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Home My WebLink About05/19/1992, 5 - ARC 89-80: ADOPTION OF RESOLUTION UPHOLDING AN APPEAL OF THE ARCHITECTURAL REVIEW COMMISSION'S (ARC) ACTION APPROVING, WITH ONE CONDITION, A HOUSE ON A SENSITIVE SITE, ON THE SOUTHEASTERLY SIDE OF LA VINEDA, EAST OF JOHNSON AVENUE. REVI;F* MEETING. —� — z IIUIiIIIII�p �IIIIIII city o� san lugs oBispo AITEM NUMBER: COUNCIL AGENDA REPORT FROM: Arnold Jonas, Community DeveloFent Director BY: Judith Lautner, Associate Planner SUBJECT: ARC 89-80: Adoption of resolution upholding an appeal of the Architectural Review Commission's (ARC) action approving, with one condition, a house on a sensitive site, on the southeasterly side of La Vineda, east of Johnson Avenue. CAO RECOMMENDATION Adopt a resolution upholding the appeal, including changes to the initial study that support the Council's action. [Changes to the previous report are indicated by r ;clip J Background At its March 17 hearing, the Council acted to uphold an appeal of the Architectural Review Commission's (ABC's) action. The ARC approved a house with a condition requiring a 20' setback from riparian vegetation. The applicants appealed the approval's condition, asking instead for a lesser riparian setback. The Council approved the applicant's request, and directed staff to return with appropriate findings and conditions to support approving the project with a lesser setback (approximately 10' instead of 20'). DISCUSSION 1. Public reaction. Since the 20' riparian setback was a mitigation measure of the environmental initial study as well as a condition of ARC approval, the revised initial study was re-advertised on April 3, 1992, and a new 21-day review period was initiated on that date. During the review period, the Community Development Department received several letters, all opposed to the Council's direction to reduce the riparian setback. Copies of these letters are available in the City Clerk's office for review (copies were distributed to Councilmembers as they were received). The primary message in each of the letters is that there are no exceptional circumstances that would warrant an exception to the city's administrative creek policy, and that a twenty-foot setback from the riparian vegetation should be required for all improvements on this site. The site is large, and the house could be redesigned to fit within the remaining lot area. One letter-writer (Ashley) suggests a compromise: require additional riparian planting in the area below the 360' contour line, to improve the habitat value of the site (see "attachment 1" from h report). la ' e 'l'Ysucl< "> _ i;»>;< niik` neau`ie`'s' letter, attached to this �......... Ashley's e •: le :tmiate<re 2. Applicant's position. The applicant's representative has also submitted a letter that argues that several exceptions have been granted to the creek policy in the past, and that there are circumstances existing that make development nearer the street difficult, such as the steep slope of the site and the need to connect with the sewer line in La Vineda. This letter is also available for review in the City Clerk's office. s-1 ��N��i��ldllllllllll1° �U�U city of San lues OBISPO COUNCIL AGENDA REPORT ARC 89-80: 1673 La Vineda Page 2 ' i�'�?rt�eriy ovvtter has �nd�cated :tlZat �e �S wiliitsg, an azid�ca �in �f s c�mmrtm�nt�to the creek, to do 8$�i�#�nal frl3titutg .n#lt�pro�io5�d�:a5et#tenf arm #er:wassrare,��,w.n� of,aa�y P : ;.�?��• ;..u.;. 3. Modification of miti ti n `tether<;>::.r:.. .,th a emineide'. o:a..:::.,.�..�.:::✓..'nYY''n:.:;:}:}:.n.n::n:::::: n:.::.�.............�.... rc ' .. -.:..... ..n .......................isc;':"::;':._.,�,::< ::;.;::��`;`.:'+;i:::n .:'i::;: :r:Y:::.:;:::.Y:":.::x.Y%2:Y:.:::: �.... y:iY:#::#:::{%ii.:}.Ys•Y. igatr�n.. eas es,,as a s�u. SM.�:6.:.::or prevtcr�sly-recott�tn�nr�e�:c2{l'Y.�par�an tWs'taff is recommending a change to the conditions of the proposed creek easement: (Old wording to be removed indicated by strickei letters; new wording by italics: Mitigation measures: 1. To mitigate the effects of placing the building close to the riparian vegetation, the property owner shall grant to the city an easement covering the riparian area, for the purpose of protecting sensitive riparian habitat. Conditions of the easement shall include the following: * No structures or solid fencing shall be placed on or within the easement area. The general topography of the easement area shall be preserved substantially in its existing condition. No grading shall be allowed except as permitted by the Community Development Director. ' No removal of vegetation shall be allowed, except for fire.protection or other hazards, or for the elimination of diseased growth as approved by the Community Development Director. AT landscaping dorte withfii the easernent s1mH be native species and to the appicival of the eornintmity Development Ditecton * All unvegetated area below the 360' elevation shall be irrigated and planted with native riparian species, according to a landscape plan submitted for the approval of the Community Development Director. The Community Development Director will route the plan to the Department of Fish and Game (DFG) for comment, prior to action YC:!?fMY)CYMYS}}u.�mY}yn...Mvnyvvn:.n•. ,!!:i. :'C:J!.: i¢'h.Yn'.: rU.IX.Y\+'A.S: YJI:L:+[L:. S:Q:.YY:•!K:•:is::..i. :i:.:'w. ,A, .{...t....i•4pY%^}i:C},i }:C.N>'AF'.N>n�': '\MY'A.'f.Y Y}M' I(M: # _ �`�r�areta�l��ectt�: e;:•�asct�es�ts<a�` ` �oo��°#��:s�te�>�� . ..,42`kkyrv....y`;.}A;:�v.n:n..A.........1......... ll................................n .:.\. ..:;.}}.��........:...:..:.:...�?:>::'::$viiYS'::\:tii•;) Y' O+<a .i."*�„�L::x.�>f.i ::1L.:. i.:�:.:f;:. YiY"i;'n'.'J�`:.i:f.:} Y}Ji}:ii.Y.C:yn'i{'O":' YSW:.Y%Y"• `�t�uidri€odzca�lly inspect the arm a� tl�etl�t�P`la:ttts int net ��►��►�►►iiu►Iifillllli ►��I city of San l:WS OBISp0 Ni;% COUNCIL AGENDA REPORT ARC 89-80: 1673 La Vineda Page 3 OTHER DEPARTMENT COMMENTS Other departments have no concerns with this request at this time. FISCAL IMPACTS Either an approval or a denial of the appeal would have no fiscal impact on the city. ALTERNATIVES The Council may adopt a resolution approving the appeal, as recommended by staff or with additional modifications to the findings or conditions. Any change to the previously- advertised mitigation measures, that would lessen the environmental protection of the site intended by the advertised mitigations, would require an additional 21-day review period and final action by the Council after that time. Therefore, if the Council is considering such a move, it should continue final action pending passage of that 21-day period. The Council may continue action, with direction to staff and the applicants/appellants. The Council may not adopt a resolution denying the appeal, since the action to approve it has already been taken. Attached: Draft resolution Vicinity map initial study Administrative creek policy "Attachment 1" from Ashley's letter Available in City Clerk's office: Letters from citizens responding to modified initial study (received after April 3, 1992) Representative's letter dated April 3, 1992 Plans .5-3 REVISED RESOLUTION NO. (1992 Series) A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO APPROVING AN APPEAL OF THE ARCHITECTURAL REVIEW COMMISSION' S ACTION, THEREBY APPROVING A RESIDENCE ON A SENSITIVE SITE, AT 1673 LA VINEDA, AS SUBMITTED. (ARC 89-80) BE IT RESOLVED by the Council of the City of San Luis Obispo as follows: SECTION 1. Findings. That this council, after consideration of public testimony, the applicant's appeal, and the Architectural Review Commission' s action, staff recommendations and reports thereon, makes the following findings: 1. The proposed residence, as amended by the additional mitigation noted below, will not harm the health, safety, or welfare of persons in the vicinity. 2 . There is no substantial evidence that the proposed _ residence, as amended by the additional mitigation noted below, will have a significant effect on the environment and hereby is granted a . negative declaration of environmental impact. 3. There is no substantial evidence that approval of this project, as amended by the additional mitigation noted below, will have the cumulative environmental effect of setting a precedent of failing to abide by the Administrative Creek Policy, for these reasons: First, this project falls within the lesser setback criteria of the Administrative creek . Policy because: (1) the channel in question is minor and not judged to be a significant riparian corridor; (2) the configuration and slope of the lot makes reasonable development without some exception impossible; and (3) the lot is the last infill site where an irregular pattern of setbacks has been established. Second, the Administrative Creek Policy expressly recognizes that the Policy is to be" a guideline which can be departed from when the intent can be met through alternative approaches. In this case, the open space easement with conditions is such an alternative approach. Therefore, the Administrative . Creek Policy has been followed. 5- 4 Resolution No. (1992 Series) ARC 89-80: 1673 La Vineda Page 2 4. The existence of a public controversy over the environmental effects of the project does not require the preparation of an environmental impact report because there is no substantial evidence before this Council that the project may have a significant effect on the environment. The City Council 's disagreement with staff and the Architectural Review Commission does not constitute a serious public controversy. (Perley v. County of Calaveras (1982) , 137 Cal.App. 3d 424 , 436, 187 Cal.Rptr. 53 , 61. ) Moreover, those opposing the project have expressed a general desire for strict adherence to creek setback policies in general, but they have failed to adequately analyze this particular Administrative Creek Policy. Therefore, the opponents' fears and desires about this project lack an objective basis for challenge and do not rise to the level of a serious public controversy. (Perley, supra, 137 Cal.App. 3d at 436; Newberry Springs v. San Bernardino (1984) , 150 Cal.App. 3d 740, 749, 198 . . Cal.Rptr. 100, 105. ) 5. The proposed residence's setback from the creek and from the riparian vegetation is consistent with other creek setbacks approved by the City in the vicinity. 6. The City Council has reviewed a letter from the applicant's representative, Brent Wiese, dated April 3, 1992, to the, City Attorney, Jeffrey Jorgensen, and considers the_. .information provided in that letter to be part of the factual evidence supporting the Council 's decision. SECTION 2 . Environmental review. The environmental initial study is hereby amended by replacement of mitigation measure no. 1 with the following: 1. To mitigate the effects of placing the building close to the riparian vegetation, the property owner shall grant to the city an easement covering the riparian area, for the purpose of protecting sensitive riparian habitat. Conditions of the easement shall include the following: * No structures or solid fencing shall be placed on or within the easement area. * The general topography of the easement area shall be preserved . substantially in its existing condition. No grading shall be 545 Resolution No. (1992 Series) ARC 89-80: 1673 La Vineda Page 3 allowed except as permitted by the Community Development Director. * No removal of vegetation shall be allowed, except for fire protection or other hazards, or for the elimination of diseased growth as approved by the Community Development Director. * All unvegetated area below the 360' elevation shall be irrigated and planted with native riparian species, according to a landscape plan submitted for the approval of the Community Development Director. The Community Development Director will route the plan to the Department of Fish and Game (DFG) for comment, prior to action. Monitoring: City staff will require the easement to be recorded prior to issuance of a building permit. SECTION 3. The appeal is hereby approved_ and the proposed residerice is` approved as proposed: On motion of , seconded by and on the following roll call vote: AYES: NOES: ABSENT: the foregoing resolution was passed and adopted this day of , 1992 . C f0 Resolution No. (1992 Series) ARC 89-80: 1673 La Vineda Page 4 Mayor ATTEST: City Clerk APPROVED• City Adm'nistrative Officer t ney 4C�PJc-tea. - Community Develdpaent Director s-7 x �JV cETI � 9_QzAGENDA oATE _ITEM # April 3, 1992 RECIt , VED Jeffrey Jorgensen ATO, APR 0 ,3 lgq2 City Attorney. 00Dmaoo Acton— � OFFICE OF City of San Luis Obispo TOS L4�Da cm"TT�er 990 Palm Street ffFr ❑ FIRDUL San Luis Obispo, CA 93401 ❑ ��' �. a° C3-L RECEIVED Re: Short Residence ❑ MCMT.TFAM ❑ RMDIR 1673 La Vineda ❑ RMDFHX ❑ DM MAY 15 1992 �_ VIF� CITY COUNCIL Dear Jeff: W• CrSOtr1 MN wts OBISM rA The following it information provided Jo help you construct the findings required for the City Council decision of, March 17, 1992. The first part is our interpretation of the Administrative Creeks Policy. The second part is included as background to the current situation. Administrative Creeks Policy 10/20/88 2. New Structures B. Lesser setbacks 1. There has been no debate that the channel is minor and that it is not likely to be part of the urban trails system. We do submit it is a questionable significant riparian corridor. We agree that it has value to the neighboring wildlife, it has its biological substance, and it is important to the overall context of the neighborhood and the city. We question its "significance" because of its historical use by the city and the very neighbors who preach its importance. a. The City has a policy of spraying the area in question to reduce the presence and growth of poison ivy. According to my conversation with the owner of 2637 Flora, 2/29/92, this has resulted in a loss of underbrush in the area. She even believes this has effected the death of some of the larger growth, including a tree she planted several years ago. b. The City has done sewer replacement work. The previous sewer line had failed and was eventually replaced. To dig up an existing line directly below the creek had to have an immense impact on the area. c. The City Fire Department has done "brush clearing" in this riparian habitat. In June of 1989, the Fire Department cleared a "fire hazard" that included riparian habitat without discretion or direction. d. 1691 La Vineda-Fisher. This neighbor has cleared all the natural riparian habitat between his residence and the creek. This was done without any prior approvals and subject to an enforcement action by the city. There is no significant riparian habitat left on this part of his property. (letters of 6/13/89, 6/28/91, and photos PH#2 & 3 of 2/29/92 are enclosed). 'Architecture,Planning&Graphics 1401 Higuera Sireel San Luis Obispo,Cklijomia 93401 805/541.5604 e. 1673 La Vineda-Short. This lot has become a dumping ground for the neighborhood. Large amounts of construction debris has been dumped on the site through the years in the area of the natural growth. Some of the items found in the riparian habitat include: concrete, plaster, lumber, road base, asphalt, and barbed wire. f. 1586 La Cita Court-Ashley. At his edge of the habitat, this neighbor has at times trimmed back the willows and removed major limbs off of a tree. This is somewhat ironic because this is the neighbor who, during ,the public comment period at the 3/17/92 city council meeting, claimed he has never pruned or touched the natural habitat on his property. (photos PH#4, 5, 6, & 7, of 2/29/92 are enclosed). It is also significant to note that although this neighbor has been a leading advocate of the 20' setback, he has on several occasions agreed to substantially lesser setbacks. He admits that the 20' setback need not be hardfast, without exception. (letters of 6/27/89, 9/14/90, and presentation to ARC of 10/2/89 are enclosed). g. 1570 La Cita Court. This house originally had the natural riparian habitat growing along its side of the creek. Today, there is only a few minor shrubs of willows left, and they are heavily pruned. This neighbor also allows its family dog to play in the creek and the natural habitat. There is no significant riparian habitat left on this property. (site plan of its original ARC approval and photos PH#8, 9, 10, 11 , & 12 of 2/29/92 are enclosed). Therefore we submit that the importance of the natural riparian growth is not as virgin as the documented biologists and neighbors have suggested. In action, and in practice, this area can only be as important as the neighbors are willing to make it. We are not questioning the validity of their actions, or the justification of what has gone on. We only attempt to document how the area is treated. 2. This lot is small and reasonable development without some exception is extremely difficult. We will not claim that development of this parcel of land is "impossible", but we have definitely struggled to make a solution work. a. Slope. The project slopes down, away from the street at a slope of 17%. This is very difficult to mitigate economically, because total averaged driveway slopes, per city standards, cannot match this. Example, a 20' driveway's maximum average slope is only 8%. But as the length increases, a longer run of the maximum slope (20%) can be averaged in. So, a 30' driveway's maximum average slope is 12%. This becomes a substantial difference. Unfortunately, this also tends to push the residence farther down the hillside. Slope also is critical because it limits the shape of the house because o+ the maximum height limits. The further the footprint extends down the hill, the lower the average grade becomes, which lowers the maximum height. b. Sewer. We agree with the city that connection to the existing sewer line in La Vineda is a priority. To connect to the existing sewer line, located in the middle of the creek would create too much of a disturbance on the existing habitat. To connect to the street lateral limits the finish floor elevation of the lowest floor level. This is significant because this limits the "burying" of the lower level into the hillside. c. Shape of lot. The actual frontage of the property is only 46.88'. This is important because it limits how close the residence can be located to the street. This becomes critical when one includes the problem of the extreme slope of the site. To mitigate the extreme slope, one would tend to design a footprint that stretches along the contours, in as thin a shape as possible. But given the width of the lot frontage, one has to move the house downhill. This site has a total area of 20,460 square feet. Because of the existence of the riparian habitat, we can only develop 6,000 square feet. On a flat rectangular site, this is not a problem. But because of the nature of this site this becomes a near impossible task. No other site in this tract nor in the tract across creek has these issues to overcome. 3. This lot is a small infill site where a clear pattern of lesser setbacks has been established along the creek. a. 2621 and 2637 Flora. Both of these residences are located immediately adjacent to the riparian habitat. 2621 Flora was permitted as late as 5/19/88. (photos PH#13 & 14 of 2/29/92 are enclosed). b. 1691 La Vineda (adjacent property). This residence is located _adjacent to the street, on the flattest area, and the widest part of the site. There is no logical reason for this project needing to encroach into the riparian habitat at all. Its present location provides the easiest solutions for the driveway, sewer, setbacks, and heights. c. 1655 La Vineda (adjacent property). This property ends before the riparian habitat. The rear property line does not extend anywhere near the habitat, therefore encroachment could never be an issue. (aerial photo PH#1 of 2/28/92 is enclosed). d 1586 La Cita Court. This site has an immense slope bank at midpoint of the site away to the east side of the property. The residence was primarily built on the flat area. Because of the extreme depth of the site and lack of much riparian habitat, encroachment again was not an issue. Example: this residence even has a 38' setback from the street. e. 1570 La Cita Court. The residence was approved by the ARC to encroach within 7'-0" of the edge of the natural riparian habitat. (site plan of its original ARC approval and photos PH#8 & 9 of 2/29/92 are enclosed). There are six sites adjacent to the creek and its riparian habitat. Excluding our site for the moment, five of them are presently developed. Three of them encroach between zero and seven feet to the vegetation line. While the other two would never have issue with encroachment because of the nature of their sites. All of the existing residences were permitted prior to the date of the Administrative Creeks Policy. No other site in this area has had to conform to this policy. Additional Information We feel it is imperative to clear up the public record of some of the misrepresentations made throughout the approval process. First Mr. Ashley has on several occasions represented himself as having to conform to the 20' setback from riparian habitat. His letters of 5/29/89, 6/27/89, 9/18/89, 10/11/89, and his presentation to the ARC of 10/2/89, all alleged that it is inappropriate that my client need not abide to the creeks policy when he had to do so. He even alleged that he bought his current residence because he was guaranteed that existing riparian corridor could not be encroached any closer that 20'. "I am the backyard neighbor of Mr. Hernandez, and when I built my house in 1987, 1 willingly abided by the city's 20 ft. riparian setback policy and I expect Mr. Hernandez to do the same." (Letter to the Director, 9/18/89). "Upon phoning the city planning department, I was informed that there was a 20 ft. riparian requirement for development...Knowing this I assumed both sides of the stream riparian bird habitat would be protected equally from development by the 20 ft. riparian setback requirement and I invested in the (Ashley) lot. Our long search for a home site with protected bird habitat was over..." "It was the clear wording of this recorded restriction combined with the cities 20 ft. riparian setback policy that convinced me that it was not necessary for me to try purchasing the subject lot in February of 1987." (letter to the City Council, 10/11 /89). In fact, Mr. Ashley's property was originally permitted on 4/16/86. He made radical revisions to the plans and was finally permitted on 10/23/86. This was two years before the Administrative Creeks Policy was written. The notable parts of these letters and hearing are enclosed. We apologize for their lack of clarity, they are several generations away from the originals you have on file. Also note, we make no attempt to clarify all the inaccuracies, only these pertinent ones. Ironically, his property had to go through Environmental and ARC subdivision review when the original plans were submitted. This was required because four or more contiguous sites were being developed by the same person. There were environmental concerns due to the slope bank on the side of his property. When Mr. Ashley revised the project, he pushed it a full 18' closer to the creek, he encroached higher on the slope bank, and extensively changed the form and character of the building. He then pleaded with the planning staff to not have a "time consuming ARC hearing process" because it potentially would cost "a financial blow (of $627) to my family." (letter to ARC, 9/21/86; staff memo, 9/25/86 are enclosed). We looked back through the Environmental Review, the ARC review, and the ARC Minor Incidental review for his property. At no time was the creek or its riparian habitat a consideration of development, nor was it even mentioned. Also, please review the letters submitted regarding the La Vineda site. Brian Hunter 2/26/90 12/18/90, David Keil 3/5/91 , Eric Johnson Ph. D. 3/26/91, .Judy Neuhauser 6/12/91 , Ron Ruppert, Roger Zachary, and Dr. David Chipping all wrote wonderful letters citing the importance of protecting the riparian corridors. All of them talked in general about how they agree that the 20' setback is a good policy. But not one of them cited what was specifically significant about this riparian habitat in question. We believe this is significant because this "preponderance" of information could be provided for a riparian habitat anywhere in the city. Ironically, the only credible biologist that actually looked at that specific riparian area and commented accordingly, agreed that our placement of the residence is acceptable. Today, we agree that the Administrative Creeks Policy has great potential. We admit the importance of the creeks and the riparian habitats to our neighborhoods. But, it is only a policy. Review of the city's approvals within the last year shows that it is a flexible one. One that has to take each site on its own merits. We have taken a considerable amount of time to document the above. But this is nothing compared to the nearly two and a half years our clients have lost because of a city that was negligent in its paperwork, and a neighbor that made a mockery of the approval process. It is incongruous that this same neighbor "plea(s)" (his words) to the city to not cost him hundreds of dollars, while his delay has cost our clients tens of thousands of dollars. Not to mention the hundreds of man hours, and thousands of tax dollars the citizens of this city have spent to resolve this situation. It is our hope that this information is helpful. We do not want to be brought back to this predicament again. If you need clarification of any of this material, or have any questions, please contact me. Sincerely, Brent Wiese Enclosures cc: Mac Short Mike Hernandez Judy Lautner David Chipping all wrote wonderful letters citing the importance of protecting the riparian corridors. All of them talked in general about how they agree that the 20' setback is a good policy. But not one of them cited what was specifically significant about this riparian habitat in question. We believe this is significant because this "preponderance" of information could be provided for a riparian habitat anywhere in the city. Ironically, the only credible biologist that actually looked at that specific riparian area and commented accordingly, agreed that our placement of the residence is acceptable. Today, we agree that the Administrative Creeks Policy has great potential. We admit the importance of the creeks and, the riparian habitats to our neighborhoods. But, it is only a policy. Review of the city's approvals within the last year shows that it is a flexible one. One that has to take each site on its own merits. We have taken a considerable amount of time to document the above. But this is nothing compared to the nearly two and a half years our clients have lost because of a city that was negligent in its paperwork, and a neighbor that made a mockery of the approval process. It is incongruous that this same neighbor "plea(s)" (his words) to the city to not cost him hundreds of dollars, while his delay has cost our clients tens of thousands of dollars. Not to mention the hundreds of man hours, and thousands of tax dollars the citizens of this city have spent to resolve this situation. It is our hope that this information is helpful. We do not want to be brought back to this predicament again. If you need clarification of any of this material, or have any questions, please contact me. Sincerely, Brent Wiese Enclosures cc: Mac Short Mike Hernandez Judy Lautner Y: .V mama Al i RCx r ! - r. r ► . i • _ .- Vim'._-. . -. � :;-. � ..��_%� 1 - \ r !` / lk TO: File (1673 La Vineda)) June 13, 1989 FROM: Randy Rossi 1 0/ RE: Field notes --------------------------------------------------------------------------- The riparian areas at the rear of the parcel were visited on June 6. The seasonal stream course that crosses the rear of the parcel is a tributary to the northwestern branch (one of three branches) of- the east fork of San Luis Obispo creek. While clearly an intermittent stream, the center line and adjacent banks were saturated at the time of the field visit and the grass and herbaceous vegetation surrounding the stream course was lush and green as a result. The presence of water could be attributed to natural ground water seepage, leaking sewer main or a combination of both (there is a city sewer line in the vicinity that is an old pipe) . Whatever the source of the water, it has been. present for many years judging by the size and composition of the riparian trees nearby. Seasonal drainages, especially in rocky or shallow soils do not usually support sizeable trees. The presence of California Bay (in addition to willow) suggests that the soil is moist throughout the year even though the water course may not actually show any surface flow. The vegetation along the stream course consists of a well developed under- story of Coyote bush and willow. 'Larger trees, including native bay and willow,. and non-natives, including California pepper and pittosporum overtop the under- story growth. The tree areas form a sort of "doughnut" around a grassy area where the stream channel crosses the site. The substantial width of the riparian corridor across the widest point makes it more or less an oasis or island habitat with a greater carrying capacity than would be typically found in a narrower corridor. The seculsion, variety of foraging/nesting/cover types and at least seasonal water supply, all combine to make this an exceptionally rich habitat in the midst of the neighborhood. The property owner on the "back side" (1586 La Cita) has planted sapling cottonwoods near the rear of their pro- perty that, if they mature, will effectively extend the riparian zone or at least act as a buffer to it. Conversely, the property owner east of the area (at 1691 La Vineda) has cleared riparian vegetation along the rear of their property, virtually to the centerline of the stream course, resulting in a loss of cover, shade and habitat. One alternative to protection of the area would be a voluntary conservation easement secured from the property owner. Using this approach, it may be possible to allow the structure closer to the riparian trees because there would be the added assurance (and awareness) that the area was to be treated carefully. The City would have a recorded easement that would run with the land and inform future owners of the limitations. Even though the tract map conditions include a provi�, :oi, ecohibiting the removal of 1 ;,,moi LL11 vCyC�LL� Vi' , it obviously still may occur (as next door). A twenty foot setback, while a good rule of thumb, would be less effective in the long run than an easement. c: Mike Multari / Dave Moran •n L, nig m 6��v'i!!iiiil:ilinoiiNli ^.Ii�lylliill�liilll�lllllllllil t sAn Ci O i c aJ oBicpoV - 990 Palm Street/Post Office Box 8100 • San Luis Obispo, CA 93403.8100 June 28, 1989 Mr. and Mrs. Richard Fisher 1691 La Vineda San Luis Obispo, CA 93401 Subject: Removal of Riparian Vegetation Dear Mr. and Mrs. Fisher: A recent visit by our staff indicated that significant streamside vegetation, including trees, has been removed from your property. This is in violation of your tract condition that explicitly states: "Existing riparian vegetation shall not be removed" (see enclosed). This condition runs with the land and is intended to protect and retain habitat that was pre-existing on the site. Riparian vegetation is part of what brings the natural environment into town, stabilizes the stream banks, prevents soil erosion and provides shade, food and cover for birds. The preferrcd.remedy would be complete restoration of the riparian vegetation and granting a conservation easement to the city that would add further protection to assure this incidence will not be repeated. Please submit, within thirty (30) days, a landscape plan for complete restoration which shows location and type of plantings. This should be sent to me at the Community Development Department for approval. The landscaping shall be installed and maintained in accordance with the approved plan. As an alternative, you can pay to the City the equivalent in restoration costs for city implementation. Please call me at 549-7162 if you have any questions. If I do not receive a plan by July 31, 1989, this will be turned over to the City Attorney for furthcr enforcement action. Thank your for your cooperation. Sincerely, a-nom: /Ue tw-le. Randy Ross Long Rang ev fanner cc: Vicki Finucanc Ken Bruce Dave Moran dsmisword/fisher I � . . � � � r _ • ii� � - - -� �� '� � / //j /I� � � / ,1 � / I / � I I � � i / � , i "i � / i � / �I ' � � / / / / � / / I / / / / / � ,�, i i / � � �/ / � .. � i /- , / � . � � .oi � �� i �i / , /� ., i � � � �, 9r �� i � � i i � i / � ice/ , i I /,, �/ � / � e � � ' / / %�I� � � / � � .� /, � , i / � � � I r/ / � � i� / / I �// / /j; � i � r J / I ISI �� .�i � � � .� % I,i i St•A.c.PrNA CIN`IIIM1 W �IN�HLIMLK. -�CHILbLLHUI 6 bA(;(AII KOPLRI K SCHILHUHIII A PkOIISS10,AI CORPORAIIOV al 1'111 "hI'PIa. 1. 1.: .:: IA(,(.i1.: Ar'IOKNLIS Al LAW MAMIN 1. IANCLMAN IOW I'LACH SIKLLI MARTIN P MOROSKI A1aT r+!rlrr Pnr iI 7[ C: DA'rlUA IJrir M Sl.7AN N[. rRy[R SAN IIIIS OE15P0. CAWORNIA 'r3.10(,0031 RY STEVEN 1.ADAMSKI UTANL W. MOKO.W hJ'. •�•I•:•hf:J CYNTHIA CALDLIKA , JALYNNE CILES JOHN W. BELSHEK JANE L STANLEY ROBERT K. ORELLANA September 14 , 1990 THOMAS 1. MADDEN III W COUNILL D. IAN DUM THOMAS M. DUCCAN Robert D. Wendt HAND DELIVERED Wendt, Ronca & Abel 1201 Palm Street r San Luis Obispo, California 93401 Re: Ashley v. City Dear Bob: Pursuant to our conversation earlier today, enclosed please find a revised settlement agreement which requires only minor redesign of the house, such that ARC review is probably unnecessary. �I will- be in. the office tomorrow (Saturday] = if you hear from - your clients. Sincerely, ! SINSHEIMER, SCHIEBELHUT & BAGGETT 1 JO A W. BELSHER r JWB:ehj 13:Wendt914 .ltr Enclosure € L f Settlement Purchase Proposal �.Uparian vecetation purchase proposal: A. Proposal l: 1. Ashley's offer to buy the open space riparian conservation easement T shown on Attachment 1. The included non riparian area "a" con Densates fcr the ey.cluded riparian area "b". The proposed new- lot lines are all straight, easy to survey, and provide simple, logical lot boundaries. t:le newly formed site lot of about 7,900 sq. t is substa_ndarc size b=ased or, lot slope, the city will tate steps to provide a variance ao rOV. the new size lot for all the same uses as the oriZinial size 1^6. ^::e 7,900 sc. ' lot is a comparative!y good size city lot. n� 2. ::s ley's orier a p;;rc^ase price of .117,000 for Proposal 1 based on the a. ;:ots 4 and 3 adiacent to site lot 5 (see attached t:-ac. � j,) both SOIL for ".07,000 the rOri.:Er G.^. �e tE_:aer O' '} 1_a� p 4, 1 .W'7, he latter on 25, V323. are site lot sold for `95,500 on ::ay 20, 1908. b. 7 e site lot is about 13,000 s;. 1 lar: er than lots 3 an:i 4 (20,460 sq. ' — 71,612 s:;. ' = 121£48 so. ' tnd 203460 sq. ' — 7,02 so. ' _ 13,448 S0. t res.-pectively) avid sold for '8500 so. ' zore than each. 'Almost F-; , of the 13,000 so. ' extra size of the site lot is covered by r- ixrlan vegetation (20,460 sq. t minus about 7,900 sq. ' non ve--e.ated = about 12,560 sq. ' ve;;etated). c. T',,--*s 12,560 sc. t riparian vegetated Dortion has no developable DOSSibiilties of any kind due to tract rap condition "0. 3 statim is Ung riparian vegetation shall not be removed." and the pro—a? _roved conservation ease ea]t co-d-Itionis described Ln the attac?ied city letter dated 11/21/09. "'he i:_'iC.evelopable portion of t:?E Site lot covered by t^e an�roxizatel;,: 13,000 so,. t of riparian :EtEtatiO:?, eyi:atie? t0 the difference in size between the site lot lot:; i i' /„ 1:::v l:Ul'�.�1 '��,jJU, the difference in cost between L:.E s-tc lot and lots 3 f 4. 3. .e buyers and sellers will pay their normal split of escrow fees, and associated selli?g costs. 4. Several =nor changes need to be Lade to the approved house not effecting its overall design or siting but providing added protection to the wildlife habitat: a. breakfast nook equal in size and amenities to the existing one needs to be redesigned on the east side of the kitchen instead of t^e existing south side location. See the attached Site Plan. This will rove the breakfast nook from its existing 1 ' to a more protectivp 4. 1 F.w.... n...... +1,`; ri as_.;... 'i��•�:.:t.�:.. ::,'•�.f i...�.�..i�..ai `oot of setbaclk will help birds feel more secure from huxan intrusion,. b. '"Le re.nxainine east deck is so close to the bird habitat (Site Plan) �::at it needs to be screened with tinted Glass or plastic rising 6'-1_" above the deck floor. This will rr0\ 'ide fi vi5uai b3TTi6r te— tveen birds and people. Ce ' relocating the breakfast nook, the narrow connector deck i:: frons of the kitchen (Site Plan) is no longer neeeecl rnd rkn,.,?A I, i npted to protect. birds. If it is re tai.':C6- ?t 'C` C)0.^f to the riparian vegetallon that it needs the same-type of screen.Lhg described d. T;he dinnin- roo7 deck (middle dec::) needs to be reduced from 9'-4" deep to 6'-4" deep providln.r all azmple dec- Of 6'-4" x (Site Plan). ?his will change the riparian setback of the deck from about S'-6" to 11 '-6" providing more security for birds. uowever, since the deck lies withLn the 20' riparian setback] to adequately protect, birds, the deck needs the Salic type of screening described previously in "b.". e. There is indication that the project site (grading) plan where the house is sited ray be drawn slightly narrower t::an the lot actually is on the original tract map. if this is true, then the house nay slide one to several feet more foroard on t:he lot than shown On t;.e plans. :.t 'he begL'_^.ino of construction the builder needs to carefully; establish the minimum legal side setbacks for the house Of 9' on the East (left) and 5'-6" on the west (right) to insure the h s-_-Ze 1s as far :Cr.;ar:: on the lct as possible to provif"C: the .�:?:i::•UI: cttai.^a Jie ri Darian set Da C�: t0 protect wildlife. The city v -rife in the field froi.l appropriate si6c lot strin,'CTL and 5jo'.:s2 C0.:1er sr_hers, establisher: b_' t.^.C- contractor, 6 6 t!;E i:+1Y- =: attainable riparian setbacK he; been provided. This needs to be do-.-.e by the ci tv during- initial suzn eying before any other 1:ork is cone. 5. The city will forego Ell new planning, per:tet, and E_*y other fees associated with Vne --Thor c han-es P--,d will transfer the L.•atcr allocation t0 the slightly C Lnged project without charge. 6. he Cit;, wi_: forC'_-o c11 lot line adji]St.7e:1t fees and any of her assn=-eG costs. 7. .So Oj-D-J n- will rot be delayed by the lot line adjustment process, all 1YS Y.7 1 i ...-- LC. rl•C_::. �.:e ODcn space ripaTic'.1 CO:,SETYEY'_On caSc-E:t will be transferred to the .=.s^.le.:'s property by an easement and recorded in the County Recorders Office. At this stage, the site lot w_-1 retail title to the easezent. On the date of this recording, As}LEy's ]:ill pay the site lot o]::1er's half ( is,500) Of the "17,000 DurcnEse price. ::iter this recordin.r, construction can Com:fence, if rte:-Or C::arjues described previously under number "4." are Co=pleted. '::en the lot line :adjustment process is completed, full title of the open space riparian. conservation easement will be transferred to the As'-dey's lot and recorded in the County Recorders Office. On the date of title transfer recording, Ashley's will pay the site lot owner's the second 'half (".*.•5,500) of the 117,000 purchase price. S. The rear property line can be fenced by the owner's of the 1586 La Cita Court lot to protect the riparian vegetation. 9. The wording of the conservation easement needs to be looked at i_*] settle— ment to insure the effectiveness of its intent to protect the riparian c'onservat-ionEms`�r..�Y. -:3 vC:lEral, L1,C �.0:,serYGLl Gs, II�:GJI:.d(::.Y will VrLT sfEr YO '.sl•1ey 1s lot. Howe der, the open Space easement condi- tions described in the attached project condition letter will still apply to the site lot below the 360' contour li_-]e. 10. Due to the ri7.^_ri a.^ ve ffetati on renov;" of 7/5/90, the sellers will Inst?llatl0.^.,'of a dr-in irrigation s-stem t0 he r-.jn off of V,v :'11r 30t c?tV water sur Div will be done before building berms on t}r sit.c, lot.. 'I iIL Cr7 NnrE 0 Ro / N_ aero; DEUC 6=�..X/I M DEcx )NN TIAL D� �. MDOgs r�H ! / NEW RESIOEMng- r . :.� vr j -- 373.20 . S ,kRCHI:ECTURAL REVIEW Cov,_missION REGULAR MEETING October 2 , 1989 , 5 : 00 p•m- Then we move on to sign Items. Incidentally, before we enda, there was a request from an applicant ",, per• start the Ag Project 5 to Project 1. Is that and from staff to move hat the applicant who is going okay? The reason being on in the to present will not be available latetssible which means and would like to present as soon as p he would be the fourth item Okaythso thereforereview I ,m referring Is that okay with y will precede Project to Project No. 5 , 1673 La Vineda, with No. 1, 481 Madonna Road. We' re now gonna start signs. sign Item A, 1585 Calle Joaquin. • [discussion of sign Items , to move on to Project 5. Skip C; we' ll come We're going Cooper: If the applicant does show? Is an applicant back to C• Project 5? 1673 La Vineda? Do we have a present for Pr°lease. staff report, p La Vineda? The plans have been c'-:t up on the board for Staff: your reference. First of all, just an Randy: The appellant' s here somewhere. much for indulging ' introductory remark. Thank you veryenda. I felt it was my request to bring this up on the Ag M, obligation to be action. Not that' s what' s before elaborate oor the appeal of my appellant defend it, but to explain it. and then let the of make his case make an Joverheadst bor had an overhead e for the made everyone, Z you don' t -mind--if I p and I think it' s easier--if up behind you, and then we can all see a The same thing is here on the wall • Oho d the cul-de-sac' s he tract This lot is on a cul-de-sac, riparian conditions include a condition d. This is the says tstreet and cul- vegetation will be rem is that' s quite large, as you de-sac. This h the P approximately represents a can see, and this line here aPP willows and some live line of ripATian vegetation mostvhrnle oak and other trees that pretty very wide region of the lot. There' s a very band here of f low through riparian vegetlic neasonl stream ttionahas sredesigned the house several here. The appwere looking at exceptions to height times. First, they denied. This slopes away limits which were ultir.,ately 1 110079 pu_tz : Yes. Like I say, we have updated it in the area where the house comes close . We haven ' t updated it up in t':e far right-!:and corner, for instance, where we ' re 40 feet away or 50 feet away. Cooper: I have one other questicn. There is normally in a house like this, we don ' t see an awful lot of specifics about landscaping, but have the applicant or the architect thought about introducing additional native or riparian landscaping in the space between? In other words, expanding on the landscaping that occurs there. Pultz : We 've talked about that on staff. Commis- sioner: This might be a question more directed to staff but I was just wondering if you have any plans for protecting the vegetation during construction? Pultz : well , we should ask Mike rather than me; he ' s the builder. In general, we ' re not down trenching near anything that' s--that one particular corner where the tree overhangs the canopy--that' s out there, but the trunk of the tree and the roots and so forth are quite a ways from that. Rossi: But we co.:ld put additional conditions during : construction--fence the drip line or that kind of thing.. One of the mechanisms that works test generally is to put $1, 000 in a pool , and it be divided among the workers, if after the job is done there's been no damage. And it tends to work real well, but I don't think Mike 's advocating that. [Laughter. ] Commis- ' sioner: So that everybody knows, for the record, part of that area is partially plowed right now, but it wasn' t done by anybody other than contract labor hired by the Fire Department [end of side 1] came in and started cutting and chopping away. Then they sent us the bill . Cooper: Okay, why don' t we then move on to the public portion of this hearing, and those of you who would like to speak, please remember to identify yourselves for the tape first and who would like to speak? ,s::ley: Okay. Phil t..e appellant . _�. property neighbor of applicants , and I 'm going to speak from an outline. I really haven' t had time to edit this. I apologize. It ' s quite lengthy, but I 'm going to move through it pretty fast. We 've covered some of the 9 0 � � 47 you described that and explained it, but it still seems to me that the tract condition is adequate. It says right there that riparian vegetation will not be removed and to me that co:.bined with a 20-foot setback would do an adequate job of protecting this riparian bird habitat. And actually, in reality, nothing is going to protect it if the property owner is so 4^cl ined to start cutting 1 away on it. My position at this time? I 'm not arguing. I could have appealed on all the issues that are discussed on poor hillside design, and these issues are discussed on page 4 under design alternatives, but what I 'm looking at on this project is a house that' s approximately 72-feet wide and almost, actually, -I think a little higher than 30 feet high on the backside; so I 'm looking at a very large abutment, and for me not to appeal on that basis is a major compromise. So, I 'm asking, given this type of compromise, why should I also overlook the 20-foot riparian setback necessary to more adequately protect the riparian bird habitat? And I 'm really not willing to do that. I think the applicants should go with a 20-foot riparian setback like I and other neighbors and City residents have done, abide by enforceable City policies, and it will do a better job of protecting the bird habitat, and that' s the only _ reason I 'm really appealing. Therefore, the City should _"require a 20-foot riparian setback because the fact that this site was not originally declared a sensitive site has no bearing on the requirement to abide by the City' s 20-foot riparian setback policy. And the City should not treat property owners differently toward this policy. I was told when I bought my lot and built on it that 20 foot was required; and .I expected others the bird required to do the same to adequately protect habitat in the riparian zone. And I don't think the applicant should be allowed to find loopholes to avoid this 20-foot setback policy. And the 20-foot setback is the best means for protecting the bird habitat. Any riparian setback less than 20 feet, I feel , is a significant compromise on my part, and as a compromise I will consider No. 1 that zero foot setback as now shown is not really a compromise. Over the past year, the applicant has moved their house site from 15 feet within the vegetation back to 25 feet within the vegetation and then forward to 7 feet within the vegetation, and then only most recently have they moved it immediately adjacent to the vegetation with a zero foot riparian setback, whi^h T feel is a good point to start ccrpromising pro:••• In otner words, : 'you-- .1oceD= a compromise seewhere between zero feet and 20 feet, but not a zero foot setback. For any setback less than 20 feet, I do believe that the conservation easement is a good piece of nitigation and needs to be included or 13 � � '13 � combined with a setback of less than 20 feet, plus the house should be built with tinted windows because birds are less inclined to see people inside of a house through tinted windows than they would clear windows, but I think almost everybody goes with tinted windows now so it would be less disturbance in that fashion. If a setback is somewhere between 10 and 20 feet, I don ' t have any problem with the way the decks are currently designed in terms of their closeness to the riparian habitat. If the setback is six foot as the staff report, I guess incorrectly states because I think it' s been established the riparian setback is actually zero feet. So if the setback is six feet to ten feet, the decks would be acceptable if the east deck and the middle deck so we can move the house back a minimum of six feet, and then if the east deck and the middle deck, starting from right here and going across, were also narrowed by two feet-- not this portion right here, because that is narrow already, but this was also narrowed like this, it would give the effect of setting the house essentially two more feet back from the riparian vegetation. Now to get a six to twenty foot riparian setback a combination of design options must be considered. The applicants and the design team have already done some of these to a certain extent. But to move up slope a narrowing of the house _ _ slightly, maybe three feet at the most, and/or a narrowing of the side setbacks, one or two feet at most on both sides, would allow for moving the house upslope,. I realize that that would be a, dealing with side setbacks, is a whole new issue, and the city might have to do a little giving in this area too because they're asking that both the applicant and myself, the appellant, do some giving, in this case, compromising. And then in order to comply with the 25-foot height limit, the roof pitch would have to be lowered slightly again, and there may have to be some cutting into the front of the property below grade slightly and maybe combining this with using fill and retaining walls to elevate the driveway and garage floors slightly to comply with driveway slope requirements, or we could talk about a whole new redesign. The final thing is that I briefly discussed today with Mr. Hernandez by phone and I only suggested it as a kind of last ditch measure because I feel like I 'm swimning uphill a little bit, not swimming uphill , but swimming upstream anyway, but I would propose purchasing the conservation easement from the applicant, and this could have the following effects. It "could" have the fo: '. " ' '^ effects : it would allow nor^ monje%, for the redesian of the house and offset some or the construction costs ; the conservation open space easement, and no. • 2 , the conservation open space easement and tract restriction for riparian vegetation removal would run 14 --=—� P"TING AGENDA G..,c�_ITEM #S THE CALIFORNIA NATIVE PLANT SOCIETY RECEIVED APR 2 71992 April 22, 1991 cm OF SAN LUIs osrsPo 00MnwNITY nEVELOPnnenrr To: Mr. Arnold Jonas Community Development Director City of San Luis Obispo From: David H. Chipping Conservation Co-Chair San Luis Obispo Chapter California Native Plant Society 999 Pismo Ave, Los Osos, CA 93402 Re: Project ER 6-91, 1673 LaVineda: Protest of Environmental Determination The California Native Plant Society is concerned with any reduction of the 20ft riparian setback requirements for this project. It is apparent from the Council Agenda Report of 3-3- 92, by Judith Lautner to Council, that the Architectural Review Commission considered a 20ft. setback to be not only possible, but in fact was recommended. Under CEQA, the least damaging alternative should be the chosen alternative,unless there is an offsetting consideration that should be tagged with suitable mitigation. It is clear that an alternative project is deemed possible and has been the recommendation of both ARC and Planning Staff. The 20 ft. buffer has an ecological function that will be violated by the reduced and inadequate setback. The question of damage to the riparian zone has not been addressed by the Negative Declaration. The precedential treatment given this property owner will open the way for further violations of setback throughout the City. Is it City policy to allow an exemption to established environmental safeguards on the basis of,the applicants not wishing to comply with the conditions? We are sure that a universal application of this criteria will lead to a total breakdown of zoning for environmental - protection. We are also concerned that the Notice Of Environmental Determination does not present its findings in the form of setback requirement and distance, as this was the issue specifically raised in previous objection to the project. Instead, setback is referenced by elevation contour, which would require possession of a grading/site plan for interpretation. GOP TO. Sincerely ❑•.Doom Amoa ❑ F [ C/CAO 0 AN.DIR Dr. David H. 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',SFN_l — IT EASE -Ml A-R1V ,V—IE 2[PAf21AN_V�T"�TID� btF-5 45)K Cmc�s --�1N�D�uft�Y 6��r�r.vE n�,rTLGf�r�.Nt�sweEs ca�_�� EASE -Ml5 M[T &A77D&) xtz� 8f- /Ncr"/zT1-fr nx6. r ., v--6T7 ey mDlu i ro Ao6 ff02 LT1 ve Ruto� `T-t Ns AA-5f�`A2T of TItE MG T16AYI00 fM?D t'OPJAAAb /0A.16-.55rAA2 i��lf�/1!l�f�J1TDi21�J4�G��U_1,�E5_��21�i2i2�U�ftGT[G�l_L_ �iNC{�PfL`t d��:'�17.. G0Pr_5 : (' 141( Coc_A)uL_ MW5re5 ANP -AT2v, A1To2for-Y5 Planner Ms. Judy Lautner and Phil Ashley Director Mr. Arnold Jonas 1586 La Cita Court Community Development Department San Luis Obispo, CA 93401 990 Palm Street 756-2505 (work) P.O. Box 8100 April.92 , 1992 San Luis Obispo, CA 93403-8100 Subject: My comments on the Negative Declaration amended by the City Council 3/17/92 for the proposed house on a sensitive -,. in riparian site at 1673 La Vineda. v n Z� Am Dear Ms. Lautner and Mr. Jonas: i N woo Regarding the subject project and action I provided a min Sc detailed comment letter 4/1/92 to the Community Development ° N Department. Much of that letter is outdated since you already $ are doing what I was justifying and recommending in that letter-- providing the public with a new comment period for the Negative Declaration the City Council amended 3/17/92. However the portion of the letter that discusses new potential mitigation and the remedial revegetation plan still applies. This commment letter will address those 2 issues in summary since there is no reason to recover the 4/1/92 letter in full, and it is attached as a part of these comments. First, as I discussed on pages 6 and 7 of my 4/1/92 letter, it is time to put the remedial revegetation plan in effect as soon as the City eliminates the restriction of using water on new landscaping projects. I understand this restriction will be lifted soon since the City ended its mandatory water conservation program apparently on most or all other water uses 3/ .3 /92. This remedial revegetation plan is still in effect because although the court action 10/2/90 voided the project permit and therefore apparently the project conditions as well, it did not void condition 3 of the tract map stating "Existing riparian vegetation shall not be removed" . By removing riparian vegetation the applicate violated this still existing City condition prohibiting removal of riparian vegetation. In fact the City explained to the applicant in its letter of 8/20/90 to the applicant that their project was subject to the tract map condition as well as the project conditions stating A single family residence is approved for construction. . . , subject to a number of conditions reflecting the "S" Special Consideration zoning and sensitive nature of the area, and the intent of the City to protect and maintain the riparian habitat which exists along the rear, or southerly boundary of the lot. The "intent" expressed in this quote is stated specifically in the Citys riparian tract map condition 3. Therefore, the tract map condition alone is enough to maintain the validity of, and require compliance with, the remedial revegation plan. Pages 6 and 7 of my attached 4/1/92 letter suggest a possible simple revegetation plan. This remedial revegetation could be done at the same time as the potential new mitigation, which is the second issue that I will now discuss. This .potential new mitigation arising out of the City Council's amended Negative Declaration upholding the appeal for an 8' riparian setback, instead of the City's administrative 20' • ' .2 riparian setback, �o discussed on pages 4 and o of my attached letter of 4/1/92. This new possible mitigation, now feasible due to an adequate fire buffer of 8' instead of 1' as previously designed, was recommended as an inferior form of mitigation compared to the 20' riparian setback in Calif. Dept. of Fish and Game's comment letter of 6/13/91, stating In order to truly offset impacts, it would be appropriate for the owner to additionally create and maintain riparian habitat elsewhere on the drainage, if development must occur within the twenty foot setback. However, the most desireable form of mitigation is avoidance, and we therefore recommend that the structure be redesigned to remain outside the twenty foot buffer entirely, thus complying with city policies. As a final attempt to arrive at meaningful mitigation, and in line with CDFG's above suggested mitigation, I recommend the riparian habitat mitigation I discussed in my attached letter and shown on Attachment 1 of that letter. The conservation easement discussed as mitigation in the 3/17/92 amended Negative Declaration is not meaningful mitigation since at best it only duplicates the riparian tract map condition, which is indicated by several public comment letters in the project file including those of mine, CDFG, and neighbors. However, as part of my recommended riparian habitat mitigation, a recorded conservation easement is needed for the proposed new riparian area to provide it with long-term protection, since the new area would not be protected by the riparian tract map condition, which only protects existing riparian vegetation. This riparian mitigation area should include arroyo willow (Salix lasiolepis) as one of the suggested trees to be used, since this is primarily a willow-dominated riparian zone. Willows could be planted closest to the existing willows, then some sycamores and california laurels and at the outer edge some coast live oaks. To discourage human intrusion into this riparian mitigation area native wild blackberry (Rebus ursinus) should be planted at the outer edge of riparian area as it would form an impenetrable barrier. All of these plants would require water for several years until their roots become long enough to hit permanent underground water. Obviously riparian vegetation is not going to establish on its own without supplemental deep watering, since it does not occur naturally in the specific area recommended for planting. Long-term monitoring and replanting of non-surviving plants is necessary to insure success of this mitigation. I also believe it is important that CDFG approve any final riparian mitigation plan. Based on all the evidence, the City's administrative 20' riparian setback policy was unquestionably the proper mitigation. The City Council majority upheld the appeal without any evidence to justify their actions. This is my final administrative effort . at some sort of settlement mitigation. Sincerel 5. �-.�ia�v OL,e ry rvrna SB q06 zap e a ..��rAl�n7d._ �//M O A r�IL/_ D /2!' / /rl D I.r1/N LU'l'�✓l!l/ILA. November 1991 California Planning & Development Rep__. 5 ECIAL REPORT: 1991 LEGISLATIVE SESSION j Bill-by-Bill Summary of Legislative Action j Signed Into Law 1 SS 1079(L.Greene):Requires local housing elements to include"as of Air Quality right-sites for multifamily projects,and also requires that low-income 1 y housing get first call on limited water and sewer capacity.Chapter 889. f SB 124(McCorquodale):Creates new,eight-county San Joaquin Valley Statutes of 1991. i Air Quality Management District with city representatives as well as j county reps on the governing board.Chapter 1203,Statutes of 1991. Infrastructure Finance ij AS 143(O'Connell):Clarifies use of Mello-Roos law for toxic cleanup AS 2061(McCorquodafe):Requires air pollution control districts in large counties to undertake socio-economic impact analyses of their air quality purposes. Chapter 29,Statutes of 1991. plans.Requires districts to hire independent consultants to assess ' methods used in these studies.Chapter 794,Statutes of 1991. AS 1001(Brown):Allows cities and counties to use local general. ! obligation bonds to pay for seismic safety improvements to private i buildings.Chapter 658,Statutes of 1991. Airport Land Use Commissions f SS 532(Bergeson):Extends deadline for creation of airport land use plans until June 30, 1992•for counties that have made SB 682(Melo):Among other things,makes it easier for localities to p establish'mother Mello-Roos districts to which new territory can be j progress'in preparing those plans.Chapter 140,Statutes o/1991. _ easily added later on.Chapter 1110,Statutes of 1991. AnnexationsAncorporations Open Space and Parks AS 328(Peace):Permits Calipatria and Crescent City to annex state AS 659(Hill):Facilitates creation o1 LA.County Regional Open Space correctional facilities,boosting their population for tax distribution District and allows benefit assessment districts in this area to be formed purposes.Previous bills have given similar permission to Susanville, with majority voter approval. Chapter 823,Statutes of 1991. Soledad,and Bly+'te.AB 944,still pending in Assembly Local Government Committee,would grant the same permission to Chowchilla AS 1152(Friedman}.Prohibits Certain developers in the San Fernando and Coalinga. Chapter 244, Statutes 011991. Valley from connecting their projects to the dirt portion of Mulholland SB 43(Davis):Sets timelines for counties to move incorporation efforts Drive with a paved road through certain state park lands.Affects Mulholland Park,a Tarzana project being developed by Harland Lee& t forward.This bill is a response,in part,to the lengthy process involved in Associates.Requires payment of equivalent funds to L.A.County the incorporation of Malibu in LA.County. Chapter 37,Statutes of 1991. Transponation Commission for traffic mitigation. Chapter 875.Statutes of ' 1991. CEQA AS 1642(Sher):Clarifies that environmental impact reports must reflect Planning,Zoning, & Development Law the independent judgment of the lead agency;that is,they may not be AS 234(Kelley):Clarifies that building permits issued by counties are still prepared completely by applicants'consultants.This bill came partly in valid in newly incorporated cities and newly annexed areas.A similar bill response to the Friends of La Vina case,which challenged L.A.County's was vetoed last year by Gov. Deukmejian. Chapter 348.Statutes of practice o1 permitting developers'consultants to prepare draft EIRs. 1997 (CP&DR.September 1991). Chapter 905,Statutes o1 1991. AS 266(Hauser):Permits community services district board members in AS 869(Farr):Requires discussion of hazardous waste impact in Mendocino County to serve on area planning commissions. Chapter 970. environmental impact reports,and prohibits use of a categorical Statutes of 1991. exemption when project is proposed on property listed on the state's "Cortese list'o1 hazardous waste sites. Chapter 1212,Statutes o1 1991. public Real Estate Development Conservation AS 865(Brulte):Allows San Bernardino County Flood Control District to C ' C nse(Kelley):Establishes a legal framework for Natural Community develop property for uses unrelated to flood control purposes.Similar power was granted to counties in 1 Conservation Plans,Gov.Wilson's concept of providing broad-based Governor Deukmejian vetoed a conservation planning to protect rare species before they are declared. similar bill last year. Chapter 834,Statutes o1 1991. endangered.Establishes the Coastal Sage Scrub habitat in Southern Redevelopment California as a pilot program. Chapter 765,Statutes of 1991. P AS 315(Friedman):Makes it more difficult for local governments to avoid SB 317(Davis):Gives cease-and-desist authority to State Lands 20%housing setaside requirement.Provisions to increase the Commission and Coastal Commission.Chapter 761,Statutes of 1991. percentage of redevelopment funds set aside for housing were dropped. Chapter 872,Statutes of 1991. S8 906(Hit/rEsjabfshes the California Riparian Habitat Conservation Program to prestrve and restore riparian habitats around the state. AS 1026(Marks):Authorizes San Francisco Redevelopment Agency to Chapter 762,Statutes of 1991. develop transitional housing projects,but prohibits use of 20%setaside to do so. Chapter 1192, Statutes of 1991. General Plans School Fees SB 755(L.Greene):Requires local planning agencies to notify schools SB 7094(Vuich):Exempts housing financed by the Office of Migrant districts o1 proposed general plan amendments. Chapter 804.Statures of Services from school tees.Chapter 536. Statutes of 7991. 1991. Subdivision Map Act Housing AS 749(Hauser):Extends until 1995 the expiration of a state law AS 1929(Hughes):Requires replacement of low-income housing within clarifying that final maps approved by counties are still valid in newly four years of removal. Chapter 730.Statutes of 1991. incorporated cities. Chapter 354,Statutes of 1991. ('rrnlinurJ nn pn,�•r h Planner Ms_ Judy Lautner and Phil Ashley Director Mr. Arnold Jonas 1586 La Cita Court Community Development Department San Luis Obispo, CA 93401 990 Palm Street 756-2505 (work) P.O. Box 8100 544-9741 (home) San Luis Obispo, CA 93403-8100 April 1, 1992 Subject: Summary of recent events regarding the proposed 1673 La Vi ed house projec , and relevent EQA cor}�i,�}era tions ' m�nn4a4antd., q¢ac,Pd4d i Gom,�l ancz u Aye Core Dear Ms. Lautner and Mr. Jonas: GGG 0 On 3/17/92, I testified at the applicant's appeal hearing to the City Council for their house not complying with the City's administrative 20' riparian setback policy. As the applicant's rear property line neighbor sharing stewardship of Sydney Creek riparian resources with them, I testified in support of the Mitigated Negative Declaration (MND) , Architectural Review Commission (ARC) decision, and staff Council Agenda Report all recommending redesign to comply with the 20' riparian setback policy. The Community Development Director (CDD) and City Attorney gave testimony on various portions of the legal and administra- tive backgrounds of this project. Except for asking that all the previous legal and adminstrative records on the project be incor- porated into the current administrative process, ray testimony primarily summarized the current administrative process. I em- phased the importance of the City Council (CC) supporting the City's own administrative 20' riparian setback policy_ Basically this summary testimony of the current project indicated an original MND was circulated for public review in June 1991. That MND would allow the house to have a 1' riparian setback with a riparian conservation easement as mitigation. The biological consultant for the City essentially said that the house being built 1' from Sydney Creek riparian wildlife habitat would _not be a significant adverse impact, since this was the last creekside house project in the neighborhood. Numerous letters from biologists including Calif. Dept. Fish & Game, conservation organizations, and neighbors protested the 1' riparian setback. The main .comment of all these biologists and conservationists was not so much that a single house 1' from the riparian habitat would have a significant impact. Instead they commented that the cumulative effects of many small creekside projects built too close to the creek would be a cumulatively significant adverse impact. To avoid this cumulative adverse impact all of these comment letters said that the appropriate mitigation for this project to protect the ripa- rian wildlife habitat was the City's administrative 20' riparian setback policy. Several of these letters stressed that the conservation easement was not legitimate mitigation, since it merely duplicated an excellent tract map condition stating "Existing riparian vegetation shall not be removed" . Further- 1 more, the conservation easement itself had the disadvantage of allowing existing riparian vegetation removal at the CDD's dis- cretion, whereas the tract map condition did not allow discre- tionary riparian vegetation removal. Based on this overwhelming biological evidence, the City's biological consultant last summer revised his opinion. He indicated that he was not aware the City had a 20' riparian setback policy when he did his assessment, and that if the City has such a policy, they should follow it. He again showed his unawareness of the necessity to assess and mitigate for cumulative adverse impacts under CEQA by indicating he still did not see how one house 1' from the creek would have a significant effect. This missed entirely the point addressed in all the comment letters that the issue here was cumulatively significant adverse impacts of many projects around town too close to creeks. Based on all this new biological evidence, City planning staff then revised the MND last summer requiring that the project be redesigned complying with the City's administrative 20' ripar- ian setback policy as the appropriate mitigation. The applicant appealed staff's decision to the ARC. The ARC said at their 11/4/91 hearing that the applicant needed to rede- sign as close to a 20' riparian setback as possible. They speci- fied this to be 17' to 20' . Immediately after the hearing neighbors discussed the 17 ' to 20' ARC compromise and thought 17' was a disappointment but that as a final compromise wewould accept a minimal 17' wildlife habitat buffer. The significance of the 17' setback as an absolute minimum setback compromise is that 20' is already a limited setback buffer for protecting riparian wildlife. Atascadero is consider- ing a 50' riparian setback buffer for protecting their creek habitat. However, since our City's lots are smaller than theirs, 20' is the best compromise our City has come up with to date to allow normal development and provide some protection to riparian wildlife. Given that the City's 20' riparian setback is already a significant-compromise between development and riparian ecosys- tem protection, setbacks even slightly less than the 20' setback area-compromise to a compromise quickly and ridiculously eroding away any benefits of a setback buffer to riparian wildlife. That is why the 17' minimum setback proposed by the ARC must be consi- dered an absolute minumum buffer for this project. At the next ARC hearing, 2/3/92, the applicant submitted a design with about an 8' riparian setback. Staff called it- a 10' setback measured from the closest wall, but as I explained in my 2/3/92 letter to the ARC, I believe the 10' measurement is inappropriate. I recently built a house in the City, and as I understand the City's setback rules, if the applicant's rear 2- story, cantalevered deck closest to the riparian vegetation was on the side or front of the house, the deck and not the closest wall would be the reference for measuring the setback. If a deck as a structural, cantalevered part of the house is used for measuring front and side setbacks, then it should likewise be used for measuring riparian setbacks. As I have testified be- fore, a 2-story deck with people on it encroaching into treetops, normally birds' safest sanctuary, is a significantly more adverse 2 impact to wildlife than a house wall the same distance away. So from the standpoint of ( 1) the City's own setback measuring rules and (2) the City's and others' biological intent to protect riparian wildlife, the appropriate measurement is from the 2- story deck 8' away from the riparian vegetation and not the house wall 10' away. However, either way, 8' or 10' is a long way from 17' to 20' stated by the ARC and not near adequate for a riparian wildlife buffer. One ARC member, who at the first ARC hearing supported the applicant's noncomplying project, was upset enough with the applicant's disregard for the ARC majority's requirement to re- design with a 17' to 20' setback, that he changed his vote to require the 20' riparian setback. The applicant appealed their noncomplying project to the CC. The Council Agenda Report .on page 2, ALTERNATIVES, indicated that the CC could uphold the appeal and grant a setback of less than 20' if they could make findings that no significant impact would result. The Council Agenda Report then warned that the CC would have to address the issue of cumulative impacts if they upheld the appeal. It further recommended the CC "continue consideration of the request, to allow staff to develop findings and mitiga- tions con81stant with Council direction. For this reason, staff has not provided a resolution approving the appeal with this report. " The City Attorney's testimony at the CC hearing further emphasized the need for the CC to give staff guidance what to do if they upheld the appeal, since substantial amounts of evidence in the administrative record supported the finding for the City's 20' riparian setback as the appropriate mitigation. Despite these warnings to the CC by the Council Agenda Report and the City Attorney, as well as my own, the CC upheld the appeal without addressing cumulative impacts. They also gave no direction to staff to continue the consideration to allow staff- to develop findings and mitigations consistent with CC direction. Basically the CC passed a motion 3 to 2 for staff to "fix'- the findings and resolution so the CC could approve the project. But the CC gave no direction to staff how to do this in light, of the preponderance of evidence against overruling the 20' riparian setback mitigation. There are 2 main CEQA issues here. First, CEQA makes it clear that substantial evidence in the record must support the findings upon which the decision is made. The finding which must be made for a MND is " that the project would not have a signifi- cant effect on the environment as proposed" (CEQA, June 1986 edit. , page 96, second -to last paragraph, last sentence. ) In this case the substantial evidence in the record that this project will not have a significant effect on the environment supports the Council Agenda Report recommendation for the City's 20' riparian setback and not the belated and unassessed 8' riparian setback. How can the CC make a decision on findings that are unsupported by substantial evidence in the file, unless they simply ignore CEQA? Second, the Council Agenda Report and the City Attorney asked the CC to address the cumulative impact issue and to pro- vide a continuance to develop findings and mitigation if the CC 3 upheld the appeal. The CC failed to address cumulative impacts or to continue the proceedings. So now, we.. have a MND with unassessed, inadequate mitigation. If an 8' setback was potentially to be the final "mitigation" for the MND, then that alternative mitigation should have been in the MND for staff and public review. Also none of the public notices, which only indicate an appeal of a 20' riparian setback, or the Council Agenda Report indicate the possibility that the final mitigation would be an unassessed 8' riparian setback wildlife buffer. Instead the Report emphasizes that if the CC upholds the appeal, the "Council continue consideration of the request, to allow staff to develop findings and mitigations. . . . " This indicates assessment time is needed to develops mitigation measures to offset greatly reducing, the riparian setback to 8' . To date this other mitigation has not bePconsidered. CEQA indicates on page 158, under 15162, that a new ND must be prepared when "(1) Subsequent changes. . .require important revisions of the previous EIR or Negative. Declaration. . . " and "(3) New information of substantial importance to the project becomes available" . In this case the subsequent changes and new information is a project greatly different from the one discus- sed in the MND, which was reviewed by the public. Part "(B) 4. " in this CEQA section indicates the new information can be "Miti- gation measures. . . which were not previously considered. . . " The only mitigation discussed in the revised MND that would reduce adverse impacts to an insignificant level was the 20' riparian setback. In the unrevised MND a riparian conservation easement was supplied as "mitigation" for a project with a 1' riparian setback. But, as explained here and repeatedly indicated in the administrative record, that is not bonified mitigation as it duplicates, and also diminishes, the benefits of the riparian tract map condition. No mitigation is discussed for an 8' set- back. And obviously an 8' setback (or 10' for that matter) is not enough by itself to reduce adverse impacts to riparian habi- tat and wildlife to an insignificant level, else the City would have used an 8' (or 10' ) setback in its Administrative Creek Policy, instead of the 20' setback. Though an 8' riparian setback is not adequate mitigation by itself, now that the CC has unfortunately opted for an unassessed 8' setback, mitigation measures not previously considered with a 1' or a 20' setback, because they were unfeasible or unneeded, now become feasible mitigation options to reduce impacts. With a 1' setback planting compensating riparian vegetation anywhere along the riparian area was unfeasible mitigation as it would increase fire hazard to the house and in turn it would have to be continually or permanently removed. With a 20' setback such additional mitigation was not needed. But with an 8' setback there is enough fire buffer to make planting riparian vegetation feasible mitigation, in this extraordinary case. The logical place for riparian planting as mitigation is in the area marked on the attached site plan (Attachment 1) . It is next to existing riparian vegetation and is far enough away from the proposed house that it will not infringe on or reduce the 8' fire buffer. Obviously this mitigation requires irrigation and monitoring to insure its success. Also, to help insure its long-term success 4 as mitigation, this area needs to be recorded with the deed as a riparian conservation easement, since it is not covered by the tract map condition which states "Existing riparian vegetation shall not be removed. " And riparian trees rather than riparian shrubs should be emphasized to insure long-term success, since they are much longer lived andwill therefore require less maintenance and monitoring. Installation and irrigation costs should also be less, as fewer plants will be needed if trees rather than shrubs are stressed. As a result of this new mitigation information, which the ALTERNATIVES section of the Council Agenda report refers to when it says "develop mitigations" , part "(b) " of section 15162 of CEQA also applies stating: (b) If the EIR or Negative Declaration has been completed but the project has not yet been approved, the Lead Agency shall prepare or cause to be prepared the subsequent EIR approving the project. And that is what the City needs to do now to comply with CEQA. Although the CC is the final approval body, it cannot ignore CEQA and approve a project with an MND that does not provide adequate mitigation. CEQA requires feasible mitigation (See Attachment 2, which I also attached to my 2/3/92 letter to the ARC) . The 20' setback is feasible mitigation as indicated by the Council Agenda Report. The 20' riparian setback was also demon- strated to be feasible mitigation at the CC hearing when the applicant's architect indicated 100 different houses could be designed to comply with the 20' riparian setback and all other City requirements, but why should the applicant comply when they prefer their proposed noncomplying house. If all applicant's were granted this approach, the City's administrative 20' ripar- ian setback policy would be of little value and City riparian wildlife would be permanently damaged. The applicant's architect also indicated the 8' riparian setback was a "compromise" , but it was strictly a unilateral maneuver on their part. It was not a compromise to City staff who required 20' , or to ARC, which required the true compromise of 17' to 20' agreed to by neighbors, or to those who reviewed and commented on the MND recommending the use of the City's 20' riparian setback as the proper mitigation. This so called com- promise of an 8' riparian setback was just the developer's tactic to get votes from a developer oriented CC majority. It was not �t legitimate compromise offering feasible mitigation supported by evidence and findings, since all the project evidence and find- ings supported the City's 20' riparian setback. One final point regarding the City's 20' riparian setback policy and this project. The applicant continues to argue that only one little corner of their house infringes on the 20' ripar- ian setback. But as now designed, a length of house 45' long (from the east wall to the west side of the middle 2-story canta- levered deck) extends anywhere from 2' to 12' into the riparian setback and that is not "one small corner- . More importantly the City's Administrative Creek Policy allows a less than 20' ripar- ian setback if 1 of 3 criteria are met, and as noted in the 5 Council Agenda Report, none of those criteria are met for this project. Several of the MND comment letters stated that allowing a setback of less than 20" sets a bad precedent for justifying other projects proposed with a lesser setback. The Council Agenda Report also notes the inappropriateness of allowing this type of lesser setback precedent eroding the creek policy. The importance of avoiding such' a precedent was demonstrated by one of the CC members who used the example of a house encroaching on riparian vegetation behind their house (without explaining whether that house was built before or after the Administrative Creek Policy went into effect) to justify voting for the appli- cant's appeal. It is not logical to use one unjustified project to justify another unjustified project. But that is what happened here and now this one will likely be used to justify future projects that do not comply with the City's Adminstrative Creek Policy. comply with In final analysis thereZEQA no logic or evidence justifying for this project a setback oess than the City's administrative 20' riparian setback. So to the applicant should either ( 1) feasibly mitigate (Attachment 2) with the 20' _r.iparian setback, since both the Staff Council Agenda Report and the applicant state this mitigation is feasible or (2) prepare a new MND with new mitigations (as .indicated in the Council Agenda Report under ALTERNATIVES) for a basically new project with an unasses- sed 8"riparian setback. Also, it is time for the City to put the remedial revegeta- tion plan into effect. The only thing delaying it before was the City's mandatory water conservation program, which was eliminated by the CC on 3/3/92. There is no longer a reason for the appli- cant not to fully comply with the remedial revegetation plan. The applicant can blame the ex-interim CDD, the Fire Department, or whoever else they want for the needless destruction of ripar- ian habitat and its wildlife, but the bottom line is they knew what the approved project conditions were at that time and agreed to them. They cannot play one department of the City against another to mask the applicant's own knowledge and violation of the conditions. If no specific revegetation plan has been submitted, I suggest the one on Attachment 1 . It is simple and likely less costly than a landscaper would devise. It consist of 7 irrigated native trees, these being: 3, 15 gallon coast live oaks, Quercus agrifolia; 2, 5 gallon Calif. laurels, Umbellularia californica, and 2, 5 gallon Calif. sycamores , Platanus racemosa. Unlike the laurels and sycamores, the live oaks are not true riparian trees, but they are often found at the outer edges of riparian corridors as on my side of Sydney Creek. - The larger sized live oaks would have some immediate benefit to wildlife partly compensating for the almost 2-year loss of about 2,000 sq. ft. of riparian vegetation. The 4 smaller sized laurels and sycamores are faster growing and within several years would catch up to the oaks in size compensating further for the loss of habitat. In the long-term, as .the trees mature, they should fully compensate for the habitat destroyed. This remedial revegetation plan also has the advantages of requiring less maintenance and providing longer term habitat benefits than shrubs. The trunks could also be planted along the November 1989 6 edge of the riparian zone to permanently mark the edge. Even- tually the trees would be beautiful amenities to the property adding economic value as well as restoring the riparian habitat. In summary, last time the CC's 3 to 2 vote was somewhat understandable since I was the appellant with no collaborative evidence, due to CDFG not being contacted by the City (probably due to the inexperience of an ex-interim 'CDD) . But this time there was substantial collaborative evidence for the City's 20' riparian setback mitigation including numerous letters from biologists, conservation organizations, and neighbors, a MND, ARC'S decision and theirimony at the CC hearing, and the Council Agenda Report. Thto 2 majority of the council chose to ignore all of this collaborative evidence and that " is diffi- cult to understand. I will ask my attorney, Mr. John' Belsher of Sinsheimer, Schiebelhut & Baggett, to contact the City Attorney to see if there is common ground here to mutually expedite the remaining administrative process. No one, including the 3 to 2 majority of the City Council, though their vote would indicate otherwise, wants more litigation. Reason can rule. I commend all staff, even though we seem to be 'tossed into this again. My motive is as always good stewardship of our City's ecological resources. Sincerely, copies: City Attorneys Ms. Cindy Clemens and Mr. Jeff Jorgensen Attorney John Belsher, Sinsheimer, Shiebelhut & Baggett Law Firm 7 t " " \. _ • •-`-• _ ��•_�— •••• .�~— •�/•-•— ••. Imo'�___ • ..• "%I / R totrlAL 06. ,D /I . REM Oh!PIAT ` r /�_ --_..n ••ice;�:', ' -r FARWJ TM AM PMN oR �. �.•� �! •�'�%%�},•� i MITIGATION A I = -` PyANTINS WARAN MOITAr l ='amu" Z6' •3l�7S ATI-ACffMFMT I 1991 (Fifth) Edition Guide to the California Environmental Quality Act (CEQA) Michael H. Remy Tina A. Thomas James G. Moose Solano Press Books Point Arena, California / 9 9. to provide the people of the State with clean air and water, enjoyment of aesthetic, natural, scenic, and historic environmental qualities, and freedom from excessive noise (section 21001, subd. (b)); ' t 10. to prevent the elimination of fish and wildlife species due to man's '0 activities, ensure that fish and wildlife populations do not drop below self-perpetuating levels, and preserve for future generations representations of all plant and animal communities and examples of the major periods of California history (section 21001, subd. (c)); 12 11. to ensure that the long-term protection of the environment, consistent with the provision of a decent home and suitable living environment for every Californian, shall be the guiding criterion in public decisions (section 21001, subd. (d)); 12. to create and maintain conditions under which man and nature can exist in productive harmony to fulfill the social and economic requirements of present and future generations(section 21001,subd. (e)); 13. to require governmental agencies at all levels to develop standards and procedures necessary to protect environmental quality (section 21001, subd. (f)); and 14, to require government agencies at all levels to consider qualitative factors as well as economic and technical factors and long-term benefits and costs, in addition to short-term benefits and costs and to consider alternatives to proposed actions affecting the environment(section 21001, subd. (g)). B. SPECIFIC POLICIES 1. Feasible Alternatives and Mitigation The most substantive aspect of CEQA is found in Public Resources Code section 21002. That provision forbids agencies from approving projects with significant adverse .impacts when feasible alternatives or feasible mitigation measures can substantially lessen such impacts. (Citizens for Quality Growth v Citv of Mount Shasta (3d Dist. f '2/ This policy statement has been interpreted not to create a cause of action requiring agencies to disapprove projects unless they can guarantee the survival of rare or endangered species affected by such projects. (Sierra Club v Gilrov Citv Council(6th Dist. 1990)222 Cal.App.3d 30, 41-42[271 Cal.Rptr. 393, 398-3991.) ' 8 G 5 _ 1 1988) 198 Ca1.App.3d 433, 440-441 [243 Cal.Rptr. 727, 730-7311; Sierra Club v. Gilroy City Council (6th Dist. 1990) 222 Cal.App.3d 30, 41 1271 Cal.Rptr. 393, 398]; Kim=s County Farm Bureau v. City of Hanford (5th Dist. 1990) 221 Cal.App.3d 692, 711, 730-731 [270 Cal.Rptr. 650, 656, 668-669]; see also section 21081; Guidelines, sections 15002, subd. (a)(3), 15021, subd. (a)(2), 15091, subd. (a).) In this requirement, CEQA differs significantly from NEPA, which the United States Supreme Court has labeled "essentially procedural." (Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council (1978) 435 U.S. 519, 558 [98 S.Ct. 11979 1219]; Robertson v. Methow Valley Citizens Council (1989) --- U.S. ---, --- [109 S.Ct. 1835, 1847].) 1 i a. NEPA Compared In general, according to California's courts, CEQA differs from NEPA in that the state statute places a relatively higher value on environmental protection, compared with economic growth: "The needs of economic growth are expressly recognized in the congressional declaration of policy under the National Environmental Policy Act. The federal government is directed to 'fulfill the social, economic, and other requiremenas.of present and future generations of Americans' as well as environmental goals . . . . The federal government is required only to give 'appropriate consideration' to environmental values . . . . The state statute, on the other hand, suggests that environmental protection is of para,nount concern. A sense of urgency is conveyed in several provisions of the statute. "The Legislative history of [CEQA] also supports the view that environmental values are to be assigned greater weight than the needs of economic growth. * * * The act thus requires decision-makers to assign greater priorities to environmental than to economic needs." San Francisco Ecology Center v. City and County of San Francisco(1st Dist. 1975) 48 Cal.App.3d 584, 590-591 [122 Ca1.Rptr. 100, 104].) - NEPA requires only that federal agencies must "consider" the potential significant adverse environmental impacts of their "major" actions as described in "environmental impact statements" ("EISs"). (42 U.S.C. section 4332, subd. (B), (C); Citizens to Preserve Overton Park Inc v Volpe (1971) 401 U.S. 402, 416-417 [91 S.Ct. 814, 823-824]; Strycker's Bay Neighborhood Council. Inc. v. Karlen (1980) 444 U.S. 223, 227-228 [100 S.Ct. 497, 500].) The EIS must evaluate all reasonable alternatives and must suggest appropriate mitigation measures; but, although the agency 9 1-DUS1 "Consider" these proposals. it has no jnand.iiory cjl;-1. it they 4. are feasible. (40 C.F.R. section 1502. 14; Robertson v. C111( Council (1989) -- U.S. t1()9 S.O. 1835, 18461.) In other words, as to those matters subject to their statutory discretion, federal agencies can CITeCLively ignore the conclusions of an EIS, even regarding alternatives and mitigation, and can take actions causing grave environmental damage. (Vermont Yankee, stil2ra, 435 U.S. at 558 [98 S-Ct. 1197, 1219] (narrow construction of NEPA; statute is "essentially procedural"; Robertson, supra, --- U.S. at --- [109 S.Cj. 1835, 1846] ("[a]lthough these procedures are almost certain to affect the agency's substantive decision, it is.now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process"); aLDKkgLjLRgy, supra, 444 U.S. at 227-228 (100 S.Ct. 497, 500] only role for the court is to ensure that the agency has considered the environmental consequences [of its action]").) Because CEQA was modeled on NEPA, the California courts have generally looked to federal cases interpreting the latter statute as "strongly persuasive" authority as to the meaning of the former. (See Friends of Mammoth v. Board of Supervisors (1972) 8 CaI.3d 247, 261 [104 Cal.Rptr. 761, 769-770]; Environmental Defense Fund, Inc. v. Coastside Water District (1st Dist. 1972) 27 Cal.App.3d 695, 701 [104 Cal.Rptr. 197, 200]; No Oil. Inc, v. City of Los Angeles (1975) 13 Cal.3d 68, 86, fn. 21 [l 18 Cal.Rptr. 34, 46]; Mount Sutro Defense Committee v. Rerutsof -211-e University of California (1st Dist. 1978) 77 Cal.App.3d 20, 35-38 [143 Cal.Rptr. 365, 373-3751.) Because the California statute is more protective of the environment, ;.2 however, it seems fair to sav that NEPA cases generally set the environmental floor but not the ceiling for interpreting CEQA. (See San Francisco EgalggLfe=, sunra, 48 P Cal.App.3d at 590 (122 Cal.Rptr. 100, 104].) In other words, the federal cases are persuasive authority whenever they require environmental protection on issues not yet reached by California courts; but the state courts may find that the federal precedents require too little such protection, particularly when CEQA's substantive mandate is at issue. b. Substantive Provisions of CEQA In contrast to NEPA, CEQA Le -quires agencies to implement feasible mitigation measures or feasible alternatives identified in EIRs for projects that will otherwise cause slgnificant-adv'e-rseimpa-c-6s- (Sections 21002, 21081; Guidelines, sections 15002, subd. 10 (a)(3), 15021, subd. (a)(2), 15091, subd. (a); Sierra Club v. Gilroy City Council (6th Dist. 1990) 222 Cal.App.3d 30, 41 [271 Cal.Rptr. 393, 398]; Kings County Farm Bureau of Hanford (5th Dist. 1990) 221 Ca1.App.3d 692, 711, 730-731 [270 Cal.Rptr. 650, 656, 668-669].) 13 Thus, in such cases an agency cannot satisfy the statute simply by "considering" the environmental impacts of a proposed project. (S-Ct also Burger v County of Mendocino (1st Dist. 1975) 45 Ca1.App.3d 322 (119 Cal.Rptr. 568].) In order to effectuate the substantive mandate of Public Resources Code section 21002, an agency approving any project for which an EIR identified significant impacts must make appropriate findings for each significant impact identified in an EIR. (Citizens for Quality Growth v. City of Mount Shasta (3d Dist. 1988) 98 Cal.App.3d 433, 440 [243 Cal.Rptr. 727, 730], citing Guidelines section 15091.) Three different findings are possible. The first option is to find that "[c]hanges or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect . . . ." (Guidelines, section 15091, subd. (a)(1); see also section 21081, subd. (a).) Such a finding fully satisfies section 21002. The second option is to find that "[s]uch changes or alterations are within the responsibili?y and jurisdiction of another public agency," and that "[s]uch changes have been adopted by such other agency or can or should be. adopted by such agency." (Guidelines, section 15091, subd. (a)(2); _ee also section 21081, subd. (b).} This finding has limited application, however; agencies cannot avoid imposing conditions within their power simply because some other agency, with subsequent permitting authority over a project, also has the ability to impose similar or related conditions. (Citizens for Quality Growth, supra, 198 Cal.App.3d at 443, fn. 8 [243 Cal.Rptr. 727, 732], citing Guidelines section 15020 (rejects agency's argument that adoption of mitigation measures for loss of wetland was sole responsibility of Army Corps of "/Aside from this mandate, the courts have been reluctant to find other substantive duties in CEQA. In Sierra Club v. Gilroy City Council (6th Dist. 1990)222 Cal.App.3d 30, 41-42 [271 Cal.Rptr. 393. 398-399], the Court of Appeal rejected the argument that section 21001, subdivision (c), prevents agencies from approving projects unless they can guarantee the survival of rare or endangered species affected by the projects. The Court held that the cited provision contained a mere"policy statement' that did not supersede other statutory provisions and case law recognizing agencies'ability to approve projects with significant environmental effects where mitigation measures and environmentally superior alternatives have been found to be infeasible. 11 STATE OF CALIFORNIA—THE RESOURCES AGENCY PETE WILSON, Goromor DEPARTMENT OF FISH AND GAME . A R E C E IV ED P.O. Box 1535 Morro Bay, CA 93443 APR 2 41992 ( 805 ) 772-4122 CITY OF SAN LUIS OBISPO 22 April 1992 COMMUNITY DEVELOPMENT Ms. Judy Lautner Community Development Department 990 Palm Street P.O. Box 8100 San Luis Obispo, CA 93403-8100 Dear Ms . Lautner: 1673 La Vineda Court , San Luis Obispo As you are aware , in several letters to your Department we have expressed our concern regarding maintenance of a twenty foot riparian setback for the subject single-family residence on Acacia Creek in San Luis Obispo . Recently, in spite of staff and ARC recommendations to preserve this setback, your city council voted to uphold the applicant ' s appeal of the 20 ' setback requirement . Of particular concern is the precedent setting nature of such a decision and its impact on creek policy citywide . As far as we can discern, the setback could readily have been met on the lot ; we believe that exceptions to such setback requirements should be made only when no viable alternatives exist. We strongly advocate the concept of creek setbacks as a means of ensuring the long-term maintenance of our sensitive resources and still maintain that this is the most appropriate form of mitigation for such a project . If the City is to adopt the subject Negative Declaration with inadequate setbacks, we recommend that it only do so with accompanying mitigation measures to offset the loss of this buffer. As we mentioned in our letter of 6/13/91 , creation and maintenance of additional riparian habitat elsewhere on the drainage could serve as an appropriate means to mitigate this loss . The mitigation site should preferably be on the parcel , and should not currently have substantial habitat value . We recommend that an area at least twice the size of the encroachment be vegetated with willow, sycamore , blackberry, and other appropriate riparian species on at least 4-foot centers, and that this area be maintained through irrigation until well-established. Unsuccessful plantings should be replaced to ensure a minimum of 80% survival at the end of three years. We further recommend that a monitoring report, including photographs of the site , be submitted annually for three years to ensure its success . AB 3180 requires that whenever an agency adopts mitigation measures as part of a Negative Declaration or EIR, that agency must also adopt a reporting and monitoring plan to ensure compliance with such mitigation measures. We still support maintenance of the 20 foot setback as the most desirable form of mitigation. However, we hope the City will ensure that if this buffer is to be compromised, it does not occur without appropriate mitigation. If you have questions please contact me at (805 ) 772-4122 . Sincerely, Karen Worcester Associate Fishery Biologist cc : Mr. Keith Anderson, Mr. Phil Ashley TZv;seyz �ZAC-(ok-PM Lt SAl � Fm -q4. a � NQS .�L�le(Z l Ai'A 6cA4 euao , q 3k z2 RECEIVED APR 2 31992 CITY OF SAN LUIS OBISPO COMMUNTfY DEVELOPMENT l(0`13 LJ', grLl, r�►'�c` G I o�cL�ulJ. 6 L?I �� .�}�L°�t� Lwe �`'`� t12fcz a,�• ,Le..ie Ih �t� G , �y ` 4Le- T i T 6u-:c �E Awl 3 ,►q9 �e � e to SL,`t pc>otAWQ 2eCD�v�v�r�P AoAt�J � ��-� YJL`U� A•e�,c� p s;f hIL% s c�P c� S a"l +a JA� L or% exce1S /tee l 15� R�` ^^ s�cam,S f([�(w.e.Vrn i�C`�J�,-�L w. uiu"t tx l 5 ►�%Al`atATtOtisz %Lx�r�uv�e u� L'tA� L G-✓`S``2p-`/.`�3 e- v`�ew5 , �b"t'�c�� `�-�,c.e Rt�`�. v.�a��p 1 ��j ��,►.�1�- `ldt- H LIJit��A�Q �-r • SIERRA CLUB �.. SANTA LUCIA CHAPTER 1281 17th Street .uvwa,n ,r ® ,Bga Los Osos, CA 93402 April 20, 1992 Mr. Arnold B. Jonas, Director Community Development City of San Luis Obispo San Luis Obispo, CA 93401 Dear Mr. Jonas: I am writing in regard to the proposed negative declaration ER 6-91 for con- struction at 1673 La Vineda. The Sierra Club continues to oppose strongly any exemption of the guideline 20 foot riparian setback, as we noted previously in our letter of June 15, 1991. The city's Administrative Creek Policy is quite clear about the allowable reasons for a lesser setback, and it is equally clear that none of these rea- sons is applicable to the present proposal. The riparian setback was estab- lished for sound ecological reason, providing plant and wildlife protection in a sensitive environment. It is noted in the staff report for the March 17 appeal that the applicant simply does not wish to comply with city policies, with staff recommendation, and with the ARC approved 20 foot setback. This is not an acceptable reason for providing an exemption. Exemptions for no reason simply encourage further appeals and further exemp- tions. In that case, why bother having policies at all? The Sierra Club requests that the City of San Luis Obispo uphold its establish- ed policies and not issue a negative declaration for an exemption to the 20 foot riparian setback. For the Conservation Committee: Sincerely, �- Randall D. Knight, Ph.D. - Conservation Chair cc: City Council Judith Lautner RECEIVED APR 2 1 1442 CITY OF SAN LUIS oBlsPo COMMUNRY DEVELOPMENT . To explore. enIOY, and protect the nations 1rr121[ rrso"Ire's . • c SIERRA CLUB SANTA LUCIA CHAPTER FOUNDED41N t� 1281 17th Street eBga Los Osos, CA 93402 April 20, 1992 Mr. Arnold B. Jonas, Director Community Development City of San Luis Obispo San Luis Obispo, CA 93401 Dear Mr. Jonas: I am writing in regard to the proposed negative declaration BR 6-91 for con- struction at 1673 La Vineda. The Sierra Club continues to oppose strongly any exemption of the guideline 20 foot riparian setback, as we noted previously in our letter of June 15, 1991. The city's Administrative Creek Policy is quite clear.about the allowable reasons for a lesser setback, and it is equally clear that none of these rea- sons is applicable to the present proposal. The riparian setback was estab- lished for sound ecological reason, providing plant and wildlife protection in a sensitive environment. It is noted in the staff report for the March 17 appeal that the applicant simply does not wish to comply with city policies, with staff recommendation, and with the ARC-approved 20 foot setback. This is not an acceptable reason for providing an exemption. Rxemptions for no reason simply encourage further appeals and further exemp- tions. In that case, why bother having policies at all? The Sierra Club requests that the City of San Luis Obispo uphold its establish- ed policies and not issue a negative declaration for an exemption to the 20 foot riparian setback. For the Conservation Committee: Sincerely, Randall D. Knight, Ph.D. Conservation Chair cc: -City Council Judith Lautner . . . To erplore. enjoy, and protect the nation's srenic rrsources . . . CAL POLY CALIFORNIA POLYTECHNIC STATE UNIVERSITY SAN Luis Owsro. CA 93407 BIOLOGICAL SCIENCES DEPARTMENT (805) 756-2788 City Council Members and Eric V. Johnson, Ph. D. Mr. Arnold Jonas, Communtiy Professor of Biology Development Director Biological Sciences Dept. 990 Palm Street 20 April 1992 P. 0. Box 8100 San Luis Obispo, CA 93403-8100 = Dear Council Members and Mr. Jonas: A public notice in the Telegram Tribune April 3, indicated that -'on March 17, the City Council upheld an appeal for a ripar- ian setback of less than 20 ft. for a proposed house at 1673 La Vineda. As indicated in my previous letters on this project June 9, 1991, and March 26, 1991, I am a biology professor at Cal Poly teaching courses in ornithology and endangered species among others. The public notice does not indicate how much closer the house will be built to the riparian vegetation than 20 ft. , which is just as well, since the degree of a lesser setback is not the issue. The City's 20 ft. setback, though exemplary, is a modest protective buffer for most bird species to- begin with. Anything less than 20 ft. is inadequate mitigation for maintaining quality bird habitat. The easement the City is recommending in lieu of a 20 ft. riparian setback is also inadequate mitigation. It may protect the riparian vegetation, but for wildlife it does not provide the necessary protective buffer between their riparian habitat and development. The minimum 20 ft. setback in the City's Admini- strative Creek Policy provides this necessary buffer. Building with a lesser setback where it is not a hardship case; as indicated here by project records, quickly undermines the intent of the Administrative Creek Policy to protect creek wildlife habitat. Once again I urge that the City Council adhere to its minimum 20 ft. riparian setback policy. Your actions to the contrary will ultimately eliminate many wildlife species, including those of birds, from our City. Only through your consistent application of the 20 ft. riparian setback can the City maintain its riparian habitat for a diversified wildlife population. Sincerely, RECEIVED Eric V. Johnson, Ph. D. APR 2 5 1992 Professor of Biology Biological Sciences Dept. CrT Y OF SAN LUIS 081SPo COMMUNRY DEVELopWNT THL CALIFONNIA ?I.A11 l This letter is being written as part of the public comment as advertized on April 3, 1992 for the development at 1674 La Vineda. As the City Counsel approved the proposed plans for a house at 1674 La Vineda to be built with a ten foot set back from the riparian vegetation. Many very important issues were not addressed, nor did they give any direction to staff on how to mitigate the impact of the development in a area were studies and reports show there is no hardship for a design on this lot. The findings ofprevious studies and staff recommendations are still on file along with the guidelines that must be met when changes in a development occur. The .findings on file and the previous decision of the Community Development Department shows the development would have a impact on the area. The majority of the mitigation measures required at this point do not serve the purpose of the mitigation requirement because they duplicate existing tract conditions. There is no requirement for the vegetation that was removed to be replaced. The City did require me to replace a removed tree with five 15 gala native plants or trees. Nothing to date has been done to mitigate the vegetation removal that took place last year. It is my understanding and minutes of the meeting show that the applicant has asked for a ten foot setback from the vegetation and that is what the City Council approved. This was explained to be a compromise to the twenty foot setback that staff was recommending. The distance that was on the proposed plan was less than a ten foot setback. So what was actually passed, the ten foot setback as the compromise was explained by the architect or the plan that we have that is in conflict with the request? Existing City zoning ordinance does not allow any structural part of a house to encroach into front, side or rear setbacks. This means that the house or its decks can not encroach into this ten foot setback approved by the council. It does allow for non- structural portions such as a roof . overhang to encroach a maximum of two feet. This means the house footings themselves may be fifteen to twenty feet from the setback line, depending on the dimensions of the proposed decks. I understand that the Community Development Department has spent numerous hours of staff time on this project. I feel that this not the time to give up but to come up with some new ideas that would truly help mitigate the impact instead of duplicating existing conditions and using mitigation measures that were submitted by the developer. Re��lly ubmitted Richard Fisher RECEIVED 1691 La Vineda San Luis Obispo, Ca. 93401 APR 1 61942 cm OF SAN Luis OBISPO OOMMUNfTY MVBOPMENr San Luis Obispo City Council Dr. David J_ Keil 990 Palm Street Professor of Botany Post Office Box 8100 Biological Sciences Dept_ San Luis Obispo, CA 93403-8100 Cal Poly University San Luis Obispo, CA 93407 21 April 1992 Dear Council Members: I understand that 17 March 1992, the City Council overruled the City's 20 ft_ riparian setback permitting a house to encroach closely on riparian habitat at 1673 La Vineda. In past letters on this project I provided my credentials, qualifications and biological opinions. In my letter 5 March 1991, I explained in detail the ecolog- ical importance of riparian areas as habitat for plants and animals. I also explained how this riparian habitat has been drastically reduced to about 10% of what it once was in Califor- nia primarily resulting from the cumulative adverse impacts of numerous streamside projects. In my letter 10 June 1991, I explained the integral relationship between riparian plants and animals indicating an adequate riparian setback buffer from development is as important for plants as it is for animals. For this and other riparian projects in the City, setbacks of less than 20 ft. are ecologically inadequate. There is no other mitigation that can compensate for the elimination of the City's protective 20 ft. riparian setback mitigation promulgated through the City's own Administrative Creek Policy. At the upcoming hearing on this project, please reverse your past action for a lesser setback and require the 20 ft. riparian setback as the appropriate mitigation. Sincerely, U David J. Keil Copy: Ms. Judy Lautner, Project Planner RECEIVED APR Z 5 1992 CITY OF SAN LUIS OBISPO COMMUNTTY DEVELOPMENT lip�i r . win I /�.PRO K F-M-row.T IMMA = hili ■ , 17 -054 MAO gig, i ,mss/ r Bull 'L. -. 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'/L. �,/ � !/'/a"t _ •�i/ t_ � �/ a ._��• r��._, �/. . �L�L►_� /. ��i .� III /�,t�I/J /�. .I_ /�� Ill . . � 1 i i 1 I I t It s-.' ._ •• ,._.. t � � 1 ' r � ,.. � \ 1 �� • 11 ,_`r �� . •" ..\ �', - I, -. \ .� � 4 . � - , , t , t; � • �' t. l 4+ _ I I` \ _ \ _ . I ', '\ � - - - _ ,L l • I �. l } _ - ,� ' ,. ' .. - , `t •, I ,_ •, ' I. i 1 . � I t 1 1 •R ', \ -• \ t l 1 1 � _ .. .1 `'i� � `\.. � / /, / /L.y, . �/ _9 / I:► . MW InLi MA OEM �.� ` '� ��►� :/�� , � .•��..�_�. ,,_ _�� . ,ice �ii'�`�.�i , iro / - KFAMMEMOMOP_ArAM7MM5 / it NO /i /. i /. .Nf/ ill �� - �/. / „I• . 9i/.� i . . /, •, ._�/. L[/ .��r / i LF /ai /• ///.� /// Il/ ./� •I/ 1 . A_� �l►� JLit ! .0 ! • 1 , ,,._.� . . .i05 /JI i! ...� i. ,/I/ �. !� _LSI _ � ♦ �. ,.[".�_I ,�J /.:L' ,.i��.'/. 1 .�_II/► i i i �/• /J I. i v On —Iwo-JW4 WIA POP At 41 Isdr /. /, .�� a C _ r r nT t _ - ♦ t t �.1 .t 40OL31'ATE OF CALIFORNIA—THE RESOURCES AGENCY PETE WILSON, Govemor DEPARTMENT OF FISH AND GAME . e_ P.O. Box 1535 Morro Bay , CA 93443 ( 805 ) 772-1122 22 April 1992 Ms . Judy Lautner Community Development Department 990 Palm Street P.O. Box 8100 San Luis Obispo , CA 93403-8100 Dear Ms. Lautner: 1673 La Vineda Court , San Luis Obispo As you are aware , in several letters to your Department we have expressed our concern regarding maintenance of a twenty foot — riparian setback for the subject single-family residence on Acacia Creek in San Luis Obispo . Recently, in spite of staff and ARC recommendations to preserve this setback, your city council voted to uphold the applicant ' s appeal of the 20 ' setback requirement. Of particular concern is the precedent setting nature of such a decision and its impact on creek policy citywide. As far as we can discern, the setback could readily have been met on the lot; we believe that exception: to such setback requirements should be made only when no viable alternatives exist . We strongly advocate the concept of creek setbacks as a means of ensuring the long-term maintenance of our' sensiti•. e resources and still maintain that this is the most appropriate form of mitigation for such a project . If the City is to adopt the subject Negative Declaration with inadequate setbacks , we recommend that it only do so with accompanying mitigation measures to offset the loss of this buffer. As we mentioned in our letter of 6/13/91 , creation and maintenance of additional riparian habitat elsewhere on the drainage could serve as an appropriate means to mitigate this loss. The mitigation site should preferably be on the parcel , and should not currently have substantial habitat value. We recommend that an area at least !.wice the size or the encroachment be vegetated with willow, sycamore , blackberry ,' and other appropriate riparian species on at least 4-foot, centers , and that this area be maintained through irrigation until we].].-established. Unsuccessful plantings should be replaced to ensure a minimum of 80% survival at the end of three yr.-..ars . We further recommend that a monitoring report, including photogl'aplrs of the site , be submitted annually for three years to e'lrsur•e its success . AB 3180 requires that whenever an agency adopts Initiation measures as part of a Negative Declaration or EIR, that agency must also adopt a reporting and monitoring plan to e11su1:• 1ompliance with such mitigation measures. We still support maintenance of the 20 foot setback as the most desirable form of miti. ation. However, we hope the City will ensure that if this buffer is to be gompromised, it does not occur without appropriate mitigation. If you have questions please contact me at ( 805 ) 772-4122 . Sincerely, Karen Worcester Associate Fishery Biologist cc: Mr. Keith Anderson, Mr. Phil Ashley I�IN�IrIIIIUIIIIIIIII�i��plf MEETING GATE: c� o san IS OBISPO -= - -- COUNCIL AGENDA REPORT ITEM NUMBER: FROM: Arnold Jonas, Community Development Director o BY: Judith Lautner, Associate Planner SUBJECT. ARC 89-80: Adoption of resolution upholding an appeal of the Architectural Review Commission's (ARC) action approving, with one condition, a house on a sensitive site, on the southeasterly side of La Vineda, east of Johnson Avenue. CAO RECOMMENDATION Adopt a resolution upholding the appeal, including changes to the initial study that support the Council's action. Background At its March 17 hearing, the Council acted to uphold an appeal of the Architectural Review Commission's (ARC'S) action. The ARC approved a house with a condition requiring a 20' setback from riparian vegetation. The applicants appealed the approval's condition, asking instead for a lesser riparian setback. The Council approved the applicant's request, and directed staff to return with appropriate findings and conditions to support approving the project with a lesser setback (approximately 10' instead of 20'). DISCUSSION 1. Public reaction. Since the 20' riparian setback was a mitigation measure of the environmental initial study as well as a condition of ARC approval, the revised initial study was re-advertised on April 3, 1992, and a new 21-day review period was initiated on that date. During the review period, the Community Development Department received several letters, all opposed to the Council's direction to reduce the riparian setback. Copies of these letters are available in the City Clerk's office for review (copies were distributed to Councilmembers as they were received). The primary message in each of the letters is that there are no exceptional circumstances that would warrant an exception to the city's administrative creek policy, and that a twenty-foot setback from the riparian vegetation should be required for all improvements on this site. The site is large, and the house could be redesigned to fit within the remaining lot area. One letter-writer (Ashley) suggests a compromise: require additional riparian planting in the area below the 360' contour line, to improve the habitat value of the site (see "attachment 1" from Ashley's letter, attached to this report). 2. Applicant's position. The applicant's representative has also submitted a letter that argues that several exceptions have been granted to the creek policy in the past, and that there are circumstances existing that make development nearer the street difficult, such as the steep slope of the site and the need to connect with the sewer line in La Vineda. This letter is also available for review in the City Clerk's office. The representative has indicated that the property owner may be willing, as an s °I! jjia city O� San tt 0BISpO ,��,►�i�i, COUNCIL AGENDA REPORT i Page 2 indication of his commitment to the creek, to do additional planting in the proposed easement area (below the 360' contour line). 3. Modification of mitigation. To further strengthen and clarify recommended mitigation measures, staff is recommending a change to the conditions of the proposed creek easement: (Old wording to be removed indicated by strickea letters; new wording by italics: Mitigation measures: 1. To mitigate the effects of placing the building close to the riparian vegetation, the property owner shall grant to the city an easement covering the riparian area, for the purpose of protecting sensitive riparian habitat. Conditions of i the easement shall include the following: ' No structures or solid fencing shall be placed on or within the easement area. ' The general topography of the easement area shall be preserved substantially in its existing condition. No grading shall be allowed except as permitted by the Community Development Director. ' No removal of vegetation shall be allowed, except for fire protection or other hazards, or for the elimination of diseased growth as approved by the Community Development Director. Any landscaping done within the easement shaH be native species =dI i i i Alf unvegetated area below the 360' elevation shall be irrigated and planted with native riparian species, according to a landscape plan j submitted for the approval of the Community Development Director. The Community Development Director will route the plan to the Department of Fish and Game (DFG) for comment, prior to action OTHER DEPARTMENT COMMENTS Other departments have no concerns with this request at this time. FISCAL IMPACTS Either an approval or a denial of the appeal would have no fiscal impact on the city. �a city o� San t 3 OBIspo - COUNCIL AGENDA REPORT Page 3 ALTERNATIVES The Council may adopt a resolution approving the appeal, as recommended by staff or with additional modifications to the findings or conditions. Any change to the previously- i advertised mitigation measures, that would lessen the environmental protection of the site intended by the advertised mitigations, would require an additional 21-day review period and final action by the Council after that time. Therefore, if the Council is considering such a move, it should continue final action pending passage of that 21-day period. iThe Council may continue action, with direction to staff and the applicants/appellants. The Council may not adopt a resolution denying the appeal, since the action to approve it has already been taken. i Attached: Draft resolution Vicinity map initial study i Administrative creek policy I "Attachment 1" from Ashley's letter Available in City Clerk's office: Letters from citizens responding to modified initial study (received after April 3, 1992) Representative's letter dated April 3, 1992 Plans i I I � I I - I i I I I �-3 RESOLUTION NO. (1992 Series) A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO APPROVING AN APPEAL OF THE ARCHITECTURAL REVIEW COMMISSION'S ACTION, THEREBY APPROVING A RESIDENCE ON A SENSITIVE SITE, AT 1673 LA VINEDA, AS SUBMITTED. (ARC 89-80) BE IT RESOLVED by the Council of the City of San Luis Obispo as follows: SECTION 1. Findings. That this council, after consideration of public testimony, the applicant's appeal, and the Architectural Review Commission's action, staff recommendations and reports thereon, makes the following findings: 1. The proposed residence, as amended by the additional mitigation noted below, will not harm the health, safety, or welfare of persons in the vicinity. 2. There is no substantial evidence that the proposed residence, as amended by the additional mitigation noted below, will have a significant effect on the environment and hereby is granted a negative declaration of environmental impact. 3 . There is no substantial evidence that approval of this project, as amended by the additional mitigation noted below, will have the cumulative environmental effect of setting a precedent of failing to abide by the Administrative Creek Policy, for these reasons: First, this project falls within the lesser setback criteria of the Administrative creek Policy because: (1) the channel in question is minor and not judged to be a significant riparian corridor; (2) the configuration and slope of the lot makes reasonable development without some exception impossible; and (3) the. lot is the last infill site where an irregular pattern of setbacks has been established. Second, the Administrative Creek Policy expressly recognizes that the Policy is to,be a guideline which can be departed from when the intent can be met through alternative approaches. In this case, the open space easement with conditions is such an alternative approach. Therefore, the Administrative Creek Policy has been followed. Resolution No. (1992 Series) ARC 89-80: 1673 La Vineda Page 2 4 . The existence of a public controversy over the environmental effects of the project does not require the preparation of an environmental impact report because there is no substantial evidence before this Council that the project may have a significant effect on the environment . The City Council 's disagreement with staff and the Architectural Review Commission does not constitute a serious public controversy. (Perlev v. County of Calaveras (1982) , 137 Cal.App. 3d 424, 436, 187 Cal.Rptr. 53 , 61 . ) Moreover, those opposing the project have expressed a general desire for strict adherence to creek setback policies in general, but they have failed to adequately analyze this particular Administrative Creek Policy. Therefore, the opponents ' fears and desires about this project lack an objective basis for challenge and do not rise to the level of a serious public controversy . (Perlev, supra, 137 Cal.App. 3d at 436; Newberry Springs v. San Bernardino (1984) , 150 Cal.App. 3d 740 , 749 , 198 Cal.Rptr. 100, 105. ) 5 . The proposed residence 's setback from the creek and from the riparian vegetation is consistent with other creek setbacks approved by the City in the vicinity. SECTION 2 . Environmental review. The environmental initial study is hereby amended by replacement of mitigation measure no. 1 with the following: 1. To mitigate the effects of placing the building close to the riparian vegetation, the property owner shall grant to the city an easement covering the riparian area, for the purpose of protecting sensitive riparian habitat. Conditions of the easement shall include the following: * No structures or solid fencing shall be placed on or within the easement area. * The general topography of the easement area shall be preserved substantially in its existing condition. No grading shall be allowed except as permitted by the Community Development Director. * No removal of vegetation shall be allowed, except for fire protection or other hazards, Resolution No. (1992 Series) ARC 89-80: 1673 La Vineda Page 3 or for the elimination of diseased growth as approved by the Community Development Director. * All unvegetated area below the 360 ' elevation shall be irrigated and planted with native riparian species, according to a landscape plan submitted for the approval of the Community Development Director. The Community Development Director will route the plan to the Department of Fish and Game (DFG) for comment, prior to action. Monitoring: City staff will require the easement to be recorded prior to issuance of a building permit. SECTION 3. The appeal is hereby approved and the proposed residence is approved as proposed. On motion of , seconded by , and on the following roll call vote: AYES: NOES: ABSENT: the foregoing resolution was passed and adopted this day of , 1992 . Mayor ATTEST: City Clerk Resolution No. (1992 Series) ARC 89-80: 1673 La Vineda Page 4 APPROVED: ce61 City inistra ve Of J&rcer C for ey Community Devel ent Director etiti - 6'11 4J 100< 67, � },`�r1 � // .. �"E'::i;i'::?:.:.til'7•^::;:�.:.::::`:�::•:':i':�.`:?':i�:'.`•'. , do r 'r 4. Al • _ \. Q� M � j 6 41 9cj � / I ••• • Sv L �r •• ;,' � � \ ,.y as ,�y ��: •,o L� I I t / \ a1 � Ly 'fir ••• I r. . SAS`-i i y' �' - 0 •• •• n, 16 Ja� O O 4:. O -, Y : r n• • • r > • a f • 0 ✓ I • sk city of San WIS OBISpo INITIAL STUDY OF ENVIRONMENTAL IMPACT SITE LOCATION 1673 La Vineda APPLICATION NO.6-91 PROJECT DESCRIPTION Construction Of a single-family house on a 20, 460-square- foot sensitive site. The site slopes downward from the street to a creek, which is lined with mature riparian vegetation. APPLICANT Mike Hernandez STAFF RECOMMENDATION: X NEGATIVE DECLARATION X MITIGATION INCLUDED EXPANDED INITIAL STUDY REQUIRED ENVIRONMENTAL IMPACT REPORT REQUIRED PREPARED BY Judith Lautner, Associate Planner DATE Oct 2 , 1991 COMMUNITY DEVELOPMENT DIRECTOR'S ACTION: n C, DATE SUMMARY OF INITIAL STUDY FINDINGS I. DESCRIPTION OF PROJECT AND ENVIRONMENTAL SETTING 11.POTENTIAL IMPACT REVIEW POSSIBLE ADVERSE EFFECTS A. COMMUNITY PLANS AND GOALS ................................................... NONE* B. POPULATION DISTRIBUTION AND GROWTH.......................................... NONE C. LAND USE ....................................................................... NONE D. TRANSPORTATION AND CIRCULATION ....................................... NONE E. PUBLICSERVICES ................................................................ NONE F. UTILITIES...................................................................... NONE G. NOISE LEVELS ........................... ....................................... NONE H. GEOLOGIC&SEISMIC HAZARDS&TOPOGRAPHIC MODIFICATIONS .................... NONE I. AIR QUALITY AND WIND CONDITIONS................................................ NONE J. SURFACE WATER FLOW AND QUALITY .......... NONE IG PLANT LIFE...................................................................... YES* L ANIMALLIFE.............:....................................................... YES* M. ARCHAEOLOGICALIHISTORICAL ......................... NONE N. AESTHETIC ...................................................................... YES* 0. ENERGYIRESOURCE USE ......................................... NONE* P. OTHER ... . ........... ..... . . . ................ ........ ........................... NONE 111.STAFF RECOMMENDATION NEGATIVE DECLARATION, WITH MITIGATION S�9 'SEE ATTACHED REPORT saes ENVIRONMENTAL INITIAL STUDY ER 6-91 1673 La Vineda PROJECT DESCRIPTION AND ENVIRONMENTAL SETTING The applicants want to build a 3 , 191-square-foot (including garage) two-story house on a large, sloping site. The house is to be placed about 30 ' from the street property line, and at the rear ranges from about one foot to about 36 ' from the dripline of riparian vegetation that existed in November 1989 , the point at which vegetation growth had reached its highest point. (After November 1989, some of the vegetation was removed, as explained below. ) The 20, 460-square-foot site is irregularly shaped and slopes down from the street at approximately 15%. A tributary of Acacia Creek crosses the southerly portion of the site, which is lined with mature riparian vegetation, mostly willows, but also live oaks . A 15 foot drainage and utilities easement also crosses the southerly boundary of the site approximately parallel to the creek. Surrounding land uses include recently built single-family homes and vacant residential lots. POTENTIAL IMPACTS Community Plans and goals Land use element - Hillside standards: The general plan land use element (LUE) includes a section on hillside development ("Hillside Planning Policies and Standards" - Section D of the LUE) . Included in this section are "hillside standards" - standards for building on hillside lots. The proposed house is on a sloping. lot. However, it is not a "hillside lot" as defined by the land use element. The LUE (Section D. 2) says: THE LAND USE AND DEVELOPMENT STANDARDS PRESENTED IN THIS SECTION ARE APPLICABLE TO THE AREAS IDENTIFIED IN THE HILLSIDE PLANNING PROGRAM (SEE MAP sl) . ALL SPECIFIC PLANS, SUBDIVISION MAPS, ANNEXATION APPLICATIONS OR DEVELOPMENT PROPOSALS WITHIN THESE AREAS MUST BE CONSISTENT WITH THESE PROVISIONS. The project site is not within the Hillside Planning Program areas, as shown on Map #1 in the LUE. Therefore, the hillside standards do not apply to this project. Conclusion: Not applicable, therefore not significant. General 'plan safety element: The safety element addresses potential dangers from fire, flooding, earthquakes, and other_ natural and man-made hazards. Policy 2 . 0 says: . 5-10 ER 6-91; - 1673 La Vineda Page 2 ENSURE THAT NEW DEVELOPMENT WITHIN THE CITY ' S PLANNING AREA IS DESIGNED TO WITHSTAND THE EFFECTS OF NATURAL AND MAN-CAUSED HAZARDS TO ACCEPTABLE LEVELS OF RISK, AND IS DESIGNED TO AID EMERGENCY RESPONSE. Flooding: A portion of the site is in a "B" flood zone. The flood zone includes the creek and extends to approximately the edge of the riparian vegetation as it existed in November 1989 . The B zone includes those areas between limits of 100 year flooding and 500 year flooding, and areas of 100 -year flooding where depths are less than one foot. Projects within this zone must be designed so that finish floor elevations are above the 100 year flooding elevation. The project is designed to be outside the flood zone entirely. Conclusion: Not significant. Fire hazards : The project is designed to be as close as one foot from the riparian vegetation. If vegetation dries out in dry years, it may serve as fuel in fires coming from nearby hillsides or originating within the vegetated area . The open creek corridor represents a path for a fire to follow, if it should become dry. According to the Fire Department, the vegetation within the riparian area is green most of the year. Dead wood and grasses represent the primary source of fuel. The Fire Department finds the proposed location of the house acceptable from a fire safety standpoint, as long as seasonal grasses are cut every year, in accordance with weed abatement provisions in the Municipal Code. The attached memorandum from the Fire Department confirms this position. Conclusion: Not significant. Administrative creek policy/Cumulative impacts: The city is guided by a written policy on development near creeks. This policy says that "new structures, including parking lots, should generally be set back at least 20 feet from the top of bank. " Further, the policy says that greater setbacks may be required in certain situations, including "if significant riparian vegetation extends beyond the 20-foot line. " The top of bank, in the present case, is not readily defined. According to the administrative policy, "TOP OF BANK" MEANS THE PHYSICAL TOP OF BANK (IE: WHERE THE MORE STEEPLY ERODED BANK BEGINS TO FLATTEN TO CONFORM WITH THE TERRAIN NOT CUT BY THE WATER FLOW) . IF THE BANK IS TERRACED, THE HIGHEST STEP IS THE TOP OF BANK, NOT ANY INTERMEDIATE STEP. (IN SOME CASES, THE TOP OF BANK WILL NOT BE APPARENT; THE DIRECTOR, PRINCIPAL PLANNER OR LONG- RANGE PLANNER SHOULD BE CONSULTED TO HELP DETERMINE A REASONABLE LINE, ER 6-91; 1673 La Vineda Page 3 CONSIDERING SUCH VARIABLES AS THE TOP OF BANK ON THE OTHER SIDE OF THE CREEK THE EXTENT OF RIPARIAN VEGETATION AND THE 100-YEAR FLOOD LINE. ) In the present case, the obvious channel is a narrow ditch approximately in the center of the vegetation. However, this ditch carries only a small portion of flood waters. The land slopes fairly evenly from the ditch to the sidewalk. Therefore, no. steep bank is present. The top of bank has therefore been determined by flooding characteristics, to coincide with the vegetation line shown on the November 1989 survey discussed above. The proposed house sits about one foot from the defined top of bank, at its closest point (the upper level nook) . Therefore, its location is not consistent with the 20 ' setback guideline. The guidelines say that a lesser setback may be acceptable if 1. the channel is minor and is not judged to be a significant riparian corridor or likely to be part of the urban trails system; 2 . the lot is small, and reasonable development without some exception is impossible; 3 . the lot is a small infill site where a clear pattern of lesser setbacks has been established on both sides of the lot along the creek. The California Department of Fish and Game (DFG) has found that the corridor is significant. The lot is large, and the house can be redesigned to meet the administrative policy ' s 20 ' setback standard. A clear pattern of 20 ' setbacks has been established, at least within this subdivision. Therefore, none of these criteria are met. Reductions in setback to 10 ' have been allowed at other creek locations in the city where similar vegetative characteristics exist, but criteria noted above have been present. However, the guidelines are prefaced with: THE FOLLOWING ARE GUIDELINES, NOT STRICT STANDARDS, AND MAY BE DEPARTED FROM WHEN THE PLANNER, WITH THE DIRECTOR' S CONCURRENCE, JUDGES THAT THE INTENT CAN BE MET THROUGH ALTERNATIVE APPROACHES. The alternative in this case is the placement of the house as close as one foot from the riparian vegetaion, plus dedication of an easement over the riparian vegetation and creek, coupled with an existing tract condition that prohibits removal of any riparian vegetation. The easement would extend from the 360 ' elevation (the elevation of the riparian vegetation closest to the proposed house location in 1989) to the rear of the lot. In a review of an identical project on this site in 1990 , the Architectural Review Commission and City Council determined that this alternative is ER 6-91; . 1673 La Vineda Page 4 acceptable, in that it provides sufficient protection of the riparian habitat, and allows the applicants to build the one-story design of their choice. Conclusion: May be significant. Recommended mitigation: 1. The building shall be set back 20 ' from the top of bank, which has been determined to be the drip line of vegetation as surveyed in 1989 . Monitorina: Building plans will be checked for compliance with this measure. Plant and animal life Background: Riparian vegetation has covered about half of the site. This vegetation serves as cover, nesting areas, and food for many small animals and birds. A condition of approval of the subdivision that created this lot says that no riparian vegetation may be removed. The permit applicant removed an unspecified amount of vegetation within the riparian area, in July 1990. The Community Development Director required remedial action, including preparation of a landscape plan for rehabilitation of the vegetated area. For purposes of this report, therefore, the edge of existing vegetation is considered to be that which was existing prior to removal by the applicant. This edge is defined on a topographic map prepared by General Engineering Company, showing the brush line as of 11-10-89 . Value of riparian habitat: The riparian vegetation is healthy and green virtually year-round. Vegetation extends from about 20 ' to about 75 ' from the center of the channel, towards the proposed residence. This dense cover provides protection for a wide range of species, especially birds, but also including riparian amphibians. Among the species that have been seen in the vicinity are the Western Pond Turtle and the Red Legged Frog, both of which are included on the California Department of Fish and Game ' s list of "Species of Special Concern" . They are also candidate species for threatened or endangered status. The creek channel is an open corridor for most of its length, from its beginnings in the foothills to where it flows into the east ER 6-91; 1673 La Vineda Page 5 fork of San Luis Obispo Creek. Open creek channels serve as transportation corridors for birds and small animals, many of which will not venture far (if at all) fromthe protection of the foliage. Since this one is open, it therefore has significant habitat value. Potential impacts: Temoorary: Construction activities are expected to have some effect on wildlife in the area. People and possibly domestic animals may intrude into the riparian area, disrupting feeding, mating or nesting behavior. Because the house is planned to be located as close as one foot from the defined edge of riparian vegetation (although actually five to seven feet from currently- existing vegetation) , construction activities are likely to damage this vegetation, and waste materials may be thrown into it, subsequently affecting those animals that use it. The heavy vegetative cover currently provides protection from intruders, and serves as part of a valuable wildlife corridor. To maintain this protection, the vegetation needs to be retained, and people and domestic animals should be discouraged from entering the area. The degree of damage to the habitat cannot be predicted. Conclusion: May be significant. Recommended mitigation: 2 . To preclude any activity within the riparian area, temporary fencing at the 360-foot elevation shall be installed prior to the start of construction, and shall remain throughout the construction period. Monitoring: City inspection staff will require the contractor to stake the 360 ' elevation prior to installation of the fence. City inspection staff will confirm that the location is correct, and that the fencing remains in place until occupancy is granted for the residence. Permanent: The construction of a house on the lot will introduce greater numbers of persons and domestic animals to the site. The location of the house close to the riparian area will make it easy for residents and guests to intrude into that area, or to observe it from the balconies and kitchen nook. The use of the balconies and nook by human observers will especially affect birds who use the outer fringes of the habitat, causing them to fly further inward or away from the site altogether, while humans and domestic animals entering the creek area on foot will affect animals and birds foraging, resting, or protecting young near the ground. However, because the creek is already lined by housing on both ER 6-91; 1673 La Vineda Page 6 sides, the remaining wildlife is expected to be forms that have adjusted to human intrusion: those that are adept at hiding from people during the day (and are active at night) , those that can move easily to a more secluded riparian area, and those that can escape through the trees and shrubs. A wildlife biologist (Michael Hanson, Ph.D. ) reviewed the plans and a draft initial study, and concluded that the intrusion of the house into the .normally-required 20 ' setback would not create a significant biological impact in this specific case. In his comments made after reviewing letters from other biologists, environmental groups, and citizens, Dr. Hanson reiterated his conclusion that any harm to come to wildlife in this urban area has already been done by the construction of housing in the vicinity. However, Dr. Hanson also noted that the 20 ' setback is "a good idea" in general . (Comments attached. ) Other biologists have reviewed the plans and have recommended that the 201setback be required in this case . These biologists say that 20 ' buffers have been required of other homes built in this subdivision, and to maintain the corridor as it now exists requires that this house be set back at least 20 ' also. They also state concerns with cumulative impacts - that allowing a home to be built close to the vegetation, where there are no hardship factors, is setting a precedent for other development in the future along creeks. The DFG has also raised concerns with the gradual elimination of wetlands and surrounding buffer zones throughout California, and recommend that buffers be required in all cases where they can reasonably be met. (Comments received from DFG and other biologists are on file in the Community Development Department and available for review. ) In spite of a subdivision condition prohibiting removal of riparian vegetation, some owners of lots in this subdivision have removed many riparian plants . The degree to which the habitat value in this case is degraded depends on the sensitivity with which it is treated by the residents and guests. Conclusion: May be significant. Recommended mitigation: Same as no. 1, above. Aesthetic: View blockage: The proposed house would not affect views of the Santa Lucia hills to the east, from La Vineda or other public vista, although it would likely block views of these hills from the east windows of the house , at 1655 La Vineda. If the house is redesigned to incorporate a 20 ' setback, then it will be located ER 6-91; 1673 La Vineda Page 7 farther up the hill and therefore will be higher in elevation. Somewhat greater view blockage for neighbors would occur, but views from public vistas will not be significantly affected. Public views of the riparian area on the south side of the lot will be blocked by any house built on the site. Although attractive, this corridor is not considered a significant scenic public resource. Conclusion: Less than significant. Compatibility with neighborhood: The house design is similar to others in this block and nearby. Since the subdivision is recent, all homes on the block were built after 1985 , and reflect current trends and styles. The proposed house style is compatible. The primary difference between this house and others in the neighborhood is its location on the lot. All other homes on this side of the street are set back approximately 20 ' from the street property line, while the proposed house is to be set back 301 . If the house is redesigned to incorporate the 20 ' buffer from the creek vegetation, then it will be located closer to the street and therefore more consistent with neighboring homes. However, it is not unusual to have homes set back at varying distances from the street. Whether it is set back twenty or thirty feet, it will be compatible. Conclusion: Less than significant. Effect on significant visual features: Construction of the house could alter or degrade a significant visual feature - the riparian area. Conclusion: May be significant. Recommended mitigation: Same as number 11 above. Energy/resource use: Hater- The city is currently in a drought situation, and has adopted an ordinance to control water use, both in existing projects and in new development. The ordinance ensures that no projects are built that worsen the load on the city' s water supply. The regulations will also limit issuance of building permits after the drought period is passed, and are expected to mitigate water- use impacts at that time. Water use at the site is expected to increase as a result of this request. The average water use for a single-family residence • on a lot larger than . 25 acre is 0. 75 acre-feet. with a recorded easement, which limits irrigated planting areas to 3 , 000 square feet or less , the average annual usage. can be reduced to 0 . 56 acre- ER 6-91; 1673 La Vineda Page 8 feet. The larger number represents about . 01% of the city ' s "safe annual yield" - the amount of water that can be drawn from reservoirs yearly, during .years equal to the severest drought on record, without running out. conclusion: Less than significant: the city' s water regulations will reduce impacts. Other impacts• The project is not expected to have significant impacts on any other aspect of the environment. RECOMMENDATION: Grant a negative declaration of environmental impact, with the following: Mitigation measures: 1. The building shall be set back 20 ' from the top of bank, which has been determined to be the drip line of vegetation as surveyed in 1989. Monitoring: Plan checks will verify the location of the house on the. lot. 2 . To preclude any activity within the riparian area, temporary fencing at the 360-foot elevation shall be installed prior to the start of construction, and shall remain throughout the construction period. Monitoring: City inspection staff will require the contractor to stake the 360 ' elevation prior to installation of the fence. City inspection staff will confirm that the location is correct and that the fencing remains in place until occupancy is granted for the residence. Attachments: Fire Department memo - June 26, 1991 Reviews of draft initial study er 6-91, by Michael T. Hanson, wildlife biologist '(1/!11 1995 McMillan Am.,Suite 196 P.0.Bax 15359 San Luis Obispo,G 93406 805/541-1858 FAX-541-5724 May 10 , 1991 MAY 1 199" City of San .Luis Obispo Fire Department °°-`"'o°, 748 Pismo Street San Luis Obispo, CA 93401 Attn: Carrie Bassford Re: Weed Abatement 1673 La Vineda San Luis Obispo, CA 93401 APN: 003 ,771 ,002 Project Environmental Study #6-91 Dear Carrie: We are in receipt of your notice dated May 10, 1991 giving us ten days in which to clear weeds and/or debris from the above referenced property. On April 22, 1991, in anticipation of this notice, I sent a letter to you requesting some coordination and cooperation from your department and from the Planning Department regarding the riparian vegetation and how it affects the clearing of the vacant property. I have not heard from your department other than this standard notice to clear weeds. While this may seem extreme, this project has already been through the court system and so we are extremely careful regarding any activity on the property. We would appreciate your cooperation in this matter. I will contact your office to set up an appointment with one of your representatives in the field. Again, thank you for your cooperation. Sincerely, an AR"amsay /jr CC:, Judy Lautner Project Planner 3 Lk ft 4110:8 MAYO 61991 . . Crtr of sae Luls Oban Review of Environmental Initial Study ER 6-91 1673 La Vineda by Michael T. Hanson, Wildlife Biologist Department of Biological Sciences San Luis Obispo, CA 93407 A recommendation that the deck be setback 10 feet was suggested. I believe the plans currently have a setback of 4 feet. To me it seems that the additional setback would not be that significant, that as much disturbance would occur at either distance. Therefore, it seems unnecessary to alter this part of the original plans of the house. I would concur that the windows of the kitchen nook be of a glass that allows people to see out but limits the view into the room. This would prevent birds from mistakenly flying into the window and would reduce their disturbance by activity in the house. I would agree with the- easement conditions. Solid fencing would tend to isolate the riparian zone from the adjacent yard, reducing the value of the riparian zone (also seems like it would reduce the value of the yard). The fence would in essence block out the edge effect of the riparian zone, a primary factor that makes this habitat so valuable to wildlife. Topography and riparian vegetation should be preserved. A short distance toward Johnson Avenue a section of the riparian zone has been replaced with a row of pine trees. For most practicable purposes, that section of the riparian zone has been destroyed. No grading or removal of vegetation, except as permitted by the Community Development Director, should be allowed. Landscaping within the easement should be of species native to that riparian zone to maintain and protect its current integrity. city of san luws oBispo INITIAL STUDY OF ENVIRONMENTAL IMPACT SITE LOCATION 1673 La Vineda APPLICATIONNO. 6-91 PROJECT DESCRIPTION Construction Of a single-family house On a 20, 460-square- foot sensitive site. The site slopes downward from the street to a creek, which. is lined with mature riparian vegetation. APPLICANT Mike Hernandez STAFF RECOMMENDATION: X NEGATIVE DECLARATION X MITIGATION INCLUDED EXPANDED INITIAL STUDY REQUIRED EVIRONMENTAL IMPACT REPORT REQUIRED PREPAREDBY Judith Lautner, Ass ciate Planne DATE {Apr. 19 , 1991 k COMMUNITY DEVELOPMENT DIRECTOR'S ACTON: \ DATE L- I�ln� t•I�c�ur�CE.ccA�-t�r►QJ ��. J SUMMARY OF INITIAL STUDY FINDINGS 1.DESCRIPTION OF PROJECT AND ENVIRONMENTAL SETTING II.POTENTIAL IMPACT REVIEW POSSIBLE ADVERSE EFFECTS A. COMMUNITY PLANS AND GOALS .................................................... NONE B. POPULATION DISTRIBUTION AND GROWTH.......................................... NONE C. LANDUSE ....................................................................... NONE O. TRANSPORTATION AND CIRCULATION .............................................. NONE E. PUBLICSERVICES ..................................................... NONE F. UTILITIES............. NONE G. NOISE LEVELS ................................................................... NONE H. GEOLOGIC&SEISMIC HAZARDS&TOPOGRAPHIC MODIFICATIONS .................... NONE 1. AIR QUALITY AND WIND CONDITIONS............................................... NONE J. SURFACE WATER FLOW AND OUAUTY .............................................. NONE K. PLANT LIFE...................................................................... YES* L ANIMAL UFE..................................................................... S* M. ARCHAEOLOGICAUHISTORICAL ................................................... NONE N. AESTHETIC ....................................................................... O. ENERGY/RESOURCE USE .......................................................... P. OTHER ............... ................... ........... ............................. NONE III.STAFF RECOMMENDATION 1 NEGATIVE DECLARATION, WITH MITIGATION L•� 'SEE ATTACHED REPORT J ��s ENVIRONMENTAL INITIAL STUDY ER 6-91 1673 La Vineda PROJECT DESCRIPTION AND ENVIRONMENTAL SETTING The applicants want to build a 3191-square-foot (including garage) two-story house on a large, sloping site. The house is to be placed about 30' from the street property line, and ranges from about 3 ' to about 36 ' from the dripline of riparian vegetation that existed in November 1989, the point at which vegetation growth had reached its highest point. (After November 1989 , some of the vegetation was rem6ved, as explained below. ) The 20, 460 square foot site is irregularly shaped and slopes down from the street at approximately 15%. A minor creek tributary crosses the southerly portion of the site, which is lined with mature riparian vegetation, mostly willows, but also live oaks. A 15 foot drainage and utilities easement also crosses the southerly boundary of the site approximately parallel to the creek. Surrounding land uses include recently built single-family homes and vacant residential lots. POTENTIAL IMPACTS Plant and animal life Background: Riparian vegetation has covered about half of the site. This vegetation serves as cover, nesting areas, and food for many small animals and birds. A condition of approval of the subdivision that created this lot says that no riparian vegetation may be removed. The permit applicant removed an unspecified amount of vegetation within the riparian area, in July 1990. The Community Development Director required remedial action, including preparation of a landscape plan for rehabilitation of the vegetated area. For purposes of this report, therefore, the edge of existing vegetation is considered to be that which was existing prior to removal by the applicant. This edge is defined on a topographic map prepared by General Engineering Company, showing the brush line as of 11-10-89 . Potential impacts: Temporary: Construction activities are expected to have some effect on wildlife -in the area. People and possibly domestic animals may intrude into the_ riparian area, disrupting feeding, mating or nesting behavior. Because the house is to be located as close as three feet from the riparian vegetation, construction activities are likely to damage this vegetation, subsequently ER 6-91; 1673 La Vineda Page 2 affecting those animals that use it. The heavy vegetative cover currently provides protection from intruders, and serves as part of a valuable wildlife corridor. To maintain this protection, the vegetation needs to be. retained, and people and domestic animals should be discouraged from entering the area. The degree of damage to the habitat cannot be .predicted. Conclusion: May be significant. Recommended mitigation: 1. Temporary fencing at the November 1989 dripline, as defined on plans prepared by Tom Baumberger and available in the Community Development Department, shall be installed prior to the start of construction, and shall remain throughout the construction period. Permanent: The construction of a house on the lot will introduce greater numbers of persons and domestic animals to the site. The location of the house close to the riparian area will make it easy for residents and guests to intrude into that area, or to observe it from the balconies and kitchen nook. The use of the balconies and nook by human observers will especially affect birds who use the outer fringes of the habitat, causing them to fly further inward or away from the site altogether, while humans and domestic animals entering the creek area on foot will affect animals and birds foraging, resting, or protecting young near the ground. In spite of a subdivision condition prohibiting removal of riparian vegetation, some owners of lots in this subdivision have removed many riparian plants. The degree to which the habitat value in this case is degraded depends on the sensitivity with which it is treated by the residents and guests. Conclusion: May be significant. Recommended mitigation: 2 . To avoid disturbing animals and birds near the edge of the riparian area, the nearest balcony (the balcony off the family room) shall be set back a minimum of ten feet, and the windows in the kitchen nook shall be of a material that allows persons to see out but limits views into the room. 3 . To mitigate the effects of placing the building close to the riparian vegetation, the property owner shall grant to the city an easement covering the riparian area, for the purpose of protecting sensitive riparian habitat. Conditions of the easement shall include the following: 6-OQ1 ER 6-91; 1673 La Vineda Page 3 * No structures or solid fencing shall be placed on or within the premises. * No advertising of any kind shall be located within the easement area. * The general topography of the easement area shall be preserved substantially in its existing condition. No grading shall be- allowed except as permitted by the Community Development Director. * No removal of vegetation shall be allowed, except for fire protection or other hazards, or for the elimination of diseased growth as approved by the Community Development Director. * Any landscaping done within the easement shall be native species and to the approval of the Community Development Director. Aesthetic: View blockage: The proposed house would not affect views of the Santa Lucia hills to the east, from La Vineda or other public vista, although it would likely block views of these hills from the east windows of the house at 1655 La Vineda. Conclusion: Less than significant. Compatibility with neighborhood: The house design is similar to others in this block and nearby. Since the subdivision is recent, all homes on the block were built after 1985, and reflect current trends and styles. The proposed house is compatible. conclusion: Less than significant. Effect on significant visual features: Construction of the house could alter or degrade a significant visual feature - the riparian area. Conclusion: May be significant. Recommended mitigation: Same as numbers 2 and 3 , above.. Energy/resource use: The city is currently in a drought situation, and has adopted an ordinance to control water use, both in existing projects and in new development. The ordinance ensures that no projects are built that worsen the load on the city' s water supply. The regulations ER 6-91; 1673 La Vineda Page 4 . will also limit issuance of building permits after the drought period is passed, and are expected to mitigate water-use impacts at that time. Water use at the site is expected to increase as a result of this request. The average water use for a single-family residence on a lot larger than . 25 acre is 0.75 acre-feet. With a recorded easement, limiting irrigated planting areas to 3 , 000 square- feet or less, the average annual usage can be reduced to 0. 56 acre- feet. The larger number represents about . 01% of the city' s "safe annual yield" - the amount of water that can be drawn from reservoirs yearly, during years equal to the severest• drought on record, without running out. Conclusion: Less than significant: the city' s water regulations will reduce impacts. Other impacts: The project is not expected to have significant impacts on any other aspect of the environment. RECOMMENDATION: Grant a negative declaration of environmental impact, with the following: Mitigation measures: 1. Temporary fencing at the November 1989 dripline, as defined on plans prepared by Tom Baumberger and available in the Community Development Department, shall be installed prior to the start of construction, and shall remain .throughout the construction period. 2. To avoid disturbing animals and birds near the edge of the riparian area, the nearest balcony (the balcony off the family room) shall be set back a minimum of ten feet, and the windows in the kitchen nook shall be of a material that allows persons to see out but limits views into the room. 3 . To mitigate the effects of placing the building close to the riparian vegetation, the property owner shall grant to the city an easement covering the riparian area, for the purpose of protecting sensitive riparian habitat. Conditions of the easement shall include the following: * • No structures or solid fencing shall be placed on or within the premises. * No advertising of any kind shall be located within 5 ER 6-91;- 1673 La Vineda Page 5 the easement area. * The general topography of the easement area shall be preserved substantially in its existing condition. No grading shall be allowed except as permitted by the Community Development Director. * No removal of vegetation shall be allowed, except for fire protection or other. hazards, or for the elimination of diseased growth as approved by the Community Development Director. * Any landscaping done within the easement shall be native species and to the approval of the Community Development Director. 5 --Judi th-Lautner- 1.7:July-1991 _- = om;runity 02v21�ument ?epartment - _ .. _ . _ City of San Luis Obispo, CA 93403 Dear Ms. Lautner, ! haVe read most of the COmmentS reiatiVe 10 aunle ^O =se pr upOSEC" fOr ;573 La Vine m and its possible impact to the riparian zone of Acacia Creek. �f ah3�0 co^^n^Prts I wish to address • ee + _ a_ V L: ti I„ rss Lhrre. man iSi,�. J. 1. Destruction of riparian zone: Some of the comments seem to address the "destruction" of the riparian zone. As far as I understand, none of the r;�ar:an 7pne is t0 be removed or any of its Vecetati0n taken nib �---- a �° ✓+ 'JI Ir• a cf r^OC> /` M^• ^a'i tiFG' , T^^M^...:..' .. .• . V� ivv': ni. ?J f+%0Sl �n Ni•. J . ':l•I . IVI �� V LV �� +LIr��,V �Gr �V ��C .•.^.wi :�.::v�J. ~ice iQrl l:.J`1l rick V�V I yI.IVY4 JVir1V VCVF bG L+�li r711V 1iry VI V'V. 2. Disturbance to wildlife: Cuir eptly rkcacia Creek is surrounded by houses. It is difficuit for me to see how this last house will be so critical to tle amount of disturbar;Ce to trIa: 'JJi;iCh VL�i';Qlif2 1� alk°�^�y `1lricCacd ,^�crnia alk a:cir rctS vi triC `IC1U:^C_ UrCJ�nt r?vUlariV Conduct ac- in tiir V a•..� rY yl V� NI ILi r•'J VJ eJ .YV 1NV119 �. is DCII ILI 1.11SLV1 OBC. a;rz@;!V V, I•a j. •,rn ra • J :. .•�°Y �ti� rV a :r:'S: .iii i�i V+�. 3 �IC.'U l�.G rr\l. rill. _r1;11L';G'VI'LS "n—Z: •• :y:I I I I;•.G:1 ✓+..a an.. !�'io. a .) A :r n. . n a4n n.n_..a nn rnan .An Ve ✓:F �,L! I`r,r` NV•I� C'i ��^V. i lY I.i I. V�J� ✓ MI V•i Jl :rrY�, Ir � L.~, �.`Ij liras 1.noir asp �0 _, __v =:'A" r7 C 4� • r� \I.�^, \iVn r.nn IYPry F.Y/Y \I h/1r :]/Y r1r Mn ♦,\ I11 r•. r\ /\1 •i\ •,• . tr?; wnoie creek. I ne recommendation to nave winnows :nal: al low D200ie 70 See Out but limits the View into the room should be interpreted t0 De tinted C;aSs• not On8 way Class or r.^„^r^.r5. i'iV van i5 eo� io^F^' -h J V.V 1V i\I r L I In G 1i l i s a. ^. _1 ;0W DeOp;e ;r;SiCe to=e Car t0 S e ^via re2Ci 'y Wni ,eSa"r:° ti^le - ..✓.✓. ✓ ✓.�:n!I'V- Wim. .. yI y •V ^any •!1G¢!II•h . .1 .1 I:e_ . . ;<EC JUL .l S 1991 Crty of Sen Lens OOlsc' -_�r.ry C•-Yrs•" 5-a1 ;. Violation of 20-foot setback. The 20 foot setback is a good pciicy and should be adhered to whenever possible. If other houses creviously built had to abide oy the 20-foot policy, then it seems only far that new rouses, _ whenever possible, should. do likewise. i am not an expert on buildings and their sites-so whether this house could abide by this Policy would have to be Vel,el 1�1,1i;-i&d by 1�1Vsi. nlui , yu C7II IeJ L'lall I. My l.ol—illllen 13 c4{ ,.�.�u :sSue of disturbance to wildlife if the proposed pians re followed. Michael T. anson, iidlife Biologist Department of Biological Sciences California Polytechnic State University Sal ADMINISTRATIVE CREEK POLICY Note: the following are guidelines, not strict standards, and may be departed from when the planner, with the Director's concurrence, judges that the intent can be met through alternative approaches. They do not replace, but are in addition to, other existing policies, standards and ordinances. 1. When reviewing any development proposal, all unlined, open drainage channels should be evaluated as potential sensitive habitat areas (ie: riparian corridors to be preserved or enhanced). In general, such channels should not be culvcrted, filled or encroached into. Exceptions could include: a. Minor drainage channels (guideline: less than three feet across); b. Short (guideline: 200 feet or less) sections of channels which tie together lined or culvcrted drains; c. Improvements necessary for erosion control, flood protection or circulation, reviewed and approved pursuant to existing adopted policy. In all cases, the Director, Principal Planner or Long-range Planner should be consulted before a channel is determined not to be a sensitive habitat area; if there is any significant doubt, the Department of Fish and Game should be consulted, too. 2. New structures, including parking lots, should generally be set back at least 20 feet from the top o-t bank. 'Top of bank' means the physical top of bank (ie: where the more steeply eroded bank begins to flatten to conform with the terrain not cut by the water flow). If the bank is terraced, the highest step is the top of bank, not any intermediate step. (In some cases, the top of bank will not be apparent; the Director, Principal Planner or Long-range Planner should be consulted to help determine a reasonable line, considering such variables as the top of bank on the other side of the creek, the extent of riparian vegetation and the 100-year flood line.) A. Greater setbacks may be required if 1. significant riparian vegetation extends beyond the 20-foot line; 2. a setback line which is farther from the bank has been adopted or proposed by Public Works; 3. the 100-year flood plain extends beyond the 20-foot line. B. Lesser setbacks may be acceptable if: 1. the channel is minor and is not judged to be a significant riparian corridor or likely to be part of the urban trails system; �� 1 Draft Creek Policy Page 2 2. the lot is small, and reasonable development without some exception is impossible; r 3- h lot is a small infill site where a clear pattern of lesser setbacks has be stablished on both sides of the lot along the creek. Note: in determining if a channel is minor or if a riparian corridor is significant, the staff should consider variables such as size, area drained, volume/capacity, topography, context (urbanized or open), soils and hydrology, relation to other creek stretches and the creek system generally, existing vegetation and potential for - restoration. In determining what is 'reasonable development', the staff should consider comparable uses on similar-sized lots in the area as well as the practicalness and feasibility of smaller-than-comparable projects. In all such cases where setbacks are to_bt reduced or increased, the Director and Principal Planner or Long-range Planner should be consulted. 3. If the site is considered by the Long-range Planner to be a possible link in the urban trails system, then an offer of dedication for public access should be required as a condition of any discretionary permit. 4. All areas in the setback should be dedicated in !n open space easement as a condition of approval of any discretionary permit. S. If the corridor has been degraded, a restoration program may be required as a condition of approval for any discretionary permit. 6. Sites with creeks are considered to be "sensitive sites' for architectural review purposes; projects which would not otherwise need architectural review should be taken in as minor and incidental and may be approved if the guidelines above are met, if they are not met, then the project should be referred to the ARC with a recommendation that the guidelines be followed. A l i I; • I ' J.� .1� � � :_Tyr• _ Or rte•- - .�-'r d r �•.•�(��• � \:F;�. � i, KEY. : ..• :- .1 ' fes. -•�•.�` �,,%� I,1• �� /fit'PA -f WARAN MIN10N t ATAM OJk T1RGWPARIAI`l HABITAT t 1 5'3 7 RECEIVED 1-,U Cf L -oi • , _ ll5Z CITY MEM- COMMUNITY MAY 1 51992 y cof SAN LUIS oslsPo ODMMUNITYDEVELOPMEPI!T DATE • '# $!,v G.. I•c ✓1- a-F- 103 3 O� VL, O)/-A / 1 ✓S V A. ,-X H C-<- �t 0r ,' .i-. �� WrtiS T"�^II t..e�tQ t � ✓gre �" N�6 S�-X y1.-.."�•'�h l"'l D+� Ln/4.s pi tt 0 l ✓h� -C x s —1 �'-, '� R✓fir ) AX,g ,r,� s+_C-10 oS cr( NLC�1-A NA,-I s obi 45 I R LDnf ,�.lr W a J I� 0.,t I.r-'^"x �lt� S 1 r�G•C��a I� _. .'1—>`t.'!—�,,:.� b„+ S 0.m ' COKESTO: _ Cl•Dam ninon ❑ FYI �~ rok'/cok f CaLmuff lirCDDDiR &rCAO ID WEIR VACAO ❑ FIRECHMP alciowc• o Pout RECEIVED ❑ MCMT.7FAM ❑ RBC DUL ❑ C READ Frt.E O UTIL DUL MAY1 S� o INTERNATIONAL AIRPORT _ O &Airport Blvd-At Bayshore Freeway • So.San Francisco,Calitomia 94080 . 415/589-7200 CI9K SAN LU . Q &Rp,CA