Public Comment

Commentary: Creeks Ordinance: The Fifth Option By TOM KELLY

Tuesday February 14, 2006

The Creeks Task Force (CTF), charged by the City Council to recommend revisions to the Creeks Ordinance, will hold its first Public Hearing on Feb. 15 at the North Berkeley Senior Center. At that Hearing, the CTF, of which I am a member, will be presenting a series of preliminary recommendations for public review and comment. These recommendations consist of four proposals (Options A-D) which can be seen on the city’s website at use/creeks. 

Unfortunately, a fifth proposal authored by Carole Schemmerling, Josh Bradt, and me, that builds on and strengthens the current ordinance, was submitted too late to be included in the materials that will be discussed at this hearing. For that reason, copies of our proposal will be distributed at the hearing for consideration by the public and the CTF. 

Entitled “Option E” (below), we believe that our recommendations resolve many of the major conflicts that have arisen from the original ordinance and its subsequent interpretations. Option E lays out a sensible plan for creating a safe and healthy system of creeks that will reduce damage to property and streams, improve riparian habitats, and alleviate the flooding that occurs in many parts of the city. Option E looks forward to a city that supports a healthy natural environment that is an asset to the entire community while providing property owners with assurances that their use of their property will not be unreasonably restricted. 


Option E  

Roofed structures on open creeks 

1. No roofed structures may be built within 30 feet of the creek’s centerline without a variance. 

2. For properties with existing roofed structures at 30 feet and beyond from the creek’s center line—no extension of roofed structure into the 30-foot setback without a variance.  

3. Repairs and upgrades to existing roofed structures that extend into the 30-foot setback are allowed, including installation of solar panels, geothermal heating, and solar hot water equipment, subject to the criteria required for an administrative use permit. 

4. Rebuilding of a roofed structure in its original footprint after it has been destroyed is allowed, subject to the city’s zoning and building regulations. Owner must show that no other option to conform to the Creeks Ordinance is reasonable. Plans for construction within the setback must include engineering reports that recommend the least harmful impact to the existing site, the creek, and owners of upstream and downstream properties. City may require mitigations to creek (removal of barriers, riprap, native vegetation planting, use of permeable materials, on-site rainwater sequestration, etc.) to offset impacts caused by construction within the setback. 


Decks, patios, and other un-roofed structures on open creeks 

1. No unroofed structure may be built within 20 feet of the creek’s centerline. Exceptions may be granted for pedestrian bridges, pathways, open fences and will be granted through discretionary review or administrative use permit. 

2. Existing unroofed structures that must be replaced due to damage or age must conform to the 20-foot setback requirement, except as described in item number one. 



1. All creek culverts (including those in the historic creek channel and those that have been relocated) should be covered in the Creeks Ordinance. Setbacks for culverts will be determined by a formula that anticipates that access will be required to remove, repair, and/or replace the culvert at some future date. 

2. Creek culverts that could be permanently removed to restore a creek channel should be identified by the City of Berkeley. Setbacks on these culverts may be greater than those culverts that are so close to existing structures that they are not likely to be removed. 


Additional recommendations 

• City of Berkeley will provide incentives and services for property-owners to create and/or improve riparian habitat areas within the 20-foot setback. These incentives will include, as appropriate: the reduction or waiving of permit fees and property taxes, and exemptions from certain other zoning requirements. City services to assist property-owners in implementing these environmental improvements will include: small grants, free materials describing best management practices, and on-site consultation.  

• Regardless of a future legal determination of responsibility for maintenance and repair of the city’s culverts, the city shall begin now to determine how to assess a fee that will establish a fund for the purpose of creek and culvert improvements. 

• The City of Berkeley would be able to address the complex watershed issues the city and its residents face, if we were to immediately fund the City Council-approved Watershed Coordinator position. The watershed coordinator will be responsible for establishing a watershed management plan, best management practices, incentive packages for creek side property owners, recommended riparian vegetation plans, and recommendations for daylighting culverts.  

Please come to the public hearing to hear about the CTF recommendations and to provide us with your valuable ideas about how we can fashion a sensible ordinance that reflects the values of the entire community. 


Thomas Kelly was a Green Party  

candidate for City Council in 2000.