I am a member of the Steering Committee of Neighbors on Urban Creeks and a member of the Claremont Elmwood Neighborhood Board. I have spent considerable time attending meetings, studying this complex issue and speaking to people about it. Because I don’t live on or near an open or culverted creek that is regulated under the city’s current Creeks Ordinance, you might well ask why I spend my time this way. I do it because besides being a creeks issue, it’s also a people and neighborhood issue.
In order for you to better understand the importance of this issue, I would like to give you a little background about the Creeks Ordinance. It was first approved by the City Council in 1989. The legislative history of that 1989 action indicates that the ordinance applied only to open creeks on vacant land. However, in 1991, unbeknownst to the City Council, the city attorney ruled that the ordinance also applied to culverted creeks. When the council was informed of that ruling many months later, the council still believed that it applied to vacant land. It was not until 2003 that it finally became clear that the ordinance regulating both open and culverted creeks applied to existing homes and commercial buildings. Up to this time, the city had not enforced the ordinance except as it applied to vacant land and hundreds of permits had been issued by the city for construction on affected properties that were not in compliance with the regulations in the ordinance. It was not until 2004, 15 years after the ordinance was first adopted, that the city identified the specific properties affected by the ordinance and informed over 2,000 property owners about the regulations.
People who lived near an open creek obviously knew that the creek was there, but they didn’t know anything about the 30-foot setback from the centerline on each side of the creek, a total of 60 feet around the creek, where construction was prohibited.
The same setback rule applied to culverted creeks. However, the vast majority of private property owners had no idea that a culvert on their property even existed. They hadn’t been informed about this when they purchased their property, nothing was recorded on their deeds, and you can’t see the culvert. The rationale for not allowing anything to be built within the setback of a culvert on private property, is that some day the culvert should be opened and the creek restored, a process known as “daylighting.” How this was to be accomplished when the culvert ran under the house, or when the house was too close to the culvert was never explained.
The amendments made to the ordinance in 2003 by the City Council made it impossible to rebuild if your property was damaged in a disaster. As you can imagine when people found out about this the protests were huge. The council responded by eliminating the 2003 part of the ordinance and establishing a task force to revise the ordinance. Many property owners believed that the right to re-build was given by the City at that time, but I regret to inform you that at this time such a right is still not guaranteed, but more about that later.
The City holds the individual property owner responsible for proving the exact location of any culverted creek on their property. Property owners with culverts have reported costs ranging as high as $6,000 to $10,000. The city also holds the individual property owner responsible to pay the cost of repair and maintenance of culverts on their property. The city’s reasoning is that private contractors built culverts in order to increase their profits because it would enable them to build more houses. Culverts range in size from 10 inches to seven feet and repairs can run up to $6,000 per foot. Problems are occurring along Strawberry Creek and currently some 15 homeowners are suing each other, the city and the university over who is responsible for the costs of repairing the damages. One property owner where the culvert does not run directly under the existing house cites over $400,000 of damages. Others in the lawsuit have homes built directly over the failing culvert.
This reasoning ignores the fact that culverts and open creeks, along with the streets, function as the city’s storm drain system providing benefit to everyone and that storm drains where they do exist were built to a capacity that has long since been exceeded. The flooding during the recent heavy rains illustrates the inadequacy of our storm drain system.
The city’s task force has met for almost a year. Neighbors on Urban Creeks, a group of residents, some directly affected by the ordinance, and some not, was formed in 2004 and has attended every task force meeting. Neighbors on Urban Creeks believes in preserving creeks AND protecting property rights. To that end, NUOC has taken the position that culverts should not be included in the Creeks Ordinance, that any “daylighting” should occur only on public property, that “daylighting” on private property must be voluntary, and that the individual property owner should not have to bear the financial burden for the storm drain system alone, nor pay for finding the exact location of the creek/storm drain on their property.
Neighbors on Urban Creeks led the fight to grant owners of property with open or culverted creeks the right to re-build. We have since discovered there is no right to re-build after your home has been destroyed. If your home is destroyed, whether or not you are near an open or culverted creek, unless you have an existing use permit (which the vast majority of us do not have), you would have to go through a public hearing use permit process to re-build the exact same house you had before it was destroyed. Under the use permit process, the city could deny, amend or approve your application. Neighbors on Urban Creeks want all of us to be able to rebuild the exact same house you have today as a matter of right. If you want to build higher or larger, or place it differently on your lot, we maintain you should go through the zoning review process, but not if all you want to do is to re-build what you have today.
The city’s task force doesn’t seem to want to take up this larger issue, nor has it indicated it will address the serious problems of the city’s inadequate and deteriorating storm drain system. They have been told by the council that they should not talk about who has the financial responsibility for replacement or repair of culverts because of the current litigation. They are still talking about a one-size fits all creeks setback in which construction would be prohibited, including playhouses and fences, and potential “daylighting” of culverts on some private property. Neighbors need your help to turn this around.
Neighbors on Urban Creeks is holding a town meeting on Saturday morning, Feb. 4 from 9:30 a.m. to noon at the Alternative High School on the corner of Derby and Martin Luther King Jr. Way. At that meeting they will provide the latest information on the task force’s recommendations and give people a chance to engage in a discussion with other property owners before a public hearing which is to be held by the task force later that month.
This is a critical issue to everyone, whether you are a property owner affected by the Creeks Ordinance or not. The Creeks Ordinance has serious regulatory and financial consequences for every property owner directly affected by Ordinance. The value of property, including re-financing, re-sale and mortgage, and insurance will be directly affected. Because there are so many properties involved and because the impacts can be so severe, there is no way that every other property in the neighborhood will not be affected, so it truly is a neighborhood issue for all of us.
Please, come to the Feb. 4 meeting to learn more and have all of your questions answered.
Martha Hamilton Jones is a longtime resident on the Derby-Warring corridor.