Chapter 18.205 GRADING, EROSION AND SEDIMENT CONTROL

This chapter is enacted under Section 11 of Article XI of the Constitution of California, and the general laws of the state of California. Its provisions supplement the subdivision title and the remainder of the planning and zoning titles of the city (Titles 17 and 18). It shall be construed as an integrated part of the zoning ordinance, subdivision title, and the patterns of land development control established thereby. Primary purposes of this chapter are to protect life, limb and property; to promote and enhance the general public welfare and a superior community environment; and insofar as it is economically feasible, to ensure the maximum possible preservation of the natural scenic character of major portions of the city by establishing minimum standards and requirements relating to land grading, excavations and fills and by establishing procedures by which these standards and requirements may be enforced.

This chapter shall be administered with the foregoing purposes in mind and with a view toward:

(a) Ensuring future development of lands occurs with a minimum of risk, particularly in the hilly areas of the city, and is performed in the manner most compatible with surrounding areas so as to have the least adverse effect upon other persons, lands, or upon the general public;

(b) Ensuring that soil will not be stripped or removed from lands in the more scenic parts of the city, leaving the same barren, unsightly, unproductive, and subject to erosion and the hazards of subsidence and faulty drainage;

(c) Protecting water quality by avoiding pollution of watercourses with nutrients, sediments or other earthen materials generated on or caused by surface runoff on or across private property;

(d) Encouraging the planning, design and development of building sites in such fashion as to provide the maximum in safety and human enjoyment, while adapting development to and taking advantage of the best use of the natural terrain; and

(e) Encouraging and directing special attention toward retaining natural planting and a maximum number of existing trees, insofar as practical. (Ord. 9-2014 § 29, 3-4-14.)

18.205.020 Definitions.

(a) For the purposes of this chapter, unless it is plainly evident from the context that a different meaning is intended, certain terms used herein are defined as follows:

“Agricultural grading” shall mean cultivation of the soil for producing crops and raising livestock, including the discing or furrowing of soil.

“Best management practice (BMP)” shall mean a technique or series of techniques which, when utilized in a designated manner, is proven to be effective in controlling construction-related runoff erosion and sedimentation.

“City engineer” shall mean the city engineer of the city of Fremont.

“Clearing” shall mean any human activity involving removal of one or more of the following: natural vegetation, including trees, stumps, shrubs and grasses; topsoil or top six inches of soil, whichever is shallower.

“Drainageway” shall mean a natural or manmade channel which collects and intermittently or continuously conveys storm water runoff.

“Enforcement officer” shall mean the city manager, the officer named in Section 1.15.050(b)(8)(B) (power of arrest), Chapter 1.15 (Penalty Provisions) and/or any other persons designated by the city manager to administer and enforce the provisions of this chapter.

“Engineering geologist” shall mean a registered geologist certified as an engineering geologist by the state of California.

“Engineering geology” shall mean the application of geological data and principles to engineering problems dealing with naturally occurring rock and soil to assure that geological factors are recognized and adequately interpreted in engineering practice.

“Erosion” shall mean the wearing away and transporting of earth material as a result of the movement of wind or water.

“Excavation” shall mean any act by which earth, sand, gravel, rock or any similar material is cut into, dug, quarried, uncovered, removed, displaced, relocated or bulldozed; and shall include the conditions resulting therefrom.

“Fill” shall mean any human act by which earth, sand, gravel, rock or any other similar material is deposited, placed, pushed, pulled or transported; and shall include the conditions resulting therefrom.

“Final erosion and sediment control plan (final plan)” shall mean a set of best management practices or equivalent measures designed to control surface runoff and erosion, and to retain sediment on a particular site after all other planned final structures and permanent improvements have been erected or installed.

“Finished grade” shall mean the final grade or elevation of a site or portion thereof after grading.

“Grading” shall mean excavation, fill or any combination thereof; and shall include the conditions resulting from any excavation or fill.

“Interim erosion and sediment control plan (interim plan)” shall mean a set of best management practices or equivalent measures designed to control surface runoff and erosion, and to retain sediment on a particular site(s) during the period in which preconstruction and construction-related land disturbances, fills and soil storage occur, but before final improvements are completed.

“Licensed landscape architect” shall mean a person licensed to practice landscape architecture by the state of California.

“Natural slope” shall mean the predominant slope or slopes of land in their natural condition, disregarding minor surface humps or hollows.

“Natural terrain” shall mean the natural contour of a site before manmade development.

“Permittee” shall mean any person or group of persons acquiring a permit for grading.

“Quarry” shall mean any site or parcel of land used for obtaining, extracting or producing earth, rock, crushed stone, building stone, slate, limestone or similar material products for any commercial purpose.

“Rainy season” shall mean the period of the year during which there is a substantial risk of rainfall. For the purpose of this chapter, the rainy season is defined as from October 15th to April 15th, inclusive.

“Registered civil engineer” shall mean a person licensed by the state of California to practice engineering.

“Sediment” shall mean earth material deposited by water or wind.

“Site” shall mean a lot, parcel of land or contiguous combination thereof where grading is being or will be performed or permitted.

“Slope” shall mean an inclined ground surface, the inclination of which is expressed as a ratio of horizontal distance to vertical distance.

“Slope control area” shall mean an area established to achieve the continuous stabilization of slopes, which otherwise might seriously affect properties. The area is to be defined on plans and specifications and in agreements running with the land. The continuous stabilization is to be achieved by slope control drainageways, slope control planting and other necessary initial work, and by continuing land use limitations and maintenance provisions designed to preserve and maintain the slope control measures taken for the benefit of the properties.

“Slope control easement” shall mean a legally established easement granting to the land developer or builder, a local public authority, or a property owners’ association, the right of access to and over a slope control area for slope control purposes.

“Soil” shall mean earth material of whatever origin that overlies bedrock.

“Soil engineer” shall mean a registered civil engineer licensed by the state of California who is experienced and knowledgeable in the practice of soils engineering.

“Soils engineering” shall mean the application of the principles of soil mechanics in the investigation, evaluation and design of civil works involving the use of earth materials and the inspection and testing of the construction thereof.

“Storm runoff contributing slope” shall mean any natural or manufactured slope from which storm waters run off in such a manner that water may drain against a building or structure unless otherwise intercepted.

“Watercourse” shall mean any channel, either flowing continuously or intermittently, in a consistent, definite direction and location; or one used for the holding, delay or storage of waters that functions at any time to convey or store storm water runoff.

“Wetlands” shall mean lands conforming to the definition of wetlands as prescribed by the federal government and so designated by the Corps of Engineers.

(b) Certain other terms used in this chapter are specifically defined in Title 17 and the remainder of Title 18; and unless it is plainly evident from the context of any provisions of this chapter that a different meaning is intended, the definitions of terms contained in such Titles 17 and 18 are incorporated herein by reference. (Ord. 9-2014 § 29, 3-4-14.)

18.205.030 Permits – When required – Exceptions.

(a) No person shall commence or perform any of the following grading or clearing activities without first obtaining a permit from the city engineer authorizing those activities.

A permit shall be required for:

(1) Grading involving 100 cubic yards or more within a 12-month period;

(2) Grading on land having a natural slope of four percent or less when the height of any portion of the grading site is increased or decreased more than three feet after completion of grading;

(3) Grading on land with a natural slope of more than four percent that increases or decreases any portion of a site by a height of more than two feet at any point upon completion of grading;

(4) Grading resulting in a slope in excess of five percent in the rear yard of any site being developed or intended for development for residential purposes; provided, however, that this subsection shall not be applicable where: (A) a slope in excess of five percent is located wholly within 10 feet of a property line, and (B) the difference in elevation between the top and the bottom or toe of the slope is located wholly upon that side of the property line which is upon the lot or parcel of land at the lower general elevation;

(5) Grading or clearing resulting in any blockage or alteration of a watercourse or drainageway;

(6) Repair of earth material slides involving 100 or more cubic yards of earth material;

(7) Grading on land with the original grade below 10 feet elevation (mean sea level datum);

(8) Clearing of an area one acre in size or larger (excluding agricultural grading);

(9) Clearing of an area greater than10,000 square feet with an average slope equal to or exceeding 10 percent (excluding agricultural grading);

(10) Grading or clearing within 100 feet by horizontal measurement from the top of the bank of a watercourse, the mean high water mark (line of vegetation) of a body of water, or within the wetlands associated with a watercourse or water body.

(b) The following shall be excepted from the requirement to obtain a permit:

(1) Grading or clearing under a permit issued under Chapter 12.05, relating to encroachments in public streets;

(2) Street improvement work over which the city of Fremont exercises inspection authority or in connection with duly approved subdivision plans, requirements imposed under Chapter 12.10, local improvement district programs, or improvement contracts awarded by the city;

(3) Grading or clearing for a subdivision having approved final map and approved improvement plans; or for a single lot commercial or industrial property development associated with a building permit for construction of a building;

(4) Work by the state division of highways or other agency of the state not included within the definition of “local agency” set forth in Cal. Gov’t Code § 53090 as amended;

(5) Work by public utilities and local public agencies in areas where the slope of the natural terrain is less than five percent;

(6) Grading or clearing that the city engineer finds will not conflict with the purposes of this chapter and that meets the following requirements:

(A) Is upon land having a natural slope no greater than four percent; and

(B) Has an original and will have a finished grade above 10 feet elevation (mean sea level datum); and

(C) Will result in a difference between original and finished grade of three feet or less where grading will occur; and one of the following applies, subsection (b)(6)(D) or (E) of this section;

(D) Will result in clearing of less than one acre on land having an average slope of less than 10 percent; or

(E) Clearing of an area equal to or less than 10,000 square feet where the average slope is equal to or exceeds 10 percent;

(7) An excavation below finished grade for basements and footings of a building, for a swimming pool, or for any other underground structure authorized by a valid building permit where the cost of excavation is included in the building permit valuation;

(8) Interment operations of a cemetery that do not include grading for cemetery development;

(9) Agricultural grading not exceeding one foot in vertical height; and agricultural grading exceeding one foot in vertical height when the city engineer finds that it will not conflict with the purposes of this chapter;

(10) Quarry operations complying with other applicable requirements of this code;

(11) Any rubbish disposal or reclamation site for which a conditional use permit is in effect;

(12) Exploratory excavation conducted under the direction of a soils engineer or engineering geologist required by the city as a condition of a permit approval; provided, that such exploratory excavation is conducted in compliance with any conditions imposed by the city;

(13) Salt harvesting;

(14) Clearing for weed abatement purposes required or accomplished at the direction of the city; or

(15) Grading or clearing activities that are directed by a public official to eliminate an imminent danger to life, health, property or provisions of essential public services.

(c) A separate permit shall be required for each separate site. One permit may cover both grading and clearing on the same site.

(d) The exceptions enumerated in subsection (b) of this section shall not affect the applicability of this chapter to, nor the requirement of a grading permit for, any fill made with the material from an excavation which was excepted as aforesaid. (Ord. 9-2014 § 29, 3-4-14.)

18.205.040 Permits – Application, generally.

To obtain a permit required by this chapter, the applicant first shall file an application therefor in writing, in duplicate, upon forms furnished by the city engineer. The application shall be signed by the owner of the property where the work is to be performed, or by a duly authorized agent. An agent’s authority must be shown in writing.

Every such application shall contain the following information:

(a) Name and address of the applicant, and name and address of the owner of the site, if different from the applicant;

(b) A vicinity sketch or other data adequately indicating the site location;

(d) A statement in cubic yards of the estimated quantity of material proposed to be excavated or the amount of fill;

(e) The name, address and phone number of the person to have effective control of the work;

(f) The estimated dates for starting and completing the work to be done;

(g) The names, addresses and phone numbers of all persons who will receive excavated materials;

(h) If fill material is to be obtained from elsewhere than the site, a statement as to the source and type thereof if such information is known at the time of application; if not known at that time, the information shall be submitted when known, and in any event not later than commencement of hauling operations of the imported fill material;

(i) The route or routes proposed to be followed within the city of Fremont in coming to and going from the site by equipment used to haul excavation or fill material;

(j) Such further applicable information, including a legal description of the site, as the city engineer may require in order to carry out the purposes of this chapter. (Ord. 9-2014 § 29, 3-4-14.)

18.205.050 Permit applications – Plans and specifications.

The application required by Section 18.205.040 shall be in duplicate accompanied by scale plans, drawings and specifications. A registered civil engineer shall prepare and sign those materials, which shall show the following:

(a) Property lines of the property on which the work is to be performed;

(b) Location of any buildings or structures on the property where the work is to be performed, and the location of any buildings or structures on land of adjacent property owners within 15 feet of the property on which the work is to be performed;

(c) An accurate contour map showing the topography of the existing ground and existing plant material, including trees, areas of shrubs, and ground cover. Contours shall be shown at one-foot intervals where natural ground slopes are less than five percent, and at five-foot intervals where natural ground slopes exceed five percent. Contour lines shall extend to the curbline of any public street improved to city standards and to the center line of any other street;

(d) Elevations, dimensions, location, extent and slopes of all proposed grading shown by contour and other means, and a statement of the estimated quantity of excavation and fill involved;

(e) Detailed plans of all drainage devices, walls, cribbing, dams or other protective devices to be constructed in connection with or as part of the proposed work, together with a map showing the drainage areas and the computed runoff of the area served by any drainage devices;

(f) Landscaping and erosion control plans and specifications of soil erosion control areas; any required interim or final erosion control plans shall be prepared in accordance with measures and techniques approved by the city engineer and in accordance with city council adopted public works guidelines for staff;

(g) Location of all existing public and private utility easements;

(h) Any additional plans, drawings or calculations required by the city engineer in order to carry out the purposes of this chapter; this requirement includes but is not limited to showing structures on adjacent property beyond 15 feet of the property on which the work is to be performed; and

(i) When the city engineer requires a geological or soils report, the signature(s) of the soil engineer and engineering geologist responsible for the report(s) shall be included on the plans; the signature and plans shall specify that they have been reviewed for conformance with the intent of the report. (Ord. 9-2014 § 29, 3-4-14; Ord. 05-2018 § 16, 3-20-18.)

18.205.060 Additional engineering reports may be required.

Before issuing a grading permit, the city engineer may require submission of any of the following in duplicate in order to protect public health and safety:

(a) A written report based upon an engineering geological and soils investigation, and on the most recent grading plan. This report shall include an adequate description of the geology and soils of the site, and conclusive recommendations regarding the effect of the geologic and soil conditions on the proposed development. Any such report shall be accompanied by laboratory reports, including all test reports, covering both of the following:

(1) Laboratory tests of land to be covered with fill to determine engineering characteristics of the soil, including its expansive qualities and the bearing value of the land, with a statement whether the land can support the proposed fill and structures; and

(2) Laboratory soil analysis of the material proposed for the fill, including its expansive quality and a statement as to its suitability.

Any such report shall be subject to peer review, and supplemental reports, reviews and data may be required as deemed necessary. Recommendations included in the report and approved by the city engineer shall be incorporated into a grading plan as permit conditions.

(b) A written report submitted upon completion of the project discussing compaction, indicating the location and depth of compaction tests. The data in the report should be adequate to show the true cross-section of the area to be filled, materials used, moisture condition and relative compaction; such data shall be obtained from tests prepared and submitted by an approved soils testing agency or registered civil engineer. Any such written report shall be accompanied by laboratory reports, including all test reports, and shall include a statement by the person responsible for preparation that the land can support the proposed fill and structures.

Supplemental reports and data may be required by the city engineer. Recommendations included in the report and approved by the city engineer shall be incorporated into the grading plans and specifications as permit conditions.

(c) Complete detailed specifications prepared by a registered civil engineer or soils engineer for clearing, grubbing and filling with the material specified in subsection (b) of this section. Special emphasis therein shall be placed on the depth of fill layers, compaction of fill material at optimum of moisture, frequency of field density tests, and maximum density to be obtained in the field, all of which shall be related to laboratory density tests.

(d) A statement regarding specified fills by a registered civil engineer or soils engineer giving a professional opinion regarding:

(1) Shrinkage or settlement of a fill constructed in compliance with the proposed specification for constructing the controlled fill;

(2) The safe load-bearing capacity for each controlled fill; and

(3) The maximum slope ratios necessary for slope stability for such fills with the assumption of proper planting on the slope to assure freedom from erosion.

(e) An as-built drawing may be required indicating the soil, geology, surface and subsurface drains, topography, or other related information. The drawing must be signed by the civil engineer, soils engineer and engineering geologist responsible for its preparation. (Ord. 9-2014 § 29, 3-4-14; Ord. 05-2018 § 17, 3-20-18.)

18.205.070 Fees.

(a) Plan Checking Fee. Before accepting a set of plans and specifications for checking, the city engineer shall collect a plan checking fee. The amount of the plan checking fee for grading plans shall be set by city council resolution.

(b) Grading Inspection Fee. Before issuing any grading permit, there shall be paid to the city an inspection fee (independent of the plan checking fee) as set by city council resolution.

(c) Refunds. The plan checking fee required by this section shall be subject to refund in whole or in part when an application is withdrawn prior to completion of the plan checking process. The inspection fee is subject to refund if the grading permit is surrendered prior to any work taking place thereunder. The terms and amounts of any such refunds shall be ordered by the city council, whose action in this regard shall be final. (Ord. 9-2014 § 29, 3-4-14.)

18.205.080 Permit applications – Referral to other public agencies and public utilities.

Upon receipt, the city engineer may refer a copy of any permit application to any other public agency or public utility whose facilities may be affected by the proposed grading. The city engineer or the reviewing agency, in acting upon the permit application, shall consider any report or recommendation received from such other public agency or public utility. (Ord. 9-2014 § 29, 3-4-14; Ord. 05-2018 § 18, 3-20-18.)

18.205.090 Reserved.

Repealed by Ord. 23-2018. (Ord. 9-2014 § 29, 3-4-14; Ord. 05-2018 § 19, 3-20-18.)

18.205.100 Findings.

The city engineer shall make the following findings in order to approve or conditionally approve a permit under this chapter; however, no action may be taken until the applicant has been given reasonable notice and an opportunity to make a presentation of the application’s merits to the city engineer:

(a) The proposed grading or clearing activities described in the application will not result in an appearance, due to the grading, excavation or fill, substantially and negatively different from the existing natural appearance;

(b) The proposed grading or clearing activities described in the application will not result in geologic or topographic instability on or near the site;

(c) The proposed grading or clearing activities described in the application will not endanger public sewers, storm drains, watercourses, streets, street improvements or other property; will not interfere with existing drainage courses; and will not result in debris being deposited on any public way;

(d) Conformity, where applicable, to special concerns relating to the adopted seismic safety element and concerns shown on maps issued by the U.S. Geological Survey and the California Division of Mines and Geology; supplemental data and substantiation of conclusions may be required by the city engineer upon city review of the reports;

(e) The proposed grading or clearing activities described in the application will not affect the health, safety or welfare of adjacent residents or landowners, nor the residents of Fremont; and

(f) When the proposed grading or clearing activities are associated with a previously approved development project, the proposed grading or clearing activities substantially conform to the preliminary grading plan for the approved development project.

To make the findings, the city engineer may attach conditions to its application approval. (Ord. 9-2014 § 29, 3-4-14; Ord. 05-2018 § 20, 3-20-18; Ord. 23-2018 § 40, 10-2-18.)

18.205.110 Landscape plan – When required – Content.

(a) The city engineer may require the applicant to submit landscape plans and specifications for the site, information relating to landscaping of adjacent areas, and, when necessary, may require that a licensed landscape architect prepare any such landscape plans. The reviewing agency may prescribe the scale for such plans. Further, it may require any of the following information to be submitted as part of those plans:

(1) Proposed grading contours at specified intervals in solid line; existing contours indicated with broken line; all grades related to established data or bench mark;

(2) Yard drainage (and roof drainage, if applicable), together with controlling grades and dimensions of all tile lines, culverts, catch basins, drain inlets, turf and masonry gutters, and all curbs, drainage disposal, and all existing facilities to be used;

(3) Outlines of buildings and other improvements within the project, together with physical features of the site, for the purpose of establishing the location and relationship of planting and related construction;

(4) A list of plant material giving standardized botanical plant names and key numbers for each variety, for reference to the plan, and a description common to the trade;

(5) A specification describing the methods for planting the areas to be landscaped including (A) soil preparation, fertilization, plant material and methods of planting; and (B) initial maintenance of the plant material and slopes until a specified percentage of plant covering is established uniformly on the cut and fill slopes;

(6) A statement by the author of the landscape plans giving his/her opinion regarding: (A) the time after planting in which the specified planting with the specified initial maintenance normally will produce the specified percentage of plant covering in the slope control areas; and (B) the time in which this specific plant coverage, without any special additional maintenance, normally will produce coverage of permanent planting which will control erosion;

(7) Details of all items and features pertaining to site preservation and improvement such as retaining walls, tree wells and details not shown on other plans accompanying the application;

(8) Any other details, including further plans, the reviewing agency may require to carry out the purposes of this chapter.

(b) Any such landscape plan required under this section shall incorporate the results and conclusions arrived at from land planning studies conducted by any professionals who participated in preparation of any landscape plan prepared pursuant to this section. Those studies shall be made to achieve the purposes of this chapter as set forth in Section 18.205.010, and as specified for the reviewing agency in Section 18.205.100.

(c) If the city engineer deems it necessary, any soil or civil engineer may be required to review and sign the landscape plans on which they have prepared grading or soils reports. (Ord. 9-2014 § 29, 3-4-14; Ord. 05-2018 § 21, 3-20-18.)

18.205.120 Permits – Issuance or denial.

Upon completion of review of the application for a permit required by this chapter, and upon receipt of the report from the reviewing agency, the city engineer shall issue the permit unless:

(a) The reviewing agency has reported disapproval of the application;

(b) In the judgment of the city engineer, the proposed work would directly or indirectly create a hazard to human life; endanger adjoining property or property at a higher or lower level; endanger any public sewer, storm drain, watercourse, street, street improvement, or any other public property; would result in debris being deposited on any public way; or would interfere with any existing drainage course; or

(c) In the judgment of the city engineer, the land area for which grading is proposed is subject to geological instability or flood hazard to the extent that no reasonable amount of corrective work could eliminate or reduce sufficiently the hazard to property or human life. (Ord. 9-2014 § 29, 3-4-14.)

18.205.130 Permits – Issuance with conditions.

In granting any permit under this chapter, the city engineer shall attach thereto all conditions the reviewing agency has prescribed in any report of conditional approval by said agency. The city engineer also may attach conditions reasonably necessary to prevent danger to public or private property, to prevent the operation from being conducted in a manner hazardous to life or property, or in a manner likely to create a nuisance. Such conditions may be supplemental to but not inconsistent with any action of the reviewing agency. If, in the opinion of the city engineer, such hazards can be eliminated by the erection or installation of walls, cribs or other devices, or by a specified method of performing the work, the city engineer may grant the permit upon the condition that the specified protection and precautionary work be done to his/her satisfaction, or upon condition that a specified method of performing the work shall be used. No person shall violate or fail to comply with any condition imposed by the city engineer under this section. Other such conditions may include but shall not be limited to:

(a) Limitations on the hours of operation or the period of the year in which the work may be performed;

(b) Restrictions on the size and type of equipment;

(d) Restrictions and requirements as to the place and manner of disposal of excavated materials;

(e) Requirements as to the laying of dust, tracking of dirt, prevention of noises, and other results offensive or injurious to the neighborhood, or the general public;

(f) Designation of maximum or minimum slopes to be used if they vary from those prescribed in this chapter;

(g) Regulation of the use of public streets and places in the course of the work;

(h) Regulation on the degree of fill material compaction;

(i) Requirements for safe and adequate site drainage;

(j) A requirement that approval of the city engineer be secured before any work which has been commenced may be discontinued;

(k) A requirement that men and equipment be provided at the site during storms to prevent incomplete work from endangering life or property; or

(l) Requirements for fencing of excavation or fills which would be hazardous without such fencings. (Ord. 9-2014 § 29, 3-4-14.)

18.205.140 Permits – Designation of routes.

The city engineer may attach as a permit condition a requirement that all equipment used to haul excavation or fill material from or to the site shall follow designated routes within the city of Fremont. An applicant shall be entitled to the designation of a route providing access to a specified place other than the site, when he/she has shown to the satisfaction of the city engineer that excavation material may be deposited reasonably and lawfully or fill material may be lawfully obtained at such place. (Ord. 9-2014 § 29, 3-4-14.)

18.205.150 Permits – Time limits and conformance to terms.

In issuing any permit under this chapter, the city engineer ordinarily shall specify a time limit for completing the work. If no time limit is specified, the work shall be completed within 80 working days from the date of issuance of the permit. The permittee shall complete the work diligently in accordance with the permit and within the time limit herein specified. The city engineer shall inspect the progress of the work and see that it conforms at all times to the terms and conditions of the permit; he/she may refuse any building permits, any inspections and any approval required of his/her department in connection with any structure on the premises on which the excavation or fill is being or has been made, until the excavation conforms to the terms and conditions of the permit.

Permittees unable to complete the work within the specified time shall present requests for an extension of time to the city engineer. Such requests shall be presented before permit expiration and shall set forth the reason for the request and extension. (Ord. 9-2014 § 29, 3-4-14.)

18.205.160 Permits – Include conditions as to safety and drainage precautions.

Any permit issued under this chapter shall be deemed to include a condition that any person performing any grading operations shall put into effect all safety precautions ordered by and deemed necessary in the judgment of the city engineer. Such persons also shall remove all loose dirt from the grading site and provide adequate anti-erosion or drainage devices, debris basins, or other facilities to protect the life, limb, health, and welfare of private and public property of others from damage of any kind. (Ord. 9-2014 § 29, 3-4-14.)

18.205.170 Permits – Effective date – Waiver of appeal rights.

Ordinarily, no permit issued under this chapter shall take effect and authorize grading thereunder until the applicable period for the filing of appeals has expired. However, the city engineer may allow work to proceed sooner if the permittee has filed a written waiver of his/her right to appeal the permit as issued, and has provided adequate assurance such as by agreement and bond that the site shall be returned substantially to its original condition, if some other person’s appeal, if filed, is upheld, and if that action should require return of the site to its original condition. (Ord. 9-2014 § 29, 3-4-14.)

18.205.180 Permit issuance – Effect in general.

(a) A permit issued under this chapter authorizes only the work described or illustrated in the permit as issued or on the site plans and specifications constituting a part of the permit.

(b) No permit issued under this chapter shall be deemed to relieve the permittee or any property owner of responsibility for securing any required permit for work to be done regulated under any other law, any department, or any division of the city.

(c) Any permit issued under this chapter shall be deemed to include the requirement that the permittee, his/her agents, contractor(s) or employees, shall carry out the proposed work according to the approved plans and specifications in compliance with all requirements and standards in this chapter.

(d) A permit issued under this chapter shall not relieve any person from liability, nor impose liability on the city, for damage to persons or public or private property; nor shall compliance with such permit or any conditions therein relieve any person from such liability. (Ord. 9-2014 § 29, 3-4-14.)

18.205.190 Performance bonds.

(a) When Bond Required. Before issuing a permit, the city engineer shall require security in the form of cash, certificate of deposit, or a surety bond to pay for all work to be performed under this section. Security shall be satisfactory to the city engineer and approved by the city attorney.

(1) Security shall be required: when proposed grading or clearing involves more than 1,000 cubic yards of material; or when in the city engineer’s opinion the work if left incomplete would create a hazard to human life, would endanger public property, would endanger adjoining higher or lower property, or would cause economic devaluation of any property in the vicinity.

(2) Security may be required to pay for all of the following direct and indirect costs: any corrective work reasonably necessary to eliminate a geological hazard; any work reasonably necessary to place any site in a condition in which it will not detract from the character of or devalue property in the vicinity; erosion and sediment control work; any other work reasonably necessary to eliminate any hazard caused directly or indirectly by the permittee’s failure to complete work in the permit. The phrase “indirect costs” includes but is not limited to overhead, expenses of administration, and any attorneys’ or other legally related fees incurred in enforcement of the obligations imposed by this chapter.

(3) Any security shall be conditioned upon faithful performance of work specified in the permit within the time the city engineer has specified, or within any extensions of such time. Such security shall be conditioned upon the permittee and those engaged in doing the work complying with all the applicable provisions of this code, statutes and regulations relating to the work or its performance. Any security shall obligate the principal and his/her executors, administrators, successors and assigns, jointly and severally, with the surety. It shall inure to the benefit of the city, its officers and employees, and to any other person or party aggrieved by the principal’s failure to comply with the permit’s conditions. Any security also shall provide that it will not be canceled or terminated without city council consent.

(4) Notwithstanding the above, this section will not impose any requirement that a public agency or utility furnish security for a permit under this chapter.

(b) Notice of Default. Whenever the city engineer finds that a default has occurred in the performance of any permit term or condition, written notice thereof should be given to the principal and to the surety of the bond. Such notice should state the work to be done, the estimated cost thereof and the period of time the city engineer deems reasonably necessary for completion of such work.

(c) Duty of Surety. After receipt of such notice the surety, within the time therein specified, either must cause the required work to be performed; or, failing therein, the surety must pay over to the city engineer the estimated cost of doing the work set forth in the notice, plus an additional sum equal to 10 percent of the estimated cost, not to exceed the principal sum of the bond. Upon the receipt of such moneys, the city engineer may proceed to cause the required work to be performed and completed; but no liability shall be incurred therein other than for the expenditure of the sum in hand therefor. Any balance of such funds upon completion of work shall be returned to the surety, after all costs of the work are deducted.

(d) Disposition of Cash Bond. If a cash bond has been posted, notice of default as provided by subsection (c) of this section should be given to the principal. If compliance is not had within the time specified, the city engineer shall proceed in accordance with directions of the city council to use the cash deposited to cause the required work to be done. Upon completion of work, any balance of such cash deposit shall be returned to the depositor, or to his/her successors or assigns, after the cost of the work plus 10 percent thereof has been deducted.

(e) Right of Entry. In the event of any default in the performance of any term or condition of the permit, the city or the surety, or any person employed or engaged on their behalf, shall have the right to go upon the premises to complete the required work or make it safe.

(f) Interference Prohibited. No person shall interfere with or obstruct the ingress or egress to or from any such premises by an authorized representative or agent of any surety or of the city either in completing the work required to be performed under the permit or in complying with the terms or conditions thereof.

(g) Term of Bond – Completion. The term of each security posted shall begin upon the date of the posting thereof and shall end upon the completion to the satisfaction of the city engineer of all of the terms and conditions of the permit for the work. Such completion shall be evidenced by a statement thereof signed by the city engineer, a copy of which will be sent to any surety or principal upon request. When a cash bond has been posted, the cash shall be returned to the depositor or to his/her successors or assigns upon the termination of the bond, except any portion thereof that may have been used. (Ord. 9-2014 § 29, 3-4-14.)

18.205.200 Liability insurance.

The city engineer may require an applicant to file a certificate of insurance demonstrating that the applicant is insured against: claims for damages for personal injury; claims for property damages; claims for city property damages caused by any party by deposit or washing of material onto city streets or other public improvements. Such insurance shall insure against any claims arising from or out of the performance of the work, whether performance be by the applicants, their subcontractors, or any person they employ or contract with in any way. The city engineer may prescribe insurance amounts according to the nature of the involved risks. The city engineer may require insurance when in his/her opinion the work permitted may create a hazard to human life or limb; may endanger adjoining property, or property at a higher or lower level; or may endanger street improvements, or any other public property. Any insurance shall protect against liability arising from completed work, provided the cause of action therefor existed at the time of project completion. Any insurance shall be written by a company approved by the city attorney. It shall insure the city, its officers, agents and employees against loss or liability arising during the performance of, or resulting from, any work herein required. (Ord. 9-2014 § 29, 3-4-14.)

18.205.210 Transferability.

No permit required by this chapter is transferable without written city engineer consent. Such consent may be withheld if the city engineer finds the proposed transferee cannot demonstrate sufficient financial responsibility or experience in the work to be done to adequately protect the public safety or to carry out fully the terms and conditions of the permit. (Ord. 9-2014 § 29, 3-4-14.)

18.205.220 Permits – Modification after issuance.

Upon permittee request, the city engineer may allow modifications to the terms and conditions of the permit or the approved grading plan. However, any modification must have been within the authority of the city engineer to include within the permit at the time of original issuance thereof. In processing any such request, the city engineer shall have the authority to require reports and supplemental reports, and to impose any other requirement or condition. Modifications which affect the design of any filed subdivision tentative map or final map, or which affect matters of land use, are controlled by the applicable procedures prescribed in Titles 17 and 18. (Ord. 9-2014 § 29, 3-4-14; Ord. 05-2018 § 22, 3-20-18.)

18.205.230 Revocation or suspension of permits.

(a) Revocation. The city engineer may revoke any permit issued under this chapter after notice and hearing for:

(1) Violation of any permit condition;

(2) Violation of this chapter or any other applicable ordinance or law relating to the work;

(3) The existence of any condition or the doing of any act constituting or creating a nuisance or endangering the safety or property of others.

Written notice of the time and place of such hearing shall be served upon the person to whom the permit was granted, or his/her agent or employee engaged in the work, at least three days prior to the date set for such hearing. Such notice shall contain a brief statement of the grounds to be relied upon for revoking such permit. Notice may be given either by delivery thereof to the person to be notified or by deposit in the United States mail in a sealed envelope with postage prepaid, addressed to such person to be notified at the address appearing in his/her application. In the event any appeal is taken from the decision of the city engineer, all work shall be stopped while the appeal is pending.

(b) Suspension. The city engineer may suspend any permit without hearing for a period not exceeding 10 days, whenever he or she has issued a notice of hearing for permit revocation. Any such suspension shall terminate upon its expiration date or upon the rendering of a decision on the question of revocation, whichever shall occur first. No work shall be authorized or performed under any permit during such time as it may be suspended. (Ord. 9-2014 § 29, 3-4-14.)

18.205.240 Variation of existing conditions – Stop orders.

If, during the course of site inspection or grading operations, the city engineer finds any existing site or vicinity conditions are not as stated or represented in the application for permit, the permit as issued, or the approved plans, he or she may refuse to approve further work and order work stoppage until a permit has been issued with a revised grading plan conforming properly to the existing conditions. No person shall violate any such stop work order. Permit revisions may be processed in the manner set forth in Section 18.205.220 for the processing of permit modifications. (Ord. 9-2014 § 29, 3-4-14.)

18.205.250 Additional safety precautions may be required.

(a) If at any stage of grading or clearing the city engineer determines by inspection that the nature of the formation is such that further work authorized by an existing permit is likely to endanger any property or public way, result in the deposit of debris on any public way, or unduly interfere with any existing drainage course, he or she may require any reasonable safety precautions be taken to avoid such danger. Safety precautions may include but shall not be limited to specifying a flatter exposed slope; or construction of additional drainage facilities, berms, terracing, compaction or cribbing. Immediately upon identification of the need to implement safety precautions, the city engineer or supervising grading inspector will notify any civil engineer, soil engineer or engineering geologist who has prepared a report and signed the plans for the grading work.

(b) A notice to comply under this section shall be given to the permittee and to persons doing the work in writing, and shall be served in the same manner as set forth in Section 18.205.230 for the service of notices. After a notice to comply is served, a period of 10 days shall be allowed for the permittee or other person doing the work to begin making corrections. However, if an imminent hazard exists, the corrective work shall begin immediately. (Ord. 9-2014 § 29, 3-4-14; Ord. 05-2018 § 23, 3-20-18.)

18.205.260 Notice to correct condition constituting hazard – Summary abatement.

(a) The following persons shall perform corrective work when the conditions of this section are met:

(1) The owner of property upon which the grading or embankment is located; or

(2) Agents or other persons in control of property upon which the grading or embankment is located.

(b) The city engineer may require corrective work when he or she determines the existing grading or embankment has endangered life or limb; has affected adversely the use, safety or stability of any public way, drainage channel or other property; or has endangered other property.

(c) Time Allowed for Corrective Work. After notice in writing from the city engineer, persons shall perform corrective work within 180 days from the date on the notice. A shorter time period may be specified if an imminent hazard exists.

(d) Corrective work may include:

(1) Requirements that the excavation or embankment conform to this chapter’s provisions;

(2) Additional measures to repair, reconstruct, strengthen or eliminate excavation or embankment so that the city engineer is satisfied any danger is abated; or

(3) Submission of a soils engineer’s detailed studies showing stability of excavation or embankment.

(e) Failure of any person served notice under this section to comply with the notice within the time prescribed shall be deemed an infraction punishable as provided in this code. It further shall be deemed to be a nuisance subject to summary abatement under Cal. Gov’t Code § 38773. Abatement expenses shall be a debt payable to the city, or other person abating the nuisance, by the persons creating, causing, committing or maintaining the same. Such expense also shall be a lien against the property on which the nuisance has been maintained and the property owner’s personal obligation. The property owner or other person liable for an expense shall be given an opportunity for hearing before the city manager. If, after any hearing, the city manager orders agents of the city to abate the nuisance, they shall have the authority to enter the property to abate the nuisance condition.

(f) Nothing in subsection (e) of this section shall affect the rights of any party to proceed in any court for abatement of a public or private nuisance by injunctive or other judicial relief.

(g) The provisions of subsections (a) through (e) of this section are not applicable to any quarry or quarry operation existing or taking place prior to the original adoption of this chapter, nor shall they apply to future quarry sites and operations complying with other code requirements and regulations and for which a valid conditional use permit has been obtained. (Ord. 9-2014 § 29, 3-4-14.)

18.205.270 Inspections by city engineer.

The holder of any permit issued hereunder shall notify the city engineer as follows:

(a) Initial Inspection. Whenever work on the grading, excavation or fill is ready to be commenced, notification shall be given 48 hours before any work is done.

(b) Rough Grading. When all rough grading has been completed.

(c) Final. When all work including installation of all drainage structures and other protective devices has been completed.

Upon receiving such notice, the city engineer will inspect the work promptly and either approve the same or notify the permittee in what respects there has been failure to comply with the requirements of this chapter. Any portion of the work which does not comply shall be corrected promptly by the permittee. (Ord. 9-2014 § 29, 3-4-14.)

18.205.280 Conduct of operations – Protection of adjacent and other property.

(a) Protection of the Public and Adjacent Public Property. No person shall excavate on land sufficiently close to a property line to endanger any adjoining public street, sidewalk, alley or other public property without supporting and protecting it from settling, cracking or other damage that might result from excavation. Should the nature of the excavation in the opinion of the city engineer create a hazard to life or limb unless adequately fenced, the applicant shall construct such fences or guardrails to safeguard persons using the public street, sidewalk, alley or other public property as the city engineer may require.

(b) Protection of Other Public Property and of Public Utilities. During grading operations, the permittee shall prevent occurrence of damage to any street, public improvement or other public property, and damage to any public utilities or services. This responsibility shall apply at the site, as well as along any routes of travel of equipment.

(c) Protection of Adjacent Private Property. Any person responsible for excavating below the applicable depth specified in Cal. Civ. Code § 832 shall protect the excavation so that the soil of adjoining property will not cave in or settle, but shall not be liable for the expense of underpinning or extending the foundation of buildings on adjoining properties where his/her excavation is not in excess of that depth. Before commencing excavation, the person making or causing the excavation to be made shall notify the owners of adjoining buildings in writing that the excavation will be made and that the adjoining buildings should be protected. The owners of the adjoining properties shall be given access to the excavations for the purpose of protecting such adjoining buildings and, if they so desire, shall be allowed at least 30 days in which to take measures to provide such protection.

Any person responsible for excavating below the Cal. Civ. Code § 832 depth shall make efforts required under that section to protect the excavation so that the adjoining soil will not cave in or settle, and to protect any adjoining building or structure, the foundation of which is below the Cal. Civ. Code § 832 depth, without cost to the owner thereof, from any damage by reason of the excavation, except for minor settlement cracks.

(d) Fills or other surcharge loads shall not be placed adjacent to any building or structure unless such building or structure is capable of withstanding the additional loads caused by such fill or surcharge. (Ord. 9-2014 § 29, 3-4-14.)

18.205.290 Grading operations – Inspection and supervision.

(a) Supervised Grading – When Required. All grading involving more than 5,000 cubic yards of material shall be performed under the supervision of a registered civil engineer and shall be designated “supervised grading.” Grading not supervised according to this section shall be designated “regular grading.” For grading involving 5,000 cubic yards of material or less, the permittee may request to have the grading performed as either supervised grading or regular grading. However, the city engineer shall make the final determination if grading less than 5,000 cubic yards is to be performed as “regular grading” or “supervised grading.”

(b) Regular Grading Requirements. In cases of regular grading, the city engineer will inspect the work, and may require adequate inspection and compaction control by a soils testing agency. The soils testing agency will be approved by the city engineer. Periodic reports certifying the compaction or acceptability of all fills may be required for all grading for which a permit is required under this chapter. These reports shall include but need not be limited to statements relative to the following: inspection of cleared areas and benches prepared to receive fill, and removal of all soil and unsuitable materials; the placement and compaction of fill materials; the bearing capacity of the fill to support structures; and the inspection or review of the construction of retaining walls, subdrains, drainage devices, buttress fills, and other similar measures. The city engineer may require sufficient inspection to assure that all geologic conditions have been considered adequately. Where geologic conditions warrant, the city engineer may require periodic geologic reports. Inspection reports as aforesaid also may be required by the city engineer to include other information deemed necessary, such as statements concerning inspection of cut slopes, canyons during clearing operations for groundwater and earth material conditions; benches prior to placement of fill; and possible spring locations.

(c) Supervised Grading Requirements. In supervised grading, it shall be the responsibility of the registered civil engineer to supervise and coordinate all site inspections and testing during grading operations. Soils and geology reports also shall be required as specified in subsection (b) of this section. All necessary reports, compaction data, and soils engineering and engineering geological recommendations shall be submitted to the city engineer by the supervising registered civil engineer.

(d) Notification of Noncompliance. If in the course of fulfilling their responsibilities under this chapter the supervising registered civil engineers find that work is not being done in conformance with this chapter or the permit conditions and approved grading plans, or in accordance with accepted practices, they shall notify persons in charge of the grading work and the city engineer in writing, immediately, of nonconformities and of corrective measures to be taken. (Ord. 9-2014 § 29, 3-4-14.)

18.205.300 Deposits of material – Where prohibited – Action by city.

(a) No person shall dump, move or place any earth, sand, gravel, rock, stone or other excavated material so that it is deposited, rolls, flows, or washes upon or over any public place or way, or the premises of another, without the express consent of the owner of such premises so affected.

(b) When hauling any earth, sand, gravel, rock, stone or other excavated material over any public street, alley or other public place, no person shall allow such materials to blow or spill over or upon such street, alley or place, or upon adjacent private property.

(c) If, due to a violation of subsection (a) or (b) of this section, any earth, sand, gravel, rock, stone or other excavated material is deposited, rolls, flows or washes upon any public place or way, the person responsible shall remove the material from such public place forthwith. If it is not removed, the city engineer, after reasonable notice, may cause such removal. The cost of such city removal shall be paid to the city by the person who failed to remove the material; provided, however, that no such notice shall be required in any case where the public safety demands immediate removal and giving notice to the person responsible is not practical. (Ord. 9-2014 § 29, 3-4-14.)

18.205.310 Design standards – Excavations.

(a) Slope Standards. No permanent excavation shall be made which creates any exposed surface steeper in slope than two horizontal to one vertical, unless a retaining wall or other approved support has been permitted under terms of the permit, or unless the permit has been issued providing for a steeper slope, based upon the permittee’s having furnished a soils engineering or an engineering geology report certifying that the site has been investigated and that the proposed deviation will not endanger any public or private property or result in the deposition of debris of any public way or interfere with any existing drainage course. The slope shall not be steeper than the angle of repose. Any permit may be issued with the requirement that the excavation be made with a cut flatter in slope than two horizontal to one vertical if the city engineer or the reviewing agency finds such requirement necessary for stability and safety, due to erosion factors or other condition.

(b) Other Standards. No excavation shall be over 25 feet in vertical height without berms or terraces except slopes 2.5:1 or flatter, over 25 feet in vertical height, may be permitted without benches in special circumstances by the city engineer. The special circumstances must be to preserve the natural appearance of the hill face and be supported by soils engineering and engineering geology reports satisfactory to the city engineer. Finished ground surfaces shall have at least an average 10 percent slope between all buildings or structures and storm runoff contributing slopes; they shall slope away from buildings or structures on other sides thereof; the minimum finished ground slope within five feet of such buildings or structures shall be five percent. Finished ground surfaces shall be graded to drain the finished site properly.

(c) Applicability of Section. This section applies to all excavations in the city regardless of whether a permit is required by this chapter for such excavation. (Ord. 9-2014 § 29, 3-4-14.)

18.205.320 Design standards – Fills.

(a) Slope Standards. No permanent fill shall be made which creates any exposed surface steeper in slope than two horizontal to one vertical, unless a retaining wall or other approved support has been permitted under the terms of the permit. Any permit may be issued with the requirement that surface exposed after fill be flatter in slope than two horizontal to one vertical if the city engineer or the reviewing agency finds such requirement necessary for stability and safety, due to erosion factors or other condition.

(b) Preparation of Ground. Unless otherwise provided in the permit and approved plans, natural ground surface to receive fill shall be prepared by removing vegetation, topsoil and noncomplying fill material. Where slopes are five horizontal to one vertical or steeper, such surfaces shall be prepared by benching into sound bedrock or other suitable material. Of any such benches, five feet of the lowermost bench shall be exposed beyond the toe of the fill. All such benches shall be sloped for sheet overflow, or paved drain(s) shall be provided.

(c) Fill Material. No fill shall contain organic material that will be deleterious to the fill. No fill shall contain any noncompacted material below the level of three inches from the finished grade. Unless otherwise provided in the permit and approved plans, fill materials in the first two feet below the finished grade shall contain no rocks with a maximum dimension in excess of six inches; provided, however, that after a permit is issued and unless such permit specifically prohibits the city engineer from so doing, he/she may grant waivers from the above standards relating to size of rocks in fill materials, in cases where he/she determines a deviation from such standards is reasonable and contrary neither to the purposes of this chapter nor to the public interest.

(d) Terraces or Berms. Unless otherwise provided in the permit and approved plan, all fill slopes with a finished grade of 20 percent or greater shall have terraces or berms at vertical intervals of 10 feet.

(e) Compaction of Fills. The city engineer may make, and keep on file in the office of the city engineer, rules and regulations supplementary to the provisions of this chapter and not in conflict therewith, concerning standards for compaction of fills. In this connection, the city engineer may adopt current standards promulgated by the American Society for Testing and Materials or any other such standards which in his/her judgment are in the interest of public safety and protection and in furtherance of the purposes and intent of this chapter. When duly adopted pursuant to this subsection, such rules and regulations shall be deemed incorporated by reference into each permit involving any fill and issued pursuant to this chapter; and a copy of such rules and regulations shall be appended to each such permit. Thereafter, unless otherwise provided in the permit and approved plans, no person shall violate or fail to comply with such rules and regulations or suffer or permit any employee, servant or agent to do so.

(f) Other Standards. No fill shall toe out on a natural slope steeper than two horizontal to one vertical. After fill, finished ground surface shall have a minimum 10 percent slope between all buildings or structures and storm runoff contributing slopes, and shall have a minimum five percent slope away from buildings or structures on other sides thereof. When an existing fill is to be widened or a new fill is to be made on a hillside, the new material shall be bonded to the old by plowing deep longitudinal furrows, or by removing topsoil and vegetation and by compacting the fill upon a series of terraces.

(g) Applicability of Section. Insofar as they can be made applicable, the provisions of this section shall apply to all fills in the city regardless of whether a permit is required by this chapter for such fills. (Ord. 9-2014 § 29, 3-4-14.)

18.205.330 Design standards – Slope control.

(a) Lot Line Location. Insofar as practicable, lot lines shall be located at the tops of slopes.

(b) Erosion Control. Practical measures shall be taken in planning and issuing permits for any grading, to prevent surface waters from damaging the face of an excavation or fill. The face of any graded slope not supported by a retaining wall or other similar structure, the finished grade of which slope is 20 percent or greater, shall be protected from descending surface water runoff by berms, swales or other methods determined to be necessary and approved by the reviewing agency, and shall be planted and maintained with plant material prescribed in the permit and approved plans. In lieu of such planting, the city engineer, in appropriate cases, may waive this requirement or may approve the retention of acceptable native growth which will provide adequate erosion control for the site. Where it is determined to be necessary to provide erosion control, to protect the public welfare and safety, or to provide future maintenance of the planting required pursuant to this subsection, the reviewing agency may require the installation of an appropriate irrigation system or watering facility.

(c) Boundaries of Slope Control Areas. Where a serious hazard or nuisance to one property could be caused by lack of stabilization of a slope located in whole or part on another property, the slope shall be included in a slope control area. Drainageways necessary to the stabilization of such slopes also shall be included in the slope control area unless located in separate rights-of-way or easements of a local public authority or property owners’ association. Boundaries may fall within required yard areas unless the slope control area is in the ownership of the city of Fremont or an association. Boundaries shall be legally established, usually by reference to a map in protective covenants or other legal instrument, which set up the permitted use and required maintenance of the slope control area.

(d) Use and Maintenance of Slope Control Areas. Where practicable, the slope control areas shall be established as rights-of-way or easements of the city of Fremont or a properly constituted property owners’ association. Otherwise they shall be established as slope control areas identified in recorded protective covenants or other legal agreements running with the land; and they shall be made subject to appropriate slope control easements or agreements regarding use and maintenance by each individual property owner. In any case, the agreements with the city of Fremont or property owners’ association, or among individual owners under the covenants, shall include both land use restrictions in the slope control area and maintenance provisions. Such restrictions and provisions shall be designed to preserve, protect, maintain and assure the continuous effectiveness of slope control drainageways, slope control planting, established slope ratios, and other slope control measures taken for the benefit of the properties.

(e) Initial Maintenance of Slopes. At the time of grading permit issuance, appropriate arrangements shall be made to guarantee that initial slope and planting maintenance in slope control areas is continued by or on behalf of the permittee until stabilization has been assured to the satisfaction of the city engineer.

(f) Retaining Walls. Retaining walls shall be avoided wherever possible, particularly at the toes of high slopes. If retaining walls are installed in slope control areas, they shall be constructed of concrete or other masonry (or approved timber, not to exceed three feet in height), and they shall be adequately designed to carry all earth pressure including any embankment surcharge. Heights of retaining walls shall not exceed one-half of horizontal distance from foundation wall of dwelling to face of wall. Maximum height of side yard walls shall be four feet. These height limits do not apply, however, where it is known that no required window will face the wall.

(g) Fences. Fences of appropriate design and construction shall be installed along the top of slopes exceeding 15 feet vertical height and walls exceeding four feet vertical height, if required in the judgment of the city engineer for safety purposes. (Ord. 9-2014 § 29, 3-4-14.)

18.205.340 Design standard – Setbacks.

(a) Minimum setbacks for tops of graded slopes or toes of graded slopes from each other, from existing or proposed buildings, or from property lines, shall be as set forth in the following diagram and chart. The setbacks shown, however, are minimum requirements, and may be increased by the reviewing agency or the city engineer when it is determined that such additional requirement is necessary for stability of the site; for safety; or to prevent future damage from water, soil or debris.

MINIMUM REQUIRED SETBACKS
	A	B	C		D
Excavation or Fill of “H” Feet	A	B	Fill Slopes	Excavated Slopes
0 – 3 ft.	0 ft.	5 ft.	0 ft.	0 ft.	5 ft.
3 – 15 ft.	3 ft.	5 ft.	10 ft.	0 ft.	5 ft.
15 – 50 ft.	H/10 ft. 3 ft. min.	H/5 ft. 5 ft. min.	10 ft.	6 ft.	H/5 ft. 5 ft. min.
Over 50 ft.	H/10 ft.	H/5 ft.	10 ft.	6 ft.	10 ft.

(b) Applicability of Section. Insofar as they can be made applicable, the provisions of this section shall apply to all grading in the city regardless of whether a permit is required by this chapter for such grading. (Ord. 9-2014 § 29, 3-4-14.)

18.205.350 Design standards – Drainage.

(a) Storm Water Disposal. Every graded site shall be developed to provide adequate control of storm and surface waters and to carry such waters to the nearest practical storm drainage facility approved by the reviewing agency or city engineer as a safe place to deposit and receive such waters. Unless otherwise permitted in the permit and approved plans, or by the city engineer in cases where a permit is not required, no grading shall result in a condition whereby storm waters are carried onto a public street by surface flow, from a site or portion of a site constituting a tributary area greater than one-quarter acre.

(b) Grading Affecting Existing Channels. No grading shall alter any existing or established drainage channel so as to create a substantial danger of or cause flooding, excessive erosion, or impairments of access for maintenance of such channel.

(c) Grades of Terraces, Etc. Finished grades of terraces, berms and paved drains shall conform to the principles set forth in Section 18.205.330(b).

(d) Control of Groundwaters. In any plans for grading, and during grading operations, appropriate and adequate provisions shall be made for the control of groundwaters and springs encountered in process of grading and development.

(e) Subdrainage. Where deemed necessary by the reviewing agency or the city engineer, adequate subdrainage shall be provided in connection with fills.

(f) Applicability of Section. This section applies to all grading in the city regardless of whether a permit is required by this chapter for such grading. (Ord. 9-2014 § 29, 3-4-14.)

18.205.360 Completion of grading – Report.

(a) Notification of Completion. The permittee or his/her agent shall notify the city engineer when any finished grading is ready for final inspection. In the case of supervised grading, such notification shall be accompanied by a written report by the supervising registered civil engineer that the project, and all grading, lot drainage, installation of drainage facilities and site finishing, have been completed in conformity with the provisions of this chapter, the permit, and approved plans and specifications; and such notification shall include a report as to the soil-bearing capacity of any fill. A final grading plan shall be required in those instances where any changes in the grading have been approved after issuance of the permit.

(b) Final Geological and Soils Reports. Whenever an engineering geological report or a soils engineering report has been required pursuant to Section 18.205.060, or whenever the city engineer deems it necessary to carry out the purposes and intent of this chapter, or to protect the public safety or welfare, prior to issuing any completion certification, submission of any of the following reports may be required, to be prepared by a registered civil engineer or other person authorized by law to prepare such reports:

(1) A final engineering geological report based upon the final contour map and including specific approval of the grading as related to and affected by geological factors. When deemed necessary and required by the city engineer, such report shall include a revised geological map and cross-section, and any recommendations regarding building restrictions or setbacks for foundations. The engineering geologist shall approve the site as adequate for the intended use as affected by geologic factors.

(2) A final soils engineering report, which shall include summaries of field and laboratory tests, locations of tests, a professional opinion regarding shrinkage or settlement of any such fill, other technical information as required by the city engineer, and which report shall show limits of any compacted fill on an as-built plan. The city engineer also may require that any such report contain a certification that any fill site was prepared and the fill and any subdrains placed in conformity with the provisions of this chapter, the permit and approved plans and specifications. The soils engineer shall approve the site as adequate for the intended use.

(c) Final Report by Landscape Architect. Whenever landscape plans and specifications have been required pursuant to Section 18.205.110, the city engineer may, prior to issuing any completion certificate pursuant hereto, require the licensed landscape architect to submit a written certification that all applicable soil erosion landscaping has been completed in conformity with the permit and approved plans and specifications.

(d) Issuance of Completion Certificate. If, upon submission of any reports and maps required under this section, and upon final inspection of any grading, it is found by the city engineer that all work, including installation of drainage structures and protective devices, authorized by the permit has been satisfactorily completed in accordance with the requirements of this chapter, the permit and the approved plans and specifications, a completion certificate covering such work (and indicating all lots encompassed by the work) shall be issued by the city engineer to the permittee, and to the landowner if requested. (Ord. 9-2014 § 29, 3-4-14.)

18.205.370 Maintenance of protective measures.

The owner of any property on which grading or clearing has been made under a permit granted under this chapter, or any other person or agent in control of such property, shall maintain in good condition and repair all retaining walls, cribbing, drainage structures, subdrains, planted slopes and other protective devices shown in the approved plans or drawings accompanying the grading permit. (Ord. 9-2014 § 29, 3-4-14.)

18.205.380 Destruction of natural ground cover.

No person, except under a written order of an authorized fire department official, shall denude or destroy the natural cover of any watershed, except for the immediate use and occupation of property in accordance with and subject to all applicable provisions of the building code and Title 18. (Ord. 9-2014 § 29, 3-4-14.)

18.205.390 Exceptions from provisions of chapter.

(a) Application. A permit applicant, permittee or person proposed to grade or clear may apply for an exception to the requirements in this chapter. Application shall be in writing, directed to the city engineer. The city engineer may approve an exception when all of the following elements are met:

(1) When application of requirements of this chapter would generate practical difficulties or inequitable hardship unnecessary to carry out this chapter’s purposes, or would bring about an illegal result;

(2) When any difficulties or hardship results from unusual characteristics of the property at issue or the general location;

(3) When the exception will not increase danger to public health and safety;

(4) When the public interest in application of the requirement does not outweigh individual hardship to the applicant;

(5) When the exception does not constitute a grant of a special privilege inconsistent with requirements generally imposed on other persons doing grading in the city.

(b) Fees. The exception request shall be accompanied by a fee set by resolution of the city council.

(c) Action by City Engineer. In acting on any exception request, the city engineer shall notify any property owners within 300 feet of the property at issue and any other person who may be directly affected by the granting of the exception. The city engineer shall hold a public hearing on such request; provided, however, that failure to give any such notification or hold any hearing shall not invalidate any action taken under this section. In considering any request, the city engineer shall have authority, prior to acting finally thereon, to require submission of any report or supplemental report, such as soils engineering or geological reports, which could be required pursuant to other provisions of this chapter. All requests shall be processed expeditiously without unreasonable delay.

(d) Issuance of Exceptions. The city engineer may deny any such application for an exception or may grant the same in whole or in part, with or without specified conditions. No such exception shall be granted unless and until the city engineer has made appropriate findings of the existence of grounds as prescribed in subsection (a) of this section. Following final action of the reviewing agency pursuant hereto, the applicant shall be notified forthwith in writing, by mailing or personal service, of the action taken. (Ord. 9-2014 § 29, 3-4-14; Ord. 05-2018 § 24, 3-20-18.)

18.205.400 Effective date – Appeals.

A decision of the approval authority shall be effective on the date following the expiration of the appeal period, as described in Chapter 18.300, unless an appeal is timely filed pursuant to Chapter 18.300. No application for grading shall be granted on appeal unless the findings set forth in Section 18.235.060 are made by the planning commission or city council, as applicable. (Ord. 9-2014 § 29, 3-4-14.)

18.205.410 Time limits, expiration and revocation of grading permits.

(a) A grading permit shall be considered to be attached to and running with the land unless the permit has expired or has been revoked or modified.

(b) Time limits expiration and revocation of grading permits shall be subject to the procedures described in Chapter 18.330. (Ord. 9-2014 § 29, 3-4-14.)