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Council to Rule On Creeks: By MATTHEW ARTZ

Tuesday October 19, 2004

With its final meeting before Election Day scheduled for Tuesday, city councilmembers insist they won’t duck quite possibly the most controversial issue of the year.  

On their agenda is a recommendation from the city’s planning department that calls for overhauling the city’s creek ordinance. 

“There are going to be a lot of angry voters if we don’t do something,” said Councilmember Betty Olds. 

Mayor Tom Bates said he plans to offer a compromise plan to bridge the gap between creek advocates who want a task force to revise the ordinance and a homeowners’ group that wants the issue to go to the Planning Commission. 

The creek law, passed in 1989, limits new construction within 30 feet from the centerline of the city’s 75,000 linear square feet of open creeks and concrete culverts which redirect creeks underground. 

Both creek advocates who want to strengthen the law and the homeowner group, Neighbors on Urban Creeks, which wants to weaken it, are demanding the council take action.  

Most of the approximately 2,400 property owners affected by the law didn’t even know it existed until this year when the city released electronically-generated maps that outlined creeks and culverts. 

Not only do the homeowners now face restrictions on new construction, but according to city policy if they live above a culvert, most of which are nearly a century old and nearing the end of their usefulness, they are responsible for repairing it. 

Already, the city is facing roughly $30 million for immediate repairs to culverts under public land and a lawsuit from a group of neighbors who claim the city should pick up the estimated $1.6 million price tag to repair one collapsing culvert under their homes. 

To the disappointment of both creek advocates and their opponents, the recommendation from Planning Director Dan Marks avoided the issue of responsibility for repairing culverts. Instead, it called for dramatic changes to restrictions on development.  

Marks proposed a three-phase process to be undertaken by the city’s Planning Commission that would begin with a directive from the council to eliminate the 30-foot set-back requirement for new construction.  

Over the following years, as the city sought the estimated $500,000 needed to perform a detailed analysis of the problem, the commission would establish new creek protection policies. It would also conduct a study of the feasibility of unearthing creeks that have been buried underneath public property. 

Creek supporters have lambasted the plan, which they say would effectively dismantle the ordinance before conducting any research. 

“It’s a slick manipulation to make it sound like they’re reforming it, when really they’re gutting the whole damn thing,” said Councilmember Dona Spring. 

Marks said the proposal leaves plenty of safeguards for creeks. Instead of the arbitrary 30-foot setback, any new construction near a creek would require a developer to present a “Creek Impact Report” and any proposed project near a culvert would require a private engineering report showing that the culvert was strong enough to support the new construction. 

“We’re giving people the opportunity to make a case that what they’re proposing to do with the property is viable,” Marks said. 

Marks hasn’t proposed standards for determining impacts on creeks or culverts, but he said new construction within the 30-foot setback area would likely require a public hearing and a use permit. 

Creek advocate Phil Price fears that without clear standards for impacts every proposal to build near a creek would “become another argument.” He prefers that the city council appoint a taskforce to study the issues before making any changes to the ordinance. 

Neighbors on Urban Creeks is backing Marks’ recommendation to send the issue to the Planning Commission, but is calling for the Commission to receive it without any directive from the council to eliminate the setbacks. 

The council appears fragmented on the issue.  

Councilmember Olds wants to send the item to the Planning Commission with a directive to eliminate the setback requirements for culverts, but not for open creeks. Councilmember Wozniak, who like Olds represents areas of the Berkeley hills where most of the affected homeowners live, also favors taking the issue to city commissions including the planning commission, but supports eliminating setbacks for both culverts and open creeks. 

Councilmembers Spring and Worthington support forming a task force, but don’t want any changes to the ordinance until the city finds the money for a detailed analysis. 

Amid the divergence of opinion, Mayor Tom Bates said he will propose a compromise calling for a taskforce under the supervision of the Planning Commission. 

Also on the agenda is an update on negotiations with the firefighters union. Firefighters have offered to accept a $300,000 one-time reduction in scheduled salary increases in return for a one-year contract extension with a six percent raise. City Manager Phil Kamlarz has said that if the two sides are not close to an agreement Tuesday the city would proceed with closing a truck company during evening hours this winter to save the $300,000. 

The council will also decide the fate of Jubilee Village, a proposed 110-unit affordable housing complex at 2612 San Pablo Avenue. The developer, Jubilee Restoration, is asking that the council approve city participation in a federal Department of Housing and Urban Development loan guarantee program. Loans to Jubilee for the purchase of the site, to be guaranteed by the city, would amount to roughly $3 million dollars.