By Christian Mignot

Residents, city divided on intent of controversial plan to protect local waterways

The Los Altos Planning Commission has temporarily withdrawn a proposed creekside protection ordinance amid mounting pressure from residents who believed the proposal would do more harm than good.

The proposed law, originally pitched for consideration at a planning commission meeting in early August and due for second consideration on Thursday, was received with great hostility. Homeowners felt it would significantly decrease the value of their properties while providing minimal positive impact on the creek environment.

The ordinance, as initially proposed, would have forced property owners to surrender a setback area defined as all land within 25 feet from the top of the creek banks rather than from property lines, usually designated as the middle of the creeks. The proposal affects approximately 500 homeowners who own property along the four major creeks in Los Altos: Hale, Adobe, Permanente and Stevens.

“My impression is that there is not one person on city council who supported the law,” said Larry Gardner, who owns a property bordering on Adobe Creek. “The litigation and the financial implications for the city would have been huge.”

Instead, now the planning commission will meet with city council to discuss potential alternatives and solutions to the ordinance in a study session open to the public to be scheduled in October.

David Kornfield, associate city planner, said residents had grossly misunderstood the ordinance and felt threatened because their understanding was based on “false rhetoric distributed by other homeowners.”

“(The reaction) didn’t surprise me at all, we knew the ordinance was somewhat controversial,” he said. “The meeting in August was meant to be informational, but quickly turned confrontational because residents were riled up.”

Councilman Lou Becker said there had been little to no discussion of the proposal among council members. He said news of the virulent public response prompted council to ask to review the proposal before it was presented publicly a second time.

“(The residents) felt the document infringed into their back yards and was totally unworkable,” he said. “I’m opposed to infringing private properties, so this is something we need to get in front of us and discuss.”

According to Councilwoman Kris Casto, the environmental committee had warned the city that construction along creeks was increasing erosion and subsequently degrading the creekside environment. She said the ordinance was a simple plan aimed to protect the creeks but probably had not been completely thought through.

“Maybe the ordinance missed its mark, but there may also be an in-between way where we can preserve the creek and also the proprietors’ right to build,” Casto said.

The proposed ordinance dictated the only construction permitted in the setback areas would have been accessory structures, such as swimming pools or gazebos. All present buildings within such areas would be deemed nonconforming but would be allowed to stay and be extended so long as their nonconformity was not increased.

Residents believed giving up portions of their land, in some cases significant chunks, would result in significant devaluation of property, with some estimating a loss of up to 25 percent of total value.

“There just so happens to be an article in the Bill of Rights governing this issue,” said Tom Olsen, owner of a property that abuts Adobe Creek. “The Supreme Court of the United States has ruled that individual property owners must be justly compensated for easements taken.”

Olsen speculated that if the city were to compensate each property owner for their land, then taxpayers would have to shoulder $120 million in damages.

“Value is subjective,” Kornfield said in response. “In our minds, maintaining the aesthetic value of the creeks is maintaining the property value of the properties surrounding them.”

Some homeowners were more worried about how much land they would have to give up, citing the proposed ordinance as too vague in its designation of the actual setback area.

Marge Bruno, former mayor of Los Altos whose property is also next to Adobe Creek, said the top of the creek bank was too ambiguous a point to actually use.

“The way the ordinance is currently formulated creates all kinds of difficulties that the environmental committee doesn’t even realize,” she said. “We have received four different definitions as to where the top of the creek bank is, and depending on which one we take, our house could be entirely nonconforming.”

In a staff report, Kornfield said the purpose of the proposed ordinance was consistent with the city’s general plan. It was designed to “preserve and protect the natural areas that are valuable natural resources.”

But Olsen was more skeptical about the true intent of the plan. He said the proposed ordinance seemed more like an attempt to allow public access to the creek, consistent with similar laws being pushed through in Menlo Park and Los Altos Hills.

“Do I need to provide access to my back yard and my back door for anyone wanting to walk the creek?” he asked. “If such access is what is desired by this regulation, it should just come out and say so.”

Kornfield shrugged off such claims, saying the ordinance only put in place building restrictions and did not in any form alter property lines. All property laws would still apply to the setback area, and council would have to ask for permission from owners for any access to the creek bank within property lines.

“While most property owners do look after their creek, we have to remember that many do not have the same respect,” he said. “We are only looking to protect the creek from an environmental and aesthetic point of view.”

The ordinance did have other supporters aside from the environmental committee proposing it, including former councilwoman Ruth Koehler, who claimed that such an ordinance is 40 years overdue.

She said the ordinance would be necessary to allow effective functioning of storm water drainage, as it would keep flood lanes clear of dirt, walls and trash.

“Los Altos has made great errors in allowing houses to be built so close to creeks,” she said. “Every resident has an interest in this proposal, as storm water drainage affects every property, not just those bordering the creeks.”

Los Altos resident Ruth Troetschler said most residents who owned homes bordering creeks were in possible violation of the law because they did not fully understand the functioning of the creek.

She said the roots of natural vegetation are important anchors for the soil on creek banks, and when these are removed due to housing development, erosion occurs faster.

Concrete development and paving along creek edges stop water from seeping into the ground, she said, causing degradation of the creek environment and the clogging of flood lanes.

“Creek degradation has already gone far enough,” Troetschler said. “Residents have to decide whether they would rather have some property loss and beautiful creeks or a cement ditch like certain parts of Adobe Creek in Palo Alto.”

It remains to be seen whether council and the environmental committee opt to return the ordinance in a modified form, or whether other regulations replacing it will be put in place.

“We will learn from the study session what council desires and we will take it one step at a time,” Kornfield said. “If we don’t present a reworded ordinance, then hopefully we can at least have some guidelines in place.”