Santa Barbara County – Grading Code Where the Dozer Meets the Dirt Poorly Defined and Unevenly Enforced

Conclusions 16

• CL1
  The Santa Barbara County Planning and Development Department is inconsistent in its enforcement of grading violations.
• CL2
  There is no present requirement for the Santa Barbara County Planning and Development Department inspectors to investigate questionable grading activities they observe unless a complaint is filed by a member of the community.
• CL3
  The Grading Code, Chapter 14, (Sections 14-6, 14-8, 14-9.2) does not state how often a property owner can move less than 50 cubic yards of earth, which is exempt from the permitting process; allowing a property owner to move massive amounts of earth in multiple 49.9 cubic yard increments without any timeframe limitation. 2015-16 Santa Barbara County Grand Jury 6 SANTA BARBARA COUNTY – GRADING CODE
• CL4
  The Grading Code, Chapter 14, (Sections 14-6, 14-8, 14-9.2) does not state what degree of compaction is used in defining what constitutes 50 cubic yards of earth.
• CL5
  Santa Barbara County Land Use Development Code Chapter 35 section 35.84.040 allows multiple permit revisions, which can incrementally and substantially expand the scope of a permit without notice or review by adjacent property owners.
• CL6
  Differences between the Santa Barbara County Grading Code and local Community Plans regarding definition of slope cause inconsistent grading and enforcement.
• CL7
  Because the Code is vague in its definition of time frame, grading inspectors for North and South County differ in their interpretation of how to enforce the Santa Barbara County Grading Code, Chapter 14, when processing Land Use Development Permit Applications that include grading of 50 cubic yards or more of earth.
• CL8
  The Director may approve a minor change to an approved or issued Coastal Development Permit or Land Use Permit, or issued Zoning Clearance, subject to all of the following: a. The Director determines that the minor change substantially conforms to the approved plans and the originally approved or issued permit; b. There is no change in the use or scope of the development; c. The minor change does not result in a change to the Director’s conclusions regarding the project’s specific conformance to development standards and findings; d. The Coastal Development Permit, Land Use Permit or Zoning Clearance has not expired; and e. The minor change is exempt from Design Review in compliance with Section 35.82.070 (Design Review).
• CL9
  Where a minor change of an approved or issued Coastal Development Permit or Land Use Permit, or issued Zoning Clearance is approved, the permit or clearance shall have the same effective and expiration dates as the original permit or clearance and no additional public notice shall be required.
• CL10
  Where it cannot be determined that the minor change materially conforms to an approved or issued Coastal Development Permit or Land Use Permit or issued Zoning Clearance in compliance with the above criteria, a new Coastal Development Permit, Land Use Permit, or Zoning Clearance shall be required.
• CL11
  The determination to allow a minor change to an approved or issued Coastal Development Permit or Land Use Permit, or issued Zoning Clearance is final and not subject to appeal, except that a decision on a request to revise a Coastal Development Permit which allows development 2015-16 Santa Barbara County Grand Jury 13 SANTA BARBARA COUNTY – GRADING CODE defined as appealable development may be appealed in compliance with Chapter 35.102 (Appeals). Note: Also refer to Appendix E (Guidelines for Minor Changes to Coastal Development and Land Use Permits). SANTA BARBARA COUNTY LAND USE AND DEVELOPMENT CODE CHAPTER 35, APPENDIX E GUIDELINES FOR MINOR CHANGES TO COASTAL DEVELOPMENT PERMITS AND LAND USE PERMITS The following guidelines shall be used by the Department to determine if a minor change to an approved or issued Coastal Development Permit or Land Use Permit can be allowed without requiring a new permit.
• CL12
  The change would not be counter to design direction provided by the applicable Board of Architectural Review.
• CL13
  If the site is one acre or less, the footprint of the structure may not be moved more than five percent closer to the property line. If the site is more than one acre, the footprint of the structure may not be moved more than 10 percent closer to the property line.
• CL14
  The change does not result in the removal of a specimen trees.
• CL15
  The change does not affect easements for trails, public access, or open space.
• CL16
  The change does not increase the required number of parking spaces. If the proposed “minor” change does not conform to the guidelines identified above, the applicant should apply for a new planning permit. 2015-16 Santa Barbara County Grand Jury 14

Observations 1

• OB1
  In order to fully understand the potential negative impact of the Code’s ambiguities and the inconsistent practices of the County P&D, it is necessary to understand the entire process of obtaining a construction and/or grading permit. It is also necessary to understand the intent of the Board of Supervisors (BOS) when enacting the Code. The Jury reviewed the following items:  Mandated Permitting Process Considerations  Ambiguities Related to “Slope”  Work Which Exceeds the Permitted Scope  Observed Grading Where No Permit Exists Mandated Permitting Process Considerations A. Individual Community Plans Community Plans are developed by committees within local jurisdictions in the unincorporated areas of Santa Barbara County. These plans are approved by the BOS. There are eight community plans representing various jurisdictions, all are somewhat different. All new construction taking place within a Community Plan’s jurisdiction must adhere to the specific policies. When an applicant first applies for a Land Use Permit (LUP), the application will be assigned to a land planner who will review the application and ensure that all applicable ordinances are satisfied. The land planner must be familiar with the policies of all community plans affecting their area. These include differing Hillside and Watershed Protection Policies in each of the eight Community Area Plans and One Specific Plan (Mission Canyon). Some examples are contained in Table 1. 2015-16 Santa Barbara County Grand Jury 2 SANTA BARBARA COUNTY – GRADING CODE Table 1. Hillside and Watershed Protection Policies in Selected Community Plans Goleta Valley “Ground disturbances and development on slopes of 20% or greater Community Plan should be avoided” Eastern Goleta Valley “Ground disturbances and development on slopes of 20% or greater Community Plan should be avoided” “No development shall be allowed on slopes of 30% or greater” Montecito Community “Development on Portions of the site that exceed 30% slopes which are Plan located outside constrain areas should be limited to single family lots of five or more acres in size” Santa Ynez “Hillside grading over 30% on residential and commercial land should Community Plan be severely restricted” B. Santa Barbara County Fire Department ‘Driveway’ Standards In addition to the requirements set forth in A. above, the applicant must also comply with the Santa Barbara County Fire Department Driveway Standards for new construction which states:  “Gradients up to 20% may be allowed with extenuating circumstances. Any gradient approved above 15% in slope must consist of a concrete structural section designed by a civil engineer. At no time shall any Fire Department access exceed 20%”. C. California Environmental Quality Act (CEQA) The applicant must also comply with CEQA. There are many exceptions and exemptions, but each application is reviewed for overall impact. Among other things, some applications may require an Environmental Impact Report (EIR), or a Negative Declaration with Mitigation by the property owner. The process is summarized on this link: http://longrange.sbcountyplanning.org/about_landuse.php D. Notice and Appeals Per the Land Use Development Code (LUDC), all permit applications require that notice be given to all neighboring parcels and property owners. They have a right to:  review proposed development plans, and if they object then;  appeal to the Planning Commission (PC) followed by;  appeal to the Board of Supervisors Once the P&D application process is completed, the applicant must then apply for a building permit from the Santa Barbara County Department of Building and Safety (B&S). At the B&S, the grading portion of the plan is then forwarded to either the North or South County Grading Inspector. Guided by the Code, which states “The Board of Supervisors expressly finds that the regulations, conditions and provisions of this chapter constitute minimum standards and procedures necessary to protect and preserve life, limb, health, property and public welfare….” the grading inspector reviews the building permit application. After the inspector verifies that the project meets all Code criteria, the B&S issues a grading permit. The fees for this permit are proportional to the volume of earth moved. The permit is usually valid for one year but extensions may be granted. 2015-16 Santa Barbara County Grand Jury 3 SANTA BARBARA COUNTY – GRADING CODE Ambiguities Related to ‘Slope’ The Code is confusing when defining the term “% slope”. This terminology is used in several ordinances and regulations. The % slope is the change in altitude per foot of horizontal distance. As an example, a change in altitude of 30 feet over 100 feet of horizontal distance would be a 30% slope or 16.7 degrees. The relationship between % slope and slope angle is summarized on Table 2. Table 2. Relationship Between % Slope and Slope Angle Vertical Change in Feet % Slope Slope Angle in degrees per 100 Feet of Horizontal Distance 100 ft. 100 % 45.0° 70 ft. 70 % 35.0° 60 ft. 60 % 31.0° 50 ft. 50 % 26.5° 40 ft. 40 % 21.8° 30 ft. 30 % 16.7° 20 ft. 20 % 11.3° 10 ft. 10 % 5.7° Work Which Exceeds the Permitted Scope If the volume or scope of a permit is exceeded, the Code allows, at the discretion of the inspector, a stop work notice which can lead to violations and fines. Alternatively, the inspector may allow the landowner to submit a document which describes only work done in excess of the original permit. This document is commonly known as an “as built”. If it was a grading issue, the inspector might require a current survey depicting several points of elevation, which allows for wide variations in discretion. At that point the permit would be finalized or, at the discretion of the inspector, the landowner may be required to submit a revision to the grading plan of the original permit. Any revision requires re- approval by P&D but no notice is given to adjacent landowners. If a revision is deemed appropriate by the inspector, a new set of plans is required showing the particulars of the revision in accordance with the LUDC Post Approval Procedures 35.84.040. (See Appendix B). The variations within the LUDC have substantially different effects. For the landowner, the cost in lost time and financial impact varies. For the community and surrounding landowners, they lose the opportunity to review, dispute, or appeal the final result. The LUDC revision protocol requires the P&D Director to determine whether a change is minor and it conforms substantially to the approved plans and the original permit. In reality, a subordinate planner in P&D, makes the decision relying partially on the grading inspector’s input. Once the decision is made to allow minor changes, they become final and not subject to appeal. These changes do not require additional notice to neighbors and generally do not require additional fees. According to interviewees, numerous revisions can be, or have been, issued for the same original permit. This effectively prolongs the permit life and is in direct violation of Code Chapter 35 that states, “2. Where a minor change of an approved or issued Coastal Development Permit or Land Use Permit, or 2015-16 Santa Barbara County Grand Jury 4 SANTA BARBARA COUNTY – GRADING CODE issued Zoning Clearance is approved, the permit or clearance shall have the same effective and expiration dates as the original permit or clearance and no additional public notice shall be required.” Numerous revisions can significantly and incrementally expand the scope of the project, one minor revision at a time. A review of these cumulative changes would possibly trigger a much higher level of scrutiny or even denial of the original permit. Additionally, an “as-built” or revision, put into effect after the fact, can bypass the proper required inspection for minimum safety standards for work performed on 20% and greater slopes. Multiple revisions, issued either before or after the work was completed, can effectively extend the life of the original permit for years. These same multiple revisions, each one minor, can add up to a major modification of the impact on the local area 50 cubic yards at a time. Those multiple revisions can also directly impact the CEQA, coastal zones, environmentally sensitive habitats and total review of the project. It also bypasses the neighbors’ right to review the changes that could cumulatively impact them. The ambiguities in the Code and the subjective enforcement practices allow a range of outcomes. As an example, one landowner could move 49 cubic yards of earth every few weeks and be exempt from any permit requirements, while a neighbor could be required to submit a revision request, or receive a violation for the same activity. A landowner who exceeds the scope of the permit could be allowed an “as-built”, or be required to submit a revision without being fully reviewed by P&D or neighbors. These procedures could bypass the careful consideration that County staff use in analyzing local ordinances and regulations during the LUP process. For example, one Community Plan within the county prohibits any grading on slopes greater than 30%, while the Grading Code Sec. 14-25 – Excavations, states: “(a) No excavation shall be made with a cut face steeper in slope than one and one-half units horizontal to one unit vertical….” This allows the creation of slopes of 33.7° or 67%. Differences between the Community Plans and the County Code can be problematic. The inconsistencies make it very difficult to understand which Code takes precedence. Historically, appeals have usually been resolved in favor of the local Community Plan. The Jury found that grading inspectors from county P&D who are responsible for North and South County inspections vary in their interpretation as it applied to processing LUDC applications that included grading 50 cubic yards of earth. Observed Grading Where No Permit Exists Currently, no policy requires inspectors to investigate improper activities involving grading observed by an inspector when no complaint has been filed. The only method of initiating an investigation is by a complaint initiated by a member of the community.

Agency Responses 1

Government agencies' official responses to this report's findings and recommendations. Click on a response to see the structured breakdown.