COUNTY OF SAN MATEO Inter-Departmental Correspondence
PLANNING AND BUILDING DEPARTMENT
DATE:							August 25, 2008
BOARD MEETING DATE:							September 9, 2008
SPECIAL NOTICE/HEARING:							300 feet
VOTE REQUIRED:							Majority Vote
TO:					Honorable Board of Supervisors
FROM:					Lisa Grote, Director of Community Development
SUBJECT:					Consideration of an appeal of the Planning Commission’s decision to deny an after-the-fact Coastal Development Permit, pursuant to Section 6328.4 of the County Zoning Regulations, to correct and mitigate the illegal removal of riparian vegetation performed in June 2004 and certification of a revised mitigated Negative Declaration, on an unimproved 7,070 sq. ft. parcel located on San Carlos Avenue in the unincorporated El Granada area of San Mateo County. This project is appealable to the California Coastal Commission.
					County File Number:	PLN 2004-00398 (Lacasia-Barrios)
RECOMMENDATION
1.	Grant the appeal and reverse the decision of the Planning Commission to deny the permit, thereby approving the Coastal Development Permit, County File Number PLN 2004-00398, by adopting the required findings and conditions of approval in Attachment A.
2.	Certify the revised mitigated Negative Declaration, by adopting the required findings in Attachment A.
VISION ALIGNMENT
Commitment: Number 6 (Preserve and provide people access to our natural environment): The project restores a portion of the Montecito Riparian Corridor, located on the southwest portion of the site.
Goal: Number 13, which states: “Protect the quality of the natural environment by fixing the boundaries between open space and development.” The project delineates the boundaries of the Montecito Riparian Corridor at the property, as determined by a biologist, thereby prohibiting development in this area and its associated buffer zone.
BACKGROUND
Proposal: To correct and mitigate the illegal removal of riparian vegetation performed in June 2004 on the subject property.
Report Prepared By: Camille Leung, Project Planner, Telephone 650/363-1826
Appellants/Property Owners: Rodrigo and Liz Lacasia-Barrios
Location: San Carlos Avenue, El Granada (APN: 047-105-020)
Size: 7,070 sq. ft.
Zoning: R-1/S-17/DR/CD (Single-Family Residential District/S-17 Combining District with 5,000 sq. ft. minimum parcel size/Design Review/Coastal Development)
General Plan Designation: Medium Density Residential (6.1 to 8.7 dwelling units/acre)
Environmental Evaluation: An Initial Study and a Negative Declaration were prepared and issued for an earlier version of the project (which included construction of a new single-family residence), with a public review period from November 16, 2006 to December 6, 2006. The Initial Study and a Negative Declaration (ND) were approved by the Zoning Hearing Officer on April 11, 2007. However, due to the appeal of the decision of the Zoning Hearing Officer, the ND is not certified. Subsequently, the project was revised to include only the correction and mitigation of the illegal clearing. The Initial Study and a Negative Declaration have been revised to reflect the current version of the project which is to correct the illegal vegetation clearing. Re-circulation of the revised Negative Declaration is not required by CEQA. The Board of Supervisors must make a de novo decision on the revised Initial Study and Negative Declaration as part of this appeal application.
Setting: The undeveloped parcel is located within an existing urban, residential neighborhood and is bordered to the north and east by single-family residential development. A perennial stream sometimes referred to as San Augustin Creek flows generally southbound, west of the project site. A portion of the Montecito Riparian Corridor, a riparian corridor associated with the stream, is located on the southwest portion of the site. The site has an average slope of 18%. In addition to various species of riparian vegetation found on-site, nests of the San Francisco dusky-footed woodrat (identified by the California Department of Fish and Game as a California Special Concern species) have been found in the project vicinity.
Project History: A portion of the Montecito Riparian Corridor that is associated with San Augustin Creek, a perennial stream, is located on the southwest portion of the subject parcel. In June 2004, a previous property owner performed illegal clearing of riparian vegetation for which the County’s Code Compliance Section issued a Notice of Violation (VIO 2004-00085). In August 2004, the previous property owners applied for an after-the-fact Coastal Development Permit for vegetation removal and restoration (PLN 2004-00398) and, subsequently, submitted a biologist’s report containing a riparian corridor delineation for the property. In June 2005, the current property owners, Rodrigo and Liz Lacasia-Barrios, in addition to continuing to pursue the after-the-fact Coastal Development Permit (CDP) for vegetation removal and restoration, applied for a CDP, Design Review and a Variance to construct a single-family residence (PLN 2005-00248, the application for a Variance was subsequently withdrawn). During the review process for the single-family residence, two additional biologist’s reports were prepared. One was an update on the reestablishment of riparian vegetation and the second was a review of the first delineation by a biologist under contract to the County. Submitted biologists’ reports support the application of a minimum 20-foot setback from the estimated limit of riparian vegetation where no feasible alternative building site exists, per Local Coastal Program (LCP) Policy 7.12. Throughout the review of both the after-the-fact CDP for vegetation removal and restoration and the CDP and Design Review for the new residence, Planning staff received letters of opposition from interested neighbors. Neighbors’ concerns include the design of the proposed residence and the precedent set by legalization of the clearing violation.
On April 11, 2007, the Zoning Hearing Officer approved both the after-the-fact CDP for vegetation removal and restoration and a CDP and Design Review for the new residence. Both decisions were appealed by a neighboring property owner, Mr. Mark Aschauer. On March 26, 2008, the Planning Commission found in favor of the neighbor’s appeal, thereby denying both the after-the-fact CDP for vegetation removal and restoration and the CDP and Design Review for the new residence. The property owners have filed an appeal of the Planning Commission’s decision on the after-the-fact CDP for illegal clearing, but did not appeal the denial of the CDP and Design Review for the single-family residence.
DISCUSSION
A.	KEY ISSUES
	1.		Key Issues of the Planning Commission Decision
			On March 26, 2008, the Planning Commission reviewed the property owners’ request for a Coastal Development Permit (CDP) to correct and mitigate the illegal removal of riparian vegetation performed in June 2004 (PLN 2004-00398), another CDP and Design Review to construct a new single-family residence (PLN 2005-00248), and certification of a mitigated Negative Declaration. The permits for the vegetation removal and the single-family residence were processed simultaneously for convenience, but could be acted upon separately. The Planning Commission considered the appeal of both permits together, so testimony from neighbors at the hearing covered all aspects of the project including both the vegetation removal and the design of the proposed home. In its deliberations, the Planning Commission was clear in its determination that the proposed home design did not meet the design standard requiring compatibility with the neighborhood. With regard to the after-the-fact CDP for the vegetation removal, which is the subject of the current appeal before the Board, the Commission did not state that they disagreed with the analysis presented in the three biologists’ reports, but noted that these reports were only summarized in the staff report; and that the complete reports were not included in their packet for their review. Absent the full biologists’ reports and its decision to deny the accompanying home design permit, the Planning Commission granted the appeals of the Zoning Hearing Officer’s decisions (4-1-0-0; Commissioner Ranken opposed), thereby denying both the after-the-fact CDP for illegal vegetation removal and a restoration plan and the CDP and DR for a new single-family house.
			The following issues formed the basis of the Commission’s denial of the CDP to correct and mitigate the illegal removal of riparian vegetation:
			a.	The Planning Commission received testimony at the hearing from the appellant stating that legalization of prior riparian vegetation removal sets a precedence for protected areas on the coast and encourages the illegal clearing of riparian vegetation to facilitate the building of homes. The County required the previous property owner to apply for an after-the-fact CDP for the removal of riparian vegetation, as a CDP would have been required for this activity per LCP Policy 1.2 (Definition of Development). The CDP process allows the County to evaluate the damage that had occurred to the riparian corridor, in this case, by requiring a biologist’s delineation of the “edge of potential former riparian corridor.” The goal of this delineation is to establish the area of the riparian habitat at the property that existed prior to the illegal clearing, such that the property owner does not benefit from an expanded building envelope. In this way, the County provides a disincentive to property owners wishing to clear riparian habitat in order to make their property more “buildable.” In addition, staff recommends Condition No. 7 in Attachment A, which requires three administrative reviews of the site in order to monitor the progress of revegetation. The property owners are required to pay an inspection fee of $572 prior to each administrative review date. Therefore, the delineation of the edge of the riparian corridor and administrative review requirements provide disincentives for illegal clearing.
			b.	The Planning Commission received testimony from an interested member of the public questioning whether San Augustin Creek (drainage channel associated with the Montecito Riparian Corridor) is an intermittent or perennial stream. While the plant ecologist hired by the original property owner identifies San Augustin Creek as intermittent, the biologist hired by the County identifies it as a perennial stream. The County’s Local Coastal Program Policy 7.11 requires a 30-foot buffer zone for intermittent creeks and a 50-foot buffer zone for perennial streams. Staff accepts the determination of the biologist it hired identifying the stream as perennial. LCP Policy 7.12 allows a 20-foot buffer zone for residential uses when no feasible building alternative exists for the site. Both Mr. Mahoney and Mr. Kobernus support the application of a 20-foot buffer zone, based on the size of the site, constriction of the lot due to the presence of the riparian corridor, the presence of marginal habitat within the buffer zone area, and required building setbacks for the zoning district.
				Based on the information in the submitted biologists’ reports, staff recommends the application of a 20-foot buffer zone for this property. As discussed in the staff report prepared for the April 5, 2007, Zoning Hearing Officer hearing and illustrated in Attachment P, application of a 50-foot buffer zone from the edge of the riparian corridor and the required minimum front and side yards would leave a “building envelope” of approximately 300 sq. ft., or 4% of the parcel area. Therefore, the proposal complies with LCP Policy 7.12, as no feasible building alternative for the site exists unless a 20-foot riparian buffer zone is applied.
			While the Planning Commission may not have had access to biologists’ reports to address the above issues at the March 26, 2008, public hearing, the supporting information is attached to this report for the Board of Supervisors’ consideration. Should the Board grant the property owners’ appeal, the Board will preserve the property owners’ only chance to correct the associated violation case (VIO 2004-00085) and allow the immediate restoration of a property illegally cleared four years ago, thereby providing for the reestablishment of healthy riparian habitat and resulting wildlife and water quality benefits.
	2.		Appeal Application
			On April 8, 2008, the property owners appealed the Planning Commission denial of the after-the-fact Coastal Development Permit based on the key issues summarized below. The submitted appeal is also attached to the staff report as Attachment C. Each issue is followed by staff’s response.
			a.	That there is sufficient evidence, including three biologists’ reports, to support the “edge of potential former riparian corridor” delineation, as marked by Tom Mahoney and mapped by Turnrose Land Surveying.
				Response: The property owners assert that there is sufficient evidence in the biologists’ reports, which are attached for the Board’s review, to support granting the after-the-fact CDP for the removal and restoration of riparian vegetation. The biologists’ reports support the riparian corridor delineation and restoration plan and staff recommends that the after-the-fact CDP be approved.
			b.	That the Coastal Development Permit should be granted as the proposed riparian vegetation restoration complies with County regulations, including the General Plan and the Local Coastal Program (LCP), and complies with the California Environmental Quality Act (CEQA), as determined by the Zoning Hearing Officer on April 11, 2008.
				Response: The proposed restoration of illegally cleared areas complies with the policies of the San Mateo County General Plan, including Policy 4.16 (Protection for Coastal Features) of the Visual Quality Chapter, which calls for coastal development that protects and enhances natural landscape features and visual quality. While the illegal vegetation removal performed in June 2004 does not comply with this policy, the application of a minimum 20-foot riparian buffer zone from the “edge of existing riparian corridor” and “edge of potential former riparian corridor” (as shown in Attachment I) prevents disturbance of the section of the Montecito Riparian Corridor that runs through the southwest portion of the site. Furthermore, implementation of the biologist-recommended “conceptual revegetation plan” for the areas of the potential former riparian corridor and 20-foot riparian buffer zone would restore and enhance this section of the Montecito Riparian Corridor.
				In addition, the project is in compliance with applicable Local Coastal Program (LCP) policies. LCP Policy 7.1 (Definition of Sensitive Habitats) defines sensitive habitat as any area in which plant or animal life or their habitats are either rare or especially valuable. According to submitted biologists’ reports (see Attachments K through M), the site does not contain any plants or animals listed on the State of California “State and Federally Listed Endangered, Threatened, and Rare Plants of California (October 2006).” However, nests of the San Francisco dusky-footed woodrat (woodrat) have been observed in the project vicinity (see Attachment N for map). The woodrat does not have endangered or threatened status, but is identified by the California Department of Fish and Game as a California Special Concern Species. Riparian vegetation, including various species of coastal scrub and riparian woodland, has also been observed at the site.
				According to Mr. Mahoney’s report, vegetation removal performed in June 2004, has resulted in significant impact to riparian vegetation in the southern portion of the riparian corridor. In order to restore all illegally cleared areas, staff has added Condition No. 7 in Attachment A to require the implementation of the Mr. Mahoney’s “conceptual revegetation plan” (which includes planting of a minimum of 20 arroyo willow trees, monitoring and annual reporting of re-plantings, and control of invasive species at the site). This condition also requires administrative review dates to ensure compliance with the 3-year monitoring plan. In addition, Condition No. 3 requires the property owners to record a deed restriction that prohibits further removal of riparian vegetation, requires the removal of invasive exotic plant species within the buffer zone, and replanting of native plant species in the buffer zone.
				On April 11, 2008, the Zoning Hearing Officer found that the proposed restoration of illegally cleared areas conforms to applicable policies of the County General Plan and the Local Coastal Program (LCP). Staff concurs with the Zoning Hearing Officer’s decision and supports the approval of a Coastal Development Permit for this project.
			c.	That vegetation clearing performed by the previous property owner in June 2004 was in response to fire district regulations for weed abatement.
				Response: The current property owner states that the vegetation clearing performed in June 2004 was at the request of the Coastside Fire Protection District (Fire District), and that the act was legal. However, the Fire District’s weed abatement standards state that clearance of weeds and grasses in wetland, riparian, or resource sensitive areas may require a Coastal Development Permit and instruct property owners of property known or suspected to contain riparian vegetation areas to contact the Fire District for further instructions before performing weed abatement. According to plant ecologist Tom Mahoney, vegetation removal performed in June 2004 has resulted in significant impact to riparian vegetation in the southern portion of the riparian corridor. LCP Policies 1.1 and 1.2 require a Coastal Development Permit for the removal of major vegetation other than for agricultural purposes. As the previous property owner was not granted a Coastal Development Permit prior to the vegetation clearing, the clearing is illegal. However, the previous property owner did apply for a Coastal Development Permit in order to perform restoration activities as recommended by the attached biologist’s reports (Attachments K through M) in order to correct the violation and the current property owner is ready to follow through with those plans should they be approved by the Board.
			d.	That the property has access to both sewer and water service, proving it is buildable.
				Response: The potential for this parcel to be a development site becomes relevant only in the application of the buffer zone, in which staff supports a 20-foot buffer zone, as no feasible building alternative for the site would exist otherwise. However, the property’s access to sewer and water service is irrelevant to this after-the-fact CDP decision. Access to necessary services will be reviewed if and when a new development application is received. Any proposed development would require a separate Coastal Development Permit and a Design Review Permit.
B.	ALTERNATIVES
	1.		Should the Board of Supervisors find that there is insufficient information to support the delineation as marked by Tom Mahoney and recorded by Turnrose Land Surveying (Attachment I), staff recommends that the Board continue this item in order to allow the County or the property owners to obtain the necessary information.
	2.		Based on information presented and discussed at the public hearing, the Board of Supervisors may deny the property owners’ appeal, thereby retaining the Planning Commission’s denial of the after-the-fact Coastal Development Permit application to correct and mitigate the illegal removal of riparian vegetation performed in June 2004. It should be noted that a denial decision by the Board would be final, as a CDP denial cannot be appealed to the Coastal Commission.
			A denial of the property owners’ appeal would have two consequences. First, a denial of the after-the-fact CDP for vegetation removal and restoration would eliminate the opportunity for the property owners to resolve the associated violation case (VIO 2004-00085) at the property. Thus, non-resolution of the violation case will prevent development of the property until the violation case is resolved. In order to resolve the violation, the current or future property owners must address the basis of the Board’s decision to deny this project in a new application for an after-the-fact Coastal Development Permit and be granted the permit. Second, a denial of the after-the-fact CDP for vegetation removal and restoration could result in an indefinite or permanent delay of the restoration of illegally cleared areas and associated riparian habitat.
C.	ENVIRONMENTAL REVIEW
	An Initial Study and Negative Declaration were issued with a public review period from November 16, 2006 to December 6, 2006, per the provisions of the California Environmental Quality Act (CEQA) and were approved by the Zoning Hearing Officer on April 5, 2007. However, due to the Planning Commission’s granting of the neighbor’s appeal (denial of the projects) of the Zoning Hearing Officer’s decision, the Mitigated Negative Declaration could not be certified. The Initial Study and Negative Declaration have since been revised to eliminate the single-family residence which was denied by the Planning Commission (Attachment J). Per Section 15073.5, re-circulation of a Negative Declaration is only required when a new, avoidable significant effect is identified or when a lead agency has determined that the proposed mitigation measures will not reduce potential effects to less than significance and new mitigation measures or project revision is required. The revision in the project description to eliminate the denied residence will not increase the project’s environmental impact. Therefore, re-circulation of the revised Initial Study and Negative Declaration is not required by CEQA. The Board must make a de novo decision on the revised Initial Study and Negative Declaration as part of this appeal application.
FISCAL IMPACT
No fiscal impact on County General Fund.
ATTACHMENTS
A.		Recommended Findings and Conditions of Approval
B.		Location Map
C.		Appeal Letter and Supporting Documents (edited for brevity) Submitted by Property Owners, Received April 8, 2008
D.		Planning Commission Letter Granting the Appeal of the Zoning Hearing Officer’s Decision, dated March 31, 2008
E.		Planning Commission Staff Report, dated March 26, 2008 (all listed attachments excluded for brevity; copies available for viewing at the County’s Current Planning Section office)
F.		Appeal Letter Submitted by Mark Aschauer, Received April 24, 2007
G.		Zoning Hearing Officer Approval Letter, dated April 11, 2007
H.		Zoning Hearing Officer Staff Report, dated April 5, 2007 (all listed attachments excluded for brevity; copies available for viewing at the County’s Current Planning Section office)
I.		Topographic Map, Turnrose Land Surveying, September 2004
J.		Revised Initial Study/Negative Declaration, September 9, 2008 (attachments excluded as all are provided with this report)
K.		Riparian Delineation on San Carlos Avenue Parcel Prepared by Tom Mahoney, Albion Environmental, Inc., October 15, 2004
L.		Riparian Update Prepared by Tom Mahoney, Albion Environmental, Inc., November 29, 2005
M.		Assessment of Riparian Corridor Boundary Prepared by Patrick Kobernus, TRA Environmental Consultants, April 11, 2006
N.		Woodrat Map and E-mail Prepared by Patrick Kobernus, TRA Environmental Consultants, October 23, 2006
O.		Project Comments from the Midcoast Community Council, dated August 15, 2005
P.		Buildable Area Map with 20-Foot and 50-Foot Setback from Riparian Corridor
Q.		Montecito Riparian Corridor Map, County of San Mateo, January 1994
R.		Letter from Mark Aschauer (770 San Carlos Avenue), December 5, 2006
S.		Letter from Roel van Bezooijen (730 San Carlos Avenue), December 5, 2006
T.		Letter from Susana van Bezooijen (730 San Carlos Avenue), December 5, 2006
U.		Letter from Rex Geitner (731 San Carlos Avenue), December 6, 2006
V.		Letter from Connie Taniguchi (754 San Carlos Avenue), December 5, 2006
W.		Letter from Allan Lorenz (763 San Carlos Avenue), December 5, 2006
X.		Letter from Fritz Ender (771 San Carlos Avenue), December 5, 2006
Y.		Letter from Barry McAdoo, December 6, 2006
Z.		Letters from Janet Cochrane, Received December 6, 2006
AA.		“In the Matter of the Proposed One-Family Home at 779 San Carlos Avenue,” Received During the Design Review Process for the Project
AB.		Map of Neighborhood with Addresses