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On Thursday night Councilmember Laurie Capitelli sent a letter to the Planet regarding the just-passed Creeks ordinance which came too late to be added to this issue in full.  

It charged that “because of a rush to approve the CTF recommendations without amendments, several of us on the Council were not given the opportunity to fully comment, ask questions and explore the possibilities of unintended consequences. It certainly appears the decision to pass the ordinance was made before the public hearing, exhibiting a disregard to those who testified, those from the Planning Commission and Public Works Commission who provided alternative reports, and to the three members on the Council unwilling to proceed without further consideration of the draft ordinance.” 

He asked the council to set aside an hour at their Nov. 28 meeting to continue consideration of the ordinance. 

Text of letter: 

Dear Council Colleagues,  

Tuesday night, we were privileged to hear the long awaited report and proposed ordinance from the Creeks Task Force. I commend the staff and the task force for their diligence, tenacity and focus on this issue.  

Unfortunately, because of a rush to approve the CTF recommendations without amendments, several of us on the Council were not given the opportunity to fully comment, ask questions and explore the possibilities of unintended consequences. It certainly appears the decision to pass the ordinance was made before the public hearing, exhibiting a disregard to those who testified, those from the Planning Commission and Public Works Commission who provided alternative reports, and to the three members on the Council unwilling to proceed without further consideration of the draft ordinance.  

This was a major piece of legislation that deserved very careful review. We did not honor the two-year work of the task force by so quickly and cavalierly approving their recommendations. We did not honor the work of the Planning and Public Works Commissions whose perspectives were dismissed.  

The Council's long-held policy of postponing votes after a public hearing to the subsequent Council meeting would have served us all well in this case. I was reassured by some colleagues that this was their understanding on Tuesday night, and that there would be adequate time for further questions and discussion. But this policy was not even acknowledged much less considered when raised by Councilmember Olds.  

I understand completely that the CTF wanted validation for their work and closure to the process. That is only natural. My hope was to support their work, not merely abstain because of flawed process.  

So, I respectfully request that at the November 28, 2006 City Council meeting, that we unanimously pull the first reading of this ordinance, set it for action, and set aside one hour to discuss with staff present various issues raised in the public record. Among the topics to discuss are:  

1. Treatment of culverts. Whether culverts are regulated in the Creeks Ordinance or through the Public Works Department is mostly a question of symbolism. How they are regulated is not. Culvert repair and replacement in the flatlands will be exponentially more expensive because they are older, significantly larger and will need attention sooner. Culvert replacement in the hills will be incrementally less. (One needs only imagine replacement of a 6" culvert in the hills versus a 6' culvert in the flatlands.) Also, we need to identify the location of these culverts - an expense that should be borne by the city because it would be more efficient and, therefore, less costly to do this as a community rather than one property at a time.  

2. The right to rebuild. What will be the exact process and potential limitations imposed by the ordinance regarding the right to rebuild? Why does there need to be a differentiation between 'voluntary' and 'involuntary'? There seems to be an issue around the definition of demolition, but do we really want to go down the path of arguing whether or not something was voluntary unless there is a substantive reason to do so?  

3. List of effected properties. The ordinance indicates that the city should maintain a list of effected properties. Is it fair to have properties that are regulated differently ("open" or "culverted" creeks) on the same list? And being on or off this list has enormous implications for property owners, particularly those on a 'culvert' list because of the unknown liability for culvert maintenance, repair, or replacement. (This will have especially heavy impacts on property owners in Districts 1,2 and 3 because of the potentially larger costs for to larger culverts.)  

4. Minor encroachments that do not increase square footage. We could save a lot of grief for individual property owners who want to make minor changes to their homes with new language inserted in the ordinance. For instance: currently, if a property owner wants to replace a flat roof with a pitched roof that includes a new three-foot eve, and that eve would project into the 25 foot creek setback, it would not be allowed. Suggested language to add to the ordinance might be: Notwithstanding any other provision of this section, eaves, cornices, bay windows, and awnings that do not increase the floor area of an existing building or encroach within 10' feet of the centerline of an open creek are not subject to the provisions of this section. Add to section 17.08.050  

There were several other concerns raised by testimony during the public hearing or submitted in the public record. At a minimum, these concerns deserve a respectful hearing and response.  

Sincerely,  

Laurie Capitelli  

Berkeley City Council, District 5