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Homeowners who live beside Berkeley creeks have less to fear from mother nature after the City Council Tuesday affirmed their right to rebuild their homes after a disaster. 

The unanimous vote, which amends Berkeley’s 1989 Creeks Ordinance, came after property owners, mostly from the Berkeley Hills, spent over three hours lambasting the council’s current policy at Longfellow Middle School. 

After amending the ordinance, the council also voted unanimously to revisit the creeks issue in two weeks and consider whether to form a task force or designate the Planning Commission to revise the ordinance.  

Designed primarily to restrict the construction of new culverts that push creeks underground and are prone to collapse, the 15-year-old law forbids new construction of roofed buildings within 30 feet of the centerline of a creek or culvert. The only way to build in the setback area required obtaining a city variance, which Planning Director Dan Marks said would have been “very difficult.” The council Tuesday decided that existing owners would no longer have to get an variance to rebuild after a disaster such as an earthquake or fire. 

Creek advocates were greatly outnumbered in the packed 450-seat auditorium by homeowners organized under the banner of Neighbors On Urban Creeks. 

Given two choices by city staff, the council granted owners of any type of structure—residential or commercial—the right to rebuild essentially the same building in the same footprint after a disaster with no requirement to study the feasibility of moving the new building outside of the 30-foot setback. Homeowners, however, will need to submit a report by a licensed structural engineer that a new building would not damage the culvert or the creek and would still comply with building codes enacted since their original house was built. 

The issue had remained under the radar, said Planning Director Dan Marks, until last year when creeks advocates started lobbying to tighten restrictions on new structures near creeks and the city produced electronic maps that gave more exact estimates of the roughly 2,400 homeowners possibly affected by the law. 

At the Tuesday council meeting, homeowners declared that once insurers, bankers and real estate agents found out, their homes would be impossible to insure, impossible to refinance, and impossible to sell. 

“This is my retirement, this is my savings, this was what I was going to leave to my children and you made it worthless,” said Katherine Bowman, who learned earlier this month that her house just off Grizzly Peak Road fell under the ordinance. 

John Ellwood, a professor of public policy at UC Berkeley, criticized the council for passing the ordinance without any fiscal analysis of whether the law would diminish assessed property values and consequently cost the city vital property tax revenue. 

“There are no numbers here,” he told the council. “Forget that we’re going to go broke, you’re going to go broke.” 

Ellwood said colleagues with business expertise at UC told him the creek law had make his house worthless, but he questioned why the council didn’t have any real estate or insurance experts to testify if the homeowners’ fears were founded. 

Bill McDowell, an agent for Berkeley Hills Realty, said Wednesday that he didn’t think the ordinance had affected home prices. 

Creek advocate Carole Schemmerling, who also lives beside a creek, drew boos when she said the fears “seemed to have been whipped up by the bogeyman that creeks are bad and that we need to get rid of them.” 

Ann Riley, one of the principal authors of the creek ordinance, said the law was never intended “to prevent someone from rebuilding their home.” 

Creek advocates want the city to strengthen the creek law so it applies to roofless structures such as parking lots and adjusts the 30-foot setback rule in cases where the watershed is wider.  

Several homeowners Tuesday, however, called on the council to scrap the entire law or at least apply it only to public property. 

Not included in the current ordinance, but still looming over the creeks debate, is who will be required to pay the estimated tens of millions of dollars to repair the city’s 17,000 feet of concrete culverts built under private property.  

Already the city is embroiled in a lawsuit with neighbors of Strawberry Creek, who challenge the city’s claim that the property owners are responsible for repairing a dilapidated culvert that runs underneath their homes. 

Creek fans on the council, including Kriss Worthington, Dona Spring, Margaret Breland and Mayor Tom Bates, said they wanted to form a public taskforce to examine creek issues. 

But councilmembers Gordon Wozniak, Betty Olds and Hawley, all representing large swaths of the Berkeley hills, stated their preference for the Planning Commission to tackle the creeks issue. 

Hawley called city task forces “democracy by exhaustion,” where the residents best able to withstand months of relentless meetings—usually activists—ultimately make the decisions. 

City Manager Phil Kamlarz said either option would cost the city several hundred thousand dollars in staff time and consultants. He promised to return to the council in two weeks with estimates on the costs.