April 26, 2006

May 4, 2006

Board of Supervisors
Administration Building
1221 Oak Street, Fifth Floor
Oakland, California 94612

Dear Board Members:

SUBJECT: Discussion and Possible Adoption, as an Urgency Measure, of an Interim Ordinance Prohibiting Creekside Development in the Unincorporated Area of the County.


BOS Transportation and Planning Committee: The Committee (with one member absent) directed staff to bring forward a draft interim ordinance prohibiting creekside development in Alameda County.

Planning Department: In response to the direction of the Transportation and Planning Committee, staff has developed the following recommendations: 1) adopt a resolution making the findings required for adoption of an urgency interim ordinance prohibiting creekside development; 2) adopt an Interim Ordinance prohibiting processing and approval of new development applications for construction within defined creek corridors, for a period of forty-five days; 3) refer the matter to the Planning Commission for discussion at its May 15, 2006, meeting; and 4) set public hearing (on or before Friday, June 16, 2006) to consider extending the interim ordinance.


In the course of public review of several recent development projects in the County, the issue of development along creeks has arisen. Based on this, the Board has asked Planning Department staff to present information regarding a possible moratorium on such development pending development of a new creek policy for portions of unincorporated Alameda County. (A process to develop such a policy has been initiated by members of the Board of Supervisors; the kickoff meeting for this process will be held on May 9, 2006).

Adoption of a moratorium is a two-step process. State law allows the legislative body of a city or county to

...adopt as an urgency measure an interim ordinance prohibiting any uses which may be in conflict with a contemplated general plan, specific plan, or zoning proposal which the legislative body, planning commission or the planning department is considering or studying or intends to study within a reasonable time. [Government Code § 65858]
The Board must find that there is a (current and immediate threat to the public health, safety, or welfare, and that the approval of additional subdivisions, use permits, variances, building permits, or any other applicable entitlement for use...would result in that threat...(. Staff believes that the Board can make the findings as noted in the attached draft resolution and ordinance, in that approving development prior to adoption of the final policy could subvert the planning process by allowing development that might be contrary to the final policy, and thus make it difficult to implement the overall policy.

This urgency measure does not require any public notice or hearing, but does require a four-fifths vote of the body for adoption and may be in effect no longer than forty-five days. The Board may extend the ordinance for ten months and fifteen days, after giving notice and holding a public hearing, and thence for one year, for a total of two years. Alternatively, the Board can extend the ordinance for a full twenty-two months and fifteen days. In no event may the moratorium last longer than two years. Each extension requires a four-fifths vote for passage. The Board should be aware that, based on past history, the planning process could last longer than two years, yet there can be no further extensions of the moratorium. See the attached memo to the Board Transportation and Planning Committee dated April 13, 2006, for a full discussion of the moratorium process.

Staff has scheduled a public hearing on Tuesday, June 13, 2006, for the Board to consider an extension of this ordinance, and will provide notice of that hearing. County Counsel has indicated that the Board could limit the scope of the urgency interim ordinance at the time of the extension, but does not feel that the Board could expand it without starting the process anew. For this reason, if the Board decides to adopt the urgency ordinance, it should make it as broad as it thinks appropriate, but remain open to narrowing its scope as a result of public comment and Planning Commission recommendations. As an alternative, the Board could defer action on the urgency ordinance to a later date at which time more information or refinement may be available.

TRANSPORTATION AND PLANNING COMMITTEE ACTION: On Monday, April 17, 2006, the Board's Transportation and Planning Committee reviewed this matter. One person spoke on the matter, citing her longstanding concerns regarding development along creeks. She requested that the moratorium apply throughout the entire unincorporated County area, not just to the West County area as staff had suggested, on the basis that Measure D does not specifically protect creeks. At the conclusion of the hearing, the Committee, with Supervisor Haggerty excused, directed staff to bring the matter to the full Board for consideration of an urgency measure at its May 4, 2006, meeting. The Committee directed staff to make the urgency moratorium as extensive as possible with the idea that the full Board could cut it back if it so desired, and also to refer the matter to the Planning Commission for public hearing and recommendation on possible extension of the moratorium for the full two year period.

ISSUES AND CONSIDERATIONS: There are several issues that the Board must first resolve regarding the extent of the moratorium. These include the areas of the County where the moratorium would apply, the specific land area that it would cover, and the actions to which it would apply.

Portions of the County Where the Moratorium Should Apply: For the first issue, staff has identified three alternative approaches. The most extensive, as recommended by the Transportation and Planning Committee, is to include the entire unincorporated area. As noted in the Committee hearing, Measure D does not provide specifically for creek protection. However, the East County Area Plan (ECAP), which includes amendments made by Measure D, includes policies on biological resources, water quality, and storm drainage and flood control (among others). Perhaps more importantly, the land use constraints that Measure D places on areas under its ambit preclude the sort of creekside development dilemmas that have recently prompted concern in urbanized portions of the West County. For this reason, staff recommends that the Board also consider a second option, i.e. applying the moratorium only to areas of the West County not covered by Measure D; or a third approach which would apply the moratorium only to areas not covered by ECAP.

Area Within Which Development Would be Precluded: The second issue to discuss is the specific land area in which the defined development would be precluded. First, a definition is needed for "creek" and the setback within which development would be restricted or precluded. The definition of watercourse in the County's existing Watercourse Protection Ordinance (General Ordinance Code section 13.12.030) provides a point of departure, i.e. 'any conduit or appurtenant structure or any natural or man-made channel through which water flows continuously or intermittently in a definite direction and course or which is used for the holding, delay or storage of water.'

The existing code goes on to state that natural channels governed by the ordinance are generally limited to those delineated by the U.S. Geological Survey as "blue-line" streams, which may be further limited to those channels having a watershed of 50 acres or more, except where the Director of Public Works determines that a smaller watershed-based stream would be appropriately regulated by the ordinance. The code then establishes a required setback for development from the channel, measured as 20 feet from the top of bank (which may be either the natural bank or a theoretical 2:1 slope from the toe of the bank, whichever is more restrictive). Development is generally defined to include any act of filling or excavating natural material, or constructing a structure that requires a permit. The existing code also allows for certain exemptions such as for agricultural activity, routine maintenance, and emergency work.

A number of possible definitions can be derived from this discussion: Applicable watercourses could be limited to USGS 'blue-line' streams. Alternatively, or in conjunction with the blue-line approach, a watershed standard could be applied, based either on the 50 acre figure cited in the Watercourse Ordinance or some other figure. A lower watershed figure would obviously net a higher number of watercourses; however, staff would argue that channels with a watershed of less than 20 acres would be inappropriate for consideration.

Upon defining the array of affected watercourses, the Board also needs to consider how much area to include on either side of a channel, measured from top of bank. An informal survey of local jurisdictions showed an array of approaches, with distances up to 100 feet from top of bank. Most figures were lower than this, and staff believes that for the purposes of the moratorium something in the range of 30-50 feet would be more appropriate (note that the current watercourse ordinance provides for a 20-foot setback). Within the area defined, restrictions would preclude all development as defined in the existing watercourse ordinance, and would allow for the same exemptions as currently exist.

A related issue that the Planning Commission could address is whether the moratorium should apply only to creeks that exist now in a natural or essentially natural state, or whether it should extend to creeks that have been channelized or culverted. To this end, the Board should discuss whether they envision the ultimate creek policy to extend to restoration of channelized creeks to a natural or semi-natural state, or to daylighting culverted creeks. If the Board considers that the eventual policy would include this, it should consider using a more extensive watercourse definition.

During the pending Planning Commission review during the 45-day interim period, staff will look at possible refinements, including definitions of what constitutes a "creek" and what an appropriate setback might be. However, staff believes that a setback greater than one hundred feet from the top of the creek bank would not be warranted at this time. It should be noted that if the Board adopts this approach, it would not preclude development on larger properties so long as the specific development is farther than one hundred feet from the creek, although access to and through properties could be limited if a creek were to be located close to a necessary roadway. By the same token, it could preclude development on properties, or portions thereof, that do not contain a creek but are within the designated one-hundred foot corridor.

Activities and Projects Which Could be Exempt from the Moratorium: The third major aspect to be considered is what types of activities would be precluded by and what activities would be exempt from the moratorium. The most restrictive approach would be to preclude any development in the area covered, as defined by the two previous decision points (East/West County, and Creek Setback). Should the Board decide to take this approach, staff recommends using the definition of development in the County Watercourse Protection Ordinance, Alameda County Ordinance Code 13.12.020 cited above and attached for reference. This would include issuance of building permits in the affected area. However, staff would suggest that an approach be taken, which exempts projects that have received a final planning approval. This would include final actions on rezonings, tentative subdivision maps, site development reviews, conditional use permits, or variances. Staff has drafted the resolution to reflect this, and by extension such planning approvals authorize grading and building permits necessary for implementation of the approved projects.

Another issue that the Board must address is whether the moratorium would cover projects for which a discretionary permit as listed above has been applied for but has not yet been granted, i.e. projects in the "pipeline". Staff recommends exempting any such project that has a complete application submitted to the Planning Department or for Public Works permits such as grading and building, with the proviso that it involve no variance from nor waiver of any standard addressing watercourse protection. Depending on the area to which the Board decides to apply the moratorium, the Board may also wish to exempt agricultural operations from its coverage. Again, for the sake of uniformity, staff recommends that terms such as development, agricultural operations, etc., follow the Watercourse Protection Ordinance definitions.

Prohibition on Development of Multi-Family Housing: The last issue is that State law now requires that to preclude 'projects with a significant component of multifamily housing', the Board must make very specific findings that such development would have a 'significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions', that the moratorium is necessary to mitigate such impacts, and that there is no feasible alternative to mitigate the impacts. While this is not necessary for initial adoption of the urgency forty-five day moratorium, it is necessary for any extension. This will be a major point of discussion at the Planning Commission consideration of the matter. At this point, staff does not believe that the Board could make such findings and that multi-family housing should be exempted from the extension. However, staff will investigate ways that approval of multi-family housing, which almost always requires discretionary review, could include conditions that would achieve the Board goals expressed in its moratorium action, and which could be included as a corollary to the Board's action.

Planning Commission Hearing(s): As noted, staff recommended that the Board refer the matter to the Planning Commission to hold public hearings and make a recommendation to the Board regarding the final action. The Transportation and Planning Committee agreed with this recommendation. Staff proposes to bring this to the Commission at its May 15, 2006, meeting for a full hearing. Although this is an afternoon meeting, staff feels that it should come before the Commission as soon as possible in order to allow for a second hearing if necessary. If the Commission does elect to continue the matter, it would continue it to its June 5, 2006, meeting, which would be a night meeting. Since the Board has forty-five days from adoption of the initial urgency measure to extend the moratorium, this would mean the Board could hear the extension at its Tuesday, June 13 meeting.

ADDITIONAL COMMENTS: The moratorium may be in effect for no longer than twenty-four months. The formal process for developing the creek policy will begin at a public meeting on May 9, 2006. Staff's best estimate is that the process, including key implementation measures, will take between eighteen and twenty-four months to complete. This would coincide with the moratorium.

No environmental review is necessary for this action. Since the action is to preclude development, there is no possibility that the activity in question may have a significant effect on the environment. Staff will file a Notice of Exemption for this action.


James E. Sorensen
Director, Community Development Agency


T&P memo, including Government Code section 65858
Definitions from Watercourse Ordinance