June 8, 2006

Agenda Item # _____
June 15, 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 Extension of an Interim Ordinance Prohibiting Creekside Development in the Unincorporated Area of the County.


Planning Commission: The Planning Commission tied 3/3 (one member excused) on a motion to extend the moratorium. In a subsequent series of votes, the Commission voted 6/0 (one member excused) to refine the Board's initial action as noted below.

Planning Department: That your Board review this letter, all attached material, and the Planning Commission's recommendation. If after taking public testimony, the Board wishes to extend the moratorium, it should give specific direction on each of the topics identified below:


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 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 was held on May 9, 2006). Staff described the process in its Board letter of April 26, 2006, and other supporting documents. Please refer to those documents for a full explanation and details of the process.

At its meeting of May 4, 2006, 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, as it made it clear that it did not want to impose any undue burden on agriculture. The Board applied the moratorium 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). The Board also referred the matter to the Planning Commission for public hearings on the issue, and for a recommendation on whether to extend the moratorium (and, if so, on the parameters of the moratorium).

The Planning Commission held a preliminary meeting on Monday, May 15, 2006. At that hearing the Commission heard a staff presentation that summarized the Board action and identified issues that had arisen after the Board action, including comments provided by the Public Works Agency. The Commission then took public testimony, which was divided on the issue. The Commission then continued the matter to Monday, June 5, 2006, to obtain additional information from staff, additional public testimony, and a final recommendation on the matter.

At the June 5 meeting, the Commission took additional public testimony, which was again quite divided. At the outset of the Commission's action, it deadlocked 3/3 (one member excused) on a motion to recommend extension of the moratorium, thus making no specific recommendation on it. However, the Commission proceeded to consider each aspect of the moratorium individually should the Board act to extend it. Each subsequent recommendation passed 6/0 (specifics are discussed below). Therefore, while the Commission made no recommendation on whether the Board should extend the moratorium, it did make specific recommendations on the terms of the moratorium should the Board vote to extend it.

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

Portions of the County Where the Moratorium Should Apply: The Board applied the emergency moratorium to the entire unincorporated County area. The Planning Commission recommended that it only apply to the urban West County area, defined as the area outside the Measure D boundary. This would exempt virtually the entire East County area, plus the canyon areas north and east of Castro Valley and Fairview. It would also have the practical effect of exempting all agricultural operations (which the Commission specifically supported as noted below). It should be noted that the supporters of the moratorium continued to urge that the moratorium apply County-wide.

Area Within Which Development Would be Precluded: The Board voted to use the existing County Watercourse Ordinance definition of creek, defined as 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 Commission voted to define 'creek' as watercourses in their natural or semi-natural state, not to include concrete channels or culverts. This definition is much more limited in scope than the Board's initial action in establishing the emergency moratorium.

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 established 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. The Commission recommended that the setback be twenty feet from the top of the bank, in effect reaffirming the Watercourse Ordinance's parameters. However, unlike the current situation, the moratorium would allow no variance from or waiver of provisions of the Watercourse Ordinance, i.e., that there could be no exceptions granted by the Public Works Director to the twenty-foot setback.

Activities and Projects Which Could be Exempt from the Moratorium: Another issue that the Commission discussed was the Board's exemption for approved projects or projects for which an application was filed prior to May 4, 2006. The moratorium as it now stands excludes:

The Board also voted to exempt agricultural operations, as defined in the Watercourse Ordinance, in order not to compromise agriculture.

One issue that arose subsequent to the Board meeting is whether the moratorium would apply to public works projects. Planning Staff's assumption was that it would not, since it applies to 'processing of development applications', the implication being private development applications. In addition, the Public Works Agency submitted a list of types of actions it felt should be exempt. The Commission considered that list, as well as other possibilities that staff raised, and voted that the following types of projects be exempted from the moratorium (see attached Planning Commission Report, June 5, 2006, for a complete discussion of the various types of projects):

In addition, the Commission adopted the following staff suggestions for exemption from the moratorium (again, see Planning Commission Report, June 5, 2006, for full details): Besides the above, the Commission recommended that the moratorium not apply to single family residential development. This would include not just regular maintenance and report, including emergency construction, but also construction of new single family residences on existing lots (as opposed to creation of new lots through subdivision), or construction of accessory structures such as swimming pools. The Commission felt that this would alleviate a number of concerns that individuals expressed at the Commission's hearings.

The Commission also reinforced the Board's exemption of agricultural operations. Again, they felt that this would alleviate considerable concerns. In particular, the representative of the Resource Conservation District was concerned that she would not be able to use to implement projects in the agricultural areas that would in fact be beneficial to riparian areas.

Other Issues Identified by the Commission: In addition to the above issues, the Commission addressed the following points.

Time period of moratorium: The Commission voted to recommend that the Board extend the moratorium for a period of sixteen months and fourteen days, to November 3, 2007. The Commission noted that the City of Berkeley accomplished its review in eighteen months, and wanted to set that as a goal for the County. In conjunction with this, the Commission encouraged the task force to work with all due speed to accomplish its purpose and bring forth recommendations for creek and riparian area protection, based on maximum public input, for public review and eventual adoption.

Alternatives to a moratorium: Staff also discussed with the Commission the possibility of alternatives to a moratorium. One concept presented by staff was adoption of a policy requiring Site Development Review -- with the Commission rather than the Planning Director as the approval authority -- for all projects that might affect watercourses but that would not otherwise be subject to discretionary review such as subdivision, rezoning, etc. Action on such SDRs could include a finding of consistency with applicable General Plan and Specific Plan policies, as well as other County policies regarding creeks and riparian areas (or other findings as the Commission may feel appropriate). The policy could include a requirement that any project within some specified distance from a watercourse include a preliminary review to determine what, if any, watercourse or riparian issues might arise. This review would involve all relevant agencies (Federal, State, regional, and local). It would be at the very early stage of project review, and give these agencies a chance to determine whether they have any issues and, if so, define the issues and possible mitigations.

The other alternative presented was a "creeks development area" overlay that would apply a set of review criteria and findings that would be applied to any project, over and above those any regulations that apply currently within a given zone. While the Commission did not explicitly recommend either of these options, it did recommend that the creeks intiative currently underway consider such options as an alternative to continuance of a moratorium.

Additional issues: During the course of review and discussion, several other issues emerged.

Projects within the moratorium area that have no impact on a watercourse: One issue that the Commission considered, but on which it did not make a recommendation, related to projects that may be within the moratorium area but which have no impact on a watercourse. It was staff's suggestion that an applicant could request a Planning Commission determination that they can proceed with the project on the basis that it could have no possible impact on a watercourse as defined in the moratorium statute. If the Board chose to adopt this, staff feels that this should not be an administrative action by the Planning Director, Director of Public Works, or other individual. Rather the Commission should be the determining body for any type of application, and the determination should be made at an appropriately noticed public hearing.

Prohibition on Development of Multi-Family Housing: As noted in earlier letters and reports, 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 [Government Code 65858(c)]. While this was not necessary for initial adoption of the urgency forty-five day moratorium, it is necessary for any extension. Staff does not believe that the Board can make such findings and that multi-family housing should consequently be exempted from the extension.

Impact on Housing Element Goals: One point that several people, including the representative of the Home Builders Association, raised is the possible impact on Housing Element goals. Staff does not feel this is likely to be a major issue, particularly if the Board limits the areas to which the moratorium applies to areas adjacent to creeks that remain in a natural or somewhat natural state (the bulk of the locations identified as Housing Element opportunity sites are in more highly developed areas where creeks are either channelized or completely culverted). Also, based on preliminary mapping, few if any of the opportunity sites the Housing Element identified would fall within the fifty-foot corridor. In addition, as noted above, staff does not feel that the findings required to have the moratorium apply to multi-family housing can be made, and the bulk of the housing element opportunity sites come from higher density development (which typically equates to multi-family).

Potential Impacts on Property Rights: Lastly, as County Counsel notes in his June 2, 2006, memo to the Planning Director and Planning Commission, the moratorium does not affect a property owner's development rights or potential. Rather it preserves the status quo while the planning process proceeds. If, at the end of the planning process and either expiration or lifting of the moratorium, the final product proposes additional regulation, that regulation will be subject to the requirements of the California Environmental Quality Act. While one could argue that regulation that protects natural resources or the environment would be categorically exempt from CEQA, other CEQA provisions obviate such exemption where the activity could have a significant effect on the environment due to unusual circumstances. Staff feels that the potential for impacts on the State-certified Housing Element policies would fall within the latter exception, and that any regulation would thus be subject to a review of its effect on Housing Element and other County policies.


Staff request that the Board review this letter and all attached material. At the conclusion of the hearing, if the Board wishes to extend the moratorium, it should give specific direction on each of the topics discussed above, including:

As with the original adoption of the moratorium, extension requires four affirmative votes. Also, the Board must act to extend the moratorium on or before Sunday, June 18, as the original moratorium has a statutory forty-five day period, which expires that day. Per County Counsel, the Board may constrict the extent of the moratorium but may not expand it. If the Board does not act before that day, or if it wishes to expand the extent of the moratorium, it must start the process anew. If the Board wishes not to extend the moratorium, it could consider possible alternatives to a moratorium, as noted above. There would be no statutory timeframe for this.

Environmental Review: No environmental review is necessary for this action. As noted above, since the moratorium is a temporary measure, and since the action is to preclude development, there is no possibility that the activity in question may have a significant effect on the environment. It would therefore be exempt from the California Environmental Quality Act.

Please see attached and formerly presented materials for full details and discussion.


James E. Sorensen
Director, Community Development Agency