Creeks Hearing Provides Opportunity for Public’s Input

By Judith Scherr
Tuesday November 14, 2006

Community members will have one more chance to weigh in at a public hearing tonight (Tuesday) on a proposed city law some praise for protecting creeks but one that others say would be costly to homeowners and restrict the use of their property.  

At the same public hearing, Berkeley residents will be able to address a zoning law amendment that allows people to rebuild residences of four or fewer units at the original height and bulk with an easily obtained across-the-counter permit if the structure was destroyed by a disaster, such as a fire or earthquake. 

The City Council meeting starts at 7 p.m. at Old City Hall 2134 Martin Luther King Jr. Way; the public hearing time is not predetermined.  

The proposed amendment to the existing Creeks Ordinance would regulate building or remodeling on or near creeks and culverts. The proposed ordinance differs in how it regulates creeks and culverts—streams that run through pipes. 

In a phone interview Monday, former mayor Shirley Dean, with the Neighbors on Urban Creeks, said the proposed Creeks Ordinance revision, while continuing to lack certain components, goes a long way to satisfying the needs of property owners. Neighbors on Urban Creeks was founded to ensure the rights of property owners. 

The city-appointed Creeks Task Force has been working on a revised Creeks Ordinance for almost two years. 

The most important element of the revised law, according to Dean, is that “daylighting a culverted creek will be voluntary.” Daylighting a creek means opening a creek enclosed in a pipe and restoring it to a more natural state. 

But a problem with the proposed law, according to Dean, is that when an individual wants to build on vacant property or expand an existing residence within 25 feet of a culvert identified by the city, the property owner must pay a professional to establish exactly where the culvert is. Dean says that should be the city’s responsibility. 

“The city doesn’t have a clue where the culverts are,” she said. 

The proposed law would: 

• allow building within 15 feet of a culverted creek with an administrative Culverted Creek Permit issued based on a structural engineer’s report demonstrating culvert stability, access, and protected water quality; and 

• allow both vertical expansion (building up or down) within 30 feet of an open creek, and expansion of an existing structure between 25 and 30 feet of an open creek, with an Administrative Creek Permit based on a report showing the project would not have an adverse impact on the creek. 

A key question the council will have to answer when it considers the ordinance will be the type of city permit a homeowner would have to obtain to build on vacant land within 30 feet of the centerline of an open creek: should the homeowner be required to get a variance—generally needed when a proposed building project does not comply with zoning laws and is issued by vote of the zoning board—or should the homeowner be allowed to build after obtaining a use permit? The zoning board would issue the use permit “with strict criteria and findings that alternatives have been considered and have been determined infeasible and that the creek is protected against adverse environmental effects,” according a Nov. 14 planning staff report. 

The Creeks Task Force supports a variance, while the Planning Commission supports the use permit option.  

Calling the proposed ordinance “a finely crafted compromise that respects the homeowners as well as the environment,” Helen Burke, who chairs the Creeks Task Force, called for requiring the variance option in order to build within a 30-foot setback of an open creek to avoid degradation of the creek environment. 

In her Nov. 14 report to the council, Deputy Planning Director Wendy Cosin said the Planning Commission, on the other hand, “stated that a use permit is more appropriate because it is nearly impossible for a variance to be approved.”  

Dean and others have addressed concerns about the cost to homeowners for repairing culverts on their properties. This is not addressed in the ordinance revisions, because the city is in litigation with property owners over the issue of responsibility for culvert repairs. 

According to Burke, the City Council will address that question only after the lawsuit has been resolved.