Chapter 15.25
MANDATORY CONSTRUCTION WASTE REDUCTION, DISPOSAL, AND RECYCLING, AND WATER EFFICIENT LANDSCAPING
Sections:
15.25.030 Enforcement authority.
15.25.040 Applicable projects.
15.25.050 Applications and fees for construction waste management plans.
15.25.070 Construction waste diversion requirement.
15.25.080 Documentation requirements.
15.25.090 Model Water Efficient Landscaping Ordinance (MWELO).
15.25.110 Inspections and investigations.
15.25.010 Purpose.
The city council finds as follows:
A. The purpose of this chapter is to appoint and designate the community development department as the enforcement authority to enforce the provisions of the California Integrated Waste Management Act of 1989 that have been promulgated in Section 40000 of the California Public Resources Code as amended, supplemented, superseded, and replaced from time to time. (Ord. 22-12 § 1).
15.25.020 Definitions.
The following words and phrases, whenever used in this chapter, shall be construed as hereafter set out, unless it shall be apparent from the context that they have a different meaning:
“Applicant” shall mean any individual, firm, contractor, limited liability company, association, partnership, political subdivision, government agency, municipality, industry, public or private corporation, or any other entity whatsoever that applies to the city for the applicable permits to undertake any construction or demolition project within the city.
“C&D” shall mean construction and demolition debris.
“Construction” shall mean the building of any facility or structure or any portion thereof, including any tenant improvements to an existing facility or structure.
“Construction and demolition waste materials” shall mean:
1. Discarded materials generally not considered water-soluble and nonhazardous in nature, including but not limited to steel, copper, aluminum, glass, brick, concrete, asphalt material, pipe, gypsum, wallboard, roofing materials and lumber from the construction or demolition of a structure as part of a construction or demolition project or from the renovation of a structure;
2. Landscaping, including rocks, soils, noninfectious tree remains, trees, and other vegetative matter that normally results from land clearing, landscaping and development operations for a construction project;
3. Remnants of new materials, including but not limited to: cardboard, paper, plastic, wood, and metal scraps from any construction and/or landscape project;
4. Other nonhazardous wastes generated at construction or demolition projects provided such amounts are consistent with best management practices of the industry.
“Contractor” shall mean any person or entity holding, or required to hold, a contractor’s license of any type under the laws of the state of California, or who performs (whether as contractor, subcontractor, owner-builder, or otherwise) any construction, demolition, remodeling, renovation, or landscaping service relating to buildings or accessory structures within the city of Benicia.
“Demolition” shall mean the decimating, razing, tearing down or wrecking of any facility, structure, pavement or building, whether in whole or in part, whether interior or exterior.
“Deposit” shall mean a cash dollar amount provided to the community development department at the time of submitting the diversion plan for those applicants where prior projects have been determined as good faith effort or noncompliance status. Refunds of the deposits (without interest) are dependent on the level of compliance with this chapter as described in BMC 15.25.080. Forfeited deposits shall be deposited in the city-designated recycling program fund to be used for outreach and implementation of the department’s recycling program.
“Designated recyclable and reusable materials” shall mean and include but not be limited to:
1. Corrugated cardboard;
2. Inert materials generally used in construction including, but not limited to, asphalt, concrete, rock, stone, mortar and brick;
3. Metals, including all metal scrap such as, but not limited to, pipes, siding, window frames, door frames and fences;
4. Roofing materials including wood shingles and shakes as well as asphalt, stone and slate based roofing material;
5. Salvageable materials and structures, including, but not limited to, doors, windows, fixtures, hardwood flooring, sinks, bathtubs and appliances;
6. Vegetative materials, including trees, tree parts, shrubs, stumps, logs, brush or any other type of plants that are cleared from a site for construction or other use;
7. Wallboard materials including gypsum and drywall;
8. Wood materials, including any and all dimensional lumber, fencing or construction wood that is not chemically treated, creosoted, CCA pressure treated, contaminated or painted; and
9. Any other materials that the city determines can be diverted due to the identification of a recycling facility, reuse facility, or market accessible from the city.
“Diversion” shall mean the use of material for any purpose other than disposal to include but not be limited to reuse and recycling.
“Enforcement action” shall mean an action of the jurisdiction to address noncompliance with this chapter including, but not limited to, issuing administrative citations, fines, penalties or using other remedies.
“Good faith effort” shall mean and be applicable to projects where the availability of markets for construction and demolition debris was a determining factor in not meeting full compliance and where sufficient evidence of the project through documented efforts, such as weight receipts, demonstrates the applicant attempted to divert construction and demolition debris but did not meet full compliance.
“MWELO” refers to the Model Water Efficient Landscape Ordinance (MWELO), 23 CCR, Division 2, Chapter 2.7.
“Notice of violation (NOV)” shall mean a notice that a violation has occurred that includes a compliance date to avoid an action to seek penalties, or as otherwise defined in 14 CCR Section 1892(a)(45) or further explained in 14 CCR Section 18995.4.
“Organic waste” shall mean solid wastes containing material originating from living organisms and their metabolic products, including but not limited to food, green material, landscaping and pruning waste, organic textiles and carpets, lumber, wood, paper products, printings and writing paper, manure, biosolids, digestate, and sludges, or as otherwise defined in 14 CCR Section 18982(a)(46). Biosolids and digestate are as defined by 14 CCR Section 18982(a).
“Project” shall have the meaning set forth in BMC 15.25.040.
“Recycling” shall mean the process of collecting, sorting, cleansing, treating and reconstituting materials that would otherwise become solid waste and returning them to the economic mainstream in the form of a raw material for new, reused or reconstituted products which meet the quality standards necessary to be used in the marketplace.
“Renovation” shall mean any change, addition, or modification in an existing structure.
“Reuse” shall mean further or repeated use of construction or demolition debris.
“Universal waste” shall include items such as fluorescent lamps and ballast and mercury-containing thermostats as well as other California-prohibited universal waste materials that require proper disposal to ensure diversion from landfills.
“Waste management plan” shall mean a completed city-provided form submitted before the issuance of a building and/or demolition permit, approved by the community development department for the purpose of compliance with this chapter.
“Waste management report” shall mean a completed city-provided program submitted after demolition or construction, as a precedent to final inspection and issuance of any certificate of occupancy, approved by the community development department for the purpose of compliance with this chapter. (Ord. 22-12 § 1).
15.25.030 Enforcement authority.
A. Violation of any provision of this chapter shall constitute grounds for issuance of a notice of violation and assessment of a fine by the Benicia enforcement official or representative. Enforcement actions under this chapter are issuance of an administrative citation and assessment of a fine. The city of Benicia’s procedures on imposition of administrative fines are hereby incorporated in their entirety, as modified from time to time, and shall govern the imposition, enforcement, collection, and review of administrative citations issued to enforce this chapter and any rule or regulation adopted pursuant to this chapter, except as otherwise indicated in this chapter.
B. Other remedies allowed by law may be used, including civil action or prosecution as misdemeanor or infraction. Benicia may pursue civil actions in the California courts to seek recovery of unpaid administrative citations. Benicia may choose to delay court action until such time as a sufficiently large number of violations, or cumulative size of violations, exist such that court action is a reasonable use of Benicia staff and resources.
C. Responsible Entity for Enforcement.
1. Enforcement pursuant to this chapter may be undertaken by the Benicia enforcement official, which may be the city manager or their designated entity, legal counsel, or combination thereof.
2. Enforcement may also be undertaken by an enforcement official, designated by the city of Benicia, in consultation with the Benicia enforcement official.
3. The Benicia enforcement official(s) will interpret this chapter; determine the applicability of waivers if violation(s) have occurred; implement enforcement actions; and determine if compliance standards are met.
4. The Benicia enforcement official(s) may issue notices of violation(s).
D. Process for Enforcement.
1. The Benicia enforcement officials and/or their designee will monitor compliance with this chapter randomly and through compliance reviews, investigation of complaints, and an inspection program. BMC 15.25.110 establishes jurisdiction’s right to conduct inspections and investigations.
2. Jurisdiction may issue an official notification to notify regulated entities of its obligations under this chapter.
3. Absent compliance by the respondent within the deadline set forth in the notice of violation, Benicia shall commence an action to impose penalties, via an administrative citation and fine, pursuant to BMC 15.25.100, Penalties.
4. Notices shall be sent to the owner at the official address of the owner maintained by the tax collector for Benicia or, if no such address is available, to the owner at the address of the dwelling or commercial property or to the party responsible for paying for the collection services, depending upon available information. (Ord. 22-12 § 1).
15.25.040 Applicable projects.
Unless otherwise exempt pursuant to BMC 15.25.060, projects subject to the requirements of this chapter include any project which consists of one or more of the following:
A. Construction of a new commercial, industrial or institutional building or structure that is equal to or greater than 5,000 square feet;
B. Construction of multifamily dwellings, such as duplexes, where two or more units are under construction at a given time, or apartment complexes, where three or more units are under construction at a given time;
C. Construction of new residential dwellings, each dwelling equal to or greater than 2,000 square feet, in a subdivision housing tract where a homebuilder has a construction phase that includes multiple residential lots (two or more) under construction at a given time;
D. Demolition of a building or structure, or a portion thereof, that is equal to or greater than 1,500 square feet (residential, multifamily, commercial, industrial or institutional);
E. Renovation, addition or alteration of any commercial, industrial, institutional or multifamily building or structure that is equal to or greater than 1,000 square feet; and
F. Commercial and residential projects with construction costs estimated at $100,000 or greater (labor and materials). (Ord. 22-12 § 1).
15.25.050 Applications and fees for construction waste management plans.
No person shall commence a project or dispose of construction waste from a project which is subject to this chapter, except for an exempt project, without first submitting and obtaining an approved Phase I waste management plan from the community development department and paying all the fees for such review according to the current master fee schedule. (Ord. 22-12 § 1).
15.25.060 Exemptions.
The following projects shall not be subject to the provisions of this chapter:
A. Project contaminated by hazardous substances or hazardous waste as defined by the state or federal law;
B. Land clearing debris contaminated by infectious disease or pathogen-spreading organisms as defined by the county agricultural commissioner and subject to approved county agricultural commissioner disposal methods;
C. Construction or renovation of one residential dwelling, or two or more residential dwellings where each dwelling is less than 2,000 square feet;
D. Demolition of a building or structure, or a portion thereof, that is less than 1,500 square feet;
E. Emergency work (addition, alteration, construction, demolition, renovation performed in conjunction with an emergency (i.e., fire, earthquake, flood) or a building or structure deemed substandard by the California Building Code through the chief building official);
F. Renovation, addition, or alteration of any commercial, industrial, institutional or multifamily building structure that is less than 1,000 square feet;
G. Abandonment of in-ground pools; and
H. Installation of prefabricated structures and equipment where the community development department determines that combined weight of construction disposal does not exceed two pounds per square foot of building area may be deemed to meet the minimum percent diversion requirement set forth in BMC 15.25.070, Construction waste diversion requirement. (Ord. 22-12 § 1).
15.25.070 Construction waste diversion requirement.
Sixty-five percent of nonhazardous construction and demolition debris and 100 percent of excavated soil and noninfectious land clearing debris generated from every applicable construction, renovation, or demolition project shall be diverted from going to landfills by using recycling, reuse and diversion programs. Reports will be required for verification of such activities. Acceptable diversion methods are:
A. Taking all mixed or segregated construction and demolition debris to an approved facility, which meets the diversion requirements of this chapter on every load. Other such mixed facilities may be utilized if they are city-approved; or
B. Utilizing a waste management company that can provide verifiable documentation that the percentage of construction and demolition waste material diverted from the landfill complies with this chapter; or
C. Source separating designated materials, such as cardboard, wood, metals, green waste, wallboard, tile, concrete, and other easily recycled materials, and directing them to recycling facilities, approved by the city, and taking the remainder (but no more than 45 percent by weight or yardage) to a landfill for disposal. (Ord. 22-12 § 1).
15.25.080 Documentation requirements.
The following plan will need to be submitted and approved prior to issuance of a permit:
A. Every contractor shall submit a properly completed waste management plan, on a form prescribed by the city, as a requirement of the construction and demolition permit process. The plan can cover multiple building permits for lots where construction activity is occurring at the same time by the same applicant. Separate plans must be submitted for each batch of building permits requested. The waste management plan shall identify the materials to be recycled or reused and/or disposed of and shall list facilities and providers to be used. An administrative fee for each requested permit and, if applicable, a corresponding deposit must be submitted with the waste management form.
B. Notwithstanding any other provisions of this title, no construction or demolition permit shall be issued for any project as defined in BMC 15.25.040, Applicable projects, unless and until the community development department has approved the waste management plan. The community development department shall only approve a waste management plan if he or she determines that it contains all the information set forth in subsection (A) of this section. If the community development department determines that all the above conditions have been met, he or she shall mark the waste management plan “Approved,” return a copy of the plan to the applicant and notify the building division that it has been approved.
C. If the community development department determines that the waste management plan is incomplete, they shall return it to the applicant marked “Denied” or “Further Explanation Required.” The applicant must then submit additional information before the waste management plan can be reviewed again and the construction or demolition permit issued. The applicant may resubmit the waste management plan within 180 calendar days of permit application without forfeiting the administrative fee.
D. The following reports will need to be submitted and approved prior to issuance of final approval or certificate of occupancy:
1. Final report with all waste, recycling, donation, and salvage receipts due no later than 30 days following the completion of a construction or demolition project. The contractor shall, as a condition of final approval and for issuance of any certificate of occupancy, submit a final waste management report to the community development department that demonstrates compliance with the requirements of this chapter.
2. The documentation shall consist of photocopies of receipts and weight tags or other records of measurement or equivalent documentation from recycling companies, deconstruction contractors, and landfill and disposal companies.
3. The contractor’s approved diversion report shall be completed by recording and confirming the type of debris diverted and the facilities to which it was taken. Receipts from vendors or facilities shall clearly state the project title and date. If the receipt provides information for multiple projects, the project titles and the amounts of materials for each project must be clearly identified. The contractor shall sign the completed waste management report to certify its accuracy as part of the documentation of compliance.
4. All documentation submitted pursuant to this section is subject to verification by the community development department.
5. It is unlawful for any person to submit documentation to the community development department under this section which that person knows to contain any false statements, including but not limited to false statements regarding tonnage of materials recycled or diverted, or to submit any false or fraudulent receipt or weight tag or other record of measurement. (Ord. 22-12 § 1).
15.25.090 Model Water Efficient Landscaping Ordinance (MWELO).
Property owners or their building or landscape designers, including anyone requiring a building or planning permit, plan check, or landscape design review from the jurisdiction, who are constructing a new (single-family, multifamily, public, institutional, or commercial) project with a landscape area greater than 500 square feet, or rehabilitating an existing landscape with a total landscape area greater than 2,500 square feet, shall comply with Sections 492.6(a)(3)(B), (C), (D), and (G) of the MWELO, including sections related to use of compost and mulch as delineated in this section.
A. The following compost and mulch use requirements that are part of the MWELO are now also included as requirements of this chapter. Other requirements of the MWELO are in effect and can be found in 23 CCR, Division 2, Chapter 2.7.
B. Property owners or their building or landscape designers that meet the threshold for MWELO compliance outlined in subsection (A) of this section shall:
1. Comply with Sections 492.6(a)(3)(B), (C), (D) and (G) of the MWELO, which requires the submittal of a landscape design plan with a soil preparation, mulch, and amendments section.
C. Persons applying for a permit from the jurisdiction for new construction and building additions and alterations shall comply with the requirements of this section and all required components of the California Green Building Standards Code, 24 CCR, Part 11, known as CALGreen, as amended, if its project is covered by the scope of CALGreen.
D. Where five or more multifamily dwelling units are constructed on a building site, provide readily accessible areas that serve occupants of all buildings on the site and are identified for the storage and collection of blue container and green container materials, consistent with the three, three-plus, or two-container collection program offered by the jurisdiction, or comply with provision of adequate space for recycling for multifamily and commercial premises pursuant to Sections 4.408.1, 4.410.2, 5.408.1, and 5.410.1 of the California Green Building Standards Code, 24 CCR, Part 11.
E. For landscape installations, compost at a rate of a minimum of four cubic yards per 1,000 square feet of permeable area shall be incorporated to a depth of six inches into the soil. Soils with greater than six percent organic matter in the top six inches of soil are exempt from adding compost and tilling.
F. For landscape installations, a minimum three-inch layer of mulch shall be applied on all exposed soil surfaces of planting areas except in turf areas, creeping or rooting ground covers, or direct seeding applications where mulch is contraindicated. To provide habitat for beneficial insects and other wildlife up to five percent of the landscape area may be left without mulch. Designated insect habitat must be included in the landscape design plan as such.
G. Organic mulch materials made from recycled or post-consumer materials shall take precedence over inorganic materials or virgin forest products unless the recycled post-consumer organic products are not locally available. Organic mulches are not required where prohibited by local fuel modification plan guidelines or other applicable local ordinances.
H. The MWELO compliance items listed in this section are not an inclusive list of MWELO requirements; therefore, property owners or their building or landscape designers that meet the threshold for MWELO compliance outlined in subsection (A) of this section shall consult the full MWELO for all requirements.
I. If, after the adoption of this chapter, the California Department of Water Resources, or its successor agency, amends 23 CCR, Division 2, Chapter 2.7, Sections 492.6(a)(3)(B), (C), (D), and (G) of the MWELO, September 15, 2015, requirements in a manner that requires jurisdictions to incorporate the requirements of an updated MWELO in a local ordinance, and the amended requirements include provisions more stringent than those required in this section, the revised requirements of 23 CCR, Division 2, Chapter 2.7 shall be enforced. (Ord. 22-12 § 1).
15.25.100 Penalties.
For projects determined noncompliant by the community development department, a penalty of $1,000 or one percent of the project valuation, whichever is less, will be assessed to all construction and demolition projects. For projects determined to have a “good faith effort,” the community development department has the discretion to reduce the minimum penalty by 50 percent for first-time offenders and 25 percent for second-time offenders. Repeat offenders, three violations or more, shall be charged the full penalty amount for noncompliant projects. Final approvals and a certificate of occupancy will not be issued until the appropriate penalty has been paid in full as described in this section and all penalties shall be nonrefundable.
A. The following factors shall be used to determine good faith effort:
1. The nature, circumstances, and severity of the violation(s).
2. The violator’s ability to pay.
3. The willfulness of the violator’s misconduct.
4. Whether the violator took measures to avoid or mitigate violations of this chapter.
5. Evidence of any economic benefit resulting from the violation(s).
6. The deterrent effect of the penalty on the violator.
7. Whether the violation(s) were due to conditions outside the control of the violator.
B. Compliance Deadline Extension Considerations.
1. Benicia may extend the compliance deadlines set forth in a notice of violation issued in accordance with this section if it finds that there are extenuating circumstances beyond the control of the respondent that make compliance within the deadlines impracticable, including the following:
a. Acts of God such as earthquakes, wildfires, flooding, and other emergencies or natural disasters;
b. Delays in obtaining discretionary permits or other government agency approvals. (Ord. 22-12 § 1).
15.25.110 Inspections and investigations.
City of Benicia representatives, its designated entity, and/or designee are authorized to conduct any inspections or other investigations as reasonably necessary to further the goals of this chapter, subject to applicable laws. Any records obtained by a jurisdiction during its inspections and other reviews shall be subject to the requirements and applicable disclosure exemptions of the Public Records Act (PRA) as set forth in Government Code Section 6250 et seq. (Ord. 22-12 § 1).
15.25.120 Appeals.
Any person wishing to appeal a decision made under this chapter or an administrative citation containing a penalty for an uncorrected violation may submit a written appeal to the building appeals board, provided the appeal is made in writing and filed with the building official in accordance with Chapter 1.44 BMC, and that failure to appeal will constitute a waiver of all rights to an administrative hearing and determination of the matter. (Ord. 22-12 § 1).
15.25.130 Effective date.
The ordinance codified in this chapter shall be effective commencing on February 3, 2022. (Ord. 22-12 § 1).