Supervisors approve amendments to Resource Protection Ordinance, Subdivision Ordinance

The San Diego County Board of Supervisors approved changes to the county’s Resource Protection Ordinance and the county’s Subdivision Ordinance.

The introduction and first reading of the ordinance amendments took place February 28, and the amendments returned to the supervisors March 21 for a second reading and adoption. The changes will be effective April 20.

“The proposed changes in the RPO and the Subdivision Ordinance were really largely cleanup issues that we had,” said Department of Planning and Land Use project manager Jeff Murphy.

The supervisors also adopted an environmental Negative Declaration for the ordinance changes themselves, although an Environmental Impact Report or a Mitigated Negative Declaration may be necessary for particular projects. The Negative Declaration for the ordinance changes was advertised for a 30-day public review period in August and September, and county staff determined that the changes would not have a significant effect on the environment.

Many of the relaxations to the Resource Protection Ordinance involve the definition of a wetland for man-made water sources. “They do not have significant habitat value,” Murphy said.

Jack Phillips, the chair of the Valle de Oro Community Planning Group, had a different opinion. “They’re changing the Resource Protection Ordinance so that it no longer prohibits grading and building structures in wetlands,” Phillips said.

The “no touch” rule of the existing ordinance prohibits impacts to wetlands which are located within man-made conveyance systems such as culverts, ditches, and agricultural ponds, even if those wetlands are small in scale and have negligible biological value. The no-touch rule also prohibits impacts to wetlands on lands which have been degraded by past legal disturbance activities to the point where they no longer have significant wetland-dependent species. The amendments will eliminate the no-touch rule for man-made systems if specific findings about their lack of biological function and value are made, although impacts to those areas may still require mitigation under the California Environmental Quality Act and other state and Federal regulations. Another change exempts from the definition of a wetland an ephemeral or perennial stream whose substratum is predominantly non-soil with a tributary drainage area of under 100 acres unless substantial evidence demonstrates that the stream contributes significantly to biological function or value.

The current ordinance only requires wetland buffers of an appropriate size to protect habitat resources but does not include minimum or maximum buffer widths. The changes create width parameters of 50 to 200 feet from the edge of a wetland based on functional habitat values and importance in supporting the wetland and upland biological community. The amendment also stipulates that if oak woodland is adjacent to the wetland the entirety of the oak habitat up to 200 feet in width shall be part of the buffer.

Factors to be considered by county staff in determining buffer width include existence of hydrophytic vegetation, condition of the existing wetland, whether the wetland or buffer serves a wildlife corridor, existence of sensitive species, and the condition of the wetland upstream or downstream.

The new language also allows for the removal of diseased plants, habitat restoration, and crossings for roads, driveways, and trails and pathways. Any road crossing must meet requirements including the lack of a feasible alternative which avoids the wetland, location and design causing the least impact, an analysis of whether the crossing could feasibly serve adjoining properties and thus minimize the number of additional crossings, and mitigation of at least three acres to every one acre impacted including a minimum 1:1 creation ratio.

That wasn’t pleasing to Phillips. “You can no longer use the Resource Protection Ordinance to protect a wetland from having a road built through it,” he said.

Phillips took issue with the definition of “feasible”. “They added to that a whole new definition,” he said. “It can mean economically feasible.”

Phillips explained that economic reasons could be used as an excuse for disturbance. “Economic feasibility is now an issue in the Resource Protection Ordinance,” he said. “If it isn’t economically feasible then they can take the resource.”

The amendments allow for the elimination of artificial transient water sources, such as agricultural water runoff, which create and sustain wetlands. The current ordinance prohibits any impact to the wetland area, but the changes allow a transient water source to be discontinued if the impacts are mitigated at a ratio of at least 3:1.

“This is really a serious step backwards on resource protection,” Phillips said. “This is the kind of thing that evolves and continues to evolve to the point where you end up with the Los Angeles River like it is.”

Another amendment limits the definition of pre-historic or historic sites to formally-designated sites or locally unique cultural resources.

Enforcement authorization included under the amendments allows the director of the Department of Planning and Land Use to enforce all provisions and to order work to be stopped and corrections to be made if a violation is determined to have occurred. The amendments allow County Counsel to commence abatement or enjoinment procedures, allow for administrative citations and judicial injunctions of declatory relief, and allow the director of the Department of Planning and Land Use to order restoration to the pre-violation conditions and to impose time deadlines for restoration activities. The maximum fine per violation is increased from $1,000 to $2,500, and cost recovery to the county and restitution to third parties is now authorized.

Changes to the Subdivision Ordinance language on structural improvements for apartments converted to condominiums include requiring that evidence be provided to show that the complex was originally constructed with approved building permits. Specifically-referenced codes have been replaced with a stipulation that the structure must comply with the building, plumbing, electrical, and mechanical codes in effect at the time of construction.

The Subdivision Ordinance amendments also exempt from public road standards any private road ending in a cul-de-sac and not planned to connect to another public road if that road would serve an average daily traffic volume of fewer than 100 vehicles; the road easement would still be required to be at least 40 feet in width but not subject to the right-of-way width requirements ranging from 52 to 60 feet. The director of the county’s Department of Public Works can now require that roads meeting private road standards be dedicated for public use and maintained by a Permanent Road Division zone.

The new ordinance also requires an analysis to assess the feasibility and practicality of extending on-site roads to a subdivision boundary so that they can connect with roads from adjacent parcels or existing public roads.

Phillips cited the combined effect of the extension requirement with the Resource Protection Ordinance modification of roads crossing wetlands. “With this requirement there will be no stopping extending the roads to the property line because there’s a wetland there,” he said.

Extension of public water supply facilities adequate to serve a subdivision will be required if the subdivision is within a water district’s sphere of influence and the main lines of the existing potable water supply are within 500 feet of that subdivision or if the subdivider has proposed the use of a public water supply to serve the subdivision.

Changes on boundary adjustment applications make the review process consistent with other discretionary permit processes and replace specific information requirements with a stipulation to provide data specified by the Department of Planning and Land Use director.

Campo resident Michael Thometz, who had expressed concerns about the changes at Planning Commission hearings, was supportive of the changes at the Board of Supervisors meeting. “It’s okay. It’s not perfect, but it’s better than it was,” Thometz said.

The county’s Planning Commission had voted 6-0 January 12, with one commissioner abstaining, to send the recommendations to the Board of Supervisors.