Public Comment

Commentary: Homeowners Should Have Right to Rebuild

By Shirley Dean
Tuesday July 04, 2006

The Planning Commission and City Council will soon be considering recommendations regarding revisions to the Creeks Ordinance. I am writing about what I believe is a core issue, the right to rebuild, affecting everyone in our city, but especially residents of properties with open creeks.  

It is fair to say that I have had a more than usual involvement in the workings of our government. Even with that deep involvement, I was shocked to learn that almost every homeowner in Berkeley cannot rebuild without going through a public hearing and use permit process when their property is destroyed 50 percent or more. 

This means that home owners have to pay $6,000 just for starters and wait a minimum of six months before you can get a hearing date. Six months is very optimistic. Anyone who has had any experience with zoning matters knows that the process often takes a year or more. Yet our city requires all of this just to rebuild what probably existed for 50 years or more. At the public hearing anyone in the city can object to your request to rebuild even if you are replacing the same structure that originally existed! 

This is especially a problem for properties with open creeks. In examining such properties, the city’s consultant found that around 60 percent of properties sampled in the hills and 80 percent of properties sampled in the flats, do not conform to the 30-foot creek setback, 60 feet if measured on both sides of the creek. It seems reasonable that those percentages can be applied to all 1,000 plus properties with open creeks. Can anyone state that objections about being too near the creek will not be the central issue raised during a public hearing to rebuild a destroyed property? Can anyone guarantee that the city will give permission to rebuild the same home in the face of such objections? I sincerely doubt it. 

Imagine the agony for both the homeowner and the city if the city’s currently clogged zoning process had to deal with any number of properties destroyed in an earthquake or a wildfire. Let’s face it, even one destroyed home is a nightmare of red tape, requirements, and back breaking effort. One homeowner said it all when he told the Creeks Task Force that the requirement for a use permit public hearing process in order to rebuild would be to add “horror upon horror” for the homeowner. 

What property owners want is very simple: First, to be able to rebuild a destroyed structure that is on the same footprint, to the same height and size as what formerly existed, as a matter of right, with no public hearing. The only requirement should be to meet current building and engineering codes. These provisions should apply to everyone in Berkeley, including properties with open creeks, and they don’t mean that a homeowner would have to build the exact same interior layout.  

Second: If the person wants to re-build something that is bigger or higher than what formerly existed, that proposal should undergo full zoning review. The Creeks Task Force has suggested granting increases to the height, or moving the structure into the front and side yard setbacks as an incentive to move a home away from a creek. Neighbors on Urban Creeks objects to this because of the likely significant impact on neighboring properties. If an incentive is to be given to encourage owners to build away from the creek, the fee for zoning review of a structure that is different from what existed should be waived. 

How does Neighbors on Urban Creeks know what owners want? We asked them. We mailed a survey out to more than 2,000 owners affected by the Ordinance. With a 17.5 percent return, 94 percent felt that the Use Permit requirement to rebuild destroyed properties was wrong. 

The right to rebuild is a property value issue that affects mortgages, insurance and resale when there is no guarantee that you can replace what you worked so hard to own. I urge the Planning Commission and City Council to begin the process to amend the Zoning Ordinance as described above.  


Shirley Dean is the former mayor of Berkeley.