Dear Members,

ECOSLO urges everyone interested in the protection of Atascadero creek habitats to attend the City Council meeting at 7 pm on May 8th, 2007, at the Council Chambers, located at 6907 El Camino Real in Atascadero.  The City Council will be reviewing the City's current creek setbacks and proposing a General Plan Amendment to increase most of these setbacks.

This issue is an outgrowth of a lawsuit brought by ECOSLO in 2002.  The current setback changes being advocated by the city reflect the settlement reached in 2003.  The proposed revisions to the General Plan would establish a 35-foot setback along major creeks, 20 feet along minor ones, and 50 feet along the Salinas River.  The proposals represent responsible planning and are consistent with requirements in other communities.

It is essential that environmental advocates attend the meeting and speak before the Council.  Opponents of the amendment have sent out fliers to creek-side residents saying their property rights are being violated and that the City is taking land in the setbacks.  This is simply not true.  The City is trying to ensure the uninterrupted flow of streams and to protect riparian habitats.  Setbacks are a restriction on the use of the property and do not give the City or public the right to use the private property in any way.

To access an informative website on this important issue Google "Atascadero Creek Setback".  Again, please plan to attend the meeting on Tuesday evening, May 8th.

Below is a brief review of the history and current issues surrounding the setbacks.  The issue can be divided into three parts, some controversial � some not.

1. Atascadero's General Plan 2025

Adopted June 25th, 2002, update #1 June 23rd, 2004:

Legend:
Mandatory Adoption Text

Goal LOC 8. Watershed areas of Atascadero shall be protected.
Policy 8.1: Ensure that development along Atascadero Creek, Graves Creeks, the Salinas River, blue line creeks, and natural springs, lakes, or other riparian areas does not interrupt natural flows or adversely impact riparian ecosystems and water quality.
Policy 8.2: Establish and maintain setbacks and development standards for creek side development.
Program:
  1. Adopt and maintain a creek setback ordinance that will establish building setbacks and development standards along the banks of Atascadero Creek, Graves Creek, blue line creeks and the Salinas River to ensure the uninterrupted natural flow of the streams and protection of the riparian ecosystem with flexible standards for the downtown area.
Responsibility: CDD, Planning Commission, City Council
Timeframe: Adopt Ordinance in 2005.
  2.


Prior to adoption of a creek setback ordinance an interim 35-foot creek setback shall be in effect along Atascadero Creek and Graves Creek until March 1, 2005. All other 7.5 min USGS quadrangle blue line creeks shall have an interim 20-foot setback.

The interim setbacks shall be subject to the following:

  1. On Atascadero Creek and Graves Creek setbacks shall be measured from the edge of the creek reservation.
  2. All other blue line creek setbacks shall be measured from ordinary high water mark.
  3. The Planning Commission may approve exceptions to the interim creek setbacks in the form of a Conditional Use Permit if the finding can be made that creeks, riparian areas

Proposed re-write:

Legend:
Removed Text
Added Text
Additional text added by Staff

Policy 8.2: Establish and maintain setbacks and development standards for creek side development.
Program:
  1. Adopt and mMaintain a creek setback ordinance that will which establishes building setbacks and development standards along the banks of Atascadero Creek, Graves Creek, Boulder Creek, blue line creeks, and the Salinas River, jurisdictional wetlands, and other significant drainage courses to ensure the uninterrupted natural flow of the streams and protection of the riparian ecosystem with flexible standards for the downtown area.
Responsibility: CDD, Planning Commission, City Council
Timeframe: Adopt Ordinance in 2005.
  2. Prior to adoption of a creek setback ordinance an interim 35-foot creek setback shall be in effect along Atascadero Creek and , Graves Creek, and Boulder Creek shall have a 35-foot setback until March 1, 2005. All other 7.5 min USGS quadrangle blue line creeks, jurisdictional wetlands, and other significant drainage courses shall have an interim 20-foot setback.

The interim setbacks shall be subject to the following:

  1. On Atascadero Creek, and Graves Creek, and Boulder Creek setbacks shall be measured from the edge of the creek reservation.
  2. All other blue line creeks setbacks, the Salinas River, and other significant drainage courses shall have setbacks be measured from the ordinary high water mark.
  3. The Planning Commission may approve exceptions to the interim creek setbacks in the form of a Minor Conditional Use Permit with a biologist report, a report prepared by a professional engineer or geologist qualified in hydrogeomorphology, and and Archaelogical Phase 1 study if the finding can be made that creeks, riparian areas.

Clearly, the city is merely implementing its General Plan by adopting a creek setback ordinance using standards in existence since 2002.

Q. Why has the setback reverted to 20 feet from 35 feet?

A. The General Plan was challenged by ECOSLO in 2002. An agreement was reached that said in part:

(vi) The City will adopt a 35 foot interim setback along Atascadero Creek and Graves Creek. This setback will remain in place until the City adopts an ordinance establishing permanent creek setback.

The City has unilaterally decided, i.e. without consulting with ECOSLO, that it would sunset this portion of the agreement. The Regional Water Quality Board states that it will support 35 feet, but it will not support 20 feet.

2. In an attempt to further satisfy Goal LOC 8. the city staff has included "significant drainage courses".

These are "natural creeks or topographic low points, tributary to blue line streams, creeks or rivers" they contain a well defined channel or riparian vegetation".

Q. Why is this controversial?

A. There is no map and the definition is vague and technical. It also applies to about 40% of the lots in Atascadero. It is also not clear what is gained by including a 20 foot setback with them since "construction around these drainage courses would still require evaluation and permits by the agencies (Fish and Game, Water Quality Board, and Army Corps of Engineers), and the applicants would work directly with the agencies to obtain permits" just as they do now.

3. There is no change proposed for blue line creeks.

The City's website, http://atascadero.org contains very useful information including a Frequently Asked Questions file that can be read online or downloaded. It contains the following:

Q. The City's General Plan requires that the City adopt a set back ordinance, what happens if the City never implements the General Plan policy

A. The ordinance should have been adopted in 2005, but never was, and the interim resolution expired on September 1st, 2005 requiring a 35 foot set back.

Zoning ordinances must be consistent with the General Plan.  Actions approved by a city that are in conflict with the general plan are void.  If a zoning ordinance becomes inconsistent with the General Plan because of an amendment to the General Plan, or to any element of the plan, the ordinance must be amended within a reasonable time so that it is consistent with the amended plan. (Government Code section 65860(c)).

The statute and courts have not defined what a "reasonable time" is, but in this case, the General Plan itself puts forth a timeframe to implement the policy. The Policy states that the Council will adopt an ordinance in 2005, and it is now 2007. Therefore, the Council has only two options, either adopt an ordinance as provided for in the General Plan, or amend the General Plan to delete or amend Policy 8.2 of the General Plan

In the interim, since all zoning, subdivisions, building permits etc. must be consistent with the General Plan, the City could not approve any project/structure that would be inconsistent with the policy by permitting any building/structure that interrupts the natural flow of any streams and does not protect the riparian ecosystem.

But there are other difficult problems with not passing an ordinance:

There are claims that setbacks are regulatory takings, that setbacks are easements, setbacks will turn into trails, etc.  These claims are not true, but in any case are irrelevant to this process.  These setbacks have for the most part been in existence since at least the adoption of the 2002 General Plan.

Thank you, Atascadero Homeowners Association