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Creeks Task Force Wades Through Complex Issues By RICHARD BRENNEMAN

Tuesday August 16, 2005

Waist-deep in the big muddy, Berkeley’s Creeks Task Force (CTF) is slogging ahead with its efforts to come up with a new framework to address a highly turbulent issue. 

For owners of 2,400 homes and other structures, the issue is simple: Just what can and can’t they do if there’s a creek within 30 feet of buildings they own? 

But for Berkeley’s sizable population of creek advocates, a central issue is “daylighting,” the excavation and restoration of long-buried creeks—something that worries many property owners, including the seven members of the 15-member panel whose property is directly affected. 

If the answers aren’t that apparent, neither are many of Berkeley’s creeks, a good portion of which flow out of sight through aging concrete tunnels known as culverts. 

Many of those long-buried culverts are in poor shape, and the issue of who pays for repairs is anything but simple, as an ongoing legal battle between the city and property owners attests. Because of the pending lawsuit, the CTF was specifically ordered to avoid the issue of financial liability. 

Adding another wrinkle to a complex issue is the fact that sellers aren’t required to notify buyers of their property about the presence of buried creeks. 

“Many property owners discovered there was a culverted creek on their property only when the city sent out letters last year,” said Barbara Allen, an organizer of Neighbors on Urban Creeks, an alliance formed to represent property owners during the formulation of a new city creeks ordinance. 

Among the members of the group’s steering committee are former Mayor Shirley Dean and Jill Korte, chair of the Landmarks Preservation Commission. 

On the other side of the issue are a variety of organizations composed of daylighting advocates.  

While Chair Helen Burke comes to the issue from the side of the creeks advocates—she’s a long-time member of the Sierra Club—she says she strives to provide impartial mediation. 

“We’re slowly working our way through various issues,” she said, including: 

• What setbacks from creek centerlines should be required for new construction? 

• What structures should be regulated? Currently only roof structures within 30 feet of a centerline are covered; should driveways, patios and porches also be included? 

• How to define just what a “creek” really is, and whether or not culverts are creeks. 

Burke and Joshua Bradt, Councilmember Max Anderson’s appointee to the task force and restoration director for the Urban Creeks Council, agree that the first months of meetings, held weekly, were spent bringing members up to speed on a variety of complex issues. 

“There’s a lot to chew over,” said Burke. 

The City Council created the task force with a built-in expiration of May 1, and if the panel fails to come up with an ordinance proposal by then, owners of property affected by culverted creeks would be removed from the ordinance. 

Two September meetings will offer the public definitive perspectives of the two major viewpoints, Burke said. 

On Sept. 12, Neighbors on Urban Creeks will offer their views, and a week later, Juliet Lamont of the Live Oak/Codornices Creek Neighborhood Association (LOCCNA) will offer the perspective of daylighting advocates. 

The following month, Burke said, the task force will examine the work they’ve done over the last eight months and consider possible changes from the outline they adopted in April. Also on the agenda is a discussion of what issues professional consultants can address to help clarify issues to be addressed in a new ordinance. 

For creeks advocates like Bradt, the issue is restoring natural ecosystems that play a major role both in preventing pollutants from reaching streams and in cleansing pollutants already flowing downstream to the Bay. 

“The property owners want to preserve their rights to develop their own properties, which is fine. But they also have an increased responsibility to protect a public resource, a functioning ecosystem that doesn’t change from property line to property line,” he said. 

Bradt and other daylighting advocates deplore culverting creeks, “because a creek inside a tube has no life to it,” he said. They also offer no opportunities for recreation and interaction with a vibrant, dynamic ecosystem. 

But the daylighting and culvert repair issues represent major challenges to homeowners, said Allen, who said that her organization was formed in response to a presentation last year by Bradt’s group. 

One major concern for Allen and her allies is a city attorney’s opinion that said that property owners should be held entirely liable for repairs to faulty culverts underneath their property. “This is really huge,” she said. “Homeowners are very concerned.” 

She noted that the city only developed its list of affected properties last year, with the result that many owners were stunned to discover that their properties were facing potentially massive costs in the event of creek failure, and serious obstacles to rebuilding. 

While city staff decided in 2002 that owners whose buildings were with 30 feet of a creek couldn’t rebuild following an earthquake or fire, the City Council voted two years later to allow reconstruction, although owners were be required to pay for an expensive survey. 

If Allen had her druthers, the ordinance would be rewritten to address the concerns of property owners, especially in regards to the culvert issue. 

“This is a major land use issue that affects all parts of the city and the people’s ability to use their own property,” she said. “Can you imagine if you bought a new house only to learn that you couldn’t add on to it? That’s happened to a lot of people.” 

“We’ve heard from a lot of different points of view and a wide spectrum of opinions,” said Burke. “Attendance by task force members has been excellent.” 

The most faithful turnout in the audience has been by members of Allen’s group, “who turn out very faithfully and make recommendations, many of which we have followed,” Burke said. 

She also said that some of the concerns the panel has raised with the city attorney’s office have yet to be answered, including a property owner’s right to rebuild following both natural and other forms of disasters. 

“There’s a clear difference of opinion between property owners and creek folk,” she said. “We’re there to hear as much as we can before we make up our minds.” 

Unlike many other city commissions and panels, the Creeks Task Force has managed to keep its web site almost up to the moment, posting agendas, minutes and additional information in a timely manner, enabling the public to keep up to date before each meeting. 

Fore more information on the task force, see their website at›