Creek Ordinance Proposals a Wellspring of Conflict By Suzanne La Barre

Friday February 17, 2006

Invective flowed Wednesday at the first of two hearings to address the future of Berkeley’s embattled waterways. 

More than 100 residents and concerned citizens gathered at the North Berkeley Senior Center to weigh in on possible revisions to the city’s hotly contested creek ordinance, a 1989 addition to Berkeley Municipal Code that regulates development on and near city watercourses. 

The meeting revisited a long-standing face-off between property owners who want unhampered rights over their creek-side land and environmentalists who say Berkeley’s waterways are community resources worth preserving. Agreement between the two sides was nowhere in sight Wednesday.  

The existing ordinance, affecting 1,191 residences, prohibits homeowners from adding onto properties within 30 feet of a creek—whether the waterway is open or interred. This includes rebuilding should a home suffer major damage, though concessions are made for structures destroyed by a natural disaster, such as a flood, earthquake or fire. 

But homeowners want more freedom to develop their properties—or the code should be overhauled altogether, they say. 

The 15-member Creeks Task Force, formed to study the issue, presented four options for retooling the ordinance at Wednesday’s hearing. 

In a summary of the choices, city planning staff said Option A mirrors the current legislation, Option B is a slight variation, Option C invokes case-by-case standards and Option D regulates only vacant lots. The proposals exclusively address open creeks. Buried creeks, which flow underground through culverts, are dealt with separately.  

Reaction from the crowd was a mixed bag. Options A and B garnered little support from the Neighbors on Urban Creeks contingent, a homeowners’ activist group, while C and D earned a warmer reception. 

Former Berkeley Mayor Shirley Dean expressed support for D. 

“I want to protect my home that my husband and I bought on a teacher’s salary,” she said. 

The neighborhood organization also offered its own solution: a 12-step proposal that allows more development leeway and calls for financial incentives for homeowners who care for their waterways.  

“I think it’s critical that properties that already have homes on them, that they be allowed to rebuild for whatever reason—as a matter of right,” said Berkeley resident Linda Franklin. 

Another option drafted by task force members Tom Kelly, Joshua Bradt and Carole Schemmerling, and published in the Berkeley Daily Planet Feb. 14, was submitted too late for consideration on Wednesday’s agenda, but lays out more rigorous restrictions on creek-side properties, including the protection of all creek culverts and a ban on roofed structures within 30 feet of a creek. Environmentalists strongly endorsed the plan.  

“All of us have a responsibility to the environment,” said Vikrant Soot, a renter in Berkeley. “I support Option E.” 

Some activists denounced homeowners for failing to view city creeks as natural assets to the community as a whole. Homeowners shot back that such criticism reflected little more than textbook idealism, pointing out how many waterways are infested with flies and trash. 

Berkeley City Council approved the current creek legislation in 1989 to “establish policy on culverting, rehabilitation and the restoration of natural waterchannels,” according to a background paper distributed by task force representative Jon Streeter. 

The ordinance went into effect Jan. 4, 1990, with support from environmental advocates and other interested parties, but there was otherwise little public input or awareness. 

Shortly after, problems arose surrounding language ambiguities in the legislation, particularly apropos the definition of a creek. There were questions, for instance, as to whether culverted creeks are included in the definition. A 1991 ruling by the city attorney’s office said yes. Currently, there is general agreement—among environmentalists and homeowners—that culverts should be treated less stringently.  

Problems are further compounded by the fact that maps locating Berkeley’s water channels have changed over the years. As one resident said, “not even the city knows where the creeks are.” 

In 2004, pressure mounted by homeowners on the City Council netted an amendment that clarified property owners’ right to rebuild near a creek in the event of a disaster. But complaints over homeowner rights haven’t stopped there.  

Wednesday’s hearing was held to allow the creek authority to solicit public comment only; no action was taken. The task force will hold a joint hearing with the Planning Commission March 22. It will then forward a recommendation to the commission, which will hand off a proposal to City Council. The council will decide the ultimate fate of Berkeley’s creek ordinance.  

Kelly, who represents the creeks community, said he felt Wednesday’s meeting represented some progress toward forging a solution.  

“Certainly we’re talking more rationally and I don‘t think these proposals are that much apart,” he said, though moments earlier, he was booed by audience members when describing Option E, pitched as having the capability to “resolve many of the conflicts that have arisen from the original ordinance.” 

Still, he said, “I’m hopeful.””