15th September 2014

Feature Articles

Exceptions, the route to a successful infill project with project with Aliquot Associates

For nearly 30 years, Aliquot has amassed experience and honed its expertise to secure infill permitting for its clients. Both urban and rural areas, especially affluent communities, are finely tuned to both environmental concerns and zoning regulations. It is here that exceptions to the zoning and subdivision code and environmental regulations are needed, as remaining land for building is constrained by many factors. This not only requires knowledge of environmental regulations and zoning code, but a strategic route to navigate the project through the many regulatory agencies.

What is a Creek? Why not in my back yard?

A creek is a beautiful bubbling show of flowing water, a symphony of nature’s song, a canopy curtaining showy bursts of green lush flanking its banks, where birds sing and our kids can play. Who wouldn’t want a creek in their back yard?

Everyone would, but savvy developers or home builders know that the long regulatory nightmare to develop near a wetland is an unprecedented and extremely expensive effort. In addition to being a major challenge for permitting with the relevant environmental agencies; a creek is also cited by neighbors opposing a project or even a single home as a conduit to the ear of our local elected officials, who must approve the project for it to move forward.

What is a wetland?

Ask most any person exiting a supermarket, stopping by a table to sign up as a new member with an environmental group, or donating for an environmental cause, and they will tell you all about wetlands, and why we should protect them. They will declare the need to stop impacting migratory birds and the filling and pollution of wetlands along our shores, creeks and rivers. This is truly a noble cause, but little do these shoppers know that a wetland could be nothing but an erosive rut, 3 inches wide, in a cow pasture with an ephemeral flow, dry 8 months of the year. This wetland would require the same regulatory consideration and permitting as for a creek.

As any wetland, this small ephemeral rivulet is regulated by the US Army Corp of Engineers (COE), the Ca. Department of Fish and Game (DFG) and the California Regional Water Quality Control Board (RWQCB) and requires the same regulatory process as a creek. Altogether, these agencies are known as the RESOURCE AGENCIES and they all have a say. This, you will not hear in the parking lot of the supermarket as smiling volunteers gather up donations and the shoppers feel good, doing good.

<Show aerial photo of Scots lane with bridge in forefront>

<Piece on Aliquot’s processing, mention award>

For starters,

just for the COE to acknowledge your property is limited to just the one wetland, the creek, the process takes 6 months. A professional environmental resource consultant provides a wetland delineation map, which is submitted to the COE and they verify it, a six month process. The Resource consultant, engaged by the builder, is required to show the apparent regulatory, ephemeral, wetland (the rivulet), potentially restricting the use of the land further. Years ago, waters had to be navigable to be under the jurisdiction of the COE. For some time later, the creek was jurisdictional if it was shown as a blue line on a USGS quadrangle map. Now some 20 years later, this small rivulet of a wetland is considered a “Water of the US”, requiring full regulatory compliance.

To construct a drainage culvert beneath a creek bank to carry the rain flow from your lot involves all three of the aforementioned agencies: COE, DFG and RWQCB. In addition, a biologist must now prepare an environmental assessment, which may be reviewed by the US Fish and Wildlife Service (USFWS). Unfortunately they do not talk to one another. If not chaperoned, the permitting process is more like a snowball being pushed along until it is heavy enough to stop.

Savvy home builders

are also aware that an infill project along a creek corridor, although it may be surrounded by existing development, is vulnerable to project killing mitigations (requirements) for protected species. Although the species may not be present, the biological assessment may find the habitat for the species on the property. The cost and time to prove the species is not there if habitat exists, is too great, especially for a small project. Even the biologist, who doesn’t believe the species is present on the site, will correctly advise the builder to “accept presence”, otherwise face longer delays in excess of 2 years for the Resource Agencies to permit the project. Most builders are not aware a single home project can be caught up in this regulatory nightmare, if it drains to the creek in its back yard.

<Show aerial of Hidden Oaks with creek in background, talk about exceptions for the project>

It’s now the City’s turn to regulate.

If Federal and state agencies weren’t enough, cities may further thicken the stew. The Cities all have adopted their own ordinances and policies for protecting creeks. Setbacks from the creek vary, but not many are forgiving enough to allow adequate use of the land. The creek has been separated from the owner as it is considered a public resource; a resource which burdens the owner of the land to an extent which can relegate the lot nearly unbuildable. In some jurisdictions creek setbacks can be in excess of 60 feet from the creek.

<Show aerial of Post Ranch in Alamo comment on Knolls with trees.>

In summary

engage an engineering firm experienced in land planning, which is prepared to take on the challenge, who knows the strategy of avoiding the perils of this rigorous process, a firm, who will handle the permitting of a resource, sensitive, property and will minimize the impacts of environmental regulations. The difference is planning a project to mitigate environmental impacts by using the creek as a resource to the project, rather than allowing the Agencies to direct the process. This requires an intuitive understanding of the connection between regulatory processing and project site design at the starting point; one of Aliquot’s unique strengths.