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HomeMy WebLinkAboutItem 5g. Adoption of O-1702 amending Chapter 12.22 (Winter Evening Hours of Use at Cerro San Luis) Item 5g Department: Administration Cost Center: 1005 For Agenda of: 11/2/2021 Placement: Consent Estimated Time: N/A FROM: Greg Hermann, Deputy City Manager Prepared By: Robert Hill, Sustainability & Natural Resources Official SUBJECT: ADOPTION OF ORDINANCE 1702 (2021 SERIES) AMENDING THE SAN LUIS OBISPO MUNICIPAL CODE TO ADD ADDITIONAL LANGUAGE TO CHAPTER 12.22 TO ALLOW A SPECIAL PROGRAM FOR WINTER EVENING HOURS OF USE AT CERRO SAN LUIS NATURAL RESERVE RECOMMENDATION Adopt Ordinance No. 1702 (2021 Series) entitled, “An Ordinance of the City Council of the City of San Luis Obispo, California, Amending Title 12, Streets Sidewalks and Public Places, Municipal Code Chapter 12.22, Open Space Regulations, to Add Additional Language to 12.22.050(B) to Allow a Special Program for Winter Evening Hours of Use at Cerro San Luis Natural Reserve.” DISCUSSION Background On November 9, 2021, the City Council introduced an ordinance to allow expanded hours of use at the City’s Cerro San Luis Natural Reserve when daylight savings time is not in effect. The City Council also adopted Resolution No. 11287 (2021 Series) approving a Negative Declaration for the project. 1. Summary of Ordinance No. 1702 (2021 Series) This ordinance amends Chapter 12.22 of the City’s Municipal Code to add language allowing for the implementation of a special program for winter evening hours of use at the City-owned open space property, Cerro San Luis Natural Reserve. Hours of use are extended until 8:30 PM, Pacific Standard Time, when daylight savings time is not in effect, in accordance with City Council Resolution No. 11287 (2021 Series) adopted on November 9, 2021. The ordinance incorporates the Project Description for Winter Evening Hours of Use at Cerro San Luis Natural Reserve adopted by Resolution No. 11287 (2021 Series), including the following provisions for Public Information and Education Materials and an Evening Use Permitting System, as follows: a. Public Information and Education Materials. City staff shall utilize additional information and educational materials for the public that is specific to Winter Evening Hours of Use at Cerro San Luis Natural Reserve. Page 61 of 387 Item 5g These informational materials will be available on the City’s website, on the main kiosk at the entrance of the Reserve, and on pamphlets that can be handed out or placed in a rack on the kiosk. b. Evening Use Permitting System. City staff shall implement an internet-based permitting system and visitor use tracking system in order to ensure that evening use (from one hour after sunset until 8:30 PM) during Winter Evening Hours of Use at Cerro San Luis Natural Reserve is kept at or below existing average daily baseline use of 65 individuals. Individuals will be required to have evidence that they have the required permit in their possession. Individuals that are stopped by Ranger personnel and do not possess a permit will be subject to citation under municipal code section 12.22.050(B). Permit applicants will also be pro vided with the information and educational materials during the application process and be required to acknowledge receipt and confirm understanding prior to receiving the permit. Resolution No. 11287 (2021) Series may be subsequently amended by the Council consistent with the purpose of this ordinance and the environmental review document; however, no amendment of the Resolution shall expand the number of permits issued, operational hours, location, or scope of the program. All other provisions of the City’s Open Space Regulations contained in Chapter 12.22 shall remain in effect. Policy Context The City’s policy framework for open space management pertinent to this matter includes the following: 1. General Plan, Conservation and Open Space Element (2006) 2. Conservation Guidelines for Open Space Lands of the City of San Luis Obispo (2002) 3. Cerro San Luis Natural Reserve Conservation Plan (2005) 4. Open Space Regulations, San Luis Obispo Municipal Code, Chapter 12.22. (Ord. 1332 § 1 (part), 1998) Public Engagement Staff conducted public engagement activities in accordance with the approved project plan and the City’s Public Engagement and Noticing Manual throughout the process of preparing, designing, and implementing the Pilot Program. To better understand stakeholder concerns and preferences, informal interviews and communications were conducted in February 2017 with the Environmental Center of San Luis Obispo (ECOSLO), the Santa Lucia Chapter of the Sierra Club, the Land Conservancy of San Luis Obispo County, Central Coast Concerned Mountain Bikers, SLO Trail Runners, as well as various individuals. This topic generated considerable public interest during the course of the prior Pilot Program process as demonstrated by significant levels of written and verbal comments at the City Council meetings. Staff have also been in contact with neighboring property owners. The stakeholder groups identified above were also notified and informed again of the subsequent City Council agenda items. Page 62 of 387 Item 5g CONCURRENCE The Parks and Recreation Department, whose Ranger Service staff would administer the project, concur with the content contained herein. ENVIRONMENTAL REVIEW An Initial Study and Environmental Review was prepared for the project with assistance from the firm Rincon Consultants that concluded “there is no substantial evidence, in light of the whole of the record before the agency, that the project may have a significant effect on the environment” and therefore a Negative Declaration is the appropriate environmental determination in accordance with the California Environmental Quality Act (CEQA Guidelines Section 15070 and 15075). Less than significant impacts were identified in the areas of Aesthetics, Agri culture and Forestry Resources, Air Quality, Biological Resources, Cultural Resources, Geology and Soils, Greenhouse Gas Emissions, Hazards and Hazardous Materials, Land Use and Planning, Noise, Public Services, Recreation, Transportation, Tribal and Cultu ral Resources, Utilities and Service Systems, and Wildfire. Impacts that are individually limited, but could be “cumulatively considerable,” were also found to be less than significant. Prior to the Pilot Program, the average daily use at Cerro San L uis Natural Reserve between the hours of 6:00 PM and 9:00 PM was recorded as 65 individuals, despite the City’s existing Open Space Regulations provision that open space is closed one hour after sunset. Therefore, the existing average baseline use during t he Winter Evening Hours of Use at Cerro San Luis Natural Reserve is 65 individuals. Existing case law supports the establishment of existing, average baseline conditions that are occurring in the environment as a basis for environmental review [see Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270; Communities for a Better Environment v. South Coast Air Quality Management District, et al. (2010) 48 Cal.4th 310 (“Communities for a Better Environment”); Communities for a Better Environment v. South Coast Air Quality Management District (Tesoro Refining and Marketing Company, LLC, Real Party in Interest) (2020) 47 Cal.App.5th 588]. As required by Assembly Bill 52 of 2014 and Senate Bill 18 of 2004, the Tribal Consultation Notification period began on August 2, 2021, prior to completion of the Initial Study. Tribal Consultation Notifications were sent to historically and culturally affiliated tribes on the Native American Heritage Commission list for San Luis Obispo County dated as of August 2, 2021. While there are no tribes that have indicated that they would like to initiate the consultation process, the City did receive a request from Mona Olivas Tucker on behalf of the yak tityu tityu yak tiłhini – Northern Chumash Tribe to include signs that encourage visitors to not disturb wildlife (which has been incorporated into the project description). Page 63 of 387 Item 5g Subsequently, representatives of both the Northern Chumash Tribal Council and the yak tityu tityu yak tiłhini - Northern Chumash Tribe provided written correspondence that they are opposed to the program, although this was done in the context of requesting formal tribal consultation. On September 9, 2021, the Notice of Intent to Adopt a Negative Declaration was fi led with the San Luis Obispo County-Clerk Recorder’s Office, the State Clearing House, and was published in the New Times as a newspaper of general circulation in the area effected by the proposed project. The Notice of Intent sets forth a 30-day public comment period that concluded on October 11, 2021. At the regularly scheduled City Council meeting that took place on October 19, 2021, staff presented this item and the City Council asked questions, called for public comment, deliberated on the item, and concluded with a majority vote to close the public hearing, with specific direction to staff, and continued the item to November 9, 2021 in order to provide staff time to evaluate materials timely submitted at the public hearing and evaluate whether such information warranted reopening of the public hearing or further action. There were several issue areas raised that required the need for additional time for review and evaluation, which merited the continuation of the hearing. Two memoranda were prepared that further evaluate these issues and conclude that no new information was provided that required revisions to the analysis in the Initial Study - Negative Declaration. The Council Agenda Report for November 9, 2021, details these issues and summarizes the City’s responses; the memoranda were included in full as attachments to that report1. FISCAL IMPACT Budgeted: Yes Budget Year: 2021-22 Funding Identified: Yes Fiscal Analysis: Funding Sources Total Budget Available Current Funding Request Remaining Balance Annual Ongoing Cost General Fund State Federal Fees Other: Total N/A N/A N/A N/A 1 November 9, 2021, Council Agenda Report, Item 4a. Page 64 of 387 Item 5g Direct fiscal impacts associated with the Project consist of staffing and minor expenditures and occasional purchasing of field equipment, printing costs for educational materials and signs, and ongoing implementation of the reservation-based permit system. Both staffing costs and direct costs are supported by the operating budgets for Ranger Service and the Natural Resources Program. ALTERNATIVES 1. Modify the ordinance as proposed. The City Council may modify the ordinance before adoption. Depending on the scope of changes proposed, modification of the ordinance may require reintroduction during a subsequent public hearing. 2. Do not adopt the ordinance as proposed. The City Council may choose not to adopt the ordinance. ATTACHMENTS A – Ordinance No. 1702 (2021 Series) Page 65 of 387 Page 66 of 387 O ______ ORDINANCE NO. _____ (2021 SERIES) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA, AMENDING TITLE 12, STREETS SIDEWALKS AND PUBLIC PLACES, MUNICIPAL CODE CHAPTER 12.22, OPEN SPACE REGULATIONS, TO ADD ADDITIONAL LANGUAGE TO 12.22.050(B) TO ALLOW A SPECIAL PROGRAM FOR WINTER EVENING HOURS OF USE AT CERRO SAN LUIS NATURAL RESERVE WHEREAS, the City of San Luis Obispo has a substantial interest in promoting the public health, safety and welfare of its residents, visitors and businesses, as well as the environmental qualities of the City; and WHEREAS, the City of San Luis Obispo owns and manages a network of protected Open Space properties totaling over 4,000 acres, including the 118-acre Cerro San Luis Natural Reserve, and also administers open space easements and conservation easements that permanently protect over 3,500 acres of land within the City’s Greenbelt; and WHEREAS, members of the public provided testimony to the City Council requesting expanded hours of use in the City’s Open Space during the winter; and WHEREAS, in 2015 a wide-ranging survey of open space trends and levels of use was conducted. This study utilized an EcoCounterTM device to track frequency of human use and hours of use at Cerro San Luis Natural Reserve, among several locations, including the timeframe between December 2014 and March 2015 and during evening hours between 6:00 PM and 9:00 PM (City of San Luis Obispo, Open Space Survey . Riggs et. al. 2015). It is through this study that an existing average daily baseline use of 65 individuals was established; and WHEREAS, the City Council reviewed and City staff implemented a Pilot Program for winter open space hours of use at Cerro San Luis Natural Reserve following a Council - directed process during the winter seasons of 2018 -2019 (November 4 to March 10), 2019-2020 (November 3 to March 8), and 2020-2021 (November 1 to March 14) and the pilot program ended on March 14, 2021; and WHEREAS, the Pilot Program included oversight and additional patrol during the published timeframes of the winter evening hours, deployment of an EcoCounterTM device to track frequency of human use and hours of use at Cerro San Luis Natural Reserve, as well as a new reservation permitting system “app” in order to ensure that use during expanded hours remained commensurate with existing average daily baseline use of 65 individuals that was established prior to the Pilot Program; and Page 67 of 387 Ordinance No. _____ (2021 Series) Page 2 O ______ WHEREAS, during the Pilot Program, a total of 3,160 permits were issued during the 2018- 19 season, 2,747 permits were issued during the 2019 -20 season, and 2,702 permits were issued during the 2020-21 season. In total, 7,783 permits were issued, of which 826 were bikers and 6,957 were hikers based on self -designation at the time of permit reservation. During all three seasons, in general, less than the full amount of permits available were reserved during the months of November and January through March. During the holiday season in December, however, permits were typically fully subscribed, and the City’s Ranger Service had to turn away numerous parties interested in accessing the Reserve at the trailhead and instances of non -compliance were tracked. WHEREAS, at the conclusion of the Pilot Program, staff conducted a Study Session and presented a Final Summary Report of the Pilot Program, and the City Council directed staff to prepare an amendment to the City’s Open Space Regulations to allow for ongoing Winter Evening Hours of Use at Cerro San Luis Natural Reserve only. NOW, THEREFORE, BE IT ORDAINED by the Council of the City of San Luis Obispo as follows: SECTION 1. Findings. The Council hereby finds and declares the following: 1. The above recitals are true and correct and are incorporated herein by reference. 2. The ongoing Winter Evening Hours of Use at Cerro San Luis Natural Reserve program has been prepared in accordance with Council direction. 3. An Initial Study and Negative Declaration of environmental impact has been prepared and adopted by Resolution No. 11287 (2021 Series) in accordance with the requirements of the California Environmental Quality Act that concludes “there is no substantial evidence, in light of the whole of the record before the agency, that the project ma y have a significant effect on the environment” and therefore a Negative Declaration is the appropriate environmental determination in accordance with the California Environmental Quality Act (CEQA Guidelines §15070 and §15075). 4. The Project Description for Winter Evening Hours of Use at Cerro San Luis Natural Reserve is incorporated by reference, including continuation of provisions for Public Information and Education Materials and an Evening Use Permitting System, as follows: a. Public Information and Education Materials. City staff shall utilize additional information and educational materials for the public that is specific to Winter Evening Hours of Use at Cerro San Luis Natural Reserve. These materials will re-iterate the City’s rules and regulations in effect, as well as highlight the sensitivity of evening use and potential for wildlife interactions and impacts, and methods to avoid or reduce impacts, including requiring Page 68 of 387 Ordinance No. _____ (2021 Series) Page 3 O ______ visitors to stay on established trails during nighttime use. These informational materials will be available on the City’s website, on the main kiosk at the entrance of the Reserve, and on pamphlets that can be handed out or placed in a rack on the kiosk. b. Evening Use Permitting System. City staff shall implement the internet- based permitting system “app” and the visitor use tracking system using the EcoCounterTM device to track frequency of human use and hours of use in order to ensure that evening use (from one hour after sunset until 8:30 PM) during Winter Evening Hours of Use at Cerro San Luis Nat ural Reserve is kept at or below existing average daily baseline use of 65 individuals. Individuals will be required to have evidence that they have the required permit in their possession during all program months. Individuals that are stopped by Ranger personnel and do not possess a permit when required will be subject to citation under municipal code section 12.22.050(B). Permit applicants will also be provided with the information and educational materials during the application process and be required to acknowledge receipt and confirm understanding prior to receiving the permit. 5. Prior to the Pilot Program, the average daily use at Cerro San Luis Natural Reserve between the hours of 6:00 PM and 9:00 PM was recorded as 65 individuals, despite the City’s existing Open Space Regulations provision that open space is closed one hour after sunset. Therefore, the existing average baseline use that will be adhered to during the ongoing Winter Evening Hours of Use at Cerro San Luis Natural Reserve program is 65 individuals. Existing case law supports the establishment of existing, average baseline conditions that are occurring in the environment as a basis for environmental review [see Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270; Communities for a Better Environment v. South Coast Air Quality Management District, et al. (2010) 48 Cal.4th 310 (“Communities for a Better Environment); Communities for a Better Environment v. South Coast Air Quality Management District (Tesoro Refining and Marketing Company, LLC, Real Party in Interest) (2020) 47 Cal.App.5th 588]. SECTION 2. Title 12, Streets, Sidewalks, and Public Places, Municipal Code Chapter 12.22, Open Space Regulations, is amended as follows, as shown in underlined text: 12.22.050(B): Presence in Open Space Lands Restricted to Certain Hours – No Overnight Usage. Open space lands where public access is permitted shall be open to the public from dawn to dusk. It shall be unlawful to enter or remain within such lands between one hour after sunset and one hour before sunrise of the following day without approval from the director. Notwithstanding the foregoing, the City may implement a special program at Cerro San Luis Natural Reserve only that allows for extended hours of use until 8:30 PM, Pacific Standard Time, when daylight savings time is not in effect, in accordance with City Council Resolution No. 11287 (2021 Series) adopted on November 19, 2021, or as such Resolution may be subsequently amended by the Council consistent with the purpose of this Page 69 of 387 Ordinance No. _____ (2021 Series) Page 4 O ______ ordinance and the environmental review document supporting this provision , provided that no amendment of such Resolution shall expand the number of permits issued, operational hours, location, or scope of the program. All other provisions of the Open Space Regulations contained in this Chapter 12.22 shall remain in effect. SECTION 3. Ordinance Number 1332 § 1 (part) (1998 Series) is hereby amended and superseded to the extent inconsistent herewith. SECTION 4. A summary of this ordinance, together with the names of Council members voting for and against, shall be published at least five (5) days prior to its final passage, in The New Times, a newspaper published and circulated in this City. This ordinance shall go into effect at the expiration of thirty (30) days after its final passage. INTRODUCED on the 9th day of November 2021, AND FINALLY ADOPTED by the Council of the City of San Luis Obispo on the ____ day of ____, 2021, on the following vote: AYES: NOES: ABSENT: ___________________________ Mayor Erica A. Stewart ATTEST: _______________________ Teresa Purrington City Clerk APPROVED AS TO FORM: _______________________ J. Christine Dietrick City Attorney IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Luis Obispo, California, on ______________________. ___________________________ Teresa Purrington, City Clerk Page 70 of 387