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Top of Bank <br />As this dispute is returning to Respondent on Writ, on the basis that Respondent <br />cannot authorize encroachment of the 25 -foot creek setback without a Use Permit and <br />without making certain findings based upon substantial evidence, it is likely that the issue <br />of what falls "within" that 25 -foot setback will be part of that consideration. Indeed, Real <br />Parties in Interest applied for a Use Permit and requested findings (1 AR 1784 - 1787), but <br />Respondent decided not to issue a Use Permit or make findings, but only proceed with a <br />PDP. <br />According to the Planning Department and Petitioners, the Creek setback is <br />actually further onto the residential property of Lots #3 and #4 than the setback boundary <br />drawn by Real Party in Interest and adopted by Respondent in its approval of the Finger <br />Avenue Project. <br />Thus there is a dispute as to whether the Project would actually encroach upon the <br />Creek setback on two lots or on four lots. Respondent fails to address this issue at all in its <br />Respondents' Brief. Real Party in Interest only addresses it in the context of CEQA <br />compliance, not in the context of compliance with municipal law. <br />Part of this dispute involves determination of what constitutes the "top" of the <br />bank" of Cordilleras Creek. In regard to the dispute about having homes built within the <br />25 -foot creek setback, it is undisputed that Lots #1 and #2, as approved under the Finger <br />Avenue Project, would have a portion of the house within the 25 -foot setback. What is <br />disputed is whether Lots #3 and #4 also would have houses within the 25 -foot area. That <br />is because the experts do not agree upon the imaginary line constituting the "top of bank" <br />behind Lots #3 and #4, such that there is a divergence of approximately 10 feet. The <br />approval of the Finger Avenue Project is specifically conditioned upon the homes on Lots <br />17 <br />8.B. - Page 76