f)

Proposed erosion and sedimentation control measures are appropriate for the degree of site disturbance proposed and characteristics of the site and will result in the establishment of a permanent vegetative cover on denuded areas not otherwise permanently stabilized;

(g)

Unless overriding findings have been made through preparation of an Environmental Impact Report, the proposed grading will not create substantial adverse long-term visual effects;

(h)

If the proposed grading is for the creation of a building site, a design for an access road, if necessary, shall be approved with the grading permit;

(i)

Adequate sewage disposal and water supplies are available;

(j)

Project plans and approvals comply with General Construction Permit and NPDES Phase II provisions, including the preparation of a stormwater pollution prevention plan, if applicable; and

(k)

The proposed grading complies with the air quality control procedures identified in Section 23.05.050.c.

(l)

If the proposed grading is to accommodate non-agricultural development on agricultural land, the non-agricultural development has been located off of prime agricultural soils to the maximum extent feasible.

(m)

The proposed grading complies with all applicable provisions of the Local Coastal Program and the California Coastal Act.

(ii)

Drainage plan. All drainage plans shall be submitted to the Public Works Director for review, and are subject to the approval of the Public Works Director, prior to issuance of a land use, grading or construction permit, as applicable.

(a)

Appeal. Actions of the Public Works Director on drainage plans may be appealed to the Board of Supervisors in compliance with the procedure set forth in Section 23.01.042.

(b)

Plan check, inspection and completion. Where required by the Public Works Director, a plan check and inspection agreement shall be entered into and the drainage facilities inspected and approved before final project approval is issued.

(2)

Agency referrals and conditions of approval. The Director may refer application materials to appropriate agencies for review and comment prior to grading permit approval. In granting any permit in compliance with the Grading Ordinance, the Director may impose, modify, or add conditions as reasonably necessary to prevent potentially adverse environmental impacts, nuisances, or unreasonable hazards to persons, public or private property, sensitive resources, productive soils, native vegetation, or cultural resources. Conditions may include, but are not limited to:

(i)

Modifications necessary to ensure that plans comply with all applicable standards in this Title.

(ii)

Improvement of any existing grading to bring it up to the standards required by the Grading Ordinance for new grading.

(iii)

Requirements for fencing of excavations or fills which would otherwise be hazardous.

(iv)

Adequate fugitive dust control measures as recommended by the San Luis Obispo County Air Pollution Control District and approved by the Director.

(v)

An approved operational plan for creating, using and restoring a borrow area or pit.

(vi)

Compliance with the purpose and intent of these grading, drainage, erosion and sedimentation control, and stormwater pollution prevention regulations (Section 23.05.040 through 23.05.044) or the grading, drainage, erosion and sedimentation control, and stormwater pollution prevention standards of Section 23.05.048.

(vii)

Requirements for fencing or other protective measures around cultural resources, native trees, riparian or wetland vegetation, or other sensitive resources identified for protection.

(viii)

Mitigation measures identified in the project's negative declaration, developer's statement, or environmental impact report.

(ix)

Limitations on haul routes for materials and hours of operation.

(x)

Requirements necessary to implement the recommendations identified in the project's civil engineering report, soils engineering report, engineering geology report, or erosion and sedimentation control plan.

(xi)

Transfer of responsibility agreement if original civil engineer, soils engineer, engineering geologist, erosion control specialist, or grading contractor is replaced.

(xii)

Groundwater recharge measures.

(3)

Security. The Director shall require guarantees of performance for all engineered grading plans as set forth in Section 3311 of the 1997 Uniform Building Code Appendix Chapter 33 and Section 23.02.060, to ensure that the work, if not completed in compliance with the approved plans and specifications, will be corrected to eliminate hazardous conditions, or restore the site to pre-graded or natural condition. The Director may also identify other grading permits that require such security to ensure that environmental impacts are mitigated.

(i)

A performance agreement and security posted with the County may be required if, in the Director's opinion, site characteristics including slope, proximity to waterways, neighboring structures, or sensitive resources; or the nature of work to be performed warrant a guarantee.

(ii)

The guarantee of performance shall cover one hundred twenty percent (120%), (which includes contingencies, engineering and inspection) of the full amount required to assure completion, restoration and/or remediation, based upon estimates approved by the Director and must provide a right of entry from the property owner.

(iii)

Every guarantee of performance shall be made on the conditions that the permit holder shall:

(a)

Comply with all the provisions of this Code, applicable laws and ordinances.

(b)

Comply with all of the terms and conditions of the grading permit.

(c)

Complete all grading, drainage and erosion control work contemplated under the grading permit within the time limit specified in the grading permit, or if no time limit is so specified, the time limit specified in the Grading Ordinance. The Director may, for sufficient cause, extend the time specified in the permit, but no extension shall release the owner or the surety on the bond or person issuing the instrument of credit.

(iv)

Each guarantee of performance shall remain in effect until the completion of the work as specified according to the plans, specifications, and terms and conditions of the grading permit to the satisfaction of the Director.

(v)

In the event of failure to complete the work or failure to comply with all of the conditions and terms of the grading permit, the Director may order such work as in his opinion is necessary to correct any deficiencies or eliminate any dangerous conditions and leave the site in a safe condition. The Director may order the work authorized by the permit to be completed to a safe and stable condition to the Director's satisfaction, or may order restoration of the site to pre-graded or natural condition, or such condition deemed appropriate by the Director. The permit holder and/or the surety executing the performance agreement shall continue to be firmly bound under a continuing obligation for the payment of all necessary costs and expenses that may be incurred or expended by the County in causing any and all such work to be completed. In the case of a cash deposit, any unused portion thereof shall be refunded to the permit holder.

(vi)

The guarantee of performance, less costs of remedial work, if any, shall be released when the Director determines that the erosion, sediment control, and native revegetation practices have adequately stabilized the site.

(vii)

The grading permit may provide for the partial release of the bond or other security required by this Section upon the partial acceptance of the work in compliance with Subsection f(4) (Notification of Completion).

(viii)

Any contractor or other person engaged in continuous or repeated excavations or, in the case of a construction permit, concurrent with that permit, may provide a blanket security or blanket deposit in the amount sufficient to insure prompt completion of all excavation projects being conducted at any one time. If the number or amount of excavation projects exceeds the amount of the security or deposit, the Director may require additional security or deposit to insure completion of all work being done at any one time.

f.

Permits.

(1)

Permit application procedure. An application for a grading permit consists of written and graphic information in compliance with Section 23.05.038.b (Grading Plan Content) as well as a statement of compliance with Subsection e(1) (Criteria for Approval). Not all applications require the same level of information. In some situations, additional information may be required after initial review based upon the nature, degree, or location of proposed work.

(2)

Grading permit time limits.

(i)

Grading with no affiliated construction permit. An approved grading permit that is not affiliated with a construction permit is valid for a period of one year from the date of permit issuance, unless:

(a)

Grading has begun, and an inspection has been recorded; or

(b)

An extension has been granted as set forth in Section 19.02.020 of the Building and Construction Ordinance.

(ii)

Grading with an affiliated construction permit. An approved grading permit that is affiliated with a construction permit is subject to the expiration limits, based on the associated structure, as set forth in Sections 19.02.020 of the Building and Construction Ordinance.

(iii)

Expiration. Grading authorized by a permit that expires in compliance with this Subsection shall constitute a nuisance and shall be subject to abatement in compliance with Chapter 23.10 unless a new permit is obtained in compliance with California Building Code Section 105.5.1, as modified by Section 19.02.020 of the County Code, and work is completed.

(iv)

Time limits for unpermitted grading. Projects where grading operations are commenced before first securing a proper permit are subject to the following time limits:

(a)

Application. Applications for unpermitted grading shall be valid for a period of 60 days from the date of the application. Failure to issue a permit resulting from an incomplete application submittal during this time period shall cause the application to be expired and referred to the code enforcement official. No extensions are allowed without the express written permission from the code enforcement official or Building Official. Extensions may be authorized as necessary to allow completion of environmental review.

(b)

Completion of grading. Grading permits for projects involving previously unpermitted grading shall be valid for a period of 90 days from the date of issuance. Time extensions for a previously unpermitted grading project may only be authorized by the Building Official for due cause.

(3)

Revocation of permits.

(i)

Failure to comply with any provision of the Grading Ordinance or the permit may cause revocation or suspension of the permit. In either case, the owner or permit holder shall be notified in writing of this action and the reasons for the action.

(ii)

If the operations of the permit holder create an unreasonable occurrence of dust, noise, excessive traffic or other nuisance, the Director may require the permit holder to abate the nuisance and may suspend the permit until abatement measures are taken. Continuance of work without abating the nuisance shall be reason to revoke the permit.

(4)

Notification of completion. The permit holder shall notify the Director when the grading operation is ready for final inspection. Final approval shall not be given until all work, including installation of all drainage facilities, recharge facilities, their protective devices, erosion and sedimentation control measures, and Best Management Practices (BMPs) have been completed in compliance with the final approved plans, and the required reports have been submitted and approved by the Director.

[Added 2013, Ord. 3253]

Editor's note

See editor's note, § 23.05.020.