Richmond Municipal Code § 15.04.302.060 Permitted Uses and Limits on Uses Within Creek Setbacks

The purpose of the -CP Creek Protection Overlay District is to establish regulations and standards to preserve and enhance the City's creeks and riparian corridors as an important public asset that provides environmental, recreational and aesthetic value. More specifically, this Overlay district is intended to:

A. Enhance creek corridors and riparian areas to extend the City's green infrastructure by restoring riparian habitat with appropriate vegetation and channel design; removing culverts and hardened channels where appropriate; improving creek access; avoiding future culverting or channelization of creeks; and ensuring appropriate and ongoing maintenance.

B. Promote restoration of urban creeks and coordinate with property owners and local interest groups in restoration efforts.

C. Require daylighting of creeks that are currently in culverts or hardened channels, where feasible, in redevelopment projects.

D. Establish standards that allow public access in the floodplain and buffers along creek corridors without compromising the integrity of sensitive habitats.

E. Secure land adjacent to creeks as permanent public open space through dedication or easements, wherever feasible and desirable; and

F. Increase access to creeks for maintenance purposes; and

G. Establish best management construction and maintenance practices for creek corridors that will ensure their long-term viability.

The regulations apply to all creeks and riparian systems as defined in the General Plan and shown in Figure 15.04.302.030, including culverted creeks that the Council may determine as having potential for future daylighting.

The general location of creeks subject to the regulations of this article shall be shown on the Zoning Map. In the event that a site-specific determination is required as to whether a creek exists on a property and the location of such creek, the City Engineer, in consultation with the Zoning Administrator, shall make such a determination, in consultation with the State Department of Fish and Wildlife, based on all application materials submitted and subject to the following provisions:

A. Determination Criteria. A creek is a watercourse that carries water, whether identified or unidentified, from either a permanent or natural source, either intermittently or continuously and runs in a defined natural or engineered channel or continuous swale or depression. This definition excludes any part of an engineered system developed by a public agency for collection of storm or flood waters, provided, however, that such part does not follow the original course of a creek. Determinations of the existence of a creek and its location shall be based on the following factors:

1. Micro-topography such as a "U" or "V" shape channel typically located at the low point of a macro-topographic feature.

2. Macro-topography consisting of bowl, "U", or "V" shaped topography with high points draining to a valley or ravine as part of a large drainage network leading to larger creeks or the San Francisco Bay and San Pablo Bay.

3. Flatland topography may consist of creeks in a shallow bowl or "U" shaped topography. Generally, these creeks flow from the hills toward the San Francisco Bay and San Pablo Bay following the slope of the land.

B. Indicator Features. Determinations of the existence of a creek may also be based on whether any or all of the following features are present:

1. A riparian corridor, meaning a corridor of relatively denser vegetation roughly parallel to the creek channel, or soil conditions that would support native riparian vegetation.

2. A creekbed with material that differs from the surrounding geologic material (i.e., more rocky, or gravelly, little or no vegetation, sorted by size).

A. General Prohibition. It shall be unlawful for any person, organization, institution, corporation or the City to fill, or cause to be filled, to obliterate or cause to be obliterated, to obstruct or cause to be obstructed, to place riprap or any debris in the channel or on the banks of, any creek, to construct a building bridging a creek or cause such building to be constructed, or in any manner to interfere with or cause to be interfered with, any creek in the City.

Figure 15.04.302.030: Creeks and Drainages

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B. Exceptions. Grading, alteration to the natural contours of the land, cutting or alteration, or removal of creek bank vegetation within the creek or creek setback area shall be permitted only in the following instances:

1. Protection Projects. Projects necessary to protect adjacent land and structures from imminent flooding, erosion or landslide hazards, or maintenance or capital improvement.

2. Creek Restoration and Enhancement. Creek restoration projects, subject to a conditional use permit and, if required, the approval of the California Department of Fish and Game, the U.S. Army Corps of Engineers, and the California State Water Resources Control Board. All creek restoration and enhancement projects must:

a. Provides equal or better habitat and creek protection as compared to existing conditions;

b. Not impair the functional capacity of the habitat;

c. Not cause significant creek bank erosion;

d. Not have a detrimental effect on water quality or quantity; and

e. Be conducted or overseen by a certified professional with expertise in stream restoration and fluvial geomorphology processes.

3. Low Intensity Passive Recreation. Construction of pedestrian and bicycle paths or greenbelts, foot bridges, nature study areas or conservation uses that do not significantly alter the natural contours of the land or compromise the integrity of sensitive habitats.

4. Approved Structures. Structures required for the construction of a structure approved under Sections 15.04.302.050 and 15.04.302.060 and where the building permit for such structure has been issued.

Any non-exempt construction within 30 feet of the centerline of a culverted or channelized creek that either expands the mass or footprint of an existing building, or builds a new structure whether or not subject to the securing of a building permit, requires approval of a conditional use permit for a roofed structure or an administrative use permit for other non-exempt structure and shall comply with the requirements of this section.

A. The following structures shall be exempt from the requirements of this section:

1. Any fence, arbor, trellis, pergola, gazebo, play structure or other similar unenclosed accessory structure not within the creek setback.

2. Retaining walls less than three feet in height.

3. Flag and light poles.

4. Solar energy equipment.

5. Prefabricated or other moveable one-story detached accessory buildings that are not permanently attached to a foundation.

B. When daylighting is feasible, the application for a conditional use permit must include engineering and construction details for daylighting and restoring the creek to a natural condition using best practices for preservation and management of urban creeks, which must be approved by the City Engineer prior to the Planning Commission's action on the permit. The City Engineer may retain, at the applicant's expense, the services of an expert in creek restoration and hydrology to advise the City.

C. The Planning Commission may approve reasonable increases in density and reductions in setbacks and parking requirements as mitigation for the development constraints and costs associated with daylighting and creek restoration.

D. If the City Engineer determines that daylighting is infeasible, the applicant shall submit a report from a structural engineer, contemporaneously, with the application for a building permit, that establishes to the satisfaction of the City Engineer, each of the following:

1. The structural integrity of the culvert under existing conditions is acceptable to the City Engineer and will not be compromised by the proposed construction;

2. The proposed construction will not impede access for the responsible party to repair and maintain the culver; and

3. The flow of the creek will not be impeded nor its water quality impaired.

A. Setbacks Required. All new structures, additions to existing structures, and new impervious surfaces, including driveways and patios, in the vicinity of an open creek or a culverted creek designated by the City Council for future daylighting shall be set back as follows:

1. A minimum of 20 feet from the top of a creek bank, provided the bank or edge of riparian vegetation can be clearly determined; or

2. A minimum of 30 feet from the centerline of the creek if the bank or edge of riparian vegetation cannot be clearly determined.

3. The Zoning Administrator, in consultation with the City Engineer, may establish a different setback based on the results of a creek assessment report as required by subsection 15.04.302.060(E) and on flooding potential with a 100-year storm as determined from FEMA Flood Insurance Study maps.

B. Separation of Public and Private Areas. Fencing may be required within creek setback areas to separate public or private use areas from the creek corridor and prevent encroachment in habitat areas. Fencing shall be designed to permit emergency and maintenance access and not obstruct wildlife migration corridors by allowing for passage of small mammals and other species.

Table 15.04.302.060 lists permitted uses for all development within creek setbacks. The "Additional Regulations" column indicates more detailed explanations in sections that follow the table (Section codes noted) or that are located elsewhere in this Zoning Ordinance.

"P" — Permitted as-of-right if in compliance with all standards.

"A" — Requites an administrative use permit granted by the Zoning Administrator.

"C" — Requires a conditional use permit granted by the Planning Commission.

TABLE 15.04.302.060: PERMITTED USES WITHIN CREEKWAY SETBACKS

A. Allowed Uses Within Setback. Permitted uses within a creek setback are limited to:

1. Passive recreational, educational, and existing non-structural uses, including private open space and public open space with pedestrian or bicycle paths, in accordance with best management practices.

a. Any trail or greenbelt within the creek setback must be a minimum of five feet from the top of the creek bank, unless an engineered slope justifies a reduced buffer, which shall be no less than one foot.

b. Pedestrian and bicycle trails and greenbelts within the creek setback shall be a minimum five feet in width, and hiking-only trails may be a three to five feet in width.

c. Any paving within a creek setback must be permeable.

Figure 15.04.302.060-A: Standards within Creek Setback

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2. Utility lines, pipelines, drainage and flood control facilities. All turf areas, irrigation and drainage shall be designed to drain away from creek corridors to avoid impacts of irrigation and chemical use of pesticides and herbicides.

3. Public bridges and public road approaches to bridges to cross a creek.

B. Conditionally Permitted Uses Within Setback. Parking associated with permitted uses allowed on abutting property and bridges and road approaches to bridges to cross a creek may be permitted with the approval of a conditional use permit, provided the Planning Commission determines that:

1. Alternative locations for parking and vehicle access are physically infeasible or more environmentally damaging; and

2. An NPDES permit has been obtained for any parking areas located within the setback and all conditions of the NPDES permit are met.

C. Minor Unroofed Structures Within Setback. Minor unroofed structures such as fences, walls, decks, or benches may be allowed within the creek setback with an administrative use permit, provided the Zoning Administrator determines that:

1. The structure does not add any new impervious surface except for vertical structural elements such as posts or columns;

2. No alterations to drainage will intensify or channelize water drainage into the creek;

3. Construction of the structure will not remove or alter riparian vegetation;

4. Best management practices are used to prevent erosion during construction; and

5. No structural elements are located closer than 15 feet from the top of the creek bank.

Exceptions may be granted with a conditional use permit.

D. Roofed Structures Within Setback. Structures having a roof supported by columns or walls, including dwellings, garages, other accessory buildings and commercial buildings, are not permitted within the creek setback. Exceptions may be granted with a conditional use permit, provided that the Planning Commission determines:

1. Alternative locations outside the setback area or within the existing building footprint have been studied and found to be physically infeasible or more environmentally damaging;

2. Adverse environmental effects are mitigated to the maximum extent feasible, and all feasible measures for creek protection are incorporated as conditions of project approval, including measures to protect riparian vegetation and wildlife and prevent erosion;

3. The exception is necessary to allow a reasonable use of the site, similar to that on similarly zoning districts land in the vicinity; and

4. No structure is closer than 15 feet from the top of the creek bank.

E. Required Submittals for Roofed Structures. An application for an exception to creek setback requirements for roofed structures shall include all of the following:

1. A creek assessment report that delineates the location of the creek centerline, the top of the creekbank and the creek setback area, describes the needs and purposes of the proposed project, and includes a site plan of the proposed development that shows all pervious and impervious areas and percentages. The report shall describe the existing site conditions, the extent of riparian vegetation including trees, and other existing conditions that allow assessment of the impacts of the construction on the creek. The report shall be prepared by a licensed surveyor, civil engineer, or other licensed professional registered by the State of California, and approved by the Zoning Administrator.

2. Justification for seeking the exception, including why other alternative locations are infeasible, and how the setback encroachment will be minimized to the greatest extent possible.

3. Any reports such as soil reports, surveys, hydrology study, or civil engineering drawings, as required by the Zoning Administrator, to determine whether the proposed project will have an adverse impact on the creek and to propose revisions or conditions of approval that mitigate the impact to the maximum extent feasible.

4. A creek protection and riparian habitat plan that meets all of the following requirements shall be prepared by a landscape architect, hydrologist, biologist, environmental review professional, or other professional approved by the Zoning Administrator:

a. The site development plan minimizes impervious surfaces and vegetation loss and site disturbance to the maximum extent feasible;

b. The volume and velocity of storm water runoff to creeks or storm drains is not increased by the project. Storm water detention and treatment facilities are incorporated, such as permeable products porous pavement, modular pavers and decks instead of asphalt or concrete; installation of vegetation and vegetated swales; cistern or other detention/retention structure; infiltration trench; storm drain energy dissipaters; and runoff routed to landscaped areas.

c. Erosion control and slope stability measures are incorporated, such as additional native tree and vegetation planting; erosion control fabric such as jute netting; terracing or berms; and crib walls with slope stabilization native vegetation planting.

d. Best management practices are employed to assure that construction activity will not adversely impact the creek bank, riparian corridor, water flow, or water quality and include locating debris and construction materials away from the creek; protecting tree crowns and root zones; erosion control devices around construction areas; dust control; litter control; and prohibition of use of hazardous materials.

e. Restoration and enhancement vegetation is proposed for all riparian habitat affected by the development.

F. Exceptions to Required Submittals. The Zoning Administrator may grant exceptions to submittal requirements for projects that will not disturb the land or where on-site conditions clearly demonstrate that the site has no riparian vegetation. An applicant requesting a waiver of submittal requirements shall submit sufficient information to substantiate the waiver.

G. Conditions of Use Permit Approval for Roofed Structures Within a Creek Setback. Approval of any roofed structure within the creek setback area is subject to the following requirements:

1. All measures specified in the creek and riparian habitat protection plan shall become conditions of approval for the project. In addition, all such measures shall be carried out prior to completion of construction or concurrently with the installation of site improvements in the case of a subdivision map.

2. All required permits from the California Department of Fish and Game, the U.S. Army Corps of Engineers, the California State Water Resources Control Board, or other applicable agency shall be obtained prior to, or concurrently with the approval of any city permits.

3. A construction management plan shall be submitted, reviewed, and approved with all building permit applications that demonstrates how creek and riparian habitat protection measures will be implemented throughout construction.

A. When Allowed. Culverting and riprapping shall be prohibited unless an applicant presents compelling evidence that there is no other reasonable means to prevent the erosion of adjacent supports, foundations, or property. An administrative use permit shall be required to construct or cause to be constructed any wall, culvert, drain, bulkhead or other structure in any creek or to place riprap or any debris in the channel or on the banks of a creek.

B. Determination of No Feasible Alternatives. A permit to construct any wall, culvert, drain, bulkhead or other structure pursuant to this section shall not be granted if the Zoning Administrator determines that that applicant has a reasonable alternative that will serve the same purpose, such as:

1. Excavating to restore a natural meander, stream geometry and channel roughness.

2. Clearing debris.

3. Flood proofing through a minor redesign of buildings, relocation of porches or other minor structures, sheds, garages, raising of such structures, or raising the grade of adjacent land.

4. Removing structures.

5. Stabilizing the bank using vegetation or soil bio-engineering that does not degrade the existing natural environment. This may include the use of vegetated and dirt filled gabions, vegetated wood crib walls, live and dead brush matting, fascines, brush layering and cuttings, and other similar strategies based on employing plants as the long-term stabilizing materials.

6. Vegetation management that can include selective clearing that retains a riparian canopy and root structure to preserve riparian habitat, control unwanted undergrowth and stabilize banks.

7. Changes in site design, including but not limited to removal of impervious surface area.

C. Coordination with Other Permit Requirements. All required permits from the California Department of Fish and Game, the U.S. Army Corps of Engineers, and the California State Water Resources Control Board shall be obtained prior to, or concurrently with, the approval of the administrative use permit.

As a condition of approval for any project subject to the requirements of this article, provision for construction monitoring, inspection and maintenance shall be established along with a funding mechanism. Monitoring, inspection and maintenance programs shall include annual inspections and provisions to maintain hydraulic capacity of the stream channel, as well as protect, restore and enhance aquatic and riparian habitat. The following construction practices must be used to reduce erosion potential:

A. Prevention of run-off during construction, which may include debris and sediment removal, clearing of brush and other vegetation that trap sediment;

B. Vegetation management;

C. Bank stabilization;

D. Temporary water diversions;

E. Construction scheduled for the dry season; and

F. High flow bypass until the system is stabilized.

The City may allow dedication to the City or other appropriate public or private entity of a conservation easement or fee interest for long-term management of the creek area as determined necessary for flood control or protection of water quality and wildlife habitat.