Ordinance No. AN ORDINANCE OF THE COUNTY OF MONTEREY, STATE OF CALIFORNIA, ADDING CHAPTER 21.47 AND CHAPTER 21.67 TO THE MONTEREY COUNTY CODE ESTABLISHING LANDFILL BUFFER ZONE DISTRICTS AND REGULATIONS GOVERNING THE USES OF REAL PROPERTY LOCATED IN THE VICINITY OF SOLID WASTE LANDFILLS IN THE UNINCORPORATED, NON-COASTAL AREAS OF THE COUNTY OF MONTEREY. County Counsel Summary This ordinance establishes regulations governing the uses of real property located in the vicinity of solid waste landfills located in the unincorporated non-coastal areas of the County. This ordinance establishes two distinct zone areas (Zone A and Zone B) and allows limited residential and commercial uses within 2,500 feet of landfill facilities in Zone A and within 1,000 feet of landfill facilities in Zone B, subject to a County use permit. This ordinance also provides for the Salinas Valley Solid Waste Authority s review, comment, and recommendation on development within Zone A prior to approval by the County, with limited exceptions. This ordinance also addresses development of real property located within Zone A in proximity to the Lewis Road Landfill. THE BOARD OF SUPERVISORS ORDAINS AS FOLLOWS: SECTION 1. Chapter 21.47 is added to the Monterey County Code to read as follows: REGULATIONS FOR LANDFILL BUFFER ZONING DISTRICTS OR LBZ DISTRICTS Sections: 21.47.010 Purpose 21.47.020 Applicability 21.47.030 Uses Allowed 21.47.040 Special Regulations 21.47.010 PURPOSE. The purpose of this Chapter is to provide a district to denote specific areas of the County that are subject to special regulations for development located in the vicinity of an active or closed landfill. 21.47.020 APPLICABILITY. The provisions of this Chapter and Chapter 21.67 shall apply in all districts with which the Landfill Buffer Zone ( LBZ ) District is combined, in addition to the regulations specified for that district. However, if any of the provisions specified in this Chapter and Chapter 21.67 differ from the regulations of the district which is combined with a Landfill Buffer Zone District, then the provisions of this Chapter and Chapter 21.67 shall apply. Page 1
21.47.030 USES ALLOWED. All uses permitted in the respective district with which the "LBZ" is combined, except to the extent modified by the provisions of Chapter 21.67 of this Code. 21.47.040 SPECIAL REGULATIONS. All development proposed on any property that is in an LBZ district shall be subject to the provisions of Chapter 21.67 of this Code. SECTION 2. Chapter 21.67 is added to the Monterey County Code to read as follows: Chapter 21.67 SOLID WASTE LANDFILL BUFFER ZONES 21.67.010 Purpose. 21.67.020 Findings and Declarations. 21.67.030 Definitions. 21.67.040 Requirements. 21.67.050 Applicability of Regulations. 21.67.060 Regulations for Real Property Within Buffer Zones A and B. 21.67.070 Regulations for Real Property Within Lewis Road Comprehensive Settlement and Release Agreement. 21.67.080 Violations. 21.67.010. PURPOSE. The purpose of this Chapter is to establish regulations and standards governing the uses of real property located in the vicinity of solid waste landfill facilities to ensure that such uses are compatible with the protection of the public health, safety, and welfare, and to protect real property rights while minimizing any conflicts or interference with the operations of such landfill facilities. Page 2
21.67.020. FINDINGS AND DECLARATIONS. A. As of the date of adoption of ordinance No. xxxx adopting this chapter, there are four (4) active solid waste landfill facilities and seventeen (17) closed solid waste landfill facilities, for a total of twenty-one (21) solid waste landfill facilities in the unincorporated area of the County of Monterey. None are located within the Coastal Zone. Of the twenty-one (21) solid waste landfill facilities, three (3) active and one (1) closed landfill are located within Zone A and one (1) active and sixteen (16) closed landfills are located within Zone B. These twenty-one (21) landfills and the zones in which each is located are shown on the map entitled Zones and Landfills. The map is periodically updated by and is on file in the Monterey County Health Department, Environmental Health Division. B. As of the date of adoption of ordinance No. xxxx adopting this chapter, the following are the estimated years for closure of the active landfills as listed in their permits: 1. Crazy Horse, Prunedale, estimated year for closure 2009 2. Jolon Road, King City, estimated year for closure 2007 3. Johnson Canyon Landfill, Gonzales, estimated year for closure 2043 4. Monterey Regional Waste Management District, estimated year for closure 2107. C. State regulatory agencies such as the California Integrated Waste Management Board and the Regional Water Quality Control Board have determined that landfills may cause environmental impacts that if left unregulated may pose a threat to public health, safety, and welfare. D. Landfills may potentially cause adverse environmental impacts, including groundwater and surface water contamination, migration of methane gas from landfills onto adjacent properties and structures, generation of harmful gases from volatile organic compounds, and other impacts in the form of litter, dust, odors and noise. E. To ensure that adequate landfill capacity is available for the disposal of solid waste and to prevent conflicts between landfills and other land uses in their vicinity that may arise because of the potential adverse environmental impacts of landfills, it is necessary to adopt regulations governing development of real property adjacent to landfills. F. The proximity of landfills to real property that may potentially be developed for residential and commercial use may pose a threat to the public health, safety, and welfare, and adoption of this ordinance is necessary for the protection of the public health, safety, and welfare. G. These regulations are not intended to curtail agricultural activities except for those activities that have the potential for spreading gas and or liquid contaminants emanating from the landfill or pose a potential health risk to residents, such as construction of a well. Page 3
21.67.030. DEFINITIONS. For the purposes of this Chapter, the following definitions shall apply: A. Active Landfill means any place, location, tract of land, area or premises permitted by the California Integrated Waste Management Board for use for the on-site disposal of solid waste, not including a transfer station. B. Authority means the Salinas Valley Solid Waste Authority, a joint powers authority, established through a joint powers agreement effective January 1, 1997, among the County and the cities of King, Greenfield, Gonzalez, Soledad and Salinas. C. Building Site means an area within a lot occupied, or intended to be occupied, by a main structure and accessory structures and uses. D. Closed Landfill means any place, location, tract of land, area or premises, permitted or not, previously used for disposal of solid waste, not including a transfer station, which is permanently closed and is no longer used for the on-site disposal of solid waste. E. Comprehensive Settlement and Release Agreement means the agreement adopted on July 13, 2001, between Lewis Road Landfill Citizen Action Committee, the Authority, the County of Monterey, USA Waste of California, Inc., Lewis Road Disposal Site, Inc., and Rural Dispos-all Service, Inc. A copy of this agreement is on file in the Monterey County Health Department, Environmental Health Division F. County means the County of Monterey. G. Development means any activity which occurs on land or water that involves the placement of any structure, the discharge or disposal of any waste material, grading which would require a County grading permit, construction of a well, dredging, or mineral extraction. This definition includes any change in density and/or intensity of use including the subdivision of land, construction of any structure, and the harvesting of major vegetation other than for agricultural purposes. H. Director means Director of Environmental Health. I. Discretionary Development Entitlement means any action, permit or approval which requires the exercise of judgment, deliberation or a decision and which contemplates the imposition of revisions or conditions by the County, including any board, commission, department, employee or official of the County, in the process of approving or not approving development. Discretionary Development Entitlement includes without limitation, zoning amendments, specific plans, area plans, conditional use permits, combined development permits, administrative permits, coastal development permits, lot line adjustments, special use permits, variances, site plan reviews, tentative subdivision maps, and tentative parcel maps. Discretionary Development Entitlement does not include a judgment, deliberation or a decision to determine whether there has been Page 4
compliance with statutes, ordinances, regulations, or conditions of approval. J. Effective Date means the date Ordinance No. xxxx adopting this Chapter took effect. K. JPA means the joint powers agreement, effective January 1, 1997, among the County and the cities of King, Greenfield, Gonzalez, Soledad and Salinas, establishing the Salinas Valley Solid Waste Authority. L. Landfill Boundary means the property line of an active landfill. For a closed landfill, Landfill Boundary means the exterior footprint of the Waste Management Unit. M. LEA means the Local Enforcement Agency designated by the California Integrated Waste Management Board (CIWMB), which is the Monterey County Health Department, Environmental Health Division. N. Waste Management Unit means the actual place, location, tract of land, area, or premises used for the on-site disposal of solid waste except for deposits of solid waste that are not for permanent disposal. O. Zone A means the area within two thousand five hundred feet (2,500') from the Landfill Boundary of active and closed landfills under the Authority s jurisdiction. P. Zone A Maps means the set of maps and tables depicting the landfill property, landfill footprint and the parcels within two thousand five hundred feet (2,500') from the Landfill Boundary for each active and closed landfill under the Authority s jurisdiction. Q. Zone B means the area within one thousand feet (1,000') from the Landfill Boundary of active and closed landfills not under the Authority s jurisdiction. R. Zone B Maps means the set of maps and tables depicting the landfill property, landfill footprint and the parcels within one thousand feet (1,000') from the Landfill Boundary for each active and closed landfill not under the Authority s jurisdiction. 21.67.040. REQUIREMENTS. If the regulatory status of a landfill changes from open to closed, or if a new landfill facility is sited, the LEA shall notify the Planning Department to process a zoning ordinance amendment to remove or add LBZ overlays, as applicable, to adjacent parcels affected by this ordinance. The LEA will be responsible for maintaining on file and updating the Zone A and Zone B Maps. The LEA will, as needed, update the maps, boundaries and affected parcels of Zone A and B to reflect revisions in landfill boundaries, addition of landfills, and any changes in County, State or Federal laws applicable to landfills. 21.67.050. APPLICABILITY OF REGULATIONS. Page 5
A. The provisions of this Chapter and Chapter 21.47 shall apply in all districts with which the Landfill Buffer Zone District is combined, in addition to the regulations specified for that district. However, if any of the provisions specified in this Chapter and Chapter 21.47 differ from the regulations of the district which is combined with a Landfill Buffer Zone District, then the provisions of this Chapter and Chapter 21.47 shall apply. B. The appropriate County authority shall not issue or approve building, well, or grading permits or any discretionary development entitlements on real property located within Zones A or B unless the proposed development complies with the requirements of this Chapter or is exempt under this Chapter. 21.67.060. REGULATIONS FOR REAL PROPERTY WITHIN ZONES A AND B. A. No new residential development or creation of any new lots of record shall be allowed within Zones A or B of an active landfill. B. No new well shall be constructed within Zone A or Zone B of an active landfill. C. Within Zones A and B of an active landfill, industrial, commercial, or office uses are permissible subject to a discretionary use permit that meets the requirements of Section 21.67.060, if consistent with the underlying zoning on the affected property. If necessary to comply with this regulation, an applicant may apply for rezoning concurrently with an application for a discretionary use permit. D. Within Zones A or B of either an active or closed landfill, replacement of an equivalent structure and repairs to any legally constructed building, when not otherwise prohibited by federal, state or County law or regulation, and with the appropriate mitigations if landfill gas or other hazards associated with landfills are present, shall be allowed for the following reasons: 1. To correct an unsafe condition. 2. To correct a substandard condition. 3. To remedy destruction due to fire, earthquake or other natural disaster. E. Within Zones A and B of a closed landfill, a discretionary use permit is required for all of the following: 1. any enclosed structure; 2. well construction; 3. grading in an amount which requires a grading permit under County regulations. F. Within Zones A and B of a closed landfill, the discretionary use permit shall not be Page 6
granted unless it meets the following requirements: 1. All uses except residential may be developed within Zones A and B if consistent with underlying zoning and other applicable County regulations. 2. Residential development shall be allowed only if there is no alternative buildable site outside of Zone A or B on the subject existing lot of record. Such development must be consistent with underlying zoning and other applicable County regulations and not pose a threat to public health. 3. Subdivision of land within Zones A or B of a closed landfill may be allowed only if the site assessment required by this section demonstrates no existing or potential future hazard. G. The following requirements apply to any development proposal within Zone A and B of either an active or closed landfill, for which a discretionary use permit is required under this Chapter: 1. If landfill gas or other hazards associated with landfills are present, development incompatible with actual or future potential hazards shall not be permitted unless no feasible alternatives exist and the actual and potential future hazards are mitigated to the satisfaction of the LEA. 2. Applicants for a structure located within Zone A and B shall be required to complete a site assessment for review and acceptance by the Director that analyzes the extent of actual and potential future hazards and proposes measures which mitigate actual and potential future hazards to the satisfaction of the LEA. A qualified professional engineer shall conduct the site assessment. Such site assessment shall at a minimum, address the following factors: a). b). c). d). e). f). g). The age of the landfill. The date of the landfill closure. Whether the landfill is lined, partially lined or not at all. The depth to groundwater and the degree that the landfill has contaminated the groundwater. The geological and hydro-geological setting of the landfill. The presence of landfill gas and possible extent of gas migration. The assessment shall consider seasonal variations in the extent of gas migration. The presence of toxic contaminants in the landfill gas as measured in the air, soil, and groundwater. H. All wells constructed within Zones A and B of a closed landfill require a discretionary use permit and must meet the following requirements: 1. Groundwater supply wells constructed within Zones A and B shall be constructed Page 7
with an annular seal placed at least ten (10) feet into the first significant impermeable layer, which is at least ten (10) feet thick, below the depth of the deepest cell within the landfill. The annular space between the well casing and the wall of the drilled hole shall be effectively sealed so as to prevent it from constituting a preferential pathway for movement of pollutants or contaminants. The annular seal shall be constructed in accordance with California Well Standards Bulletins 74-81 and 74-90, and amendments, Section 9, and Chapter 15.08 of the Monterey County Code. 2. Applicants shall obtain and submit for review and acceptance by the Director an independent hydrogeological report prepared by certified hydrogeologist that shows there is no potential for the well to cause the spread of liquid or gas contaminants emanating from the landfill. I. Notwithstanding any other provision of this chapter, wells that are part of federal, state or locally approved remediation or monitoring plans are exempted from the requirements of Section 21.67.060 of this Chapter. J. For real properties located within Zones A, a use permit is required pursuant to the provisions of this Section and shall not be approved until the application has been reviewed and considered by the Authority s Board of Directors. The Authority shall be deemed a responsible agency pursuant to applicable environmental laws of the State of California and shall be consulted as required by such environmental laws. Pursuant to the JPA, any conditions of approval recommended by the Authority s Board shall be incorporated as conditions of approval of the use permit, unless the Board of Supervisors unanimously votes to modify or delete any such conditions of approval. In the event the Authority s Board recommends denial of the use permit, the permit shall be denied unless the Board of Supervisors, by a unanimous vote, approves the use permit. 21.67.070. REGULATIONS FOR REAL PROPERTY SUBJECT TO LEWIS ROAD LANDFILL COMPREHENSIVE SETTLEMENT AND RELEASE AGREEMENT. A. All real property within Zone A not included in that certain Comprehensive Settlement and Release Agreement among Lewis Road Landfill Citizens Action Committee, the Authority, the County, USA Waste of California, Inc., Lewis Road Disposal Site, Inc., and Rural Dispos-all Service, Inc., adopted on July 13, 2001, are subject to the requirements of this Chapter. B. Notwithstanding any other provision of this chapter, an application for construction or use of any residential building on those parcels within Zone A governed by the Comprehensive Settlement and Release Agreement (the Settlement parcels ) is not subject to further review by the Authority and is not barred by this Chapter. Said development requires a use permit subject to the following requirements, in addition to compliance with Sections 21.67.060 subparts A-I and any other conditions required by the County. In addition, said development shall be subject to the following requirements: Page 8
1. Any new structure on a Settlement parcel shall include all of the following conditions to avoid any potential for the accumulation of gas originating from Lewis Road Landfill: a) A passive landfill gas venting system shall be installed beneath the structure to prevent harmful accumulation of methane gas. The LEA shall determine and approve the design of the system, which shall be stamped by a qualified civil engineer, licensed in the State of California. For concrete slab floors, the passive system may include a network of perforated pipe set in a bed of gravel overlain by a flexible membrane liner, beneath the concrete surface. The pipe shall extend outside of the structure to allow free passage of air beneath the floor. The design or placement of the pipe shall not allow surface water to invade the pipe. For framed foundations, the subfloor area shall have adequate vents as determined by the engineer and the LEA, which vents shall be open to the outside atmosphere at all times. b) Adequate methane gas-sensing devices with an alarm approved by the LEA shall be installed in each structure. The device shall be designed to continually detect the presence of explosive gases at varying levels of their explosive range. The device shall be hard-wired and shall be equipped with audio and visual alarms. The device shall be set to alarm when methane in the air is detected at twenty five percent (25 %) of the lower explosive limit. c) The LEA shall monitor the presence of methane and other explosive gasses. The County may use consultants, contractors or other agents to carry out this responsibility. The applicant, including owners and occupants, shall allow access to the property without charge to the County, its consultants, contractors or agents, on reasonable notice for the purpose of entering the property, including any sub floor areas and occupied areas. 2. Any development of Settlement parcels which is deemed down gradient form the Lewis Road Landfill as determined by the Authority shall implement both the following measures to protect the groundwater: a) No supply wells shall be installed to withdraw from the perched groundwater aquifer. 3. Groundwater supply wells installed to withdraw water from the regional unconfined aquifer shall be constructed with an annual-space seal across the perched groundwater aquifer. The space between the well casing and the wall of the drilled hole shall be effectively sealed across the perched groundwater aquifer so as to prevent it from constituting a preferential pathway for movement of pollutants or contaminants. The annual seal shall be constructed in accordance with California Well Standards Bulletin 74-90, Section 9 and Chapter 15.08 of the Monterey County Code, as periodically amended. Page 9
3. The Authority may waive any of the conditions for a use permit set forth in Section 21.67.070.B.1. 4. The Authority shall pay for any methane monitoring devices required by the Authority under Section 21.67.070.B.1 and the cost of maintenance or repair to such devices. 5. The County shall waive the fee for a use permit application for the Settlement parcels if the applicant is required to apply for a use permit solely because of this Chapter. This does not relieve owners or occupants of the real property within the buffer zone from payment of building permit or other land use application fees. C. In regard to the Settlement parcels, the following categories of development are exempt from the provisions of this Chapter. 1. Any legally constructed building or use in existence as of June 30, 2001 and any development for which a building or grading permit had been issued and actual construction had begun prior to June 30, 2001. 2. Any legal development for which a building permit is required in order to comply with an order issued by the Director of Planning and Building Department. 3. Any legal construction to repair an unsafe or substandard condition or to rebuild an equivalent structure as a result of destruction by fire, earthquake, or other natural disaster, if such development is not otherwise prohibited under the Monterey County Code. 4. The remodel, replacement, or expansion of any legal building existing on the property on or before January 1, 1997. 5. Any development for which a building permit had been issued prior to January 1, 1997, provided said building permit has not lapsed or become void for another reason. 6. Any development for which an application was filed on or before January 1, 1997. 21.67.080. VIOLATIONS. A. Any person who uses, or allows the use of, real property in violation of the provisions of this Chapter is guilty of a misdemeanor for each day in which such real property is occupied, used, or allowed to be used, in violation of this Chapter and is punishable pursuant to Title 21 and Chapter 1.20 of the Monterey County Code. B. No permit, license, subdivision approval or map, final inspection for occupancy or certificate of occupancy, or other approval or entitlement for a residential development, Page 10
shall be issued until all applicable requirements of this Chapter have been satisfied. C. In the event of a violation of any provision of the Chapter, or any requirement imposed pursuant to this Chapter, the County may in its discretion, in addition to all other remedies, take such enforcement action as is authorized under the Monterey County Code and any other action authorized by law or regulation. SECTION 3. SEVERABILITY. If any section, sentence, clause or phrase of this ordinance is for any reason held invalid by a court of competent jurisdiction, such a decision shall not affect the validity of the remaining portions of this ordinance. The Board of Supervisors declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases, be declared invalid. SECTION 4. This ordinance shall become effective on the thirty-first day after its adoption. PASSED AND ADOPTED this day of, 2007, by the following vote: AYES: NOES: ABSENT: ATTEST: DAVID POTTER Chair, Board of Supervisors LEW C. BAUMAN Clerk of the Board of Supervisors By DARLENE DRAIN Clerk to the Board of Supervisors APPROVED AS TO FORM BY: Deputy County Counsel Page 11