MORATORIUM ON CREEKSIDE DEVELOPMENT - Referral from Board of Supervisors regarding adoption of an interim ordinance precluding creekside development in the unincorporated area of the County.

STAFF RECOMMENDATION: That the Planning Commission 1) Consider this report and its attachments; 2) Take public testimony; 3) Give staff direction on how to proceed; and 4) Continue the matter to its meeting of Monday, June 4, 2006, an evening meeting, for a final recommendation for Board of Supervisors action.

BACKGROUND: 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 asked Planning staff to present information regarding a possible moratorium on such development pending preparation of new County creek policies and programs. As noted in the attached material imposition of a moratorium is a two-step process. The first step is for the board to adopt as an urgency measure an interim ordinance prohibiting development as the Board's may determine. The Board does not need to provide public notice for such hearing, although the matter does appear on the agenda. The second step is for the Board to hold a noticed public hearing on the matter. At this hearing the Board may extend the moratorium for up to a total of two years from original imposition of the urgency ordinance. At this hearing the Board may lessen the extent of the moratorium, but may not expand it. The purpose of the moratorium is to preclude development that may be contrary to plans that the jurisdiction is in the process of preparing. Once such plans are completed, the Board may rescind the moratorium. However, once the moratorium is in place, the Board may not make exceptions to it; the only possible action is to rescind it completely. See Attachment A, April 13, 2006, Memo to the Board of Supervisors Transportation and Planning Committee from James Sorensen and Attachment B, April 20, 2006, letter to the Board of Supervisors from James Sorensen for full details of the process and Government Code language.

Staff presented information on this matter to the Board at its meeting on Thursday, May 5, 2006. Although not required to do so, the Board took public testimony from a number of individuals. Those supporting the immediate moratorium expressed concerns about further encroachments on creeks. They were concerned that the 1977 Specific Plan For Areas of Environmental Significance (copy included in the Commissioners' package) had not been implemented satisfactorily in the years since its adoption, and that without the immediate moratorium there could be future degradation of creeks in the County. Those opposing the moratorium were concerned about its impact on orderly development in the County. They felt that there should be more public process before the Board took any action. Several people were concerned specifically about projects in which they had already invested considerable time, money, and energy, including providing information that the County had requested.

At the end of the hearing the Board voted 4/0 (one Supervisor excused) to adopt an urgency interim ordinance precluding development within fifty feet of the bank of a creek throughout the unincorporated County area. The Board adopted the County Watercourse ordinance definition of creek: '...any conduit or appurtenant structure or any natural or man-made channel though 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 Board agreed to exempt projects that were either approved or for which an application had been filed as of the meeting date. The Board also voted to exempt agricultural activities as defined in the Watercourse Ordinance (See Attachment A for a copy of the Watercourse Ordinance definitions), as it made it clear that it did not want to impose any undue burden on agriculture. The Board applied the moratorium specifically to the entire unincorporated County area and to all creeks, be they in a natural or quasi-natural state or in some man-made condition, e.g., channelized or culverted.

As noted above this is a two-step process. It is County Counsel's opinion that under State law, the Board's final action may be less, but not more, restrictive. The Board consequently took a relatively restrictive approach in formulating the initial moratorium language, but was willing to entertain the possibility of loosening the restrictions when it discusses extension of the moratorium.

The ultimate goal in this effort is to preclude development that would be contrary to new County creek policies and programs. The Board has set up a task force to address this. The first meeting was Tuesday, May 9, 2006. Staff will report on that meeting at the Commission meeting.

ISSUES: The Planning Department has identified several issues that the Commission should address at a minimum. The following discussion supplements the discussion in Attachments A and B.

Portions of the County Where the Moratorium Should Apply: The Board applied the moratorium to the entire unincorporated County area with no exceptions. Staff suggested as an alternative that it only apply to the urban West County area, since the East County Area Plan (ECAP), as modified by Measure D, places very strict limits on development that can occur. In fact, Measure D applies not only to the East County area, but to rural areas of West County as well. At the May 4 Board hearing, several people specifically requested the Board to apply the moratorium to the entire County, which it did. However, the Board did make it clear that it wanted the Commission to be sensitive to agriculture in its final recommendation.

Area Within Which Development Would be Precluded: This issue has two parts. The first is a definition of 'creek'; the second is the distance from a creek within which no development could occur. The Board adopted a quite expansive definition of creek, essentially stating that a creek is anything through water flows. This includes, and the Board so specified, not only creeks in a natural or semi-natural state, but any watercourse (even channelized or culverted creeks). Staff does not know at this time the extent of the creek policies and programs that will evolve out of the task force process. Some jurisdictions, including Berkeley and Oakland, have encouraged daylighting of culverted creeks, and restoring them and channelized creeks to at least a semi-natural state, consistent with retaining flood control protections. The Commission should consider other possibilities, including excluding the extent to which it should cover creeks that are not in a natural state.

Staff looked at other definitions of creek. Originally staff considered the USGS blue line designation. However, this has problems in that it probably would not be extensive enough to meet the County's objective in that some streams that should be protected would not fall within this definition. The City of Oakland has a fairly comprehensive definition (see Attachment C), which the Commission could consider. However, that is a much more complex definition that the County's, and staff does not see that it is necessarily an improvement over the current Ordinance definition noted above. Staff is also aware of the series of creek maps that the Oakland Museum of California published in the 1990's and early 2000's. While probably more extensive and user-friendly than the USGS maps, staff feels that without considerable additional technical study, they may not provide the coverage that the Board desires. In addition, while they appear fairly thorough in the urban areas, they do not cover the rural areas of the County.

The other part of this issue is the distance from the creeks within which there should be no development. The Watercourse Ordinance defines the bank of the creek and establishes a twenty-foot setback, within which no development is allowed without a permit from the Director of Public Works. The Board set the setback for purposes of the moratorium at fifty feet from the top of bank, but appeared receptive to a lesser setback so long as it felt that the underlying purpose of the moratorium is met. Staff did a brief survey of other jurisdictions and found creek setbacks up to one hundred feet. Most were in the thirty to fifty foot range. Staff can do further research on this subject if the Commission so desires.

Activities and Projects Which Could be Exempt from the Moratorium: The Board exempted projects for which the County has granted a final approval, and also those for which an application has been filed as of May 4, the date of its action. That exemption included any subsequent permits or approvals that may be necessary to implement the ultimate approval. With all these projects, there would be the proviso that no subsequent approval could involve a variance from the Watershed Ordinance. The Board also voted to exempt agricultural operations, as defined in the Watercourse Ordinance, in order not to compromise agriculture.

The only other possibility that staff raised was to exempt projects that need only a ministerial approval, such as a grading or building permit. If the Commission recommends adding this exemption, staff recommends that it also be subject to the proviso that the permit not involve a variance or any waiver from the Watercourse Ordinance.

An issue that arose subsequent to the Board meeting is whether the moratorium would apply to public works projects. It was not staff's expectation that it would. The Planning Commission should clarify whether or not this is the case.

Prohibition on Development of Multi-family Housings: This is an issue to which the Commission should give considerable attention. A recent amendment to the Government Code section regarding moratoriums allows the County to include a prohibition on multifamily housing development in the initial urgency ordinance. However, the County may not include such housing in any extension of the moratorium unless it makes specific findings that such development would have '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. At this point, staff does not feel that there are 'identified written public health or safety standards, policies, or conditions' that would justify bringing multifamily housing under the moratorium. However, if Commissioners feel that that they can make such findings, staff would welcome their suggestions.

Depending on the extent of the area to be covered by the moratorium, this may not be a major issue, particularly if the moratorium primarily applies to creeks in a natural or semi-natural state. For the most part, such creeks do not exist in areas that are planned or zoned for multi-family development. In addition, virtually all multi-family development requires some type of discretionary review. This is usually either a Site Development Review or rezoning. The R-S District requires a Site Development Review where zoning allows five or more units. Rather than attempting to make the findings that the Government Code requires, staff would recommend that, as a supplement to the moratorium, the County adopt a policy that multifamily development, defined as five or more units, be exempt from the moratorium, but that any approval of such development not involve a waiver or variance from current creek setback requirements or, if outside the current setback area, have any impacts on the creek. Staff feels that this would meet the State requirement, but still address the need to preclude development that might be inimical to the eventual creek protection policy.

SPECIFIC PLAN FOR AREAS OF ENVIRONMENTAL SIGNIFICANCE: The County adopted this plan in May, 1977 as an implementation measure for portions of the General Plan. Staff has included this plan with the Commission's materials. The Plan states that 'The process of Site Development Review (SDR) is to be the major implementation method of this Specific Plan.' The Plan went on to state that areas of environmental significance were to be mapped according to explicit criteria, and become part of the official Zoning Map. One of these types of areas was riparian areas. The Plan discusses riparian areas on pages 5 through 9, and sets out criteria, management objectives, and policies for them. It states that they are to be 'studied jointly by the staff of Alameda County Planning Department and the Alameda Flood Control and Water Conservation District and the location and limits of Riparian Areas of Environmental Significance delineated subject to adoption by the County Planning Commission and County Board of Supervisors.' However, for various reasons (primarily financial) the mapping and studies described in the Specific Plan have never been undertaken.

STAFF RECOMMENDATION: Staff recommends that the Commission review the staff report and other material that staff may present at the hearing and the public testimony. At the conclusion of the public testimony, the Commission should give staff tentative direction regarding the parameters of the extension of the moratorium, and continue the matter to its next meeting, Monday, June 5, 2006, for additional public testimony and a final recommendation. That will allow for an evening meeting prior to the Commission's final action on this matter.

Staff is searching for various definitions of 'creek' and setback requirements in other jurisdictions for the Commission's review, and for future use by the County's creek task force. There appears to be quite a bit of material available; staff is looking for the most relevant. Staff has included one pertinent document, a staff report for the City of Berkeley Creeks Task Force, as Attachment D. That report reviews material from five jurisdictions, the Cities of Berkeley, Santa Barbara, Oakland, Santa Cruz, and San Luis Obispo, and also comments from the Regional Water Quality Control Board. Staff will attempt to organize additional material for the meeting.

Attachment A - Memo to the Board of Supervisors Transportation and Planning Committee from James Sorensen, April 13, 2006, including Government Code, and County Watercourse Ordinance definitions.
Attachment B - Letter to the Board of Supervisors from James Sorensen, April 20, 2006
Attachment C - City of Oakland definition of creek
Attachment D - Berkeley Creeks Task Force Staff Report, June 20, 2005
Attachment E - Letter to Board of Supervisors from California Regional Water Quality Control Board, May 8, 2006