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If the big one hits, Frank Morris fears that he, and more than 2,000 Berkeley residents like him, might not be allowed to build anew. 

They live within 30 feet of one of the city’s estimated 75,000 linear feet of open and culverted creeks. If a house falls victim to an earthquake, fire or any other natural disaster, owners can’t rebuild without permission from the city.  

There is no known case of the city standing in the way of a homeowner desperate to rebuild, but that isn’t enough to comfort Morris, who lives in the Indian Rock neighborhood by the Marin Watershed. 

“I don’t trust the city very much for anything,” he said. 

When the City Council convenes for a special meeting at Longfellow Middle School Tuesday it will seek to reassure homeowners like Morris, whose concerns are just the tip of the iceberg when it comes to tackling the city’s dreaded creek question. 

Already, Berkeley is facing roughly $30 million of immediate repair to creek culverts, not one dime of which is accounted for in the city’s budget, according to a July report from the city manager. 

The problem stems all the way back to the beginning of the 20th century when Berkeley built nearly 34,000 linear feet of creek culverts, pushing the open watercourses underground and in some cases redirecting them to enable development. Many of the estimated 2,000 homeowners within 30 feet of culverted creeks weren’t aware of the culverts until earlier this year when the city released a map of its creek system. 

The concrete culverts were only built to last between 60 and 80 years, and now that they are reaching the end of their useful lives, the city is facing an unfunded liability of mammoth proportions. Just last week the City Council had to make a $250,000 emergency allocation to fix a broken culvert at Allston and Harold ways. 

“It’s a huge giant timebomb,” said Councilmember Dona Spring.  

Take for example Strawberry Creek, one of the city’s ten watersheds. The city manager’s report said that the creek, which leaves UC property at Oxford Street and flows into the Bay, has six damaged culverts, including the one at Allston and Harold, that will cost roughly $11 million to fix. 

Complicating the issue is that some of the culverts run underneath private property, and although the city’s 1989 Creek Ordinance is silent on the matter, city policy places the responsibility for fixing them on homeowners. Some property owners built culverts in the early part of the 1900s, but since permits for culvert construction weren’t required until 1928, little definitive information exists as to their origins. 

Already the city is facing lawsuits from a slew of neighbors on North Valley Street, who claim that the city or neighbors who live upstream should bear the costs of fixing a damaged culvert that has placed several houses in jeopardy of collapse (see insert). 

Since some culverted creeks also serve as conduits for transporting city storm water to the Bay, even some councilmembers question the legality of the city’s stance of leaving the problem to property owners. 

“To say it’s totally the private property owner’s problem, seems a little simplistic to me,” said Councilmember Gordon Wozniak. 

When the council meets Tuesday, it will try to decide exactly what to do with its 15-year-old creeks ordinance. The law, designed to restrict further culverting of open creeks, prohibits new roofed-construction and expansion within a 30 feet of the creek line or culvert that runs along the natural creek path. 

When Berkeley passed the law in 1989 just after the Loma Prieta earthquake damaged culverts in San Francisco, the city was hailed as an innovator in preserving watersheds. But since then other cities, including Santa Cruz and Santa Barbara, have passed more restrictive laws that local creek advocates want Berkeley to copy. 

Juliet Lamont, an environmental consultant and member of Friends of Five Creeks, wants the 30-foot setback also to apply to some non-roofed structures such as parking lots, as well as monetary incentives for homeowners to help them fix culverts and a plan to prevent stormwater pollution, often caused by illegal sewer hookups and illegal dumping of waste down storm drains on city streets. 

Parts of the city’s storm water system are about as old as its culverts, and for Strawberry Creek alone the city will need to spend roughly $10 million in storm water system repairs, according to the city manager’s report. 

To tackle all of the issues collectively, creek advocates and their allies on the City Council are calling for the council Tuesday to form an independent task force to review the 1989 ordinance. 

But councilmembers who are more leery of enacting restrictive new measures favor sending the issue to the Planning Commission. 

“I don’t see why a taskforce is necessary,” said Councilmember Betty Olds. “It’s primarily a land use issue, that’s what the Planning Commission does.” 

Tom Kelly, a city health commissioner and creeks advocate, argued that the Planning Commission had other items on its plate and would take too long getting acquainted with the issues.  

“The best expertise rests with the large group of creek supporters,” he said. 

Either way, the first question in a review the creek ordinance will be how to pay for the process. City Manager Phil Kamlarz, who isn’t recommending either option, said revising the ordinance would take several years and hundreds of thousands of dollars in staff time. 

Although the biggest creek issues well might be debated for years, the council Tuesday could guarantee the rights of residents like Morris to be able to rebuild their homes after an earthquake or a fire.  

On the agenda are two proposals: The first would let residents rebuild the footprint of their home within the 30-foot setback under any circumstances and the second would require them to move the house to a portion of the property beyond the setback unless doing so proved “unfeasible.” 

Creek advocates prefer the stricter of the two proposals and want the issue to first go to the taskforce. But Councilmember Betty Olds said she would push for a resolution Tuesday. “This is the biggest issue for a lot of people,” she said. “They’re terrified what will happen if their house were to burn down.” 

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