Why HSRA is Challenging Sierra County's Amendment to the Stream Setback Ordinance

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Why HSRA is Challenging Sierra County's Amendment to the Stream Setback Ordinance

posted Jun 21, 2010 9:10 PM by Stevee Duber [ updated Jun 21, 2010 9:19 PM ]

             On June 8, 2010, the High Sierra Rural Alliance filed a legal action asking the Superior Court to set aside Sierra County’s amendment of the Zoning Code to establish a new definition of the “High Water Line” to be used by planners in measuring stream setbacks. HRSA filed this action because the County’s amendment is inconsistent with the requirements of the 1996 General Plan, which, over a decade after enactment, has still not been implemented by the Sierra County Board of Supervisors.

Background

             The General Plan was adopted in 1996 after two years of public meetings and hearings in an intense collaborative effort involving the Planning Commission, Planning Department, Board of Supervisors and interested public citizens. At the time of adoption, the Plan was heralded as outstanding. The County Planning Director even received an award for the Plan’s adoption.

              In developing the General Plan, the County considered the need for varied stream setback requirements depending on whether development was to occur outside community core areas, within community core areas or in the towns of Downieville and Sierraville. The General Plan provides for larger stream setbacks outside community core areas, but setbacks of only 50 feet in core areas, and potentially even smaller setbacks - based on what is feasible -- in Downieville and Sierraville. The Plan requires the County to adopt a new stream setback ordinance to implement this flexible regulatory approach.

            To protect public health and safety – and the stream environment – in Sierra County, the General Plan also requires the County to establish and map special zones around stream areas relating to flood control, stream protection and open space preservation. The purpose of these special treatment zones is to supplement the General Plan's varied stream setback requirements to afford the greatest protection for public health and safety and the environment, while also offering residents a reasonable opportunity to develop their parcels.

            The General Plan has been called “the constitution” for land use planning in local jurisdictions. It is the policy statement which informs the ordinances which govern. The General Plan envisioned that these new ordinances would be passed within a year or two following Plan adoption in 1996. Instead, today in 2010, the County still has not adopted a single required ordinance. This failure has led to the present situation.

The County’s Failure to Implement the General Plan’s Requirements Leads to Greater Restrictions on Community Core Development While Allowing for Harmful Development near Streams and in Floodplains Outside Community Core Areas

            Rather than adopt the required ordinances the County has, over the last 15 years exercised an inconsistent and at time arbitrary application in measuring stream setback requirements, including the use of the 100 year floodplain line as the beginning point for measuring the existing zoning code requirement for a 100 foot stream setback.

            The County’s new zoning change attempts to redefine this measuring point without incorporating any of the flexibility and protections required by the General Plan when it was enacted over a decade ago. As a result, development in non-community core areas will not be subject to the setback requirements required by the General Plan, and development in community core areas, and in Downieville and Sierraville, will be required to obtain variances in order to develop within 100 feet of the stream zone even though many of these developments would not be required to do so under the General Plan.

            In the meantime, the County’s failure to adopt the other General Plan required ordinances designed to protect the public from the risks of floods and preserve water quality and riparian habitat has the potential for harm. In the past, these impacts were avoided or at least alleviated by the County’s use of the 100-year flood line as the basis from which to measure stream setbacks. This approach, while imperfect, at least allowed the County to condition proposed uses, such as gas stations, in the floodplain. With the adoption of the new definition the County no longer has the discretion or authority to deny potential harmful development within the floodplain, even where there are other feasible development options that do not threaten public safety and the environment.

            HRSA is committed to advocating for sound planning, consistent with applicable state and local law, to ensure that our community grows in harmony with our surrounding environment. The County’s shotgun approach of simply changing the definition of the high water line without implementing the General Plan ordinances puts the public and the environment at risk, and doesn’t help property owners in Sierraville, Downieville or other communities, who want to build near streams which don’t flood. For that reason, HRSA is challenging the County’s zoning amendment.