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The City Council on Tuesday approved the Creek Task Force (CTF) recommendations that ease current building restrictions, but still would require various permits and environmental analyses to build or remodel near creeks.  

“Healthy creek corridors protect structures from erosion and damage, improve water quality, prevent floods, and protect and enhance fish and wildlife habitat,” wrote CTF supporters. the Sierra Club, Urban Creeks Council, the Golden Gate Audubon Society and other environmental organizations, in a newspaper ad. 

Opponents of the task force’s recommendations, however, called the recommended permitting process “onerous.” Neighbors on Urban Creeks Steering Committee member Vonnie Gurgin said it “tramples on the rights of property owners.” 

The 7-2 vote, with Councilmembers Betty Olds and Gordon Wozniak in opposition, came after a three-hour public hearing attended by about 140 people at Longfellow Middle School. 

“I’m horrified to think we’re voting tonight,” Olds said as the hour neared 11 p.m. “There have been so many issues raised tonight. The task force has been working a year and a half. I’d like to absorb what they’ve said.” 

The task force proposals were a compromise, CTF Chair Helen Burke told the council. 

“An uncompromised view would be for larger setbacks than [the 30 feet] CTF recommended,” she said. 

The task force labored on the ordinance for 18 months. “It is time now for action,” Burke said. 

Planning Commission Vice Chair David Stoloff, however, called for “more flexibility to protect private property” and asked the council to modify the task force recommendations to “avoid an onerous permit process.” 

The CTF recommendations run counter to both Planning and Public Works commissions’ advice to the council.  

Planning staff will draft an amendment to the 1989 Creeks Ordinance based on the council recommendations. It will be reviewed by Planning and Public Works commissions and the Creeks Task Force. After a second public hearing, the council will vote on the final ordinance. 

Task Force recommendations for allowing various kinds of structures to be built in various creekside locations turn on whether or not variances are required. A variance, issued by vote of the Zoning Adjustments Board, is usually needed if a proposed building project does not comply with zoning regulations, while planning staff may grant certain use permits for uses allowed by the zoning code. 

Current law prohibits almost all building or remodeling within 30 feet of a creek or culvert. Changes approved by the council include: 

• Remodeling an existing structure by making it higher or excavating would be possible with an over-the-counter permit and a professional environmental analysis.  

• Expansion of a roofed structure within 25-30 feet of a creek would take a use permit and an environmental analysis, but expansion to 25 feet or less from the creek would require a variance.  

• New construction of buildings with roofs within 30 feet of a creek would also require a variance. 

• An environmental analysis would be required when new decks are built within 10-30 feet and when replacing decks after a loss within 30 feet of a creek. A variance would be required to build closer than 10 feet. 

• Building on or near a culvert would not be governed by rules regulating creeks. 

In addition to CTF recommendations, the council voted to incorporate the right to rebuild the same size structure after a disaster with an over-the-counter permit, consistent with the “right to rebuild” zoning ordinance passed, in concept, by the council last week.  

A second resolution,authored by Councilmember Laurie Capitelli, which passed 6-1-2 (Mayor Tom Bates opposing and Councilmember Kriss Worthington and Wozniak abstaining), asked staff to explore allowing a use permit in instances where a variance had been recommended by the CTF, in order to make it easier to rebuild. 

Much of the disagreement among those attending the hearing revolved around elements of the ordinance the CTF left up to staff, including the definition of a creek. Some people argued that because Berkeley creeks range from flowing waterways with fish to trickles that run dry in the summer, that a “one-size-fit-all” approach to regulations is misguided. 

Arguing for a “case by case approach,” Jana Olson, a task force member who signed a CTF minority report, contended that “a lot of homes are on small rivulets. The situations are different.” 

Moreover, soil composition varies from solid rock or loose sand, she said. 

Also of concern was the question of the “environmental analysis” necessary to get a permit for building and rebuilding. 

“What will that involve?” asked Capitelli, underscoring that he feared the review could trigger the need for a more extensive environmental study. 

The difficulty of obtaining a permit to build or rebuild drew fire at the public hearing. Pointing to a potentially costly permitting process for remodeling her house on a creek—or the possibility that she would not be allowed to remodel—homeowner Sara Baughn said the proposed law hurts her investment. 

“Why should someone buy our house?” she asked. 

Homeowner Janet Byron countered that her house beside Strawberry Creek had tripled in value since she bought it in 1997, despite the strict rules in effect under the 1989 Creeks Ordinance. 

“I’m not worried about selling it,” she said. 

Friends of Five Creeks President Susan Schwartz urged the council to adopt the CTF recommendations, which, she wrote the council, “allow(s) homeowners reasonable flexibility to expand their homes, along with the security of being able to repair or rebuild.” 

The question of financial responsibility for repairing culverts that run through private property was brought into the mix by speakers who argued that should be the city’s responsibility. 

“It’s not fair to put [culvert repairs] on the backs of the homeowner,” Olson said. “How the water reaches the bay is a public, not private [issue].”  

In an interview during a break in the meeting, City Attorney Manuela Albuquerque said that “all culverts on private land were built privately,” and therefore should be maintained by property owners.