Creeks Ordinance Deadline Nears

By Richard Brenneman
Friday September 29, 2006

As the long-running battle over the future of Berkeley’s Creeks Ordinance nears a climax, tensions remain high—evidenced by Wednesday night’s Planning Commission meeting. 

Questions were flying and tempers rising, at one point stirring a mild rebuke from commissioner Mike Sheen, who cautioned his colleagues about raising their voices. 

At issue is a council-mandated revision of the city ordinances governing building on Berkeley’s many miles of creeks both on the surface and buried underground as they flow from the hills to the bay. 

Wednesday’s meeting featured discussions both of the proposed ordinance—drafted by a task force appointed by the City Council—and of proposed changes in the city’s zoning ordinance needed to implement the changes spelled out in the draft. 

Planning Commission Chair Helen Burke handed the gavel over to colleague David Stoloff for the discussion, since she also serves as chair of the Creeks Task Force. 

It was an interruption by Burke, an environmentalist who belongs to the Sierra Club, that prompted the raised voice of colleague Harry Pollack, followed minutes later by Sheen’s mild rebuke, which, in turn, elicited a grimace from Pollack. 

City councilmembers are scheduled to vote on both pieces of legislation on Nov. 14, preceded by Planning Commission action on Oct. 11, though some members wanted to reserve the right to hold a final vote over until Oct. 25. 

On hand for the meeting were Deputy Planning Director Wendy Cosin and Betsy Strauss, an environmental attorney hired by the city as a special consultant on the project. 



The meeting began with public comments from several members of Neighbors on Urban Creeks (NUC), a property owners’ group, which has been highly critical of the existing ordinance and of the proposed revisions as well as the city’s handling of public notice to the more than 2,000 property owners potentially affected by the measures. 

“The Creeks Ordinance does not reflect what the City Council asked for,” said Barbara Allen. “Please take some time and make some sense out of it.” 

Martha Jones said she was especially concerned about potential effects on neighborhoods, given that the city “has no accurate map of creeks and the properties affected,” a point the city concedes. 

One of the major problems is that no one knows exactly where many of creeks flow, those specifically buried in concrete-enclosed culverts as the city developed. Many property owners have structures built over and near creeks and don’t know it, she said. 

“Culverted creeks are as much storm drains as they are creeks, but the vast majority of owners with culverts on their property were unaware of them when they bought, yet they bear the entire responsibility for upkeep expenses,” said former mayor Shirley Dean. 

Mischa Lorraine, a member of the task force and of NUC, said the city attorney’s office and the task force have inserted language that is “increasingly restrictive to property owners,” creating unacceptable pressures. 

NUC members said they are particularly concerned with provisions governing rebuilding of homes destroyed by natural disasters, including fire, flood and earthquakes. 


Less restrictive? 

But the proposed ordinance is actually less restrictive, Cosin said. Under the existing ordinance, a structure can be rebuilt as it was before the disaster only if less than half the structure was demolished. Anything more, and the building must follow new building and zoning codes. 

The proposed revisions would allow for full reconstruction of structures of three residential units or less. 

Similarly, when it comes to additions or new construction, the proposed revisions would allow owners to breach mandated setbacks for height, side and front yards in exchange for keeping construction away from mandated setbacks from waterways with the grant of a use permit rather than a most costly and time-consuming zoning variance. 

Planning Commissioner Gene Poschman said the city should approach the ordinances with great care. 

“My nightmare is what happened after the Oakland Hills fire,” he said, referring to the 1991 firestorm that demolished 2,886 homes and apartment buildings. “There were two disasters. One was the fire and the other was the rebuilding. The hills vanished in a wave of mansionization.” 

Commissioner Susan Wengraf said her main concern was the lack of notice to property owners of the upcoming commission meeting where a vote on the ordinance was scheduled. Cosin agreed to send notice to the 2,000 or so owners of the city’s list of affected properties. 

Whether or not the City Council intended the new regulations to cover buried creeks was another sore point with Wengraf, who said she believed they did not. 


Telegraph Avenue 

The commission voted unanimously to set an Oct. 11 public hearing on the Telegraph Avenue Economic Development Assistance Package, legislation sponsored by City Councilmembers Kriss Worthington and Gordon Wozniak designed to spur a revitalization of business along the troubled thoroughfare. 

Principal Planner Allan Gatzke said the draft ordinance includes provisions to ease the establishment or change of business use at commercial locations and simplify the process of winning of approval for subdividing larger spaces to allow for more and smaller business. 

Mike Sheen, Worthington’s appointee to the commission, said the measure had as part of its goal promoting small and locally owned business, one of the key reasons for permitting the conversion of larger spaces into multiple smaller ones. 

The proposal would also ease the process for winning permits to open restaurants, commercial classes and training, gyms and health clubs, fast food service, and amusement machines. 

Poschman said he was skeptical of enacting changes without any hard figures on vacancies, rents and existing tenants along the avenue, as well as of loosening the existing business quota system. 

“We have become not just the planning commission but essentially the commission on economic development,” he said. “What bothers me is acting without any data.” 

While Several UC Berkeley students had addressed the commission complaining that the ordinance would force earlier closing hours, Gatzke said they had misread the ordinance, which actually makes it easier for business to remain open later.