Kamlarz
Memo from Phil Kamlarz concerning
BERKELEY CITY COUNCIL SPECIAL MEETING
SEPTEMBER 28, 2004
Memo from City Clerk -|- Memo from City Manager-|- Ordinance (Attachment A)
Permit Application Procedure (Attachment B)-|- Disaster Replacement Draft Ordinance Modifications (Attachment C)
Office of the City Manager
September 1, 2004
To: Property Owners and Other Interested Parties
From: Phil Kamlarz, City Manager
Subject: Creeks Ordinance Public Hearing on September 28, 2004
The City Council is holding a public hearing on the City's Creeks Ordinance in order to take public comment on the existing ordinance and consider what direction it may wish to give staff to modify the ordinance. You are receiving this notice and background information because you are either a property owner who has been identified as being within 40 feet of the estimated centerline of a creek, or because you have indicated an interest in this issue in the past. As will be discussed below, property owners within 30 feet of a creek's centerline are regulated under the City's ordinance. However, because of uncertainty in mapping creeks and their centerlines, all properties within 40 feet are being notified. The purpose of this memo is to provide you with information about the Creeks Ordinance, focusing on impacts on property owners who are regulated under the ordinance.
Existing Creeks Ordinance
The City's Creeks Ordinance was first adopted in 1989. It has subsequently been modified to clarify certain of its provisions, but has not been substantially changed since it was first adopted. The ordinance prevents most development from occurring within 30 feet of the centerline of a creek (the Creeks Ordinance is Attachment A). Creeks are broadly defined to include naturally occurring watercourses (whether seasonal or perennial) and those portions of a creek that have been placed in culverts (usually underground) but remain in the location where they naturally occurred before being placed in the culvert. Although the ordinance has existed for some time, the Council decided to hold a public hearing on September 28, 2004 after hearing from some members of the community that the existing ordinance was inadequate to protect the City's creeks. At the same time, the City's ability to map and notify affected property owners about the ordinance has improved, and many people are now finding out about the ordinance who may not have realized they were regulated under it.
It is the City's policy to protect and restore its creeks and to encourage uncovering and "daylighting" creeks that have already been placed in culverts. To implement this policy, the ordinance prevents new development of a structure with a roof from occurring within 30 feet of the centerline of a creek. The City has recently prepared a new map to assist the public and City staff to know when a property may be regulated under the ordinance As previously noted, the City cannot always tell from available information the exact location of a creek's centerline; therefore, the City has a draft administrative regulation for making such determinations upon application for a building permit (see Attachment B).
Because the City's creek regulations depend on a definition of a creek and not on the map, the fact that a property is not on the map does not exclude it from being potentially regulated under the Creeks Ordinance. There may be watercourses in the City of Berkeley that meet the definition of a creek under the ordinance but are not shown on the City's map. The reverse is also true: the fact that a property is identified on the map as potentially regulated under the ordinance does not necessarily mean it is regulated. The maps are based on the best information available, but that information is not accurate as to the exact location of the centerline of creeks, and some leeway was built into the maps to account for that inaccuracy. For example, the map may show a property or a structure as being within the 30-foot setback that is regulated, but an actual measurement of the location of the creek centerline may show that the property or structure is outside that 30-foot setback.
If your property is shown on the map as potentially regulated under the ordinance, it means several things for you as a property owner:
You may need to determine whether the property is regulated and if there is a structure within 30 feet of the creek centerline. Most property owners near open creeks know their property is near a creek and may fall under the regulation. However, the exact area subject to regulation can generally only be determined as described in the enclosed draft administrative regulation and will usually require a survey by a licensed land surveyor or engineer. This same requirement applies to properties that are identified as within 30 feet of a culverted portion of a creek that remains in its original location. A survey of the area subject to regulation would normally be needed if a property owner is intending to construct a new building or an addition or modification to an existing building in an area that may be affected by the regulation.
If the property is regulated, any pre-existing, roofed structures within 30 feet of the centerline of a creek may remain and be maintained indefinitely. However, no new structures can be built that encroach within 30 feet of the centerline of the creek, and no additions are permitted that would either encroach within 30 feet of the centerline of the creek or add on to an existing encroachment (e.g., a second floor on an encroaching portion of a home). Additions may be made to any portions of a structure that are not within the regulated area, and repairs may be made of a structure that encroaches. There are some very limited exceptions to this rule, and the Zoning Adjustments Board can make a special exception by granting a "variance," but such special exceptions are very difficult to obtain.
If you own a building that encroaches in the required setback and it is destroyed in a disaster, although the current version of the ordinance does not expressly authorize rebuilding within 30 feet of a creek, the City would process an application to rebuild as a "variance" while trying to minimize the effect on a creek. Staff is recommending the Council consider possible modifications to the ordinance that would incorporate standards to govern rebuilding at the September 28 public hearing (see below under "Issues" for further discussion).
Issues
The following is a list of issues with the current ordinance that have been identified by staff and some brief background on those issues. The list of issues is not intended to be exhaustive, but is intended to provide a beginning point for discussion.
What is an appropriate area (setback) for protection?
The current ordinance regulates the area within 30 feet of the centerline of a creek. Staff does not have information as to how this particular setback distance was determined. Such a setback may not be adequate to protect creeks because each portion of a creek has a unique set of characteristics related to its geo-morphology, biology and hydrology. Due to issues such as the depth of a culvert and its hydrology, 30 feet may not be a sufficient setback to provide for the goal of daylighting a culverted creek.
Should the area subject to protection be modified for culverts?
The Creeks Ordinance treats culverted creeks the same as open creeks, so long as the culverted portion is in the location of the historic creek. This regulation is intended to limit development near culverted creeks, thereby allowing them to be more easily "daylighted" at some point in the future, consistent with City policy. However, as noted above, 30 feet may not be sufficient to provide for "daylighting," and daylighting may not be feasible in all locations.
What should be regulated in regards to the area subject to protection?
Only roofed structures are regulated under the ordinance. However, other types of structures including decks and driveways can have impacts on open creeks. It may be appropriate to regulate development near culverts differently from open creeks because they are not subject to potential water quality or riparian area impacts from adjacent development.
How can/should the City encourage daylighting?
According to the General Plan, it is the City's policy to "[w]henever feasible, daylight creeks by removing culverts, underground pipes, and obstructions to fish and animal migrations." The City has not defined when it is "feasible" to daylight. In addition, the current Creeks ordinance regulates development setbacks only for culverted creeks in their original location, but does not address those portions of the creek that have been culverted and moved from their original location. The City may wish to consider the feasibility of daylighting culverted creeks, whether or not they are in their historic location.
How should property regulated under the ordinance be treated after a disaster?
Existing roofed structures in a creek setback can only be replaced if granted a variance. This would apply no matter how the structure was destroyed - whether burned down by an electrical malfunction or destroyed in a natural disaster. Variances can only be granted if several findings can be made and then only after the required application and public review procedure. Staff is recommending that the ordinance be modified immediately to address the issue of structures being destroyed by no fault of the owner. Drafts of two possible alternative approaches to this issue are suggested in enclosed draft ordinances (Attachment C). Comments from the community and direction from the Council will help staff to prepare a final draft. The differences in the two alternatives relate to the findings that are required to rebuild a structure that encroaches into the required setback from the creek. Under one alternative, a structure could only be rebuilt in the setback area if the City found that rebuilding it outside of the regulated area was infeasible. Under the other option, a property owner could rebuild substantially the same structure in its current location without proving that it was infeasible to build outside the required setback. Under either scenario, the rebuild would be subject to other requirements of the Zoning Ordinance.
Attachments:
B. Draft Administrative Regulation for Processing Permit Applications Where a Creek May Be Present on the Property
C. Draft Modifications to Creeks Ordinance to Address Rebuilding After a Natural Disaster