Features

For months they stood before the City Council trading barbs and doing battle.  

On Monday proponents for doing the utmost to protect Berkeley’s 75,000 feet of creeks and creekside homeowners intent on defending their property rights sat side-by-side to begin the task of forging a consensus on one of Berkeley’s most heated turf wars. 

The first meeting of Berkeley’s 15-member Creeks Task Force Monday ushered in at least the appearance that a cooperative effort is underway to regulate city creeks. 

“I think we all have the city’s best interests at heart,” said Task Force member Diane Crowley, a member of Neighbors on Urban Creeks. “This is not a conspiracy of eco-people versus property owners.”  

Neighbors on Urban Creeks sprang into existence last year after the city released maps showing that an estimated 2,400 homeowners fell under a little-understood ordinance, passed 15 years prior, regulating creekside properties. Notice that their homes fell under the law’s jurisdiction came in the mail to property owners, many of whom never knew that a creek flowed below their home. 

The law, as amended in 2002, forbade homeowners living within 30 feet of an open or underground creek from adding on to their homes, or, as interpreted by city officials, from rebuilding them in the event of an earthquake or fire. Those who live above creeks that have been re-directed away from their natural course are not regulated under the ordinance. Last November, the council amended the law to allow homeowners to rebuild after a disaster, but left other outstanding issues to the task force.  

For the next two months the task force will gather information and present a work plan and budget for council approval to devise a new ordinance. Among numerous issues, they will have to determine which waterways qualify as creeks, how far from open and culverted creeks should development be curtailed, whether creeks that run underground should continue to be regulated as stringently as open creeks, how to best safeguard creek habitat and whether to propose a new creek map to ease the uncertainty for some homeowners who do not definitively know if their property falls under the ordinance. 

Currently residents must pay for a study to determine the exact location of underground creeks. 

Finding a way to balance the concerns of homeowners and creek advocates has proved a difficult task in several California cities. After two years of staff work, Santa Barbara tabled its recommendation for an ordinance when homeowners opposed the proposal they feared would impinge on their property rights. The Santa Barbara plan called for limits on new construction up to 100 feet from a creek bank. 

“Not having public input from the get-go was our big mistake,” said Jill Zachary, Santa Barbara’s Creeks Restoration Manager. 

However, pending litigation will keep the Berkeley task force silent on perhaps the biggest creek issue in the city: Who should pay for the millions in needed repair work for the city’s network of collapsing underground culverts? The city maintains that culverts built in the first three decades of the 20th century by private developers underneath private homes are the responsibility of the homeowners. But neighbors whose homes are at risk of falling into a damaged culvert have filed suit claiming the city must pay for repairs because many culverts are part of the city’s stormwater system. 

The task force also faces monetary constraints. Ditching the city’s current rule—prohibiting new roofed construction within 30-feet from the centerline of a creek—for one based on actual information about the watershed in question would require the city to hire consultants at an estimated cost of $600,000. 

Many task force members have a personal interest in the outcome of their work. Seven of the 15 members live within 30 feet of a creek and are affected by the current rule.  

Each member of the council made one appointment to the task force. Neighbors on Urban Creeks, a collection of creek advocate organizations, and four city commissions also appointed members.  

Four task force members have strong ties to creeks organizations: Phil Price, appointed by the Parks and Recreation Commission; Joshua Brandt appointed by Councilmember Max Anderson; Doug Goetting, appointed by Councilmember Dona Spring; and Tom Kelly, appointed by the creeks groups. Neighbors On Urban Creeks account for three members on the task force: Jana Olson, appointed by Betty Olds; Crowley, appointed by Gordon Wozniak; and Mischa Lorraine, appointed by the group itself. 

While other task force members might not have been active during last year’s battles, most are no strangers to water issues. Mary Selkirk, appointed by Councilmember Linda Maio, is a water policy analyst with a focus in watershed preservation; John Roberts, appointed by Councilmember Laurie Capitelli, works as a landscape architect specializing in creek restoration; Richard Harris, appointed by the Community Environmental Advisory Commission, is the water conservation manager for East Bay Municipal Utilities District; Carlene St. John, appointed by the Public Works Commission is an engineer; and Helen Burke, the commission chair appointed by the Planning Commission, worked for the Regional Water Quality Control Board. 

“The most important thing is that everyone understand where we’re coming from,” Burke said. She proposed that next week task force members detail their key issues and then invite experts to lecture on different subjects. 

Assuming the council approves the task force’s work plan and budget, it then has until May 2006 to propose a new ordinance. If it fails to meet the deadline, the rules barring new construction within 30 feet of a creek that runs underground will expire. 

For Jana Olson, who lives in a historic home beside Codornices Creek, the creek ordinance needs to respect the value of her home as much as the creek that flows beside it. “Berkeley is a city with a rich architectural heritage that adds to the ambiance of the city,” she said. “The current ordinance is written as if it’s dealing with a city that isn’t already developed.” 

Olson and others in Neighbors on Urban Creeks had opposed formation of the task force out of fear that councilmembers and commissions would stack it with creek advocates. Despite the congenial tone of Monday’s meeting, Olson said it was too soon to determine if the commission was balanced. 

Selkirk said the current creek law has served the city well, but she would like to see rules relaxed for homeowners living above culverted creeks. Jon Streeter, a partner at the law firm of Keker and Van Nest, appointed to the task force by Mayor Bates, also raised concerns about the rules for culverted creeks. He thought the current law only needed to be tinkered with to make it more equitable. 

Brandt, the restoration director for Berkeley’s Urban Creeks Council, opposed reducing restrictions on culverts. “Creeks and culverts are all part of one system that we can’t control even if we think we can.” 

Most of the task force members interviewed were hesitant to state policy preferences. “A good number of us don’t fully understand what the ordinance really does,” said Roberts, who lives beside Blackberry Creek. 

“An empty mind is a wonderful thing to have,” said Ted Gartner, Councilmember Darryl Moore’s appointment to the commission. “I don’t know anything about creeks. I have no agenda on this issue.” 

The Creeks Task Force will meet next at 7 p.m. Monday at the North Berkeley Senior Center. The group will meet each Monday until April 14, with the exception of Feb. 21.L