City Council Approves Revised Creeks Ordinance

By Judith Scherr
Friday November 17, 2006

Late Tuesday night, after two years of contentious meetings in which environmentalists often clashed with property owners, the Berkeley City Council approved revisions to the Creeks Ordinance, 6-2-1, aimed at safeguarding the city’s many open and culverted waterways. 

Councilmembers Betty Olds and Gordon Wozniak voted in opposition; Councilmember Laurie Capitelli abstained. 

Following this vote, the council also approved, 6-1-2, a zoning ordinance amendment, giving property owners the right to rebuild a structure of up to four units that was “involuntarily” destroyed, such as by flood or fire, with an easily obtained across-the-counter permit. Councilmember Betty Olds voted in opposition, with Councilmembers Gordon Wozniak and Laurie Capitelli abstaining. 

Among the most controversial requirements of the revised Creeks Ordinance is one that imposes severe limitations on new construction within 30 feet of the center of an open creek (all ordinance measurements reference the creek center) and on expansion of an existing structure within 25 feet of the creek. Such construction will require a variance, generally needed when zoning laws prohibit a proposed project; a hearing before the zoning board is required to obtain a variance. 

Applauding the proposed requirement for a variance, rather than a more easily obtained use permit, Joshua Bradt, who serves on the 15-member Creeks Task Force (CTF) responsible for revising the ordinance, spoke at the public hearing before the vote that drew some 70 people. 

“If you build too close to the creek, there will be erosion,” he said. “A variance is more protective.” 

But Neighbors on Urban Creeks member Mischa Lorraine, among the five members of the CTF who authored a minority report in opposition to the proposed ordinance, said the requirements create “unacceptable pressure on property owners.” 

Among the issues outlined in the minority report is the question of the one-size-fits-all permit required in the area 30 feet from a creek. 

“We support a case-by-case analysis of the appropriate setback from the creeks,” the dissenters wrote, arguing that the staff should “develop flexible standards which consider, among other matters, the varying depth and water flow of creeks in Berkeley.” 

“The interests I represent have been ignored by the Creeks Task Force majority,” Lorraine told the council. 

The revised ordinance will allow: 

• vertical expansion (building up and down) within 30 feet of an open creek, and horizontal expansion of an existing structure between 25 and 30 feet from an open creek, with an administrative creek permit, based on a report showing the construction would have no adverse impact on the creek;  

• building within 15 feet of a culverted creek with an administrative culverted creek permit, based on a structural engineer’s report demonstrating culvert stability, access and water quality protection. 

A number of speakers called on the council to take the culverted waterways out of the Creeks Ordinance. 

“We need to recognize culverts as part of the city’s storm-drain system,” said Barbara Allen, of Neighbors on Urban Creeks, a group formed to support property owners with creeks on their lots.  

Applauding the final ordinance as a “basic compromise between homeowners and environmentalists,” Helen Burke, planning commissioner who chairs the Creeks Task Force called for a holistic approach to manage Berkeley’s water resources, something agreed on by people representing homeowner interests and by those speaking to environmental concerns. 

“We need a half-time watershed manager,” Burke said. “We want a watershed management plan.”