STATUS REPORT - RIPARIAN CORRIDOR POLICY/ORDINANCE STUDY WORK PLAN

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1 CED AGENDA: 10/26/15 ITEM: D (3) CITY OF SANjOSE CAPITAL OF SILICON VALLEY Memorandum TO: COMMUNITY AND ECONOMIC DEVELOPMENT COMMITTEE FROM: Harry Freitas SUBJECT: SEE BELOW DATE: October 9, 2015 Approved Date SUBJECT: STATUS REPORT - RIPARIAN CORRIDOR POLICY/ORDINANCE STUDY WORK PLAN RECOMMENDATION Accept the status report on implementation of the work plan for completing a Riparian Corridor Policy/Ordinance Study. OUTCOME Feedback provided by the Community and Economic Development (CED) Committee to staff on implementation of the work plan for the Riparian Corridor Policy/Ordinance Study will help staff update the work plan. BACKGROUND On June 1, 2015, Planning staff presented to the Transportation and Environment (T&E) Committee the City's existing policy framework for reviewing development applications located near riparian corridors and summarized a proposed work plan to evaluate provisions for minimum required setbacks from riparian corridors for new development. One resident spoke in favor of an ordinance for preservation of riparian corridors. The T&E Committee accepted staffs proposed work plan, and provided direction to exclude from consideration provisions that would facilitate allowing "average" minimum required setbacks from riparian corridors for new development. The Committee acknowledged that inclusion of some exceptions to minimum required setbacks would likely be required if such provisions were to be codified, and that an ordinance could provide more certainty for developers as well as other stakeholders. Committee

2 Page 2 members also encouraged staff to look at best practices of other cities, including those outside of California, such as San Antonio. At the June 3, 2015 Rules Committee meeting, staff proposed that the Rules Committee approve the Riparian Corridor Policy/Ordinance Study as an addition to the current work plan for the CED Committee. A representative from the Sierra Club and one resident spoke in favor of an ordinance for a minimum setback from riparian corridors for development to allow habitat for aquatic and terrestrial animals. The resident stated that the City needed to review the Guadalupe Mines project that was approved in 2011, which he said was approved too close to the riparian corridor, and that the recent proposal alongside San Felipe Road and Thompson Creek might have gone unnoticed if the City continued to rely solely on guidelines. He requested a wellcrafted set of requirements for creeks and streams. Another resident expressed concerns that accumulated debris and erosion could lead to increased flooding and destruction of habitat in riparian corridors. He commented that the Santa Clara Valley Water District and the Army Corps of Engineers need to help the City address these issues to minimize flooding. On June 22, 2015, Planning staff presented the work plan to the CED Committee. Committee members asked how staff would address exceptions to a minimum 100-foot setback if such a setback were a requirement in the San Jose Municipal Code (Code) and how properties that might be only 100 feet deep would be able to develop if there were no Code exceptions. The Director of Planning, Building and Code Enforcement (PBCE) acknowledged that there are a variety of properties adjacent to the creeks in the City, and some properties might only be 100- feet deep from the top of bank, and stated that without exceptions to a minimum 100-foot setback included in the Code, those properties potentially could have their economic use completely or severely limited. Councilmember Oliverio commented that the setback requirements should be in a hierarchy of ranges with rational provisions for exemptions to allow development. The Director of PBCE concurred and suggested that an example of a possible exemption could be for development within 100 feet of the edge of a creek that is within a concrete channel, and he noted that the Santa Clara Valley Habitat Conservation Plan (Habitat Conservation Plan) contains a range of minimum required setbacks based on a hierarchy of creeks. Two members of the public spoke on the item; one identified himself as a San Jose riparian advocate, and the other identified herself as a representative for the Committee for Green Foothills. They commented that although the City has had policies in place to protect riparian corridors since 1994, these policies have been guidelines that have not been consistently applied to development. They recommended that the City adopt the policies into ordinance to create more certainty so that they are rules that can more easily be applied to all creekside development consistently to help ensure that San Jose is a livable and environmentally sustainable city. They added that, when people build homes and structures too close to the banks of a creek, the built development affects economic development and other neighboring development negatively and has often led to the City having to spend taxpayer money on mitigation where banks have been sliding and collapsing, in order to prevent channels from filling up with sediment and becoming more of a flood risk.

3 Page 3 Public correspondence from Myron Crawford dated June 19, 2015, which was submitted to the CED Committee, states opposition to a proposed Code requirement for a 100-foot riparian setback, and contends that the City already has requirements for larger setbacks from riparian corridors than most other jurisdictions in the Bay Area (see attached public correspondence). Vice Mayor Herrera noted that the Santa Clara Valley Water District every year removes sediment in Thompson creek, in part because San Jose's previous development policies allowed development to occur close to the creek, and sediment builds up there. She said the City needs to protect creeks and ensure that people are not causing harm, not only now but to future generations, because residents will have to pay for the consequences. Councilmember Oliverio asked the Director of PBCE if the San Antonio River Walk could be replicated in San Jose. The Director of PBCE responded that he understood that the San Antonio River Walk was built on a man-made canal. Councilmember Oliverio commented that we couldn't replicate it because an equivalent walk would have to be built on top of actual creeks. The Director of PBCE concurred. On October 5, 2015, the T&E Committee heard staffs status update on the proposed work plan. The Director of PBCE explained that preliminary analysis of approved development permits within 300 feet of a creek showed that more than 80% of the projects were approved through a Planned Development Zoning. He said that, typically, a Planned Development Zoning process is used to facilitate development on sites that have unique attributes and to allow development standards that are tailored to that site, such as a reduction in setbacks. He also mentioned that staff is currently exploring alternative options to codify riparian setbacks. One such alternative could be to codify the required findings necessary to support riparian setbacks or a reduction in riparian setbacks. He added that preliminary feedback from the recent September Developers' Roundtable meeting showed continued support for averaging the minimum required riparian setback on a property. The Director of PBCE said that staff would continue to evaluate projects approved between 2009 and 2015 for consistency with existing riparian policies, to look at alternative options to codifying minimum required riparian setbacks, and also to benchmark the City's bird-safe design standards with other jurisdictions in the Bay Area. In addition, the Director of PBCE mentioned that staff would return to the T&E Committee by March 2016 with recommendations. Councilmember Tarn Nguyen asked the Director of PBCE whether the City's current riparian setback policies are adequate in comparison to other jurisdictions where there seem to be lesser setback requirements, and if the City's 100-foot minimum riparian setback policy is intended to support a healthy riparian corridor. The Director of PBCE clarified that a 100-foot setback would be considered a "healthy" setback. The advantage of having this minimum setback as a policy rather than a regulation, gives the City the ability to evaluate sites individually where a 100-foot setback could be onerous on a site.

4 Page 4 Councilmember Manh Nguyen wanted to know if a 100-foot setback provides adequate safety for the public during a disaster such as a flood. The Director of PBCE explained that a riparian setback is typically measured from top of bank (or edge of riparian corridor, whichever is greater) and that there are instances when creeks do jump the bank, but that those situations would likely only happen in a 100-year flood. Creeks between Downtown and Alviso are protected for a 100-year flood. The Director said that staff had not yet looked at safety aspects of riparian corridor setbacks in relation to flooding, and that he would add such review to staffs work plan. Vice Mayor Herrera stressed the importance of protecting creeks by reaffirming the Council's direction to prioritize the item. She mentioned that part of the City's job is to balance business interests and property rights along with the community's right to have creeks preserved in a healthy manner. She stressed the importance of the work that is being done now to protect creeks. She added that it is important for the community to know what the expectations are when building near creeks. She said she fully supports the need to codify the 100-foot setback. She observed that the River Walk in San Antonio, Texas was a flood-control project, and that she does not see San Jose building something similar on the banks of a river. Councilmember Kalra stressed the importance of having a firm riparian setback policy and emphasized that staff should include feedback from all stakeholders. The T&E Committee then accepted staffs status update on the proposed work plan. ANALYSIS The City's current riparian policies and requirements, as embodied in the Envision San Jose 2040 General Plan (General Plan) and the Habitat Conservation Plan, generally require at least a 100-foot setback for development projects. Some exceptions to the 100-foot setback exist. For example, under the Habitat Conservation Plan, a smaller setback may be allowed for small parcels or on sites near unmapped streams, and a greater setback may be required for development on steeply sloping sites. The Habitat Conservation Plan's exceptions to minimum required setbacks also include an exception based on demonstrable hardship. In addition, the General Plan provides an exception for projects where no significant environmental impact will occur. Prior to the comprehensive update in 2011 that resulted in the Envision San Jose 2040 General Plan, the City had concerns that codifying minimum required riparian setbacks, and in particular a minimum 100-foot setback, could result in severe limitations for development. The City, therefore, has relied on policies rather than on adopting an ordinance that would include exceptions to address constraints that may exist on various types and sizes of sites. The Habitat Conservation Plan was adopted by the City Council on January 29, The Habitat Conservation Plan provides a framework for promoting the protection and recovery of natural resources, including endangered species, while streamlining the permitting process for

5 Page 5 planned development, infrastructure, and maintenance activities. The Habitat Conservation Plan allows the County of Santa Clara (County), the Santa Clara Valley Water District, the Santa Clara Valley Transportation Authority (VTA) and the cities of Gilroy, Morgan Hill, and San Jose (collectively, the Local Partners or Permittees), to receive endangered-species permits for activities and projects they conduct and for those under their jurisdiction. Implementation of the Habitat Conservation Plan will protect, enhance, and restore natural resources in specific areas of Santa Clara County and contribute to the recovery of endangered species. Rather than separately permitting and mitigating individual projects, the Habitat Conservation Plan evaluates naturalresource impacts and mitigation requirements comprehensively in a way that is more efficient and effective for at-risk species and their essential habitats. The Habitat Conservation Plan identifies regional lands (called reserves) to be preserved or restored to benefit those species and describes how reserves will be managed and monitored so that they benefit those species. The Santa Clara Valley Habitat Agency (Habitat Agency) is the agency primarily responsible for executing the requirements of the Habitat Conservation Plan and the Federal and State endangered species permits. Through the Implementing Agreement (the legal document between the Wildlife Agencies and co-permittees to implement the Plan), the County and Cities of Gilroy, Morgan Hill, and San Jose are responsible for Plan compliance with respect to private development projects in their jurisdictions, and each co-permittee is responsible for ensuring its own public projects are carried out in conformance with the Plan. Since adoption of the Habitat Conservation Plan, approved development proposals in the City that are deemed covered projects in the Plan, are subject to the Plan's requirements and conditions, in compliance with Chapter 18.40, "Habitat Conservation Plan," of Title 18, "Local Planning," of the San Jose Municipal Code. As of the date of the preparation of this memorandum, based on staff review of a sampling of private development projects approved by the City since it adopted the Habitat Conservation Plan, it appears that there are only a few projects that have been deemed covered projects near riparian areas, and, therefore, only a few projects that are under the Plan must provide riparian corridor setbacks. The City's riparian corridor policies are implemented for projects near riparian corridors with the City-adopted Habitat Conservation Plan. Staff is in the process of reviewing minimum required riparian corridor setbacks within 300 feet of waterways for development projects approved during the period from July 2009 through March 2014 (see Attachment 2). An initial look at these projects' files shows that more than 80% of these approved projects are in Planned Development (PD) Zoning Districts. Each PD Zoning District contains customized development standards that may include minimum required setbacks that are unique to that zoning district. The General Plan contains implementing actions to facilitate development in conventional zoning districts rather than PD Zoning Districts in order to streamline approvals and to create more consistency in standards for development in the City. However, to the extent that a codified minimum required riparian corridor setback in Title 20 (the Zoning Code) could not be met by a development proposal in a conventional zoning district, and there is not an exception or

6 Page 6 waiver to setback requirements for the proposed development to comply with the provisions of a conventional zoning district, that development proposal may opt to apply for Council approval of a PD zoning that includes smaller minimum required setbacks as development standards. An unintended consequence, therefore, of codifying minimum required setbacks in the Zoning Code that exceed the Habitat Conservation Plan (HCP) requirements in Title 18, but do not include exceptions that exceed those in the HCP, may be to limit economic use of the property completely or severely. Alternatively, more stringent minimum riparian corridor setbacks in the Zoning Code could encourage more PD zonings with customized setbacks, which would result in greater inconsistency with the General Plan's implementation actions for limiting PD zonings. To address continued concerns with how the General Plan policies are being implemented while avoiding the consequences described above, staff is considering options to codify requirements in the Zoning Code for specific findings of consistency with the City's goals and policies for protection of riparian corridors for approval of development projects. With this approach, regardless of whether or not a project is in a PD Zoning District, the same findings of consistency for protection of riparian corridors would apply. Each development proposal could be considered in the context of its site's unique attributes and could avoid completely or severely limiting all economic uses of the property. This approach to amending the Zoning Code is somewhat similar to how Chapter of the Code addresses development in historic areas in Downtown Zoning Districts. EVALUATION AND FOLLOW-UP Staff is completing review of development projects approved since July 2009 to document how existing City policies and requirements have been implemented, and to analyze how best to codify development standards for protection of riparian corridors including bird-safe design. Staff is also looking at requirements in other cities for comparison with the City's current policies. An initial review of San Antonio's requirements for development near its river walk, for example, indicates that there is no minimum required setback for development (see Attachment 3). Completion of this research will help staff frame discussions for public input on the effectiveness of the City's current policies and staffs proposed options for Code changes. Staff further proposed to report back to the T&E Committee by March 2016 with a summary of findings from the review of approved development projects, community meetings, and research, with recommendations for possible Council action. Depending on the T&E Committee recommendations for further action, an ordinance or Council Policy may then be drafted and presented to the Planning Commission and City Council. Because staff is working on other time-sensitive Council priorities, staff proposed to extend the expected timeframe to complete the Riparian Corridor Policy/Ordinance Study work plan to March 2016.

7 Page 7 PUBLIC OUTREACH/INTEREST An agenda for the CED Committee meeting listing and describing this item will be posted on the City's web-site prior to the CED Committee meeting in compliance with applicable requirements of the San Jose Municipal Code and State law. Staff has been available to discuss this item with interested members of the public. COORDINATION The preparation of this memorandum was coordinated with the City Attorney's Office. CEOA Not a project: Staff report on work plan. File Number PP /s/ HARRY FREITAS, DIRECTOR Planning, Building and Code Enforcement For questions, please contact Jenny Nusbaum, Supervising Planner, Ordinance and Policy Team, Planning Division at , iennv.nusbaum@sanioseca.gov Attachments: 1. Public Correspondence 2. List of Proj ect Files 3. Excerpt from San Antonio Municipal Code