Creeks Task Force Divided, By: Richard Brenneman

Friday February 10, 2006

As it nears its deadline for recommending a new creeks ordinance to the City Council, a citizen task force remains deeply divided, Chair Helen Burke told the Planning Commission Wednesday night. 

Burke, who represents the commission on the task force, said the task force is split between property owners and environmentalist creek protection advocates. 

“People have very strongly held views,” Burke said. 

“Will the task force try to come to a single recommendation?” asked Commissioner David Stoloff. 

“Given the split, it would be very difficult,” said Burke. 

Jordan Harrison, the Planning Department staffer assigned to the commission, and Deputy Planning Director Wendy Cosin presented the commission with four possible alternatives. 

“The good news is that you don’t need to pick any of these four,” said Cosin, noting that the commission has the power to use the variants—plus a fifth that creeks advocates are submitting—to shape their own version. 

One of the thorniest issues the task force faces is regulating the miles of city creeks that flow underground through long-buried culverts. Many property owners weren’t aware of the buried creeks when they brought their homes and businesses, and the task force is faced with a May 1 City Council deadline. If the task force is unable to adopt recommendations by then, the existing ban on building within 30 feet of a buried creek would be dropped. 

Creeks advocates want to disinter as many buried waterways as possible, arguing that public policy should favor restoration of a natural system that plays a major role in cleansing water supplies of pollutants while maintaining natural ecosystems. 

But ecosystems come into conflict with property rights, and the anxieties of owners who fear regulations that would reduce the value of their property and interfere with their rights to enjoy it. 

The task force will hold a hearing next Wednesday to bring the public up to date on the progress of the ordinance proposals. The meeting begins at 7 p.m. in the North Berkeley Senior Center, 1901 Hearst Ave. 

A joint hearing of the task force and the Planning Commission will be held at the same time and location on March 22. 

At that point, it’s up to the commission and city staff to prepare a draft ordinance for the council. Notice of the meetings and copies of a city staff report on the ordinance proposals are available at the city’s website, www.ci.berkeley.ca.us. 

The proposed regulations would affect about 1,900 parcels in the city, said Associate Planner Erin Dando. 

“The consensus is that culverts should be treated differently than open creeks,” said Dando, and that any “daylighting” of culverted creeks on private property would be at the volition of the landowner. 

All the proposals would allow owners to rebuild existing homes built within 30 feet of a creek or culvert in the event of disaster—though Planning Commissioner Gene Poschman cautioned that rebuilding should be restricted to the existing structure size, rather than merely limiting it to the same ground floor area, an option he said could lead to McMansions. 

All versions would also allow rebuilding in the event a home had to be rebuilt because of dry rot or other problems, said Cosin. That would resolve a major flaw with the current ordinance. 

One central issue that remains to be determined is the degree of regulatory review required for repair of existing structures or construction of new ones on land that would be affected by the ordinance. 

The possibilities range from: 

• An over-the-counter Administrative Use Permit, which carries a $1,374 fee and requires about three months to process; 

• A Use Permit, which requires a public hearing and approval by the Zoning Adjustments Board ZAB, a minimum fee of $5,165 and at least six months to process, or 

• A zoning variance, which requires a public hearing, costs a minimum of $5,542 and requires at least six months to process and is allowed only if the project is the only way to make development on the property economically feasible. 

Under the current ordinance, no new roofed construction is allowed within 30 feet of the center of a creek or culvert, although additions can be made to a single-floor home providing ZAB concurs and issues specific findings. 

The four alternatives vary in the distances required for new development from a creek or culvert, the degree of permission required, the types of development allowed and the limitations placed on construction of decks and other unroofed structures, driveways and other impermeably surfaced structures.  

“On what basis are we going to make the recommendations to the city council?” asked commission Chair Harry Pollack. “I want to see as much basis for the task force’s recommendations as we can, because we would like to make an informed decision.”