Chapter 15.34
DIGGING AND EXCAVATION ON THE FORMER FORT ORD
Sections:
15.34.010 Citation and authority.
15.34.040 Designation and applicability.
15.34.050 Excavation and digging restrictions.
15.34.051 Metal detecting restrictions.
15.34.060 Permit requirements.
15.34.110 Amendments to permits.
15.34.130 Notification to property owners and other land users.
15.34.140 Revision of chapter.
15.34.010 Citation and authority.
The ordinance codified in this chapter is adopted to establish a regulatory framework for subsequent agreements between the city of Seaside (“city”), the redevelopment agency of the city of Seaside (“city RDA”), the Fort Ord Reuse Authority (“FORA”) and the California Environmental Protection Agency, Department of Toxic Substances Control (“DTSC”), related to digging and excavation on approximately one thousand five hundred eighty-one acres of the former Fort Ord military installation (“Fort Ord”) that are known or suspected to be contaminated with ordnance and explosives (“OE”) (Exhibit “A” attached to the ordinance codified in this chapter). This chapter may be cited as the “ordnance remediation district regulations of the city.” (Ord. 924 (Exh. A), 2004)
15.34.020 Purpose and intent.
The United States Army (“Army”) is in the process of transferring portions of the former Fort Ord to the city. Some parcels of the former Fort Ord were contaminated with OE, which is a hazardous waste. The Army will not transfer those parcels until it has cleared those parcels of OE to its standard. Even following the Army’s completion of OE response activities, it is possible that some OE materials may remain on those parcels. The DTSC has statutory responsibility to oversee cleanup of releases of hazardous substances, which includes hazardous waste. DTSC cannot certify that all OE has been cleared and it will require a land use covenant to be recorded with the Monterey County recorder on these parcels to provide additional controls and restrictions to protect the public health and safety. The city will also enter into an agreement with DTSC to provide additional safety measures, reporting, etc. (Ord. 924 (Exh. A), 2004)
15.34.030 General.
The city council finds and determines that those properties formerly included within the Fort Ord military installation which are suspected of containing OE require special standards and procedures for digging and excavation in addition to those contained in the Building and Construction Code, to ensure that:
A. Neither digging or excavation nor development of such properties occurs until ordnance or explosive remediation thereon is completed;
B. Potential purchasers or developers of sites which may contain OE and those persons whose work at such sites includes disturbing soil are aware of the potential that OE may be located on these properties and are aware of the requirements for OE precautions prior to any digging, excavation or ground disturbance thereon; and
C. DTSC should be continuously involved in the establishment of controls for those properties because it has statutory oversight responsibility with respect to hazardous substance response actions. (Ord. 924 (Exh. A), 2004)
15.34.040 Designation and applicability.
The city council, with the concurrence of DTSC, designates all real property within the city’s land use jurisdiction which was formerly part of Fort Ord and which has been identified in the archives search report and supplement, dated 1997, or otherwise identified, as the possible location of unexploded ordnance or explosives as an “ordnance remediation district” (“district”). Such district is depicted on the map included as Exhibit “A” to the ordinance codified in this chapter and includes all areas on the map that are within map legend designations “OE sites in Seaside” and “first tee boundary,” except those OE areas located within map legend designation “parcels retained by DOD.”
A. Such district shall be depicted on the city zoning map by an “ORD” suffix to indicate the existence of ordnance precaution remediation obligations on such property. The city shall notify DTSC of any change in the permitted land uses in the district within thirty days after it adopts any change.
B. The regulations in this chapter shall apply throughout the district and shall be in addition and subject to all provisions of the municipal code including SMC Title 17, Zoning, SMC Title 15, Buildings and Construction, and Chapter 15.32 SMC, Standards to Control Excavation, Grading, Clearing and Erosion. (Ord. 924 (Exh. A), 2004)
15.34.050 Excavation and digging restrictions.
It is unlawful for any person, including utilities, to engage in any of the following activities on any property located within a district unless that person is acting pursuant to a valid permit issued pursuant to this chapter: excavation, digging, development or ground disturbance of any type involving the displacement of ten cubic yards or more of soil. (Ord. 924 (Exh. A), 2004)
15.34.051 Metal detecting restrictions.
It is unlawful for any person to engage in metal detection activities on any property located within an ordnance remediation district. Any violation of this restriction is considered an infraction and may result in an administrative citation as set by the annual fee schedule. (Ord. 1093 § 3, 2020)
15.34.060 Permit requirements.
An owner or user of real property located within the district who desires to conduct the activities described in SMC 15.34.050 shall apply to the director of community development for a permit. The application shall be on a form approved by the city, may be combined with an application for grading pursuant to Chapter 15.32 SMC, shall be signed by the permit applicant, and shall contain the following information:
A. A description of any previous OE excavation or removal activity conducted other than by the Army on the property whose soil is proposed to be excavated, moved or graded;
B. A description of the property, whose soil is proposed to be excavated, moved or graded. The description shall include a drawing with dimensions to a scale which sets forth the size and details of all proposed excavation activity, including any proposed cut and fill, trenching, well drilling, mineral excavation, post hole drilling, or other activity of any sort whenever the applicant proposes to disturb ten cubic yards or more of soil;
C. A statement that the person submitting the application acknowledges liability if the person removes any detected unexploded ordnance or otherwise violates this chapter and/or the permit. The Army will continue to have the liability to remove any ordnance items found. The person submitting the application is responsible to follow the procedures for notification of DTSC and the Army upon finding an ordnance item set out in SMC 15.34.070;
D. A statement by the person submitting the application that he or she has, within the preceding twelve months, delivered a copy of the safety alert required by SMC 15.34.130 to everyone whose work at the property described in subsection B of this section includes disturbing soil;
E. Any other information which the director of community development may require as pertinent to the determination of the adequacy of the proposed plan;
F. Payment of the permit fee, as established by the city council, at the time of filing the application for the permit. (Ord. 924 (Exh. A), 2004)
15.34.070 Permit procedure.
The director of community development shall review the permit application and shall approve the permit unless evidence is available which indicates that the proposed grading or excavation will create an undue risk to the health and safety of the public at large. Prior to acting on any such permit, the director of community development, in his or her sole discretion, may set and conduct a public hearing for the purpose of receiving comments on the proposed grading and excavation. Any permit issued hereunder shall be subject to the following conditions:
A. All excavation and grading shall be performed solely in accordance with the permit approved by the city and in accordance with the permit as issued by the city;
B. Prior to movement of any soil on any property located within the district, the permittee or designee shall personally deliver to each person who intends to work on the property described in the permit the Safety Alert – Ordnance and Explosives at former Fort Ord which is referenced as Exhibit “C,” attached to the ordinance codified in this chapter, and explain to each such person the information set forth in that notice;
C. The permittee may not move or disturb any soil unless the permittee is in compliance with the requirements placed on the property by an agreement executed between the city, the city RDA, FORA and DTSC. The agreement shall, as a minimum, include OE construction support (“construction support”) and shall be attached to and become a part of any permit issued pursuant to this chapter;
D. The permittee shall cease soil disturbance activities upon discovery of any suspected unexploded ordnance. The permittee shall notify the Seaside police department, the Directorate of Law Enforcement at the Presidio of Monterey, the Army and DTSC of any suspected unexploded ordnance discovered during any excavation or soil removal immediately upon discovery. The permittee shall coordinate appropriate response actions with the Army and DTSC;
E. No later than thirty days following the completion of the permitted soil disturbance activity, the permittee shall prepare and file with the director of community development, the Army and DTSC an after action report that shall state whether and where OE was detected and the extent and depth of OE response actions undertaken and completed on the property that is the subject of the permit. The after action report shall be in the form provided as referenced in Exhibit “B,” attached to the ordinance codified in this chapter, and shall include site maps to illustrate the information contained in the report. All after action reports prepared and filed in accordance with this chapter shall be deemed public records;
F. The permittee agrees that as a condition of issuance of a permit to defend at its sole expense, indemnify and hold harmless from any liability the city, and reimburse the city for any expenses incurred resulting from or in connection with the approval of the project including any claim, suit or legal proceeding. The city may, at its sole discretion, participate in the defense of any such action, but such participation shall not relieve the permittee of its obligations under this subsection. (Ord. 924 (Exh. A), 2004)
15.34.080 Term of permit.
The permit shall be valid for one year from the date it is issued. (Ord. 924 (Exh. A), 2004)
15.34.090 Exceptions.
Following consultation with and approval by DTSC, the city council may, upon a finding that the requirements of SMC 15.34.070(C) are no longer necessary, designate by resolution any portion of the district as a “limited control district” and/or no longer subject to the provisions of this chapter. The holder of any permit issued for any limited control district shall not be subject to SMC 15.34.070(C). (Ord. 924 (Exh. A), 2004)
15.34.100 Performance bond.
Upon a finding by the director of community development that a permit should issue for excavation or grading on the proposed site, the director of community development may require that a surety bond, lien or other security guarantee conditioned upon the faithful performance and completion of the permitted excavation activity be filed with the city. Such surety shall be executed in favor of the city and shall be maintained in an amount prescribed by the director of community development sufficient to ensure the completion of the excavation of the site as prescribed in the approved permit. (Ord. 924 (Exh. A), 2004)
15.34.110 Amendments to permits.
Request for amendments to an approved excavation permit may be submitted to the director of community development at any time, detailing proposed changes from the original permit. Deviations from the original permit shall not be undertaken until such amendment has been approved by the city in writing. Amendments to an approved permit shall be approved by the same procedure as prescribed for the approval of the original excavation permit. (Ord. 924 (Exh. A), 2004)
15.34.120 Appeals.
Any person aggrieved by any determination of the director of community development in exercise of the authority granted in this chapter shall have the right to appeal to the city council. Any appeal setting forth the contested decision and the reasons for contesting same must be filed within ten working days after the posting of the director of community development’s decision at the places designated by SMC 1.08.020. The city council shall render its decision within sixty days following the filing of the notice of appeal. The council may affirm, reverse or modify the decision of the director of community development. The council action shall be final upon issuance of its decision. (Ord. 924 (Exh. A), 2004)
15.34.130 Notification to property owners and other land users.
A. The city shall notify the owners of property designated as ordnance remediation districts and those utilities known to be providing service within the city of the requirements of this chapter, and provide those persons with the Safety Alert – Ordnance and Explosives at Former Fort Ord, which is referenced as Exhibit “C,” attached to the ordinance codified in this chapter. The city shall annually notify the owners of the property as shown on the equalized tax rolls of the requirements of this chapter and provide those persons with a copy of the notice. Failure of any owner, occupant or user of such land to receive the notification shall not relieve that person from responsibility for compliance with this chapter.
B. All owners, occupants or users of land subject to this chapter, including utilities, shall notify any subsequent owners, assigns, lessees or users of such land of the requirements of this chapter. Notification shall be made prior to transfer of the property in question.
C. All persons identified in subsection A of this section shall deliver, at least annually, a copy of the safety alert to everyone whose work at OE sites includes disturbing soil and shall explain the contents thereof to those persons. (Ord. 924 (Exh. A), 2004)
15.34.140 Revision of chapter.
This chapter shall not be revised without prior written notice to the DTSC. (Ord. 924 (Exh. A), 2004)